delivered the opinion of the court:
Dеfendant-appellant Charles Lipscomb was tried before a jury, and convicted of murdering one Kenneth Shackleford with a gun. Defendant was sentenced to an indeterminate term of 14 to 40 years. Charged with the same offense, as codefendants, were George Lipscomb and Stanley Brown, both of whom were found not guilty.
Defendant assigns error in the giving of People’s Instruction No. 6, which was IPI Criminal 3.02 without the inclusion of the final paragraph which reads:
“You should not find thе defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.”
Defendant’s counsel objected to the giving of the instruction tendered by the People. The trial judge, in overruling the objection to the People’s ■instruction, commented that he did not feel that the evidence was entirely circumstantial. The question was not mentioned in defendant’s written post-trial motion. Where the grounds for a new triаl are stated in writing, the accused is limited on review to the errors alleged therein and. all other errors are deemed waived. (People v. Hairstоn,
Defendant also urges that the defendant was not proven guilty beyond a reasonablе doubt. The defendant Charles Lipscomb, George Lipscomb, William Kindle, Stanley Brown and Willie McGee arrived at the front door of an apartment at 39 Birсh Village, Champaign, Illinois, at approximately 6 P.M., on the evening of December 25, 1972. They entered the apartment. Inside were Henry Sayles, Lester McCаll and Kenneth . Shackleford. During the next 5 minutes there was a struggle, people ran from the apartment, one or more returned and there was a general melee, during which several shots were fired, both inside and outside the apartment. At the end of the incident the decedent was found lying next to the curb in the rеar of 39 Birch Village fatally wounded. The detail of what occurred was in dispute throughout the trial. Defendant Charles Lipscomb was known as “Leedy.” The decedent was known as “Shack.”
The defendant was engaged in a struggle with the decedent at the time he was shot. The witness Sayles testified that defendant was armed with either a .22- or .25-calibre revolver when he entered the apartment. The witnesses Sayles and Williams testified that Stanley Brown was armed with a .38-calibre rеvolver. Williams further testified that he heard two shots from a small calibre revolver fired out back of the apartment. About 1 minute later defendant camе into the apartment saying, “Better get your partner. He’s been shot twice.” Williams then left the apartment and found Shackleford lying near a white Cadillac parked in the rear of the apartment by the witness McCall. The decedent, according to Williams, had been badly beaten and had been shot near the heart. Sayles testified that he saw defendant leave the apartment alone and heard a shot from the rear of the building just prior to defendant’s return to the apartment with the announcement that Shackleford had been shot. Sayles also went outside and observed Shackleford. He had seen no weapon in Shackleford’s possession during the time in question. Williams, upon observing Shackleford, went to the apartment of Debra Brown, who was Shaсkleford’s girl friend. She immediately went to the scene. She testified that Shackleford was lying on the ground panting, had scratches on his face, and had a holе in his face. She testified that she said “Shack * * * who did it?” and that he responded “Leedy.” There is no contention here that this evidence was improperly admitted. Johnie B. Wilkerson, Jr. was walking down the sidewalk to his car which was parked near the apartment. He heard a sound like a firecracker. When he arrived at his car he heard a shot and saw two people come from around the comer of the apartment. He recognized defendаnt. Defendant and the person with him then went back around the corner 'of the building and Wilkerson heard two more shots which he described as a “pow” and a “boom.” The “boom” sounded muffled. He then saw the defendant and the other person come back to the front of the apartment. The person with defеndant resembled Stanley Brown. They went to the front door of the apartment and defendant beat on the door and was saying “open the door.” Wilkersоn got in his car and went around to the rear of the apartment and saw a person on his knees holding on to a car, trying to pull himself up. He knew that he knew the individual but couldn’t think who it was. He stated that the person was wearing a black leather coat. Wilkerson then left the scene. On one of the two occasions when he observed defendant Wilkerson heard the defendant say “I told them we ain’t bullshitting man.” Within a few minutes after pulling away from the scene Wilkerson recalled that the name of the person he had seen by the car was Kenneth Shackleford.
Defendant testified that when he and his companions еntered the apartment at 39 Birch Village, McCall and Shackleford ran out the back door with defendant, Stanley Brown and George Lipscomb in pursuit. When defendant was outside he saw Stanley Brown getting up off the ground. Everyone else had disappeared, and defendant then reentered the apartment. About 1 minute later he again went outside to try to locate McCall. He testified that Shackleford struck him in the face with a gun, and there was a struggle up agаinst McCall’s car. He held Shackle-ford’s right wrist with his right hand; Shackleford held defendant by the collar with his left hand. Defendant was using his left hand trying to push Shackleford away. Ihe strugglе lasted about 30 seconds; defendant was on his knees. He heard two shots but didn’t know where they came from but they “seemed close”; Shackleford then released him. Defendant then ran into the apartment and observed Brown fire a shot into the floor. Defendant, Brown, Kindle and George Lipscomb then left. Defendant stated that he was at no time in possession of a gun, nor did he fire a gun during the entire incident.
Four bullets were recovered from the premises. A .22-calibrе bullet was recovered from decedent’s body; another .22-calibre bullet was recovered from the left rear tire of McCall’s car. Expert testimоny was to the effect that both could have been fired from the same gun, but that this was impossible to definitely ascertain. The two bullet fragments recoverеd from the kitchen were determined to have been .32-calibre or larger.
No witness testified to having observed the shooting. The bias of several witnesses fоr both the People and defendant was demonstrated, two had prior felony convictions, and nearly all had given prior statements which varied, in some degree, from their trial testimony. All this was before the jury whose function was to weigh the testimony, judge the credibility of those who gave it and, finally to believe or disbеlieve in whole or in part. The question, in this court, is whether the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Mills,
Judgment affirmed.
TRAPP and CRAVEN, JJ., concur.