People v. O'Hara

• Decision Date: 11 December 1928
• Docket Number: No. 18933.,18933.
• Citation: People v. O'Hara, 332 Ill. 436, 163 N.E. 804 (Ill. 1928)
• Parties: PEOPLE v. O'HARA et al.
• Court: Illinois Supreme Court

332 Ill. 436

163 N.E. 804

PEOPLE

v.O'HARA et al.

No. 18933.

Supreme Court of Illinois.

Oct. 25, 1928.

As Modified on Denial of Rehearing Dec. 11, 1928.

Error to Circuit Court, Christian County; William B. Wright, Judge.

William O'Hara, Carl Shelton, and others were convicted of robbery, and the last-named defendant and certain other defendants bring error.

Reversed and remanded for new trial.Harold J. Bandy, of Granite City, and Edmund Burke, of Springfield, for plaintiffs in error.

Oscar E. Carlstrom, Atty. Gen., Carl H. Preihs, State's Atty., of Pana, and Roy D. Johnson, of Springfield (John E. Hogan, of Chicago, and Harry B. Hershey and William S. Greer, both of Taylorville, of counsel), for the People.

DUNN, J.

On Saturday, September 27, 1924, three men armed with revolvers entered the Kincaid Trust & Savings Bank in Kincaid, in Christian county, about ten o'clock in the forenoon, for the purpose of robbing the bank. The bank building is a two-story white brick front building in the middle of the town, on a paved street, fronting west and north. The pay roll of the Peabody Coal Company, amounting to about $60,000, was in the safe and about $7,784.64 was on the counter. Ira Aull, assistant cashier of the bank, Bruce Shaw, president, Lyndall Wells and Maude Quinn, employees, were in the bank, in charge. Shaw, who was at the front desk checking over the notes, picked up the note case and walked into the vault. One man who was at the window told him not to close the door, but he closed it and began shooting. The man fired back, and after firing all his shots Shaw closed the door and pushed the burglar alarm. Aull was sitting at the back desk when a large man weighing 200 pounds, about six feet tall, ordered the employees to hold up their hands. Aull did so and was placed with his face to the wall. Some shots were fired in front of the bank, and the man went there, then came back, put his revolver against Aull's back, ordered him to get the pay roll and pushed him toward the vault. Shaw was in the vault, and another man was shooting at it. Aull pushed the door open, and Shaw let him in. Aull was told to open the safe but could not do so because the time-lock was on. Shaw was taken into the back part of the bank and hammered over the head with a revolver and told not to look at his assailant. Aull was told to take the money from the counter and put it in a satchel, and did so, putting in $7,784.64 in currency, silver, and other items. When the men got ready to go they took Aull with them, marching him through the front part of the bank to a car parked about a hundred feet from the bank. He was told to get in the car and hold his head down on his knees. He thought there were six in the car. There was much shooting, but none of the men in the car were shooting at that time though they fired some shots as they went down the street. One of the occupants of the car had a wound in his leg, and Aull gave him his handkerchief to stop the bleeding. The men drove through the town a mile south, turned west, and then the car was stopped and Aull was told to get out, climb a fence into a field and lie down, and he did so. This was about a mile and a half from the bank, and these events occupied about 10 minutes from the time the robbers entered the bank until they let Aull out of the car.

On August 29, 1927, at the August term of the circuit court of Christian county, the grand jury returned an indictment charging William O'Hara, alias Billy O'Hara, alias Billy O'Hare; William Diedicker, alias Bill Diedicker, alias Bill Deeichker; Paul Blackburn, alias Blacky; Edward Mitchell, alias Eddie Mitchell, alias Eddie Nicholson; Carl Shelton, Earl Shelton and Bernie Shelton, in three counts, with the crime of robbery. The three Sheltons and Nicholson were arrested, and the Sheltons gave bail for their appearance. At the November term, on January 3, 1928, the three Sheltons entered a motion to quash the indictment, which was overruled, Nicholson's motion for a severance was allowed, the Sheltons were placed on trial, and on January 7 a verdict was rendered finding them guilty of robbery in manner and form as charged in the indictment. Motions for a new trial and in arrest of judgment were overruled, they were sentenced to imprisonment in the penitentiary and have sued out a writ of error.

[1] It is contended that the motion to quash the indictment should have been sustained because it failed to charge the defendants with the crime of robbery or any crime, neither count of the indictment charging that the defendants took the money from the person or in the presence and under the immediate control and possession of the persons alleged to have been assaulted, or either or any of them. The first count charged that the defendants, being each armed with a loaded revolver, made an assault upon Bruce Shaw, Ira Aull, Lyndall Wells, and Maude Quinn and by force and intimidation put them in bodily fear and danger of their lives, and ‘from the personal possession, custody, and control of the said Bruce Shaw, Ira Aull, Lyndall Wells, and Maude Quinn then and there feloniously, forcibly, violently, and by intimidation did rob, steal, take, and carry away’ the property described in the count, ‘of the money, funds, and property of the Kincaid Trust & Savings Bank, a banking corporation.’ The other two counts were substantially the same. The objection made is that this language does not allege directly, positively, or with any degree of certainty that the money was taken either from the person or from the presence and immediate control an possession of the persons assaulted.

The criminal Code defines robbery as ‘the felonious an violent taking of money, goods, or other valuable thing, from the person of another by force or intimidation.’ Smith-Hurd Rev. St. 1927, c. 38, § 501. At common law robbery is defined as ‘the felonious and violent taking of any money or goods from the person of another, putting him in fear, be the value thereof above or under one shilling.’ 1 Hale's P. C. 532. But if property was taken feloniously, with force and violence or by putting in fear, in the presence of the owner, it was in legal contemplation a taking from his person. 1 Hale's P. C. 532; Rex v. Francis, 2 Strange, 1015. ‘And so it is, whether the taking be strictly from the person of another or in his presence only, as where a robber by menaces and violence puts a man in fear and drives away his sheep or his cattle before his face.’ 4 Blackstone's Com. 243. The words ‘from the person of another,’ as used in our statute, have the same meaning with which they were used at common law, and robbery may be committed by violence or putting in fear and feloniously taking money or other property from the person or in the presence or under the immediate control and possession of the person assaulted. O'Donnell v. People, 224 Ill. 218 79 N. E. 639,8 Ann. Cas. 123;People v. Funk, 325 Ill. 57, 155 N. E. 838. In State v. Calhoun, 72 Iowa, 432, 34 N. W. 194,2 Am. St. Rep. 252, the accused entered a dwelling house, and with threats and violence extorted information from one of the occupants, and then, leaving her tied in one room, went into another and took a watch and money, and he was held guilty of robbery, the taking being in her presence. In Clements v. State, 84 Ga. 660, 11 S. E. 505,20 Am. St. Rep. 385, a person was detained by threats and intimidation in a smokehouse detached from his dwelling while the dwelling was entered and property there was stolen, and the crime was held to be robbery, the property being in the immediate possession and control of the owner. Train robbers driving an express messenger out of his car and then blowing open the safe and taking the money were held guilty of robbery. State v. Kennedy, 154 Mo. 268, 55 S. W. 293. Here the allegation of the taking from the personal possession, custody, and control requires proof of the possession by the individuals named, in person, without the intervention of another, and this was sufficient.

[2] It is argued that the second and third counts are ambiguous and uncertain, and that the charge intended may be burglary or robbery, since each of these two counts charges the defendants with entering the bank building of the Kincaid Trust & Savings Bank. These counts do not charge burglary. They do not allege a forcible breaking and entry or entry without force or the intent with which the entry was made. The motion to quash was properly overruled.

When the indictment was returned the names of the following witnesses were indorsed on it: ‘Lyndall Wells, S. S. Stone, Hugh Thomas, Albert Matozzo, L. A. Ryan, Ira Aull, Henry Clerick, and Art Newman. After the motion to quash the indictment was overruled the defendants made a motion for a rule on the prosecution to indorse on the indictment the names of all witnesses to be used on the trial of the case and to advise the defendants what they expected to prove by such witnesses. The motion was denied, and the defendants were arraigned and pleaded not guilty. The defendants then again moved the court to require the prosecution to indorse the names of all witnesses on the indictment,the motion was denied, and a motion to require the prosecution to furnish a bill of particulars was denied. The defendants then entered a motion for a continuance, supported by their affidavits and the affidavit of William Lynn. The affidavits of the defendants set forth that they were not ready for trial on account of the absence of Roy Baker, Howard Lee, and Leo Dougherty, who were material witnesses for them in their defense; that the absence of such witnesses has not been caused by any lack of diligence on the part of the defendants, but that they did not receive notice that the case was set for trial until December 29, 1927, and that their attorneys did not receive such notice until December 28, 1927; that neither the defendants nor their attorneys were furnished with...