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People v. Banks

OPINION FILED JANUARY 26, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

ALBERT BANKS, APPELLEE.



Appeal from the Circuit Court of St. Clair County, the Hon. Patrick J. Fleming, Judge, presiding.

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

The St. Clair County grand jury, in September 1975, charged the defendant, Albert Banks, and his wife, Debra Banks, with aggravated battery, and with robbery "in that they did take property, being two (2) rings from the person or presence of Zilphia Lauderdale, by the use of force" on August 11, 1975. Later the court granted a motion for severance. Well over two years after the indictment, the defendant's motion to dismiss the count of robbery was granted by the circuit court "for failure to state the offense of Robbery in that Count I of the indictment fails to allege the necessary element of intent to permanently deprive the victim of the use or benefit of the property pursuant to People v. White" (1977), 67 Ill.2d 107. Although the court gave the State leave to amend, the State refused and appealed (58 Ill.2d R. 604(a)(1)). We allowed direct appeal to this court (58 Ill.2d R. 302(b)).

The State urges us either to overrule People v. White (1977), 67 Ill.2d 107, because, in its view, that decision's holding that robbery is a specific intent crime was incorrect, or, at least, to modify White because, the State contends, the concept of permanent deprivation was not essential to the resolution of the case in White nor intended by the legislature. Alternatively, the State asks that White be applied prospectively. The defendant maintains permanent deprivation is crucial, both in White and here, and necessitates an explicit statement in a charging instrument. This is so, he believes, because permanent deprivation is an essential part of the specific intent to deprive a person of property; and the defendant planned to introduce evidence at trial of his intention of returning the rings to the alleged victim who, he claims, had taken credit cards from him and his wife.

We see the issue as whether the specific intent to permanently deprive a person of his or her property is an element which must be found present at the time of robbery, and must be charged in the indictment. In other words, whether People v. White should be overruled or modified.

The statutory provision for robbery states that:

"(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.

(b) Sentence.

Robbery is a Class 2 felony."

"(a) A person commits armed robbery when he violates Section 18-1 while armed with a dangerous weapon.

(b) Sentence.

Armed robbery is a Class 1 felony for which an offender may not be sentenced to death." Ill. Rev. Stat. 1975, ch. 38, pars. 18-1, 18-2.

In People v. White (1977), 67 Ill.2d 107, 119-20, the defendant, armed with a revolver and accompanied by an accomplice, had entered a motel, jumped over the desk, taken money from the cash register, and attempted to flee as police arrived. He argued that his intoxication had prevented formation of "the requisite intent to commit the offense" of robbery. (67 Ill.2d 107, 109.) Neither the circuit court nor the appellate court was persuaded, the latter holding that intent was not an element of robbery, so that intoxication could not be a defense. This court held, to the contrary, that "the intent to deprive the person from whom the property is taken permanently of its use or benefit is an element" of robbery (67 Ill.2d 107, 117), and that intoxication is a defense (67 Ill.2d 107, 118-19). This court affirmed the appellate court, however, because the evidence insufficiently established negation of the intent by intoxication.

A literal reading of sections 18-1 and 18-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, pars. 18-1, 18-2), quoted above, indicates permanent deprivation is not an essential character of the crime of robbery. However, at common law, it was. In Hall v. People (1898), 171 Ill. 540, 542, this court pointed out the distinction between larceny and robbery: "[T]he gist of the offense [of robbery] is the force or intimidation, and the taking from the person, against his will, a thing of value belonging to the person assaulted." (Accord, e.g., Burke v. People (1893), 148 Ill. 70, 74, and People v. White (1977), 67 Ill.2d 107, 110.) That is, the elements of robbery were the same as larceny plus two: (1) a taking from the person or presence of the victim (2) by force or intimidation. (W. LaFave & A. Scott, Criminal Law 692 (1972).) One of the elements of larceny at common law was the intent to deprive the owner of property permanently. (People v. De Stefano (1961), 23 Ill.2d 427, 430; ...


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