author:
MR. CHIEF JUSTICE WARD
      MR. JUSTICE RYAN

text:
    (No. 49909.
    (No. 50340.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. WILLIAM MYERS HARRIS, Appellee.-THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOHNNIE E. SHIELDS, Appellee.

      Opinion filed May 26, 1978.

      RYAN, UNDERWOOD, and CLARK, JJ., concurring in part and dissenting in part.
    William J. Scott, Attorney General, of Springfield, and Thomas J. Difanis, State’s Attorney, of Champaign (Donald B. Mackay and Melbourne A. Noel, Assistant Attorneys General, and Robert C. Perry, of the Illinois State’s Attorneys Association Prosecutor’s Appellate Service, of counsel), for the People.
    Richard J. Wilson, Deputy Defender, and Richard E. Cunningham, Assistant Defender, of the Office of the State Appellate Defender, for appellee.
    William J. Scott, Attorney General, of Springfield, and Michael M. Mihm, State’s Attorney, of Peoria (Donald B. Mackay and Melbourne A. Noel, Assistant Attorneys General, of Chicago, and James E. Hinterlong, of the State’s Attorneys Appellate Service Commission, of Ottawa, for the People.
    Mary Robinson, Deputy Defender, of the Office of the State Appellate. Defender, of Elgin, for appellee.
   MR. CHIEF JUSTICE WARD

delivered the opinion of the court:

Each of these two appeals, which were consolidated here for decision, involves a conviction on a charge of attempted murder in which the adequacy of the instructions given on the element of intent is put in issue.

In cause No. 49909, People v. William Myers Harris, the defendant was convicted on a charge, made by information, of the attempted murder of Joyce Baker on the night of November 18, 1975, in a country area east of Champaign. In a separate count the defendant was charged with aggravated kidnapping.

The alleged murder attempt took place while Miss Baker was sitting inside her car and the defendant was standing behind the car with a pistol in his hand. The defendant and Miss Baker had been keeping company. For much of the evening they had been engaged in an argument in which the defendant accused the victim of infidelity. As the argument became more heated, the defendant, who was driving, reached down and picked up a revolver from the floor of the car and placed it in his lap with the barrel pointed toward Miss Baker. He made several remarks which Miss Baker interpreted as threats to kill her.

Alarmed, she opened the door on her side of the car, got out and began to run away, but ran into a barbed wire fence, injuring her leg. The defendant also got out of the car. He did not pursue her, but remained standing by the car. After her collision with the fence, Miss Baker returned to the car, and made an unsuccessful attempt to capture the gun, which the defendant was holding in his hand and pointing in her general direction. Miss Baker then got into the car on the driver’s side, and drove off toward a nearby farmhouse. She testified that as she drove off she looked in the rear vision mirror and saw the defendant standing behind the car. He was holding the gun with both hands, and pointing it at her. Then she heard something strike the rear window, and the broken pane of glass in the rear window fell out of its . frame. There were no other witnesses, but following this episode the police were summoned, and they found the defendant walking down the road near the scene of the episode just described. When the car was located, the police officers testified, the rear glass was broken, and a bullet fragment was found on the left side of the rear seat.

The jury returned a verdict of guilty on the charge of attempted murder and a verdict of not guilty on the aggravated kidnapping charge. The defendant was sentenced to serve a term of not less than 4 years and not more than 12 years.

The information charged that the defendant “committed the offense of ATTEMPTED MURDER (CLASS 1 FELONY), in violation of Section 8 — 4 of Chapter 38 of the Illinois Revised Statutes of 1973, as amended, in that he, with the intent to commit the crime of murder of Joyce A. Baker did an act which constituted a substantial step toward the commission of that offense by shooting a gun at her.” No complaint is made as to the information.

The following instructions to the jury were tendered by the State and were given, over the objection of the defendant:

“A person commits the crime of attempt who, with intent to commit the crime of murder, does any act which constitutes a substantial step toward the commission of the crime of murder. The crime attempted need not have been committed.”
“To sustain the charge of attempt, the State must prove the following propositions:
First: That the defendant performed an act which constituted a substantial step toward the commission of the crime of murder; and
Second: That the ^defendant did so with intent to commit the crime of murder.
* * * ”
“A person commits the crime of murder who kills an individual if, in performing >the acts which cause the death, he intends to kill or dd great bodily harm to that individual. ”

The defendant objected to the last of the instructions on the ground that it told the jury it could find him guilty of attempted murder if the jury found that he had acted only with the intent to do great bodily harm and did not have the intent to cause death.

The Appellate Court for the Fourth District, whose opinion issued before People v. Trinkle (1977), 68 Ill. 2d 198, was decided, held that the defendant’s objections had been waived since they were not renewed in his post-trial motion. The court also stated that the last instruction was proper under our decision in People v. Muir (1977), 67 Ill. 2d 86. The court therefore affirmed the conviction. People v. Harris (1977), 48 Ill. App. 3d 1074 (order under Supreme Court Rule 23).

The appellate court nevertheless held that the minimum sentence of four years was improper, since the record showed that that sentence was imposed because the trial court believed it was mandatory, a view which the appellate court found erroneous. The court accordingly remanded the cause for resentencing. The State appealed from this part of the judgment. This court subsequently decided in People v. Moore (1978), 69 Ill. 2d 520, that a minimum sentence of four years is not required on conviction of attempted murder, and in its reply brief the State has confessed error on this point. In his answering brief the defendant, as he may do under Rule 318(a) (58 111. 2d R. 318(a)), challenges the portion of the decision relating to the instructions.

In cause No. 50340, People v. Johnnie E. Shields, the defendant was indicted for the attempted murder of Marion Bradley and for aggravated battery arising out of the same act. The offense was the aftermath of a fight between the defendant and the victim’s son, Robert, which took place in the defendant’s apartment (which adjoined the apartment occupied by Mrs. Bradley and her son) in the early morning hours of New Year’s day. The testimony is in conflict on many points. It requires only a brief summary, however, since its sufficiency to sustain the conviction is not challenged here.

It appears that Robert was highly intoxicated, that he had stumbled against a table and broken it, and that the defendant was attempting to subdue him. After the fight Robert and his mother went back to their apartment. A short time later the defendant appeared at their door armed with a shotgun, and said, “I’m going to kill you.” Robert and the victim fled outdoors, pursued by the defendant. The victim then stationed herself in front of Robert to shield him. The defendant told her to move aside, or he would blow her brains out, and after a short scuffle over the possession of the gun, he fired, wounding her.

The jury found the defendant guilty of both attempted murder and aggravated battery, but the trial court entered judgment only on the former. It imposed a sentence of imprisonment of not less than 7 and not more than 21 years.

The count of the indictment relating to attempted murder charged that the defendant had committed the offense of attempted murder “in that with the intent to commit the offense of MURDER *** he did an act which constitutes a substantial step toward the commission of that offense, in that he did shoot Marion Bradley in the chest with a shotgun, knowing that such act created a strong probability of death or great bodily harm to Marion Bradley.” The defendant makes no complaint to the indictment.

The State tendered the following instructions which were given:

“A person commits the crime of attempt who, with intent to commit the crime of Murder, does any act which constitutes a substantial step toward the commission of the crime of Murder.
The crime attempted need not have been committed.”
“To sustain the charge of attempt, the State must prove the following propositions:
FIRST: That the defendant performed an act which constituted a substantial step toward the commission of the crime of Murder; and
SECOND: That the defendant did so with intent to commit the crime of Murder. ”
“A person commits the crime of murder who kills an individual if, in performing the acts which cause the death, he knows that such acts create a strong probability of death or great bodily harm to that individual.”

No objection to these instructions pertinent to the issue on this appeal was made by the defendant.

On appeal the Appellate Court for the Third District affirmed. (People v. Shields (1977), 54 Ill. App. 3d 1020.) In so doing it held that the instruction concerning the “probability of death or great bodily harm’’ was proper in the light of People v. Muir (1977), 67 Ill. 2d 86, which was at that time our most recent pronouncement on that subject. On rehearing, however, the appellate court altered its opinion and reversed, holding that instruction improper in view of this court’s later decision in People v. Trinkle (1977), 68 Ill. 2d 198, which had by then been filed.

The central difficulty common to these cases arises out of the difference between the elements of the offense of attempt and those of the specific offense attempted, murder. The definition of attempt, contained in section 8— 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 8 — 4(a)), is:

“A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.”

The statutory definition of murder is found in section 9— 1(a) of the Code (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)), and reads:

“A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
(3) He is attempting or committing a forcible felony other than voluntary manslaughter.”

The crime of murder is thus committed not only when a person intends to kill another individual, but also when he intends to do great bodily harm (par. 9 — 1(a)(1)), or when he knows that his acts create a strong probability of death or great bodily harm (par. 9 — 1(a)(2)), or when he is attempting or committing a forcible felony (par. 9 — 1(a)(3)).

This court held in People v. Koshiol (1970), 45 Ill. 2d 573, that in a trial for attempted murder it is not error to give an instruction defining the elements of murder. As was stated there, “[I] t would seem utterly meaningless to instruct a jury on attempt to commit a ‘specific offense’ without defining the specific offense ***.” (45 Ill. 2d 573, 579.) Since an attempted murder requires an intent to kill, however, it is obvious that the “specific offense” referred to in section 8 — 4(a) cannot be construed as incorporating the alternative definitions of murder contained in section 9 — 1(a) in their entirety.

The point is illustrated by People v. Viser (1975), 62 Ill. 2d 568, in which the indictment in a prosecution for attempted murder charged that the defendants’ acts were committed while they were engaged in a forcible felony. With respect to the indictment in Viser, it was observed: “[T] he offense of attempt requires ‘an intent to commit a specific offense’ *** while the distinctive characteristic of felony murder is that it does not involve an intention to kill. There is no such criminal offense as an attempt to achieve an unintended result.” 62 111. 2d 568, 581.

This court in People v. Muir (1977), 67 Ill. 2d 86, and People v. Trinkle (1977), 68 Ill. 2d 198, considered, among other questions, whether it was proper in prosecutions for attempted murder to include in instructions to the jury the definition of murder under section 9 — 1(a)(2), that is, that one commits murder if he knows that his acts “create a strong probability of death or great bodily harm.”

In Muir the evidence was that the defendant was being approached by a police officer who was investigating a reported burglary at a nearby building. When the officer was about 30 feet away, the defendant pointed a pistol at him and pulled the trigger, but the gun failed to discharge. The defendant then began to run away. While running he pointed his gun at the officer for a second time, and pulled the trigger. Again the pistol failed to go off. It was subsequently ascertained that the barrel of the pistol contained two cartridges which were jammed in the barrel.

The indictment charged that the defendant “*** did with the intent to commit the offense of Murder in violation of Section 9 — la2 of Chapter 38, Illinois Revised Statutes take a substantial step towards the commission of said offense in that he did without lawful justification point a loaded gun at [name of officer] and pull the trigger knowing such acts created a strong probability of death or great bodily harm ***.” 67 Ill. 2d 86, 90.

The appellate court had reversed the conviction (People v. Muir (1976), 38 Ill. App. 3d 1051) on the ground that the necessary ingredient of specific intent was lacking in the indictment. This court in turn reversed the decision of the appellate court. It approved those parts of the appellate court opinion which held that it was necessary in a charge of attempted murder to allege a specific intent to commit murder, and that such intent could be inferred from the character of the defendant’s actions. It was held, however, that since the indictment did charge that the defendant intended to commit murder, the additional charge that the defendant had acted with the knowledge that his acts created a strong probability of death or great bodily harm did not invalidate the indictment.

In Muir the court also rejected a contention by the defendant that it was error for the court to have given at the request of the prosecution an instruction that “[a] person commits the crime of murder who kiHs an individual if, in performing the acts which cause the death, he knows that such acts create a strong probability of death or great bodily harm to that individual.” 67 Ill. 2d 86, 94.

The circumstances in Trinkle were these: The defendant had been refused further service at a tavern after the bartender concluded that he was already intoxicated. The defendant, after threatening to “shoot or blow up the bar,” left the premises, purchased a gun, returned to the vicinity of the tavern and fired a shot at the front door of the building. The shot struck a patron who, without the defendant’s knowing of it, was standing behind the door. The indictment in Trinkle charged in part:

“David Francis Trinkle committed the offense of ATTEMPT (MURDER) in that said defendant did perform a substantial step toward the commission of that offense in that he did without lawful justification shoot Gayle Lane with a gun knowing that such act created a strong probability of death or great bodily harm to Gayle Lane or another ***.” 68 Ill. 2d 198, 199-200.

The following instructions were given to the jury:

“A person commits the crime of attempt who, with intent to commit the crime of murder, does any act which constitutes a substantial step toward the commission of the crime of murder.
The crime attempted need not have been committed.” 68 Ill. 2d 198, 200.
“A person commits the crime of murder who kills an individual if, in performing the acts which cause the death he knows that such acts create a strong possibility of death or great bodily harm to that individual or another.”
‘To sustain the charge of attempted murder, the State must prove the following propositions:
FIRST: That the defendant performed the acts which caused the injury of Gayle E. Lane;
SECOND: That when the defendant did so, he knew that his act createda strong probability of causing death or great bodily harm to Gayle E. Lane, or another; ***.” 68 Ill. 2d 198, 200.

This court correctly held that both the indictment and the instructions were defective in that they permitted the jury to find the defendant guilty of attempted murder if it concluded that the defendant knew that his acts created a strong probability óf great bodily harm to another person even if the evidence did not show that the defendant had acted with an intent to kill.

In one of the two appeals now before us, People v. Shields, one of the instructions to the jury is identical to that which was disapproved in Trinkle. In the other appeal, People v. Harris, the third instruction states that a person is guilty of the crime of murder “if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual.”

Although this instruction follows the language of section 9 — 1(a)(1) rather than that of section 9 — 1(a)(2), as in Trinkle, it is subject to the same objection that it permits the jury to return a verdict of guilty upon evidence that the defendant intended only to cause great bodily harm short of death. An instruction must make it clear that to convict for attempted murder nothing less than a criminal intent to kill must be shown.

The part of the holding in Muir that an instruction was, not erroneous which charged that proof only that a defendant knowingly and intentionally created a strong probability of death or great bodily harm to another person satisfies the intent element required for attempted murder was error and is hereby overruled. Erroneous also was that part of the holding that an indictment for attempted murder was not defective which alleged that the defendant’s acts to his knowledge created a strong probability of death or great bodily harm to another person. That part too of the holding in Muir is overruled. Observations of LaFave and Scott (Criminal Law sec. 59, at 428-29 (1972)) are representative of authority that it is not sufficient to prove attempted murder to show that the accused intended to cause serious bodily harm:

“Some crimes, such as murder, are defined in terms of acts causing a particular result plus some mental state which need not be an intent to bring about that result. Thus, if A, B, and C have each taken the life of another, A acting with intent to kill, B with an intent to do serious bodily injury, and C with a reckless disregard of human life, all three are guilty of murder because the crime of murder is defined in such a way that any one of these mental states will suffice. However, if the victims do not die from their injuries, then only A is guilty of attempted murder; on a charge of attempted murder it is not sufficient to show that the defendant intended to do serious bodily harm or that he acted in reckless disregard for human life. Again, this is because intent is needed for the crime of attempt, so that attempted murder requires an intent to bring about that result described by the crime of murder [i.e., the death of another).”

In Harris the defendant, although he objected to the instruction in question, did not renew his objection in his written post-trial motion. Under Rule 615(a) (58 Ill. 2d R. 615(a)), “[pjlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” Rule 451(c) provides regarding instructions that “substantial defects are not waived by failure to make timely objections thereto if the interests of justice require.” (58 Ill. 2d R. 451(c). See People v. Pickett (1973), 54 Ill. 2d 280, 283.) Considering all the circumstances, we are of the opinion that the adequacy of the instruction may be considered here. Cf People v. Jenkins (1977), 69 Ill. 2d 61, 66-67.

. In cause No. 49909, People v. Harris, we therefore reverse the judgments of the appellate and circuit courts, and remand the cause to the circuit court of Champaign County for a new trial not inconsistent with this opinion. In cause No. 50340, People v. Shields, we affirm the appellate court.

49909 Reversed and remanded.

503.40 Judgment affirmed.

MR. JUSTICE RYAN

concurring in part and dissenting in part:

Considerable amount of uncertainty seems to prevail in courts and among members of the bar as to what language is permissible or impermissible in charging attempted murder and in instructing the jury on this offense. Since this court’s holding in People v. Viser (1975), 62 Ill. 2d 568, that the charge attempted murder could not be based on the definition of murder found in section 9 — 1(a)(3) (felony murder) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 1(a)(3)), there have been numerous cases challenging attempted murder indictments and instructions framed under the statutory definitions of murder contained in section 9 — 1(a)(1) and section 9 — 1(a)(2) of the Criminal Code. Two of those cases have previously reached this court. (People v. Muir (1977), 67 Ill. 2d 86, and People v. Trinkle (1977), 68 Ill. 2d 198.) Judging from the number of cases that continue to litigate this issue, it is apparent that the two cases decided by this court did not clarify our position. In fact, it has been hopefully suggested that Trinkle has overruled Muir. (See Doherty, The Strange Fate Of Two Men Named David: The Need For Symmetry In The Criminal Law, 66 Ill. B.J. 518 (1978).) It is hoped that, by addressing the entire subject here, I will be better able to state my position than I was able to do as the author of the opinion while deciding the specific issues presented in Muir.

First, in my opinion, Muir and Trinkle are not inconsistent. The indictments in both cases were framed under the definition of murder found in section 9 — 1(a)(2), which provides:

“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
***
(2) He knows that such acts create a strong probability of death or great bodily harm ***.” (Ill. Rev. Stat. 1973, ch. 38, par. 9-l(a)(2).)

The indictment in Muir charged that

“*** he did with the intent to commit the offense of Murder in violation of Section 9 — la2 of Chapter 38, Illinois Revised Statutes take a substantial step towards the commission of said offense in that he did without lawful justification point a loaded gun at [name of officer] and pull the trigger knowing such acts created a strong probability of death or great bodily harm ***.” (67 Ill. 2d 86, 90.)

The indictment in Trinkle charged:

“David Francis Trinkle committed the offense of ATTEMPT (MURDER) in that said defendant did perform a substantial step toward the commission of that offense in that he did without lawful justification shoot Gayle Lane with a gun knowing that such act created a strong probability of death or great bodily harm to Gayle Lane or another ***.” 68 Ill. 2d 198, 199-200.

Thus the indictment in Muir alleged the specific intent to commit the offense of murder which is necessary to the crime of attempted murder whereas the indictment in Trinkle was clearly defective in that it did not allege the specific intent to commit the offense of murder.

In Muir, the only instruction that was challenged was the one which defined murder using language substantially the same as contained in section 9 — 1(a)(2) and stated:

“A person commits the crime of murder who kills an individual if, in performing the acts which cause the death, he knows that such acts create a strong probability of death or great bodily harm to that individual.” (67 Ill. 2d 86, 94.)

The only objection to this instruction, as voiced by the defendant in Muir and apparently as viewed by the majority in these consolidated cases, is that the instruction permits the jury to convict for attempted murder in cases in which the defendant had only the intent to create a strong probability of great bodily harm. In my opinion that is an erroneous conclusion. The instruction, and that part of the indictment referring to “great bodily harm,” do not define the intent of the defendant but are relevant to intent insofar as the nature of the assault and the circumstances surrounding its commission, inferentially establish the requisite intent to take a life (People v. Muir (1977), 67 Ill. 2d 86, 91-92). As noted above, the disputed language in both the indictment and the instruction originated in section 9 — 1(a)(2), which, unlike section 9 — 1(a)(1), refers to the defendant’s knowledge and not his intent.

Intent and knowledge are defined in the Criminal Code as different mental states. Section 4 — 4 (Ill. Rev. Stat. 1975, ch. 38, par. 4 — 4) defines “intent,” and the committee comments to section 4 — 3 state:

“The use of the word ‘intent’ in the 1961 Code is limited to conscious objective or purpose to accomplish a described result ***.” (Ill. Ann. Stat., ch. 38, par. 4 — 3, Committee Comments, at 256 (Smith-Hurd 1972).)

Section 4 — 5 defines “knowledge,” and the same committee comments indicate that this mental state describes the situation in which a person “while not having an actual intent to accomplish a specific wrongful purpose, is consciously aware of the nature of his conduct or of the result which will (or which is practically certain to) be caused ***.” Ill. Ann. Stat., ch. 38, par. 4 — 3, Committee Comments, at 256 (Smith-Hurd 1972).

Thus in Muir the indictment charged that the defendant “with the intent to commit the offense of Murder” did perform acts “knowing such acts created a strong probability of death or great bodily harm.” The only intent that is charged is “the intent to commit the offense of Murder.” Knowing well such acts created a strong probability of great bodily harm, according to the committee comments, does not mean that the defendant intended to cause great bodily harm. The gist of murder is that death has ensued from wrongful conduct. If the defendant is charged with the specific intent to commit the offense of murder it cannot be said that the additional phrase “knowing such acts created a strong probability of death or great bodily harm” would mislead the defendant to believe that he was charged with only having the intent to cause great bodily harm. This court has held:

“[T] he indictment *** unmistakenly informed the defendant of the precise offense with which he was charged. ‘Niceties and strictness of pleading are supported only when a defendant would be otherwise surprised on trial of be unable to meet the charge or prepare his defense.’ [Citation.] ” [People v. Nastasio (1963), 30 Ill. 2d 51, 54.)

The defendant in Muir was not misled by the indictment and was well aware of the offense with which he was charged. It is difficult for me to understand the claimed confusion concerning this court’s previous holding in Muir in light of the fact that the Code has seen fit to distinguish between the mental state of intent, required in attempted murder, and the mental state of knowledge as included in the definition of murder in section 9 — 1(a)(2).

The same rationale applies to the challenged instruction in Muir. The instruction was a definition of murder. It was not an issue instruction setting forth what the State must prove beyond a reasonable doubt before the defendant could be found guilty. Instructions in criminal cases must be considered and read together as a series. If the instructions, when considered as a whole, fully and fairly announce the law applicable, the instructions are suffi- ' cient. (People v. Kolep (1963), 29 Ill. 2d 116, 125.) The complained-of instruction cannot be singled out and considered in isolation from the others. Even if one instruction, when considered by itself, may not be clear or may create some uncertainty, if, when read as a whole, the instructions properly state the law applicable to the case, a conviction will not be reversed. (People v. Hartwell (1930), 341 Ill. 155, 158, 160; People v. Epping (1959), 17 Ill. 2d 557, 567; People v. Kolep (1963), 29 Ill. 2d 116, 125.) In Muir, in addition to the challenged instruction, the court also gave to the jury Illinois Pattern Jury Instruction, Criminal, No. 6.07. It defined the issues that the State must prove beyond a reasonable doubt in attempted murder, one of which is that the defendant committed the acts with the intent to commit the crime of murder. Because of the differences in the mental state between intent and knowledge, which have been noted above, the definition of murder contained in the challenged Muir instruction did not inform the jury that the defendant could be convicted of attempted .murder if he had the intent only to do great bodily h^rm to the victim. The specific intent requisite to convict the defendant of attempted murder was spelled out in the issue instruction. The challenged instruction dealt with knowledge, not intent.

In Trinkle, the issue instruction told the jury:

“To sustain the charge of attempted murder, the State must prove the following propositions:
First: That the defendant performed the acts which caused the injury of Gayle E. Lane;
Second: That when the defendant did so, he knew that his act created a strong probability of causing death or great bodily harm ***.” (68 Ill. 2d 198, 200.)

This issue instruction did not require the State to prove the intent to commit the offense of murder which the issue instruction in Muir required. Thus, all that the instructions, taken as a whole, required was that defendant, when he committed the acts, knew that they created a strong probability of death or great bodily harm. Thus, the State was only required to prove the mental state of knowledge of the probable effect of his acts and not the mental state of intent to commit the offense of murder. The instructions, taken as a whole, were plainly erroneous.

In cause No. 50340, People v. Shields, one of the consolidated cases in this appeal, the charge of attempted murder was based on murder as defined in section 9 — 1(a)(2), as were the charges in Muir and Trinkle. As in Muir, the indictment charged that the defendant “with the intent to commit the offense of MURDER *** did [perform] an act *** knowing that such act created a strong probability of death or great bodily harm ***.” The same reasons which led me to conclude that the indictment in Muir was not defective compel a similar conclusion as to this charge, and the defendant made no complaint as to this indictment. The instructions given in Shields’ case were similar to those given in Muir, including the issue instruction which required the State to prove beyond a reasonable doubt that the defendant had the specific intent to commit the crime of murder. Reading the instructions as a whole, I would hold, as I did in Muir, that the instructions were sufficient. I do not agree with the majority that the instruction in People v. Shields is identical with the one disapproved in Trinkle. The defect in the Trinkle instruction was that the issue instruction permitted the jury to find the defendant guilty without requiring proof that the defendant committed the acts ‘with the intent to commit the offense of murder. No such defect exists in the issue instruction in People v. Shields.

The other case consolidated in this appeal, cause No. 49909, People v. Harris, is framed on the definition of murder as found in section 9 — 1(a)(1), which provides:

“(a) A person who kills an individual without lawful justification commits murder if,- in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; -***.” (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)(1).)

As noted in the majority opinion, the jury was also instructed on the definition of murder as defined by this section.

Unlike murder as defined in section 9 — 1(a)(2), where the mental state is only knowledge, murder as defined in section 9 — 1(a)(1) involves the mental state of intent. The instruction given to the jury under section 9 — 1(a)(1) would permit the jury to find the defendant guilty of attempted murder if his specific intent was either to kill or do great bodily harm to that individual. There is a clear conflict between that instruction, the instruction defining attempt, and the issue instruction. As noted above, in discussing Muir, an essential element of murder is the unlawful taking of a life, thus an instruction defining attempt and the issue instruction inform the jury that to commit the crime of attempted murder the defendant must have the specific intent to unlawfully take the life of another, whereas the instruction defining murder under section 9 — 1(a)(1) told the jury that the defendant need only intend to “do great bodily harm.” I would agree with the majority that in framing a charge of attempted murder under section 9 — 1(a)(1) and in instructing the jury on such a charge, the words “or do great bodily harm” must be excised from the definition of murder and from the instruction.

For the reasons stated herein, I concur in the judgment in cause No. 49909, People v. Harris, and dissent from the judgment in cause No. 50340, People v. Shields.

UNDERWOOD and CLARK, JJ., join in this partial concurrence and partial dissent.


source: Caselaw Access Project

author: MR. JUSTICE MORAN

license: Public Domain

text:
    (No. 49722.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. GLENN E. SULLIVAN, Appellee.

      Opinion filed May 26, 1978.

      KLUCZYNSKI, J., took no part.
    William J. Scott, Attorney General, of Springfield, and Edwin R. Parkinson, State’s Attorney, of Jacksonville (Donald B. Mackay, Melbourne A. Noel, Jr., and John C. Carroll, Assistant Attorneys General, of Chicago, and James E. Hinterlong and Robert M. Hansen, of the Illinois State’s Attorneys Association, of Ottawa, of counsel), for the People.
    Richard J. Wilson, Deputy Defender, and Jeffrey D. Foust, Assistant Defender, of Springfield, for appellee.
   MR. JUSTICE MORAN

delivered the opinion of the court:

Following a jury trial in the circuit court of Morgan County, defendant, Glenn Sullivan, was convicted of armed robbery and sentenced to the penitentiary for a term of 8 to 20 years. The appellate court reversed the defendant’s conviction and remanded the cause for a new trial. It did so on grounds that certain errors committed during the trial, although not preserved for purposes of appeal, did, when considered together, constitute reversible error under the plain error doctrine. (48 Ill. App. 3d 787.) We granted the State leave to appeal.

On May 29, 1975, at approximately 5 p.m., two masked men entered a liquor store in Meredosia, Illinois, and, at gun point, robbed the store’s cashier of a reported $179. The store cashier was unable to identify the faces of her assailants, but she testified that the man armed with the gun was thin and wore plaid pants and that the other man was heavy set and wore a Levi jacket and pants. The two men fled the store in the cashier’s blue and white Chevelle.

Two witnesses testified that, while driving on a country road outside of Meredosia at approximately 5:30 p.m. on May 29, they observed a car, fitting the description of the cashier’s car, parked along the road; two men were standing near the trunk. These witnesses also testified that they observed a late-model grayish car, which had been tailgating their car, turn into a side road near the parked auto. Another witness, who lived in the vicinity of the parked car, stated she observed a “funny colored” Oldsmobile leave the area with three or four occupants.

A late-model green Oldsmobile with three occupants was subsequently apprehended by sheriff’s police on Roegge Lake Road, outside of Meredosia. When the auto was stopped, the three occupants (Albert Matthews, Clarence Armstrong, and the defendant) were arrested. Deputy Sheriff Ryan testified that, at the time of the arrest, defendant was wearing plaid pants and no shirt. The three men were taken to jail, where a search of their persons and the car revealed a sum of money totaling $179; no gun was found. On the following day, police searched along Roegge Lake Road and found a blue denim jacket, a partially filled box of .32-caliber revolver shells and a fully loaded, six-shot .32-caliber revolver.

Douglas Quinn testified that, on the day of the robbery, he had loaned Armstrong a .32-caliber revolver to use in target practice. Quinn stated he had accompanied Armstrong, Matthews and defendant to a sporting goods store in a large, gray car, and that he had purchased a box of .32-caliber shells for the revolver.

Over objection, the sheriff was permitted to testify that defendant had escaped from jail while awaiting trial and was later apprehended in Florida.

Prior to defendant’s trial, Matthews and Armstrong had pleaded guilty to armed robbery and were serving their sentence at Menard.

During opening statements, the prosecutor outlined for the jury the facts he intended to prove, and then stated:

“We also, I believe, will have the opportunity of hearing from the other two convicted armed robbers in this same instance, Clarence Armstrong and Albert Matthews, as to their being brought here this afternoon to testify what they know about Mr. Sullivan’s participation in this act.”

No objection was made to the prosecutor’s remark.

Later, the prosecution called the two alleged accomplices as its witnesses. Before permitting the witnesses to take the stand, the court ordered the guard to unshackle them.

Matthews then took the stand and refused to testify on the grounds that it would incriminate him. After the prosecutor’s repeated but unsuccessful attempts to elicit answers, the trial court ruled that Matthews was entitled to invoke his fifth amendment privilege.

Armstrong, called by the State, testified that he and Matthews were serving time in Menard for an armed robbery involving a liquor store in Meredosia. No objection to this testimony was made. Armstrong then testified that he was with the defendant on May 29 and that they rode together in Armstrong’s car to Meredosia. Upon being asked if anyone else was in the car, Armstrong stated he did not wish to testify further. The trial court granted Armstrong his request and excused him from the stand.

The trial court’s above rulings are not at issue in this appeal.

During summation, the prosecutor admitted to the jury that all the evidence which implicated defendant in the robbery was circumstantial. The prosecutor then made the following remarks:

“ [Defendant], just as Mr. Matthews did and just as Mr. Armstrong had a part in it, they all had their own individual role to play in this armed robbery.
Now, what about those two others? They both pleaded guilty to the same charge. They’re both in Menard. They both were brought up here today, as you could tell, rather reluctantly. They were called to the stand and didn’t want to testify, particularly Mr. Matthews. ***
* * *
Now, if you think [defendant] was innocent, why was he with those two guys that are in prison now who pled guilty to armed robbery?
* * *
Now, common sense will tell you, reason will tell you that [defendant is] just as guilty as the other two, because he was in there. He had the money.
* * *
[A] lthough it’s a circumstantial case you can’t help but find that he’s guilty of armed robbery, just like his two friends, in spite of their effort to help him by their reticence and their code of honor whatever you want to call it.”

On rebuttal, defense counsel argued, among other things, that the mere fact that defendant was with the two alleged accomplices at the time of the arrest did not necessarily mean he was guilty of the armed robbery.

The prosecutor, on surrebuttal, stated:

“I believe you’ll get an instruction from the court that will tell you about the responsibility of an accessory, and I believe it will be something like this: That an accessory is responsible for the acts of those he participated with.”

Later, the prosecutor stated:

“[Defendant is] really clever. He’s been around, and he’s dangerous, he’s just as guilty of armed robbery as any of the other two that have already pled guilty.”

Defense counsel did not object to the prosecutor’s statements concerning the alleged accomplices ’ guilty pleas or request that a cautionary instruction be given. No post-trial motion was thereafter filed.

In reversing the defendant’s conviction, the appellate court ruled that the errors — the prosecutor’s opening remarks, the alleged accomplices appearing in shackles before the jury, and Armstrong’s testimony concerning his and Matthews’ convictions — although not preserved and not, in and of themselves, reversible error, did constitute cumulative error which could be noticed on appeal under the plain error doctrine of Supreme Court Rule 615(a) (58 Ill. 2d R. 615(a)). Because of our view of the case, we reserve judgment on the correctness of the appellate court having ruled that it was error to permit the witnesses to appear before the jury in shackles.

The State contends that the appellate court had no authority to treat as plain error unpreserved cumulative errors which, in and of themselves, do not warrant reversal. We do not reach the State’s contention because we find the prosecutor’s disclosure of the alleged accomplices’ guilty pleas (during opening statements and upon direct examination of Armstrong), and his reliance on such during closing argument (in urging the jury to find defendant guilty), constituted a single continuous error which deprived defendant of a fair and impartial trial.

Failure to object to or to preserve error in improper argument will not constitute waiver when a prosecutor’s argument is so seriously prejudicial that it prevents the defendant from receiving a fair trial. (People v. Romero (1967), 36 Ill. 2d 315, 320; People v. Morgan (1960), 20 Ill. 2d 437, 441.) A co-defendant’s or accomplice’s confession or admission is generally inadmissible as evidence of another defendant’s guilt. (People v. Tyner (1964), 30 Ill. 2d 101, 105-06; People v. Salerno (1923), 306 Ill. 570, 576.) Also inadmissible for purposes of proving the guilt of the defendant on trial, but admissible for purposes of impeaching the co-defendant or accomplice, is evidence that a co-defendant or accomplice has pleaded guilty or has been convicted of the same offense. (People v. Burch (1974), 22 Ill. App. 3d 950, 953. See also 2 F. Wharton, Criminal Evidence, sec. 439 (12th ed. 1955); Annots., 48 A.L.R.2d 1004 & 1016 (1956), and cases cited therein.) A defendant who is separately tried is entitled to have his guilt or innocence determined upon the evidence against him without being prejudged according to what has happened to another.

This court has, on at least two occasions, considered the propriety of disclosing to the jury that a co-defendant has pleaded guilty or confessed to the same crime for which the defendant stands trial. In each instance, this court found no reversible error, but both cases are clearly distinguishable from the case herein.

In Graff v. People (1904), 208 Ill. 312, 325-26, a co-defendant, during the course of trial and in the presence of the jury, voluntarily changed his plea to one of guilty. This court held that, although the occurrence was unfortunate, it was not grounds for reversal: the incident was not attributable to the State or the court, and the court neutralized the situation by instructing the jury not to consider the co-defendant’s plea as evidence against the remaining defendants. Here, the prosecutor initiated the error by injecting the accomplice’s guilty pleas into the trial on three separate occasions: during his opening statement, upon direct examination of Armstrong, and during his closing argument. Unlike Graff, the jury here was never instructed to disregard such fact.

In People v. Baker (1959), 16 Ill. 2d 364, 372-73, an accomplice who fully disclosed to the jury his involvement in the crime for which the defendant was being tried was also permitted to testify that he had confessed to the crime. The court held that, in light of the accomplice’s full factual disclosure, the further disclosure that he had confessed to the crime was not unduly prejudicial to the defendant. (Sub judice, Matthews and Armstrong never testified as to the details of their own or of the defendant’s participation in the armed robbery.) Further, in Baker, the jury had been instructed not to take into consideration the guilt or innocence of co-defendants not on trial.

This case is additionally distinguishable from the above two cases by the manner in which the prosecutor relied on the alleged accomplices’ guilty pleas in his closing argument to the jury. Evidence of another’s guilt is particularly prejudicial to the defendant when the prosecutor is permitted to argue to the jury, explicitly or implicitly, that such evidence may be considered by them in determining the guilt of the defendant. (State v. Underwood (1957), 248 Iowa 443, 448-49, 80 N.W.2d 730, 733-34; State v. Kerley (1957), 246 N.C. 157, 161-62, 97 S.E.2d 876, 880.) In this case, the prosecutor, having failed to establish the defendant’s guilt through the accomplices’ testimony, urged the jury to gauge the defendant’s guilt by reference to the fact that his alleged accomplices had already pleaded guilty to the same offense. Such conduct required the trial court’s prompt corrective action in the form of a cautionary instruction or admonishment. The prosecutor’s comments were extremely prejudicial to the defendant and, although there was considerable circumstantial evidence against the defendant, we cannot say that the prosecutor’s comments did not contribute to the defendant’s conviction. People v. Weathers (1975), 62 Ill. 2d 114, 120-21.

Accordingly, we find that defendant was deprived of a fair and impartial trial. For the reasons set forth herein, the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision in this case.


author: MR. JUSTICE CLARK

text:
    (No. 49029.
    BEVERLY LANDESMAN, Appellee, v. GENERAL MOTORS CORPORATION, Appellant.

      Opinion filed May 26, 1978.

      KLUCZYNSKI, J., took no part.
    Thomas D. Nyhan and John J. O’Malley, of Chicago (Frazer F. Hilder, of Detroit, and Pope, Ballard, Shepard & Fowle, of Chicago, of counsel), for appellant.
    William J. Harte, Ltd., and Kevin M. Forde, Ltd., of Chicago (William J. Harte, Kevin M. Forde, and Daley, Reilly & Daley, of Chicago, of counsel), for appellee.
   MR. JUSTICE CLARK

delivered the opinion of the court:

In this case, the appellate court in effect held that plaintiff’s alleged failure to state a cause of action in her complaint was not a bar to her prosecuting this cause as a class action. We disagree, and accordingly we vacate the judgments of the appellate and circuit courts and remand the cause to the circuit court for further proceedings.

On August 14, 1972, Beverly Landesman, the named plaintiff in this putative class action, purchased a third-hand 1965 Chevrolet manufactured by the defendant, General Motors Corporation. At some point between August 14, 1972, and August 30, 1972, plaintiff brought her 1965 Chevrolet to Joe Jacobs Chevrolet Company, an authorized Chevrolet dealer, for service and was advised by agents of Joe Jacobs Chevrolet Company that the motor mounts on her vehicle should be replaced. Plaintiff ordered replacement of the mounts, for which Joe Jacobs Chevrolet Company (not General Motors) charged $41.30 for labor and parts. She filed suit “on behalf of all persons similarly situated and complaining of General Motors.” Her complaint alleged two alternative theories of recovery, breach of warranty and strict liability in tort.

Defendant moved to dismiss plaintiff’s complaint pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 45). Defendant argued that the complaint failed to state a cause of action and, alternatively, that a class action was not a proper means of proceeding in this case. The circuit court granted the motion, giving as its reason that the “allegations do not constitute proper grounds for a class action suit in Illinois.”

The Appellate Court, First District, reversed. (42 Ill. App. 3d 363.) The majority defined the issue before the court as “whether the complaint alleges proper grounds for a class action under the law in Illinois.” (42 Ill. App. 3d 363, 364.) It then went on to point out that “[t] here is no statutory law which governs class action in Illinois. Judicial authority controls.” (42 Ill. App. 3d 363, 365.) The majority then stated the common law requisites to a class action in Hlinois as “(1) *** common dominant and pervasive questions concerning members of the class; (2) *** a class of plaintiffs too numerous to join in a single action; and (3) the named parties adequately represent all members of the class.” 42 Ill. App. 3d 363, 365.

The court found that the first and third requisites were satisfied in the instant case. (The existence of the second requisite was unchallenged.)

Defendant also argued that the judgment of the circuit court should have been affirmed on the ground that plaintiff’s complaint failed to state a cause of action, but the appellate court refused to address this issue, stating:

“Defendant’s brief raises the issue of whether the complaint states a good cause of action in warranty or strict liability, however, this issue is not included in either the trial judge’s order or in the plaintiff’s notice of appeal.
On appeal from a judgment or order of dismissal, questions necessarily involved in determining the propriety of the judgment or order, and only such questions, wiH be considered. [Citations.]
This opinion does not include a ruling on the issue of whether a cause of action on the merits was aUeged, since such issue is not properly before us.” 45 Ill. App. 3d 363, 367.

Thus the appellate court in effect held that the existence of a cause of action was not subsumed in the requisites to a class action, and that defendant would have had to file a cross-appeal from the judgment of dismissal in order to bring the issue before the appellate court.

Mr. Justice Burman, dissenting, recognized the flaw in this reasoning, stating:

“Although the trial court in its order addressed itself solely to the propriety of the class action, I believe it nevertheless is necessary to examine the sufficiency of the complaint; for where the plaintiff has no individual cause of action, it necessarily follows that any attempted class action also must fail.” (42 Ill. App. 3d 363, 368.)

We agree.

In the interim since the decision of the appellate court in this cause, the legislature has enacted and the Governor approved amendments to the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 57.2 et seq.) governing class actions in Illinois. Being procedural in nature, these amendments govern our decision in this cause. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 337.) Under the statute, the prerequisites to a class action are as follows:

“(a) An action may be maintained as a class action in any court of this State and a party may sue or be sued as a representative party of the class only if the court finds:
(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the class.
(4) The class action is an appropriate method for the fair and efficient adjudication of the controversy.” (Ill. Rev. Stat. 1977, ch. 110, par. 57.2(a).)

The requirement that the named representatives of the putative class possess a valid cause of action is subsumed in at least two of the aforementioned elements (which do not materially differ in this respect from the common law elements). Element “(2)” — the requirement that common questions of law or fact predominate — obviously assumes that the complaint states facts which, if proved, would present questions of fact for the trier of fact. Element “(3)” — the requirement that the named “parties” be adequate representatives of the class — also assumes that, as “parties,” they possess a valid cause of action. Thus, it was error for the appellate court to refuse to determine whether plaintiff’s complaint stated a valid cause of action. It is plain from the language of the circuit court’s decision that it did not determine whether plaintiff’s complaint stated a cause of action. Under our holding today the appellate court remained not only free to address that question, but was obligated to do so. Nonetheless, under the circumstances of this case we do not think that the administration of justice would be best served by remanding this cause to the appellate court. Accordingly, we will vacate the judgments of the appellate and circuit courts and remand this cause to the circuit court with directions to determine whether plaintiff’s complaint states a valid cause of action. If the court finds that the complaint fails to state a cause of action, it is directed to dismiss the case. If, however, the court finds that the complaint does state a valid cause of action, it is directed to make the findings now required by section 57.2 et seq. of the Civil Practice Act in connection with class actions. See also Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 342.

For the foregoing reasons, the judgments of the appellate and circuit courts are vacated and the cause is remanded to the circuit court with directions to proceed in accordance with this opinion.

Vacated and remanded, with directions.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.


author: MR. JUSTICE UNDERWOOD

text:
    (No. 49676.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. PAUL POWELL, Appellee.

      Opinion filed March 23, 1978.

    — Rehearing denied July 14, 1978.

      William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay, Assistant Attorney General, and Lee T. Hettinger, James S. Veldman, and Laurence J. Bolon, Assistant State’s Attorneys, of counsel), for the People.
    Harry J. Busch, Patrick A. Tuite and Sidney Z. Karasik, of Chicago, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Defendant, Paul Powell, was convicted of bribery (Ill. Rev. Stat. 1973, ch. 38, par. 33 — 1(a)) and solicitation (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 1) in a bench trial in the circuit court of Cook County. He was sentenced to two years’ conditional discharge and fined $4,000 on the bribery charge, and two years’ conditional discharge on the solicitation conviction. The appellate court reversed both convictions (48 Ill. App. 3d 723), and we granted leave to appeal. We reverse the appellate court.

The fact that the appellate court found “there is no evidence that Paul Powell tendered money to Jose Martinez to influence Martinez in either securing witnesses or investigating or prosecuting the criminal case entitled People v. Guevara” (48 Ill. App. 3d 723, 728) necessitates more extensive treatment than we would normally consider required by this case.

Officer Jose Martinez, an investigator for the Gang Crimes Investigation Division of the Chicago Police Department, was the sole prosecution witness. His testimony, in substance, was that he had been assigned on July 13, 1973, to investigate a case involving Awilda Torres, who had been repeatedly stabbed on July 11. On the next day he arrested Juanita Guevara, the alleged assailant. She was charged with aggravated battery, and a preliminary hearing on this complaint was set for July 26.

Officer Martinez appeared at the hearing on July 26 and asked the court for a continuance because the stabbing victim, Awilda Torres, was still in the hospital in serious condition. At this hearing attorney Paul Powell, who appeared as Juanita Guevara’s defense counsel, followed the officer out of the courtroom and asked to see the arrest report in the officer’s case file. The officer complied, and Powell then motioned him to the southwest corner of the hallway and told him that the parents of the Guevara girl intended to sign complaints against Awilda Torres, charging her with beating Juanita’s sister prior to the stabbing. The officer replied that they had the same rights as the victim, if they had a valid complaint. Powell then suggested to Officer Martinez that perhaps they could “get together” on the case, to which the officer replied that he did not work that way. Powell then gave him a business card, asked him to call in two weeks, and stated that he could get him a “bill” now and a “bill” in two weeks. Officer Martinez testified that he understood a “bill” to be street parlance for $100. The officer repeated that he did not work in that manner.

Later that day, Officer Martinez reported the incident to his supervising sergeant. The next day he related the conversation to the Internal Affairs Division of the Chicago Police Department and to an assistant State’s Attorney.

On August 10, an assistant State’s Attorney, with proper authorization, placed a recording device on a telephone in his office. Officer Martinez then used that telephone to call Powell at the latter’s office. During the conversation, Powell again asked if he and Officer Martinez could get together on the case. The officer said “yes.”

A court hearing in People v. Guevara was scheduled for August 20. Earlier that morning, a small, hidden tape recorder was attached to Officer Martinez. The officer controlled the device by means of a switch concealed in his right pocket. He was instructed to activate the recorder in Powell’s presence, but not when there was excessive background noise or several people speaking at once. He then went into the courtroom. When Powell entered the courtroom and took a seat next to him, the officer turned on the switch and recorded their conversation. This recording was introduced into evidence at Powell’s trial. During the conversation, Powell and Officer Martinez discussed how much money would be available for the latter. Finally, Powell offered Officer Martinez $250 if he could get the complaining witness to ‘«‘drop the charges” against Powell’s client. During a recess, Powell repeated this offer. The officer asked just how he could do this, and Powell told him to take the complaints against the victim and use them as leverage to get the victim and her parents to drop their complaints against his client, Juanita Guevara. Powell then gave Officer Martinez a hospital bill purporting to show that the sister had been hospitalized from July 14 through July 17. Powell thereafter obtained a court continuance until October 18.

On that morning Officer Martinez went to the office of the State’s Attorney accompanied by the stabbing victim, members of her family and two witnesses. There, Officer Martinez was again fitted with a hidden recording device. He then proceeded upstairs to the courtroom where People v. Guevara was to be called, leaving the victim, her family and the witnesses waiting in the State’s Attorney’s office. Outside the courtroom, he met Powell, who asked if the charges were to be dropped, to which Officer Martinez replied “yes,” that the victim and her family had told him to “forget about it.”

When the case was called, Officer Martinez, pursuant to instructions from an assistant State’s Attorney, falsely testified under oath .that the prosecution witnesses did not want to prosecute because the victim feared retaliatory prosecution for beating Juanita Guevara’s sister. The aggravated battery charge against Juanita Guevara was then stricken on leave to reinstate, and Officer Martinez and Powell left the courtroom.

Once in the hallway outside the courtroom, Officer Martinez testified he turned off the microphone because of noise. According to the officer, Powell told him to come by his law office at 2 p.m. that day. He refused, whereupon Powell asked him to follow Powell to his automobile which was parked outside the building. At Powell’s request, the officer stayed a few steps behind Powell, and for this reason, he did not turn the hidden microphone on at that time. Both entered the car, and Powell began to drive around the block. As they approached a corner, he threw two $100 bills and a $50 bill on the floor in front of Officer Martinez’s shoes. The officer picked the money up and handed Powell a subpoena to appear before the Cook County grand jury concerning the bribery which had just been completed. Officer Martinez then left the car. Powell drove a short distance, got out of his car and approached Officer Martinez, who turned on the miniature recorder. The ensuing conversation led to the indictment for solicitation of the offense of obstructing justice.

The tape of this conversation and a transcript thereof were admitted into evidence. It would unduly prolong this opinion to quote all of the relevant portions of this or the August 20 taped conversations. While background noise renders parts of both unintelligible, that which is intelligible may be fairly characterized as devastating to any contention that Officer Martinez initiated the monetary discussion or that Powell’s payment was for any legitimate purpose. In the October 18 conversation defendant repeatedly pleads for a “pass,” states the officer is “blowing my whole license,” and urges the officer to hide the money and tell the State’s Attorney defendant “stiffed him” (failed to pay). The following excerpt is illustrative:

“MR. POWELL: Please go with me and tell him I stiffed you.
OFFICER MARTINEZ: I can’t. I- I-
MR. POWELL: Tell him I stiffed you.
OFFICER MARTINEZ: I just can’t.
* * *
MR. POWELL: Please. I’m the president of my synagogue. Oh, my God. You’re gonna— Please, can we go back and see him?
OFFICER MARTINEZ: See who, Mr. Momeyer?
MR. POWELL: Yeah, the State’s Attorney.
OFFICER MARTINEZ: Well-
MR. POWELL: Let me talk to him now. Let me talk to him. Tell him I stiffed you. Ill— I’ll— 111 do anything you want. Anything, you name it. And tell him I stiffed you. I promised you the bribe but I didn’t give it to you. You give me back the two-and-a-half. I’ll drop anything you want any place.”

Defendant was the only defense witness. He testified in substance that immediately after the July 26 appearance he told Officer Martinez that his client’s parents wished to sign a complaint against the victim. The officer informed Powell that the case was closed and asked for $100 to do the extra paper work involved in opening up a closed file. Officer Martinez had earlier testified that after Juanita Guevara had been arrested, the case was considered closed and that the word “closed” was stamped across his file. Powell told Officer Martinez that since he had only been paid $40, he could not possibly pay him $100.

When the parties were again in court on August 20, according to Powell, Officer Martinez indicated that he was expecting to receive some money. Powell told him that he had never offered him any payment. The officer then offered to get the victim to “drop the charges,” if Powell would pay him $250. Powell thought that this was an ideal opportunity to get the officer to “take the complaints” of the Guevara family, since in the interim between appearances he had discovered that they were unable to file their complaints against Awilda Torres.

Powell testified that, during the August 20 conversation, he gave Officer Martinez a bill showing that his client’s sister had been hospitalized. The officer originally doubted the authenticity of the bill, so he told him he would get him another bill. Powell testified that Officer Martinez confused Powell’s reference to a “bill” with a hundred dollars, rather than a hospital bill. On cross-examination Powell was presented with the following portion of the August 20 conversation, which had been recorded by Officer Martinez’s hidden microphone:

“OFFICER MARTINEZ: You told me last time a
bill.
MR. POWELL: Yes, a C-note, a hundred dollars.
MARTINEZ: A hundred dollars.
MR. POWELL: A hundred dollars.”

Powell explained that this was another portion of the conversation.

Powell testified that at his next appearance on behalf of Juanita Guevara on October 18, 1973, Officer Martinez approached him after the case had been stricken on leave based on the officer’s false testimony. The officer demanded $250, but Powell denied making any promises and attempted to get away from him. Officer Martinez followed him to his car, located in front of the court building, and got in before Powell could lock the door. The officer’s gestures indicated that he wanted money. Powell testified that he thought Officer Martinez had a gun and that he feared that the officer would shoot him there. He then threw the $250 on the floor in order to get rid of the officer, who picked it up and handed Powell a grand jury subpoena. Powell testified that he became hysterical and could not remember anything about the conversation which thereafter occurred.

At the close of this evidence, the trial judge found Powell guilty of bribery and solicitation. The appellate court reversed the bribery conviction, finding that the People did not prove bribery as it was charged in the indictment, nor were the acts sought by Powell related to the performance of the officer’s official duties. That court also reversed the solicitation conviction, finding insufficient evidence that the alleged solicitation was done with the requisite intent to obstruct the apprehension or prosecution of a specific person.

We consider first defendant’s contention that an appellate reversal because of insufficient evidence is tantamount to an acquittal and cannot be appealed by the People under the double jeopardy protections of the Illinois and Federal constitutions. This precise issue was decided in People v. Schwartz (1974), 58 Ill. 2d 274, wherein this court said:

“The defendant in this case was not acquitted in the trial court. He was convicted, and the process of review has not been completed. (See People v. Chupich (1973), 53 Ill. 2d 572, 581-4.) It was the appellate court that found the evidence insufficient, and the question is as to the finality of that court’s judgment.
That question is governed by section 4(c) of article VI of the Illinois Constitution, which enumerates certain instances in which an appeal from the appellate court to the supreme court is a matter of right, and then states: ‘The Supreme Court may provide by rule for appeals from the Appellate Court in other cases.’ Acting under that authority, on November 30, 1972, this court amended the first sentence of Rule 315 (a), which deals with discretionary appeals from the appellate to the supreme court, by adding the italicized portion: ‘A petition for leave to appeal to the Supreme Court from the Appellate Court may be filed by any party, including the State, in any case not appealable from the Appellate Court as a matter of right.’ (55 Ill. 2d xii.) At the same time Rule 604(a), which deals with appeals by the State in criminal cases, was amended by adding the following sentence: ‘The State may petition for leave to appeal under Rule 315(a).’ 55 Ill. 2d xiii.
Insofar as the law of Illinois is concerned, therefore, we hold that the judgment of the appellate court is subject to discretionary review in this court. And insofar as the Constitution of the United States is concerned, we are not aware of any provision that would affect the right of a State to establish a two-tier system of appellate review or to determine whether final review is to be by 3, 5, 7, or 9 judges.” 58 Ill. 2d 274, 276-77.

Respondent presents no persuasive reason to overrule Schwartz, and we adhere to it.

The bribery section of the Criminal Code of 1961 provided:

“A person commits bribery when:
(a) With intent to influence the performance of any act related to the employment or function of any public officer, public employee or juror, he promises or tenders to that person any property or personal advantage which he is not authorized by law to accept ***.” (Ill. Rev. Stat. 1973, ch. 38, par. 33-1.)

The bribery indictment alleged in part:

“with the intent to influence the performance of acts related to the employment and function of a public employee, Jose Martinez, he [Powell] promised and tendered to that person property which Jose Martinez is not authorized by law to accept, to wit: Paul Powell did promise and tender a quantity of United States currency to Chicago Police Officer Jose Martinez, to influence Martinez in the securing of witnesses, and investigation and prosecution of a criminal case entitled People v. Juanita Guevara in the Circuit Court of Cook County.”

The appellate court found that Powell never actually told Officer Martinez not to bring a witness to court, and that, even if he did, the bringing of witnesses to the courtroom was not related to the official duties of the officer. Officer Martinez testified, however, that his function and role as a police officer was to “investigate crime, secure witnesses, bring enough evidence to court,” and that inquiries as to the availability of witnesses were part of his “official duties.” But such testimony is not essential. It is common knowledge of which we take judicial notice that a principal duty of a policeman or any other law enforcement officer is the enforcement of the law. That payments made to an investigating officer in a criminal case to induce him to persuade key prosecuting witnesses not to appear or to withdraw a complaint are not intended to influence the performance of the officer’s duties in investigating, identifying and securing witnesses in criminal cases is an argument we believe does not merit further discussion. Nor, in our judgment, can it be said that a police officer’s official duties in a case have been terminated simply because of a departmental administrative practice to designate a case as “closed” or “completed” once a suspect has been arrested and a complaint filed. It seems to us clear that an important part Of any investigating officer’s official duties is the location and procuring of witnesses for the prosecution or for the defendant so that the result of a crime will be a fair trial and punishment for the proper person.

People v. Clemons (1962), 26 Ill. 2d 481, is relevant here. There two Cook County deputy sheriffs were convicted for receiving money in return for not arresting four youths. On appeal, the officers contended that the State failed to prove that they had an absolute duty to make an arrest and that therefore it was not within their official duties. Thus, they contended, no bribery could have occurred since money was paid for something which was not necessarily an official duty in that particular instance. The court rejected this technical argument, stating:

“The essence of the crime of bribery is the giving to, and receiving or acceptance by, a public officer of something of value to influence him in the performance of his official duty, whether it be termed general or specific.” 26 Ill. 2d 481, 483.

The appellate court erred in reversing the bribery conviction.

That court erred, too, in reversing the conviction for solicitation. Defendant contends and the appellate court agreed that the solicitation indictment was invalid because it did not allege which person’s apprehension Paul Powell was seeking to prevent, thus failing to inform the accused of the nature of his offense and preventing him from adequately preparing his defense. The appellate court also found insufficient proof of this element. We regard both contentions as without merit.

The obstructing justice section of the Criminal Code provides:

“A person obstructs justice when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he knowingly commits any of the following acts:
(a) Destroys, alters, conceals or disguises physical evidence, plants false evidence, furnishes false information ***.” 111. Rev. Stat. 1973, ch. 38, par. 31-4(a).

Also, under the Criminal Code:

“A person commits solicitation when, with intent that an offense be committed, he commands, encourages or requests another to commit that offense.” Ill. Rev. Stat. 1973, ch. 38, par. 8 — 1(a).

The crime of solicitation is committed when a person, with intent that an offense be committed, commands, encourages or requests another to commit that offense. (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 1(a).) Obstructing justice occurs when one, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, knowingly commits one of certain enumerated acts, including concealing physical evidence or furnishing false information. (Ill. Rev. Stat. 1973, ch. 38, par. 31 — 4(a).) The testimony of Officer Martinez, coupled with the earlier noted transcript of the conversation which occurred after Officer Martinez gave Powell the grand jury subpoena, clearly establishes that Powell solicited the obstruction of justice. Telling the assistant State’s Attorney that Powell “stiffed” Officer Martinez, or did not pay him the bribe money, obviously involves concealing the $250. In addition, Powell directly encouraged the officer ■to hide the currency, which was later introduced against Powell as People’s exhibit No. 7. As to the sufficiency of the indictment, we note that it alleged:

“Paul Powell committed the offense of solicitation in that with intent that the offense of obstructing justice be committed encouraged and requested Chicago Police Officer Jose Martinez to commit that offense, to wit: knowingly encouraged and requested Jose Martinez to conceal $250.00 in United States currency, said currency being physical evidence that the offense of bribery was committed by Paul Powell on or about October 18, 1973.
In violation of Chapter 38, Section 8 — 1, Illinois Revised Statutes, 1973.”

In our judgment this indictment did in fact allege the name of the particular person — namely, Paul Powell— whose apprehension Officer Martinez would intend to prevent if he had concealed the evidence as defendant had requested. An indictment which charges an offense in the language of the statute is sufficient when the statute itself apprises the defendant with reasonable certainty of the precise offense with which he or she is charged. (People v. Grant (1974), 57 Ill. 2d 264, 267; People v. Harvey (1973), 53 Ill. 2d 585, 588; People v. Patrick (1967), 38 Ill. 2d 255, 258.) Whether a charge is sufficient “is to be determined by the substance of the charge and not the technicalities of its language.” (People v. Mahle (1974), 57 Ill. 2d 279, 283.) This indictment is first couched in the language of the solicitation statute, then goes on to specify the key elements of the crime solicited; a common sense reading of it makes difficult a belief that Powell could not properly prepare his defense because the indictment was not sufficiently specific. In any event, “[t]he office of a bill of -particulars is to provide more specificity of detail to supplement a sufficient indictment so as to enable an accused better to understand the nature of the charge against him or better to prepare his defense.” (People v. Patrick (1967), 38 Ill. 2d 255, 260.) No bill of particulars was requested.

The defendant attacks the credibility of Officer Martinez and the probative value of the State’s evidence on the grounds that there are variances in the officer’s testimony, that the tape recorder was under his control, and that he is an admitted perjurer in that he falsely stated to the court under oath that the Guevara family did not want to prosecute the charges against defendant’s client. While we do not want to be understood as encouraging or condoning the false testimony, the fact remains that the discrepancies in the officer’s testimony are not significant, and neither his control of the recording switch nor the alleged perjury diminishes or explains away the incriminating character of defendant’s recorded conversation.

“ [W] here a case is tried by the court without a jury, the determination of the credibility of the witnesses and the weight to be accorded their testimony is committed to the trial judge; and, unless it can be said that the court’s judgment is found to rest on doubtful, improbable or unsatisfactory evidence, or clearly insufficient evidence, a reviewing court will not substitute its judgment for that of the court below even though evidence regarding material facts is conflicting and irreconcilable. (People v. West, 15 Ill. 2d 171.)” People v. Clemons (1962), 26 Ill. 481, 484.

This rule is well settled in Illinois. (See People v. Jones (1975), 60 Ill. 2d 300, 307; People v. Fleming (1971), 50 Ill. 2d 141, 145.) The trial judge, who was aware of the alleged perjury, saw and heard the witnesses. He found the evidence sufficient, and we find nothing in this record justifying a contrary conclusion.

The judgment of the appellate court is reversed, and the judgment of the circuit court of Cook County is affirmed.

Appellate court reversed; circuit court affirmed.


text:
    (No. 49485.
    THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JAMES FLETCHER, Appellee.

      Opinion filed May 16, 1978.

      KLUCZYNSKI, J., took no part.
    William J. Scott, Attorney General, of Springfield, and Bernard Carey, State’s Attorney, of Chicago (Donald B. Mackay, Assistant Attorney General, and Lee T. Hettinger, James J. Veldman, Laurence J. Bolon, and William F. Ward, Jr., Assistant State’s Attorneys, of counsel), for the People.
    Patrick A. Tuite, of Chicago, for appellee.
   MR. JUSTICE UNDERWOOD

delivered the opinion of the court:

Defendant, James Fletcher, was convicted in a jury trial of attempted burglary (Ill. Rev. Stat. 1973, ch. 38, pars. 8 — 4(a), 19 — 1(a)). The circuit court of Cook County sentenced him to a term of 3 years and 4 months to 10 years imprisonment. The appellate court reversed on the grounds defendant was not proved guilty beyond a reasonable doubt. (46 Ill. App. 3d 530.) We allowed the State’s petition for leave to appeal.

Defendant urges that the appellate court’s reversal on reasonable doubt grounds is tantamount to an acquittal, and that this appeal therefore violates the double jeopardy protections of the Illinois and Federal constitutions. This argument was specifically rejected by this court in People v. Schwartz (1974), 58 Ill. 2d 274, and more recently in People v. Powell (1978), 72 Ill. 2d 50. Those opinions hold the double jeopardy provisions are not violated by completion of the appellate process and are dispositive of this argument.

The facts are the crux of this case. At 7:30 p.m. on June 24, 1973, Mr. and Mrs. George Lysy heard a loud pounding noise emanating from the rear storage area of a drug store opposite their home. They went onto their second-floor porch to investigate, but their view of the area of the commotion was ' obstructed by foliage. Mrs. Lysy shouted and the pounding ceased. After a moment of silence, the Lysys observed two men running from the storage area. When these men were about 40 feet away from her in the parking lot, Mrs. Lysy yelled “thief, thief.” One of the men turned and looked up at her but did not stop running. The two men then entered a maroon car which had sped up, and rode away. The Lysys ran downstairs to the area behind the drug store. They found there a cardboard box concealing a hole in the store’s cinderblock wall. Near the hole was a sledgehammer with a broken handle, which was inadvertently destroyed by the police prior to trial.

When the police arrived, Mrs. Lysy described the man who had looked up at her as white, in his mid-twenties, with dark bushy hair and full sideburns. She gave no other details of the appearance of either man.

Mr. Lysy related to police that his suspicion had been aroused two days earlier when a maroon Oldsmobile or Pontiac had parked in the space where he usually parked his own car. The car had body damage on the front left side and several stickers on the windshield. He had hurriedly written down the license number as TP 7521. Mr. Lysy had observed three men enter the car that evening and drive away.

Based upon the similarity between defendant’s car and license number (maroon Oldsmobile, TP 2571) and that of the car reported (maroon Oldsmobile or Pontiac, TP 7521), as well as their knowledge of defendant, the police officers proceeded to defendant’s hotel and set up surveillance outside the building. Defendant lived about 12 miles from the.site of the attempted burglary. Approximately 4V2 hours after the incident, the police observed defendant drive up, park his maroon Oldsmobile in an alley, and enter the hotel.

One of the officers checked the car and saw that it fit Mr. Lysy’s description. The two officers went into the hotel, obtained defendant’s room number from the clerk, and proceeded to his floor. As he approached defendant’s room, an officer noticed a young woman preceding him down the corridor. She came to defendant’s room and knocked. Defendant asked: “Who’s there?” At this juncture, the police officer showed the woman his identification and silently signaled her to respond. She stated her name, then was directed by the officer, who had been joined by his partner, to get out of the way.

When the defendant opened the door, he saw the two plainclothesmen. He tried to close the door, but the police forced their way into his room. The testimony was conflicting as to when the officers identified themselves. Defendant was arrested as he fled toward the rear part of the room, and taken to the police station.

A police officer testified that after defendant was informed that a lineup was to be held where witnesses would view him, he had poured water onto his head, thereby plastering down his otherwise bushy hair. There was also testimony before the jury that defendant “appeared to be acting as if he was intoxicated” during the lineup. This conduct and the wet hair were characterized by the State during jury arguments as attempts by defendant to confuse the witnesses at the lineup so that they would not recognize him or would not believe a man in his condition could have attempted a commercial burglary just several hours earlier. At that lineup Mrs. Lysy picked defendant as the man who turned and looked at her. Although he viewed the lineup with his wife, Mr. Lysy was not called upon to make an identification at that time. Mr. Lysy did, however, pick the defendant’s car from the 50 to 60 cars in the police parking lot and identify it as the automobile he had seen on June 22 and June 24.

During the trial, Mr. and Mrs. Lysy both made in-court identifications of the defendant. Mr. Lysy testified that defendant was one of the two men whom he saw running from the drug store’s rear storage area on June 24 and that he was one of the three men who had entered the maroon Oldsmobile when it was parked near the Lysy home on June 22. Mrs. Lysy testified that the defendant was the man who had looked up at her while fleeing from the storage area on June 24, although she agreed that defendant looked older than his mid-twenties as she had initially described him. The appellate court concluded that the identification of the defendant was “positive and certain” and therefore “adequate” to support the jury’s conclusion that it was he whom the Lysys saw. 46 Ill. App. 3d 530, 534.

In order to sustain a conviction for attempted burglary in this context, the State must prove that, with the intent to commit this offense, the defendant did an act which constituted a substantial step toward knowingly entering the drug store with the intent to commit a felony or theft therein. (Ill. Rev. Stat. 1973, ch. 38, pars. 8 — 4, 19 — 1.) The trial court believed this burden had been met, but the appellate court was of the opinion that the proof established only “mere presence and flight” and was insufficient to prove defendant’s guilt beyond a reasonable doubt. 46 Ill. App. 3d 530, 534-35, citing People v. Wilson (1974), 19 Ill. App. 3d 625 (mere presence), and People v. Lofton (1965), 64 Ill. App. 2d 238 (flight). See also People v. Boyd (1959), 17 Ill. 2d 321, 327; People v. Weber (1948), 401 Ill. 584, 603.

This court recently discussed the use of circumstantial evidence in criminal cases in People v. Williams (1977), 66 Ill. 2d 478, 484-85:

“We find apposite here the statement in People v. Marino, 44 Ill. 2d 562, 580, that ‘it is well settled that the commission of an offense may be established entirely by circumstantial evidence. As we observed in People v. Bernette, 30 Ill. 2d 359, 367, “a conviction may be sustained upon circumstantial evidence as well as direct evidence, (People v. Russell, 17 Ill. 2d 328,) it being necessary only that the proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. (People v. Magnafichi, 9 Ill. 2d 169; People v. Grizzel, 382 Ill. 11.) The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfies the jury beyond a reasonable doubt of the accused’s guilt.” ’ Proof of guilt beyond a reasonable doubt does not require proof beyond any possibility of a doubt. (People v. Hanson, 59 Ill. 266; People v. Branion, 47 Ill. 2d 70.)”

In our judgment, the evidence here, when viewed as a whole, establishes more than “mere presence and flight. ” Defendant was positively identified by both Mr. and Mrs. Lysy as one of the two men they saw running to defendant’s car from the immediate vicinity of the attempted burglary. Defendant was also identified by Mr. Lysy as one of the three men who had been in the same car in the same area two days earlier, although it was some 12 city miles from defendant’s hotel. He attempted to prevent the officers’ entrance into his hotel room. When informed that he was to be placed in a lineup and viewed by witnesses, he attempted to alter his appearance and conducted himself in a manner which could be interpreted as an attempt to confuse or deceive the witnesses. In our opinion, this testimony suffices to prove guilt beyond a reasonable doubt.

Accordingly, the judgment of the appellate court is reversed and the cause remanded to that court for a consideration of alleged errors which the appellate court, disposing of the case as it originally did, found it unnecessary to pass upon.

Reversed and remanded, with directions.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.