WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
JOHN J. LUPE, Judge, presiding.
MR. JUSTICE DAILY DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 16, 1953.
An indictment returned to the criminal court of Cook County charged the defendant, Levi Wilson, with the crime of forcible rape by one count, and with the crime of assault with intent to murder in a second count. He was tried on these charges by a jury which found him guilty of rape as charged and fixed his punishment at imprisonment in the penitentiary for a term of thirty years. Judgment was entered upon the verdict and defendant has prosecuted this writ of error to review the record of his conviction. In seeking reversal he contends: (1) That the evidence was insufficient to prove his guilt beyond a reasonable doubt; (2) that he was not properly or sufficiently identified; (3) that the court failed to give the jury proper instructions as to form of verdict; (4) that the court improperly instructed the jury on the law of the case; and (5) that the court committed prejudicial error in allowing in evidence part of a bloodstained shirt belonging to defendant.
The complaining witness against defendant was a twenty-year-old nurse who was employed by a hospital in South Chicago, where she also lived. At approximately 10:30 P.M. on the night of October 15, 1949, she was returning to the nurses' home from a movie and was proceeding in a westerly direction along Ninety-second Street. In the vicinity of Anthony Avenue she observed a man sitting on the curb next to a large, dark car. Shortly thereafter she observed the same car being driven toward her from an easterly direction and it was her belief that the man she had seen sitting on the curb was driving it. Within a few minutes the man approached her walking from the east. When he drew abreast he asked the prosecutrix where State Street was, to which she replied she did not know, and continued walking. She had taken but a few steps when she was seized from behind, her assailant putting one arm around her throat and a hand over her mouth. She was then dragged through a hedge to the lawn of a house located on Colfax Avenue about thirty-five feet from the corner of Ninety-second Street, where she engaged in a struggle with her attacker. When testifying she stated that she did not remember what happened after that until she found herself in the emergency room of the South Chicago Community Hospital.
As the struggle on the lawn occurred, Jeanette Komar, who lived at the address, arrived home and observed the two people. When she heard a girl scream "Somebody help me!" she ran diagonally across the street, first to the home of Donald Maxwell, then to the home of Edward Roman, to whom she reported what she had seen. Sometime later this witness returned to her own home where she observed the prosecutrix, "badly beaten up," on the porch steps with other persons. Close to midnight of the same night, she was present when the police removed a dark-colored four-door automobile which had been parked on Colfax by the side of the witness's residence.
In response to the Komar girl's alarm, Roman and Maxwell proceeded to the lawn in question. When within fifty feet they heard someone moaning and groaning and upon coming nearer observed a girl lying prone on the ground, with clothing disarranged and a man astride her between her legs. When the man saw Roman and Maxwell, he leaped up and vaulted the hedge and as he did so they noted that his privates were exposed. Roman leaped to grapple with the man, but was twice unsuccessful in trying to throw him to the ground. While this was occurring the man's privates were still exposed and a street light but twenty-five feet distant afforded both Roman and Maxwell several opportunities to see the face of their adversary and to observe his clothing. When the man finally broke from Roman's grasp, he fled down an alley and Roman and Maxwell gave chase.
They were joined by Ronald Giertych, a passing motorist who had stopped when he saw the struggle. When the pursuit proved unsuccessful, Giertych returned to the corner of Ninety-second and Colfax where the prosecutrix was being cared for by a young lady, who had been in Giertych's car, and other persons. Giertych and his companion then placed the complaining witness in his car and started for the hospital. En route they passed the corner of Ninety-second and Phillips, where Giertych again observed the man he had pursued earlier. He stopped his car and again gave chase but could not catch the man. When he returned to his car again, a police car had arrived and he gave the officers a general description of the man he had pursued, then continued to the hospital with the prosecutrix. At the hospital, still another car of officers contacted this witness, and he repeated his description of what he had seen.
Police Officer Adolph Olson was one of the officers in the car which first contacted Giertych. Acting upon the latter's information, Olson drove the car around the vicinity and, at Ninety-third and Euclid, some twelve blocks from Ninety-second and Colfax, observed a man who fitted the description. As the officer turned his car around the man ran across a vacant lot next to 9238 Euclid Avenue. The officers made a search of the area and they found the man, who proved to be the defendant, Levi Wilson, crouched on top of a tub underneath a stairway in the rear of the house. He was breathing heavily and was wet with perspiration. When the officer asked him why he was there, defendant replied that he had had a fight with a couple of men down the street; that they had chased him and he was hiding there. The officer took him into custody, then proceeded to the hospital where the complaining witness had been taken.
At the hospital, medical examination disclosed that the prosecutrix was suffering from various abrasions and contusions on her face, scratch marks on her throat and thighs, a superficial laceration of the right labia majora, which is the entrance to the vagina, and a fracture of the right ankle. The examining physician, Dr. Nathan Friefeld, and Edna Collentine, a nurse who assisted him, appeared as witnesses at the trial and stated that the patient was in extreme shock because of her injuries but, despite her condition, was conscious and lucid and capable of making an identification. When the doctor was asked if the girl had been raped, he replied: "I presume so."
When officer Olson arrived at the hospital with the defendant, they first encounted Giertych who identified defendant as the man he had seen. Defendant was then taken to the emergency room where, in the presence of officers Olson, O'Keefe and McMorrow, and nurse Collentine, the complaining witness identified him as the man who attacked her. Following this, defendant was taken to a police station where Roman and Maxwell, who were called there for the purpose, viewed him in the lockup and identified him as the man they had encountered under the circumstances heretofore related. The following day the witness Giertych again identified defendant by picking him out of a police showup of several persons.
While still at the hospital, officer O'Keefe questioned defendant about his arrest and defendant related that he had driven two men from Sixty-third Street and South Park Avenue, after they had engaged his automobile for hire, and that when they reached their destination, they refused to pay; that an argument developed during which one of the men started to fight; that three other men converged on the scene and started to attack defendant and that he was fleeing from these men when arrested. Defendant told the officer that this had occurred at Eighty-third and Essex, which is approximately two miles from 9238 Euclid Avenue and an additional three-quarters of a mile from Ninety-second and Colfax. O'Keefe searched defendant and found a city vehicle registration; following this he and his partner searched the areas referred to and found the vehicle for which the registration had been issued about fifty feet from the intersection of Ninety-second and Colfax. It was admittedly the defendant's car.
The persons referred to in the foregoing statement of facts all appeared as witnesses at the trial and testified in substance as the facts have been related. All repeated their identification of the defendant at the trial and several of them identified the clothes defendant was wearing on the night of the attack, said clothes having been taken from the defendant at the time of his arrest. Despite an arduous cross-examination which sought to attack the veracity of the People's witnesses and to infer prejudice, they remained unshaken in their identification of defendant and in their account of the events leading to his arrest.
Defendant testified in his own behalf that he was twenty-six years old, a disabled war veteran and a law student in a Chicago university. To augment government disability allowance he sometimes peddled household items from door to door and in addition hired out his car as a jitney bus from time to time. He stated that sometime after 9:30 P.M. on the night of October 15, 1949, he agreed to drive a man and a boy from Sixty-third and South Parkway to Eighty-third and Essex; that while en route, he and the older passenger had gotten into an argument, and the latter, on arriving at their destination, had refused to pay the fare and started to fight. When three nearby men ran to the aid of the passenger, defendant fled north to the vicinity of Seventy-ninth and Essex. He saw a car approaching and recalling that he had left the keys in his own auto, thought his pursuers might have gotten in his car to overtake him, so he ran into a yard and concealed himself behind the stairs of a building. When his pursuer turned out to be a policeman, defendant testified he came from his hiding place and said: "Boy, I'm glad to see you," and that the policeman said: "Why did you run into the yard, nigger you raped a white woman," and that when he denied the accusation the officer replied: "You'll do, any nigger will do."
Defendant insisted that he was arrested at Seventy-ninth and Essex rather than at 9238 Euclid Avenue and further testified that all of the identifications made that night were induced by suggestions of the police, in that he was either brought in and presented as the man who had committed the crime or that the officers suggested to the witnesses that he was the guilty person. In like manner, he testified that he had been singled out in advance as the guilty party at the police showup conducted the following day. In this respect, one Harold Hobbs testified for the defense that he was one of the prisoners taken with defendant to a police showup on October 16 and that just before the showup he saw police officers point out defendant to four men and a woman and identify him by ...