People v. Touhy

• Decision Date: 26 November 1956
• Docket Number: No. 33865,33865
• Citation: People v. Touhy, 138 N.E.2d 513, 9 Ill.2d 462 (Ill. 1956)
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. Roger TOUHY, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 513

138 N.E.2d 513

9 Ill.2d 462

The PEOPLE of the State of Illinois, Defendant in Error, v. Roger TOUHY, Plaintiff in Error.

No. 33865.

Supreme Court of Illinois.

Nov. 26, 1956.

Robert B. Johnstone, Chicago, for plaintiff in error.

Latham Castle, Atty. Gen., and Frank H. Masters, Jr., State's Attorney, Joliet (Fred G. Leach, Decatur, and Edwin A. Strugala, Chicago, of counsel), for the People.

HERSHEY, Justice.

After a jury trial in the circuit court of Will County, the defendant, Roger Touhy, was found guilty of aiding Edward Darlak, a fellow prisoner, to escape from the penitentiary, in violation of section 92 of division I of the Criminal Code. (Ill.Rev.Stat.1941, chap. 38, par. 228.) At the time of the offense, Darlak, a convicted murderer, was serving a 199 year sentence, and pursuant to said statute the court sentenced the defendant to a term of 199 years.

In urging a reversal, the defendant claims the statute is both inapplicable and unconstitutional.

The provision reads as follows: 'Whoever conveys into the penitentiary, or into any jail or other place of confinement, any disguise, instrument, tool, weapon or other thing adapted or useful to aid a prisoner in making his escape, with intent to facilitate the escape of any prisoner there lawfully committed or detained, or by any means whatever aids, abets, or assists such prisoner to escape or to attempt to escape from any jail, prison, or any lawful detention whether such escape is effected or attempted or not, or conceals or assists any convict after he had escaped, shall upon conviction thereof be given the same penalty as the prisoner whom he aided or abetted, except that in case the prisoner is sentenced to death, the penalty for such aid shall be imprisonment for life in the penitentiary.'

Initially, the defendant argues that the foregoing section does not apply to a convict who aids a fellow convict to escape. But he advances no reasons in support of the asserted exemption, and the statute by its terms applies to anyone guilty of the proscribed conduct. See People v. Nicholson, 401 Ill. 546, 82 N.E.2d 656.

The defendant's next ground for reversal is that 'if said section is modified by the Indeterminate Sentence Act, the sentence imposed upon defendant was illegal and void since the procedure required by said Act was not followed at bar.' However, as we understand the defendant's argument, he does not maintain that the so-called 'Indeterminate Sentence Act' (Ill.Rev.Stat.1941, chap. 38, par. 802) was, in fact, applicable to a case of this nature. Nor do we see any such application. The section of the Criminal Code under which Darlak, the escapee, was sentenced, provides for punishment of death, imprisonment for life, or a term of not less than 14 years. The statute under consideration provides that upon conviction of the person who aids or assists the escapee, the penalty shall be the same as that given the prisoner whom he aided. The penalty imposed upon Darlak was fixed at a term of 199 years, and it was permissible for the court to impose a like sentence on the defendant. Cf. People v. Nicholson, 401 Ill. 546, 82 N.E.2d 656. Darlak was not sentenced under the 'Indeterminate Sentence Act,' (section 2 of the Sentence and Parole Act,) but under provisions allowing for a fixed number of years.

The defendant's remaining objections relate to the constitutionality of the statute. In this regard, his principal contention is that it 'fails to provide for like punishment for the same or similar offenses in violation of Article II, Sec. 2, Sec. 9 and Sec. 20 of the Constitution of the State of Illinois, S.H.A., and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.'

The constitutionality of this statute has twice been considered by this court, and in each instance the legislation was held valid as against the asserted objections. People v. Nicholson, 401 Ill. 546, 82 N.E.2d 656; People v. Vraniak, 5 Ill.2d 384, 125 N.E.2d 513.

In the Nicholson case, as here, the defendant argued that the statute created an arbitrary classification. But the court pointed out that it was within the scope of legislative power to measure the punishment by the seriousness of the offense of the prisoner assisted in escaping, stating it was proper 'to provide one penalty for all prisoners who aid one convicted of robbery to escape, and to provide another penalty for all prisoners aiding one convicted of petty larceny to escape.' 401 Ill. at page...