text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Herbert Martin, Defendant-Appellant.
    Gen. No. 50,505.
    First District, Fourth Division.
    September 13, 1966.
    Rehearing denied October 5,1966.

      Jason E. Bellows, of Chicago, for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Charges

Unlawful sale of narcotic drugs and conspiracy to sell same.

Judgment

After a jury verdict finding defendant guilty on both charges, the court entered judgment on the charge of unlawful sale and sentenced defendant to a term of fifteen to thirty years.

Points Raised on Appeal

(1) It was error to permit one of the State witnesses to testify because his name had not been furnished to the defense in an oral list of witnesses.

(2) It was further error for the court to refuse to compel the witness to answer defense counsel’s questions after the court had given the defense permission to interrogate the witness prior to the time he took the stand.

(3) The sentence is excessive.

Opinion

(1) After a timely motion by the defense for a list of the State’s witnesses, the State provided the defense with an oral list of witnesses that did not include the name of Robert Buonauro, an informer. At the trial the State offered Buonauro as a witness, and, over defendant’s objection, the court indicated that the witness would be permitted to testify. However, the defense was given a period of time to interrogate Buonauro prior to his taking the witness stand. Following this period of interrogation, defense counsel reported to the court that Buonauro had refused to answer his questions and that the court should therefore compel him to do so. The court refused.

It has been consistently held that discretion reposes in the trial court to permit witnesses to testify notwithstanding the absence of their names in the list of witnesses furnished by the State, and that, unless defendant can show that he has been prejudiced by surprise or otherwise, the trial court’s exercise of this discretion will not be disturbed. People v. Poland, 22 Ill2d 175, 184, 174 NE2d 804; People v. Weisberg, 396 Ill 412, 71 NE2d 671; People v. Hopkins, 29 Ill2d 260, 266, 194 NE2d 203; People v. Webb, 60 Ill App2d 365, 375, 376, 208 NE2d 639; People v. Brown, 68 Ill App2d 17, 25, 214 NE2d 465. Defendant recognizes this principle as announced in the line of cases referred to, but points out that all of these cases were decided under the law as it existed prior to adoption of the Code of Criminal Procedure of 1963. The old statute (Ill Rev Stats (1961), c 38, § 729) provided in pertinent part:

Every person charged with treason, murder or other felonious crime, shall be furnished, previous to his arraignment, with a copy of the indictment or the information, as the case may be and a list of the jurors and witnesses.

It is argued that the new code (Ill Rev Stats (1963), c 38, § 114-9) has provided for the only situations in which an unlisted witness may be permitted to testify and that a general discretion in this regard no longer reposes in the trial court. The present statute provides in part:

§ 114-9. Motion for a List of Witnesses.

(a) On motion of the defendant the court shall order the State to furnish the defense with a list of prosecution witnesses and their last known addresses.
(b) The court may permit witnesses not named in an original or amended list to testify when the name of the additional witnesses were not known and could not have been obtained by the exercise of due diligence prior to trial.

Defendant’s position is that, since there was no showing by the State that the facts in the instant case fell within the exceptions of subsection (b), the trial court was without authority to permit Buonauro to testify. We do not share defendant’s strict interpretation of this subsection. There is nothing about the form in which the new provision has been drafted which persuades us that defendant no longer need prove that he has been prejudiced by the failure to list a proffered witness. This condition of prejudice is absent from the new statute, to be sure, but it was also absent from the old statute. The requirement that prejudice be shown represents case law interpretation of the intent of the legislation to the end that the purpose of the law might be accomplished within the bounds of sensible administration of criminal justice. We believe that this salutary principle has not been negatived by the portion of the new code relied on by defendant. In this we share the conclusion of the code’s drafting committee whose comments indicate that the subsection was intended merely as a codification of prior law. See the Committee Comments to SHA c 38, § 114-9:

The purpose in requiring the State to furnish the accused with a list of witnesses is to prevent surprise and to combat false testimony. . . .
Subsection (b) is in accordance with existing case law. (See People v. Weisberg, 396 Ill 412, 71 NE2d 671 (1947).)

It is our opinion that the trial court had discretion to permit Buonauro to testify. His name had been endorsed on the indictment (copy of which had been furnished to defendant at arraignment) and the record does not support defendant’s claim of surprise. On the contrary, the record shows that defense counsel was given Buonauro’s name by the Assistant State’s Attorney some time after submission of the oral list of witnesses but still prior to trial. We conclude that the trial court acted within its proper discretion in permitting Buonauro to testify under these circumstances.

(2) Defendant also complains of the trial court’s refusal to compel Buonauro to answer questions asked by defense counsel during the time allotted for that purpose prior to the taking of the witness’ testimony. We have not been referred to any law or rule supporting the authority of a trial court to force an unwilling witness to answer questions put to him prior to the time he takes the witness stand. The legislature has provided that “[djiscovery procedures in criminal cases shall be in accordance with Supreme Court Rules.” Ill Rev Stats (1963), c 38, § 114-13. Since the Supreme Court has not promulgated any rules of discovery in criminal cases, no means were available to the trial court to compel the witness to answer defense counsel’s questions, even if the court had been so minded. Mr. Justice Brennan’s cogent argument (cited by defendant and published in 33 FRD 56, 57) in favor of liberalization of criminal discovery procedures can be acted upon by this court in neither a judicial nor a rule-making capacity.

(3) Defendant’s final contention that his sentence was excessive is based on the fact that he had never before been convicted for the sale of narcotics. At the time of trial defendant was 30 years old. Despite his youth, the record discloses five convictions for petty larceny dating from 1953, two convictions for theft of interstate shipment, one for malicious mischief, and two for other narcotics-related offenses. All of defendant’s prior criminal record was properly subject to consideration by the trial judge in determining an appropriate sentence, and not just offenses similar in nature to the most recent crime of which defendant stands convicted. The trial court had the authority to impose a sentence within the range of ten years to life. Ill Rev Stats (1963), c 38, § 22-40. On the state of this record, we cannot say that a sentence of fifteen to thirty years was excessive punishment. People v. Miller, 33 Ill2d 439, 444, 445, 211 NE2d 708; People v. Colson, 70 Ill App2d 447, 217 NE2d 348.

Decision

The judgment and sentence of the Circuit Court are affirmed.

Affirmed.

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

       His codefendant, Dewright Baxter, was given a life sentence. In an opinion filed concurrently that conviction was reversed and remanded on account of trial error as to Baxter only. (Case number 50506).


source: Caselaw Access Project

author: MR. JUSTICE ENGLISH

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Dewright Baxter, Defendant-Appellant.
    Gen. No. 50,506.
    First District, Fourth Division.
    September 13, 1966.

      Leonard A. Spalding, III, of Chicago (Leibman, Williams, Bennett, Baird and Minow, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Charge

Unlawful sale of narcotic drugs and conspiracy to sell same.

Judgment

After a jury verdict finding defendant guilty on both charges, the court entered judgment on the charge of unlawful sale and sentenced defendant to life imprisonment.

Points Raised on Appeal

(1) Defendant was not proved guilty beyond a reasonable doubt.

(2) It was reversible error to admit testimony of an informer concerning prior narcotic transactions with the defendant.

Evidence on Behalf of State

Police Officer William Demke

On July 29, 1964, he participated in a conversation at the 11th District Police Station with Officers Simpson, Nadile and Kelly and an informer named Buonauro. Thereafter, the officers made a thorough search of Buonauro’s person and clothing to ascertain whether or not he carried any narcotics. Satisfied that he did not, the officers then gave Buonauro $23 in bills the numbers of which had been prerecorded. The bills had also been powdered with a fluorescent substance. Buonauro then accompanied the policemen to the vicinity of Loomis and Madison Streets where he pointed out a man on the southwest corner; the man was defendant. Buonauro then walked across the street and conversed with him. The officers stationed themselves in a restaurant directly across the street where they were able to observe both men. Following a short conversation which the officers could not hear, Buonauro stood by as defendant walked approximately fifteen feet over to another man, said a few words to him, also unheard by the officers, and returned to Buonauro. This second man was codefendant Herbert Martin. Buonauro walked over to Martin and the two of them then went west on Madison Street while defendant Baxter remained on the corner. Officer Demke then followed Buonauro and Martin and, from a position on the opposite side of the street, observed them enter a liquor store. By the time Demke crossed the street Buonauro and Martin had emerged from the store, whereupon Buonauro handed Demke a tinfoil package. Demke then arrested Martin and, after the arrival of Officer Simpson, Martin was searched and found to have a five dollar bill, four singles, some change and a pack of cigarettes in his possession. Demke then field tested the contents of the tinfoil package which Buonauro had given him and found the substance to be an opium derivative. Simpson entered the liquor store and, when he returned to the car, they all proceeded again to Madison and Loomis Streets where they picked up Officer Nadile who had defendant Baxter in his custody.

Robert Buonauro

He had been a narcotics addict for ten years and, in fact, had used narcotics on the morning of the trial. He also admitted convictions for several criminal offenses. On July 29, 1964, Buonauro met the above-mentioned officers at the police station. After being searched, he was given a ten dollar bill which was marked with indelible pencil and the serial number of which was recorded by the police officers. He was also given an additional thirteen dollars. Buonauro then accompanied the officers to Loomis and Madison Streets where he observed defendant Baxter on the southwest corner of the intersection and walked up to him. He had seen defendant every day for about three months prior to that time. Over objection of defense counsel, Buonauro was then permitted to testify that he had seen defendant on those occasions “for buying narcotics mostly,” and that he had bought those narcotics from defendant. On the instant occasion Buonauro asked defendant if he had any “stuff” and the latter queried whether Buonauro had any money. Buonauro showed defendant the ten dollar bill. Defendant then said, “wait a minute,” and walked over to a man with whom Buonauro was not acquainted, although he had seen him on Madison Street before. He identified this man as Martin. When defendant returned he told Buonauro: “This guy has got one bag, if I wanted to buy it to go ahead with him.” Buonauro then went to Martin and asked him if he had a bag. Martin exposed a tinfoil package and Buonauro exposed his ten dollars. The two men then walked about a half block and entered a liquor store where Martin took the ten dollars from Buonauro and purchased a pack of cigarettes. The clerk in the store put the ten dollars in the register and returned the change to Martin. Upon leaving the store, Buonauro signaled the officers and Martin was arrested. Buonauro returned the unused thirteen dollars to Officer Simpson.

On cross-examination Buonauro denied that he had ever been paid by the police for his services as an informer. He also denied telling defendant, in the presence of Officer Pates, that “they have got the wrong man, I am not even going to testify against you.”

Police Sergeant Charles Vondrak

Assigned to the Chicago Crime Laboratory, he made laboratory tests of the substance contained in the tinfoil package and found that it was heroin.

Police Officer Thomas Simpson

He confirmed the testimony of Officer Demke from the time Buonauro was prepared for his contact with defendant until Martin’s arrest. Further, after Martin’s arrest, Simpson entered the liquor store where, in the cash register behind the counter, he found the ten dollar bill bearing fluorescent powder and police markings. (The bill was admitted into evidence.) He then went back to the car where Martin was in custody and shone an ultraviolet light on Martin’s person, observing fluorescent powder on the latter’s hands and pockets. Defendant was also put through the same light test, but the result was negative, indicating that defendant had not handled the ten dollar bill.

On cross-examination, Officer Simpson testified that Buonauro was given no payment for informing; that he informed because of his desire to rid the community of dope pushers. Simpson did not hear the conversation between defendant and Buonauro. Nor did he see what transpired in the liquor store after Buonauro and Martin entered.

Evidence on Behalf of Defendant

Police Officer Henry Pates

About a year prior to the trial he was present when Buonauro and defendant met at the police station and defendant said to Buonauro: “You know you’re framing me. Why did you tell them?” Buonauro did not answer and Pates made him leave the room.

Opinion

(1) The actual delivery of narcotics and receipt of money in the transaction for which defendant stands convicted was carried out by his codefendant Martin. Defendant therefore points out correctly that to establish defendant’s guilt his capacity must be proved and he must be shown to have been involved in the transaction as principal, broker, agent or employee. Ill Rev Stats (1961), ch 38, § 22-2, quoted above in footnote 1. He then contends that such proof is absent, arguing that the critical evidence of his participation in the sale was supplied by an admitted addict-informer whose testimony was not sufficiently corroborated to sustain a conviction, citing People v. Bazemore, 25 Illd 74, 182 NE2d 649. In Bazemore, a conviction based on the evidence of an addict-informer was reversed because the record showed no police surveillance of the alleged sale by defendant to the informer, no corroboration of the latter’s testimony that such a sale had taken place, and none of the marked money was recovered when defendant was arrested two months after the alleged sale. In the instant case the testimony of Officers Demke and Simpson showed close police surveillance of the entire transaction although not including the words used in his conversation with defendant on the street corner.

Buonauro’s testimony showed, in effect, that defendant established the price for the narcotics sale and verified Buonauro’s ability to pay. He also spoke to Martin for the purpose of effecting the sale, relayed the message that Martin would sell narcotics to Buonauro, and suggested that Buonauro talk to Martin if he wanted to make a purchase. While the officers were unable to hear defendant’s conversations with Buonauro and Martin, they did substantiate that these conversations took place. Moreover, there is clear proof that the alleged object of these conversations, the sale of narcotics, actually transpired.

As in the case of accomplice evidence, the testimony of an addict-informer must be subjected to close and careful scrutiny because of the recognized predisposition of such a person to give self-serving evidence not necessarily conforming to the truth. People v. Perkins, 26 Ill2d 230, 234, 186 NE2d 330; People v. Soto, 64 Ill App2d 94, 98, 99, 212 NE2d 353. However, as we have noted, we are not left here with the uncorroborated testimony of a drug addict, and in this circumstance the credibility of the informer’s testimony was a matter for determination by the jury. People v. Hamby, 6 Ill 2d 559, 562, 129 NE2d 746; People v. Villalobos, 20 Ill2d 315, 318, 169 NE2d 745; People v. Norman, 28 Ill2d 77, 82,190 NE2d 819.

The situation here is not unlike that in People v. Martin, 63 Ill App2d 492, 211 NE2d 753. There the addict-informer testified that he walked to a corner where he met defendant and advised him that he was looking for “something.” Defendant told him to wait, and a few moments later they were joined by a third person who was told by defendant that the addict-informer wanted “something.” The third person asked the informer if he had money, directed him to give the money to defendant, and then left for a few minutes. When he returned he gave a package to the informer. Although there was close police surveillance throughout the transaction, the conversations which took place between the three men were uncorroborated. The court affirmed the conviction. Unlike the case at bar, defendant in Martin received the money. However, his explanation that he had been duped by a plea from a fellow addict into providing the narcotics was not believed by the court. The fact that the addict-informer’s version of the conversation was not corroborated was not deemed fatal to the conviction. Similarly, we think there was sufficient corroboration of Buonauro’s testimony to permit the jury to determine the credibility of his testimony concerning the nature of his conversation with defendant.

If Buonauro’s testimony is believed, there is sufficient evidence to sustain a conviction regardless of the fact that he had no physical contact with either the narcotics or the money. While the particular capacity in which defendant participated in the sale transaction may not have been fixed with certainty, this is not a critical weakness as long as the unlawful participation is proved. People v. Aldridge, 19 Ill2d 176, 179, 166 NE2d 563. We are of the view that the evidence is sufficient to establish defendant’s guilt beyond a reasonable doubt.

(2) Defendant contends that it was reversible error to admit evidence of defendant’s prior narcotics transactions. As recited above, Buonauro was permitted to testify that he had seen defendant “for buying narcotics mostly” every day for about three months prior to the sale charged in the indictment. In our opinion, defendant’s point is well taken in this regard.

The general rule is that the admission of evidence concerning a different substantive offense, in support of the crime charged, is sufficiently prejudicial to constitute reversible error. People v. Gleason, 36 Ill App2d 15, 16, 183 NE2d 523. The reason for the rule is well stated in People v. Lehman, 5 I112d 337, 342, 125 NE2d 506, where the court said:

Evidence of other crimes is objectionable “not because it has no appreciable probative value, but because it has too much.” (I Wigmore, Evidence, 3rd ed, § 194.) The law distrusts the inference that because a man has committed other crimes he is more likely to have committed the current crime. And so, as a matter of policy, where the testimony has no value beyond that inference, it is excluded.

Accordingly, in People v. Rivas, 5 Ill2d 556, 562, 126 NE2d 638, a conviction for the sale of narcotics was reversed under circumstances described by the court as follows:

Having been indicted for the alleged offense of selling six capsulefuls of heroin on June 28, the State offered evidence, over timely objection, to prove two separate and distinct offenses on June 27. But unless there is some connection between the facts proved and the offense charged, it is improper to admit evidence of one crime to prove another. (People v. Richie, 317 Ill 551; People v. Turner, 260 Ill 84.) The substance of one crime cannot be proved by proving the substance of another. (People v. Allen, 368 Ill 368.) If the trial judge felt that the evidence of the prior transactions on June 27 tended to prove that the six capsules contained heroin, we feel that the evidence was improper for that purpose and was insufficient to sustain a conviction.

There are, however, a number of well recognized exceptions to the general exclusionary rule and the State relies on this corollary principle to sustain the conviction in the instant case. The exceptions have broad application to all kinds of crime including narcotics. See People v. Lewerenz, 24 Ill2d 295, 298, 181 NE2d 99, where the court said:

In prosecutions for offenses involving narcotics, authorities are in accord that evidence of other offenses is inadmissible unless it comes within one of the recognized exceptions to the general rule, i. e., where it is a part of the res gestae, or where it helps to disclose motive, intent, premeditation, guilty knowledge, malice or a common plan or scheme. (See: 22A CJS, Criminal Law, sec 691(25) and cases there cited.)

In People v. Davis, 14 Ill2d 196, 200, 201, 151 NE2d 308, the court stated that evidence of other offenses is admissible if it meets “the same test as to relevancy and materiality to the issues as other evidence (citations), and has been deemed properly admissible where it tends to establish the identity of the accused; to show his presence at the scene of the crime when an alibi is interposed; or to prove design, motive, or knowledge where these matters are in issue.” (Citations.) (Emphasis supplied.) In Davis the State successfully claimed that identity of the defendant was at issue. The court based its acceptance of the State’s contention on the nature of the cross-examination of the complaining witness, wherein defense counsel had sought to elicit the facts that the lighting was poor and that the opportunity to observe defendant at the time of the crime charged was therefore poor also. In the case now before us the State contends merely that “[t] he testimony strengthens the identification by the informer Robert Buonauro and removed any doubt that the defendant was an active participant in the sale.” We point out that in the cross-examination of Buonauro there was no attempt by defense counsel to attack Buonauro’s identification of defendant. It is true that the objectionable testimony concerning other sales came on direct examination and thus preceded the cross-examination of Buonauro. Significant in this regard, however, is the fact that Officer Demke had testified before Buonauro. Thus Demke had already testified that he knew defendant and had identified him as the man who had engaged in the conversation with Buonauro. And this identification had not been questioned by any cross-examination of that witness.

People v. Lopez, 10 Ill2d 237, 139 NE2d 724, relied on by the State, is also not in point, because there the testimony of prior sales was material to the identification of defendant, a circumstance we find nonexistent here.

The State also refers us to People v. Cole, 29 Ill2d 501, 194 NE2d 269. In Cole a federal narcotics agent testified that he made controlled purchases from the defendant on two occasions prior to the date of the offense charged. There was additional testimony by another agent corroborating these prior sales. The court found no error, and said at pages 504, 505:

Considering the stealth with which narcotics transactions are conducted, it is not likely that agent Cook could have merely walked up to defendant, asked for a spoon of heroin, given him $120, gone to the Woods Lounge and had defendant give him the heroin. Yet this, in substance, is what the agent said. This account becomes plausible, however, when it is explained that on July 20 a special employee introduced Cook to defendant. These special employees of the police are generally users of narcotics and persons who know the sellers and are trusted by the sellers. Because of this introduction a sale was allegedly made on July 20, defendant making delivery by leaving the narcotics at a relay mail box. . . . These prior transactions explain and lend credence to the otherwise unrealistic ease with which the Federal agent managed the controlled sale on October 10.

In the instant case, as distinguished from Cole, the plausibility of the transaction presented no problem, since the questionable testimony was given by a man who was neither a federal narcotics agent nor a stranger to defendant, but was, in fact, both a special police employee and a narcotics addict who had known defendant and had seen him every day during the previous three months, and who purchased a small amount of narcotics by comparison with the large purchase in Cole. It is not implausible that a narcotics addict under such circumstances could effect such a purchase. Further, despite the State’s argument based on the Cole case, there was no genuine identification issue in this case. As mentioned above, Officer Demke had identified defendant prior to Buonauro’s testimony and Officer Simpson later identified him in his testimony. In this circumstance, Buonauro’s testimony (to which no objection was made) that he had seen defendant every day for three months preceding the sale was more than adequate on the matter of defendant’s identification.

Nor did the evidence of other narcotic sales fall within the exception permitting evidence which tends to show design or system. People v. Steele, 22 Ill2d 142, 174 NE2d 848. There was no evidence to demonstrate that these prior offenses were committed in a manner similar to the offense charged; there was no indication in the record that defendant had previously participated in narcotics transactions by referring Buonauro to another seller. To the contrary, it was indicated that the purchases were made direct from defendant. And Buonauro said that prior to the crime charged he had never seen Martin.

The failure to relate any material characteristic or method of the prior transactions to those of the instant crime and the absence of any real issue as to identity, defeat the State’s argument of independent relevance, and leave only the highly prejudicial effect of this evidence on the minds of the jurors. When Buonauro testified to his prior narcotics purchases from defendant, it could have been for no purpose other than the improper one of showing defendant’s propensity to commit the crime charged.

Decision

The judgment of the Circuit Court of Cook County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

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

       Ill Rev Stats (1961), ch 38, § 22-3 provides in pertinent part:
      It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this Act.
      “Sale” is defined in § 22-2(1) as follows:
      “Sale” means and includes traffic in, barter, exchange, or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, broker, agent, servant or employee.

       His codefendant at the trial, Herbert Martin, was sentenced to fifteen to thirty years. In an opinion filed concurrently that conviction was affirmed (Case number 50505).

       By “stuff,” Buonauro stated he meant heroin.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leutender Davis (Impleaded), Defendant-Appellant.
    Gen. No. 50,542.
    First District, Fourth Division.
    September 13, 1966.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty and Frederick F. Cohn, Assistant Public Defenders, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Lawrence Genesen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Charge

Attempt (to commit robbery).

Judgment

After a jury verdict finding defendant guilty, the court imposed a sentence of one to five years.

Points Raised on Appeal

(1) The State’s Attorney made prejudicial statements in his closing argument to the jury which misled the jury, since the proof was inadequate to establish defendant’s guilt.

(2) During oral arguments in this court a question was raised as to the sufficiency of the instructions to the jury. Thereafter, on motion, defendant was permitted to file an addition to his brief, in which he contends that his conviction should be reversed because the jury had not been instructed as to the elements of the crime charged.

Evidence

There was testimony from State witnesses that defendant and another were attempting to rob a cabdriver when they were interrupted by the appearance of police officers who placed them under arrest. The policemen testified that defendant was armed with a knife and his companion with a gun. Defendant denied possession of the knife and denied any complicity in his companion’s attempted robbery.

Opinion

(1) The credibility of the witnesses is essentially a matter for the trier of fact. There is evidence which, if believed, establishes proof of defendant’s guilt beyond a reasonable doubt. In view of the position we take on the question of instructions, we do not decide the point as to whether the State’s Attorney did or did not make a prejudicial argument.

(2) Among the instructions tendered by the State and given by the court was the following, which sets forth the statutory definition of the crime of attempt:

The jury are instructed that a person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense. It does not matter that because such person has misapprehended the circumstances, it would have been impossible for him to commit the offense attempted. (Emphasis supplied.)

It can readily be seen that for this instruction to be meaningful to the jury, they must also be instructed as to the “specific offense” alleged to have been attempted, and the elements thereof. No such instruction was given, however.

The jury’s verdict found defendant guilty “in manner and form as charged in the indictment.” In so doing, the jury implicitly found defendant guilty of attempting to commit robbery (by performing an act which constituted a substantial step toward the commission of a robbery). In the course of reaching this verdict, however, the jury had been required to proceed entirely on its own speculation as to what steps were essential to the crime of robbery. Not only did the court fail to give an instruction setting forth the elements of robbery, but examination of all the instructions which were given discloses that the word “robbery” was never so much as mentioned. The jury was, therefore, left to its own devices in determining what “specific offense” the court was referring to in its definition of attempt, as well as in determining whether defendant had taken a “substantial step” toward its commission. Such a verdict cannot be permitted to stand.

Now, we are aware of cases which hold that a “trial judge has no duty to give instructions on his own motion where defendant does not request them.” People v. Carvin, 20 Ill2d 32, 36, 169 NE2d 260; People v. Baker, 8 Ill2d 522, 524, 134 NE2d 786; People v. Lindsay, 412 Ill 472, 484, 107 NE2d 614. See also section 67 of the Civil Practice Act (Ill Rev Stats (1963), c 110, §67). We believe, however, that the application of this salutary principle must have its limits, and that such boundaries are coextensive with the common-sense administration of the jury system. If no instructions were tendered by either counsel, we think that a trial judge would be abdicating his responsibilities if he were then to permit the jury to retire for its deliberations uninstructed on the law, and free to improvise its own concepts of the crime or crimes charged. As a matter of fact, it should no more be the responsibility of the defense than of the State to tender “definition” or “elements of the crime” instructions. Such instructions are essential to tell the jury what the case is about, and, in our opinion, are not the kinds which necessarily bear favorably upon some phase or theory of defense (e. g., presumption of innocence, burden of proof, self-defense) and would, in consequence, require the tender of such instructions by the defendant. Which may be another way of saying that we consider this type of instruction so vital to the veriest function of a jury that it must be the court’s responsibility to make sure that such a one is given, directing its preparation, if necessary. The absence of such a fundamental instruction in the instant case produces a situation where the deficiency in the totality of the jury’s instruction is so great as to require a review by this court in the interest of fair trial or the proper administration of justice, even though there was no prior objection or assignment of error.

We know of no Illinois decision in accord with our conclusion that the conviction in this case cannot stand, nor are we aware of any case to the contrary, except perhaps for the general statements in cases cited above, none of which dealt with the basic type of instruction we are concerned with here. Commonwealth v. Tracey, 137 Pa Super 221, 8 A2d 622, 625 (1939), however, is a case squarely in point. There, in reversing criminal convictions for armed robbery, and remanding for a new trial, the court quoted with approval the following statements in Commonwealth v. Gold, 123 Pa Super 128,186 A 208, 209:

“While as a general rule a judgment will not be reversed on account of the failure of a trial judge to instruct as to particular points where a request has not been made for such instruction, there still remain certain fundamental duties which the trial court, even in the exercise of the broad discretion given it, may not omit. Com. v. Stein, 305 Pa 567, 571, 158 A 563. One of the primary requisites in doing substantial justice to all parties concerned is that the jury shall clearly appreciate the exact issues involved.”

The court in Tracey then went on to say:

The jury convicted defendant of all of the crimes charged. They are serious offenses and all are not self-defining. The failure to give proper instructions descriptive of their nature is fundamental error, and it is unimportant that counsel made no request for additional instructions supplying the deficiency. This assignment of error must be sustained. (Emphasis supplied.)

To the same effect is Brook v. State, 6 Okla Crim 23, 115 P 1026, 1027 (1911), a rape case in which the court said:

That the trial court must define the offense charged is elementary. It is his duty to instruct as to the law of the case, and this includes a definition of the offense in the language of the law, sufficient to inform the jury what facts are necessary for the proof to establish in order to justify the finding of a verdict for conviction.

More recently, a similar situation, again involving the crime of robbery, was presented to the Court of Appeals for the District of Columbia. That court held in Byrd v. United States, 342 F2d 939, 941 (App DC 1965) :

It was fundamental error to send the case to the jury without instructions as to the elements of the offense which the Government must prove beyond a reasonable doubt before a verdict of guilty can be returned. (Emphasis supplied.)

The conviction was reversed even though there was no dispute over the fact that the crime had been committed, the only issue being the identity of the perpetrator.

In Morris v. United States, 156 F2d 525, 527, 529, 9 Cir, 1946, considering the point sua sponte, the court said:

It is our opinion that the trial court committed fatal error in failing to instruct the jury on the statutes and regulations defining and governing the offenses charged against the appellant.
The charge to the jury should not leave the jurors in ignorance of or leave them to their conjecture as to what constitutes the offense charged.

And the court in Screws v. United States, 325 US 91, 107, said in regard to the trial court’s failure properly to include the question of intent in its instructions to the jury:

It is true that no exception was taken to the trial court’s charge. Normally we would under those circumstances not take note of the error. See Johnson v. United States, 318 US 189, 200. But there are exceptions to that rule. United States v. Atkinson, 297 US 157, 160; Clyatt v. United States, 197 US 207, 221, 222. And where the error is so fundamental as not to submit to the jury the essential ingredients of the only offense on which the conviction could rest, we think it is necessary to take note of it on our own motion. Even those guilty of the most heinous offenses are entitled to a fair trial.

Decision

The judgment and sentence of the Circuit Court are reversed and the cause is remanded for a new trial.

Reversed and remanded.

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

       Ill Rev Stats (1963), ch 38:
      § 8-4 Attempt
      (a) Elements of the Offense.
      A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.
      § 18-1. Robbery
      (a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.

       It may also be said that the jury’s puzzlement, and with it the court’s error, was compounded by the giving of an instruction (tendered by the State) which, without defining “felony,” told the jury that “if two or more persons are engaged in the prosecution of a felony, the acts of each in the prosecution of such felony are binding upon all, and all are alike responsible for the acts of each in the prosecution of such felony.”

       Supreme Court Rule 25; Ill Rev Stats (1963), e 110, § 101.25:
      In criminal cases instructions to the jury shall be tendered, settled and given in accordance with section 67 of the Civil Practice Act, but substantial defects are not waived by failure to make timely objections thereto if the interests of justice require.
      See also People v. Fleming, 54 Ill App2d 457, 460, 203 NE2d 716; and section 121-9 of the Code of Criminal Procedure which provides in part:
      (a) Insubstantial and Substantial Errors on Appeal.
      Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.

       People v. DeMarios, 401 Ill 146, 153, 81 NE2d 464, touches only the fringe of the problem. The point was not raised, and from the language in that opinion the case could be used in argument either way.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Otha B. Smith, Defendant-Appellant.
    Gen. No. 51,043.
    First District, Fourth Division.
    September 13, 1966.

      Harry S. Weber, of Chicago, for appellant.
    Danield P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Charge

Armed robbery.

Defense at Trial Alibi.

Judgment

After a jury verdict finding defendant guilty, the court imposed a sentence of three to seven years.

Points Raised on Appeal

(1) The State’s Attorney commented unfairly on the absence of an additional alibi witness.

(2) The State’s Attorney improperly questioned a defense witness concerning his arrest record.

(3) The State’s Attorney asked improper impeachment questions of a defense witness.

(4) Defendant was not proved guilty beyond a reasonable doubt.

Evidence on Behalf of the State

John Kannell, a grocery store owner, testified that defendant robbed him at gunpoint on December 12, 1964, at 10:30 a. m. He made an unequivocal identification of defendant in a police lineup.

Another witness did not see the robbery, but identified defendant as a man he had seen at the time of the robbery leaving the grocery store in great haste.

A police officer testified to his apprehension of defendant through tracing of defendant’s automobile license plate which had been observed by Kannell. He also testified concerning Kannell’s identification of defendant at a lineup.

Evidence on Behalf of Defendant

Eugene Griggs

He had known defendant for three or four years. On December 12, 1964, defendant lived in the same apartment building with Griggs and his wife. On that date, at about 9:15 a. m., defendant gave Griggs and his wife permission to borrow defendant’s car to go shopping. Approximately forty-five minutes to an hour later they completed their shopping, and upon returning to the car, found that it would not start. After phoning defendant to inform him of the situation, they took a cab home, arriving there at about 10:00 or 10:15 a. m. Defendant was in his apartment when they arrived. Defendant then called someone to assist him with his car and left the apartment when that person came by.

On cross-examination the State’s Attorney elicited the fact that defendant had talked to both Griggs and his wife about the robbery charge. (Mrs. Griggs did not testify.) Griggs stated that he had told defendant he would testify if needed. In answer to a question as to whether his wife also had said she would testify. Griggs stated that she would have testified but that he didn’t think they would both be needed and she was working that day. Also on cross-examination Griggs was questioned about his arrest record. Objection to this line of questioning was sustained, and the jury was instructed to disregard it.

Nora Steele

He was employed as a mechanic. On December 12, 1964, he was called by defendant who asked him for assistance in the repair of his car. He went to meet defendant at about 10:30 or 10:45 a. m. and the two men worked on the car until almost noon.

Otha Smith, defendant

He admitted that he had been convicted of a burglary in 1953 and placed on five years’ probation. He denied that he was guilty of the robbery in question. Between August and October of 1964 he had been employed as a bartender at the Schooner Inn, and during that period he had seen Kannell in the tavern.

Robert Salley

He was the manager of the Schooner Inn. Defendant had worked at that tavern under his supervision in August, September and October, 1964, and had had access to the cash register. Kannell frequented the tavern during this period, at which time defendant was the only-bartender.

On cross-examination the witness was questioned as follows:

Q. When Smith was in the tavern was he ever there with a person by the name of Bonnie Page?
A. Bonnie Page?
Q. Also known as Bonnie Smith ?
A. I have seen her in there.
Q. Would you describe her to us, please ?
A. She weighed about 160 or 170 pounds, blonde hair . . .
Q. Have you seen her recently ?
A. No, I haven’t seen her since, oh . . .
[Defense counsel]: Judge, I object to any further line of interrogation.
The Court: Obj ection sustained.
Q. Do you know whether or not he was living with Bonnie Page?
[Defense counsel] : Object, this beyond the scope

Opinion

(1) The closing argument of the State’s Attorney included the following statement:

. . . you can’t tell me Mrs. Griggs who, unquestionably, would be the most honorable of the defense witnesses who testified, if Mrs. Griggs had in fact been there and could say it was that day, the 12th of December, if she could say absolutely, positively it was that day, the 12th day, she would have been here, no question about that, there is subpoena power, the judge would issue a subpoena and bring her in and put her on the stand, no question about it, if Mr. Engelland [defense counsel] desired, no question in the world. But she didn’t come in here.

We think this comment was unjustified and highly prejudicial to the defense. It is now well settled that the failure of a defendant to call as witnesses those persons who are aware of facts material to the question of his guilt or innocence creates no presumption of law that, if the witnesses were called, adverse testimony would result, unless “it is manifest that it is within the power of the accused to produce such witnesses and that such witnesses are not accessible to the prosecution.” People v. Munday, 280 Ill 32, 42, 117 NE 286. Although in the Munday case the witnesses referred to by the State were codefendants who were to be tried separately, and therefore obviously accessible to the State, a later case applied the same rule to disinterested witnesses. In People v. Rubin, 366 Ill 195, 198, 7 NE2d 890, defendant was charged with receiving stolen property. In his closing argument the prosecutor commented on defendant’s failure to call his employees. After observing that the record did not show that the employees were less accessible to the State than to defendant, the court quoted with approval the following passage from the Mun-day case:

No duty devolved upon plaintiff in error to call anyone as a witness. It was his privilege to produce witnesses and to make a defense or not, as he chose. The duty devolved upon the People to prove his guilt beyond all reasonable doubt before a jury were warranted in convicting him. The duty did devolve upon plaintiff in error not to put it without the power of the People to produce any material witness, and if he did so, the People had the right to show that fact as a circumstance against him. No such situation is presented here.

In the instant case there is also no showing that Mrs. Griggs was not accessible to the State as a witness. When the State’s Attorney became aware of the existence of Mrs. Griggs as a possible witness (or, to use his phraseology, “the most honorable of the defense witnesses”), he himself could have employed the subpoena power to bring her to the stand. Therefore, not only was it unfair for the State to infer that, if called, Mrs. Griggs’ testimony would be injurious to the defense, but there was also far less than the candor required of an attorney in the implicit implication that the State was without power to bring in this witness.

While it is true that no objection was raised at the trial to the impropriety of this closing argument, we are of the opinion that the result was of sufficient gravity to affect the substantial right of defendant to a fair jury consideration of his alibi defense. In this circumstance we are permitted on review to find reversible error regardless of the absence of timely objection, and we so find. Ill Rev Stats (1963), ch 38, § 121-9; People v. Davis, 74 Ill App2d 450; People v. Moore, 9 Ill2d 224, 231, 232, 137 NE2d 246; People v. Morgan, 20 Ill2d 437, 441,170 NE2d 529.

(2) Our attention is next drawn to the following cross-examination of defense witness Griggs:

Q. Mr. Griggs have you ever been arrested by the police ?
A. Yes sir.
Q. Approximately how many occasions ?
A. Oh, I don’t know, six or seven times, maybe more, I don’t know.
Q. Could it be ten times ?
A. It’s possible.
Q. Were you ever convicted ?
A. No.
Mr. Engelland: At this time I’m going to object to any reference to this and I’ll make a motion outside the presence of the jury. (Objection sustained, motion for mistrial denied.)

For purposes of impeachment by criminal record, a witness can be required to testify only as to convictions of infamous crimes and it is error to inquire as to prior arrests or indictments. People v. Hoffman, 399 Ill 57, 63, 77 NE2d 195. The reason underlying this rule is that the credibility of a witness cannot be presumed tainted by proof of anything less than an infamous crime conviction. People v. Halkens, 386 Ill 167, 179, 53 NE2d 923. Although the court sustained defense counsel’s objection to the questions and answers regarding Griggs’ contact with the police, and admonished the jury to disregard them, the prejudice to defendant was already accomplished. Once informed, the jury could not erase from their minds the knowledge that Griggs had a history of a large number of police arrests. Nor did the State’s Attorney permit them to do so. That portion of the State’s closing argument which exalted the absent Mrs. Griggs as a witness who, if called, would be the “most honorable of the defense witnesses,” had the effect of reminding the jury of her husband’s arrest record. No general instruction to the jury that they should disregard stricken testimony could cure this prejudicial result.

(3) We find further prejudicial error in that part of the cross-examination of defense witness Salley which questioned defendant’s inferentially illicit relationship with a woman known as Bonnie, apparently a person of a different race from that of defendant. Because there was no basis found in the direct examination of the witness for such a line of inquiry, its only effect was to attack improperly the character of the defendant. The State’s explanation that it was attempting to bring to the jury’s attention the absence of a “possible” alibi witness far from justifies this marked departure from proper cross-examination. Furthermore, although an initial objection to interrogation on this subject matter was sustained, counsel for the State persisted with the most damaging question of whether or not defendant was living with Bonnie.

(4) While we are not prepared to say that, clear of error, the record would not support a finding of defendant’s guilt beyond a reasonable doubt, we do conclude that defendant is entitled to a new trial in which his defense may be considered upon the merits of his witnesses’ testimony free from improper and unfair disparagement and aspersions by the State. People v. Gougas, 410 Ill 235, 241, 102 NE2d 152; People v. Lewis, 313 Ill 312, 319, 320, 145 NE 149; People v. Newman, 261 Ill 11,15,103 NE 589.

Decision

The judgment of the Circuit Court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

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


author: MORAN, J.

text:
    Harry V. Parker, Plaintiff-Appellant, v. The Board of Trustees of Southern Illinois University, a Public Corporation, Defendant-Appellee.
    Gen. No. 65-114.
    Fifth District.
    September 14, 1966.

      Emerson Baetz, of Alton, for appellant.
    Donald R. James, of Edwardsville, and Green and Hoagland of Alton (James K. Almeter, of counsel), for appellee.
   MORAN, J.

This is an appeal from a judgment dismissing the plaintiff’s complaint in an action brought by Harry Parker to set aside a previous judgment in an eminent domain proceeding, to declare a stipulation made in that proceeding not binding on the plaintiff, and to enjoin the defendant from attempting to enforce the judgment and from entering upon land owned by the plaintiff.

The complaint alleged that Parker was the owner of one parcel of land and the joint owner of another; that an eminent domain suit was filed by the defendant to take a certain amount of land, including both parcels owned by Parker; that a purported stipulation was entered into between the attorney for Parker and the attorneys for the defendant, providing that certain amounts should be paid for certain parcels of land; that, on the same day the paper was executed, the court considered the stipulation and ordered that, upon the payment of the amounts specified in the stipulation, the defendant be vested with title to the property. The complaint then alleged that the stipulation was not lawful because it did not purport to be executed by Parker; it was not authorized by Parker; it did not purport to stipulate as to a fact, but rather to accomplish a sale of real estate; there was no written authority for the execution of the stipulation, as required by the statute of frauds; and the court had no jurisdiction to act as a conduit for the sale of real estate.

The complaint also alleged that the judgment of the court was not lawful because it did not contain the provisions required for a judgment following the law of eminent domain, and because it was based on a void stipulation. Parker did not appeal from the prior judgment. The defendant moved to dismiss the complaint, arguing that it constituted a collateral attack upon a valid judgment. The court granted the motion and, since Parker declined to plead further, a final judgment was entered.

It is the established law in Illinois that a judgment rendered by a court having jurisdiction of the parties and the subject matter is not open to impeachment in any collateral action, except for fraud in its procurement; and, even if the judgment is voidable and so illegal or defective that it would be set aside on a proper direct application, it is not subject to collateral attack so long as it stands in force. Walton v. Albers, 380 Ill 423, 44 NE2d 145; Baker v. Brown, 372 Ill 336, 23 NE2d 710; Liberty Nat. Bank of Chicago v. Booth, 403 Ill 62, 85 NE2d 21; Jurek v. Smuczynski, 61 Ill App2d 426, 209 NE2d 850.

Examining further the requirement of jurisdiction of the subject matter, the court in Ward v. Sampson, 395 Ill 353, at 361, 70 NE2d 324, held that, “where the court entering a judgment exceeds its jurisdiction and the judgment or decree transcends the statute conferring jurisdiction on the court, the judgment or decree is void, and may be collaterally impeached or set aside on motion after the time for review by appeal has expired.” Oak Park Nat. Bank v. Peoples Gas Light & Coke Co., 46 Ill App2d 385,197 NE2d 73.

In this case, the complaint filed by Parker constituted a collateral attack upon the judgment of the court in the prior eminent domain proceeding. As such, it was improperly dismissed only if that court did not have jurisdiction of the parties or of the subject matter. There is no allegation and it does not appear that the court lacked jurisdiction over the parties. However, the plaintiff did allege and argues that it was beyond the jurisdiction of the court to act as a conduit or instrument for the sale of real estate.

This allegation erroneously assumes that an eminent domain suit may not proceed upon a stipulation as to compensation and that, when reliance is placed upon such a stipulation, a court exceeds its jurisdiction. Appellant cites no authority for this contention. In the absence of some compelling authority to the contrary, we cannot see why parties to a condemnation suit cannot stipulate as to the compensation to be paid for the land being condemned. Stipulations are customarily used in eminent domain proceedings. Forest Preserve Dist. of Cook County v. Eckhoff, 372 Ill 391, 24 NE2d 52; East Side Levee & Sanitary Dist. v. Jerome, 306 Ill 577, 138 NE 192, including stipulations as to compensation. Department of Public Works & Buildings v. First Nat. Bank of Highland Park, 26 Ill2d 159, 186 NE2d 273. The plaintiff also alleges that the stipulation was not lawful because there was no proof that his attorney had authority to execute the stipulation. While it is true that an attorney is not authorized to consent to the entry of a judgment against his client without the client’s consent, a court is not deprived of jurisdiction when he so acts. The remedy of the client is against his attorney. Village of Dolton v. S. Ellen Dolton Estate, 331 Ill 88, 162 NE 214; American Car & Foundry Co. v. Industrial Commission, 335 Ill 322,167 NE 80; County of Cook v. Schroeder, 55 Ill App2d 449, 205 NE2d 257.

Since the court in the eminent domain proceeding had acquired jurisdiction over the person and the subject matter, its judgment may not be attacked collaterally. The remaining allegations of error in the plaintiff’s brief need not be considered since they relate to matters other than the jurisdiction of the court. The complaint was properly dismissed.

For the foregoing reasons, the judgment of the Circuit Court of Madison County, Illinois, is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


text:
    Merle Blankenship, Plaintiff-Appellee, v. Arthur Tretter, Defendant-Appellant.
    Gen. No. 65-80. (Abstract of Decision.)
    Fifth District.
    September 15, 1966.
    Richard E. White, of Murphysboro, for appellant; Feirieh & Feirieh, of Carbondale, for appellee.
   Opinion by JUSTICE MORAN. Not to be published in full.


author: MR. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Marshall, Defendant-Appellant.
    Gen. No. 50,381.
    First District, Third Division.
    September 15, 1966.

      Luther A. Harthun, of Chicago (Vorris J. Blankenship and Hopkins, Sutter, Owen, Mulroy, Wentz & Davis, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Melvin Marshall was indicted for armed robbery. After a nonjury trial he was found guilty and sentenced to a term of two to seven years in the penitentiary. On appeal he contends (1) the indictment was defective, (2) the State failed to prove beyond a reasonable doubt that the defendant was the person who committed the crime, (3) the court erred in allowing a witness to testify who remained in the courtroom in violation of the court’s order excluding witnesses, (4) the court erred in failing to require police notes of a statement of the complaining witness to be made available to defense counsel for impeachment purposes and (5) the failure of the State to give defense counsel prior notice of the defendant’s “confession by silence” rendered testimony with respect to that “confession” inadmissible.

On the afternoon of January 26, 1964, a man drove into a gas station at 502 South California Avenue in Chicago and was waited on by Arnold Robinson, the assistant manager of the station. The man asked if he sold cigarettes and Robinson went into the station to get them. When he returned the man was standing outside the automobile. He asked to have the radiator and transmission checked, and stood beside Robinson as it was done. The man then asked how much he owed and was told it was a dollar. He showed Robinson a sawed-off shotgun and demanded his money. Robinson gave him about $45. After the man drove away, Robinson telephoned the police.

The defendant’s first point is that the indictment was defective since it stated as the time and place of the offense only the date (January 26, 1964) and the county (Cook). The same point was considered in People v. Blanchett, 33 Ill2d 527, 212 NE2d 97 (1965) and a similar indictment was held sufficient.

The defendant’s second point is that the State failed to prove beyond a reasonable doubt that he was the person who committed the offense. Three days after the robbery Robinson went to a police station and viewed two to three hundred photographs in an attempt to identify the robber. He thought that one photograph was of the robber, but the picture was blurry and he was not certain. About one month later he was taken to a police lineup; he was told the man whose picture he had picked out would be in the lineup but he was not then shown the picture. Five men were in the lineup and after viewing them for four minutes he tapped the defendant, who was the middle man, on the shoulder and accused him of being the man who robbed him. The defendant said nothing. The defendant testified that there were only four men in the showup, that he was the only one wearing a hat and that he was told to remove his hat and did so. He also testified that Robinson viewed the lineup for five, six or seven minutes, that the other men in the lineup were ordered to leave and Robinson then tapped him on the shoulder to indicate that he was the robber. According to the defendant he asked his accuser to look him squarely in the eyes and say that he was the man who “stuck him up” and that Robinson turned away and left the room. He denied that Robinson accused him and that he remained silent.

In weighing evidence of identification the attendant circumstances together with the probability or improbability of an adequate opportunity for a definite identification must be considered, and a positive identification by one witness who had ample opportunity for observation may be sufficient to support a conviction even though the testimony is contradicted by the accused. People v. Donald, 29 Ill2d 283, 194 NE2d 227 (1963). Robinson testified that the weather on January 26, 1964, was nice; he observed the defendant when cigarettes were ordered and when he returned with them; he was about three feet from the defendant when he was asked to check the radiator, and he looked at the defendant for a few minutes after giving him the money. These circumstances afforded him ample opportunity to identify the defendant.

The fact that the police informed him that the man whose picture he had picked out would be in the lineup does not seriously impeach the credibility of his identification. The police did not try to influence him by again showing him the photograph; he was not told that the man in the photograph he had seen was the robber or that the robber would be in the lineup. Of course, the very fact that he was asked to come to a showup might cause him to think, as it would anyone else, that the police had arrested a man who they believed might be the robber. But such an indirect suggestion is unavoidable. Robinson was not stampeded into an identification; the evidence shows that he was careful before making the identification and he explained the time he took by saying he “wanted to be sure.” His explanation that he failed to identify the defendant’s photograph with certainty because of the blurriness of the picture was credible and again shows the caution he exercised in making his identification. The trial court did not err in holding that the evidence proved beyond a reasonable doubt that the defendant was the robber.

The defendant’s contention is that if the case is not reversed because of a reasonable doubt as to his identification, then it should be reversed and remanded because of trial errors. The first of these is that the court erred in allowing a witness to testify who had been present in the courtroom during the testimony of the defendant in violation of the court’s order excluding witnesses. The last witness for the State was a policeman who had been present at the showup. After the officer finished testifying he remained in the courtroom. The defendant, who was the only witness in his own behalf, testified next and after he left the stand the State was allowed, over objection, to recall the officer in rebuttal. He repeated his earlier testimony about five men being in the lineup. He also testified that the other men in the lineup were not permitted to leave until after the defendant was identified, and that he did not hear the defendant ask Robinson to look him in the eye.

The decision whether to allow a witness to testify in violation of an order excluding witnesses is within the discretion of the trial judge, and unless there has been a clear abuse of discretion the court’s decision will not be disturbed. People v. Nelson, 33 Ill2d 48, 210 NE2d 212 (1965). In our opinion the trial judge did not abuse his discretion in this case.

The defendant complains that he was denied a fair trial by the failure of the court to require notes of a statement taken from Robinson to be produced for use by defense counsel for impeachment purposes. More precisely the defendant’s contentions focus on the procedure to be followed when the prosecution denies it has in its possession a written statement of a State’s witness which has been shown to exist. Cross-examination of Robinson established that he gave an oral statement to the policeman who responded to his telephone call. The officer took written notes of his statement, read the notes back to him and was told the statement was correct. Robinson was not asked to sign the statement. When defense counsel asked if he might see the handwritten notes, the State’s Attorney showed him and the trial judge two typewritten documents, a report of the robbery dated January 26, 1964, and an investigator’s report dated March 9, 1964, and said that the only statement by Robinson which he had was the typed police report. Defense counsel stated that neither document was the handwritten notes made by the officer and then began to question Robinson on his description of the defendant. He did not ask that the prosecution be directed to produce the police file so that he could examine it, and he did not ask the court to procure the file and examine it to determine whether it contained the original notes.

The defendant does not challenge the veracity of the State’s Attorney’s avowal that he did not have the police notes in his possession; rather, he contends that where a substantially verbatim statement of a complaining witness has been shown to exist and has been traced into the hands of the police, the court must require the police to produce the statement or explain its absence. He suggests that if the court is not required to do so, a defendant will not be able to obtain evidence with which to impeach the complaining witness, and cites People v. Edmunds, 30 Ill2d 538, 198 NE2d 313 (1964), and People v. Wright, 30 Ill2d 519, 198 NE2d 316 (1964) as supporting his position.

Neither case is directly on point. In Edmunds the defendant on cross-examination inquired of the complaining witness whether she made a statement to the police. An objection to the question was sustained. The defendant demanded the statement be produced. The State’s Attorney advised the court that he had no such statement and the demand was denied. Subsequent cross-examination of a police officer adduced the fact that the police had taken a statement from the complaining witness. On appeal the State did not deny the existence of the statement, but urged that the court’s denial of the demand was proper because the defendant failed to show the statement was signed or adopted by the complaining witness. The Supreme Court held that it was improper for the State to object to the questioning which would establish the foundation for the production of the statement and then to justify the denial of production by the absence of foundation. The case was reversed and remanded so that the defendant could have the opportunity of ascertaining whether a statement was available for impeachment purposes. In the Wright case the defendant before trial subpoenaed a police department file and the file was produced in court. The complaining witness testified that she had given a signed statement to the police. The State’s Attorney denied that he had such a statement in his possession but objected to allowing defense counsel to look through the police file. The court denied the defendant’s motion to inspect the police file because no foundation for impeachment had been laid and because it was not shown that the documents in the file were material. On appeal the court stated that as the case then stood neither the prosecution, the defense, the trial court or the Supreme Court knew whether the police file contained a statement by the complaining witness, and that the interests of justice required a resolution of this question. However, the judgment of conviction was not reversed because of the failure of the trial court to inspect the file; in fact the court stated that absent a defense request that the trial court examine the file the court was under no duty to undertake such examination. The case was remanded with directions to the trial court to examine the file; if it contained a statement qualified for impeachment purposes, the trial court was to vacate the judgment and grant a new trial; but if examination of the file disclosed no such statement, the trial court was to make a finding of fact to that effect and enter a new final judgment of conviction. Contrary to what is urged in the case at bar, the Supreme Court did not direct the trial court, in the event the signed statement wás not in the file, to compel the police to produce the statement or explain its absence.

There was no evidence in the present case impugning the good faith of the prosecution’s denial of possession of the original notes, and no demand for discovery of the notes from the police file was made; in these circumstances it was not incumbent upon the trial judge to determine what became of the notes. Moreover, Eobinson had made no statement which was typewritten and he had signed none. The typewritten statement which the prosecutor produced bore the date of the robbery, which was the same date the handwritten notes were made. It is a reasonable inference that the typed statement was a reproduction of the original notes.

The defendant’s last point is that the failure of the State to give defense counsel prior notice of the defendant’s “confession by silence” rendered testimony with respect to that “confession” inadmissible. This contention is based upon § 114-10 of the Code of Criminal Procedure:

“ (a) On motion of a defendant in any criminal case made prior to trial the court shall order the State to furnish the defendant with a copy of any written confession made to any law enforcement officer of this State or any other State and a list of the witnesses to its making and acknowledgment. If the defendant has made an oral confession a list of the witnesses to its making shall be furnished.
“(c) No such confession shall be received in evidence which has not been furnished in compliance with subsection (a) of this Section. . . .” (Ill Rev Stats, c 38, § 114-10a(a) and (c) (1963).)

Robinson testified that at the lineup he accused the defendant of being the man who robbed him, and that the defendant remained silent. The defendant urges that his “confession by silence” is an oral confession within the meaning of the statute, that is, that though the words of confession were spoken by Robinson they were attributed to the defendant by his silence, making his conduct an oral confession.

The Committee Comments to § 114-10 (SmithHurd Annotated Statutes, c 38) make clear that the section distinguishes between admissions and confessions, applying only to the latter. An admission is a statement made out of court by a party and may take either the form of uttered words or the form of conduct from which is inferred a belief of the party. A confession is in admission consisting of an acknowledgment in express words by the accused in a criminal case of the truth of the main fact charged against him or of some fact essential to the charge. People v. Stanton, 16 Ill2d 459, 158 NE2d 47 (1959); 4 Wigmore, Evidence §§ 1050 and 1052 (1940); McCormick, Evidence § 113 (1954).

When an accusation is made by a complaining witness under circumstances which would naturally call for contradiction or reply, evidence of the accusation and of the silence of the person accused is admissible; the failure of the accused to speak is circumstantial evidence which gives rise to an inference that he believes the truth of the accusation. (People v. Homer, 8 Ill2d 268, 133 NE2d 284 (1956); McCormick, Evidence § 247 (1954).) In other words, the conduct of the accused is an admission: evidence from which is inferred his belief in the truth of the accusation. Consequently, whether the defendant’s conduct is denominated a “confession by silence” or an admission, it was not a confession within the provisions of § 114-10 because it was not a direct statement by the accused of his participation in the crime. The evidence of the defendant’s silence in the face of Robinson’s accusation was properly admitted.

The judgment of the Criminal Division of the Circuit Court is affirmed.

Affirmed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Marshall, Defendant-Appellant.
    Gen. No. 50,873.
    First District, Third Division.
    September 15, 1966.
    Luther A. Harthun, of Chicago (Vorris J. Blankenship and Hopkins, Sutter, Owen, Mulroy, Wentz & Davis, of counsel), for appellant.
    Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE DEMPSEY

delivered the opinion of the court.

Melvin Marshall was convicted of robbery after a trial without a jury and was sentenced to a term of four to eight years in the penitentiary. Three points are raised by this appeal: the indictment was defective, the defendant was not proved to be the person who committed the offense and improper evidence was admitted.

It is unnecessary to consider the first and third points raised on appeal because after studying the record this court does not find the identification of the defendant convincing and we therefore have a reasonable doubt of his guilt.

On the morning of January 22, 1964, Robert Troxell, a deliveryman for a Chicago laundry, parked his truck to make a delivery. When he returned to his truck and opened the door he saw a man inside crouched behind the door. The man jumped up and told Troxell to get in; he had his hand in his coat pocket and pointed at Troxell. Troxell was made to lean over the bundles of laundry while the robber took his money and wristwatch. The robber then made Troxell remove his trousers and shoes, placed laundry bundles on top of them, and fled. Troxell recovered his clothing and telephoned the police.

Troxell gave the policeman who responded to his telephone call a description of the man who robbed him. He said the robber was a colored man, with a black mustache, about 20 years old and five feet ten or eleven inches tall. At the trial he testified that he told the police he thought the robber had a mustache. He said he was not sure about it because he “didn’t look that close.” The defendant is only five feet six inches tall and did not have a mustache at the time of the trial.

The complaining witness gave an explanation for his erroneous estimate of the robber’s height. He said he was on the ground and had to look up at the robber who was standing in the truck, the floor of which was about two feet above the ground. This explanation is reasonable as far is it goes and could account for the witness’ first impression of the height of the robber. However, the witness got into the truck next to the robber. He was then on the same level and he could compare the robber’s height with his own. The witness is five feet eleven inches tall. Immediately after the robbery he said the robber was about the same height. The man on trial for the crime was five inches shorter than the witness.

The fact that the defendant did not have a mustache at the time of the trial is not important; but the fact that the witness was not sure whether he had one at the time of the robbery is very important. This court said in People v. Kincy, 72 Ill App2d 419, 219 NE2d 662, that if a defendant had a mustache on the day of the robbery “that would have been something that could not normally have been overlooked.” In the case at bar, the witness’ uncertainty is evidence that he did not carefully observe the robber’s face. He admitted as much by his explanation for not knowing whether the robber had a mustache: “I didn’t look that close.”

The discrepancy between the defendant’s height and the complaining witness’ estimate casts doubt on the identification, and the witness’ inability to observe whether the defendant wore a mustache discredits his identification. In our opinion these factors completely outweigh the subsequent events leading to the indictment of the defendant: six days after the robbery the witness picked out the defendant’s picture as that of the individual who committed the offense, and five weeks later he selected him out of a lineup of five men. Where the conviction of a defendant is based upon an identification which is doubtful, vague and uncertain, it cannot be deemed to be sustained by evidence beyond a reasonable doubt. People v. Cullotta, 32 Ill2d 502, 207 NE2d 444 (1965); People v. Fiorita, 339 Ill 78, 170 NE 690 (1930); People v. Kincy, (supra).

The judgment of conviction is reversed.

Reversed.

SULLIVAN, P. J. and SCHWARTZ, J., concur.