People v. Mulcahey ( 1977 )

Mr. JUSTICE STOUDER,

concurring in part and dissenting in part:

I join with my colleagues in affirming the defendant’s conviction and sentence for the offense of kidnapping. I do, however, respectfully disagree with their conclusion the evidence also supports the defendant’s conviction of attempt robbery.

There are few cases involving the offense of attempt robbery where there is not some evidence of a demand or effort to take property from the victim. While such a demand may not be necessary to support the attempt offense, it seems to me that the threat of force, and the intention which must accompany such a threat for the conduct to constitute a substantial step in the commission of the offense, must be a threat of force for the purpose of taking property.

It seems to be the position of the majority that because the threat of force is an element of robbery, it is sufficient to support the further inference that the threat was for the purpose of taking property. Once the threat of force is proved, according to the majority, the jury may then be permitted to find that the taking of property was intended even though nothing in the nature of the threat or its surrounding circumstances warrants such a conclusion rather than some other conclusion. Even though the evidence in this case might support a charge of aggravated assault or attempt wrongful detention, there is nothing in the evidence from which the further element of an attempt to take property may be inferred. Certainly, the verdict of the jury is to be given great weight, but this rule is not a substitute for the rule which requires that there be evidence of the elements of an offense before a jury’s verdict can be sustained.

The majority cites two cases, People v. Murff, 29 Ill. 2d 303, 194 N.E.2d 226, and People v. Turner, 108 Ill. App. 2d 132, 246 N.E.2d 817, as bearing on this issue. However, in each of the cases the threat of force was that of a passenger directed toward a cab driver under circumstances where common experience suggested that an aggravated assault was not all that was intended. In Murff, defendant was charged both with assault with the intent to commit murder and assault with the intent to commit robbery. He actually fired several shots at the cab driver, which supported the charge of assault with the intent to kill, and there was evidence that a passenger had feigned an injury in order to put himself in close proximity to the driver. It should also be noted that, when the driver returned, his cash box was gone. Similarly, in the Turner case, the court concluded there was ample evidence defendant intended to commit a criminal offense and from the nature of the relation between the parties, i.e., passenger and taxi cab driver, and the language of the defendant, the intention to take property had been manifested.

In the instant case I find no manifestation of any intention to take property from the complaining witness. I agree that a statement of a defendant concerning his intention may be disregarded, but this does not necessarily mean that a contrary intention is thereby proved. Other than the language of the threat, there is nothing in the testimony of the complaining witness from which it may be inferred that the taking of property was intended or that the complaining witness believed this was the case. I would therefore reverse defendant’s conviction for attempt robbery.