Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Robert L. Sklodowski, Judge, presiding.
CHIEF JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Two armed men shot and killed Alfredo Torres on a street in Chicago on the evening of November 8, 1979, as he left his home to move his automobile which had been parked on the street. As a result of this killing, the defendant, Ruben Frias, was charged by information filed by the State's Attorney of Cook County with two counts of murder. One count was based on a violation of section 9-1(a)(1) of the Criminal Code of 1961, and the other count was based on section 9-1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(a)(1), 9-1(a)(2)). Frias was also charged with one count of armed violence based on the felony of murder. (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2.) He was tried separately from a co-offender, Fernando Fernandez.
The jury found Frias not guilty of murder; however, it found him guilty of armed violence based on having committed murder while armed. He was sentenced to 15 years' imprisonment. The appellate court reversed, holding that the armed-violence conviction was improper because the predicate felony, murder, was an essential element of the armed-violence charge, which was required to be proved by the State in order to sustain the conviction of armed violence. (109 Ill. App.3d 888.) We granted the State's petition for leave to appeal.
This court has held that an essential element of a conviction for armed violence is the commission of an underlying felony while armed. In People v. Haron (1981), 85 Ill.2d 261, 278, we said that "the requirement of section 33A-2 that there be the commission of a felony while armed with a dangerous weapon contemplates the commission of a predicate offense which is a felony." Subsequently, in People v. Tiller (1982), 94 Ill.2d 303, the defendant had been convicted of armed robbery and armed violence based on armed robbery. On appeal, we reversed the defendant's armed-robbery conviction. Having done that, we then reversed the defendant's armed-violence conviction because, without the armed-robbery conviction, "there is no underlying felony to sustain the conviction for armed violence." 94 Ill.2d 303, 323.
The armed-violence statute (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2) provides:
"Sec. 33A-2. Armed violence — Elements of the offense. A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." (Emphasis added.)
Clearly, as this court held in Haron and Tiller, the statute requires that, before one can be convicted of armed violence, he must have committed the predicate felony. Illinois Pattern Jury Instruction, Criminal, No. 11.20 (2d ed. 1981), defines the issue of armed violence. As given in the case now before us, the proposition that the jury was told the State must prove was "that the defendant committed the offense of murder."
Our decision in Haron and Tiller would appear to control the decision in this case. However, the State has raised questions on this appeal that have not heretofore been considered in connection with the armed-violence statute.
The State argues that in People v. Myers (1981), 85 Ill.2d 281, this court approved a conviction of armed violence based on a felony which was not charged, that is, aggravated battery. In Myers, although the defendant was not convicted of aggravated battery, he was, nonetheless, charged with armed violence based upon the felony of aggravated battery. We have not held that the defendant must be convicted of the predicate felony. However, before he may be convicted of armed violence based upon the predicate felony, the elements of that felony must be established and it must be proved that the felony was committed while armed.
The State now contends that the appellate court erred when it held that the not guilty verdict as to the murder charge, which the State contends was legally inconsistent with the verdict of guilty of armed violence based on murder, required the reversal of the armed-violence conviction.
The appellate court opinion and the briefs filed by both the State and the defendant demonstrate that the term "inconsistent verdicts" does not carry a clear and precise meaning. This court, in People v. Hairston (1970), 46 Ill.2d 348, 362, distinguished between logically and legally inconsistent verdicts and held that logically inconsistent verdicts can stand and implied that legally inconsistent verdicts cannot.
The State contends that the implication in Hairston concerning legally inconsistent verdicts is no longer valid. It is the State's position that this court, in People v. Dawson (1975), 60 Ill.2d 278, effectively overruled Hairston as to the invalidity of legally inconsistent verdicts. Several decisions of the appellate court have viewed the holding in Dawson in this same light. (See People v. O'Malley (1982), 108 Ill. App.3d 823; People v. Harris (1982), 104 Ill. App.3d 833; People v. Jimerson (1979), 69 Ill. App.3d 403.) In People v. Johnson (1980), 87 Ill. App.3d 306, 309, although the appellate court stated it agreed with other decisions that held that Dawson impliedly overruled Hairston on the question of legally inconsistent verdicts, the court nonetheless found that, in the case it was considering, there was no legal inconsistency.
Part of the difficulty in resolving the question of whether or not inconsistent verdicts may stand stems from a lack of agreement as to what constitutes legal inconsistency. The appellate court, in the case now before us, while stating that Illinois no longer requires consistency, either legally or logically, in jury verdicts, nonetheless held that where the crime of which the defendant was acquitted was an essential element of the crime for which he was convicted, the conviction cannot stand. 109 Ill. App.3d 888, 893.
The State points out that the "essential element" test used by the appellate court falls squarely within the definition of "legal inconsistency," citing People v. O'Malley ...