APPEAL from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
Two issues are raised in this appeal. The first is that the evidence was not sufficient to prove defendant's guilt beyond a reasonable doubt. The second issue relates to alleged improper statements made by the State's Attorney in final argument.
The defendant was tried by a jury for the robbery of the Pay Less Store in Rockford, Illinois, on May 2nd, 1970. On May 2nd, 1970, the defendant Willie Ewell drove one Robert Bowers to the Pay Less Store at 10:00 o'clock in the morning. Willie Ewell remained in the car. Robert Bowers entered the store and with his accomplices Dannie Styles and Junior Dotson, the store was robbed at gun point. Bowers left the store and entered the back seat of the car of Willie Ewell and was driven away. The police were apparently immediately called and Officer Axelson apprehended the two men within a few minutes after the robbery. The car was stopped by Officer Axelson with the assistance of Deputy Sheriff Etts who backed his car in front of the defendant's car. The two men were ordered from the car and the revolver used in the robbery was found in the back seat together with a pillowcase containing $3088 in cash, the proceeds of the robbery.
One of the arresting officers testified that defendant Ewell said to him "What did I do?" and the officer replied "Nothing yet."
Defendant Ewell at first made a statement to the police that he did not know Bowers and that Bowers came out of the store with the gun and forced Ewell to drive him from the scene of the robbery. Subsequently it was discovered that Bowers had Ewell's pants on with Ewell's name in the pants. When confronted with his, Ewell admitted that he did in fact know Bowers. A fireman testified that he observed the Ewell car and the license plate was covered with paper. A second witness, a high school student, also testified that he saw paper over the license plate. However, at the time of the arrest of Ewell the arresting officers did not notice any paper over the license plate.
George Peplos, the tavern owner of the Pine Tap, testified on behalf of the State that on Friday, May 1st, Willie Ewell was in the Pine Tap with Dannie Styles and Junior Dotson. He further testified that on Saturday morning prior to the robbery Ewell was in the premises at the bar between 6:30 and 7:00 o'clock. Bowers came in about 8:00 o'clock and Ewell talked to Bowers, Styles, and another party. He further testified that Dotson was there and that all four left at varying times between 8:30 and 9:00 o'clock. The robbery took place at about 10:00 o'clock in the morning. He specifically saw Ewell, Styles and Bowers talking together and they were "talking softly."
Ewell took the stand and testified in his own behalf. He admitted that he had lied to the police about knowing Bowers. He stated the only thing he said to the police at the time of arrest was "What have I done?" and when he was taken to the police station he denied knowing Bowers but that he did so because he was on probation. He also admitted that he told the police that "I told him that this man got in my car at the store and had a gun." This conversation was in the police station. When confronted with the pants he then "changed" the statement. Ewell further stated that Bowers had given him $2.00 for gasoline to drive him to the grocery store.
Bowers testified on behalf of the defendant and advised the jury that he had been brought from the Stateville penitentiary for this purpose. He stated that he knew Willie Ewell for about a week and that Willie Ewell had loaned him a pair of trousers and a shirt. He denied having seen Ewell from the time he borrowed the clothes a few days before until the date of the "stick up." He stated that he first saw Willie Ewell on the morning of the hold-up on the street and told him that he would give him money for gasoline if he would take him to the store. He further stated that he came out of the store with a .38 caliber pistol and a sack full of money and that Ewell drove him away from the scene of the hold-up. He also admitted that the fourth man in the hold-up, Styles, had a gun in the armed robbery. He further admitted that he had talked to Styles on the morning of the robbery in the Pine Tap bar and that Willie Ewell might have been there but that he wasn't with them, and that Styles and Dotson walked to the Pay Less Store on that morning.
The defendant does not dispute the fact now that when Bowers returned to his car with a gun in his hand that he should have been aware that Bowers had committed a robbery, and further contends that he was in all probability guilty of a violation of Chapter 38, Section 31-5, Ill. Rev. Stat. in that "he aided a fugitive."
• 1, 2 The first argument is that the evidence against the defendant is circumstantial. It is scarcely necessary to point out that an accused may be found guilty upon circumstantial evidence, but there was direct evidence as well.
Defendant comments upon the fact that the arresting officer did not say that the license plate was covered but that the high school student and fireman thought that it was, prior to the time defendant and Bowers were apprehended by the police. Whether the license plate was covered or not was a question for the jury. The defendant further comments on the testimony of Peplos, the bar tender, and that the fact that they may have been planning a robbery was mere speculation. This may well be true, however, the testimony was of considerable probative value because the defendant first denied that he knew Bowers and further denied that he had met with Bowers in the tavern on Friday, and that while he was in the tavern on Saturday morning that he had not talked with Bowers but that he met Bowers on the street and talked to him.
Counsel for both sides have cited People v. Manley (1971), 274 N.E.2d 373. Manley was a passenger in a car driven by a co-defendant together with two other co-defendants. Manley was granted a severance and tried separately. In this case there was no evidence presented as to any prior activities of the co-defendant. The court stated at 375:
"It is undisputed that defendant was not the actual perpetrator of the robbery. His guilt depends upon his accountability for the offense which took place.
* * * Whether a person is accountable and guilty of the offense charged may be proved by circumstantial evidence as in other cases. Presence at the scene of an offense and flight are circumstantial evidence which may tend to prove and establish defendant's guilt. [Citation.] However, such circumstantial evidence must be considered with all of the other circumstantial in determining whether defendant's guilt has been satisfactorily determined. Defendant's presence and flight ...