Appeal from Circuit Court of Cook County; the Hon. JAMES J.
MEJDA, Judge, presiding. Reversed.
MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
On August 14, 1967, Walter F. Carroll, defendant, was indicted by the Grand Jury for the crime of armed robbery. On October 6, 1967, he was tried without a jury, found guilty, and sentenced to a term of one to three years in the Illinois State Penitentiary. This appeal is taken from the judgment of the Circuit Court.
From the record it appears that on July 8, 1967, at about 1:30 a.m., four men entered the I & H Lounge at 2829 West Lake Street in Chicago. The first two stayed near the front bar (one of these was identified as the defendant); the other two went to the rear of the lounge. After drinking and dancing for a time, one of the four announced that there was a stickup; the men ordered all the patrons to the front of the lounge, then took their wallets.
At the trial the defendant was identified as the "second man" by two people the owner of the lounge, Isaac Nelson, and his sister, Lydia Williams, who was acting as bartender on the night in question. Before this court the defendant argues that the discrepancies in the descriptions of the "second man" given by Mr. Nelson and Mrs. Williams would create a substantial doubt that the defendant was adequately identified. Both witnesses described the defendant as wearing a straw hat and sunglasses. That fact alone would not necessarily affect the identification; in many cases a semimasked criminal could be properly identified providing the rest of the description was authentic.
Mr. Nelson testified that the defendant was standing near the front of the bar, about four feet from him, and that he had a gun, but Nelson could not describe it. He said: "No, I wasn't noticing him. I was noticing the man who had the gun on me." (The witness here was not referring to the defendant, or "second man.") By his own admission he had not paid much attention to the "second man" (the defendant). He said there had been about ten or twelve people in the tavern before the four men entered, and that the four were there for about thirty minutes before the stickup. We should point out that the opportunity to observe is quite different from actual observation. No particular reason is offered why Nelson would have paid any special attention to any of the four men before the stickup, and he never claimed that he did; he admitted that after the robbery started he did not pay much attention to the "second man." In his testimony he said: "When Mr. Carroll (defendant) was taking the wallets, I'd say I was three or four feet from him. I was facing south, and the people turning over their wallets was facing the north." Questioning continued as follows:
Q. "Facing the north. Now, Mr. Carroll had to be between you and these people, is that correct, sir?"
A. "No, sir. The people was in between me and Mr. Carroll."
Q. "Then Mr. Carroll was on the other side of the people, is that correct?"
Q. "And the people were standing between you and him, is that correct?"
A. "More or less. Most of them was."
Again, Nelson admitted that his power to observe the man he describes as Mr. Carroll was under far less than ideal conditions. Many people were between them, and this fact alone would have substantially lessened his opportunity to view the man closely. When questioned about hair on the face of the "second man" he said: "If I am not mistaken he had a little goatee." He was further questioned as follows:
Q. "How big a goatee was it?"
A. "Ordinary, like the average guy would ...