People v. Shannon

• Decision Date: 08 April 1968
• Docket Number: Gen. No. 51132
• Citation: 236 N.E.2d 369,94 Ill.App.2d 110
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Archie Lee SHANNON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 369

236 N.E.2d 369

94 Ill.App.2d 110

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Archie Lee SHANNON, Defendant-Appellant.

Gen. No. 51132.

Appellate Court of Illinois, First District, First Division.

April 8, 1968.

Gerald W. Getty, Public Defender of Cook County, Chicago, for defendant-appellant; Carolyn Jaffe, Asst. Public Defenders, James J. Doherty, Chicago, of counsel.

John J. Stamos, State's Atty., Cook County, Chicago, for plaintiff-appellee; Elmer C. Kissane, Michael C. Zissman, Asst. State's Attys., Chicago, of counsel.

MURPHY, Justice.

In a jury trial, defendant was found guilty of murder in the manner and form as charged in an indictment, which contained two counts, both charging defendant with the murder of Verlene Shackleford. On appeal, defendant primarily contends that Count I failed to charge an offense, and 'the verdict was fatally defective, in that it is impossible to ascertain therefrom whether the jury found the defendant guilty as charged in Count I or Count II.' Defendant also asserts prejudicial trial errors, including that he was not proved guilty of murder beyond a reasonable doubt.

On January 11, 1965, while in the apartment of Verlene Shackleford, his aunt, defendant participated in a family quarrel, which resulted in the death of Verlene. Those present included Verlene, Curtis Hugges (her common-law husband), Ruby and Jimmie Shackleford (her children), Myrtle Shannon (defendant's common-law wife), and defendant. At the trial, Curtis Hugges and Ruby Shackleford testified for the State in chief and Jimmie Shackleford in rebuttal.

The testimony for the State shows the following course of events. On January 11, 1965, at about 2:00 A.M., the defendant had an argument and a scuffle with his cousin, Jimmie Shackleford, in the lobby of the apartment building where both lived. Defendant then went to his own apartment where he argued with his wife, Myrtle Shannon. Thereafter, Myrtle went downstairs to the apartment of defendant's aunt, Verlene Shackleford, and the Shackleford family. Defendant followed his wife to the Shackleford apartment where the argument was continued. After defendant struck his wife Myrtle, she sought protection behind Verlene Shackleford and Curtis Hugges. Verlene and Jimmie Shackleford tried to calm the defendant and to stop the argument. The defendant left the Shackleford apartment and briefly returned to his own apartment, where he obtained a rifle. The defendant then returned to the Shackleford apartment with the rifle. The door had been closed and locked after defendant had left, and when he returned he demanded readmittance and attempted to force the door open. When Verlene Shackleford identified herself to him through the door, the rifle was fired through the door, fatally injuring her.

Defendant and his wife testified for the defense. In substance, defendant testified that he got the rifle after some altercations with a neighborhood gang and kept it in his apartment. Shortly before the fatal shooting, he caught his cousin Jimmie smoking marijuana in the hallway and was attempting to tell his aunt Verlene about her son's criminal activities and associations. Jimmie pulled a knife on him and was attempting to prevent him from telling Verlene. Defendant did not know the gun was loaded. He thought the catch was on, and he did not intend to fire the gun through the door. The gun went off accidentally when defendant stumbled, and it dropped from his hand.

Defendant's wife denied a scuffle with her husband and stated there was an argument between Jimmie Shackleford and the defendant, and she was accidentally struck because she was standing between the two. On cross-examination she admitted making a statement to a police officer that 'Archie hit me on the side of the head and pulled my hair. Archie then said something about I'll fix you. Then he went upstairs. In a few minutes he was shaking the door on the apartment and trying to get in. Aunt Verlene was at the door and was trying to talk to him. But she had only said a few words when I heard the shot. Then I heard Curtis (that is Verlene's husband) say to Archie, if he would open the door to Archie, you have done shot Aunt Verlene. He asked, ain't you did enough. And Archie was still calling Jimmie. I ran into the closet about this time.'

On rebuttal, Jimmie Shackleford testified as a State's witness over the objection of defendant that Jimmie was an occurrence witness, and his testimony should have been put on in the State's case in chief. He stated his quarrel with defendant originated about some women in defendant's car and whether Jimmie was going to tell Shannon's wife Myrtle about them.

The statute under which both counts in the indictment were drawn reads as follows:

' § 9--1. Murder.

(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; 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.

(b) Penalty * * *.'

Count I of the indictment states in part: '* * * on January 11th, 1965, at and within said County, Archie Lee Shannon committed the offense of murder, in that he, intentionally and knowingly shot and killed Verlene Shackleford with a rifle, without lawful justification, in violation of Chapter 38, Section 9--1 of the Illinois Revised Statutes, 1963 * * *.'

Count II states: '* * * on January 11th, 1965, at and within said County, Archie Lee Shannon committed the offense of murder, in that he, intentionally and knowingly shot and killed Verlene Shackleford with a rifle, knowing that such shooting with a rifle, created a strong probability of death or great bodily harm to Verlene Shackleford, without lawful justification, in violation of Chapter 38, Section 9--1(a2) of the Illinois Revised Statutes, 1963 * * *.'

Defendant argues that Count I was framed in terms of section 9--1, whereas section 9--1 'per se' does not constitute an offense with which a person can be charged; that only the 'subsections' of section 9--1 define and enumerate the statutory offenses; that Count I of the indictment does not charge any of the offenses specified in those subsections and thus fails to charge an offense against the laws of Illinois. 'The state of mind necessary to make the homicide constitute murder within the definitions of those subsections is not alleged in Count I. That Count does not allege that the defendant either intended to kill or do great bodily harm to the deceased or another, or that he knew his acts would cause the death of the deceased or another.'

Defendant further argues that the court instructed the jury as to the elements of the offense of murder in the language of the statute, section 9--1(a)(1) and (a)(2), while nowhere in the indictment was the defendant charged with murder as defined in section 9--1(a)(1). Thus the jury could have found the defendant guilty upon a set of facts not alleged in the indictment.

In People v. Pronger, 48 Ill.App.2d 477, 199 N.E.2d 239 (1964), this court said (p. 481, 199 N.E.2d p. 241):

'An indictment need not state specifically the statute violated by the acts alleged to be a crime, and this holds true where there are several statutory provisions under which the charge might fall. * * * Also, an indictment is sufficient if it informs an accused of the charge, enables him to prepare a defense, and protects him from further prosecution * * * and it is not necessary that an indictment contain all the language of the statute on the subject. People v. Love, 310 Ill. 558, 567, 142 N.E. 204 (1924).'

Also, in People v. Clarke, 407 Ill. 353, 95 N.E.2d 425 (1950), it is said (p. 359, 95 N.E.2d p. 428):

'* * * where the language of the information is as fully descriptive of the offense as the language of the statute denouncing it, and alleges every substantial element of the offense as defined by statute, the information is sufficient.'

After an examination of Count I and in the light of the foregoing authorities, we find that Count I properly charges the offense of murder. Count I included 'that he, intentionally and knowingly shot and killed Verlene Shackleford with a rifle, without lawful justification * * *.' Although Count I does not specify the particular subsection on which the count was based and the jury instructed, it advised the defendant with reasonable certainty of the precise offense charged, including its essential elements, and adequately notified defendant of the nature and cause of the accusation against him. (People v. Patrick, 38 Ill.2d 255, 258, 259, 230 N.E.2d 843 (1967).) Also, we find that Count II properly charged defendant with the offense of murder.

We find no merit in defendant's further contention that 'the verdict was fatally defective, in that it is impossible to ascertain therefrom whether the jury found the defendant guilty as charged in Count I or Count II.' In People v. Lymore, 25 Ill.2d 305, 185 N.E.2d 158 (1962), it is said (p. 307, 185 N.E.2d p. 159):

'A general finding of guilty is presumed to be based on any good count in the indictment to which the proof is applicable. * * * This court has also held that in a case where an indictment contains several counts arising out of a single transaction, and a general verdict is returned, the effect is that the defendant is guilty as charged in each count, and if the punishment imposed is one which is authorized to be...