Appeal from the Circuit Court of Livingston County; the Hon.
William T. Caisley, Judge, presiding.
PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
On October 21, 1980, defendant, Theron Hill, was charged in the circuit court of Livingston County with the offense of conspiracy to commit burglary. After a jury trial, a judgment of conviction was entered on April 23, 1981, and he was subsequently sentenced to probation for 1 year and 206 days conditioned upon his serving 2 days of imprisonment and paying a fine of $2,500. On appeal we need consider only his contention that his guilt was not proved beyond a reasonable doubt. We conclude the evidence was not sufficient and reverse.
Our decision turns upon whether section 8-2(a) and (b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 8-2(a), (b)), providing for the offense of conspiracy, encompasses the "unilateral" theory of conspiracy or only the "bilateral" conspiracy. Section 8-2(a) and (b) states:
"(a) Elements of the offense. A person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense. No person may be convicted of conspiracy to commit an offense unless an act in furtherance of such agreement is alleged and proved to have been committed by him or by a co-conspirator.
It shall not be a defense to conspiracy that the person or persons with whom the accused is alleged to have conspired:
(1) Has not been prosecuted or convicted, or
(2) Has been convicted of a different offense, or
(3) Is not amenable to justice, or
(4) Has been acquitted, or
(5) Lacked the capacity to commit an offense."
The penal provisions of the statute are contained in section 8-2(c).
The "bilateral" theory of conspiracy is the traditional concept of the offense. Under that theory, in order for a conspiracy to exist, at least two people must intend to agree to the commission of an offense. The "unilateral" theory is of comparatively recent origin. Under it, the offense of conspiracy may occur when the accused, with intent to agree to the commission of an offense, enters into what appears to be an agreement with another to commit that offense, even though the other has no intention to agree to do so. We hold (1) section 8-2(a) and (b) requires an intent of at least two people to agree, and (2) the evidence here was insufficient for the jury to have concluded that anyone other than defendant intended to agree to the commission of a burglary as alleged.
The major push for the "unilateral" concept has arisen from section 5.03(1) of the Model ...