People v. Ashley

• Decision Date: 22 January 1960
• Docket Number: No. 35207,35207
• Citation: People v. Ashley, 164 N.E.2d 70, 18 Ill.2d 272 (Ill. 1960)
• Parties: PEOPLE of the State of Illinois, Defendant in Error, v. John ASHLEY, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 70

164 N.E.2d 70

18 Ill.2d 272

PEOPLE of the State of Illinois, Defendant in Error, v.John ASHLEY, Plaintiff in Error.

No. 35207.

Supreme Court of Illinois.

Jan. 22, 1960.

Richard J. Short, Chicago, for plaintiff in error.

Grenville Beardsley, Atty. Gen, and Benjamin S. Adamowski, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Francis X. Riley, Asst. State's Atty., Chicago, of counsel), for the People.

DAVIS, Justice.

The defendant, John Ashley, and two others were indicted for armed robbery in the criminal court of Cook County.In a separate trial before a jury, he was found guilty, judgment was entered on the verdict and post-trial motions were denied.After considering circumstances in aggravation and mitigation of the offense, from which it appeared that defendant had a prior criminal record, the court sentenced him to the penitentiary for a term of not less than 15 years nor more than life.

By writ of error, defendant seeks to reverse the judgment of the trial court and here contends that the evidence did not establish his guilt beyond a reasonable doubt and that prejudicial errors were committed in the course of the trial.

All testimony relative to the robbery was offered on behalf of the People.The defendant did not testify on his own behalf and produced only one witness upon whose testimony he predicated the defense of alibi.

On May 19, 1958, at approximately 2:50 a. m., a tavern called Kay's Dugout, located at 3406 N. Sheffield Avenue, Chicago, was robbed.At the time, Harry Gaddo, bartender, and eight or ten patrons were in the tavern.The bar extended from near the front to the back of the room and the customers were seated on stools which were spaced along the front of the bar.A restroom was located at the rear of the room.

At the time in question, a man about five feet six inches tall, who weighed approximately 130 pounds and wore a brown suede jacket, came into the tavern and asked where the restroom was located.Gaddo directed him to it and then walked to the other end of the bar.

A second man entered the tavern, sat down on the first stool and ordered a highball.He was about six feet tall, weighed approximately 178 pounds, wore a dark jacket and brown fedora hat, and had no mustache, goatee, or distinguishing marks.This man was identified as the defendant by Gaddo, Mary Buchel, Walter E. Mayer and Peter Filpi.

Gaddo served the drink to defendant, collected his money, and then walked to the other end of the bar and was talking to patrons when the defendant stood up and dropped the highball to the floor.At the sound of breaking glass, another man rushed into the tavern, jumped around the bar, placed a knife at Gaddo's throat and announced, 'It is a holdup.'This man took about $200 from the drawer of the cash register and a like amount of money from nearby cigar boxes.As he took the money, defendant stood near the door with a 'silver plated' gun in his hand.At the trial, Gaddo identified a revolver which was admitted in evidence as 'looking like' the weapon which defendant had in the tavern.

While the robbery was in progress, the robber who first entered the tavern, put a gun in the back of Peter Filpi, a patron, and took his money and wristwatch.The wristwatch was identified by Filpi at the trial by virtue of certain distinctive characteristics, including a chipped crystal.It was found by police officer Pittacora in the defendant's apartment.

During the robbery, Mary Buchel, Joan Reeves, and Walter E. Mayer, a lieutenant in the city fire department, entered the tavern.As they walked toward the back of the room, the robber who took Filpi's money and wristwatch ordered them to sit down and Mayer scuffled with him.The defendant came to the aid of his fellow robber, pistol whipped Mayer several times, and then fired his revolver.The bullet grazed Mayer's head and entered Mary Buchel's shoulder.At this time, defendant threatened to kill Mayer or anyone else who moved.

Mayer, Buchel and Filpi all testified that it was the defendant who fired the shot and the description which Mary Buchel gave of the defendant confirmed in detail that given by Gaddo.On May 25 and 26, Mayer, Buchel, Filpi and Gaddo, separately picked the defendant out of a police line-up and identified him as one of the robbers.

After the defendant was arrested, he was questioned by officer Pittacora, denied participation in the robbery and gave the police permission to search his apartment.During the ensuing search, the watch belonging to Peter Filpi was found.

After the defendant fired the shot, Mary Buchel realized that she had been hit and turned to hold onto the bar.Thereupon, the robber who first entered the tavern removed her wristwatch from her arm and her billfold from her purse.Before the robbers left the tavern, they lined the patrons and bartender up against the wall and the defendant said that any person who attempted to leave the tavern would be killed.When the police arrived they took Mary Buchel to a hospital where a bullet was removed from her shoulder the following day.

John Collins, a police officer, arrested defendant and another man in Chicago on May 25, 1958, at 7:30 p. m. Earlier in the day he went to Hammond, Indiana, where he conversed with lieutenant Vicari of the Hammond police, and there saw a certain revolver.Later that day, lieutenant Vicari delivered this revolver to Collins in Chicago, along with certain cartridges.Collins identified a revolver produced at the trial as the weapon which Vicari delivered to him.This was done by means of an inventory slip prepared by Collins at the time, which described the exhibit and listed its serial number.He also identified the cartridges which he had marked.He sent the revolver and cartridges to the crime laboratory for the purpose of comparison.

Dr. Theodore A. Fox, a practicing physician and surgeon, testified that he attended Mary Buchel in the hospital and removed a bullet from her right shoulder which he identified at the trial from the distinguishing marks made by the surgical instrument used in the operation.Forest E. Benz and Anton Wenskus, police officers attached to the Scientific Crime Detection Laboratory, testified concerning the delivery of this bullet and the revolver and cartridges to the laboratory, and the methods used in handling, marking and preserving the various exhibits which were identified by them at the trial.

John G. Sojat, another officer connected with the laboratory, testified at length concerning his experience, training and qualification as a firearms identification technician.His testimony, which was uncontradicted, firmly established that he was an expert in this field.He identified the revolver produced in court as the weapon he had test-fired twice in the laboratory.He further identified the bullets recovered from the firing test and the bullet recovered from the shoulder of Mary Buchel, which he had examined under a microscope.After explaining the basis for his conclusions, Sojat stated that, in his opinion, the three bullets had been fired from the same weapon and that the bullet which struck Mary Buchel had been fired through the revolver produced at the trial.

At the conclusion of the People's case, the revolver, wristwatch, inventory slip for the revolver, and recovered bullet, were admitted in evidence over defendant's objections.The unfired cartridges delivered with the gun and the test-fired bullets were admitted without objection.A motion for a directed verdict, made but not argued, was denied.

Gus Alpogianis was defendant's only witness.He testified that he was one of the proprietors of the restaurant where defendant had been employed for about five weeks prior to his arrest and that his regular hours were from 7 until 2.On cross examination, Alpogianis testified that he was working in the restaurant at 2:00 a. m. on May 19, 1958, but did not remember who was there at that time.

Defendant contends that the evidence does not establish his guilt beyond a reasonable doubt due to lack of certainty in his identification.He characterizes the testimony of the identifying witnesses as vague, conflicting and uncertain.We do not agree with this conclusion.

The description of the defendant and the clothing he wore, as given by witnesses Gaddo, Filpi and Buchel, is clear and harmonious.Mayer was the only identifying witness who failed to give a detailed description of defendant, but this is understandable when we consider that Mayer was suddenly assaulted and beaten over the head with a pistol.However, he did say that he would never forget his assailant's face.Each of these witnesses identified the defendant on separate occasions in a police line-up about a week after the robbery, and also identified him in open court at the trial.Though subjected to an extensive, rigorous and searching cross-examination, the testimony of each witness stood unimpaired.

In a criminal case the People must prove beyond a reasonable doubt not only the commission of the crime charged but also its perpetration by the accused.People v. Davis, 14 Ill.2d 196, 151 N.E.2d 308;People v. Kidd, 410 Ill. 271, 102 N.E.2d 141.Where the corpus delicti is proved and only the question of identification remains, the testimony of one credible witness, if positive, is sufficient to convict even though contradicted by the accused.People v. Burts, 13 Ill.2d 36, 147 N.E.2d 281;People v. Williams, 12 Ill.2d 80, 145 N.E.2d 29;People v. Wilson, 1 Ill.2d 178, 115 N.E.2d 250.The fact that some of the persons present were not called to identify the accused does not require a reversal, particularly when it appears that other eyewitnesses had made positive and unhesitating identification.People v. Crenshaw, 15 Ill.2d 458, 155 N.E.2d 599.

In the case at bar, the identification...