dissenting
from the denial of the petition for rehearing en banc.
Because I believe Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931), cannot be ignored in light of the facts of this case, I must dissent from the court’s denial of the petition for rehearing en banc.
In Stromberg, the situation facing the Supreme Court was virtually indistinguishable from that in the instant case:
The verdict against the appellant was a general one. It did not specify the ground upon which it rested. As there were three purposes set forth in the statute, and the jury [were] instructed that their verdict might be given with respect to any one of them, independently considered, it is impossible to say under which clause of the statute the conviction was obtained. If any one of these clauses, which the state court has held to be separable, was invalid, it cannot be determined upon this record that the appellant was not convicted under that clause. It may be added that this is far from being a merely academic proposition, as it appears, upon an examination of the original record filed with this Court, that the State’s attorney upon the trial emphatically urged upon the jury that they could convict the appellant under the first clause alone, without regard to the other clauses. It follows that instead of its being permissible to hold, with the state court, that the verdict could be sustained if any one of the clauses of the statute were found to be valid, the necessary conclusion from the manner in which the case was sent to the jury is that, if any of the clauses in question is invalid under the Federal Constitution, the conviction cannot be upheld.
283 U.S. at 367-68, 51 S.Ct. at 535.
As an examination of the record of the instant case reveals, the verdict against Wilson was a general one. R. 826. It did not specify the ground upon which it rested. As there were three counts set forth in the indictment,1 and as the members of .the jury were instructed that their verdict might be given with respect to any one of them,2 independently considered, it is impossible to say under which count of the indictment the conviction was obtained. It may be added that this is far from being a merely academic proposition, as it appears, upon an *70examination of the state trial court record filed with this court, that the State’s Attorney upon the trial emphatically urged upon the jury that they could convict Wilson under the felony-murder count alone, without regard to the other clauses:
Ladies and gentlemen, you will not be instructed on any other crime but murder, you will receive no verdict but guilty or not guilty of murder, there is no manslaughter, there is no reckless disregard of human life, that is the law you will be instructed on, those are the verdicts you will have.
[y]ou will also be told, as was referred to, about the felony-murder doctrine, you will recall that there are three different counts in the indictment, knowing and intentionally shooting, that is the first count; the second, engaging in such acts that are likely or probable to cause great bodily harm, shooting a gun in any sort of direction of a person is that; and the third is that when a person dies as a result of a felony, a forcible felony, which is the attempt robbery, even if that person dies of a heart attack that everybody who is in on that robbery is responsible and accountable for that death, that is called the felony-murder doctrine.
And again it is not only legally sensible but it is morally and logically sensible also. If somebody is going to go in and commit a dangerous sort of crime like robbery where anything can happen, as we know, there are two guns involved, then everybody that is in on that robbery is accountable, and Wilson is accountable from Burbank, through his own confession through Detective Fitzgerald that they started the planning of this robbery in a pool hall on 63rd Street and followed through, he also is accountable under the felony-murder doctrine.
Closing Argument of the State of Illinois, R. 795-97.
To me, the instant case falls squarely within the rule of Stromberg. Because the decision of the panel is in direct conflict with precedent set by the Supreme Court, I would order the case set for rehearing by this court sitting en banc.
. As set forth in the first paragraph of the panel’s opinion:
The appellant Rommel X. Wilson and co-defendant Ronald Burbank were charged in a three count indictment for the murder of a shoe store proprietor named Mihran Bogho-sian. Each count of the indictment was based on a separate theory of murder under Illinois law: (1) intentionally and knowingly killing Boghosian without lawful justification; (2) shooting Boghosian with the knowledge that such action created a strong possibility of death or great bodily harm; and (3) killing Boghosian in the course of committing a felony.
. The relevant portions of the court’s charge to the jury were as follows:
A person commits the crime of murder who kills an individual if, in performing the acts which cause the death,
(1) he intends to kill or do great bodily harm to that individual; or
(2) he knows that such acts will cause death to that individual; or
(3) he knows that such acts create a strong probability of death or great bodily harm to that individual; or
(4) he is attempting to commit or is committing the crime of robbery. ******
To sustain that charge of murder, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of Mihran Boghosian;
Second: That when the defendant did so,
*70(1) he intended to kill or do great bodily harm to Mihran Boghosian, or
(2) he knew that his act would cause death or great bodily harm to Mihran Boghosian, or
(3) he knew that his acts created a strong probability of death or great bodily harm to Mihran Boghosian, or
(4) he was attempting to commit or was committing the crime of robbery.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.
The forms of verdicts which you will receive read as follows:
We, the jury, find the defendant, Ronald Burbank, not guilty.
We, the jury, find the defendant, Ronald Burbank, guilty of murder.
We, the jury, find the defendant, Rommel Wilson, guilty of murder.
We, the jury, find the defendant, Rommel Wilson, not guilty.