Appeal from the Circuit Court of Cook County; the Hon. HERBERT
R. FRIEDLUND, Judge, presiding. Affirmed.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Robbery. Ill Rev Stats (1963), c 38, § 18-1.
After a jury trial, defendant was found guilty and sentenced to a term of 5 to 15 years.
(1) The voice and physical identification procedures employed by the police prior to trial, were so unfairly suggestive that the defendant was denied a fair trial.
(2) Impeachment through silence of the key defense witness was improper because it was not preceded by a proper foundation.
Mrs. Lovada Walker, for the State
She is sixty-one years old and lives at 9630 South Wentworth Avenue. On May 21, 1965, at 4:50 a.m., she left her home and began walking north on Wentworth Avenue when a man with a stocking cap over his face stopped her at pistol point and said, "Do as I say to do. I won't hurt you." The man snatched her purse, containing her identification and wallet, and fled down an alley. In the early daylight, she noticed that the man wore a dark zipper jacket and a gray hat. (The witness identified a gray hat as the one which her assailant had worn at the time of the robbery. She also identified her purse and wallet.) She then ran to a service station at 95th and La Salle Streets, where she had the attendant call the police.
Shortly thereafter, police arrived at the service station with her purse and wallet and defendant was with them. At the service station, she was able to identify defendant as her assailant by his voice, height, and build. *fn1 At that time, defendant did not wear the mask. She said nothing to him. After she identified him, they took her to the hospital, where she received first aid for her hands and knee. She saw defendant again at the police station, where the police had him place a stocking mask over his face and speak the words used during the incident. She identified him by his height, build, shape of face with the mask on, and by his voice. She was never asked to make a comparative identification of defendant.
Police Officer Lawrence Tobuck, for the State
Shortly after 5:00 a.m. on May 21, 1965, he saw defendant driving an automobile at excessive speed. He and his partner, Earl Davy, followed the car for several blocks, during which time defendant drove west, north, west and south. The police car had its spotlights on and Mars light flashing, and they caught him when defendant's car struck a parked car on the left side of the street. Defendant immediately jumped out of his car, and so did the police.
On confronting defendant at his car, Tobuck noticed on the front seat a toy cap pistol, a gray hat, and a stocking cap. He then noticed a purse lying in the gutter just below the driver's door of defendant's ...