WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
CHARLES S. DOUGHERTY, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
The plaintiff in error, William Tensley, hereinafter referred to as defendant, was indicted in the criminal court of Cook County for rape. He waived a jury, and upon trial before the court was found guilty and sentenced to five years imprisonment. He prosecutes a writ of error to this court.
In urging this court to reverse the judgment of conviction, he contends as follows: (1) the judgment and finding is contrary to law and to the evidence because the State failed to prove beyond a reasonable doubt the guilt of the defendant; (2) the trial court erred in overruling defendant's motion for a finding of not guilty at the close of the State's case; (3) the court erred in overruling defendant's motion for a new trial; (4) the court erred in overruling defendant's motion in arrest of judgment; and (5) the comments of the trial judge show that the defendant was not given the fair and impartial trial guaranteed by the constitution of the United States and the constitution of the State of Illinois.
Two witnesses testified for the State, the prosecutrix, and police officer John Griffith who investigated the case and was present during the interrogation of the defendant after his arrest.
The prosecutrix, twenty-four years old and unmarried at the time of the alleged crime, testified to the following: the defendant came to her home on April 17, 1952, between 9 and 9:30 at night, picked her up and drove her to a friend's house, identified only as Betty. The prosecutrix's roommate, Martha, and Eddie Sardon, who was going with Martha at the time but has since married the prosecutrix, came along. Later, prosecutrix and the defendant left the house to take Betty's husband to an elevated station. They returned several times to see if Eddie and Martha were ready to leave but were informed each time that they wished to remain. It was decided that the defendant would drive the prosecutrix home alone. On the way, the defendant told her he was going by his godmother's house, but he drove into an alley and parked. It was then between 11 o'clock and midnight. He asked her if she was going out with him again, and she said she was not. He then said he may as well make a night of it and asked her if she knew what he was fixing to do. She replied that she did but that he was going to get in trouble. But he said it didn't matter if he died the next day and began choking her and pulling her over the back seat. As she screamed, he warned her to stop screaming and "rassling" with him or he would kill her and leave her in the alley. He then forced her in the back seat, and as he was still choking her, forced her to submit to sexual intercourse.
The prosecutrix further testified that the defendant then drove her home, and as he left warned her not to tell anyone of the incident. But she immediately told her roommate and phoned her brother, who was not at home. She then went with her roommate and Eddie Sardon to the defendant's house. Eddie asked the defendant if he had "forced himself to have intercourse" with the prosecutrix, and the defendant replied that he had but he was sorry. He advised the prosecutrix not to tell her brother, because if she did one or both of them would get hurt. After they left the defendant, they went to her brother's house. Following that they went to a police station, but the station was not in their district and they were told to go to a hospital to get a doctor's statement. However, the hospital was crowded, so they left and reported to the police station in their own district. She was examined by a Dr. Prince, who was in the Army and stationed in Alabama at the time of trial. She said the doctor examined her and found "soreness." She signed a complaint the next day, April 18, 1952, but the defendant was not arrested until August 28, 1952.
She further testified that she first met the defendant on April 13, 1952, and had gone out with him, but always in the company of others. She denied ever having sexual intercourse with him prior to April 17, 1952.
Officer John Griffith, who was assigned to investigate the case on April 18, 1952, also testified for the prosecution. Upon receiving his assignment he proceeded to the defendant's last known address but did not find him. It was not until August 28, 1952, that the defendant was arrested and taken into custody. He was identified by the prosecutrix at a showup and taken to the State's Attorney's office for questioning. Officer Griffith was present during this interrogation and identified a document purporting to be the statement of the defendant taken at that time. This statement was received in evidence, the defense making no objection thereto. The statement was not signed by the defendant, a notation being added as follows: "William Tensley read statement and stated he did not want to sign same because some of the words were not in place and wanted to see a lawyer." It was nowhere contended by the defendant, however, that the statement was inaccurate in any particular in so far as it purported to be a transcript of what he had said. Nor was it urged that he did not make the statement voluntarily.
In this statement the defendant admitted being out with the prosecutrix on April 17, 1952. He said he picked her up in his automobile and took her and two others to a friend's house. He drove the prosecutrix home and had sexual relations with her while the automobile was parked on Forty-fourth Street, but he denied that he forced her to have relations with him. Later that night he saw her at his home, where she was accompanied by the fellow to whom she is now married, Eddie Sardon, and the girl he was going with. This was approximately midnight. Eddie asked him what he did and told him "the girl says you raped her." He denied that he did.
The defense sought to establish an alibi for the defendant based upon the testimony of the defendant himself and Lucille Johnson.
Lucille Johnson testified that she saw the defendant on April 17, 1952, on two separate occasions. In the early part of the evening, maybe five or six o'clock, the defendant came to her home. He left right away and came back around nine or ten, at which time his wife was with him. The witness stated she was guessing at the time, but was certain it was not as late as midnight when he came back. She said her daughter, her son-in-law, the defendant and his wife played cards until real late, possibly three or four in the morning. She recalled the exact date because the defendant's wife said it was her birthday.
In his testimony the defendant, thirty-six years old and married, denied being with the prosecutrix at all on April 17, 1952. He said that April 14, 1952, three days before, was the last time he saw her. On this occasion, a date, he told the prosecutrix he and his wife were talking about going back together. He told her "By the way, if we go back together, you and I won't be seeing much of each other." Whereupon the prosecutrix cried, told him she didn't want him to quit her and said she thought he was going to marry her. When she left him that night she said "If I can't have you no one will." He testified to having sexual relations with the prosecutrix on prior occasions but denied ever forcing her to have such relations.
The defendant's testimony as to his whereabouts on April 17, 1952, was as follows: He and his wife came in by bus from Michigan City, Indiana, at around five or six o'clock in the morning. That evening around three-thirty to four-thirty he went to Mrs. Johnson's house. After a short stay, he walked down the street to a tavern where he remained till about seven-thirty. He then walked back toward Mrs. Johnson's house, meeting his wife on the way. They went together to Mrs. Johnson's and stayed till around four-thirty in the morning.
The defendant's mother, Mattie Jones, and Sells Townsel also testified for the defense. The latter said he lived on the same floor of the apartment building as the defendant and during either May or June of 1952 met the prosecutrix in the defendant's apartment. He said he also saw the defendant and the prosecutrix together in his own room on a later occasion. He was not sure of the date, but said he knew it was in the summertime. On this occasion he ...