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People v. Cobb

OCTOBER 14, 1964.

PEOPLE OF THE STATE OF ILLINOIS, DEFENDANT IN ERROR,

v.

JOHN COBB (IMPLEADED), PLAINTIFF IN ERROR.



Writ of error to the Criminal Court of Cook County; the Hon. GEORGE B. WEISS, Judge, presiding. Affirmed.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

In a joint bench trial the defendant, John Cobb, was convicted of armed robbery of Cesar Alvarez and sentenced to the penitentiary for a term of not less than five nor more than ten years and defendant's wife, Leabert Cobb, was convicted of the same offense. However, only John Cobb filed a Writ of Error.

Defendant contends that: (1) he was not proved guilty beyond a reasonable doubt, (2) hearsay evidence of a police officer as to the identification of the defendant (and his wife) by complaining witness Alvarez was improperly admitted, and (3) defendant's counsel was unduly restricted in the cross-examination of a prosecution witness to show the record of a felony conviction of said witness.

At the trial Alvarez testified that on September 12, 1962, at about 1:30 p.m., he was looking for a variety of small items including picture frames, in the area of Maxwell and Halsted Streets; that he was carrying "some money"; *fn1 that he saw a woman (later identified as Leabert Cobb) who, upon ascertaining he was looking for picture frames, indicated that she had some picture frames at her place which was a half block away; that the two proceeded to 1319 South Newberry Avenue, ascended three flights of stairs, continued to a corner room through a door which she pushed open. On cross-examination Alvarez testified, "she pushed the door a little and she got in and I follow and I said `Where is the picture frame'"? Alvarez testified that as he "start[ed] to see the picture frame" defendant appeared and started fighting with "a big knife in his right hand, big knife against me"; that defendant hit him with the knife, inflicting a small wound under his left arm; that he (Alvarez) jumped back; that he used his right hand in an attempt to ward off his assailant; that defendant inflicted other cuts and punched Alvarez in the right eye and that Leabert Cobb took Alvarez's wallet containing $219. In the shuffle Alvarez's watch and ring landed on the floor. Alvarez testified that a couple entered the room. They were subsequently identified as Horace Dreams, who had resided at the apartment for about eight months, and his girl friend, Louise Jones. Dreams gave the watch and ring to Alvarez. On rebuttal Dreams indicated that he broke up the "struggling." Alvarez testified that "these people run away from the room and the man with the knife say, `Don't go out before we go, don't go away.'"

Alvarez testified further that he left the apartment in search of the police and five minutes later, accompanied by a police officer, entered the room in which he had been robbed but found no one. At 3:00 p.m. two detectives accompanied Alvarez to the scene of the crime where Dreams indicated that Alvarez's assailants were the Cobbs. Defendant was apprehended that same day.

Louise Jones testified that she was living at 1319 Newberry on the date in question. She asserted that she knew the Cobbs; that they had visited her many different times; that on that day Leabert Cobb and Alvarez came up to the fourth floor apartment; that Leabert Cobb gave her fifty cents to get some beer. On cross-examination Jones stated that Alvarez gave Leabert the fifty cents; that she (Jones) went to purchase the refreshments; that in the course of her trip she encountered Dreams and told him that "Leabert and a friend of hers" were in the apartment; that when she returned to the dwelling Dreams was evicting the Cobbs from the hallway; and that Alvarez "was there."

Dreams testified, on direct, that he had known the Cobbs for at least a year prior to September 12, 1962; that on that afternoon he saw John Cobb "and a Mexican fellow" struggling in his apartment; that he "broke them up from fighting"; that he "told them to get out"; that he returned Alvarez's watch; and that he was questioned that afternoon by Officer Griffin.

On cross-examination Dreams admitted that he had been convicted of felonies on two separate occasions and that he twice served time in the penitentiary. Defendant's counsel was not allowed to query Dreams as to the specific felonies or the length of the sentences.

Leabert Cobb asserted that she did not know a girl by the name of Louise Jones although she had seen her in the neighborhood; that she did not know Alvarez; that the first time she saw him was in court on September 22nd. She denied any knowledge of or participation in any robbery.

Defendant denied knowing Louise Jones, Dreams or Alvarez. He claimed that on September 12th he was not working and as a consequence spent most of the day at his home, 302 West 65th Street, and that late in the afternoon he left his apartment to sell his automobile.

Defendant's first contention here is that his conviction was not established beyond a reasonable doubt, asserting that conflicts and discrepancies in the testimony of Alvarez seriously weakened his credibility as the only witness to the robbery; and that the identification of defendant raised doubt as to his guilt. Defendant questions the adequacy of Alvarez's testimony concerning the presence of Jones in the apartment when Leabert Cobb and Alvarez arrived; the uncertainty as to whether the apartment was on the third or fourth floor; whether there was a store or only a store front at 1319 Newberry; the precise time that Jones returned from her errand; the discrepancy in Alvarez's testimony as to the clothes Leabert Cobb was wearing; the precise moment of arrival of defendant; the alleged confused nature of Alvarez's testimony during cross-examination, and the fact that the knife was not introduced.

We shall first discuss the issue of identification of the defendant by Alvarez. It is apparent from the testimony that Alvarez had opportunity to observe both Cobbs in the apartment at close range. Although the room was referred to as "dark," Alvarez declared that there was an outside window. He described the room in detail, indicating that there was a table, an icebox, a bed, and that there was no rug on the floor. He also depicted the actions of defendant when the latter attacked Alvarez with a knife. It is reasonable to believe that under these circumstances Alvarez would have been able to identify his assailant and the latter's accomplice. Moreover, Alvarez identified them (1) when he described them to the detectives, (2) at the pretrial hearings and (3) at the trial. Furthermore, Jones and Dreams testified that both Cobbs were present in Dreams' apartment on the afternoon of the robbery; more specifically, Dreams stated that he broke up the scuffling between defendant and Alvarez.

People v. Cox, 22 Ill.2d 534, 177 N.E.2d 211, indicates that the testimony of one witness, if it is positive and the witness is credible, is sufficient to convict even though contradicted by the accused. People v. Arnold, 27 Ill.2d 294, 189 N.E.2d 241, elaborates on the identification requirements necessary to sustain a conviction for armed robbery. The requisites are that (1) the complaining witness is at all times unbroken in his identification of the accused and (2) the accused's alibi is not convincing. In the case at bar defendant's assertion that he did not visit the Newberry apartment on September 12, 1962, is not plausible. Alvarez's testimony as to defendant's presence is corroborated by Jones who stated that on her return from the errand Dreams ejected defendant and Leabert Cobb from the apartment, and by Dreams who asserted that he broke up a struggle between defendant and Alvarez.

The evidence indicates that Alvarez never deviated in his identification of defendant. There were some minor variations in his testimony, as recited above. These are, however, minor variations or indicative of a lack of recollection as to facets surrounding the robbery and do not significantly impair the identification of defendant. At most, the variations affect the credibility of the complaining ...


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