People v. Trinkle

• Decision Date: 05 August 1976
• Docket Number: No. 12915,12915
• Citation: People v. Trinkle, 353 N.E.2d 18, 40 Ill.App.3d 730 (Ill. App. 1976)
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David Francis TRINKLE, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 18

353 N.E.2d 18

40 Ill.App.3d 730

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David Francis TRINKLE, Defendant-Appellant.

No. 12915.

Appellate Court of Illinois, Fourth District.

Aug. 5, 1976.

Richard J. Wilson (Court-appointed), Deputy Defender, Office of State App. Defender, Springfield, for defendant-appellant; Richard J. Geddes, Asst. Deputy Defender, Springfield, of counsel.

C. Joseph Cavanagh, State's Atty., Sangamon County, G. Michael Prall, Principal Atty., Illinois State's Attys. Association, Statewide App. Assistance Service, Springfield, for plaintiff-appellee; Robert C. Perry, Staff Atty., Springfield, of counsel.

REARDON, Justice:

In a jury trial, defendant was found guilty of attempt murder under section 8--4(a) and 9--1(a)(2) of the Criminal Code (Ill.Rev.Stat.1973, ch. 38, pars. 8--4(a), 9--1(a)(2)), and sentenced to an indeterminate term of 1 to 5 years.

Chapter 38, par. 8--4(a) provides that:

'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.'

Chapter 38, par. 9--1(a)(2) provides that:

'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 to that individual or another; or * * *.'

The evidence shows that on February 28, 1974, defendant went to Suppan's Tavern for lunch, and remained the entire afternoon consuming between 20 and 30 glasses of beer. Late that afternoon, the bartender, believing defendant to be intoxicated, refused him further service from the bar. Defendant thereupon became angry and made statements to the effect that he would 'shoot or blow up the bar.' Following these statements, he went to another bar where he consumed several more drinks and purchased a .357 magnum handgun. Defendant then returned to the vicinity of Suppan's, fired a shot at the building, which pierced the front door, and wounded a patron inside the tavern.

The indictment for attempt murder charged that:

'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 * * *.'

Defendant brings this appeal contending that 1) the indictment charging attempt murder is insufficient for failure to allege specific intent to commit murder; 2) that the jury was improperly instructed as to the mental state necessary to sustain a verdict of guilty of attempt murder; and 3) that the evidence was insufficient to prove beyond reasonable doubt that defendant intended to take human life.

The State argues that defendant had the requisite intent for attempt murder because he knowingly performed an act which created a strong probability of death or great bodily harm and was properly found guilty because he could have been found guilty of murder had the victim died.

An indictment for attempt need not set forth the elements of the crime attempted as fully and specifically as would be required in an indictment for the actual commission of the crime. (People v. Williams (1972), 52 Ill.2d 455, 288 N.E.2d 406.) Where specific intent is an element of the attempted offense, however, the indictment must include the elements of specific intent. (People v. Woodward (1973), 55 Ill.2d 134, 302 N.E.2d 62; People v. Mack (1974), 24 Ill.App.3d 455, 321 N.E.2d 446.) Attempt murder is a specific intent offense, and the specific intent which must be proved is the specific intent to kill. People v. Koshiol (1970), 45 Ill.2d 573, 262 N.E.2d 446; People v. Palmer (1964), 31 Ill.2d 58, 198 N.E.2d 839, (Koshiol and Palmer overruled on other grounds in People v. Nunn (1973), 55 Ill.2d 344, 304 N.E.2d 81, cert. den. 416 U.S. 904, 94 S.Ct. 1608, 40 L.Ed.2d 108); People v. Davis (1972), 6 Ill.App.3d 622, 286 N.E.2d 8.

Both parties to this appeal cite the case of People v. Davis, and seemingly disagree as to its impact. The holding of the Davis case, insofar as it is applicable here, is that specific intent to kill must be proven to sustain a conviction of attempt murder. Although the specific intent to kill may be inferred from the circumstances of the assault (Koshiol), specific intent for attempted murder may not be transferred from the intent to commit another crime through the felony-murder rule. Davis; People v. Viser (1975), 62 Ill.2d 568, 343 N.E.2d 903; People v. Farnsworth (1973), 10 Ill.App.3d 844, 295 N.E.2d 83, rev'd on other grounds, 31 Ill.App.3d 771, 335 N.E.2d 18.

Knowledge that an act creates a strong possibility of death, or great bodily harm, and intent to kill are not equivalent mental states. The legislature recognized this difference. 'Intent' is defined in section 4--4 of the Criminal Code as follows:

'A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when this conscious objective or purpose is to accomplish that result or engage in that conduct.' (Ill.Rev.Stat.1973, ch. 38, par. 4--4.)

'Knowledge' is defined in section 4--5 of the Code as when:

A person knows, or acts knowingly or with knowledge of:

(a) The nature or attendant circumstances of his conduct, described by the statute defining the offense, when he is consciously aware that his conduct is of such nature or that such circumstances exist. Knowledge of a material fact includes awareness of the substantial probability that such fact exists.

(b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.

Conduct performed knowingly or with knowledge is performed wilfully, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.' Ill.Rev.Stat.1973, ch. 38, par. 4--5.

The recent analogous case of People v. Muir (1976), Ill.App., 349 N.E.2d 423, supports the necessity of proving the specific intent to kill as a requisite for a finding of guilt of attempt murder. The attempt indictment in the Muir case similarly incorporated language of the murder statute (par. 9--1(a)(2)) where it stated that the defendant did acts 'knowing such acts created a strong probability of death or great bodily harm' to the victim. The Appellate Court, Second District, ruled that the inclusion of the words 'great bodily harm' in the indictment, without charging that the defendant had the specific intent to kill, constituted reversible error.

We concur with the Muir reasoning. The incorporation of the words 'great bodily harm' in the indictment and jury instructions creates the inference that the finder of fact may find the defendant guilty of attempt murder for the mere infliction of great bodily harm without a finding of the required specific intent to kill necessary to support a conviction of attempt murder. As the Muir case stated:

'To permit a charge of Attempt (murder) to be sustained upon proof of an allegation that the defendant committed an act which allegedly constituted a substantial step towards commission of the offense of murder knowing that such act created a strong probability of great bodily harm would mean that every person who commits or attempts to commit an aggravated battery would be guilty of attempt murder. (Citation.) In addition, such a conviction could be sustained upon proof that the defendant inflicted or attempted to inflict great bodily harm while entertaining a...