Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. JOHN C. FITZGERALD, Judge, presiding. Judgment
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Defendant appeals from a conviction for armed robbery which occurred at approximately 11:00 a.m. on November 18, 1964. This charge was founded on Indictment No. 64-3621. The defendant was also tried at the same time on a charge of attempt (robbery) which occurred on November 7, 1964. This charge was contained in Indictment No. 64-3610, and the jury could not agree relative to the charges in Indictment No. 64-3610 and a mistrial was declared as to that indictment.
On appeal the defendant contends (1) that the State did not produce sufficient evidence to establish the guilt of the defendant beyond a reasonable doubt; (2) that the court erred in permitting defendant to be tried on two separate and unrelated matters for which he had been charged in two separate indictments; (3) that the court erred in failing to advise the defendant of his rights to refuse to be tried on two separate indictments; (4) that the court erred in failing to instruct the jury that the evidence presented with respect to one of the indictments should not be considered as influencing or controlling with respect to the other indictment, and (5) that the court erred in permitting evidence to be introduced at the trial which was procured directly as the result of defendant's arrest, which he claimed was in violation of his rights secured by the Fourth and Fourteenth Amendments to the Constitution of the United States.
The evidence adduced at the trial relative to indictment No. 64-3621 was as follows:
Donald Hennelly testified that he was employed as a routeman by Monarch Laundry Company; that on November 18, 1964, at 10:50 a.m. he was in his truck when a man on the sidewalk asked him if he would pick up some laundry for him. That man was the defendant. Hennelly followed him into the vestibule of a building at 415 East 80th Street. They talked along the way. When they reached the second floor landing of the building the defendant pulled a gun and put it to the side of Hennelly's head and told Hennelly to be quiet or he would kill him. Hennelly put up his hands and the defendant told him to face straight ahead on the stairway. The defendant told Hennelly he was a dope addict and that he would kill Hennelly if he called out. The defendant then took $61.50 out of both of Hennelly's pockets. The defendant ordered Hennelly to take off his shoes and trousers and the defendant threw them up to the third-floor landing. The defendant then left the building. Hennelly further testified that the lighting conditions were adequate with a big window on each landing at each floor; that he looked at the face of the defendant and observed his height, build and general characteristics, and about five minutes elapsed during the whole transaction. After the incident, Hennelly immediately phoned the police and gave them a description of the man who had robbed him. Hennelly further testified that on November 24, 1964, he attended a lineup at a police station, and Hennelly, after seeing the defendant and listening to him speak, positively identified the defendant as the robber. During the trial Hennelly again positively identified the defendant as the robber. Hennelly also testified on cross-examination, in answer to a question as to whether he told the police that the defendant was wearing a hat, that the defendant was wearing a green small-brimmed hat. At that point during the trial a one-page police report was submitted to defense counsel and purported to be the report of the police officer who arrived at the scene on November 18, 1964, at 11:00 a.m.
Police Officer Burns testified defendant was arrested at his apartment November 18, after an investigation concerning a series of robberies. At the time of the arrest the police had a description given by both Hennelly and Lindstedt. Lindstedt was the victim in Indictment No. 64-3610.
The defendant testified that the police, prior to his arrest, had an artist's conception of the robber, and one officer told the defendant it "favored" or looked like him.
The police officers who attended the lineup were also called. They testified that Mr. Hennelly had identified the defendant at the time of the lineup.
The defendant testified that on November 18, 1964, he was either at St. Leonard's House, a halfway house, instituted for the rehabilitation of ex-convicts, or his apartment, or en route between these places during the time of the robbery. He further testified that he had been stopped on the street by police officers prior to November 23, the date on which he was arrested. They asked him to get into their car and asked the defendant questions about fifteen or twenty robberies. The police officer showed the defendant an artist's conception or sketch, and the defendant told the police officer he had never seen the man. One policeman said, "He favors you." The defendant further stated that the policeman's partner disagreed. They obtained his name and address and let him go. The next time he saw the police was on November 23 when they came to his home and arrested him. The defendant stated that he let the police in and they searched him and the apartment, and did not find any money or any gun.
Father Douglas Wolfe, Director of St. Leonard's House, testified that he had a definite recollection of seeing Jennings at St. Leonard's on the evening of November 18. He also testified that he thought the defendant was at St. Leonard's in the morning, but was not sure.
[1-3] The first contention of the defendant is that he was not proven guilty beyond a reasonable doubt of the charge of armed robbery of Donald Hennelly. He argues that since the defendant's conviction was based entirely upon the identification made by the complaining witness, Mr. Hennelly, and since there was no gun found and no money found, the evidence was insufficient and the State's case had not been proven beyond a reasonable doubt. With this contention we disagree. Our courts have repeatedly held that the testimony of one witness alone, when it is positive and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused. People v. Miller, 30 Ill.2d 110, 195 N.E.2d 694; People v. Pride, 16 Ill.2d 82, 156 N.E.2d 551. Hennelly's identification of the defendant was positive and was not shaken on cross-examination. The defendant relied upon an alibi defense. The jury heard and observed the witnesses and found against the defendant. The court in People v. Carpenter, 28 Ill.2d 116, 190 N.E.2d 738, on page 122 stated:
"This court has repeatedly declared a conviction will not be disturbed unless it clearly appears that there is not sufficient credible evidence to establish the guilt of the accused beyond a reasonable doubt. Where the evidence on an issue is conflicting but legally sufficient if the prosecution's witnesses are believed, the question is for the trier of fact. (People v. Guido, 25 Ill.2d 204; People v. Glass, 16 Ill.2d 595; People v. Sain, 384 Ill. 394.)"
The question of credibility of the witnesses is to be determined by a jury, as it was in this case. The jury had the opportunity to observe the witnesses, their candor or lack of candor, and their demeanor while testifying, and this court will not interfere with that finding by the jury merely because there is conflicting testimony.
Defendant argues that there is no satisfactory explanation in the record as to why Lindstedt was called back to a second lineup. Lindstedt was the victim in Indictment No. 64-3610. The second lineup, to which the defense refers, was attended by Donald Hennelly and Bernard Lindstedt, both of whom were drivers for Monarch Laundry. Lindstedt testified that he was called back to the second lineup but that he was not required to attend it. The defendant argues that the reason for calling Lindstedt back to the second lineup is immediately obvious in that it permitted an exchange between the fellow drivers, meaning Lindstedt and Hennelly. The record, however, does not bear out ...