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November 30, 2001

JUSTICE RAPP delivered the opinion of the court:

Following a jury trial, defendant, Jaime Hurtado-Rodriguez,was found guilty of harassment of a witness (720 ILCS 5/32--4a(a)(West 2000)). The trial court sentenced defendant to a 10-yearextended term of imprisonment. On appeal, defendant argues thatthe evidence presented at trial was insufficient to sustain hisconviction. We reverse and remand for a new trial.

Defendant and three codefendants, Alejandro Ramirez, FortunadoHernandez, and Juan C. Ramirez, were charged by indictment withharassment of a witness. The indictment read in pertinent part asfollows:

"That [defendants], on or about May 26, 2000, in theCounty of Lake and State of Illinois, committed the offense ofHARASSMENT OF A WITNESS, in that the said defendants with theintent to harass Monica Hernandez, a person who may beexpected to serve as a witness in a pending legal proceeding,because of the potential testimony of Monica Hernandez andNoel Cabellero, conveyed to Monica Hernandez, a threat ofinjury to Monica Hernandez, Noel Cabellero, and FidelCabellero ***."

Defendant and Fortunado Hernandez were tried together before a juryon August 23 and 24, 2000.

Prior to trial, a body attachment was issued for the victim,Monica Hernandez. Monica testified while in the custody of theLake County Sheriff. Monica said that on May 24, 2000, atapproximately 10:17 p.m., she and her boyfriend Noel Cabellerowere walking on Oak Street in Mundelein. Monica saw a whiteCadillac and said "there goes Alejandro." As Monica and Noel werewalking behind the white Cadillac, someone threw a rock at thevehicle, so Alejandro turned around and asked Noel, "Why did you doit?" Alejandro got out of the vehicle and pulled out a gun. Monica said that she got in between Alejandro and Noel and said,"Why are you doing this? He didn't do it." Noel also toldAlejandro that he did not throw the rock. At that point, Alejandropointed his gun at two men on the corner and shot five times.

On Friday May 26, 2000, Monica's cousin, Fortunado Hernandez,found her and told her that Alejandro Ramirez wanted to speak toher. Monica said that defendant was in the car with Fortunado. Monica said she was not expecting to see Fortunado that day. Monica told Fortunado that she was afraid that he might dosomething to her, and Fortunado said he would not. Monica then gotinto the car with Fortunado and defendant. Fortunado and defendanttold her that Alejandro wanted to tell her and her boyfriend Noelto change their statements to the police about the shooting. Fortunado drove to the house where Alejandro was located.

When they arrived at the house, Fortunado and defendant wentinside with Monica and they found Alejandro Ramirez sitting on acouch in the living room. Monica said that she sat on the couchand Alejandro began to speak. According to Monica, Fortunado,defendant, and her cousin Suzanna were also present at that time. Alejandro spoke about the night of the shooting. Alejandro askedif Monica's boyfriend Noel was in jail. Monica testified thatAlejandro told her that she had to change her statement orsomething would happen to Noel or his brother, Fidel. Alejandroalso told Monica that he wanted to give her the bond money to getNoel out of jail. Alejandro said that he wanted to tell Noel tochange his statement so that Alejandro would not go to jail for theshooting. According to Monica, Alejandro also said that he wouldhelp her get money so that she and Noel could move out ofMundelein.

At that point, Alejandro, Fortunado, and defendant went intoanother room. When they came out Fortunado said that they weregoing to go to Waukegan to post bond for Noel. Monica told themthey would need $1,000, but they said they were "only going to do$100."

Fortunado and defendant took Monica to Waukegan to bond Noelout of jail. Monica said that she did not have any money of herown and that the only money they had was the money Alejandro gaveto Fortunado and defendant. After discovering that they did nothave enough money to bond Noel out of jail, Fortunado and defendantbrought Monica back to the house where Alejandro was located. Monica said that she was in the presence of Fortunado and defendantall day except when they went into the other room with Alejandro.

When they got back to the house, Fortunado told Alejandro thatthey needed more money. Alejandro said that he was going to sendsomeone to see Noel to tell him to change his statement. Monicasaid that she told Alejandro that she would change her statement,and Fortunado took her home.

When asked if Alejandro ever threatened her directly, Monicasaid "he just told me that if I didn't change the statement or thatif Noel didn't change the statement that something was going tohappen to Noel or Fidel." Monica also said that Alejandro said, "Idon't want nothing to happen to you because you are of my family." Monica said that Fortunado and defendant were about 10 feet awaywhen Alejandro made these statements.

On cross-examination Monica testified that she knew Alejandro before the shooting. After the shooting, the police showed Monicaand Noel some photographs and Monica told them that AlejandroRamirez was the shooter. Monica said that Fortunado and defendantnever threatened her but did tell her to change her statement sonothing would happen to Noel and Fidel. Monica said that Alejandroat no time told her that he was going to do anything bad to herbecause Alejandro said that she was of his family. Monica saidthat at no time did Fortunado or defendant say they were going todo anything bad to her. Monica testified that she had not metdefendant before the day in question. Monica said that all threeof them, Alejandro, Fortunado, and defendant, told her to changeher statement "[but] they didn't say [it] in a bad way."

The State's next witness was John Monahan, an investigatorwith the Mundelein police department. Monahan explained thatMonica Hernandez was a witness to a shooting by Alejandro Ramirez. Monahan said that there was a criminal case pending againstAlejandro Ramirez regarding that shooting. On June 15, 2000,Monahan arrested Fortunado Hernandez on an arrest warrant forharassment of Monica Hernandez as a witness. Monahan interviewedFortunado after Fortunado waived his rights pursuant to Miranda v.Arizona, 348 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Atfirst, Fortunado denied having contact with Monica on May 26, 2000,and said that there was no conversation with her about changing herstatement to the police. Upon further questioning, Fortunadoadmitted that he and defendant drove to Monica's house and that hegot out of the vehicle, went up to the house, and spoke to Monicaabout family matters.

Monahan also interviewed defendant, who said that Monica'sfather was concerned for her but would not elaborate further. Defendant said that Monica did not get into the car after theyspoke and that he did not bring Monica to speak to AlejandroRamirez.

Monahan spoke to defendant again on June 16, 2000, in theinterview room at the Mundelein police station after defendant wasarrested for harassment of Monica. Defendant waived his Mirandarights and agreed to speak to Monahan. Defendant told Monahan thathe and Fortunado drove to Monica's house and that he stayed in thecar while Fortunado got out and had a brief conversation withMonica. Monica then got into the car and the three of them went tosee Alejandro Ramirez. According to Monahan, defendant said thatall three of them went into the house where Alejandro and Fortunadospoke to Monica in another room. Defendant said he was in anotherroom and did not hear the content of the conversation. Thereafter,defendant said that he, Fortunado, and Monica went to the LakeCounty jail, where Fortunado gave Monica $500 to bail out herboyfriend, Noel Cabellero. When they learned that they did nothave enough money for Noel's bond, they left the jail. Defendanttold Monahan that Fortunado dropped Monica off at her house andthen dropped him off at his uncle's house. Defendant wrote out hisstatement in Spanish and signed it. The defendant's statement wasadmitted into evidence and was read by an interpreter in open courtas follows:

"Fortunado went to pick me up at the house in Waukeganwhere I live to go to Mundelein. And when we were arriving atMundelein or to Mundelein he said he had to go and see hiscousin. And when he got out of the car--Fortunado, I stayedin the car and Fortunado got out of the car to talk to her.

And later on after a few minutes they came back in thecar--they got in the car, and we left to go to AlejandroRamirez' house to talk. And we arrived at the house and theystarted to talk, but they were talking in the living room andI was in the kitchen.

And later they finished talking and we went to Waukeganto the house of Noel Cabellero, but we arrived at Lake Countyand--and they asked how much was the bond. But it was a lotof money to pay and they did not get him out. And later wereturned back to Mundelein and when we arrived Fortunado gotto his--arrived at his house to change. And later we went out--we arrived at the house of his cousin and they left her athis house and later he left me at the house of my uncle MaxHurtado."

On cross-examination Monahan said that Monica had not come tothe police to tell them about the meeting with Alejandro,Fortunado, and defendant; rather, the police had approached Monica. Monica never told Monahan that defendant or Fortunado threatenedher; Monica just said that she felt she had to go with them, thatshe really did not have a choice.

Next, a certified copy of an information and arrest warrantcharging Alejandro Ramirez with aggravated discharge of a firearm,aggravated unlawful use of weapons, reckless discharge of afirearm, and two counts of aggravated assault on May 24, 2000, wasadmitted into evidence. The State rested. Defendant moved for adirected verdict of acquittal. The trial court denied defendant'smotion.

The defense called Azucena Avilez who testified that she isMonica Hernandez' cousin. Azucena said that Fortunado, Alejandro,defendant, and Monica met at her house in Mundelein on May 26,2000. Azucena said that Monica did not appear upset and was notcrying. Azucena testified that the four went into her living roomwhile she was in the kitchen and outside. Azucena said that shedid not hear any threats made to Monica by Alejandro or anyoneelse. When Monica left Azucena's house with defendant andFortunado, Monica embraced Alejandro and said goodbye. Accordingto Azucena, defendant and Fortunado came back to her house laterthat day but Monica did not.

Defendant testified that on May 26, 2000, his friend Fortunadopicked him up and they went to Mundelein. They drove to MonicaHernandez's house. According to defendant, he did not know Monicaat the time and did not know she was a witness to a shooting. Fortunado got out of the car and spoke to Monica while defendantremained in the car. Defendant did not hear the conversationbetween Fortunado and Monica.

Defendant said that Monica came with him and Fortunado toAzucena's house. When they got to Azucena's house, Alejandro wasin the living room. Defendant said that he went into the kitchen.According to defendant, he was only with Monica at that house whenthey arrived and when they left. Defendant said that Monica wasnot crying and did not appear upset when she left. Defendanttestified that he did not hear Alejandro or Fortunado make anythreats to Monica because he was in the kitchen the entire timethey were at Azucena's house.

Defendant said that he, Fortunado, and Monica left the housetogether to go to the Lake County jail to bond out Monica'sboyfriend, Noel Cabellero. Defendant said Monica hugged Alejandrowhen they left. It was not defendant's understanding that theywere trying to bond out Cabellero to get Monica to change herstatement. After leaving the Lake County jail, defendant,Fortunado, and Monica did not return to Azucena's house.

Fortunado Hernandez testified that he and defendant drove tohis cousin Monica's house on May 26, 2000. According to Fortunado,he did not know she was a witness to a shooting at that time. Fortunado said that he told Monica that her parents were worriedabout her because she had run away from home. Fortunado alsotestified that Alejandro told him that if he saw Monica to ask herto come and talk to him. Fortunado asked Monica to come talk toAlejandro, and she agreed to come with him and defendant. Whenthey arrived at Azucena's house, Monica said hello to Azucena andthen Monica went into the living room. Monica took a seat on thecouch and started talking to Alejandro. Fortunado said thatdefendant sat in the kitchen and he sat on the couch and was alsowalking around the house. Fortunado said that, when he was in thecompany of Alejandro and Monica, he did not hear any threats beingmade and he did not hear what they were talking about. Fortunadosaid he never made any threats to Monica. According to Fortunado,Monica was not upset when she was at Azucena's house.

Fortunado said that he left Azucena's house with Monica anddefendant to go to the Lake County jail. According to Fortunado,Monica gave Alejandro a hug when they left. Fortunado said thatthey tried to bond Noel Cabellero out of jail but they wereunsuccessful. Fortunado said Monica only had $100 but she needed$1,000. Fortunado did not believe that he was taking Monica tobond out her boyfriend in an effort to keep Monica from testifyingin another case. Fortunado said that they did not take Monica backto Azucena's house after leaving the jail. Fortunado testifiedthat when the police officer interviewed him he did not say that hehad no contact with Monica Hernandez on May 26, 2000; he just didnot make any statement at all. Defendant then rested.

In rebuttal, for impeachment purposes, the State publisheddefendant's prior convictions of unlawful use of a weapon by afelon and aggravated discharge of a firearm. The State thenrecalled investigator Monahan who testified that, when interviewed,Fortunado initially denied any contact with Monica and then later admitted speaking with Monica but denied that he took Monica to seeAlejandro and to the Lake County jail.

The jury found defendant guilty of harassment of a witness.

The trial court found that defendant was eligible for an extended-term sentence pursuant to section 5--5--3.2(b)(1) of the UnifiedCode of Corrections (730 ILCS 5/5--5--3.2(b)(1) (West 2000)) due toa prior Class 1 felony conviction within the last 10 years. Thereafter, the trial court sentenced defendant to 10 years'imprisonment. Defendant timely appeals.

Defendant argues that his conviction must be reversed becausethe State failed to present any evidence in support of the elementsof harassment of a witness. We disagree.

The relevant inquiry in reviewing the sufficiency of evidenceis whether, after viewing the evidence in the light most favorableto the State, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt. Peoplev. Perez, 189 Ill. 2d 254, 265-66 (2000).

Defendant argues that the State presented no evidence thatdefendant, or anyone else, communicated with Monica in a mannerthat produced "mental anguish or emotional distress" as required bysection 32--4a(a) of the Criminal Code of 1961 (Criminal Code) (720ILCS 5/32-4a(a) (West 2000)). We agree that no such evidence waspresented. However, the statute provides two alternate bases ofcriminal liability for the offense of harassment of a witness. Aperson is guilty of harassment of a witness if, with the intent toharass or annoy a witness, he (1) communicates with the witness insuch a manner as to produce mental anguish or emotional distress or(2) conveys a threat of injury or damage to the person or propertyof the witness or witness's family member. 720 ILCS 5/32--4a(a)(West 2000); People v. Berg, 224 Ill. App. 3d 859, 863 (1991). Inthis case the State proceeded on the second basis. Therefore, aninsufficiency of evidence of metal anguish or emotional distress isinconsequential.

Next, defendant argues that there was no evidence presentedthat Monica was threatened because Monica testified that she wasnot threatened and that the requests that she change her statementto the police were not made "in a bad way." We disagree.

Monica testified that Alejandro told her that she had tochange her statement "or something is going to happen to Noel orhis brother, Fidel." With respect to a threat made to Monica ofinjury to her person, the following exchange between the assistantState's Attorney and Monica took place:

"ASSISTANT STATE'S ATTORNEY: Did Alejandro Ramirez everthreaten you?

MONICA: He just told me that if I didn't change thestatement or that if Noel didn't change the statement thatsomething was going to happen to Noel or Fidel.

ASSISTANT STATE'S ATTORNEY: Did he also threaten you thatsomething might happen to you?

DEFENSE COUNSEL: Objection.

MONICA: He said I don't want nothing to happen to youbecause you are of my family

THE COURT: Answer will stand.

* * *

ASSISTANT STATE'S ATTORNEY: When Alejandro Ramirez toldyou that he didn't want anything to happen to you, who waspresent?

MONICA: My cousin and [defendant] were there. I don'twant nothing to happen to you because you are cousin of Fortunado.

* * *

ASSISTANT STATE'S ATTORNEY: How many times did AlejandroRamirez tell you that he didn't want anything to happen toyou?

MONICA: Like one time."

Monica also testified that, at the time, she understood that if shechanged her statement to the police about the shooting that nothingwould happen to her.

The statute requires defendant neither to specify the type ofinjury he intends to inflict nor to accompany the threat withphysical violence. Berg, 224 Ill. App. 3d at 865. Also, a singlethreatening statement, together with circumstances that indicatethe threatening party is likely to carry out the threat, cansupport a conviction. Berg, 224 Ill. App. 3d at 865. Thestatement made to Monica by Alejandro that he didn't want anythingto happen to Monica, together with the circumstance that Monica hadtwo days earlier seen Alejandro discharge a firearm at two men onthe street, is an indication of a threat of injury to Monica'sperson. When viewed in a light most favorable to the State, weconclude that a rational trier of fact could have found a threat tothe person of Monica Hernandez beyond a reasonable doubt.

Defendant also argues that there was a complete lack ofevidence at trial to support a finding that defendant wasaccountable for the threats made by Alejandro to Monica. Wedisagree.

When reviewing a question as to a defendant's accountabilityfor an offense, we must determine whether, after viewing theevidence in a light most favorable to the State, any rational trierof fact could have found the essential elements of the crime beyonda reasonable doubt. People v. Cooper, 194 Ill. 2d 419, 424-25(2000). Accountability exists under Illinois law when:

"[e]ither before or during the commission of an offense,and with the intent to promote or facilitate such commission,he solicits, aids, abets, agrees or attempts to aid, suchother person in the planning or commission of the offense." 720 ILCS 5/5--2(c) (West 2000).

On this issue, the jury was instructed accordingly.

Monica's testimony established that defendant and Fortunadodid not directly threaten her. However, Monica said that defendantand Fortunado both told her to change her statement to the policeso that nothing would happen to her. Monica's testimony alsoestablished that, two days after Monica and Noel Cabellerowitnessed the shooting, defendant and Fortunado unexpectedly cameto her house and told her that Alejandro wanted to tell her andNoel to change their statements to the police. Defendant andFortunado then took Monica to Alejandro. According to Monica,defendant and Fortunado were present in the room when Alejandromade the statements to Monica threatening injury to the persons ofher, Noel Cabellero, and Fidel Cabellero. Next, defendant andFortunado took Monica to bond Noel Cabellero out of jail with moneyprovided by Alejandro. Finally, after failing to bond Noel out ofjail, defendant and Fortunado took Monica back to Alejandro, whereMonica told Alejandro that she would change her statement to thepolice.

The foregoing evidence, although controverted by defendant andFortunado at trial, when viewed in a light most favorable to theState, is sufficient to find beyond a reasonable doubt thatdefendant aided and abetted Alejandro's harassment of Monica beforeand during the commission of the offense. Accordingly, we concludethat a rational trier of fact could have found beyond a reasonabledoubt that defendant committed the offense of harassment of awitness.

In exceptional candor and in recognition of its obligation toassist the court in seeking justice (see 188 Ill. 2d R. 3.8(a)),the State calls our attention to the fact that erroneous juryinstructions on the offense of harassment of a witness were givenin this case. We note that defendant did not object to theseinstructions when tendered, submit alternate instructions, or raisethe issue on appeal. Failing to object to jury instructions attrial generally waives any claim of error; however, substantialdefects are not waived by a failure to make a timely objection ifthe interests of justice require. See 177 Ill. 2d R. 451(c);People v. Gengler, 251 Ill. App. 3d 213, 219 (1993). Claims ofsubstantial defects in jury instructions in criminal cases may beconsidered even where defendant has failed to make timelyobjections. People v. Ward, 187 Ill. 2d 249, 264-65 (1999). Instructions on the elements of the offense charged are within thecategory of instructions to which the concept of waiver will not beemployed to bar reversal if a defendant is convicted in the absenceof a necessary instruction. Gengler, 251 Ill. App. 3d at 219. Accordingly, we will review this issue despite defendant's failureto raise it because the instructions given did not properly statethe elements of the offense charged.

The following definition instruction was given at the State'srequest:

"A person commits the offense of harassment of a witnesswhen he, with the intent to harass or annoy one who may beexpected to serve as a witness in a pending legal proceeding,because of the potential testimony of the witness, conveys athreat of injury or damage to the property or person of anyindividual." (Emphasis added.)

The following issues instruction was given at the request of theState:

"To sustain a charge of harassment of a witness, theState must prove the following propositions:

First Proposition: That the defendant, or one for whoseconduct he is legally responsible, conveyed a threat of injuryor damage to the property or person of any individual; and

Second Proposition: That Monica Hernandez was expected toserve as a witness in a pending legal proceeding; and

Third Proposition: That the defendant, or one for whoseconduct he is legally responsible, conveyed the threat withthe intent to harass or annoy Monica Hernandez because of thepotential testimony of Monica Hernandez.

If you find from your consideration of all the evidencethat each one of these propositions has been proved beyond areasonable doubt, you should find the defendant guilty.

If you find from your consideration of all the evidencethat any one of these propositions has not been proved beyonda reasonable doubt, you should find the defendant not guilty." (Emphasis added.)

The foregoing jury instructions are modified forms of IllinoisPattern Jury Instructions, Criminal, Nos. 22.11Y, 22.12Y (3d ed.Supp. 1996) (hereinafter IPI Criminal 3d Nos. 22.11Y, 22.12Y (Supp.1996)). The State concedes, and we agree, that the language "ofany individual" contravenes the language of section 32-4a(a) of theCriminal Code, which provides as follows:

"Harassment of representatives for the child, jurors,witnesses and family members of representatives for the child,jurors, and witnesses.

(a) A person who, with intent to harass or annoy one whohas served or is serving or who is a family member of a personwho has served or is serving (1) as a juror because of theverdict returned by the jury in a pending legal proceeding orthe participation of the juror in the verdict or (2) as awitness, or who may be expected to serve as a witness in apending legal proceeding, because of the testimony orpotential testimony of the witness, communicates directly orindirectly with the juror, witness, or family member of ajuror or witness in such manner as to produce mental anguishor emotional distress or who conveys a threat of injury ordamage to the property or person of any juror, witness, orfamily member of the juror or witness commits a Class 2felony." (Emphasis added.) 720 ILCS 5/32--4a(a) (West 2000).

Further, section 32--4a(c) defines "family member" as follows:

"(c) For purposes of this Section, 'family member' meansa spouse, parent, child, stepchild or other person related byblood or by present marriage, a person who has, or allegedlyhas a child in common, and a person who shares or allegedlyshares a blood relationship through a child." 720 ILCS 5/32--4a(c) (West 2000).

The erroneous instructions in the IPI Criminal 3d Nos. 22.11Y,22.12Y (Supp. 1996) have been corrected to conform with thelanguage of section 32--4a(a) in the Illinois Pattern JuryInstructions, Criminal, Nos. 22.11Y, 22.12Y (4th ed. 2000)(hereinafter IPI Criminal 4th) by requiring, in a case such asthis, proof of a threat of injury or damage to the property orperson of the witness or family member of the witness rather than"any individual." The IPI Criminal 4th also includes aninstruction defining "family member." See IPI Criminal 4th No.22.11Z.

The State concedes that there is nothing in the record toexplain why the third edition instruction, and not the fourthedition instruction, was given despite the availability of thefourth edition at the time of trial. In any event, theinstructions given to the jury were not accurate statements of thelaw because they removed from the jury the consideration of anelement of the offense and are therefore erroneous. See People v.Ogunsola, 91 Ill. App. 3d 26, 32 (1980).

Next, we must consider whether reversible error occurred. TheState asserts that, because defendant was proved guilty beyond areasonable doubt, the instructions in question constituted harmlesserror. We disagree.

"Error arising from the tendering of jury instructions isdeemed harmless only if the submission of proper instructions tothe jury would not have yielded a different result." People v.Shaw, 186 Ill. 2d 301, 323 (1998). In this case the State allegedthat defendant and Fortunado were accountable for the threats madeby Alejandro to Monica. Alejandro allegedly told Monica that ifshe did not change her statement to the police about the shooting,something would happen to her, her boyfriend Noel Cabellero, or herboyfriend's brother, Fidel Cabellero. Because we have concludedabove that there was sufficient evidence for the jury reasonably toconclude that Alejandro threatened injury to the person of thewitness Monica, a properly instructed jury could have founddefendant committed the offense charged. However, the inquiry hereis not whether a correctly instructed jury could have founddefendant guilty but, rather, whether they also could have founddefendant not guilty. The evidence presented at trial did notpreclude an acquittal based upon want of proof beyond a reasonabledoubt of a threat made to Monica of injury to her person. Theinstructions given to the jury referring to "any individual"allowed the jury to find defendant guilty based only on the threatsof injury to the persons of Noel Cabellero and Fidel Cabellero, whowere not proved to be "family members" as defined in the statute. See 720 ILCS 5/32--4a(c) (West 2000).

Because the State charged the offense of harassment of awitness based on threats of injury to three different persons inone count, and the jury was instructed accordingly, we do not knowif the jury believed that a threat of injury to all three persons,to Monica, or to just Noel Cabellero and Fidel Cabellero occurred. In other words, the jury reasonably could have concluded from theevidence that Alejandro threatened to injure only Noel Cabelleroand Fidel Cabellero if the statements to the police were notchanged. A finding that Alejandro threatened only the persons ofNoel Cabellero and Fidel Cabellero would mandate an acquittal underthe statute. If the State had separated each threat into aseparate count, the jury had been instructed accordingly, the sameerroneous instruction had been given, and the jury had founddefendant guilty based on the threat made to Monica's person, wenow could conclude that a properly instructed jury would have madethe same finding. However, because the guilty verdict could havebeen based on all, or any one of the alleged threats, we cannot saythat if the jury had been instructed properly it would not haveyielded a different result. See Shaw, 186 Ill. 2d at 323. If itis possible that a properly instructed jury could acquit, then,when we decide that a jury was not properly instructed, we mustreverse the judgment and remand the cause for a new trial.

In light of the error made in instructing the jury, thejudgment of the circuit court of Lake County is reversed, and thecause is remanded for a new trial.

Reversed and remanded.

BOWMAN and CALLUM, JJ., concur.