author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Golden McMath, Defendant-Appellant.
    Gen. No. 51,569.
    First District, Fourth Division.
    December 31, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Alan S. Gersh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Offense Charged

Robbery. Ill Rev Stats (1963), c 38, § 18-1.

Defense at Trial

Alibi.

Judgment

After a jury trial, defendant was found guilty and sentenced to a term of 5 to 15 years.

Points Raised on Appeal

(1) The voice and physical identification procedures employed by the police prior to trial, were so unfairly suggestive that the defendant was denied a fair trial.

(2) Impeachment through silence of the key defense witness was improper because it was not preceded by a proper foundation.

Evidence

Mrs. Lovada Walker, for the State

She is sixty-one years old and lives at 9630 South Went-worth Avenue. On May 21, 1965, at 4:50 a. m., she left her home and began walking north on Wentworth Avenue when a man with a stocking cap over his face stopped her at pistol point and said, “Do as I say to do. I won’t hurt you.” The man snatched her purse, containing her identification and wallet, and fled down an alley. In the early daylight, she noticed that the man wore a dark zipper jacket and a gray hat. (The witness identified a gray hat as the one which her assailant had worn at the time of the robbery. She also identified her purse and wallet.) She then ran to a service station at 95th and La Salle Streets, where she had the attendant call the police.

Shortly thereafter, police arrived at the service station with her purse and wallet and defendant was with them. At the service station, she was able to identify defendant as her assailant by his voice, height, and build. At that time, defendant did not wear the mask. She said nothing to him. After she identified him, they took her to the hospital, where she received first aid for her hands and knee. She saw defendant again at the police station, where the police had him place a stocking mask over his face and speak the words used during the incident. She identified him by his height, build, shape of face with the mask on, and by his voice. She was never asked to make a comparative identification of defendant.

Police Officer Lawrence Tobuclc, for the State

Shortly after 5:00 a. m. on May 21, 1965, he saw defendant driving an automobile at excessive speed. He and his partner, Earl Davy, followed the car for several blocks, during which time defendant drove west, north, west and south. The police car had its spotlights on and Mars light flashing, and they caught him when defendant’s car struck a parked car on the left side of the street. Defendant immediately jumped out of his car, and so did the police.

On confronting defendant at his car, Tobuck noticed on the front seat a toy cap pistol, a gray hat, and a stocking cap. He then noticed a purse lying in the gutter just below the driver’s door of defendant’s car. The purse contained Mrs. Walker’s identification.

After checking with headquarters, he learned of a robbery at 95th and La Salle Streets of a person named “Walker.” They drove to the service station, where Mrs. Walker described her assailant as a man in a gray hat, gray pants, and gray jacket, wearing a stocking mask and carrying a small barrel chrome gun. When apprehended, defendant was wearing light rim glasses, gray hat, short gray jacket, blue trousers, and black shoes. As she described the assailant, defendant repeated, “She can’t identify me.”

Upon taking defendant to the police station, defendant explained that a man stopped him at 95th Street and Wentworth and asked him for a ride, which he gave him. The man then left the car, and defendant drove away. Defendant said he had returned to the spot where the man had gotten out of the car when the police followed him. Defendant claimed the toy gun was usually hanging as an ornament from his rearview mirror, but it had fallen off two days before.

At the police station, defendant was confronted with Mrs. Walker and was told to put on a stocking mask, which defendant did. Defendant then, upon police instruetion, said, “Give me your purse,” whereupon Mrs. Walker stated that he sounded and looked like the offender. This was the first time she had made such a statement to identify defendant.

Police Officer Earl Davy, for the State

He is a partner to Officer Tobuck. He corroborated Tobuck’s testimony as to the circumstances of the stopping of defendant. Defendant, after leaving his car, tried to push something under it. Officer Tobuck retrieved it and found it to be a purse belonging to “Walker.” After they arrested defendant, they asked him about the robbery. He said he didn’t commit it, and that a man he had picked up had dropped the purse.

They took defendant to the service station to see Mrs. Walker. Upon arrival, defendant ran up to her repeating, “I didn’t do this.” He was put in the squad car and they questioned Mrs. Walker. She said she didn’t know what her assailant looked like because he was wearing a mask. She described him as 5' 7", a husky build, and wearing gray clothes (short jacket, pants, and hat). When asked if defendant was the man, she answered that she was not sure, since the assailant was wearing a stocking mask, and she couldn’t really say that he was the man who robbed her.

At the police station Mrs. Walker was confronted with defendant wearing a stocking cap pulled over his head, a gray hat on his head, and a toy pistol in his hand. He repeated, “Give me your purse.” She then stated that defendant was the one; she knew by his voice. Another officer had put the stocking mask on defendant.

The purse, wallet, cap, stocking mask, and gun were admitted into evidence.

Luther Weatherby, for the defense.

He was employed at a Clark Gas Station at 11187 South Vincennes. On May 21, 1965, he saw defendant at his gas station washing his car some time after 12:30 a. m. Defendant was at the station for about half an hour.

Roy Dixon, for the defense

He is a construction worker who lives at 7755 South Normal. He has known defendant for 12 or 13 years. He last saw defendant on May 21, 1965, after 4:00 a. m., but some time before 5:00 a. m. when he was driven home by defendant.

Lonnie Sutton, for the defense

He was employed between midnight and 8:00 a. m. at the Shell Station at 95th and La Salle Streets. He was acquainted with defendant who hung around the gas station a lot. He saw defendant on May 21, 1965, at about 4:55 a. m. when he came to the station for gas. They chatted for a short while, and defendant left at about 5:10 a. m. He noticed the time because he was expecting a relief man who comes on at 5:30 a. m.

About 5:15 that morning, Mrs. Walker ran into the service station, told of the robbery, and asked him to call the police. Soon after, the police arrived with defendant in the back seat of their car. At the service station, the police asked Mrs. Walker whether defendant was her assailant. She said she didn’t want to make a mistake and didn’t believe that defendant was the man. The police did not tell defendant to go home. Sutton knew they were investigating defendant for a robbery, but because the police didn’t ask him, he did not tell them that defendant could not have committed the robbery since he had been at the service station at 4:55. Before testifying, he had not told this to anyone but defense counsel.

Mary McMath, for the defense

She is defendant’s mother. She was familiar with his car, and said that he used a toy gun in the car for his stick shift. He also frequently wore women’s stockings, like the ones found in his car, to cover his head.

Gritts McMath, for the defense

He is defendant’s younger brother. He knew that defendant kept toy pistols in his car which were used for decoration. Defendant owned three or four stocking caps which he often wore.

Golden McMath, defendant, on his own behalf

He was employed at Ingersoll Products as a punch press operator, with hours from 4:00 p. m. to midnight. On May 21, 1965, he left work at midnight, slept for a while at home, and then went to the Clark service station about 4:00 a. m. He washed his car there and saw Luther Weatherby at the time. He also saw Roy Dixon there, and drove him home at about 4:20.

Two or three minutes before 5:00 a. m., he stopped to get gas at the Shell Station located at 95th and La Salle Streets. He noted the time on his watch. After talking for eight or ten minutes with Lonnie Sutton, defendant left the station and proceeded west on 95th Street. Two blocks west of La Salle, defendant was flagged down by a man with a shopping bag and a coat lying over it. Thinking the man to be a friend, he stopped the car and the man got in. He was offered $3 to give the man a ride to 99th Street and Halsted. He described the man as 5' 7" tall, having dark coloring, and wearing a dark jacket with an emblem on it, blue trousers, cushion shoes, and a greenish hat. The man was let off between 96th and 97th Streets on Emerald and there discarded the handbag. He was curious, so he circled the block to the spot where the handbag was dropped. He did not notice the police car or see its light until he had stopped and the police were approaching his car. The handbag was about two feet from where he was standing and he became afraid when the officers spotted it, so he kicked it.

The police then were told by radio of the robbery-in the vicinity and took him to the Shell Station at 95th and La Salle Streets. He told the police about the man to whom he had given a ride. He also requested a chance to talk to Mrs. Walker to show that he had nothing to do with the handbag. When confronted with Mrs. Walker, she told the policemen that he appeared to be the same height, color, and slender, but she wasn’t certain. One of the policemen then went to the car, got the bag, and said, “Come on lady, we got the guy red-handed. . . . Here is the mask and here is the pistol.” The policemen then brought him handcuffed before Mrs. Walker and put on a stocking cap that fit over his face. Then the police told her to come to the police station.

He was taken to the police station and handcuffed to a chair. He was questioned, and one of the officers said, “We got you this time.” The police told Mrs. Walker, “Come on lady, we got the guy here with the evidence right here.” She said the man had a mask on. Officer Bradshaw then took defendant’s hat off and forced a stocking over his face. He said, “Isn’t that a mask? He had the pocketbook, that has to be him.” Mrs. Walker then left the room. There was no lineup.

He kept about three stocking caps in his car which he wore around the house and when he was dressed up to go out, while driving in the car on the way. He also had some toy pistols in the car which he used on his stick shift and as an ornament hanging from his rearview mirror.

In 1966 he was convicted of rape and served nine years in the penitentiary.

Opinion

(1) Defendant contends that the methods used by the police to obtain an identification of defendant were unnecessarily suggestive, thus constituting a denial of due process of law; and that as a result, the in-court identification was so highly prejudicial as to deprive defendant of a fair trial.

On June 12, 1967, the Supreme Court decided United States v. Wade, 388 US 218, Gilbert v. California, 388 US 263, and Stovall v. Denno, 388 US 293. All three cases dealt with the question of pretrial identification— specifically, the police lineup. The Wade and Gilbert cases held that a post-indictment lineup was a critical stage of the prosecution and that defendants were then entitled to the assistance of counsel; that the admission into evidence of a subsequent in-court identification of the defendant would amount to reversible error if it was based on a lineup conducted in the absence of counsel; but that if it is established that the in-court identification was a harmless error, or, more importantly, had an independent origin or source, a conviction dependent thereon would be permitted to stand. The Stovall case followed, holding, in part, that the rule of the Wade and Gilbert cases had application only to cases involving confrontations for identification purposes conducted after the date of the decision (June 12,1967).

Stovall v. Denno, 388 US 293, concerned a defendant who was arrested for the stabbings of a married couple, resulting in the death of the husband. The next day the defendant was arrested, and, before he had the opportunity to obtain counsel, he was handcuffed to a policeman and taken before the hospitalized wife to be identified. After seeing him and hearing his voice, she said he was the murderer of her husband, and, at his trial, she identified him for the jury. In the second part of the opinion, the Supreme Court ruled that confrontations for the purpose of identification may be so unnecessarily suggestive and conducive to irreparable mistaken identification that the accused is denied due process of law. The court noted that the practice of showing suspects singly to victims of crime for the purpose of identification, and not as part of a lineup, has been widely condemned, but explained that such a claimed violation of due process of law “depends on the totality of the circumstances surrounding it.” (388 US 293, 302.) In Stovall, the facts, as reflected in the record, revealed that the confrontation had not violated due process, and the court affirmed the conviction, citing Palmer v. Peyton, 359 F2d 199.

The Supreme Court of Illinois adopted this application of due process to pretrial identification in People v. Nelson, 40 Ill2d 146, 238 NE2d 378. In that case, the defendant was arrested in 1965 for the illegal acquisition of drugs. After the arrest, there was an attempted lineup composed of the defendant and several other men of similar appearance. The defendant called his attorney and refused to appear in the lineup. The witnesses, druggists who had sold narcotics to the defendant, were told that the defendant refused to appear, and they were led past both the lineup and the defendant, who was sitting nearby and trying to conceal his face. It came out at trial that the witnesses were acquainted with the defendant before the arrest. The court, in recognition of Stovall, affirmed the conviction because, on the totality of the surrounding circumstances, the evidence did not disclose that the confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny due process. On the other hand, the evidence did disclose that the courtroom identification of the defendant was independent of and uninfluenced by any viewing at the attempted lineup. (40 Ill2d 146, 151-152, 238 NE2d 378.)

It appears to us from the cases cited that in an attack by a defendant on the admissibility of an in-court identification, it must be shown, first, that the pretrial identification confrontation was, under the circumstances, so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant was denied due process of law. See Palmer v. Peyton, 359 F2d 199. If such great unfairness is not demonstrated by the evidence, then the fact that the pretrial confrontation was not made in a lineup becomes a question of the weight to be given it by the jury, and does not serve to raise any question as to the admissibility of the in-court identification. People v. Crenshaw, 15 Ill2d 458, 155 NE2d 599; People v. Boney, 28 Ill2d 505, 192 NE2d 920; People v. Washington, 26 Ill2d 207, 186 NE2d 259. See also People v. Caruso, 65 Cal Rptr 336, 436 P2d 336, 341. If, however, the testimony does establish an unfair pretrial identification confrontation, the subsequent in-court identification may nevertheless be admissible if the State shows, by clear and convincing evidence, that such in-court identification had an independent origin, arising from other uninfluenced observation of the defendant. People v. Caruso, 65 Cal Rptr 336, 436 P2d 336; People v. Ballott, 20 NY2d 600, 286 NYS2d 1, 233 NE2d 103.

This latter situation is the one which we believe exists in the case now before us. Defendant was twice brought alone before Mrs. Walker. Looking, first, to the station house “showup,” we observe that in Illinois there has been no requirement that an accused must be placed in a lineup for the purpose of testing the ability of a witness to identify him. People v. Crenshaw, 15 Ill2d 458, 464, 155 NE2d 599; People v. Boney, 28 Ill2d 505, 509, 192 NE2d 920. Stovall v. Denno, supra, has modified this view only to the extent that, since a one-man showup may be highly prejudicial, it therefore must be carefully scrutinized to determine the fairness of the identification. At the police-station confrontation on the day of the robbery, defendant in the instant case was the lone suspect in a room with several policemen. The officers had defendant dress in a stocking cap covering his face, a gray hat on his head, and a toy pistol in his hand. He repeated several expressions used by Mrs. Walker’s assailant. At that time, she made a positive identification. We feel that the facts and circumstances of this identification were unfairly suggestive. Stovall v. Denno, supra; Palmer v. Peyton, 359 F2d 199; People v. Ballott, 20 NY2d 600, 286 NYS2d 1, 233 NE2d 103.

Mrs. Walker, however, had previously observed defendant at the time of the crime, and had been able to identify him at the service station. We believe that these facts, as reflected in the record, disclose a sufficiently independent and uninfluenced origin or source to stand as the basis for the courtroom identification. There is some conflict in testimony as to the sufficiency of the identification at the service station; however, there was testimony which, if believed, showed that her recognition of defendant was sufficient to satisfy her that he had been her assailant. The police considered it sufficient identification to keep defendant under arrest, and Mrs. Walker testified that she was able to identify defendant at that time by his height, voice, and slender build. All evidence of this sort is, of course, subject to cross-examination. A positive identification by one credible witness can be sufficient for conviction, though contradicted by the accused. People v. Boney, 28 Ill2d 505, 192 NE2d 920; People v. Washington, 26 Ill2d 207, 186 NE2d 259; People v. Thompson, 406 Ill 555, 94 NE2d 349; People v. Haywood, 72 Ill App2d 109, 218 NE2d 790. Here, also, the testimony of the two police officers concerning the circumstances of the arrest of defendant, together with the recovery of the purse, and the finding of the stocking caps and gun, furnish a strong measure of corroboration.

(2) Defendant also contends that there was unfair and improper impeachment of the key alibi witness for the defense, Lonnie Sutton. Defendant claims that several times during cross-examination an attack was made on Sutton’s credibility which was prejudicial because not preceded by a proper foundation. In this line of questioning, the State’s Attorney asked Sutton if he had told the police that defendant had been in his service station at the time of the robbery. The witness said that he had not, because they had not asked him that. This testimony was also referred to by the prosecutor in his closing argument.

Conduct may be contrary to testimony and serve as the foundation for impeachment. It must be shown that the witness had an opportunity to make a statement, and that,-under the circumstances, a person would normally make a statement. In the present case, the prosecutor argued that the failure of Sutton to speak in defendant’s defense at the service station was an indication contrary to his extensive alibi testimony at trial. We feel that the prosecutor’s tactic here was permissible. The four cases cited by defendant support, rather than negate, this proposition. Larrance v. People, 222 Ill 155, 78 NE 50; People v. Boulahanis, 394 Ill 255, 68 NE2d 467; People v. Svizzero, 84 Ill App2d 251, 228 NE2d 604; and People v. Yocca, 84 Ill App2d 423, 228 NE2d 599.

The prior silence in question before us arose from the conversation of the witness with police officers at the time of the initial confrontation between defendant and Mrs. Walker. Sutton knew that there had been a robbery and had even placed the call to the police as soon as he had learned of it. When the police arrived, he had discussed the robbery with them and knew that they were investigating it. He had seen defendant in the rear of the squad car and knew that defendant was a suspect. He also saw defendant transferred to a police van. It was a fair argument on behalf of the State that a man who knew defendant well and who testified that he had particularly taken notice of the time of specific events, would have mentioned something to the police when given an opportunity to speak. We believe that the cross-examination was properly founded and was relevant to the jury’s determination of the credibility of the witness.

Decision

The judgment and sentence of the Circuit Court are affirmed.

Affirmed.

McCORMICK, P. J. and DRUCKER, J., concur.

       This statement appears in the record, but was not included in defendant’s abstract.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE McCORMICK

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Irvin, Defendant-Appellant.
    Gen. No. 52,044.
    First District, Fourth Division.
    December 31, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

WILLIE IRVIN, defendant, was convicted of the murder of'Lena Shelly and an aggravated assault on James T. Shelly, and was sentenced to the penitentiary for not less than fifteen nor more than twenty-five years for murder, and not less than five nor more than ten years for aggravated battery. This appeal is taken from the judgment of the court.

The State’s first witness was James W. Harris, who testified that he lived at 3950 Indiana Avenue; that on July 26, 1965, at about 2:00 a. m., he was sitting on the front porch with Lena Shelly (deceased); she was sitting on the banister leading to the basement. He heard shots down the street and saw the defendant, Willie Irvin, and his wife each fire a shot, after which he saw the wife hand the gun to the defendant, who put it in his right-hand pocket with a handkerchief. About 15 or 20 minutes later the defendant and his wife came to the porch where the witness was talking with the deceased and the deceased’s father who had just joined them. The defendant pushed the deceased with his finger and said, “Don’t you like it?” She replied, “Not particularly,” and he said, “I’ll blow your brains out.” He then shot her in the head. The deceased had not moved from the banister before the shooting, nor had she touched the defendant. After she was shot she “made a funny little noise and fell.” The witness then ran upstairs, looked out the window and saw the deceased’s father hitting the defendant with a shiny object which the witness identified as People’s Exhibit 2, a metal vacuum cleaner pipe. He stated that he then heard a couple of shots fired, but did not see who fired them. The witness testified that he had once been sentenced to the penitentiary for armed robbery.

J. T. Shelly testified for the State that he was the father of the deceased; that on July 26, 1965, he arrived home from work about 3:00 a. m., and saw the defendant and his wife standing near their truck which was parked up the street from the building at 3950 Indiana Avenue. He sat on the porch talking with Harris and his daughter; at this time the defendant came up to the porch with his wife who was holding on to his side; he pulled loose from her, reached over and hit the deceased and asked her if she liked it. She said, “not particularly, because she didn’t feel good.” At that time the gun went off, and the defendant said, “Now, take that.” Shelly then went into the house, got the metal pipe and met the defendant in the hallway. He hit the defendant with the tubing and the defendant said he would kill him if he hit him again. He dropped the tube and the defendant fired two shots at him, hitting him in the back. Shelly saw the weapon after the defendant shot him. Shelly and his wife then went to see what they could do for their daughter, but she was dead, having been shot through the left side of her head.

Jessie Hewing testified that he was visiting with two girls at 3950 Indiana Avenue on July 26, 1965; that he looked out the window and saw the defendant and a woman walking down the street; that he heard a shot and saw the deceased fall off the banister. He then saw Shelly come out with some object in his hand and hit the defendant; another shot was fired, and he heard Shelly say to the defendant that he had shot his daughter. He saw the two men tussling together, but when he got there the defendant had gone. On cross-examination Hewing stated that he had testified at the Coroner’s inquest where a court reporter was present, and that he was examined as follows:

“Q. Did he have a gun in his hand at that time?
“A. No. I couldn’t see a gun in his hand. Evidently, he must have put it in his pocket or something.”

He was then asked if he gave that answer and he said, “I don’t remember giving that statement.” He said when the man was walking towards him and towards the building he couldn’t see the gun; that he didn’t see it anymore until after the girl fell. No record of testimony before the Coroner was introduced, and the impeachment falls flat.

Police Officer Robert O’Donnell testified for the State that on the day and time in question he went to the premises and saw the deceased lying on the steps; she had been shot on the left side of the head and was dead. He talked to Shelly who had a bullet in his back. He stated that he picked up a vacuum cleaning tube from the sidewalk which he had brought to court with him.

Richard Degitis testified for the State that he was a detective for the Chicago Police Department assigned to the homicide squad; that he investigated the shooting in question, and had a conversation the next day with Alline Smith, sister of the defendant.

It was then stipulated that if the Coroner’s physician were called to testify he would state that on July 26, 1965, he examined the body of Lena Shelly (deceased); that he observed a gunshot wound as follows: Entry in the left temporal area directed slightly obliquely upward and to the right passing through left temporal lobe and the mid aspect of the right temporal lobe, where the metallic pellet was recovered. In the opinion of the Coroner’s physician, death was caused by a gunshot wound of the brain. The witness also testified that the bullets fired at both the deceased and Shelly were submitted to the Coroner’s office, and in the opinion of the examiner, the bullets were fired from the weapon in evidence.

Willie Irvin, the defendant, testified that he had known J. T. Shelly six or seven years, and also knew his daughter, the deceased; that on July 26, 1965, he was in front of 3950 Indiana Avenue. His wife, his sister, Alline Smith, and he went there together in his sister’s car, after having been to a place called Turner’s in the 4000 block on Indiana, and to a Walgreen’s drugstore at 35th and South Park. He played the drums and guitar with a band at Turner’s. He stated that he had nothing alcoholic to drink that evening. When they arrived at 3950 Indiana, his sister went into her first-floor apartment; the defendant unlocked the trunk of his car and took out the gun which was in evidence. He said he did not want to leave it in the trunk overnight; he denied that the gun was fired at the truck location, either by him or his wife. He testified that he saw Lena Shelly (deceased), her father, and James Harris on the porch; that the deceased was on the railing to the north of the concrete steps. He stated that she asked him to lend her some money; he said he did not have any, and the deceased then hit his pocket; he told her not to do that, that there was a gun in there. She put her hand in his pocket, then pulled it out, and the gun came out with it; she grabbed him with her other hand and the gun went off. He testified that the deceased was falling and dropped the gun, and he picked her up and also picked up the gun and put it in his pocket. He stated that Shelly, the deceased’s father, then attacked him with a pipe, and the defendant grabbed him, wrestling with him in the hall, then out the door onto the sidewalk. He testified that Shelly continued hitting him with the pipe; that he told him not to hit him again, and pulled the gun out of his pocket, firing it into the ground. The defendant stated that Shelly then swung at him and the gun went off again; the defendant ran north, together with his wife, to his cousin’s house where they stayed overnight. The next day he went to the police station with the gun and reported what had happened the night before. He told them he had found the gun, because he did not want to admit owning it since it was not registered.

On cross-examination defendant stated that when the deceased put her hand in his pocket he “probably gave her the lift out, because I pulled up like this at her wrist, here.” He denied that he was holding the gun at the time it was fired. The State’s Attorney then asked him about the statement he made to the police when he gave himself up. He was asked:

“Q. Do you remember being asked this question and making this answer: ‘Q. What happened to the gun — after Lena Shelly got shot ? A. She pulled the gun out and I grabbed it. And I don’t know how it discharged, if her fingers hit it or my fingers hit it.’
“Q. Do you remember being asked that question and making that answer?
“A. Yes, I remember saying that I grabbed at the gun.”

The State’s Attorney then asked him:

“Mr. Irwin, did you tell the police in your written statement: A. She pulled the gun out and I grabbed it?’ Do you recall telling the police that after your arrest?
“A. I grabbed her arm.
“The Court: Yes or no.
“A. Well, yes, I might have told the police that. I might have told them that. I’m not sure. I didn’t read the statement after he made the statement, because I didn’t have no glasses.”

Alline Smith testified that she lived at 3950 Indiana Avenue in a first-floor apartment, and that she is the defendant’s sister. She testified that on July 26, 1965, she had been at Turner’s Lounge with her brother and his wife. Her brother, the defendant, was playing in the band that evening, and she did not see him drink anything. She said that she drove them in her car to a Walgreen drugstore, then to her home, after which the defendant and his wife went to their truck, and the witness went into her apartment and opened the window. She did not know what the defendant did at the truck which was parked opposite her window. She testified that when they reached the building at 3950 Indiana Avenue, James Harris and the deceased were out in front; that about five minutes after she went into her apartment she heard voices on the porch, then a noise like a firecracker; she was looking out the window and saw the deceased fall. She stated: “. . . her hand went up and one of his hands, and there was something; but it was done so fast and so quick . . . .” The witness further testified that she saw the defendant pick up the deceased, then saw Shelly come out and start hitting the defendant with a pipe; that while the two men were fighting she did not see anything in the defendant’s hand. She stated that the defendant ran; Shelly overtook him and kept hitting him; then a shot was fired “into the ground,” and the defendant got away; she did not know if other shots were fired afterward. She thought the deceased had said something to the defendant about two dollars, and about buying her a drink.

Sharon Irvin, defendant’s wife, testified that she lived at 3929 Indiana Avenue with her husband and her mother-in-law. She stated that she was hard of hearing; that she knew the deceased. On July 26, 1965, she was at Turner’s Lounge with her husband and his sister, where they stayed until closing at about 2:00 a. m. She drank no intoxicating liquor. Her sister-in-law drove them to a Walgreen drugstore at 35th Street and South Park to purchase Maalox, then drove them to 3950 Indiana; there the witness and the defendant stopped at their truck and he took something from it, but the witness did not know what it was. She stated there was no exchange of any gun between them, nor did she see a gun. At the front of the building she saw James Harris, Lena Shelly (deceased), and the deceased’s father; the two men were seated, and the deceased was standing near the rail. The deceased asked the defendant if he had any money and put her hand in his right-hand pocket; at that time the defendant raised one hand; the pistol went off, and the deceased fell. The defendant started to pick her up when Shelly came out of the building with a pipe and the two men started fighting and rolling into the street; the defendant got up and fired the pistol into the ground; the witness thought he fired another shot, but she did not see it fired; after that the defendant ran up Indiana Avenue and the witness followed him. They went to the defendant’s cousin’s home on St. Louis Avenue.

State’s witness, Officer Robert O’Donnell, testified in rebuttal that he had talked to Mrs. Smith, who said she was the defendant’s sister, and that she did not know anything about what happened outside the building on the night in question.

Opinion : In this court the defendant first argues that he was not proved guilty of murder beyond a reasonable doubt, and claims that the State, through its witnesses, revealed no motive for the defendant to murder the deceased. However, the State cites and quotes from People v. Doody, 343 Ill 194, 175 NE 436, where the court stated that the prosecution need not prove motive of crime where a deliberate criminal act is established. In People v. Corder, 306 Ill 264, at 277, 137 NE 845, the court said:

“In a criminal prosecution the People are required to prove the commission of an act forbidden by law and to prove it beyond a reasonable doubt, but they are never required to prove the cause or reason that induced the accused to commit such act if without such proof the evidence is sufficient to show that the act was done by him. If the accused committed the act, the question whether he had a motive, or what it was, is immaterial. (People v. Enright, 256 Ill 221.)”

In ILP, Criminal Law, § 21.40, the rule is laid down that

“Motive is not an essential element of a crime.
“Although motive is frequently an important element in the case of the prosecution, the state is not required to prove a motive for the crime, if without this, the evidence is sufficient to show that the act was done by the accused.”

The defendant cites People v. Meyer, 331 Ill 608, 163 NE 453, which is inapplicable because there the Supreme Court held that the shooting was not deliberate, while in the instant case the State’s eyewitness testified that defendant said to the victim, “I’ll blow your brains out.”

In the instant case the defendant further argues that since Harris was the only witness to testify he saw the defendant holding the gun, the introduction of Harris’ prior conviction impeached him. That, of course, is not the law. The only effect of the prior conviction would be to permit the jury to consider that fact in determining the credibility of that witness, and the jury was so instructed. The credibility of the witness is a matter for the jury. People v. Jones, 24 Ill2d 71, 179 NE2d 620; People v. Van Dyke, 414 Ill 251, 111 NE2d 165.

The defendant argues that the wound in the left temple of the deceased “with the bullet traversing a slightly upward direction is compatible with the theory of accident but is incompatible with the known fact that there was a standing defendant and a sitting victim on a side of him at the moment of the shooting.” Defendant’s speculations as to the course of the bullet seem specious since the jury evidently believed from the evidence that the shooting was deliberate.

The requirement that guilt of the defendant be proved beyond a reasonable doubt does not mean that the trial judge or jury, as the case may be, must disregard inferences that naturally flow from evidence, and the trier of fact is not required to search out the series of potential explanations compatible with innocence and elevate them to the status of reasonable doubt. People v. Beckham, 71 Ill App2d 357, 219 NE2d 139.

The mere fact that there was conflicting testimony or alternative explanations of conduct is not incompatible with proving the defendant guilty beyond reasonable doubt. People v. Hatch, 49 Ill App2d 177, 199 NE2d 81. Where there is conflict in evidence, conclusions and inferences to be drawn therefrom rest completely upon which witnesses the jury chose to believe. People v. Galloway, 28 Ill2d 355, 192 NE2d 370. The jury chose to believe the State’s witnesses. Rejection of the defense’s witnesses does not create a reasonable doubt. The State’s evidence was not so unbelievable or unreliable as to create a reasonable doubt.

Unless there is reasonable doubt as to defendant’s guilt based upon the evidence, the judgment should be affirmed. People v. Williams, 17 Ill2d 193, 161 NE2d 295. In the instant case the defendant was properly found guilty of murder beyond a reasonable doubt.

In this court it is argued that the trial court should have directed a verdict for the defendant on a charge of aggravated battery by the defendant on J. T. Shelly. Section 7-1, c 38, Ill Rev Stats 1967, provides:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

Without again reciting the evidence, it is apparent that Shelly, immediately after seeing his daughter killed, went to his apartment and brought out a piece of hollow aluminum tubing with which he struck the defendant. He dropped the tubing in a struggle with the defendant; he picked it up and the defendant drew his gun, telling Shelly he was going to kill him if he hit him again. It would appear that the defendant was not justified in believing that he was in danger of death or great bodily harm. The question is one of fact and not of law. The court properly denied defendant’s motion for a directed verdict. Shelly did not attack the defendant with a deadly weapon, nor is there any showing in the record that the defendant received any harm whatsoever from being hit with the tubing. The State proved the case of aggravated battery on Shelly by the defendant beyond a reasonable doubt.

It is argued that the prosecutor suggested that the testimony as to the silence of Alline Smith, sister of defendant, immediately after the incident, and her statement that she knew nothing of what occurred, was improper. There was no suggestion that her silence was proof of the guilt of the defendant. The only purpose of the impeachment was to shed doubt upon her testimony.

The defendant also argues that the prosecutor improperly used evidence of defendant’s prior conviction for other than impeachment purposes. Evidence was introduced that the defendant had formerly been convicted for assault and robbery in the State of Wisconsin. The argument of the State, while not proper, did not constitute reversible error. Other statements made by the State’s Attorney are also argued to be improper. We find no merit in these contentions. The defendant was properly convicted beyond a reasonable doubt of aggravated assault on Shelly.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Larry M. Williams, Defendant-Appellant.
    Gen. No. 52,183.
    First District, Fourth Division.
    December 31, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Sheldon M. Schapiro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Offenses Charged

Armed robbery and aggravated battery. Ill Rev Stats (1965), c 38, §§ 18-2, and 12-4a and 12-4b(l).

Judgment

After a bench trial, defendant was found guilty on both charges and sentenced to a term of 2% to 5 years for armed robbery.

Points Raised on Appeal

Defendant was not proven guilty beyond a reasonable doubt.

(1) The State failed to call a key witness.

(2) The State’s evidence was unbelievable.

(3) The identification testimony was unsatisfactory.

(4) The State failed to prove that defendant was either the principal or an accomplice.

Evidence

John Kelley, for the State

At approximately 2:30 or 3:00 a. m. on October 24, 1966, he was awakened in his apartment at 921 Windsor Avenue by three boys who kicked in his door. They beat him over the head with a hose from a fire extinguisher and cut him with a knife, causing a wound which required twenty stitches to close. He was also injured above the right eye and behind the right ear. The three asked for money upon threat of death, and he directed them to the money on his dresser. They took $30 from the dresser, a .38 Smith and Wesson revolver, and a 30-30 Winchester rifle. He was unable to recognize any of the men because his face was covered with blood. He is hard of hearing.

Carol Baker Lawson, for the State

She lives at 921 Windsor Avenue in the apartment next to Mr. Kelley. The door to her apartment is at a right angle to the door to Mr. Kelley’s apartment. On October 24, 1966, at 2:30 or 3:00 a. m., she was awakened by screams coming from Mr. Kelley’s apartment. She woke her husband, who turned on the kitchen light and opened the door. The light came from behind her into the hall. She was standing a little to the side and behind her husband as they looked into the hallway. She saw three men come out of Mr. Kelley’s apartment and walk in front of her door toward the stairs. She did not recognize the first or third boy to pass by because their heads were turned, but she did recognize the second to be defendant. Defendant stood and stared at her for “not even quite a minute” as he went by at a distance of three feet. She recognized defendant, for she had seen him on the street and knew his mother and two brothers. Her husband asked the three what they were doing in Kelley’s apartment, and they said they were helping Kelley because he was sick.

As soon as she heard Mr. Kelley screaming, she called the police. The police arrived after the men had left. She did not talk to them at that time, but later in the morning she spoke to detectives. A few days later, Detective Muscolino showed her five or six photographs of men. She identified a photograph of defendant and recognized his brother, but she knew none of the other men photographed.

Detective Leonard Muscolino, for the State

On October 24, 1966, he saw John Kelley in the emergency room of Weiss Memorial Hospital. Mr. Kelley had suffered a stab wound in the left arm and in the chest, and had several bumps and bruises on his head. He returned to the Kelley apartment where he saw that the door, which was padlocked, had been cracked and pulled away from the plaster. At that time he interviewed the other people in the apartment building.

He returned to the apartment with Mr. Kelley on October 28 and found it to be ransacked. There was a chair knocked over and blood on a bath sheet. He found an open knife and an 8 to 10-inch piece of fire extinguisher hose with a nozzle at one end lying on the floor. He showed six pictures to Mrs. Lawson and she identified defendant. An arrest warrant for defendant was obtained, and after some difficulty in finding him, the arrest was made on November 12.

Police Officer Samuel Barsevich, for the State

On November 12, 1966, while investigating this case, he was invited by defendant’s wife to enter the premises at 5038 N. Kenmore. There he saw defendant and arrested him, recognizing him from the photographs.

Lcurry M. Williams, defendant, on his own behalf

He move to Chicago from Kentucky four years prior to the trial. He was married in June 1965 and has two children. He worked for his stepfather as a house painter. He was nineteen years old. He had been separated from his wife and had been living with his mother at 925 Windsor Avenue.

He did not know where he was on the evening of October 24 or the day before. He did not remember where he was on October 25, 26, or 28. He did not rob Mr. Kelley on October 24. He was friendly with Mr. Kelley and had worked for him for several days. He knew Mr. Kelley lived at 921 Windsor, but had never visited him, and did not know that he had a gun, a pistol, or money in his house.

He was arrested on November 12 at his wife’s house while he was visiting his children.

Opinion

The case against defendant rests primarily upon the identification testimony of Mrs. Lawson. This evidence showed that she had ample time and opportunity to see and recognize defendant at close range in the apartment hall under satisfactory lighting conditions. Her identification was strengthened by the fact of her acquaintance with defendant in the neighborhood and her selection of his photograph from among others shown to her by the police. Her identification testimony was positive and was not shaken on cross-examination. The weight to be given this testimony is for the trier of fact, and the testimony of one credible witness can be sufficient for conviction even when contradicted by the accused. People v. Boney, 28 Ill2d 505, 192 NE2d 920; People v. Washington, 26 Ill2d 207, 186 NE2d 259.

(1) Defendant claims that the failure of the State to call Mr. Lawson to testify must weigh against the State on the matter of defendant’s identification. He points to the fact that according to Mrs. Lawson, her husband had been standing a little in front and to the side of her and that he, too, could have seen the three assailants leave Mr. Kelley’s apartment. The failure of the State to present Mr. Lawson as a witness does go to the weight to be given the identification evidence, but in this case is not sufficient to raise any doubt as to defendant’s identification.

Defendant relies on People v. DiVito, 66 Ill App2d 282, 214 NE2d 320, and Morei v. United States, 127 F2d 827. We feel that these cases are sufficiently distinguished in People v. Williamson, 78 Ill App2d 90, 223 NE2d 453, a case much closer to ours on the facts.

(2), (3) Defendant next contends that the testimony of Mrs. Lawson was so unsatisfactory that it failed to provide sufficient evidence to overcome the presumption of innocence and establish defendant’s guilt beyond a reasonable doubt. Aside from his argument as to the identification evidence, defendant contends that it is unbelievable that a man with defendant’s criminal record would be so foolish as to stop before Mrs. Lawson’s door long enough to be identified. This, too, was a matter for the trier of fact. The police procedure in regard to the photographs was proper for a witness’ identification of an assailant for the purpose of investigation and arrest, and it does not suffer a suggestive taint from the rule in Stovall v. Denno, 388 US 293. Since defendant was not in custody, submission to Mrs. Lawson of a group of six photographs was a justifiable parallel to a lineup procedure, thereby making it possible for the police to search for defendant and effectuate his arrest.

Defendant sums up these contentions by arguing that Mrs. Lawson’s testimony cannot be believed to establish defendant’s guilt because it is contrary to the laws of nature and universal human experience, citing People v. Dawson, 22 Ill2d 260, 174 NE2d 817; People v. Coulson, 13 Ill2d 290, 149 NE2d 96; and People v. Ware, 23 Ill2d 59, 177 NE2d 362. In these cases, convictions were reversed, however, because there existed great inconsistencies in the evidence, both between the parties and within the prosecuting witnesses’ own testimony. We find no such inconsistencies here. Mrs. Lawson’s testimony was challenged only by a general denial by defendant of his participation in the crime. People v. Davis, 71 Ill App2d 300, 218 NE2d 850.

(4) The final contention of defendant is that the evidence failed to establish beyond a reasonable doubt that defendant was the principal or an accomplice in the crimes charged. This claim is based on the fact that no witness saw which of the men hit Mr. Kelley with the fire hose, which took the money, or which stole the revolver and the rifle. Mr. Kelley couldn’t see because his eyes were full of blood. Mrs. Lawson only saw defendant leave the apartment, and did not see defendant aid or abet anyone. We are not convinced by this argument.

The Criminal Code provides:

A person is legally accountable for the conduct of another when:
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. Ill Rev Stats (1965), c 38, § 5-2 (c).

Proof of acts in furtherance of a common design or purpose to commit a crime need not be supported by words of agreement, but may be drawn from the circumstances surrounding the commission of the act by the group. People v. Hill, 39 Ill2d 125, 233 NE2d 367; People v. Richardson, 32 Ill2d 472, 207 NE2d 478; People v. Rybka, 16 Ill2d 394, 158 NE2d 17. It is true that to support such a common design the proof of aiding, abetting or assisting in the perpetration of the crime must show some conduct of an affirmative nature, and mere presence or negative acquiescence is not sufficient. People v. Powers, 293 Ill 600, 127 NE 681; People v. Barnes, 311 Ill 559, 148 NE 445; People v. Hobbs, 400 Ill 148, 79 NE2d 202. One may, however, aid and abet without actively participating in the overt act. We conclude that the proof in the instant case was ample to establish defendant’s guilt beyond a reasonable doubt. People v. Richardson, 32 Ill2d 472, 207 NE2d 478; People v. Hill, 39 Ill2d 125, 233 NE2d 367; People v. Nugara, 39 Ill2d 482, 236 NE2d 693; People v. Thomas, 104 IllApp2d 56, 243 NE2d 611.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

MCCORMICK, P. J. and DRUCKER, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Plodzien, Defendant-Appellant.
    Gen. No. 52,260.
    First District, Fourth Division.
    December 31, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, 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.

CRIME CHARGED: Robbery.

JUDGMENT: After a bench trial defendant was found guilty and sentenced to the Illinois State Penitentiary for a term of not less than three nor more than eight years.

CONTENTIONS ON APPEAL:

1) Defendant was not proved guilty beyond a reasonable doubt.
2) Sentence was excessive.

EVIDENCE: Terrell Fondren, the complaining witness, testified as follows: On December 21, 1966, he was at his place of business at 3059 North Sheffield Avenue, Chicago, when the defendant entered the store about 10:30 a. m. with another man. They stayed five or ten minutes and left. Fondren was able to get a good look at the defendant. At about 2:30 p. m. that same day the defendant returned to the shop, at which time Fondren was alone, seated at his desk in the rear of the store. Fondren went to the front to greet the defendant, who ignored the greeting and walked behind Fondren. At that time the bell on the shop door rang and a man entered, whom the witness recognized as the person who had accompanied the defendant in the morning. As he looked at the man Fondren was struck on the head from behind, and the next thing he remembered was lying on the floor and being struck in the face by the defendant. He then became unconscious, and when he awakened he felt the defendant going through his pants pockets. He told him the only money he had was in his raincoat in the back of the store. The defendant and his companion then picked him up, pulled him to the rear of the shop and bound him to a large grinding wheel. The defendant then took Fondren’s billfold containing $3, identification and credit cards, including one for Marshall Field & Company, after which the two men left. Fondren identified People’s Exhibit 1 as the Marshall Field credit card.

Lynn Bischak testified for the State that he was a special investigator for Marshall Field & Company; he identified the defendant in court, stating that he first saw him on December 21, 1966, when he attempted to purchase goods with a charge plate which had been reported stolen earlier that day. He was shown People’s Exhibit 1, the credit card issued by Marshall Field, and testified that it was in the possession of the defendant when he was arrested.

The defendant testified that a friend of his told him he “knew a queer up on Belmont and Sheffield who might give them some money.” They went to Fondren’s shop after visiting a tavern, and the friend went into the back room and talked to Fondren. He returned and said he didn’t believe Fondren had any money, so they started to leave. The defendant said Fondren came to him and “approached like he was a queer” and the defendant knocked him down and left. The defendant’s friend told him that Fondren had given him the credit card for Marshall Field’s; defendant said he used the card, but denied taking other identification cards from Fondren, or robbing him.

OPINION: The defendant first argues that he was not proved guilty beyond a reasonable doubt. The case was tried before the court without a jury. In People v. Schoop, 288 Ill 44, at 47, 122 NE 836, the court said:

“This court will not reverse a judgment of conviction on the evidence merely because only one witness testifies to the commission of the crime and is contradicted by the accused. (People v. Zurek, 277 Ill 621.) In Gainey v. People, 97 Ill 270, this court said: ‘The most important and useful function which the jury is required to perform is to determine on which side of a controversy the real truth lies where the testimony as to the material facts is directly in conflict and irreconcilable, and its conclusion in such case of necessity depends largely upon the credit to be given to the opposing witnesses, hence it is universally admitted to be the peculiar province of the jury to determine the credibility of the witnesses.’ It is only when this court is able to say, from a careful consideration of the whole testimony, that there is clearly a reasonable and well founded doubt of the guilt of the accused, that it will interfere on the ground that the evidence does not support the verdict. (People v. Grosenheider, 266 Ill 324; Graham v. People, 115 id. 566.) This must necessarily always be the rule where the court has committed no error in its ruling or where no such errors are complained of and no other improper conduct of the jury or of counsel is shown, as it was never the intention of the law that the court should usurp the province of the jury.”

This has been the law in Illinois for many years.

The defendant cites and quotes from People v. Kirilenko, 1 Ill2d 90, 115 NE2d 297 (a case which really supports the State’s position), where the court said at page 97:

“The sufficiency of the evidence in this case depends, as it so often does, upon the credibility of the prosecuting witness. Where the evidence relating to material facts in issue is in direct conflict and cannot be reconciled, we have stated many times that it is the duty of the jury, or of a court sitting without a jury, to determine the credibility of the witnesses and the weight to be given their testimony, and, in such function, this court will not substitute its judgment for that of the jury or court. (People v. Sheppard, 402 Ill 411; People v. Langer, 384 Ill 608.) In criminal cases it is the duty of this court to examine the evidence, and, if there is not sufficient credible evidence, if it is improbable or unsatisfactory, or not sufficient to remove all reasonable doubt of defendant’s guilt and create an abiding conviction that he is guilty, the conviction will be reversed.”

It has also been held that the testimony of one credible witness is sufficient for the trier of the fact to conclude that the defendant had been proved guilty beyond a reasonable doubt. People v. Webb, 60 Ill App2d 365, 208 NE2d 639. The sufficiency of the evidence depends solely upon the credibility of the witnesses and the weight to be given their testimony. People v. Riddle, 14 Ill App2d 261, 144 NE2d 466 (abst). Also see People v. Carpenter, 71 Ill App2d 137, 217 NE2d 337; and People v. Bray, 52 Ill App2d 384, 202 NE2d 152.

In the instant case there was strong corroboration of the testimony of the State’s witness by the showing that defendant was in possession of the Marshall Field credit card. Considering the above rules, a careful examination of the evidence clearly shows that the defendant was proved guilty beyond a reasonable doubt.

The second contention of the defendant is that the sentence of three to eight years in the penitentiary is excessive, and he asks that this court reduce the sentence. In section 18-1 (b), chapter 38, Ill Rev Stats 1965, the penalty for robbery is set out as follows: “A person convicted of robbery shall be imprisoned in the penitentiary from one to twenty years.”

In the case before us the evidence in the record shows that the alleged crime was committed by the defendant on December 21, 1966. In their briefs both the State and the defendant agree that in January 1954, the defendant had received one year’s probation for petty larceny; that in April 1964, he received 90 days in the House of Correction for petty thievery; that in June 1964, on two counts of burglary, he was given concurrent sentences of from one to two years in the penitentiary; that on December 22, 1966, on the charge of deceptive practices, he received four months in the House of Correction, and on the same date, on a charge of battery, an additional four months in the House of Correction, to run consecutively.

It is true that the Supreme Court Rules of Criminal Appeals (Ill Rev Stats 1967, c 110A, § 615(b) (4)) allow for reduction of sentence by reviewing courts; however, this power should be used sparingly and only in cases where it appears that some substantial prejudice to the rights of the defendant has occurred. In People v Davidovic, 68 Ill App2d 216, 215 NE2d 474, the court cites with approval and quotes from People v. Valentine, 60 Ill App2d 339, 355, 208 NE2d 595, where Mr. Justice Dempsey said:

“We believe that the power to reduce sentences should be used with caution and that a sentence imposed by the trial judge, who sees the defendant and is in a far better position to appraise him and to evaluate the likelihood of his rehabilitation than a reviewing court, should not be reduced unless there are substantial reasons for doing so. The penalty decided upon by the trial court, if within statutory limits, should not be changed merely because of judicial clemency or just because the reviewing court would have imposed a different one if it had been in the trial court’s position.”

In People v. Gray, 33 Ill2d 349, at 356, 211 NE2d 369 the court said:

“The final question herein is whether the sentence, which is concededly within the statutory limit (Ill Rev Stats 1961, chap 38, par 18-2, provides for an indeterminate term, the minimum sentence for armed robbery being one year) was so unduly severe as to warrant reduction by us under Ill Rev Stats 1963, chap 38, par 121-9 (b) (4). It is clear that in passing sentence upon a guilty criminal, the trial judge is invested with judicial discretion within the limits of punishment fixed by law. (ILP, Criminal Law, § 815.) While the sentence herein is severe, we believe it to be justified under the circumstances shown. Defendant had been twice previously convicted of felonies and had violated probation granted after his first conviction. In addition to the penitentiary terms served on these convictions, he was sentenced to the State Penal Farm on a third offense and had been released only some four months prior to this armed robbery.”

See also People v. Nelson, 41 Ill2d 364, 243 NE2d 225.

Considering the defendant’s prior criminal record and his failure to rehabilitate himself, the sentence should not be reduced. The judgment is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie H. Moore, Defendant-Appellant.
    Gen. No. 52,298.
    First District, Fourth Division.
    December 31, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Howard Levine, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Offense Charged

Theft from person. Ill Rev Stats (1965), c 38, § 16-1 (a).

Defense at Trial

Alibi.

Judgment

After a bench trial, defendant was found guilty and sentenced to a term of 3 to 5 years.

Points Raised on Appeal

Defendant was not proven guilty beyond a reasonable doubt.

(1) Money allegedly taken from the victim was not properly identified.

(2) Defendant was not adequately identified as the robber.

(3) Defendant presented a reasonable excuse for his presence in the vicinity of his arrest.

Evidence

Mrs. Mary Paul, for the State

On July 29, 1966, at approximately 4:30 p. m., she cashed a $74 check at a currency exchange near the corner of Madison Street and Damen Avenue in Chicago. She received six ten-dollar bills, two fives, and four ones, which she placed in her wallet. She left the currency exchange holding her wallet in her right hand and holding the hand of her six-year-old son with her left hand, and walked west on Madison to the intersection of Damen. The day was warm and sunny. As she was standing on the corner preparing to cross the street, she noticed defendant as he was crossing Madison Street towards her. At that time, she looked at his face. She identified defendant in court as that man, although when she saw him on the street he had a thin mustache but he did not have the goatee he was wearing in court. Defendant walked up to her as if he were going to pass, then jerked the wallet from her hand, and fled north on Damen. She began to scream and gave chase for about a half block, but she soon lost sight of him when he turned into the alley, because she was pregnant and couldn’t run fast. As the man ran, he turned back to look at her. Another man, later known to her as a Mr. Simmons, ran after the one who had taken her wallet.

She next saw defendant about five minutes later near the corner of Warren and Hoyne Avenues. At that time, defendant was in the custody of Police Sergeant Michael-son. Mr. Simmons was there also. She told the officer, “That’s the man that got my wallet.” Defendant was searched and $74 was found in his pocket. She saw the money at that time, and it was in denominations of six tens, two fives, and four ones. They didn’t recover the wallet. The money was returned to her at the police station.

On that day, defendant was wearing dark trousers and “some kind of sweater shirt.”

Claude Simmons, for the State

At approximately 4:00 p. m. on July 29, 1966, he was standing on the corner of Madison and Damen waiting to cross the street, when defendant sort of pushed him from behind. He spun around to see Mrs. Paul yelling that defendant had taken her money. He saw defendant running north on Damen, and he started chasing him. He was joined by others and followed defendant into an alley, through a lot, and on to Warren Boulevard. He lost sight of defendant for about three or four minutes, and next came across him at Hoyne Avenue in the custody of police officers.

Mrs. Paul came up shortly after him and told the police that defendant had taken $74. He identified the defendant to the policeman and told him that “He grabbed the lady’s purse.” He then watched the policeman search defendant and take $74 out of his pocket. He did not recall the denominations of the bills.

During the chase, defendant looked back over his shoulder quite a few times; so he had an opportunity to see defendant’s face. He ran about 20 to 25 feet behind defendant, and sometimes closer, before he lost him. Defendant was wearing a sweater type shirt and slacks. He identified defendant in court, adding that at the time of the robbery he had a mustache but he did not have a beard, as he had in court.

Police Sergeant John Michaelson, for the State

On July 29, 1966, at approximately 4:30 p. m., he was patrolling his assigned beat in the vicinity of Madison and Damen when a motorist drove up honking the horn and yelling at him. They had a conversation, after which he followed that car west on Madison Street. He saw defendant (identifying him in court) run around the corner of Hoyne and Warren, walk across the street, and stop by an alley. He placed defendant under arrest. Defendant was “pooped.” Defendant denied any knowledge of the crime. A man now known to him as Claude Simmons arrived, and in a few minutes Mrs. Paul came up. They identified defendant as the thief. Mrs. Paul explained that defendant had taken $74 in denominations of six tens, two fives, and four ones. He then searched defendant and found exactly $74 in one pocket in the denominations claimed by Mrs. Paul to have been taken from her.

While they were standing there, a man from the Halfway House came up to defendant, had a conversation with him, and gave him a couple of dollars for cigarettes.

Defendant, on the day of arrest, wore dark slacks and had a small mustache. His hair was longer than at trial and he did not have a goatee.

Other officers on the beat (Hardy and Redelsterger) had a conversation with Mrs. Paul about the robbery and made up reports. When a Sergeant makes an arrest, the “beat car officers” make out the report. In a general case report made by these officers, an inventory was taken of property on defendant at the time of arrest. It stated that $74 in denominations of one twenty, four tens, two fives, and four ones were taken from defendant. Although the witness’ name was typed on the report, he had never seen it, and his name was spelled wrong. He didn’t believe that a $20 bill was taken from defendant, but, rather, six tens. A detective also made out a report which he never saw.

Willie Moore, defendant, on his own behalf

He left his second-floor residence at 308 S. Leavitt Avenue at approximately 2:45 p. m. en route to St. Leonard’s House (“Halfway House”) located near the corner of Hoyne and Warren. When leaving, his grandmother, with whom he lived, had given him $77 to pay the rent of $65 to his aunt, the manager, who lived on the first floor, and to use the rest to get an apartment of his own. The money was counted out in his hand and consisted of one twenty, four tens, two fives, and seven ones. Finding no one at home at his aunt’s apartment, he left for St. Leonard’s House to keep an appointment with Father Taylor. Of the $77, he put $3 in his watch pocket in hopes of getting the apartment for less than $12. He then took a leisurely walk to St. Leonard’s House which was five blocks away.

About 4:30 p. m., he was arrested near the corner of Hoyne and Warren, across the street from the Halfway House. The officer jumped out of his car and arrested him for snatching some woman’s pocketbook. He denied it, and he denied being near the intersection of Madison and Damen that day. They waited for a few minutes, when Mrs. Paul came up and said he looked like the man. The policeman searched him and found in his pocket $74 of the $77.

Father Taylor then came over from St. Leonard’s House, talked to him briefly, and gave him two quarters to get cigarettes.

He was then taken to the police station where, out of his presence, they inventoried the property taken from him. The inventory showed he had one twenty, four tens, two fives, and four singles. He used the two quarters to buy food at the police station. On July 30, he was admitted to the County Jail where they inventoried the remaining $3.

On the day in question, he was dressed in gray slacks, a light blue short-sleeved shirt, a pair of sunglasses, and a black straw hat. He did not have a goatee at that time.

Mrs. Addie Thrower, for the defense

She lives with her grandson on the second floor of 308 South Leavitt. She receives $72 per month in assistance money and pays $65 per month rent to her daughter who lives on the first floor. On July 29, 1966, she gave defendant $77 to pay the rent and to use for himself. She remembered that the money included one twenty and four tens. She did not remember whether the rest in-eluded one five or two fives. “It was not all fives and tens. They were twenties and tens.”

Defendant left about 2:30 or 3:00 p. m. on that day, wearing gray pants, a blue shirt, a black straw hat, and sunglasses.

Opinion

(1) Defendant claims, first, that he was not proven guilty beyond a reasonable doubt because the State did not prove that the money found in defendant’s possession was the money that was taken from Mrs. Paul. He bases this claim on what he contends is a fatal discrepancy in the evidence as to the denominations of the bills found on defendant upon arrest. Mrs. Paul testified that she had cashed a check for $74 at the currency exchange and received six tens, two fives, and four ones. Mrs. Paul and Sergeant Michaelson testified that the money found on defendant was precisely in those denominations. Defendant testified, and the general case report (which was made out by the beat car officers) stated, that when defendant was arrested, he possessed one twenty, four tens, two fives, and four ones. Defendant’s grandmother corroborated his testimony by saying that the $77 she gave him included a twenty-dollar bill.

In People v. Lagios, 51 Ill App2d 440, 201 NE2d 245, the victim of a robbery claimed that he had been paid $285 in various denominations, including a one hundred-dollar bill. The defendant was stopped by a policeman after he had been chased for several blocks. On him was found $269, including two fifties but no hundred-dollar bill. To the claim that the discrepancy about the hundred-dollar bill and the variance between the amount taken and the amount found on defendant created a reasonable doubt, the court said:

The value of property taken is immaterial and its precise identification is unnecessary if the character of the property is such that exact identification is difficult. People v. Carpenter, 315 Ill 87, 145 NE 664. This is particularly true of money which, in most instances, cannot be positively identified unless it bears some peculiar mark or designation not common to all currency. People v. Rembowicz, 335 Ill 604, 167 NE 797. (51 Ill App2d 440, 443, 201 NE2d 245.)

That case is not significantly distinguishable from the one now before us.

In the present case, the money recovered was not introduced into evidence. The question therefore becomes one of credibility of the witnesses, including the correctness of the general case report. In light of the positive identification of defendant, the immediate recovery of the exact amount of money taken in the robbery, and the unshaken identification of the money in possession of defendant upon arrest, the report of the beat car police officers could have been in error on this point, and we do not believe that this minor discrepancy raises reasonable doubt of defendant’s guilt to overcome the decision of the fact finder.

(2) Defendant next claims that the on-the-street identification confrontation with Simmons and Mrs. Paul, while he was in custody of Sergeant Michaelson, was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. He further claims that the prosecution failed to establish, by clear and convincing evidence, that Mrs. Paul had had sufficient independent and uninfluenced observations of her assailant to render admissible her in-court identification. He also claims that Mrs. Paul’s observation of the robber was such a fleeting glimpse that it was insufficient to prove his identification beyond a reasonable doubt.

Defendant’s claims are based on Stovall v. Denno, 388 US 293, which held that a confrontation between a victim and an accused, within the totality of the circumstances surrounding it, may be so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny due process of law; and that an in-court identification based on such a confrontation is therefore inadmissible. When coupled with its sister cases, United States v. Wade, 388 US 218, and Gilbert v. California, 388 US 263, a standard has been established governing the admissibility of in-court identification in relation to testimony concerning pretrial identification of an accused under the due process clause. People v. Nelson, 40 Ill2d 146, 238 NE2d 378; People v. McMath, 104 Ill App2d 302, 244 NE2d 330; People v. Caruso, 65 Cal Rptr 336, 436 P2d 336; People v. Ballott, 20 NY2d 600, 286 NYS2d 1, 233 NE2d 103. Also see Palmer v. Peyton, 359 F2d 199. We believe, on the facts now before us, that the in-court identification was properly admitted under Stovall, supra, and that the prearrest observations of defendant constituted a sufficient basis for the identification testimony.

To support these conclusions, we point, first, to the fact that the unshaken identification by Mrs. Paul, based on her brief view of defendant at the time of the robbery, her observance of him during the chase, and her viewing of defendant when he was in custody of Sergeant Michaelson, were all parts of the same identification. Or, if not the same identification, then they are clear and convincing, independent and uninfluenced observations within the rule of Stovall, Wade, and Gilbert, supra. We reach the same conclusion as to the identification of defendant by Simmons.

We feel that this type of on-the-spot identification was contemplated by the courts as furnishing adequate independent-origin foundation for in-court identification. We reach this conclusion, perhaps somewhat obliquely, from the cases dealing with the evils of suggestive identifications in the context of police-station confrontations. People v. Nelson, supra, affirmed a conviction because the record established that the witnesses had prior acquaintanee with the defendant and had sold narcotics to him; People v. Caruso, supra, reversed a conviction because the witnesses had seen the robber for only a few seconds at the time of the robbery and had lost sight of him without pursuit; People v. Ballott, supra, reversed and remanded a conviction for the trial court to determine whether the witness could identify the defendant on the basis of her observation at the time of the robbery; and Palmer v. Peyton, supra, reversed a conviction because there was no showing that the witness had had sufficient opportunity to observe the defendant during the commission of the crime. In People v. Brown, 20 NY2d 238, 282 NYS2d 497, 229 NE2d 192, a conviction was affirmed because the record disclosed that the victim had spent a considerable amount of time with the defendant before and during the commission of the crime.

Also, we feel that due process does not require that the rule of Stovall, supra, be made applicable to on-the-spot identification confrontations of the kind presented by the case now before us. It appears that the evil to be corrected is in the “showup” confrontation, the weaker alternative to the “lineup. The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.” Stovall v. Denno, 388 US 293, 302. The practice of police showups is condemned, because after a period of time, even as short as a few hours, a person’s memory will begin to fade and become more susceptible to the suggestive nature of police custody and to other suggestive circumstances. The unfairness feared requires close scrutiny when a defendant has been identified through a showup while in station house custody. In Stovall, supra, the court, limiting itself to the particular facts of that case, found no reversible error in a one man “show-up” conducted in a hospital room under tight police supervision because of the desirability of immediate identification. And this result was reached even though the victim-witness saw the defendant only after he had been charged with the crime and arraigned. In Palmer v. Peyton, supra, and People v. Ballott, supra, the courts condemned as suggestive police station show-up identifications under circumstances which could easily have provided lineups. So far as we know, however, the procedure involved in on-the-spot identification has never been condemned. There appears to be no readily available reasonable alternative to the on-the-spot identification. It furnishes a desirably quick and sure way of establishing either probable cause for arrest or its opposite. When properly employed, it affords a real opportunity to an innocent person to avoid the needless detention which would follow if a formal lineup were conducted. As stated in Stovall:

Here was the only person in the world who could possibly exonerate Stovall. Her words, and only her words, “He is not the man” could have resulted in freedom for Stovall. (388 US 293, 302.)

We turn, then, to defendant’s claim that the identification evidence (apart from the Stovall issue) was doubtful, vague, and uncertain, and failed to establish defendant’s guilt beyond a reasonable doubt. While the identification of defendant by the witnesses was made while observing him alone in police custody, this can be sufficient, and the identification procedure is merely one of the factors to be weighed by the trier of fact. People v. Benjamin, 53 Ill App2d 249, 203 NE2d 74; People v. Boney, 28 Ill2d 505, 192 NE2d 920; People v. Washington, 26 Ill2d 207, 186 NE2d 259. Here, we have the unshaken testimony of Mrs. Paul identifying defendant as the robber. She saw him briefly as he snatched her wallet, and her eyes followed him down the street as he fled. It was a clear and sunny day. A positive identification by one credible witness can be sufficient for conviction, though contradicted by the accused. People v. Boney, supra; People v. Washington, supra. In this case we also have Simmons’ strong testimony fully corroborating that of Mrs. Paul. See People v. Thompson, 406 Ill 555, 94 NE2d 349. The evidence was more than adequate to withstand defendant’s attack on this issue.

(3) Defendant claims finally that he was not proven guilty beyond a reasonable doubt because defendant’s partially supported alibi was that he was on his way to an appointment with Father Taylor at St. Leonard’s House, and he was, in fact, arrested across the street from St. Leonard’s House. This, he claims, was sufficient excuse for his presence in the vicinity. We believe that the only issue thus raised is that of the credibility of opposing witnesses and this testimony is to be weighed with all other evidence. Defendant tries to enhance the credibility of his testimony by claiming that his alibi places him near the scene of the crime, while most alibi defenses place the accused miles away from the scene of the crime. This is a distinction without a difference and note the appropriateness to this case of the following language:

The trial court, as it properly could, believed the testimony of certain witnesses and disbelieved the testimony of others. In a bench trial no citation of authority is needed to support the rule that credibility of the witnesses is solely a question for the trial court and will not lightly be disturbed. An examination of the record indicates that there was no reasonable doubt as to the guilt of the defendant. People v. White, 63 Ill App2d 105, 112.

Decision

The judgment and sentence of the Circuit Court are affirmed.

Affirmed.

McCORMICK, P. J. and DRUCKER, J., concur.


text:
    Joseph A. Tomaska and Louise Tomaska, His Wife, Plaintiffs-Appellees, v. Anthony Barone, Virginia Barone, Joseph Gagliardo, and Gagliardo Realty Co., Inc., Defendants-Appellants.
    Gen. No. 53,160.
    First District, Fourth Division.
    December 31, 1968.

      Gerard A. Serritella, of Chicago, for appellants.
    Adamowski, Newey & Riley, of Chicago (Francis Riley, of counsel), for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiffs have moved to dismiss this appeal on the ground that the order defendants are seeking to reverse is not a final judgment and hence not appealable.

On January 15, 1968, the trial court, after hearing the case without a jury, entered a judgment for $2,700 in favor of plaintiffs and against defendants. On February 13 (29 days after entry of the judgment), defendants filed with the clerk, for presentation to the court, a motion “for an extension of time in which to file a Post-Trial Motion.” The court denied the motion on February 23. On March 22, defendants filed their notice of appeal from that order, stating that they would ask this court to reverse the order appealed from and remand with directions to allow an extension of time as requested in their motion.

We gather from the presentation in this court that the motion for which defendants requested an extension of time would have represented an attempt to comply with section 68.3 of the Civil Practice Act. Ill Rev Stats (1967), c 110, § 68.3. That section provides:

Motions after decree or judgment in non-jury cases
(1) In chancery cases and in cases at law tried without a jury, any party may, within 80 days after the entry of the decree or judgment, file a motion for a rehearing, or a retrial, or modification of the decree or judgment or to vacate the decree or judgment or for other relief. Neither the filing of nor the failure to file a motion under this section limits the scope of review.
(2) A motion filed in apt time stays execution, and the time for appeal from the decree or judgment does not begin to run until the court rules upon the motion.

This statute governing the filing of a so-called “post-trial motion” in a nonjury law case, is paired, more or less, with section 68.1 of the Civil Practice Act which applies to jury cases only. Ill Rev Stats (1967), c 110, § 68.1.

Basically, a notice of appeal must be filed within 30 days after entry of the final judgment appealed from. Supreme Court Rule 303 (a); Ill Rev Stats (1967), c 110A, § 303 (a). In the instant case, defendants did not file a notice of appeal within 30 days from entry of the judgment, so if their appeal is to withstand plaintiffs’ motion to dismiss, authority must be found elsewhere.

Supreme Court Rule 303(a) also provides that “if a timely post-trial motion directed against the judgment is filed, whether in a jury or a non-jury case,” the notice of appeal must be filed within 30 days after disposition of the motion. In the instant case, however, no “post-trial motion” was ever filed, so there is no alternative record date from which the time for filing a notice of appeal might be computed pursuant to this part of the rule. We consider it requisite under the language of the rule, that for a motion to qualify as a “post-trial motion” it must be one which specifically requests one or more of the types of relief authorized in subsection (1) of section 68.3 (rehearing, retrial, modification or vacation of the judgment, or other like relief). In our opinion, a motion for extension of time for the filing of such a motion, though technically made “post-trial,” does not, in itself, qualify as a “post-trial motion” as that term is used in Eule 303(a). We must conclude, therefore, that there was no “timely post-trial motion” and thus no later alternative date available for the filing of a notice of appeal as a matter of right.

Eeturning to Eule 303, paragraph (e) thereof furnishes a grace period of 30 days within which a losing litigant may ask the reviewing court for leave to file a late notice of appeal upon showing in his petition a reasonable excuse for failure to file within the original allotted period. No such petition was filed in this court in the instant case, however.

Thus, there were two successive 30-day periods during which defendants could have taken steps to perfect an appeal. When, on the thirtieth day after judgment, the court had not yet passed upon their motion for extension, defendants could have filed a notice of appeal and abandoned their plans for a post-trial motion, since such a motion is not essential in a non-jury case anyway. Compare sections 68.1(2) and 68.3(1). Or, when the court denied defendants’ motion for extension on February 23, they still had 21 days within which they could have asked this court for leave to appeal from the judgment. They elected to follow neither of these routes, however. Instead, they relied on the proposition that the court erred in denying their motion for extension of time and that this error was reviewable. Defendants did file a notice of appeal within 30 days from entry of the order just referred to, but that order did not have the character of a final judgment and was therefore not appeal-able. See Harris Trust & Savings Bank v. Briskin Mfg. Co., 63 Ill App2d 12, 211 NE2d 32.

Defendants argue that the trial court had erroneously denied their motion for extension on the sole ground that at the date of the hearing on the motion (February 23) more than 30 days had passed since entry of the judgment, without the entry of an extension order within said period, thus leaving the court without jurisdiction to proceed further. Defendants point out, citing Young v. Madden, 20 Ill2d 506, 509, 170 NE2d 551 that in determining the timeliness of a motion, the date on which it is filed is controlling, rather than the date on which it is denied. The Young case stands for not quite that proposition, but we could accept the argument as a general rule. We fail to see, though, how this helps defendants’ position. They cannot be heard to claim that they were entitled to an extension of time as a matter of right, but only in the court’s discretion. Had the court exercised its discretion and denied the motion, defendants would still have had to pursue their appeal, as we have indicated above. Furthermore, we are not certain that there can properly be an extension of the 30-day period for filing a post-trial motion in a nonjury case. Section 68.1 (3) relating to jury cases provides that post-trial motions must be filed within 30 days, “or within any further time the court may allow within the 30 days or any extensions thereof.” Nothing similar to this quoted clause is to be found in section 68.3 relating to nonjury cases. We are inclined to believe that extensions of time should be permissible in both types of cases, but we need not decide that point here.

We allowed oral argument on the instant motion, at which time defendants cited Peach v. Peach, 73 Ill App2d 72, 218 NE2d 504; and Bradley v. Metropolitan Sanitary Dist. of Greater Chicago, 56 Ill App2d 482, 206 NE2d 276. We believe that neither of these cases is helpful to defendants’ position here.

No notice of appeal from the final judgment has ever been filed. No post-trial motion has ever been filed. The notice of appeal which was filed expressly purports to appeal from an order which is not appealable. Much as we dislike doing so, therefore, we feel compelled to dismiss this appeal.

Appeal dismissed.

MCCORMICK, P. J. and DRUCKER, J., concur.

       The breadth of this relief seems to be inclusive of that in section 50(5) of the Practice Act relating to the authority of the court to “set aside” a final judgment.

       The holding in Young was that when a timely motion to vacate a judgment was filed and denied some time later, the time for filing a notice of appeal started running at the later date.


author: SCHEINEMAN, J. STOUDER, J.

text:
    The City of Macomb, a Municipal Corporation, Plaintiff-Appellee, v. Oren A. Gould, Defendant-Appellant.
    Gen. No. 68-7.
    Third Judicial District.
    January 9, 1969.

      Harris & Harris, of Macomb, for appellant.
    Flack & Dye, of Macomb, for appellee.
   SCHEINEMAN, J.

The defendant was found guilty of violating a city ordinance prohibiting fighting and was assessed a fine of $10. He appeals, contending the evidence is not sufficient to prove him guilty beyond a reasonable doubt as required in our present Criminal Code of Procedure.

The occasion was at night at a high school football game. The defendant was on the teaching staff and was charged at the time with the duty of keeping the crowd away from the fence between the stands and the playing field. He proceeded to strike a 15-year-old boy several times, which brought on this charge. He defends on the ground that he was only enforcing discipline, and that as a teacher he had the right to use corporal punishment.

We have no doubt of the right of a teacher to inflict corporal punishment in the process of enforcing discipline. Fox v. People, 84 Ill App 270; Drake v. Thomas, 310 Ill App 57, 33 NE2d 899. The same cases state the limit of the right. He may not wantonly or maliciously inflict corporal punishment and may be guilty of battery if he does so. Whether he has done so may be inferred from the unreasonableness of the method adopted or the force employed under the circumstances. This presents a question of fact requiring reference to the evidence.

The complaining witness, Mike Daniels, testified that shortly before the half-time intermission a player was injured and was carried from the field on a stretcher. He was put down near the fence just below where Mike was sitting. Mike, and a number of others, went to the fence to learn something about the seriousness of the injuries. The defendant came along and ordered them back to their seats. Mike testifies the crowd started back, and as he turned to go back, the defendant took hold of him, turned him around, and started hitting him on the face, first with his fist, then continued with the flat of his hand. Another man (later identified as a campus policeman) stepped between him and defendant and stopped the striking. Mike stated he was not in any of the classes taught by the defendant but he recognized defendant and turned to obey him, and that he groaned a little as he turned but did not say anything.

The blow with the fist caused a red mark on the side of his face which he said diminished overnight to a small bruise so that he was not claiming any serious injuries. The defendant admitted some striking but denied using a fist. He asserted that he thought Mike was turning to go hack to the fence when he turned Mike around. He testified Mike said “Ah, Gould.” Some other teachers had seen part of the striking but minimized it, and one agreed with the defendant entirely that there was no blow with a fist.

The police officer saw the striking when it was going on and stepped in to stop it, but testified he could not see whether or not any blow was with a fist.

In addition to the complaining witness, there were five other prosecution witnesses who testified, not counting the policeman. One had not seen the preliminaries but looked up in time to see the defendant strike a blow with his fist, so there were six persons who testified to at least one blow with the fist, and five of them agreed that Mike was walking away when the defendant turned him or twirled him around to begin striking him on the face.

If it is believed that Mike was obeying orders, and was walking away when the defendant turned him around, was there any justification for physical acts of any kind? Furthermore, is a teacher ever justified in striking the face of a pupil with the fist ?

Granting that a teacher may enforce discipline by punishing with a switch or a paddle, we would regard clubbing over the head as malicious and unreasonable force, but between these two extremes where is the line to be drawn between what is reasonable and what is malicious ? We conclude that under the circumstances as attested by a number of witnesses, there was presented a question of fact to be resolved by the trier of fact, who would also have to consider the credibility of the various witnesses and to decide what facts were actually proved. It is not our province to override the trier of fact in these respects based on our reading of a transcript.

Error was also asserted because the court ordered stricken certain testimony by the Director of Athletics that Mike’s injuries were minor. This testimony was merely cumulative and striking it was not a reversible error. The judgment is affirmed.

Judgment affirmed.

ALLOY, P. J., concurs.

Dissenting Opinion

STOUDER, J.

I cannot agree with the majority opinion. Under the cases decided in Illinois and relied upon in the majority opinion the law of Illinois is quite clear. A teacher not only has the right but the duty to discipline children under his tutelage. Failure to do this is tantamount to the failure of a teacher to perform his function, that of teaching. The criteria established are that the discipline must not be actuated by malice and must not be excessively or wantonly administered. In spite of the conflicting evidence, there is no conflict in the fact that the defendant thought the child was being disobedient and rebellious and took steps to correct him. Evidence is lacking from which it may be inferred that the defendant acted maliciously or wantonly. The only question as to whether it was excessive is in how much force was used and the only evidence on this point is whether or not defendant used his fist to strike the child. A blow with a fist does not necessarily mean a more violent action than a slap with the hand. To suggest, as does the majority opinion, that there was any clubbing about the head, is to utterly ignore the record. To question, as does the majority opinion, whether a teacher is ever justified in striking the face of a pupil is only to question the method employed in performing a function admittedly within the province of the teacher.

I do not condone the methods here used. However, to say that because I would not use such methods should impose quasi-criminal liability on the defendant would be to substitute my judgment for his in the performance of his duties. In the absence of any uniform recognition of what is and what is not acceptable discipline and on the basis of this record, I would reverse the judgment of the Circuit Court.