Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EDWARD E. PLUSDRAK, Judge, presiding.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
CHARGE: Attempted robbery. *fn1
JUDGMENT: After a bench trial the court found the defendant guilty and sentenced him to a term of 1 to 8 years in the Illinois State Penitentiary.
POINT RAISED ON APPEAL: The defendant was not proved guilty beyond a reasonable doubt.
EVIDENCE FOR STATE: Patrick Edward O'Shea testified that he was 17 years old, a high school student, and was employed during the summer by a retail store as a stock boy and sales clerk. He stated that on October 28, 1964, he had worked from 3:00 to 5:30 p.m., after which he and his brother met and started to walk to their home at 4132 West Van Buren Street. When they reached the corner of Van Buren and Keeler, where a tavern is located, the defendant, James Barnes, came off the street between two parked cars, and walked toward the witness, grabbed his arm and asked if he had any money or valuables; when the witness said he did not, the defendant told him to give him his leather jacket, and the witness refused. The defendant then pulled a small steel automatic gun from his pocket and again demanded the jacket, saying that he would "burn" him. Both the witness and his brother ran, at which time the defendant started shooting, hitting the witness once, causing him to fall, with a bullet in his spine where it still remained at time of the trial. The jacket with the bullet hole in the back was introduced in evidence.
The witness stated that after he was taken to the hospital the police brought in three suspects all of the same height, shape and size, and that he positively identified one of them (the defendant) as the boy who shot him. He told the police that the defendant on the night of October 28, was wearing "something black with an emblem, an eagle emblem on it." The police brought the defendant into the hospital room, then later brought in a sweater which had a red emblem on the breast and a big eagle emblem on the back. The witness identified the sweater as the one the defendant was wearing at the time of the shooting.
On cross-examination Patrick O'Shea testified that he never recalled having seen the defendant before; that on the night in question the defendant was wearing the black sweater and something over it which was partially buttoned; that he saw the small emblem on the front of the sweater. He stated that the conversation with the defendant took close to two minutes, and that the lighting of the place where the defendant accosted him was bright; that he identified the defendant by his face and by the way he talked.
The witness was then cross-examined as to statements made by him at the preliminary hearing where he said the entire matter between him and the defendant happened in less than a minute. At that hearing he also stated that the defendant was wearing the sweater when he was at the hospital.
Michael O'Shea testified that he was 15 years old, and was employed by St. Mel's School as a janitor and telephone receptionist. His testimony with reference to the incident in question was much the same as that of his brother; he said the defendant was wearing a black sweater about which there "was nothing noticeable." He testified as to the brightness of the lights at the place of the encounter.
Carol Bowman testified for the State that she was 23 years old, lived at 304 South Kildare, and worked at Goazer Print and Lithographer Company. She identified the defendant in court, stating that she had spoken to him before that time about joining a civil rights organization, A.C.T., but that he was not a member. She had know him from July until November of 1964 when he had come into the record shop where she worked with boys and girls; that she tried to help keep them out of trouble, but that she did not date any of the boys. She testified that on the night in question the defendant came to her home, told her he had been in a fight at Van Buren and Keeler, where a boy had been shot, and asked her if he could leave his sweater there, saying he would come back for it. She said he did not leave a gun with her; he said he had gotten rid of it. She put the sweater in a drawer where it remained until October 30, when she went to the police with it because she had learned that one of the boys in the group ("Top Cat") had been arrested and that a girl named Irene was going to be arrested. She stated that she did not want them to go to jail for something she knew they had not done.
DEFENSE WITNESSES: Henrice Allen testified that she lived next door to the defendant; that on October 28 she saw him in his backyard about 5:00 p.m.; that in response to her request he had come to her apartment between 5:30 and 6:00 p.m., and cut her baby's hair, staying there about 30 minutes. She stated that he later went to the first floor to her sister's apartment where she knew he stayed until well after 6:00, and that he was wearing a maroon sweater with two stripes; that she had seen him wear a black sweater, but that People's Exhibit 2 was not it. On cross-examination she stated that the defendant had not cut her child's hair at any other time, but that she did not know exactly what day it was when he had cut it, only that it was in October. She testified that she did not see the color of the sweater, People's Exhibit 2; that the defendant had a black one, and that she saw him wearing it and a maroon sweater with gray and white stripes, but that she had not seen People's Exhibit 2 hanging in the backyard.
Sally Allen testified that she knew the defendant; that he lived next door to her; that on October 28, 1964, he had come to her place about 5:00 p.m., where her two sons and a sister were with her; that he had been asked to cut her sister's baby's hair, and had stopped to see if the child was there or in the apartment upstairs. She stated that she went with him to her sister's apartment, but did not stay, and that the defendant returned to her place about 6:00 p.m., and trimmed her hair, then her sister's, after which he watched television for a time and left her place about 6:30 p.m. She stated that minutes after he left his sisters came in and said the police were in their backyard. She said she did not see the defendant again that night.
The witness testified that she was acquainted with the lounge at Keeler and Van Buren, and that it was no lighter than the usual lounge. She testified that the defendant was wearing a short-sleeved sweater, maroon with gray stripes down the front; that she could not tell if People's Exhibit 2 was the sweater he wore, but she remembered that he had one similar to it; and that she did not know what happened to that sweater. She stated that the defendant had cut her hair before the 28th of October, but she could not say what date it was. She testified that after ...