APPEAL from the Circuit Court of Peoria County; the Hon.
ROBERT E. MANNING, Judge, presiding.
JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Defendant Luis Rosas was indicted for the offenses of armed robbery and robbery. After a jury trial in the circuit court of Peoria County, he was found guilty of armed robbery and sentenced to six years in the Department of Corrections.
The incident from which the conviction obtained occurred on November 13, 1980. Defendant borrowed an automobile and drove to a filling station for some gasoline. The station attendant was in the process of closing and refused to sell him any. Defendant then produced a handgun and repeated his request. The attendant complied, and defendant drove away. It is uncontroverted that defendant was intoxicated.
The sole issue presented for our review concerns two jury instructions, one given and one refused. Given was People's No. 13:
"You are instructed that voluntary intoxication is not a defense to the crime of armed robbery."
Refused was Defendant's No. 2:
"An intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting knowingly or intentionally."
Presented for our review is the question of whether a defendant can present his voluntary intoxication as a defense to a charge of armed robbery.
Section 6-3 of the Criminal Code of 1961 (hereinafter the Code) (Ill. Rev. Stat. 1979, ch. 38, par. 6-3) addresses the effect of a defendant being in an intoxicated or drugged condition during the commission of an alleged criminal offense:
"A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition * * *
(a) Negatives the existence of a mental state which is an element of the offense; * * *."
The offense here alleged is armed robbery. Section 18-2(a) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)) provides that the offense is committed when a person commits robbery while carrying "on or about his or her person, or is otherwise armed with a dangerous weapon." Section 18-1(a) of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 18-1(a)) provides that robbery is committed when a person "takes property from the person or presence of another by the use of force or by threatening the imminent use of force." It can readily be seen that no mental state is presented as an element of the charged offense by the language of these provisions.
With the exception of the period of time between 1874 and 1919, this has always been the case in this State (see People v. White (1977), 67 Ill.2d 107, 122-23, 365 N.E.2d 337, 345 (concurring opinion)); yet, decisions rendered after 1919 were mixed as to whether intent was an element of the crime (see People v. White (1977), 67 Ill.2d 107, 109, 365 N.E.2d 337, 338). The reasons for this were analyzed in White, which held intent was such an element, and in People v. Banks (1979), 75 Ill.2d 383, 388 N.E.2d 1244, which overruled White and held that robbery does not require specific intent.
During the pendency of the Banks appeal, the issue at bar was raised, on the basis of White, in People v. Baker (1979), 72 Ill. App.3d 682, 391 N.E.2d 91. Before oral argument, the opinion in ...