dissenting:
I would affirm for the following reasons:
I.
The majority opinion presents the troublesome situation which always develops when an appellate court reviews the evidence, the credibility of witnesses, the weight of evidence, and then sets aside a jury verdict of guilty.
The trial of this case involved two defendants, each represented by privately retained, experienced and competent counsel. It lasted 9 court days. It is reported in just over 1,000 pages of trial proceedings. The State called 7 witnesses in its case-in-chief, defendant Newson called 11 and defendant Hister 5; the State in rebuttal called 6 witnesses; in surrebuttal the State called 1 witness and defendant Newson 3.
Thus, 33 witnesses appeared before the jury and trial judge. The jury and trial judge had a full opportunity to see and hear each witness, the length of time and manner in answering questions, the demeanor, and the apparent interest, bias or prejudice each witness may have displayed. In this case there is no dispute that there was conflicting, contradictory testimony. When such a condition arises, the trier of fact is charged with the awesome responsibility of evaluating the credibility of witnesses and the weight to be given to their testimony.
In People v. Glover (1971), 49 Ill.2d 78, 84, 273 N.E.2d 367, our supreme court said:
“It is axiomatic that it is the function of the trier of the facts to determine the credibility of the witnesses, and its finding of guilty will be disturbed only when the evidence is so unsatisfactory as to leave a reasonable doubt as to defendant’s guilt.”
See also People v. Hubbard (1973), 55 Ill.2d 142, 147, 302 N.E.2d 609.
The majority opinion in concluding that defendant’s guilt was not established beyond a reasonable doubt did so after a thorough, painstaking reading of the cold record. However, in my opinion the majority has in effect reweighed the evidence without the benefit of seeing the 33 witnesses. My experience in the trial courts has taught me that one of the most significant ingredients so necessary in determining credibility is the actual appearance and the opportunity for a visual evaluation of each witness sitting in the witness chair, responding to questions from the prosecutor and defense attorney.
It is also to be noted that the experienced, able trial judge who patiently permitted each party to present all their relevant and material testimony had the same opportunity as did the jury to observe the witnesses. After the jury verdicts of guilty of murder as to each defendant; and after extensive written post-trial motions and arguments, the trial court denied each defendant’s motion for a new trial, for judgment notwithstanding the verdict and in arrest of judgment.
This court in reviewing the judgment of guilty on the jury verdict, as I understand the law, is not to resolve the question of reasonable doubt as does the original trier of fact. What I, as the trier of fact or trial judge in a jury case, might have done under this set of facts is highly speculative, because I cannot now properly evaluate the full import of each witness’s testimony without the opportunity of having seen the 33 witnesses. Therefore, I must be guided only by the principles applicable to appellate review.
In People v. Rawls (1945), 389 Ill. 110, 113, 58 N.E.2d 895, our supreme court stated:
“All of these facts, and many more of a minor nature, were presented to the jury at the trial. This court has repeatedly held that it is the special province of the jury, which sees and hears the witnesses, to decide, in cases of contradictory testimony, who shall be believed, and the court will not interfere With the jury’s decision unless satisfied that the evidence is clearly insufficient to remove all reasonable doubt of the defendant’s guilt. (People v. Barnwell, 296 Ill. 67.) In People v. Maciejewski, 294 Ill. 390, where the testimony of a witness was not positive as to identification, it was held competent and admissible, its weight being a question for the jury in connection with the other circumstances in the case. The law has committed to the jury the determination of the credibility of the witnesses and the weight to be accorded to their testimony. Where the evidence is merely conflicting, this court will not substitute its judgment for that of the jury, and this rule applies to contradictory evidence on alibi. People v. Stephens, 297 Ill. 91.”
See also People v. Kelly (1941), 378 Ill. 273, 275, 38 N.E.2d 9; People v. Williams (1968), 40 Ill.2d 522, 526, 240 N.E.2d 645, 648; 15 I.L.P. Criminal Law, sec. 911.
It is also important to consider the statement of our supreme court in People v. Anderson (1964), 30 Ill.2d 413, 415, 197 N.E.2d 24:
“The prosecution correctly states the rule that the determination of the credibility of witnesses and the weight to be given their testimony is committed to the jury and we will not substitute our judgment for that of the jury merely because the evidence is conflicting. It is basic, however, that if, after due consideration, we are of the opinion that defendant’s guilt has not been established beyond a reasonable doubt, it is our duty to reverse.”
As the majority opinion notes, the appeal of codefendant Newson was considered by the first division of this court. It is reported in People v. Newson (1971), 133 Ill.App.2d 511, 273 N.E.2d 478. My reading of that opinion leads me to the conclusion that the first division of this court only held that the State’s evidence did not prove that Newson was a party to the killing of the deceased (see 133 Ill.App.2d 516, 518). Defendant Hister in his oral argument before this court urged that the conviction of Hister must be reversed by virtue of the Newson opinion on the theory that the doctrine of collateral estoppel applied.
The doctrine of collateral estoppel operates to preclude relitigation by the same parties, or their privies, of any issue directly adjudicated or necessarily involved in a judgment or decree rendered on the merits. (See Palma v. Powers (N.D. Ill. 1969), 295 F. Supp. 924, 933.) Hister was not a party to the Newson appeal. In fact at the trial Hister testified he did not know Newson. In my opinion the doctrine of collateral estoppel cannot be invoked by Hister in consideration of his appeal.
Counsel for Hister cited no authority, nor has my research discovered any authority, to suggest that the reversal of the Newson conviction and this court’s opinion therein, acts as a bar to this division of this court to independently evaluate the evidence as applicable to Hister. Of course I do not suggest that the majority opinion in fact invoked and applied the doctrine of collateral estoppel.
It is also significant to note that Newson s conviction was based solely upon circumstantial evidence while as to defendant Hister s there was evidence before the jury by Jesse Parnell who identified defendant Hister as the person who had fired the shot at the deceased. Considering this distinction and the fact that in the Newson appeal this court confined itself to a review of the testimony as it related only to Newson, in my opinion we are not bound by the first divisions opinion.
I agree with the majority that the Newson opinion should receive thoughtful, respectful consideration. Nevertheless, I understand it is my duty to make an independent evaluation of the Hister appeal solely on the basis of the record in this case as applicable to Hister.1
II.
The record indicates conflicting and contradictory testimony — between State witnesses, between witnesses of the State and Hister, and between Hister’s witnesses.
Hister contends that the evidence produced by the State shows nothing more than that Richard Wilson was shot on April 28, 1968, and that the record does not contain any credible evidence which definitely placed the defendant at the scene of the crime — in short, the State failed to sustain its burden of proof beyond a reasonable doubt. Moreover, defendant maintains, the quality of the testimony of the youthful witnesses, and the inconsistent and controverted nature of the “facts” elicited, militate solidly against sustaining the verdict imposed.
It is to be noted that the witnesses who were present on the evening of April 28, 1968, in the said area were youngsters of 11 years and older. Nevertheless, it cannot be denied there is adequate, competent evidence, which the jury apparently believed, that, on the evening of April 28, 1968, defendant Hister with Newson roamed the neighborhood of 65th Street around Harvard, Parnell and Stewart Avenue, brandishing weapons while searching for Eugene Adams or the deceased with the expressed intent of doing physical harm.
The record clearly shows that six State witnesses2 gave testimony which placed Hister in the area on the critical date and within the critical time period; that four witnesses (Dale Lee, Tony Lewis, Jesse Parnell and Gregory Lee) gave testimony placing firearms in the hands of Hister or Newson; and that Jesse Parnell and Eugene Adams testified that Hister was wearing a green and black sweater.
Jesse Parnell, called as a witness by the State, testified that he was 14 years old and on April 28, 1968, lived at 6508 South Harvard and saw the deceased and Adams about 10 or 10:30 at night when they got on his bike and saw them turn the comer of 65th and Harvard; that he knew and identified defendants Newson and Hister in the courtroom, then gave contradictory testimony as to whether he saw them after the deceased and Adams left with his bike.
Thereupon, on motion of the State, Parnell was called as a court’s witness. Parnell then testified that after the deceased and Adams rode off on the bike he was on his porch when Hister came up on his porch, stuck a shotgun, having a wooden part cut off with a big hole in the barrel being about 22 or 24 inches long, in his face or head and asked where the deceased was, to which Parnell said he did not know, that Newson and a light boy were there at that time on the sidewalk. Parnell described the gun as having a wooden part cut off with a big hole in the barrel with a barrel about 15 inches long; and that Hister had on a green-striped sweater, some black pants and black shoes.
According to Parnell, Hister and Newson left his house, ran to and up a gangway on 65th and Harvard on the opposite side of the street from his house; that Parnell then crossed the street and went to the comer of 65th and Harvard in front of 6501 where he saw the deceased and Adams on 65th Street going toward Yale; that Hister had a gun in his hand which he shot toward the deceased who was shot in the face on the left side; and that one Kenneth and a girl named Pam were also there. Parnell said he then ran to his porch and saw Hister, Newson and the light boy jump in a car on 65th and Harvard and drive away.3
On cross-examination by Newsons attorney, Parnell testified that at the time of the shooting, Hister was in a lot behind the comer of a building and that he saw an arm with a green-striped sleeve stick out; that after the shot was fired, Adams jumped off the bike and ran; that the three persons then jumped into a yellowish car with Hister driving; and that he (Parnell), after running home, came back and saw the deceased lying on the comer.
In response to questions by Hister s attorney, Parnell said he could only see the arm; that he knew who it was because he had the green sweater on when he came up on the porch; that he saw the light boy when the gun was shot; that after the shot they turned around, came out through the gangway and jumped into the yellow car and headed towards Stewart Street; and that he heard one shot.
My review of the entire record indicates that the jury had before it legally competent, credible evidence from which it could conclude that on April 28, 1968, Hister was in the area of 65th and Harvard; that he had a gun and held it against the head of Jesse Parnell when Hister and Newson were looking for Adams and the deceased; that Adams and the deceased were riding a bicycle; that Hister had a gun in his hand4 when a single shot was fired; that Adams jumped off the bike and ran when the deceased was shot on the left side of his head; and that three boys then jumped into a car with Hister driving and drove away. This testimony together with the testimony of the pathologist that the deceased died from a single pellet which entered the left side of the deceased s head, would support the jury’s verdict — that the jury believed Hister guilty beyond a reasonable doubt.
Confronted with the task of balancing the testimony offered by the State against the alibi testimony given by Hister and members of his family and girl friend called on his behalf, the jury chose to believe the State’s witnesses and returned a verdict of guilty.
That verdict, in my opinion, is not palpably contrary to the weight of evidence, or so unsatisfactory as to cause a reasonable doubt of guilt. People v. Burgard (1941), 377 Ill. 322, 36 N.E.2d 558.
Hister presented evidence of alibi. The majority states: “Evidence of an alibi cannot be disregarded where the sole and only evidence contradicting it concerns defendant’s identity as the person who committed the crime.”
In People v. Setzke (1961), 22 Ill.2d 582, 586, 177 N.E.2d 168, our supreme court stated: “There is no obligation on a trial court to believe alibi testimony over positive identification of the accused, even though the alibi testimony may be given by a greater number of witnesses.”
In order to understand the nature of Hister’s alibi defense testimony, it is important to cite a brief summary of the testimony.
Catherine Hister, mother of defendant Hister, testified that on April 28 the defendant arrived at her home at 6101 South Stewart around 8:30 P.M. with Sandra James; and that he left with his girl friend about midnight.
Bernice Mabry, sister of Hister, testified substantially the same as Catherine Hister, although she identified the girl friend who left with Hister as Hazel Richey.
Furman Hister, brother of defendant, testified that on April 28, 1968, he lived at 6101 South Stewart with his mother; that he first saw the defendant about 6 P.M., at the pool room at 65th and Wentworth;5 that between 8 and 9 P.M. defendant was at Furmans house where he ate and lay down; and that the defendant’s girl friend picked him up between 12 and 12:30.
Defendant Hister testified that on April 28 he was wearing the gray suit he was wearing in court with black loafers; that he left home about 10:30 A.M. with Hazel Richey and spent much of the day visiting with friends and drinking; that between 7 or 7:30 he went to his aunt’s house at 64th and Yale, then left there with Sandra and stopped at the Hickory Pit on 63rd Street before arriving at his mother’s home at 8; and that after eating and sleeping he left after 12. Hister denied knowing or talking to Eugene Adams, denied pointing a gun at Jesse Parnell or being on his porch, then testified he did not shoot the deceased.
Hister stated no one ever called him Fat Boy6 and denied knowing codefendant Newson. He testified he had been at a pool room on 65th and Wentworth about 4:30 or 5 and left about 6:30.
Hazel Jean Richey, called as a witness by Hister, testified that on April 28, 1968, she and defendant Hister lived at 5949 South Michigan and that the defendant left home around 12 and she next saw the defendant at 6101 South Stewart about midnight.
It is axiomatic that the jury did not have to believe defendant Hister or his alibi. In fact by their verdict we must conclude the jury did not believe Hister or the alibi evidence.
Thus we return to the question of identification. In my opinion there is credible evidence in the record that placed Hister at the scene of the incident and as the person who shot the deceased. Since the credibility of the witnesses was a question to be decided by the jury, based on the cited authority, I do not think this court should overturn its verdict. The jury obviously believed the testimony of the State witnesses. In People v. Sullivan (2nd Dist. 1972), 7 Ill.App.3d 417, 422, 287 N.E.2d 513, the court said: “This court [appellate] will not disturb the finding of a jury in the absence of a clear miscarriage of justice.” In my opinion I believe the jury’s verdict of guilty should not be overturned.
III.
Although, by virtue of the majority opinion it is not necessary to discuss the other issues raised by Hister in this appeal, I do not believe any of the issues raised would justify a new trial.
For these reasons I would affirm the judgment of the circuit court of Cook County.
The cases of People v. Ephraim (1st Dist. 1971), 133 Ill.App.2d 310, 273 N.E.2d 225 (which reversed a murder conviction of William Ephraim, whereas the same court approximately two years later affirmed the murder conviction of co-defendant Leroy Hairston), and People v. Hairston (1st Dist. 1973), 10 Ill.App.3d 678, 294 N.E.2d 748, illustrate the fact that this court has followed the practice of separately evaluating, the evidence as to each defendant.
The witnesses were Gregory Lee, Tony Lewis, Dale Lee, Clemaine Jean Lee, Eugene Adams and Jesse Parnell.
Various State witnesses testified about the car. Their description of the car did not differ materially from Newsons testimony that at the time he owned a two door ’65 Oldsmobile, beige in color with red streaks and a black-vinyl top.
Witnesses Parnell and Adams testified Hister had on a green and black sweater at the time of the accident.
Adams testified that he and the deceased were in a pool hall at 65th and Went-worth from 5:30 P.M. to 9 P.M. on April 28; and that Hister was in the pool hall about 7 P.M. or 8 P.M. at which time Adams had a conversation with Hister.
The parties stipulated at trial that defendant Hister weighed 255 pounds at the time of his arrest.