WRIT OF ERROR to the Circuit Court of Macon County; the Hon.
MARTIN E. MORTHLAND, Judge, presiding.
MR. CHIEF JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
The plaintiffs in error were jointly indicted and tried by jury in the circuit court of Macon County and found guilty of the crime of rape. The jury fixed punishment of each of the defendants at one year in the Illinois State Penitentiary and motions for new trial and in arrest of judgment having been overruled the defendants were each sentenced on the jury's verdict and bring this writ of error to review the same.
Error is assigned that the verdict is contrary to and not supported by the evidence; that evidence was improperly excluded, and that instructions were improperly refused.
The prosecutrix met the defendant Fryman on the night of June 5, 1953, as she was leaving a roller skating rink near Decatur and rode into town with him on his motorcycle. During such time arrangements were made whereby Fryman would get a car and they would meet later in town. Fryman met the defendant White, who had a car, and the two of them later met the prosecutrix and a girl friend of hers at a prearranged place. From there the four obtained some beer and drove aimlessly about, after which they stopped at a cafe near Decatur Lake but none got out of the car except the prosecutrix's girl friend, who went into the cafe and made a phone call. Thereafter they drove out into the country, whereupon they stopped on a dark lane and Fryman and the prosecutrix got out of the car. The defendant White drove the prosecutrix's girl friend back into town and returned and picked up Fryman and the prosecutrix.
Thereafter the two defendants and the prosecutrix made another tour around the countryside. The prosecutrix testified that the defendants then stopped the car and forcibly transferred her from the front to the back seat of the car; that she tried to get out, put up a fight and attempted to flee, but that White held her down while Fryman forcibly had intercourse with her and that thereafter Fryman restrained her while White did likewise. Thereafter the three got in the front seat and she was driven to her home. She told them where she lived and they let her out a couple of houses past her home about midnight, after she made a date with Fryman for the next day.
The defendant Fryman admits having had intercourse with the prosecutrix but denies that it was against her consent. The defendant White denies having had intercourse with the prosecutrix at any time.
There is direct conflict between the testimony of the prosecutrix and of the two defendants as to many of the details as to what occurred the night in question.
The testimony of the girl friend of the prosecutrix as to the details of what transpired prior to the time she was let out of the car was in conflict in many respects with the testimony of the defendants. She was not present, however, and did not testify to any of the facts alleged to have occurred at the time of the commission of the alleged offense.
The mother of the prosecutrix testified that she was at a tavern when her daughter called her, shortly after midnight, told her to hurry home, that the fellows raped her and that they would come back and get her. A motion to strike such testimony was overruled, and the mother was further permitted to testify that when she got home she found prosecutrix crying, doubled up with pain, her hair and dress torn, and blood running down both her legs on her socks and shoes; that she took her down to the hospital where a doctor examined her and from there they went to a police station. The doctor testified that he examined prosecutrix at the hospital and there was positive evidence of recent intercourse.
The dress, slip and girdle of the prosecutrix were introduced in evidence and showed slight tear of the lace on the dress at the neckline and all garments showed the presence of dried blood.
The defendants offered several witnesses to the effect that the general reputation of the prosecutrix as to chastity and morality and for truth and veracity was bad. Three of such witnesses were boys who either ran in or knew the crowd with which the prosecutrix associated. On cross-examination each of these witnesses indicated they had not discussed the question of chastity and virtue of the prosecutrix with her neighbors but with those with whom she associated and they could not name many of the persons with whom prosecutrix associated although they named some. One of such witnesses testified that he did not know what "chastity" meant but that he thought it meant "drinking." The People's objection to the testimony of these three as to reputation as to chastity, and truth and veracity, was sustained as well as the objection to the fourth witness for failure to lay a sufficient foundation.
The People tendered ten instructions, of which the court gave nine, and the defendants tendered twenty-one instructions, of which the court gave seven.
Where a prosecutrix is in the possession of her faculties and physical powers, the evidence in a rape case must show such resistance as demonstrates the act was against her will. (People v. Tocco, 413 Ill. 305; People v. Meyers, 381 Ill. 156.) However, the question of credibility of witnesses is for the jury, and the fact that the jury believed the testimony of prosecutrix rather than that of defendants finds abundant support in the record. We are not disposed to substitute our judgment for that of the jury who had the benefit of viewing the proceeding at close range.
However, the very nature of a rape case demands the exercise of extreme care in excluding evidence which might deprive the defendants of a fair and impartial trial. (People v. Stanton, 1 Ill.2d 444.) And in this case the alleged errors in rejection and admission of ...