Appeal from the Criminal Court of Cook County; the Hon. DANIEL
A. COVELLI, Judge, presiding. Affirmed.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 30, 1967.
Marcus Payton and a co-defendant, Theodore Lewis, were indicted for the crime of armed robbery. They were tried by a jury and convicted. While testifying in their own behalf they admitted that they had served prior prison sentences for robbery and, upon the judgment of guilty in this case, Payton was sentenced to a term of 40 years to life and Lewis from 50 years to life in the penitentiary.
This appeal is by Payton alone. He contends that the evidence was insufficient to establish his guilt beyond a reasonable doubt, that improper remarks were made by the trial court in ruling upon objections and that an inflammatory argument was made by the prosecutor. He also complains that an admission made by him was treated as an oral confession and that because of this he was denied due process of law in violation of the Fourteenth Amendment to the Federal Constitution. The appeal was first taken to the Supreme Court but was transferred here with the finding that the court had no jurisdiction on direct appeal.
About 9:15 a.m., on March 21, 1960, the Cyril Lounge located in the Cyril Hotel, Chicago, was robbed by two men wearing handkerchief masks. The men, armed with automatic pistols, herded the customers against a wall and directed the bartender to unlock the door to a storeroom. When the bartender said he could not open the door, two customers were forced to tear the door from its hinges. One robber took the bartender into the room, obtained $212.27 which was in two metal boxes and placed the boxes in a cardboard box.
While the robbery was in progress a janitor, who had seen two men standing on the rear stairway earlier that morning, looked into the lounge and saw a customer with his hands raised in the air. He told the hotel's switchboard operator what he saw and she notified the police.
The police responded to the call at once; they entered the front door of the lounge a moment after the robbers departed through the rear door. After hurriedly obtaining their description the police pursued them and within two or three minutes captured two men answering the description. The men had the proceeds of the robbery in their possession, carried guns which were identified as being those used in the robbery and wore clothing identical to that worn by the robbers.
The men, Payton and Lewis, were recognized as patrons of the lounge; Lewis was a regular customer and Payton had been there once or twice before. They were identified by the janitor as the two men, then unmasked, whom he had seen on the back stairway before the robbery.
At his trial Payton testified that he and Lewis were drinking wine, which he said he had bought at the lounge that morning, in the alley back of the lounge when they noticed two men place a box under a porch at the rear of the lounge and run away. He said he and Lewis investigated the box and found that it contained a quantity of money and two guns; they were returning to the alley with the cardboard box when they were arrested. He denied committing the robbery.
The defendant claims that the evidence was wholly insufficient to establish his guilt. He points out that no witness identified him as one of the robbers, and that the case against him rests on circumstantial evidence. He stresses the fact that Lewis had a physical deformity a hump on his back which should have made him readily identifiable if he had been one of the robbers and that, as a regular customer Lewis' voice should have been known to the bartender and other habitues of the lounge, but that no witness recognized Lewis' voice or said that either robber had a hump on his back.
This argument is more pertinent to Lewis than to the defendant and Lewis' conviction was affirmed in a separate appeal, People v. Lewis, 60 Ill. App.2d 462, 210 N.E.2d 586 (1965). The defendant was at the scene of the crime minutes before it took place and was apprehended fleeing from the scene minutes after it took place. He had in his possession the property taken in the robbery. He had in his pocket a gun used in the robbery. He had on clothes which duplicated those worn by one of the robbers. His explanation for these incriminating circumstances was disbelieved by the jury. The evidence, although circumstantial, was more than sufficient to remove all reasonable doubt of his guilt.
The chief trial error urged by the defendant for the reversal of this cause is that an oral admission supposedly made by him was construed as a confession by the court and so treated by the State. In presenting its case the State referred to only one statement taken from the defendant and this pertained to the gun found in his possession. In cross-examining the policeman who testified about this statement, the defendant's attorney inquired whether the defendant had been asked other questions. The witness replied that he had asked both defendants if they would like to give a statement but they refused. The attorney persisted; he asked this question and received this answer.
"Q. In their refusal, did they deny committing the holdup?
"A. No, contrary. They admitted the holdup ...