Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 84-C-1682--William T. Hart Judge.
Before FLAUM and EASTERBROOK, Circuit Judges, and WEIGEL, Senior District Judge.*fn*
EASTERBROOK, Circuit Judge.
Terry Young participated in a gun duel in which two of his friends killed each other. Young and Edward Clerk were together when Clerk's mother announced that Michael Jackson, gun in hand, had coming "looking" for Clerk. Young and Clerk then went "looking" for Jackson and found him. Clerk hit Jackson with a gun, and as Jackson reeled back Clerk fired. Jackson fired in return; Clerk fell, dead on the spot with a bullet in his head; Jackson stomped on Clerk's chest and fled. Young fired at the running Jackson with a sawed-off shotgun but missed. The miss made no difference. Jackson collapsed within a block and died. Clerk's bullet had pierced Jackson's heart.
Illinois prosecuted Young for murder, armed violence, and the unlawful use of weapons. At the conclusion of a bench trial the judge stated:
I am afraid, gentlemen, under the evidence and facts as elicited here, while [Young] did not fire any fatal shot [he] has been proven to be legally accountable for the actions of Edward Clerk. Were Clerk here and alive Clerk would definitely be guilty of murder.
I am quite certain that there is considerable mitigation here.
I can't find [Young] guilty of voluntary manslaughter. There is no evidence that he was even acting in self-defense or sufficient to raise a self-defense claim, but with the mitigation that has been built into the facts as elicited I would be authorized and I think the fairest and the most reasonable finding is to the included offense in Count Six, armed violence. . . .
[Young] will be found guilty of the included offense of armed violence and unlawful use of weapons, of course -- unlawful use of weapons is actually part of the same act.
Perhaps we will take it up at sentence. Judgment on the finding. Presentence ordered. The matter will be continued for sentencing . . .
The mitigation to which the judge referred apparently was that Jackson had been "looking" for Clerk rather than Young, and that Young did not fire until Clerk and Jackson had already killed each other. (Young, who ...