Appeal from the Circuit Court of Cook County; the Hon.
REGINALD J. HOLZER, Judge, presiding. Affirmed as modified.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Defendant was convicted after a jury trial of the offense of armed robbery. Judgment was entered and he was sentenced to a term of forty to eighty years. Defendant raises three points on appeal: (1) he was not proven guilty beyond a reasonable doubt; (2) the prosecution engaged in improper closing argument; and (3) his sentence was excessive.
Testimony of Herbert Goldberg, complaining witness, for the State:
He is the manager of the Time Car Wash located at 3122 West Touhy Avenue in Chicago. On May 2, 1966, he arrived at the car wash at 7:10 a.m. As he walked down the customer walkway, he was accosted by a man who came up behind him and grabbed him by the back of the neck. As he turned around he saw the man had a small caliber revolver which the man stuck to his temple. The gun was cocked. The man was wearing a towel mask with two burnt holes in it. As he looked around the man said, "Don't turn around." The man took him by the back of the coat over to the cashier's cage in front of the safe. He failed to open the safe several times and each time he failed his assailant hit him on the right side of the face. This occurred four or five times. He started to bleed and "everything got very messy." His assailant finally pulled the combination card out of his hand and said, "You don't need this." As he tried to open the safe a few more times his assailant told him, "I'm going to shoot you anyway."
After he opened the safe the defendant said, "Get away" and took $1,100 in currency and several Standard Oil Credit Cards. Defendant then took him to a storeroom, slammed the door and told him to "Stay in there." After he freed himself, he noticed that his car was missing and that a recently replaced window had been broken out and had fallen into the car wash. When the defendant struck him on the cheek, blood might have gotten on the defendant's shoes or clothing. He definitely recognized the voice as that of Edward Nelson, the defendant. He was positive that the man who robbed him was the defendant. The defendant was an employee of his for three months. He characterized the defendant's voice as a quiet monotone with a mumble. The voice he heard from behind the towel mask was the defendant's. Defendant's voice was not similar in character to most Negro voices. He had had many conversations before with the defendant.
He also recognized his assailant as being the defendant because of his unusual style of walk, which he described as very athletic. It was a loose, strutting walk which was not common. It was unique and very noticeable to him. He had never seen anyone else walk in the same manner. If he saw a thousand people there would not be another person who walked like the defendant. He had commented to the defendant about his style of walk many times.
When the police arrived, he described his assailant as six feet tall, 175 pounds, wearing a light gray coverall, a hat, gloves, and a white towel over his face as a mask. He told the police during the morning that he thought his assailant was Edward Nelson.
He knew that the defendant had a prior criminal record two months before the armed robbery, but he still continued to employ him. He did not know what specific crimes the defendant had committed. He has hired men with criminal records to work at the car wash.
He has a speech disorder and he has attended the School of Speech at Northwestern University, as well as a speech school in New York for his own improvement.
Testimony of Herman Novick, for the State:
He is a police officer with the Chicago Police Department. On May 2, 1966, at 7:30 a.m., he received a call of a robbery at 3122 West Touhy. When he first arrived, he saw the manager of the car wash holding his cheek which was swelling and had abrasions. He spoke to Mr. Goldberg, who told him that he had been struck by a man with a gun. Goldberg described his assailant as a male, possibly Negro, about six feet tall, weighing 165 pounds. His assailant was wearing a towel with burnt holes in it over his head. Mr. Goldberg acted very nervous and he did not mention Edward Nelson's name during this conversation which lasted about forty-five minutes.
Upon an inspection of the car wash, he noticed that a newly puttied window had been broken. There were smears of putty on the window sill. He also found a white towel with two burnt holes in it on the floor near the exit of the car wash. He turned the towel over to a police evidence technician.
He had another conversation with Mr. Goldberg after Mr. Goldberg was taken to the hospital.
Testimony of William Higgins, for the State:
He is a police officer with the Chicago Police Department. On May 2, 1966, at 8:45 a.m., he went to the Bethesda Hospital to interview Mr. Goldberg. Mr. Goldberg told him that he thought the man who robbed him sounded like Edward Nelson, but he was not sure. After the interview he proceeded to 3122 West Touhy. Upon an inspection of the premises he found a broken window with glass on the sill and inside on the drive used in the car wash. The putty used to seal the window was ...