dissenting:
I must respectfully dissent to the conclusions reached by my learned brethren. It is the law that it is the duty of a court to resolve all of the facts and circumstances in evidence on the theory of innocence rather than guilt. People v. Ibom, 25 Ill2d 585, 185 NE2d 690.
The defendant was indicted, together with one Ronald Cox. Both were arraigned and the court appointed counsel for them. Before the trial the State nolle-prossed the indictment against Cox.
Dr. Roseman identified the defendant as one of two men who came into his office on December 19, 1963. He stated that the defendant said “This is a stickup”; that he had his hand in his pocket, and that he turned the doctor around, walking him into the back of-the office. Dr. Roseman said nothing about the activities of the other man after he had entered the office. The doctor called Dale, a porter who was working in the back room.
Dale testified that the defendant “grabbed the doctor, went back with him. I heard ‘stickup’ and this other fellow behind him, and he grabbed him, so I had to stop him because I was scared myself. I had to stop him. I shot that fellow there and I shot at the other one. I tried the other fellow first.” Dale further testified that the reason he shot was because he believed the man behind the defendant had a gun so he shot at him first. He missed the other man but shot the defendant in the temple.
The defendant testified that he lived five blocks from the doctor’s office; that he had lived there for 13 years, and that he had been in the doctor’s office previously to talk with the doctor about getting glasses, which he needed in his tailoring business. He had a tailor shop set up in his home and had been in business for three and a half or four years. He had a Singer sewing machine, a steam presser unit and bolts of varieties of material. He testified that on the date in question he went to the doctor’s office to purchase glasses; that he asked the doctor about them and the doctor told him to go to his office. When the defendant went there someone else came in, saying it was a stickup, and pushed the defendant into the doctor. He said he had known Dale since about 1956. Dale testified that he knew the defendant and that he, the defendant, lived on Trumbull Avenue in an apartment below where Dale’s mother and sister lived.
A police officer testified that he had talked to the defendant at Mt. Sinai Hospital where he was being given first aid. He said the defendant was moaning and seemed to be in great pain, and the witness thought he might have had a mortal wound in his head. At that time the defendant told the officer that he went into the store intending to buy glasses. The officer did not know whether or not the defendant had been given sedation, but stated that he was prevented from talking further with him since they were giving him first aid. Later he saw the defendant at the Cook County Hospital, at which time the defendant still had the bullet in his head and was outside the X-ray room on a stretcher. The officer testified that the defendant then told him he had been walking along the street when an unknown man came up behind him, placed an object in his back and told him to walk ahead of him in the store. The officer stated, in reply to the question as to whether the defendant appeared to be rational: “He did answer my questions. That is, he did answer some of them, and then he put his face down as if he was going to sleep.” The defendant denied that he had made the later statement to the police.
The defendant testified that at the time he was shot he had $28.33 in his pocket and that the money was not accounted for. In the majority opinion, it is suggested that the defendant so testified to show that he was not destitute. Other inferences could be drawn concerning the disappearance of the money. The police officer testified that when he first saw the defendant lying on the floor in the doctor’s office there was a bag beside him containing raw materials for clothing, which he was informed belonged to the defendant.
There was testimony in the record that Dale was worried about the possibility of his being arrested, and had asked the doctor about it — a not altogether frivolous thought.
It is true that the doctor testified that he had never seen the defendant before, while the defendant stated that on a previous occasion he had gone into the store and talked with the doctor about glasses. From the evidence it could be inferred that on May 19 the defendant entered the store looking for glasses. In the majority opinion, some stress is laid on the fact that at the time the defendant was shot he was not wearing glasses nor did he have glasses in his possession. How this is important is not clear. There was no evidence on the part of the defendant that he had ever worn glasses, but he said that because of the fine work involved in using the sewing machine in his tailoring business he found that he needed glasses.
The story that the defendant was pushed into the doctor by the third man is not definitely in conflict with that of Dale who, while called as defendant’s witness, was not particularly friendly. The defendant’s alleged statement to the police officer at the County Hospital that the third man had forced him into the office was in accord with the other testimony except as to the place where he contacted the other man. The doctor’s conclusion that the two men spoke to each other and so evidently knew each other appears in the abstract, but in the record a motion was made to strike and the conclusion should properly have been stricken.
It is, of course, true that the defendant had a record, but nothing in the record involved robbery or any crime of violence. It seems very unreasonable that a man — even though an ex-convict who was apparently attempting to rehabilitate himself, and who had established for himself a little tailoring business— would attempt to commit a robbery five blocks from the place where he lived and where the porter’s mother and sister lived. It is equally improbable that a man would go out to commit a robbery carrying with him a bag containing material for clothing. It might also be interesting to speculate as to what happened to this hag during the time the attempted robbery was taking place. The testimony of the doctor that the defendant had one hand on the doctor’s shoulder and the other in his pocket does not explain the whereabouts of the bag which was admittedly carried by the defendant. Apparently, the defendant clung to it until he was shot down.
It is also within the scope of human experience that the testimony of Dale might have been colored by the fact that he was not sure as to his liability for the shooting. The doctor also might have seen the shadow of a civil suit. In People v. Coulson, 13 Ill2d 290, 149 NE2d 96, the court held that a conviction can be sustained only on the strength of the People’s case and not on the weakness of the defendant’s case. In People v. Dawson, 22 Ill2d 260, 174 NE2d 817, the court said:
The burden is always upon the State to prove the defendant guilty beyond a reasonable doubt and a judgment of conviction can be sustained only on credible evidence which removes all reasonable doubt of defendant’s guilt. Where the State’s evidence is improbable, unconvincing and contrary to human experience, we have not hesitated to reverse the judgments of conviction.
It is the rule that a trial judge’s finding on the credibility of witnesses is entitled to great weight, but it is not conclusive and a conviction will be reversed where the evidence is so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. People v. Pellegrino, 30 Ill2d 331, 196 NE2d 670; People v. Anderson, 30 Ill2d 413, 197 NE2d 24. In People v. Urban, 403 Ill 420, 86 NE2d 219, the court said that in criminal cases it is the duty of a reviewing court to carefully review the evidence, and if there is not sufficient to remove all reasonable doubt of the defendant’s gnilt and create an abiding conviction that be is guilty, tbe conviction will be reversed.
Tbe evidence in tbe case before ns does not create an abiding conviction of tbe gnilt of tbe defendant beyond a reasonable donbt in tbe writer of tbis dissent. Tbe judgment of tbe trial court should be reversed.