¶1dissenting:
¶2I would affirm the conviction for armed robbery. The majority would acquit and discharge the defendant by concluding that the verdict of not guilty of murder and the verdict of guilty of armed robbery are legally inconsistent. This they do, as we shall see, by evading or avoiding the result in Hairston while on the surface approving its principles. In Hairston, as here, the liability of the defendant was grounded upon our accountability statute. There the defendant was indicted for murder, attempted murder and solicitation to commit murder. There the defendant argued that a verdict of guilty of solicitation is inconsistent with a verdict of not guilty of murder and attempted murder, and thus his discharge was required. The supreme court rejected this argument and affirmed the conviction for solicitation. When the supreme court there affirmed, why the majority here would acquit escapes me.
¶3If these verdicts are so legally inconsistent that a guilty verdict of armed robbery cannot survive, then the same legal inconsistency which destroys that verdict destroys the not guilty verdict on murder also. The court in Hairston stated at page 361, “… It was aptly stated by a Missouri court in State v. Akers, 213 S.W. 424: ‘If the verdict … was too inconsistent to support a judgment of conviction, it was likewise too inconsistent to support a judgment of acquittal. As has often been said, “It is a poor rule which does not work both ways” ’.” Our court stated unequivocably that where inconsistent verdicts of guilty were returned on separate indictments or separate counts of a single indictment, a reversal and a new trial must follow, and quoted with approval at page 362 from State v. Baird, 93 P.2d 409, 412, as follows: “‘In law there is no inconsistency in verdicts of acquittal and conviction upon charges of crimes composed of different elements, arising out of the same set of facts.’” Our supreme court then concluded that the verdicts there were legally consistent if not logically so, and the defendant’s claim of a right to discharge must be denied. In People v. Sanders, 6 Ill.App.3d 820, 286 N.E.2d 785, the defendant was charged with murder, attempted murder and armed robbery. He was acquitted on the first two charges and convicted on the armed robbery charge. The court in Sanders specifically held that the verdict was legally consistent although not logically so. The crimes charged in the indictment were composed of different elements although they arose out of the same set of facts and cited Hairston with approval. It seems clear that we have an identical situation here. If the jury in this case had found the defendant not guilty of armed robbery and guilty on the felony murder count, a conviction on that count could not stand for the very simple reason that a felony murder conviction cannot be sustained if no felony was committed. In such instance, you have truly legally inconsistent verdicts. What the majority overlooks is that there were three counts in this indictment. The two murder counts were submitted under the same instruction and a single verdict returned. When one reviews the evidence, it seems quite clear that there is a rational basis upon which the jury predicated their single not guilty verdict on murder and their single guilty verdict on armed robbery. If they believed the testimony of Dawson that his car broke down and he sent Hawkins back to the filling station for help rather than the testimony of Hawkins, then there is a factual basis for distinguishing between the culpable criminality of Hawldns and the culpable criminality of Dawson. Hawkins by his own testimony had committed the actual robbery and murder. He testified that the defendant told him to rob the service station, handed him a loaded revolver and stated, “If the dude gives you any trouble, just shoot him”. Hawkins “shot him, robbed him, come back out.” Dawson denied this testimony of Hawkins and said he had sent Hawkins to the service station because his car had stopped on him. However, he did divide the proceeds of the robbery. On the theory of accountability, the majority seems to feel that the jury should have returned a verdict of guilty as to murder. Perhaps they should have, but I know of no rule of law that required them to do so. They did find him guilty of armed robbery.
¶4To hold that this defendant is legally unaccountable on this three-count indictment on a theory of inconsistent verdicts and judicially hold that he is accountable for nothing strikes me as far more inconsistent than the jury’s verdicts, either legally, logically, or factually.
¶5Accordingly, it seems to me that in reliance on a purely legalistic theory, the majority uses our accountability statute to discharge a guilty defendant instead of using that' statute as it was intended, that is, to authorize convictions on the principle of accountability, although there was no active actual participation or presence at the scene by the persons charged. It seems to me that if Hairston is to be followed at all, it should result in an affirmance of the defendant’s conviction. That is what they did in Hairston; that is what we should do here. Cases collected in 18 A.L.R.3d 259, 274, suggest that this is by far the practical, prevailing view.