At a former term of this court an opinion affirming the judgment in this case was delivered by Mr. Justice Farmer. A rehearing was allowed. Upon further consideration of the case the opinion formerly filed is re-adopted and is re-filed.
The points raised in the petition for rehearing are chiefly the same as those considered in the original brief and argument of plaintiff in error, all of which have been passed upon in the opinion. The identification of Stella was positively made by the witness VanHorn. His detailed description of Stella and all the surrounding circumstances of the hold-up was complete. He described the kind of clothing Stella wore, his size and general appearance. He had excellent chances of observation, as Stella, after robbing him of his money and keys, marched him from the truck over to a Chrysler roadster parked directly under a street light. Stella then ordered Pontarelli, the driver of the Chrysler, to drive down the street. After going a short distance they stopped alongside of a Chevrolet automobile, where Stella got out and talked with someone in the Chevrolet for several minutes. While this was going on VanHorn noticed the license number on the Chevrolet, which he later gave to the police officers. It was this information which enabled the police to begin a search which led to the arrest of the three robbers. Stella then got back in the Chrysler roadster and they drove for several minutes over the streets *Page 595 of Chicago. During this ride VanHorn again observed the appearance of the gangsters, as he was sitting in the middle of the seat, with Stella on one side and Pontarelli on the other. They then drove into an alley, where VanHorn was taken out, bound, gagged and left in a garage. While he was being gagged he had further opportunity to look at Stella. VanHorn identified Stella, Pontarelli and Mattieo at different times and places without hesitation or doubt. His identification of Pontarelli and Mattieo was not seriously questioned even though his opportunities to observe them were much less than as to Stella. As a result of information furnished to the police they located the Chrysler car which Pontarelli and Stella had used during the robbery, and after the investigation started Pontarelli went to the police station and gave himself up. These incidents surely tend to show that the jury were fully justified in believing VanHorn's unshaken testimony identifying Stella as one of the robbers.
This court has frequently held that the question of identity goes only to the weight of the evidence. It is the province of the jury to determine the weight of the evidence, and the fact that but one eye-witness to a crime may testify is not, of itself, sufficient to set aside a verdict of guilty. (People v. Fisher, 303 Ill. 594.) Such testimony was held sufficient even though the identification by one witness for the State was not positive. (People v. Maciejewski, 294 Ill. 390. ) The weight to be given to testimony of identification is a question for the jury. (People v. Jennings, 252 Ill. 534.) In the present case VanHorn picked Stella out at the second police "show-up" from a group of other suspects. At the time he was sitting within ten feet of the stage. He afterwards again pointed out Stella in the back room, at which time Stella told him "to take a good look and be sure." VanHorn had already taken several good looks at Stella and was sure of his identity and neither then nor later expressed any doubt concerning the *Page 596 matter. No particular significance should be attached to Stella's expression at the time he was again identified in the back room, as such statement is purely self-serving.
The case of People v. Lukoszus, 242 Ill. 101, is chiefly relied upon by plaintiff in error in an attempt to show that reversible error was committed in allowing a police officer to testify concerning a conversation with VanHorn in the presence of the accused. The facts in the Lukoszus case bear scant resemblance to those in the case at bar. In the case cited the story of the only witness who identified the accused was contradicted in several important respects and needed corroboration if it were to be believed. This corroboration was attempted by a police officer who testified that he had secured his description of the accused from a third party. Such testimony amounted to the same thing as permitting one witness to testify that the other witness told him the defendant was the man. In the present case the identification of Stella by VanHorn was positive and uncontradicted and needed no corroboration from any source. The record here shows that the only testimony of the police officer to which objections of plaintiff in error, when made, were not sustained, consisted of a one-sentence answer: "VanHorn said Sam Stella was one of the men." The record further shows that this statement of VanHorn occurred in the presence of and within ten feet of the accused and that the accused then said nothing. After first pointing out Stella on the stage at the police "show-up," VanHorn made his identification complete by then going into the back room and there again pointing him out in Stella's presence, sight and hearing. Under these circumstances the evidence of the identification was proper. People v. Braverman, 340 Ill. 525;People v. O'Donnell, 315 id. 568; People v. Dean, 308 id. 74.
No error was made by the trial court in refusing defendants' instruction No. 2, as it was argumentative and so carelessly drawn that it might have confused the jury, *Page 597 and its subject matter was sufficiently covered in two other instructions given. One of the instructions given at the request of defendants told the jury that the burden was on the prosecution to prove not only that the crime alleged was committed but that the defendants were present at the time and engaged in committing it; also by instruction No. 4 given for the State the court told the jury that if they had a reasonable doubt from the evidence as to whether the defendants were present at the place and time of the commission of the crime they should find the defendants not guilty. These two instructions concern the identity, as well as the whereabouts, of the accused, but even if they had not been given, the trial judge was under no duty to revise, amend or correct an instruction which is both unintelligible and argumentative. (People v. Lopez, 296 Ill. 438; People v. Andrews, 327 id. 162.) No error is shown which would warrant this court in setting aside the verdict of the jury by reversing the judgment in this case.