WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
ALAN E. ASHCRAFT, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
The defendant, John Ashley, and two others were indicted for armed robbery in the criminal court of Cook County. In a separate trial before a jury, he was found guilty, judgment was entered on the verdict and post-trial motions were denied. After considering circumstances in aggravation and mitigation of the offense, from which it appeared that defendant had a prior criminal record, the court sentenced him to the penitentiary for a term of not less than 15 years nor more than life.
By writ of error, defendant seeks to reverse the judgment of the trial court and here contends that the evidence did not establish his guilt beyond a reasonable doubt and that prejudicial errors were committed in the course of the trial.
All testimony relative to the robbery was offered on behalf of the People. The defendant did not testify on his own behalf and produced only one witness upon whose testimony he predicated the defense of alibi.
On May 19, 1958, at approximately 2:50 A.M., a tavern called Kay's Dugout, located at 3406 N. Sheffield Avenue, Chicago, was robbed. At the time, Harry Gaddo, bartender, and eight or ten patrons were in the tavern. The bar extended from near the front to the back of the room and the customers were seated on stools which were spaced along the front of the bar. A restroom was located at the rear of the room.
At the time in question, a man about five feet six inches tall, who weighed approximately 130 pounds and wore a brown suede jacket, came into the tavern and asked where the restroom was located. Gaddo directed him to it and then walked to the other end of the bar.
A second man entered the tavern, sat down on the first stool and ordered a highball. He was about six feet tall, weighed approximately 178 pounds, wore a dark jacket and brown fedora hat, and had no mustache, goatee, or distinguishing marks. This man was identified as the defendant by Gaddo, Mary Buchel, Walter E. Mayer and Peter Filpi.
Gaddo served the drink to defendant, collected his money, and then walked to the other end of the bar and was talking to patrons when the defendant stood up and dropped the highball to the floor. At the sound of breaking glass, another man rushed into the tavern, jumped around the bar, placed a knife at Gaddo's throat and announced, "It is a holdup." This man took about $200 from the drawer of the cash register and a like amount of money from nearby cigar boxes. As he took the money, defendant stood near the door with a "silver plated" gun in his hand. At the trial, Gaddo identified a revolver which was admitted in evidence as "looking like" the weapon which defendant had in the tavern.
While the robbery was in progress, the robber who first entered the tavern, put a gun in the back of Peter Filpi, a patron, and took his money and wristwatch. The wristwatch was identified by Filpi at the trial by virtue of certain distinctive characteristics, including a chipped crystal. It was found by police officer Pittacora in the defendant's apartment.
During the robbery, Mary Buchel, Joan Reeves, and Walter E. Mayer, a lieutenant in the city fire department, entered the tavern. As they walked toward the back of the room, the robber who took Filpi's money and wristwatch ordered them to sit down and Mayer scuffled with him. The defendant came to the aid of his fellow robber, pistol whipped Mayer several times, and then fired his revolver. The bullet grazed Mayer's head and entered Mary Buchel's shoulder. At this time, defendant threatened to kill Mayer or anyone else who moved.
Mayer, Buchel and Filpi all testified that it was the defendant who fired the shot and the description which Mary Buchel gave of the defendant confirmed in detail that given by Gaddo. On May 25 and 26, Mayer, Buchel, Filpi and Gaddo, separately picked the defendant out of a police line-up and identified him as one of the robbers.
After the defendant was arrested, he was questioned by officer Pittacora, denied participation in the robbery and gave the police permission to search his apartment. During the ensuing search, the watch belonging to Peter Filpi was found.
After the defendant fired the shot, Mary Buchel realized that she had been hit and turned to hold onto the bar. Thereupon, the robber who first entered the tavern removed her wristwatch from her arm and her billfold from her purse. Before the robbers left the tavern, they lined the patrons and bartender up against the wall and the defendant said that any person who attempted to leave the tavern would be killed. When the ...