text:
    People of the State of Illinois, Plaintiff-Appellee, v. Luther Roy, Defendant-Appellant.
    Gen. No. 53,419.
    First District, Second Division.
    April 21, 1970.

      Rayson and Hutchison, of Tinley Park, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Laurence J. Bolon, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of the crime of indecent liberties with a child and sentenced to a term of four years to five years in the penitentiary. He appeals. Defendant’s motion made during oral argument to waive the filing of an abstract or excerpts of record was allowed.

Michael Veradi testified that on October 5,1967, he was thirteen years of age and attended junior high school in Harvey, Illinois. He testified that he attended classes in the morning on that day, and that he ate lunch at noon at the De Mars Restaurant in Harvey. As Michael was paying his bill about 12:30 p. m., he noticed defendant standing behind him, and as he walked out of the restaurant, defendant followed.

Outside the restaurant Michael asked the defendant to purchase some tickets for a function being held by his school. He testified that defendant stated that he had no money with him, but suggested that the boy accompany him to his apartment where he would get some money. Michael testified that defendant then told him that he could make two dollars if he stayed with him until 1:00 p. m. Michael agreed and the two drove off in defendant’s automobile.

Michael testified that defendant told him that he had an appointment in Chicago Heights, and that he and defendant drove in that direction for that reason. After a 45- to 60-minute ride, the pair stopped at a tavern where defendant consumed an alcoholic drink and Michael a soft drink. The pair then returned in defendant’s automobile to defendant’s apartment, the latter trip taking 25 to 30 minutes.

Michael testified that in the apartment, he seated himself on a chair near the television which was switched on by the defendant. Defendant then mixed an alcoholic drink and seated himself on the couch. Michael testified that defendant summoned him to the couch, unbuttoned and removed his (Michael’s) shirt, several times placed the mixed drink glass to his (Michael’s) lips for him to drink, and fondled his (Michael’s) penis for several minutes. Defendant asked Michael if he “liked it”; Michael answered in the negative and stated that he wished to go home. While driving back to the De Mars Restaurant where Michael had earlier left his bicycle, defendant asked him if he wished to return to the apartment and the boy replied in the negative. They arrived at the restaurant about 2:30 p. m.

When Michael arrived home he received telephone calls from his sister and from his mother. Later that day Michael and his mother and father went to the vicinity of defendant’s apartment and noted the license plate number of defendant’s automobile parked in front of the apartment. The three then drove to the Harvey Police Station.

Harvey Police Officer Howard Earning testified that at approximately 8:55 p. m. on this day, he and his partner, Officer Hunt, went to defendant’s apartment and knocked on the door; defendant, clad in his pajamas, opened the door. The officer testified that he asked the defendant if his name was Luther Roy and if he owned the automobile parked outside. Defendant responded in the affirmative to both questions and the officer then asked him “if he would come down to the Harvey Police Station with us, we would like to talk to him.” The defendant consented, and upon going to change his clothing, he asked the officers, “Is that about the boy I had up here ?” Defendant was then transported to the Harvey Police Station.

Defendant, testifying in his own behalf, stated that he met Michael Veradi in the De Mars Restaurant on the afternoon in question and that the boy asked bim for a quarter. Defendant said, “No,” whereupon the boy asked him to purchase tickets to his school’s function. Defendant again declined and told Michael that he had to drive to Chicago Heights to keep an appointment. He testified that the boy then asked if he could accompany defendant for the ride. Defendant declined, stating that Michael had to return to school that afternoon, but Michael said that classes had been canceled because of a teachers meeting that afternoon. Defendant testified that after some further insistence by the boy, he agreed to take him for a ride to Chicago Heights.

Defendant testified that during the ride, the pair talked about baseball, and that Michael later stated that he was hungry and also stated that he was skipping school that afternoon. Defendant told him that there was no place in the area to eat, and that he should either go back to school or go home. He testified that Michael asked him if he had a color television set at home, which defendant stated he did. Michael then asked if he could watch a World Series baseball game on the set, and defendant declined. The pair got into a heated exchange of words, and defendant suggested that they stop for something to drink. On their return trip to Harvey, Michael continued to insist that he be allowed to watch the baseball game on defendant’s color television. Defendant testified that he finally consented to the boy watching a half inning of the game.

In the apartment, Michael seated himself in a chair near the television and defendant switched on the set. Defendant mixed himself an alcoholic drink, and sat in the kitchen with the drink until he heard that a half inning of the game was over. He testified that he then walked over to the television, switched it off, and told Michael, “That is all, Mike, let’s go.”

Defendant testified that Michael again asked if defendant would purchase tickets from him, that he again refused, and that the pair left the apartment. Defendant testified that the time spent in the apartment was exactly five and one-half minutes, and that they left the apartment at 12:53 p. m. Defendant further testified that he drove the boy back to the De Mars Restaurant, arriving there at 12:55 p. m. Defendant then drove to his wife’s place of employment.

Defendant denied touching or in any manner fondling Michael Veradi, and further denied forcing him to accept the alcoholic drink in the apartment.

The record also reveals that Michael denied knowing the defendant prior to the incident; defendant, on the other hand, testified that he knew Michael by sight because Michael used to play with some boys who lived next door to the defendant, and that defendant would on occasion say hello to and speak with the boys.

Defendant filed a pretrial motion to suppress certain statements allegedly made by him on the day of the incident, among which was the statement made in the apartment to the police officers, testified to by Officer Earning. At the hearing on the motion defendant testified that shortly before 9:00 p. m. on the day in question, two uniformed police officers from the City of Harvey Police Department came to his apartment and inquired of him whether he had taken a boy for a ride in his automobile. Defendant replied in the affirmative, and the officers thereupon asked him to accompany them to the police station. Defendant testified that the officers stated that no complaint had been filed against him, but that they would not tell him why there was any possibility of a complaint being filed against him when he inquired. Defendant testified that he asked to telephone his wife, who was at a meeting, but the officers refused and said that he could be taken care of later.

Defendant testified that he accompanied the officers to the police station. He stated that he was asked what he had to say about the matter, and that he replied that there was nothing to say, because he merely gave a boy a ride in his automobile. He testified that he asked to be allowed to contact his family so they could contact an attorney, but was unable to contact his family until shortly before 11:00 p. m. that evening.

Defendant testified on cross-examination that he spoke to the Veradi boy’s mother at the station between 10:15 and 10:30 p. m. and that he denied to her that he took indecent liberties with her son.

Officer Farning testified on behalf of the People at the hearing on the motion. He related that on the evening in question he and Officer Hunt were assigned to investigate a report of a charge of indecent liberties. The two officers went to the defendant’s apartment, knocked on the door and asked defendant if he was Luther Roy, to which he replied, “Yes.” Officer Farning then asked him if he would go with the officers to the police station because they would like to talk to him.

The officer testified that defendant stated that he was willing to go with the officers and that as he was changing his clothes, the defendant asked the officers, “Is this about the boy that was up here ?” Officer Farning stated that he responded, stating, “What boy?” and that the defendant replied, “The one I had in the car.” The officer testified that defendant then told him that he picked the boy up at a restaurant in Harvey, took him for a ride, brought him up to his apartment, and took him back to the restaurant. The officer finally testified that defendant was given no constitutional warnings because he had made the statements before they arrived at the station.

On cross-examination the officer testified that when he and his partner first entered the defendant’s apartment, he did not ask the defendant whether he had taken the boy for a ride, nor did he tell the defendant at that time that the officers had received an oral complaint from a woman, but that no formal complaint had then been made against him. The officer also testified that he asked defendant no questions other than those asked initially upon the officers entering the apartment.

Mary Veradi, Michael’s mother, testified that she had a conversation with defendant at the police station on the night in question, but the trial court sustained an objection to her testifying as to the content of that conversation. Officer Hunt was also called by the People; his testimony was substantially the same as that given by Officer Farning.

The trial court suppressed all statements made by the defendant except the one made when the officers first entered the apartment, which was testified to by Officer Farning at trial.

Defendant first maintains that the trial court committed error in admitting the statement testified to by Officer Farning into evidence, inasmuch as it was made after he was placed under arrest and without prior constitutional warnings. We disagree.

The evidence introduced at the hearing on the motion to suppress by the People and by the defendant was somewhat in conflict, the resolution of which was for the trial judge. Under the People’s evidence, the circumstances surrounding the making of the statement clearly shows that the defendant was not under arrest at the time the statement was made and further shows that the statement was voluntarily made, without prompting or solicitation on the part of the officers. Being a voluntary utterance, the statement is not one which falls within the applicability of Miranda v. Arizona, 384 US 436.

As stated in the case of In re Orr, 38 Ill2d 417, 231 NE2d 424, at 423:

“All agree that Miranda does not require police to interrupt a suspect in the process of making a spontaneous statement in order to warn him of his constitutional rights, and that a statement made in the absence of any questioning is not inadmissible by virtue of the failure to give such warning. (Citing cases.)”

In the Orr case, a statement made by the defendant, who was under arrest at the time but who had received no constitutional warnings, was held admissible, inasmuch as it was voluntarily made and was not the result of questioning by the authorities.

The officers in the instant case merely knocked on the door to defendant’s apartment, asked defendant if he was Luther Roy, and asked him if he owned the automobile parked outside. Defendant responded in the affirmative to both questions, and also consented to going with the officers to the police station. While defendant was in the process of changing his clothes, he asked the officers if the matter concerned the boy he was with earlier that day. The defendant was not under arrest at the time the statement was made, the statement was made voluntarily and was not prompted by any police questioning. The questions asked by the officers related solely to defendant’s identity and to whether defendant would accompany them to the police station.

The only difficulty which arises with regard to the statement is as to its content, and consequently as to its weight: whether the statement related to the boy’s presence only in the automobile, as testified to by defendant, or whether it related to the boy’s presence in the apartment, as testified to by the officer. This again was a matter for resolution by the trier of fact.

The cases cited by defendant are inapposite on their facts. In Oroczo v. Texas, 394 US 324, the officers questioned the defendant not only as to his name, but also whether he had been at the place where the shooting in question occurred, whether he owned a gun, and where the gun was located; defendant there gave incriminating answers to each of the questions asked. Defendant there had been under arrest and was not advised of his constitutional rights, and the Supreme Court stated, at page 326 of the opinion, that the police had “questioned petitioner about incriminating facts” before advising him of his rights. Such is clearly not the situation here.

In United States v. Appell, 259 F Supp 156, and in Gray v. United States, 394 F2d 96, defendants gave their statements voluntarily and at a time when they were not under arrest, as is the situation here.

Defendant next contends that the People failed to prove that the defendant was of the age of seventeen years or upwards.

It is necessary, as an element in the chain of proof in a case of this nature, that the age of both the victim and the accused be proven by substantial evidence. People v. Rogers, 415 Ill 343, 114 NE2d 398.

In the instant case, Officer Farning testified that he knew defendant’s exact age to be forty, and later related it to be “in the forties,” based upon his observations of the defendant in the courtroom. An objection to that testimony was overruled and the officer’s opinion in this regard was allowed to stand. This was error.

However, that error was cured by later questioning of the same witness about an opinion as to whether the defendant was seventeen years of age or upwards; the witness answered in the affirmative and testified that defendant was seventeen years of age or upwards. No objection was made to this testimony, and in the absence of a specific objection, the testimony of the witness will be allowed to stand. People v. Davis, 10 Ill2d 430, 140 NE2d 675; People v. Claussen, 367 Ill 430, 11 NE2d 959. Finally, defendant himself testified that he was forty years of age.

The final two points raised by the defendant essentially challenge the sufficiency of the evidence for the People. We are of the opinion that the People presented evidence of a clear and convincing nature from which the judge had a right to find the defendant guilty beyond a reasonable doubt of the crime of indecent liberties with the child.

The account given by Michael Veradi of the two-hour period spent in the defendant’s presence was unshaken on cross-examination. The boy made immediate complaint to his parents, as is evidenced by the short length of time elapsed between the incident and the custody of the defendant. The police officer’s testimony concerning the statement made to the officers in the apartment is clearly against defendant’s interest in this regard, as is his admission at trial that he, a man in his forties, permitted a boy of thirteen to come to the apartment on the afternoon in question, allegedly to watch the baseball game on color television.

The credibility of the witnesses and the weight to be given to their testimony is a matter for the trial judge, where a jury has been waived. People v. Arnold, 2 Ill2d 92, 116 NE2d 882. The evidence of one witness, where credible and the evidence clear, is sufficient to sustain a conviction, even though the evidence is contradicted by the accused. People v. O’Connell, 76 Ill App2d 389, 222 NE2d 165.

For these reasons the judgment is affirmed.

Judgment affirmed.

McCORMICK, P. J. and LYONS, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE McCORMICK BURKE, J.,

license: Public Domain

text:
    Marilyn Felker, Administrator of the Estate of Frank S. Felker, Deceased, Plaintiff-Petitioner, v. Warthen L. K. Hobbs, Defendant-Respondent.
    Gen. No. 53,463.
    First District, Second Division.
    April 21, 1970.
    BURKE, J., dissenting.

      James D. Griffith, of Chicago, for plaintiff-petitioner.
    Morton H. Meyer, Gerrard and Gerrard, of Chicago (Michael A. Gerrard, Allen S. Gerrard, and Morton H. Meyer, of counsel), for defendant-respondent.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This is a companion case to Felker v. Bartelme, 124 Ill App2d 43, — NE2d — , in which latter case an opinion is also being rendered today. The facts have already been stated in the companion case; the trial court had directed a verdict in the dramshop action in favor of the tavern owner and operator. The jury then returned a verdict for $62,000 against Hobbs in the Wrongful Death action, which amount was reduced by the trial court to $31,772.54, in accordance with statutory limits then in force, plus hospital and burial expenses. Hobbs’ motion for a new trial, presenting some twenty-four points as alleged trial errors necessitating a new trial, was allowed, and the plaintiff brought this petition seeking leave to appeal the trial court’s grant of a new trial to defendant.

In the petition the plaintiff prays that the request for leave to appeal should be allowed; that the order granting a new trial should be set aside; and that the verdict and judgment for plaintiff should be reinstated. An answer to the petition was filed.

As explained in the companion opinion, the evidence adduced at the trial was sufficient to have raised a jury question as to Hobbs’ intoxication at the time of the accident. That issue was considered raised without relying in any way on Hobbs’ own admission that in company with his wife he had drunk a half pint of alcohol and a quart of beer at his home before going to the tavern, which admission was hearsay as to the dramshop defendants. The trial court correctly ruled that the admission could be considered against the defendant, Hobbs, and thus the jury had before it evidence that Hobbs had consumed considerable alcohol. That fact, together with certain incidents of behavior, entitled the jury to conclude that Hobbs was intoxicated at the time of the accident.

There had been testimony that Hobbs had turned into a driveway, mistaking it for a road; yet he admitted making that turn at Landwehr Road on fifty previous occasions. There was also conflicting testimony as to whether or not at the time of the mishap Hobbs’ left turn signal was on. There was further conflict in the evidence as to whether he had seen any oncoming traffic. Hobbs denied having said he drank a quart of beer at home, and testified that he had had a 12-ounce bottle of beer at home, and nothing more. However, Sergeant Mills testified that Hobbs told him he had half a pint of whisky and a quart of beer at home before going to the tavern. There was also direct conflict as to whether Hobbs had taken one of his wife’s drinks. Hobbs had testified he was in the eastbound lane of Dundee Road at the time of the collision since he was turning south into Landwehr Road, in spite of the fact he had been traveling westbound.

Under the circumstances of this case, the jury was entitled to conclude that Hobbs was guilty under the Wrongful Death Act. The trial court erroneously granted the defendant a new trial, and, accordingly, we are allowing the petition for leave to appeal and are directing that an order be entered reinstating the jury’s verdict as reduced to $31,772.54.

The defendant has presented twenty-four reasons to justify the court’s order granting a new trial. The plaintiff requested that the trial judge clarify and particularize the reasons for the order, but the motion was denied. Consequently, we have before us only the twenty-four reasons allegedly justifying a new trial, and the order allowing the motion; we do not have the benefit of the trial court’s reasoning. It is, however, an established principle that it is the trial court’s judgment, not the reasons given for it, which will be reviewed; and that if the judgment was correct it must be sustained. Campbell v. Powers, 139 Ill 128, 135, 28 NE 1062.

Many of the post-trial objections complain that the evidence does not support the verdict and that the verdict is contrary to law. We do not agree with these contentions; we hold that the plaintiff has made out a proper jury case and that the jury was entitled to find as it did. Therefore, if there was any reason which would justify a new trial it did not pertain to those aspects of the case relating to the evidence presented or the applicable law. Rather, it could only have been supported by the conclusion that errors occurred in the conduct of the trial which would require a new trial. We will consider the alleged trial errors raised in the defendant’s brief before this court.

First, he complains that plaintiff’s counsel committed reversible error during his cross-examination of Frank Galati, when counsel reminded the witness that prior to trial they had engaged in conversation. The trial court admonished the attorney that if he wanted to impeach the witness by testifying as to prior inconsistent statements made by the witness to him, it would be necessary for him to withdraw from the case so that he could become a witness. Counsel refused, and the cross-examination terminated. When asked by the judge if he wanted to take the stand, plaintiff’s counsel said, “Your Honor knows that I can’t do that.” While defendant implies that this indicated the plaintiff’s counsel could not in fact impeach the witness, we take it to have meant that the counsel felt such a course of action was not worth his withdrawing from the case. The trial judge had sustained defendant’s objections, saying that plaintiff’s counsel could not attempt to impeach the witness by asking if the witness had not told him something different from that to which he was testifying on the stand. The questions were never allowed to be answered, and plaintiff’s counsel said, “I understand that I would have to make an election.” He elected not to take the stand, and dropped his line of cross-examination.

The defendant cites Townsend v. Chicago Transit Authority, 1 Ill App2d 77, 116 NE2d 170, for the proposition that it is reversible error when a verdict is obtained as a result of laying a foundation for an impeachment which is never carried through. However, the case does not stand for such a proposition. In Townsend the court had already remanded the case since undisputed evidence indicated that the plaintiff was injured as a result of the actions “of one or both” of the two defendants named in the complaint. Yet, a verdict had been returned finding both defendants not guilty.

Since there was to be a new trial the court discussed other errors, and said at page 81:

“The practice of laying foundation for impeachment by questioning and then failing to follow up by proof, as was done here by defendant Transit Authority, is to be strongly criticized. We trust that on a retrial of this case there will be no repetition of this offense.”

This is all that appears on the subject in the opinion; the court certainly did not say that the practice always constitutes reversible error, as is suggested by the defendant. In fact, the court does not say that it was reversible error in the case in question; only that the practice is to be “strongly criticized” and should not be employed.

Certainly, in view of the facts in the instant case, no reversible error was committed during the cross-examination of Frank Galati. Plaintiff’s counsel was told to choose between withdrawing from the case and testifying to impeach Galati, or refrain from laying an apparent foundation in order to impeach him. He chose the latter course, and although the perfect trial would have been more nearly approached had plaintiff’s counsel not engaged in this line of cross-examination at all, we are not disposed to reverse because of minimal errors, since we realize there is no such thing as a perfect trial.

The other error called to this court’s attention arose during the cross-examination of Sergeant Mills. The court ruled that the officer could not use photo-stated copies of handwritten notes since there was no way of knowing how accurately the notes had originally been copied. Counsel for plaintiff then said, “We can put that portion of the notes that you have and which I have into evidence, if that is what you wanted.” Objection by opposing counsel was sustained, and defendant now urges that even though the objection was sustained, there was prejudicial error. However, at no time did he request a mistrial, and this is not even set forth in the post-trial motion as a ground for reversal. We think it is an afterthought, and that if there was any prejudice generated by the interchange it was quickly and adequately rectified by the trial court’s admonitions to “disregard it and pay no attention to it.”

This court could easily point out those parts of the record in which counsel for the defendant was told his questions were improper and argumentative. We have already indicated that this was not a perfect trial and that there were errors on both sides; however, none of the errors justified a reversal of the jury verdict, since they were not so prejudicial as to deny either side a fair trial. We believe the court abused its discretion in granting a new trial. Notwithstanding the trial court’s ability to observe the parties, their counsel and the effect of different matters on the jury, there was nothing during the course of the trial of sufficient magnitude to have required the court to reach such a determination.

The matter of the contributory negligence of the plaintiff and the negligence of the defendant were questions of fact, and the jury was entitled to find as it did. No errors were committed during the trial requiring a new trial to be granted. Accordingly, we are allowing the plaintiff’s petition and are reinstating the judgment as reduced by the trial court.

Petition granted, order reversed, with directions.

LYONS, J., concurs.

BURKE, J.,

dissents:

I am of the opinion that the trial judge did not abuse his discretion in granting a new trial to the defendant, Hobbs. The granting of a new trial is within the sound discretion of the trial court and will not be upset without a clear showing of abuse of discretion. See Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717, and cases therein cited. The two eyewitnesses to the occurrence, other than the defendant, testified that within 300 feet of the intersection plaintiff’s decedent pulled out from the eastbound lane of traffic and passed the overtaken car at an excessive rate of speed, at which time defendant’s car was visible in the intersection making a left turn across the eastbound lane. There was no evidence that defendant was intoxicated. Furthermore, the court admonished counsel for the plaintiff that his line of questioning was improper. The trial judge was in a position to evaluate the effect of these trial tactics. There is a sound basis for the action of the court in awarding a new trial, and the order should be affirmed.


author: PRESIDING JUSTICE McCORMICK.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Martin, Defendant-Appellant.
    Gen. No. 53,629.
    First District, Second Division.
    April 21, 1970.
    Sherman, Schachtman & Stein, of Chicago (Jack G. Stein, Albert Brooks Friedman, and Gerald Nussbaum, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas Holum, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE McCORMICK.

Not to be published in full.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ben Murphy, Defendant-Appellant.
    Gen. No. 53,937.
    First District, Second Division.
    April 21, 1970.

      Leonard Karlin and Edward H. Steinlauf, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

The defendant had been indicted for committing the crime of rape, and was tried in the Circuit Court of Cook County without a jury. The only issue presented is whether defendant was proved guilty by clear and convincing evidence. Ill Rev Stats 1965, c 38, § 11-1, defines rape as follows: “ (a) A male person of the age of 14 years and upwards who has sexual intercourse with a female, not his wife, by force and against her will, commits rape.”

Ethel Thomas, the complaining witness, testified that on April 19, 1967, the date of the alleged rape, she was 30 years old, and lived on the second floor of an apartment building at 1509 South Christiana Avenue in Chicago. She finished work at Schwab Rehabilitation Hospital, 1701 South California Avenue, at 11 o’clock on the night in question, and took a bus to Keeler and Roosevelt, where she went into a tavern for about fifteen minutes. She testified that there was one bright light outside the entrance to her home, but the bulb had been removed from the light inside the vestibule; that while she was standing at the entrance door searching for her keys, the defendant put his right arm around her neck and told her he would kill her if she “hollered.” She screamed and the defendant pulled her out of the hallway into the street, telling her, “Ethel, I have wanted to have you for a long time.” When she turned around and saw his face she recognized the defendant as “Ben” who had previously gone with a friend of hers, and whom she had seen playing in a band at a tavern at Sawyer and Ogden, near her home.

The complainant testified further that the defendant told her to walk around the corner to a vacant apartment building; he then pushed her through the door to some stairs leading up to the second floor, and told her to take her clothes off. When she refused he shoved her to the floor, after which she removed the levis she was wearing, and the defendant removed her underclothing and had intercourse with her.

Although the defendant had told the complainant he would kill her if she notified the police, she called them when she was able to get to her apartment at about 2:30 a. m. When the police arrived at about 3:00 a. m., they took her to Mt. Sinai Hospital where she was examined by Dr. Ghorbani. It was stipulated that if he were to testify the doctor would state that a vaginal smear taken at that time confirmed the presence of spermatozoa; that the complainant was nervous at the time of the examination; and that she bore no bruises or lacerations.

On May 12, 1967, the complainant was in the Jestic Tavern when she saw the defendant. She testified that she ran out before he saw her, stopped a squad car and told the police the defendant was in the tavern, after which the police arrested the defendant. It was stipulated that if the police officers who responded to complainant’s call on April 19 were to testify they would state that they had turned over to the Crime Detection Laboratory certain objects obtained from the complainant; namely, one physician’s report, one pair of women’s panties and two vaginal smears. It was also stipulated that if Sergeant Price were to testify he would state that a microscopic examination of the underwear and the vaginal smear showed the presence of spermatozoa.

The complaining witness testified that after defendant’s arrest she had talked with a man who identified himself as the defendant’s father, and that the man asked her to drop the case, stating he would give her $50 if she would not go to court. She further testified that she had moved from the Christiana Avenue address after the occurrence and was presently living at 3451 West Douglas. She stated that she had been married in 1956, but was not living with her husband, nor was he the father of her two children; that the name of the father was Aaron Cunningham, but she had not been married to him.

The defendant argues that the complainant bore no signs of having struggled or having resisted, and that there was no deadly weapon employed; that there was no showing of “compulsion, force nor threat of force on the part of the man.” However, to take that view would be to disregard the complainant’s testimony that the defendant had put his arm around her neck and threatened her with death if she screamed. She had screamed once, then he forced her into the street in the early hours of the morning; he had forced her to go to the apartment where the sexual act took place. There he repeated his threat, and when she did not willingly remove her clothes, he pushed her onto the ground. There is no requirement in the law that when an attempt is made to rape a woman she must subject herself to possible serious physical harm. Under the circumstances in this case it would seem that a reasonable person would fear that failure to comply with defendant’s request would result either in death or serious injury. As to whether there was a deadly weapon on defendant’s person at the time is immaterial; the question is the futility of the complainant’s resistance under the circumstances. People v. Smith, 32 Ill2d 88, 92, 203 NE2d 879.

Furthermore, we must consider that immediately after the incident the complainant reported it to the police, and within hours she had been examined by a doctor in a hospital. Prompt complaint serves as corroboration of her testimony. People v. Hayes, 93 Ill App 2d 198, 204, 236 NE2d 273; People v. DeFrates, 33 Ill2d 190, 196, 210 NE2d 467.

The fact of immediate report by the complainant is not inconsistent with defendant’s version of what had occurred. In any case, we cannot lightly set aside the fact that the trial court was in a position to see and hear the testimony of both defendant and complainant and determined that the complainant’s story was sufficient to prove a case of rape against the defendant.

The defendant points out that the complainant said she had worked at the Schwab Rehabilitation Center for seven months, yet she gave an incorrect address for the Center. The implication is that because of this mistake we should consider that the complainant was not competent to testify as to details, that she had a faulty memory and lacked ability to tell the truth. However, we cannot believe the defense suggests that her failure to give a correct address would require the court to find the complainant incapable of accurately recalling the details surrounding her own rape. Furthermore, her testimony concerning the address was never impeached at the trial. In his brief before this court the defendant’s counsel simply asserts that the witness was wrong. Assuming that she was wrong in the address, it does not necessarily affect her other testimony.

According to the defendant’s version, he and the complainant had gone to the Jet Hotel where they both signed the register before going to a room and having sexual intercourse. The register, however, was not produced at the trial, and there was no explanation as to whether there had been any attempt to locate it. During oral argument counsel for defendant mentioned that the hotel no longer existed and that apparently the files had all been destroyed. Again, this explanation is beyond the scope of the record. We know only that the defendant testified that he and the complainant signed a register at the hotel where he says the sexual acts took place. According to the defendant, he offered the complainant $5 but she wanted $10, and when he refused she said she would “get even” with him.

Eddie Garvin, an alibi witness for the defendant, testified on direct examination that on April 19, 1967, he saw the defendant and the complainant together in the neighborhood bar. On cross-examination, however, when asked if he could give the exact date on which he had met the defendant, he could not recall it. He was then asked, “How do you know that you saw Ben on April 19, 1967 ?” He said, “I don’t know exactly what date it was,” and admitted that when he testified he had seen the defendant and complainant together on April 19, at the Jestic Lounge, he was not sure about the date. Thus, the defendant’s claim that “the presence of the two parties for a period of time at the Jestic Lounge is corroborated by Eddie Garvin” does not accurately reflect Garvin’s impeached testimony.

The question now before this court is whether the complainant’s testimony, if believed, is sufficient to sustain a conviction for rape against the defendant. In People v. Qualls, 21 Ill2d 252, 171 NE2d 612, the Supreme Court reversed a conviction for rape when it found that (a) the prosecutrix’s testimony lacked verisimilitude; and (b) there was no testimonial, factual or circumstantial corroboration of the material elements of force, and lack of consent. In that case, according to her own version of the facts, the prosecutrix had sat nude in the kitchen of one of the two defendants, sipping coffee for half an hour, then engaging in further acts of intercourse with both defendants. Although she had been alone in a room where she could have used a telephone she made no attempt to call for help, nor did she attempt to escape when it appeared to be possible. Her account was that she had been with her husband; that he fled when two men approached their car demanding money; and that one of the men then supposedly approached her. However, her husband was not called upon to corroborate her testimony, although he was at the trial. The court reversed the judgment on the ground that the defendants had not been proved guilty beyond a reasonable doubt.

In People v. Faulisi, 25 Ill2d 457, 185 NE2d 211, another rape conviction was reversed when the complaining witness admitted having let the defendant into her apartment while she was dressed only in pajamas which were partially transparent. She further admitted kissing the defendant for ten or fifteen minutes when he started removing her pajamas. She made no detailed explanation of her attempt to ward off the defendant except to say she tried to fight him off. She had a cut near one eye, but other bruises she claimed to have sustained were not noticed by three other witnesses who had seen her the day following the incident. Again, the court held that the complaining witness’ testimony was not sufficiently convincing to sustain a conviction for rape.

It is worthy of note that these cases indicate the kind of circumstances under which rape convictions have been reversed. However, a basic distinction between those and the present case is that Ethel Thomas’ version of the facts contains none of the implausible features contained in the reversed cases. There exists no reason, therefore, for being suspicious of her story, since she did not admit to sitting nude and sipping coffee with her assailant, nor did she admit having allowed the defendant into her apartment and kissing him while partially dressed. Rather, her account relates a threatening attack with no enticement on her part. Her testimony was clear and convincing.

The question before us is whether or not her testimony, if believed, was sufficient to convict; and if that is answered affirmatively, the only remaining question is whether she was telling the truth. The trier of fact is in a far superior position than this court to determine that; therefore, we do not lightly overturn its findings as to the credibility of witnesses. We have concluded that the complainant’s account of the incident was clear and convincing, and as the trial court obviously believed her, there is no reason to disturb the judgment. The judgment is affirmed.

Affirmed.

LYONS and BURKE, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard Payton (Impleaded), Defendant-Appellant.
    Gen. No. 53,215.
    First District, Fourth Division.
    April 22, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. McGee, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was convicted after a bench trial of the offense of armed robbery. He was sentenced to a term of five to ten years. Defendant raises three points on appeal: (1) the method used for identification was so highly suggestive and conducive to mistaken identity as to require reversal; (2) it was error to introduce into evidence a gun which was never connected with him; and (3) it was error to consider a police officer’s testimony as to defendant’s statements obtained in violation of his constitutional rights, even though defense counsel did not raise any objection at the time the officer testified.

Testimony of Fred G. Anderson, complaining witness, for the State:

He lives at 2355 East 74th Street in Chicago. On May 24, 1967, he was working as a bartender at the South Side Swedish Club. He finished working at 1:00 a. m. on May 25, 1967. He drove home and parked his car about a quarter of a block from his home. When he got in front of his house two men, a tall one and a shorter one, came down the street towards him. As they approached him they separated and the little one (defendant) got hold of his arm and started twisting it up. The taller man (Erman Haskins) grabbed him by the throat and started to pistol-whip him. The taller man had the weapon. He required nine stitches to close the wounds. His wallet with his paycheck for $180 was taken during the robbery by the defendant.

He started to holler and his wife and neighbors heard the commotion and called the police. Several minutes later a squad car came by with two police officers, Beam and Schultz. They asked him to get in the car and describe his assailants, which he did. The squad car then drove west on 74th Street and down Crandon between 71st and 72nd. He pointed out the two suspects as the ones who robbed him. He was told to stay in the car. The taller assailant ducked into a gangway and the officers followed him. After that he heard shots.

He saw the defendant at 2:00 or 2:15 a. m. in Billings Memorial Hospital. A police officer later gave him back his wallet with the paycheck still inside it.

On the morning of May 25 the lighting conditions in front of his house were good. He uses hundred watt bulbs in the entrance on the first and second floors of his building to light up the front. He could see the defendant “plain then and there.” His assailants came around the corner on Yates and walked towards him. When he got in front of his doorway they separated and grabbed him from the back.

He had never seen the defendant before. The taller man (Haskins) was wearing a light gray topcoat with a tarn or beret. He was a Negro of light complexion and was about six feet or six feet one in height. The shorter man (defendant) was also a Negro and he was wearing a three-quarter length dark brown coat. He was not wearing a hat. He did not notice the color of their trousers. He knew the taller man had a gun because he saw it. The taller man had a gun in his hand and he saw “a flash of chrome” as he was hit. He identified the gun at the police station.

After he was taken to the hospital, he identified a man in the emergency room as the taller man who had robbed him, Erman Haskins. This man had been shot by the police. “The police didn’t put nothing in my head” as to who the man was.

He saw the shorter man (defendant) when the police brought him into the hospital. The man was handcuffed. The police said, “We brought in a suspect.” He was thirty feet away when he first saw the defendant at the hospital and he moved closer to him to take a good look. He identified him as the other robber.

He identified defendant in court as one of the men who robbed him. He also identified a gun as the one used to pistol-whip him.

Testimony of Alfred Schultz, for the State:

He is a police officer. On May 25,1967, his partner and he responded to a call at approximately 1:20 a, m, of a man needing assistance at 2355 East 74th Street. When they arrived they observed a white man standing there, bleeding from the head. The man identified himself as Fred Anderson. They placed him in the back of the squad car.

They drove westbound on 74th and then turned northbound on Crandon. Between 72nd and 71st “Mr. Anderson called to us and pointed out one of the offenders that was walking down the street.” Mr. Anderson remained in the squad car and they chased the man down an alley. Another car had responded to the “lookout message” they had made immediately after Mr. Anderson was placed in the squad car. They ordered the man to halt. They noticed a nickel-plated revolver in his hand and they opened fire. The man fell to the ground. They took the gun from him and called for a wagon. They had a conversation with the man, Erman Haskins, and then put out another lookout message giving a full description and name of the second offender, Rick Payton. They took Mr. Anderson to Billings Hospital.

They were in full uniform when they gave chase to Erman Haskins. Mr. Anderson described Haskins as “a male Negro, approximately six foot, approximately 185 to 190, a light complexion, wearing a brown coat, dark pants and a tan hat.” Mr. Anderson described the defendant as “a male Negro, approximately 5,8 to 5,10, between 165 and 175, wearing dark pants.” He was also wearing a light colored coat and a cap.

Mr. Anderson observed Haskins as they were wheeling him into the hospital. Mr. Anderson stated that “that was the man that attacked him.” He never told Mr. Anderson that Haskins was a suspect.

He identified the gun introduced into evidence as the one seized from Haskins.

Testimony of Gerald Beam, for the State:

He is a police officer. He corroborated the testimony of his partner, Alfred Schultz. He also identified the gun as the one taken from Haskins after he had been shot. The gun was unloaded when they took it from Haskins.

Testimony of Richard Grublesky, for the State:

He is a police officer. He was on duty the evening of May 24, 1967, with his partner, Robert Ford. At approximately 2:15 a. m. he arrested the defendant at 2205 East 71st Street. The defendant told him that he was coming from work after he had stopped at a friend’s house. Defendant stated that his friend lived down the street, but he did not give an address. He searched the defendant and found a wallet containing Fred Anderson’s identification and a check made payable to Fred Anderson for $180. The defendant also had his own wallet. At the time of his arrest, approximately fifty-five minutes after the robbery, defendant was wearing dark trousers and a light color tan coat. He was arrested about three and one-half blocks from the scene of the robbery.

Defendant was taken to the hospital approximately fifteen minutes after his arrest. Mr. Anderson identified the defendant as one of the assailants. He never told Mr. Anderson that he had a suspect. Defendant was handcuffed when Mr. Anderson identified him.

In court he identified the defendant as the man he arrested.

Testimony of Robert Ford, for the State:

He is a police officer. He corroborated the testimony of Officer Grublesky. He also identified the defendant as the man his partner and he arrested.

During his direct examination defense counsel objected to his describing a conversation with defendant at the time of his arrest. He objected on the ground that the defendant had not been given the Miranda warnings and asked the court to strike Officer Ford’s testimony as well as Officer Grublesky’s testimony. The court sustained counsel’s objection as to Officer Ford’s testimony dealing with the defendant’s statements made to him after his arrest. The court overruled the motion to strike Officer Grublesky’s testimony as it was not made in apt time.

He did not notify Mr. Anderson that he had a suspect before Mr. Anderson identified the defendant at the hospital. Mr. Anderson never said, “I can’t be sure” when he identified defendant.

Testimony of Richard Payton, defendant, in his own behalf:

Prior to his arrest he never knew Erman Haskins. He was not with him on May 25, 1967. The first time he saw Haskins was at Billings Hospital. On the night of his arrest he was coming from the License Lounge at 2338 East 71st Street. He heard gunshots while he was inside the lounge and came outside with some other people. He stayed there about ten minutes and started walking down the street. He was going down to the Pumpkin Room at 2015 East 71st Street. He found a wallet on the sidewalk by 71st and Crandon. He never told the police that he was coming from a friend’s house or from work.

On cross-examination he testified that he is also known by the name of Alfonso Willoughby. He knew several people at the lounge by their faces but he did not know their names. He goes to this lounge about every week. He did not know the lady tending bar.

After the officers searched him and found Mr. Anderson’s wallet, he told them he had just picked it up on the previous corner. He told Officer Grublesky he was on his way to the Pumpkin Room. He had never seen Mr. Anderson before his arrest. He never robbed Mr. Anderson.

Testimony of Erman Haskins, for the defense:

He had pleaded guilty to the robbery of Fred Anderson but had not been sentenced. He waived his privilege against self-incrimination.

“(O)n the night of May 24,1 had just left my job and I was on my way home. I was living at 6914 South Cornell. And I stopped in a lounge to have a drink. And in doing so, I met a friend. To you he’s Mr. X.” This friend was not the defendant.

Both his friend and he needed money and they went to his house to plan the robbery. They dressed alike, each wearing a gray coat, tan hat and sunglasses. He took his father’s .25 automatic pistol. They left the house and proceeded to 71st Street. “As I made this turn, the fellow that was with me said, ‘There’s a fellow getting out of a car.’ I said, ‘Yes.’ He said, ‘Let’s see what he’s going to do.’ ”

They then proceeded to rob Mr. Anderson and he began to holler. They split up and fled the scene. He ran into an alley with the police in pursuit. He attempted to throw the wallet away but did not have a chance. The officers then shot him. He passed out after ten minutes. He never mentioned Rick or Richard Payton.

He first saw Payton about a month after his recovery from the bullet wounds.

On cross-examination he testified that he had been convicted for two prior felonies, robbery and the Dyer Act (the transportation of stolen motor vehicles in interstate or foreign commerce).

When asked to tell his friend’s name he answered, “Big John.” He did not know his address. He described him as a male Negro, light complexion, six-one in height and weighing 195 to 200 pounds. He had known Big John for quite some time. On the night of the robbery he met Big John at the Tropicana Lounge. Other people saw him there. He took Mr. Anderson’s wallet but he never pistol-whipped him. Big John never pistol-whipped him either, but Big John did hit Mr. Anderson with his fist.

As he was fleeing from the police he tried to get rid of the wallet and he dropped it or “throwed it.” He never made any statement to the police about Rick Payton.

Testimony of Samuel Brewster, in rebuttal for the State:

He is a police officer. On March 24, 1964, he arrested a man named Alphonso Willoughby.

A conviction statement of one Alphonso Willoughby was then admitted into evidence. It showed that he had pleaded guilty to the offense of robbery and had been sentenced to one to five years.

Testimony of Alfred Schultz, in rebuttal for the State:

Erman Haskins was shot on the southwest corner of 71st and Crandon. At no time did he observe Haskins throw a wallet from his person.

Opinion

Defendant contends that the method used for identification was so highly suggestive and conducive to mistaken identity as to require a reversal of his conviction. During direct examination complainant identified defendant as one of the men who robbed and beat him. On cross-examination he testified that while he was at the hospital receiving treatment for his wounds the police brought in a man who was handcuffed. The police told him that they brought in a suspect and to take a good look at him. He identified this man as one of the assailants. The identification took place approximately forty-five to sixty minutes after the robbery.

From these facts and circumstances we believe this pretrial identification may well have been unnecessarily suggestive and that a properly conducted lineup could have been arranged at a later time. People v. Cook, 113 Ill App2d 231, 252 NE2d 29. However, in Cook, supra, 236, this court found that:

Where a defendant does present sufficient evidence to establish the unfairness of the pretrial identification confrontation, an in-court identification may nevertheless be admissible if it is shown, by clear and convincing evidence, that the courtroom identification had an independent origin, arising from an earlier uninfluenced observation of the defendant. See People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152; and People v. McMath, supra.

The complainant had previously observed his assailants at the time of the crime and he gave a description of them to the police while he was in the squad car. The sidewalk in front of his doorway was well lighted. Defendant calls attention to the discrepancies between the complainant’s testimony concerning descriptions of his assailants and the testimony of the police officers in which they related those descriptions. Although complainant testified that the descriptions he gave the police were sparse, nevertheless he immediately pointed out Haskins on the street and was positive in his identification of defendant at trial. He also testified that when he saw the defendant on 74th Street in front of his doorway he “could see him plain right then and there.”

It should be noted also that Officers Beam and Schultz radioed in a full description of the defendant, including his name, after capturing Haskins. In addition, there is independent corroborating evidence in the form of complainant’s wallet which was found in the defendant’s possession when arrested by Officers Grublesky and Ford. People v. Cook, supra; People v. Hampton, 121 Ill App2d 76, 257 NE2d 190; and People v. Bey, 42 Ill2d 139, 246 NE2d 287. See also People v. McMath, 45 Ill2d 33, 256 NE2d 835.

We find that there was a sufficient opportunity for the complainant to observe the defendant as one of his assailants at the time of the crime, and that this prior uninfluenced observation constituted an independent and adequate basis to support his in-court identification.

Defendant also contends that it was error to introduce into evidence a gun which was never connected with him. In People v. Aughinbaugh, 36 Ill2d 320, 223 NE2d 117 (reversed and remanded on other grounds), the defendant also claimed that a gun identified as similar in size, shape, weight and color to the one used by defendant’s accomplice should not have been admitted into evidence. The complainant testified that defendant’s accomplice pointed a gun at him during a robbery and there was testimony that this same gun was taken from defendant’s accomplice by a police officer at the time of his arrest. The court, at page 326, found that:

Even though not used by defendant personally, this was sufficient evidence to connect the gun with the crime in which defendant participated. (People v. Johnson, 35 Ill2d 516; People v. McCasle, 35 Ill2d 552, 221 NE2d 227.) It did possess probative value in that its possession by the accomplice when arrested corroborated the State’s witnesses, and we find no error in its admission.

See also People v. Ashley, 18 Ill2d 272, 164 NE2d 70, and People v. Givans, 83 Ill App2d 423, 228 NE2d 123.

In the instant case complainant testified that he was pistol-whipped. The gun taken from Haskins at the time of his arrest was identified by the complainant and by the arresting police officers. Therefore, we find that where it appears that a defendant participated in a crime in which a weapon was used, this weapon may be admitted into evidence even though he himself did not wield or possess it. People v. Ashley, supra, and People v. Maciejewski, 294 Ill 390, 128 NE 489.

Defendant also argues that it was error to consider a police officer’s testimony as to his admissions obtained in violation of his constitutional rights even though his counsel did not raise any objection until after the testimony was given. Defendant was arrested approximately one hour after the robbery of Mr. Anderson and three and one-half blocks away from the scene of the crime. Officers Grublesky and Ford testified that they began questioning the defendant immediately after they arrested him. They asked him where he was coming from and where he was going at this late hour. Each officer testified that the defendant told them he was coming from work after stopping at a friend’s house somewhere down the street. Neither officer testified as to informing defendant of the Miranda warnings before they began questioning him.

Defendant denied making the alleged statements to the officers. He testified that when Officer Grublesky asked him where he was coming from he told him that he was coming from the License Lounge and was on his way to the Pumpkin Room. Furthermore, when Officer Grublesky asked him where he got Mr. Anderson’s wallet, he told the officer he just picked it up on the previous corner.

During the direct examination of Officer Ford, defense counsel objected to his relating the contents of the conversation with defendant made after his arrest. Counsel objected on the ground that defendant had not been given the Miranda warnings subsequent to his arrest. He moved that the testimony of both Officers Ford and Grublesky relating to this conversation with the defendant be stricken. The court sustained counsel’s objection and motion to strike Officer Ford’s testimony but overruled the motion to strike Officer Grublesky’s testimony. No objection was made during Officer Grublesky’s testimony as to the failure to give the Miranda warnings, and the court found that objection to the testimony and the motion to strike were not made in apt time.

In People v. Trefonas, 9 Ill2d 92, 98, 136 NE2d 817, the court found that:

The function of the objection is, first, to signify there is an issue of law, and, secondly, to give notice of the terms of the issue. An objection to the admission of evidence, to be available, must be made in apt time, or it will be regarded as waived. The general rule is that the admission of incompetent evidence must be objected to, if at all, at the time of its admission. . . . Failure to make proper and timely objection to the admission of evidence claimed to be incompetent or otherwise objectionable or to move to strike it out after its admission, giving specific reason for the objection or motion to strike out such evidence generally constitutes a waiver of the right to object and cures the error, if any. ... A party cannot sit by and permit evidence to be introduced without objection and upon appeal urge an objection which might have been obviated if made at the trial.
While the accused has the right to insist that only competent evidence shall be introduced against him, yet he may waive such right and does do so by failure to interpose in apt time proper objections. (People v. Jennings, 298 Ill 286; Simons v. People, 150 Ill 66.) Objections to evidence may be waived even though based on constitutional grounds for the defendant may by a plea of guilty or a confession waive the production of all evidence of his guilt. People v. Schultz-Knighten, 277 Ill 238.

In the instant case we find no reversible error in the court’s refusal to strike the testimony of Officer Grublesky.

We would note that neither the defense nor the prosecution made any further reference during closing argument to the statements testified to by Officer Grublesky.

The judgment is affirmed.

Affirmed.

ENGLISH and LEIGHTON, JJ., concur.

       Miranda v. Arizona, 384 US 436.


author: MR. JUSTICE LEIGHTON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Rosea L. Haynes, Defendant-Appellant.
    Gen. No. 53,647.
    First District, Fourth Division.
    April 22, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John R. McClory, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

A three-count indictment charged defendant with aggravated battery, aggravated battery with a gun and attempt to murder. After a bench trial, the court found him guilty of attempt to murder and sentenced him to serve six to fifteen years. In this appeal the sole issue is whether defendant was proven guilty beyond a reasonable doubt.

Evidence of the prosecution tended to show that on November 22, 1967, between 2:00 and 2:15 a. m., Mrs. Maxine Haynes was watching television in her home. She testified that “[M]y husband (the defendant) broke in the house and shot me . . . above my heart, in my arm, back of my hip . . . and my leg, my left leg. . . .” After the four shots, defendant ran out of the apartment. Mrs. Haynes said that she went to the first floor of the building, and told a lady there that she had been shot. A call was made to the Chicago police. Officer John Dub responded and found Mrs. Haynes on the kitchen floor of the first-floor apartment. She was taken to a hospital where she remained “[A] little over a week . . . .” The next day defendant surrendered to the police at a station where he was questioned and processed by Officer William Boyd.

Defendant had a different version of what occurred. He testified that because November 22 was two days before Thanksgiving, he went to Mrs. Haynes’ apartment at about 6:30 or 7:00 p. m. with a 21-pound turkey. He asked, and obtained permission to take their three children and Mrs. Haynes’ eight-year-old daughter for a ride. He returned to the apartment with the children at about 10:30. This time defendant brought with him a six-pack of beer and a pint of whiskey. Defendant said that the children were put to bed and he and Mrs. Haynes first drank the beer and then turned to the whiskey. Sometime during the drinks defendant asked Mrs. Haynes “ [a] bout us getting back together, . . . .” This started an argument. Mrs. Haynes called defendant an obscene name and then came at him with a butcher knife which he caught with his hand, making a deep cut “[t]o the bone. Every time I move you could see something white. . . .” Defendant testified that he had with him a gun he got “from a friend.” He said that after he tripped and fell, he shot Mrs. Haynes the first time. When this did not stop the attack, he fired three more shots and ran out of the apartment.

On cross-examination defendant admitted that although he was seriously cut, he never saw a doctor, went anywhere for medical care nor complained to anyone about his injury. Defendant said that he called the building where his former wife lived and a woman told him that the police were looking for him. He went to a police station later in the day and surrendered to Officer William Boyd. Boyd testified in rebuttal that when he saw the defendant, there was no bandage or cut on defendant’s hand; nor did the defendant complain of any injury. After hearing the witnesses, the trial judge found the defendant guilty of attempt to murder his former wife.

Defendant contends that his testimony of the attack on him by Mrs. Haynes injected into the case the element of self-defense; and that because of this defense, the State did not prove him guilty beyond a reasonable doubt. To support this argument defendant points to what he calls inconsistencies and lack of corroboration in Mrs. Haynes’ testimony. For example, defendant argues that Mrs. Haynes testified “[h]e broke the door plumb off and comie on in . . .” her apartment and fired four shots without saying a word. Inferring a lack of corroboration, defendant calls attention to policemen who came to the Haynes’ apartment but did not see any broken door nor any sign of a breaking in.

Defendant’s argument is without merit. It is immaterial whether he was invited in or broke into the apartment of his former wife. Defendant was charged with aggravated battery and with attempt to murder. The gravamen of these offenses was shooting Maxine Haynes. Mrs. Haynes testified that in the early morning hours of November 22, 1967, defendant shot her four times. Defendant admits he did, but interposes the defense that he shot Mrs. Haynes because she attacked him.

This was an affirmative defense. Unless the State’s evidence raised an issue concerning the alleged defense, defendant had to present some evidence in support of such a claim. People v. Slaughter, 29 Ill2d 384, 194 NE2d 193; People v. Garcia, 90 Ill App2d 396, 400, 401, 232 NE2d 810. This he did, thus requiring the State to prove beyond a reasonable doubt that defendant had not acted in self-defense, Ill Rev Stats 1967, c 38, §§ 7— 14 and 3-2. Whether defendant was justified in using force in self-defense was a question of fact to be determined by the trial judge from all the circumstances shown by the evidence. People v. Washington, 27 Ill2d 104, 187 NE2d 739; People v. Brumbeloe, 97 Ill App2d 370, 240 NE2d 150. The trial judge heard Mrs. Haynes and defendant give their respective versions of the occurrence. He attached to the testimony of each the credibility he thought it deserved. He concluded that the believable evidence was sufficient to establish beyond a reasonable doubt that defendant was guilty of attempt to murder his former wife. We see no reason to interfere with this judgment. People v. Thome, 111 Ill App2d 215, 250 NE2d 9; People v. Hill, 116 Ill App2d 157, 253 NE2d 617. Judgment is affirmed.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sheadrich Gilyard, Defendant-Appellant.
    Gen. No. 53,231.
    First District, First Division.
    April 27, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas Holum, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial defendant was found guilty of the offenses of armed robbery and aggravated battery. The court sentenced him to concurrent terms of ten to twenty years for armed robbery and five to ten for aggravated battery.

On appeal defendant contends that (1) the trial court erroneously denied his motion to suppress certain evidence; (2) prejudicial error was committed in several evidentiary rulings of the trial court; (3) the complaining witness was allowed to arouse the sympathies of the jury by displaying his physical disabilities; (4) improper argument to the jury by the prosecutor was allowed; (5) it was improper for the jury to begin deliberation before the cause was delivered to them; and (6) the sentences were improper.

On January 10, 1967, at approximately 8:30 p. m., a man (subsequently identified as defendant) entered a drugstore three times and asked for a certain narcotic. On each of the three occasions the complainant, Oscar Norman, an apprentice pharmacist, told him that they did not have any of that medication. After the third refusal defendant pulled out a small automatic pistol. Norman knocked the pistol from defendant’s hand and reached into his own hip pocket for his own pistol (a .38 Smith & Wesson snub-nosed, chrome-plated revolver). During a struggle between Norman and the defendant for Norman’s pistol, a shot was fired from it. An accomplice of defendant took Norman’s pistol and struck him on the forehead. Both assailants then fled from the store. Norman had blood all over his forehead, his coat was torn and his trousers were completely torn off, and his pistol was missing. Norman called his brother and the police and went to a hospital where he received treatment for his injuries.

At the trial Norman positively identified the defendant as the man who entered his store and robbed him. He testified that defendant was wearing a pair of green gloves, a checkered gray hat, a red suede jacket, a scarf tied around his head, and his hair was processed. A gray checkered hat and a light green glove were identified by Norman as those worn by his assailant and were admitted into evidence.

Norman further testified that on February 3, 1967, he saw defendant inside Smitty’s Lounge at 3713 Roosevelt Road. He made contact with the police and entered the lounge with them. He pointed out defendant to the police, and defendant was arrested and taken to the police station. At that time defendant was wearing a red suede jacket and his hair was still processed.

A customer, Mrs. Mary McCallum, testified that she was in the pharmacy during the robbery. When she first entered she was four or five feet away from the defendant, and he was wrestling with Norman. She started to leave when another man stopped her and said it was a holdup and told her to walk to the back of the store, which she did. She was within two and one-half feet of the defendant, and she continued to look at him and stepped into a little washroom. From the open doorway she saw the other man go over to Norman and defendant and “come down on Mr. Norman’s head.” The two men then ran out. Norman was “bloody all over.” She positively identified the defendant as the assailant and said that he was wearing a grayish hat and a reddish brown jacket.

Other witnesses for the State included Police Officers James Ball, Edward Owczarek and Walter J. Zamolewicz. Officer Ball testified that on January 11, 1967, he had seen the defendant on the passenger side of a car. A woman named Barbara Price was sitting in the front seat between defendant and the driver. A pistol was taken from the purse of Barbara Price, which he inventoried together with four bullets and the serial number of the pistol. He was shown People’s Exhibit 3, a .38 Smith & Wesson snub-nosed, chrome revolver, and identified it as the same revolver taken from Mrs. Price. He said, “The serial number on the butt of the gun and the serial number on my inventory report is the same.” At the trial Norman was shown this revolver (Exhibit 3) for identification, and he testified that the revolver was identical in every respect to that of the weapon taken from him on January 10, 1967. He said, “Definitely. It is my gun.” He stated that before it was discharged during the robbery, the gun had contained five bullets.

Officer Owczarek testified that on February 3,1967, he had occasion to be in Smitty’s Tavern with Oscar Norman, and that Norman pointed out defendant from approximately twenty-five males present. The defendant was wearing a reddish brown suede jacket and had processed hair. The defendant was taken to the 11th District police station.

Officer Zamolewicz testified that on February 3, 1967, he interviewed the defendant and Norman in the presence of each other at the 11th District police station. He informed defendant that he was being charged with armed robbery of a drugstore on January 10, 1967, and after warning defendant of his constitutional rights, the defendant stated, “I didn’t do it. I was in Springfield, Illinois, and I didn’t leave there until the 12th or 13th of January.”

Witnesses for the defense included the defendant and Herbert H. Harris. Defendant testified in his own behalf that he had never robbed or struck Norman on the head. Also, he didn’t recall if he was in Chicago on January 10, 1967. Herbert H. Harris, a gunsmith who had been a distributor for Smith & Wesson for thirty years, testified that the Smith & Wesson revolver was identical to a million other revolvers that had been made, and the only way to tell one revolver from another was by the serial number.

Initially considered is defendant’s contention that Norman’s Smith & Wesson revolver (State’s Exhibit 3) should not have been admitted into evidence. He asserts that the introduction of the pistol into evidence violated the Fourth Amendment prohibition against unreasonable searches and seizures. The record shows that at the hearing of a pretrial motion to suppress the pistol as evidence, defendant was the sole witness. He testified that on January 11, 1967, one day after the alleged robbery, he was riding as a passenger along with Barbara Price and another man, in a car driven by McKinley Shumate. Shumate made an improper turn and was stopped by two uniformed policemen. The policemen asked Shumate for identification and his driver’s license, and when Shumate was unable to produce a driver’s license, the officers ordered the male passengers out of the car and conducted a “pat down.” One of the officers leaned over the front seat and opened Barbara Price’s purse, looked in, and found a .38 caliber Smith & Wesson special chrome-plated, snub-nosed revolver, containing four cartridges. No weapons were found on defendant or the other passengers. No one tried to strike the police officers or offered resistance to them. Barbara Price, Shumate and defendant were brought to a police station and charged with disorderly conduct. After defendant’s testimony and the argument by counsel, the trial court denied the motion to suppress.

Defendant argues that the police were not justified in conducting a search when making an arrest for a traffic violation. Also, even if they were justified in searching the driver they were not justified in searching the passengers. Authorities cited include People v. Cassell, 101 Ill App2d 279, 243 NE2d 363 (1968); People v. Watkins, 19 Ill2d 11, 166 NE2d 433 (1960); and United States v. Di Re, 332 US 581 (1947).

We agree with the State that the instant search and seizure were reasonable and proper. The failure of Shumate to produce his driver’s license at the request of the arresting officers was a circumstance sufficient to warrant an officer’s reasonable belief that he may be dealing with a criminal rather than a mere traffic violator. Under such circumstances the search of the person arrested and those who were passengers in the car was proper and justified for the purpose of protecting the arresting officers from attack. See People v. Turner, 91 Ill App2d 436, 448, 235 NE2d 317 (1968). We find no error here.

Defendant further contends that the Smith & Wesson pistol was erroneously received into evidence even though it was neither found in defendant’s possession nor adequately identified. Defendant states, “It was no different from a million other pistols of the same type, and there is no reasonable basis to believe that it was the pistol taken in the robbery. . . . Thus the only way to identify one particular pistol, of the million which have been made, is by the serial number. The complainant did not know the serial number of the pistol taken by the robber. He had no means of identifying it.” Defendant’s authorities include People v. Smith, 25 Ill2d 428, 185 NE2d 150 (1962); People v. Evertson, 310 Ill 397, 141 NE 696 (1923).

The State argues that “even where stolen property is devoid of distinctive characteristics it will be admissible where sufficient circumstances connect it to the defendant and the crime, where a witness identifies the property as similar in appearance to the property stolen.” People v. Tilden, 50 Ill App2d 354, 200 NE2d 33 (1964); People v. Mikka, 7 Ill2d 454, 131 NE2d 79 (1955); People v. Jones, 22 Ill2d 592, 177 NE2d 112 (1961).

In People v. Tilden, the defendant contended that two eyewitnesses to a murder could not sufficiently identify the murder weapon since they could not testify as to the make or model of the gun. It was held that where the witnesses had “sufficient exposure” to the weapon, they could identify it by appearance alone, and that this was sufficient to warrant the introduction of the weapon in evidence.

In People v. Mikka, a witness to a robbery described a gun as “very similar” to one held by the defendant at the time of the robbery, and this was held to be sufficient identification. There the court said (p 460):

“Mikka contends that the court improperly admitted the gun in evidence because it was not found on his person. There is no merit to this contention. According to the testimony of Miller, the gun was found in the car which Mikka was driving and was, therefore, sufficiently connected with him to warrant its introduction in evidence.”

In People v. Jones, it is said (p 600):

“Thus the question is not whether the gun was in the possession of the defendant, but rather whether the gun had been sufficiently connected with the crime and the defendant to make it relevant as evidence. Here an eyewitness to the crime testified that he saw defendant fire a gun at Chevers and described the gun as a long-barrelled chrome-plated gun. People’s exhibit No. 3 was such a gun. The witness was shown People’s exhibit No. 3 and testified that it looked like the gun he had seen in defendant’s hands. The gun in question was found under the front seat of the automobile in which defendant was riding at the time he was arrested. Under these circumstances, we think the gun was sufficiently connected with the defendant and with the crime to make it relevant as evidence, and the trial judge did not err in allowing it to be admitted into evidence.”

In the instant case the pistol was positively identified by the complaining witness, Norman, as his own, whereas defendant never claimed it was his nor did Barbara Price claim it as hers. The pistol that was found contained four cartridges, and Norman testified that his pistol contained five cartridges before it was fired. Also, the pistol was found in a car in which defendant was riding. We think the pistol was sufficiently connected with the defendant and with the offense to make it relevant as evidence, and it was not error in allowing it to be admitted into evidence.

Next considered is defendant’s contention that “a hat and glove were admitted in evidence, even though they had no relevance to the guilt or innocence of the defendant.” Defendant argues that although the complainant, Norman, testified that these items of clothing had been worn by the robber, the testimony does not reveal where they were found, and “this made their admission into evidence especially prejudicial, since the jury may have assumed that they were found in the defendant’s possession. . . . The error was magnified when the jurors discovered, while examining the items, that the glove contained a watch which had not been offered in evidence. It was never explained how the watch happened to be inside the glove. ... To parade before the jury a hat, glove, and watch, without revealing where these objects came from, could only tend to confuse and bewilder the jurors.”

On this point the State argues that both Norman and Mrs. McCallum testified that defendant wore a gray checkered hat during the robbery, and that Norman positively identified both items as articles worn by the defendant. The State asserts that “on cross-examination, the complaining witness was asked whether these objects had been left in his drug store, and in response to this question, Oscar Norman said that the police had found them after he had left. Significantly, there was no objection to this answer and defense counsel evidently thought it responsive to his question.” We agree with the State that the foregoing was sufficient to establish a foundation for the admission of the hat and glove.

As to the watch, there is nothing in the record to show how it got into the glove, and it was not introduced into evidence. Although this occurrence was most unusual, the record does not demonstrate any prejudice to defendant. In fact, we think it could be reasonably argued as being prejudicial to the State’s case. See People v. Daniels, 354 Ill 600, 188 NE 886 (1933); People v. Stephens, 297 Ill 91, 130 NE 459 (1921). We think the relevance of the hat and glove was established and they were properly admitted into evidence.

Next considered is defendant’s contention that “the jury learned that the defendant had exercised his right to remain silent, thus violating the defendant’s Fifth Amendment rights.” This charge is based on the testimony of Officer Zamolewicz, who testified that after the arrest defendant denied taking part in the robbery and said he had been in Springfield until several days after the occurrence. The following then took place:

Prosecutor: “Did you ask him any further questions at this time?”
Witness: “He refused to make any more statements.”
Defense Counsel: “Object, Judge, not responsive.”
The Court: “That objection is sustained. It is not responsive. Would you ask the question again, please, and only give a ‘Yes’ or ‘No’ answer.

Defendant argues that even though the trial court sustained an objection to the testimony, the prejudicial effect of the testimony was still left on the jury. Defendant’s authorities on this point include Miranda v. Arizona, 384 US 436 (1966); People v. Lewerenz, 24 Ill2d 295, 181 NE2d 99 (1962); and People v. Roth, 19 Ill2d 195, 166 NE2d 578 (1960). In Miranda v. Arizona, it was stated (p 468):

“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”

The State argues that the statement complained of was in response to a proper question asked by the Assistant State’s Attorney, and “the defendant cannot complain that the prosecutor’s conduct prejudiced his right to a fair trial where the witness’ testimony was not responsive to a relevant question, especially where the testimony was immediately stricken by the trial court.” Authorities cited are People v. Kirkwood, 17 Ill2d 23, 160 NE2d 766 (1959); and People v. Sampson, 1 Ill2d 399, 115 NE2d 627 (1953). After examining the authorities and the record, we conclude that no prejudice accrued to defendant by the jury hearing the statement complained of, and it could not have reasonably affected the result of the trial in view of the overwhelming evidence of defendant’s guilt. See People v. Novak, 84 Ill App2d 276, 278, 228 NE2d 139 (1967).

Defendant’s next contention is that “the complainant was allowed to play on the sympathy of the jury by advertising his medical symptoms.” Defendant states that the complaining witness had suffered from polio and walked with a limp, and that the jury was allowed to observe him exhibit his deformity while walking to the witness stand. Also, while testifying, the witness placed a medicine bottle on the shelf in front of the witness chair and at one point drank from it. Defendant’s motion to exclude the jury from the courtroom at this time and his later motion for a mistrial were denied. Defendant’s authorities include People v. Wynekoop, 359 Ill 124, 194 NE 276 (1934); and People v. Nickolopoulos, 25 Ill2d 451, 185 NE2d 209 (1962).

We find no merit in defendant’s contention. A witness should not be shielded from the jury because he suffers from an infirmity not related to the offense charged.

Next considered is defendant’s contention that he was denied a fair trial because the court allowed prejudicial comment during the State’s closing argument to the jury. He complains of the prosecutor’s charge that the defense counsel was attempting to free defendant by trickery, and that the error was aggravated when the prosecutor based his comments on his three years’ personal experience, thus commenting on personal knowledge which was not in evidence. Authorities include People v. Freedman, 4 Ill2d 414, 123 NE2d 317 (1954); and People v. Polenik, 407 Ill 337, 95 NE2d 414 (1950).

We have examined the questioned remarks. Although we consider these remarks improper, we have concluded defendant was not prejudiced by them. Also, the jury was instructed they should consider only the statements of witnesses as evidence and not the comments of the attorneys.

We find no merit in defendant’s contention that the State should have called Janice Franklin, the pharmacy employee who was present at the scene of the occurrence and was not called to testify by the State. In People v. Jones, 30 Ill2d 186, 195 NE2d 698 (1964), it is said (p 190):

“The State is not obliged to produce every witness to a crime and the failure to produce a witness does not give rise to the presumption that the testimony of that witness would be unfavorable to the prosecution.”

Defendant also maintains that the conflicting and inconsistent statements of the complainant were a factor in casting doubt on his credibility. We find no prejudicial error to defendant. The discrepancies in the testimony of the various witnesses, including complainant, were argued to the jury for its evaluation as to the credibility of the witnesses.

Next considered is defendant’s contention that it was improper for the jury to begin deliberating before the cause was submitted to them. The record shows that after the introduction of all the evidence and final argument by both the prosecution and the defense, the trial court decided that it would not allow the State or defense exhibits to be taken into the jury room for fear that they might either confuse or prejudice the jurors during deliberation. The court stated that since the exhibits had been admitted, the jurors would be better informed if they were allowed to see them at first hand and instructed the bailiff to pass the exhibits through the jury box for the jurors’ inspection. After the jurors had reviewed the exhibits, the court stated: “I am sure there has been no discussion among you regarding exhibits. I think, after all of this time, you would have betrayed my instructions which have been so clear, that you are to keep all of what you observed here to yourselves until you go into that deliberation room.”

At the request of defense counsel, the court asked each juror who had discussed the exhibits while in the jury box to rise and give the nature of the discussion. Seven jurors rose and, on questioning, it was shown that they exchanged remarks during the examination of the exhibits, but each stated that his partiality remained unaffected. Defendant’s motion for a mistrial was denied.

Defendant argues that it was improper for the jury to discuss the evidence before the case was submitted to them. Authorities include Winebrenner v. United States, 147 F2d 322 (1945); People v. Rohwedder, 78 Ill App2d 211, 223 NE2d 1 (1967); and People v. DeStefano, 64 Ill App2d 368, 212 NE2d 368 (1965).

The motion for a mistrial was addressed to the sound discretion of the trial court. In People v. Malmenato, 14 Ill2d 52, 150 NE2d 806 (1958), it is said (P 63):

“The exercise of that discretion is always subject to review and its abuse will constitute reversible error. . . . The question presented is whether the jurors, or any of them, have been influenced or prejudiced to such an extent that they would not and could not be fair and impartial, and each case must be determined on its own peculiar facts and circumstances. . . . The statement of a juror that he has read but was not influenced by the article is not conclusive, and due consideration must be given to the nature and character of the statements themselves.”

And at page 65:

“To warrant a reversal, it must reasonably appear that the jurors, or at least some of them, have been influenced or prejudiced to the extent that they cannot be fair and impartial.”

A review of the jurors’ response to the questions of the trial judge indicates that the jurors’ partiality had not been affected by their discussion of the exhibits. Also, the inspection of the exhibits was made at the end of the trial after all the evidence had been presented. We find that no prejudicial error was committed.

Defendant further contends that the conviction and sentencing of both armed robbery and aggravated battery were improper and should be reversed. He argues that the aggravated battery took place during the robbery and hence constituted part of the “force” which would make the assailant guilty of robbery. Defendant cites People v. Durant, 105 Ill App2d 216, 245 NE2d 41 (1969), where the court said (p 228) :

“[C]oncurrent sentences for crimes resulting from the same conduct are improper, and the conviction of the lesser crime must be reversed. Therefore, the conviction on the robbery charge is affirmed, and the conviction for aggravated battery is reversed.”

The State argues that the concurrent sentences for armed robbery and aggravated battery were proper. It asserts that the robbery and battery were two distinctive acts because the force necessary to constitute robbery had already been applied at the time of the battery. The State points out that when the pistol was pulled from the complaining witness’s hand, a robbery had thus taken place, and the battery that ensued was a separate act. We agree both were “separate and distinct acts.” People v. Stewart, 106 Ill App2d 149, 245 NE2d 611 (1969).

Finally considered is defendant’s contention that the sentences imposed were improper. He argues that the sentence of ten to twenty years was excessive, knowing that defendant was thirty years old and had never been convicted of a crime before. Defendant also states that he fired no shots, did not strike the complaining witness and in no way attempted to injure him other than in self-defense when the complaining witness drew his gun. Authorities include People v. McAndrew, 96 Ill App2d 441, 239 NE2d 314 (1968); People v. Harpole, 97 Ill App 2d 28, 239 NE2d 471 (1968); and People v. Jones, 92 Ill App2d 124, 235 NE2d 379 (1968).

The State argues that the sentences imposed were reasonable in light of all of the facts and circumstances of the case. It notes that the acts done were premeditated; that a gun was used; that the complaining witness received severe injuries; and that the sentence is thus “of sufficient indeterminancy to provide an incentive for the possible rehabilitation of the defendant, and the maximum sentence is clearly proportionate to the gravity and violence of the acts committed.” We agree. See People v. Taylor, 33 Ill2d 417, 211 NE2d 673 (1965), where the court said (p 424):

“[W]here it is contended that the punishment imposed in a particular case is excessive, though within the limits prescribed by the legislature, this court should not disturb the sentence unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the proscription of section 11 of article II of the Illinois Constitution which requires that all penalties shall be proportioned to the nature of the offense."

For the reasons given, the judgments and sentences of the Circuit Court are affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.