People v. McChristian

Mr. JUSTICE DOWNING

dissenting:

I would reverse and remand.

Defendant McChristian with co-defendants Melvin Bailey and Edward Dinldns were charged in a sixteen count indictment with aggravated assault, aggravated battery, attempts to murder and a conspiracy to murder five persons. At the close of the State’s case, the trial court granted Dinkins’ motion for a directed verdict. Tire jury returned verdicts acquitting McChristian of the attempts to murder but found him guilty of the conspiracy charged. Bailey was found guilty, by the jury, on five counts of attempt murder and conspiracy.

We have today reversed and remanded the conviction of Bailey. (People v. Bailey, 18 Ill.App.3d 80,--N.E.2d--.) The reasons for the reversal of Bailey arose from certain trial errors. The same errors are equally applicable to McChristian. For the reasons set forth in Bailey, I would reverse and remand the McChristian conviction.

The majority concluded that as to McChristian the record does not prove a conspiracy to murder five persons as charged by the State. Therefore, the majority only reverses.

In this connection, it is interesting to note that before this court, McChristian, in requesting this court to reverse and remand, never really argued the theory upon which the majority bases the reversal. Naturally, the State did not have an opportunity to present its arguments as to this theory. Our review of the record indicates the trial court denied defendant McChristian’s motion for new trial; however, we cannot tell from the record whether the motion for new trial was written or oral (see Ill. Rev. Stat. 1969, ch. 38, par. 116—1(b) and (c)), and whether this theory was presented to the trial court. Under these circumstances, at this time, I cannot concur in the majority opinion.

As stated in the Bailey opinion, there were certain errors in the trial court with respect to the testimony of witness David Barksdale and the efforts to impeach his testimony. Exclusive of tire Barksdale testimony, my review of the evidence as to McChristian indicates there was evidence in the record, from which the jury may imply tire existence of a conspiracy on the part of McChristian and Bailey to commit the acts as charged in the indictment.

The majority opinion, in discussing the jury verdicts as to McChristian, points out their inconsistency. As our supreme court said in People v. Hairston (1970), 46 Ill.2d 348, 362, 263 N.E.2d 840, “* * * our courts have followed the view that logical consistency in verdicts in such instances is not necessary, so long as the verdicts are not legally inconsistent. (People v. Raddatz, 403 Ill. 48; People v. Taylor, 56 Ill.App.2d 170; People v. Ingersoll, 58 Ill.App.2d 216; and see People v. Garman, 411 Ill. 279.) To use the words of the court in State v. Baird (Wash.), 93 P.2d 409, 412, we follow the view that: Tn law there is no inconsistency in verdicts of acquittal and conviction upon charges of crimes composed of different elements, but arising out of the same state of facts.’ The verdicts here were legally consistent, if not logically so, and defendant’s claim of a right to discharge must be denied.”

In People v. Lamkin (1972), 9 Ill.App.3d 771, 291 N.E.2d 512, cited by the majority, the defendant was charged with conspiracy to commit burglary. The only evidence impHcating the defendant in the burglary was the testimony of one of the arresting officers. The court denied defendant’s motion for a directed verdict. The defendant offered no evidence at trial. The court reversed the conviction because on the record there was reasonable doubt of defendant’s guilt. On the other hand, McChristian testified at his trial, and under long established principles he waived any error. People v. Slaughter (1963), 29 Ill.2d 384, 389, 194 N.E.2d 193.

For these reasons, I would reverse the judgment of the circuit court of Cook County and remand for a new trial.