Appeal from the Circuit Court of Cook County; the Hon. FRANCIS
T. DELANEY, Judge, presiding. Affirmed.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Defendants appeal from an order finding them guilty of robbery. A jury trial was waived by the defendants, who pleaded not guilty. They received the following sentences: defendant Marvin Hampton was sentenced to the penitentiary for a term of not less than three nor more than five years; defendant James Thomas was sentenced to the penitentiary for a term of not less than five nor more than ten years; and Hughie Lewis was granted probation for three years with the condition of probation being that the first nine months of probation be served in the Cook County jail.
The defendants contend that they were not proven guilty beyond a reasonable doubt because the identification by Carlatus A. Jackson, the victim and sole witness for the prosecution, was not entitled to any weight because of the manner in which the lineup was conducted and because the identification was vague and uncertain.
The defendant Hughie Lewis contends that he should not have been convicted at all because he was neither a principal nor an accomplice.
The victim, Carlatus Jackson, testified as follows: On December 3, 1966, he was returning home from Mt. Sinai Hospital, where he worked, at about 7:00 p.m. He noticed four men walking together on the opposite side of Ogden Avenue toward Kedzie Avenue. The four men crossed Ogden Avenue and Marvin Hampton, one of the defendants, grabbed Jackson by the collar and told Jackson that "we are police officers." The defendants, James Thomas and Hughie Lewis, were within touching distance of the victim Jackson. Without any provocation, James Thomas struck the victim in the mouth. At this time a cruising squad car approached the scene, and Marvin Hampton told the victim not to say anything and not even to look around. The defendants Lewis, Thomas, Hampton and a fourth unidentified man remained at the victim's side. No one in the group said anything to the police officers and the police officers said nothing to them. When the police car left, the defendant Thomas removed the victim's wallet, which contained a ten-dollar bill and some personal papers, from the victim's pocket and the group continued searching the victim. When nothing else was found on the victim, the defendant Thomas struck the victim in the stomach and the group then ran and fled the scene. The street at the location of the robbery was well lighted at the time of the incident. The victim then proceeded home and called the police. The police came to the victim's home about 45 minutes after his call and took him to the Damen Avenue Police Station. The defendants had been arrested by officers of the Chicago Police Department about one and one-half blocks from the scene of the crime between 7:30 and 8:00 p.m. in connection with another complaint. The police informed the victim that they might have the men in the station. The victim first saw the defendants in a room sitting on a bench and later in a lineup of four. The victim identified three of the four men in the lineup, namely defendants Thomas, Hampton and Lewis, as his assailants.
The defendants first contend that the identification by Carlatus Jackson was not entitled to any weight because of the manner in which the lineup was conducted. They contend the foregoing because the police told the victim when he arrived at the station that "they might have the men in there." The police told the victim to wait outside. The three defendants then appeared in a lineup of four. The victim identified the three defendants.
The defendants argue that the identification made by the victim was the result of a definite suggestion of the police and they practically told him that they had the men he suspected. In support of their argument, the defendants cite People v. Boney, 28 Ill.2d 505, at page 508, 192 N.E.2d 920, wherein the court said:
"The manner of conducting the `line-up' which complainants viewed consisted of placing the defendant together with three or four of complainant husband's co-workers personally known to him. We have repeatedly condemned similar practices (People v. Mikka, 7 Ill.2d 454), and long ago stated regarding identification procedures: `The proper way is to have the witness, without suggestions from any officers or any interested persons pick out the guilty party from a number of persons unknown to the witness.' (People v. Saunders, 357 Ill. 610, 622.)"
The defendants also cite the case of People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232, in which the court stated that eyewitness identification ranks at the top of all factors that account for conviction of the innocent. In People v. Boney, supra, the court said on page 509:
"However, `There is no requirement in the law that an accused person must be placed among a group of persons for the purpose of testing the ability of a witness to identify him as the guilty person,' (People v. Crenshaw, 15 Ill.2d 458, 464), and the manner `does not render the identification testimony incompetent, but only goes to the weight of the evidence.' (People v. Mikka, 7 Ill.2d 454, 458-9; People v. Washington, 26 Ill.2d 207, 210.)"
The court in Boney continued by saying that at times improper or unsubstantiated identification had led to reversals of convictions, but that in those cases there existed additional elements of elapsed time between the crime and the identification, contradictory opinions among the identifying witnesses, a question as to whether the witness saw the crime or had sufficient opportunity to observe the one acting, a proof of good reputation of the accused or the existence of a reliable alibi. In People v. Horodecki, 15 Ill.2d 130, 154 N.E.2d 67, the court held that if the victim were given an opportunity to view the suspect with a group of other people under proper safeguards, the proof of identification offered at the trial of the cause would be considerably strengthened. The court there also stated on page 135:
"However, the failure to do so does not render the identification incompetent, (People v. Coli, 2 Ill.2d 186,) nor detract from the essential requirement that a person charged with a crime must ultimately be identified in a court of proper jurisdiction by competent evidence beyond a reasonable doubt pursuant to constitutional safeguards. It was for the jury to weigh the testimony and determine the credibility of the several witnesses. (People v. Coli, 2 Ill.2d 186; People v. Barad, 362 Ill. 584; People v. Nicholson, 404 Ill. 122; People v. Leach, 398 Ill. 515.)"
The defendants also argue that the identification should carry no weight because it was unsatisfactory and doubtful. They support this argument on the basis that the defendants denied the testimony of the victim Jackson, and that Hampton, one of the defendants, testified that he was walking to the hospital to get his arm wound stitched and stated positively that he did not rob Jackson, and that the defendant Lewis, while denying that he had robbed Jackson, also said he had never seen Jackson before that day. In support of this contention, the defendants cite People v. Gold, 361 Ill. 23, 196 N.E. 729, wherein it was stated that an identification made by a stranger without sufficient opportunity to definitely fix features or characteristics must be an opinion or conclusion of the identifying witness. Defendants also cite People v. McGee, 21 Ill.2d 440, 173 N.E.2d 434, in support of the statement that where the conviction of a defendant rests upon identification which is doubtful, vague and uncertain it would not produce an abiding conviction of guilt.
In the case at bar, Jackson's identification was made within forty-five minutes after the crime was committed. He was able to observe the defendants at the scene while they were within arm's length of him on a well-lighted street. The time involved in the commission of the crime was lengthened by reason of the fact that a squad car approached just as the defendants were about to commit the crime and they were delayed until the squad car left. The victim in this case during his direct examination was positive in his identification of the defendants and his testimony was not shaken at any time during the trial. He reaffirmed his identification on redirect examination. The trial judge before whom this case was tried was able to ...