Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. GEORGE B. WEISS, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Two indictments, charging armed robbery, were returned against defendant, Charles Kelly, and James Randall. Randall pleaded guilty and testified against defendant Kelly in a jury trial, in which the two indictments were consolidated. Defendant was found guilty on both indictments and was sentenced to the penitentiary for a period of four to eight years on each indictment, with the sentences to run concurrently.
On appeal, defendant Kelly contends the court committed prejudicial error (1) "when it denied defendant the right to cross examine a confessed accomplice with regard to whether the confessed accomplice had pending before the court an application for probation"; and (2) "when it refused to give the jury instructions explaining the law applicable to accomplice testimony."
The five witnesses who testified on behalf of the State included two victims of the alleged offenses, two arresting police officers, and the accomplice Randall, who, at the time he testified, had previously pleaded guilty to the indictments and had an application for probation pending before another trial judge.
Randall testified that on the morning of November 2, 1962, defendant Kelly, Randall and a third person named Wallace planned to hold up Spike's Tavern at 4308 South Ashland Avenue. Wallace drove defendant Kelly and Randall to Spike's Tavern and, in the course of the ride, Wallace gave Randall a gun. It was agreed that Randall would go into the tavern first and force the owner into the washroom in the tavern. Thereafter, defendant Kelly would come into the tavern and help Randall complete the holdup, since Kelly was familiar with where the money was kept. The driver was to stay in the car, and the money was to be split evenly. The reason for Randall going into the tavern first was because defendant Kelly said he was known by the tavern owner.
When they arrived near Spike's Tavern, Randall got out of the car and went into the tavern and saw the owner and two patrons. Randall ordered and drank two bottles of beer. He then walked toward the door and pulled out his revolver and told the two patrons and the owner that it was a "stick up." He ordered them into the washroom, closed the door and asked for their money. The owner gave his bankroll to Randall, and one of the patrons gave him a handful of change. Randall dropped the owner's wallet, and as Randall was reaching down to pick it up, the patrons grabbed him and his revolver. While they were wrestling for possession of the revolver, the owner ran out of the washroom to the bar to get his revolver, and as he was going behind the bar, Randall heard the owner holler, "`Say, there is another one,' and I turns and looks and I get a glimpse of Kelly going out the door." On further examination, Randall identified Kelly as the man "who rode in the car and who you saw going out of the tavern."
After defendant Kelly left the tavern, the tavern owner and the patrons captured Randall, and he was turned over to the police shortly thereafter.
The tavern owner, Stanley Howaniec, testified that after he served Randall a beer, he went to a window and noticed defendant walk by. When he turned around, Randall was pointing a gun at him and ordered him and the patrons into the washroom. While they were in the washroom, Randall demanded their wallets, and as Randall was examining Howaniec's wallet, Chester Mack, one of the patrons, pushed him toward the door, and "the door opened, and Charles Kelly over there was behind the bar. He jumped out from behind the bar. . . . he ran out the door, I ran behind the bar and got my gun and I fired four or five shots in the air, and a motorcycle policeman come in. I told him, `Got a stickup man in there.' Then he told me to call the police." He saw defendant Kelly enter the car and drive away. He further testified that he had seen Kelly before in the tavern, "the last few months he was coming in pretty regular on Friday night," and that defendant "jumped out in front of the bar and was facing the gun toward us. . . ."
Chester Mack, one of the patrons, testified that he saw Randall come into the bar and order two bottles of beer. When he got the second bottle of beer, he turned around and said, "This was a stick up, go in the ladies' washroom. . . . We got in there, he asked me for my money, so I gave him $10. . . . So he took the wallet [Howaniec's]. As he was looking through the wallet I made a grab for the gun, and Stanley and Louie helped me, and we overpowered him. At the same time the door opened up in the washroom and we could see this man now known as Kelly. I could see him coming from behind the bar, and he stood in the doorway. The door was opened in the tavern, and he was pointing a gun at us." He further testified as to the overpowering of Randall and his subsequent arrest.
Defendant testified that on the morning of November 2, 1962, he and Wallace met Randall at Randall's home, and that thereafter Wallace, Randall and defendant drove to a restaurant on 43rd Street, where they had coffee. Wallace, Randall and defendant Kelly then drove to the College Inn, where Randall got out of the car to make an application for a job. Thereafter, defendant and Wallace drove to a service station, where they purchased gasoline. At the same time they also attempted to purchase cigarettes, but the service station did not have any cigarettes. At defendant's suggestion, Wallace and defendant then drove to Spike's Tavern, in order to get cigarettes for 21 cents a package. Defendant walked into Spike's, rapped on the bar for service, and "as soon as I pecked on the bar they tumbled out the bathroom, Spike, Randall, and the other two fellows. . . . Yes, that is when I left." Defendant took nothing from the tavern.
Defendant further stated that on the night of November 1, he spoke by telephone with Randall, and at that time advised him that defendant thought he had a job for Randall. Defendant told Randall that defendant had to go to Wilson & Company the next morning because Wilson & Company had called defendant back to work. Defendant told Randall that he would see him the next morning. Defendant denied having any discussion with Randall concerning the robbery of Spike's Tavern or any other robbery.
Defendant also testified that he had been convicted of a felony in January 1962, "assault with a robbery charge." He pleaded guilty and got five years' probation and was on probation on November 2, 1962.
On cross-examination, defendant testified that he had been going into "Spike's Tavern" for about three years, "on Friday nights, payday," and had seen the tavern owner cash checks, and when Wallace drove the car "from Randall's house to Spike's Tavern at 4308 South Ashland Avenue," defendant sat in the back seat and Randall and Wallace sat in the front seat. In response to the question, "What were you and Randall talking about in that car from the time you left Randall's house until he got out of the car at the home in the vicinity of 4308 South Ashland Avenue?" defendant answered, "Talking about girls, jobs, and things like that." While he was in the tavern and the men, including Randall, came out of the washroom, he testified, "Yes, I seen a gun. They all had their hands on it. I don't know who had the gun, but all had their hands on it."
Defendant's principal contention of reversible error is grounded on the assertion that Randall's testimony was crucial to the State's case against defendant, and "defendant was prevented by the Court from inquiring as to whether Randall, an admitted accomplice and participant in the ...