MR. CHIEF JUSTICE WARD
delivered the opinion of the court:
The defendant, Booker Blakes, was found guilty of armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2) following a jury trial in the circuit court of Peoria County. He was sentenced to the penitentiary for a term of not less than 5 nor more than 20 years. The appellate court reversed the conviction and remanded for a new trial (27 Ill. App. 3d 439), and we granted the People’s petition for leave to appeal.
On the evening of January 29, 1973, Francis Stickelmaier and Edward Barborinas were employed at the Western Avenue Liquor Store in Peoria. At approximately 8:30 p.m. a man entered the store and, after describing two men whom he identified as friends, asked Stickelmaier if he had seen them. He left the store when Stickelmaier told him he had not seen the men. Shortly thereafter the man reentered the store brandishing a pistol. He approached the counter where Stickelmaier and Barborinas were standing and ordered Stickelmaier to hand over the money from the register. The robber then fled, after ordering both men to lie on the floor. A little over two weeks later, on February 14, 1973, Barborinas saw the defendant in the South Side Bank in Peoria, where Barborinas had gone to purchase license plates, and recognized him as the robber. He called the police, who arrested the defendant. Barborinas later picked out the defendant from a lineup. However, Stickelmaier was unable to do so, and he testified at trial that he was unable to identify the defendant as the robber.
On April 4, 1973, the State filed a discovery motion, which in part asked the defendant to inform it whether he was going to assert an alibi defense. The motion was that in the event the defendant would present a defense of alibi that he be ordered to inform the prosecution where he was and whom he would call as witnesses to support that defense.
The complaint filed against the defendant on February 15, 1973, stated the date of the robbery to have been January 25, 1973. At the preliminary hearing Barbotinas testified that the robbery took place on that date. The indictment, returned on March 16, 1973, also alleged the robbery date to have been January 25. However, on the State’s motion the indictment was amended to show January 29, 1973, as the date of the crime. The record does not show when the defendant was informed that the date first charged was in error, but his answer to the discovery motion was filed prior to April 2.0, the date the State’s motion to amend was filed, and it named four persons who could establish his whereabouts on January 25 or January 29, 1973. One named was the manager of the Inman Hotel in Champaign, Illinois. The answer also stated that the defendant was going to introduce into evidence the registration and telephone message log book of the hotel.
Only two persons named in the answer, Dorothy Jackson, his sister, and John Fleming, were called by the defendant as witnesses. Dorothy Jackson testified that the defendant came to her home around 8:05 p.m. on January 29, 1973, and that he left 15 minutes later. Fleming said that he left Dorothy Jackson’s house in the company of the defendant at about 8:15. He testified that he dropped off the defendant at Neal’s Lounge at 8:20 and that the defendant was there when Fleming returned at nine o’clock. Neal’s Lounge is approximately 2Vz miles from the Western Avenue Liquor Store.
The defendant denied the commission of the robbery. In his opening statement the defendant’s attorney said the evidence would show that the defendant had been at another place some distance away at the time of the crime. When the defendant took the stand he testified simply that Fleming dropped him off at Neal’s, which he said was a private club, and that he remained there more than five hours — until 1:30 a.m. The assistant State’s Attorney brought out on cross-examination that the defendant had been a member of the club for two years and that he went there often (every week). The following was part of the cross-examination:
“Q. Okay, so you are pretty familiar with the place [Neal’s Lounge] then?
A. Yes.
Q. And the people in the place and employees and so forth are pretty familiar to you, wouldn’t that be true?
A. Yes.
Q. Who was in Neal’s at the time you went there January 29, 1973?
A. There were quite a few people in there.
Q. Who, in particular that you knew?
A. George Johnson, Willie Cathrew, a guy by the name of Russell, Joe Moore, Herman Carter. There was a lot of others, but I can’t remember everybody’s name.
Q. Those names you happen to remember right now?
A. Yes.”
There was no objection made by the defendant to the cross-examination.
During closing argument the prosecutor referred to the cross-examination and commented that persons the defendant had said were in the club that night had not appeared to testify. The defendant in his argument answered that the People, not he, had brought out the names of the persons. He said that sometimes people “just don’t remember” and observed that one can’t jog their memory as to a past date and you can’t ask them to come in and lie. He added that the defense “brought in some witnesses that somewhat corroborated his story.” The prosecutor in his reply said that while the burden of proof remains on the prosecution throughout a trial, if the defendant tells the jury he was at a certain place at the time of the crime, and that there were other people there that could help him, the jury has a right to consider the absence of those people at the trial.
The People contend that there was no error in the cross-examination of the defendant and that the prosecutor’s comments were proper. The defendant has abandoned what apparently was his earlier argument that there was error in the cross-examination and in the prosecutor’s comments generally. In his oral argument here he stated he was limiting his claim of error by the trial court to the following: The defendant was asked on cross-examination only whom he saw that night at the club and not who was present who could testify the defendant was there at the time of the robbery. Since the defendant did not offer the persons he named as alibi witnesses, the People committed reversible error during closing argument when they commented upon the defendant’s failure to call them as witnesses.
The People are correct in their contentions that there was no error in the cross-examination allowed or in the comment made in argument.
It is clear that the scope of cross-examination rests within the sound discretion of the trial court and absent a showing of abuse its exercise of discretion will not be upset on appeal. Where a defendant complained of his cross-examination this court in People v. Burris, 49 Ill.2d 98, 104, said: “The defendant who takes the stand and testifies in his own behalf in a criminal case not only offers himself as a witness in his own behalf but thereby subjects himself to legitimate cross-examination.
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MR. CHIEF JUSTICE WARD
delivered the opinion of the court:
The defendant, Booker Blakes, was found guilty of armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2) following a jury trial in the circuit court of Peoria County. He was sentenced to the penitentiary for a term of not less than 5 nor more than 20 years. The appellate court reversed the conviction and remanded for a new trial (27 Ill. App. 3d 439), and we granted the People’s petition for leave to appeal.
On the evening of January 29, 1973, Francis Stickelmaier and Edward Barborinas were employed at the Western Avenue Liquor Store in Peoria. At approximately 8:30 p.m. a man entered the store and, after describing two men whom he identified as friends, asked Stickelmaier if he had seen them. He left the store when Stickelmaier told him he had not seen the men. Shortly thereafter the man reentered the store brandishing a pistol. He approached the counter where Stickelmaier and Barborinas were standing and ordered Stickelmaier to hand over the money from the register. The robber then fled, after ordering both men to lie on the floor. A little over two weeks later, on February 14, 1973, Barborinas saw the defendant in the South Side Bank in Peoria, where Barborinas had gone to purchase license plates, and recognized him as the robber. He called the police, who arrested the defendant. Barborinas later picked out the defendant from a lineup. However, Stickelmaier was unable to do so, and he testified at trial that he was unable to identify the defendant as the robber.
On April 4, 1973, the State filed a discovery motion, which in part asked the defendant to inform it whether he was going to assert an alibi defense. The motion was that in the event the defendant would present a defense of alibi that he be ordered to inform the prosecution where he was and whom he would call as witnesses to support that defense.
The complaint filed against the defendant on February 15, 1973, stated the date of the robbery to have been January 25, 1973. At the preliminary hearing Barbotinas testified that the robbery took place on that date. The indictment, returned on March 16, 1973, also alleged the robbery date to have been January 25. However, on the State’s motion the indictment was amended to show January 29, 1973, as the date of the crime. The record does not show when the defendant was informed that the date first charged was in error, but his answer to the discovery motion was filed prior to April 2.0, the date the State’s motion to amend was filed, and it named four persons who could establish his whereabouts on January 25 or January 29, 1973. One named was the manager of the Inman Hotel in Champaign, Illinois. The answer also stated that the defendant was going to introduce into evidence the registration and telephone message log book of the hotel.
Only two persons named in the answer, Dorothy Jackson, his sister, and John Fleming, were called by the defendant as witnesses. Dorothy Jackson testified that the defendant came to her home around 8:05 p.m. on January 29, 1973, and that he left 15 minutes later. Fleming said that he left Dorothy Jackson’s house in the company of the defendant at about 8:15. He testified that he dropped off the defendant at Neal’s Lounge at 8:20 and that the defendant was there when Fleming returned at nine o’clock. Neal’s Lounge is approximately 2Vz miles from the Western Avenue Liquor Store.
The defendant denied the commission of the robbery. In his opening statement the defendant’s attorney said the evidence would show that the defendant had been at another place some distance away at the time of the crime. When the defendant took the stand he testified simply that Fleming dropped him off at Neal’s, which he said was a private club, and that he remained there more than five hours — until 1:30 a.m. The assistant State’s Attorney brought out on cross-examination that the defendant had been a member of the club for two years and that he went there often (every week). The following was part of the cross-examination:
“Q. Okay, so you are pretty familiar with the place [Neal’s Lounge] then?
A. Yes.
Q. And the people in the place and employees and so forth are pretty familiar to you, wouldn’t that be true?
A. Yes.
Q. Who was in Neal’s at the time you went there January 29, 1973?
A. There were quite a few people in there.
Q. Who, in particular that you knew?
A. George Johnson, Willie Cathrew, a guy by the name of Russell, Joe Moore, Herman Carter. There was a lot of others, but I can’t remember everybody’s name.
Q. Those names you happen to remember right now?
A. Yes.”
There was no objection made by the defendant to the cross-examination.
During closing argument the prosecutor referred to the cross-examination and commented that persons the defendant had said were in the club that night had not appeared to testify. The defendant in his argument answered that the People, not he, had brought out the names of the persons. He said that sometimes people “just don’t remember” and observed that one can’t jog their memory as to a past date and you can’t ask them to come in and lie. He added that the defense “brought in some witnesses that somewhat corroborated his story.” The prosecutor in his reply said that while the burden of proof remains on the prosecution throughout a trial, if the defendant tells the jury he was at a certain place at the time of the crime, and that there were other people there that could help him, the jury has a right to consider the absence of those people at the trial.
The People contend that there was no error in the cross-examination of the defendant and that the prosecutor’s comments were proper. The defendant has abandoned what apparently was his earlier argument that there was error in the cross-examination and in the prosecutor’s comments generally. In his oral argument here he stated he was limiting his claim of error by the trial court to the following: The defendant was asked on cross-examination only whom he saw that night at the club and not who was present who could testify the defendant was there at the time of the robbery. Since the defendant did not offer the persons he named as alibi witnesses, the People committed reversible error during closing argument when they commented upon the defendant’s failure to call them as witnesses.
The People are correct in their contentions that there was no error in the cross-examination allowed or in the comment made in argument.
It is clear that the scope of cross-examination rests within the sound discretion of the trial court and absent a showing of abuse its exercise of discretion will not be upset on appeal. Where a defendant complained of his cross-examination this court in People v. Burris, 49 Ill.2d 98, 104, said: “The defendant who takes the stand and testifies in his own behalf in a criminal case not only offers himself as a witness in his own behalf but thereby subjects himself to legitimate cross-examination. The extent of cross-examination with respect to an appropriate subject of inquiry rests in the sound discretion of the trial court.”
The defendant had in his opening statement said that he had not been in the liquor store but had been at “another place.” When he testified he in effect said simply that he had been at the club and that he had been there over five hours. It was certainly within the trial judge’s discretion to allow the cross-examiner to inquire as to the defendant’s familiarity with the club, its employees, and as to what members had been in the club during the five-hour period he said he had been there.
Similarly there was no error in the comments made in closing argument. In People v. Lion, 10 Ill.2d 208, the defendant was charged with murder and he contended, for the purpose of showing an absence of malice, that he was intoxicated at the time of the crime. He had told the police that he blacked out shortly before the crime and the next thing he remembered was awaking in the hospital. This court held that it was proper for the prosecution to comment “upon the fact that defendant had not seen fit to call the hospital attendants to testify as to his state of inebriation.” (10 Ill.2d 208, 216.) This court, in People v. Williams, 40 Ill.2d 522, 528-29, inter alia cited Lion, and observed:
“[A] jury in its deliberations is not limited to a consideration of that which is, strictly speaking, testimony. To the contrary, it may properly consider any facts developed in the trial from which a reasonable inference may be drawn for or against either party. For instance, if it is developed in a trial that a witness exists, presumably under the control of a defendant, who can throw light upon a vital matter, and he is not produced, certainly a jury may fairly consider that fact, and, likewise, counsel would have a legitimate right to comment thereon. ***
[I] t is our conclusion that though failure to call a witness or produce evidence may not be relied on as substantial proof of the charge, nonetheless, if other evidence tends to prove the guilt of a defendant and he fails to bring in evidence within his control in explanation or refutation, his omission to do so is a circumstance entitled to some weight in the minds of the jury, and, as such, is a legitimate subject of comment by the prosecution.”
The prosecutor here was referring only to the obvious in commenting that the defense had not produced anyone from the club, including the men the defendant named in his testimony, to testify.
The defendant’s argument that he was asked on cross-examination only whom he had seen and was not asked who had seen him so that they could testify that he was at the club is too finical to be persuasive. The defendant testified that in addition to the five men he named “there was a lot of others [in the club whom he knew] but I can’t remember everybody’s name.” He was in the club that night for over five hours, he testified. He had been a member for two years and he visited there every week. It is unreasonable to make the narrow contention that as he had been asked only as to whom he had seen and not as to who had seen him, no comment could be made that he had failed to provide support for his story.
For the reasons stated, the judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.
Appellate court reversed; circuit court affirmed.