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People v. Cowherd





APPEAL from the Circuit Court of Macon County; the Hon. RODNEY A. SCOTT, Judge, presiding. MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Defendant appeals his conviction upon jury verdict of the offense of armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2), and the sentence of 10 to 30 years imposed.

Upon appeal defendant argues that it was error for the court (1) to fail to instruct sua sponte that an intent to permanently deprive the victims of property is an essential element of the offense; (2) that appointed counsel representing defendant and Martha Tvo, also charged for this offense, could not supply effective representation of the fact by reason of a conflict of interest between the defendants; (3) that the trial court imposed a more severe sentence because of a stated belief that defendant committed perjury, and that defendant's more severe sentence was disparate in comparison with those co-defendants who pleaded guilty.

The robbery of a jewelry store in Decatur, Illinois, occurred in the late afternoon of February 3, 1977. Three of the several employees who were held by the robbers testified for the prosecution and identified defendant as being the leader of the three robbers who entered the store and testified to his threats to shoot one or more of the persons present if gems and money were not produced. Jo Don Tvo testified for the prosecution that he planned the robbery and waited outside the store in an automobile during the robbery. He testified that he instructed the defendant and two others as to the plan for carrying out the robbery; that he received the loot from defendant and disposed of it through a fence, and that he, Tvo, paid defendant $6800 as his share of the proceeds. Defendant testified that he was in Indianapolis on the date and at the time in evidence.

This trial commenced on September 28, 1977. The opinion in People v. White (1977), 67 Ill.2d 107, 365 N.E.2d 337, was published on June 1, 1977. In White, defendant asserted at a bench trial that he was so intoxicated that he could not form an intent to commit the offense of armed robbery. The trial court admitted evidence of defendant's intoxication, but held that voluntary intoxication was not a defense to the crime. The appellate court held that "intent is not an element of the crime of robbery." 67 Ill.2d 107, 109, 365 N.E.2d 337, 338.

The supreme court examined the history of the case and statutory law, and stated:

"We hold that the appellate court erred and that the intent to deprive the person from whom the property is taken permanently of its use or benefit is an element of the crimes of robbery and armed robbery." 67 Ill.2d 107, 117, 365 N.E.2d 337, 342.

Examining the record upon the issue of intoxication, the White opinion concluded:

"We find insufficient evidence in this record from which the trier of fact could find that defendant's intent to steal money from the victims, or in their presence, with force and intimidation, while armed with a dangerous weapon, was negated. The judgment of the appellate court is accordingly affirmed." 67 Ill.2d 107, 120, 365 N.E.2d 337, 344.

Here, the jury was instructed upon the issues in the offense of armed robbery in the language of IPI Criminal No. 14.02. No objection was made by defendant and no other instruction upon issues was tendered by him. The issue was not raised in defendant's post-trial motion.

Supreme Court Rule 451(c) provides for the tendering and giving of instructions in criminal cases, and states:

"[S]ubstantial defects are not waived by failure to make timely objections thereto if the interests of justice require." (Ill. Rev. Stat. 1977, ch. 110A, par. 451(c).)

Supreme Court Rule 615(a) provides that:

"Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." Ill. Rev. Stat. 1977, ch. 110A, par. 615(a).

In People v. Chupich (1973), 53 Ill.2d 572, 295 N.E.2d 1, defendant was charged with the unlawful sale of narcotics. The prosecution conceded that knowledge "of the substance was an element of the offense." The jury was instructed in the language of the statute which did not include such element of knowledge. Defendant tendered no instruction which stated or included the element of knowledge, but argued on appeal that the omission required reversal.

The opinion noted that where knowledge of the nature of the substance was the subject of genuine dispute, the failure to instruct is reversible error, but:

"Other cases have held that where the defendant's knowledge is proved beyond a reasonable doubt, failure to instruct the jury on this element was harmless error. ...

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