Appeal from the Criminal Court of Cook County; the Hon.
RICHARD A. HAREWOOD, Judge, presiding. Affirmed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Rehearing denied August 18, 1967.
After a jury trial the defendant, Robert Ellis, was convicted of burglary and robbery and received a sentence for each crime of not less than five nor more than ten years in the penitentiary. The sentences were to run concurrently. Defendant filed a writ of error in the Supreme Court and the case was transferred to this court.
1. Defendant did not receive a fair trial because:
(a) Defendant's written motion to suppress a revolver was erroneously denied;
(b) The jury was erroneously instructed on the defense of alibi;
(c) Cross-examination of the defendant by the prosecution was improper and prejudicial; and
(d) A scarf was erroneously introduced into evidence.
2. Defendant was not proven guilty beyond a reasonable doubt.
Defendant was indicted and tried for burglarizing the ground floor apartment at 1016 North La Salle Street in Chicago, Illinois. During the course of the burglary defendant allegedly, with force, took a gun from the hand of Dr. Delphine Bartosik (one of the occupants of the apartment), wherefore he was indicted and tried at the same trial for robbery. The apartment in question was leased by four female doctors, only two of whom (Dr. Bartosik and Dr. Margaret O'Neal) were present therein at the time of the crimes.
Dr. Bartosik testified that on September 14, 1962, at approximately 6:30 a.m. she was awakened by a noise and discovered the defendant standing three or four feet from her bed and holding a knife in his hand. Defendant wore a dark mesh-like material over his head. However, a lamp had remained turned on during the night and therefore, despite the face covering, Dr. Bartosik "was able to distinguish his features quite well." Defendant warned her not to scream, directed her to lie on her stomach, and then tied her hands, placed a gag in her mouth and placed a pillow case on her head.
Defendant then proceeded into the kitchen, where he made noises which awakened Dr. O'Neal. The latter sat up in bed and turned on her light. She described the burglar, who then entered her room, as being approximately five feet six inches tall and thin; he had a knife in his hand and a thin material over his face which did not distort ...