People v. Flaherty, 29633.

CourtSupreme Court of Illinois
Writing for the CourtSTONE
Citation71 N.E.2d 779,396 Ill. 304
Docket NumberNo. 29633.,29633.
Decision Date17 March 1947

396 Ill. 304
71 N.E.2d 779


No. 29633.

Supreme Court of Illinois.

Jan. 22, 1947.
As Modified on Denial of Rehearing March 17, 1947.

[71 N.E.2d 780]

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.


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 realestate

[71 N.E.2d 781]

firm 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 included

[71 N.E.2d 782]

in 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....

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