Appeal from the Circuit Court of Lake County, the Hon. John L.
Hughes, Judge, presiding.
JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 1, 1982.
This is a direct appeal of a death sentence. In a bench trial in the circuit court of Lake County the defendant, Thomas J. Holt, was convicted of murder and aggravated kidnaping. The defendant alleges many errors, but one point is dispositive of the murder case. Because the murder took place in Wisconsin, Illinois has no jurisdiction over the offense. The murder charge must therefore be dismissed. We affirm the kidnaping conviction.
After an unfortunate childhood, Thomas Holt, the defendant, settled down in Kenosha, Wisconsin, with a wife and a drug problem. The victim, 19 years old, lived with her parents in Lake Forest, Illinois. On June 20, 1979, the defendant and the victim were both in a bar in Kenosha, where the victim had driven with a girl friend. Holt offered to protect her if anyone tried to hassle her as he had seen happen the week before. When the victim and her friend left, he followed them back to Lake Forest; the victim dropped the friend off and went on to her own home. He abducted her and drove back to Wisconsin with her in the car. What happened on the ride is disputed; the defendant's version is that things became friendly for a while. Somewhere along the way, however, he raped her. In the end, he strangled her. He buried the corpse near his home in Kenosha.
The defendant was charged at first with ordinary (knowing) murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(2)) as well as felony murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3)). The circuit court, however, dismissed the ordinary murder count for lack of jurisdiction, because the crime was committed in Wisconsin, there being no showing that the intent to kill was formed in Illinois. The People chose not to appeal the dismissal and have expressly waived the point in their brief. Similarly, although the defendant was charged with kidnaping aggravated by rape, he was never charged with rape itself because that probably happened in Wisconsin. This appeal is about the felony-murder counts.
A State no doubt has an interest in protecting its citizens from being forcibly taken out of State and killed or raped. Perhaps Illinois could constitutionally assert jurisdiction over such crimes. Jurisdiction, however, is not always asserted to the constitutionally permissible bounds. (Cf. Green v. Advance Ross Electronics Corp. (1981), 86 Ill.2d 431 (civil long-arm jurisdiction).) Geographical jurisdiction over crimes has expanded considerably from its narrow and rigid common law limits, but usually not as far as the Federal Constitution may permit.
Jurisdiction has not been asserted over a series of crimes on the ground that the first crime of the series was committed in the forum State, even if the crimes were closely related or part of a common scheme. In People v. Bovinett (1979), 73 Ill. App.3d 833, the defendant was convicted of eavesdropping in Illinois by recording telephone calls without consent, but it was held that Illinois had no jurisdiction over the count charging he used the information so obtained, since the use was in another State. Similarly, in Conley v. United States (4th Cir. 1928), 23 F.2d 226, the defendants stole Liberty Bonds in one State and were caught in another with the bonds, which had been altered at some point; the Federal court in the first State could try them for the theft, but not for the separate offense of altering the stolen bonds, because the defendants probably did that after leaving the first State.
Illinois jurisdiction is delimited by section 1-5 of the Criminal Code of 1961. Its pertinent parts provide:
"(a) A person is subject to prosecution in this State * * * if:
(1) The offense is committed either wholly or partly within the State; * * *.
(b) An offense is committed partly within this State, if either the conduct which is an element of the offense, or the result which is such an element, occurs within the State. In homicide, the `result' is either the physical contact which causes death, or the death itself; and if the body of a homicide victim is found within the State, the death is presumed to have occurred within the State." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1-5.)
Thus, it is not enough that some part of a course of criminal conduct, some related crime, be committed in Illinois; the particular crime charged must be committed partly within this State. That is why under Illinois law Illinois cannot try Holt for rape or ordinary murder. He committed those crimes entirely in Wisconsin, though following a kidnaping that began in Illinois.
The People argue the felony-murder count is special in that one of the elements of the offense, the felony, namely the kidnaping, began in Illinois. We conclude, however, that the bare felony is not enough to confer jurisdiction on Illinois.
The felony in itself is no part of the gravamen of the offense of murder. The requirement is not simply that there was a forcible felony which preceded the murder, but that in performing the homicidal acts, the defendant was committing or attempting a forcible felony. (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3).) If, for example, a kidnaper and his victim fall in love and turn the kidnaping into an elopement, and in a marital spat that evening he accidentally kills her, it is not felony murder, although the chain of events began with a felony. What makes the present case felony murder is not that a kidnaping occurred once, in Illinois prior to the murder, but that there was an ongoing kidnaping at the time he killed her — in Wisconsin. An analogy makes this clearer. At common law, an essential element of burglary was that the crime occur at night. One could not say, however, that a midnight burglary began or was "partly" committed when night fell. And Illinois could not assert jurisdiction over a Wisconsin burglary on the ground that it was night here, too, even if the burglar left Illinois for Wisconsin at night. Similarly, the felony in felony murder is essential in the sense that if there were no felony the defendant could not do anything in the course of it, but the felony is only a precondition, not an element of independent significance. The real element of felony murder is not so much the felony itself as the special status a felon has from moment to moment while committing the felony. The special status the defendant in this case had at the moment of the homicide which made the homicide felony murder was the status of a felon in Wisconsin, not in Illinois.
The felony implies malice. It provides the mens rea as a substitute for an actual murderous mental state. An actual intent to kill would not support Illinois jurisdiction unless the defendant did something in Illinois in furtherance of that intent. Again, murder is more than an intent and a later killing; it is a killing with that intent. Jurisdiction would be proper even if less than all the criminal activity took place in Illinois, provided enough did to constitute a criminal attempt. (People v. Werblow (1925), 241 N.Y. 55, 148 N.E. 786.) The People criticize the attempt standard as too restrictive, and there is no need to decide here exactly how much activity is enough; something, however, is needed. Since an actual intent to kill arrived at in Illinois without any overt act in Illinois in furtherance of that intent would not support jurisdiction over a murder occurring in Wisconsin, neither should a bare constructive intent, implied by the felony.
A felony is action, but the point is that it is not necessarily homicidal action. It does not further a murderous intent; it is not necessarily part of the homicidal venture. It is not, therefore, automatically the kind of conduct that supports jurisdiction. Framing the charge as felony murder does not excuse the People from showing the kind of Illinois involvement necessary for murder in general. If anything, it should be more difficult to acquire jurisdiction of felony murder than intentional murder, because the defendant could hardly do anything in furtherance of a fictitious intent. The Illinois activity and the death should therefore be more directly connected than would be necessary where the defendant's early actions are tied to the death by a plan to commit murder.
A felony might support jurisdiction if there were some intrinsic relation between it and the death: if, for example, the killing were done in furtherance of the felony, or were otherwise a danger inherent in the felony, so that one could say realistically that the felony caused the death. But that is not this case. The victim here did not die of kidnaping, she died of strangulation. Kidnapings do not ordinarily end in death by strangulation. The strangling here was not a natural result of the kidnaping, but a separate and unrelated act. First he kidnaped her; then, independently, he murdered her. The kidnaping here was only incidental, and does not change the essential character or location of the murder. The kidnaping in this State was not the commission, even "partly," of the murder. It makes the prosecution easier in that it relieves the prosecutor of the need to prove the defendant's actual mental state, but an incidental felony does not confer jurisdiction over a murder on a State that would otherwise lack it.
Regardless of how the murder charges here are framed, if the murderous assault or scheme did not begin until after the defendant reached Wisconsin, if he did nothing in Illinois in contemplation of homicide or great bodily harm, nothing that set the killing in motion, and did not engage in conduct in Illinois of the kind that caused the death, Illinois has no jurisdiction over the murder.
Not every element of an offense supports jurisdiction. Some elements, while essential in the sense of necessary, are not the essence of the crime. They are only a setting for the crime; they are neither the doing of it, nor the gist of it. For example, a felon is released from prison, moves to another State, and buys a gun. In both States it is a crime for an ex-felon to possess one. The crime did not begin when he first became a felon. The initial felony is an essential element of the offense, but we do not believe that the first State would have jurisdiction on the ground that that element was committed in that State.
Murder is not aggravated felony. Murder is homicide: killing and death. The felony in a felony murder is the occasion for the homicide and colors the way the law will view any homicide that occurs, throwing it automatically into the murder category rather than a lower grade; but it is not what murder is about. A felony as such is not a murder in progress, nor the beginning of a process of murder. A cry of "Help! Murder!" would be an exaggeration.
Section 1-5 does not declare that any element of the offense will support jurisdiction. The language is "the conduct which is an element of the offense, or the result which is such an element." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 1-5.) The "element" phrases do not expand jurisdiction but limit it. The proper meaning is that "the conduct" is enough only if it is an element of the offense; similarly, if the offense is defined solely in terms of conduct without regard to any result, there is no jurisdiction based on where the conduct causes harm.
If a crime is defined in terms of both conduct and result, those two are spoken of, somewhat confusingly, as the "elements" of the crime. For homicide, there are three "elements": the conduct, the physical impact that causes the death, and the death itself. At common law, and in Illinois until the Criminal Code of 1961, only the impact gave jurisdiction. Section 1-5 provides that any one of the three is good enough, thus expanding jurisdiction. Ill. Ann. Stat., ch. 38, par. 1-5, Committee Comments (Smith-Hurd 1972).
Section 1-5 speaks of the conduct, not just any conduct or some conduct. The committee comments, discussing homicide in particular, speak of "the conduct" as "the conduct which puts in motion the instrument or agency of death." (Emphasis added.) (Ill. Ann. Stat., ch. 38, par. 1-5, Committee Comments, at 20 (Smith-Hurd 1972).) What the draftsmen had in mind was something like mailing a letter bomb from one State to another, or firing a weapon across a State line.
Again, perhaps some felonies could qualify as "the conduct" of a felony murder. If the death arose out of the felony more or less accidentally, as a natural hazard of the crime rather than as a separate murder resulting from distinct conduct, the commission of the felony might be at least a key part of "the conduct" of the murder. This kidnaping, however, cannot realistically be regarded as "the conduct" of the later strangling.
The history of the language of section 1-5 further illuminates its meaning. The section derives from Model Penal Code section 1.03. (Ill. Ann. Stat., ch. 38, par. 1-5, Committee Comments, at 20 (Smith-Hurd 1972).) It is an amalgam of two versions of that code, the tentative draft No. 5 (1956) and the proposed official draft (1962). The provision that Illinois has jurisdiction if the offense is committed wholly or partly within the State is taken from the tentative draft. That draft went on at great length to define the meaning of "wholly" and "partly." The definitions were organized according to how the offense was defined, and the one that concerns us deals with the case of offenses defined in terms of both conduct and results. That provision codified the attempt analysis of People v. Werblow (1925), 241 N.Y. 55, 148 N.E. 786 (opinion by Cardozo, J.) and People v. Buffum (1953), 40 Cal.2d 709, 256 P.2d 317: A State in which the result does not occur has jurisdiction based on conduct if the conduct within the State amounts to an attempt to commit the offense. (Model Penal Code tent. draft No. 5, sec. ...