Appeal from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding. Affirmed.
Defendant appeals his conviction of robbery. For reversal he urges, insufficiency of identification, denial of his pretrial discovery motion and error in the admission of a revolver.
The facts are not unusual indeed, mundane. A filling station is robbed by two armed men, the attendant resists, is hit on the head, and the robbers flee. The attendant is able to give a description of their automobile and the number of the license. The automobile is found abandoned, with a revolver on the floor, and the defendant apprehended and identified. A person admittedly one of the robbers testifies that defendant was not his partner-in-crime that he was someone else. Defendant admits ownership of the car and at the trial, ownership of the revolver.
[1-3] We will forbear further factual exposition, because no facts, in our opinion, render the identification incredible. The question of identity was one of fact, and we can only say, as we have said many times before, the answer is not for us but for the jury. As we know, a single witness is enough to create this question, because nobody is incredible as a matter of law anymore. The question of defendant's identity was answerable and has been answered and should not be reanswered here.
The revolver was never precisely stated to be the one actually held by defendant. It would be singular if such had happened. Holdup victims have enough on their hands without expecting them to take note of minutia. The State had the duty of proving not only the robbery (corpus delicti), but defendant's nexus (criminal agency), and in proving such the foundation was laid for the admission of a weapon reasonably connected with the offense. Here, the robbers were armed, a like revolver is found almost immediately in the get-away-car, defendant is identified, and it turns out to be his. It was clearly admissible, without proof of ownership. The exactitude sought is not required.
Prior to trial defendant moved for the discovery of "all items of tangible evidence which the People have in their possession or control, or intend to introduce into evidence." The motion was denied. It should have been allowed at least as to the final disjunctive, "or intends to introduce into evidence." As it turned out, the only discoverable item was the revolver.
Our quick affirmation requires elucidation. There are no authoritative rules in this State sanctioning criminal discovery, but the Code of Criminal Procedure impliedly recognizes their propriety as § 114-13 does authorize their promulgation. There is, however, a measure of discovery provided for in the Code. Both § 111-6 and § 114-2 spell out the furnishing of bills of particulars, but such were never really considered true discovery, rather their office was stated to be that of merely enlarging upon the statement of the offense contained in the charge as an aid in preparing for trial, or to preclude a second prosecution. Of course, such enlargement really is discovery in the sense that a defendant knows more than he would have without it, and for some time now defendants have been able to obtain their confessions prior to trial, and know any statements whether inculpatory or exculpatory. People v. Bryant, 87 Ill. App.2d 238, 231 N.E.2d 4.
Indeed, the last decade has seen many innovations that would have been unthinkable not too many years before. The turnover of prior statements of prosecution witnesses for purposes of cross-examination is now standard in Illinois and many other states, and is specifically provided for in the United States courts. Section 3500, Title 18, USCA. A sign of the times, is the broadening amendment to Rule 16 of the Federal Rules of Criminal Procedure providing for an extensive disclosure, and, of utmost significance, a modicum of discovery for the government if a defendant opts for such discovery now is somewhat of a two-way street.
As an aside, one well might wonder at the tortoise like pace discovery has taken in America. Such was recently commented on by Mr. Justice Brennan in, "The Criminal Prosecution: Sporting Event or Quest for Truth?", Wash ULQ 279 (1963):
"It may appear strange that resistance to criminal discovery should be so stubborn in America, when Chief Justice Marshall seemed so strongly to approve it. You will recall that as a Circuit Justice he presided in the celebrated trial of Aaron Burr. At that trial a request was made on Burr's behalf for pretrial inspection of a letter addressed to the President of the United States and in the possession of the United States Attorney. Although the great Chief Justice did not hold that there was an absolute right to compel disclosure, in characteristically strong terms he stated his view that if the letter had evidentiary relevance, or indeed was useful in cross-examination of any Government witness at the trial, it could not, in fairness to the defendant, be withheld from him. But the value of that precedent was virtually unappreciated in our country for almost a century and a half."
Until recently, the prevailing view everywhere was best apostrophized by Judge Learned Hand in this much quoted paragraph from United States v. Garsson, 291 F 646, 649 (1923):
"Under our criminal procedure the accused has every advantage. While the prosecution is held rigidly to the charge, he need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is the least fair doubt in the minds of any one of the twelve. Why in addition he should in advance have the whole evidence against him to pick over at his leisure, and make his defense, fairly or foully, I have never been able to see . . . Our dangers do not lie in too little tenderness to the accused. Our procedure has always been haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays and defeats the prosecution of crime."
But we must shuck such viewpoint and resolve the problem here in the context of the philosophy enunciated in the breakthrough case of People v. Moses, 11 Ill.2d 84, 142 N.E.2d 1:
"Where it appears that there is evidence in the possession and control of the prosecution favorable to the defendant, `a right sense of justice demands that it should be available, unless there are strong reasons otherwise.'"
It is not amiss at this juncture to reconsider certain basic principles on which this articulation is based, as it is an eminently proper one. We all know what a trial is, but we sometimes forget certain basic preconditions, if it is to serve its function and serve it well. For a working definition, let us say that a trial is a contest held just once between well prepared adversaries of roughly equal strength. This necessarily implies that neither side has an unjust advantage over the other. Thus, in determining whether or not there should be disclosure, we should ask ourselves whether or not such would avoid an unjust advantage, or to phrase it the other way, remove an unjust disadvantage. We should make it clear, right here, that we are not speaking of advantages or disadvantages as to which nothing can be done. For instance, the prosecution may have a very strong case, but this is not an advantage, or at least the type of advantage we are talking about. A defendant may have no real defense, and this is certainly to his disadvantage, but, again, discovery serves no office here. However, if the prosecution's case is strong because it is full of surprises, this is an advantage that is unjust, because it will not square with the adversary concept of a contest between well ...