APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Charles Collins, defendant, was found guilty by a jury of two counts of armed robbery (one of Kathie King and the other of Armstead Mitchell), one count of attempt murder and one count of aggravated battery, the latter two counts involving only Mitchell. Defendant's principal contention on appeal is excessiveness in sentencing him to concurrent 20 to 40 year terms for each of the armed robbery convictions and for the attempt murder conviction. Other issues on appeal are: whether the failure to file an abstract or excerpts of record allows affirmance on that ground alone *fn1; whether the evidence presented at trial is sufficient to sustain the jury verdicts; and whether this court should vacate the judgment of conviction on the aggravated battery count where the trial court refused to impose a sentence for the reason that aggravated battery in these circumstances is a lesser included offense of the attempt murder conviction.
Kathie King and her husband, Armstead Mitchell, were preparing to close King's tavern at 5339 South Halsted Street in Chicago at 10:50 p.m. on April 10, 1973. Two males entered the tavern at that time, one taller (tall man) than the other, the other being later identified as the defendant. The tall man bought a can of pop from King while defendant asked Mitchell about the German shepherd dog behind the bar.
The two men left, returning two or three minutes later with a third man (short man), shorter than the other two. The tall man carried a double-barrelled shotgun while defendant and the short man each carried revolvers. The tall man announced this was a stickup and ordered Mitchell to put his hands on the bar. When he was slow to do so, defendant said "shoot him" and exchanged weapons with the tall man. When the German shepherd dog moved toward the robbers, defendant warned Mitchell he would kill the dog and, King asserted, kill Mitchell too, putting the discharge end of the shotgun up to Mitchell's face and telling him to hold the dog.
The short man ordered King to open the cash register and give him a paper bag and a bottle of whiskey while defendant told Mitchell to empty his pockets. When Mitchell looked toward the cash register, defendant told him he would blow his head off if he looked again. Mitchell instead looked directly at defendant, who was still holding a shotgun up to his face, for the remainder of the encounter. The short man left with the bottle of whiskey and money from the cash register and from Mitchell's pockets in a paper bag. The other two then backed out the door. Mitchell heard one of the men say, "Shoot him so he don't remember me." The tall man then pushed the door open with his feet, shot Mitchell with a revolver, inflicting a serious wound to the chest, and ran away.
King called the police, who took Mitchell to a hospital where, following surgery, he remained for ten days. At the hospital on the morning of April 11, King and Mitchell were separately asked to view between 80 and 200 photographs. No identification was made from these viewings. Later that morning at a police station, King was shown two more books and, on the afternoon of the 11th, three more books. She made no identification at this time. A police officer, who observed King viewing the books at the hospital and at the station, testified defendant's picture appeared in none of them.
In the early evening of the 11th, the police brought six photographs to the hospital, where Mitchell looked at them, and later to King's house, where she viewed them. Both King and Mitchell separately identified defendant's picture as portraying the man who had threatened Mitchell and put a shotgun in his face. The police thereafter arrested defendant. Between 3:30 and 4 a.m. on April 12, King viewed a lineup of five males at the police station, and again identified defendant as one of the robbers.
On April 14 a weapon was recovered from the scene of a shooting and four youths were arrested. The parties stipulated the .38-caliber revolver recovered was the same weapon used to shoot Mitchell. On April 27 King viewed a lineup of the four youths and did not identify anyone.
At trial both King and Mitchell again identified defendant and described the three men as they remembered them from the night of the robbery. King described the lighting and asserted the tavern had been "very light" and that the robbers had been in the tavern for between five and eight minutes. Defendant denied involvement in the events of April 10 and testified, as did his mother and his wife, that he was at home watching television on the night of April 10, 1973.
The jury found defendant guilty of two counts of armed robbery, one count of aggravated battery, and one count of attempt murder. The trial court sentenced defendant to 20- to 40-year concurrent terms on the two armed robbery convictions and the one attempt murder conviction, explicitly refraining from sentencing on the aggravated battery conviction.
• 1 Initially, we refer to the failure of defendant-appellant's appellate counsel to file in this court an abstract or excerpts as required under Supreme Court Rule 342. This court could affirm for failure of the defendant, as appellate, to file an abstract or excerpts (Denenberg v. Prudence Mutual Casualty Co. (1st Dist. 1970), 120 Ill. App.2d 68, 70, 256 N.E.2d 71; Ill. Rev. Stat. 1973, ch. 110A, par. 342) especially in light of the court's refusal of defendant's motion to waive the requirement. But to do so would shift the effect of the failure to file to the defendant, whereas it was his attorney who violated the order of the court and the rule. Hence, we deem it proper to examine the merits of the case and dispose of the case accordingly. *fn2
The second issue for our review is whether the evidence presented at trial was sufficient to sustain the jury verdicts. Defendant contends the identification by the two victim-witnesses is not sufficient to sustain the verdict without corroborating evidence. On the other hand, the State contends the positive identification by the two victim-witnesses was sufficient to sustain the verdicts.
The law is clear, as the State points out, that the testimony of one credible witness, if positive, identifying the defendant as the perpetrator of the crime or crimes charged, is sufficient to convict even though that testimony is contradicted by the defendant. (People v. Miller (1964), 30 Ill.2d 110, 113, 195 N.E.2d 694.) Defendant points to the lack of physical evidence, to the failure of the police to uncover a brown corduroy coat which the victims claimed that defendant was wearing at the time of the incident, and to the recovery of the revolver used in the shooting of Mitchell in a separate shooting incident four days after the robbery in which neither defendant nor either of his ...