134 Ill. 599 | Ill. | 1890
delivered the opinion of the Court:
Plaintiff in error was indicted, tried and convicted upon a-charge of robbery, and sentenced to the penitentiary for a term of ten years.
On November 2, 1889, Andrew Martin received pension money amounting to $240. He lived about a mile from Brewerville, in Bandolph county. On the night of November 5-following, he, his wife and his daughter were asleep, when they were aroused by a rap at the door. He lit a lamp, went to-the door and opened it, and a man outside, who had his face wrapped up in a red flannel, ordered him to blow out the light and give up his money, or he would blow his brains out. Martin, influenced by this threat, delivered up $173 in money. During the transaction other conversation besides that which we have referred to passed between the parties.
The material question in the case is in respect to the identification of plaintiff in error as the party who committed the robbery. Martin, his wife and his daughter had known plaintiff in error for some ten years, and he had frequently been, at their house. At the trial, both Lucretia Martin, the wife,, and Lucinda Martin, the daughter, testified positively to the-identification, and that they recognized him by his voice. It was also shown in evidence that Andrew Martin had died after the preliminary examination and prior to the trial, and that-at such examination the testimony given by him was substantially the same as that of Lucretia and Lucinda at the trial. This evidence was corroborated by the testimony of Gus Clark and James MeNab, in regard to plaintiff in error leaving his-room, about two miles from the place of the robbery, at about-ten o’clock on the night the crime was committed, and also in regard to statements made by him the next morning. On the-part of plaintiff in error there was positive denial of guilt by himself, and also evidence tending to show that he was very drunk both shortly before and shortly after the time that the-robbery is supposed to have been perpetrated, and also testimony of an inconclusive and unsatisfactory .character tending to prove an alibi.
The statement by the witnesses for the prosecution of a fact-which they ascertained through the sense of hearing was not the statement of mere matter of opinion, but the statement of ' a conclusion reached directly and primarily from an operation of the sense of hearing. A witness can learn and know facts by and through the exercise of his perceptive faculties,—his five senses,—and such facts he may state. (City of Aurora v. Hillman, 90 Ill. 61.) It was a question of fact for the determination of the jury whether or not the testimony in question sufficiently established the matter of identification, and we are unable to say that the conclusion reached by them was not justified by the evidence, considered as a whole.
In Klein v. The People, 113 Ill. 596, it was held, that where the proof clearly shows the commission of a robbery, and the defendant is identified as the guilty party by two witnesses, and an alibi is relied upon in defense, which is not very satisfactorily proved, giving allowance for differences in time and the opinions of witnesses of the time when the offense was committed, and owing to the proximity of the place where the robbery occurred, a judgment on a verdict finding the defendant guilty will not be reversed. The decision in that case .seems to be very much in point when applied to the testimony found in this record’.
Plaintiff in error was examined as a witness in his own be-■ half, and, on cross-examination, hé stated that he had once been indicted for an assault to kill, and c.onvicted upon that indictment for an assault and battery. The question which elicited this information was objected to, and the court ruled that the witness might answer or not answer, as he desired. It appears from an affidavit submitted on the motion for a . new trial, that the attorney for the defendant misunderstood the ruling of the court, and told his client to answer the question. It is very clear that a misapprehension of counsel can not be regarded as an error on the part of the court. Besides this, it is hardly to be supposed that the mere fact that the defendant had at one time been convicted of an assault and battery could have influenced the jury in the rendition of their verdict. -
There is no claim that there was any error in the instructions of the court to the jury.
There is no error in the record. The judgment is affirmed.
Judgment affirmed.
