Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Fred G. Suria, Jr., Judge, presiding.
MR. JUSTICE GOLDENHERSH DELIVERED THE OPINION OF THE COURT:
In a bench trial in the circuit court of Cook County, defendant, Joseph White, was found guilty of armed robbery and sentenced to the penitentiary. The appellate court affirmed (40 Ill. App.3d 455), and we allowed defendant's petition for leave to appeal.
Defendant's only defense to the armed robbery charge was that he was so intoxicated that he could not form the requisite intent to commit the offense. The circuit court admitted evidence of his intoxication and found that he was intoxicated at the time the offense was committed, but held that his voluntary intoxication was no defense to the crime. The appellate court, in affirming, said: "[I]t long has been held in Illinois that intent is not an element of the crime of robbery. [Citations.] Since intent is not a requisite element of the offense, Illinois courts> have specifically held that voluntary intoxication is not a defense to robbery. [Citations.]" 40 Ill. App.3d 455, 457.
Defendant contends that the appellate court erred in holding that intent is not an element of the offense of robbery and that voluntary intoxication cannot be a defense to armed robbery. The People contend that "voluntary intoxication is not a defense to armed robbery, a general intent offense which requires neither the charge nor the proof of intent."
An examination of the authorities cited by the parties shows, unfortunately, that there are cases decided prior to the enactment of the Criminal Code of 1961 which appear to hold both that specific intent was, and that it was not, an element of the crime of robbery. A careful examination of the cases and the relevant statutes will show how this confusion developed.
Article 18 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 18-1 et seq.) provides:
"Sec. 18-1. Robbery. (a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.
Sec. 18-2. Armed Robbery. (a) A person commits armed robbery when he violates Section 18-1 while armed with a dangerous weapon."
The Committee Comments as to section 18-1 state that "This section codifies the law in Illinois on robbery and retains the same penalty. No change is intended. * * * No intent element is stated as the taking by force or threat of force is the gist of the offense and no intent need be charged. (See People v. Emerling, 341 Ill. 424, 173 N.E. 474 (1930).)" (Ill. Ann. Stat., ch. 38, par. 18-1, Committee Comments, at 213) (Smith-Hurd 1970).) Concerning section 18-2, the Committee Comments state that "No change is made in this offense except as is involved in robbery as defined in subsection (a)." Committee Comments, at 256.
As originally enacted (Rev. Laws 1827, at 134, sec. 61) and until the effective date of the Criminal Code of 1961 (see Ill. Rev. Stat. 1961, ch. 38, par. 501), section 246 of the prior criminal code defined robbery as "the felonious and violent taking of money, goods or other valuable thing, from the person of another by force or intimidation."
The earlier decisions of this court held that a necessary element of both the crimes of robbery and larceny was the specific intent to steal and that the only distinction between larceny from the person and robbery was the force or intimidation required to constitute robbery. In Bartholomew v. People, 104 Ill. 601, where the defense was intoxication, it was held that to constitute the crime of larceny the specific intent to steal must accompany the act of taking the property. In Burke v. People, 148 Ill. 70, the defendant, who without the victim's immediate knowledge took a pocketbook containing money from his inside vest pocket, was convicted of robbery. The court stated that the "gist of the offense [robbery] is * * * force or intimidation." 148 Ill. 70, 74.) In the absence of force or intimidation the crime would have been larceny, but the court found that there was sufficient evidence of force to constitute robbery. The factual situation in Hall v. People, 171 Ill. 540, was very similar to that in Burke, except that the victim was drunk, and the defendant unbuttoned his vest and took the pocketbook from his inside vest pocket. The court stated:
"As distinguished from larceny from the person, the gist of the offense is the force or intimidation, and the taking from the person, against his will, a thing of value belonging to the person assaulted. (Burke v. People, 148 Ill. 70.) The only difference between private stealing from the person of another, and robbery, lies in the force or intimidation used. * * *
* * * We are disposed to agree with the views of counsel for plaintiff in error that the evidence showed no more force than the mere physical effort of taking the pocket-book from Hubbell's person and transferring it to Hall. If that is robbery, then no practical distinction between that crime and larceny from the person exists. The two crimes approach each other so closely that cases may arise where it may be doubtful upon which side of the line they should fall." 171 Ill. 540, 542-44.)
See also Steward v. People, 224 Ill. 434; People v. Campbell, 234 Ill. 391; People v. Ryan, 239 Ill. 410; People v. Jones, 290 Ill. 603; People v. O'Connor, 310 Ill. 403; People v. Williams, 23 Ill.2d 295.
In Garrity v. People, 70 Ill. 83, and People v. McLaughlin, 337 Ill. 259, the defendants were charged with assault with intent to rob. Although in each case the evidence showed that the defendant physically attacked the victim, there was no evidence of intent to steal anything of value, and the convictions were reversed. In People v. Ware, 23 Ill.2d 59, the defendant, an off-duty policeman armed with a pistol, took a cigarette lighter from the complaining witness during an investigation and inadvertently failed to return it. In reversing the conviction the court said:
"The crime of robbery is defined by the Criminal Code as `the felonious and violent taking of money, goods or other valuable thing, from the person of another by force or intimidation.' (Ill. Rev. Stat. 1959, chap. 38, par. 501, emphasis supplied.) The word `felonious' has at times been defined as meaning `malicious,' `malignant,' or `wrongful' and when used in a statute has been said to be synonymous with `criminal.' (See: 36A C.J.S., pp. 254-255.) This court has said that an act done feloniously is done with the deliberate purpose of committing a crime, (People v. Falkovitch, 280 Ill. 321, 324,) and that as employed in our criminal laws the term felonious has its `ordinary meaning' of manifesting a criminal purpose. (People v. Connors, 301 Ill. 112, 116.) As the term `felonious' is used in the robbery statute, therefore, it would appear to be a necessary element of the crime that the taking was with a criminal purpose. Cf. People v. Erlandson, 360 Ill. 214." 23 Ill.2d 59, 62.
The confusion concerning intent as an element of robbery appears to have arisen as the result of an amendment to the robbery statute. Following its amendment in 1874, until 1919, the robbery statute provided:
"Robbery is the felonious and violent taking of money, goods or other valuable thing, from the person of another by force or intimidation. Every person guilty of robbery shall be imprisoned in the penitentiary not less than one year nor more than fourteen years; or if he is armed with a dangerous weapon, with intent, if resisted, to kill or maim such person, or being so armed, he wounds or strikes him, or if he has any confederate present so armed, to aid or abet him, he may be imprisoned for any term of years or for life." Rev. Stat. 1874, ch. 38, par. 246.
In McKevitt v. People, 208 Ill. 460, 471, the defendant was charged with armed robbery in the language of the statute. The jury found him "guilty of robbery in manner and form as charged in the indictment." The court held that the defendant was guilty of robbery and not armed robbery because the jury had not specified in its verdict that it found, as required by the statute, that defendant was "armed with a dangerous weapon, with intent, if resisted, to kill or maim such person" or that he had a "confederate present so armed, to aid or abet him."
In 1919 the statute was amended to provide:
"Robbery is the felonious and violent taking of money, goods or other valuable thing, from the person of another by force or intimidation. Every person guilty of robbery shall be imprisoned in the penitentiary not less than three years nor more than twenty years; or if he is armed with a dangerous weapon, or being so armed, he wounds or strikes him, or if he has any confederate present so armed, to aid or abet him, he shall be imprisoned in the penitentiary for any term of years not less than ten years or for life." Laws of 1919, at 431.
In People v. Hildebrand, 307 Ill. 544, 555, the defendants were charged with robbery and the indictment alleged that "at the time and place of the commission of the crime, [they] were armed with a dangerous weapon, to-wit, a revolver. The jury found each of the plaintiffs in error guilty of robbery in manner and form as charged in the indictment." Citing McKevitt, the defendants argued that they were only guilty of robbery and not armed robbery because the jury had not specifically found they were armed with a dangerous weapon. In rejecting this contention the court stated:
"It was held in that case that the verdict `guilty in manner and form as charged in the indictment,' did not include a finding of the specific intent with which it was charged the defendant was animated while armed with the revolver. The statute under which the defendant in that case was convicted of robbery provided that if the person convicted was armed with a dangerous weapon, with intent, if resisted, to kill or maim the victim, he should be subject to the greater penalty. In 1919 this statute was amended so as to provide that if the defendant is armed with a dangerous weapon he shall be imprisoned in the penitentiary for any term of years not less than ten or for life. (Laws of 1919, p. 427.) No question of intent is involved. It is not required to be charged or proved. The mere fact of committing a robbery while armed with a dangerous weapon incurs the liability to the higher punishment." (Emphasis added.) 307 Ill. 544, 555.)
As noted by the court the 1919 amendment deleted the "with intent, if resisted, to kill or maim such person" and it is clear that it was to this second specific intent that the court referred when it said "No question of intent is involved. It is not required to be charged or proved."
In People v. Emerling, 341 Ill. 424, the defendant was convicted of armed robbery and on appeal contended that the circuit court gave an erroneous instruction on the intent alleged in the indictment. Citing Hildebrand, the court stated: "In the present case no question of intent is involved. It was not required to be charged or proved." 341 Ill. 424, 428-29.) It was this case (Emerling) which was cited in the Committee Comments (Ill. Ann. Stat., ch. 38, par. 18-1, at 213 (Smith-Hurd 1970)) for the proposition that "Taking by force or threat of force is the gist of the offense and no intent need be charged." It is true that this court had previously made that statement, and the implication of the statement is that where there is a taking of something of value by force or intimidation from the person of another the intent is immaterial. The holding in People v. Ware, 23 Ill.2d 59, however, shows this was clearly erroneous. The statement that force or intimidation is the gist of the offense of robbery first appeared in Burke v. People, 148 Ill. 70, and Hall v. People, 171 Ill. 540, and cases following those two decisions (see, e.g., People v. Cassidy, 394 Ill. 245, 246), apparently for the purpose of explaining that force or intimidation was the element of the crime of robbery which ...