Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. RICHARD A. HAREWOOD, Judge, presiding.
Judgments of conviction affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Defendant, Charles T. Brown, was jointly indicted with James E. McIntyre and Leonard Witherspoon for the offense of robbery. McIntyre pleaded guilty and testified for the State. After a joint bench trial, Brown and Witherspoon were found guilty, and each was sentenced for a term of five to ten years. Brown and Witherspoon filed separate appeals based on different grounds, which are consolidated in one opinion for convenience and clarity.
At about 5:00 a.m. on November 10, 1963, the complaining witness, Elgin Richard Dickerson, was asleep, riding on a southbound elevated train in Chicago. He awoke and saw Witherspoon with his wallet, taking money from it. A second man (defendant Brown) was taking off Dickerson's shoes. A third man (McIntyre) was standing over Dickerson beside Brown. Dickerson reached for his wallet, and Witherspoon "hit me under my left eye, with his fist. I fell back in the seat. . . . They take my money out, threw the wallet down, got off at 55th Street. I told the conductor what happened and he told me to report it. . . . Around 7:00 a.m. November 10, 1963, I went to the 2nd District Police Station. Officers asked me to look at some fellows. I see this Brown, defendant in this case. I had around $30.00. I did not give anyone permission to take that money from me. I had seen Leonard Witherspoon before, on the Subway train. I did not know his name. I had seen Charles Brown before on the Subway. I did not know his name."
On cross-examination, Dickerson testified he had been in a tavern with two friends, and when he left the tavern, "I had around $28 or $30. I had two 10's, I had two 5's and some 1's. I can't exactly remember. That is a long time. . . . I dozed off. I wasn't drunk, wasn't feeling high, I didn't drink that much. I was more tired than drunk. I was awakened by three men. . . . I know the men by seeing them. . . . Yes, I actually did see Witherspoon take the money from my wallet."
In testifying for the State, McIntyre said that on November 10, he was on a southbound elevated train with Brown and Witherspoon. Dickerson was asleep, and Brown and Witherspoon were trying to pick his pockets. "I didn't see either of them take anything out of his pockets. I was lookout, watching both ways. . . . Dickerson woke up, and well they hit him. Leonard Witherspoon. We hurried and got off. . . . No, I did not receive any money taken from Dickerson."
A CTA police officer testified he knew the three defendants by name. On November 10, 1963, at approximately 5:30 a.m., he first observed them standing on the 58th Street platform. After he and his partner had proceeded to the 61st Street station and returned to the 58th Street station, they stood on the 58th Street platform for approximately fifteen minutes until another southbound train had come into the station. In the front car of this train, the witness "saw Brown and Witherspoon . . . holding this man down on the seat, and Brown was going through the man's pockets." (This is not the offense with which we are here concerned.) Brown and Witherspoon saw the officer and ran off the train. After a short chase, Brown and Witherspoon were captured and taken into the 2nd District Police Station. The officer was present when Dickerson later made his identification.
Another witness for the State, a Chicago police officer, testified that he searched defendants Brown and Witherspoon in the police station at 48th and Wabash Avenue and found $12 on Brown's person and $18 on Witherspoon. On cross-examination, he said the total amount found was $30, "which included 15 one dollar bills."
Defendant Leonard Witherspoon testified that he had known Dickerson since 1956 "He was a pickpocket with me." He denied seeing Dickerson on the train, taking his wallet or money, or that he hit him.
Defendant Brown contends there is reasonable doubt of his guilt because (1) of his failure to possess the fruits of the crime; (2) Brown and Witherspoon never left the elevated structure and when arrested 45 minutes after the alleged robbery, they had $30 between them, which included 15 singles, and "the complaining witness could not have had fifteen singles, by his own testimony"; (3) the indictment charged the taking of $28 and a ring, and the record is silent as to the ring; (4) as McIntyre pleaded guilty, it must be assumed he robbed Dickerson of $28 and the ring and escaped with the fruits of the crime; and (5) Dickerson's identification of Brown was "ambiguous, vague and unclear."
[1-3] Authorities cited include People v. Sheppard, 402 Ill. 347, 83 N.E.2d 587 (1949), where the court said (p 351):
"In criminal cases it is the duty of this court to review the evidence, and, if there is not sufficient credible evidence, if it is improbable or unsatisfactory, or not sufficient to remove all reasonable doubt of defendant's guilt and create an abiding conviction that he is guilty, the conviction will be reversed."
"It is the duty of a court and jury to resolve all facts and circumstances in evidence on the theory of innocence rather than guilt, if that reasonably may be done, and, where the entire record leaves us, as this one does, with grave and substantial doubt of ...