Appeal from the Circuit Court of Cook County; the Hon. GORDON
NASH, Judge, presiding. Affirmed.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.
Armed robbery, Ill Rev Stats (1965), c 38, § 18-2; and two charges of aggravated battery, Ill Rev Stats (1965), c 38, § 12-4 and § 12-4(b) (2).
After a bench trial, John Williams and Henry Steele were found guilty of all charges, and were given concurrent sentences of 1 to 5 and 3 to 8 years, respectively, on each count. A co-defendant, Jimmie Williams, was found not guilty.
(1) The identification of defendants was improperly made and based upon inadmissible testimony, resulting in prejudice to defendants.
(2) Alibi evidence, coupled with prejudicial identification testimony, raises a reasonable doubt of defendants' guilt.
Ben Zemel, for the State:
On March 24, 1967, at approximately 4:00 p.m., he was about to close the doors of his produce business when three men entered the premises. The first said he wanted a case of eggs and then another hit him with a "billy" club. They were brandishing a double-barreled, sawed-off shotgun and a pistol, and declared that this was a holdup. Steele, the man who had struck him, then herded him and his sons into the cooler located on the first floor. Later, Steele ordered him to come out, led him to the office, and told him to open the safe. He opened it and gave Steele the money, and again was struck on the head with a pistol.
Steele said more money was hidden away, but witness denied it, whereupon Steele ordered one of witness' sons out of the cooler. Witness told Steele to leave his son alone and he would give him his wallet. Thereupon, he gave Steele his wallet containing $100, and Steele hit him over the right eye with a pistol, rendering him unconscious. Before that, he had seen the other two men and identified them in the courtroom as Jimmie and John Williams. The office was well lighted and he had seen the faces of the robbers. All three men had guns. The robbery took about 15 minutes. A total of about $600 was taken.
He had seen Steele on occasions prior to the date of the robbery, as "he used to come around and hang around the place." Steele had applied to him for a job but was refused employment. On the day before the robbery, Steele was "hanging around" on the street outside his place of business.
In the hospital, he identified a photograph of Steele from a group of about a dozen photographs shown to him by the police. On April 14, 1967, he saw Steele in a lineup of about half a dozen men at the police station. On May 2, 1967, he identified Jimmie and John Williams in a lineup. The police had told him, on both occasions, that they thought they might have the men who were the robbers. At the second lineup, he initially picked the wrong man, but he then took a closer look, realized his error, and picked the Williams brothers.
Henry Zemel, for the State:
He was working at his father's place of business on March 24, 1967, when three men (identified as the three defendants) came in and, after Steele asked for some eggs, they said it was a stickup. Jimmie Williams carried the shotgun and ordered everyone into the cooler. He went into the cooler and stayed about 10 minutes, when his brother kicked the door open. Upon running out, he saw his father with his eye torn, in a state of shock, and "blood all over the place." His brother went next door and called the ...