Summary
In People v. Cassin, 322 Ill. 276, this court said that reference to the arguments of counsel might properly have been made in an instruction.
Summary of this case from People v. NeyOpinion
No. 17500. Judgment affirmed.
Opinion filed June 16, 1926. Rehearing denied October 12, 1926.
WRIT OF ERROR to the Criminal Court of Cook county; the Hon. WILLIAM N. GEMMILL, Judge, presiding.
WILLIAM SCOTT STEWART, W.W. O'BRIEN, CLARENCE MERCER, and CHARLES P.R. MACAULAY, for plaintiff in error.
OSCAR E. CARLSTROM, Attorney General, ROBERT E. CROWE, State's Attorney, and MERRILL F. WEHMHOFF, (EDWARD E. WILSON, of counsel,) for the People.
Plaintiff in error was convicted in the criminal court of Cook county of robbery while armed with a dangerous weapon, to-wit, a pistol. He was sentenced to the State penitentiary at Joliet under the terms of section 246 of the Criminal Code providing that the imprisonment shall be for not less than ten years and may be for life. He brings the cause here for review, contending that under such an indictment, where no attempt was made to use the pistol, section 246 does not provide for the infliction of the heavier punishment. Complaint is also made of the admission of evidence and instructions to the jury.
Section 246 of the Criminal Code describes the crime of robbery, and in fixing the punishment provides: "Or if he is armed with a dangerous weapon or being so armed he wounds or strikes him," etc., the greater penalty shall be inflicted. Counsel argue that the word "or" should be construed to mean "and," and that before the infliction of the heavier penalty the indictment must charge and the proof show that the defendant was armed with a dangerous weapon and wounded or struck the victim. While in proper cases the word "or" may be construed to mean "and," there is nothing in this act that in any way indicates such an intention on the part of the legislature. It is a cardinal rule of construction of statutes that the intention of the legislature be given effect. ( Smith v. County of Logan, 284 Ill. 163.) We are of the opinion that this section of the Criminal Code means just what it says, and that conviction of robbery where the jury finds that the accused was armed with a dangerous weapon requires the imposition of the heavier penalty, whether such weapon was or was not used. ( People v. Hildebrand, 307 Ill. 544.) It was not error to impose the heavier penalty.
Complaint is made of the first instruction given on behalf of the State, which told the jury that they should not allow sympathy or prejudice to influence them and that they should not be influenced in their deliberation by anything other than the law and the evidence in the case. The argument is that the instruction directed the jury to disregard arguments of counsel, and that to so instruct the jury was error. In support of this contention counsel cite the case of People v. Ambach, 247 Ill. 451. That case, however, is not authority for such contention for the reason that the instruction there considered in effect told the jury that they were to disregard the arguments of counsel. The instruction in the case at bar did not refer to the arguments of counsel, and while reference thereto might properly have been made, they are, in fact, included within the scope of the law and the evidence, as arguments may properly refer only thereto. Failure to specifically mention arguments of counsel did not render the instruction erroneous.
It is also urged as an objection to this instruction that it did not include the instructions of the court as to the law. The jury were informed that they were to receive the law from the court, and it was not error to omit reference to the instructions of the court.
It is urged that there was not sufficient identification of the pistol and shells introduced in evidence. The record shows, and it is not denied, that the complaining witness, one Rogers, a taxi-driver, was requested by plaintiff in error to take him to a certain place in the city of Chicago, and when told that the taxi fare was forty-five cents he thereupon asked the taxi-driver to go to a certain address in the city and he would pay him; that arriving at that place they went into a passageway, where plaintiff in error drew a gun and told the complaining witness to throw up his hands, and that he took from witness' pocket the sum of $3 in currency, $4.80 in silver and a telephone slug; that the complaining witness, while later following plaintiff in error, saw policeman James P. Maloney and pointed out plaintiff in error on the street as the man who had robbed him. The officer pursued plaintiff in error into a vacant garage building, where he arrested him. On the policeman's request plaintiff in error procured the gun from a shelf in the garage where he had put it. The gun and shells were identified by Maloney and the ground for their introduction in evidence was sufficiently laid. The fact that the shells were not in the gun is of no consequence. They were shown to be the loads taken from the gun, and it is but in the interest of safety in the court room that the pistol should not be exhibited before the jury while loaded.
We find no reversible error in the record, and the judgment will be affirmed.
Judgment affirmed.