Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. ROBERT L. HUNTER, Judge, presiding. Reversed
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.
Defendant, Theodore Wright, appeals from a conviction by jury for the crime of robbery. He seeks reversal contending the court erred in admitting hearsay and prejudicial testimony; denying him a continuance; unduly restricting cross-examination, and allowing the prosecution to make inflammatory and prejudicial argument to the jury.
A prior trial resulted in a hung jury and the matter comes here on appeal following the retrial.
On October 22, 1962, Nathaniel Jones was robbed by two men. A watch and five one-dollar bills were taken from him. On November 5, 1962, fourteen days later, Jones observed the defendant on the street, went to the nearest telephone, called the police, and continued to keep the man under surveillance. Jones hailed a roving police squad car and had the officer thereof detain the defendant until the arrival of the police officer sent out as a result of the telephone call. Defendant was placed under arrest and taken to the police station where further investigation was conducted by Detective Miller of the robbery unit. No one else was apprehended as being involved in the crime.
Jones testified that on the day of the occurrence he was in the vicinity of 50th Street and Calumet Avenue, Chicago, at approximately 4:45 p.m. While walking on 50th Street he was confronted by a man with a piece of paper in his hand who asked him for directions to the Howard Hotel. Jones told him he knew of no Howard Hotel in that vicinity and as he attempted to walk around the man, he heard a voice behind him say "this is it, a stick up." The man behind him had a pistol, and the man in front of him who had asked for the directions then brandished a knife and "shoved" it against Jones' stomach. Both men rifled his pockets, took his watch, and left after the man behind struck him on the head with the gun. Jones identified the defendant in court as the man who asked directions of him and held the knife, and said that approximately thirty seconds elapsed from the time he first saw the defendant on the street and the time the second person with the gun approached; that two or two and a half minutes transpired until his watch was taken from his wrist by the defendant. During all of the time he was looking "in an easterly direction . . . face to face" with the defendant with whom he was in body contact, and who was "standing close, within hands reach. . . ."
He further testified that the man who held the knife to his stomach was a slender Negro approximately six feet tall, between 30 and 40 years of age, in need of a haircut, with a short mustache, and "wearing a gray sport jacket with black interwoven, black or charcoal colored pants with a sweater low neck V front with a dark or black band around the outer edge of this fold that was on the front of it." The man also walked with a strut as if his feet were sore or tender. When Jones saw the defendant two weeks later, he recognized his face and his walk. He said defendant also wore the same sweater.
Defendant argues that prejudicial and incompetent hearsay evidence was admitted. The record indicates that the complaining witness, Jones, was allowed to relate a conversation with the arresting officer, Cullen, as to the identification of the defendant, in his presence, as follows:
Well, Officer Cullen asked me, "Did you call the police?" and I said, "Yes, I did," and I told him why. . . . I said, "I am the man that called the police, I was robbed." He said, "Where is the man that robbed you?" I said, "This is the man." I pointed to the defendant and he said, "Are you sure?" I said, "I am sure." He said to the man, "Come with me to the squad car." The man said to me, "Why don't you tell him like it is, man."
Then, the complaining witness was allowed to relate a conversation in defendant's presence with Officer Miller regarding identification, in substance, as follows:
I had a conversation with the defendant at the police station. Present was Officer Cullen and Officer Miller. This was a short time after the man had been apprehended. . . . When I was confronted by the investigating officer whom I later learned to be officer Miller from Robbery, he asked me could I identify the man that robbed me and I said yes. He asked the man about the charges and the man said no. By the man I am referring to Theodore Wright, the man that was in custody. [Emphasis ours.]
And again, Officer Cullen was permitted to repeat the conversations between himself and the complaining witness, Jones, as to the identification of the defendant. Officer Cullen stated that when he arrived there were a number of people present on the street including Mr. Jones, the defendant, and other police officers. He further stated that "I asked Mr. Jones the circumstances of the call and he pointed to the defendant and said `He is one of two men that held me up on a previous date.'"
Detective Miller was permitted to relate his conversation with Officer Cullen and his conversation with the complaining witness, Jones, as to the identification of the defendant made in defendant's presence. He testified as follows:
I asked Officer Cullen who placed the call for assistance for the robbery unit. Officer Cullen responded he had placed the call for assistance inasmuch as he had a robbery victim present with a possible offender and the robbery had occurred on a previous date. I also had a conversation with Mr. Nathaniel Jones at that time and the defendant was still present in the room.
I asked Mr. Jones to relate the date, the circumstances and the amount of loss and the number of people involved in his original police report. Mr. Jones stated that he had been robbed on the 22nd of October by two unknown men underneath the elevated structure on 50th Street between Calumet and Prairie Avenue; that there were two men ...