Appeal from the Circuit Court of Cook County; the Hon. JAMES
J. MEJDA, Judge, presiding. Reversed.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Defendant was convicted, after a bench trial, of the crimes of robbery and aggravated battery. Judgment was entered and he was sentenced to a term of not less than two nor more than seven years in the Illinois State Penitentiary. Defendant raises two points on appeal: (1) he was not proven guilty beyond a reasonable doubt; and (2) the in-court identification of defendant was tainted by an improper one-man showup.
Testimony of Donato Casella, complaining witness:
He is eighty years old but never went to school. He owns a tavern at 2000 West Erie Street. On October 15, 1966, in the afternoon two men came into his tavern; one of them closed the side door. He identified defendant as one of the men who entered the tavern. He made the identification by leaving the witness stand to "see him close, no far." He had seen defendant in the tavern five or six times before the occurrence. Defendant would come from work and buy quarts of beer to take home.
One of the men asked him to turn on the jukebox. When he did so, one of the men grabbed him and did something to his neck. The other one got him in a headlock and pushed him to the floor and put his foot in his face. The other man hit him in the neck. The defendant went to the cash register. He took about $200 in cash and they took his wristwatch, which was worth about $100.
There are a lot of strong lights in the tavern; it is bright in the tavern because he has a telephone there and the people have to see. The lights were on when the two men came in. The two men stayed about an hour in the tavern. He was unable to describe the clothing of his assailants. It seems that one of them had on a red sweater. The men also took his coat. The men took his pants off. The defendant put a cord around his neck.
James Emerson is not one of the men who robbed him. He did not see Emerson on the day of the robbery. He was tied up without his pants and he managed to move like a sheep with his hands bound in front of him. He moved out the side entrance in an effort to get to his son's establishment next door. He got outside and then toppled over with blood on his nose and mouth. James Emerson did help him get to his son's restaurant.
He does not have eyeglasses; he does not need eye-glasses. He has worked thirty-nine years without eye-glasses. He has not seen a doctor about his eyes. Holding a twenty dollar bill some fifteen to eighteen inches from his face the witness said that it had a number ten or a twenty on it; he finally identified it as a twenty dollar bill. During the inspection of the bill he moved it closer and further away from his face, turned it upside down and turned it forward.
He saw defendant about a week before the robbery when the defendant entered the tavern and stole his gun. Defendant brought back another gun, but he wanted his own gun.
After the robbery the police brought a man to the tavern. That man was one of the robbers; it was the defendant.
Testimony of Harold Marsicek, called by the State:
He is a police officer with the City of Chicago and was so employed on October 16, 1966. On that day he was assigned to investigate a robbery at the 2000 Club. In the course of that investigation he saw the victim, Mr. Donato Casella. Mr. Casella's eyes were discolored; he had contusions about the head and face, and he was discolored down to the middle of his chest and both arms.
Subsequent to the interview with Casella, he arrested the defendant on October 27, 1966. He saw defendant several days before the arrest was effected. On about October 18 he took defendant to the 2000 Club (Casella's tavern). At that time he had a conversation with Casella. Defendant then said to Casella, "Danny, I'll straighten it out for the gun." At that time Casella identified defendant as one of his robbers. Defendant admitted taking Casella's gun about a week or two prior to the robbery.
Defendant was not placed in custody on October 18 because his accomplice was still at large and the police were continuing their ...