Appeal from the Circuit Court of Cook County; the Hon. JACQUES
F. HEILINGOETTER, Judge, presiding. Judgments affirmed.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
In a trial by the court without a jury, the defendants, Quitman Dotson, Hubert Conley and William Page, a/k/a William Pace, were found guilty of robbery (Ill Rev Stats (1967), c 38, § 18-1 (a)). After judgments were entered and their oral motions for a new trial and in arrest of judgment were denied, the defendants were each sentenced to two to ten years in the State Penitentiary. In this their joint appeal, they contend that: (1) their jury waivers were not knowingly and understandingly made in open court; and (2) they were not convicted beyond a reasonable doubt due to the conflicting testimony of the complaining witnesses.
Testifying for the State were the two complaining witnesses, Mrs. Jean Breuer and Mr. Gerald Galvin, and one of the arresting officers, Detective Sheldon Green. The three defendants testified in their own behalf.
Mrs. Breuer, a widow, stated that she met Mr. Galvin, whom she had known for two or three months, in a tavern in Chicago at approximately 11:30 p.m. on October 11, 1967; that she went to this establishment directly from her apartment; that she and Galvin drank together for two hours interrupted only by his intermittent trips to the bowling machine; that she never drinks whiskey but Galvin bought her one beer and she purchased one for herself before she and Galvin left together at approximately 1:30 a.m., as he was going to walk her home. Mrs. Breuer went on to state that as she and Galvin were going into the vestibule of her apartment building, three yelling men ran in behind them, one of them seized her purse, struck her in the eye and forehead causing her to fall, and ran back to a station wagon with her purse. He then returned to the vestibule, participated in beating Galvin with the other two men, and thereafter began dragging Mrs. Breuer, by her feet, to the station wagon saying that they should rape her. The other men said no and all three then fled in the vehicle. Mrs. Breuer identified Dotson in the courtroom as being the man who dragged her toward the station wagon and thought that Conley was also involved, but could not be positive.
Continuing, Mrs. Breuer testified that the police arrived on the scene approximately five minutes after the offense had occurred and shortly thereafter she and Galvin were taken a distance of two or three blocks to view three men sitting in a police car; that she there identified one of the men, Dotson, as being her assailant; and that her purse was returned to her later in the police station. In conclusion, Mrs. Breuer denied ever standing on a corner with Galvin on October 12, 1967, and asking for a ride home or engaging in an argument with any men on that night or seeing Galvin fighting with any men in an automobile on the night in question or ever vomiting on anyone in an auto that evening.
The other complaining witness, Gerald Galvin, testified that he and Mrs. Breuer had visited two taverns on the night in question; that they spent about one hour in the first tavern, with each drinking three small bottles of beer bought by Galvin, and thirty to forty-five minutes in the second tavern, where he had two more small bottles of beer and did not know if Mrs. Breuer had any more beer to drink. He denied that he and Mrs. Breuer were intoxicated as they left the second tavern and walked to her apartment. Regarding the robbery, Galvin testified that the incident took about five minutes; that he was holding open the door to the apartment building for the three men who were entering the vestibule behind him and Mrs. Breuer, thinking they were tenants of the building, when one of them struck Galvin with a fist knocking him to the floor of the vestibule. Two more men thereafter participated in beating him and one of them dragged Mrs. Breuer out of the hallway or vestibule. Galvin's wallet, which contained seven dollars, was taken from him, and the robbers escaped in a 1959 or 1960 black Chevrolet station wagon.
Approximately ten minutes later, the police took him and Mrs. Breuer to look at the occupants of a black Chevrolet station wagon which had been stopped about three blocks from the scene of the robbery. Galvin testified that he identified Dotson and Conley at that time as two of the robbers and saw Mrs. Breuer's purse lying on the floor of the station wagon. The police opened the purse and found Galvin's wallet therein but his money was missing. After making in-court identifications of Dotson and Conley as two of the robbers, Galvin went on to state that he did nothing in the two taverns on the night in question but sit at the bar and that he never asked anyone for a ride in their car nor fought or argued with anyone that evening, nor did Mrs. Breuer vomit on the night in question.
One of the arresting officers, Detective Green, stated that he and his partner talked with Mrs. Breuer and Galvin shortly after the robbery and they left the scene after receiving a description of three white males and being told the robbers left in a black 1960 Chevrolet station wagon; that five or ten minutes later this witness and his partner stopped such a vehicle about two or three blocks from the scene of the robbery and saw that three men were in the car. Detective Green identified the three defendants in the courtroom as being the occupants of the vehicle on the morning in question and stated that the police found a woman's purse lying on the front floor of the station wagon. A man's wallet was inside the purse. Although Detective Green testified that he detected the odor of alcohol when he spoke with Mrs. Breuer and Galvin in the police station later that morning, he denied that they were intoxicated.
All three defendants testified and stated that they had been drinking on October 11, 1967; that Dotson and Page had met each other at 9 a.m. on October 11, 1967, and had spent the rest of the day drinking together, meeting Conley at 9 p.m. and thereafter drinking with him; that at approximately 1 a.m. on October 12, 1967, Page was driving the other two defendants home when Mrs. Breuer staggered in front of Page's station wagon and was pulled back by her companion, Mr. Galvin; that Galvin asked Page for a ride to Mrs. Breuer's apartment, Page agreed, and they got into the back seat of the station wagon with Dotson, as Conley was in front with Page.
During the ride home, Mrs. Breuer allegedly vomited on Dotson who then pushed her into Galvin. The car stopped in front of her apartment building, Mrs. Breuer and Galvin left the car, but Galvin pulled Dotson out and started to punch him. A fight ensued between Galvin and the three defendants lasting for five minutes and going from the sidewalk into the vestibule of the building before the defendants left. All three defendants denied that they had robbed either Mrs. Breuer or Galvin.
Dotson admitted that the police found a purse on the floor of the station wagon, but Page stated that he never saw it there while he was driving the vehicle. Dotson also testified that a man's wallet was found in Conley's pocket. Conley stated that his pants pocket was torn during the fight which caused his keys and cigarette lighter to fall out. After the fight had ended, he saw these items, along with a wallet, lying on the ground outside the apartment building. He picked up everything and put it in his pockets, thinking these articles were his property. When the police stopped him, he noticed for the first time that he had two billfolds. After he identified his wallet, the police put the other one in the purse and took the defendants to the police station.
In rebuttal, the State introduced authenticated documentary evidence showing that in 1959 Conley had been convicted of robbery in Cook County and in 1961 Page had been convicted of burglary in Tennessee.
Regarding the jury waiver issue, the record reflects the following colloquy between the court, the ...