Appeal from the Circuit Court of Coles County; the Hon. JOHN
F. SPIVEY, Judge, presiding. Affirmed in part and reversed in
After a jury trial, the defendant was found guilty of conspiracy to escape and aiding escape. An indeterminate sentence of 1-4 years was imposed on the conspiracy charge and a definite sentence of one year "to the Illinois State Penitentiary" on the aiding to escape charge, both sentences to run concurrently. The defendant, by this appeal, urges errors in the circuit court and contends, as a matter of law, that conspiracy is the inchoate offense of aiding escape and that he could not have been convicted both of the inchoate and principal offense. Error is also assigned with reference to the Instructions given and refused and the failure of the court to declare a mistrial when, during the trial, certain exhibits that had been received into evidence disappeared. It is also contended that there was a failure to prove the defendant guilty beyond a reasonable doubt.
The undisputed facts in this case show that one Robert Webb, a co-defendant in this proceeding below, was found to have eight hacksaw blades in his possession while in the Coles County jail. These blades were found the day after Webb had appeared at his arraignment on a felony charge for which he was then being held. Webb's mother and her sister, Bertha Jackson, were present at the arraignment, together with the defendant Edwards. There is dispute as to the rest of the evidence.
The defendant testified that he brought Webb's mother and aunt to the arraignment at their request. He stated that, after the arraignment, Webb sat down with the group but that there was no conversation other than that relating to the "bad chow" at the jail. The defendant testified that he did not give anything to Webb and did not see anyone else give anything to Webb.
Mrs. Lois Webb testified that she gave her son several candy bars and further stated that she saw the defendant Edwards hand her son two or three cellophane envelopes on the way back to the jail. This testimony was corroborated by Bertha Jackson. Mrs. Webb was impeached by a sworn statement relating that the defendant had not given her son anything.
[1-5] Webb testified that nothing was said between the defendant and himself about the hacksaw blades or escape. He did testify, however, that the defendant handed him eight hacksaw blades while Webb was returning to jail. He stated that he denied the defendant gave him the blades until he was called to trial on the original charge for which he was being held. Thereafter the witness Webb acknowledged writing a letter to the State's Attorney stating that his earlier statement was false. One William Webb, a cellmate of Robert's in the Coles County jail, testified that he saw Robert remove the hacksaw blades and the candy bars from his pockets and saw Robert hide the blades under the mattress of his bed. Chapter 38, § 8-5, Ill Rev Stats 1965, provides that no person shall be convicted of both the inchoate and principal offense. The principal offense of conspiracy to escape is escape. The defendant could not be convicted of escape because he was not in custody and that offense is so defined (c 38, § 31-6, Ill Rev Stats 1965). Here the defendant was not charged with the principal offense of escape but with conspiracy to escape and aiding in escape. These are distinct and separate offenses as defined by statute. One not in custody, and thus incapable of the offense of escape, may, nevertheless, be convicted of conspiracy to escape. The fact that one is legally incapable of committing the substantive offense does not exclude his conspiracy conviction if one conspirator has capacity to commit the offense. 16 Am Jur2d, Conspiracy, § 17, at p 136.
Turning now to the defendant's assertion that the proof is insufficient to support either charge, we cannot agree. The testimony, as related, was the subject of impeachment and inconsistency. From that testimony, however, the jury was warranted in concluding that the defendant did pass the hacksaw blades to Webb and thus conveyed something for use in escaping, as that phrase is used in defining the offense of aiding in escape.
[7-9] As to the proof of the conspiracy, it is well-settled that the gist of the offense is the unlawful combination or agreement. People v. Nathanson, 389 Ill. 311, 59 N.E.2d 677 (1945); People v. Walter, 23 Ill. App.2d 129, 161 N.E.2d 707 (1959). The acts subsequent to the alleged conspiracy may inferentially establish the agreement. People v. Brinn, 32 Ill.2d 232, 204 N.E.2d 724 (1965). It has been held that no precise written or spoken words establishing the agreement need be proven to establish the conspiracy. People v. Fedele, 366 Ill. 618, 10 N.E.2d 346 (1937); People v. Walczak, 315 Ill. 49, 145 N.E. 660 (1924).
In this case, the evidence is undisputed that the defendant did not speak to Webb about the hacksaw blades or about any plan of escape. Failure of proof of a verbal or written communication is not fatal, however, if an understanding or concert in will can be established indicating a common design on the part of the accused and others to act in pursuance of a common criminal purpose. People v. Brinn, 32 Ill.2d 232, 204 N.E.2d 724 (1965), and cases there cited. The evidence of the concealed passing of the hacksaw blades by the defendant, together with the acknowledged acceptance and concealment by Webb, is sufficient to inferentially establish the unlawful concert in mind between Webb and the defendant. Here the conspiracy is established admittedly by inference, but conclusively, and the jury was warranted in finding guilt.
The defendant argues that a mistrial should have been declared because of the disappearance of the hacksaw blades from the custody of the court after they had been marked and admitted into evidence. The cases in support of the defendant's contention relate to reversals in civil cases where a litigant was denied the right to submit certain exhibits to the jury. The court notes that these exhibits were introduced by the State over the defendant's objection; therefore, the defendant is not in a position to claim prejudice because of the disappearance of exhibits he considered damaging to his case. There being no showing of prejudice, we must conclude that the trial court was correct in denying the defendant's motion for a mistrial.
The defendant raises the court's failure to give defendant's Instructions 2, 3, 4 and 6 as a basis for a new trial. Instructions 2 and 3, tendered by the defendant, relate to reasonable doubt and presumption of innocence. While these instructions are not inaccurate or improper statements of the law, they state only the defendant's side of these rules. We find these rules of law to be fairly and adequately presented in the People's Instructions 9, 19 and 20. The defendant is not entitled to repetitious instructions which lend undue emphasis to a particular element of the case. People v. White, 308 Ill. 210, 139 NE 58 (1923).
Defendant's Instruction 4 relates to the testimony of the defendant and states that:
"The Court instructs the Jury that you have no right to disregard the testimony of the defendant through mere caprice or because he is the defendant. ...