APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. RYAN, Judge, presiding.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:
Murder. Ill. Rev. Stat. 1969, ch. 38, par. 9-1.
After a bench trial, defendant was found guilty as charged in the indictment, and sentenced to a term of 15 to 35 years in the Illinois State Penitentiary.
CONTENTION RAISED ON APPEAL
Defendant was not proved guilty beyond a reasonable doubt because the identification of defendant was doubtful and uncertain and because defendant's alibi was positive and unimpeached.
Paul Rodriguez, for the State:
He attended a New Year's Eve party at the home of his sister at 17th and Wood Streets in Chicago on December 31, 1969. He and other members of his family began to leave at approximately 12:15 A.M. As he and his wife got into his car, parked at the corner, he saw defendant, whom he identified in court, and another man near his car. The witness' brother Roberto had followed him out of the house and got into his own car parked 15 or 25 feet away. Roberto's wife and eight children also got in the car. He saw defendant and the other man go over to Roberto's car and try to get inside, so he went over to his brother's car to see what was happening. By then, there were about nine Mexicans standing around the car. He talked to them, could tell that they had been drinking, and he thought they were "looking for trouble." His brother Carlos was there too. He told the group that he and his brother didn't want any trouble, and then saw defendant shoot his brother in the head with a pistol which he saw in defendant's hand. After firing another shot at the deceased, he also shot at Carlos two or three times and hit him in the hand. Defendant then fled. The witness was about ten feet away at the time of the shooting and the street lights were on, and the deceased was standing up. He identified the defendant in court as the person who fired the shot. He stated that at the time of the shooting, defendant was wearing a yellow shirt with a sweater over it and black pants. He saw defendant about ten or fifteen minutes later in a crowd which had gathered at the scene, caught him, and turned him over to the police. He was wearing the same clothes at the time of his arrest. He did not know if defendant wore a beard at the time of the shooting. He did not know what a goatee was.
Carmen Rodriguez, for the State:
She testified that she had been at a New Year's Eve party and left with her brother-in-law, Roberto, at about 12:15 A.M. She had just entered his car when defendant attempted to force his way into the car. She then saw defendant argue with Roberto and heard a shot. She positively identified defendant at trial as the man arguing with deceased just before the shooting. She said that at the time of the argument, defendant was wearing a goatee but that when she saw him later at the time of his arrest, he did not have one.
Mildred Rodriguez, for the State:
She left the New Year's Eve party with her husband, Raul, and got into their car across the street from Roberto's car. She saw defendant side view from across the street about 15 feet away arguing with Roberto. Defendant was wearing a yellow shirt. She saw defendant shoot Roberto from the front, pointing the gun directly at him. He fell over in the street. Roberto had no weapon of any kind. Defendant wore a goatee at the time of the shooting but did not ...