Tobin v. People of State

• Decision Date: 20 November 1882
• Citation: Tobin v. People of State , 104 Ill. 565, 1882 WL 10453 (Ill. 1882)
• Parties: JAMES TOBINv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

104 Ill. 565

1882 WL 10453 (Ill.)

JAMES TOBIN

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1882.

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding. Mr. JOHN GIBBONS, for the plaintiff in error:

As to the joinder of offences in one indictment, and compelling an election: Wharton's Criminal Pl. and Pr. (8th ed.) sec. 294; 1 Bishop's Criminal Procedure, chap. 30, (3d ed.); Harmon v. Commonwealth, 12 S. & R. 69; State v. Johnson, 3 Harrington, 561; Goodhue v. People, 94 Ill. 37; Wharton's Criminal Law, sec. 1387.

It can not be contended that robbery or larceny, and receiving stolen goods, are cognate offences,--that they can form part of the same transaction, or that they are such in their nature that the defendant might be guilty of both. People v. Harriden, 1 Parker, 344; 1 Bishop's Criminal Procedure, secs. 189, 213.

To constitute robbery, the property must not only be valuable, but it must be also taken from the person and the peaceable possession of the owner. Phipoe's case, 2 Leach, 773; Rex v. Edwards, 6 Car. & P. 521; Moore's Criminal Law, 54; Wharton's Criminal Law, sec. 878.

The verdict is defective in not finding the value of the stolen property received. This is necessary where the punishment depends on value of property, etc. Thomas v. State, 5 How. (Miss.) 20; Shines v. State, 42 Miss. 331; State v. Cleaveland, 58 Me. 564; Dick v. State, 3 Ohio St. 89; Colia v. State, 16 Ala. 781; McPherson v. State, 9 Yerg. 279; Kennedy v. People, 39 N. Y. 245; Williams et al. v. People, 44 Ill. 478.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

At the May term, 1882, of the Criminal Court of Cook county, an indictment, consisting of three counts, charging, respectively, robbery, larceny, and receiving stolen property, was found against James Tobin, Allen Cummings, and Frank Williams. Upon trial had, the jury returned the following verdict: “We, the jury, find the defendants James Tobin and Frank Williams guilty, in manner and form as charged in the indictment, and fix their terms of imprisonment at four years each in the penitentiary of this State.” The court, having overruled a motion for a new trial as to Tobin, sentenced him to four years' imprisonment in the penitentiary, and this writ of error was brought to reverse the judgment.

As the verdict reads, the jury found the two defendants guilty of each one of the three offences charged in the indictment. But this could not properly have been, under the evidence in the case. It is an inconsistency that where there is but a single transaction involved, as the proof shows to have been here, the same person could have been guilty of both of the offences of robbery and of having received goods obtained by robbery, knowing them to have been so obtained. The objection is not from the joinder of counts,--they are well enough joined. ( Bennett v. People, 96 Ill. 602; Lyons v. People, 68 Id. 271; Hiner v. People, 34 Id. 297.) The difficulty is brought into the case by the evidence. The three offences charged in the indictment are not comprised in robbery. Larceny might be embraced in it, but it is otherwise with receiving property obtained by robbery. This imports a distinct and subsequent transaction, and involving another person, the receiver receiving the property from some other person who had previously obtained it by robbery. The statute implies this, in providing that in the prosecution for this offence it shall not be necessary to aver or to prove that the person who obtained the property by robbery has been convicted. As, then, the prisoner could not, under the evidence in this case, have been guilty of both these offences, of which one did the jury find him guilty? The proof renders this uncertain.

The prosecuting witness testified that on the night of the 10th day of May, 1882, about half-past ten o'clock, he was, in the street in...