People v. McElroy

211 N.E.2d 444, 63 Ill. App. 2d 403, 1965 Ill. App. LEXIS 1077
CourtAppellate Court of Illinois
DecidedOctober 18, 1965
DocketGen. 49,866
StatusPublished
Cited by4 cases

This text of 211 N.E.2d 444 (People v. McElroy) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. McElroy, 211 N.E.2d 444, 63 Ill. App. 2d 403, 1965 Ill. App. LEXIS 1077 (Ill. Ct. App. 1965).

Opinion

MR. JUSTICE MURPHY

delivered the opinion of the court.

After a jury trial, defendant, Olee McElroy, was found guilty of armed robbery and was sentenced to tbe penitentiary for a term of from three to six years. On appeal, defendant contends that tbe evidence was insufficient to prove bim guilty beyond a reasonable doubt. Defendant also complains of (1) tbe refusal of tbe court to instruct tbe jury on evidence of prior good character; (2) tbe striking of relevant evidence relating to defendant’s alibi on tbe ground that tbe same was an effort to impeach bis own witness; and (3) tbe court’s abuse of discretion in failing to give tbe jury an adequate opportunity to compare defendant’s bandwriting exhibits.

On February 29, 1964, at 5:30 p. m., three armed men entered an A & P grocery store at 5833 South Wentworth Avenue, in Chicago. There were about 20 customers in tbe store, of whom about eight were in tbe area of tbe four check-out counters. As tbe first armed man entered, a store guard, Willie Stevenson, observed bim from tbe back as be passed swiftly through tbe second or third check-out aisle and proceeded toward tbe manager’s office. Stevenson saw tbe man’s face for five to ten seconds from a distance of about six feet. Then a second man pressed a gun at bis bead from tbe rear and said, “Don’t move.” As Stevenson turned to bis right, be noticed a third man at tbe door, with a sawed-off shotgun pointed toward bim and tbe customers in tbe store. Stevenson was ordered to lie on tbe floor by tbe latter two men, who took bis revolver and tbe cash from four cash registers. He was then ordered to tbe rear of tbe store, where be remained until tbe men left.

A woman customer, who was standing about seven feet east of tbe manager’s office, beard tbe first man say, “All right, all right.” She recognized tbe voice and turned and looked at bim. He was walking toward her, and she looked at bis face first. He was looking right at her. She also saw that he had a gun. She stood there momentarily, and then saw the defendant kick open the door to the office and heard him say, “You had better not push the alarm.” She then ran to the back of the store because she thought he had recognized her.

The first man entered the manager’s office and held the manager, Henry Eklund, and the bookkeeper, Marion Brunner, at gun point. He stood face to face with Eklund, about a foot apart. Eklund opened the safe at his direction, and the man emptied it of its cash contents and left. The three men were in the store from five to fifteen minutes, and when they ran out, no one pursued them or observed their flight. The woman customer then told the manager and the police that she had known the first armed man for over two years and by the name of “Boone.” He was a waiter at Fred’s Tavern at 1015 East 43rd Street.

On the evening of the robbery, the woman customer and Willie Stevenson, escorted by police officers, proceeded to Fred’s Tavern at 1015 East 43rd Street. When the defendant came in, the customer heard him say to a bartender, “I made a piece of change today.” After a given signal by her, defendant was taken into custody. The police officers searched defendant, the tavern premises and defendant’s living quarters at 4413 South Ellis Avenue and found no gun or money. Neither did they find outer clothing similar to that described as worn by the defendant at the time of the robbery. Later that night defendant was placed in a “line up” at the police station and viewed by the store manager, the bookkeeper and Stevenson, the guard, and of these three who viewed the line up, Stevenson was the only one who identified the defendant.

At the trial, the State’s witnesses consisted of (a) the woman customer and the private guard, both of whom identified defendant; (b) the store manager, who was unable to identify defendant beyond stating that he “resembles the man who was in the cage”; and (c) the arresting police officer, who testified that he was present at the tavern when defendant entered, and that he heard defendant say to one of the bartenders, “I made a touch of some money,” or words to that effect.

The defense witnesses included (a) the defendant; (b) a hotel clerk; (c) a police officer who interrogated defendant at the police station subsequent to his arrest; (d) defendant’s employer, who testified that defendant’s general reputation for truth and veracity was good; and (e) two fellow employees (bartenders), who denied hearing him say to them, “I just made me some money today,” or words to that effect.

Initially, we consider defendant’s contention that the evidence was insufficient to establish his guilt beyond a reasonable doubt. Defendant argues that the certainty of the identification of the two State’s witnesses was diminished because (a) Eklund, the store manager, had at least five minutes to observe the man in his office and “could not identify McElroy as the robber but significantly testified that defendant resembled the robber. Marion Brunner viewed the lineup the next morning at 3:00 a. m. and was unable to identify defendant as the robber. The State failed to call her as a witness”; (b) the descriptions given by the woman customer, the guard and the manager differ as to defendant’s appearance and clothing worn at the time of the occurrence; and (c) four or more cashiers and check-out personnel and eight customers at the check-out counters did not view the lineup and did not testify. These persons were at the front of the store facing the three armed men and had a greater opportunity for observation of the men than the woman customer and Stevenson, and “the failure of the state to call these witnesses is positive evidence for the accused. So too is it evidence in favor of the accused that Eklund and Brunner did not identify defendant.” Cited is People v. Kidd, 410 Ill 271, 102 NE2d 141 (1951), where the court said (p 278):

“The unfavorable circumstances under which this witness was able to view and identify McClellan must ... be considered in the light of the testimony of the other prosecution witnesses who were unable to identify him although given a more favorable opportunity to view the perpetrators of the crime.”

As argued by the State, “Positive identification by one witness, who has ample opportunity for observation, may be sufficient to support a conviction” (People v. Mack, 25 Ill2d 416, 421, 185 NE2d 154 (1962)), and minor discrepancies in testimony do not destroy the credibility of eyewitnesses but only go to the weight to be given the testimony, and in the instant case, “these alleged discrepancies were fully brought out before the jury, whose function it was to determine the credibility of the witness.” People v. Morgan, 28 Ill2d 55, 62, 190 NE2d 755 (1963).

As to identification, the woman customer testified that for a period of about a month during the two years she had known defendant, she had seen him at Fred’s Tavern every night. She had gone to a hotel with him, the last time being in 1963. She further testified that she had seen him three weeks before the robbery, and at that time they were “on friendly terms as always,” and “I have no doubt in my mind that the defendant is the person I saw in that A & P on that day.”

Stevenson, the guard, testified in detail as to the robbery. On the evening of the robbery, he went to a tavern on 43rd Street.

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Related

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321 N.E.2d 450 (Appellate Court of Illinois, 1974)
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320 N.E.2d 610 (Appellate Court of Illinois, 1974)
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246 N.E.2d 826 (Appellate Court of Illinois, 1969)

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Bluebook (online)
211 N.E.2d 444, 63 Ill. App. 2d 403, 1965 Ill. App. LEXIS 1077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcelroy-illappct-1965.