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People v. Miller

SEPTEMBER 9, 1966.

PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

JAMES HOWARD MILLER, APPELLANT.



Appeal from the Circuit Court of Cook County, Criminal Division; the Hon. IRVING LANDESMAN, Judge, presiding. Judgment of conviction affirmed.

MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

Defendant, James Howard Miller, was convicted of armed robbery after a bench trial and was sentenced to the penitentiary for a term of not less than seven nor more than fifteen years.

Contentions on Appeal

(1) Defendant was not proven guilty beyond a reasonable doubt;

(2) defendant was denied his right to examine a prior written statement of a prosecution witness to the police; and

(3) evidence introduced at the trial was obtained by means of an unconstitutional search and seizure.

Evidence

On December 14, 1962, the S & S Food and Liquor Mart in Posen, Illinois, was robbed by a man identified as the defendant by two witnesses: Carol Shute, a cashier, and Hyman Schneider, the store manager. According to the testimony defendant entered the store at 9:25 p.m. carrying a rifle and wearing a rain slicker with a hood which was on his head; defendant walked to the counter, aimed the rifle at Mrs. Shute and demanded the money in the cash register, which she gave to him in a paper bag (she estimated the amount of money to be "well over $100" but Schneider stated it was about $378). As she handed defendant the money Schneider came from the rear of the store, whereupon defendant turned and pointed the rifle at him and backed out of the store carrying the bag of money. Schneider grabbed a gun and gave chase into the parking lot but stopped when the defendant fired a shot at him. Defendant drove away in a blue automobile (either a Ford or Plymouth), whereupon he (Schneider) returned to the store and called the police. Defendant's automobile was stopped approximately thirty-five minutes later by a South Holland police officer (Ted DeGraff) because it was weaving from lane to lane. Defendant had been driving with one hand and putting something into the glove compartment with the other hand. Defendant first told the officer that he had not been drinking but later stated that he had a few drinks. After taking the defendant's license, DeGraff returned to his squad car and heard a radio broadcast; he looked at the defendant's car and "it matched somewhat"; he radioed for another squad car and defendant was arrested, after which his automobile was searched. Found in the trunk were a rifle with one empty shell in the chamber and a slicker (both of which were introduced into evidence at the trial). Both were identified by Mrs. Shute and Schneider as being similar to those used by the defendant during the robbery. The officers also found dollar bills strewn on and under the front seat and in the glove compartment of the car. None of the articles were removed from defendant's car nor was the money counted.

Defendant was taken to the South Holland police station and shortly thereafter the Posen police chief (Andrew Steczo) arrived with Hyman Schneider. Schneider identified defendant as the robber. Defendant was turned over to the Posen police after which Steczo, accompanied by Schneider, searched the defendant's car and removed the aforesaid articles therefrom (Steczo counted the money and found $116). The defendant was then transported to Posen by Steczo in the company of Schneider and, en route to the police station, they stopped at the S & S Food Mart where the defendant was identified as the robber by Mrs. Shute.

At the trial defendant denied committing the robbery. He stated that on the day of the robbery he had received and cashed his paycheck and that after work he went on a squirrel hunt from which he was returning when arrested. The defendant also presented the testimony of Helen King, paymaster at U.S. Reduction Company in East Chicago, Indiana, who stated that defendant was employed there until the week ending December 16, 1962. She could not state whether defendant was working on December 14. She testified that defendant's earnings in the weeks prior to the robbery ranged from $90 to $128 per week. (She was not asked whether defendant was paid any money on the day of the robbery.)

Opinion

[1-3] (1) We find that the evidence adduced at the trial was sufficient to prove the defendant guilty beyond a reasonable doubt. He was positively identified by two witnesses who had ample opportunity to view him. The fact that defendant was not viewed in a lineup does not destroy the competency of the identification. People v. McCall, 29 Ill.2d 292, 194 N.E.2d 222. The credibility of the witnesses in a bench trial is for the trial judge to determine. People v. Johnson, 47 Ill. App.2d 441, 198 N.E.2d 173.

(2) Defendant's contention that he was denied his right to examine a prior written statement to the police of a prosecution witness (Carol Shute) is without merit. While Mrs. Shute first stated that she gave the police a description of the robber, after some confusion she testified upon examination by the trial judge that the only written statement which she signed was given in the State's Attorney's office in connection with her Grand Jury testimony. *fn1 The judge ordered the Posen police to produce its entire file in the case but no statement was found. A defendant is entitled to the production of a statement for impeachment purposes only after a showing that such statement exists. People v. Wright, 30 Ill.2d 519, 198 N.E.2d 316; People v. Arnold, 76 Ill. App.2d 269.

While defendant also argues that the trial judge abruptly terminated the cross-examination of Chief Steczo before defense counsel was through questioning the witness concerning the possible whereabouts of Mrs. Shute's ...


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