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People v. Foster

OPINION FILED DECEMBER 1, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

JAMES W. FOSTER, APPELLEE.



Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of McLean County, the Hon. Luther H. Dearborn, Judge, presiding.

JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Following a jury trial in the circuit court of McLean County the defendant, James Foster, was convicted of conspiracy to commit robbery, and sentenced to an extended term of six years' imprisonment. Based upon its interpretation of the Illinois conspiracy statute (Ill. Rev. Stat. 1981, ch. 38, par. 8-2) the appellate court reversed in a Rule 23 order (110 Ill. App.3d 1208). We granted the State's petition for leave to appeal.

On September 28, 1981, defendant initiated his plan to commit a robbery when he approached John Ragsdale in a Rantoul bar and asked Ragsdale if he was "interested in making some money." Defendant told Ragsdale of an elderly man, A.O. Hedrick, who kept many valuables in his possession. Although Ragsdale stated that he was interested in making money he did not believe defendant was serious until defendant returned to the bar the next day and discussed in detail his plan to rob Hedrick. In an effort to gather additional information, Ragsdale decided to feign agreement to defendant's plan but did not contact the police.

On October 1, defendant went to Ragsdale's residence to find out if Ragsdale was "ready to go." Since Ragsdale had not yet contacted the police he told defendant that he would not be ready until he found someone else to help them. Ragsdale informed the police of the planned robbery on October 3. Defendant and Ragsdale were met at Hedrick's residence the following day and arrested.

The appellate court determined that the conspiracy statute (Ill. Rev. Stat. 1981, ch. 38, par. 8-2) required actual agreement between at least two persons to support a conspiracy conviction. Reasoning that Ragsdale never intended to agree to defendant's plan but merely feigned agreement, the court reversed defendant's conviction.

On appeal to this court the State argues that under the conspiracy statute it suffices if only one of the participants to the alleged conspiracy actually intends to agree to commit an offense. Alternatively, the State contends that there was sufficient evidence to convict defendant even under the appellate court's interpretation of the statute.

The question is whether the Illinois legislature, in amending the conspiracy statute in 1961, intended to adopt the unilateral theory of conspiracy. To support a conspiracy conviction under the unilateral theory only one of the alleged conspirators need intend to agree to the commission of an offense. (See Burgman, Unilateral Conspiracy: Three Critical Perspectives, 29 DePaul L. Rev. 75 (1979).) Prior to the 1961 amendment the statute clearly encompassed the traditional, bilateral theory, requiring the actual agreement of at least two participants. (People v. Borrelli (1946), 392 Ill. 481, 493; see also People v. Bryant (1951), 409 Ill. 467, 469.) The relevant portion of the former statute is as follows:

"If any two or more persons conspire or agree together * * * to do any illegal act * * * they shall be deemed guilty of a conspiracy." (Emphasis added.) (Ill. Rev. Stat. 1961, ch. 38, par. 139.)

The amended version of the statute provides:

"A person commits conspiracy when, with intent that an offense be committed, he agrees with another to the commission of that offense." (Emphasis added.) Ill. Rev. Stat. 1981, ch. 38, par. 8-2(a).

Since the statute is presently worded in terms of "a person" rather than "two or more persons" it is urged by the State that only one person need intend to agree to the commission of an offense. In support of its position the State compares the Illinois statute with the Model Penal Code conspiracy provision and the commentary thereto. The Model Penal Code provision is similar to section 8-2(a) in that it is also worded in terms of "a person":

"A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:

(a) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime * * *." (Emphasis added.) Model Penal Code sec. 5.03 (Tent. Draft No. 10, 1960).

The commentary following section 5.03 expressly indicates the drafters' intent to adopt the unilateral theory of conspiracy. More importantly, the comments specify the drafters' reason for ...


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