Appeal from the Circuit Court of Kane County, Sixteenth
Judicial Circuit; the Hon. JOHN S. PAGE, Judge, presiding.
MR. PRESIDING JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
This is an appeal from a judgment entered in the Circuit Court of the 16th Judicial Circuit on the verdict of a jury which found the defendant guilty of armed robbery, on July 13, 1964, of the Fox Valley Country Club and its proprietors, Dal and Jean Whittle, and the attendant sentence of the defendant to the Illinois State Penitentiary for not less than fifteen nor more than twenty years.
The defendant contends that his conviction must be reversed because of the admission of certain evidence concerning an attempted jailbreak on December 21, 1964. It is his position, first that such evidence is inadmissible in any event, and secondly, that it must be inadmissible in this case in that, at the time he was incarcerated, more than one criminal charge was pending against him, and the evidence reflects no connection between the alleged jailbreak attempt and the charge in the indictment. He also asserts that error was committed in the method by which the State introduced evidence of the attempted jailbreak and by virtue of the prosecutor's use of evidence of a police lineup in which he was identified by the victims of the robbery.
The State urges that the evidence of the attempted jailbreak was properly admitted; that flight or attempted escape shows a consciousness of guilt or raises a presumption of it; and that the court did not err in permitting the two victims of the robbery to testify as to their identification of the defendant in a lineup at the Chicago Police Station, since they also positively identified him at the preliminary hearing and also at the trial.
Both Dal and Jean Whittle testified that the Fox Valley Country Club was robbed on the night of July 13, 1964. The Whittles the owners and operators of the Club were alone in the well-lighted Club about closing time when two men, one with a gun in hand, entered and stated that this was a holdup. The defendant, Neiman, who had neither hat nor mask, carried the gun. His accomplice ordered the Whittles to stand against the wall and later they were directed to lie on the floor, face down. Neiman's accomplice had difficulty opening one cash register and Jean Whittle was permitted to get up to assist in opening the cash drawer of the register. Money was taken from Dal Whittle's pockets. Both of the Whittles had ample opportunity to observe the defendant throughout the course of the robbery. During its progress, the defendant's revolver was discharged and he told the Whittles not to worry; that it was an accident; and that if they would lie still and be quiet they wouldn't get hurt.
On September 13, 1964, the defendant voluntarily surrendered at the Shakespeare Police Station in Chicago for questioning in connection with certain unsolved crimes. The next day he was placed in a lineup at this station at which the victims of several robberies which had occurred in Kane County were present, along with officers from the Kane County Sheriff's office. At this lineup, Dal and Jean Whittle identified the defendant. Prior to this time no one had pointed him out to them. Jean Whittle identified the defendant by placing her hand on his shoulder. After identifying the defendant, she requested that he speak, and when he spoke she recognized his voice. The record does not indicate that the defendant was represented by counsel at the lineup on September 14, 1964.
On December 21, 1964, subsequent to the time when Neiman was indicted, one of the deputy sheriffs of Kane County while investigating a tip given by Billy Alston, a jail inmate searched the cell block in which the defendant and others were incarcerated and found hacksaw blades, a rope made from trousers and other evidence indicative of preparation to escape. Such facts were testified to by the deputy sheriff. On cross-examination of the deputy, counsel for the defendant elicited the fact that Billy Alston, the tipster, had told the deputy that the defendant had lowered a string from the jail to pull in the hacksaw blades and had planned the jailbreak; and that Alston also told the deputy that he (Alston) had seen the defendant sawing the bars.
The defendant testified on his own behalf. He stated that he had spent approximately 25 years of his life in Illinois penitentiaries; that a pending conviction had been reversed by the Supreme Court and this case was set for a new trial in Cook County on Monday, January 11, 1965. He denied that he had ever been in the Fox Valley Country Club or that he had anything to do with its robbery on July 13, 1964. He admitted that he appeared with four other men in the lineup in question, and that Mrs. Whittle identified him.
His testimony relative to the attempted jailbreak was as follows:
"Q. Now then in connection with this matter at at the County Jail on or about December 21, 1964, will you tell the Court and Jury what if anything you know about your being involved in this attempted jail break?
"A. 11 or 12 men in the County Jail at the time.
"A. In my cell block, 3 north. Just to say who had anything sent in I would be lying, I don't know.
"Q. Did you yourself have anything to do with sawing any bars or bringing any blades in ...