Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EDWARD E. PLUSDRAK, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
This is an appeal from a conviction of burglary. After a jury trial defendant was sentenced to a term of five to fifteen years in the penitentiary.
Defendant contends on appeal that he was not proven guilty beyond a reasonable doubt; that the jury should not have been given an instruction on flight, and that defendant was denied a fair trial due to misconduct of the prosecutor and improper admonition by the court. Defendant raised another point based on an allegedly prejudicial remark of the trial judge as shown in the record. An additional certification of the Report of Proceedings was filed which eliminated the prejudicial word which was the basis for this point. This court ordered that the record be sent back to the trial court and that, if it did not accurately disclose what had occurred there, it should be made to conform to the truth in conformity with Supreme Court Rule 329. A certified Report of Proceedings on that order was filed in this court which shows that no prejudicial remark was made and therefore defendant's point is not tenable.
Mrs. Margaret Byrne testified that on June 15, 1965, she lived at 7626 Cregier with her three children. On that date she went to bed about 11 or 11:30 p.m., but was later awakened by a noise in the house. She called to her older son, William, and said "Someone's in the house." She saw the light of a flashlight shining in the dining room. She was momentarily blinded by the light and then heard someone run out the back of the house, chased by her son.
She also testified that about $7, including a $5 bill, a $1 bill and some change, was missing from her wallet which had been left on the dining room table.
William Byrne testified that he was awakened about 2:30 a.m. by his mother's screams. He saw a shadow in the living room. He chased the person through the house. When he reached the back porch he saw the man in the alley. He was able to see that the figure was a male Negro about 5'8" wearing a tan sport coat and dark pants.
Instead of going after the figure Byrne went back into the house to see if anyone else was there. He then ran out the front door and down the street, parallel to the alley in which he had last seen the burglar. As he neared the corner of 77th Street he again saw the figure (wearing the same coat and pants) heading east.
He returned home and gave a description of the figure to police. Shortly thereafter, as a patrol car approached 75th and Constance (a few blocks from the Byrne home), they observed a male Negro (defendant) in a tan coat and dark pants. They alighted from the car and followed the man into an alley. Officer Laughlin hollered to the man to halt, announced he was a police officer and fired a warning shot. Defendant ran away from the officer into a yard. When the officer reached the gate to the yard defendant changed direction and headed towards the officer with his hand raised and holding a flashlight. He slipped on the grass, dropped the flashlight and was taken into custody.
Defendant was taken to the Byrne home. William Byrne testified that the person in police custody was the same figure he had seen earlier and was wearing the same coat and pants. Defendant was searched in front of the Byrne house and in his clenched fist were found two crumpled bills, a $5 bill and a $1 bill. Some small change was found in his pocket.
Defendant contends that he was not proven guilty beyond a reasonable doubt. In support of this he claims that there was no actual identification of him by any witness and that an improper identification was allowed at trial and was supported by inadmissible hearsay testimony.
William Byrne testified that, while he had not seen defendant's face, he had seen his general build and the clothing he wore. These were the bases for his identification of the defendant the night of the burglary shortly after the crime was committed. While this may by itself seem weak, this weakness does not make it valueless and it was some evidence of Watson's guilt. Defendant has cited cases in which convictions were reversed because of vague and doubtful identifications but those identifications were the only evidence connecting those defendants with the crimes of which they were accused. In the case before us there is more, albeit circumstantial, evidence. Watson was found in the neighborhood of the crime soon after it took place, and on his person were found a flashlight and money of the same denomination as Mrs. Byrne said was missing from her wallet. The court in People v. Lofton, 64 Ill. App.2d 238, 243, 212 N.E.2d 705, stated:
"A conviction based on circumstantial evidence may be upheld where the proof of circumstances leads on the whole to a satisfactory conclusion and produces a reasonable and moral certainty that the defendant committed the crime as charged."
Looking at the circumstantial evidence and the identification, which is entitled to some weight, we cannot say Watson's guilt was not proven beyond a reasonable doubt.
Defendant also claims that it was prejudicial and reversible error for the court to allow Byrne to testify that defendant was the same man as the one he saw in police custody after the crime. While this practice may not be commendable, the jury could certainly distinguish the identifications, and recognize this as merely testimony that this was the man ...