APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
A. HAREWOOD, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 25, 1969.
In May, 1964, the defendant, Lyman Moore, was tried for the crime of murder. Following a jury trial in the circuit court of Cook County he was found guilty and sentenced to death. He appeals his conviction directly to this court contending that he was denied a fair trial and that he was not proved guilty beyond a reasonable doubt, and also appeals the denied of his petition for post-conviction relief.
On April 25, 1962, at approximately to P.M. two men were drinking in a tavern owned by Bernie Zitek in the village of Lansing, Illinois. One of these men began using profane language and, as a consequence, was forcibly removed from the premises by the owner. Present at this time were Patricia Hill, a waitress, and approximately seven other customers. One hour later a man rushed into the tavern, approached the bar, and shot Bernie Zitek in the chest with a shotgun, causing his death. The assailant immediately fled from the premises. Present at the time of the shooting were Patricia Hill and four customers who were playing cards at a table in the corner.
On October 31, 1962, a Chicago police officer was on patrol when the occupants of a 1957 Ford automobile shot at him and then fled from the car. The car was staked out by the police and the defendant and another man were arrested some time later as they were attempting to enter the car. The defendant and his companion were then taken to the Burnside Police Station. Later that night the defendant was placed in a line-up at the station at which time he was observed by Patricia Hill, the waitress at Zitek's tavern. It is not clear from the record whether an identification was made at this time or on the following day, November 1, 1962, when a second line-up was held at which time Mrs. Hill identified the defendant as the slayer of Zitek. Although several other persons viewed the line-up with Mrs. Hill, including at least two of the men who had been playing cards at the time of the shooting, only Mrs. Hill was able to identify the defendant as the assailant at this time. At the time of his trial, however, one of the customers who had been present at the shooting identified the defendant as the assailant.
The defense at the time of the trial was mistaken identity and alibi and defendant adheres to this defense in this appeal, and contends he was not proved guilty beyond a reasonable doubt.
In support of this contention defendant insists that the witness, Patricia Hill, was honestly mistaken. However, Miss Hill positively identified defendant, both in a police line-up and at the trial, as the man ejected from Zitek's tavern who returned to kill him. The lighting was good and she was only six feet from the defendant, and had ample opportunity to observe him earlier in the evening.
Henley Powell also testified at the trial positively identifying defendant as the man who shot Zitek. One Virgle Sanders testified that two days after the shooting he had a conversation in the Ponderosa Tavern with the defendant who told him that it was open season on bartenders, and that he had just shot one in Lansing. Two other witnesses identified defendant as the same man with Sanders in the Ponderosa Tavern.
It is well settled that the positive identification of one witness, if credible, is sufficient to convict. (People v. Brinkley, 33 Ill.2d 403; People v. Donald, 29 Ill.2d 283.) The mere fact that others were present at a line-up and failed to identify the accused does not require reversal. People v. Macias, 39 Ill.2d 208.
We have carefully examined the evidence and considered the opportunity of the witness to observe and the discrepancies in the testimony and find that the identification of the accused was sufficient to justify a conviction. Defendant's eloquent argument concerning the inherent problems of human identification would be more appropriate if addressed to the trier of fact.
Upon all the evidence the jury was justified in finding defendant guilty beyond a reasonable doubt.
We next turn to alleged error which defendant claims occurred at the trial. As previously stated, defendant was arrested on October 31, 1962, six months after the crime, when police were shot at and later saw two subjects running from a car. The car was staked out for five or six hours and the defendant and another man were arrested when they again approached the automobile. The police arrested the defendant and found a .38 caliber revolver at defendant's feet, a shoulder holster on his person, and a .16 gauge shotgun in the back seat of the car. The .38 caliber revolver and the shoulder holster were marked as exhibits and the State sought to introduce them. The evidence was ruled inadmissible and the jury instructed to disregard it. The .16 gauge shotgun was admitted into evidence although it was not positively identified as the death weapon.
Defendant claimed that he was prejudiced by the evidence of the circumstances of his arrest, the display of the revolver and shoulder holster, and the admission of the shotgun into evidence. We do not agree. We think that despite the length of time between the crime and the arrest, testimony regarding the circumstances of the arrest was admissible, including testimony relating to the weapons found in defendant's possession or control at the time of the arrest. (People v. Wright, 30 Ill.2d 519; People v. Anderson, 17 Ill.2d 422; People v. Davis, 14 Ill.2d 196; People v. Jackson, 9 Ill.2d 484, 492; People v. Smith, 413 Ill. 218; People v. Durkin, 330 Ill. 394.) Since possession of the revolver and shoulder holster were proper areas of testimony, and the items were not admitted into evidence and the jury was instructed to disregard them, we find no reversible error. (People v. Holt, 28 Ill.2d 30; People v. Carvin, 20 Ill.2d 32; People v. Prohaska, 8 Ill.2d 579.) There is no clear evidence of the weapon actually used in this homicide, although it is clear that it was a shotgun. We have consistently held that a weapon found upon a defendant suitable for the commission of the crime charged is proper evidence even though there is no showing that it was the actual weapon used. People v. Mayby, 37 Ill.2d 197; People v. Ostrand, 35 Ill.2d 520; People v. McCasle, 35 Ill.2d 552; People v. Lenhardt, 340 Ill. 538.
The defendant further contends that the cross-examination of the two identifying witnesses, Patricia Hill and Henley Powell, was unduly restricted. We have carefully examined the testimony of both Hill and Powell and their cross-examinations and the rulings on objections to the cross-examinations, and we find no evidence that the trial judge abused his discretion in restricting it to matters which explained, modified or discredited earlier testimony. People v. Welch, 22 Ill.2d 558, 560; People v. Moretti, 6 Ill.2d 494.
It is also argued that the prosecutor's closing argument was prejudicial in that he accused defense counsel of making a statement that was not true and stated that one of the witnesses was "scared to death" of the defendant. The latter remark was promptly stricken and the jury instructed to disregard it. We have examined the prosecutor's remarks regarding the misstatements of defense counsel and, while we consider them inappropriate, they were in response to equally inappropriate remarks of the defense. In examining the arguments as a whole we find no reversible error.
The last contention of the defendant concerning trial error regards an alleged oral instruction to the jury. The jury was given complete written instructions as requested and tendered by both the prosecution and the defendant fully covering the case, and the trial court further stated to the jury orally: "Now, in a murder case, the jury has the duty to determine first whether the defendant is guilty or not guilty. If you decide he is not guilty that ends the case. If you decide he is guilty of murder then you must next determine whether or not you wish to return a verdict of death. If you decide on a verdict of death you will so indicate in your verdict. If you have determined the guilt of the defendant and decide against a verdict of death you will return a verdict of guilty and the Court will fix the term of punishment."
While it is true that we have earlier held that instructions to a jury in a criminal case must be written, (Ellis v. People, 159 Ill. 337,) this does not prevent a trial judge from making a brief explanatory statement of the forms of verdict that in no way contradicts the written instructions. We do not believe that this brief statement given here amounted to an oral instruction by the court and it clearly could not have prejudiced the defendant. People v. Lamphear, 6 Ill.2d 346; People v. Bydalek, 381 Ill. 330.
Having examined the complete record in this case it is our conclusion that the defendant received a fair trial and that the evidence adduced justified the jury verdict ...