Appeal from the Circuit Court of Cook County; the Hon. EDWARD
J. EGAN, Judge, presiding. Affirmed in part, reversed in part.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
Paul Durant, defendant, was indicted for the crimes of robbery and aggravated battery. He was tried before a jury which returned a verdict of guilty, and the defendant was sentenced to a term of five to ten years in the Illinois penitentiary, the sentence on each count of the indictment to run concurrently.
In this court the defendant complains that he was not properly identified; therefore, was not proved guilty beyond all reasonable doubt; that irrelevant evidence was introduced; that the prosecutor's arguments were improper; and that the defendant was denied a fair and impartial jury. (The defendant offered no evidence whatsoever in the case.)
There is no question that the complainant, Frank Wilkes, had parked his truck on Homer Street, four feet west of Damen Avenue, in the City of Chicago; that he was attacked by two men and a woman, and suffered head injuries, broken ribs and bruises; and that his wallet was taken, with two fives and a one-dollar bill removed from it. Shortly after the crime Officer Victor Hoffman arrested the defendant and James Catalano in an alley east of Damen and 100 feet south of Homer Street, where they were seen at a "T" in the alley, coming from the north and turning west. Defendant's shirt was out and his pants were unzipped. Catalano was carrying one ten-dollar bill and two singles; defendant carried no money.
Dr. William Haines, a psychiatrist, had examined the defendant three months before the trial and reported he was competent to stand trial. The report indicated that the defendant had been in Elgin State Hospital a few months for observation, and had previously been in the hospital from October 24, 1962 to January 24, 1963; the defendant was described as "emotionally unstable."
On July 5, 1966, a sanity hearing regarding the defendant was held before a jury. At that hearing Dr. Haines testified that he had examined the defendant on June 6 and found that the defendant understood the nature of the charges against him and was able to cooperate with his attorney. The jury returned a verdict finding the defendant competent to stand trial.
When the defendant was brought into the courtroom he was struggling with two deputy sheriffs. The trial judge excused the prospective jurors and asked the defendant if he wished to be present at the trial proceeding. The defendant began mumbling and crying, and said, "Leave me alone." The court then held that defendant had waived his right to be present and ordered him removed from the courtroom until he decided to conduct himself properly. The court noted then that the defendant had behaved normally on prior court dates and during the morning in question; that there had never been any outbursts.
The jury was selected from the panel which had observed defendant's outburst, and the court told the jury that the defendant did not choose to attend the proceedings and was in custody. The jury was carefully examined both by counsel and the court as to whether or not the defendant's conduct in the courtroom would have any effect on their verdict, and the only jurors selected were those who categorically answered that it would not.
The first witness for the State was Frank Wilkes, who testified that on April 21, 1966, at about 7:30 p.m., he and his partner unloaded some merchandise at his antique shop at 1944 North Damen Avenue, after which his partner went inside. Wilkes pulled the truck around the corner on Homer Street, about 20 feet from the shop, and at that time some people threw open both doors of the truck and began clubbing him. (He identified the defendant as one of the assailants.) The defendant then struck him twice with a pressure cooker, and the defendant's companion hit Wilkes from the other side; during this time a girl who was with the assailants was shouting, "Grab him, kick him, grab his purse, grab his wallet, kick him hard." The defendant then picked up a hammer and swung it at Wilkes' head; it struck a glancing blow and the head of the hammer flew across the street. The woman then grabbed Wilkes' legs; he fell, and the three persons kicked him as he lay on the ground.
Wilkes testified that after the three had escaped, he noticed that $11 was missing from his wallet, as well as a valuable gold coin piece he wore around his neck. Shortly afterwards a squad car arrived and Wilkes got into the car to talk with the officers. At this time another squad car (with the two suspects in it) pulled up and parked about seven feet away. Wilkes was unable to see the suspects well enough to recognize them from that distance. When both squad cars went to the police station Wilkes got out and faced the suspects and identified them as the men who had attacked him.
Wilkes testified that he had jerked a jacket off the defendant when he tried to get away, and that the other man (Catalano) was wearing a dark sweater, either black or maroon. Wilkes stated that during the attack he was struck on the side four or five times, resulting in swelling, two broken ribs and a swollen ear.
Officer Victor Hoffman testified that he was in a patrol car on April 21, 1966, about 8:30 p.m., when he was stopped by a citizen on North Damen Avenue; that he then went to Damen and Homer, where he saw Wilkes and noted his bruised and swollen neck and torn trousers. After talking with Wilkes, Hoffman and his partner proceeded to an alley south of Homer and Damen, where they saw the defendant and Catalano running out of an adjoining alley; the men were disheveled in appearance, and when searched by the police Catalano was found to have $12 on his person; no money was found on the defendant. The defendant was wearing a white shirt, gray trousers with hanging suspenders, and the shirt was outside the trousers. Catalano wore a maroon sweater and dark trousers. The officer placed both men under arrest.
At the trial the State offered in evidence a dark shirt which was found in the alley; this exhibit was objected to but was admitted over the objection.
The first objection made by the defendant in this court is that the identification was suggestive and violated due process of law. During the attack Wilkes had grappled with the assailants; shortly after the robbery he confronted the defendant at the police station, and at the trial he pointed out the defendant as the man who had beaten and robbed him; and he stated that he had seen the defendant a couple of times before in the neighborhood. The defendant claims that Wilkes should have identified him while he was sitting in the squad car; however, Wilkes' explanation of his failure to do so was sufficient.
The defendant complains of the fact that a police officer, prior to the identification at the police station, said to Wilkes: "We have the men who assaulted you."
Defendant also complains that Wilkes identified him without his having been placed in a lineup. In People v. Snell, 74 Ill. App.2d 12, 219 N.E.2d 554, the court held that while it is preferable to have a witness identify a party from a group of unknown persons, failure to follow this practice goes only ...