APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendants, William J. Horton and Ronald T. Reed, were each charged with armed robbery. After a jury trial in the circuit court of Cook County, both were found guilty of that crime. Horton was sentenced to 20 to 50 years; Reed received a sentence of 5 to 15 years. Both appeal.
At about 2:15 a.m. on September 9, 1972, the two defendants, while armed, obtained $190 from the cash register in a lounge located in Chicago and owned by Arner Raglan. In addition to defendants and Raglan, Eugene Parker, Deborah Turner and Pauline Howard were present at the time of the occurrence.
Eugene Parker, a janitor at the lounge, testified for the State that he was cleaning up shortly after the 2 a.m. closing time. He observed Raglan and Horton walking closely together toward the washroom in the rear of the lounge. Parker picked up a beer bottle and approached the two in the washroom. Before reaching his destination, he was confronted by Reed, who threatened the janitor's life if he did not put the bottle down. Parker testified further that Reed led him into the washroom at gunpoint and then left. Horton held a gun on Raglan and demanded money. The two walked to the cash register and Parker heard Reed order a barmaid to open it. Parker came out of the washroom shortly before the police arrived. Reed gave the money from the cash register to Parker and threw the gun on the disc jockey's table. Raglan opened the door and let the police in. On cross-examination, Parker testified that he had noticed the defendants in the lounge earlier that evening.
Pauline Howard, a barmaid at the lounge, testified for the State that defendants had remained in the lounge after closing time and that Horton had approached Raglan at the front door. After a brief discussion the two men proceeded to the washroom. The barmaid then heard Reed threaten the janitor and observed those two also go toward the washroom. Phillip Ralston, the lounge's disc jockey, returned from obtaining some food and was allowed by Reed to enter. Soon thereafter, Ralston and the other barmaid asked to leave and Reed immediately unlocked the front door to let them out. Reed then joined Horton and Raglan at the cash register. Howard testified that she did not know if Reed was holding a gun in his hand at that time. Because this testimony surprised the prosecutor, Miss Howard was recalled as a court's witness. She then admitted to previously having stated that she had observed Reed holding a gun while at the cash register, but that now she was not certain.
Howard further testified that Raglan had her open the cash register and that Reed took money out at Horton's insistence. As Raglan and the two defendants were headed to the basement for more money, the police arrived. Horton told Raglan to send them away, but finally instructed Reed to let them in. Before their entry, Reed placed the two guns on the disc jockey's table and the money in the janitor's pocket.
Deborah Turner, another barmaid, testified for the State that Horton had a gun when he walked into the washroom with Raglan. She also testified to observing Reed with a gun when he grabbed Parker and took him to the washroom.
Phillip Ralston, the disc jockey, testified that he called the police after Reed had opened the door and had allowed Deborah Turner and him to leave the premises.
The next State's witness, Officer Phillip Handzel of the Chicago Police Department, testified that he and his partner had responded to a call of "men with guns" at approximately 2:15 a.m. The officer knocked on the door after observing the two armed defendants. Reed opened the door and two weapons were found on the disc jockey's table. Raglan informed the police that he had been taken to the washroom at gunpoint and had subsequently been robbed. On cross-examination, Handzel stated that Raglan had informed him that the offenders came to the lounge with the intention of making the owner pay for firing one of the waitresses.
The State next introduced, over defense objections, the prior recorded testimony of Raglan, taken at a preliminary hearing. Raglan had died prior to trial from causes unrelated to this case. Raglan's testimony recited that while closing up, he was accosted at gunpoint by Horton and marched to the washroom. Horton kept the .22 which he took from the owner's back pocket and gave his own .38 to Reed. Reed left and brought back Parker. Horton asked for money and mentioned his girl friend Alma Mays, a former barmaid. Horton then volunteered to leave Raglan's gun at a service station. Raglan opposed this suggestion, so Horton agreed to leave it unloaded in a corner of the building. Raglan and the two defendants then walked to the cash register where, Raglan testified, Reed placed a gun to his head and demanded money. After a barmaid opened the cash register, $190 was removed. Raglan had seen Horton in the lounge two or three times.
It was stipulated that Horton was 34 years old at the time of trial.
Defendant Ronald Reed was the sole witness for the defense. He testified that Horton and he went to the lounge with their girl friends at about 8 p.m. on September 8, 1972. Horton's date was Alma Mays. Raglan owed Alma Mays $250 in wages and agreed to give them the money if they returned at closing time. Defendants took their dates home and returned to the lounge after midnight. At closing time Horton and Raglan entered the washroom to talk. Raglan stated that he would not give them the money and attempted to draw his gun. Horton pulled his gun faster and took Raglan's gun and unloaded it. Horton then gave Reed his gun which he put in his trousers pocket. Reed denied having a gun prior to this time, but stated that he had taken a beer bottle from Parker earlier. Raglan agreed to pay the money and the three men went to the cash register. When the police arrived, Raglan told Reed, who was a 19-year-old minor, to hide the guns and money so that Raglan, as a tavern owner, would not get in any trouble. Reed denied that he made any statement to a police officer.
The State produced one witness on rebuttal, Investigator Henry J. Leja of the Chicago Police Department. Officer Leja testified that Reed told him that during the aforementioned incident he had a gun which had been given to him by Horton, and that at Horton's request he had removed money from the cash register. On cross-examination, Leja stated that no one took notes concerning the statement, nor was anyone asked to transcribe it.
Defendants contend that they were not proved guilty of the crime of armed robbery beyond a reasonable doubt; that the trial court improperly allowed into evidence Raglan's preliminary hearing testimony; that the court improperly instructed the jury; and ...