WRIT OF ERROR to the Circuit Court of Cook County; the Hon.
WALTER C. DAHL, Judge, presiding.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 27, 1967.
Defendant, Anthony R. Wollenberg, was tried and found guilty by a jury on two indictments, Nos. 63-638 and 63-639, each indictment containing three counts, attempted robbery, attempted murder and aggravated battery. The trial court held the last charge in each indictment merged with the greater offense of attempted murder and sentenced the defendant to 10 to 14 years and 10 to 20 years on counts I and II respectively in indictment No. 63-638 and 12 to 14 and 18 to 20 years respectively on counts I and II of indictment No. 63-639. The circuit court of Cook County further ordered that the sentences imposed run concurrently within indictments and consecutively as between indictments.
Defendant had also been convicted on a previous indictment, No. 60-2292 for armed robbery. This conviction was reversed on appeal (24 Ill.2d 350) and remanded for new trial. On retrial he was again found guilty by a jury and sentenced to 10 to 20 years, the sentence to run concurrently with the sentences imposed on indictment 63-639. Defendant appeals from all three convictions alleging, with respect to indictments 63-638 and 63-639, that his cause should have been dismissed for want of prosecution pursuant to the Four-Term Act, and that he was not proved guilty beyond a reasonable doubt. With respect to indictment 60-2292, he contends that the trial court committed prejudicial error in allowing the State to comment on his failure to testify.
The facts underlying the appeal taken from the convictions on indictments Nos. 63-638 and 63-639 are as follows:
On the evening of January 21, 1963, at approximately 10:00 P.M., Joseph and Alice Tripicchio were home watching television in their second-floor apartment located at 745 North Trumbull Avenue, Chicago. There was a knock on the door and as Tripichio opened the door a man announced, "it's a stickup". When Tripicchio attempted to close the door, the man blocked it with his foot. The intruder then shot Tripicchio once and Mrs. Tripicchio three times after which he fled with an accomplice down the stairs
Defendant Wollenberg, with Roswell John Field, Jr., and John Soukup, was indicted for the crimes arising from the above occurrence. Roswell Field pleaded guilty and testified against defendant, admitting his own guilt in the matter and the State's promise to recommend probation if he so testified. He stated that he and Soukup, on January 21, 1963, planned to burglarize the premises of his aunt, Mrs. Tripicchio. Pursuant to this plan, defendant, whom he had known for some time, was called from a tavern and he agreed to meet them there. At about 8:30 P.M., defendant entered the tavern where Soukup informed him of the plan and asked to borrow his car since theirs would not start. Defendant asked to be included in the burglary and, accordingly, he and the others drove to the Tripicchio home. However, upon finding that someone was home, they returned to the tavern to reconsider their course of action. Wollenberg, indicating he had a gun, devised a scheme to gain access to the Tripicchio apartment and to hold them up. They returned to the Tripicchio's shortly before 10:00 P.M. Soukup and defendant went upstairs to the apartment while he, Field, waited below. Field testified that thereafter he heard shots and a scream, that Soukup came running out exclaiming, "Run, the crazy fool shot", and that defendant followed Soukup out of the building.
Field further testified that he had seen defendant a week before the night of January 21, that at that time Wollenberg had in his possession a sailor's pea cap, and that on the night of the 21st he saw defendant cut holes in the cap. This cap was found on the second-floor landing outside the Tripicchio apartment by patrolman Frank Dobson, one of the investigating officers.
Tripicchio testified that the man at the door held the gun in his left hand but that he couldn't identify him. Mrs. Tripicchio stated that she saw two men standing on the landing, that the man with the gun had his face camouflaged with a lady's silk stocking and was wearing a pea cap which made his identification impossible but that the second man on the landing was the co-defendant Soukup.
Claude B. Hazen testified that he is a forensic microanalyst employed by the Chicago Police Department, that he took hairs from the pea cap found at the scene of the crime and compared them to hairs taken from the heads of the three defendants, and that, after subjecting these hairs to various scientific tests, he found the hairs taken from the cap and the hair from Wollenberg's head to be similar in every respect except for root structure. This dissimilarity, he explained, was due to the fact that the hairs in the cap had naturally fallen from the head while the hairs taken from Wollenberg's head had been forcibly removed. He further stated that although the science of hair comparison is not as exact as that of fingerprint comparison, it was his opinion that "it is very remote" that the hairs in the cap came from anyone but Wollenberg.
John Soukup testified that he saw Field in the tavern on the night of the 21st but denied planning or participating in the crimes in question. He also testified that between 8:45 and 10:00 o'clock on that night he was in a restaurant where his girl friend, Viola Bosco, worked. This alibi was corroborated by Miss Bosco.
Wollenberg, testifying in his own defense, also denied any participation in the crimes. He stated that the night of January 21, 1963, he was having a party for his son at home but that he did leave the party from time to time during the evening. He further stated that he was left-handed, and that he had a pea cap like the one found outside the Tripicchio apartment but that he had given it to Field a week before the 21st. He admitted that in July, 1945, he had been sentenced to 2 to 4 years on two charges of burglary and in February, 1950, he had been sentenced to 3 to 7 years on two charges of burglary.
In support of his argument that he was not proved guilty beyond a reasonable doubt, defendant charges that he was never sufficiently identified as the person who shot the Tripicchios. The record does disclose that the victims of the shootings were unable to identify the assailant since his features were concealed. However, there is other testimony and physical evidence in the record to sufficiently identify defendant as the assailant. Roswell Field's testimony was unequivocal. He stated that he had known defendant for some time (a fact acknowledged by defendant), and clearly described the latter's participation in the shootings, including his possession of a gun and the pea cap worn by the gunman and found outside the victims' apartment. If this testimony were believed, there can be no doubt as to the identity of the assailant. Hence, the real question involved here in determining defendant's guilt is not one of identification but rather one of the credibility and weight to be given a witness's testimony.
It is well established that the question of the credibility of witnesses and the weight to be given to their testimony is for the jury to decide. (People v. Calcaterra, 33 Ill.2d 541; People v. Gates, 29 Ill.2d 586.) And, it also well established that the testimony of an accomplice, even though it is attended with infirmities (such as malice towards the accused, promises of leniency, etc.) and uncorroborated, is sufficient to sustain a guilty finding if it satisfies the jury beyond a reasonable doubt (People v. Hansen, 28 Ill.2d 322; People v. Baker, 16 Ill.2d 364), and that we will not ...