Sam Stella, Nick Matteio and Dan Pontarelli were indicted at the October term, 1929, of the criminal court of Cook county for the robbery, while armed with a gun, on September 13, 1929, of Martin VanHorn of a truck loaded with eggs and poultry. The three defendants were tried by a jury and found guilty. Motions for a new trial and in arrest of judgment were overruled and judgment rendered on the verdict. Matteio and Pontarelli were sentenced to the reformatory at Pontiac and Stella to the penitentiary at Joliet. Stella alone has sued out this writ of error to review the record.
The errors assigned and argued in the brief of plaintiff in error are, that the court admitted incompetent evidence and erred in refusing an instruction offered by defendants.
On behalf of the People, Leonard Stalkent testified that he lived in Zealand, Michigan, and was a produce dealer, buying and selling poultry and eggs, some of which he sold and delivered by truck to his Chicago customers. He sent a truck-load to the N. Zimmerman Company, one of his customers at Chicago, on September 12, 1929, the truck leaving Zealand, Michigan, about 5:30 P. M. The value of the truck was about $3200 and the value of its load was about $2800. It was in charge of and driven by a man named VanHorn, who had previously made many such trips for his employer. VanHorn testified he arrived at the Zimmerman Company's place, at Fulton and Curtis streets, in Chicago, about 3:30 in the morning, September 13, 1929. The building was closed, and he backed up to the curb at the place of unloading, shut off his motor, put the keys in his pocket and went to sleep in the seat on the truck. He was awakened shortly after 3:30 A. M. by two men, one on each side of the truck. They ordered him off of the truck, told him he was being held up, and Stella, plaintiff in error, came around on the right side of the truck and searched him. Stella was armed with a gun when he *Page 591 searched him, and Matteio, who was on the right side of the truck, also had a gun. Stella took VanHorn's pocketbook and truck keys and gave the truck keys to Matteio. The pocketbook contained five dollars which belonged to VanHorn. Matteio started the truck and the other two men directed VanHorn to go to a Chrysler roadster which was parked on the corner, about twenty-five feet away. While going to the Chrysler car Stella struck VanHorn on the head with a pistol. Pontarelli, one of the defendants, was in the driver's seat of the Chrysler roadster. They ordered VanHorn to get in the Chrysler car, which he did, and he sat between Pontarelli and Stella. The Chrysler car was driven about a half a block and stopped alongside a Chevrolet coupe. Stella got out of the Chrysler to talk to someone in the Chevrolet coupe. Then the two cars started up, following the truck. After going a few blocks the Chrysler turned off and left the Chevrolet and the truck, and after driving some distance the Chrysler was stopped in an alley near a two-stall garage. The three men went in the garage, and VanHorn testified Stella and Pontarelli made him get down on the floor and then bound his hands and feet, gagged him and left him there. VanHorn finally released himself, went to a filling station and telephoned for the police, who responded to the call. VanHorn telephoned his employer, Stalkent, early that morning, advising him of the robbery of the latter's truck and produce. The employer arrived in Chicago that afternoon and assisted in the further investigation of the robbery. The truck was found next day in Chicago but the load of produce had been removed. The Chicago police arrested Matteio on September 13, 1929, and Pontarelli and Stella on September 24. On September 25 VanHorn and his employer were present at a "show up" at the detective bureau in Chicago, at which time VanHorn, in the presence of several police officers and his employer, identified and picked Stella from a group of six men as being one of the men who robbed him. The *Page 592 same evening he identified and picked Pontarelli from another group of about ten men, and after midnight of the same night, at the Bridewell Hospital, he identified Matteio as being the third robber. Matteio was then in bed in the hospital on account of bullet wounds in his legs received during his arrest. All of the defendants denied having had anything to do with the robbery and each offered the testimony of a number of witnesses to establish an alibi.
It is claimed that the court admitted improper evidence. After the defendants were arrested by police officers, VanHorn, the victim of the robbery, went to the detective bureau in Chicago and there from a number of men picked out Stella and Pontarelli and identified them as two of the men who robbed him. He also identified the third man, Matteio, who was then confined in the hospital. The court admitted the testimony of one or two police officers and of Stalkent relative to the identification of the men by VanHorn. It is claimed that was hearsay testimony, was offered merely to bolster up the proof of identification, and was incompetent. VanHorn picked two of the defendants and identified them from a number of men. He did it in their hearing and presence, and plaintiff in error said nothing except to take a good look and be sure. We do not think the court erred in the admission of that testimony. (People v. Braverman, 340 Ill. 525; People v. O'Donnell, 315 id. 568.) Plaintiff in error relies on People v. Lukoszus,242 Ill. 101, and People v. Krejewski, 332 id. 120, but in those cases the identification testified to by third parties was not made in the presence or hearing of the defendant.
Complaint is made of the cross-examination of Pontarelli, who is not a party to this writ of error. He testified on direct examination that he never stole anything in his life and had never stolen a pair of pants. This was brought out by his own counsel on direct examination, and the State's attorney was permitted to interrogate him about the truth of his statement that he never stole anything in his life. *Page 593 The court permitted a rather lengthy cross-examination, but stated to the jury four or five times that the testimony was incompetent as to the other defendants and to disregard it. Pontarelli is not here complaining, and as the court limited his examination to his own case and instructed the jury to disregard it as to the other two defendants we do not think Stella could have been injured by it. The jury are supposed to be composed of men of average intelligence, and it is presumed they would not consider evidence against plaintiff in error when specifically instructed not to do so. Crosby v. People,137 Ill. 325.
Complaint is made of the refusal of the court to give defendants' instruction No. 2, which reads as follows:
"The court instructs the jury that the question of fact, together with other questions of fact, is the question of identification, which was relied upon in part by the State and denied by the defendants. If you believe from all the testimony in this case that under the stress and excitement of the acts complained of by the State's witnesses, they are such as would raise in your mind a reasonable doubt as to the truth or exactness of the identification by the State's witnesses, it is your duty to give the defendants the benefit of such doubt and return a verdict of not guilty."
The instruction is rather unskillfully and confusedly drawn and would not have aided the jury in its deliberations had it been given, and is open to the objection that it is argumentative and assumes facts to be determined by the jury.
Plaintiff in error offered proof of several witnesses to the effect that he was at home at the time the robbery was committed. These alibi witnesses were the sisters and brothers of plaintiff in error, and it was a question for the jury to decide as to what weight should be given to that evidence. The jury apparently disregarded it entirely, and we cannot say they were not authorized to do so. The identification made by VanHorn was positive and the plaintiff *Page 594 in error, who heard it, said nothing to the contrary. The proof we think was quite sufficient to establish the guilt of plaintiff in error and no reversible error was committed on the trial.
The judgment will therefore be affirmed.
Judgment affirmed.
Subsequently, upon petition for rehearing, the following additional opinion was filed: