Appeal from the Circuit Court of Cook County; the Hon. FRANCIS
T. DELANEY, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a bench trial defendant was found guilty of the offense of armed robbery in violation of chapter 38, section 18-2, of the Ill Rev Stats 1965. He was sentenced to the penitentiary for a term of three years to three years and one day. On appeal defendant contends (1) that the trial court erred in accepting his jury waiver, and (2) that he was not proved guilty beyond a reasonable doubt.
During the early hours of February 4, 1967, at about 2:00 a.m., William Gooden, while driving a Checker taxicab, picked up defendant as a passenger at 38th and State Street, Chicago. Defendant asked to be taken to 37th and Michigan and back again. When they arrived at 37th and Michigan, and after having conversed for awhile, defendant announced, "This is a stickup," and placed a gun at Gooden's back. Gooden immediately reported the robbery and, at about 2:30 a.m. in the police station at 48th and Wabash Avenue, he gave a statement of the robbery to the police, which included a description of the assailant, his clothing, and that he was about thirty years old. At a police station showup on the evening of February 4, 1967, Gooden identified defendant as his assailant. Gooden's testimony included the details of the robbery and the showup. He identified defendant in open court and also stated that a gun shown him was similar to the one used by defendant in the robbery.
As to the showup, Gooden testified that a police officer called him and said they had arrested the man who had held him up and wanted him to come to the station to identify him. The showup consisted of five Negro men, all about the same height. When Gooden walked into the showup room, the five men were facing a wall with their backs toward him. Later they all turned around facing him, and Gooden recognized defendant in the lineup. The men were not of the same age four appearing to be about twenty years of age while the defendant appeared to be about thirty; nor were the other men of the same skin color as defendant. Gooden also stated that the clothing on defendant at the showup was the same he had seen on defendant in the cab.
Police Officer George J. Linzy testified as to his arrest of defendant on February 4, 1967. He described defendant's clothing and identified People's Exhibit 1 as a revolver found on defendant. He stated a showup, consisting of five Negro men, was conducted at a police station on Sunday at about 6:30 in the evening. Gooden identified defendant as his assailant by placing his hand on defendant's shoulder.
Police Officer Ralph Gibbon, who was assigned to make an investigation of the complaint, testified that he notified six different victims, including Gooden, to attend the showup. He told Gooden that "we wanted him to attend a showup and possibly make an identification of the person who had robbed him."
Defendant testified and denied the robbery. At 2:30 a.m. on February 4, he was home in bed and asleep. On the evening of the 4th he was arrested at about 10:30 p.m. by two police officers as he was going into a barbecue place with two friends. He was searched and a gun was found on him which he had had since 1965.
A State rebuttal witness, William Tucker, testified that he was a cab driver. On February 4, 1967, he picked up defendant about 10:30 in the evening at 43rd and Ellis and drove him to 37th and Indiana. The defendant then produced a gun and robbed Tucker of his money. Tucker found a squad car, and a search led to the arrest of the defendant at 37th and Indiana, and defendant was then arrested. Tucker identified defendant in court.
Considered first is defendant's contention that he did not understandingly waive his right to a jury trial in open court. At the trial defendant was represented by Mr. John Van Zeyl, an assistant public defender. The report of proceedings shows that when the case was called for trial, the following took place:
The Clerk: "Robert Guyton."
Mr. Van Zeyl: "Let the record show on behalf of Robert Guyton I am tendering to the Court a jury waiver which has been signed by the Defendant."
Mr. Motherway: "That's for which indictment?"
Mr. Van Zeyl: "67-1351, I believe it is."
The Court: "That's the one on which we're proceeding. Mr. Guyton, you have heard Mr. Van Zeyl advise me that you wish to waive your right to a jury trial and ...