APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
COUSINS, JR., Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
Defendant, Levester Brown, was charged by information with aggravated kidnapping, armed robbery, kidnapping, and unlawful restraint. Following a trial by jury, defendant was found guilty on all counts. The trial court sentenced him to concurrent terms of five to seven years for armed robbery and aggravated kidnapping. On appeal defendant makes the following contentions: (1) his guilt was not established beyond a reasonable doubt; (2) he was denied a fair trial by certain prejudicial comments and rulings made by the trial court; and (3) the trial court erred in denying defense counsel's request that the jury be given "not guilty" forms for each offense charged.
At trial Arthur Coronado testified that at about 5 p.m. on February 12, 1977, as he was driving into his garage in Chicago a man opened his car door and sprayed a substance into his face, causing his eyes to burn and temporarily blinding him. The man then forced Coronado over to the passenger side, took his money, wallet, credit cards, driver's license and wristwatch, and drove away with Coronado still in the car. After about two hours of driving the man stopped the car. By this time Coronado was again able to see. The man walked to a nearby building and conferred with several other men. Coronado attempted to flee the car but the man caught him, pulled out a .38-caliber pistol, and threatened to kill him if he again tried to escape. He then tied Coronado up in the front seat and drove for another half hour after which he stopped and pushed Coronado out of the car. During this episode Coronado had not seen another gun, but he testified that he had felt a shotgun while in the front seat. Coronado called the police, and when they arrived gave them the license number of his car. That evening he identified the defendant in a five-man lineup and recovered his car, his driver's license, and some of his credit cards. Coronado identified defendant in court as the man who had robbed him.
On cross-examination Coronado denied that he had drunk any alcohol that day, stating that he never drank. He said defendant was wearing a brown leather jacket and a black hat at the time of the incident, a description he gave the police. He denied having told the police the man was wearing a brown sweater but did recall telling them the man was five feet, seven inches tall. *fn1
Chicago police officer Walter Jucha testified that at about 7:30 p.m. that same evening he arrested the defendant in Coronado's car and recovered Coronado's driver's license and some of his credit cards. He did not find any guns or mace.
The sole witness presented by the defense was Chicago police officer John Williams, who had interviewed Coronado that same evening at about 7 p.m. Coronado described his assailant as five feet, seven inches tall, wearing a brown sweater. He did not mention a hat. He also told the officer that two weapons were involved, a shotgun and a .38-caliber revolver. Williams testified that he had thought he smelled alcohol on Coronado's breath, and Coronado did not speak to him in a coherent manner. However he also testified that Coronado's speech was not slurred and he had no trouble understanding what Coronado told him. Coronado was able to tell what had happened and to give a description of his car, including the license number. The officer testified that he could not say that Coronado was intoxicated, although he had indicated on his police report that Coronado had been drinking. He had never smelled mace before.
It was stipulated that if Investigator Ken Karens were called he would testify that he was an investigator on the evening in question and his opinion was that the defendant was six feet, one inch in height.
Although defendant contends that the totality of Arthur Coronado's testimony was confused and contradictory, he cites only two such contradictions. Coronado testified that his assailant was five feet seven inches tall whereas the stipulation at trial indicated the defendant was six feet one inch in height. And although Coronado testified he described defendant to the police as wearing a leather jacket and a cap, the police testimony was that he only said the man was wearing a brown sweater. In the light of the positive identification of the defendant by the witness at trial and the fact that defendant was apprehended shortly after the incident while in possession of Coronado's automobile and other possessions taken from him, we do not find these minor discrepancies to be controlling. (See People v. Terlikowski (1967), 83 Ill. App.2d 307, 227 N.E.2d 521.) Coronado generally gave a clear account of the events of that evening and the jury chose to believe that account. We find no basis for disturbing their determination.
1, 2 We also find no merit to defendant's contention that the State failed to prove that he was armed with a dangerous weapon when he robbed Coronado, thus establishing his culpability for armed robbery. (Ill. Rev. Stat. 1977, ch. 38, par. 18-2.) Coronado testified that the defendant incapacitated him by temporarily blinding him with a substance sprayed into his face. Defendant contends that because the substance was never identified and wore off within two hours it could not be considered a dangerous weapon. As was stated in People v. Dwyer (1927), 324 Ill. 363, 365, 155 N.E. 316, 317:
"Where the weapon in question and the manner of its use are of such character as to admit of but one conclusion, the question whether or not it is deadly is one of law for the court to determine, but when the character of the weapon is doubtful or the question depends upon the manner of its use it is a question for the jury to determine from a description of the weapon, from the manner of its use and circumstances of the case."
This reasoning was applied in People v. Robinson (1978), 73 Ill.2d 192, 383 N.E.2d 164, where the issue was whether a fingernail clipper could be considered a dangerous weapon within the meaning of section 18-2. We find, as did the court in Robinson, that under the circumstances of this case the question of the nature ...