People v. Gardner
| Decision Date | 18 November 1954 |
| Docket Number | No. 33244,33244 |
| Citation | 4 Ill.2d 232,122 N.E.2d 578 |
| Parties | The PEOPLE of the State of Illinois, Defendant in Error, v. Clayton E. GARDONER et al., Plaintiffs in Error. |
| Court | Illinois Supreme Court |
Robert H. Jones, and Roy P. Hull, Peoria (Thomas B. Kennedy, Peoria, of counsel), for plaintiffs in error.
Latham Castle, Atty. Gen., and James P. Kellstedt, State's Atty., Peoria (Fred G. Leach, Decatur, George W. Schwaner, Jr., and Robert E. Hunt, Peoria, of counsel), for the People.
Justice FULTON, prepared the following opinion prior to his resignation and it has been adopted and filed as the opinion of the court:
Plaintiffs in error, Clayton E. Gardner and Allen Lindquist, were charged with robbery and armed robbery by the grand jury of Peoria County in indictments filed in the circuit court of that county at the January, 1953, term. They entered pleas of not guilty and were tried and found guilty by a jury of the crimes charged. Each was sentenced to serve a term of not less than seven years nor more than ten years in the Illinois penitentiary. By writ of error they seek a review of their judgments of conviction, the principal errors assigned being that the evidence does not establish the guilt of plaintiffs in error beyond a reasonable doubt; that the court erred in giving certain instructions on behalf of the People; that the court erred in permitting the People to show that a defense witness had been convicted of a crime, not infamous; that error was committed in permitting the People to have two closing arguments and that there was prejudicial misconduct on the part of the State's Attorney.
Only three witnesses testified for the People, the victim of the robbery and two police officers who investigated the crime. The conviction of plaintiffs in error rests entirely on their identification by the complaining witness under circumstances as hereinafter related. The evidence shows that the complaining witness, George Christopher, was employed as a waiter at the Pere Marquette Hotel in the city of Peoria. At about 1:30 A.M. on Sunday, January 11, 1953, he finished work at the hotel and proceeded to walk toward his home which was located at 824 North Monroe Street in the north part of the city. As Christopher was walking north on Monroe Street a short distance south of its intersection with Green Street, at a point not far distant from his home, he was accosted by two men who approached from the opposite direction. One of these men stopped just to the right of the witness, the other at his left. At the time they were only a couple of feet away. There was a street light at the corner of Green and Monroe streets located some 80 to 120 feet behind the two men. The man on Christopher's right produced a gun and thrust it into his side, demanding his money. When Christopher demurred, this man told his companion to 'hit him,' whereupon the man on the left extracted Christopher's wallet from his pocket. All cash was removed from the wallet after Christopher requested that it be returned. Both men then fled in an easterly direction on Green Street after warning Christopher not to look.
Complaining witness then proceeded to his home where he called the police. The call came into the department at about 1:45 A.M. Police officers Scovil and Mull responded but found no suspicious persons in the neighborhood. Presumably Christopher gave them a description of his assailants. At the trial Christopher described the man who had stood on his right as short and stocky with black hair, cut crew style, and black straight eyebrows. He described the other as taller and light complexioned, with light hair combed straight back. He stated that both were wearing short jackets. He was unable to give and further description of their clothing. He did not know whether their jackets were open or closed, or whether they had on shirts. He gave no particulars about facial characteristics and was uncertain about height except to say that one was taller than the other. He was positive in stating, however, that the men in court were the robbers.
Shortly after midnight on the day following the robbery the two investigating officers brought pictures of both plaintiffs in error to Christopher at his place of employment. These had been obtained from police department files. No other pictures were produced or shown to the complaining witness at the time. It fairly appears from all the testimony that Christopher was uncertain about identification at this time. Later, on a date not clearly appearing from the evidence but presumably within a day or two of viewing the pictures, Christopher was brought to the police station at about 2:00 A.M. Plaintiffs in error had been arrested 'from their pictures' that same night and taken from their homes to the police station. Christopher was stationed in a room where he could not be seen but from which he could see into an adjoining room through a one-way transparent mirror which was about one foot wide and three feet long. Plaintiff in error Lindquist who was unaware of the presence of the complaining witness was first brought into this adjoining room. After viewing him through the mirror, Christopher at first stated he was not sure but later stated: 'Yes, that's the boy.' A few minutes later he identified plaintiff in error Gardner as being one of the robbers, using the same method of viewing the accused. But at the trial he could not recall how either of the suspects was dressed at the time he viewed them at the police station and he particularly did not recall whether either one had a jacket on at the time. It is noteworthy that officer Scovil who was present in the room with Christopher at the time he viewed the suspects later told a representative of the State's Attorney's office that he did not think these were the boys; that he knew of other boys resembling the defendants who had been in trouble before. Officer Mull who was also assigned to the case did not testify at the trial.
The only defense interposed by plaintiffs in error was that of alibi. On behalf of Lindquist five witnesses, all of whom knew him personally, stated that he was in their presence at the Mike and Mike Tavern located at the corner of First and Sanford streets in the south part of the city of Peoria from between 10:30 and 11:00 P.M. on Saturday, January 10, 1953, to 3:00 A.M. the following morning with the exception of 5 or 10 minutes at about 2:30 A.M. when Lindquist was absent. Each of these witnesses described Lindquist as wearing a green service station uniform with the name of the proprietor inscribed on the front and a green cap to match. Two of the witnesses described Lindquist's hair as being long at the time. His sister, Joan Lindquist, also testified that he did not have a crew cut at the time; that he had not worn his hair short since June or July of 1952. Lindquist testified in his own behalf and denied participating in the robbery. His story of his whereabouts at the time of the crime is corroborated by the witnesses testifying in his behalf. He stated that he left the Mike and Mike Tavern at about 2:30 A.M. to visit another tavern across the street but that he returned in a few minutes; that he finally left to go to his home at 3:00 A.M.
On behalf of plaintiff in error Gardner, two witnesses testified that he was in a restaurant located at 305 East State Street from about 1:00 A.M. on the morning of January 11 until 2:30 A.M. One of these witnesses was the proprietor of the restaurant. The other was a personal friend of Gardner's who testified that they were together continuously from about 7:30 P.M. on January 10 until after 3:00 A.M. the following morning. Gardner also testified in his own behalf, denied commission of the crime and gave a detailed account of his movements which placed him in the restaurant in question at the time of the commission of the crime.
The foregoing is but a brief re sume of the evidence, but it clearly appears that if the testimony of the alibi witnesses is to be believed, it covers the entire time during which...
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...impossible or highly improbable, then the defense is not available to such defendant.' The defendant, relying on People v. Gardner, 4 Ill.2d 232, 122 N.E.2d 578; People v. Frugoli, 334 Ill. 324, 166 N.E. 129, and People v. Reno, 324 Ill. 484, 155 N.E. 329, contends that the giving of this i......
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