APPEAL from the Circuit Court of Macon County; the Hon. RODNEY
A. SCOTT, Judge, presiding.
MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
This case involves the robbery of a pool "hustler" by his victim, whose defense is that he's merely retaking his own property obtained from him by illegal gambling.
Two wrongs do not make a right.
The jury conviction for armed robbery and the 10- to 30-year sentence are affirmed.
The testimony is long and at times somewhat confusing. But from it the jury could easily have concluded exactly what the defendant said happened and what the uncontroverted portions of the evidence reflected. It seems that Tony Perry and a friend, Emil Glocar (also known as Eddie Kovac), were passing through Decatur on their way to Kentucky. While in Decatur on September 22, 1977, Perry was playing pool at the Hotel Orlando pool hall with one Mike Wilder and betting on the games. Perry had won approximately $150 from Wilder during the three or four hours that they had been playing. At about 8 that evening defendant Robinson placed a $200 bet with Glocar or Perry. It seems clear that defendant Robinson was backing any bets on Wilder in the games against Perry. It also seems that any money that was won by Wilder would be shared equally between defendant Robinson and Wilder. Although Perry admitted that he and Glocar shared expenses on their trip and had been friends for three or four years, he denied that they were partners in any pool betting scheme.
The games went on for two days and defendant testified that he lost approximately $1,000 during that period. On the evening of the second day, defendant was told by his brother that he was being hustled. So he went to the pool hall, bet an additional $200 with Perry, lost the remaining games to Perry, and then demanded his money back. Perry shrugged it off and told defendant he would pay for the time on the pool table. Perry then went over to the bartender, and he and Glocar each collected $400. After they had picked up their money, defendant Robinson pulled a gun and demanded his $200 back. Perry counted out $200 and then put it on the bar. Someone picked it up, gave it to the defendant, and Robinson left the hotel. Perry admitted that at the time the defendant demanded the $200 back, he had much more money than that on him, but that the defendant had only asked for the $200.
The fulcrum of the case is a unique question which we apparently grapple with for the first time in Illinois. It pivots on the ownership of the money taken. This issue can be synthesized into: Whether the retaking of gambling losses by force constitutes robbery.
The defendant has consistently conceded that his conduct was wrong, but argues that although he should have been charged with a violation of the Criminal Code, armed robbery was inappropriate because he was merely retaking his own property.
The Illinois cases which have discussed the property interest of the victim of a robbery have required the State to prove only that the victim had an interest which was superior to that of the defendant. (People v. Kelly (1975), 25 Ill. App.3d 753, 324 N.E.2d 82; People v. Aughinbaugh (1970), 131 Ill. App.2d 581, 266 N.E.2d 530.) Those cases, however, do not involve the retrieval of one's own property, but rather the failure on the part of the State to establish the actual ownership of the property, i.e., robbing a store clerk.
Since this is a case of first impression in Illinois, defendant directs us to the positions of other States which have been asked to rule on the question. Some 11 States have held that the retaking of gambling losses by force cannot be categorized as robbery (1) because the felonious intent is lacking, or (2) because the gambler does not take title to the property. Although the cases cited turn on one of these two points, there is really no distinction since the two are inextricably linked.
The State urges the minority view as being the better approach, and points to Maryland which has held that the retaking of gambling debts by force constitutes robbery. In Cates v. State (1974), 21 Md. App. 363, 320 A.2d 75, the court said that mere possession in the victim is adequate and that title is immaterial. The reasoning and philosophy behind this interpretation is interesting and we consider it appropriate to explore it in more depth.
The defendant in Cates engaged in a "crap game" with an Air Force sergeant and lost. As the winner said, "I gamble well. * * * It is not a matter of how good you shoot dice. It is how you place your bets * * *." Two days later, the defendant resorted to self-help with a pistol. The Maryland court quoted extensively from 2 Wharton's ...