WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
RUDOLPH F. DESORT, Judge, presiding.
MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 16, 1956.
Plaintiff in error, Andrew Mikka, was indicted for the crime of armed robbery in an indictment which also charged that he had been previously convicted of the crime of rape. He was tried by jury in the criminal court of Cook County, found guilty as charged, and was sentenced to the penitentiary for a term of life imprisonment. He has sued out a writ of error from this court to review the judgment of conviction.
On this writ of error plaintiff in error contends, first, that the testimony of the identification witnesses was insufficient to prove beyond a reasonable doubt that he was one of the persons who committed the robbery.
The evidence showed that at about the hour of 2:15 A.M. on February 23, 1952, three men entered a tavern owned by one Clarence Braasch at 9528 South Oakley Avenue, Chicago. At that time there were about 14 or 15 other customers in the place. Braasch was down at the far end of the bar away from the entrance when he saw one of the men enter. This man walked the length of the bar and when Braasch walked over to him to serve him the man held a handkerchief up to his face and said "This is a stick-up." Braasch started to put up his hands and the man said "Don't bother with that, just keep on serving the customers or make like you are serving the customers." This man had a small-caliber automatic pistol in his hand. Braasch then looked up and noticed that there were two other men in the place who had handkerchiefs up to their faces in the same manner.
Complying with the first man's request, Braasch continued to serve drinks to the customers until the man told him to sit down. The man with the gun and one of the other men then went behind the bar to the cash register and removed approximately $20. One of the men then asked whether there was any other money and Braasch told him that there was and they went into the back room where there was about $80 in a cigar box which they took. One of them then asked Braasch whether he had a gun, and when Braasch replied that he had one in his pocket, one of the men reached in and removed it. It was a .32 caliber 6-shot H & R nickel-plated revolver. When they went back into the main part of the tavern Braasch paid particular attention to the third man who had remained at the entrance and who held a large foreign-looking gun. The men then left, and, as they were leaving, the man at the door entered the telephone booth and tore the phone from the wall and warned Braasch not to try to follow them.
Braasch testified that the robbers did not have the handkerchiefs tied around their faces but simply held them up over their mouths and when they spoke they removed the handkerchiefs and that, therefore, he was able to get a good look at their faces. Later that same night Braasch went to the police station where he picked the three robbers out of a police line-up. One of the men whom Braasch picked out was Mikka, whom Braasch positively identified as the man who stood at the door during the robbery.
The other identifying witness was Julius Braasch, the father of Clarence. He testified in substance that he was employed as a security guard at the Argonne Laboratories; that at about 2:20 on the morning in question he stopped in his son's place of business after work, and as he opened the front door he was approached by a man standing at the door with a gun who told him to walk over to the bar and put his hands on the bar; that he was standing quite close to this man with the gun and kept his eyes on him; that he never took his eyes off of the man and stared in his eyes to get a distinct idea of his features and hair and checked that very thoroughly. This was the only one of the three robbers whom Julius Braasch saw but he was able to get a good look at him. When the robbers left he saw them get into a car which he identified as a dark colored 1941 Ford coupe. After the robbers left, Julius Braasch called the police and later that morning went down to the police station where he viewed the line-up previously referred to. Out of the line-up of eight men, he identified Mikka as being the man at the door with the gun.
Plaintiff in error contends that the line-up out of which he was identified was unfair because there were two police officers in the line-up who were wearing their uniform trousers and their holsters. Plaintiff in error argues that it was readily apparent to the witnesses that these two men were police officers because of their attire and that, therefore, the identification which the two witnesses made at the line-up is not sufficient to establish his identity beyond a reasonable doubt. However, the police officers removed their uniform coats and wore borrowed jackets and placed their holsters to the rear. Also, in addition to the police officers there were three civilians in the line-up, one of whom was known by Julius Braasch but none of whom were known to Clarence. We are of the opinion that the fact that the two police officers were in the line-up does not render the identification testimony incompetent, but only goes to the weight of the evidence. The weight and credibility of the evidence is a matter peculiarly within the province of the jury and on writ of error this court will not substitute its judgment for that of the jury. People v. Wilson, 1 Ill.2d 178.
Plaintiff in error contends that the State should have called some of the customers who were in the tavern at the time of the robbery to support the identification. We cannot agree with this contention. The manner in which the robbery was conducted indicates that the robbers planned not to alert any of the customers to the fact that a robbery was taking place. There is no showing that any of the customers would have been able to identify the robbers. Also, as we have heretofore held, even if other witnesses were available the State's Attorney was not obliged to call them. People v. Kukulski, 358 Ill. 601.
Clarence Braasch had an opportunity to observe all of the robbers, and Julius Braasch had a particularly good opportunity to observe the man at the door. Each of these witnesses positively identified the plaintiff in error as being one of the robbers and we are of the opinion that the identification testimony was sufficient. One identifying witness of a positive nature is sufficient. People v. Doyle, 363 Ill. 307; People v. Fisher, 303 Ill. 594; People v. Viti, 408 Ill. 206.
Plaintiff in error also contends that the trial court erred in permitting the State to introduce two guns in evidence. In order to pass upon this question it is necessary to set forth the evidence with respect to the circumstances under which the guns were found.
One Alex Miller, a deputy sheriff assigned to highway patrol, testified that in response to a radio call at about 3:00 A.M. on the morning in question he and his partner proceeded to the vicinity of 159th and Wood streets where they waited for a 1942 blue Ford coupe to come by. They only waited there a matter of a few minutes when they saw the car approaching. They followed the car for about four blocks and then pulled along side of it and told the driver to pull over to the side. The officer noticed that the rear window of the Ford was broken, apparently having been broken from the inside. There were three occupants in the car, whom Miller identified as being the three defendants, including plaintiff in error. Miller testified that Mikka was driving the car. They were ordered out of the car and Miller and his partner searched the car and found a P. 38 automatic pistol on the floor of the front seat in front of the driver's position. A P. 38 pistol is a foreign made gun. At the trial, this gun was identified as being very similar to the gun which Mikka had in his hand at the time of the robbery. Mikka contends that the court improperly ...