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People v. Townsend

OPINION FILED JUNE 25, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

KENNETH TOWNSEND (IMPLEADED), DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding.

MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted of armed robbery pursuant to section 18-2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 18-2) and sentenced to a term of 10 to 30 years. On appeal he contends that: (1) the court should have given an instruction on unarmed robbery, and (2) the sentence imposed was excessive.

At trial the following evidence pertinent to this appeal was adduced.

For the State

Timothy De Smet

On November 29, 1973, at 2:20 a.m. he left work and walked toward the CTA station at Kimball and Belmont Avenues. The area was well lighted. As he crossed Belmont, he was approached by defendant. When they were face to face defendant requested a cigarette. Defendant's right hand came up from underneath his jacket and there was a "sawed-off shotgun" pointed at him. The shotgun had two barrels, one on top of the other, approximately 18 inches long, with tape wrapped around the end of the barrels. Defendant demanded his wallet.

Thereafter, Clinton White approached them from behind and told defendant to "get him in the car." He was pushed over to the back seat of a four door 1963 light blue Plymouth in which a third unidentified man was waiting. Defendant sat down next to him, poked him with the gun and told him to put his hands down. Again, defendant asked for his wallet, however, when he reached for it defendant poked him with the gun, told him not to move his hands, and took the wallet from his pocket. The shotgun was lying on defendant's lap pointed at him. Defendant proceeded to search his pockets, dropping the items he found onto the front seat for White to examine. By this time the car was moving. White, who was driving, turned around, punched him and called him a "honkeyassed square." Some items were returned; others including his payroll check, identification, and Sears charge card were kept. His belt, shoes, and jacket were also taken. They drove a short distance stopping in an alley. The lighting conditions along the whole route were very good. Defendant and White both warned him to forget everything that happened or they would kill him. White punched him again and then released him. He immediately contacted the police. He also notified Sears that his charge card was stolen.

During cross-examination he estimated the gun to be 16 gauge. Although he had seen shotguns before, he admitted he had never seen a sawed-off shotgun prior to this time. Further, he acknowledged he did not see a handle or trigger mechanism when defendant first confronted him on the street.

Mary Ann De Rosa

She is a salesperson in the jewelry department at Sears. Defendant and White attempted to purchase $177.40 worth of jewelry at noon on the day of the robbery using De Smet's charge card. Defendant signed the sales slip "Timothy De Smet." Upon checking the plate number she discovered the card was stolen. She then notified the security department.

James Contino

He is a security guard at Sears and also a Chicago Police Officer. Answering a call from Mary Ann De Rosa, he went to the jewelry department and arrested defendant and White for using De Smet's credit card.

Irving Rubinberg

He is the manager of the Kedzie-Lawrence Currency Exchange. Defendant cashed De Smet's paycheck for $123.37 at his exchange the morning of the robbery. He filled out a check cashing identification card for ...


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