APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
J. WHITE, Judge, presiding.
MR. JUSTICE CAMPELL DELIVERED THE OPINION OF THE COURT:
The defendant, Albert Benson, was charged by indictment with the offense of armed robbery. (Ill. Rev. Stat. 1975, ch. 38, par. 18-2.) Defendant was found guilty by a jury and was sentenced to a term of four to six years in the penitentiary. Defendant appeals from this conviction, contending that it was reversible error for the trial court to refuse his proposed jury instruction on identification.
At trial, the complaining witness, Marshall Williams, testified that on March 30, 1975, he was working, as a crew chief, at a McDonald's restaurant, located at 1433 North Larrabee Street in Chicago, and that he was responsible for the cash register money. At approximately 9:30 a.m., defendant, Eddie Rufus, and a third individual entered the restaurant. The complainant recognized Eddie Rufus because Rufus had previously worked under his supervision at McDonald's. He admitted that he did not know the names of the other two men, although he had seen them previously in the restaurant and in the neighborhood many times. At this time, Rufus placed an order. While the complainant went back to the grill to fill this order, he heard the restaurant's four cash registers being opened. Because of this, he returned to the front in order to see what was taking place. When the complaining witness was approximately 10 feet away from the front counter, he observed defendant and a third person going into the cash registers. The latter had a sawed-off shotgun in his coat, which was pointed at the complaining witness, and defendant held an open jackknife. After they took the money out of the registers, the three men left the restaurant and fled across the street into the Cabrini-Green housing project. At this point, the complainant telephoned the police.
The police arrived between 2 and 3 minutes later. One of the police officers that responded was Officer Robert Fromel. He testified that the complaining witness informed him that he had been robbed by three men and that two of the men were armed. The complainant also gave him a description of the offenders and indicated that the name of one of the suspects was Rufus; that Rufus had previously worked in the restaurant; and that he had seen the other two suspects in the company of Rufus on many occasions. Officer Fromel further testified that the complaining witness was shaking and somewhat hesitant about talking when he first arrived on the scene.
On cross-examination, Officer Fromel admitted that his report, made out at the time of this incident, did not contain the name Rufus; that it did not mention that the complaining witness had observed the three men in the neighborhood previously; and that the report made no reference to the name of Redfield.
Investigator Jerold Wojnar testified that the complaining witness told him that Eddie Rufus and two of his companions had robbed McDonald's; that he thought Rufus' two companions were the "Redfields"; and that he had previously seen all three individuals in the neighborhood and store. The complaining witness was then taken to the police station where he viewed four or five photo albums of past offenders. However, at this time the complainant could not identify the armed robbers from these photographs.
The following day, Investigator Wojnar went to the housing project, and his investigation led him to an apartment where he found Eddie Rufus and Ronald Redfield. Upon entering a bedroom in that apartment, Investigator Wojnar observed a black-handled push-button knife on top of an ironing board. When asked what this object was, Rufus replied that it was his knife.
Subsequently, Investigator Wojnar obtained "[p]hotos of additional suspects that might possibly be the third offender." The investigator then brought these photographs to complainant so that he could view them. After seeing these photographs, the complaining witness informed Wojnar that none of these photographs showed the third offender.
On approximately April 20, 1975, Investigator Wojnar returned to McDonald's and showed the complaining witness additional photographs of different subjects. At this time, the complainant recognized one of those subjects. After this identification had taken place, the investigator began searching for defendant. Family members of the defendant were informed by Investigator Wojnar that defendant was wanted for robbery. On April 27, 1975, the defendant, accompanied by his father, came into Investigator Wojnar's office. Defendant was then given his Miranda warnings and was placed under arrest.
At the close of all the evidence, a conference on jury instruction was held. Defense counsel tendered defense instruction No. 13, which was refused. This instruction, which is not contained in the Illinois Pattern Jury Instructions, reads as follows:
"The defendant denies that he is the person who committed the crime. Before you can find the defendant guilty as charged you must be convinced beyond a reasonable doubt that the defendant has been correctly identified as the person who committed the crime. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant Not Guilty."
In denying defendant's instruction No. 13, the trial court stated:
"I think it unduly calls attention to one specific element of the crime to be proven. We have I.P.I. 1042 [sic], which adequately covers the elements."
Defendant contends that the trial court committed reversible error when it refused the aforementioned identification jury instruction since defendant's sole defense was mistaken identification. As stated above, the trial court refused to give the instruction tendered by defendant and limited itself to the Illinois Pattern Jury Instructions on witness' credibility and on the prosecution's ...