Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. JOHN C. FITZGERALD, Judge, presiding. Judgment
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.
Defendant was charged with theft by deception. Ill Rev Stats (1965) c 38, § 16-1(b). A jury found defendant guilty of the crime charged, and he was sentenced to the Illinois State Penitentiary for three to eight years. Defendant appeals to this court, alleging three errors: (1) that the closing argument of the state's attorney was prejudicial; (2) that he was unduly limited in his cross-examination by not being supplied with a statement of the complaining witness; and (3) that evidence of separate and subsequent offenses was improperly introduced and admitted into evidence.
The complainant testified that she met the defendant about noon on the 18th day of April, 1966, at 43rd and Prairie, Chicago. She had never seen him prior to this occasion. Defendant told her that he had just arrived from Algeria, that he was a stranger to Chicago, and that he was looking for a place to stay. Another man passed, and was asked by defendant if he knew of an apartment. Defendant asked complainant if she knew the other man, and she replied that she did not. The two men, after walking down the street a while, took the complainant into a vestibule, where defendant took $163 from the complainant's pocket, stating that he was going to put his money with hers for safekeeping. Defendant left for a moment, returning with a balled-up handkerchief which he put in complainant's bosom. After walking some more, defendant stated to complainant that he was going to get his things and that he would come back to her house to pick up his money. After both men left her, complainant discovered that the handkerchief contained newspaper rather than money.
The State called three other witnesses who were victims of defendant's deception. The facts of all the occurrences were substantially similar. Defendant would state that he was looking for a place to stay, that he had just come into Chicago, and that he had a substantial sum of money. He would then ask the witness if she would hold his money with hers for safekeeping while he went to get his things. He would leave the presence of the witness for a while, return with a balled-up handkerchief which he put in the victim's bosom. Shortly after the occurrence, all the witnesses would discover that their money was gone. These three occurrences took place at least a month after the crime with which defendant was charged. Defendant did not testify, and no further evidence was presented.
Defendant's first contention on appeal is that the closing argument of the state's attorney was prejudicial in that he expressed his own opinion of defendant's guilt. In closing argument, the state's attorney said:
"I'm sure, ladies and gentlemen, based on what you have heard from the witness stand, over the last two days, you probably have already made up your mind as to the guilt or innocence of the defendant. The guilt of the defendant may be obvious to we attorneys, as we listened to the case. To you lay people sitting on a jury, perhaps some of the things which you have heard from the witness stand were a little bit dubious or unclear. For that reason I would like to clarify a few little things."
Defendant's counsel made no objection at the time the remarks were made.
A prosecutor may not express his personal opinion as to the guilt of the defendant as such an opinion leaves the impression that it is based upon factors not in evidence. People v. Provo, 409 Ill. 63, 97 N.E.2d 802 (1951); People v. Anderson, 406 Ill.2d 585, 94 N.E.2d 429 (1950). However, the prosecutor may express such an opinion when it is based solely on the evidence in question. People v. Jackson, 35 Ill.2d 162, 220 N.E.2d 229 (1966). In People v. Williams, 26 Ill.2d 190, 186 N.E.2d 353 (1962) the state's attorney in his closing argument stated ". . . coupling all that with statements made by defendant, I think that when you go back there, you will reach the same conclusion that we have reached, and that is that Eddie Williams is guilty of murder." In holding that such a statement was not prejudicial, the court stated at page 193:
"It is, however, proper for a prosecutor to argue or express his opinion that the accused is guilty, where he states, or it is apparent, that such opinion is based solely on the evidence."
It is clear that the opinion expressed by the state's attorney in the instant case was based on the evidence, and the statement did not suggest that it was based on his personal knowledge of material at his disposal which had not been introduced in evidence. As he stated, his opinion was reached as he "listened to the case." The remarks were proper.
The defendant next argues that he was unduly limited in his cross-examination because he was not furnished a copy of a statement made by the complaining witness. During the cross-examination of the complainant, the following colloquy took place:
"Q. Did you talk to the police about this? Did you sign any statement at the police station?
"A. Yes. I signed I called the police officers.
"Q. Did you sign a statement?
"State's Attorney: Will counsel clarify what he means by `statement?'
"Defense Attorney: I think you know what I mean by a statement.
"State's Attorney: For the record, your Honor, this witness has signed ...