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People v. Kessler

MAY 15, 1973.




APPEAL from the Circuit Court of Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding.


Rudolph Louis Kessler, the defendant, was convicted of one count of burglary and two counts of attempt murder after a jury trial. He appeals from the convictions and the concurrent sentences imposed of 2-5 years for burglary and 5-15 on each count of the attempt murder. He claims that the counts of the information charging attempt failed to charge an offense; that he was not proven guilty beyond a reasonable doubt either of burglary or of the attempts; and that trial errors deprived him of a fair trial.

From our review of the record, we first conclude that the evidence was sufficient to prove the defendant guilty beyond a reasonable doubt of burglary, charged on accountability principles as defined in Ill. Rev. Stat. 1971, ch. 38, sec. 5-2(c).

Abney and Mass. were the actual perpetrators of the burglary in the course of which the proprietor, Louis Cotti, who came upon them in the building, was shot. Abney and Mass. were discovered in the Anchor Tap in Rockford about 1:30 A.M. on March 6, 1971. Mass. wounded Cotti in the neck. Mass. and Abney then fled and were observed in a 1962 white Chevrolet by a state trooper, Max L. Clevenger, who answered a report of the incident. After a high speed chase, Mass. and Abney stopped their car and ran toward a corn field. Clevenger chased them and one of the individuals fired at him several times before being captured. The defendant Kessler then was found in the front seat of the white Chevrolet where he had remained when Abney and Mass. ran from the car.

At the scene, the defendant stated to the officers that he was a hitchhiker and did not know what was going on. However, later defendant gave a voluntary statement which was introduced into evidence, in which he acknowledged that he was not a hitchhiker. He stated that he had been in Chicago the day prior to the burglary to see Mass. and was then introduced by Mass. to Abney; that he heard Mass. ask a third person about getting a pistol, and the response that the individual could not get a pistol but would deliver a sawed-off shotgun to them that evening. Defendant stated that later in the day Mass. said he needed a screwdriver and the three of them went to Sears where Mass. purchased a small screwdriver and Abney "shoplifted" a larger one. Defendant stated that he heard Mass. and Abney discuss disposing of stolen merchandise. He also heard Mass. say that he needed $1800 to pay for his car. Defendant said that he told Mass. that he once worked at the Anchor Tap in Rockford and had seen the receipts but that they "wouldn't get $1800 there."

The three left Chicago at 8:00 P.M., according to defendant's statement, and arrived in Rockford at approximately 10:30 P.M. After visiting several taverns, Mass. said he wanted to go to the Anchor Tap and defendant directed him there. Mass. and Abney went inside and had a drink but defendant stayed outside. The three later went to another tavern and returned to the Anchor Tap just after closing. They parked the car and Mass. and Abney went around to the back of the building. Defendant stated that he remained in the front seat of the car and that shortly thereafter Mass. and Abney jumped back in the car and raced away. Defendant said that he asked to be let out of the car and was refused.

Cotti testified that he had noticed the white Chevrolet when he passed the tavern after closing and that he let himself and another individual into the tavern through the rear door, discovering Mass. and Abney behind the bar. He was then shot and wounded. Although he passed within 15 or 20 feet of the Chevrolet before he went in he did not observe any individual in the car when he looked toward the automobile. He at no time saw defendant in or around the building. He testified that the gun used in the shooting was his own gun taken in the tavern.

• 1 Defendant, who did not testify, claims that the evidence fails to contradict his statement that he was not connected with the activities of Mass. and Abney and that therefore the State did not prove accountability beyond a reasonable doubt. However, there was evidence from which the jury could reasonably conclude that Mass, Abney and the defendant had agreed to the burglary of the Anchor Tap and that the defendant had assisted in the burglary, even though there was no direct evidence that he acted as a lookout. He was therefore responsible for the acts in furtherance of the plan by Mass. and Abney and it was not necessary to prove that Kessler himself had the intent to enter the building. See People v. Nowak (1970), 45 Ill.2d 158, 168; People v. Rybka (1959), 16 Ill.2d 394, 405; People v. Brendeland (1957), 10 Ill.2d 469, 471, 472.

The appeal from the convictions under the two counts of attempt murder presents a different, and we think, a more difficult question. Mass, who did the shooting, clearly had the specific intention to commit the attempt murders. Abney who was inside the tavern with Mass. could possibly also have been shown to have shared an intent to kill by aiding and abetting Mass. However, on this record there is no proof of conduct by the defendant Kessler which the jury could consider in connection with other circumstances to reach the conclusion that he assented to the commission of the crimes of attempt murder or was aiding and abetting them. The information under which the defendant was charged alleged that each of the attempts were "with intent to commit the offense of murder * * *". However, consistent with the evidence the entire theory of the State has been that the intent which Mass. and Abney possessed must be implied to be the intent of Kessler, presumably since there was no proof that Kessler had such specific intent.

• 2 Since defendant Kessler could not be liable under the "felony-murder" doctrine, which we have held does not extend to attempts (see People v. Farnsworth (1973), 10 Ill. App.3d 844, *fn1 People v. Davis (1972), 6 Ill. App.3d 622, 627-628; see also 1 Wharton, Criminal Law and Procedure (12th ed. 1957), sec. 73, Attempt, pp. 155-6.), the question before us is whether Kessler can be found guilty on accountability principles without proof of his specific intent to commit the attempt murders perpetrated by Mass. and Abney.

Section 5-2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 5-2) pertinently provides:

"Sec. 5-2. A person is legally accountable for the conduct of another when:

(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. * * *."

Under the plain language of the statute, one cannot be held accountable unless found to have the specific intent to commit or aid in the commission of the substantive crime for which he is being held accountable. See Smith-Hurd Annotated, ch. 38, sec. 5-2, Committee Comments; People v. Tillman (1971), 130 Ill. App.2d 743, 750; People v. ...

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