APPEAL from the Circuit Court of Cook County; the Hon. JAMES
M. BAILEY, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Sidney Bolton and defendant James Bennett were indicted on three counts of murder relating to the death of James Pollard, and one count of armed robbery. Sidney Bolton was severed from the case and defendant James Bennett was tried alone. Following a pre-trial hearing, the court denied defendant's motion to suppress the arrest and identification and at the prosecution's request ruled that evidence of a similar occurrence on the same night was admissible. At trial, a jury found defendant guilty as charged and the court sentenced him to a term of fifty to one hundred years.
On appeal defendant contends: (1) that he was not proved guilty beyond a reasonable doubt because the identification was vague, doubtful and uncertain; (2) that the State committed prejudicial error by introducing evidence of another crime to establish defendant's scheme or design; and (3) that his sentence was excessive and should be reduced.
During an armed robbery in the early morning hours of November 29, 1970, in the 3800 block of West Madison Street in Chicago, James Pollard was shot and killed. After the State's life-and-death witness testified, the following evidence was adduced at trial.
Catherine Dunson, the only occurrence witness, testified that she and James Pollard were on a date on the night of the incident. After leaving the Two Spot Lounge in the 3800 block of West Madison Street in Chicago at about 2:45 A.M., they walked west on Madison. As they were walking, a man came up behind them, stuck a gun in her back, and ordered them into a nearby alley which was lighted only by the street lights on Madison Street. Once in the alley, the man came around in front of the witness and the deceased so that he was facing them at a distance of four or five feet. He then announced the robbery, took the witness' purse, and without provocation shot James Pollard. On direct examination, the witness testified that the time to get the purse, announce the robbery, and fire the shot was three to five minutes, but on cross-examination stated that although she had a chance to look at the assailant, it took only a few seconds to announce the robbery and fire the shot. At the pre-trial hearing, the witness testified that she thought another man who was in front of them as they were walking was also involved in the incident.
In court, Catherine Dunson identified defendant as the man who had committed the crime saying: "I'll never forget his face, that's him." At the pre-trial hearing she stated that the man who committed the crime was a male Negro, 5'9" tall, weighing 160 pounds, without mustache or facial hair, and wearing a brown coat and tam. At the pre-trial hearing she also testified that she picked defendant out of a line-up about one month after the incident. At trial in response to cross-examination by defense counsel regarding the description she had given the police, the witness stated that the man was a male Negro about 5'9" tall, weighing 130 to 160 pounds, who had a mustache.
Mary Newman testified regarding a separate incident on the same night. She testified that she and her boy friend Ralph Bennett were walking east in the 3800 block of West Maypole Street in Chicago between 12:30 and 1:00 A.M. when they were approached by two men walking west on the same street. One of these men pulled a gun and ordered them into a nearby alley which was lighted only by a street light from a nearby bus platform. There, she and Ralph Bennett were searched and robbed. Afterwards, the man with the gun ordered them to run out of the alley and fired a shot which missed them when they walked.
In court Mary Newman identified defendant as the man who robbed them and had the gun. She testified that she had told the police that the man with the gun was a male Negro, 6'1" or 6'2" tall, weighing 180 to 190 pounds, who had a small mustache, a low natural hair style, and a deep voice. Underneath a three-quarter length brown leather coat, he was wearing a blue and white knit sweater, dark pants, and black shoes. She testified that she too picked defendant out of a line-up a month after the incident.
Ralph Bennett also testified for the State regarding the separate incident which occurred only three blocks from the place where James Pollard was killed. Since his testimony corroborates Mary Newman's testimony, it need not be repeated here. Ralph Bennett, however, did identify the gun involved as either a .32 or a .38 caliber pistol and testified that he saw the man who had robbed him at a party subsequent to the incident carrying a .32 caliber automatic pistol. Ralph Bennett also identified defendant in court as the man with the gun who had robbed him and during the pre-trial hearing testified that he picked defendant out of a picture of a line-up.
The investigating police officer Richard Sandberg testified that he found a .32 caliber cartridge casing at the scene of the murder and another at the scene of the robbery of Mary Newman and Ralph Bennett. However, no gun was ever found. It was stipulated by both sides that James Pollard was killed by a .32 caliber bullet. A firearms expert, Joseph R. Celousky, testified that in his opinion the two cartridges came from the same gun.
Defendant asserted an alibi defense. Tommy Lee Williams the first defense witness testified that defendant returned alone to the apartment at 3832 West Maypole about 1:30 or 1:45 A.M. after a date and did not leave again.
Although she was later impeached regarding the time defendant left, Evelyn Bibbs defendant's girl friend testified that defendant was with her and another couple from about 10:30 to about 1:00 or 1:30 A.M. on the night of the incident. After defendant left her company, she next saw him at 3:00 A.M. when she returned to her apartment. When she arrived, she noticed that Sidney Bolton was shot and she and defendant went to the hospital where they saw Catherine Dunson who did not identify defendant.
Defendant James Bennett testifying on his own behalf denied that he killed James Pollard or robbed anyone. He stated that he returned to his girl friend's apartment after leaving her company and did not leave until he left with her to go to the hospital to be with Sidney Bolton who had been shot. He saw Catherine Dunson at the hospital but she did not identify him as the assailant.
Although other witnesses also testified for the State in rebuttal, Catherine Dunson testified that she did not see ...