WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
BURTON BERGSTROM, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
The defendants, Louis Qualls and Matthew C. Moore, were jointly indicted in the criminal court of Cook County on a charge of rape. They pleaded not guilty, were tried before a jury, found guilty and upon judgment on the verdict were sentenced to imprisonment in the penitentiary for a term of 25 years. The case is before us on writ of error.
The defendants contend that the prosecution failed to prove the guilt of defendants beyond a reasonable doubt; that there was error in giving a certain instruction; and that there was no proof of the use of force or of lack of consent. The State insists that the defendants were found guilty beyond a reasonable doubt and that the instructions were proper and the defendants received a fair trial.
The principal witnesses for the State were the complaining witness; her mother-in-law; a police woman, Lavinia Stewart; and two policemen, Arnett Holmes and Raymond Krall. The defendants testified on their own behalf and presented a number of character witnesses. The prosecutrix is white. The two defendants are Negroes. We mention this only because of certain testimony which will be discussed later.
The complaining witness and the two defendants were the only witnesses to the occurrence, and there is considerable variance in their testimony. The facts upon which there is no disagreement are that on April 25, 1959, about the hour of 2:45 A.M. prosecutrix encountered the defendant Qualls at 39th Street and Cottage Grove Avenue in the city of Chicago. They walked about six blocks to 39th Street and South Park Avenue where Qualls hailed a cab. They rode in the cab to 63rd and Kimbark, a distance of more than two miles. They got out of the cab and walked about half a block to the defendants' apartment. They entered the building, walked up a flight of stairs to the first floor apartment, and encountered Moore at the door. Moore said "hello" and walked into the kitchen. All three had coffee and sometime during the visit the prosecutrix disrobed. Both Qualls and Moore engaged in sexual intercourse with her. After the acts of intercourse, she entered the kitchen nude and drank some coffee. She took a bath in the apartment and left about 7:00 A.M. Moore gave her fifty cents for bus fare.
The complaining witness testified that she and her husband stopped at 39th and Cottage Grove to buy something to eat; that the restaurant was closed and they entered a tavern; that they left the tavern and sat in their car, and that two unidentified Negroes (not the defendants or either of them) approached the car and demanded money; that her husband jumped out of the car and ran away; that about this time Qualls walked up to the car and offered to take her to her husband. The complaining witness and Qualls walked several blocks to a cab. Qualls said he had a knife. In the cab Qualls displayed the knife. When they entered the apartment Qualls ordered her to take off her clothes. He put the knife on the dresser. Both Qualls and Moore engaged in intercourse four or five times between 3:00 A.M. and 4:30. They sat in the kitchen (the complaining witness nude) and drank coffee, after which each man again engaged in intercourse with her. She then accepted fifty cents from Moore, left the apartment, took a bus to her home, and upon arriving there told her mother-in-law that she had been kidnapped and raped. She then went to a police station and upon her complaint officers Stewart, Holmes and Krall went to the apartment on Kimbark and arrested the defendants.
The defendant Qualls testified that he had bought some barbecued ribs at a restaurant and thereafter entered a tavern, where he encountered prosecutrix and her husband, identified by her, however, as her cousin. The husband said he needed money to settle a debt with two other men in the tavern, and suggested that the complaining witness would go with Qualls for money. Qualls paid the husband seven dollars, and left the tavern with the complaining witness. Outside the tavern there was a verbal altercation between two men and prosecutrix's husband. The two men told Qualls to move along. He walked with the complaining witness to South Park, where they took a cab to Kimbark. At no time did the complaining witness protest, but she accompanied him willingly. When they entered the apartment the complaining witness disrobed, and there ensued one act of intercourse. The complaining witness then entered the kitchen, nude, and sat drinking coffee for half an hour. She then engaged in intercourse with Moore. Qualls went in the bathroom, and the complaining witness entered the bathroom and stepped in the tub with him.
The defendant Moore testified that he was in his shorts when Qualls and the complaining witness came to the apartment, that he put on trousers, and sat in the kitchen reading, while Qualls and the complaining witness came into the kitchen, nude, and after drinking coffee, proposed to Moore that he enjoy her favors, which he did. She asked for money, but Moore told her that his pay check had been garnisheed, and he was broke. The complaining witness then took a bath, and left about 7:00 A.M. Shortly before she departed Moore left the apartment and bought her a package of cigarettes.
Both defendants categorically deny the use of any force whatsoever, although they both admit that each once engaged in sexual intercourse with the prosecuting witness.
The mother-in-law of prosecutrix testified that the prosecuting witness entered her apartment between 7:00 and 8:00 in the morning and said she had been kidnapped and raped by two colored men.
Lavinia Stewart, police woman, testified that she saw prosecutrix at a police station and accompanied her, with officers Krall and Holmes, to an apartment at 6241 Kimbark. When this group entered the building, Moore was coming down the stairs. He was arrested, and they all entered the apartment, where Qualls was in bed. The witness accompanied the prosecuting witness to Michael Reese hospital, remained there a few minutes, (the prosecutrix was not examined,) and then returned to the Prairie Avenue station.
Raymond Krall, police officer, accompanied the prosecuting witness to the Kimbark address, with officers Stewart, Goebel and Granata. The prosecuting witness confronted the two defendants, who said nothing. The officer was present at a police "lineup," at which time the husband of the prosecuting witness identified Qualls as the man who came up to his car at 39th and Cottage Grove. Apparently the prosecuting witness did not make any identification at the lineup.
Arnett Holmes, police officer, testified that he drove the prosecuting witness to the Cook County Hospital in the afternoon and left her there. The prosecuting witness did not discuss the case with him or his partners at any time.
It is noteworthy that prosecutrix's husband was not called to corroborate her testimony, although he ...