*1 Hanrahan, Edward V. State’s of Attorney, Chicago, C. Kis- (Elmer sane and Truschke, R. Assistant State’s of for Attorneys, counsel,) the People. Larry Plaintiff-Appellee, Illinois, State Kil-

gore, Defendant-Appellant.

(No. First District (4th Division) 1973. November denied

Rehearing December DIERINGER, J., dissenting. Genson, M. for Chicago, appellant. Carey, Attorney,

Bernard State’s Chicago, (Kenneth L. Gillis and Klein, Assistant State’s Kurt P. Attorneys, for counsel,) People. delivered the opinion Mr. of the court: JOHNSON JUSTICE Defendant-appellant, Larry Kilgore, was jointly indicted with' Ricky Smith, Norvell Horton, and Henry for murder of Michael ver- evidence, for directed motions defendants’ close of Causher. At the The jury except Larry to all granted dicts of not guilty for the penitentiary sentenced found guilty, pre- appeal, On years. than 30 nor more term of not than 15 less necessary that we find one the only sents for issues review several reason- beyon4 was proved to discuss is defendant’s *2 able doubt. 9:30 1969, 17, approximately at on May

Michael Causher shot Grove Cottage 5056 South at P.M. in front of the Laundromat Royal aof as a result Causher died that Avenue in It was Chicago. stipulated 1969, defendant Larry gunshot wound to the head. On June of Causher. with the murder charged arrested of the who person concerning identity of witnesses shot summarized as follows: Michael Causher bemay called Woodson, member of old,

Michael is a former gang 17 years 1969, he May on night He testified that earlier Disciples. victim, friends, had been vodka with several of drinking including P.M., Michael Causher. At or 9:30 Woodson was 9:00 approximately sitting Ward’s Restaurant at 51st Street Grove with Cottage inside, Causher and Ligón Leon While remained Ligón. Woodson afterwards, Causher went outside. Soon Woodson heard two shots and Ligón just burst back into the restaurant and that Causher had been said restaurant, shot. Woodson he saw tan Ford emerged Falcon with a RIack P Stone emblem east on 51st Street towards going Drexel tall, Avenue. Woodson testified that he also saw a haircut, with a bush whom he first observed from a distance of almost block, one running east on 51st could not Street. Woodson identify man he saw run nor the occupants car. Peterson, W. called as a rebuttal Floyd witness by Kilgore,

Officer he interviewed Woodson after the shortly killing and tall, Woodson did not mention a heavy man down 51st Street at running that time. that at

Leon testified for the 9:00 or 9:30 Ligón approximately on he was Ward’s Restaurant. He two May sitting P.M. shots, and saw the restaurant window a man up, through running glanced across Grove. The witness described the man Cottage approximately built, natural Negro, six feet haircut and dark heavily wearing identify testified that he could not clothing. Ligón person he saw running away. that he was in a store liquor at 51st Street and King

Michael at 9:00 9:30 P.M. that approximately evening Grove when a Cottage told him one of his friends had been came in and ran shot. King girl Falcon east going outside saw a in back of a tan Ford badge He almost one block 51st Street. car it was observed the when Street and King testified that he did not down 51st anyone running he could identify of the car. occupants Edwards incident and that the testified that he saw entire 17,1969. occurred Edwards between 8:00 and 9:30 on May P.M. stated when about 10 or feet from the victim standing tlie shots were fired. a brown Shortly shooting, before Edwards saw Falcon station with side wagon five occupants opposite drive up of Cottage Grove. He said four defendants were the car but that he did not know the fifth to Ed- identity occupant. According wards, street, Norvell Ealey car, out of the jumped ran across yelled “Blackstone” and fired two shots in his hand. Michael gun fell, Causher ran Ealey east on 51st Street with the automobile fol- The car lowing. then caught and he fur- up in. Edwards got that, ther testified several days him: “We Kilgore told got Hawk’ ‘Jay Michael and the same thing happened [i.e. Causher] to him will happen to you.” cross-examination, he,

On Causher, Edwards testified that Leon Ligón and Michael all Woodson were members of rival street called gang Disciples Ealey, 1969. Edwards described the man he saw May *3 slender, run after away the as five feet seven or being eight, dark about or complected years and old. that testified at 9:30 P.M. on Levy approximately May

1969, he was on south side walking west of 51st Street between Grove and Drexel Avenue. He heard two Cottage gunshots and observed man a a with natural haircut heavy Negro east on the running op- side of 51st Street. identified man as posite Levy defendant Kilgore. the man him,” testified that it was and “a Levy dark was good way but that saw the man tuck a in gun he his coat. Levy testified that Drexel, north at later he said the man turned that the man turned south Drexel, he at and stated that he did not finally see which direction the man turned at Drexel. saw neither a car Levy nor slender man going east on 51st Street. was with walking Levy Winchester when the incident occurred.

Yvette that she heard two shots then glanced briefly testified across She someone build saw with and a bush running and haircut street and Drexel. She Grove testified Cottage that she could between man “couldn’t tell” really or he was a identify stated that she is Miss Winchester near-sighted Negro. cannot anything far attendant an at the Campbell> Royal Laundromat for the

Juanita that she stated for She Kilgore. testified past five years, P.M. on 1969. May between and 9:15 closed laundromat 8:45 man she and another young she she saw Michael Causher leaving, was Camp- Mrs. near the front of laundromat. recognize standing didn’t bell a few feet north alley testified when she reached laundromat, shots, turned man put she two around saw belt, street, into and drive off. his across the a car something get walk testified that she knew Campbell Larry Kilgore, already Mrs. whom from seeing laundromat, around was not man she in the get saw car; older, stouter, the man she saw much much and shorter than of all behalf four defendants. Several wit-

Alibi witnesses Smith and Ricky Henry nesses testified that defendants Horton at at 53rd at a the YMCA located Street and Dorchester when dance occurred. sister and mother of Norvell television at the watching that he at home time of the incident. testified that he Kilgore Officer Stuart Bradshaw and four five men of a standing place other front barbecue located at 47th young at P.M. on Ingleside approximately May 10:00 Kil- Larry in an testified that he at gore apartment his Ingleside girl, Brown, until 9:30 May Carrie P.M. and that he went down- stairs to barbecue house between 9:30 and 10:00 also Kilgore P.M. denied Edwards threatening and stated that it was Edwards who had told him several incident to “start days grave” digging your next to Causher’s. evidence,

At the close defendants’ the court directed verdicts of not Ealey, Horton Smith and for instructed guilty counsel to make no comment jury suggesting discharge. After for deliberating hours, six found guilty murder. contends, alia, inter not proved beyond a guilty

reasonable doubt. argues He prejudicial in-court identification with- out lineup obtained and that unconstitutionally contradic- blatantly tory accounts were eyewitness insufficient to support conviction.

Kilgore’s identification Causher’s killer was based largely fact he fitted the description several witnesses saw run Woodson, away scene. Michael Leon Ligón, and Yvette Win- *4 “tall, chester testified that saw a they man husky with a natural and run dark wearing clothing” east on 51st Street shortly they two shots. note, all,

We first of that the observation conditions that existed on in night question were less than ideal since was dark and all of the witnesses were some distance away from the man when they 866 man street Winchester, across the who was him. Miss

observed not could him, near-sighted, that she was she saw when man not the she tell or and could not away, far anything of a members both Ligón, of Woodson The a Negro. situated Ligón to where respect inconsistent with gang, rival outside Ligón Woodson question: the events during occurred, Ligón stated when the Causher the restaurant fired, then the shots were until after the restaurant that he remained tall, run and saw window restaurant through glanced away a man run Moreover, to mention seeing failed Woodson murder. Causher s investigating by police first questioned he was when is the fact that there were inconsistencies than these significant More scene man seen fleeing of the descriptions different entirely three six witnesses as: (1) described various man was crime. That of the haircut; short natural wearing (2) built and heavily feet slender, and dark complected. feet seven or eight, stocky; (3) five material conflicts the identification evidence are discrepancies These The role of a court reviewing that cannot be reconciled. against forth in succinctly set v. Coulson People circumstances under such 290, 295-6, N.E.2d 96: 149 Ill.2d 13 (1958), “* * * or of a court without jury, sitting is the of a duty [I]t weight of the and the credibility witnesses to determine jury, review, this and on court will testimony, to be given trial (People for that of the or court. its substitute 615; Kirilenko, is v. But it 3 Ill.2d 1 Ill.2d Tensley, People 90.) v. in criminal this court to examine the evidence of duty always so as to raise a serious case, unsatisfactory and if it improbable the conviction will be reversed. guilt (People doubt of defendant’s 414; O’Connor, Williams, 304; People People 414 Ill. v. 412 Ill. v. 270; Fontana, Buchholz, v. 363 Ill. Ill. A People 461.) judg v. can be sustained evidence only of contradiction credible ment all reasonable doubt of the which removes People’s evidence which creates insufficiency it is sustained, is to be it must If a conviction rest on such doubt. case de People’s strength weakness 143; Widmayer, v. Cul fendant’s case. Ill. (People People v. lotta, fore People Washington, 152.) Ill. Ill. is corollary of law a of inno presumption going principle entitled, defendant in a criminal to which a case is and to cence have the burden of de establishing rule a reasonable doubt.” guilt beyond fendant’s

867 571, 564, N.E.2d 221 35 Ill.2d (1966), v. Similarly, People Gardner Schaefer wrote: Justice “* * * the upon prosecu it incumbent ‘In a criminal case is commission only tion to doubt not the beyond reasonable prove the accused. by of the crime its charged perpetration but also * * * de And while the and whereabouts identification yet, for the jury, fendant at the crime are time of the questions as to where from the entire there is a reasonable doubt record accused, per not be of conviction will a judgment Gold, 309; Ricili, mitted to stand. v. (People People v. 400 Ill. upon 361 Ill. 23.) Where the of a defendant rests conviction doubtful, uncertain, identification which is and which vague and does re not an produce .abiding guilt, conviction of will be Fiorita, Kidd, versed. 78; Ill. (People v. 339 Ill. v. 410 People *” * * * 271) Kilgore The identification that was only positive by seen who did not running away provided Levy, eye- the actual contradicted Levy’s testimony by sole shooting. Edwards, to the who identified killer witness Causher’s James Ealey, defense witness who by Campbell, Juanita man she saw definitely not The State contends identification of Levy’s alone support was sufficient to based conviction well-established upon rale that the eyewitness, it is single positive if credible, is is witness sufficient for conviction. v. Tribbett (People 267, 249; 242 41 Ill.2d N.E.2d v. (1968), People Holt (1970), Ill.App. 124 198, 2d 260 291.) N.E.2d Levy did said say saw he heard shots and the defendant The running away. single eyewit Edwards, ness to shooting was and he testified unequivocably that the man he saw fire two shots at Causher Ealey; However, where a conviction of murder is sought upon alone, circumstantial evidence the guilt of accused must be so thoroughly established as to exclude every other 68, v. hypothesis. Willson (People (1948), 401 Ill. 485.) 81 N.E.2d The codefendants all found “not court, guilty” therefore by conviction of cannot stand under the theory accountability. a careful review

After of the testimony, we cannot disregard evi v. People dence of alibi. Peck 642, 358 (1934), 609; Ill. N.E. 193 354 De Suno (1933), v. Ill. 188 N.E. People McGee (1961), Ill.2d N.E.2d 173 We find identification testimony Levy “not of and convincing clear quality to sustain required conviction,” (People failed the State Since N.E.2d 96). Ill.2d v. Coulson (1958), defendant connecting additional evidence sufficient to introduce a reasonable guilty beyond crime, proven we find that he was doubt. did State produced the evidence have concluded we defen- discuss conviction, unnecessary it is defendant’s

not support other contentions. dant’s is reversed.

Reversed.

BURMAN, P. *6 concurs. J„ dissenting: DIERINGER

Mr. JUSTICE the fact I because opinion think majority I dissent to respectfully a learned jury by to the submitted involved was properly question courage his fairness and The trial showed judge trial experienced judge. for three of at the evidence close when he directed a verdict any to avoid jury withheld this action defendants and properly jury trial and the judge Larry Kilgore. to the prejudice witnesses, their demeanor and testimony of had heard the to decide stand, opportunity and had a much better actions I think in this case it was question court has. than this fact issue our judg- and we should not substitute by jury, fact to be decided jury. for that of the ment the Cir- and the entered verdict

I would affirm cuit Court. Fergus al., et Ford, Plaintiff-Appellee, Heller, Inc.

Paul Defendants-Appellants.

(No. 7, 1973. Division) First District (4th November