People v. Touhy, 37548
| Decision Date | 29 September 1964 |
| Docket Number | No. 37548,37548 |
| Citation | 31 Ill.2d 236,201 N.E.2d 425 |
| Parties | The PEOPLE of the State of Illinois, Defendant in Error, v. Roger Scott TOUHY, Plaintiff in Error. |
| Court | Illinois Supreme Court |
Daniel Nagle, Chicago, for plaintiff in error.
William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago , for defendant in error.
Defendant, Roger Scott Touhy, who was tried by a jury in the criminal court of Cook County, was found guilty of armed robbery and sentenced to the penitentiary for a term of not less than one nor more than ten years. He prosecutes this direct review contending that the suppression of evidence by the prosecution deprived him of due process of law, and that there was a fatal variance between the allegations of the indictment and the proof.
Essential facts show that a grocery store in the city of Chicago was held up on the night of January 26, 1962, by two men, one of whom was armed with a gun and the other of whom was apparently unarmed. The robbers escaped with over $3,000. The following day, the store manager and a stock boy identified defendant from a police photograph as the unarmed robber and he was subsequently apprehended. This identification was repeated at the trial, and the witnesses likewise testified that defendant had not been armed.
The indictment returned against the accused cused charged him directly as a principal, alleging that he had committed the crime of robbery 'while armed with a dangerous weapon,' and the first error claimed is that since it was not proved that defendant participated as an armed principal, but only that he was an unarmed accessory, there is a fatal variance between the indictment and the proof which requires reversal. In making this contention defendant concedes that had he been charged and tried under the criminal laws as they existed prior to the enactment of the Criminal Code of 1961, his indictment as a principal would have been proper and there would be no basis for the claim of a variance. (See: Ill.Rev.Stat.1959, chap. 38, pars. 501, 582; People v. Ruscitti, 27 Ill.2d 545, 190 N.E.2d 314, People v. Bates, 16 Ill.2d 290, 157 N.E.2d 68; People v. Medivine, 362 Ill. 409, 200 N.E. 155; People v. Lucas, 244 Ill. 603, 91 N.E. 659.) He insists, however, that with the advent of the 1961 Code an unarmed accessory may no longer be charged or found guilty as a principal to the crime of armed robbery.
To better understand defendant's position and the grounds upon which it is based a brief review of statutes in question, past and present, is necessary. Prior to the adoption of the 1961 Code, the crimes of robbery and armed robbery were treated upon in one section of our criminal laws as follows: Ill.Rev.Stat.1959, chap. 38, par. 501; emphasis ours.
In the 1961 Code, which took effect on January 1, 1962, shortly before the crime involved, robbery and armed robbery were separately dealt with in sections 18-1 and 18-2, respectively. (Ill.Rev.Stat.1961, chap. 38, pars. 18-1, 18-2.) So far as pertinent here, section 18-1 provides: '(Robbery.) (a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force', after which section 18-2 provides in part: '(Armed Robbery.) (a) A person commits armed robbery when he violates Section 18-1 while armed with a dangerous weapon.' It is plaintiff's contention that the omission of the words 'or if he has any confederate present so armed, to aid or obet him' from the reenactment of the robbery statute manifests a legislative intention to change the law so that only persons actually possessing a dangerous weapon may be found guilty of armed robbery. Stated otherwise, it is the thrust of his contention that the legislature intended that unarmed accessories who aid and abet an armed robber may no longer be charged and tried as principals.
A ready answer to defendant...
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... ... The entire Criminal Code and each of its sections must be considered in determining the legislative intent, (People v. Touhy, 31 Ill.2d 236, 201 N.E.2d 425,) and, when this is done, we must reject the construction for which defendant contends. Solicitation is an inchoate ... ...
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