Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. JOHN C. FITZGERALD, Judge, presiding.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
The defendant, David Finney, in Count I of the indictment was charged with the crime of burglary, *fn1 and in Count II with the possession of burglary tools. *fn2 The jury returned verdicts of guilty on both counts, and on September 9, 1965, the court sentenced the defendant to the penitentiary for five to seven years on Count I, and for five to seven years on Count II, the sentences to run concurrently. The evidence shows the following uncontradicted facts:
On January 16, 1965, between 8:25 and 9:00 a.m., Mrs. Jane Schumpert left her apartment at 1137 Oak Avenue in Evanston, Illinois, to drive her husband to classes at Northwestern University. She returned about fifteen minutes later, unlocked the door and entered the apartment. As she was hanging her coat in the closet near the front door she realized she was not alone; when she turned around suddenly and saw a strange man standing near her she fainted. She testified that before she fainted she noticed that the man wore a dark jacket and a cap with a bill on the front. When she regained consciousness the man was bending over cautioning her to be quiet, whispering "Shhh, be quiet," but she screamed loudly, and when sounds from the apartment above indicated that someone had heard her scream, the man left. Mrs. Schumpert immediately notified the Evanston police, and when they arrived their investigation revealed scratches on the door, indicating that entry had been made by a method known as a "case-knife job," with an object such as a knife being forced between the door and the frame.
Further testimony introduced by the State was that of two women who lived in the same court building as Mrs. Schumpert, who saw a man they identified as the defendant passing through the courtyard. Mrs. Helen Baillie testified that she was washing clothes in the basement when she saw the defendant go through the court which faced the rear of the Oak Street building; that he was wearing a brown leather jacket with a fur collar and wearing an olive green cap. Mrs. Mary Van Mensbrugge stated that she was sweeping snow from the rear porch of the building in which she lived when she noticed the defendant passing through the courtyard beneath her windows, moving from the direction of Oak Street towards Maple. Her description of his clothing was the same as that of Mrs. Baillie.
Based on a description sent out over police radio, two Evanston police officers apprehended the defendant as he was walking several blocks from the scene of the burglary, and they took him in the squad car to 1137 Oak. After arriving there the officers were putting handcuffs on the defendant when a knife with a bent blade fell from the sleeve of his jacket. It did not fall to the ground, and the defendant bent his wrist to push it back up his sleeve. The police officer then took possession of the knife. He later testified that he had seen such knives used to slip between the wood on a door and bent so that by turning it the door could be unlocked. There was also testimony that this knife was turned over to another officer who fitted it to the scratches on the door and frame of the Schumpert apartment, and found it to be of the same general size of the instrument used to gain entrance.
The defendant was identified at the Evanston Police Station by both Mrs. VanMensbrugge and Mrs. Baillie, at which time he was alone and not in a lineup.
Officer Charles Kipferl testified that on January 16, 1965, while he was working with Officer Donald Washington, they received a radio description of "a colored youth with a knit jacket or sweater"; that the next message gave a description of "a colored man or Negro man with a brown leather jacket with a fur collar and a cap."
A stipulation was entered into between the State and the defendant that at a preliminary hearing Mrs. Van Mensbrugge stated that she did not recall whether or not the defendant was wearing glasses when he passed beneath her in the courtyard.
Mrs. Schumpert was taken to the Evanston Police Station to make an identification; she also testified that on the afternoon of the same day she discovered that a cedar chest in her apartment had been opened and damaged, but that nothing was missing from it, nor was anything missing from her apartment. When she went to the station to make the identification the defendant was placed behind a screen and was asked to repeat the words, "Sh, be quiet" about 20 to 40 times. She stated that he spoke the words loudly rather than in a whisper as they had been spoken in her apartment, and that one of the officers told the defendant to lower his voice. When he did so Mrs. Schumpert identified the voice as that she had heard in her home. The defendant here argues that the identification of his voice was not a proper or sufficient identification.
The defendant did not testify. He contends in this court that he was not proved guilty beyond a reasonable doubt, and that he did not have a fair trial. He argues (1) that the court erred in permitting the introduction of testimony by the complaining witness regarding the identification of the defendant from hearing his voice at the police station; (2) that the arguments of the prosecutor misled the jury; and (3) that the court refused to give an instruction proffered by defendant on circumstantial evidence.
1. The defendant bases his argument on Palmer v. Peyton, 359 F.2d 199, in which case Judge Sobeloff stated that the identification of the defendant by his voice was improper. In that case the only testimony introduced upon which the defendant could properly be convicted was the voice identification. The situation in the case before us is much different. It has been held by both the Appellate Court and the Supreme Court that a defendant may properly be identified by his voice. Also see 2 Wigmore, Evidence (3rd ed) § 660; 1 Wharton, Criminal Evidence (12th ed) § 183. In Ogden v. People, 134 Ill. 599, 25 N.E. 755, the court said at page 601:
"The statement by the witnesses for the prosecution of a fact which they ascertained through the sense of hearing was not the statement of mere matter of opinion, but the statement of a conclusion reached directly and primarily from an operation of the sense of hearing. A witness can learn and know facts by and through the exercise of his perceptive faculties, his five senses, and such facts he may state. (City of Aurora v. Hillman, 90 Ill. 61.) It was a question of fact for the determination of the jury whether or not the testimony in question sufficiently established the matter of identification, . . ."
In People v. Barry, 371 Ill. 463, 21 N.E.2d 561, it was held that the manner of identifying a defendant goes only to the weight of the identification evidence, and People v. Nichols, 378 Ill. 487, 38 N.E.2d 766, is in accord. The same rule is laid down in People v. Thompson, 406 Ill. 555, 94 N.E.2d 349. In the instant case the identification of the defendant by his voice was proper.
The defendant also urges that the identification was improper since it was not conducted in a lineup. In People v. Snell, 74 Ill. App.2d 12, 219 N.E.2d 554, ...