People v. Giacomino

• Court: Illinois Supreme Court
• Writing for the Court: JONES
• Citation: People v. Giacomino , 347 Ill. 523, 180 N.E. 437 (Ill. 1932)
• Decision Date: 06 April 1932
• Docket Number: No. 21167.,21167.
• Parties: PEOPLE v. GIACOMINO et al.

347 Ill. 523

180 N.E. 437

PEOPLE

v.GIACOMINO et al.

No. 21167.

Supreme Court of Illinois.

Feb. 19, 1932.

Rehearing Denied April 6, 1932.

Error to Criminal Court, Cook County; Harry M. Fisher, Judge.

Michael Giacomino and another were convicted of robbery with pistol, and they bring error.

Affirmed.Daniel L. Madden, of Chicago (John E. Toomey, of Chicago, of counsel), for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., John A. Swanson, State's Atty., of Chicago, and James B. Searcy, of Springfield (Edward E. Wilson and Grenville Beardsley, both of Chicago, of counsel), for the State.

JONES, J.

Michael Giacomino and Frank LaPresto were jointly indicted at the February, 1931, term of the criminal court of Cook county. The indictment contained two counts. The first charged robbery with a pistol, and the second charged robbery without alleging that the defendants were armed with any dangerous weapons. A trial by jury was waived. The cause was heard by the court, and both defendants were found ‘guilty of robbery in manner and form as charged.’ Giacomino was found to be twenty-two years of age and LaPresto eighteen years of age. After overruling a motion for a new trial the defendants were adjudged ‘guilty of said crime of robbery in manner and form as charged in the indictment,’ and Giacomino was sentenced to the penitentiary for an indeterminate term of years, not less than one or for life. LaPresto was sentenced to the state reformatory for a like term.

Section 246 of division 1 of the Criminal Code (Smith-Hurd Rev. St. 1931, c. 38, § 501) provides that ‘every person guilty of robbery shall be imprisoned in the penitentiary not less than one year nor more than twenty years; or if he is armed with a dangerous weapon, or if he has any confederate present so armed, to aid or abet him, he shall be imprisoned in the penitentiary for any term of years not less than one year or for life.’

It is contended that, inasmuch as the defendnats were not found or adjudged guilty, in express language, of robbery while armed with a dangerous weapon, it was error to impose sentence for the greater of the two offenses charged. It is claimed that, where the punishment is not the same for the crimes charged in different counts of an indictment, and there is a general verdict or finding of guilty, no sentence can be imposed for the greater of the two offenses, but the only sentence, if any, must be upon the count charging the lesser offense. McKevitt v. People, 208 Ill. 460, 70 N. E. 693, 697, is cited as authority for this contention. The prosecution in that case was based upon a statute then in force which provided a penalty for robbery when the accused was armed with a revolver, with ‘the intent, if resisted, to kill and maim.’ The indictment contained only one court, and the court held that it could not be said that a verdict merely finding the defendant guilty in manner and form as charged in the indictment was meant to include a finding that he intended to kill and maim, if resisted. It was further held that the accused could not be punished for the more aggravated form of the crime, under that statute, unless it appeared from the verdict that he had been expressly found guilty of such an intent. The statute under which McKevitt was prosecuted was later amended by striking out the provision relating to intent, so that the aggravated offense is now complete without any allegation or proof of intent to kill or maim.

The question here involved is whether or not, under a general finding, the defendants may be imprisoned for the graver offense. Wharton, in his work on Criminal Pleading and Practice (8th Ed.) § 737, states the rule as follows: ‘When counts are joined for offenses which are different but not positively repugnant and there is a general verdict of guilty, the practice is to sentence on the count of the highest grade, the prosecution either expressly or tacitly withdrawing the other counts.’ In People v. Stowers, 254 Ill. 588, 98 N. E. 986, 988, the defendants were found ‘guilty as charged in the second and third counts of the indictment.’ The second count charged the crime of rape, and the third count charged an assault with intent to commit rape. The defendants were sentenced under the second count for the completed offense, and this court in affirming the judgment said that the trial court had, in effect, disregarded the finding of guilty on the third count and had sentenced the defendants upon the finding on the second count, which was within its power.

The victim of the robbery in this case was Ralph E. Anderson, a druggist in the employ of the Rosenblum Company. About 11:25 o'clock p. m., October 19, 1930, two men came into the drug store and after holding a brief conversation with Anderson produced pistols and compelled him to go to the rear of the store. The robbers took about $98 from the cash register, $20 from the cash box, and $176 from another place. When they entered the store their coat collars were turned up and their hats were drawn down over their foreheads. Anderson testified that before they left he got a good look at their faces. He saw Giacomino about five days later at the Bridewell Hospital and identified him as one of the robbers. He also saw and identified LaPresto at the Cragin Police Station the day of the latter's arrest, November 7, 1930. LaPresto testified Anderson at that time expressed himself as unable to identify him. On the trial Anderson was positive about his identification.

The defendants testified in their own behalf and denied all participation in the crime. Each sought to establish an alibi. Giacomino claimed that on the day of the robbery he went to the home of Mr. and Mrs. DelGenio about 5:00 o'clock in the afternoon, and that Mrs. DelGenio,...