People v. Kincy

Citation219 N.E.2d 662,72 Ill.App.2d 419
Decision Date30 June 1966
Docket NumberGen. No. 50067
PartiesPEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gerald P. KINCY, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Gerald W. Getty, Public Defender of Cook County, Chicago, John J. Van Zeyl, James J. Doherty, Asst. Public Defenders, of counsel, for appellant.

Daniel P. Ward, State's Atty., County of Cook, Chicago, Elmer C. Kissane, George Samels, Asst. State's Attys., of counsel, for appellee.

SULLIVAN, Presiding Justice.

Defendant appeals from a conviction of robbery after a bench trial in which he was sentenced to the penitentiary for a minimum of five years and a maximum of ten years.

Defendant contends that he was not proven guilty beyond a reasonable doubt, and points out that the single identification of the defendant was vague, doubtful and uncertain.

The facts are these:

Willa Mae Land, the victim of the robbery, testified that she was a clerk in the Pekin Cleaners at 40th and Vincennes Avenue in the city of Chicago, and was so employed on February 8, 1964. That on said date a man entered the store and said, 'Give me your money.' She then walked over to the cash register and got out the bills, singles, and asked him if he wanted the change, to which he replied, 'Yes.' The man had his hand in his jacket and it looked as if there was something inside his jacket which she didn't see. He then left because someone was coming in the store. She further testified that as the defendant was walking out 'a Customer and a lady came in and I told them that I had just been held up.' The man who had entered the store didn't say anything but went out. This occurred at about 3:00 o'clock in the afternoon. She next saw the man, who didn't say anything but just walked out, about twenty minutes later with the police and with the defendant. After the holdup she called the police and told them that she had been held up by a tall, thin, brown-skinned man; that he had on a jacket and a hat, and that he was in his early thirties. That the man she identified about twenty minutes later had on a jacket and a hat. This witness also testified that the man, whom she had told she had just been robbed had been in once and brought in a suit about the day before and was coming after this suit. When asked about the color of the jacket that was worn by the man who held her up, the witness answered, 'I think it was beige or brown, beige looking. I am not positive.' A police officer asked her to check the cash register to determine how much money had been taken. She stated that she was so excited at the time the police asked for this amount that she got it all mixed up. She checked the cash again about 7:30 P.M., which was four and one-half hours after the robbery, and determined that $18.00 was missing. She said she saw the man in court, indicating the defendant.

Police Officer Joe Clark testified that on the date of the robbery he had gone to 55th and South Park because a man told him and his partner that he 'just had followed a man which had just held up his Mother in the cleaners.' The man who made that statement pointed out the defendant. Officer Clark saw the defendant entering a gasoline station at that location and Officer Clark and his partner arrested the defendant in the station. The defendant was searched, which resulted in finding one-dollar bills, some change and a straight razor. The money, amounting to $11.70, was inventoried. The defendant and the person who had pointed out the defendant, and the two officers then returned to the location of the Pekin Cleaners. Officer Clark also testified that it was about fifteen to sixteen blocks from 40th and Vincennes, the scene of the occurrence, to 55th and South Park, the place of arrest, and that at the time of the arrest the defendant did not have an automobile.

Police Officer Elliot Muse, Clark's partner, was called as a defense witness. He testified that the lady who worked at the cleaning store identified the defendant. 'I believe it was her. I am not sure.' He further testified that the woman identified the defendant 'according to his jacket.' She told them it was the same kind of a jacket the fellow had on that robbed her. He also stated that at the time of the arrest he saw defendant counting change on a table and that the defendant said he had won the money shooting dice in the alley.

Defendant's mother, Lacy Campbell, testified that she resided at 3339 Giles Avenue, and that on the date mentioned she and the defendant left her home between 2:40 and 2:45 P.M.; that she had driven him to 55th and South Park. The trip took fifteen or twenty minutes. She further stated that the defendant was going to the El station to meet his daughter, and that after taking the defendant to the named location she returned to her home for a short time and left for work about 3:30, arriving at work at 4:00 o'clock. She further stated that she worked the 4:00 P.M. to 10:00 P.M. shift; that the defendant's daughter was eighteen and an unemployed housewife, and was going to meet her father between 3:00 and 4:00 P.M., and that the defendant asked the witness to drive him to the El Station. The defendant was living with his mother at the time. He was a barber and cut hair at home. The defendant was going to meet his daughter to give her some money. She dropped the defendant off on South Park across Garfield Boulevard on the southwest corner.

The defendant, Gerald P. Kincy, testified that he resided at 3339 Giles Avenue in Chicago; that he was a registered barber and was so employed at the time of his arrest, and that his place of business was at his mother's home. He further stated that on February 8, 1964, his mother drove him to 55th and South Park where he was going to meet his daughter at the El station at 55th between South Park and Prairie. His reason for meeting his daughter was that he was going to give her some money because she had an infection and was in the latter stages of her pregnancy. When he left his mother's car he walked into the gas station and asked the attendant to convert some change into dollar bills, because he did not want to give his daughter a lot of change. He further stated that he had approximately $5.00 in change and was arrested as soon as he placed the money on the counter. The straight razor which was found in his possession was owned by him. It had a small nick in it and since he had no facilities for sharpening the razor, he intended, after meeting his daughter, to proceed to a friend's barbershop at 63rd and St. Lawrence to get the razor sharpened in order to service his Saturday customers. He further testified that he was taken to the Pekin Cleaners where Officer Muse said to Mrs. Land, 'Don't you recognize him?' and Mrs. Land, according to the defendant, stated that she did not recognize him but recognized the jacket. The police then gave him a receipt for the razor and $11.70 taken from him. The money consisted of six $1.00 bills and the rest change. He testified that he charged $1.50 for cutting hair and sometimes would have a lot of change; that the money taken from him was receipts from his barbering business. He further testified that he was never in the Pekin Cleaners; that the police arrested him a minute after he left his mother's car and that on the day in question he had on a black hat and green jacket. The record also indicates that at the time of trial the defendant had a very prominent black moustache.

It is the contention of the defendant that the single identification of the defendant was vague, doubtful and uncertain, and that the only reasonable inference to be drawn from the testimony of Officer...

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  • People v. Blum
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  • People v. Carroll
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    ...... Defendant also points out that Johnnie Reed admitted she did not remember whether her attacker had a mustache, what was the style of his hair or whether he was wearing a ring. To buttress his argument, defendant cites three decisions of this court: People v. Kincy, 72 Ill.App.2d 419, 219 N.E.2d 662; People v. Marshall, 74 Ill.App.2d 483, 221 N.E.2d 133 and People v. Martin, 95 Ill.App.2d 457, 238 N.E.2d 205.         In our judgment, those decisions do not support defendant's argument. Kincy, Marshall and Martin, unlike the one before us, were cases ......
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