Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT R. FRIEDLUND, Judge, presiding.
Judgments of conviction affirmed.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Armed robbery and attempt (to commit murder). *fn1
A jury verdict on January 17, 1964, found defendant guilty of armed robbery. On February 3, 1964, the court entered judgment on the verdict and sentenced defendant to a term of seven to twelve years.
Also on February 3, 1964, defendant waived a jury as to the charge of attempt to commit murder, stipulated that the evidence in the robbery case be considered as the evidence in the attempt case, and, after a finding of guilty, was given a concurrent sentence of seven to twelve years.
(1) The identity of defendant as the perpetrator of the crimes was not proved beyond a reasonable doubt.
(2) The court erred in the giving of an instruction to the jury.
(3) The trial for attempted murder was barred by the mandatory joinder provisions of the Criminal Code.
EVIDENCE ON BEHALF OF THE STATE
She had worked as a waitress at Phillips Ice Cream Parlor for fifteen years, and on March 13, 1963 was working the hours from 10:00 a.m. to midnight. At 11:40 p.m. two colored men came into the store and she served them some pie. She identified defendant as one of the men. The other man exposed a gun and told her to keep silent or she would get hurt. He then escorted her at gunpoint to the back of the shop and into the kitchen. As they entered the kitchen, her employer, I.P. Phillips, who had been standing by the kitchen window facing the shop, grabbed the man's gun; the gun fired striking Phillips in the wrist. The man called to defendant for help as he and Phillips wrestled on the floor for the gun. Defendant rushed into the kitchen and helped his friend. At this time the witness started to go out when the other man again pointed his gun at her, ordering her forward to the cash register where, still at gunpoint, he took approximately fifteen dollars. Defendant came running out with Phillips' gun in his hand. She identified this gun at the trial, testifying that she had seen it many times before. The two men were in the store about twenty minutes. The store was well lighted. At the time of the robbery defendant had on a short length coat, dark in color, which was similar to one displayed in court by the State's Attorney. (On cross-examination she said she was not sure she had seen the coat before.) Defendant also wore a black bandana on his head at the time of the robbery. She gave the police a description of the man, and later (April 10, 1963) identified defendant in a lineup of four men at the police station. He was wearing a black bandana at the time.
He is the proprietor of Phillips Ice Cream Parlor where he and Mrs. Mayes were working at approximately 11:30 p.m. on March 13, 1963. He was in the kitchen attending to closing preparations when he noticed two fellows enter the establishment. They said that they were hungry and Mrs. Mayes served them some food. One of the men was defendant. After observing the men through the peep window of the kitchen for a period of five or six minutes, the witness resumed his cleaning up chores. There followed a period of silence and suddenly the witness heard Mrs. Mayes pleading for her life. In the next instant defendant's accomplice and Mrs. Mayes entered the kitchen and the accomplice announced that this was a "stick up." Phillips slapped his assailant's gun, the gun fired and Phillips was shot, the bullet hitting him in the elbow and lodging in his spine. He fell, and in doing so reached for a revolver which he kept under his apron. A struggle ensued for possession of that gun, at which point defendant entered the kitchen to assist his friend. Defendant grabbed the gun and, ignoring Phillips' plea for his life, shot him. A blue blaze came from the gun defendant was holding. Phillips had an opportunity to observe defendant's face before he was shot. Defendant wore a dark coat and had a black scarf or bandana on his head at the time of the robbery. The coat submitted in evidence by the State was similar to that worn by defendant at the time Phillips also identified his gun.
On April 10, 1963, the police brought defendant and another man of similar appearance to Phillips' home. At that time he identified defendant as the robber of his store. He identified him first without the bandana on his head and then with the bandana on his head. Phillips described defendant's height and weight and color. He did not identify defendant by any specific facial features but he stated that "I looked right in his face" and "I noticed everything about him." Phillips was at home on April 10, having just gotten out of the hospital. Over a period ...