APPEAL from the Circuit Court of Cook County; the Hon.
ALEXANDER J. NAPOLI, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Robert Keagle, hereafter defendant, is presently serving a sentence of 25 years to life for armed robbery. His petition for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1965, chap. 38, par. 122-1 et seq.) was denied by the circuit court of Cook County, and he has appealed. He contends that his conviction must be reversed because it was obtained by twice putting him in jeopardy for the same offense, in violation of his rights under the constitutions of this State and of the United States.
To determine this issue a lengthy course of litigation must be reviewed. In 1952 the defendant, William Seppi, and Andrew Mikka were jointly indicted. The first count of the indictment charged robbery while armed with a dangerous weapon, the second count made the same charge and also charged the defendant as an habitual criminal, and the third count charged plain robbery. At the close of this trial the judge instructed the jury:
"In this case the indictment charges that a robbery has been committed by the defendants while armed with a dangerous weapon, to-wit: PISTOLS. If the jury believe beyond all reasonable doubt that in fact a robbery has been committed by the defendants, and that the defendants are guilty, in manner and form as charged in the indictment, it then becomes necessary to further consider the charge in the indictment that the defendants were armed with a dangerous weapon, to-wit: PISTOLS.
"If the jury find from the evidence, beyond a reasonable doubt, that the defendants were so armed with a dangerous weapon, to-wit: PISTOLS, they should say so in their verdict."
Three verdict forms were submitted to the jury. The first was for an acquittal. The second was as follows:
"We, the jury, find the defendant, [naming him], guilty of robbery, in manner and form as charged in the indictment.
"And we further find from the evidence that at the time of the commission of said robbery, the defendant was armed with a dangerous weapon, to-wit: a pistol.
"And we further find from the evidence that the said defendant, [naming him], is now about the age of ____ years."
The third form, which was returned by the jury, was as follows:
"We, the jury, find the defendant, Robert Keagle, guilty of the crime of Robbery in manner and form as charged in the indictment. And we further find from the evidence that the defendant under the name of Robert Keagle has been heretofore convicted of Robbery. And we further find from the evidence that the said defendant, Robert Keagle, is now about the age of 39 years."
The jury returned the first two forms unused, and signed and returned the third form. Judgment was entered on that verdict and the defendant was sentenced to life imprisonment.
The defendant sued out a writ of error from this court. The Attorney General confessed error, and on his motion this court reversed, and remanded the cause for a new trial "with directions to strike the portion of the indictment, (the second count) referring to the previous offense of robbery, to require a plea to the indictment to the extent of the charge of armed robbery, and for a new trial." (People v. Keagle, No. 32913, September Term, 1953 (not reported).) The reversal was based upon the fact that, although the evidence showed that the defendant had previously been convicted of robbery and imprisoned in the penitentiary, the habitual criminal portion of the indictment omitted the allegation that the defendant had actually been imprisoned in the penitentiary upon the previous offense. Cf. People v. Mikka, 7 Ill.2d 454, 463.
Upon remand the attorney for the defendant interposed a plea in bar of autrefois acquit to the charge of armed robbery, on the ground that the original verdict convicted the defendant of plain robbery, and amounted to an acquittal of the greater offense of armed robbery. The trial court, following the mandate of this court, overruled the plea in bar. The defendant was tried and convicted of armed robbery, and ...