Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. CHARLES R. BARRETT, Judge, presiding. Judgment
of conviction affirmed.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
OFFENSE CHARGED IN THE INDICTMENT
Armed robbery. Ill Rev Stats, 1963, c 38, §§ 18-1(a) and 18-2(a).
After a jury verdict finding defendant guilty, the court imposed a sentence of 30 to 50 years.
(1) The charge was not proved beyond a reasonable doubt.
(2) Defendant was prejudiced by the State's Attorney's closing argument.
(3) Defendant was prejudiced by the admission into evidence of the co-defendant's confession.
(4) The sentence is excessive.
The facts are essentially uncontroverted.
Defendant Carver entered the Fifth Avenue Grill at about noon on April 25, 1964 and seated himself on the stool nearest to the kitchen and farthest from the door. His order was taken by James Perkins, owner of the grill. A few minutes later, co-defendant Cook *fn1 entered and sat down near the door, also placing an order with Perkins. The latter then went into the kitchen and, when he returned, was confronted by Carver who had a gun in his hand and was pointing it at Perkins. Cook had also drawn a gun and had stationed himself behind the curtain at the front door. Carver announced, "[t]his is a stick up" and ordered Perkins and several young children into a small office behind the grill, where he had them lie down on the floor. Perkins informed Carver that all the money he had was in a money bag on the couch. Carver, not satisfied with what he found in the bag, asked where the rest of the money was hidden. He then ripped open Perkins' trouser pocket and extracted a wallet containing ten dollars.
At this point Cook called to Carver that one of the children had escaped the premises, but Carver told Cook that that was Cook's concern. Carver then said to Perkins, "I am going to ask you one more time, where is that money?" *fn2 When Perkins denied having any more, Carver cocked his gun and ordered Perkins to turn his head away. Perkins testified that he complied immediately and when he had done so he "heard the thing snap." Just then Cook cried out, "[t]hey are coming" and the police arrived. Officer Guzzoffi entered and saw two men, whom he identified as Carver and Cook, standing in the back room with guns in their hands. Cook was apprehended at once and was identified by Perkins as one of the robbers.
Carver, not heeding the officer's order to surrender, ran out the back door to the alley. Shortly before that moment, Officers Roney and Johnson, cruising the neighborhood, received a radio call that a robbery was in progress. Roney then saw Carver, wearing a three-quarter length black leather coat, black trousers and white shirt, and carrying a revolver and a money bag while running from the rear of the building. Roney's order to halt was ignored, so he fired three shots at Carver, who then turned into a yard, seized another man and pushed him into the entrance of an apartment building. Roney followed and proceeded to the third floor where he was admitted to an apartment by Florence Vance who gave permission for a search of her premises. Carver was in the apartment, now dressed in a red sweater, and putting on an appearance of being at home. He said that he lived there with relatives and was eating his dinner, but he was breathing heavily and was identified by Roney as the man he had been pursuing. The police found a money bag, a gun and a black leather coat in the apartment. All these items were identified by Roney as the ones he had seen on Carver and in his possession.
When the gun was found by Roney it was fully loaded and the bullet in the firing position bore a dent on its primer indicating, according to police testimony, that it had been struck by the hammer but had failed to discharge.
Carver was arrested at the apartment and taken to the grill where Perkins made a positive identification ...