People v. Flaherty

Decision Date17 March 1947
Docket NumberNo. 29633.,29633.
Citation71 N.E.2d 779,396 Ill. 304
PartiesPEOPLE v. FLAHERTY.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to Criminal Court, Cook County; Julius H. Miner, Judge.

Patrick Flaherty was convicted of robbery after prior conviction of grand larceny, and he brings error.

Affirmed.

Orr, Lewis & Orr, of Chicago (Warren H. Orr, Wallace W. Orr, and Haskell F. Lamm, all of Chicago, of counsel), 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 Clement D. Cody, all of Chicago, of counsel), for defendant in error.

STONE, Justice.

Plaintiff in error, Flaherty, hereinafter referred to as the defendant, was convicted in the criminal court of Cook county of the robbery of one Robert Cecil Rumbold. The jury found that he had also, in 1922, been convicted of grand larceny. He was sentenced to the penitentiary for his natural life. He was jointly indicted with others charged with having been participants in the crime, but secured a separate trial and at the time of his trial in this case his co-indictees had not been tried.

It appears that on January 19, 1945, shortly after 8 o'clock in the evening, Robert Cecil Rumbold, caretaker and watchman in charge of the office and vault of the realestatefirm of Edward H. Rumbold, in the city of Chicago, was, while on his way to work, attacked by several men, his keys taken forcibly from him and he was taken to the building and compelled to open the vault and was gagged and bound. The robbers then proceeded with sledge hammers, crowbars, and other tools, to break open 177 safety-deposit boxes, emptied their contents into five large bags which they brought with them, and departed, taking also $35 in cash and a ring of the value of $10 from the safety box of Robert Cecil Rumbold, the watchman. Later on these men, including defendant here, were indicted for burglary and larceny, and on trial were found not guilty of that charge. thereafter the present indictment, for robbery while armed, was returned against the same defendants, with the exception of one who had died in the interim. The indictment in this case charges that the defendants, while armed, and by force and intimidation, robbed the watchman, Rumbold, of his cash, money and ring, ascribing value thereto, and a large amount of other personal property in his care, custody or control. Flaherty was convicted of this offense.

Before arraignment on the robbery charge the defendant filed a motion to dismiss the indictment, which was, by stipulation, considered a plea of autrefois acquit, in bar of prosecution. This plea alleged in substance that the defendant in the prior case had been accused and acquitted of burglary and larceny concerning exactly the same facts, property, time, place and transaction as charged in the present indictment; that the crime is the same as the one previously charged and by a verdict of not guilty in the first case defendant was, in effect, acquitted of the offense with which he is charged under the present indictment. This plea was denied and the defendant was arraigned. On the trial defendant sought to submit to the jury the question of former jeopardy and this was denied, the court instructing the jury as a matter of law that defendant had not been previously tried for the offense charged in this indictment.

Defendant's counsel assign four grounds for reversal: (1) that his previous trial and acquittal is a bar to the present prosecution; (2) that the State failed to prove the use of a gun or other dangerous weapon; (3) that defendant's previous conviction, 23 years prior to his present one, did not bring him within the scope of the so-called Habitual Criminal Act, and (4) that his conviction should not be allowed to stand because, his counsel say, it rests entirely upon discredited and uncorroborated testimony of confessed and unsentenced accomplices given in expectation of leniency as to their own punishment.

Both the constitution of our State and that of the United States provide that no person shall be twice put in jeopardy for the same offense. This constitutional provision protects any person who has already been tried and acquitted of an offense from being ever again put upon trial and again brought into danger of punishment for the same offense. The protection intended and specifically given is against second jeopardy for the same offense. There is no prohibition, either in the Federal or in our own constitution, against successive prosecutions if the same wrongful act charged constitutes separate and distinct offenses, or if there be two or more different offenses growing out of the same transaction. It has been often said by courts that the words ‘same offense,’ as used in the constitutional guaranty against second jeopardy, mean the same offense, and not the same act or transaction. In considering the identity of offenses the question is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306;Gravieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489;Ebeling v. Morgan, 237 U.S. 625, 35 S.Ct. 710, 59 L.Ed. 1151;Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153. The offenses are not the same when there is a distinct element in one which is not includedin the other, though both relate to the one transaction. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. In such case, a conviction or acquittal of either offense constitutes no bar to a conviction under the other, for the accused would not be twice in jeopardy for one offense. The fact that he may have committed two crimes gives him no immunity from prosecution for either. Before the defense of former jeopardy can be sustained the offense involved must be the same, both in law and in fact. If the offenses are distinct in law, the defense of former jeopardy is not available, regardless of how closely they are connected in point of fact. Piquett v. United States, 7 Cir., 81 F.2d 75, certiorari denied 298 U.S. 664, 56 S.Ct. 749, 80 L.Ed. 1388;Spears v. People, 220 Ill. 72, 77 N.E. 112, 4 L.R.A.,N.S., 402.

The indictment here under consideration charged defendant and others with making a felonious assault upon Robert Cecil Rumbold and putting him in great bodily fear and danger of his life, and that they, by force and intimidation, robbed him of $35, one ring of the value of $10, two keys of the value of 25 cents each, and also divers other large sums of money, personal goods and property that were in his care, custody or control. The indictment under which defendant was tried and found not guilty charged him and others with breaking and entering the real-estate office and safety-deposit vault of Edward Howard Rumbold and stealing the property of Rumbold and numerous other persons named in that indictment, and of some sixty other persons whose names were unknown to the grand jurors, and who were renting safety-deposit boxes at that place.

The burglary and larceny indictment was not one charging robbery of Robert Cecil Rumbold nor the larceny of any property from his person or in his care, custody or control. The test, when a former acquittal is pleaded in bar of a subsequent prosecution, is whether the facts charged in the later indictment would, if found to be true, have justified a conviction under the earlier indictment. If so, the judgment on the earlier indictment is a complete bar to the prosecution under the later one, otherwise not. People v. Allen, 368 Ill. 368, 14 N.E.2d 397;People v. Bain, 358 Ill. 177, 193 N.E. 137;People v. Greenspawn, 346 Ill. 484, 179 N.E. 98. It is clear that the jury, under the first indictment, could not have found the defendant guilty of robbery of Robert Cecil Rumbold, who was not named in that indictment as the owner or as custodian of any of the property stolen.

Indictments for offenses against persons or property must name the person or property injured, if known. This is to enable the defendant to plead either former conviction or acquittal in case of a second prosecution for the same offense. People v. Allen, 368 Ill. 368, 14 N.E.2d 397;People v. Clavey, 355 Ill. 358, 189 N.E. 364;People v. Smith, 341 Ill. 649, 173 N.E. 814. An accused may not be tried for burglarizing the building of any person other than the owner or person entitled to the possession thereof. The substance of one crime cannot be proved by proving the substance of another. State v. Billotto, 104 Ohio St. 13, 135 N.E. 285.

Robbery is the felonious and violent taking of money, goods, property or other valuable thing from the person of another or in his care, custody or control, by force and intimidation. The gist of the offense of robbery is the force or intimidation used in taking from the person and against...

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