Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EUGENE L. WACHOWSKI, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Defendant was convicted on two charges of armed robbery and received sentences of two to seven years on each, which sentences were to run concurrently. This case was tried by the court without a jury.
It will be necessary to separate the charges by indictment number and the victim.
Indictment No. 65-804 Victim Richard Budnik
The victim, Richard Budnik, testified that on March 2, 1965, at about 6:00 o'clock in the evening, he was near the intersection of 21st Street and Michigan Avenue. He had parked his car in a parking lot and then proceeded toward the Chicago Technical College at 2000 South Michigan Avenue. He was near 2036 South Michigan Avenue when he was attacked by two male Negroes. As he approached a doorway the two male Negroes, who had been walking ahead of him, turned around and accosted him. The defendant had a knife in his hand and one of the men said, "Give me your money, man." The defendant held the knife to Budnik's stomach and took the money and his wristwatch. Budnik also testified that his stomach was cut approximately six inches but did not draw blood. It was more like a scratch. The defendant took approximately $10 or $20 in United States currency. The value of the wristwatch was approximately $100. Budnik then proceeded toward the school and the defendant and his accomplice ran south. At the school he called the police, to whom he made a full report.
On March 8, 1965, he had occasion to be at Detective Area 1 Robbery, where a showup was held between 6:00 and 6:30 p.m. When asked if he saw anyone there he knew, he answered that he saw the defendant Dixon. Another showup was held between 10:00 and 11:00 o'clock that night. There were five or six men in the showup. Budnik identified the defendant a second time. He testified that after the second showup he had a conversation with the defendant in the presence of Detective Bonham and "a Chinese fellow." Budnik testified that he asked the defendant what happened to his watch and the defendant told him that he had sold a gold watch, Lord Elgin, which was Budnik's watch, someplace on 63rd Street. When Budnik was asked if he was certain that the defendant was the man, he answered in the affirmative. Budnik further testified as to having given a previous approximate description of the two Negroes who robbed him. He said both of them wore black leather jackets, about three-quarter length; that one definitely had a hat. It looked like he had a mustache and a small beard. This man was the shorter of the two and is the defendant here. He wasn't sure whether it was a mustache or whether the defendant just hadn't shaved, and had a beard. He also described the defendant as being between 5'8" and 5'11".
Police Officer Hill testified that after the police lineup Budnik and defendant were standing face to face and the defendant told Budnik that he took the watch that belonged to Budnik, and that the defendant said he had pawned this watch in a pawnshop on 63rd Street.
The defendant Dixon denied he committed the armed robbery of Budnik and said that he was at 26th and Prairie on March 2, 1965, where a friend named Joseph Banks lived. He also denied having admitted the taking of the watch from Budnik. He denied also having admitted to Budnik in the presence of police officers that he had taken the watch or had pawned the watch in a pawnshop on 63rd Street.
The defendant contends (1) that the trial judge erred in cross-examining the defendant, and (2) the defendant was not proven guilty beyond all reasonable doubt of the charge of armed robbery.
[1-3] As to the first point, the Supreme Court said in People v. Trefonas, 9 Ill.2d 92, 100, 136 N.E.2d 817, "The extent to which a judge may indulge in the examination of witnesses largely rests in his discretion but in its exercise he must not forget the function of a judge and assume that of an advocate." The court in this bench trial asked a few questions of the defendant while he was a witness. The questions asked by the court were where he had been on two dates, concerning which there had been testimony, and how he remembered his whereabouts on those two dates. The only other significant questions put to the defendant by the court were whether he believed that the police officers and the victim were lying when they testified that the defendant had admitted in their presence that the defendant had held up Budnik on March 2, and that the watch he had taken from Budnik he had pawned in a pawnshop on 63rd Street. We are satisfied that the court did not err when it put these few questions to the defendant, and such questioning cannot be construed as cross-examination, nor do we feel that by the questioning by the judge, he had in any way assumed the role of prosecutor. The transcript covers 114 pages of testimony. The questioning by the court, which was objected to, covers approximately two and one-half pages. There is nothing in this record to indicate that the court at any time forgot the function of a judge, but it indicates rather that he merely inquired of the defendant as to his version of the case in order to arrive at his decision. A trial judge has the right to question witnesses in order to elicit the truth or to bring enlightenment on material issues which seem obscure. People v. Palmer, 27 Ill.2d 311, 189 N.E.2d 265; People v. Wesley, 18 Ill.2d 138, 163 N.E.2d 500. The length or nature of such examination depends on the circumstances of the case and even a rather extensive examination may be justified if the court has reason to believe that a witness is not telling the truth in a non-jury case. People v. Giacomino, 347 Ill. 523, 180 NE 437. The questions put by the court did not indicate bias or prejudice on the part of the judge.
As to the second point raised by the defendant, namely, that the defendant was not proven guilty beyond all reasonable doubt, the defendant urges that on cross-examination of Budnik he was unable to give an accurate description of the defendant to the police immediately after the robbery. It is contended by the defendant that Budnik was not able to state with certainty whether the defendant had a mustache or a beard or both a mustache and beard or just needed a shave. He did not know the man's exact height or what type of head covering he was wearing. He also points out that Budnik was uncertain in his identification of the defendant, and had the defendant put on a black leather coat, and did not identify him definitely until after the coat had been placed on the defendant. Budnik, however, testified that he identified and picked out the defendant from a lineup of five to six men at the police station on March 8, 1965, at 6:00 to 6:30 p.m., and again at 10:00 to 11:00 p.m. on the same date; that after the second police lineup the defendant, in his presence, admitted selling the victim's Elgin watch.
Police Officer Hill testified that in his presence the defendant had admitted he had taken the watch belonging to Budnik and pawned it in a pawnshop on 63rd Street. The testimony of one witness as to identification, if positive, and the witness credible, is sufficient to convict, even though the testimony is contradicted by the accused. People v. Williams, 1 Ill.2d 178, 115 N.E.2d 250; People v. Williams, 12 Ill.2d 80, 145 N.E.2d 29. The record amply shows that the complaining witness had opportunity to observe the defendant during the commission of the crime, and at the trial the complaining witness positively identified the defendant both on direct and cross-examination. The identification of the defendant by the victim was clear, positive and convincing and was corroborated by the oral confession of the defendant that he had taken the watch from Budnik and pawned it. The defendant argued that his identification by Budnik was positive only after a leather jacket had been placed on the defendant. In People v. Pecho, 362 Ill. 568, 573, 200 N.E. 860, the court said:
"The identification of the defendants is not shown to have been impaired by the method of having them lined up with other persons at the detective bureau. The hat was a part of the clothing worn by one of the robbers and to supply an additional identifying element it was placed on the head of one of the defendants at the request of the person robbed. It does not appear why such action would be improper. . . . The circumstances under which the identification was made were before the jury and at most would affect only the credibility of the witnesses. . . . In view of the positive ...