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People v. Oestringer

NOVEMBER 14, 1974.

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

v.

KENNETH W. OESTRINGER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. ROBERT L. GAGEN, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal by the defendant, Kenneth W. Oestringer, from a judgment entered, on a jury verdict, by the circuit court of St. Clair County convicting him of the offense of armed robbery and the imposition of a sentence of 4 to 6 years with the Department of Corrections.

The defendant raises four contentions in this appeal: (1) that the State failed to prove him guilty beyond a reasonable doubt; (2) that the mandatory 4-year sentence for the offense of armed robbery is unconstitutional; (3) that the trial judge made comments to the jury which prejudiced his, defendant's, right to a fair trial; and (4) that the trial court erred in refusing to consider periodic imprisonment.

We shall first consider the defendant's contention that he was not proven guilty beyond a reasonable doubt. The defendant asserts that the trial court must be reversed since the prosecution evidence was "improbable, unconvincing, unreasonable and completely unsatisfactory." After a thorough review of the record in the instant case, we find no support for this contention.

The evidence against the defendant in the instant case is substantial. The victim of the armed robbery, Homer Hunter, positively identified the defendant as the man who took his money at gunpoint and testified as to the circumstances surrounding this incident. The greater part of this testimony was corroborated by Gerald "Jake" Showalter who was sitting next to the victim at the time of the alleged robbery. Even though Showalter did not actually see the defendant take money from the victim, he did testify that he saw the defendant with "what appeared to be a gun" and heard the defendant say, "Pull your wallet out."

The defendant, on the other hand, testified that he did not even talk to the victim on the day of the alleged robbery. He further testified that he never pointed a gun at, nor did he take any money from, the victim.

• 1 The jury, as the triers of fact, have the responsibility to determine which of the conflicting testimony of the witnesses is to be believed. (People v. Henderson, 18 Ill. App.3d 457, 309 N.E.2d 242; People v. Alexander, 15 Ill. App.3d 607, 305 N.E.2d 61.) In People v. Goodpaster, 35 Ill.2d 478, 480, 221 N.E.2d 251, cert. denied, 386 U.S. 967, our supreme court stated,

"* * * we find a direct and irreconcilable conflict in the testimony. In such a circumstance it is the peculiar prerogative of the jury to determine where the truth lies."

It is within the province of the jury to determine the credibility of the witnesses and the weight to be given their testimony. (People v. Zuniga, 53 Ill.2d 550, 293 N.E.2d 595; People v. Lee, 48 Ill.2d 272, 269 N.E.2d 488.) As our supreme court stated in People v. Woodruff, 9 Ill.2d 429, 434, 137 N.E.2d 809, 811:

"The rule is well known that the credibility of witnesses and the weight of evidence are, in the first instance, questions best determined by the jurors who are in a position to see and hear the witnesses and to observe their demeanor while testifying."

The court continued by stating:,

"It is fundamental that this court will not disturb a verdict of guilty on the ground that the evidence is not sufficient to convict unless it is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to justify the court in entertaining a reasonable doubt of the defendant's guilt. Nor will we substitute our judgment for that of the jury in merely weighing the credibility of witnesses where the testimony is conflicting. People v. Tensley, 3 Ill.2d 615, 621." (9 Ill.2d 429, 434, 137 N.E.2d 809, 812.)

See also People v. Bey, 51 Ill.2d 262, 281 N.E.2d 638; People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771.

• 2 We are unable to say that the evidence in the instant case was insufficient to justify the jury, beyond a reasonable ...


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