Petition — Dawson v. Illinois

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No. ¢4- 1543

DANNY R. DAWSON,

Petitioner,

V.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

MICHAEL J. COSTELLO

P.O. Box 2477, 818 E. Capitol

Springfield, lilinois 62705

Attorney for Petitioner

Cs aw SCHNEPP & BARNES PRINTERS, INC., SPRINGFIELD, ILL.

TABLE OF CASES AND AUTHORITIES CITED

Page

Ashe v. Swenson, 397 U.S. 436, 25 L.Ed. 469, 9

eC ove ee Lee eei eddy nk ened ek bac 16

Dunn v. United States, 34 U.S. 390, 76 L.Ed. 356,

EE, SE ook ck acide ae ek ek aes Okie ohn 13

Harris v. Washington, 404 U.S. 55, 20 L.Ed. 212,

I I no aa, ccc we ki deen deh ue ana 17

John Hohenadel Brewing Co., Inc. v. United States,

295 Fed. 489, 490 (1924) (3rd Cir.) ............... 13

People v. Dugas, 310 IN. 291, 299, 141 N.E.2d 769 (1923) 19

People v. Hairston, 46 Ill. 2d 248 (1970) .............. 14

People v. Liddell, 353 Il. 201, 204, 187 N.E.2d 174

“AE ESAS S ARERR RE aBioe eee 19

Rosenthal v. United States, 276 Fed. 2d 714, 715

ERE RRR ERS reer mene Oem an 12

Sealfron v. United States, 332 U.S. 575, 92 L.Ed. 180,

OT I os ck oc bse badasnresexccubeubes 16

Simpson v. Florida, 403 U.S. 384, 29 L.Ed. 549, 91

a ee cles ae Keka 17

Speiller v. United States, 31 Fed. 2d 682, 684 (1929)

SPIE ok ou cunws Gudea de Wauns boa daw eaeR eee nen 12

Turner v. Arkansas, 407 U.S. 366, 32 L.Ed. 798,

ee Ne eka casa acedendeter 17

TOPICAL INDEX

Page

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EEE OPE CC ET OTE eT PL PEER e TE EE 2

cpeteens FURIOUS «ooo ve cceresensscsncccusnceseee 2

Constitutional Provisions Involved ................-. 2

Ee ec cua in uns Sa eeahe Na RGnONs aadeRe bene® 4

Reasons for Granting the Writ ..................006. 8

EP Ee PPP ET ee PETE Perey ere re re eT Te Te 8

BR ee eee pia eae ae Omar swam aie 15

EE onc Gane da ¥kes suas baWeNeheeekekevewncess 19

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No.

DANNY R. DAWSON,

Petitioner,

Vv.

PEOPLE OF THE STATE OF ILLINOIS,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

AND REQUEST FOR SUMMARY REVERSAL

Danny R. Dawson, your Petitioner herein, respectfully

prays that a Writ of Certiorari issue to review the judg-

ment of the Supreme Court of Illinois, and the Petitioner

further requests Summary Reversal.

OPINIONS BELOW

The opinion of the Supreme Court of Illinois is reported

verbatim herem. (App. ‘'.\’’, pp. 1-V.) It has not as yet

heen officially reported. The opinion of the State of Llinois

Appellate Court, Fourth District, is reported verbatim

herein. (App. *B’’, pp. I-XV.)

2

JURISDICTION

The judgment of the Supreme Court of Illinois was

entered on the 24th day of March, 1975. (App. ‘‘A’’, p.

1.) The jurisdiction of tlis Court is invoked under the

provisions of Title 28, U.S.C., Section 1257(3).

QUESTIONS PRESENTED

Whether the Petitioner should be discharged where in-

consistent verdict expresses acquittal?

Whether the jury’s verdict as to murder was a determina-

tion favorable to Petitioner of the facts essential to con-

viction of armed robbery?

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment Five, Constitution of the United States:

‘‘No person shall be held to answer for a capital, or

otherwise infamous crime ... nor shall any person

be subject for the same offense to be twice put in

jeopardy for life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor

be deprived of life, liberty, or property, without due

process of law; nor shall private property be taken

for publie use, without just compensation.”’

Section 1, \mendment Fourteen, Constitution of the United

States:

‘* Ail persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they

reside. No State shall make or enforce any law which

shal] abridge the privileges or immunities of citizens

of the United States; nor shall any State deprive

any person of life, liberty, or property, without due

3

process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”’

Section 2, Article 1, Constitution of the State of Illinois,

1970:

‘No person shall be deprived of life, liberty or prop-

erty without due process of law nor be denied the equal

protection of the laws.’’

Section 10, Article 1, Constitution of the United States:

‘*No person shall be compelled in a criminal case to

give evidence against himself nor be twice put in

jeopardy for the same offense.”’

STATEMENT

Defendant was found guilty by a jury in the circuit court

of Morgan County of the offense of armed robbery, but

not guilty of the alleged murder arising out of the same

armed robbery. Judgment of conviction was entered or

the verdict. Defendant was sentenced to an indeterminate

term of 15 to 40 years.

Defendant and his accomplice, David L. Hawkins, were

apprehended by the Morgan County authorities for the

armed robbery of a Wareco Station located in Jacksonville,

Illinois, and the murder of one Charles Duane McKinney,

the service station attendant. On December 15, 1971, de-

fendant and Hawkins were indicted in a three-count in-

dictment: Count I charged defendant with murder in that

‘the did without lawful justification, intend to kill or do

great bodily harm to Charles Duane McKinney, and did

by the use of a gun shoot and kill the said Charles Duane

McKinney,”’ in violation of Ill. Rev. Stat. 19697 Ch. 38, See.

9-1(a)(1); Count II charged defendant with murder in

that ‘‘he did without lawful justification, shoot and kill

with a gun, Charles Duane McKinney, while committing

a forcible felony, to-wit: an armed robbery,’’ in violation

of chapter 38, See. 9-1(a) (3); Count III charged defendant

with the offense of armed robbery in that ‘‘he did take

property from tlie person or presence of another, to-wit:

Charles Duane McKinney, at the Wareco service station

at 602 N. Main St., Jacksonville, [liinois, while armed with

a dangerous weapon,’’. Hawkins plead guilty to the charge

of murder and was sentenced to an indeterminate term of

39 to 95 years in the lilinois State Penitentiary.

Defendaut’s trial commenced on March 17, 1972. David

L.. Hawkins was called to testify for the State. He testi-

fied that he was serving a sentence of 35 to 95 years for

the murder of Charles McKinney. He positively identified

the defendant as being the same individual that had been

with him on the night of the incident in question. He stated

that he had known the defendant for five or six years.

Hawkins testified that he and defendant had been drink-

ing beer in Winchester until approximately 1:00 a.m. on

November 16, 1971. Thereafter, they went to Jacksonville

to spend the night at defendant’s sister’s residence. On

the way to Jacksonville, he and defendant had a conver-

sation in which defendant allegedly stated that they needed

more money to purchase beer and that defendant knew of

a gas station that would be easy to rob.

They arrived at the gas station around 1:45 a.m., entered

and bought a pack of cigarettes. Thereafter they left

and drove around the block. On the way back to the station,

defendant allegedly handed Hawkirs a pistol and said, ‘‘If

the dude gives you any trouble, just shoot him.”’

At this point in Hawkins’ testimony, he identified Peo-

ple’s Exhibit No. 6A — a .22 calibre pistol — as the weapon

used in the incident. Hawkins stated that the pistol was

owned by defendant and that it was normally kept in the

glove compartment of defendant’s automobile.

The witness stated that after they had circled the block,

defendant let lim out. Hawkins proceeded to the Wareco

Service Station where he shot and robbed the victim. When

asked by the state’s attorney where the defendant was

during this time, the witness stated: ‘‘He stayed out.’’

Hawkins took the coin changer and an undetermined sum

of cash from the deceased. Once in the automobile, he stated

he dumped the contents of the coin changer and all the

bills onto the seat of the ear. The defendant then drove

into the country on the ‘*Poor Farm Road’’. Defendant

6

stopped his car on a bridge over a creek where they split

the proceeds of the robbery. Defendant threw the gun

and coin changer into the creek. He then proceeded to

his sister’s residence in order to establish an alibi. The

witness contended that Dawson suggested that they needed

an alibi.

On cross-examination, defense counsel questioned Hawk-

ins concerning the nature of his relationship with defen-

dant. Hawkins conceded that defendant was not an intimate

friend, but rather a casual acquaintance. He also admitted

he was high on drugs the night of the incident; that he

was jobless at that time and dependent upon his mother

and uncle for support; and that he had experimented with

several types of drugs — angel dust in particular. This

drug is a combination of cocaine, heroin and morphine.

Under further cross-examination, the witness admitted he

really did not know how many times he shot the attendant

and that le could not clearly remember the defendant telling

him that he should shoot the gas station attendant if the

latter gave bim any trouble. His lapse of memory was due

to the fact that he had taken some heroin that evening,

but he was positive that defendant had suggested that they

needed an alibi. Cross-examination ended with a discussion

of the condition of defendant’s automobile on the evening

of the incident.

When defendant took the stand, his testimony was com-

pletely at odds with that given by Hawkins. The defendant

admitted that the murder weapon was his and presented

a valid registration for the gun. He also admitted that he

kept the pistol in the glove compartment of his car. He

contended that the pistol was never loaded while it was

in his glove compartment.

Coneerning the night of the incident, the defendant testi-

fied that he met Hawkins around 9:30 or 10:00 p.m. on the

ee

7

evening of November 15. He and Hawkins eventually de-

cided to go to Jacksonville where they intended to ‘‘find

some girls.’? They stopped at the Wareco Station in Jack-

sonville around 1:30 a.m. in order to purchase some cigar-

ettes. Defendant admitted that he and Hawkins had been

drinking before they went to Jacksonville. He denied that

he ever suggested to Hawkins that they should rob the

Wareco Station or that Hawkins should kill the attendant.

After leaving the filling station, he and Hawkins drove

away in his automobile. The car eventually died and he

told Hawkins to go back to the Wareco Station to seek

assistance. After Hawkins left, defendant got out of his

automobile, opened up the hood and attempted to ascertain

the nature of his trouble. He found a battery post was

loose. He gightened the battery post and the car started.

Hawkins had not yet returned so defendant backed up and

turned onto a side street. Just at that moment, Hawkins

came around the corner and got into the car. Defendant

then drove off. According to defendant, Hawkins did not

say anything concerning the robbery and the shooting. He

did not notice anything in Hawkins’ hand when he entered

the car. After defendant had driven three or four blocks,

Hawkins stated he had just killed the gas station attendant.

At first defendant thought Hawkins was joking, so he kept

on driving. He drove out to the edge of town in order to

permit Hawkins to relieve himself and stopped as soon

as he came to the ‘‘Poor Farm Road’’. It was at this time

the defendant noticed the money changer and the gun lying

on the floorboard of the car. He realized that Hawkins was

not joking. Defendant stated he grabbed the gun and threw

it, for he was afraid that Hawkins might try to shoot him.

Defendant contended that at no time did he intend or plan

with David Hawkins to rob the Wareco Station, nor did

he instruct Hawkins to kill the attendant.

On cross-examination, the defendant denied that he had

suggested to Hawkins that they should go to his sister’s

in order to establish an alibi. However, he admitted that

he split the proceeds of the robbery with Hawkins.

The jury found defendant guilty of Count III of the

indictment — armed robbery; and not guilty of Count I

— murder; and not guilty of Count Il — murder committed

in the course of the armed robbery.

On appeal, the Appellate Court reversed. On further

appeal by the State, the Supreme Court of Illinois reversed

the appellate court.

The federal questions of constitutionality were raised

on post-trial motions claiming error of the trial court and

presented to the Appellate Court. The doctrine of collateral

estoppel and double jeopardy was raised in the Supreme

Court.

REASONS FOR GRANTING THE WRIT

I.

The Supreme Court of [Illinois has decided federal ques-

tions of substance in conflict with the due process principles

enunciated in this Court. It has departed from the accepted

and usual course of judicial proceedings, and its sanction

of such departure resulted in an erroneous judgment and

misearriage of justice, and deprived the Petitioner of his

rights to due process of law and equal protection of the law.

The jury returned a verdict of not guilty of murder which

was signed. The jury also returned a verdict of guilty of

armed robbery which was signed. These two verdicts are

inconsistent in law and in fact and that therefore, the de-

fendant should be discharged. The intention of the jury,

however, is clear from their verdicts and therefore, on the

basis of intention alone, the defendant should be discharged.

9

It is noted that the jury was instructed that a person

commits the crime of murder when he intends to kill or do

great bodily harm, he knows that such acts create a strong

probability of death or great bodily harm or lie is attempt-

ing to commit or is committing the crime of armed robbery.

The jury was further instructed that to sustain the charge

of murder the state must prove that when tlie defendant

performed the acts which caused the death of the victim

the defendant intended to kill or do great |odily harm or

he knew that his act would cause death or «reat bodily

harm or he knew that his act created a strong probability

of death or great bodily harm or he was atiempting to or

was committing the crime of armed robbery.

Upon the record and state of facts, the only evidentiary

basis for the crime of murder would have been a factual

basis that the defendant was committing an armed rob-

bery. In other words, a felony murder. A murder com-

mitted in the exercise of a felonious act. There is abso-

iutely no evidence implied or otherwise, that the defendant

intended to kill the victim for any reason otlicr than in the

commission of an armed robbery. The defeidant did not

know the victim nor had there been any connection estab-

lished between them. Therefore, in order to find the defen-

daut guilty of murder, the jury would perforce have to

come to the conclusion that the defendant was committing

an armed robbery at the same time because they were so

instructed. The jury did not believe that the defendant

Was committing an armed robbery and therefore acquitted

the defendant of the crime of murder, The jury did, how-

ever, convict the defendant of armed robbery. This is im-

possible because they answered it in the negative in the

murder instructions.

The elements of felony murder are found in Illinois

10

Revised Statutes, 1971, chapter 38, paragraph 9-1, which

provides in part:

‘*(a) A person who kills an individual without lawful

justification commits murder, if, in performing the acts

which cause the death:

(3) He is attempting or committing a forcible

felony other than voluntary manslaughter.’’

Under Illinois Revised Statutes, 1971, chapter 38, para-

graph 5-2, any individual who aids or abets the planning

or commission of a crime is legally accountable for the con-

duct of the principal. Chapter 38, paragraph 5-2, would

make an accomplice liable for the felony murder committed

by his principal.

The jury was given instructions on accountability, armed

robbery and murder which included a paragraph on felony

murder. These instructions state in part as follows:

‘*A person is responsible for the conduct of another

person when either before or during the commission

of a crime, and with the intent to promote or facilitate

the commission of a crime, he knowingly solicits, aids,

abets, agrees or attempts to aid the other person in

the planning or commission of the crime.”’

‘¢A person commits the crime of armed robbery who,

while armed with a dangerous weapon, takes property

from the person or presence of another by the use of

force or by threatening the imminent use of foree.’’

‘*To sustain the charge of armed robbery, the State

must prove the following propositions:

FIRST: That the defendant took money from

the person or presence of Charles Duane MecKin- |

ney; and

SECOND: That the defendant did so by the

use of force or by threatening the imminent use

of force; and

11

THIRD: That the defendant was armed with a

dangerous weapon.

If you believe from your consideration of all the

evidence that each of these propositions has been proved

beyond a reasonable doubt, then you should find the

defendant guilty.

If, on the other hand, you find from your considera-

tion of all the evidence that any of these propositions

has not been proved beyond a reasonable doubt, then

you should find the defendant not guilty.”’

‘“*To sustain the charge of murder, the State must

prove the following propositions:

First: That the defendant performed the acts

which caused the death of Charles Duane Me-

Kinney.

Second: That when the defendant did so,

(1) he intended to kill or do great bodily harm

to Charles Duane McKinney, or

(2) he knew that his act would cause death or

great bodily harm to Charles Duane Me-

Kinney, or

(3) he knew that his acts created a strong prob-

ability of death or great bodily harm to

Charles Duane McKinney, or

(4) he was attempting to commit or was com-

mitting the crime of armed robbery.

If you find from your consideration of all the evi-

dence that each of these propositions has been proved

beyond a reasonable doubt, then you should find the

defendant guilty.

If on the other hand, you find from your consideration

of all the evidence that any of these propositions has

not been proved beyond a reasonable doubt, then you

should find the defendant not guilty.’’

‘*\ person commits the crime of murder who kills

an individual if, in performing the acts which cause

the death,

12

he intends to kill or do great bodily harm to that

individual; or

he knows that such acts will cause death to that

individual; or

hé knows that such acts create a strong probabil-

itv of death or great bodily harm to that indi-

vidual; or

he is attempting to commit or is committing the

crime of armed robbery.’’

It is respectfully suggested that verdicts respecting the

several counts of an indictment must be consistent, and

that reversal is required where the verdict on the counts

as to which defendant was convicted cannot be reconciled

logically with that on the counts as to which an acquittal

was returned.

The Federal Cireuits have previously followed the same

rule. In Spedler v. United States, 31 Fed. 2d 682, 684 (1929)

a Third Cireuit case the court held that where there is an

acquittal on one count of an indictment and a conviction

on another count of an indictment charging the same crime,

the verdict of conviction will not be allowed to stand unless

supported by evidence other than that on which the acquittal

was based. There is no other evidence in the case at bar

other than what the acquittal was based upon. In Posen-

thal v. United States, 276 Fed. 714, 715 (1921) a Ninth

Circuit cause of action, the court held that reversible in-

consistency results where the verdict acquitting the accused

on one count of the indictment tends to negate the existence

of an element essential to the proof of the crime charged

in another count on which he was convicted. The court

said that a count charging the defendant with having the

same property in his possession was acknowledged and a

second count was based ou the same transaction, and that

the evidence showed only one transaction, a verdict finding

tie defendant not guilty on the first count but guilty on

13

the second count was wholly inconsistent and required a

reversal. It is respectfully suggested that in the case at

bar, there is a single transaction. Although the crime of

armed robbery and the crime of murder are separate and

distinct crimes, based upon the single transaction in the

case at bar upon the evidence by the jury acquitting on

murder considering the crime of armed robbery, the verdicts

are inconsistent and the defendant must ayd.should be

discharged.

Further, it bas been held that verdicts of acquittal on

some counts, and conviction on other counts in an indict-

ment may be reversibly inconsistent if the same evidence

was relied upon by the prosecution in support of all the

counts. John Hohenadel Brewing Company v. United

States, 295 Fed. 489, at page 490 (1924) (C.A.3d)

It is conceded that all of the Federal Cireuit cases here-

tofore cited were overruled by Dunn v. United States, 34

U.S. 390, 76 L.Ed. 356, 52 S.Ct. 189 (1952), which held that

consistency between the verdict on the several counts of

an indictment or information is unnecessary where the de-

fendant is convicted on one or some counts but acquitted

on others, and the conviction would generally be upheld

irrespective of its rational incompatibility with the acquittal.

Ilowever, it is noted, Dunn, supra, was decided on January

11, 1932.

Mr. Justice Butler dissenting said at page 398 that:

‘*By finding petitioner not guilty under the second

and third counts the jury conclusively established that

the evidence was not sufficient to prove the unlawful

possession or sale there alleged. Since the first count

charged nothing more than unlawful possession, this

amounted to contradictory findings on the same facet.

But even if that count charged a nuisance, the unlawfui

keeping of that liquor for sale was essential to the

l4

offense, in fact the corpus delicti, and the verdict of

guilty necessarily included a finding of the very pos-

session that was conclusively negatived by the verdict

under the second count. If the finding of guilty on the

first count were not contradicted by another finding

contained in the same verdict or if it stood alone, a

judgment would properly be entered thereon convicting

petitioner of the unlawful possession.’’

‘*... Nothing remains to support the opposite finding

under the first count. The repugnancy is such that if

tlie first is aecepted the second must be rejected. I am

of opinion that this record plainly requires an express

and unqualified decision that these findings conflict

and are completely repugnant.”’

He further stated at page 400 that:

‘*Where one by different counts is accused of two

crimes which by reason of their nature cannot be com-

mitted by the same person, a verdict of guilty on both

counts will be held so inconsistent with itself and sv

uncertain in law that no judgment can be entered

thereon. Such verdicts are so meaningless as to be

without force.”’

As to jury speculation, Justice Butler stated at page 407

that:

‘The law does not permit investigations into the

deliberations of juries for ascertainment as a matter

of fact upon what considerations verdicts are reached:

the suundness of that rule has never been questioned.

There are stronger reasons against speculating

whether, or assuming that, the jury through tenderness

of disposition, merey or forbearance acquitted while

knowing that its duty was to convict the accused. Con-

flict between the finding may not be explained. The

inference that the jury, seeking rightly to discharge

its dui, made a mistake is to be preferred over the

suggestion that it found for defendant upou an assump-

tion of power it may not lawfully exert.”

lu People oe. Teerstow, 40 TH. 2d Ss, (1970), the defen

15

dant was tried for the separate crimes of murder, attempted

murder, and solicitation to commit such crimes in a single

proceeding. The defendant was found not guilty on the

charges of the principal offenses. The defendant contended

that the verdicts were inconsistent and that he must be

discharged. The court held that when verdicts inconsistently

acquit and convict of separate crimes arising from the

same act, logical consistency in verdicts in such instances

is not necessary, so long as the verdicts are not legally

inconsistent. It is noted that the verdicts must not be

legally inconsistent. The court said at page 849 that:

‘*Within our own jurisdiction we have, in those in-

stances where inconsistent verdicts of guilty were

returned on separate indictments or separate indict-

ments or separate counts of a single indictment, aligned

ourselves with those who hold that a reversal and new

trial must follow, (e.g., Tobin v. People, 104 Ill. 565 —

larceny and receiving stolen property.) But where,

as here, the verdicts inconsistently acquit and convict

of separate crimes arising from the same act, our courts

have followed the view that logical consistency in ver-

dicts in such instances is not necessary, so long as the

verdicts are not legally inconsistent. (People v. Rad-

datz, 403 Ul. 48, 85, N.E.2d 807; People v. Ingersoll,

o8 Ll. App. 2d 216, 208 N.E.2d 79; and see People v.

Garman, 411 Ill. 279, 103 N.E.2d 636) To use the words

of the court in State rv. Baird, 200 Wash. 227, 93 P. 2d

409, 412, we follow the view that: ‘In law there is no

inconsistency in verdicts of acquittal and conviction

upon charges of crimes composed of different elements,

but arising out of the same state of facts.’ The verdicts

here were legally consistent, if not logically so, and

defendant’s claim of a right to discharge must be de-

nied.”’

Il.

The defendant contends that his constitutional rights are

violated by reason that he is inearcerated and under jury

16

conviction as to armed robbery in violation of the Fifth

Amendment and Fourteenth Amendment to the Censtitu-

tion of the United States of America. The Fifth Amend-

ment to the Constitution of the United States provides that

no person shall be twice put in jeopardy for the same offense

and the Fourteenth Amendment to the Constitution of the

United States applies said prohibition to the states. The

Constitution of the State of Illinois provides for the same.

It has been repeatedly held that a state eannot bring

successive prosecutions for different crimes out of the same

set of circumstances on the basis that the doctrines of Col-

lateral Estoppei and Double Jeopardy bar successive prose-

cutions.

Query: Assuming that the Defendant, DANNY DAW-

SON, was acquitted of felony murder as in this case and

subsequently tried in a separate trial for armed robbery,

could the subsequent armed robbery trial proceed? To ask

the question is to answer it in the negative as it would be

barred by the doctrines of Collateral Estoppel and Double

Jeopardy.

In Sealf: av. United States, 332 U.S. 575, 92 L.Ed. 180,

6S S.Ct. 2357 (1948) the Court held that an acquittal of a

conspiracy case Was res judicata to a subsequent prosecu-

tion for the commission of the substantive offense as an

accessory on the same circumstances and facts involved

in the prior trial and conspiracy which resulted in an

acquittal.

In .lshe v. Swenson, 397 U.S. 4386, 25 L.Ed. 2d 469, 90

S.Ct. 1189 (1970) it was held that collateral estoppel in

criminal trials is a integral part of the protection against

double jeopardy guaranteed by the Fifth and Fourteenth

Amendments. Collateral estoppel is defined as simply that

When an issue of ultimate fact has been once determined by

17

a valid and final judgment that issue cannot again be liti-

vated between the same parties at any future lawsuit. In

.lshe, supra, the petitioner was acquitted in a state trial

for the robbery of one of the players in a poker game. Six

weeks thereafter the petitioner was tried for the robbery

of another of the players in the poker game and was con-

vieted. The Court overturned the conviction.

In Simpson v. Florida, 403 U.S. 584, 29 L.Ed. 2d, 549, 91

S.Ct. 1801 (1971), the petitioner was tried and acquitted

of the charge of armed robbery of a store manager. In a

subsequent trial in State Court, the first trial having been

a State Court trial, the defendant was convicted of the

charge of armed robbery of a customer in the store. The

Court said that unless the jury verdict in the second trial

could have been grounded upon an issue other than that

which the petitioner seeks to foreclose from consideration

the constitutional guarantee against being twice put in

jeopardy for the same offense officiates the petitioner’s

conviction.

In Harris v. Washington, 404 U.S. 55, 30 L.Ed, 2d 212,

92 S.Ct. 183 (1971) the Court held that a defendant who

is acquitted for the murder of one of the persons where a

bomb had been sent through the mail killing two people,

and at a subsequent trial convicting the defendant for the

murder of the other person, collateral estoppel was an in-

iegral part of the constitutional guarantee against double

jeopardy and was to be applied and, therefore, the con-

viction was reversed.

In Turner v. Arkansas, 407 U.S. 366, 32 L.Ed. 2d 798,

02 S.Ct. 2096 (1972) in an Arkansas murder prosecution

the trial court instructed on the criminal responsibility of

an aceessory and the jury was instructed that it must find

defendant guilty of first degree murder if it found that he

18

had killed the decedent either with premeditation or unin-

tentionally during the course of a robbery. The Court said

that the only logical conclusion from the general verdict of

the acquittal of the first degree murder charge was that

the jury found the defendant was not present at the scene

of the robbery and murder even if the murder had actually

been committed by an alleged accomplice in tlie robbery.

The Court held that a subsequent prosecution for robbery

wherein the defendant was convicted was foreclosed as the

State was collaterally estopped from relitigating the issue

as to whether the defendant had been present at the scene.

The instruction in Turner, supra, was that ‘‘an accessory

is one who stands by, aids, abets or assists ... the perpetra-

tion of a crime... or persons being present aiding and

abetting, or ready and consenting to aiding and abetting

in any felony, shall be deemed principal offenders and

indicted or informed against, and punished as such.’’ The

Court said at page 369 that ‘‘had the jury found petitioner

present at the crime scene, it would have been obligated to

return a verdict of guilty of murder even if it believed that

he had not actually pulled the trigger. The only logical

conclusion is that the jury found him not present at tlie

secne of the murder and robbery, a finding that negates the

possibility of a constitutionally valid conviction for the

robbery of Yates.”’

In the case at bar, had the jury believed that the defen-

dant committed armed robbery, it would have been obli-

gated to return a verdict of guilty of felony murder.

If two separate juries hearing different offenses, based

on the same circumstances and same facts, cannot arrive

at opposite conclusions and the constitution prohibits a

subsequent proscention upon the same facts for different

persous Where the first trial has resulted in an acquittal it

19

ix respectfully suggested that the same constitutional pro-

hibitions apply to a jury verdict in the same case. We

suggest that the doctrine of collateral estoppel and res

judicata apply to the same jury who arrives at inconsistent

verdicts.

In Illinois, the Supreme Court has taken the position that

where a former prosecution results in an acquittal for a

lesser included offense, a subsequent prosecution for the

greater offense charged is barred. People v. Liddell, 353

Ii]. 201, at page 204, 187 N.E. 2d 174 (1933).

A second application of the doctrine of double jeopardy

as a bar to a subsequent prosecution for a different offense

is that a former conviction or acquittal of murder will bar

a subsequent prosecution for manslaughter based upon the

same facts. People v. Dugas, 310 Ill. 291, at page 299, 141

N.E. 2d 769 (1923).

CONCLUSION

For the foregoing reasons, this Petition for a Writ of

Certiorari and Request for Summary Reversal should be

granted. The decision below is palpably erroneous.

Respectfully submitted,

MICHAEL J. COSTELLO

P.O. Box 2477, 818 E. Capitol

Springfield, Illinois 62705

Attorney for Petitioner

App. A-l

APPENDIX A

STATE OF ILLINOIS

SUPREME COURT

AT A SUPREME COURT, of the State of Illinois, sitting

at Springfield:

BE IT REMEMBERED, that to-wit: On the 24th day

of Mareh, 1975, there was filed in the office of the Clerk

of the Court an opinion of said Court, in werds and figures

following:

Docket No. 46787 — Agenda 6 — January, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS,

: Appellant,

v.

DANNY R. DAWSON,

Appellee.

MR. JUSTICE SCHAEFER delivered the opinion of

the court:

An indictment in the circuit court of Morgan County

charged the defendant, Danny R. Dawson, in count I with

the murder of Charles McKinney, in count II with the mur-

der of MeKinney while committing the forcible felony of

armed robbery, and in count III with the armed robbery of

McKinney. All three charges arose out of the November

16, 1971, robbery and murder of Charles McKinney, a

service station attendant in Jacksonville, Illinois. David

L. Hawkins, the defendant’s companion, pleaded guilty to

the charge of murder and was sentenced to imprisonment

in the penitentiary for not less than 35 nor more than 95

years. The present defendant, Dawson, pleaded not guilty,

App. A-II

and after a trial, the jury found him guilty of armed rob-

bery, but not guilty of murder.

The Appellate Court for the Fourth District, Justice

Smith dissenting, held that the verdicts were inconsistent

and therefore reversed the defendant’s conviction on the

armed robbery charge. (19 Ill. App. 3d 150.) We granted

leave to appeal.

It is undisputed that David Hawkins robbed and shot

to death Charles McKinney. At the defendant’s trial,

Hawkins testified that he and the defendant had been

drinking together on the evening of November 15. As they

drove to Jacksonville from a nearby town, the defendant

suggested that he knew a gas station which they could

easily rob. They stopped at the gas station and both went

in and bought cigarettes. After buying the cigarettes they

drove around the block and Hawkins stated that the de-

fendant handed him a handgun belonging to the defendant

and said, ‘‘Go ahead’’ and ‘‘If the dude gives you any

trouble, just shoot him.’’ Dawson, on the other hand, testi-

fied that he and Hawkins had never discussed robbing the

gas station, that Hawkins had gone back and committed

the crime on his own after the defendant’s car had broken

down several blocks from the service station, and that he

Was unaware that Hawkins had robbed the station until

after they had driven out of town.

The jury was given an Illinois Pattern Jury Instruction

(IPI Criminal No. 5.08), which states:

‘*\ person is responsible for the conduct of another

person when, either before or during the commission

of a crime, and with the intent to promote or facilitate

the commission of a crime, he knowingly solicits, aids,

abets, agrees or attempts to aid the other person in

the planning or commission of the erime.”’

This instruction was followed by a description of the

App. A - III

clements of the offense of armed robbery and the requisite

proof of that offense. The court then gave IPI Criminal

instruction 7.02: |

‘*To sustain the charge of murder, the State must

prove the following propositions:

First: That the defendant performed the acts which

caused the death of [Charles Duane McKinney] ;

Second: That when the defendant did so,

[1] he intended to kill or do great bodily harm to

{Charles Duane McKinney], or

[2] he knew that his act would cause death or great

bodily harm to [Charles Duane McKinney], or

[3] he knew that his acts created a strong probability

of death or great bodily harm to [Charles Duane

McKinney], or

[4] he was attempting to commit or was committing

the crime of [armed robbery].

If you find from your consideration of all the evidence

that each of these propositions has been proved beyond

a reasonable doubt, then you should find the defendant

guilty.

If, on the other hand, you find from your considera-

tion of all the evidence that any of these propositions

has not been proved beyond a reasonable doubt, then

you should find the defendant not guilty.’’? [Kmphasis

added.

The appellate court majority treated the case as though

it involved only a verdict of not guilty of felony murder

under the accountability statute, and a verdict of guilty of

armed robbery. Considering the case upon this assumption,

we do not agree with the reasoning of the majority. Rather

we think that the appropriate considerations are those

discussed by Judge Friendly in United States v. Carbone

(2d Cir. 1967), 378 F.2d 420:

“The very fact that the jury may have acquitted

vf one or more counts in a multicount indictment be-

App. A-IV

cause of a belief that the counts on which it was con-

victed will provide sufficient punishment, see Steckler

v. United States, supra, 7 F.2d at 60, forbids allowing

the acquittal to upset or even to affect the simultaneous

conviction. We have repeatedly so held, e.g., in United

States v. Coplon, 185 F.2d 629, 633, 28 A.L.R. 2d 1041

(2 Cir. 1950), cert. denied, 342 U.S. 920, 72 S.Ct. 362,

96 L.Ed. 688 (1952), United States v. Mareone, 275 F.2d

205 (2 Cir.), cert. denied 362 U.S. 963, 80 S.Ct. 879, 4

L.Ed. 2d 877 (1960), and United States v. King, 373

F.2d 813, 815 (2 Cir. 1967). Indeed, if the rule were

otherwise, the Government would be entitled to have

the jury warned that an acquittal on some counts might

undermine a guilty verdict on others— almost the

opposite of the standard instruction, which is obviously

beneficial to criminal defendants, and which the judge

gave here without objection. It is true, as both Judge

Hand and Mr. Justice Holmes recognized, 7 F.2d at 60,

284 U.S. at 394, 52 S.Ct. 189, that allowing inconsistent

verdicts in criminal trials runs the risk that an occa-

sional conviction may have been the result of compro-

mise. But the advantage of leaving the jury free to

exercise its historic power of lenity has been correctly

thought to outweigh that danger. See United States v.

Maybury, supra, 274 F.2d at 902-903.’ 378 F.2d 420,

422-423; see also Dunn v. United States (1932), 284

U.S. 390, 76 L.Ed. 356, 52 S.Ct. 189; People v. Hairston

(1970), 46 I1l.2d 348.

But we think that the assumption upon which the appel-

late court majority considered the case failed to take into

account the problems that confronted the jury. While the

indictment contained three counts, only two forms of verdict

were given to the jury — one form covering murder and

the other armed robbery. The instruction dealing with

murder (1P1 Criminal 7.02) could have easily confused the

jury because it provided that the jury had to find Dawson

euilty beyond a reasonable doubt of cach of the propositions

listed in the instruction. Also, under the instructions which

App. A-V

were given, the Jury was required to find that the defendant,

Dawson, had ‘‘performed the acts which caused the death

of Charles Duane McKinney’? or that ‘‘when the defendant

did so he intended to kill or do great bodily harm to Charles

Duane McKinney.’’? The evidence, however, clearly indi-

cated that it was Hawkins, alone, who committed the murder.

It is true that the jury was given an accountability instrue-

tion (IPI Criminal 5.03); this instruction, however, was

never incorporated into a murder instruction. We cannot

assume that the jury took this abstract accountability in-

struction and used it to rewrite the murder instruction.

The ‘‘iniconsisteney’? upon which the appellate court

reversed the defendant’s conviction of armed robbery was

therefore nonexistent, and for that reason the judgment of

the appellate court is reversed. Because Other errors were

asserted by the defendant which were not considered by the

appellate court, the cause is remanded to that court for

further consideration.

Reversed and remanded.

App. B-I

APPENDIX B

STATE OF ILLINOIS

APPELLATE COURT

AT AN APPELLATE COURT, for the Fourth Judicial

District of the State of Lllinois, sitting at Springfield:

PRESENT

HONORABLE SAMUEL O. SMITH, Presiding Judge

HONORABLE HAROLD F. TRAPP, Judge

HONORABLE JAMES C. CRAVEN, Judge

Attest: ROBERT L. CONN, Clerk.

BE IT REMEMBERED, that to-wit: On the 2nd day

of May A.1). 1974, there was filed in the office of the Clerk

of the Court an opinion of said Court, in words and figures

following:

STATE OF ILLINOIS

APPELLATE COURT

FOURTH DISTRICT

General No. 11981 Agenda 73-121

THE PEOPLE OF THE STATE OF |

ILLINOIS, |

Plaintiff-Appellee, Appeal from

Circuit Court

Vv. '

Morgan County

DANNY R. DAWSON, |

Defendant-Appellant. |

MR. JUSTICE CRAVEN delivered the opinion of the

court:

Defendant was found guilty by a jury in the cireuit court

of Morgan County of the offense of armed robbery but not

App. B-Tl

euilty of the alleged murder arising out of the same armed

robbery. Judgment of conviction was entered on the verdict.

Defendant was sentenced to an indeterminate term of 15 to

40 vears and appeals.

While several issues are urged on appeal, we need discuss

only the one which is dispositive. Defendant avers that

the verdicts were legally inconsistent. We agree.

Defendant and his accomplice, David L. Hawkins, were

apprehended by the Morgan County authorities for the

armed robbery of a Wareco Station located in Jacksonville,

Illinois, and the murder of one Charles Duane McKinney,

the service station attendant. On December 15, 1971, de-

fendant and Hawkins were indicted in a three-count in-

dictment: Count I charged defendant with murder in that

‘the did without lawful justification, intend to kill or do

great bodily harm to Charles Duane McKinney, and did by

the use of a gun shoot and kill the said Charles Duane

McKinney,’’ in violation of Ill. Rev. Stat. 1969, ch. 38, {| 9-1

(a)(1); Count II charged defendant with murder in that

‘‘he did without lawful justification, (sic) shoot and kill

with a gun, Charles Duane McKinney, while committing a

forcible felony, to-wit: an armed robbery,’’ in violation of

chapter 38, © 9-1(a)(3); Count III charged defendant with

the offense of armed robbery in that ‘the did take property

from the person or presence of another, to-wit: Charles

Duane McKinney, at tlie Wareco service station at 602 N.

Main St., Jacksonville, Illinois, while armed with a danger-

ous weapon,’’. Hawkins plead guilty to the charge of

murder and was sentenced to an indeterminate term of

35 to 95 vears in the Hlinois State Penitentiary. See People

ve. Hawkins, 14 LApp.3d 549, 302 N.E.2d 128.

Defendant’s trial commenced on March 17, 1972. David

L.. Hawkins was called to testify for the State. He testified

App. B - III

that he was serving a sentence of 35 to 95 years for the

murder of Charles McKinney. He positively identified the

defendant as being the same individual that had been with

him on the night of the incident in question. He stated

that he had known the defendant for five or six years.

Iluwkins testified that he and defendant had been drink-

ing beer in Winchester until approximately 1:00 a.m. on

November 16, 1971. Thereafter they went to Jacksonville

to spend the night at defendant’s sister’s residence. On

the way to Jacksonville he and defendant had a conversa-

tion in which defendant allegedly stated that they needed

more money to purchase beer and that defendant knew of

a gas station that would be easy to rob.

They arrived at the gas station around 1:45 a.m., entered

und bought a pack of cigarettes. Thereafter they left and

drove around the block. On the way back to the station,

defendant allegedly handed Hawkins a pistol and said, ‘‘If

the dude gives you any trouble, just shoot him.’’

At this point in Hawkins’ testimony, he identified Peo-

ple’s Exhibit No. 6A — a .22 calibre pistol — as the weapon

used in the incident. Hawkins stated that the pistol was

owned by defendant and that it was normally kept in the

slove compartment of defendant’s automobile.

The witness stated that after they had circled the block,

defendant let him out. Hawkins proceeded to the Wareco

Service Station where he shot and robbed the victim. When

asked by the state’s attorney where the defendant was

during this time, the witness stated: ‘‘He stayed out.’’

Hawkins took the coin changer and an undetermined sum

of cash from tle deceased. Once in the automobile, he stated

he dumped the contents of the coin changer and all the bills

onto the seat of the ear. The defendant then drove into

ihe country on the ‘* Poor Farm Road.’? Defendant stopped

App. B-1V

his car on a bridge over a creek where they split the pro-

ceeds of the robbery. Defendant threw the gun and coin

changer into the creek. He then proceeded to his sister’s

residence in order to establish an alibi. The witness con-

tended that Dawson suggested that they needed an alibi.

On cross-examination, defense counsel questioned Haw-

kins concerning the nature of his relationship with defen-

dant. Hawkins conceded that defendant was not an intimate

friend, but rather a casual acquaintance. He also admitted

he was high on drugs the night of the incident; and that

he was jobless at that time and dependent upon his mother

and uncle for support; and that he had experimented with

several types of drugs — angel dust in particular. This

drug is a combination of cocaine, heroin and morphine.

Under further cross-examination, the witness admitted he

really did not know how many times he shot the attendant

and that he could not clearly remember the defendant telling

him that he should shoot the gas station attendant if the

latter gave him any trouble. His lapse of memory was due

to the fact that he had taken some heroin that evening, but

he was positive that defendant had suggested that they

needed an alibi. Cross-examination ended with a discussion

of the condition of defendant’s automobile on the evening

of the incident.

When defendant took the stand, his testimony was com-

pletely at odds with that given by Hawkins. The defendant

admitted that the murder weapon was his and presented

a valid registration for the gun. He also admitted that he

kept the pistol in the glove compartment of his car. He

contended that the pistol was never loaded while it was in

his glove compartment.

Concerning the night of the incident, the defendant testi-

fied that he met Hawkins around 9:30 or 10:00 p.m, on the

Pde +o

App. B-V

evening of November 15. He and Hawkins eventually de-

cided to go to Jacksonville where they intended to ‘‘find

some girls.’? They stopped at the Wareco Station in Jack-

sonville around 1:30 a.m. in order to purchase some cigar-

ettes. Defendant admitted that he and Hawkins had been

drinking before they went to Jacksonville. He denied that

he ever suggested to Hawkins that they should rob the

Wareco Station or that Hawkins should kill the attendant.

After leaving the filling station, he and Hawkins drove

away in his automobile. The car eventually died and he

told Hawkins to go back to the Wareco Station to seek

assistance. After Hawkins left, defendant got out of his

automobile, opened up the hood and attempted to ascertain

the nature of his trouble. He found a battery post was

loose. He tightened the battery post and the car started.

'fawkins had not yet returned so defendant backed up and

turned onto a side street. Just at that moment, Hawkins

came around the corner and got into the car. Defendant

then drove off. According to defendant, Hawkins did not

say anything concerning the robbery and the shooting. He

did not notice anything in Hawkins’ hand when he entered

the car. After defendant had driven three or four blocks,

Hawkins stated he had just killed the gas station attendant.

At first defendant thought Hawkins was joking, so he kept

on driving. He drove out to the edge of town in order to

permit oe, See himself and stopped as soon as

he came to the ** r Farm Road.”’ It was at this time the

defendont noticed the money changer and the gun lying on

the floorboard of the ear. He realized that Hawkins was

not joking. Defendant stated he grabbed the gun and threw

it, for he was afraid that Hawkins might try to shoot him.

Defendant contended that at no time did he intend or plan

with David ITlawkins to rob the Wareco Station, nor did

he instruet Hawkins to kill the attendant.

App. B- VI

On cross-examination, the defendant denied that he had

suggested to Hawkins that they should go to his sister’s

in order to establish an alibi. However, he admitted that

he split the proceeds of the robbery with Hawkins.

The jury found defendant guilty of Count LI of the in-

dictment — armed robbery; and not guilty of Count I —

murder; and not guilty of Count Il — murder committed

in the course of the armed robbery.

Defendant contends that the jury rendered an inconsistent

verdict when it returned the verdict of not guilty of Count

II, murder committed in the course of the armed robbery,

and guilty of Count II], armed robbery, and he should be

discharged. He argued that armed robbery, being a forcible

felony, is an essential element of felony murder; therefore,

an acquittal on the charge of felony murder meant that the

defendant had to be innocent of armed robbery. The State

argues that the verdicts are not inconsistent because the

jury could have found that the State failed to prove beyond

a reasonable doubt the additional element of causing the

death of the victim that is not present in the crime of armed

robbery.

Both parties submit that People v. Hairston, 46 Ill.2d

348, 263 N.E.2d 840, is controlling. In Hairston, the Su-

preme Court said:

‘“* * * But where, as here, the verdicts inconsistently

acquit and convict of separate crimes arising from thie

same act, our courts have followed the view that logical

consistency in verdicts in such instances is not neces-

sary, so long as the verdicts are not legally inconsistent.

(Citations) * * * [Wle follow tue view that: ‘In law

there is no inconsistency in verdicts of acquittal and

conviction upon charges of crimes composed of different

elements, but arising out of the same state of facts’.”’

(46 [b2d S48, 361-362.)

App. B- VII

In determining whether verdicts are legally inconsistent,

one must examine the elements of the crimes involved. If

the crimes that the verdicts of acquittal and conviction are

rendered on are composed of different elements, then dif-

ferent verdicts can stand. If the elements of the crime are

the same, then the verdicts must be the same. The test is

whether the elements in the count wherein the accused is

acquitted are identical to, or must be found in order to

support a guilty verdict upon the count which resulted in

2 conviction. If so, the verdicts must be identical. (Peeple

v. Joyner, 50 U1.2d 202, 278 N.E.2d 76656.) A verdict which

acquits the aceused of a crime which includes acts necessary

for the commission of another crime for which he is found

guilty is inconsistent.

In this jurisdiction, the rule is that when a murder is

committed during a robbery, all participants in the robbery

are deemed equally guilty of the murder, and it is immaterial

who fired the fatal shot. The defendant need not have been

actually present at the killing in order to be guilty under

the felony murder doctrine. People v. Johnson, 55 Tll.2d

§2, 302 N.E.2d 20.

The elements of felony murder are found in Illinois Re-

vised Statutes, 1971, chapter 38, paragraph 9-1, which pro-

vides in part:

‘*(a) A person who kills an individual without lawful

justification commits murder if, in performing the acts

which cause the death:

* 7 .

(3) He is attempting or committing a forcible

felony other than voluntary manslaughter.’’

Under Illinois Revised Statutes, 1971, chapter 38, para-

eraph 5-2, any individual who aids or abets the planning or

commission of a crime is legally accountable for the conduet

of the principal. Chapter 38, paragraph 5-2, would make

App. B- VIL

an accomplice liable for the felony murder committed by

his principal. People v. Morris, 1 Ul. App.3d 566, 274 N.E.2d

898.

The jury was given instructions on accountability, armed

robbery and murder which ineluded a paragraph on felony

murder. These instructions state in part as follows:

‘*A person is responsible for the conduct of another

person when either before or during the commission of

a crime, and with the intent to promote or facilitate

the commission of a crime, he knowingly solicits, aids,

abets, agrees or attempts to aid the other person in

the planning or commission of the crime.”’

‘*A person commits the crime of armed robbery

who, while armed with a dangerous weapon, takes

property from the person or presence of another by

the use of force or by threatening the imminent use

of force.’’

‘*To sustain the charge of armed robbery, the State

must prove the following propositions:

FIRST; That the defendant took money from the

person or presence of Charles Duane McKinney;

and

SECOND; That the defendant did so by the use

of force or by threatening the imminent use of

foree; and

THIRD; That the defendant was armed with a

dangerous weapon.

If you believe from your consideration of all the

evidence that each of these propositions has been proved

beyond a reasonable doubt, then you should find the

defendant guilty.

If, on the other hand, you find from your considera-

tion of all the evidence that any of these propositions

has not been proved beyond a reasonable doubt, then

App. B- 1X

First: That the defendant performed the acts

which caused the death of Charles Duane McKin-

ney,

Second: That when the defendant did so,

(1) he intended to kill or do great bodily harm

to Charles Duane McKinney, or

(2) he knew that his act would cause death or

great bodily harm to Charles Duane McKin-

ney, or

(3) he knew that his acts created a strong prob-

ability of death or great bodily harm to Charles

Duane McKinney, or

(4) he was attempting to commit or was commit-

ting the crime of armed robbery.

If you find from your consideration of all the evi-

dence that each of these propositions has been proved

beyond a reasonable doubt, then you should find the

defendant guilty.

If on the other hand, you find from your consideration

of all the evidence that any of these propositions has

not been proved beyond a reasonable doubt, then you

should find the defendant not guilty.’’

‘*A person commits the crime of murder who kills

an individual if, in performing the acts which cause

the death,

he intends to kill or do great bodily harm to that

individual; or

he knows that such acts will cause death to that

individual; or

he knows tliat such acts create a strong probability

of death or great bodily harm to that individual;

or

he is attempting to commit or is committing the

erime of armed robbery.”’

They found defendant not guilty of murder as charged

onder chapter 38, paragraphs 9-1(1) and 9-1(5), but guilty

of armed robbery. [tis clear from the above cited authority

vou should find the defendant not guilty.”’

“To sustain the charge of murder, the State must

prove the following propositions :

’

$

|

2

é

é

App. B-X

that the jury’s verdicts were legally inconsistent as well as

logically inconsistent.

This court is aware of the line of authority which holds

that each count in an indictment, when charging separate

offenses, are separate and distinct as a matter of law, no

matter how closely they may be related in fact, and that

consistency in a verdict is not necessary. Dunn v. United

States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356.

In People v. Taylor, 56 Il.App.2d 170, 205 N.E.2d 807,

the court stated the above cited rule and discussed People

v. Raddatz, 403 Ill. 48, 85 N.E.2d 32. The court noted that

in Raddatz the appellant was found guilty of contributing

to the delinquency of a minor, but innocent of the charge

of indecent liberties. The evidence was the same for both

charges and it was clear that the appellant was guilty or

innocent of both charges; however, the appellate court

noted that the Supreme Court found the jury could return

a logically inconsistent verdict as long as the verdicts were

not legally inconsistent.

In People v. Garnett, 113 Il. App.2d 159, 251 N.E.2d 761,

the court therein applied the rule found in Taylor. It held

that the verdicts of guilty of attempted armed robbery

and not guilty of murder were not inconsistent. The court

predicated its holding upon the reasoning that the verdicts

need not be treated as logically inconsistent since the jury

could have believed beyond a reasonable doubt that the

defendant participated in the armed robbery attempt, but

had reservations about his actually stabbing the decease.

In People v. Sanders, 6 IN. App.3d 820, 286 N.B.2d 785,

it was held that a guilty verdict in the charge of armed

robbery and an acquittal on the charge of murder was not

legally inconsistent, notwithstanding the apparent logical

inconsistencies of the verdicts. The court noted that the

App. B - XI

crimes charged in the indictment were composed of different

elements, even though they arose out of the same set of

facts. The court relied on the rule found in Hairston.

We find these cases to be inapposite to the case at bar.

This case presents a unique problem of apparent first im-

pression. Here the court is confronted with an indictment

that in Count I charges defendant with murder under

chapter 58, paragraphs 9-1(1) and in Count II, murder

committed in the course of a forcible felony under 9-1(3),

and in Count III with armed robbery. The latter two of-

fenses, while being separately charged, are in law a single

offense if the armed robbery resulted in a death. For

where two or more defendants have common design to

commit an unlawful act, any act done by any of them in

furtherance of the common design is the act of all, and all

are generally guilty of whatever crime is committed. If

the defendant was guilty of armed robbery that was ac-

complished by Hawkins (the principal), then he is liable

for all of the acts of Hawkins, including the murder. When

the jury found defendant not guilty of murder under chapter

38, paragraphs 9-1(1) and 9-1(5), they actually acquitted

him of any participation in the only unlawful act giving

rise to the murder —the armed robbery. The verdict of

guilty of armed robbery was inconsistent for it found that

defendant had participated in the crime that resulted in

ihe felony murder of the gas station attendant. To say that

defendant was not guilty of murder under paragraph 9-1

(3), the jury had to find that defendant was not guilty of

armed robbery. .

This case does not present a set of facts like those found

in Garnett where the jury could have believed that the

accused participated in armed robbery, but did not actually

murder the deceased. The facet that defendant was found

guilty of armed robbery meant he is liable under the theory

Se ee a

App. B- XII

of accountability propounded by the State for the felony

murder of the deceased. The defendant herein, as opposed

to those in the Garnett and Sanders cases, was indicted for

felony murder (ch. 38, par. 9-1(3)) as well as murder (ch.

38, par. 9-1(1)) and armed robbery.

The instructions given the jury concerning the two murder

charges were inartfully drawn in that the two offenses

were joined together in the same instruction. Also, in the

body of the instruction disjunctive language was used, yet

the last sentence of the instruction required the jury to

view the instruction in the conjunctive. The result being

that the instruction made it difficult for the jury to find the

defendant guilty of murder under any theory.

We now turn to defendant’s contention that he be dis-

charged. In Hairston, the court stated that for a double

jeopardy claim to be viable, defendant must establish that

the two offenses charged are in law and in fact the same

offense. The court went on to note it is the identity of the

offense and not of the act which is referred to in the con-

stitutional guarantee against double jeopardy. Further-

more, the court noted that double jeopardy bar has no appli-

cation where two separate and distinct crimes are com-

mitted by one and the same act. The court stated:

soo * * The test is not whether the defendant has

already been tried for the same act, but whether he

has been put in jeopardy for the same offense. A single

act may be an offense against two statutes; and if each

statute requires proof of an additional fact which the

other does not, an acquittal or conviction under either

statute does not exempt the defendant from prosecution

and punishment under the other’.’’ (265 N.K.2d 840,

$47.)

The defendant has been acquitted of felony murder. Such

amounts to an acquittal on the charge of armed robbery

App. B - XIII

since under the facts and law of this case the two offenses

are in law the same offense.

Accordingly, the judgment of conviction for armed rob-

hery is reversed.

REVERSED.

TRAPP, J., Coneurs; SMITH, P.J., dissents.

SMITH, J., dissenting:

1 would affirm the conviction for armed robbery. The

majority would acquit and discharge the defendant by con-

cluding that the verdict of not guilty of murder and the

verdict of guilty of armed robbery are legally inconsistent.

This they do as we shall see by evading or avoiding the

result in Hairston while on the surface approving its prin-

ciples. In Hairston, as here, the liability of the defendant

was grounded upon our accountability statute. There the

defendant was indicted for murder, attempted murder and

solicitation to commit murder. There the defendant argued

that a verdict of guilty of solicitation is inconsistent with a

verdict of not guilty of murder and attempted murder,

and thus his discharge was required. The Supreme Court

rejected this argument and affirmed the conviction for

solicitation. When the Supreme Court there affirmed, why

the majority here would acquit, escapes me.

If these verdicts are so legally inconsistent that a guilty

verdict of armed robbery cannot survive, then the same

legal inconsistency which destroys that verdict, destroys

the not guilty verdict on murder also. The court in Hairston

stated at page 561, ‘** * * It was aptly stated by a Missouri

court in State vr. Akers, 213 S.W. 424: ‘If the verdict * * *

Was too inconsistent to support a judgment of conviction,

it was likewise too inconsistent to support a judgment of

acquittal. As has often been said, ‘*it is a poor rule that

App. B- XIV

does not work both ways**’.’’ Our court stated unequiv-

ocally that where inconsistent verdicts of guilty were re-

turned on separate indictments or separate counts of a single

indictment, a reversal and a new trial must follow, and

quoted with approval at page 362 from State v. Baird, 93

P.2d 409, 412, as follows: ‘‘In law there is no inconsistency

in verdicts of acquittal and conviction upon charges of

crimes composed of different elements, arising out of the

same set of facts.’’ Our Supreme Court then concluded

that the verdicts there were legally consistent if not logically

so, and the defendant’s claim of a right to discharge must

be denied. In People v. Sanders, 6 Tll.App.3d 820, 286 N.E.

2d 785, the defendant was charged with murder, attempted

murder and armed robbery. He was acquitted on the first

two charges and convicted on the armed robbery charge.

The court in Sanders specifically held that the verdict was

legally consistent although not logically so. The crimes

charged in the indictment were composed of different ele-

ments although they arose out of the same set of facts and

cited Hairston with approval. It seems clear that we have

an identical situation here. If the jury in this ease had

found the defendant not guilty of armed robbery and guilty

on the felony murder count, a conviction on that count

could not stand for the very simple reason that a felony

murder conviction cannot be sustained if no felony was

committed. In such instance, you have truly legally incon-

sistent verdicts. What the majority overlooks is that there

were three counts in this indictment. The two murder

counts were submitted under the same instruction and a

single verdict returned. When one reviews the evidence,

it seems quite clear that there is a rational basis upon which

the jury predicated their single not guilty verdict on murder

and their single guilty verdict on armed robbery. If they

helieved the testimony of Dawson that his ear broke down

and he sent Hawkins back to the filling station for help

App. B- XV

rather than the testimony of Hawkins, then there is a factual

basis for distinguishing between the culpable criminality

of Hawkins and the culpable criminality of Dawson. Hawk-

ins by his own testimony had committed the actual robbery

and murder. He testified that the defendant told him to

rob the service station, handed him a loaded revolver and

stated, ‘‘If the dude gives you any trouble, just shoot him.”’

Hawkins ‘‘shot him, robbed him, come back out.’’ Dawson

denied this testimony of Hawkins and said he sent Hawkins

to the service station because his car had stopped on him.

However, he did divide the proceeds of the robbery. On

the theory of accountability, the majority seems to feel

that the jury should have returned a verdict of guilty as

to murder. Perhaps they should have, but I know of no

rule of law that required them to do so. They did find

him guilty of armed robbery.

To hold that this defendant is legally unaccountable on

this three-count indictment on a theory of inconsistent ver-

diets and judicially hold that he is accountable for nothing

strikes me as far more inconsistent than the jury’s verdicts,

either legally, logically, or factually.

Accordingly, it seems to me that in reliance on a purely

legalistic theory, the majority uses our accountability stat-

ute to discharge a guilty defendant instead of using that

statute as it was intended, that is, to authorize convictions

on the principle of accountability, although there was no

active actual participation or presence at the scene by the

persons charged. It seems to me that if Muirston is to be

followed at all, it should result in an affirmance of the de-

fendant’s conviction. That is what they did in Hairston,

that is what we should do here. Cases collected in 18 ALR

hl 209, 274, suggest that this is by far the practical, pre-

vailing view.

ali J