Appeal from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
The defendant, James Edward Garnett, was indicted with Wesley French and John French for the offenses of murder and armed robbery. The defendant was tried separately before a jury and was found guilty of attempted armed robbery and was sentenced to the Illinois State Penitentiary for a term of ten to twelve years.
The defendant contends that: (1) he was not proven guilty beyond a reasonable doubt; (2) the verdicts of not guilty of murder and guilty of attempted armed robbery were inconsistent and the guilty verdict should therefore not be allowed to stand; (3) the State's closing argument improperly shifted the burden of proof to the defendant; (4) it was prejudicial for the prosecution to place before the jury its personal belief of the defendant's guilt; (5) the State's use of accomplice testimony deprived the defendant of due process of law and of equal protection of the laws; and (6) the sentence was excessive and should be reduced.
At trial the State produced two witnesses, Wesley French and Larry Hicks, who testified that they were with the defendant on the night in question and that the defendant stabbed the deceased, Frank White.
On direct examination, Wesley French testified to the following. At about 10:00 p.m. on the evening of September 5, 1966, the witness, Larry Hicks, John French, and the defendant went to a drugstore and to a liquor store in which they purchased wine, beer, and several other items. The four men walked along South Park Avenue but stopped as they reached 41st Street, whereupon "me (the witness) and James (the defendant) uh, decided, uh, to rob a man." The witness and the defendant crossed the street to where they saw the victim, Frank White, walking toward his apartment. Larry Hicks and John French remained on the opposite side of the Street. The defendant asked the victim for a cigarette. White began to walk to the doorway of his apartment building when the defendant and Wesley French ran behind him. As White reached the door to the vestibule, the defendant stabbed him in the back with a green-handled fishing knife. White turned and fell to the vestibule floor and the defendant stabbed him three more times in the chest and the witness went through the victim's pockets. The two men then fled the scene and returned to Linda Johnson's house. John French and Larry Hicks were at the house when they arrived.
Larry Hicks substantially corroborated the testimony of Wesley French. While standing across the street, Hicks stated that he saw the defendant stab the deceased. He added that he had never talked to Wesley French after the events of that evening.
On cross-examination, Wesley French admitted that he expected leniency in return for his truthful testimony. He also admitted to having made inconsistent statements prior to trial. He admitted that he had denied any participation in the crimes at the coroner's inquest. He also revealed that he had made a statement to the police on September 12, 1966, in which he denied that his brother, John French, was with them on the night in question. On redirect examination, the State, with the consent of the defendant, read to the jury a written promise made by the State to Wesley French wherein it stated that in return for his truthful testimony, the murder charge would be dismissed if he pleaded guilty to the armed robbery charge and that the State would recommend a sentence of not less than twelve nor more than fourteen months' imprisonment.
The cross-examination of Larry Hicks revealed that he too had made earlier statements which were inconsistent with his testimony at trial. He stated that he had lied on those earlier occasions "to keep it all from falling down on me."
The defendant testified on his own behalf that he had spent the night with his girl friend, Evelyn Tankson. He stated at some time during the evening he fell asleep on the couch and awoke at about 6:00 a.m. on the morning of September 6, 1966. He further testified that Evelyn Tankson's sister, her two brothers, a friend named Curtis, and Evelyn's two children were in the apartment with him and Evelyn. According to the defendant, Miss Tankson's mother arrived at the apartment some time that morning since she was in the apartment when he awoke.
Evelyn Tankson's testimony was offered by the defendant to corroborate his alibi testimony. She stated that the defendant was her boyfriend and was with her in her apartment from 4:00 p.m. on September 5, 1966, to 6:00 a.m. on the following morning, but on cross-examination she said that she and Garnett stayed awake all evening and neither went to sleep. They danced and listened to records. Her testimony also conflicted with the defendant's version when she stated that she and Garnett had dinner at 6:00 p.m. at which time her mother was present.
John French, the brother of Wesley French, testified on direct examination that at about 11:00 p.m. that evening he went to a drugstore with his brother Wesley and with Larry Hicks and returned with the two men to Linda Johnson's house at about 1:00 a.m. that morning. Wesley and Hicks then left and returned at about 3:00 a.m. The witness stated that at no time during that evening did he see the defendant. It appears from the record that the case against John French had been dismissed.
The State then produced the testimony of two police officers who stated that on September 11, 1966, John French made a statement in which he admitted he was accompanied by Wesley French, Larry Hicks, and the defendant on the evening in question.
The defendant asserts that his guilt was not established beyond a reasonable doubt because the State's case was totally predicated upon the testimony of the two accomplices who admitted to having made statements inconsistent with their trial testimony and because Wesley French testified after a promise of leniency was made to him by the State. It is true that this State has followed the common-law rule that the uncorroborated testimony of an accomplice, if it satisfies a court or jury beyond a reasonable doubt, is sufficient to sustain a conviction of a felony, but it has also been recognized that such testimony is not the most satisfactory, is attended with serious infirmities and should be viewed with the utmost caution. (People v. Wollenberg, 37 Ill.2d 480, 229 N.E.2d 490; People v. Hansen, 28 Ill.2d 322, 192 N.E.2d 359.) But these infirmities relate to the weight and credibility to be accorded such evidence, which are matters within the province of the jury as the trier of fact.
In the instant case, the jury returned a guilty verdict after hearing the State's promise of leniency to Wesley French and after hearing the prosecution's witnesses admit that they had lied on prior occasions. They heard these witnesses substantially corroborate each other. The jury also heard the alibi testimony of the defendant and the attempted corroboration of his girl friend, Evelyn Tankson, which contained divergencies from that of the defendant. John French's testimony that the accused was not with Wesley French or Hicks on the night of the crime was challenged by the introduction of the testimony of the two police ...