APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN S. GHENT, JR., Judge, presiding.
MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:
Kevin Thompson, the defendant, appeals from a judgment entered on a jury verdict finding him guilty of armed robbery. He was sentenced by the Circuit Court of Winnebago County to a term of not less than 4 years and not more than 8 years. He appeals contending only that the trial court erred in refusing to instruct on the lesser included offense of robbery.
The defendant was charged by indictment with armed robbery in connection with an incident which occurred on December 19, 1973, at the Clark gas station, located at 2903 N. Main Street, Rockford, Illinois. Defendant was tried in a jury trial beginning June 26, 1974. Prior to trial, defendants' motion to suppress lineup identification was denied by the trial court when it found that the lineup procedure was not suggestive. However, his motion to suppress physical evidence (wearing apparel) was granted by the trial court because of an unconstitutional search.
The first witness called by the People at trial was John Brandon, Jr., who at the time of the alleged incident was an attendant employed by the Clark gas station. Mr. Brandon testified that at about 8 p.m. on December 19, 1973, while he was working, a black man he identified as the defendant entered the station and requested change with which to make a phone call. As Mr. Brandon made change, the robber asked for the remainder of the money which Mr. Brandon had in his possession. After the robber asked for the rest of the money, Mr. Brandon testified, "I saw his hand down at his side. I saw the front of what appeared to be a gun." The only part of the alleged gun that Mr. Brandon said he saw was "the barrel."
Mr. Brandon stated the alleged gun "was very well hidden" near the robber's side. According to Mr. Brandon, the robber told him to "give me the money before I put a hole in your head."
On cross-examination of Mr. Brandon the following colloquy took place:
"[Mr. Peterson] Now you said on direct examination that it appeared that he had a gun, did he keep it well hidden behind his coat?
Q. Did he ever tell you he had a gun?
Q. All you saw was some object that was sticking from his hand?
Q. Did you ever see any other part of the gun or what you saw ...