Appeal from the Criminal Court of Cook County; the Hon. ROBERT
L. HUNTER, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
The defendant, Frank T. Carpenter, was found guilty of robbery after a bench trial and was sentenced to the penitentiary for a term of not less than two nor more than five years. Defendant appealed directly to the Supreme Court and urged (1) that the element of force or intimidation was not proven beyond a reasonable doubt; (2) that the testimony of the identifying witnesses was in conflict and therefore the defendant was not identified beyond a reasonable doubt; and (3) that he was placed in a lineup from which he was identified without being represented by counsel prior thereto, and therefore he was deprived of due process. The Supreme Court transferred this case to the Appellate Court and stated that:
The defendant contends that the evidence was insufficient to establish his guilt, which clearly presents no constitutional issue. It is also charged that the defendant was not advised of his right to counsel before he was placed in the police lineup where he was identified. It is not contended that the defendant requested counsel prior to the lineup. Evidence as to the identification at the lineup was not objected to in the trial court. We are of the opinion that there is no substantial constitutional question involved and the motion of the defendant in error is allowed and the cause is transferred to the Appellate Court for the First District.
Therefore, only the first two grounds urged by the defendant are before this court.
Rosalie Walker testified and stated that on November 13, 1962, at approximately 1:25 p.m. she was employed by Leader Cleaners in their store located at 5101 South Michigan Avenue in Chicago, Illinois; that she was working in the back of the store but could see the counter; and that:
I was working with Jessie Hanner, a counter clerk. . . . A man walked into the store on November 13, 1962, [at about 1:25 p.m.] and I see the man is in Court [indicating the defendant, Frank T. Carpenter]. He walked in the door and the girl [referring to Jessie Hanner] was waiting on a customer. . . . As soon as she finished with the customer, then she asked him, "May I help you?" . . . The defendant's left side of his face was opposite the left side of the girl's face and after he leaned over to whisper to my co-worker she kept walking to the back. He started we seen her walking to the back, passed by me. Then he come down the counter a little piece, he says to me, "O.K., lady, this is it." I said, "What?". . . I just walked. Jessie was in the back. He said, "Come on from back there." . . . She started walking behind me. I walked to the cash register. . . . He said, "Put the money in a paper bag." I said, "I don't have no bag." He said, "Bring it to me as it is." . . . He put it [the money] in his pocket. . . . He had on a black three quarter long corduroy jacket and a brown hat. He had a mustache. I didn't see a scar on his face. . . . He was standing to my left side. . . . On November 28, 1962, I attended a lineup at the police station . . . where four or five colored men were in this lineup. I didn't pay any attention to their heights. I saw the man in that lineup that held us up. They were just standing when I walked in. The man was in line when I got there and was third from the left. . . . When I was standing at the lineup and picked out the defendant, I was able to see a scar on his face. When I walked in, I looked at his face and I knew his face. . . . He was wearing a mustache. He had on a gray hat.
On cross-examination the witness stated that:
He [defendant] said, "The money isn't yours," and I said, "No, sir, it isn't." He never told me to take it out of the cash register, but he said it wasn't mine. He then said, "Put it in a paper bag." I didn't see a gun and I didn't see a knife. He had his hand in his pocket. . . . I looked at his face. I was looking on the side. I didn't see any scar on his face. He was not facing us. He was on the side . . . . He reached over with his left hand. . . .
On redirect examination she testified that:
I gave him the money because I knew it was a stickup. He said that was it. He said, "Lady, come on up here, this is it," and I walked up. He said, "Do as I say and nobody will get hurt." He told me to put the money in a paper bag. When I gave him the money, his right hand was in his right pocket in his trouser pocket. I cannot describe exactly how his hand looked in his pocket. I can't describe it because I was afraid.
Jessie Hanner testified and corroborated the testimony of Rosalie Walker with regard to the aforesaid events in the store but stated that defendant's hand was in his coat pocket. She further testified that after she asked the defendant if she could be of assistance to him that:
He leaned over and whispered, "This is a stickup." He leaned the left side of his face toward me and my right side was closest his.
On cross-examination the witness testified that at one time during the alleged robbery the defendant was directly facing both of them from across the counter and that she did not see a scar on his face. She further stated that:
I saw him [defendant] one week before, going west, right in front of the cleaners. It was in the afternoon. . . . I think he had on a black jacket, I am not sure, but I do remember his face. I think it was the same black corduroy jacket. He had a hat on . . . . It took about ...