Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. CHARLES R. BARRETT, Judge, presiding.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
JUDGMENT: After a jury trial and a verdict of guilty by the jury, the court imposed a sentence of one to three years.
POINTS RAISED ON APPEAL: Defendant contends he was denied a fair trial by the presentation to the jury of evidence of defendant's prior conviction; and the refusal of the court to properly instruct the jury upon the effect of defendant's prior conviction.
EVIDENCE: No question has been raised in this appeal with reference to the evidence. It can be summarized as follows: On February 9, 1964, at 1:30 a.m., Marshall Dickens was driving his cab south on Clark Street near Grand Avenue, when two men hailed him and he stopped; the men got into the cab and one of them (the defendant) gave their destination as 1530 West Hastings. The defendant was seated on the right side of the rear seat; as they drove along, he and the driver discussed the latter's asthmatic condition, and the defendant recommended a pill for relief. When they reached Hastings, after further directions from the defendant, the defendant's companion put a gun to the driver's neck and told him to drive up a dead-end alley. There was a light in the alley and the driver looked into the rear seat, telling the men to take everything but not to hurt him. The defendant leaned over the front seat, took money from the changer and from the driver's pocket; the other man took money from the driver's billfold, and the defendant took his wristwatch. The money amounted to about $58. The driver observed the defendant when he first entered the cab, also through the rearview mirror as they discussed his asthma, and when he robbed the driver and left the cab. The driver gave police a description of defendant's height, weight and the clothes he was wearing.
On February 21, 1964, at 8:00 p.m., the driver identified the defendant as the man who robbed him. The defendant was in a lineup of five men when identified; he denied robbing the cabdriver and testified that he thought he was at a party at Cullerton and Pulaski until 1:30 a.m., on the night of the robbery. The defendant was the only person to testify on his behalf.
Over the objection of the defendant, the State introduced into evidence a record of a conviction of robbery by the defendant on August 18, 1964, showing that the defendant, after a bench trial, was found guilty and sentenced to imprisonment for a term of not less than one nor more than three years, from which conviction the defendant filed a notice of appeal, and that appeal is now pending.
The defendant argues that this court should hold unconstitutional section 155-1 of chapter 38, Illinois Revised Statutes 1963, which provides that a defendant in a criminal case may testify in his own behalf, but that a prior conviction may be shown for the purpose of affecting his credibility. This statute has been in effect for a long period of time in this State, and no question has heretofore been raised or passed on by the Supreme Court with regard to the constitutionality of the statute. In People v. Barnes, 26 Ill.2d 563, 188 N.E.2d 7, a case decided in February 1963, the court said:
"Conviction of crimes can, of course, be shown for the purpose of affecting the credibility of a witness (Ill Rev Stats 1959, chap 38, par 734), and the prior conviction of a witness other than a defendant may be shown on cross-examination. . . ."
The defendant here argues that when a defendant becomes a witness in his own case, it is logical for the court to hold that the introduction of the record of a former conviction (unless for perjury or some similar offense) ought not be considered as affecting the defendant's credibility. The question of whether or not the provision is logical is a matter that should be determined by the legislature, and we will make no statement whatsoever with regard to that contention.
At the trial when the defendant was objecting to the introduction of the record of prior conviction, no constitutional question was raised. Under those circumstances, no constitutional question can be urged in this court. People v. Valentine, 60 ...