People v. True

• Court: Illinois Supreme Court
• Writing for the Court: DE YOUNG
• Citation: People v. True , 314 Ill. 89, 145 N.E. 198 (Ill. 1924)
• Decision Date: 28 October 1924
• Docket Number: No. 16099.,16099.
• Parties: PEOPLE v. TRUE et al.

314 Ill. 89

145 N.E. 198

PEOPLE

v.TRUE et al.

No. 16099.

Supreme Court of Illinois.

Oct. 28, 1924.

Error to Circuit Court, Sangamon County; Elbert S. Smith, Judge.

Russell True and Roy Spain were convicted of robbery, and they bring error.

Reversed and remanded.A. M. Fitzgerald, W. A. Ruegg, and Sherman, Bainum & Pree, all of Springfield, for plaintiffs in error.

Edward J. Brundage, Atty. Gen., and C. F. Mortimer, State's Atty., and James B. Searcy, both of Springfield (James M. Weldon, Oscar J. Putting, and H. E. Fullenwider, all of Springfield, of counsel), for the People.

DE YOUNG, J.

The grand jury of Sangamon county, on January 22, 1924, indicted Russell True, Roy Spain, and Howard Fagan for robbery. The indictment consists of two counts. The first count charges that True, Spain, and Fagan robbed William H. Diebold of $96 in currency and 39 pints of whisky, valued at $2 per pint. The second count charges them with the same robbery while armed with a dangerous weapon. Fagan failed to appear at the trial. The jury found True and Spain guilty of robbery as charged in the second count. Motions for a new trial and in arrest of judgment were overruled, and True and Spain were sentenced to the penitentiary at Chester. They prosecute this writ of error to review the record.

The robbery was committed at about 11 o'clock p. m. on October 27, 1923, in the Allen Street drug store, at the southeast corner of Spring and Allen streets, in the city of Springfield. Two witnesses appeared in behalf of the prosecution. William H. Diebold, manager of the store, testified that three men, Fagan, True, and Spain, entered; that True asked him for bromidia, and at the same instant Fagan, pointing a gun, drove him into the prescription room, commanded him to put up his hands and face the wall, and searched his pockets and the drawers of a certain case; that Hiram Williams, the porter, ran out of the front door, but Spain brought him back, and he, too, was compelled to face the wall; that Fagan ordered the witness to open the safe, which he did; that Fagan asked where the whisky could be found, and when informed that it was in the basement, entered it, filled his pockets with bottles containing whisky, and took a case, which at his command was carried away by Spain; that Fagan and Spain each had a gun; that the three men took $10 from him, $10 from the safe, $76.77 from the cash register, and 39 pints of whisky, which cost $2 and sold at retail for $3 per pint; that the store at the time of the robbery was well lighted; and that while he was not personally acquainted with Spain, he had seen him drive an ice wagon, but that he had never seen True or Fagan before.

Hiram Williams, the porter, corroborated, in substance, the testimony of Diebold. He also testified that when Fagan pointed the gun at Diebold he (Williams) ran out of the store and about 35 feet alongside of the building and lay down; that Spain then, by a threat to kill him, compelled him to re-enter the store and face the wall of the prescription-room; that it was light outside the building, owing to the presence of an electric sign; that True and Spain participated in the robbery; that he had been acquainted with Spain for several years but had never seen True before that night; and that on that night he failed to make known who had robbed the store or to inform Diebold that he was acquainted with Spain, but that he told the police that he did not know the identity of the robbers.

On the part of the plaintiffs in error, six witnesses, including True, testified that at the time of the robbery True was playing cards at Frank Arken's pool room, apparently some distance from the Allen Street drug store. Six other witnesses testified that Spain was at Henry Eck's soft drink parlor from approximately 50 minutes past 10 o'clock until 40 minutes past 11 o'clock on the night of the robbery. Edward Leedom testified that he, Fagan, and Samuel Haynes committed the robbery. At the time of the trial Leedom was in the Sangamon county jail, Fagan was incarcerated in jail at Lincoln, and Haynes was a prisoner in the penitentiary at Chester. It will serve no useful purpose to detail the testimony of the several witnesses for the plaintiffs in error. They are in substantial accord as to the whereabouts of the plaintiffs in error at the time the crime charged was committed. Of these witnesses, one was a young woman engaged to marry True, others often frequented the places where the plaintiffs in error claimed to have been on that night, and some were relatives of Spain. These witnesses did not, it seems, volunteer to give any information concerning the whereabouts of the plaintiffs in error on the night in question until they (the witnesses) were informed by persons interested in the defense that their testimony would be required. If their testimony was trustworthy it established a complete alibi for the plaintiffs in error. On the contrary, the identification of the plaintiffs in error by the two witnesses for the state was positive. Williams, the porter, it is true, did not promptly make known his acquaintance with one of the robbers, but his failure in this respect does not necessarily destroy, or even impair, the credibility of his testimony.

[1][2] The jury had an opportunity, which is denied us, to see and observe the witnesses, to judge their character from their appearance and conduct on the witness stand, and to form an opinion upon the accuracy of their observation, the clearness of their recollection, and the trustworthiness of their narrative. It is the province of the jury to determine the credibility of the witnesses and the weight to be given to their testimony. A reviewing court will reverse the trial court's judgment only when it is able to say, after a careful consideration of all the evidence, that there is clearly a reasonable doubt of the accused person's guilt....