{ "id": 2537536, "name": "People of the State of Illinois, Plaintiff-Appellee, v. Clayton R. Dial, Defendant-Appellant", "name_abbreviation": "People v. Dial", "decision_date": "1968-05-13", "docket_number": "Gen. No. 50,475", "first_page": "345", "last_page": "362", "citations": [ { "type": "official", "cite": "95 Ill. App. 2d 345" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "212 NE2d 126", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "65 Ill App2d 23", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5292686 ], "year": 1965, "pin_cites": [ { "page": "34" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/65/0023-01" ] }, { "cite": "200 NE2d 3", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "49 Ill App2d 308", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5273408 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ill-app-2d/49/0308-01" ] }, { "cite": "136 NE2d 817", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "9 Ill2d 92", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5320071 ], "year": 1956, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/9/0092-01" ] }, { "cite": "161 NE 76", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1928, "opinion_index": 0 }, { "cite": "329 Ill 536", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5202232 ], "year": 1928, "opinion_index": 0, "case_paths": [ "/ill/329/0536-01" ] }, { "cite": "170 NE2d 529", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "20 Ill2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2738166 ], "year": 1960, "pin_cites": [ { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0437-01" ] }, { "cite": "146 NE2d 32", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "12 Ill2d 360", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2780750 ], "year": 1957, "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/12/0360-01" ] }, { "cite": "230 NE2d 214", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "38 Ill2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2860896 ], "year": 1967, "pin_cites": [ { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0150-01" ] }, { "cite": "190 NE2d 738", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "28 Ill2d 116", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5363269 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-2d/28/0116-01" ] }, { "cite": "233 NE2d 51", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "89 Ill App2d 69", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2544815 ], "year": 1967, "pin_cites": [ { "page": "82" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/89/0069-01" ] }, { "cite": "211 NE2d 374", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "33 Ill2d 363", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2883509 ], "year": 1965, "pin_cites": [ { "page": "370, 371" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0363-01" ] }, { "cite": "195 NE 443", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1935, "opinion_index": 0 }, { "cite": "360 Ill 55", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2599998 ], "year": 1935, "pin_cites": [ { "page": "64" } ], "opinion_index": 0, "case_paths": [ "/ill/360/0055-01" ] }, { "cite": "234 NE2d 332", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "90 Ill App2d 121", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2899808 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-app-2d/90/0121-01" ] }, { "cite": "194 NE2d 227", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "29 Ill2d 283", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2824574 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-2d/29/0283-01" ] }, { "cite": "161 NE2d 300", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1959, "opinion_index": 0 }, { "cite": "17 Ill2d 160", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5334974 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/ill-2d/17/0160-01" ] }, { "cite": "221 NE2d 232", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "35 Ill2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5379196 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-2d/35/0564-01" ] }, { "cite": "196 NE 729", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1935, "opinion_index": 0 }, { "cite": "361 Ill 23", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2596023 ], "year": 1935, "opinion_index": 0, "case_paths": [ "/ill/361/0023-01" ] }, { "cite": "193 NE 609", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1934, "opinion_index": 0 }, { "cite": "358 Ill 642", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5279808 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/ill/358/0642-01" ] } ], "analysis": { "cardinality": 1169, "char_count": 27230, "ocr_confidence": 0.674, "pagerank": { "raw": 2.364360208703385e-07, "percentile": 0.7946847480297113 }, "sha256": "170cf2064600c376eaea3dbbd4deaed4ebc4861eecb7d4e7d2d248bbcadc77ac", "simhash": "1:abb6bc70d3b6e9e8", "word_count": 4622 }, "last_updated": "2023-07-14T16:15:57.800656+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "People of the State of Illinois, Plaintiff-Appellee, v. Clayton R. Dial, Defendant-Appellant." ], "opinions": [ { "text": "MR. JUSTICE MURPHY\ndelivered the opinion of the court.\nIn a jury trial in which three indictments were consolidated and heard as one cause, defendant, Clayton R. Dial, was found guilty of robbery \u201cwhile armed with a dangerous weapon.\u201d He received three concurrent sentences of 10 to 15 years. On appeal defendant contends (1) that he was not proved guilty beyond a reasonable doubt, and (2) prejudicial trial errors occurred, which deprived defendant of a fair trial.\nOn June 20, 1963, at about noon, a man armed with a sawed-off shotgun entered the premises of the West-Lin Distributing Company, 3630 North Elston Avenue, Chicago. At gunpoint, he robbed two men, Raymond Fulton and Anthony Chrisos. He ordered the men into a washroom, where the three waited for the arrival of Brink\u2019s guards, who were to pick up the West-Lin receipts of the day before. After waiting about fifteen minutes, the man herded Chrisos and Fulton into an office, where he disarmed two Brink\u2019s guards. He ordered Hilda Meyer, secretary for West-Lin, to put the receipts in a bag and hand it to him. The four men and Miss Meyer were ordered into a washroom and, after five minutes, they came out and the man was gone.\nAbout three months later, because of an anonymous telephone call, the police started an investigation, which resulted in defendant\u2019s arrest and indictment for the three West-Lin robberies of June 20,1963.\nAt the trial, the witnesses for the State were Raymond Fulton, Anthony Chrisos, Ralph Joch, Hilda Meyer and Walter Murphy, a police officer.\nRaymond Fulton, an auditor in the Illinois Department of Revenue, was at West-Lin on June 20, 1963. He testified that defendant resembled the man who had held him prisoner and committed the robbery. On a previous occasion in another courtroom, he saw defendant, who \u201cstarted yelling about he was being framed, and the voice sounded just like the man that was in the washroom with me.\u201d\nOn cross-examination, Fulton said he was in the washroom with the robber for about twenty-six or twenty-seven minutes. The man had a pencil mustache and wore a straw hat and wraparound sunglasses. He gave a description to the police that the robber \u201cwas something around 6 feet tall, weighed between 175 to 190 pounds, he was a light-complected Negro, that he had a little mustache and a straight nose. ... I saw all the features of the man that weren\u2019t covered up.\u201d\nAnthony Chrisos, a truck driver for West-Lin, who happened to be in the plant on June 20, testified in detail as to the robbery. He said, \u201cI was able to see his face during the entire time I was in the washroom. I gave a description to the police.\u201d He stated defendant was the same man he saw on June 20, 1963, \u201cexcept for the mustache is off.\u201d\nChrisos further testified that in October 1963 he appeared at the Shakespeare Avenue Police Station. Also present were Roy Johnson and Ralph Joch, the two Brink\u2019s guards, and police officers. \u201cThere were four colored fellows lined up side by side and we were asked if there was anybody in there that we recognized, and I said I did. I recognized the defendant. I\u2019d say I was about three or four feet away from him. . . . They just asked us first if we saw anybody in the lineup we knew and we all said yes. Then we were asked to go up and put our hand on his shoulder, and all three of us walked up at the same time and put our hand on his shoulder. I gave a description to the police in the month of June. They made a drawing from my description.\u201d Chrisos looked at photographs shown to him by police officers but made no photograph identification.\nOn cross-examination, Chrisos was questioned at length about the description of the robber given to the police. On June 20 he was with the assailant for a total of about twenty minutes, and he had a good look at his face. He was clean-cut and had a pencil-striped mustache.\nAs to the lineup, Chrisos said the other three men in the lineup were shorter than Dial and two were real dark. He was positive that the man he saw in the lineup was \u201cRichard Dial.\u201d He heard no remarks from the police officers to the men in the lineup other than to turn around and to look from side to side. On redirect, Chrisos again identified defendant as the man who robbed him on June 20,1963.\nRalph Joch, a guard for Brink\u2019s, Inc., testified in detail as to the robbery. He was able to get a good look at the man and observed his whole body. He viewed photographs four or five times, and on September 27 picked out a picture of the defendant. On October 2, 1963, he went to the Shakespeare Avenue Police Station and identified the defendant in a lineup of four persons\u2014 \u201cI was two or three feet away from the person who I identified. I identified the defendant. He was also identified by Mr. Chrisos and Mr. Johnson. The police asked us if we recognized anybody in the lineup, and we all agreed yes. After the lineup was over they said, \u2018Which one?\u2019 We all pointed to the same gentleman in front of us. Mr. Johnson is now deceased.\u201d The first time he heard the name of \u201cRichard Dial\u201d was at the lineup on October 2, and later he said that he first heard the name on September 27 when the warrant was issued. The name was given to him by the police officers.\nJoch was subjected to a lengthy cross-examination and persisted in his identification of defendant as the robber on June 20.\nMiss Hilda Meyer, secretary for West-Lin Distributing Company, testified as to the details of that part of the occurrence which took place in her presence but made no identification.\nWalter Murphy, the investigating police officer, testified that on September 25, 1963, by way of an anonymous telephone call, the police received information that \u201cthe man who had committed the robbery at the West-Lin Distributors was known as Richie, supposedly a male negro about 6 feet tall, about 25 years old, light-complected and living in a building at 264 North Sacramento. The informer said he had a red and white Chevrolet and had gone to Crane Junior College at night.\u201d On that day they went to 264 North Sacramento and, finding no one who knew \u201cRichie,\u201d they went to Crane Junior College and, on checking the records, found a \u201cClayton Richard Dial\u201d who had attended night sessions and lived at 264 North Sacramento.\nOn the morning of September 27, the police officer and his partner went to defendant\u2019s home, and his father told them that defendant was not at home \u2014 \u201cThen we saw the defendant, he came to the door and at that time we recognized him from a drawing that was made by these witnesses to the robbery. He perfectly matched that drawing, even had the same mustache he had on when he held up the place. ... It is the defendant right here. . . . We asked him if he was Clayton Dial. He denied it and his father denied it. They said he was Clayton Dial\u2019s uncle.\u201d At that time the officers were informed that \u201cif we ever wanted to talk to Clayton Dial we would have to get a warrant.\u201d The officer further testified that they obtained a photograph of Clayton Dial from the John Marshall High School. They put this photograph with 10 or 15 other photographs and showed them to Brink\u2019s truck driver, Roy Johnson, who \u201clooked through the group of photographs and when he came to the picture you have in your hand there, he said, \u2018That is him.\u2019 \u201d At this point the court overruled defendant\u2019s objection to the entire narration and motion that \u201cit be stricken and declared for naught.\u201d\nThe officer further testified that the group of photographs was shown to \u201cRalph Joch, the other Brink\u2019s man,\u201d and when he came to the picture of Dial he stopped and said, \u201cThat is him.\u201d Joch then accompanied them to court and obtained a warrant charging \u201cClayton Dial\u201d with armed robbery. The warrant was secured on September 27, and on October 2 defendant surrendered.\nOfficer Murphy was present at the showup on October 2. The defendant and three other male Negroes were in the lineup, and they were viewed by Johnson, Joch and Chrisos. After the lineup was over, they were asked if they recognized anybody who was in the lineup, and they all stated they did. All three men then approached the defendant and pointed him out and stated he was the one who held them up on the 20th of June.\nOn cross-examination, the officer stated the first time he heard the name of \u201cClayton Richard Dial\u201d was on the afternoon of September 25, and he got the name from the Crane Junior College because of the \u201canonymous telephone call.\u201d He obtained People\u2019s Exhibit 1 (the high school photograph), on which appeared \u201cSchool Days, 56-57,\u201d from the office of the John Marshall High School. It was the only photograph of defendant that was in the group of photographs shown to Johnson and Joch, and this was \u201csix years after the picture was taken.\u201d\nDefendant testified and denied his involvement in the robbery. He said that on June 20, 1963, he was not working due to a strike. The strike ended about the 4th of July, and he went back to work for Bob Heller, a truck driver for Pepsi-Cola. Defendant was 24 years old, and he was 16 years old when the high school picture was taken. On June 20 he was at home asleep until noon, when he was awakened to eat lunch. Defendant\u2019s Exhibit 5 was a clothing receipt he received on June 20, when he purchased a bathing suit and sunglasses. During the month of June, he had a 1956 red and white \u201cChewy.\u201d During the months of July and August, he was earning from $75 to $85 a week take-home pay. Defendant\u2019s Exhibit 6 was a loan certificate showing he borrowed $525 on July 15, 1963. He repaid the loan on September 19, 1963. He related that on September 26, the police officers came to his home looking for a \u201chit and run\u201d driver, and he told them his name was \u201cBobby Jones.\u201d He refused to go with them because they did not have a warrant, and they told him they would give him a rough time. He turned himself in on October 2. He testified that he was 5-feet-10, and Exhibit 7 was an I. D. card given to him at the County Jail where he was photographed and measured on October 3, 1963. The card shows \u201cHt. 5-10, Wt. 176, Birth Date 5-13-40.\u201d\nDefendant further stated that a police officer informed him that \u201cit was a known stool or police informer that gave him information on me. And he stated that his name was Henderson and he lived on Douglas Boulevard in the 3500 block, and that\u2019s who he said fingered me. ... I was arrested for armed robbery in Oak Lawn in 1961. I plead guilty; I was guilty. They put me on five years\u2019 probation.\u201d\nOther witnesses for the defense included:\n(1) Vanancia Hall, a clerk at 2959 West Fulton. She had known defendant for about five years, and during the month of June he came into the store every day about noon, and they would talk about the Pepsi-Cola strike. On June 20, 1963, she remembers talking to defendant in the store about noon.\n(2) Lucille Davis lived at 264 North Sacramento and would babysit for \u201cRichard\u2019s mother\u2019s grandchild.\u201d She saw him every day in June because of the strike. Generally she would awaken him and fix lunch for him. On June 20, he went shopping and told her he had his lunch. He didn\u2019t leave until around 12 o\u2019clock, and it was 3:00 when he returned. He had a package with him, and his little niece pulled the things out of the bag, including tickets. She saw one of the tickets was dated June 20.\n(3) Andrew Struke, a police officer, testified that on June 20 he talked to all the victims and got a description, which he entered in his report as follows: \u201cMale negro, 30 to 35, 6-2; 180 to 185, light complexion, pencil mustache, wearing a yellow straw hat with loud band, wraparound sunglasses, tannish gray zipper jacket, black shoes, carrying a single barrel colt action shotgun, stock and barrel appear to be reasonably cut.\u201d\n(4) Robert Heller, a driver for Pepsi-Cola Company, testified that defendant worked for him from September 1962 until September 1963. \u201cDuring the time that he worked for me he was off only during the strike. The strike started on June 6 and lasted until July 6th. . . . [H]e did lots of heavy work. ... He worked continuously through those two months of July and August.\u201d\n(5) Clayton Dial, Sr., testified that on June 20, 1963, he left the home between 10:30 and 11:00, and defendant was at home at that time.\nConsidered first is defendant\u2019s contention that \u201cthe evidence is insufficient to support a conviction beyond all reasonable doubt.\u201d Defendant contends, \u201cThe States\u2019 entire case is based upon what is known as \u2018eyewitness identification.\u2019 There exists no other evidence connecting the defendant to the crime. Hence, the reviewing court must carefully scrutinize the \u2018eyewitness\u2019 evidence to determine whether it is sufficient to support a conviction beyond all reasonable doubt.\u201d\nDefendant\u2019s brief shows exhaustive research on all facets of criminal identification. It is unusually well written and amply supported by authorities.\nUnder the heading of \u201cAnatomy of an Identification,\u201d defendant discusses at length \u201cThe Human Fallibilities of Sense Perception and Human Memory.\u201d The subheadings include: 1. \u201cDid the Identifier See the Assailant for a Sufficient Period of Time and Under Sufficient Lighting Conditions?\u201d 2. \u201cWas the Face of the Assailant Covered, Completely or Partially, Depriving the Identifier of an Opportunity to Adequately Observe the Assailant\u2019s Face?\u201d 3. \u201cDiscrepancy Between the Description Given of the Assailant Soon After the Occurrence and the Physical Characteristics of the Defendant.\u201d 4. \u201cDid an Extensive Period of Time Pass Between the Time the Identifier Saw the Assailant and the Time He Identified the Defendant as the Assailant?\u201d Defendant also discusses at length \u201cThe Validity of Identification is Destroyed by Suggestion.\u201d\nDefendant\u2019s authorities include People v. Peck, 358 Ill 642, 193 NE 609 (1934), where the court said (p 649):\n\u201cIn weighing the evidence of identification of one stranger by another, the attendant circumstances, together with the probability or improbability of affording an opportunity for a definite identification, must be considered and weighed, for, after all, the identification of one person by another who has never seen him before is an opinion or conclusion of the identifying witness.\u201d\nIn People v. Gold, 361 Ill 23, 196 NE 729 (1935), it is said (p 31):\n\u201cIt is apparent that, no matter how honest Levitus and Lipsitz were in their effort to identify defendant as the thief, the circumstances offered great opportunity for mistake.\u201d\nIn People v. Gardner, 35 Ill2d 564, 221 NE2d 232 (1966), it is said (p 572):\n\u201c \u2018Of all the factors that account for the conviction of the innocent, the fallibility of eye-witness identification ranks at the top, far above any of the others.\u2019 (Inbau, Book Review, 57 J Crim L, C & PS, 376.)\u201d\nOther cited authorities include:\n\u201cAn honest mistake of identification . . . can hang an innocent man despite the most meticulous and fair-minded trial of his case.\u201d Cahn, The Moral Decision (1955), pp 258-259.\n\u201cProof that relies wholly on the identification made by eyewitnesses is inherently weak; persons who merely saw a thief or attacker briefly and under conditions of stress, may, despite the best of intentions, too readily be mistaken.\u201d Kuh, Careers in Prosecution Officers, 14 Jur Leg Ed 175, 187, n 21 (1961).\nDefendant also quotes at length from other authorities including Wall, Eye-Witness Identification in Criminal Cases (1965).\nDefendant argues that Fulton spent more time with the assailant than any other eyewitness, and \u201cat trial, he could only say that the defendant resembled the assailant. His testimony conclusively demonstrates that the identifications of both Joch and Chrisos were the results of a suggestive identification procedure and a positive identification from a photograph when such positive identification was in fact impossible.\u201d\nOn the issue of identification, the State contends that each of the witnesses had an ample opportunity to observe the robber, and the \u201cin-court identifications\u201d were based upon the personal observations of the witness while the armed robbery was in progress, and the \u201clineup identification\u201d evidence was intended only for corroboration and as additional weight. The State also notes that the cross-examination of each of the identifying witnesses did not change their testimony. The authorities for the State include People v. Tunstall, 17 Ill2d 160, 161 NE2d 300 (1959), where it is said (p 163):\n\u201cThe method or manner of identification is, rather, a matter which goes to the weight rather than the admissibility or competency of identification evidence. . . . Ordinarily the question of whether an accused has been identified as the perpetrator of a crime is a question of fact for the jury and, upon review, we will not reverse a conviction on the question of the sufficiency of the identification unless it is contrary to the weight of the evidence, or is so unsatisfactory as to justify a reasonable doubt of defendant\u2019s guilt.\u201d\nAlso, People v. Donald, 29 Ill2d 283, 194 NE2d 227 (1963), where it is said (p 286):\n\u201cIn weighing evidence of identification, the attendant circumstances, along with the probability or improbability of an adequate opportunity for a definite identification must be considered. . . . However, the positive identification by one witness who had ample opportunity for observation may be sufficient to support a conviction, even though such testimony is contradicted by the accused.\u201d\nWe have considered at length defendant\u2019s contention that the \u201ceyewitness identification\u201d in the instant case was insufficient to support a conviction beyond all reasonable doubt. We are aware that evidence of \u201clineup identification\u201d and \u201cpretrial confrontations\u201d is currently being subjected to critical scrutiny to determine if substantial prejudice to a defendant\u2019s rights has occurred. While the lineup procedure followed here, as examined in the light of current pronouncements, could be found wanting, we find no substantial prejudice to defendant. Both Joch and Chrisos were positive of their \u201cin-court\u201d identification of defendant. Their identification testimony was clear and convincing and unshaken on lengthy cross-examination. Although Fulton testified defendant \u201cresembled\u201d the robber, he did say that the voice of the defendant sounded like the man that was in the washroom.\nWe are not persuaded that the application of the basic identification principles dwelt on by defendant requires a reversal of the defendant\u2019s conviction. A statement recently made in People v. Bailey, 90 Ill App2d 121, 234 NE2d 332 (1968), applies here. There, Justice Schwartz said (p 123):\n\u201c. . . 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.\u201d\nWe find the identification evidence was sufficient to support defendant\u2019s conviction beyond all reasonable doubt.\nDefendant next contends that hearsay of a highly prejudicial nature was admitted in evidence, primarily (1) the testimony as to the identification of defendant by Johnson, the deceased Brink\u2019s guard, and (2) the testimony of Officer Murphy.\nWe agree that it was error to allow the State to present testimony of what Johnson, deceased at time of trial, said and did at the lineup and when shown photographs. This evidence was offered for the sole purpose to prove that Johnson, before the trial, had identified defendant as the robber. Such evidence was hearsay, and \"the error was further amplified by the assistant State\u2019s attorney referring to this evidence in his argument to the jury.\u201d People v. Reeves, 360 Ill 55, 64, 195 NE 443 (1935). See, also, People v. Cook, 33 Ill2d 363, 370, 371, 211 NE2d 374 (1965); People v. Ford, 89 Ill App2d 69, 82, 233 NE2d 51 (1967); and McCormick on Evidence, \u00a7 229, p 470. We find no prejudicial error here. This evidence was cumulative, and it supplied nothing substantial that was not in the record.\nAs to the testimony of Officer Murphy, defendant contends that prejudicial hearsay was included in his direct examination in that \u201cthe jury was presented with the testimony of an unknown party that the defendant was the assailant\u201d; also, that Officer Murphy was allowed to testify that in his opinion defendant was the assailant when he said, \u201cThen we saw the defendant, he came to the door and at that time we recognized him from a drawing that was made by three witnesses to the robbery. He perfectly matched that drawing, even had the same mustache he had on when he held up the place.\u201d\nThe State argues that the informer\u2019s statement was not hearsay as it was not offered to prove the truth of the matter asserted therein. Cited in support is People v. Carpenter, 28 Ill2d 116, 190 NE2d 738 (1963), where the court said (p 121) :\n\u201cHearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.\u201d\nThe State contends that the information received from the informer was related by Officer Murphy only for the purpose of explaining how his investigation of the robbery led to the defendant, Clayton Dial, and was not offered as proof of guilt.\nThe testimony of Officer Murphy as to the description given by the unknown informer of the \u201cman who had committed the robbery,\u201d was hearsay and improper when given at the trial on the issue of defendant\u2019s guilt or innocence. (People v. Williams, 38 Ill2d 150, 152, 230 NE2d 214 (1967).) It was an accusation of defendant by an unknown accuser, without the right of cross-examination, and was inadmissible as evidence against defendant. People v. Smuk, 12 Ill2d 360, 365, 146 NE2d 32 (1957).\nThe further statement that \u201che perfectly matched that drawing, even had the same mustache he had on when he held up the place\u201d was an improper opinion on issues to be determined by the jury, i. e., whether defendant \u201cmatched the drawing\u201d and if \u201che held up the place.\u201d The defendant was entitled to have his guilt or innocence determined by the jury, free from the opinions of his guilt made by the unknown informer and Officer Murphy. People v. Morgan, 20 Ill2d 437, 442, 170 NE2d 529 (1960).\nThe State asserts that defense counsel failed to properly object to the improper testimony of Officer Murphy and waived the right to claim error, and in the absence of objections, only those errors which are prejudicial to the rights of the complaining party are reversible. People v. Storer, 329 Ill 536, 161 NE 76 (1928).\nOn the question of objections made during Officer Murphy\u2019s testimony, the record shows that after his testimony about (1) the informer, (2) the police visit to defendant\u2019s home, and (3) the conversation with his former employer, defense counsel said, \u201cI object to this narration, your Honor. I fail to see what materiality it has to bear upon the charge against the defendant. What is the connection?\u201d As to the testimony that defendant matched the drawing and had the same mustache, no objection was made to this statement. Later, and after making a courtroom identification of defendant as the naan he talked to at defendant\u2019s home \u201cbecause he matched the description of the drawing,\u201d the officer added, \u201cToday he is not wearing the mustache he was wearing on that day.\u201d At that time defense counsel said, \u201cI object to that; if the court please, about a mustache.\u201d\nOn the subject of timely objections to the admission of evidence, in People v. Trefonas, 9 Ill2d 92, 98, 136 NE2d 817 (1956), it is said:\n\u201cAn objection to the admission of evidence, to be available, must be made in apt time, or it will be regarded as waived. The general rule is that the admission of incompetent evidence must be objected to, if at all, at the time of its admission. Objections to evidence should designate the particular testimony considered objectionable and point out the objectionable features complained of. Failure to make proper and timely objection to the admission of evidence claimed to be incompetent or otherwise objectionable or to move to strike it out after its admission, giving specific reason for the objection or motion to strike out such evidence generally constitutes a waiver of the right to object and cures the error, if any. ... A party cannot sit by and permit evidence to be introduced without objection and upon appeal urge an objection which might have been obviated if made at the trial.\u201d\nAnd, in People v. Hester, 49 Ill App2d 308, 200 NE2d 3 (1964), it is said (p 311):\n\u201cFurthermore, a trial court is not obligated to exclude improper evidence where a defendant makes no objection, nor moves to exclude it.\u201d\nAlthough some of the volunteered remarks of Officer Murphy were improper, either as hearsay or as his opinion bearing on the ultimate issue, reversible error is not demonstrated here. The disputed testimony of Officer Murphy was not solicited by the State, and it must have been obvious to the jury, as contended by the State, \u201cthat the police officer was merely reciting the circumstances of his investigation and embellishing it in his own language. They were well aware that Murphy was not an objective party tendering his expert opinion.\u201d\nFinally, we find no merit in defendant\u2019s contention that \u201cthe cause should be reversed in order for the trial court to examine the police file to determine the existence of any statement of Chrisos to the police.\u201d The record confirms the State\u2019s contention and the trial court\u2019s findings that the State had given defendant \u201ceverything they have.\u201d\nWe have examined this record to determine whether the cumulative admission of improper evidence was so erroneous and prejudicial as to prevent defendant from receiving a fair trial. Plain errors or defects affecting substantial rights may be noticed, although they were not brought to the attention of the trial court. (People v. Wright, 65 Ill App2d 23, 34, 212 NE2d 126 (1965).) A review of the totality of the evidence shows that defendant was permitted liberal direct examination and cross-examination in all vital areas. Defendant did not make timely and proper objections to have the improper evidence excluded from the record or to have the jury instructed to disregard it. There was substantial positive identification evidence to support defendant\u2019s conviction beyond a reasonable doubt. We conclude the improper evidence heretofore discussed could not have affected the verdict.\nFor the reasons given, the judgment of the trial court is affirmed.\nAffirmed.\nBURMAN, P. J. and ADESKO, J., concur.", "type": "majority", "author": "MR. JUSTICE MURPHY" } ], "attorneys": [ "Gerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn, Carolyn Jaffe, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.", "John J. Stamos, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane, David B. Selig, and Robert B. Rosen, Assistant State\u2019s Attorneys, of counsel), for appellee." ], "corrections": "", "head_matter": "People of the State of Illinois, Plaintiff-Appellee, v. Clayton R. Dial, Defendant-Appellant.\nGen. No. 50,475.\nFirst District, First Division.\nMay 13, 1968.\nGerald W. Getty, Public Defender of Cook County, of Chicago (Frederick F. Cohn, Carolyn Jaffe, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.\nJohn J. Stamos, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane, David B. Selig, and Robert B. Rosen, Assistant State\u2019s Attorneys, of counsel), for appellee." }, "file_name": "0345-01", "first_page_order": 351, "last_page_order": 368 }