WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
GIBSON E. GORMAN, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
This case comes before us on writ of error brought by defendant, Sylvester Moore, to the criminal court of Cook County. By this writ he seeks to reverse judgment and sentence to the Illinois State Penitentiary for life on a habitual criminal count.
On May 11, 1955, the defendant was indicted on three counts. The first count charged Moore and Arthur Irvin with armed robbery of $65 from Robert Durand. The second count was a habitual criminal count which realleged the charge of armed robbery and further set forth that the same Sylvester Moore was indicted in Cook County on a charge of robbery by indictment No. 48705 in June, 1928, pleaded guilty, and was convicted and sentenced to "the Illinois State Reformatory at Pontiac." The indictment further charged that the same Sylvester Moore was again indicted in Cook County in August of 1942 on a charge of robbery and larceny of personal property of the value of $16.50, by indictment No. 42-1558; that he was tried and found guilty as charged, and of having been previously convicted of robbery, and was sentenced to imprisonment in the Illinois State Penitentiary for a term of ten years. The third count of the indictment was the same as the first count, except that it failed to allege that the robbery was committed while defendant was armed.
On the trial, the State adduced evidence tending to show that Moore and Irvin had been drinking together on April 19, 1955. They got in Moore's car and drove for some time. Irvin then got out of the car and, with a pistol, robbed Robert Durand of $65 in cash. He returned to the car and split the proceeds with Moore.
At the close of the State's case, the State's Attorney and counsel for Moore entered into a stipulation, in the words of the record, "relative to the habitual count of the indictment." The stipulation first covered indictment No. 48705, and it was stipulated that if the clerk of the criminal court of Cook County were called as a witness, he would testify that the records of said court show that Moore had been indicted for robbery, pleaded guilty, and "that said Sylvester Moore was thereby sentenced to the penitentiary." It was stipulated that the clerk would further testify that said records show that "the said Grand Jury returned an indictment No. 42-1558, the indictment charging Sylvester Moore with robbery while armed with a pistol; and habitual criminal;" that he pleaded not guilty, was tried, "and convicted of larceny, value of property $16.00 and habitual criminal in manner and form as charged in the indictment. That on August 27, 1952, the said Sylvester Moore was sentenced to the Illinois State Penitentiary at Joliet, Illinois."
Even though the indictment made no reference to the following conviction, it was further stipulated that the clerk would testify that his records show that the grand jury returned an indictment No. 42-1559, the indictment charging Sylvester Moore with robbery while armed with a pistol; that the said Sylvester Moore was duly arraigned on August 10, 1942, and pleaded not guilty; that upon trial, Moore was convicted of robbery while armed with a pistol in manner and form as charged in the indictment; that on August 27, 1942, the said Sylvester Moore was sentenced to the Illinois State Penitentiary at Joliet, Illinois.
Among the instructions given by the court was one which stated that the indictment charged "that the defendant, Sylvester Moore, has heretofore * * * been convicted of the crime of armed robbery and grand larceny * * *." The jury found the defendant guilty as charged, and further found that he had theretofore been convicted of armed robbery and grand larceny. Motions for new trial and in arrest of judgment were denied and the defendant sentenced, under the habitual count, to the Illinois State Penitentiary for life.
The defendant appears here pro se, and has filed a typewritten brief and argument consisting of 137 pages. His argument contains innumerable alleged errors and points, many of which are either immaterial or unintelligible to this court. We gather that his principal objections center around the habitual count of the indictment, the use of his past record in the State's Attorney's argument, and other prejudicial conduct of the State's Attorney.
Neither the Attorney General nor the State's Attorney of Cook County have appeared in response to this writ, and we are not afforded the benefit of brief or argument on behalf of the State. Because of the unprofessional nature of the defendant's brief and argument, the court has been required to carefully examine the entire record to determine if he was fairly tried and convicted.
We will first consider whether the evidence in the record sustains the verdict. It is undisputed that Moore and his co-defendant Irvin were friends and had been drinking together in a tavern from 10 A.M. until early on the afternoon of April 19, 1955. At that time they left the tavern in Moore's car and drove about the city. Moore claims that they were attempting to find a woman with whom Irvin had formerly lived as husband and wife. Irvin conceded that he wanted to see this woman, but the evidence is clear that the search was not only fruitless, but rather aimless. After driving for a period of time, Moore told Irvin that he was running out of gas, and had no money. It is further undisputed that about 2:30 P.M. Moore stopped the car next to a laundry truck, Irvin got out of the car and went into an entry way where he accosted the laundry truck driver with a pistol and robbed him of $65.
The stories of Moore and Irvin differ in several aspects material to this case. Moore denies any knowledge of Irvin's possession of the pistol until after the robbery. Irvin testified that he showed Moore the gun before the robbery. Moore testified that they had no purpose in going to the scene of the robbery except as an aimless search for Irvin's so-called "wife." Irvin testified that they went to the area of the robbery for the purpose of getting some money, spotted the laundry truck, drove around the block and stopped. Moore gives no explanation for stopping the car except that Irvin instructed him to do so. Although the testimony of Irvin was necessary to convict Moore as a principal, it is undisputed that Moore drove the car and split the proceeds of the robbery. We recognize that the testimony of an accomplice is to be received with suspicion and acted on with caution; however, a conviction may be sustained on such evidence, even if uncorroborated, if it is of such character as to convince the jury of the guilt of the accused beyond a reasonable doubt. (People v. Niemoth, 409 Ill. 111; People v. Rudnicki, 394 Ill. 351; People v. Johnston, 382 Ill. 233.) In the case before us, the testimony of Irvin is in most part corroborated by Moore himself, and the jury was properly cautioned as to the suspicion attached to the testimony of the accomplice. In such case we cannot say that the jury was unjustified in rejecting Moore's version of the robbery and accepting Irvin's.
Defendant Moore attacks the habitual count of the indictment. We gather from his brief that he objects to the charge that he had been previously convicted of robbery and sentenced to the Illinois State Reformatory at Pontiac. He is correct in asserting that such an allegation is not now sufficient to charge him as an habitual offender, as the reformatory at Pontiac is not a penitentiary under the present Habitual Criminal Act. (Ill. Rev. Stat. 1955, chap. 38, par. 602; People v. Perkins, 395 Ill. 553.) However, this charge may be treated as surplusage, because the habitual count further alleged a prior conviction of grand larceny and sentence to the penitentiary. This was duly proved by stipulation, and the jury so found. Such a finding required the maximum sentence of life imprisonment. We can find no merit in defendant's claim that the grand larceny indictment was void.
We turn next to the alleged misconduct of the State's Attorney in argument. We have reviewed the entire record and find the following arguments made by the ...