Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. IRVING LANDESMAN, Judge, presiding. Judgment
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.
Fred Jelks was convicted of robbery in a bench trial. He appealed directly to the Supreme Court and that court transferred the appeal to this court. He appeals the conviction contending that the trial court erred in refusing defendant's request to see complainant's statement, and that the evidence fails to show beyond a reasonable doubt that the defendant is guilty of the crime.
At 10:48 p.m., May 22, 1963, the complainant, Mrs. Rosie Lee Noland, left her home at 3628 West Grenshaw in Chicago and proceeded east on her way to work. About one-half block from her home, she was accosted by a man who grabbed her and forced her between two houses. A struggle of approximately five minutes ensued during which time she screamed and resisted to the best of her ability. During the struggle she was stabbed under the arm with what appeared to be a knife. Near the end of the struggle, the complainant threw her purse some distance away from the scene. The assailant broke away, picked up the purse and ran away. At that time, the purse contained money, keys and other personal belongings. The complainant later found the purse, but it contained only the keys.
After the robbery, she talked to one of her neighbors, in front of whose house the incident had occurred. She then returned home and called the police. She described her attacker as being about 35 years of age, 5' 4" tall with a moustache, sideburns and bulging eyes. She told the police that his hair was long, wavy, greasy, and had "goo" on it. She also said that her assailant wore a small, black felt hat. Three days later, on May 25, while Mrs. Noland was walking near Central Park and Roosevelt Road, she saw defendant, whom she recognized as the man who had robbed her. She immediately summoned a policeman who arrested the defendant. When arrested, the defendant was wearing an iridescent overcoat, a dark hat and a brown or beige suit.
At the trial, Mrs. Noland positively identified defendant as the man who robbed her. She testified that, when first accosted, she was standing on the sidewalk, which was lighted by "daylight lights" suspended from poles. She stated that the lighting was good. She testified that they were as close as two people fighting and that she could see him all during the struggle; that for about three seconds she could see him "just as plain as I can see him now." She stated that his hair looked the same at the time of the arrest as at the time of the robbery.
The arresting officer testified that at the time of the arrest defendant had "processed hair," that his hair was long on the top of his head, but that he did not have sideburns. He also stated that the defendant denied committing the robbery. Both the arresting officer and a detective testified that defendant told them that he had spent the evening alone at a movie, but he could not recall which theatre or what movie he saw, but that it was a double feature.
On behalf of the defense, the defendant and Edward Bester testified that they were together from about 11:00 a.m. until after midnight on the day of the robbery. They had visited the Social Security Board until noon, and from then until 6:30 p.m. they idled away the time in the neighborhood. At about 6:30 p.m. they went to the Maryland theatre on the south side. They watched both features twice and left when the theatre closed about 12:30 a.m. They then returned to the west side and parted company at about 1:30 a.m. Neither of them was certain as to what pictures were playing, but Bester thought they were "Billy Budd" and "The Mongol." He also testified that he next saw the defendant on the day of the arrest, that they were together at that time, and that he saw Mrs. Noland point out the defendant. However, he was told to move along and did not hear what she said about the robbery.
Bester also testified that he had not seen the defendant again until the day of trial. He had not talked to counsel for the defendant because he had been working as a musician in Champaign, Illinois. On August 1, 1963, he was asked to recall his whereabouts on May 22, and to testify for the defense.
Defendant denied committing the robbery. He testified that he and Bester had attended the Maryland theatre once a week for about six years and that he had great difficulty remembering movies or actors. However on May 22, he thought one of the features was a "picture about ships starring Robert Ryan." He testified that on the day of his arrest he was coming from his mother's home to meet Bester. His mother lived a few doors from the scene of the robbery. He passed the complainant on the street, noticed her staring at him, and asked her if she knew him. He went on to meet Bester and, shortly thereafter, was arrested. He testified that he had visited his mother's home occasionally, but had never seen the complainant prior to the day of his arrest. Defendant testified that on May 22 he had grease on his hair, but that he had his hair cut in jail because "you can't use grease while in jail."
Mr. Waddie Daniel testified for the defense that the street on which the robbery occurred was illuminated poorly; that the street lights there "are not as good as ordinary light bulbs."
At trial, it was stipulated that defendant was 35 years old.
Defendant contends that the trial court erred in refusing to allow defendant to see the original description of the robber given to the police by the complainant. After the State had rested its case, counsel for defendant moved for the production of the original description. The State asked for what purpose the request was made. The following discussion then took place:
"THE COURT: Look, you will have no problem with me. If you want to recall her, if you want to have her recalled to have further cross-examination, I will let you do that. Actually your request for this ...