Is Shooting at a Car Believing Driver Is Trying to Steal It Considered Attempted Murder ?
In People v. Upton, 230 Ill. App. 3d 365. 375, 595 N.E.2d 56, 171 Ill. Dec. 928 (1992), the defendant fired two shots in the direction of a truck towing away his car.
One shot injured the truck's driver.
At the trial on a charge of attempted murder, the defendant testified that he aimed at the truck's tires because he believed the truck driver was stealing the defendant's car.
The trial court denied the defendant's request for an instruction on reckless conduct.
The Upton court held:
"From the evidence in its entirety, the jury could have concluded that in shooting a gun while running after a moving vehicle occupied by two persons, defendant consciously disregarded the substantial risk that one or both of the persons would be struck by the bullets; and that his disregard of this risk constituted a gross deviation from the care which a reasonable person, even one who believed that his car was being stolen, would exercise in the same situation.
The crux of the issues raised by the defendant on appeal is that the jury was improperly precluded from hearing evidence supporting, and from considering the law applicable to, his theory of defense.
From its verdict, it is clear that the jury believed that defendant was guilty of something; but it was not provided with that 'important third option' of finding defendant guilty of a lesser offense than those charged.
In a jury trial, it is the province of the jury to determine whether defendant is guilty of the greater offense charged or of a lesser-included offense; and an instruction on the lesser offense must be given if there is any evidence which tends to prove the lesser crime." Upton, 230 Ill. App. 3d at 376-77, quoting People v. Bryant, 113 Ill. 2d 497, 502, 499 N.E.2d 413, 101 Ill. Dec. 825 (1986), and citing People v. Perry, 19 Ill. App. 3d 254, 258, 311 N.E.2d 341 (1974).