People v. Henry

• Decision Date: 23 December 1971
• Docket Number: Gen. No. 53923
• Citation: People v. Henry, 278 N.E.2d 547, 3 Ill.App.3d 235 (Ill. App. 1971)
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Chester HENRY and Garry Marks, Defendants-Appellants.
• Court: Appellate Court of Illinois

Page 547

278 N.E.2d 547

3 Ill.App.3d 235

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Chester HENRY and Garry Marks, Defendants-Appellants.

Gen. No. 53923.

Appellate Court of Illinois, First District, Third Division.

Dec. 23, 1971.

Rehearing Denied Jan. 13, 1972.

Gerald W. Getty, Public Defender, Ronald P. Katz, James J. Doherty, Asst. Public Defenders, for defendants-appellants.

Edward V. Hanrahan, State's Atty., Nicholas DeJohn, Robert A. Novelle, Asst. State's Attys., for plaintiff-appellee.

DEMPSEY, Justice.

Chester Henry and Garry Marks waived jury trials, were found guilty, sentenced and fined--Henry for attempt murder, armed violence and resisting arrest, Marks for aggravated battery and resisting arrest.

The alleged offenses occurred on the night of April 7, 1968, during a period of civil disturbances in the City of Chicago. Looting, rioting and sniping were taking place; a dusk to dawn curfew was in effect and police officers were patrolling the streets in 12-hour emergency shifts. Among those officers were Harry Engel, Stanley Makowicz, Arthur Silich and Fred O'Reilly of the Chicago Police Department. All were in uniform and were riding in an unmarked squad car on Chicago's west side. As they rode west on Madison Street about 9:00 p.m. they heard some shooting. Engel, the driver, turned the car into Francisco Avenue and pursued two men who were seen one and a half blocks away running south towards Adams Street. No other pedestrians were on Francisco. The men turned west at Adams and the squad car followed.

When the car turned the Adams corner, Engel saw the defendants, Henry and Marks, 75 to 125 feet ahead of him, running diagonally from the north to the south side of the street. Henry made a half turn and fired two shots. The night was dark and Engel did not see the gun but saw flashes as it was discharged and believed (and testified) that the shots were fired in the direction of the car. Engel shouted, 'Watch out, he's shooting' and stopped the car.

Makowicz, who was seated directly behind Engel, saw Henry stop and point his arm at the car. He saw two flames and heard two shots. The officer seized a carbine, jumped out of the car and chased the defendants on the south sidewalk as they ran to the west. Silich and O'Reilly ran in the street. The three officers called for the men to halt and threatened to shoot. The defendants slowed to a walk and Henry threw an object into a yard. Engel pulled up in the squad car and, armed with a carbine, approached the men as Silich and O'Reilly converged on them. The defendants protested their arrest and flayed their arms, striking two of the officers. Engel placed his carbine in Henry's back and told him to stand still or he would fire. The scuffling stopped; the defendants were arrested and handcuffed.

Silich recovered the object Henry threw away, a revolver with three loaded and two expended cartridges. Engel searched Henry and found a holster on his person and 12 live and three spent shells in his pocket. Henry admitted that it was his gun. He said he shot in the air and not at the police car. He also stated that Marks did not know prior to the shooting that he had a firearm.

Henry lived at 2917 Adams with his wife and three children. His home was on the south side of the street, west of Francisco. At his trial he stated that he had not been on Francisco that night. He said that he and Garry Marks, who had been at his house, had just left there and were walking, not running, on the south sidewalk on their way to the home of Garry's brother at 2951 Adams when he heard someone shout 'Halt.' At the second command he turned around and saw an auto in the middle of the street and noticed a man standing at its right rear door. He was able to make out a white face and surmised the man was a policeman. He stopped walking, raised his hands over his head and, as he did so, lifted his gun from its holster and tossed it aside because it was not registered. He testified that there were 15 cartridges but no expended shells in his pocket and that he had fired the gun that night but had done so in his own back yard before leaving home.

Marks testified he did not see Henry fire a gun and did not know he had one. His brother, who had been at Henry's house, left for home and he and Henry followed. They walked on the south side of Adams. When someone said 'Halt' Henry looked around and said, 'We better stop, there's the police.' Portions of his testimony and Henry's were corroborated by his brother and by Henry's wife, and by Henry's mother and sister who lived in another apartment in Henry's building.

The defendants were indicted for the offense of attempt murder and charged specifically with intentionally attempting to kill Harry Engel. The trial court found Henry guilty of this crime. It found Marks not guilty of attempt murder but guilty of the 'lesser included offense of aggravated battery.' The State admits that the latter finding was a mistake because of the lack of bodily harm to or physical contact with Engel, the alleged victim, as required by the aggravated battery statute, Ill.Rev.Stat., 1967, ch. 38, para. 12--4(a) and (b)(1). The State's position is correct and Marks' conviction for aggravated battery is reversed.

The State, desirous of finding Marks guilty of some sort of punishable conduct under the attempt to murder count in the indictment, suggests that he was guilty of aggravated assault and urges this court to reduce the degree of the offense for which he was convicted, under the authority of Ill.Rev.Stat., 1967, ch. 110A para. 615(b)(3). This suggestion necessarily implies that aggravated assault is a lesser included offense in the crime of attempt murder. The indictment and the facts in the present case do not allow such implication. A detailed discussion of the elements of the two offenses and the applicable law would be superfluous because the only theory upon which Marks could be held guilty of any offense under the attempt murder count is that of legal accountability for Henry's conduct (Ill.Rev.Stat., 1967, ch. 38, para. 5--2(c)), and the accountability theory becomes academic in view of our conclusion that Henry was not guilty of attempt murder.

The essence of the crime of attempt murder is the specific intent to take life. People v. Drink, 85 Ill.App.2d 202, 229 N.E.2d 409 (19...