{
  "id": 2899808,
  "name": "People of the State of Illinois, Plaintiff-Appellee, v. Homer Bailey, Defendant-Appellant",
  "name_abbreviation": "People v. Bailey",
  "decision_date": "1967-12-14",
  "docket_number": "Gen. No. 51,488",
  "first_page": "121",
  "last_page": "126",
  "citations": [
    {
      "type": "official",
      "cite": "90 Ill. App. 2d 121"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T21:15:50.938972+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "People of the State of Illinois, Plaintiff-Appellee, v. Homer Bailey, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "MR. JUSTICE SCHWARTZ\ndelivered the opinion of the court.\nThe defendant was indicted on a charge of committing the offense of burglary and for taking indecent liberties with a child. He waived a jury, was tried by the court, found guilty and sentenced to 5 to 15 years in the State Penitentiary. His sole contention on appeal is that the evidence does not establish beyond a reasonable doubt that he was the man who committed the crime.\nAt about 4:00 a. m. on October 21, 1965, 10-year-old Antoinette Hudson, who lived with her mother, brothers and sisters in a three-room apartment, was awakened by a man entering her bedroom window from the fire escape. She testified that from her bed, which was a few inches from the window, she observed the man go over and sit on the bed in which her 9-year-old sister Lynn was sleeping. The intruder then got up and went to look into the adjoining bedroom in which the girls\u2019 mother slept. He returned and sat down next to Lynn again and Antoinette went back to sleep.\nLynn testified that she was awakened by the man rubbing his hand on the inside of her thigh. She asked him his name and he replied, \u201cRock,\u201d and pushed her back down on the bed. She screamed and called her mother, whereupon the intruder ran out of the apartment through the front door. As he left he said, \u201cThe door was just open and I am closing it.\u201d\nMrs. Hudson testified that on the night in question she and her five children were sleeping in her three-room apartment. The children occupied beds in the first bedroom and she was sleeping in the second bedroom. There was also a man in her room who was not identified, but, as she testified, he was not in bed with her. She heard her young daughter scream and then saw a man leaving the apartment through the front door. As she stated it, \u201cWhen he opened the door, I see him as he was going out the door and the light, you know, shone. He went into the hallway.\u201d Her bed was by the open bedroom door so that she had a clear view of the door through which the intruder made his escape. She recognized him, but at that time only knew that his name was \u201cHomer.\u201d She testified that she had seen him in her apartment three times previously and on two occasions at a friend\u2019s home.\nLater on the same day the defendant went to the police station because, as he testified, a friend had told him the police were looking for him. He was questioned and released, but was arrested the following morning. That afternoon Mrs. Hudson picked him out of a lineup at the 21st District Police Station. At the trial Bailey was again identified as the intruder, this time by Mrs. Hudson and her two daughters.\nDefendant argues, first, that Mrs. Hudson\u2019s identification was based on a \u201csplit-second glance at an intruder who was hurriedly departing from a dark apartment into a lighted hallway by a woman who had just been awakened and was still lying in bed.\u201d He rests his case on the argument that she was honestly mistaken. He points out that human sense perception and memory are fallible and asks us to take judicial notice of the fact that identification would be even more impaired where a witness only saw the person for a few seconds immediately after she awoke. Quoting Jeremy Bentham and others, defendant argues that although witnesses are the eyes and ears of justice, those eyes and ears are sometimes defective.\nWe are aware that visual perception is subject to error as are all our senses. That is not to say however that courts can no longer trust evidence which might be tainted by human fallibility. To make such an exclusion would in effect render impotent the administration of criminal law. Mrs. Hudson was only 12 feet from the defendant when she recognized him. She knew him from previous meetings and she was positive that Homer Bailey and the intruder were one and the same person. Her identification was corroborated by her two daughters.\nThe child victim testified that she had had a good look at the intruder when he was sitting next to her on the bed. Defendant objected at the trial that she was incompetent as a witness because of her age. The trial judge examined her and concluded that she was competent and highly intelligent. Her sister likewise identified the defendant.\nDefendant contends that Antoinette Hudson stated that she was unable to identify the intruder. At the trial she testified that she was absolutely sure that Homer Bailey was the man she saw coming through the window and walking around the apartment. Later on cross-examination she testified that at that time she did not know who it was, but it is clear that she merely meant by this that she had not known or seen the intruder before.\nThe two arresting officers testified that the defendant stated to them that he was in the building in which the Hudsons lived on the night of the crime, but that he did not go to the fourth floor where they lived. When he testified at the trial Bailey denied having admitted this, but he was unable to account for his whereabouts on the night in question, other than to say that he presumed he was south of Madison Street.\nThe testimony of the three witnesses who identified the defendant clearly supports the trial court\u2019s finding unless we adopt the view being urged upon us by the Public Defender with respect to the innate weakness of a conviction based on identification. This is presented at length in his brief. While not saying so specifically, he would have us ignore the rule that the credibility of a witness is for the trier of fact to determine and that only in exceptional cases should a reviewing court disturb the jury or the trial court\u2019s decision. The Public Defender quotes at length from Wall, Eye-Witness Identification in Criminal Cases, 90, 119-122 (1965), that identifications are based on familiar associations and that frequently familiarity is based on a past experience unrelated to the crime. Several instances are cited in which persons identified a man as one whom they have known and later it was specifically revealed that he was not the man. Counsel likewise points to the fallibility of sense perception and human memory, setting forth examples of false identification, apparently for the purpose of pointing out that direct identification by a witness who has seen and known the defendant may in itself be a reason for disbelieving him. We recognize the possibility that courts being composed of human beings may commit error.\nSight is one of the great miracles of nature. Through an instrument hardly an inch in diameter we can see on earth where the air is clear, hundreds of miles and a sky many millions of miles away. This is not done by the eye itself, but by communication of the eye with the brain through thousands and perhaps millions of fibers. Nevertheless we know through countless daily experiences that the eye serves us accurately except on rare occasions. The common observation, \u201cIt must be true. I saw it with my own eyes,\u201d reveals the faith we have in occular vision. The conclusion the defendant would have us reach is that such evidence is not trustworthy because certain cases have revealed erroneous identifications. What percentage such cases bear to the whole is unknown and in all probability unknowable.\nWhat then of other types of evidence, such as indirect or circumstantial. It was for a long time argued by both bar and laity that circumstantial evidence was inferior to direct evidence, but it has been subsequently recognized that under certain conditions circumstantial evidence may be more accurate than direct. There have been periods in which the alibi was in ill repute because it was supposed to be easy for a defendant to get a friend or acquaintance who would testify that at a certain time and place he saw the defendant. But, as Professor Wigmore points out, it is impossible to ascribe a greater weight to one class of evidence than to the other, and each class has its special dangers and advantages. Nearly all evidence is produced through human beings and, as such, the weight to be accorded it is a matter of credibility to be determined by the jury. 1 Wigmore, Evidence \u00a7 26 (3rd ed, (1940)).\nNo reason whatever is assigned for any desire on the part of the State\u2019s witnesses to accuse the defendant falsely. The jury saw and heard them, as did the trial court. This is an advantage which a reviewing court cannot derive from the cold record.\nThe Public Defender concludes his argument as follows :\n\u201cAs we see it, there is something shocking and terrifying about taking away five to fifteen years of a citizen\u2019s liberty under a split-second identification such as the one of record at the bar.\u201d\nThis, in a legal argument addressed to a reviewing court, borders on hysteria. We realize the serious import of our decisions within the limited sphere in which our judgment may be exercised. The Public Defender and his assistants are officers of the court and are expected to advise the court of the facts and the law which support their position. It has been considered a professional impropriety for a lawyer to throw onto the scale of justice his own emotional reactions. This is of no aid to the court. We welcome their zeal and earnest argument, but they must keep within the bounds of reason.\nJudgment affirmed.\nSULLIVAN, P. J. and DEMPSEY, J., concur.",
        "type": "majority",
        "author": "MR. JUSTICE SCHWARTZ"
      }
    ],
    "attorneys": [
      "Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.",
      "John J. Stamos, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State\u2019s Attorneys, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "People of the State of Illinois, Plaintiff-Appellee, v. Homer Bailey, Defendant-Appellant.\nGen. No. 51,488.\nFirst District, Third Division.\nDecember 14, 1967.\nRehearing denied January 25, 1968.\nGerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.\nJohn J. Stamos, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard A. Rinella, Assistant State\u2019s Attorneys, of counsel), for appellee."
  },
  "file_name": "0121-01",
  "first_page_order": 127,
  "last_page_order": 132
}