WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
RICHARD B. AUSTIN, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 16, 1956.
This is a writ of error by defendant Robert Keagle to the criminal court of Cook County to reverse a conviction of armed robbery. The defendant was sentenced to a minimum of 25 years and a maximum of life in the State Penitentiary. Defendant appears here pro se.
Defendant Keagle was indicted in May, 1952, with William Seppi and Andrew Mikka for armed robbery. The indictment also contained an habitual criminal count. All three defendants were found guilty as charged in the indictment. Keagle sued a writ of error out of this court. On a confession of error, we reversed and remanded with directions to strike the portions of the indictment referring to the previous offense of robbery, to require a plea to the indictment to the extent of the charge of armed robbery, and for a new trial. People v. Keagle, No. 32913, September Term, 1953, (not reported.)
Pursuant to the mandate, Keagle was again arraigned and pleaded not guilty to the charge of armed robbery. A nolle prosequi was then entered as to count 2, referring to the previous offense of robbery.
On the trial one Braasch testified that he was the owner of a tavern and was working behind the bar at 2 A.M. on February 23, 1952, when he saw a man with a handkerchief over his mouth and a gun in his hand standing four feet from him; that two other men were with him holding handkerchiefs over their mouths and one had a gun; that the first man, and one of the others in a brown topcoat went behind the bar, took $20 from the cash register and threatened to "work him over;" that one of the men then asked whether there was any other money, and Braasch told him there was, and the same two men followed him into the back room, took $80 from a cigar box, and the man in the brown coat took a gun from his pocket. Braasch identified Keagle as the man in the brown coat. He saw the man first about 20 feet away, but later, in the small back room, he faced him at arms length under a bright light. Three hours after the occurrence, he immediately picked Keagle out of a line-up, although he was then wearing another coat. Seppi and Mikka were brought into the court room and were identified as the other two men who had the guns. Seppi was identified as the man witness first saw.
Braasch's father identified Mikka as one of the men, described the car in which the men escaped and also corroborated the testimony of his son with regard to the two men who took him into the back room. He identified the car as a dark blue 1941 Ford coupe, and testified that the three men got into the car and drove away.
The two sheriff's deputies testified that they picked up Keagle, Seppi and Mikka about 3 A.M. in a blue Ford coupe. A .32 automatic was found on Seppi, a P. 38 gun was found in the car, and the .32 Harrington and Richardson revolver taken from Braasch was found some 12 feet from the car.
The defense offered no evidence.
Defendant Keagle, appearing here pro se, alleges several errors. The first relates to the effect of the prior mandate of this court. In this respect the defendant contends that the trial court erred in not striking count 2, pursuant to the mandate, rather than merely permitting the entry of a nolle prosequi thereon. He contends that this error was prejudicial to him on the trial and placed him in double jeopardy. The defendant was not tried or convicted on count 2, but on count 1, the charge of armed robbery. In this case we consider that the entry of a nolle prosequi carried out the mandate of this court since there is nothing in the record to indicate that knowledge of the prior conviction, alleged in count 2, reached the jury. Nor is there any evidence of prejudice affecting the trial judge. Since the Habitual Criminal Act, on which count 2 was based, defines a penalty rather than a crime, and there is only one crime charged here, the question of double jeopardy cannot arise. (People v. Kirkrand, 397 Ill. 588; People v. Allen, 368 Ill. 368.) It should also be noted that defendant did not move the trial court to strike count 2, nor did he object to the nolle prosequi, nor did he raise this alleged error by his motion for a new trial. We must regard any alleged error in the failure to strike count 2 as waived. People v. Brand, 415 Ill. 329.
Defendant next argues that he has been placed in double jeopardy by his retrial on the charge of armed robbery as ordered by this court in its mandate. He contends that on his first trial he was convicted of robbery in the manner and form as charged in the indictment, that such a verdict amounted to a conviction of unarmed robbery and an acquittal of armed robbery; that he, therefore, cannot be again tried for armed robbery. We cannot agree. A finding of guilty in the manner and form as charged in the indictment is a finding of guilty on each count of the indictment. We passed on this question in People v. Bailey, 391 Ill. 149. The defendant there was under indictment on counts almost identical to the case at bar, armed robbery and unarmed robbery. A general guilty verdict was returned in the same language as in the case at bar. We there held that these were related felonies and the verdict was on each count of the indictment. Since the greater includes the lesser, it was incumbent on the jury to eliminate the greater charge from the verdict. By the general guilty verdict at the first trial, defendant was convicted of both armed and unarmed robbery, (People v. Sheehan, 407 Ill. 545,) and upon reversal of that conviction and remandment for a new trial, jeopardy does not attach. People v. Woodward, 394 Ill. 433.
Defendant also contends that the evidence does not sustain the verdict, in that his identification was not sufficient to remove reasonable doubt, and cites several cases in which we have reversed cases on the basis of inadequate identification. There is no question but that the State must prove, beyond a reasonable doubt, the perpetration of the crime by the person accused, (People v. Kidd, 410 Ill. 271; People v. Del Prete, 395 Ill. 110,) but this is ordinarily a question of fact for the jury. (People v. Tomaszewski, 406 Ill. 346; People v. Leach, 398 Ill. 515.) We will not reverse a conviction on the question of sufficiency of identification unless it is contrary to the weight of the evidence, or is so unsatisfactory as to justify a reasonable doubt of defendant's guilt. (People v. Ortega, 5 Ill.2d 79; People v. Harris, 391 Ill. 358.) The doubt must be reasonable and well founded. People v. Ortega, 5 Ill.2d 79; People v. Del Prete, 395 Ill. 110.
We have read the entire testimony in the record and must conclude that the identification of defendant Keagle was positive, convincing and uncontradicted. Witness Braasch was corroborated as to much of his testimony by his father. Defendant was found about an hour after the occurrence with Seppi and Mikka and two guns. The gun taken from the prosecuting witness was found about 12 feet from the car. On cross-examination, counsel pointed out certain discrepancies in the testimony of the prosecuting witness at the prior trial. We do ...