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People v. Olson

DECEMBER 23, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JOHN G. OLSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. KENNETH R. WENDT, Judge, presiding.

MR. PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Defendant was indicted for attempt robbery. After a bench trial, he was convicted of that crime and sentenced to a term of one to three years. On appeal he contends that the conviction must be reversed because there was lack of proof at trial to show the specific intent necessary to prove the charge of attempt robbery; that he was not proved guilty beyond a reasonable doubt; and that the actions and words of the trial judge belie the finding of guilty.

On July 11, 1968, at about 7:45 P.M., the complaining witness entered the vestibule of her apartment building and noticed a man approaching. As she opened her mailbox, the man asked if her husband was home. He then pointed a gun at her. In response to his questions, she stated that she had eleven dollars on her person, had no jewelry, and that there was a portable television set in the apartment. He refused her offer of the eleven dollars. She opened the inner door of the building, and they started up the stairs. She again offered him the eleven dollars, but once more he refused it. He puckered his lips as if to kiss her, but did not touch her. He suddenly left her standing on the steps and walked out of the building. Her husband called the police. She subsequently identified defendant from a photograph. She also identified him at a lineup and at trial.

On July 29, 1968, a police officer notified the complaining witness that they had arrested John Olson and requested that she come to the police station to identify him. She testified that at the police station she entered a room in which four men stood facing her. She was about 25 feet from the men. They were asked to state their names, and defendant answered "John Olson." The four men were directed to turn profile and halfway around in order to give her additional views. On direct-examination complainant stated that she asked an officer if she could step closer to the men because she had not seen enough. On cross-examination she testified that she was sure defendant was the man as soon as she entered the room in which the lineup was conducted.

The complaining witness originally stated that she noticed at the time of the crime that her assailant had teeth missing and that his teeth were bad. She subsequently testified that he had one tooth missing. At the lineup she did not notice whether defendant had teeth missing.

Defendant presented four alibi witnesses. Defendant's parents testified that at about 7:15 P.M. they visited his home. Defendant was talking on the telephone and one of his children opened the door for them. They stayed for over an hour. Before they left, Larry Quist, a friend of defendant, arrived. Quist testified that he discussed the joint operation of an auto repair business with defendant, and stayed until 10:30 P.M. Ralph Riley, a neighbor, testified that he visited defendant about 9:00 P.M. Defendant had purchased lumber for him and he came to pay defendant for the lumber. The entry of the check in Riley's checkbook along with the cancelled check evidenced payment on that date. Riley also testified that while he was working in front of his home earlier in the evening he notified defendant in his living room.

Defendant, an electric contractor, testified that he was at home that evening. Defendant stated that he had a full upper plate since he was sixteen years old. The plate had one tooth missing. At the lineup he was directed to remove his false teeth and then put them back in.

After all the evidence had been presented and closing arguments had been made, the trial judge asked the complaining witness to approach the bench. Commenting that the procedure might be improper but that he was seeking the truth, the judge pointed out to the complaining witness that she had heard all the witnesses testify that defendant was home at the time of the crime. He then asked if she were still sure that defendant was the man. She replied that she was positive. The judge then entered the finding of guilty.

At the hearing in aggravation and mitigation, and at the time of sentencing, the trial judge participated in long colloquies with defense counsel and with defendant himself as to why he found him guilty. Once the judge stated that he found him guilty because of the evidence. At another point in the proceedings, the judge stated:

"Young fellow, I want to say this, and this is maybe reversible, I don't know. As I review the cases, it is in the record, that one person with a positive identification is enough to convict. The lady said you had a gun in her face. You are going to get one to three years in the State penitentiary and I want to tell you, and it is in the record, I don't know whether you did it or not, nor does the State's Attorney, nor anybody in this court; the court reporter, the bailiff."

The following dialog also occurred:

"MR. WHITE (Defense Counsel): If it were a gun, Judge.

THE COURT: Well, the lady said there was a gun in her face. I don't know if there was a gun, nor do you, or he, or anybody in this courtroom, except him and the lady, and the guy upstairs, if there is one."

And finally after defendant stated that he could not understand how the judge could send him to jail while remaining ...


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