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People v. Kessler





Appeal from the Appellate Court for the Second District; heard in that court on appeal from the Circuit Court of Winnebago County; the Hon. Albert S. O'Sullivan, Judge, presiding.


In a jury trial in the circuit court of Winnebago County, defendant, Rudolph Louis Kessler, was convicted on one count of burglary and two counts of attempted murder. The appellate court affirmed the burglary conviction and reversed the attempted-murder convictions (11 Ill. App.3d 321), and we allowed the People's petition for leave to appeal. The facts are stated in the opinion of the appellate court and will be restated here only to the extent necessary to more fully delineate the issues. Defendant waited in an automobile outside a tavern while his two unarmed companions entered the building to commit the burglary. While inside the tavern, they were surprised by the owner, and one of the burglars shot and wounded him with a gun taken during the burglary. Later, while defendant's companions were fleeing on foot, one of them fired a shot at a pursuing police officer. At that time defendant was sitting in the automobile.

The evidence established that on the day before the burglary in question, the defendant went to Chicago to see Ronald Mass, who introduced him to Rodney Abney. The three men went to a restaurant and drank coffee, where the defendant heard Mass. ask another person about obtaining a pistol. The person stated he could not obtain a pistol, but would get a sawed-off shotgun by 8 o'clock that evening.

Later Kessler, Mass. and Abney went to a store where Mass. purchased a screwdriver while Abney simultaneously shoplifted one. Mass. indicated that he had to "put his hands on" $1800. Kessler told Mass. that he recalled seeing quantities of cash at the Anchor Tap, where he had previously been employed.

The three men left Chicago about 8 p.m. and arrived at the Anchor Tap in Rockford about 10:30 p.m. Mass. and Abney went into the Tap, had a drink, used the bathroom facilities through which they later gained access to the building, and then returned to Kessler, who had remained in the car. They then went to another bar for a drink and then returned to the Anchor Tap.

Just as they parked the car there, Louis Cotti, a co-owner of the Tap, came out to go home. He drove past the parked car as he left and then returned. He testified that he looked around, saw no one at the front of the tavern, then went to the rear of the building, entered the rear door and saw Abney and Mass. up at the bar. He then left the building by the rear door and went across the street to a restaurant to call the police and to get help. Thereupon, Cotti and another man from the restaurant returned to the Tap and entered the rear door. Mass, who had found a pistol at the bar, then shot Cotti in the neck. Mass. and Abney then fled from the bar and entered the car where Kessler sat. Mass. drove the car from the Tap and was pursued by the police. Mass. was forced off the road and into a ditch. Mass. and Abney ran from the car. Kessler remained seated. Abney started shooting at the police, who had arrived at the scene. After an exchange of gunfire, one police officer ordered the defendant from the car and frisked him. As the defendant climbed from the car, and before being advised of his rights, the defendant said, "I don't know what's going on all the shooting. I was just hitchhiking." The defendant was then advised of his rights and was taken to Rockford in a squad car where he later at the police station made an inculpatory oral and a written statement.

In reversing the attempted-murder convictions, the appellate court held that "The application of the `common design' principle is not justified by the language of section 5-2 to hold a defendant accountable for crimes committed by an accomplice which the defendant was not shown to have intended." (11 Ill. App.3d 321, 327.) And, at page 325, the court stated: "* * * 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." The court further stated that "except in felony-murder cases, the Code does not impose liability on accountability principles for all consequences and further crimes which could flow from participation in the initial criminal venture, absent a specific intent by the accomplice being held accountable to commit, or aid and abet the commission of, such further crimes." 11 Ill. App.3d at 325-326.

The People argue "that a person is responsible for all criminal violations actually committed by another if he assists another in the commission of a single criminal violation," and that "if the legislature had intended to limit accomplice liability only to further criminal acts which were specifically intended the word `conduct' would not have been included in the language of section 5-2."

Sections 5-1 and 5-2 of the Criminal Code provide in pertinent part:

"Sec. 5-1. Accountability for conduct of another.

A person is responsible for conduct which is an element of an offense if the conduct is either that of the person himself, or that of another and he is legally accountable for such conduct as provided in Section 5-2 or both." (Emphasis added.) Ill. Rev. Stat. 1971, ch. 38, par. 5-1.

"Sec. 5-2. When Accountability Exists.

A person is legally accountable for the conduct of ...

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