¶1concurring in part and dissenting in part:
¶2Considerable amount of uncertainty seems to prevail in courts and among members of the bar as to what language is permissible or impermissible in charging attempted murder and in instructing the jury on this offense. Since this court’s holding in People v. Viser (1975), 62 Ill. 2d 568, that the charge attempted murder could not be based on the definition of murder found in section 9 — 1(a)(3) (felony murder) of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 1(a)(3)), there have been numerous cases challenging attempted murder indictments and instructions framed under the statutory definitions of murder contained in section 9 — 1(a)(1) and section 9 — 1(a)(2) of the Criminal Code. Two of those cases have previously reached this court. (People v. Muir (1977), 67 Ill. 2d 86, and People v. Trinkle (1977), 68 Ill. 2d 198.) Judging from the number of cases that continue to litigate this issue, it is apparent that the two cases decided by this court did not clarify our position. In fact, it has been hopefully suggested that Trinkle has overruled Muir. (See Doherty, The Strange Fate Of Two Men Named David: The Need For Symmetry In The Criminal Law, 66 Ill. B.J. 518 (1978).) It is hoped that, by addressing the entire subject here, I will be better able to state my position than I was able to do as the author of the opinion while deciding the specific issues presented in Muir.
¶3First, in my opinion, Muir and Trinkle are not inconsistent. The indictments in both cases were framed under the definition of murder found in section 9 — 1(a)(2), which provides:
“(a) 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 ….” (Ill. Rev. Stat. 1973, ch. 38, par. 9-l(a)(2).)
¶4The indictment in Muir charged that
“… he did with the intent to commit the offense of Murder in violation of Section 9 — la2 of Chapter 38, Illinois Revised Statutes take a substantial step towards the commission of said offense in that he did without lawful justification point a loaded gun at [name of officer] and pull the trigger knowing such acts created a strong probability of death or great bodily harm ….” (67 Ill. 2d 86, 90.)
¶5The indictment in Trinkle charged:
“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 ….” 68 Ill. 2d 198, 199-200.
¶6Thus the indictment in Muir alleged the specific intent to commit the offense of murder which is necessary to the crime of attempted murder whereas the indictment in Trinkle was clearly defective in that it did not allege the specific intent to commit the offense of murder.
¶7In Muir, the only instruction that was challenged was the one which defined murder using language substantially the same as contained in section 9 — 1(a)(2) and stated:
“A person commits the crime of murder who kills an individual if, in performing the acts which cause the death, he knows that such acts create a strong probability of death or great bodily harm to that individual.” (67 Ill. 2d 86, 94.)
¶8The only objection to this instruction, as voiced by the defendant in Muir and apparently as viewed by the majority in these consolidated cases, is that the instruction permits the jury to convict for attempted murder in cases in which the defendant had only the intent to create a strong probability of great bodily harm. In my opinion that is an erroneous conclusion. The instruction, and that part of the indictment referring to “great bodily harm,” do not define the intent of the defendant but are relevant to intent insofar as the nature of the assault and the circumstances surrounding its commission, inferentially establish the requisite intent to take a life (People v. Muir (1977), 67 Ill. 2d 86, 91-92). As noted above, the disputed language in both the indictment and the instruction originated in section 9 — 1(a)(2), which, unlike section 9 — 1(a)(1), refers to the defendant’s knowledge and not his intent.
¶9Intent and knowledge are defined in the Criminal Code as different mental states. Section 4 — 4 (Ill. Rev. Stat. 1975, ch. 38, par. 4 — 4) defines “intent,” and the committee comments to section 4 — 3 state:
“The use of the word ‘intent’ in the 1961 Code is limited to conscious objective or purpose to accomplish a described result ….” (Ill. Ann. Stat., ch. 38, par. 4 — 3, Committee Comments, at 256 (Smith-Hurd 1972).)
¶10Section 4 — 5 defines “knowledge,” and the same committee comments indicate that this mental state describes the situation in which a person “while not having an actual intent to accomplish a specific wrongful purpose, is consciously aware of the nature of his conduct or of the result which will (or which is practically certain to) be caused ….” Ill. Ann. Stat., ch. 38, par. 4 — 3, Committee Comments, at 256 (Smith-Hurd 1972).
¶11Thus in Muir the indictment charged that the defendant “with the intent to commit the offense of Murder” did perform acts “knowing such acts created a strong probability of death or great bodily harm.” The only intent that is charged is “the intent to commit the offense of Murder.” Knowing well such acts created a strong probability of great bodily harm, according to the committee comments, does not mean that the defendant intended to cause great bodily harm. The gist of murder is that death has ensued from wrongful conduct. If the defendant is charged with the specific intent to commit the offense of murder it cannot be said that the additional phrase “knowing such acts created a strong probability of death or great bodily harm” would mislead the defendant to believe that he was charged with only having the intent to cause great bodily harm. This court has held:
“[T] he indictment … unmistakenly informed the defendant of the precise offense with which he was charged. ‘Niceties and strictness of pleading are supported only when a defendant would be otherwise surprised on trial of be unable to meet the charge or prepare his defense.’ [Citation.] ” [People v. Nastasio (1963), 30 Ill. 2d 51, 54.)
¶12The defendant in Muir was not misled by the indictment and was well aware of the offense with which he was charged. It is difficult for me to understand the claimed confusion concerning this court’s previous holding in Muir in light of the fact that the Code has seen fit to distinguish between the mental state of intent, required in attempted murder, and the mental state of knowledge as included in the definition of murder in section 9 — 1(a)(2).
¶13The same rationale applies to the challenged instruction in Muir. The instruction was a definition of murder. It was not an issue instruction setting forth what the State must prove beyond a reasonable doubt before the defendant could be found guilty. Instructions in criminal cases must be considered and read together as a series. If the instructions, when considered as a whole, fully and fairly announce the law applicable, the instructions are suffi- ' cient. (People v. Kolep (1963), 29 Ill. 2d 116, 125.) The complained-of instruction cannot be singled out and considered in isolation from the others. Even if one instruction, when considered by itself, may not be clear or may create some uncertainty, if, when read as a whole, the instructions properly state the law applicable to the case, a conviction will not be reversed. (People v. Hartwell (1930), 341 Ill. 155, 158, 160; People v. Epping (1959), 17 Ill. 2d 557, 567; People v. Kolep (1963), 29 Ill. 2d 116, 125.) In Muir, in addition to the challenged instruction, the court also gave to the jury Illinois Pattern Jury Instruction, Criminal, No. 6.07. It defined the issues that the State must prove beyond a reasonable doubt in attempted murder, one of which is that the defendant committed the acts with the intent to commit the crime of murder. Because of the differences in the mental state between intent and knowledge, which have been noted above, the definition of murder contained in the challenged Muir instruction did not inform the jury that the defendant could be convicted of attempted .murder if he had the intent only to do great bodily h^rm to the victim. The specific intent requisite to convict the defendant of attempted murder was spelled out in the issue instruction. The challenged instruction dealt with knowledge, not intent.
¶14In Trinkle, the issue instruction told the jury:
“To sustain the charge of attempted murder, the State must prove the following propositions:
First: That the defendant performed the acts which caused the injury of Gayle E. Lane;
Second: That when the defendant did so, he knew that his act created a strong probability of causing death or great bodily harm ….” (68 Ill. 2d 198, 200.)
¶15This issue instruction did not require the State to prove the intent to commit the offense of murder which the issue instruction in Muir required. Thus, all that the instructions, taken as a whole, required was that defendant, when he committed the acts, knew that they created a strong probability of death or great bodily harm. Thus, the State was only required to prove the mental state of knowledge of the probable effect of his acts and not the mental state of intent to commit the offense of murder. The instructions, taken as a whole, were plainly erroneous.
¶16In cause No. 50340, People v. Shields, one of the consolidated cases in this appeal, the charge of attempted murder was based on murder as defined in section 9 — 1(a)(2), as were the charges in Muir and Trinkle. As in Muir, the indictment charged that the defendant “with the intent to commit the offense of MURDER … did [perform] an act … knowing that such act created a strong probability of death or great bodily harm ….” The same reasons which led me to conclude that the indictment in Muir was not defective compel a similar conclusion as to this charge, and the defendant made no complaint as to this indictment. The instructions given in Shields’ case were similar to those given in Muir, including the issue instruction which required the State to prove beyond a reasonable doubt that the defendant had the specific intent to commit the crime of murder. Reading the instructions as a whole, I would hold, as I did in Muir, that the instructions were sufficient. I do not agree with the majority that the instruction in People v. Shields is identical with the one disapproved in Trinkle. The defect in the Trinkle instruction was that the issue instruction permitted the jury to find the defendant guilty without requiring proof that the defendant committed the acts ‘with the intent to commit the offense of murder. No such defect exists in the issue instruction in People v. Shields.
¶17The other case consolidated in this appeal, cause No. 49909, People v. Harris, is framed on the definition of murder as found in section 9 — 1(a)(1), which provides:
“(a) A person who kills an individual without lawful justification commits murder if,- in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; -….” (Ill. Rev. Stat. 1977, ch. 38, par. 9 — 1(a)(1).)
¶18As noted in the majority opinion, the jury was also instructed on the definition of murder as defined by this section.
¶19Unlike murder as defined in section 9 — 1(a)(2), where the mental state is only knowledge, murder as defined in section 9 — 1(a)(1) involves the mental state of intent. The instruction given to the jury under section 9 — 1(a)(1) would permit the jury to find the defendant guilty of attempted murder if his specific intent was either to kill or do great bodily harm to that individual. There is a clear conflict between that instruction, the instruction defining attempt, and the issue instruction. As noted above, in discussing Muir, an essential element of murder is the unlawful taking of a life, thus an instruction defining attempt and the issue instruction inform the jury that to commit the crime of attempted murder the defendant must have the specific intent to unlawfully take the life of another, whereas the instruction defining murder under section 9 — 1(a)(1) told the jury that the defendant need only intend to “do great bodily harm.” I would agree with the majority that in framing a charge of attempted murder under section 9 — 1(a)(1) and in instructing the jury on such a charge, the words “or do great bodily harm” must be excised from the definition of murder and from the instruction.
¶20For the reasons stated herein, I concur in the judgment in cause No. 49909, People v. Harris, and dissent from the judgment in cause No. 50340, People v. Shields.
¶21UNDERWOOD and CLARK, JJ., join in this partial concurrence and partial dissent.