APPEAL from the Circuit Court of Kankakee County; the Hon.
MICHAEL ORENIC, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal by the defendant, Roger Holt, from his conviction after trial by jury in the circuit court of Kankakee County for the offenses of armed robbery and aggravated battery. The defendant was sentenced to the penitentiary for a term of not less than 5 nor more than 10 years for the crime of armed robbery and for a term of not less than 1 nor more than 10 years for aggravated battery, both sentences to be served concurrently.
The factual situation which resulted in the defendant's convictions occurred on February 22, 1970, at a restaurant truck stop located a mile east of the village of Grant Park, Illinois. Between 6:30 and 7:00 o'clock A.M. on this date the first of four victims, a Howard Engleking, unlocked the restaurant door and proceeded to make coffee for himself and some friends whose custom it was to meet there for Sunday morning breakfast. Engleking had been in the restaurant for only a few minutes when three black men entered. Without warning he suddenly found a gun pointed at his head and he was ordered to lie face down on the floor. His wallet was removed from his pocket and he was then rendered unconscious. Just prior to losing consciousness Engleking remembers that an individual later identified as Wesley Pollock was brought into the room where he was confined. Pollock had been struck on the head with a gun and then fired at five times. Four times the weapon misfired, the fifth time the bullet passed over his head. The next victim to enter the restaurant was a Fred Schweppe. He immediately found a gun pointed at his face and he was ordered to lie upon the floor, his wallet containing his drivers license, other identifying cards and $44.00 in money along with his car keys were removed from his person and then he was also knocked unconscious. A Wayne Wilson next entered the restaurant and was promptly rendered unconscious and his pocketbook containing $140.00 was taken from him.
All of the victims, Engleking, Pollock, Schweppe and Wilson, testified that the attacks upon them occurred between 6:30 and 7:00 A.M. At approximately 7:15 A.M. Ralph Mussman arrived at the restaurant and found the four injured men and he immediately called the sheriff's office.
The record discloses that the victims were severely beaten about the head and body and all were taken to the hospital. Schweppe remained at the hospital for one week and Wilson for 16 days. The victims' injuries ranged from black eyes and bruised ribs to a fractured cheekbone suffered by Schweppe and to a dislocated eye and severely lacerated and broken nose suffered by Wilson.
In the city of Momence located some 5 or 6 miles south of the village of Grant Park, a police officer, Howard Bakeman, while on a routine patrol at about 6:50 A.M. on the morning of the crime noticed three black men who were attempting to tie down the trunk lid on a 1957 Chevrolet automobile. Bakeman later made an "in court" identification of the defendant Holt as being one of the three individuals. After a brief conversation the Chevrolet automobile departed on what is known as the "Blue Note Road" heading north. Twenty-five to thirty minutes later Bakeman again saw the Chevrolet but at this time it contained only two men. The vehicle was returning to Momence and traveling at a high rate of speed. Officer Bakeman reversed the direction of the squad car and gave pursuit to the Chevrolet and after a two mile chase forced it to a halt. The driver, being the defendant Holt, was ordered to step out of the car and told to produce his drivers license. The defendant told the officer that his license was in his wallet which was on the front seat of the car. The officer then found the wallet on the front seat of the automobile, opened it and observed that the drivers license contained therein had been issued to Fred Schweppe of Grant Park, Illinois. The wallet, license and its other contents were later identified by Schweppe as being his property. Found in the car in addition to the wallet was a gun and a jacket with car keys in its pocket which was later identified as being the property of the victim Engleking. Also found in the automobile were a radio, a combination radio and record player, a Sears walkie-talkie, a Techmatic razor, butcher knife, five cigarette lighters, a metal plate for a Standard Oil credit card machine stamped with the name G. Wireman, a credit card key, and a ring of keys for the cash register and freezers located in the truck stop restaurant. All of these items were later identified by Gilford Wireman, the proprietor of the restaurant, as either being identical or similar to items which he owned and which were missing. Sums of currency approximating that amount which was removed from the victims were found in the pocket of the defendant and his companion, Jimmy Darlandf.
During the course of the trial the defendant testified that possession of the articles of property found in their vehicle was obtained when Darlandf retrieved and picked up a bag which contained the articles when it was thrown from a Mustang automobile traveling at a high rate of speed on a country road outside of Momence.
A further recital of facts will be set forth as they become essential and pertinent to issues raised in this appeal.
The defendant first contends that he was not proven guilty beyond all reasonable doubt. In support of his contention he strongly argues that testimony pertaining to the time of the crime and the time of his apprehension make it clear that he could not be guilty. It is true that none of the witnesses agreed to the exact minute as to the time of the sequence of events. The victims place the time of the robbery between 6:30 and 7:00 A.M. Officer Bakeman stated that he first saw the defendant some 5 or 6 miles from the restaurant at 6:50 A.M. and after visiting with him 3 or 4 minutes he saw the defendant leaving Momence at 7:00 A.M. The defendant further in support of his argument that he was not proven guilty beyond a reasonable doubt stresses the fact that none of the victims were able to identify him nor was there any evidence placing his car at the scene of the crime and that also there was a lack of scientific evidence, i.e., fingerprints or blood samples, that would tend to prove he was at the scene of the crime.
The time factor was argued by both counsel for the defendant and the prosecuting attorney. The jurors had the opportunity of seeing and hearing the witnesses. Not only did they see and hear the victims of the crime but the defendant took the stand in his own behalf and related how a bag containing the stolen items was thrown out of a speeding vehicle while he and his companion Darlandf were fixing a flat tire. Yet the jury received no evidence to indicate any such bag ever existed but instead learned from testimony adduced during the trial that the stolen items were found scattered about and under the front seat of the 1957 Chevrolet which the defendant was driving at the time of his apprehension.
While it is true that none of the victims could positively identify any of their assailants, there was testimony introduced that the interior of the restaurant was darkened and the last three victims were subdued and rendered unconscious almost immediately after their entry into the building.
In addition to the testimony which placed recently stolen property in the possession of the defendant the jurors further learned from the evidence that when apprehended a hand gun clotted with blood and having a bent trigger guard was also in his possession.
• 1 The weight of the evidence and its credibility are questions for the jury and it is neither the duty nor the privilege of a court of review to substitute its judgment for that of the jury on such questions, unless the evidence is so improbable as to raise a reasonable doubt of guilt. See People v. Nicholls, 44 Ill.2d 533, 256 N.E.2d 818; People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182; People v. Mills, 40 Ill.2d 4, 237 N.E.2d 697.
• 2 The jurors by their verdict clearly illustrated that they did not believe the testimony of the defendant and it is such as would stretch one's credulity when you seek an answer as to why brutal and systematic robbers would throw away the fruits of their crime on a lonely country road. In addition to the right and duty of the jury to determine the credibility of witnesses we must also note that recent, exclusive and unexplained possession of stolen property by an accused person in and of itself gives rise to an inference of guilt which may be sufficient to sustain conviction in absence of other facts and circumstances which leave in the mind of the jury, or ...