APPEAL from the Circuit Court of Tazewell County; the Hon.
CALVIN R. STONE, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Defendant was indicted and tried by a jury in Tazewell County for armed robbery and robbery. He was found guilty of robbery and sentenced to the penitentiary for a term of four to twelve years. The charge arises out of an incident that occurred on October 21, 1969, in a tavern in Creve Coeur, Illinois, known as the Harbor Lights. The complaining witness, Peter Horvath, was tending bar on the night in question in the Harbor Lights, the same being a tavern, pool hall and restaurant establishment owned by Horvath's mother. He testified that early in the morning at approximately 2:30 or 3:00 A.M., two men came into the establishment, played three games of pool, ordered and ate "three chili dogs" taking them approximately twenty to twenty-five minutes. No one else was in the establishment. He identified defendant as one of the two men. He stated that defendant's accomplice gave him a $10.00 bill to change and while he was looking for change the accomplice struck him on the right temple knocking him down. He testified that defendant and his accomplice then took money from the cash register in the amount of approximately $100.00 and the defendant removed a gun from a small drawer near the register, the gun apparently being the property of Horvath or his mother. The defendant then pointed the gun at him and said twice that he would kill him. The two men then left the store.
Defendant complains that the lower court committed reversible error when it failed to inquire of the jury as to whether they had read a newspaper article. After the jury had been selected but prior to the start of the trial counsel for defendant informed the court of an article that appeared in a Peoria newspaper, a newspaper circulated in Tazewell County that morning, that counsel felt was prejudicial to the defendant. The abstract shows the following conversation took place outside of the jury:
"MR. HAYES: My client has informed me that an article appeared in this morning's Peoria Journal Star concerning his plea of guilty to the charge of bank robbery in the Federal Court of Peoria. Therefore, I move that the court inquire of the jury if they saw the article and if anyone did see it to admonish them to disregard it.
"THE COURT: The Court has seen the article and will before the jury leaves today admonish them again not to read any articles and if some information has happened to have been read by them or passed on to them in any way they should disregard it. The motion of the defendant to inquire of them will be denied. * * *".
The abstract does not contain the article and it does not appear from the foregoing that it was presented to the lower court. The record is silent as to the exact language contained in the article.
The defendant contends that the trial court was required to make inquiry of the jury regarding the article, citing People v. Cox, 74 Ill. App.2d 342, 220 N.E.2d 7, and People v. Robertson, 74 Ill. App.2d 360, 220 N.E.2d 5. In both cases the news article was made a part of the record. In both cases the article referred to the case being tried as opposed to the article in this case where the article makes reference to another charge, another plea in another county.
• 1 The question of whether a jury should be interrogated with respect to a given newspaper article rests in the exercise of the sound discretion of the trial judge. It is the improper exercise of that discretion by the trial court that is error, not the refusal to interrogate the jury. (People v. Murawski, 394 Ill. 236, 68 N.E.2d 272; People v. Cox, supra.) As stated in the latter case:
"This does not imply that every newspaper article published during trial requires an interrogation of the jury. Its nature, content and prejudicial effect, if any, is to be resolved by the trial court in an exercise of sound discretion. The article must be produced and made a part of the record and its prejudicial effect, if any, first carefully explored by the trial court."
"It is clear that the determination to be made by the trial court rests not alone on what the jury says on interrogation but the nature of the published material together with all other facts and circumstances in the record."
• 2 Failure of defendant to either produce the article or if done to abstract the same prevents this court from ascertaining if the lower court improperly exercised its discretion. It is noted that the trial judge acknowledged reading the article and we must assume that the court ruled properly.
Defendant next contends the court erred in failing to direct a verdict to the charge of armed robbery. The contention here is that the failure to so direct a verdict, acting together with an erroneous instruction given by the court and inflammatory remarks made by the States Attorney, prejudiced the defendant and caused the jury to reach a compromise verdict. The instructions given by the court will be commented on later in this opinion.
The testimony establishes that the gun did not come into play until and at the same time the money was taken from the cash register. Defendant contends the gun was no more than a part of the property taken. This is not accurate for the testimony shows the gun was pointed at Horvath and that the defendant threatened to kill him. Defendant nonetheless claims, not without merit, that the weapon was not used in the commission of the crime nor in perfecting an escape. The substance of the argument is that despite the obvious intimidation of Horvath ...