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People v. Smith

JANUARY 3, 1966.




Appeal from the Circuit Court of the 17th Judicial Circuit, Winnebago County; the Hon. ARTHUR V. ESSINGTON, Judge, presiding. Judgment affirmed.


The defendant, Conrad S. Smith, was indicted for armed robbery, tried by a jury, found guilty and sentenced to the Illinois State Penitentiary for a term of not less than five nor more than twenty years.

On the morning of June 10, 1964, the defendant and a companion entered the Domino Liquor Store in Rockford, Illinois. One Ann Ginestra, an employee of the liquor store, and one Patrick Feeley, a wholesale liquor salesman, were the only ones in the store at the time.

Upon entering the store, one of the pair approached Ann Ginestra and Patrick Feeley, and while holding a gun, announced that it was a stickup. Ginestra was then ordered to the safe to get the money and Feeley, after being relieved of his own money, was ordered into a cooler. In the meantime, Ann Ginestra removed a cigar box from the safe containing both coin and currency and placed it, together with money from the cash register, in a paper sack and gave it to one of the pair as directed.

As the pair fled, a description was obtained of the getaway car and immediately telephoned to the police. Within a matter of minutes the car was spotted by a patrol car a few blocks from the liquor store, pursued, and the defendant and his companion arrested. The arresting officers found a revolver, matching the description of that one used in the robbery, and a cigar box containing money in a paper sack under the front seat of the car.

The police questioned the defendant at the police station and at 1:00 p.m., one hour after his arrest, he signed a confession.

The defendant appeals assigning numerous alleged errors which we shall consider in the order presented.

Defendant complains that the indictment herein is fatally defective in that it fails to contain a recitation, in the terminology of section 716 of the Criminal Code of 1874, that the grand jurors "chosen, selected and sworn, in and for the County of ____, in the name and by the authority of the people of the State of Illinois, upon their oaths, present." This contention is predicated upon a section of the old Criminal Code which was repealed as of January 1, 1964, and supplanted by section 111-3 of the Code of Criminal Procedure of 1963; and the latter section contains no requirement that the commencement of an indictment be in any particular form or contain any particular language. It is in terms of section 111-3 that the indictment before us, returned on June 30, 1964, must be examined. Additionally, even in considering the sufficiency of indictments under section 716 the courts have held that the caption or commencement is not a part of an indictment and has no bearing upon the sufficiency of the charge. The People v. Shaw, 300 Ill. 451, 452, 133 N.E. 208 (1921). It is the body of the indictment rather than the caption or commencement which controls. The People v. Sellers, 30 Ill.2d 221, 223, 196 N.E.2d 481 (1964).

The defendant next contends that the indictment herein is fatally defective in that it does not state an offense, and, particularly, that it does not comply with the provisions of section 111-3(a)(3), (4) of the Code of Criminal Procedure of 1963.

Considering first the contention that the indictment does not set forth the nature and elements of the offense charged, a mere reading of the indictment discloses that it charges "That on the 10th day of June, 1964, in the County of Winnebago and State of Illinois . . .," the defendant, "committed the offense of Armed Robbery, in that (he), by threatening the imminent use of force or by the use of force and while armed with a dangerous weapon, to-wit: a certain revolver, took certain money of the legal money and currency of the United States of America from the person or presence of Ann Ginestra, in violation of Paragraph 18-2, Chapter 38, Illinois Revised Statutes." It impossible for us to conceive how the nature and elements of the offense charged could have been more properly and fully set forth; each and every element of armed robbery is properly stated in the indictment. The contention that the indictment is faulty in that it did not set forth or describe the value of the property taken is without merit as value is not an element of robbery, provided the property has some value as "currency of the United States of America" surely has. The People v. Flaherty, 396 Ill. 304, 311, 71 N.E.2d 779 (1947); People v. Smith, 63 Ill. App.2d 369 (2nd Dist, 1965), 211 N.E.2d 456, 462.

The contention that the indictment is fatally defective for not stating the time and place of the offense in accordance with section 111-3(a)(4) of the Code of Criminal Procedure, 1963, has recently been answered by our Supreme Court. In The People v. Blanchett, 33 Ill.2d 527, 212 N.E.2d 97, an information, almost identical to the indictment in the case at bar, was held sufficient to allege the offense of armed robbery.

[6-8] Error is assigned due to the alleged prejudicial comments of the trial judge. The only thing we differ with the defendant about in relation to his allegation concerning these remarks and comments is his conclusion. Thus, there is no question that a defendant is entitled to a fair trial, that it is the trial judge's duty to see that the defendant has such a trial, and that no remark or comment should be made by the trial judge to cause prejudice or hostility towards the defendant. There is, however, likewise no question that counsel by his conduct or otherwise cannot elicit an admonition from the trial judge and then hope to hide behind it as error on review. People v. Smith, supra, 459.

We have carefully read the record before us and find no remark or comment that we feel could have created any prejudice or hostility in the minds of the jury against the defendant. We further find no comment or remark directed at the defendant himself that could possibly be construed as ...

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