Appeal from the Circuit Court of Champaign County; the Hon.
Birch E. Morgan, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
The defendant was convicted of the crime of murder by a jury verdict in the circuit court of Champaign County. A sentence of 50 to 100 years in the penitentiary was imposed. He has appealed directly to this court under the then-existing Illinois Supreme Court Rule 603 (Ill. Rev. Stat. 1967, ch. 110A, par. 603), and because of the time this case has been pending, we will retain jurisdiction of it.
The defendant raises two issues on appeal. First, he complains that the trial court erred in failing to give his requested jury instruction on accomplice testimony because two of the State's witnesses were allegedly accomplices. Second, he complains that the sentence imposed is excessive and should be reduced or vacated and the cause remanded for resentencing under the Unified Code of Corrections. Ill. Rev. Stat. 1973, ch. 38, par. 1001-1-1 et seq.
These issues require that the factual circumstances surrounding the homicide be detailed. Robert L. Dickey drove a cab for the Radio Cab Company. He died early on the morning of April 15, 1968, as the result of a single gunshot wound to the head. The defendant, Earl Robinson, was charged by indictment with his murder.
Shortly before midnight on the evening of April 14, 1968, Dickey was dispatched by radio to pick up passengers at the Illini Union Building in Urbana, Illinois. His body was later found in his cab in the 1200 block on West Dublin Street in Urbana. The fare box contained $10.35 in cash, and a search of the scene failed to produce any suspects or eyewitnesses to the killing. The murder weapon was never found, although it was established from the slug removed from Dickey's head that it was a .38-caliber revolver.
The testimony revealed that two young men, Willie Hunter and Larry Ross, met the defendant by chance on the night of April 14, 1968, on Poplar Street in Urbana, and the three of them then went to the Illini Union Building to see if a dance was being held there. No dance was being held and nothing else happened there which was of interest to them. About midnight they went to the front desk in the lobby of the Union Building to call a taxicab. The desk attendant on duty at the time recalled seeing three black youths and directing them to a telephone at the desk from which one of them placed a call to the Radio Cab Company. The attendant could not describe the young men in any detail.
A dispatcher on duty for the Radio Cab Company received a call at 11:57 or 11:58 that night from a party wishing to have a cab come to the Illini Union Building. He did not recognize the voice on the telephone, but dispatched radio cab number 21 thereto, which cab was driven by Robert L. Dickey.
Willie Hunter and Larry Ross testified that approximately 5 to 10 minutes after the call had been placed, the cab arrived, and Hunter, Ross and the defendant got into it; that they all sat in the rear seat Hunter on the right, Ross in the middle and the defendant on the left, directly behind the driver.
An employee of the Illini Union's billiard room testified that as he was leaving the building that night with a friend he saw three black youths, whom he could not identify, get into a Radio Cab Company taxicab at about 12:10. Larry Ross, who placed the call for the cab, said that he did not contemplate that all three would take the cab, but Hunter and Robinson asked if they could ride along, and the defendant had asked to be dropped off on Dublin Street. Once the three were in the taxicab, Ross testified that it was the defendant who directed the driver to turn off on Dublin Street.
Willie Hunter testified that the cab came to a stop in front of 1206 1/2 Dublin Street. Hunter then lived on Beech Street, one block to the north of where the cab stopped. When it had come to a stop, both Hunter and Ross testified that the defendant produced a .32- or .38-caliber revolver and demanded the driver's money. Hunter denied having any prior knowledge that the defendant was carrying a gun, and indicated that he made no effort to intervene after the defendant produced the gun. Both Hunter and Ross testified that the defendant was holding the gun in his right hand when the driver made a sudden movement of his arms.
According to Hunter, the driver turned to the right and threw both arms up, and his left hand rested near the right side of his face with the palm toward the face. Ross testified that the driver's right arm contacted the gun, knocked it around so that the barrel was pointed momentarily at him (Ross); and that such action had taken place in just one motion, and there was no struggle between the driver and the defendant. Both Hunter and Ross testified that the defendant then shot the driver, discharging the gun once. That shot first entered the driver's left hand from the palm side, exiting through the back and then entered the head at the right temple. There were no powder burns in the immediate area of the head wound.
Hunter and Ross testified that immediately after the shot was fired, the three of them ran from the cab toward Willie Hunter's house on Beech Street.
A woman living at 1206 1/2 Dublin Street heard what she described as something "like a bump," a car running into a curb, or a "boom," between midnight and 12:30 a.m. She went to the door and saw a Radio Cab Company taxicab standing at the curb with the driver sitting in it with the right door of the cab standing open. She called the police, who arrived at 12:30 a.m. and found the body of Robert L. Dickey slumped over in the driver's seat, the cab lights and motor on, and the fare meter still running.
Hunter and Ross testified that when they and the defendant arrived at Hunter's house, Ross asked the defendant why he did it; and that the defendant answered that it looked like "we was game for anything." Hunter stated that this conversation with the defendant took place in his backyard and that the defendant remained there only five to six minutes, and never entered the house. Ross testified that the three of them went directly into the house after running from the cab and that they were together inside the house for 45 minutes ...