Appeal from the Circuit Court of Cook County; the Hon. JOSEPH
A. POWER, Judge, presiding. Reversed and remanded for a new
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Defendants were tried by a jury and convicted of robbery. Judgment was entered and defendants were sentenced for a term of not less than ten nor more than thirty years.
Defendants jointly raise three questions on appeal: (1) the court invaded the province of the jury by giving an instruction which amounted to directing the verdict; (2) the assigning judge improperly sat as a court of appeal to review and overrule an order of the trial judge severing the causes of the two defendants; and (3) the prosecutor's argument was prejudicial and deprived the defendants of a fair trial. Defendant Wicks raises two further points on appeal: (1) the lineup in which he was identified by the complaining witness was so unnecessarily suggestive and conducive to mistaken identity as to deny due process of law; and (2) he is entitled to discharge because he was held in custody for 120 days without trial.
On May 19, 1965, five armed men entered the offices of Maywood Finance Corporation in Maywood, Illinois, and robbed it of an undisclosed sum of money. The defendants were identified by the manager as two of the participants in the robbery.
The first point urged on appeal, by both defendants, is that they were unfairly prejudiced when the trial judge gave the following instruction:
The court instructs the jury that the positive identification of one witness who had a favorable opportunity for observation is sufficient to support a conviction for armed robbery.
The language of this instruction was obviously taken from the opinion in People v. Washington, 26 Ill.2d 207, 210, 186 N.E.2d 259, and cases cited therein. It is singularly appropriate to a reviewing court because that court assumes that the jury has observed the witness, has considered all the evidence in the case and then has been convinced of defendants' guilt beyond a reasonable doubt. As stated in People v. Harper, 36 Ill.2d 398, 404, 223 N.E.2d 841:
The State has cited no case, and we have found none, that approves an instruction in the language given here. The fact that certain language is appropriate in the context of an opinion does not necessarily justify its use in an instruction without further explanation.
We find that it was reversible error to give the aforementioned instruction in the instant case since the scope of the jury function was restricted thereby. The instruction could reasonably have been construed by the jury as a statement that the court was satisfied that one witness had a favorable opportunity for observation, and had made a positive identification of defendant. Both of these are factual conclusions which should have been left to the jury's determination from the evidence.
The State argues that the error was waived by the failure of defense counsel to object to the instruction. Defendant counters by referring to Supreme Court Rule 451 (Ill Rev Stats 1967, c 110A, § 451):
In criminal cases instructions to the jury shall be tendered, settled and given in accordance with section 67 of the Civil Practice Act, but substantial defects are not waived by failure to make timely objection thereto if the interests of justice require.
We find that the defect in the instruction was substantial and that the interests of justice require that the failure to object is not a waiver in the instant case.
The second point raised by both appellants is that their cases were improperly joined. Defendants point out that Judge Friedlund first severed the causes and then refused the State's motion to rejoin them. After Hayes' first trial resulted in a mistrial, his case was sent back to the assigning judge for reassignment; the Wicks case remained with Judge Friedlund. The assigning judge, Judge Napoli, however, entered an order rejoining the cases and then reassigned them both to Judge Power. Defendants argue that Judge ...