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    People of the State of Illinois, Plaintiff-Appellee, v. Richard Gregory, a/k/a Dick Gregory, Defendant-Appellant.
    Gen. Nos. 51,650-51,653.
    First District, First Division.
    May 13, 1968.

      Jean F. Williams, of Chicago, for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and David B. Selig, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial in the First Municipal District of the Circuit Court of Cook County, held in the City of Chicago, four misdemeanor complaints against defendant Richard Gregory (also known as Dick Gregory) were consolidated for trial. Defendant was found guilty of two offenses of battery in violation of section 12-3 (Ill Rev Stats, c 38) and two offenses of resisting a police officer in violation of section 31-1 of chapter 38. The trial court sentenced defendant to imprisonment in the county jail for a period of five months and a fine of $200 on each of the two battery charges, and to imprisonment in the county jail for a period of five months and a fine of $500 on each of the resisting a police officer charges. The imprisonment terms were ordered to be served concurrently. Defendant’s separate appeals were consolidated here on defendant’s motion.

The four complaints arose out of a civil rights demonstration. The complainants were Edward J. McGee and Raymond Cisco, Chicago police officers. The two battery complaints alleged that defendant, on June 11, 1965, at “Columbus Drive and Balbo,” committed the offense of “Battery in that he knowingly and intentionally without legal justification committed a battery” on Edward McGee, and on Raymond Cisco, in violation of chapter 38, section 12-3. The other two complaints alleged that defendant on June 11, at “Columbus Drive and Balbo,” committed the offense of “Resisting a Police officer in that he knowingly resisted a police officer in performance of his duties.”

On April 18, 1966, the four complaints came on for trial. At the opening of court, defendant’s counsel informed the court that defendant Gregory was in New York and asked the court to proceed without him. A number of pretrial motions were heard, and the court, over defendant’s objection, allowed the motion of the State to consolidate the four complaints for the purpose of trial, and the trial was adjourned to April 19, 1966. On April 19, 1966, a jury of twelve men and women was sworn to try the issues. At the trial, five police officers and a newspaper reporter testified for the State. Defendant was represented by three attorneys, all of whom actively participated in the proceedings but did not cross-examine any of the State’s witnesses. At the end of the State’s case, defendant’s counsel, in open court and before the jury, said, “There will be no defense offered on behalf of the defendant, Richard Gregory, we stand mute.” On April 22, the jury returned a separate verdict of guilty on each complaint, either “Battery” or “Resisting a Police officer,” “in the manner and form as charged in the complaint.”

Defendant’s contentions on appeal are:

1. The complaint did not allege that the offense occurred within the jurisdiction of the Municipal Court of Chicago, First Municipal District of the Circuit Court of Cook County, Illinois, and said court lacked jurisdiction.
2. When the court grants a defendant leave to withdraw his plea of not guilty, and does not re-arraign the defendant nor enters a plea for him, there is no issue, there is nothing to be tried by a jury arid the court has no jurisdiction.
3. Systematic exclusion of Negroes from the jury denied the defendant a fair trial by an impartial jury, was a denial of due process and equal protection of the law.
4. Refusal to allow defendant to use twenty peremptory challenges was prejudicial error.
5. After defendant had exhausted all peremptory-challenges allowed by the court, denial of defendant’s motion to excuse a juror for cause, who had made statements indicating a decision regarding a material fact was prejudicial error and requires a reversal.
6. Testimony relative to the absence of defendant from a portion of the trial was improper, incompetent, prejudicial and deprived defendant of a fair trial.

At the trial, John Kelly, Deputy Chief of the Patrol Division of the Chicago Police, testified that on June 11, 1965, he had occasion to be near Soldiers’ Field in Chicago at about 12 o’clock noon. He conferred with A1 Raby, Richard Gregory, Rev. Reddick and a number of others active in civil rights movements. Raby was the spokesman, and a planned route of a demonstration march was agreed upon. The marchers were to be permitted two lanes of travel which were normally used for vehicular traffic. At approximately 2:00 p. m., in the area of Balbo and Columbus Drive, he saw the marchers and demonstrators cross Columbus Drive, and he “had men to channel the two lanes to one lane, and the balance to be on the sidewalk.” A meeting was had with the march leaders and police officers. After the meeting was held, “one of the Civil Rights Group went hollering, ‘Sit down,’ ” and approximately 300 sat down in the street. They sat in the intersection of Balbo and Columbus, and “all traffic was stopped.” He instructed police officers with portable announcers to tell the group to cease blocking the intersection or they would be placed under arrest, and the response was “boos, catcalls, cheering and singing.” He went through the crowd and advised the people if they would stand they would not be arrested; if they continued to sit they would be placed under arrest. Approximately 200 remained seated, and they were taken into custody and confined in the 1st and 21st District police stations. He saw defendant Richard Gregory seated in the intersection.

Raymond Cisco, a Chicago police officer, testified-he was assigned to direct traffic around demonstrators who would be marching and to maintain peace. At approximately 2:00 p. m., and at the orders of their leaders, the marchers sat down and refused to get up. After having arrested five people, he approached the defendant and told him to get up or he would be placed under arrest. Defendant cursed him and said, “You’re Richard’s storm troopers, no better than the Alabama troopers.” The officer reached over to grab defendant’s right arm, and defendant fell back and started kicking. The officer was kicked in the groin and, after doubling up, he was kicked on the arm and chest. Officer McGee was behind him, and he heard him say, “Let go my finger.” He couldn’t remember much after that because he was nauseated. He, Officer McGee, other arrestees and the defendant entered a police van. Defendant was shouting loudly. Defendant told Officer McGee that they were picking on him “because he was a ‘nigger.’ ” When Officer McGee asked defendant why he bit him, defendant replied, “You were stealing my money.” This was denied by Officer McGee, and defendant said, “This is civil disobedience, and we are disobedient because this brings attention to us.” Later, Cisco and McGee were taken to a hospital.

Edward McGee, another Chicago police officer who arrested ten of the demonstrators and assisted in the arrest of the defendant, testified that Officer Cisco approached the defendant and told him to get up or he would be arrested. The defendant began to curse and shout and, as Cisco bent over defendant, the defendant kicked him in the groin. McGee was kicked in the chest. He grabbed the defendant’s left arm and tried to pick him up. The defendant grabbed the hair on his chest, ripped his shirt, and bit him on the thumb. Another officer got McGee’s hand out of the defendant’s mouth. Cisco was holding his stomach and trying to vomit.

Raymond Minus, a Chicago police officer, testified to the events leading up to the arrest of defendant. He observed the defendant talking with Officer Cisco and subsequently saw the defendant lean back on his hands and kick Officer Cisco in the groin. After the officer doubled over, he saw defendant kick him again on the left elbow. He heard Officer McGee say, “Ouch, let my arm go,” and he jerked McGee’s arm from defendant’s mouth.

John Patrick Lavin, a reporter for the Chicago Daily News, testified he was present when the police requested the marchers to narrow to three abreast because of the oncoming traffic and the ensuing danger. The marchers sat down, and he heard the police tell them that they were creating a nuisance, and if they didn’t get up they would be arrested. He was about 20 feet from defendant when he was arrested. .He saw two police officers approach defendant and say something to him. As they started to pick defendant up, he stiffened and started kicking and grabbing while yelling. He later had a conversation with the defendant, who stated that he had kicked the policemen with all his might. The defendant said the policemen were trying to get his money out of his pocket — “I asked him how could they possibly take his money in front of all the newspaper reporters and the police officials, and he responded that was why he was kicking.”

Considered first is defendant’s contention that the four complaints were fatally defective because “none of the four complaints allege in what city, county or state the offenses occurred. For this reason, the Court lacked jurisdiction,” and “deprived defendant-appellant of his constitutional rights to due process and equal protection of the laws as well as the right to be tried in the ‘county or district in which the offense is alleged to have been committed.’ ”

A discussion of authorities is not required because the determinative pronouncements made by our Supreme Court in People v. Williams, 37 Ill2d 521, 229 NE2d 495 (1967), are controlling here. In that case a similar form of complaint was used, and the offense was alleged to have occurred at “900 S. Winchester,” and no city or county was named in the body of the complaint. On page 524, it is said:

“If we look at the entire complaint in this case, the conclusion seems unmistakable that the complainant is describing an event that took place in Cook County. . . . Only by consciously refusing to look at the numerous references to that county, and concentrating solely upon the fact that the designation of that county does not follow the street address, is it possible to engender doubt. . . . Where, as in this case, there is no conflict between the caption and the body of the charge, no suggestion that the venue was improper or improperly proved, and no showing of prejudice to the defendant, we see no reason to refuse to read the caption as part of the complaint. So read, the complaint sufficiently designates the county in which the offense was alleged to have been committed.”

We find that the four complaints sufficiently designated the city and county in which the offenses were alleged to have been committed.

We next consider defendant’s contention that he was not properly arraigned, nor was a plea entered on his behalf by the court, and this requires a reversal. On April 19, 1966, before the selection of the jury commenced, defendant appeared in open court and pleaded “not guilty.” Thereafter, on April 21, after the selection of a jury to try the issues, the court granted leave to the defendant to withdraw his plea of not guilty to permit him to make a motion to quash the complaints. At that time counsel for defendant said, “On behalf of the defendant I would like to withdraw his pleading and allow him to stand mute. We will withdraw his plea of not guilty for the purpose of filing a motion to quash the complaint” on the grounds of “racial discrimination.” Defendant’s counsel also said, “Why, the defendant will stand mute.” During the hearing of defendant’s motions, the State remarked that defendant was not present in court. Miss Jean F. Williams, one of the attorneys for defendant, stated, “There was already a discussion as of Monday, the 18th, according to the State, it is not necessary for the defendant to be present.” The State: “You are waiving his presence? ” Miss Williams: “We are ready to proceed. ... At this time counsel for the defendant is ready to proceed.”

The court denied defendant’s motions to quash after a lengthy hearing and then directed counsel for both sides to proceed with “opening statements.” The State made an opening statement, at the end of which counsel for defendant said, “No opening statement.”

Defendant argues that the “Procedure on Arraignment (c 38, § 113-1) sets forth mandatory statutory requirements which were not followed in his case. Defendant’s authorities dealing with rearraignment include People v. Moore, 21 Ill App2d 9, 157 NE2d 94 (1959). In that case the State’s Attorney was granted leave “to amend the information by interlineation” over the general objection of the defendant. The court said (p 16):

“The record discloses not only that the information after it was amended was not sworn to but further discloses that no plea was ever entered thereto. A plea is not a mere formality. Whether the offense charged is a misdemeanor or a felony, a plea is essential to constitute an issue.”

Defendant also cites People v. Economakas, 278 Ill App 265 (1934), in which the judgment of the trial court was reversed because the record failed to show that the defendant “filed or orally made in open court any plea to the amended information.”

The State argues that both of the foregoing authorities show that the original informations were amended and charged different offenses than those charged in the original informations. The State asserts the instant complaints remained the same, and defendant knew the contents thereof. His plea was withdrawn at his request and not because of any activity of the People, and “Moreover, he did apprise the court that he would stand mute.”

The State cites People v. Afton, 258 Ill 292, 101 NE 557 (1913), where the defendant entered a plea of not guilty after arraignment. Subsequently, with leave of court, he withdrew the plea in order to enter a motion to quash the indictment. The motion was overruled, but the record failed to show the renewal of the plea. There the court said (p 294):

“The record in this case shows plaintiff in error asked and obtained leave of the court to withdraw his plea of not guilty for the purpose of entering a motion to quash the indictment. When the motion was overruled the trial proceeded without any objection on the part of the plaintiff in error, and we think it apparent that plaintiff in error, the State’s attorney and the court considered and treated the overruling of the motion to quash as re-instatement of the plea.”

In that case the court cited with approval a New York authority which noted “it would be sacrificing substance to form not to give effect to the transaction according to the plain understanding of the court and the parties.” This statement applies here. Defendant was not prejudiced, and it was a just inference that all parties regarded the plea as having been withdrawn for the purpose of the motion only and proceeded to trial on the understanding that it was reinstated when the motion was denied.

Considered next is defendant’s contention that there was a “systematic exclusion of Negroes from the jury,” which denied the defendant a fair trial by an impartial jury.

On April 19, 1966, and before the voir dire examination of the jury commenced, defendant’s counsel, Miss Williams, stated to the court: “I make a motion at this time to dismiss this voir dire which was brought into this courtroom. I bring to the Court’s attention there are 32 veniremen were brought into this courtroom, among them only one a negro, one person appears to be a negro and I realize, of course, that this challenge must be made prior to the beginning. Now, if the Court please, we have no way of knowing prior to the time that the veniremen were brought into this courtroom that one, only one appeared to be a negro, in as much as the defendant is a negro, I submit this is in itself a violation of due process within the meaning of the Illinois Constitution, we would have challenged the choosing had we known, prior to the time they were present in this courtroom. . . . This does not represent a cross of the voters in Cook County, 1 out of 32. This would indicate something is wrong.” The court stated, “Your comments are noted. . . . We will proceed.” At that time defendant, in open court, entered his plea of “not guilty,” and the voir dire examination then proceeded.

Later, and before hearing any testimony, defendant repeated the motion to discharge the jury, and the court denied it. Subsequently, and with leave of court, defendant filed a written motion nunc pro tunc, as follows:

“Motion to Discharge Jury Panel
“Comes now Richard Gregory, a/k/a, Dick Gregory, by Jean F. Williams, his attorney and moves, nunc pro tunc, this Court to discharge the jury panel assigned to this court on April 19,1966, and as grounds for this motion states as follows:
“1. That on or about April 18, 1966, a jury panel was assigned to this Court upon orders of this court;
“2. That said panel consisted of approximately 30 persons, 5 of whom were Negroes;
“3. That thereafter, on or about April 19, 1966, when the trial of this defendant, himself a Negro, was again called up, a completely different jury panel of 32 persons was brought into this court and only one was a Negro;
“4. That the change or switch in jury panels was, among other things :
“a. improper and arbitrary
“b. clearly shows the second panel has been improperly selected or drawn
“c. violates the Constitutional rights of this defendant under the First, Fifth, and Fourteenth Amendments to the Constitution of the United States, and Article II, Sections 1, 2, 5, 9 and 10, of the Illinois State Constitution.”

The report of proceedings does not show that a jury panel was present in the courtroom on April 18, 1966, at any time. The report of proceedings does show that on April 21, 1966, during the hearing of defendant’s motions to withdraw his plea of not guilty, the court made the following statement for the record:

“THE COURT: The Court would like to make certain finding of facts.
“This matter was called for trial before me on April 19 [sic], 1966 at that time there was a conference, and the bailiff was instructed by me to bring me jurors, he went to the assembly room on the third floor of this building and asked to have a jury sent up in this court. We must start in the afternoon because we handicapped because of working in this courtroom every day from 9:30 to around 1:30 p. m., if we want to try a jury case we have to use this courtroom after 1:30 or 2:00 p. m.
“Now this case was called and we started on April 18, 1966 talking over motions a number of motions were made by various parties and I dictated a paragraph and some eleven orders were entered pursuant and the total time we in conference in the chambers.
“A jury was sitting, but had not been sworn to answer questions or anything like that. We came to the conclusion around 4:00 o’clock thereabouts we would not be able to start picking a jury that day, we continued, the jury was sent back to the jury room assembly room for work.
“The following day, April 19, 1966, after certain motions were made, the clerk was instructed to send for a jury, a jury was sent up.
“At that time a number of motions were made relative to a magistrate in the Circuit Court, jurisdictions and the articles of the constitution which was effective January 1, 1964, questions was raised as to my judicial power to hear such. We then went into the courtroom had the jurors stand and they were sworn to answer questions on the voir dire and 12 persons went into the box, the balance moved nearest to the front benches so they could hear I then gave the charges — four charges, two as to battery, two as to resisting arrest, the date of the occurrence, the place of the alleged occurrence and then proceeded with the fundamental principles and the broad fundamentals involving a jury trial, the right of the defendant and the presumption that prevailed with him and we then started to select a jury.
“As I recall around 2:00 o’clock by a quarter to 6:00 o’clock we had a discussion as to challenges, a motion was made by the defense counsel in view of the four charges, they felt the defendant was entitled to 20 challenges, 5 for each charge, rather than 5 for each defendant.
“The Court ruled they were entitled to 5 challenges and the first panel was selected they were sworn and then we sent 12 jurors to lunch at the County Jail in the custody of the bailiff and they were instructed not to discuss the matter, the remaining jurors seated back in the courtroom were sent out to eat and advised there were no facilities to feed them here. They returned at approximately 7:15, by 9:00 o’clock we had procured a jury. Before we started testimony, Miss Williams and Mr. Adam asked that the voir dire be dismissed and that motion was denied.
“Other motions as to the jurisdiction to try the case were also denied.
“We continued and then sent the jury home and advised them to return at 12:30 the next day to be taken to lunch and to return for the trial at 1:30 p. m. in the afternoon. The Court appeared, Mr. Jack Micheletto appeared and at various times Mr. Adam was here. The defendant Mr. Richard Gregory was not here and Miss Jean Williams was not here.
“At approximately 10 minutes to 4:00 o’clock the defendant appeared with Miss Williams, presented to the Court — copy petition filed in the Northern District of Illinois, Eastern Division U. S. District Court, and a receipt showing the charges filed made therefore by the Clerk’s Office.
“At that time I went out and excused the jury, and asked them to return at 12:30 today where they would be taken to lunch in the County Jail and were to be fed and returned for trial in the afternoon.
“The Court then continued the cause generally until 11:30 this morning. The Court makes a further finding of law, the Court feels that even though the petition has been filed by the defendant, this case is not removable and the Court has jurisdiction to proceed and even where there is no statute — illiteracy test — purpose Section Title 28 US 1446, is not met here, therefore the Court states I have jurisdiction to start this matter at 2:30.”

The following discussion between court and counsel then ensued:

“MISS WILLIAMS: . . . When Your Honor, stated that on April 18, 1966 the jury panel was brought up on that date, it was released then.
“Another finding of fact on April 19 a second group of jurors were brought up.
“THE COURT: No, not in those words.
“MISS WILLIAMS: Your Honor’s next finding of fact, the Court ruled regarding the challenges allowed.
“In between the time of order for the second panel, a motion was made regarding the challenges, I wish to refresh on this point I came into the chambers and advised Your Honor, there was a veniremen of 32 persons seated among whom was one negro.
“THE COURT: Counsel made a statement. The court recalls counsel advisement of 32 persons, one person looking like a negro.
“MISS WILLIAMS: I would like to go on the record, Your Honor, stated yesterday afternoon I was not present, nor was the defendant present, I would like to state, I shall not be present at 2:30 I anticipate being in Federal Court.
“I know of no requirement demanding my presence where there are two co-counsels in this court on the same case and it would by physically impossible for me to be present here and in Federal Court.
“MR. MICHELETTO: I object to any withdrawal of plea.
“THE COURT: Leave is granted for the defendant to withdraw his plea of not guilty.
“THE COURT: We will put this over until tomorrow.”

Defendant’s authorities on this point include Eubanks v. Louisiana, 356 US 584, where the court said (p 587):

“In Patton v. Mississippi, 332 US 463, 469, this Court declared, in a unanimous opinion, that ‘When a jury selection plan, whatever it is, operates in such way as always to result in the complete and long-continued exclusion of any representative at all from a large group of Negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand.’ This is essentially the situation here. True, the judges now serving on the local court testified generally that they had not discriminated against Negroes in choosing grand juries, and had only tried to pick the best available jurors. But as Chief Justice Hughes said for the Court in Norris v. Alabama, 294 US 587, 598, ‘If, in the presence of such testimony as defendant adduced, the mere general assertions by officials of their performance of duty were to be accepted as an adequate justification for the complete exclusion of negroes from jury service, the [Equal Protection Clause] —adopted with special reference to their protection — would be but a vain and illusory requirement/ . . . [i/jocal tradition cannot justify failure to comply with the constitutional mandate requiring equal protection of the laws.”

Also, in Whitus v. Georgia, 385 US 545 (1967), the court stated (p 550):

“The burden is, of course, on the petitioners to prove the existence of purposeful discrimination. . . . However, once a prima facie case is made out the burden shifts to the prosecution.”

Defendant argues, “A fortiori, upon presentation of the motion to discharge the jury, by the defendant in the case at bar, a prima facie case was made out and the burden shifted to the prosecution to offer proof that Negroes had not been systematically excluded from the second jury panel selected for voir dire examination. The prosecution having failed to meet this burden, it must be accepted that Negroes were systematically excluded from the jury and the judgments should be reversed.”

The State argues, “The panel of prospective jurors was brought up to the courtroom on April 18, 1966. They were not sworn or even talked to. They sat around until 4 p. m. because counsel and the court were engaged in a pretrial conference. The judge dismissed them and sent them home. Two days later, on the afternoon of April 20, 1966, the court requested a panel. This was a new panel. There was no possible reason to have kept the first panel intact and unused for two days since they had not been sworn or used in any way. The pool of jurors from which the first panel was drawn is the same pool which supplies ten other criminal courts with jury panels. It would be impractical to keep that panel from being open to selection in another court during the intervening two days. The evil purposes attributed to the new panel have no basis in fact or fantasy.”

The brief of the State also includes a detailed description and discussion of the jury selection plan in Cook County, which we have not considered because it is not properly a part of this record and does not come within statutory requirements for judicial notice.

The State’s authorities on the issue of jury selection include Swain v. Alabama, 380 US 202 (1964), where it is said (p 208):

“But a defendant in a criminal case is not constitutionally entitled to demand a proportionate number of his race on the jury which tries him nor on the venire or jury roll from which petit jurors are drawn. . . . Neither the jury roll nor the venire need be a perfect mirror of the community or accurately reflect the proportionate strength of every identifiable group. ‘Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation.’ ”

In Akins v. Texas, 325 US 398 (1944), the court stated (p 403):

“Fairness in selection has never been held to require proportional representation of races upon a jury.”

In Thiel v. Southern Pacific Co., 328 US 217 (1945), the court said (p 220):

“This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible.”

In Cassell v. Texas, 339 US 291 (1949), Mr. Justice Frankfurter stated in a separate concurring opinion that:

“Assuming that the grand-jury pool fairly enough reflects the racial composition of the community, there is no basis for a claim of constitutional discrimination if without design it comes to pass that a particular grand jury has no representation of a particular race.”

The Cassell case also stated:

“ ‘. . . the Constitution requires only a fair jury selected without regard to race. Obviously the number of races and nationalities appearing in the ancestry of our citizens would make it impossible to meet a requirement of proportional representation. Similarly, since there can be no exclusion of Negroes as a race and no discrimination because of color, proportional limitation is not permissible.’ 339 US 286, 287, 70 S Ct 631-632. ‘Proportional racial limitation is therefore forbidden. An accused is entitled to have charges against him considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race.’ 339 US 287, 70 S Ct at 632, and ‘that representation on the grand jury by race in proportion to population is not permissible for there must be “neither inclusion nor exclusion because of race.” ’ 339 US 298, 70 S Ct 637.”

The State argues that “cases that have been reversed for ‘the systematic exclusion of Negroes from the jury’ have been instances either where the statute itself evidently discriminated against Negroes or where there was a prima facie case made and showing that no Negro had ever served on Grand or Petit juries and such a showing was unrebutted by the State. Cf. Coleman v. Alabama, 389 US 22, 88 S Ct 2, 19 L Ed2d 22 (1967).”

The Illinois statutory provisions for “drawing, summoning and examining jurors” are set forth in Chapter 78, Jurors, Illinois Revised Statutes. Section 1 provides for “Jury lists — Preparation.” The basis for the preparation of jury lists is the “legal voters of each sex of each town or precinct in the county, giving the place of residence of each name on the list, to be known as a jury list.” Section 2 provides for “Petit jurors — Selection— Qualifications,” and states:

“. . . Jurors in all counties in Illinois must have the legal qualifications herein prescribed, and shall be chosen a proportionate number from the residents of each town or precinct, and such persons only as are:
“First — Inhabitants of the town or precinct, not exempt from serving on juries.
“Second — Of the age of 21 years or upwards.
“Third — In the possession of their natural faculties and not infirm or decrepit.
“Fourth — Free from all legal exceptions, of fair character, of approved integrity, of sound judgment, well informed, and who understand the English language.”

We find nothing in chapter 78 to show that the jury lists are limited in any way on any ethnic or racial basis.

We further find that defendant has failed to make out a prima facie case of “systematic exclusion” of Negroes from the instant jury. Defendant offered no evidence to show that the juror panels of April 18 or April 19 were not selected in accordance with the statutory provisions of Illinois or not in accordance with the current pronouncements of the United States Supreme Court on “jury selection plans.” We note, also, that in the discussion incident to the statement made by the court on this issue, counsel for defendant did not disagree with the court or make any suggestion that the court’s version of what happened was not correct. We find no error here.

Defendant next contends that, based on the number of complaints on which he was then being tried, he was entitled to twenty peremptory challenges. Chapter 38, section 116-4 (e), Illinois Revised Statutes 1965, provided as follows:

“Each defendant shall be allowed 20 peremptory challenges in capital cases, 10 in all cases in which the punishment may be imprisonment in the penitentiary, and 5 in all other cases. The State shall be allowed the same number of peremptory challenges as all of the defendants.”

From the statutory provisions, defendant argues that each complaint constituted a separate case, and defendant should have been permitted an accumulation of challenges for each complaint. The State points out that this issue has recently been resolved by the Supreme Court in People v. Harris, 38 Ill2d 552, 232 NE2d 721 (1967). There, the court said (p 557):

“In the recent case of People v. West, 80 Ill App2d 59, the appellate court held that a defendant could not cumulate his peremptory challenges under section 115-4(e) and stated: ‘We believe that the legislative intent in using the word “cases” was to describe the various types of offenses which would subject the defendant to capital punishment or imprisonment in the penitentiary or other punishment. If the legislature had intended to allow the number of challenges to correspond to the number of indictments being tried, it would have used the word “indictments” or “offenses.” ’ (80 Ill App2d 59, 64.) After the decision in the West case, section 115-4 (e) was amended and now provides, ‘If several charges against a defendant or defendants are consolidated for trial, each defendant shall be allowed peremptory challenges upon one charge only, which single charge shall be the charge against the defendant authorizing the greatest maximum penalty.’ Ill Rev Stats 1967, c 38, par 115-4.
“The legislative intent that the number of peremptory challenges authorized in section 115-4 (e) should apply to each defendant in a single case, and not to each defendant on each indictment in the case, seems clear enough from the language used prior to amendment as the appellate court held in West. The amendment, of course, removes any doubt as to the legislative intent.”

These pronouncements apply here. The four complaints against defendant were consolidated for trial, and the trial court was correct in ruling that defendant was entitled to five peremptory challenges only.

Defendant next contends that the trial court improperly denied defendant’s motion to excuse juror West-brook for cause, because she stated she did not believe in demonstrations. Defendant had previously exhausted his five peremptory challenges. The State argues that juror Westbrook did not indicate a preconceived opinion of defendant’s guilt or innocence. The examination of the juror included the following:

“Q. [Mr. Micheletto] Could you receive the evidence with an open mind?
“A. Yes.
“Q. Do you feel you could follow the law as it is given to you regardless of what you think it should be or what it is ?
“A. Yes.
“Q. Will you arrive at a verdict based upon the evidence free from prejudice and sympathy?
“A. Yes.”

Defendant’s authorities on this contention include People v. Cravens, 375 Ill 495, 31 NE2d 938 (1941), where the court said (p 497) :

“A juror, to be qualified, must come into the trial of the case with a mind uncommitted on the question of guilt or innocence of the defendant and prepared to weigh the evidence impartially. If the existence of certain facts has been established in his mind, touching the guilt or innocence of the accused, to the extent of producing a conviction, he is disqualified, for neither party to the proceeding should be required to adduce proof to remove a preconceived opinion. Such would result in the trial before a juror who had prejudged the case. Such a trial is a mockery. ... It was a cardinal rule at common law that jurors, to be qualified as impartial, should stand indifferent between the parties and be wholly free from even the suspicion of bias. This must be so if the constitutional guaranty of trial by an impartial jury is to be had.”

The State cites People v. Harris, 38 Ill2d 552, 232 NE2d 721, where the court stated (p 556):

“If a juror meets the statutory qualifications, the determination of whether a challenge for cause should be allowed rests within the sound discretion of the trial court and his ruling will not be disturbed unless he has clearly abused his discretion. (ILP, Juries, § 101.) A reading of the voir dire examination convinces us that the trial court did not abuse his discretion in finding Owen to be an impartial juror.”

The record indicates that the trial court permitted an extensive voir dire examination of the jurors. We are not convinced that the trial court abused its discretion in the denial of defendant’s motion to remove Mrs. West-brook for cause. We find no error here.

Defendant’s final contention of prejudicial error is directed toward the testimony of the last witness offered by the State, a courtroom clerk who testified that he saw the defendant in the courtroom on that day (April 22) at about 2 o’clock in the afternoon. This testimony was admitted over defendant’s objection.

Defendant argues that “any testimony or comment in the presence of a jury calling attention to defendant’s absence from his trial . . . invalidates the statutory right of the defendant to waive his right to be present during the conduct of his trial.” (Ill Rev Stats, c 38, §§ 115-3 and 115-4 (h).) Defendant further argues that the testimony of the courtroom clerk “was improper, incompetent and prejudicial because it had the effect of compelling the defendant-appellant to give evidence against himself. Such testimony is an admission by silence. Admissions by silence have been rejected as evidence by the United States Supreme Court, Miranda v. Arizona, 384 US 436.” Also cited is People v. Fuerback, 66 Ill App2d 452, 214 NE2d 330 (1966), where the court held it reversible error for the State in closing argument to refer to defendant’s waiver of an opening statement. Defendant asserts that the presence or absence of defendant at his trial was not proper evidence, and testimony relative thereto had no probative value or relevancy and was highly prejudicial so as to deprive defendant of a fair trial.

The State argues, “The defendant absented himself from the proceedings during the entire course of the trial. The defendant undoubtedly has a right to a fair trial. However, this is a two way street with the People being entitled to a fair trial also. The defendant has neither the right to impede a trial or cast any innuendo as to the reason for his being absent. It would not be fair for a jury to believe that the People were in any way responsible for the defendant’s absence. The testimony admitted merely showed that the defendant had been present before the proceedings of the day started. The jury could then conclude that the defendant’s absence was of his own choice.” In support, the State cites People v. Harris, 302 Ill 590, 135 NE 75 (1922).

We find no merit in the argument of the State on this point. Defendant had a right to waive his right to be present during the conduct of his trial, and his presence or absence at any time was not a matter for comment or evidence by the State. Defendant’s continued absence from the courtroom must have been obvious to the jury during the trial. Also, defendant’s counsel stated several times in open court and before the jury that the defendant stood mute. Although we consider the testimony of the court clerk was improperly admitted, we fail to see that it was prejudicial to defendant so as to deprive him of a fair trial.

For the reasons stated, the judgments of the Circuit Court of Cook County are affirmed.

Affirmed.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE BURMAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Williams, Defendant-Appellant.
    Gen. No. 52,366.
    First District, First Division.
    May 13, 1968.

      Paul R. Held, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

The defendant, Willie Williams, was indicted on the charges of murder and voluntary manslaughter. He was tried before the Court sitting without a jury and was found guilty of voluntary manslaughter. The defendant was sentenced to the Illinois State Penitentiary for a term of not less than ten nor more than twenty years. He prosecutes this appeal from the finding of guilty and the judgment entered thereon. The defendant originally filed a direct appeal to the Supreme Court and that Court transferred the appeal here.

The defendant contends on appeal: (1) that the evidence introduced at trial sustained his claim of self-defense, and therefore, he was not proven guilty beyond a reasonable doubt; (2) that the court erred in failing to suppress his confession; and (3) that he was denied due process of law in that he was incompetently represented by counsel at trial.

On May 26, 1963, a social party was being given at 4841 South Park Avenue. The deceased, Willie Hamilton, was met at the party at around 12:15 a. m. by his brother, Walter; accompanying Walter were the deceased’s wife, Thelma, and John Fagan. After about fifteen minutes, the three men left the party, leaving Thélma behind, and went to a nearby tavern for some drinks. They returned to the party at about 2:20 a. m. The deceased went inside to get his wife while the others remained outside. After about five minutes the deceased emerged from the dance hall along with the defendant.

Walter Hamilton testified that his brother then handed him his coat and sunglasses and said, “All we’re going to do is talk.” The deceased and the defendant then walked about two buildings away. Walter didn’t pay much attention to the two men after they left his presence. However, shortly thereafter, Walter was startled by the sound of a gun firing. He looked in the direction of the discharge and saw his brother standing about three feet from the defendant with his hands in the air. According to Walter, the defendant then fired a bullet into his brother’s body. Walter Hamilton further testified that the deceased and the defendant had not been fighting prior to the fatal shooting, and that his brother had no weapon.

Walter stated that after the shooting the defendant walked back into the dance hall. He came out shortly thereafter holding Thelma Hamilton by the hand. He then left her and walked in the direction of the decedent’s body, and having looked down at the lifeless body of Willie Hamilton, proceeded onward. A short time later the defendant was arrested. The testimony of Walter Hamilton was essentially corroborated by that of John Fagan.

Thelma Hamilton testified that during the time she had been separated from the decedent she had lived with the defendant. However, by the time of the incident in question she had been reconciled with her husband and was no longer living with the defendant. Mrs. Hamilton further testified that while she was present at the party (in her husband’s absence) the defendant carried on a conversation with her, during the course of which he accused her of “going with” another man. Her husband then returned and asked her to leave with him. The witness testified that while she had not been present at the conversation which led to the two men stepping outside she had seen the defendant fire the fatal shot into her husband; and that the latter, immediately before he was shot by the defendant, had his hands raised and was not carrying any kind of weapon.

At trial, a confession given by the defendant was introduced in evidence. This confession consisted of a transcript of the answers given by the defendant to questions propounded by an assistant state’s attorney and was signed by the defendant. It appears from the record that the confession was given approximately four hours after the defendant was arrested, and that prior to confessing, the defendant was not warned of his right to the presence of an attorney, nor was he informed of his right to remain silent.

In his confession, the defendant stated that he arrived at the party at around 12:30 a. m., and shortly thereafter the deceased entered along with his wife. Willie Hamilton then left the party. After the deceased left, the defendant began to talk with Thelma. Later that morning the deceased returned and asked his wife to leave with him. Willie Hamilton then asked the defendant to go outside for a “talk.” When they got outside the decedent told his brother that he and the defendant were “just going to talk.” The two men then walked a short distance away, and the decedent challenged the defendant to a fight. The defendant further stated in his confession that Willie Hamilton then began to approach him and that he started to back up. He said he fired one shot in the ground, and since the decedent was still approaching him, he shot Willie Hamilton in the stomach. The defendant stated that he was not afraid that the decedent was going to beat him up, and that he had shot the decedent “because of her.” (Referring to Thelma Hamilton.) He further stated that he and Thelma had planned to be married as soon as she had been divorced from the decedent, but that the plan had never worked out. During the time the defendant and Thelma were living together, she gave birth and the defendant believed the child to be his own. When he was asked, towards the end of his confession, if he had anything further to say, the defendant replied: “Yes. I guess there is no reason for another person taking another person’s life; but I had a baby. I couldn’t see our baby any time.”

When the defendant took the stand in his own defense at trial he denied having given certain answers present in his confession. He testified that the deceased had dragged him out of the party, and having given his coat and sunglasses to his brother, told the latter, “I’m going to beat this chump’s brains out.” The decedent then turned to the defendant and stated, “I know that you have a baby by my wife . . . I’m going to fix you tonight for good.” According to the defendant, Willie Hamilton then began to drag him down the street, but he jerked his arm loose. He further testified that he knew Willie Hamilton was “much too big” for him. He kept trying to placate the decedent, but to no avail. Finally, after firing a shot in the ground had failed to stop the decedent, the defendant shot the decedent while the latter was lunging at him. The defendant testified that he was afraid for his life, and that he had only meant to wound the decedent. The defendant stated that he believed that the decedent weighed about 215 pounds. However, the pathologist’s report introduced in evidence showed that the decedent weighed 180 pounds at the time of his death.

The defendant contends that the foregoing evidence did not establish his guilt beyond a reasonable doubt, especially in view of the evidence introduced by him in self-defense. We find this contention untenable. Under the applicable provision of the Criminal Code (Ill Rev Stats 1961, c 38, § 7-1) the use of force in self-defense which is likely or intended to cause death or great bodily harm is justified only when the person using said force reasonably believes its use is necessary to prevent great bodily harm or imminent death to himself. The defendant relies primarily upon his own testimony at trial. However, the trial judge was not obligated to believe this testimony. The defendant’s version of the occurrence, i. e., that the deceased threatened and attacked him prior to the firing of the fatal shot, was directly contradicted by the State’s witnesses as well as by his own confession. The trial judge could properly have found from the evidence adduced at trial that the defendant did not shoot the decedent to protect himself, while reasonably believing he was in great danger; but rather that the defendant, carrying a lethal weapon, had intended to “pay back” the decedent for taking away a woman he considered to be his own, and whom he considered to be the mother of his child. In any event, conflicts in the evidence, as well as the credibility of the witnesses and the weight to be accorded their testimony, were issues to be resolved by the trial judge. We cannot say that his determination in this regard was so unsatisfactory or improbable as to justify us in concluding that the defendant was not proven guilty beyond a reasonable doubt. People v. Jordan, 18 Ill2d 489, 165 NE2d 296.

Defendant next contends that his confession was inadmissible in evidence because he was not advised, prior to giving it, of his privilege against self-incrimination and of his right to consult with an attorney. In support of his contention he cites the decisions of the United States Supreme Court in Miranda v. Arizona, 384 US 436, and in Escobedo v. Illinois, 378 US 478. However, these decisions are not to be applied retroactively. Johnson v. New Jersey, 384 US 719. Because the trial of the instant cause was commenced prior to the rendering of either Escobedo or Miranda neither decision applies here. People v. Jackson, 35 Ill2d 162, 220 NE2d 229. Therefore, the failure of the police or state’s attorney to warn the defendant of his right to remain silent and of his right to consult with an attorney at the time the confession was given were only attendant circumstances to be considered by the court in determining whether the statement was voluntarily given, and did not render the confession inadmissible “per se.” People v. Kees, 32 Ill2d 299, 205 NE2d 729. The defendant has not introduced any other evidence of coercive circumstances other than those previously referred to. For this reason we conclude that the determination of the trial judge to admit the defendant’s confession was neither an abuse of discretion nor a decision against the manifest weight of the evidence, and therefore, we will not overturn his determination. People v. DiGerlando, 30 Ill2d 544, 198 NE2d 503.

Finally, the defendant contends that the ineffective representation given him at trial by his attorney denied him due process of law. Under the Due Process Clause of the Fourteenth Amendment to the Federal Constitution, the defendant in a criminal case is entitled to the effective assistance of counsel. Powell v. Alabama, 287 US 45. However, a conviction will not be reversed for poor representation unless it appears from the record that the representation was of such a low caliber as to amount to no representation at all, or that it was such that the trial was reduced to a farce. People v. Clark, 9 Ill2d 46, 137 NE2d 54. Furthermore, where a defendant in a criminal case employs counsel of his own choice the failure of counsel to exercise the greatest skill or his commission of some sort of tactical blunder will not merit reversal of the cause. People v. Stephens, 6 Ill2d 257, 128 NE2d 731.

The record shows that defendant was represented by counsel of his own choice. From the remarks of counsel, at trial, it would appear that he had tried many murder cases, over a long period of years. The charges against him here, we feel, after a review of the record, are without merit and require no detailed discussion by us. Suffice it to say that any errors committed by counsel, in his preparation and presentation of the instant case, were not of such a magnitude as to substantially prejudice the defendant’s case; nor would the absence of the alleged errors have brought about a different outcome at trial. People v. Laffiton, 62 Ill App2d 440, 211 NE2d 15.

The judgment of the Criminal Court is therefore affirmed.

Judgment affirmed.

ADESKO and MURPHY, JJ., concur.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Timothy Richards, Defendant-Appellant.
    Gen. No. 51,200.
    First District, Second Division.
    May 14, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn and James J. Doherty, Assistant Public Defenders, and Bruce L. Bower, Winston, Strawn, Smith & Patterson, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John M. Goldberg, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

The defendant, Timothy Richards, was indicted upon the charge of attempted robbery in that he, “with the intent to commit the offense of robbery, attempted to take the property of Harrison E. Stout by threatening the imminent use of force, . . . .” Defendant was subsequently tried before a jury which returned a verdict of guilt as charged in said indictment, sentence being imposed upon him for a term of from not less than five (5) nor more than ten (10) years in the Illinois State Penitentiary. Defendant’s post-trial motions for a new trial and in arrest of judgment were thereafter denied by the court, from which denial he brings this appeal.

Defendant requests a review of his conviction upon but a single and limited issue. It is his basic position that prejudicial error was committed below by the trial judge’s charge to the jury, over objection, of a certain supplemental instruction, which instruction was calculated to and offered for the sole purpose of obtaining a hastened verdict from the jury. Defendant submits by his theory that either the general form of instruction employed was inherently, or per se, coercive as a matter of law or, that this instruction as given and applied to the facts of the instant case had like effect. He argues that in either event the instruction operated in such a way as to deprive him of his constitutional rights to trial by jury and due process of law.

The State, on the other hand, offers persuasive argument to demonstrate that such “Allen type” supplemental instructions (as they are commonly referred to by the parties) have been countenanced and sanctioned by the overwhelming weight of both state and federal court decisions since first recognized by the United States Supreme Court in the namesake case of Allen v. United States, 164 US 492 (1896). This the State suggests notwithstanding the “Allen type” charge’s otherwise admitted design to expedite the deliberations of a deadlocked jury and hence alleviate the hung jury situation. While we find, and the parties stipulate, that this problem area has been resolved in numerous jurisdictions, the precise questions posed by its implementation in the case at bar present a case of first impression in the State of Illinois.

As the defendant argues the prejudicially compounding impact of this instruction from within the factual context of the evidence adduced at trial, a brief review of the evidence is in order.

Defendant was shown to be a gainfully employed family man with a self-admitted prior criminal record for grand larceny in 1948. Defendant resided with his family in an apartment building located at 6543 Cottage Grove Avenue in the City of Chicago, at which residence he likewise served in his full-time occupation as a janitor. In the early afternoon hours of October 15, 1964, defendant was returning home from an automobile repair shop located at 1440 West 63rd Street (almost directly west of his residence) where he occasionally performed odd jobs to earn additional income. For reasons not explained by the accused, he thereafter proceeded to travel home by bus in an indirect route south on Ashland Avenue, disembarking in the process at 83rd Street to have a beer in a local tavern. Shortly thereafter, defendant entered a furniture or fixtures store in that immediate vicinity purportedly in search of some bargain furnishings for the building where he was employed. Defendant testified in this regard to have had authority to make limited purchases in behalf of his employer, Mr. Knight, and that he, at that time, had $54 on his person with which to do so. These were facts uncontradicted by the prosecution.

It appears that the store premises were unoccupied except for a Mr. Harrison Stout, the proprietor, whom defendant testified he observed asleep in a chair as he walked past him, approaching the rear service area. Stout, who conceded that he may have been dozing, testified that he was disturbed by a knocking sound, as if someone were forcibly entering through the rear of his store, observed defendant at or near the rear door, and thereby was given cause to become suspicious of the defendant. It appeared by Stout’s own admission that one and possibly both of the double doors to the rear of his showroom were, in fact, opened or unlocked at this time because he recalled, it had been a warm day. The record, however, is rather ambiguous in this respect.

Stout further testified that he confronted defendant near the rear entrance demanding to know his purpose in the store, whereupon, without response, he stated the accused brandished a revolver in a nervous or shaking fashion, pushed it into his stomach and told him to “get back.” Stout further stated that even though he had removed his billfold in anticipation, defendant neither confiscated it nor, at any juncture, made a demand upon him for money or items of value. The witness added that he then managed to maneuver the defendant, by a turning motion, in such a way so as to cause him to trip backwards on a bar stool and momentarily lose his balance, further causing five 32-caliber bullets to spill onto the floor, apparently coming from defendant’s pocket. Evidently frightened by this event, defendant took flight through the front door and was apprehended a short time later hiding out in a nearby basement by investigating police. He offered no resistance.

Testifying in his own behalf, defendant denied having ever entertained an intent to commit any offense against the property or person of Mr. Stout. Endeavoring to account for his conduct in the store, defendant explained that his inconsistent actions were the product of being a negro finding himself in a predominantly white neighborhood and fearful that he could not reason with the obviously excited owner, then using the gun only to extricate himself from this unfavorable situation. Defendant alleged to have possessed the weapon (32-caliber, five-shot revolver) only for self-protection in conjunction with his janitorial duties, acknowledging in this regard, that while he never carried it loaded, there may have been one or two bullets in the gun’s chambers during the altercation. It would appear however, from a brief soliloquy during argument relative to the admissibility of this weapon and the five bullets into evidence, that the Assistant State’s Attorney then was of the position that the gun had been empty during the occurrence in question.

This was, in essence, the extent of the material portions of testimony and evidence propounded at the trial, which consumed en toto, the relatively brief period of approximately two hours in duration. After final arguments, and under instructions from the bench, to which no objection is presently made, the jury retired from the courtroom for deliberation. The jury having remained “out,” as the expression is employed, for approximately 21/2 hours without returning, the trial judge summoned them back. The jury foreman, upon inquiry from the bench, announced that his group was “hopelessly deadlocked.” Thereupon, over strenuous objection of counsel for defendant, and upon the motion of the prosecution, the trial judge orally delivered an “Allen type” supplemental instruction to the jury, which instruction has been the sole subject matter of this appeal, to wit:

“In a large proportion of cases absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror and not a mere acquiescence in the conclusions of others, yet you should examine the questions submitted with proper regard and deference for the opinions of each other, and you should listen to each other’s opinions with a disposition to be convinced. It is your duty to decide the case if you can conscientiously do so. If a much larger number of jurors favor conviction, a dissenting juror should consider the reasonableness of his doubt when it makes no impression upon the minds of other jurors, equally intelligent and impartial, and who have heard the same evidence. If upon the other hand, the majority favors acquittal, the minority should ask themselves whether they might not reasonably doubt the correctness of their judgment.
“If you should fail to agree on a verdict the case must be retried. Any future jury must be selected in the same manner and from the same source as you have been chosen, and there is no reason to believe that the case would ever be submitted to twelve men and women more competent to decide it, or that the case can be tried any better or more exhaustively than it has been here, or that more or clearer evidence could be produced , on behalf of either side.
“You may now retire and reconsider the evidence in light of the court’s instructions.”

Eighteen minutes later (as expressly noted in the Report of Proceedings as including the time for delivery of the charge, as well as the jury’s adjournment from and return to the courtroom), the jury returned to pronounce its verdict of unanimity as to the guilt of the accused. Defendant’s subsequent poll of the jury disclosed that such a verdict had theretofore failed because of the opinions of two dissenting members who had changed their votes in the interim following the tender of the instruction.

While the court remains cognizant of the abbreviated nature of the trial court proceedings, we do not consider such a factor as a valid cause to ipso facto presuppose that the questions presented for jury determination were themselves open to ready resolve as the State suggests. To the contrary, on the facts as they appear before this court, we are of the belief that the jury was called upon to labor with a close and complex legal question relative to the element of intent said to have been entertained by defendant. Notwithstanding the tender of appropriate instructions on that subject, we think the State erroneously presumes the two to be somehow related. Frankly, from within this argument, the court has justifiable cause for suspicion, if for nothing else, the alarming brevity of the latter session of jury deliberation (eighteen minute maximum) under the auspices of this “Allen type” instruction.

With this in mind, we think the facts of the case speak for themselves. Suffice to say, the court is of the conviction that the jury below was confronted with a close factual question of innocence or guilt of the accused, thereby enhancing, it would follow, the reasonableness of any doubt which might have dwelled in the minds of these two dissenting jurors. Completely aside from the fact that the majority may have been wrong, we fail to perceive, other than by mere probabilities, the relationship between the vote of said majority and the reasonableness of the dissenting jurors’ doubts, upon which tenuous relationship this “Allen type” instruction unfortunately found itself predicated.

The evidence from which they might have permissibly drawn defendant’s intention to commit the offense of robbery was his use of an apparently unloaded revolver and subsequent flight, upon which precise subjects no inference instructions were offered by the State. These were circumstances, moreover, equally demonstrative of defendant’s version of the case, credence for which is found in his undisputed failure to make some overt act or utterance towards seizing Stout’s billfold or demanding from him anything of value. This is not to say that such a particular demand by word or deed need be shown to sustain a conviction for assault with intent to rob, a specific intent offense. People v. Hawkins, 54 Ill App2d 212, 203 NE2d 761 (1965). Nor do we choose to ignore defendant’s unexplained reasons for arriving in the vicinity of the store in the first instance. Rather, we offer it only to bring further focus to the complexity of the singular determinations then about to be made by the jury. Accordingly, we cannot say with any certainty that this was an instance where doubt was created simply because some plausible excuse was offered by the accused.

The State, however, presents respectable authority in support of the giving of this charge. While somewhat embellished upon, the instruction at bar is recognized by this court as being in substantial conformity with the language of the original charge as it was first approved in Allen v. United States, 164 US 492 (1896), codified with modifications into the Manual on Jury Instructions in Federal Criminal Cases, § 7.07, 33 FRD 611 (1963), and followed with its numerous variants or derivatives by many cases decided at inferior federal and state court levels, the State offering decisions of every federal judicial circuit, as well as from twelve state reviewing courts. See 100 ALR2d 177.

Moreover, as accurately as we have been able to discern from our research, it would appear that the United States Supreme Court has, as recently as May of 1967, denied writ of certiorari predicated upon the terms of a “mild version” of this specie of instruction thereby foreclosing somewhat upon speculation as to that court’s present disposition on the matter. Burrup v. United States, 371 F2d 556 (CA 10th, 1967), cert denied, 386 US 1034 (5/8/67). Inasmuch, however, as the question is one unprecedented in our jurisdiction, this court does not feel warranted, nor compelled, under the facts of the instant case, to summarily align its thinking with that of the weight of authority from the federal courts and courts of sister states.

We cannot dissuade ourselves from the position that this supplemental instruction as given, with recognition to the connotations readily obtaining from its phraseology, was the singularly procuring factor occasioning the verdict returned. We would furthermore consider it a practice in naiveté by our court to accede unhesitatingly to the palpable vice of this oft criticized “dynamite charge” (a term used to categorize its blasting effect upon the jury), under the circumstances as they exist here. 31 U Chi L Rev 386 (1964). Lest we are to abandon the safeguards inherent in unanimity of jury verdicts in this State, in the final analysis the question must always be whether the recitation of the words of this supplemental charge, or its equal, in the court’s estimation, adversely affected independent jury deliberation and thinking.

Insight for a disposition in this regard is found in the admonitions of our Supreme Court in the case of People v. Golub, 333 Ill 554, 165 NE 196 (1929). There, under analogous circumstances, the trial judge remarked to a 9 to 3 deadlocked jury, “You ought not to have any difficulty in reaching a verdict on this evidence.” On review, the court in holding that comment improper, but harmless error, on the record of the case, stated:

“. . . A verdict should express the deliberate judgment of the jury. The juror, as well as the judge, has an independent duty to perform, and ought to be left free to pronounce his own conviction. A verdict hastened by the action of the judge, however worthy of motive, cannot be the result of that deliberation which the law guarantees. Remarks by a trial judge calculated to effect the rendition of a verdict without affording the jury an opportunity for careful consideration are unwarranted and often lead to great abuse. Whether the error is harmless or prejudicial depends upon the facts of the case. . . .”

Cf. People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299 (1963). See also annotations at 100 ALR2d 191-195.

Here, the instruction goes without the bounds of comment criticized, but sanctioned, in Golub. The instruction in its second sentence makes a single and qualified reference to the importance of individual judgment. The instruction, in its fourth and fifth sentences, goes on to single out as its prominent theme and to stress that the minority alone should reflect upon the reasonableness of their doubt, inasmuch as it has failed to make an impression upon the minds of the majority. This has been aptly called the “heed the majority” theme. 31 U Chi L Rev 386 (1964). Significantly no such admonition is directed therein to the majority, who may remain adamant without violating its terms. By our interpretation, this is in effect a tacit suggestion to the unsophisticated members of the jury that the charge is addressed to the minority alone, the connotation being that the views of the majority are correct and should be regarded with deference simply because they prevail in number. State v. Randall, 137 Mont 534, 353 P2d 1054 (1960); State v. Keeble, 49 SD 456, 207 NW 456 (1926).

From within this framework, the instruction continues to conclude by devoting an entire paragraph to emphasize to the jury the futility of a retrial of the issues. We think the utilization of this device in the instant case was the very type of discretionary abuse envisioned by the Golub court. Contrast instruction given in State v. Bozarth (Mo), 361 SW2d 819 (1962) and Mathes and Devitt, Federal Jury Practice and Instructions, § 15.16, p 165 (1965) wherein the need for individuality of judgment is afforded more than a disproportionately incidental treatment. The “Allen type” charge is furthermore said to create less likelihood of coercion if given before the jury indicates its inability to agree, Burrup v. United States, 371 F2d 556 (CA 10th, 1967).

We are of the opinion that an inference of such coercion upon the minority jurors arises, simply by virtue of the marked brevity of deliberation following the delivery of the charge. It is, in fact, a relevant consideration which has prompted and been the object of significantly distasteful note in several cases. Peterson v. United States, 213 F 920 (CA 9th, 1914); Stewart v. United States, 300 F 769 (CA 8th, 1924); Powell v. United States, 297 F2d 318 (CA 5th, 1961); State v. Thomas, 86 Ariz 161, 342 P2d 197 (1959); People v. Baumgartner, 166 Cal App2d 103, 332 P2d 366 (1958); and United States v. Rogers, 289 F2d 433 (CA 4th, 1961). There are, we wish to acknowledge, numerous cases wherein the brevity of subsequent deliberation promptéd no such adverse inference. These authorities would appear, however, to have rejected such a contention only when confronted by evidence more strongly indicative of guilt, much on a parallel with the reasoning employed in the Golub case. The case of Andrews v. United States, 309 F2d 127 (CA 5th, 1962) is representative of such an instance.

To hold otherwise in the instant case would require this court to surmise that by the letter of the instruction given, the respective members of the jury each independently reviewed his doubt as to the totality of the evidence adduced and, with a view to the opinions of one another, achieved unanimity, in a period of time agreed to be somewhere less than eighteen minutes. Such a hastened response is hardly demonstrative of a painstaking reevaluation of the same proofs which had theretofore steadfastly buttressed two dissenting views for 2hours, vO the point of hopeless stalemate. Under such circumstances, the use of this “Allen type” charge must be deemed to have been tantamount to an exercise of judicially sanctioned undue influence or coercion upon the jury which the law cannot condone.

As its final point, the State submits that the use of an “Allen type” instruction serves a legitimate and bona fide purpose and hence should be sustained; i. e., the efficient administration of justice by avoidance of the expense and delay incident to the retrial of an accused. While, in principle, we have no quarrel with that proposition, we cannot fully appreciate the appropriateness of the argument to uphold defendant’s conviction in the case at bar.

First, the “Allen type” charge is an admitted and vestigial last resort measure to exact or “blast” a verdict from a hung jury under the guise of a worthy and ostensibly valid purpose. This we submit is neither a relevant consideration nor, by the precedent of this State, the proper criteria to deny an accused that individual free thinking of each juror which the law holds inviolate. People v. Golub, 333 Ill 554, 165 NE 196 (1929).

Secondly, we submit, common experience as jurists has taught that the phenomena of a hung jury is such a rare instance in criminal proceedings as to be undeserving of an instruction avowed to ameliorate that end, particularly when overbalanced by the prejudice wrought upon an accused by its implementation in a case such as the one at bar. While the State’s authority on the subject suggests the precise figure to be approximately 5% of all cases proceeding to trial (Kalven & Zeisal, The American Jury, p 453 (1966)), no such relevant statistic is logged by the administrative offices of the Circuit Court of Cook County, nor has our research succeeded in ascertaining an exact figure. It would further appear in repudiation of this contention that the aforesaid study project indicates that a hung jury almost never occurs unless the first ballot vote reflects a substantial (4 or more dissenting) division in opinion, 53 Va L Rev 123 (1967).

By its very nature the instruction has been held in at least one case to breed litigation rather than avoid it, State v. Thomas, 86 Ariz 161, 342 P2d 197 (1959), and would appear to be susceptible on review to a minimum of six different objections. 31 U Chi L Rev 386 (1964). We offer this response, however, not to condemn “Allen type” instructions as such, but rather only to demonstrate that the State’s latter argument is no argument at all. 53 Va L Rev 123 (1967).

In view of our disposition on this matter, a reply to defendant’s alternative challenge asking the court to arrest this practice in its incipiency, as a matter of law, would not be in order at this time, and to that end we offer no opinion. Suffice to say that from within the purview of the foregoing discussion, we cannot permit the instruction given on this record to operate as both the basis for defendant’s conviction, as well as the foundation for its encouraged use in the future. Defendant, accordingly, is entitled to a new trial.

For the above reasons, the judgment is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded for a new trial.

BURKE, P. J. and MCNAMARA, J., concur.

       For the specific issues presented by certiorari in Burrup v. United States, supra, consult 35 LW 3378.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Felton Bridgewater, Defendant-Appellant.
    Gen. No. 51,923. (Abstract of Decision.)
    First District, First Division.
    May 13, 1968.
    Walter J. Brefford, of Chicago, for appellant;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Zagel, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by PRESIDING JUSTICE BURMAN. Not to be published in full.


author: MR. PRESIDING JUSTICE BURKE

text:
    The City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. Lowell J. Myers, Defendant-Appellant.
    Gen. No. 51,257.
    First District, Second Division.
    May 14, 1968.

      Lowell J. Myers, pro se, of Chicago, appellant.
    Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen, Sydney R. Drebin, and Marsile J. Hughes, Assistant Corporation Counsel, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

The record shows that on January 9, 1966, a complaint was filed charging that on January 7, 1966 one “Myers” did park a Chrysler automobile bearing state license No. 743-980 on a public highway in a “No Parking At Anytime” zone. On February 1, 1966, Mr. Lowell J. Myers, who is a Chicago lawyer, entered his appearance as the defendant. He entered a plea of “not guilty” and waived a jury trial. No evidence was introduced. The defendant said “I am willing to stipulate that the police officer will testify that he found an automobile with state license No. 743-980 on Friday, January 7,1966, at 10:00 p. m., parked in front of 1038 North Shore Avenue. . . .” The stipulation was accepted. The defendant stated to the court that the City “has not proven the necessary elements of its case.” The court said that the stipulation established the violation and entered a judgment assessing a fine of $5 against the defendant. He appealed.

Subsequent to the filing of the Notice of Appeal, the City succeeded in having an order entered in the trial court vacating the judgment and dismissing the charge against the defendant for want of prosecution. Thereafter this court granted a motion of the City to dismiss the appeal on the ground that there was no controversy between the parties. On appeal by Mr. Myers, the Supreme Court said (37 Ill2d 470, 473, 227 NE2d 760), “Here, it is not disputed that the defendant properly filed a notice of appeal on February 10, 1966. The trial court was without jurisdiction when on February 24, 1966, it sought to vacate its order of February 1, 1966. The appellate court erred in dismissing the appeal. The judgment of the Appellate Court for the First District is reversed and the cause is remanded to such court for proceedings in conformity with this opinion.”

The City asks us to dismiss the appeal on the ground that this is a “fictitious case.” Plaintiff asserts that Mr. Myer’s “tactics of volunteering himself as a defendant and in falsely claiming the privilege against self-incrimination render the case at bar a fictitious suit, a suit which is not based upon a controversy between the City and Myers.” The Supreme Court decided that the appeal should not be dismissed. The record shows that Lowell J. Myers was a defendant in the parking violation charge, that he entered his appearance therein, and that on a trial based on a stipulation the court found him guilty and fined him. On this record we cannot say that it is a fictitious case. The trial court, the City and the defendant recognized that Mr. Myers was on trial charged with a violation of the parking ordinance. The contention of the City that the appeal should be dismissed because the case is a fictitious one is without merit.

There was no evidence. The stipulation which the court accepted as the basis for the judgment stated that if the officer were present he would testify that he found an automobile, state license 743-980 on Friday, January 7, 1966, at 10:00 p. m., parked in front of 1038 North Shore Avenue. This stipulation of the testimony does not prove the charge that the defendant parked or owned the automobile with the specified license number. The City failed to prove the charge in the complaint. Therefore the judgment is reversed.

Judgment reversed.

McNAMARA and LYONS, JJ., concur.


text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellee, v. Richard Chiagouris, d/b/a Frontier Management Company, Defendant-Appellant.
    Gen. No. 51,697. (Abstract of Decision.)
    First District, Second Division.
    May 14, 1968.
    George Yellen, of Chicago, for appellant;
    Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen and Edmund Hatfield, Assistant Corporation Counsel, of counsel), for appellee.
   Opinion by JUSTICE McNAMARA. Not to be published in full.


text:
    John Hann, Plaintiff-Appellant, v. Edna Milla, Defendant-Appellee.
    Gen. No. 51,791. (Abstract of Decision.)
    First District, Second Division.
    May 14, 1968.
    Sprague and Carlson, of Chicago (Martin T. Langan, of counsel), for appellant;
    L. Bow Pritchett, Jr., Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph B. Lederleitner, of counsel), for appellee.
   Opinion by JUSTICE McNAMARA. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Eugene Minor (Impleaded), Defendant-Appellant.
    Gen. No. 51,800. (Abstract of Decision.)
    First District, Second Division.
    May 14, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant;
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Francis Carey, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE LYONS. Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Nathaniel Geano Davis, Defendant-Appellant.
    Gen. No. 51,846.
    First District, Second Division.
    May 14, 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 Schapiro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of the crime of attempt burglary and was sentenced to a term of two to six years in the penitentiary. On this appeal he maintains that he was not proven guilty beyond a reasonable doubt because of unsatisfactory identification testimony.

Mrs. Rose Minerbrook testified that on January 26, 1966, she was the owner of a men’s clothing business, known as Arvits Custom Clothes Incorporated, located in a building at 325 East 47th Street in Chicago, hereinafter referred to as the “Arvits building.” The Arvits building was located on the south side of 47th Street, fronting on 47th Street, and was bounded on the west by the Chicago Transit Authority elevated train tracks, hereinafter referred to as the “L,” and Calumet Avenue on the east. The front portion of the Arvits building appears to have been of the common store-front construction, a high, single story structure. It appears from the record that the rear portion of the Arvits building was substantially higher than the front portion, giving the rear portion a “two-story” appearance from the outside. Along an easterly portion of the south wall of the Arvits building stood a three-story apartment building fronting at 4710 Calumet Avenue, hereinafter referred to as the “Calumet building,” the north wall of which apparently abutted the easterly portion of the south wall of the Arvits building.

Mrs. Minerbrook testified that she was summoned to the store by the police about 4:00 on the morning of January 26, 1966, and that she searched the premises, found nothing missing, and returned home. When she returned to the store after 9:00 later that morning she secured a stepladder, searched the inside roof of the store above a false ceiling and observed a hole in the roof. She further testified that she went outside, ascended the steps of the “L” station and observed the hole and also snow which had been pushed away from the area of the hole. Mrs. Minerbrook stated that snow, which had accumulated on the false ceiling under the hole and which she failed to observe when she first observed the hole, melted a few days later and that the false ceiling suffered considerable water damage.

Police Officer Rudolph Winston testified that about 3:45 on the morning of January 26, 1966, he and his partner, Paul Harris, were parked in an unmarked squad car under the “L” tracks, some 30 to 40 feet behind and a little to the south of the Calumet building, acting on information that a holdup man was going to be in the area. The squad car was parked facing east and Officer Winston testified that he observed a man on the roof of the higher portion of the Arvits building. The man moved south, climbed onto the third-floor porch of the abutting Calumet building, descended the rear stairway, and proceeded toward the alley behind the building. As the man, later identified as Jerome Fuller, defendant’s co-defendant at trial, reached the alley, the officers detained him and questioned him as to why he was on the roof. Fuller stated that someone had informed him that there were clothes on the roof of the Arvits building and that he was attempting to recover them. Fuller was then handcuffed and placed in the rear seat of the squad car, the two officers sitting in the front, and the questioning continued.

A short while later, Officer Winston testified, he observed two more men on the roof of the higher portion of the Arvits building. One of the men wore a hat and a three-quarter length coat, and the other wore a beanytype cap and a black leather jacket. The men moved south on the roof of the Arvits building toward the Calumet building, climbed onto the roof of the Calumet building, lowered themselves through a skylight onto the third-floor porch and forced their way into a vacant third-floor apartment. Officer Winston testified that he remained in the squad car with Fuller, while Officer Harris proceeded to the front of the Calumet building. On cross-examination Officer Winston testified that Officer Harris merely went to the corner of the Calumet building and that he did not enter the building because it was “impossible for him to go into the building. The building is closed up.” He also testified that Officer Harris was within the scope of his vision the entire time he was at the front of the Calumet building.

Officer Winston further testified that he then observed defendant (dressed the same as one of the men he observed on the roof of the Arvits building and enter the Calumet building) and his companion exit from the rear of the Calumet building and proceed up the alley toward 47th Street to the front of the “L” station directly across the street from the Arvits building. Officer Winston testified he waited for Officer Harris to return to the squad car and that they, with Fuller, proceeded to the front of the “L” station and placed defendant under arrest. The other man was not apprehended. Defendant denied having been on the roof of the Arvits building.

The testimony of Officer Harris was substantially the same as that of Officer Winston. In addition, he testified that he was able to clearly observe the two men on the roof of the Arvits building because snow covered the ground and it was a moonlit night; he described the lighting as “practically like day.” Officer Harris testified that after he observed the two men enter the Calumet building he left the squad car and proceeded to the front of the building, anticipating the men would attempt to exit the building from the front, and that he did not actually see defendant exit the building. He testified that defendant was placed under arrest at the “L” station and that he was wearing clothing similar to that worn by one of the men he observed on the roof of the Arvits building.

. Officer Harris testified on cross-examination that he was out of sight of Officer Winston “for a split second” when he checked the front of the Calumet building. He also stated that he did not know whether the Calumet building was occupied, but that he thought there were tenants in the building.

Another police car arrived at the scene about an hour later and Officer Harris, in the company of another officer, went to the roof of the higher portion of the Arvits building where he observed a hole in the lower portion of the roof and footprints in the snow around the area. He also observed a ladder lying on the roof of the lower portion. Officer Winston also testified that he ascended the steps to the “L” station to a point where he was able to observe what appeared to be a hole in the lower portion of the Arvits building roof. The entire area was searched, but no burglary tools were recovered. Defendant and Fuller were also searched and no weapons or tools were found on their persons. Both men were transported to the police station where they were again questioned. A police report shows that both men, while at the police station, denied having been on the roof of the Arvits building.

Defendant testified in his own behalf and stated he had never been on the roof of the Arvits building and that he did not attempt to burglarize the Arvits store. He testified that he had been working at the Central Cold Storage Company, 350 North Dearborn Street in Chicago, until 2:30 on the morning of January 26, 1966. His job consisted of helping truck drivers load and unload their trucks. After he finished work he proceeded to the “ ‘L’ station” (subway station) at Grand Avenue and State Street, boarded a southbound “L” and rode to 47th Street where he got off at approximately 3:30 a. m. Defendant testified it was cold outside and that he waited inside the “L” station for a bus to take him to his father’s house only a few blocks distant where he was to pick up some clothes. The police entered the station, accused defendant of having been on the roof of the Arvits building and placed him under arrest. He stated he denied having been on the Arvits building roof. Defendant was wearing a green beany-type cap, a black and white “teardrop” jacket, and a pair of black pants.

Defendant was later recalled to the stand and testified in detail concerning his employment on the date in question, some confusion having arisen during his direct examination with respect to the nature thereof. Defendant testified that he was not employed by the cold storage company itself on the date in question, but was hired by individual truck drivers to help them with their loads and was paid in cash directly by the drivers themselves. He further testified that he had been employed by the company itself some years prior, but had lost his job. He stated he had earned over $20 on the evening of the 25th and morning of the 26th of January helping drivers load ducklings and butter, but that he had gambled away all but thirty cents thereof, which he retained for carfare. He testified he had a transfer for the bus when he was arrested, but the transfer was not produced at trial.

Wilbert Virnala testified in rebuttal for the State and stated that he was a controller at the Central Cold Storage Company. He described in detail the company’s operating and record keeping systems and also testified that the company employs men who handle the loading and unloading of freight. He stated, however, that some truck drivers employ local men not employed by the company to aid in the loading and unloading of the individual trucks after regular company working hours, and that these men are paid in cash by the drivers themselves. The witness further testified that his company had not handled butter for some eight months prior to trial, and that there were no records of unloading having been done after 6:00 p. m., on the evening of January 25, 1966.

Jerome Fuller testified in his own behalf and stated that he was having refreshments in a restaurant across the street from the Arvits building on the morning in question, when two men entered the establishment and began talking that they had just burglarized the Arvits store and that there was clothing on the roof of the building which they were unable to carry away. Fuller stated that he then followed the men out of the restaurant and onto the roof of the Arvits building. Unable to locate any clothing on the roof, Fuller made his way down the rear stairway of an adjacent building (the Calumet building) and was arrested in the adjoining alley. He also testified that defendant was not one of the men in the restaurant who said they had just burglarized the Arvits store.

Defendant contends that he was not proved guilty beyond a reasonable doubt in that the identification testimony given by the State’s witnesses was unsatisfactory. We disagree.

Both police officers testified that one of the two men whom they had observed on the roof of the Arvits building was wearing a black jacket and a beany-type cap, and that that man and his companion entered a vacant third-floor apartment in the Calumet building. Although Officer Harris testified that he did not see anyone exit the Calumet building, Officer Winston testified unequivocally that he observed defendant, dressed the same as one of the two men who had entered the building a few minutes before, exit the rear of the Calumet building and proceed up the alley toward 47th Street to the front of the “L” station where he was later arrested. Officer Harris also testified that defendant was wearing clothing identical to that worn by one of the men observed on the roof of the Arvits building.

Although it is true that both officers testified that they lost sight of the two men after the latter had entered the Calumet building, this break in the continuity of observation did not appreciably affect the credibility of the identification evidence. It can be reasonably said that Officer Winston had defendant in view from the time the men were first observed on the roof until defendant was arrested later in front of the “L” station. Defendant was wearing clothing identical to that worn by one of the men who were observed on the roof of the Arvits building and who had entered the Calumet building. Officer Harris testified that he thought the Calumet building was occupied, but that he was not certain, whereas Officer Winston testified unequivocally that the Calumet building was “closed up” and that it was “impossible” for Officer Harris to have entered the building. Defendant exited the Calumet building, which the trial court could have found to have been vacant, at the hour of 4:00 in the morning, just a few minutes after the men who were observed on the roof had entered the building. We are of the opinion that, on the whole, there was enough evidence to connect defendant with the hole in the roof of the Arvits building and with the men who were seen leaving that roof and entering the Calumet building.

Defendant attempted to justify his presence at the “L” station, where he was arrested, by testifying that he had just arrived from work and was waiting in the station for a bus to take him to his father’s house just a few blocks away. He testified that when he left work, he walked to the subway station at Grand Avenue and State Street, yet he sought to take a bus from the 47th Street “L” station to his father’s house which was about the same distance. He further testified that he had a bus transfer when he was arrested, yet the transfer was not produced at trial. “When a defendant elects to justify or explain his presence at or near the scene of a crime, while denying participation, he must tell a reasonable story or be judged by its improbabilities. (People v. Spagnolia, 21 Ill2d 455.)” People v. Davis, 27 Ill2d 33, 37, 188 NE2d 43. The question of weight and credibility of the evidence is for the trier of fact to determine, People v. Scott, 34 Ill2d 41, 45, 213 NE2d 521, and it is apparent that the trial court chose to believe the testimony of the police officers rather than that of the defendant.

In the case of People v. Oswald, 26 Ill2d 567, 187 NE2d 685, an eyewitness saw a man backing out of a broken store plate glass window, carrying a box with a handle on it, from a distance of 30 feet, and observed the man disappear into an alley. The police were hailed and the witness gave them a description of the clothing the man was wearing. Defendant was found by the police in the area some ten mintues later, wearing clothing matching that worn by the man seen coming out of the broken window. Defendant’s conviction for burglary was affirmed, the Court holding that there was enough circumstantial evidence corroborating the witness’ identification evidence for the trier of fact to have found defendant guilty.

Similarly, in People v. Chapman, 22 Ill2d 521, 177 NE2d 143, the prosecuting witness was able to catch only a fleeting glimpse of the man who stole her purse and escaped in a waiting automobile. Defendant was arrested two days later in an automobile similar to the one described and bearing the same license plates. The witness’ identification of the defendant was that he was dressed the same as her assailant and that he was the same size. In affirming defendant’s conviction the Court held that certain admissions made by defendant during questioning, at which the prosecuting witness was present, sufficiently corroborated the identification given by the prosecuting witness. See also People v. Sims, 77 Ill App2d 33, 222 NE2d 137; People v. Pavelick, 372 Ill 567, 25 NE2d 20.

The cases cited by defendant in support of his position in this regar dare not in point. They involve matters relating to the overall incredibility of the State’s case, rather than the question of the identification of the defendant as the perpetrator, as is involved here. See e. g., People v. Dawson, 22 Ill2d 260, 174 NE2d 817; People v. Coulson, 13 Ill2d 290, 149 NE2d 96.

For these reasons the judgment is affirmed.

Judgment affirmed.

McNAMARA and LYONS, JJ., concur.