People v. Tunstall

• Decision Date: 24 September 1959
• Docket Number: No. 34896,34896
• Parties: PEOPLE of the State of Illinois, Defendant in Error, v. Bennie TUNSTALL, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 300

161 N.E.2d 300

17 Ill.2d 160

PEOPLE of the State of Illinois, Defendant in Error, v. Bennie TUNSTALL, Plaintiff in Error.

No. 34896.

Supreme Court of Illinois.

Sept. 24, 1959.

W. Elbert Washington, Chicago, for plaintiff in error.

Latham Castle, Atty. Gen., and Benjamin S. Adamowski, State's Atty., Chicago (Fred G. Leach, William H. South, Asst. Attys. Gen., and Francis X. Riley, Asst. State's Atty., Chicago, of counsel), for the People.

DAILY, Justice.

Defendant, Bennie Tunstall, who was indicted with one James Webb on a charge of armed robbery, was convicted after a separate jury trial in the criminal court of Cook County and was sentenced to the penitentiary for a term of one to ten years. He prosecutes this writ of error contending (1) that he was not proved guilty beyond a reasonable doubt, (2) that the jury, rather than the court, should have fixed his punishment, and (3) that the admission of prejudicial and incompetent evidence denied him a fair trial.

At approximately 3:00 P.M. on September 6, 1955, Abraham Katzman, an insurance agent and collector, was held up and robbed of $75 by two men, one of whom was armed with a gun, in the first floor hallway of a two-story flat building at 1428 Sawyer Avenue in Chicago. Katzman had just described a stairway from the second floor and it was his testimony that the hallway was well lighted and that the two men were in his view as he descended from a landing in the stairs. The incident was one of a series of holdups involving insurance agents and, based upon information given by one victim, the police arrested James Webb after tracing license plates on a car. On the day of the arrest, October 17, 1955, Katzman pointed out Webb from a police lineup as one of the men who had robbed him. When questioned Webb named defendant as his accomplice. Two days later, when Katzman was in the court building to attend a preliminary hearing for Webb, he identified defendant as the second robber by selecting the latter's photograph from a group of six pictures exhibited to him by the police.

Efforts to apprehend defendant were unsuccessful but, on October 25, he surrendered to the police after learning from his mother a warrant had been issued for his arrest. Although defendant denied any knowledge of the crime his indictment and conviction followed. At the trial his mother and sister gave alibi testimony, rendered completely speculative on cross-examination, to the effect that defendant had been at home on the day of the crime caring for his father who died prior to the trial.

When testifying for the People, Katzman described the holdup, identified defendant from the witness stand, stated that Webb had been the robber armed with a gun, and related how he had identified defendant's photograph prior to the latter's arrest. In response to cross-examination he conceded he had not viewed defendant in a lineup and described only in general terms the manner in which defendant was dressed at the time of the robbery. At the same time, however, he stated he was able to identify defendant because of the opportunity he had to view his assailants as he descended the stairs.

Defendant now urges the identification evidence is so unsatisfactory as to create a reasonable doubt of his guilt because he was not picked out from a group of prisoners, because Katzman was unable to describe his clothing with particularity, and because Katzman did not testify either to physical features of 'irregularities' which would distinguish defendant from other persons. While the elements referred to have, in some cases, been recognized as having some weight, they are neither controlling nor a prerequisite to identification. The method or manner of identification is, rather, a matter which goes to the weight rather than the admissibility or competency of identification evidence. See: People v. Thomas, 409 Ill. 473, 100 N.E.2d 588; People v. Thompson, 406 Ill. 555, 94 N.E.2d 349; 14 I.L.P. Criminal Law § 315. Ordinarily the question of whether an accused has been identified as the perpetrator of a crime is a question of fact for the jury and, upon review, we will not reverse a conviction on the question of the sufficiency of the identification unless it is contrary to the weight of the evidence, or is so unsatisfactory as to justify a reasonable doubt of a defendant's guilt. People v. Keagle, 7 Ill.2d 408, 131 N.E.2d 74; People v. Ortega, 5 Ill.2d 79, 125 N.E.2d 481.

A reading of all the testimony in the record leads us to a conviction that the identification of defendant was positive and convincing. The proof reveals that Katzman, at the time of the robbery, had ample opportunity to view his assailants under such favorable conditions as would permit him to know and identify them. Indeed, his subsequent identification of Webb from a police lineup, coupled with the latter's admission of his own guilt, bear mute testimony to the ability of the witness in such respect. Added to the favorable opportunity for observation is the evidence which shows that Katzman, within a reasonable period after the crime, unhesitatingly identified defendant as the second man who robbed him by selecting defendant's picture from a group of photographs exhibited to him by the police. Such a method of identification is commonplace and there is no suggestion here of any unfairness or irregularity in its execution. The testimony of one witness as to identification, if positive and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused. People v. Tomaszewski, 406 Ill. 346, 94 N.E.2d 154; People v. Mosher, 403 Ill. 112, 85 N.E.2d 658. Here the testimony of Katzman was not impeached or shaken upon cross-examination and, from the entire record, we cannot say that the nature of the identification is such as to raise a reasonable or well founded doubt of defendant's guilt.

As a further ground for reversal defendant contends that the judgment against him is void because the court, rather than the jury, fixed the length of his confinement. In support of such contention he relies upon subparagraph (a) of section 6a, division XIV of the Criminal Code. (Ill.Rev.Stat.1955, chap. 38, par. 754a(a).) That section, however, by its own terms, has application only if the Sentence and Parole Act is not applicable. See: People v. Tucker, 13 Ill.2d 15, 19, 147 N.E.2d 292; People v. Barg, 390 Ill. 201, 203, 60 N.E.2d 890. Section 2 of the Sentence and Parole Act (Ill.Rev.Stat.1955, chap. 38, par. 802) in turn provides that, except for crimes enumerated in section 1 of that act (misprision of treason, murder, voluntary manslaughter, rape or kidnapping,) the court imposing a sentence to the penitentiary shall fix the minimum and maximum limits or duration of imprisonment. Defendant was indicted, tried, and convicted of the crime of armed robbery as defined in section 246, division I of the Criminal Code (Ill.Rev.Stat.1955, chap. 38, par. 501) and since this is a crime to which the provisions of the...