Lead Opinion
delivered the opinion of the court:
Eаch 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 sentenсed 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),
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),
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 оut, 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, knоwing 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),
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 offensе, 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),
The point is illustrated by People v. Viser (1975),
This court in People v. Muir (1977),
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 pullеd 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 ***.”
The appellate court had reversed the conviction (People v. Muir (1976),
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.”
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 thе 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 dеfendant’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),
. In cause Nо. 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.
Concurrence Opinion
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),
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 оr 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 tо 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),
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 committеe 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 knоwledge 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),
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 thе 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 аs 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 definitiоn 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 attemрted 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.