Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. WALTER P. DAHL, Judge, presiding. Affirmed.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 17, 1965.
Defendant appeals from his conviction for the crime of attempt (to commit robbery) and a sentence of two to six years after a bench trial. *fn1 Ill Rev Stats 1963, c 38, § 8-4. He contends that the evidence did not prove his guilt beyond a reasonable doubt.
The complainant, Dr. Max Roseman, testified that he was an optometrist with an office at 3718 West 16th Street. As set forth in the abstract he described what happened:
On December 19, 1963 around 5:00 or 5:30, two men walked into my office and I asked if I could help them. I was at my desk writing. I see one of the men who came into my office that day. It is defendant Reese. I walked up to him and he said, "This is a stickup." He had his hand in his pocket. He turned me around when I walked to the back of the office. He was right with me. When I got to the back of the office, I yelled, "John." I had a porter back there in the office working in the back room and his name is John, and I yelled "John" and John grabbed a gun, John took over from there and shot Mr. Reese. After the shot was fired, Mr. Reese fell to the floor. John's real name is John Henry Dale. After Reese fell on the floor, the other man ran out of the office.
I then called the police. The police subsequently arrived on the scene. They took Reese away with him in an ambulance. Defendant Reese was struck by the shot by John. He was hit in the right temple. After he was struck he was laying on the floor unconscious.
On cross-examination he stated:
On December 19, 1963 when the two men came into this office they came in together. The first man turned around and spoke to the second man and then turned around and faced me, so evidently they both knew each other. They came in almost simultaneously. I had never seen Reese prior to that occasion. I do not recall him ever to coming and asking me the price of glasses. I never talked to him before.
Defendant, twenty-three years old, testified that his house is approximately five blocks from the doctor's office and that he had lived in the vicinity for about thirteen years; that he had been in the doctor's office about a month prior to December 19 because he needed glasses in his tailoring business, but he did not purchase any; that he had talked to the doctor about pricing eyeglass frames; that on December 19 he went to purchase glasses; that he had $25 in his wallet and $3.33 in his back pants pocket. He further testified:
When I walked in the store I had a conversation with Dr. Roseman. I asked him would it be possible for me to purchase a pair of glasses. Dr. Roseman answered me. He told me to go around to his office. The store is built in three sections. As we went around to his office, evidently someone else had come into the doctor's office. I did see someone else coming in. Actually, he maybe had come in, he must have been sitting in the front office, got up and came around. The guy announced the stickup. After that he pushed me into the doctor and the fellow came out shooting. The other guy pushed me into the doctor. I did not tell the doctor it was a stickup. I did not attempt to stick up the doctor. I did not attempt to rob the doctor.
I had never been with the other person prior to this occurrence. I did not know the other person. I did not have any weapon on me that day. Yes, I heard the doctor testify that there was some other person by the name of Dale that shot me. I do know Dale personally. I knew Dale since about 1956. About seven years. I don't know if he was in the store the last time I was there. I had never had a conversation with Dale at any time in any enterprise or business office. I just knew him as a neighbor. I know that he knew me. He had talked to me before. I had heard him call me Jerry before. That is what everyone in the neighborhood calls me. I never went out socially with Dale. He is definitely not in my age bracket.
I saw Dale immediately prior to the shooting when he emerged from the back. He had a gun in his hand. He appeared to be intoxicated. What I mean by that he wasn't acting normal at all. He came out, he was in a wild frenzy, you know, just went to shooting.
John Henry Dale was called as defendant's witness. His testimony was rambling but in essence he testified that he was working for the doctor; that on December 19 he was in the back of the store; that he heard "stickup" and picked up a gun from a dresser; that when he came to the front of the store defendant was holding the doctor with both hands and pushing him back with both hands; that another fellow was in back of defendant; that he reached over the doctor and shot at the other fellow who he figured had a gun; that he missed; that the doctor was in front of defendant and when defendant moved his head, the witness shot him; and that defendant was a foot or foot and a half away when witness shot him. Dale also testified that he had seen defendant before but did not know him except by sight; that he (Dale) had not been drinking; that he gave a statement to the police; that he was not arrested.
Lawrence Herron, a police officer, testified that when he arrived on the scene Dr. Roseman was there and defendant was on the floor, bleeding; that he searched defendant and found nothing in his pockets; that he was informed that a bag on the floor containing some raw material for clothing belonged to defendant; that defendant was not wearing glasses.
Officer Bryan Connolly testified that when defendant was receiving first aid at Mt. Sinai Hospital defendant stated that he "wanted to buy glasses." He further testified, however, that at 10 p.m. that evening at Cook County Hospital defendant stated: . . . he had been walking along the street and an unknown colored man came up behind him, placed an object in his back and told him to walk ahead of him into the store. He said he didn't know ...