accepted and entered the jury's verdict of guilty of second degree murder were the jury also found that the defendant was not guilty of first degree murder which finding warning to the illinois supreme court and people versus her because of finding that the defendant is guilty of second degree murder because the defendant was found not guilty of first degree murder his conviction for second degree murder must be reversed and his sentence vacated otherwise a man was found not guilty of first degree murder will remain in prison for an  fense that at its core requires that he be found guilty of first degree murder and the facts of the case are relatively simple and straightforward as relates to this issue the defendant was charged with instructed as to second degree murder related to him incorrect belief that self defense was brokered among other things the jury was instructed primarily bed imma stop its deliberations if it found the defendant not guilty of first degree murder that there were no further considerations as to guilt of first degree murder or guilt second degree murder the jury was also instructed that it was to sign only one verdict for whether that be not guilty of first degree murder guilty of first degree murder or guilty of second degree murder only one of the three however the jury signed two of the three the jury signed not guilty of first degree murder and guilty of second degree the court more rigorously than that there are excepted both of those verdicts among the forms that were returned to the court but the corollary has always been that a second degree murder is consider between first degree murder and second degree murder is somewhat instructive here as to what happened and how this matter must be created this is not that second degree murder is not a lesser included offense of first degree murder sometimes it's referred to as first grade murder plus or sometimes referred to as being a lesser mitigated it's in this sense all of the elements of first degree are required to prove the elements of second degree murder when there is a verdict that says there are that the defendant is not guilty of first degree murder almost as a matter of reasonable doubt the offense has not been proved the elements of nothing perv for this reason courts that required it's also notable that there is no verdict form or guilt or i'm sorry for not guilty of second degree murder and this is because it has been helpers taken literally and parker that the not guilty of first degree murder form murder there is no not guilty of second degree murder because one's not guilty has been entered is to first degree murder there is no more question to explore and i would note that we do not claim that these offenses were in any way inconsistent with the i'm not arguing that the verdicts were inconsistent the defenses in fact were remarkably consistent given that each element of first degree murder has to be proved or second degree murder to be proved or even to be considered generally within the case law where there is a concern about inconsistent burdick's it refers to two verdicts  second degree murder isn't a question of whether or not the verdicts were inconsistent rather what the case law says is that the second degree murder consideration and verdict are precluded because of the  if first degree murder is found only then can the jury proceed to consider second degree murder and again in this sense the the argument here is something akin to a reasonable doubt argument question as to whether all of the elements of the offense were per and because the defendant has already been tried and acquitted or first degree murder he can be charged with that again cannot be tried for and told them to keep the liberating that they'd had happen that way we're here today so this court as to this but there the jury intended to defendant of first degree murder you have to make some assumptions if that's the case you have to assume that the jury believe that they  guilty of first degree murder everybody believed it was a verdict of second degree murder and i don't believe double jeopardy prevents as  court at this time nor do i think that is necessary to know what it was the jury was thinking or what its intent was because the question here i believe this is your question does this mcveigh is what is the effect of what the jury did and the effect was they found him not guilty of first degree murder because they found him not guilty of first degree murder he also cannot be found guilty of second degree murder and as a matter of justice i think it's inappropriate for a man who was found not guilty of first degree murder the primary element of second degree murder to also then be convicted of second degree murder now whether or not this was a brilliant strategy by trial counsel i think can be determined and rejected as an argument by the fact that counsel didn't raise this issue not just when it occurred but the pun reflection and after the birth of surrendered counsel did not object in the post trial motions the truly brilliant strategy had it been a strategic matter of counsel would have been to sit silent catch what apparently neither the court nor the prosecutor caught and then at that point now the double jeopardy attaches say hey you can't find me guilty of second degree murder that would have been the brilliant strategy the fact that that did not occur in this case suggests that his counsel's a guess that this was something that was missed by everybody but the fact that it was an innocent mistake makes mistake and i i i wouldn't term it the jury's mistake it was the trial course of the state it was the trial court's duty to only accept the verdict that was appropriate in the trial that was in power as justice o'brian suggested by the ability to challenge the jury at that time required continue deliberations and instruct the jury where necessary as to the mistake that would make it is the court's absolute duty case in the briefs it was argued that there are two deceptions that apply here to a question as to whether or not there was formatter the first is that as i suggested this is akin to a reasonable doubt argument and that is not something that is subject to or which are the second is that this is plain where this is a fundamental error that must be corrected by this court and it would be an injustice for this court to remain silent to the errors that occurred in the trial no i don't think that it's appropriate given the has as tim's said that where the question is whether the sufficiency of the evidence was present then it again is akin to a double jeopardy