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People v. Cook

FEBRUARY 28, 1974.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES COOK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MEL R. JIGANTI, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Defendants, James Cook and John Cook, were indicted for armed robbery. After a joint bench trial in the circuit court of Cook County defendants were found guilty as charged. James Cook was sentenced to 3 to 6 years in the penitentiary; John Cook was sentenced to 2 to 5 years. Both defendants have perfected appeals to this court. Because John Cook has died during the pendency of this appeal, his appeal has abated. (O'Sullivan v. People, 144 Ill. 604, 32 N.E. 192.) Therefore, on the instant record we are concerned only with the appeal of James Cook.

James Cook presents one issue for review. He contends that he was not proved guilty of the offense of armed robbery.

We affirm.

The armed robbery took place in the early morning hours of October 2, 1968, at the Cameo Lounge located at 3655 North Western Avenue in Chicago. At approximately 1:20 A.M. that morning two men entered the lounge. After ten minutes of sitting at the bar, drinking alcoholic beverages and talking to the bartender, they embarked on the robbery of the patrons and the premises. In addition to the defendants and the bartender, Victor Fiumetto, six people were present in the lounge; Mrs. Baker, Mrs. Courtney, Mr. Mayback, Mr. Finch, Mr. Bosshart and Mr. Meyer.

There is no dispute over the occurrence of the crime itself. Victor Fiumetto, the bartender, testified to the sequence of events. One of the men who had been sitting at the bar, identified as James Cook, went into the men's washroom. While he was serving a drink to one of the ladies, Mr. Fiumetto noticed that the other man, identified as John Cook, had gone to the door. John Cook turned around and with a gun in his hand he announced, "This is a stickup". Then Mr. Fiumetto saw James Cook coming out of the washroom.

John Cook jumped over the bar and backed Mr. Fiumetto towards the cash register. With James Cook holding the patrons at gun point, John Cook took $30-$35 from the cash register. John Cook then took the two ladies and Mr. Fiumetto into the women's washroom. In the mirror of the washroom Mr. Fiumetto observed John Cook searching the two ladies.

At some time during the search of the two women, James Cook placed the four men in the men's washroom. After the search of the women, John Cook took the two women and Mr. Fiumetto into the men's washroom where they joined the four men. Mr. Fiumetto was struck on the head as he entered the washroom. He observed blood on Mr. Bosshart's head.

Shortly thereafter, the defendants showed Mr. Fiumetto a cigar box containing money which they had found behind the bar. They both pointed guns at Mr. Fiumetto's head and stated, "Where is the rest of it?" Defendants made a further search of the tavern.

During the course of the armed robbery, Joseph DiVita entered the tavern, was robbed, and placed into the men's washroom with the other people. He was also hit on the head. While the victims were in the men's washroom, one defendant or the other would enter the washroom, threaten, and strike the male victims with a gun. The women were not injured.

The defendants told the victims not to leave the men's room. After hearing no noise for a while, the victims felt reasonably assured that the robbers had left. They called the police. Officer Malecke of the Chicago Police Department was the first policeman to arrive at the scene. He talked to the victims and obtained a description of the armed robbers. Mr. Fiumetto pointed out to the evidence technician who arrived at the scene the items on the bar which the robbers might have touched. A beer glass with a latent fingerprint was recovered. The print obtained did not match those of either defendant or the bartender, Mr. Fiumetto.

Two days after the occurrence defendants were arrested at their home. Later that same day they participated in a lineup. Mr. Fiumetto, Mr. DiVita, and Mr. Meyer identified the defendants. Mr. Mayback identified one of the defendants.

Defendants did not testify at trial. An alibi was presented. Mrs. Lucille Cook, defendants' mother, testified that they were at home the night in question. Ray Cook, the defendants' brother, testified to the same effect.

• 1 In the instant appeal defendant James Cook contends that he was not proven guilty beyond a reasonable doubt in spite of the positive identifications made by the ...


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