Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Will County,
the Hon. Robert L. Dannehl, Judge, presiding.
JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
On November 5, 1980, Gerard Stroner was indicted for solicitation to commit murder, conspiracy to commit murder and attempted murder. The attempt charge was based on the theory of accountability. Following a jury trial in the circuit court of Will County, he was convicted on all charges and sentenced to three concurrent terms of six years. The appellate court affirmed the conviction for attempted murder, but reversed the other two, vacated the sentence on the attempted-murder conviction and remanded for resentencing on that count. (104 Ill. App.3d 1.) Both parties filed petitions for leave to appeal under our Rule 315 (73 Ill.2d R. 315). We allowed both petitions and consolidated the appeals. Subsequently, the defendant advised us that he had abandoned his appeal in which he sought a new trial on the attempt conviction because of a claimed conflict of interest on the part of his attorney. We consider therefore only those issues raised on the People's appeal: whether solicitation is a lesser included offense of conspiracy and whether conspiracy to commit murder is a lesser included offense of attempted murder on the theory of accountability.
The evidence showed that in late February 1980 the defendant, a Crest Hill police officer, asked Dennis McCallister if he could arrange to have someone beaten or killed. On March 7, 1980, Stroner told McCallister that it was William McGrath that he wanted killed. McCallister, who subsequently became a prosecution witness, told Stroner that he would kill McGrath for $500. The defendant told McCallister that he was in love with McGrath's wife, Susan, and that McGrath frequently beat her. Mrs. McGrath testified that, although she had met Stroner several times, he was no more than a mere acquaintance.
During the next several weeks, the defendant and McCallister met on numerous occasions, according to McCallister. One time they followed McGrath home from work so that McCallister could identify the proposed victim. They eventually agreed on a price of $1,000 for McGrath's murder. Stroner gave McCallister a $200 advance with which he was to purchase a shotgun. Instead, McCallister used the money to buy liquor and drugs.
McCallister testified that on April 21, 1980, Stroner told him that McGrath must be killed that evening. When McCallister told him that he had been unable to obtain a gun, Stroner said that he would meet him "with everything." Stroner took a shotgun from the armory of the Crest Hill police department and gave $800 to the assistant manager of a restaurant with instructions to hold the money until he or somebody sent by him came to claim it.
Stroner had the shotgun and shells for it when he picked up McCallister that evening. His plan to have McGrath killed outside a bowling alley had to be abandoned because a Bolingbrook police car was in the vicinity. They decided that the shooting would take place as McGrath arrived home. Stroner drove McCallister to a location near McGrath's house and agreed to pick him up in the next block after the shooting.
As McGrath arrived at his house, two shots were fired at him by McCallister, but he was not struck. He ran to a neighbor's house and phoned the police. After shooting at McGrath, McCallister ran to the planned meeting place, where he was met by Romeoville police officers instead of Stroner. The record does not explain the presence of the Romeoville officers. He was arrested and gave a statement implicating Stroner. Stroner was arrested the following morning.
McCallister subsequently pleaded guilty to conspiracy to commit murder under a plea agreement. He testified for the prosecution, which recommended a sentence of five years' imprisonment.
Stroner admitted asking McCallister to kill McGrath. Stroner testified it was not his true intent to have McGrath killed. His real intent was to obtain evidence against McCallister regarding several murders in which Stroner believed McCallister had taken part. Stroner testified that he had met McGrath and was threatened by him because he suspected that Stroner was having an affair with his wife. Stroner had not told anyone at the Crest Hill police department about his dealings with McCallister, as he felt the other officers could not be trusted. He admitted taking the shotgun from the police armory but claimed that the shotgun shells he gave to McCallister had been loaded only with salt. On cross-examination, Stroner acknowledged that when the McGrath murder was being planned McCallister admitted having been involved in a shooting in Rockdale and in a bank robbery in Tennessee. Nevertheless, Stroner continued with his ostensible murder plan and did not take steps to arrest McCallister for those crimes.
The appellate court, in reversing the solicitation and conspiracy convictions, held that solicitation to commit murder is a lesser included offense of conspiracy to commit murder and, further, that conspiracy to murder is a lesser included offense of attempted murder on the theory of accountability.
In considering whether solicitation is a lesser included offense of conspiracy, the appellate panel in this case stated that there are divided opinions on the question. Prior to the panel's decision here and in the preceding case of In re S.D.S. (1982), 103 Ill. App.3d 1008, which the panel also decided, the appellate court in the first and fifth districts had held that solicitation is not a lesser included offense of conspiracy. People v. Harvey (1st Dist. 1981), 95 Ill. App.3d 992; People v. Latham (5th Dist. 1979), 73 Ill. App.3d 995.
A lesser included offense is one which is established by proof of "less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged * * *." (Ill. Rev. Stat. 1979, ch. 38, par. 2-9(a); People v. Wisslead (1983), 94 Ill.2d 190.) The offense charged must include every element of the lesser offense, plus an additional element or elements, so that one cannot commit the offense charged without committing the lesser offense. Solicitation is committed "when, with intent that an offense be committed, [a person] commands, encourages or requests another to commit that offense." (Ill. Rev. Stat. 1979, ch. 38, par. 8-1(a).) Section 8-2(a) of the Criminal Code of 1961 defines conspiracy:
"A person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement is alleged and proved to have been committed by him or by a co-conspirator." (Ill. Rev. Stat. 1979, ch. 38, par. 8-2(a).)
Considering the definitions of the offenses, it can be seen that one can commit the offense of conspiracy without having first committed the offense of solicitation and that solicitation ...