APPEAL from the Circuit Court of Kankakee County; the Hon.
WAYNE P. DYER, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Defendant was charged with an armed robbery committed at the A & P store in St. Anne, Illinois, on January 5, 1968. In a trial before a jury defendant was found guilty.
Three witnesses were in the store at the time of the robbery. All three witnesses saw two Negro men and one Negro woman in the store at the time of the robbery. The witnesses saw weapons in the hands of the two Negro men. The store manager described items that were taken from the store which included currency, Helbros watches, Plaid stamp containers and stamps with serial numbers. The evidence of the store manager left no question that the items were turned over to the Negroes by the store manager as a result of the threat of the use of force while armed with a dangerous weapon.
All three witnesses described the two Negro men as one being tall and one short. The height of the shorter man does not clearly appear from the record, but it appears that it was in the area of five feet seven inches to five feet nine inches.
Only one witness in the store attempted to describe the shorter man. Her description was based on seeing the man's face for approximately the period of time that it took him to shift a gun from one hand to the other and pull a ski mask down over his face. She described the man as being a light completed Negro and did not notice any mustache on his face. The following day the defendant was in a line-up and this witness failed to identify him. At the time of trial, in April, 1970, the witness identified the defendant as being the shorter man. The other two witnesses in the store were unable to identify the defendant.
While the robbery was in progress a fourth witness passed in front of the A & P store and saw a Pontiac with a woman in the back seat parked in the vicinity. She described the car as being grayish-gold at the trial after having told the police at the time of the robbery that it was a yellowish-gold Pontiac.
Approximately forty-five minutes after the robbery, a gold colored Pontiac was stopped at a road block. The defendant was a passenger in the right front seat of the automobile. He was described as being five feet eight inches to five feet nine inches in height, dark completed, and having a small mustache. A tall Negro, described as being six feet five inches, was in the back seat along with a Negro female. The driver of the automobile was a Negro of the height of approximately six feet. Currency, watches, Plaid stamp machines and Plaid stamps were removed from the interior of the automobile in the area of the back seat. The watches, Plaid stamp machines, and the Plaid stamps were identified by the store manager as having come from the A & P store. Also weapons were discovered in the automobile, one of which was testified to as having resembled a weapon held by one of the robbers at the store. Currency was found in the interior of the car in the area of the front seat. No weapon or identifiable property from the robbery was found on the defendant.
Defendant was taken into custody and on or about February 25, 1968, escaped from the County Jail. There were references by the attorneys that the defendant was being held in the County Jail on more than one charge, but there was no evidence in the record of other charges apart from the discussions of the attorneys.
Defendant's mother testified that the defendant came to her home after dark on January 5, 1968, and left when a car came up to the vicinity of the front door of the house and blew its horn. She was unable to give any time when this took place other than it was after dark on January 5, 1968. The tall man who was arrested in the car with the defendant testified on behalf of the defendant that he was driving the Pontiac automobile and stopped at a house. When he left the house a Negro woman, the defendant and another Negro were in the automobile. The only person who he knew was the defendant. He did not recall seeing anything in the automobile. The defendant did not testify.
The height of the Negro driving the automobile at the time of the arrest was shown by photographic evidence to be over six feet.
• 1 Defendant maintains that the court erred in denying his motion for a directed verdict at the close of the State's evidence. This motion was waived by reason of the defendant introducing evidence after the State had closed its case. People v. Cross, 40 Ill.2d 85, 237 N.E.2d 437; People v. Washington, 23 Ill.2d 546, 179 N.E.2d 635.
Defendant argues that the court erred in giving the following instruction:
"If you find that the defendant had exclusive possession of recently stolen property jointly with others and there was no reasonable explanation of his possession, you may infer the defendant obtained possession of the property by armed robbery."
• 2 This instruction was a modification of I.P.I. (Criminal) 13.21 and we hold it to be a correct statement of the law. People v. Poe, 48 Ill.2d 506, 272 N.E.2d 28; People v. Hayes, 272 N.E.2d 423; People v. Reynolds, 27 Ill.2d 523, ...