{ "id": 5382471, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALPH TOMPKINS, a/k/a Boskie Prater, a/k/a Boxie Prater, Defendant-Appellant;THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUDY SILAS, a/k/a Rudy Madden, Defendant-Appellant", "name_abbreviation": "People v. Tompkins", "decision_date": "1976-06-30", "docket_number": "Nos. 74-416, 75-237 cons.", "first_page": "835", "last_page": "839", "citations": [ { "type": "official", "cite": "39 Ill. App. 3d 835" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "39 Ill. App. 3d 710", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5381152 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/0710-01" ] }, { "cite": "29 Ill. App. 3d 669", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2499976 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0669-01" ] }, { "cite": "29 Ill. App. 3d 74", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2498993 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0074-01" ] }, { "cite": "60 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5414551 ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0001-01" ] }, { "cite": "53 Ill. 2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2927578 ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0062-01" ] }, { "cite": "56 Ill. 2d 493", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405202 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0493-01" ] }, { "cite": "56 Ill. 2d 175", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405086 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/56/0175-01" ] }, { "cite": "305 Ill. 493", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2428384 ], "opinion_index": 0, "case_paths": [ "/ill/305/0493-01" ] }, { "cite": "27 Ill. 2d 398", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360433 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/ill-2d/27/0398-01" ] }, { "cite": "17 Ill. 2d 614", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5333783 ], "year": 1963, "pin_cites": [ { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/17/0614-01" ] } ], "analysis": { "cardinality": 538, "char_count": 10254, "ocr_confidence": 0.877, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.1586281671248015 }, "sha256": "8119cef9b78715a9aa8ed5b3d83c279fe378d1a78e737abc80ed1ec0f4b131af", "simhash": "1:99297448eeb203bf", "word_count": 1749 }, "last_updated": "2023-07-14T15:44:11.874495+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALPH TOMPKINS, a/k/a Boskie Prater, a/k/a Boxie Prater, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUDY SILAS, a/k/a Rudy Madden, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE DIXON\ndelivered the opinion of the court:\nDefendants Ralph Tompkins and Rudy Silas were indicted by a Lake County grand jury for attempt to commit murder, attempt to commit armed robbery, aggravated battery, and armed violence arising out of an incident at the Tee Pee Liquor Store in North Chicago on February 7, 1974. They were tried jointly in a single jury trial, and both were found guilty of attempt to commit murder and attempt to commit armed robbery. Judgments were entered on both verdicts against both defendants, however in each case the mittimus referred only to the attempt to commit murder charge, and the court imposed a single sentence of 7-21 years on each defendant.\nEach defendant pursued his appeal separately, but because of the similarity of issues presented for review, the appeals have been consolidated for this opinion. Defendant Tompkins contends that he was deprived of a fair trial because the court made a ruling \u201cas a matter of law\u201d as to a factual issue by telling the jury that the photograph in question was a picture of defendant Tompkins. Both defendants allege error in the court\u2019s entry of judgments on both attempt murder and attempt robbery, contending that the offenses arose from a single transaction, and that the convictions for armed robbery should be reversed. We find no merit in either contention.\nThe evidence at trial which gave rise to the first issue on appeal is as follows. Waukegan Police Officer Pasquini testified that on February 20, 1974, after informing defendant Silas of his rights, he asked him if he robbed the Tee Pee Liquor Store; that Silas\u2019 answer was that he did, but he didn\u2019t shoot the man, Boskie Prater did. The court instructed the jury not to consider this statement with respect to the case against Tompkins. North Chicago Police Officer Knox testified that the same evening he spoke to Silas who told him that he (Silas) and Boskie Prater were both armed when they robbed the liquor store.\nLake County Assistant State\u2019s Attorney Michael Cummins testified that he spoke with defendant Tompkins, who said he was also known by the name of \u201cBoxie\u201d Prater. After advising Tompkins of his rights he handed Tompkins a statement he had earlier taken from Silas, which stated that Silas and Boxie Prater had attempted to rob the Tee Pee Liquor Store and that Boxie had shot twice at the owner. Cummins testified that as Tompkins read the statement, he pointed to the name \u201cRobert Thompkins [sic]\u201d and said \u201cThat\u2019s not me.\u201d Cummins told Tompkins to read further, because when taking the statement from Silas, Cummins had shown him a color photograph, a mug shot, People\u2019s Exhibit #13 and asked, \u201cIs this the picture of the man you know as Boxie Prater?\u201d Cummins testified Silas said \u201cYes,\u201d and signed his name on the back of the photograph. Cummins, when asked at trial to identify the man portrayed in the photograph, pointed to defendant Tompkins. The officer further testified that defendant Tompkins then gave a statement admitting his participation in the incident.\nDefendant Tompkins did not testify at trial, defendant Silas did take the stand and denied that he had ever committed the offense or given a statement to Cummins or the police about it.\nWhen the State sought to introduce the photograph into evidence, defendant objected because it was a mug shot. The court allowed it into evidence, but later when ruling on which exhibits would be sent to the jury, the court decided to \u201chold it out at the present time.\u201d\nAfter the jury had deliberated approximately V\u00ed\u00ed hours, they sent the judge a slip of paper which read: \u201cPlease send in photo identified by Silas of Tompkins.\u201d The court stated to all the attorneys that it was either going to attempt to cut away the picture\u2019s identification as a mug shot and give it to the jury or else state to the jury that it is a photograph of defendant, but was not being submitted for reasons with which they (the jury) should not concern themselves. The court stated to the attorneys that as a matter of law it didn\u2019t feel that reasonable men, in looking at the photograph and looking at defendant Tompkins, could differ in finding that it was a photograph of defendant. Tompkin\u2019s attorney objected to either alternative, stating:\n\u201cMy sole concern is that it is definitely a mugshot 0 0 0 regardless of how it is cut up or folded and/or pasted * * \u00b0 it is going to look like a mugshot * * *. I think Mr. Cummins has identified the picture and he has identified Mr. Tompkins, and I think to the satisfaction of the jury he has been identified.\n* # #\nIt seems to me there has been sufficient evidence adduced that the photograph is of Ralph Tompkins. I think if the court makes the comment, the fact that \u2018Yes, it is Mr. Tomkins\u2019 it is just adding more impact to it.\u201d\nThe court then decided to make the statement to the jury rather than submit the photograph.\nDefendant has adequately cited to us the line of cases holding that judges should refrain from conveying to jurors their personal opinions concerning any disputed questions of fact. (People v. Finn (1959), 17 Ill. 2d 614,617; People v. Sprinkle (1963), 27 Ill. 2d 398; People v. Provenzano (1922), 305 Ill. 493.) However those cases are not applicable to this situation where, as even indicated by the statements of Tompkins\u2019 attorney, the identity of the person portrayed in the photograph was not a disputed factual issue in the case. Defendant objected to its submission to the jury because it was a mug shot and objected to the court\u2019s statement because he felt it emphasized the State\u2019s case. The only evidence concerning the identity of the photograph at trial came from Cummins who identified the person portrayed as Tompkins. The effect of Silas\u2019 testimony at trial was not to deny that the photograph portrayed Tompkins, rather he denied that he had ever spoken to the officers or seen the photograph before. There was no dispute as to the identity of the person in the photograph, and we therefore hold the court\u2019s comment to the jury that the man in the photograph was Tompkins was not reversible error. Tompkins was not deprived of a fair trial because the court did not make a ruling on a disputed factual isssue.\nWe next proceed to the contention raised by both Tompkins and Silas in their separate appeals, that their convictions for attempt armed robbery must be reversed as the less serious of the two offenses arising from the same transaction. The defendants base their claim on People v. Hickman (1973), 56 Ill. 2d 175, which held that a multiple concurrent sentence for attempt armed robbery could not be imposed in conjunction with a sentence for murder, and People v. Lilly (1974), 56 Ill. 2d 493, that if it is improper to impose separate sentences for two offenses arising from one transaction, it is also improper to enter judgment on both offenses.\nThe Illinois Supreme Court in People v. Hickman based its holding on Hickmans factual similarity to People v. Prim (1972), 53 Ill. 2d 62, where the court found attempt armed robbery and murder arose from the same conduct when an unarmed bus passenger was shot when she resisted as her purse was being taken away from her.\nHowever, we find the factual situation in the instant case to be closer to a more recent Illinois Supreme Court case on the subject, People v. Williams (1975), 60 Ill. 2d 1. There the corut allowed the separate convictions for armed robbery and murder to stand,\n\u201c* t> a even though the activity constituting both offenses was a series of very closely related acts. The purpose of the entry was robbery, not murder, and that objective changed to murder only when the robbers were confronted by Mr. Calderone with a gun in his hand. Then, they chose to commit a separate act for the purpose of killing Mr. Calderone. That shooting can be viewed as a means of removing an obstacle to their original objective of robbery, but it is also evident that at least part of their reason for killing was to avoid injury or apprehension by Mr. Calderone. 000 The convictions and sentences imposed upon the defendant for murder and armed robbery may both stand.\u201d (Emphasis added.) Williams, at 14-15.\nIn the instant case there was testimony that Tompkins told police that after he entered the liquor store and pushed the buttons on the cash register he saw Mr. Carter (the owner) come out and ask him what he was doing. Tompkins said he thought Carter might also have a gun, so he became scared and fired at Mr. Carter, ultimately striking him in the hip. It is clear in this case that the objective of the defendants was robbery; that the shooting was motivated by a desire to avoid injury or apprehension by Carter, a separate and distinct purpose. In Prim there was a single criminal objective (the defendant was not confronted with a gun) and therefore the crimes arose from the same conduct so that only the most serious conviction could stand. In Williams and in the instant case, the murder or attempt murder was motivated by a separate purpose, to avoid injury or apprehension, as well as to remove an unforeseen obstacle to the original objective of robbery. We therefore hold that here, as in Williams, the acts constituting attempt robbery and attempt murder are separate and distinct, and the multiple convictions are proper and may stand. See also People v. Burks (1975), 29 Ill. App. 3d 74; People v. Johnson (1975), 29 Ill. App. 3d 669 (abstract opinion); People v. Roop (1976), 39 Ill. App. 3d 710.\nFor the foregoing reasons, the judgments of the Circuit Court of Lake County are affirmed.\nJudgments affirmed.\nT. J. MORAN, P. J., and RECHENMACHER, J., concur.", "type": "majority", "author": "Mr. JUSTICE DIXON" } ], "attorneys": [ "Ralph Ruebner and J. Daniel Stewart, both of State Appellate Defender\u2019s Office, of Elgin, for appellants.", "Jack Hoogasian, State\u2019s Attorney, of Waukegan (Phyllis J. Perko and Robert L. Janes, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALPH TOMPKINS, a/k/a Boskie Prater, a/k/a Boxie Prater, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUDY SILAS, a/k/a Rudy Madden, Defendant-Appellant.\nSecond District (2nd Division)\nNos. 74-416, 75-237 cons.\nOpinion filed June 30, 1976.\nRalph Ruebner and J. Daniel Stewart, both of State Appellate Defender\u2019s Office, of Elgin, for appellants.\nJack Hoogasian, State\u2019s Attorney, of Waukegan (Phyllis J. Perko and Robert L. Janes, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0835-01", "first_page_order": 863, "last_page_order": 867 }