APPEAL from the Circuit Court of St. Clair County; the Hon.
JAMES W. GRAY, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 11, 1971.
In a trial before a jury the defendant and Kascell Jennings were convicted of murder, armed robbery and unlawful restraint. Although the jury recommended the death penalty upon the murder conviction the court declined to impose it and sentenced defendants to concurrent terms of 99 to 100 years on the convictions for murder and armed robbery. The record does not disclose that any sentence was imposed upon the conviction of unlawful restraint, the maximum penalty for which is set by Ill. Rev. Stat., ch. 38, par. 10-3(b) at two years imprisonment and a fine of $500. Upon defendant's motion the attorney representing him in this appeal was discharged and leave granted to proceed pro se.
The armed robbery and murder in question occurred at Lee's Wash Rack on North First Street in East St. Louis. The location is near the National City stockyards and the establishment is a facility used by truckers of livestock to the National City stockyards to clean out their trucks after delivery of livestock. There is a building on the premises containing an office, a bunkhouse and a small restaurant. The wash racks are no more than a portion of the lot where the trucks are swept out and washed with hoses and other equipment. The wash rack operates at all hours of the day and night. The wash rack is well lighted by a system of lights arranged to illuminate the area for work conducted during the night time.
Defendant initially argues that the evidence was insufficient to convict him because of the confusion, uncertainty and contradiction of the identification witnesses. In this same regard he contends that the testimony of his alibi witnesses was more probable and believable than that of the State's witnesses and that this court should so find and reverse his conviction.
We will briefly summarize the occurrence testimony of the State's witnesses. Ollie Johnson was the night foreman at Lee's Wash Rack. He testified that at about 3:00 A.M. he was outside the bunkhouse talking with two truck drivers when two men walked onto the lot and approached him and asked directions to a particular address. The two men were characterized as one taller and one shorter. The shorter of the two men put a gun in his face and said, "This is it." The taller man walked around the corner of the building. The shorter man was right upon the witness when he pointed the gun, within a hands reach. The witness and the other two robbery victims were made to lie on the ground while the short man went through their pockets taking their billfolds and money. The victims were then made to crawl under a truck at the side of the building. Other men were later brought to the truck and made to crawl under. Shots were heard. The short man then came to the truck, bent over and told a man by the name of Kelly one of the fellows was hurt, to count to 50 and call the police and an ambulance. The voice was the same as that of the short man. The witness did not see the second man involved in the holdup and was unable to identify defendant Hyde as a participant in the holdup. After the witness crawled from under the truck he saw a man lying on his back by the bunkhouse door. He had been shot in the head and was bleeding from the wound. The witness then made a positive in court identification of the defendant Jennings. He had testified that there were lights all over the place.
Danny Hatcher was a 19-year-old truck driver who had made a delivery of cattle to the National City stockyards and brought his truck to Lee's Wash Rack for cleaning before his return home. He was accompanied on his trip by his wife. When he arrived at the wash rack other trucks were being cleaned and washed. He got out of his truck and gave instructions to witness Johnson regarding the cleaning of his truck and got back into the truck to talk to his wife. After ten or fifteen minutes his wife got into the sleeper portion of the cab to sleep and the witness again left his truck and went to talk with the witness Johnson and another truck driver. The two truck drivers and Johnson were there together with Johnson in the middle. As the three were talking a man walked up and asked directions of Johnson. Johnson started giving the directions and when he turned around the other fellow walked right up to his face and pointed a gun. The man said "This is a stickup, lie face down on the ground." The three laid down and the man went through their pockets taking money and wallets. The three were then told to crawl under a truck behind the bunkhouse by the same man who asked for directions. He heard three shots. After the shots the shorter of the two men came to the truck, kneeled down and said, "I have shot him, count to 50 and then call the police." While he was lying on the ground he looked towards his truck off to the left and the taller of the two men was walking up to the side of his truck. The witness made a courtroom identification of Kascell Jennings as the man who kneeled down and said, "I have shot him, call the police." He then identified defendant Hyde as the other man who had walked over to his truck. When he got up from under the truck he ran around the building and discovered the man lying on his back at the bunkhouse door. He had a bullet wound on the right side of his head and was bleeding. He went to his truck to see about his wife and discovered she was gone. He next saw her at the police station between 3:30 and 4:00 A.M. She was scared and nervous and had a cut on her foot but was otherwise uninjured. The witness further testified that he had previously identified both defendants at the police station, that at the time of the incident the hair of defendant Jennings was long but at the time of the identification at the police station it was short. He further testified that he was not close enough to the taller to see what color clothes he had on, that he saw him only once when he was walking up along side his truck. On cross-examination he stated that he was basing his description of the taller man upon his height. At the time defendant Jennings first approached to ask directions he was within about two and one-half feet of the witness.
Genise Hatcher testified that she was 18 years of age and the wife of Danny Hatcher. At about 2:00 A.M. on the evening in question she was in the truck with her husband and got into the sleeper portion of the truck to sleep. She heard a loud noise like a firecracker. Shortly a Negro man came up and opened the door. When she told him her husband was outside he got down from the cab and left. A few minutes later another man came up and made her get out of the truck. He sort of bent over so he could see her. His face was about three feet from hers. He was also a Negro. Both of the men had guns. When told to get out of the truck she asked the man if she could get her shoes but he told her she didn't need them, just to get out. Neither of the men were covered or wearing anything on their heads. She was made to stand over by the bunkhouse and saw her husband and some other men under a truck. At that time the shorter man was standing beside her and the taller man behind her. She turned around and the man they had shot was lying there. She saw the man lying on the ground and heard the shot fired but did not see who fired the shot. The victim was lying near the bunkhouse door. The taller of the two men took her and put her by the building. He then went back and got her and put her on the floor boards of the car. The tall man told her to lie down and keep her face down on the floor boards. The car was a 1963 red Chevrolet convertible with the top down. She was taken to the National City dump, made to remove her blouse and put it over her head, was walked down a path by the men and told to stay there until they left. She shortly made her way to a plant where the night watchman called the National City police. The witness pointed out defendant Hyde as the man who first came to the truck when she was in the cab and the defendant Jennings as the man who came to the truck later. She stated that she did not see the defendants shoot the man but that the shorter man of the two was about two or three feet from the man who was shot at the time she heard the shot.
Ernest Campbell testified that he was a part-time employee at the wash rack. On the day in question he worked the day shift but he returned about 12:00 to get something to eat. He came out the restaurant about 2:00 A.M. walked toward the east end of the bunkhouse. Just as he got around the corner a man with a gun halted him and made him crawl under the truck. He only saw one man with a gun. He was four or five feet away. It was in the dark and he didn't know how the man was dressed. He crawled through to the other side of the truck and went in the back part of the building and stopped and waited about midway of the building and heard a gunshot. He stood there a few minutes and walked toward First Street and saw two fellows running up the street with a girl by the hand. Each one of them had her by a hand. The car they left in was a maroon convertible. On cross-examination he testified that he saw nothing that happened and could not identify either of the men.
George Woolridge testified that he was a truck driver hauling livestock, that he was at Lee's Wash Rack at the time of the robbery and murder, arriving there about 12:30, that he was finished with the clean out at about 2:00 o'clock. He was with Hatcher and Johnson near the bunkhouse door when two boys came up to ask about an address and one boy who walked up said "all right, this is a holdup." He had a gun. The three were made to lie on the ground and their billfolds were taken. The three were then told to get under the truck at the end of the bunkhouse. After that he heard a shot fired. Then one of them came back and told them to count to 50 before we got up. He did not recognize the voice that said that. There were some other trucks there but no drivers. The man who came up had dark glasses on. He didn't notice if he had anything else on his head. The witness made an in court identification of defendant Jennings as being the man. When he got out from under the truck he saw a white man lying there by the north door of the bunkhouse with a hole in his head. It was bleeding. The witness did not identify defendant Hyde.
James E. Kelly was employed at Lee's Wash Rack as a washman. He was present during the event in question, seated on a bench facing the wash rack grounds near the door to the kitchen. Two fellows came up, one passed by and the other stopped and asked for an address. The men were colored, one little and one tall. The little one went to the end of the bunkhouse and around to the back. The tall one stopped there between him and his friend and asked for an address. Upon being told that they did not know they were then told to look around to see where the other fellow went. The witness and his friend were then told by the tall man to get over and lay under a truck. He had a gun in his hand. After they were under the truck they heard three shots not too far apart. They came from around the front of the building. Another man was brought back to the truck and made to crawl under. After the robbery a woman was brought from out of a truck parked in the rear and made to stand about five feet from where the men were under the truck. The tall guy put a gun to his head and told him to count to 50 and call the police and an ambulance. The two men then got the woman by the arm and put her in the convertible. After the witness got up he saw a man lying there shot. The witness then identified defendant and Kascell Jennings as the two men who came to the wash rack and did the robbery.
Defendant asserts that the testimony of the People's identification witnesses is unworthy of belief because (1) Danny Hatcher informed police that both assailants were clean shaven when in fact he, the defendant, had a moustache, and that Danny Hatcher based his description of defendant on his height: (2) Genise Hatcher was blindfolded and could not see anything and had stated to police that both her abductors were clean shaven; (3) James Kelly based his identification of defendant only upon his size.
• 1, 2 These contentions are simply not borne out by the record. We have been unable to find any statement by any witness that both assailants were clean shaven. Nor do any of the police reports which defendant has included in the record reflect that any witness had described the assailants as clean shaven. The only place the "clean shaven" allusion appears is in a bulletin or arrest notice issued by the Madison, Illinois Police Department. It does not appear that that police department was ever involved in any way with the investigation of the crimes and the statement in their bulletin that the suspects were clean shaven, being otherwise unsupported, must be considered spurious and unavailing as an impeachment of the identification testimony. While it is true that on cross-examination Danny Hatcher and James Kelly stated they were basing their identification of defendant on his size it is readily apparent from a reading of their testimony that by no means was size their only criterion for identification. Each of the three identification witnesses, Danny Hatcher, Genise Hatcher and James Kelly, were in a good position to observe, and did observe, the assailants under conditions that lend veracity to their observations. All three identified both defendants in lineups and at the trial. They asserted their positiveness and remained unshaken on cross-examination.
The defendant testified in his own behalf, denied the robbery and shooting, offered an alibi and produced three witnesses in its corroboration. He stated he worked as a laborer until 4:30 P.M. on July 22, 1969. He then went home, cleaned up and went to the home of his sister-in-law, arriving there at about 5:30. From there he left with Mary Alice Lewis and went to the Dunbar School to pick up his sister-in-law. He then traced his whereabouts throughout the evening in the company of Mary Alice Lewis, his sister-in-law and others until he finally left their home, walking, at about 2:30 A.M. on July 23, ...