WRIT OF ERROR to the Circuit Court of Rock Island County; the
Hon. DAN H. McNEAL, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Ursley Flowers, hereinafter referred to as defendant, was on January 3, 1955, indicted in Rock Island County, charged with the offense of robbery and armed robbery of one Sylvia Barnett. He was thereafter tried before a jury in the circuit court of Rock Island County and found guilty of armed robbery, and was on March 17, 1955, sentenced to the Illinois State Penitentiary for not less than 10 years, nor more than 40 years. It is from this conviction that defendant now brings his writ of error, appearing first pro se, and now with the aid of counsel appointed by this court.
On December 30, 1954, Joe's Steak Market in East Moline was robbed at about the hour of 8:30 to 9:00 P.M. A lone bandit entered the market brandishing a gun and demanded that Sylvia Barnett, the cashier, empty the cash register and place the money in a sack. Clarence Barnett, the manager of the market and the husband of the cashier, entered from the cooler while the robbery was in progress. At the direction of the robber he stood about 15 feet away and observed the commission of the crime. The robber wore a handkerchief over the lower portion of his face, was about five feet ten inches tall, wore a cap, jacket and trousers, and was about 25 or 30 years old. The robber took about $630, including 15 two-dollar bills whose serial numbers were registered in the business office and were kept in the register at all times.
Mr. Barnett called the police who obtained a description of the robber. The chief of police of East Moline, upon the basis of the description, ordered his officers to arrest this defendant. The police visited several taverns that evening and the next day, searching for defendant. They discovered him the next day, about 2:50 P.M., in Helena Bultincks' tavern in East Moline. They arrested defendant, took him to the police station, and there, upon search, found $562.03 on him, including the 15 marked two-dollar bills.
Charles Barnett identified defendant as the robber and defendant was thereafter indicted for robbery and armed robbery.
Defendant was brought to trial before a jury. A motion to suppress the 15 marked two-dollar bills as evidence was denied. Defendant contended that he received about $300 of the money discovered on his person, including the 15 two-dollar bills, in a crap game in the rest room of the Moline depot earlier in the day of December 31, 1954. A written statement taken from defendant by two polygraph examiners for the State Bureau of Identification was admitted over objection, to impeach the defendant's alibi and discredit his testimony. The jury found defendant guilty of armed robbery as charged in count II of the indictment, and he was thereafter sentenced to the penitentiary.
Defendant now prosecutes his writ of error to this court contending (1) that the verdict and judgment are against the manifest weight of the evidence, (2) that the court erred in refusing to give all of the instructions tendered by defendant and in giving certain instructions tendered by the State, (3) that the court erred in overruling defendant's motion for directed verdict, (4) in admitting certain evidence offered by the State, (5) in refusing defendant the right to extensively cross-examine certain witnesses, (6) and in refusing to suppress certain evidence, (7) that the State knowingly offered perjured testimony, (8) that the State's Attorney's argument was inflammatory and prejudicial, (9) that he was denied a fair and impartial trial, (10) that he was denied counsel in violation of due process of law, (11) that a fatal variance exists between the indictment and the evidence, as there is no allegation that the money taken was then in the charge, care, custody and control of Sylvia Barnett, and (12) that the court erred in permitting defendant to be impeached by written statements given for the purpose of aiding lie-detector examiners, and hence erred in permitting testimony given in connection with a lie-detector proceeding.
It is first urged by defendant that the verdict and judgment are against the weight of the evidence. The evidence is of such length that we cannot, with good conscience, set it forth in detail in this opinion. It does not appear from a complete review thereof, however, that the evidence is so improbable as to raise a reasonable doubt of defendant's guilt. (People v. Lion, 10 Ill.2d 208; People v. Woodruff, 9 Ill.2d 429.) Clarence Barnett, the manager of Joe's Steak Market, observed the robber from a distance of 15 feet, in good light for one or two minutes, saw his general physical make-up, that he wore a cap and a handkerchief across the lower part of his face, saw his eyes and was of the impression that the robber was 25 or 30 years old. He described the robber to the police, and identified him positively the next day at the police station, later from a picture, thereafter in jail and at the trial. He did not pick the defendant out of a line-up, but that fact goes only to the weight to be accorded the evidence of identification.
In addition, the defendant, when arrested, had a large amount of money in his pockets, slightly less than the amount taken from the market, and including the marked two-dollar bills. He claimed to have won the money in a crap game in the Moline depot. He is substantiated in that claim by Wesley Williamson and Louis Herrera, whose testimony as to facts surrounding the crap game is contradictory in many respects. Moreover, Williamson claimed the game to have occurred on a date he applied for employment at the Farmall Works. Employment applications in Farmall's records indicate he applied on the previous day, which was before this robbery occurred. In addition, the ticket clerk and baggageman at the depot failed to observe any crap game in the rest room although they were in that room during the time the game purportedly occurred. The credibility of all of these witnesses was for the jury, who saw and heard them testify, and the evidence not being so improbable as to raise a reasonable doubt of defendant's guilt, this court will not reverse the conviction. People v. Woodruff, 9 Ill.2d 429.
Defendant complains of certain instructions given at the request of the People. He insists that the court erred in giving one instruction to the effect that recent possession of stolen property tends to establish the guilt of the person in whose possession it is found. The instruction is not properly identified, but an instruction of this nature does appear on page 93 of the abstract. An instruction in the same language has been found to be a correct statement of law, (People v. Powloski, 311 Ill. 284,) and this rule has been restated and approved on numerous occasions. (People v. Finch, 394 Ill. 183.) The instruction was likewise correctly given in this case, and did not tend to cast any improper burden upon the defendant.
Defendant additionally complains of a certain instruction in relation to alibi given at the request of the People. Again the instruction is not sufficiently identified. However, every instruction given relating to alibi has been previously approved by this court upon the allegation of the same errors urged here. (People v. Thompson, 321 Ill. 594.) These instructions, likewise, were properly given in this case and cast no improper burden upon the defendant.
It is urged that the court erred in overruling defendant's motion for directed verdict at the conclusion of all of the evidence, as the facts and circumstances in the State's case were not sufficient to establish defendant's guilt. We have already determined that the verdict and judgment were in accord with the manifest weight of the evidence. The motion for directed verdict for defendant was, therefore, properly overruled by the court.
The court admitted into evidence upon rebuttal People's exhibit 6-A purporting to be an application by defendant's witness, Wesley Williamson, for employment at Farmall. The court also admitted into evidence certain statements taken in connection with a lie-detector test. Defendant charges that the court erred in admitting this evidence for the reason that no proper foundation was laid for the admission of People's exhibit 6-A, and the statement taken in connection with the lie-detector test was highly prejudicial, incompetent and improper, and was not a complete statement by defendant in his own words.
It appears from the record that at the time People's exhibit 6-A was first offered no proper foundation was laid for its admission. The People then laid a proper foundation by identifying Wesley Williamson's signature, and defendant's counsel stated that the application record was the best evidence and raised no further objection to its admission. Defendant has ...