• 1-3 The function of jury instructions is to convey to the jurors the correct principles of law applicable to the facts so that the jury can arrive at a correct conclusion according to the law and the evidence. ( People v. Plum (1976), 44 Ill. App.3d 922, 358 N.E.2d 1235.) In considering the adequacy of instructions, a reviewing court must take all of the instructions as a unit to ascertain if they fully and fairly cover the law.
However, the issue herein involves a negative inference arising from the failure to call a witness. The burden of proof is not being shifted to defendant by his failure to call Sheila as no negative inference arises against defendant; it merely makes the negative inference against the State inoperative. While defendant also cites People v. Plum (1976), 44 Ill. App.3d 922, we find that case inapposite. The Plum court failed to instruct the jury regarding negative inferences which could be drawn against the State for failing to call a witness.
The purpose of jury instructions is to provide for the jurors those principles of law applicable to the facts that will aid the jurors to reach a correct conclusion in accordance with the law and the evidence presented at trial. ( People v. Plum (1976), 44 Ill. App.3d 922, 925, 358 N.E.2d 1235, 1237.) A court of review, in determining the adequacy of instructions, will take all of the instructions as a whole to ascertain if they fully and fairly cover the law.
( People v. Robinson (1973), 14 Ill. App.3d 135, 140, 302 N.E.2d 228.) Instructions are designed to and should "convey to the jurors the correct principles of law applicable to the evidence so that the jury, after making its findings, can apply the proper legal principles" ( People v. McEvoy (1975), 33 Ill. App.3d 409, 413, 337 N.E.2d 437), and enable the jury to "arrive at a correct conclusion according to the law and evidence" ( People v. Plum (1976), 44 Ill. App.3d 922, 925, 358 N.E.2d 1235). Although defense counsel's proposed instructions on impeachment by omission were not from Illinois Pattern Jury Instructions, the prosecutor and the trial court agreed that they correctly stated the law.
• 3 The State argues that although this case does not involve an alibi, the prosecutor may similarly comment on the failure to call nonalibi witnesses. However, the cases relied upon by the State, People v. Depner (1980), 89 Ill. App.3d 689, People v. Plum (1976), 44 Ill. App.3d 922, and People v. Pullum (1973), 10 Ill. App.3d 745, rev'd on other grounds (1974), 57 Ill.2d 15, are distinguishable. Depner involved an alibi witness. Plum involved a defendant's right to comment on the absence of State's witnesses. Pullum stated broadly that where the defendant injects into the case the names of people who presumably would support his theory of the case, the prosecutor may comment on the failure of the defense to produce those people as witnesses. That case did not state which witnesses were referred to in closing argument, but defendant testified that on the day of the armed robbery he was out of State and that someone drove him back to Chicago.
Further, defendant cannot now complain of counsel's comment where defendant himself interjected Jeske's name into the proceedings to corroborate his theory of intoxication. People v. Plum (1976), 44 Ill. App.3d 922, 925, 358 N.E.2d 1235, appeal denied (1977), 65 Ill.2d 583; People v. Pullum (1973), 10 Ill. App.3d 745, 295 N.E.2d 315. • 9 Defendant also alleges that his fifth amendment rights were violated where the prosecutor elicited on cross-examination that he did not make any statement about self-defense to Michael Schramm after the shooting, that the prosecutor committed reversible error by emphasizing to the jury that defendant had committed the offense of unlawful use of a weapon, an offense not charged in the indictment, and that several statements made during closing argument deprived him of his constitutional right to a fair trial.
The sixteen instructions (including the verdict forms) covered sophisticated and abstract legal concepts such as: burden of proof, consideration of evidence and reasonable inferences drawn therefrom, the elements of the offense charged, presumption of innocence, reasonable doubt, the weight to be given the testimony heard, inconsistent statements, what the State must prove, and the limitation of evidence regarding prior convictions for impeachment purposes only. While the case is not complex in that there was no scientific evidence presented or expert testimony heard, the jurors were denied the opportunity to review the principles of law and to apply those principles to the facts of the case and arrive at the proper verdict. As stated in People v. Plum (1976), 44 Ill. App.3d 922, 925, 358 N.E.2d 1235, 1237, citing People v. Anthony (1975), 30 Ill. App.3d 464, 467, 334 N.E.2d 208: "The function of instructions is to convey to the jurors the correct principles of law applicable to the facts so that the jury can arrive at a correct conclusion according to the law and evidence. [Citation.] Where the evidence is conflicting, it is even more important, for a proper consideration of the facts, that the jury be properly instructed."
The defendant now argues that the State's failure to produce Torres created a presumption that his testimony would have been adverse to the State. People v. Plum (1976), 44 Ill. App.3d 922, 358 N.E.2d 1235. We do not believe that the holding in Plum has any applicability to the instant case.
The State has a right to comment on defendant's failure to call a witness whose testimony could support his case. People v. Plum (1977), 44 Ill. App.3d 922, 925. • 3 In addition, in his answer to the State's discovery motion, the defendant set forth, as a possible defense, an alibi, and included Herman Dragel's name and address as one of defendant's potential witnesses.
• 4 Where the evidence is conflicting, it is especially important that proper instructions are given to guide the jury. ( People v. Plum (1976), 44 Ill. App.3d 922, 358 N.E.2d 1235.) The trial court instructed the jury that they were the sole judges of witness credibility and the weight to attribute to their testimony.