APPEAL from the Circuit Court of Cook County; the Hon. EARL E.
STRAYHORN, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
In a trial without a jury the defendant, Samuel Ashford, was found guilty of attempt armed robbery and aggravated battery using a deadly weapon. He was sentenced to three to six years in the penitentiary for each offense, to be served concurrently.
Ashford contends that his identification was the result of an illegal show-up, and that he was not proved guilty beyond a reasonable doubt because the identification testimony was uncertain, the State's witnesses lacked credibility and his alibi was unimpeached. He also argues that he was improperly sentenced for offenses arising from the same conduct, and that the two sentences imposed upon him were not in accord with the provisions of the Unified Code of Corrections.
The State concurred in the last contention. Accordingly, the day after oral argument was heard by this court, we entered an agreed order for a change of mittimus. The defendant's sentence for attempt armed robbery was reduced to two to six years, and his sentence for aggravated battery was reduced to one year and eight months to five years. The other issues between the parties remain in contention.
Near three o'clock on a Sunday afternoon, Mrs. Melissa Rogers, who lived at 2106 South Harding Avenue, Chicago, was walking across the alley next to her house when she saw a man, later identified as the defendant, walking down the alley holding a 2" X 4" board which was about four feet long.
A few minutes later, Clinton Moses, who lived nearby, was walking east on 21st Street between South Pulaski Road and South Harding Avenue. He approached the same man who had been walking slowly in front of him. As the two men neared the entrance to the alley adjacent to Mrs. Rogers' house, the man turned, grabbed Moses by the collar and demanded his money. Moses stumbled and fell backwards. The assailant struck him with the 2 X 4. While lying on his back, Moses threw up his legs and raised his arms in front of his face to protect himself from the blows.
Mrs. Rogers and her 14-year-old son, Leonard, heard the commotion and ran into the alley. Frank Smith, an elderly neighbor of Moses, was there ahead of them. Smith and Mrs. Rogers tried to stop the attack. Smith swung an old bicycle frame at the assailant and Mrs. Rogers threw the lid of a garbage can at him. The man backed away and fled south down the alley. Before he reached the end of the dead-end alley, he turned west into a gangway. The gangway led to the back door of the Playgirl Lounge, a tavern located on the east side of Pulaski Road.
Moses' son Daniel, a patrolman for the Evanston Police Department, was at home the day of the assault. His mother heard the noise and sent Daniel to check on it. He reached the scene in time to hear his father describe the assailant to the police, who had been summoned by Mrs. Rogers.
Daniel Moses immediately began to look for the assailant. He used the description given by his father: a black male, approximately five foot six or seven inches tall, weighing a hundred and forty-five pounds, with a dark complexion, beard and medium Afro hairdo, and wearing a light knit shirt and dark pants possibly dark brown. He found no one that day who fit the description. The next day he saw a friend and gave him the description. A person who was with the friend told Daniel that he had seen a man who answered the description the day before standing at a liquor store on Pulaski Road. The informant, who was never identified, suggested that Daniel should look for the man at the Playgirl Lounge. He accompanied Daniel to the lounge.
At the Playgirl Lounge, Daniel Moses saw the defendant, who fit the description of the assailant, working behind the bar. Daniel went back outside to talk to the informant. Robert Reed, a part-owner of the lounge, came out to see what the discussion was about. He told them that Ashford could not have been involved in the crime because he had been tending bar the day before for the entire day. Reed called Ashford outside and Ashford denied having had anything to do with the occurrence in the alley.
Reed then suggested that Ashford accompany Daniel to his home so that his father could see him. Neither Reed nor Ashford was aware that Daniel Moses was an off-duty policeman. Ashford agreed to go.
When they reached the Moses' home, Daniel called his father out to the porch. He asked his father if Ashford was the man who had attacked him and his father said he was. Daniel showed Ashford to Leonard Rogers who also identified him. Daniel then told Ashford that he was a police officer, placed him under arrest, informed him of his rights and handcuffed him. Mrs. Rogers was called by one of her sons. She stood across the street and identified Ashford as the assailant. She testified that she was unaware of the handcuffs at the time she viewed him. Chicago policemen arrived about ten minutes later.
At the trial, Clinton Moses, Melissa and Leonard Rogers positively identified Ashford as the attacker. However, Frank Smith was unable to pick him out after twice looking around the courtroom.
Ashford testified that he was the sole bartender at the Playgirl Lounge from noon to seven o'clock on the day of the offense and that he did not leave the lounge at all that day. His testimony was ...