APPEAL from the Circuit Court of St. Clair County; the Hon.
JOSEPH F. CUNNINGHAM, Judge, presiding.
MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
The defendant-appellant appeals from a judgment of the trial court of St. Clair County finding him guilty of the crime of armed robbery, after a trial before a jury resulted in a guilty verdict.
Appellant contends in this court that the State failed to prove his guilt beyond a reasonable doubt. The evidence on which the conviction is based came solely from two prosecution witnesses, Eugene Compton and Robert Yates, who gave conflicting testimony.
On February 5, 1972, Eugene Compton operated a barber school at 13th Street and Lynch Avenue in East St. Louis, known as Metro Barber College. The first floor contained barber chairs, wash basins and other things necessary for practical education. The second floor contained a classroom which was used for theoretical education and as a place to eat lunch.
February 5, 1972, was a Saturday, but the school was open all day. About 4:30 to 5 p.m., Compton and about nine students, including one Robert Yates, were in the classroom. A student excused himself, and a short time later an unknown person walked up the stairs and through the door to the classroom. The individual displayed a revolver and made everyone lie face down on the floor. There were two other individuals with the first assailant. Compton's wallet containing about $80 and a briefcase containing checks and a revolver were taken.
Compton testified as follows. On Saturday afternoon, February 5, 1972, he and nine students were in the classroom on the second floor of the building housing the Metro Barber College at 13th Street and Lynch Avenue in East St. Louis. There are two hanging light fixtures in the stairwell to the second floor and five long fluorescent fixtures affixed to the ceiling of the classroom which were functioning that day, producing lighting conditions similar to those in the courtroom in which he was testifying. When the first robber came to the top of the stairs, he (Compton) was seated in a chair approximately ten feet from the robber. When he realized this man was not a student, he walked to within three or four feet of him and asked him what he was doing in the school. The intruder displayed a chrome-plated revolver with a brown handle and told him to lie on the floor. Compton obeyed and did not get another look at the robber that day. He said he had about 30 seconds to view the person with the revolver, and was positive it was the defendant. The assailant wore a car coat which was longer than a jacket, sunglasses, and a wide-brimmed hat that did not drop over or cloud his face. The intruder was five feet ten inches tall, thin-faced and of normal build, and that was substantially what he told the police when they arrived shortly after the robbery; however, the defendant was thinner at the time of the robbery than at the time of the trial.
On cross-examination Compton admitted that he may have had only 25 seconds to view the robber with the revolver. When the robbers entered, he was seated in such a way as to be partially facing the windows in the classroom which fronts on Lynch Street. The intruder's eyeglasses were tinted similarly to the defense attorney's, such that a person could see through them, but he had not noticed the man's eyes because he was looking at the gun. He noticed nothing unusual about the man's nose and he had thin facial hair on the sideburns which was different by the time of the preliminary hearing. He agreed that a hat with a wide brim creates a discernible shadow in fluorescent lighting. Referring to a police report, defense counsel asked Compton if he had described the man with the gun as a male Negro, dark color skin, age unknown, height unknown, with gray pants and a black leather jacket. Compton replied that he described the man with the gun as he had to the prosecutor on direct examination. Defense counsel also asked whether Compton had described a second robber to the police as Negro, color unknown, wearing a large red hat with a white band. In reply Compton said that the red hat was worn by the person with the pistol.
Yates testified for the State as follows. He was a student at Metro Barber College on February 5, 1972, and was present in the classroom at the time of the robbery. Compton was seated near the door with his back to the door when the robbers entered. A student asked the men what they were doing there and the man with the nickel-plated gun said, "You know what it is; everybody hit the floor." Compton was still seated at that time. Yates was standing directly in front of the stairs and was about to walk down the stairs when the men entered. The man with the pistol was five feet eight and one-half or nine inches tall and wore dark "shades" and a red hat. He did not look like the defendant. The man with the pistol and the defendant were not the same size and the intruder had a small goatee. The robber was thinner than the defendant.
On cross-examination Yates testified that the dark glasses worn by the robber were shaped like stop signs and were not tinted like those of the defense counsel; but were just dark. The robber's nose was pretty flat as though he could have been a fighter. Compton did not get out of the chair, but was pushed from the chair to the floor by the man with the sawed-off shotgun.
The evidence is conflicting. Compton claims to have walked to within three or four feet of the intruder and to have had 25 to 30 seconds to look at him. Yates claims Compton was seated with his back to the stairs and never had a chance to stand up before he was pushed to the floor by one of the other robbers. Yates estimated there was only a four- or five-second period from the time the robber reached the top of the stairs and the point at which everyone in the room was forced to lie face down on the floor.
As to physical characteristics which would help either witness identify the robber, Compton stated he was a Negro male, five feet, ten inches tall with thin facial hair on the sideburns, a thin face and normal build. Yates stated this individual was a thin Negro male, five feet, eight and one-half or nine inches tall, with a flat nose, and a small goatee.
Both of the identification witnesses who testified on behalf of the State were equally credible. Under these circumstances, the language from Clark v. State (1938), 65 Okla. Cr. 56, 64, 82 P.2d 844, 848, is relevant:
"In the case of Jackson v. Stat, 12 Okla. Cr. 446, 158 P. 292, this court held: `A judgment of conviction cannot be had upon testimony introduced for the state, when that testimony comes wholly from two witnesses of equal credibility, one testifying to the guilt, an the other testifying to the innocence, of the accused.' In the opinion it is said: `It is the duty of the state to establish beyond a reasonable doubt that the person on trial is guilty and that, too, by proper and credible testimony. The state cannot put on two witnesses and prove by one of them that there is a probability of defendant's guilt, and another that he is innocent absolutely, and expect this court to uphold the judgment. One charged with crime is entitled to a fair and impartial trial, and to be convicted according to the forms of law; and it is the duty of the trial court to see that this is done.'"
In our opinion, the evidence before the trial court was insufficient to warrant a conviction.
For the foregoing reasons, the judgment of the circuit court of St. Clair ...