Appeals from the Circuit Court of Cook County, Criminal
Division; the Hon. RICHARD A. HAREWOOD, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
This is an appeal from two judgments of guilty, one by the court in a trial without a jury and one on a finding of guilty after a jury trial. The parties hereto have in their briefs included both cases under the mistaken assumption that these cases had been consolidated in this court. We find no record in this court of a consolidation of these cases, nor would a consolidation order have been proper in these cases. We will consider each of these cases in this opinion.
The defendant contends that the State failed to prove the defendant guilty beyond a reasonable doubt as to either of the indictments.
The facts adduced at the trial will be set out separately as to each indictment.
This case was tried before the court on December 2, 1963, a jury having been waived. The evidence showed that at 10:15 a.m. on October 11, 1963, Michael Latizio was making deliveries at 1601 South Kedzie, Chicago. As he was returning to his truck he saw a group of men on the street harassing another delivery man. Michael Latizio entered his truck and someone entered and grabbed him from behind. It is argued by the defense in this case that he was not able to identify the defendant except from having seen him with other men on the street, and that he saw these men for only five seconds. The record does not bear out this statement by the defense. The record indicates that as Latizio was returning to his truck he saw the defendant with several other persons harassing another truck driver and at that time he observed them for only five or six seconds. However, Latizio testified as follows: "I recognized his voice, sir. He was drinking. You couldn't miss him. I couldn't miss him out of a hundred people." Latizio also testified, when asked whether he had seen the defendant's face clearly, that "When I walked by, I did" and that "I knew his face." He was asked if he had seen the defendant again after seeing him with a group of four or five men in the street, and his answer was, "I saw him when he held me up" and "I could see him from a side view." Again the witness testified, "I identified him because I saw him when I walked across the street. Then I saw him at a side view, when he held me up." The testimony of the complaining witness was unshaken on cross-examination.
In defendant's statement of facts in his brief he states that Latizio did not know if the assailant wore glasses. The record shows that Latizio testified that the defendant did not have glasses. The evidence showed that the man who robbed Latizio put a knife to his neck and demanded his money. The robber thereafter fled with $21.34.
Police Officer John Cioe arrested the defendant on October 11, 1963, and found a knife in his pocket. The arrest took place at 1533 South Sawyer. The police officer had been alerted to look for a man with bushy hair, which the defendant had. The officer testified that he arrested the defendant at 11:15 a.m. on October 11, 1963, and that he had in his possession $30.33 and a knife.
The defendant testified that he was employed as a janitor at 3140 West 15th Street, and that during the early morning hours of October 11, he was playing craps. He had won some money and had left the game about 8:30 a.m. to do his janitorial work. He then went to Dobie's Den, a tavern. When he left there he walked around the neighborhood as he did every day. The defendant denied that he robbed Michael Latizio. The defendant in the statement of facts in his brief failed to note that he testified that he was arrested about 11:00 or 11:15 a.m. on October 11, 1963.
This case was tried before a jury on January 28, 1964.
On October 11, 1963, Grace Austin opened up a fish store located at 3206 West 16th at about 9:00 or 9:30 in the morning. At 9:40 a.m. a person entered the store and asked for some salmon. After about a minute, the person who entered jumped over the counter with his hand in his pocket and said it was a stickup. He took her money with one hand while the other remained in his pocket. Grace Austin, the complaining witness, did not see a weapon, and the assailant fled taking $50. Grace Austin positively identified the defendant as the person who entered her store and had asked for two pounds of jacks. While she was weighing the fish the defendant leaped over the counter and announced that it was a stickup. During the greater portion of this period, which lasted four or five minutes, the victim was facing the defendant in a well-lighted store at distances ranging from four to nine feet.
Police Officer Cioe, who had testified in the first indictment against the same defendant, No. 63-2848, that he had arrested the defendant at 11:15 a.m., testified in this second case involving indictment No. 63-2849, that he arrested the defendant at 10:00 a.m. (Obviously an error, because both the defendant and the police officer were in accord as to the time of arrest in the first trial.) The defendant denied being the assailant in this trial as well.
The argument of the defendant in many instances is not based upon facts appearing in the record, and this court will ignore that part of the argument. The defendant also has failed to make mention in his brief that in this second trial the defendant testified on cross-examination that he left Dobby's Den, a tavern, about 10:45 a.m. on October 11, 1963, the date of the robberies. (Dobby's Den is spelled in this manner in the record in the trial of the defendant on indictment No. 63-2849, and is spelled Dobie's Den in the record of the trial ...