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People v. Mcmillan

APRIL 8, 1970.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DENNIS MCMILLAN AND KENNETH KRAUSE, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. JAMES D. CROSSON, Judge, presiding. Affirmed in part, reversed in part.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT.

OFFENSE CHARGED

Armed robbery. Ill Rev Stats 1967, c 38, § 18-2.

JUDGMENT

After a bench trial, both defendants were found guilty as charged, and sentenced to terms of 3 to 9 years.

CONTENTIONS RAISED ON APPEAL

1. Defendant McMillan was prejudiced by the admission of an in-court identification resulting from an unfairly suggestive and prejudicial out-of-court confrontation.

2. Defendants were not proven guilty beyond a reasonable doubt.

EVIDENCE

William J. Dolighan, for the State:

On December 30, 1967, at approximately 4:00 a.m., he was walking south on the east side of the street in the 2800 block of North Orchard Avenue. That evening he had been to a party and had stopped at a nearby bar on his way back to the car. He had had a "moderate amount to drink" — three bottles of beer in three hours.

He observed an automobile going north which stopped under a streetlight about 25 to 30 feet away. A man got out from the passenger's side of the auto and walked up to the witness. The man, identified in court by the witness as defendant McMillan, mumbled something from 15 feet away. The witness asked if he was speaking to him, and McMillan replied, "Yes. Give me your money." The witness reached into a topcoat pocket when McMillan said, "Don't mess with me . . . or I'll plug you with this," indicating a gun in his right hand. The witness then handed him the wallet, which defendant took without looking into and went back to the car. Defendant got into the car through the passenger's door and the car pulled away.

The witness could not ascertain, from 15 or 20 feet, whether there were other persons in the vehicle. He noticed that the car was pink with a white top, and believed it was a 1956 Chevrolet. The car being directly under a streetlight, he noted the license number as it pulled away, and reported it to the police as either PX 592 or PX 892.

He described the gun used in the robbery as black, not a revolver but resembling a German Luger. He identified the gun (which the State offered into evidence) as substantially similar to, or the actual weapon ...


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