People v. Hunter

• Decision Date: 07 October 1976
• Docket Number: Nos. 62432,62462,s. 62432
• Citation: 42 Ill.App.3d 947,356 N.E.2d 822,1 Ill.Dec. 540
• Parties: , 1 Ill.Dec. 540 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Paul HUNTER and Wilbert Dubose, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 822

356 N.E.2d 822

42 Ill.App.3d 947, 1 Ill.Dec. 540

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Paul HUNTER and Wilbert Dubose, Defendants-Appellants.

Nos. 62432, 62462.

Appellate Court of Illinois, First District, Third Division.

Oct. 7, 1976.

The defendants, Paul Hunter and Wilbert Dubose, were charged with two counts of armed robbery. They were tried without a jury, found guilty on both counts and sentenced to two concurrent terms of four to five years in the penitentiary. Both defendants appeal; Dubose contends that he was not proved guilty beyond a reasonable doubt, and he and Hunter assert that the trial court erred in sentencing them for two offenses which arose from one act.

The two defendants entered a Chicago restaurant at approximately three o'clock in the morning. Hunter came in the back door and Dubose the front. The only persons present were two women, Valerie Sparkman and Elizabeth Parker, who were cleaning the place prior to closing. When Sparkman first noticed Hunter he was kneeling on the floor in front of the cash register with a gun in his hand. The register was on a table behind a five-foot counter which separated the restaurant's kitchen from the patrons' area. Hunter threatened to kill the women if they did not open the cash register. Parker complied with Hunter's demand. He then stood up and took money, which was in paper bills and rolls of change, plus the restaurant's commercial receipts from the register and placed them in a dark shoulder bag he was carrying.

While Hunter was emptying the cash register, Sparkman saw Dubose standing in the patrons' area. He was facing her, but she could only see his head because her view was blocked by the counter. He said nothing, but kept looking at her while Hunter was going through the register. He stayed in the restaurant about eight minutes and went out the front entrance shortly after Hunter left through the back door.

A passerby testified that he saw Hunter and Dubose run out of an alley adjacent to the restaurant at the same time; both men had weapons in their right side pockets and one of them was carrying a pouch.

Three or four people flagged down a police car and told the officers that an armed robbery had been committed and that two suspects were fleeing in a northerly direction. After driving a short distance the officers saw two men walking swiftly. As the car approached them at high speed with its lights off, both men began to run. Dubose ran 10 to 15 feet before he stopped; Hunter continued to run and one of the policemen pursued and captured him when he fell while trying to jump over a fence.

During a search of Dubose's person the arresting officer patted his back pocket and felt a weapon which was completely concealed. After this discovery was made Dubose stated: 'Yes, I have a gun.' No money or receipts were found in his possession. Hunter had a .45 caliber automatic weapon in his right hand and $150 on his person. The money was in paper bills and coins which were rolled in paper wrappings. The officer who arrested him also recovered a shoulder bag which contained commercial receipts from the restaurant.

Dubose testified that Hunter was his brother-in-law and that he was searching for him in the early morning hours because he thought he might get into trouble. He went to the restaurant to look for him, and once inside and not finding him there, he decided to order some food. He left after two or three minutes because no waitress came to take his order. He left by the front door and unexpectedly met Hunter on the street adjacent to the restaurant. When they noticed a car coming up behind them with its lights out, they started to run. Dubose said that he stopped running as soon as he realized it was a police car.

Dubose argues that the State failed to prove that he aided and abetted Hunter in the armed robbery; that the evidence only showed his presence at the scene of the crime, not his participation in it. He bases his argument on the following: Hunter was the only person behind the counter who had no authority to be there; only Hunter ordered the employees to open the register; Hunter, not he, took the cash and the receipts from the register; Hunter had started emptying the register before he was noticed in the patrons' area, and there was no evidence that he was watching Hunter or acting as a lookout, or that he could even see Hunter from his position in front of the counter; there was no testimony that he spoke or displayed a gun during the robbery; he left by the front door while Hunter went out the back; he did not run out of the door and ran only 10 to 15 feet from the police; he told the arresting officer that he had a gun in his pocket; and that no robbery proceeds were found on him.

Mere presence or negative acquiescence at the scene of a crime does not make a person a principal in the crime. However, one may aid and abet a criminal offense without actively participating in the overt act. (People v. Nugara and Shubmehl (1968), 39 Ill.2d 482, 236 N.E.2d 693, Cert. denied, 393 U.S. 925, 89 S.Ct. 257, 21 L.Ed.2d 261 (1968).) Circumstances may show a common design to commit an offense, and if this is so, one may be guilty of the offense without actively assisting in its commission. A person who is present when a crime takes place and does not oppose it may be guilty even though he is not an active participant. His presence and lack of opposition may be considered together with other facts and circumstances in determining...