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People v. Harkey

APRIL 8, 1970.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

EARL L. HARKEY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. MEL R. JIGANTI, Judge, presiding. Affirmed.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.

Defendant was found guilty by a jury of the crimes of robbery (July 26, 1968) and armed robbery (July 18, 1968) and was sentenced to a term of ten to fifteen years on each charge, the sentences to run concurrently. Defendant appealed directly to the Supreme Court which found that it had no jurisdiction on direct appeal and transferred the case to this court.

Defendant raises three points on appeal: (1) the prospective threat of testimonial impeachment for a prior conviction denied him due process and equal protection of the law; (2) the impeachment by nonstatement of a defense witness at the preliminary hearing was improper; and (3) the prosecution's improper and prejudicial closing argument deprived him of a fair trial, and in the absence of such prejudice he would not have been proved guilty beyond a reasonable doubt.

On July 18, 1968, the defendant entered Morrow's Nut Shop, located at 36 West Washington Street, Chicago, Illinois, at 8:35 p.m. He ordered Mary Williams, a salesgirl, to put the money from the cash register into a paper bag. He had a gun during the robbery. She saw the gun handle and barrel. The defendant escaped with $90. She described the defendant as thirty-six to forty years old, five feet, seven inches tall, 140 pounds in weight, with large eyes and a moustache. He was carrying a shopping bag. He wore no glasses. He had on a checkered shirt and dark pants. She only saw him for a short time.

On July 26, 1968, the defendant again entered the store at 8:35 p.m. Miss Williams was the salesgirl. The defendant threatened her and told her to put the cash register money in a paper bag. He told her to walk to the back of the store while he escaped with $70. She described the defendant as wearing a blue sweater and brown pants. He was carrying a paper shopping bag during the robbery. She thought the defendant was younger, about twenty-seven years old, 175 pounds and five feet, nine inches tall. She had a real good look at him for approximately five minutes.

On July 29, 1968, the defendant came into the store and asked for Miss Williams. She did not answer him. When the manager called out the maintenance man's name, the defendant walked out of the store. The police were called and Miss Williams told them that the man was the same one who had robbed the store twice before.

The defendant once again entered the store on August 8, 1968. Miss Williams walked slowly to the back door and asked an employee next door to call the police. Defendant left the store when he saw the police coming. He was arrested approximately one block from the store. He was carrying a shopping bag at the time of his arrest.

Miss Williams identified the defendant in court as the man who twice robbed the store.

The arresting police officers testified as to the apprehension and capture of the defendant.

Mrs. Lennie Zuehlke, store manager for the Morrow Nut Shop, testified that the defendant was the same man who entered the store on July 29. She described him as thin and tall, Negro, five feet seven inches, 160 pounds, with pockmarks or blemishes on his face. He looked as if he needed a shave. He was carrying a brown paper bag and a dollar bill when he entered the store.

Minnie Yelder, the defendant's mother and the only witness for the defense, testified that her son is near-sighted and that he must continually wear glasses. On July 18 her son and she watched the White Sox ball game during the evening hours and then went to bed. Her son had come home from work at General Felt by 8:30 p.m.

Elmer Pendarvis, personnel manager at General Felt, testified that the defendant worked at General Felt for one day only. He started on Thursday night, July 11, at 11:00 o'clock in the evening and worked until 7:00 a.m. Friday morning.

Don Unferth, Regional Director and Club Statistician for the White Sox, testified that the Sox played an afternoon game on July 18 which ended at 3:28 p.m. The Sox did not play a night game on July 18.

Gordon Fullmore, a court reporter, testified that the transcript of defendant's preliminary hearing showed that the defendant's mother, Mrs. Yelder, never made any statement during the ...


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