People v. Bailey

• Court: Illinois Supreme Court
• Writing for the Court: THOMPSON
• Citation: People v. Bailey, 391 Ill. 149, 62 N.E.2d 796 (Ill. 1945)
• Decision Date: 19 September 1945
• Docket Number: No. 28819.,28819.
• Parties: PEOPLE v. BAILEY.

391 Ill. 149

62 N.E.2d 796

PEOPLE

v.BAILEY.

No. 28819.

Supreme Court of Illinois.

Sept. 19, 1945.

Error to Criminal Court, Cook County; Harry B. Miller, Judge.

William Bailey was convicted of robbery while armed with a dangerous weapon, and the jury found that he had previously been convicted of grand larceny; he was sentenced to the penitentiary for life, and he brings error.

Judgment affirmed.

Albert H. Werner, of Chicago, for plaintiff in error.

George F. Barrett, Atty. Gen., and William J. Tuohy, State's Atty., of Chicago (Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, and Joseph A. Pope, all of Chicago, of counsel), for defendant in error.

THOMPSON, Chief Justice.

Plaintiff in error, William Bailey, was tried and convicted December 6, 1934, in the criminal court of Cook county upon an indictment containing three counts. The first count charged robbery while armed with a pistol. The second count contained the charge of robbery with a pistol and also the further allegation that plaintiff in error had theretofore been convicted of the crime of grand larceny. The third count merely charged robbery without alleging that plaintiff in error was armed with any dangerous weapon or alleging any previous conviction. A plea of not guilty was entered; a trial by jury had; and the following verdict returned: ‘We, the jury, find the said defendant, William Bailey, guilty of robbery in manner and form as charged in the indictment. And we further find from the evidence, that the defendant, under the name of William Bailey, has been heretofore convicted of grand larceny.’ Upon this verdict judgment was entered sentencing him to the penitentiary for life. He now brings the common-law record by writ of error to this court for review, claiming the verdict is insufficient to support the judgment and sentence. He contends, not that the judgment should be reversed in its entirety, but that the cause should be remanded to the criminal court for correction of the sentence.

The statutory provisions prescribing the punishment to be imposed upon a defendant convicted of robbery are found in section 246 of division I of the Criminal Code, Ill.Rev.Stat.1943, c. 38, s 501, section 1 of the Habitual Criminal Act and section 2 of the Parole Law of 1917, Ill.Rev.Stat.1943, c. 38, s 802; and although there have been various amendments of the two last mentioned statutes since the commission of the robbery of which plaintiff in error was convicted herein, the punishment for robbery is the same now as it was then. The punishment of a person guilty of robbery was imprisonment in the penitentiary for an indeterminate number of years not less than one nor more than twenty, or if the person committing the robbery was armed with a dangerous weapon or had any confederate present so armed to aid or abet him, the term of imprisonment was from one year to life. Under the Habitual Criminal Act the punishment was increased from such indeterminate sentences to the full term provided for the crime if the person convicted had prior thereto been convicted of any of certain enumerated offenses, among which was the crime of grand larceny. Ill.Rev.Stat.1943, chap. 38, par. 602.

Plaintiff in error contends that inasmuch as he is charged in two of the counts with the crime of robbery while armed with a pistol, and in another and separate count with the lesser and different crime of unarmed robbery, the verdict of the jury, making no finding that he is guilty of armed robbery but merely finding him ‘guilty of robbery in manner and form as charged in the indictment,’ is necessarily equivalent to a finding that he is guilty of robbery, only, under the third count of the indictment; that since the third count is the only count not charging armed robbery, this is the only count to which the verdict could apply; and that as the third count contains no allegation of a prior conviction, the finding of the jury as to his prior conviction is surplusage and void. He contends that the proper sentence which the court should have imposed was one of imprisonment for a term of from one to twenty years. He argues further that even though this contention be not sustained, and the verdict be considered as referring to the second count, nevertheless under that count the jury could have found him guilty of either armed or unarmed robbery, and since the verdict found that he was guilty of robbery and had previously been convicted of grand larceny, but made no finding as to whether or not he was armed while committing the robbery and contained no mention of robbery in the aggravated form, the maximum sentence which could have been imposed under the second count was imprisonment for twenty years.

It was formerly held, prior to the amendment of the robbery statute in 1919, that a defendant could not be sentenced for the crime of robbery while armed if the finding of the jury was merely that he was ‘guilty of robbery in manner and form as charged in the indictment;’ that upon such finding the sentence could only be for unarmed robbery; and that a verdict of guilty was not a finding that the defendant was guilty of the graver crime of armed robbery with which he was charged unless such graver crime was specifically designated or described in the verdict itself. McKevitt v. People, 208 Ill. 460, 70 N.E. 693. However, since the amendment of 1919 this is no longer the rule, and, under an indictment charging robbery while armed, a specific finding as to the graver crime is not necessary, but a finding that the defendant is guilty of robbery as charged is a finding that he was armed when he committed the crime. People v. Giacomino, 347 Ill. 523, 180 N.E. 437, 84 A.L.R. 1168;People v. Pleitt, 308 Ill. 323, 139 N.E. 597;People v. Hildebrand, 307 Ill. 544, 139 N.E. 107.

The test in determining the sufficiency of a verdict and the judgment of conviction based thereon is whether or not the intention of the jury can be ascertained with reasonable certainty. Verdicts are to be liberally construed and all reasonable intendments indulged in their support. A verdict is not to be held insufficient unless from necessity there is doubt as to its meaning; and in determining the meaning the entire record will be searched and all parts of the record interepreted together. People v. Quesse, 310 Ill. 467, 142 N.E. 187;People v. Tierney, 250 Ill. 515, 95 N.E. 447. Here the finding contained in the verdict that the plaintiff in error had been previously convicted of grand larceny clearly identifies the second count of the indictment as the one under which the jury found him guilty. This finding of previous conviction cannot, unless of necessity, be discarded as...