People v. Kessler

• Decision Date: 01 July 1974
• Docket Number: No. 46011,46011
• Citation: 315 N.E.2d 29,57 Ill.2d 493
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Rudolph Louis KESSLER, Appellee.
• Court: Illinois Supreme Court

Page 29

315 N.E.2d 29

57 Ill.2d 493

The PEOPLE of the State of Illinois, Appellant, v. Rudolph Louis KESSLER, Appellee.

No. 46011.

Supreme Court of Illinois.

July 1, 1974.

William J. Scott, Atty. Gen., Springfield, and Philip G. Reinhard, State's Atty., Rockford (James B. Zagel, Asst. Atty. Gen., and James Jerz and Edward N. Morris, of the Illinois State's Attorneys Association, Elgin, of counsel), for the People.

Richard J. Wilson, Elgin (Peter B. Nolte, Senior Law Student, of counsel), for appellee.

DAVIS, Justice.

In a jury trial in the circuit court of Winnebago County, defendant, Rudolph Louis Kessler, was convicted on one count of burglary and two counts of attempted murder. The appellate court affirmed the burglary conviction and reversed the attempted-murder convictions (11 Ill.App.3d 321, 296 N.E.2d 631), and we allowed the People's petition for leave to appeal. The facts are stated in the opinion of the appellate court and will be restated here only to the extent necessary to more fully delineate the issues. Defendant waited in an automobile outside a tavern while his two unarmed companions entered the building to commit the burglary. While inside the tavern, they were surprised by the owner, and one of the burglars shot and wounded him with a gun taken during the burglary. Later, while defendant's companions were fleeing on foot, one of them fired a shot at a pursuing police officer. At that time defendant was sitting in the automobile.

The evidence established that on the day before the burglary in question, the defendant went to Chicago to see Ronald Mass, who introduced him to Rodney Abney. The three men went to a restaurant and drank coffee, where the defendant heard Mass ask another person about obtaining a pistol. The person stated he could not obtain a pistol, but would get a sawed-off shotgun by 8 o'clock that evening.

Later Kessler, Mass and Abney went to a store where Mass purchased a screwdriver while Abney simultaneously shoplifted one. Mass indicated that he had to 'put his hands on' $1800. Kessler told Mass that he recalled seeing quantities of cash at the Anchor Tap, where he had previously been employed.

The three men left Chicago about 8 p.m. and arrived at the Anchor Tap in Rockford about 10:30 p.m. Mass and Abney went into the Tap, had a drink, used the bathroom facilities through which they later gained access to the building, and then returned to Kessler, who had remained in the car. They then went to another bar for a drink and then returned to the Anchor Tap.

Just as they parked the car there, Louis Cotti, a co-owner of the Tap, came out to go home. He drove past the parked car as he left and then returned. He testified that he looked around, saw no one at the front of the tavern, then went to the rear of the building, entered the rear door and saw Abney and Mass at the bar. He then left the building by the rear door and went across the street to a restaurant to call the police and to get help. Thereupon, Cotti and another man from the restaurant returned to the Tap and entered the rear door. Mass, who had found a pistol at the bar, then shot Cotti in the neck. Mass and Abney then fled from the bar and entered the car where Kessler sat. Mass drove the car from the Tap and was pursued by the police. Mass was forced off the road and into a ditch. Mass and Abney ran from the car. Kessler remained seated. Abney started shooting at the police, who had arrived at the scene. After an exchange of gunfire, one police officer ordered the defendant from the car and frisked him. As the defendant climbed from the car, and before being advised of his rights, the defendant said, 'I don't know what's going on all the shooting. I was just hitchhiking.' The defendant was then advised of his rights and was taken to Rockford in a squad car where he later at the police station made an inculpatory oral and a written statement.

In reversing the attempted-murder convictions, the appellate court held that 'The application of the 'common design' principle is not justified by the language of section 5--2 to hold a defendant accountable for crimes committed by an accomplice which the defendant was not shown to have intended.' (11 Ill.App.3d 321, 327, 296 N.E.2d 631, 636.) And, at page 325, 296 N.E.2d at page 634, the court stated: '* * * the question before us is whether Kessler can be found guilty on accountability principles without proof of his specific intent to commit the attempt murders perpetrated by Mass and Abney.' The court further stated that 'except in felony-murder cases, the Code does not impose liability on accountability principles for all consequences and further crimes which could flow from participation in the initial criminal venture, absent a specific intent by the accomplice being held accountable to commit, or aid and abet the commission of, such further crimes.' 11 Ill.App.3d at 325--326, 296 N.E.2d at 635.

The People argue 'that a person is responsible for all criminal violations actually committed by another if he assists another in the commission of a single criminal violation,' and that 'if the legislature had intended to limit accomplice liability only to further criminal acts which were specifically intended the word 'conduct' would not have been included in the language of section 5--2.'

Sections 5--1 and 5--2 of the Criminal Code provide in pertinent part:

'Sec. 5--1. Accountability for Conduct of Another.

A person is responsible for Conduct which is an element of an offense if the Conduct is either that of the person himself, or that of another and he is legally accountable for such Conduct as provided in Section 5--2 or both.' (Emphasis added.) Ill.Rev.Stat.1971, ch. 38, par. 5--1.

'Sec. 5--2. When Accountability Exists.

A person is legally accountable for the Conduct of another when:

(b) The statute defining the offense makes him so accountable; or

(c) Either before or during the commission of An offense and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. * * * ' (Emphasis added.) (Ill.Rev.Stat.1971, ch. 38, par. 5--2.)

'Conduct' is defined as:

'* * * an act or a series of acts, and the accompanying mental state.' Ill.Rev.Stat.1971, ch. 38, par. 2--4.

The People argue that the appellate court disregarded the plain meaning of legal doctrines applied by this court and by the highest courts of other jurisdictions, i.e., that where two or more persons engage in a common criminal design or agreement, any acts in the furtherance thereof committed by one party are considered to be the acts of all parties to the common design and all are equally responsible for the consequences of such further acts; and that the court made an unsound and unwarranted interpretation of section 5--2 of the Illinois accountability statute (Ill.Rev.Stat.1971, ch. 38, par. 5--2).

We believe the statute, as it reads, means that where one aids another in the planning or commission of an offense, he is legally accountable for the conduct of the person he aids; and that the word 'conduct' encompasses any criminal act done in furtherance of the planned and intended act.

An early application of this rule is found in Hamilton v. People (1885), 113 Ill. 34. The defendant and two companions invaded a watermelon patch intending to steal some melons. The owner discovered them and a scuffle or fight ensued during which the owner pinned one of the three to the ground, and when in this position another of the three fired a gun at the owner, but the shot missed the owner and struck the potential watermelon thief, who the owner had thrown to the ground. During this occurrence, the third potential watermelon thief stood by. All three of the putative watermelon thieves were charged and convicted of assault with intent to commit murder. This court, at pages 37 and 38, stated:

'The fact is undisputed that the three defendants, one of whom was armed with a pistol, invaded the premises of the prosecuting witness with a criminal purpose. The business upon which the parties had deliberately entered was a hazardous one. They had a right to expect that in the event they were detected in stealing the melons, it would result in violence endangering life or limb,--as it actually turned out afterwards. That they were all co-conspirators in a dangerous criminal enterprise, is an undisputed fact. Such being the case, whatever was done by one, in contemplation of law was done by all, and all are therefore equally responsible.'

In the case at bar, the record shows a common design to commit a robbery or burglary. Kessler, Mass and Abney sat in on the plan, and Kessler led Mass and Abney to the Anchor Tap where he stated the days' receipts were kept.

In People v. Cole (1964), 30 Ill.2d 375, at page 379, 196 N.E.2d 691, at page 693, the court stated:

'While it is true that mere presence or negative acquiescence is not enough to constitute a person a principal, one may aid and abet without actively participating in the overt act and if the proof shows that a person was present at the commission of the crime without disapproving or opposing it, it is competent for the trier of fact to consider this conduct in connection with other circumstances and thereby reach a conclusion that such person assented to the commission of the crime, lent to it his countenance and approval and was thereby aiding and abetting the crime. (People v. Torres, 19 Ill.2d 497, 167 N.E.2d 412; People v. Thicksten, 14 Ill.2d 132, 150 N.E.2d 813; People v. Cione, 293 Ill. 321, 127 N.E. 646.) Stated differently, circumstances may show there is a common design to do an unlawful act to which all assent, and whatever is done in furtherance of the design is the act of all, making each person guilty of the crime. People v. Rybka, 16 Ill.2d 394, 158 N.E.2d 17; People v. Marx, 291 Ill. 40, 125 N.E. 719; People v....