Appeal from the Circuit Court of Cook County; the Hon. JAMES
A. GEROULIS, Judge, presiding. Judgment affirmed in part and
reversed in part.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
In a jury trial the defendant was found guilty of attempt to commit murder, aggravated battery and robbery. He was sentenced to serve concurrent terms in the penitentiary of thirteen to eighteen years for attempt to commit murder, five to eight years for aggravated battery and thirteen to eighteen years for robbery. He makes the following points on appeal: (1) that the manner of identification was improper and invalid, (2) that inflammatory evidence was introduced which was both immaterial and without proper foundation, (3) that the court erred in admitting rebuttal testimony of a witness who remained in the courtroom while defense witnesses were testifying, despite an order excluding witnesses, (4) that the indictment did not aver an essential element of the offense of attempt, to wit: an act constituting a substantial step toward commission of the offense, and (5) that concurrent sentences for attempt to commit murder and aggravated battery were improper. The facts follow.
Shortly after midnight on August 1, 1965, the complaining witness left her job in the Loop (the central business district of Chicago) and went to a restaurant with a fellow employee. An hour later she entered the Dearborn Street Subway at Monroe Street. Shortly after she reached the platform a train pulled in and every one on the platform except herself and one man boarded it. The man approached her, slapped her face, demanded money and threatened to kill her if she did not comply. After she gave him her purse, she heard another train coming and tried to escape, but her assailant shoved her down on a bench. She did not remember anything that happened after that until she awoke in a hospital bed the following morning.
Eugene McFerren testified that he was a policeman and that in response to a radio call, he went to the Monroe Street Subway platform at about 2:00 a.m. on the day in question. When he arrived, he found the victim on a bench and described her condition as follows:
"She had a badly swollen right eye, her right jaw was swollen, she was bleeding from the nose and mouth, there was blood on her leg, her right blouse was torn, her breast was partially exposed. . . . There was clothing on the platform floor. . . . Female undergarments: a blouse, a brassiere, I should say, and panties, slip, a half slip."
Dr. Walter Daltsch, the treating physician at Cook County Hospital, examined the victim and found her to be in a condition of "semi-shock." He testified that he observed considerable swelling, bruising and bleeding on the nose and mouth, lacerations and tears of the lips and floor of the mouth, loss of teeth and bone in the lower jaw and some bruising of the neck. The nipple of one of her breasts had been bitten and was hanging by a shred of tissue. There were bruises and lacerations around the vagina and the posterior wall of the vagina. He also testified that X rays revealed other serious injuries.
Later the same morning investigating officers discovered defendant's wallet in the same subway station wedged between a soft drink machine and a pillar. It contained a ten-year-old identification card with defendant's picture. The photograph was shown to the victim in the hospital and she identified it as that of her assailant. The police subsequently located and arrested defendant. He was taken to the victim's hospital room where she identified him.
Defendant testified that he had been involved in a daylong drinking bout with friends and relatives. Several of them corroborated that part of his story, but they also testified that they last saw him at the Douglas Park Elevated Station at about 8:00 p.m., or five hours prior to the crime. Defendant further testified that he boarded an elevated train and rode and slept on trains until 2:00 a.m. He admitted that the wallet found on the subway platform was his. He explained that he had fallen asleep in the Jackson Street Subway Station and that when he awoke the wallet was missing. Officer Henry Kaminski testified in rebuttal that defendant told him he did not discover that his wallet was missing until he was on the Logan Square Elevated.
With respect to point (1), defendant contends that at the time the victim first identified him, she was in a state of shock and that the procedure of bringing him alone to her hospital room was suggestive. He further contends that her in-court identification was made nine months after the crime and was therefore unreliable.
There is no inflexible requirement that an identification to be admissible must be made out of an arranged lineup, although that is the preferred method when it is practical. People v. Boney, 28 Ill.2d 505, 192 N.E.2d 920; People v. Crenshaw, 15 Ill.2d 458, 155 N.E.2d 599. The means of identification is relevant in that it bears on the weight to be given such evidence. People v. Boney, supra; People v. Mikka, 7 Ill.2d 454, 131 N.E.2d 79.
The validity of the type of hospital room identification used in the instant case was upheld in Stovall v. Denno, 388 U.S. 293 (1966) and People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208. In Stovall the court said (p 302):
"Faced with the responsibility of identifying the attacker, with the need for immediate action and with the knowledge that Mrs. Behrendt could not visit the jail, the police followed the only feasible procedure and took Stovall to the hospital room. Under these circumstances, the usual police station lineup, which Stovall now argues he should have had, was out of the question."
The court concluded that the fairness of an identification in such cases depends on the totality of the circumstances surrounding it.
The victim in the instant case spent two weeks in the hospital recovering from her injuries and was in no condition to attend a lineup. She had ample opportunity to observe her attacker in the well-lighted subway station and she was positive in her identification, both in the hospital and at the trial. She testified on cross-examination that she was sure it was the defendant "because I couldn't forget it. It's just something that sticks. I don't know, it's something about the face that, as soon as you see it, you know right away." It undoubtedly was a terrifying and vivid experience for the victim and the jury could well believe her testimony that she could not forget the face of ...