WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
DANIEL A. COVELLI, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 27, 1962.
Defendant, Willie Smith, was indicted for rape and found guilty by a jury, which fixed his punishment at 25 years in the penitentiary. Judgment of conviction and sentence thereon were entered by the criminal court of Cook County, and defendant has brought this writ of error to review the cause.
Defendant assigns as error the State's failure to prove him guilty beyond a reasonable doubt; the improper admission of hearsay evidence and of testimony relating to his failure to deny accusations; and the submission of a prejudicial alibi instruction.
The complaining witness, Mrs. Moore, testified that at about 9:45 P.M. on December 6, 1959, as she was walking from her mother's home down the brightly lighted Drake Avenue, near 16th Street, in Chicago enroute to a nearby hot-dog stand, she was accosted by defendant. He held a gun to her back, threatened to kill her if she didn't go with him, and forced her to walk down an alley to a back yard. He demanded money, tore open her blouse and took her wallet which had been concealed in her undergarment, and then struck her twice with his fist, knocking her out. When she regained consciousness, he was having intercourse with her. He remained there about 10 to 15 minutes, then got up and brushed himself off. Before he ran away he warned her to stay there. As soon as the complaining witness was free, she ran to the nearest lighted house. When the woman, a Mrs. Scott, opened the door, the complaining witness "fell in" and explained that she had been robbed, beaten and raped.
In this connection, Mrs. Scott testified that around 10:00 P.M. she heard someone screaming, "Open the door, open the door. Somebody is trying to kill me." When she opened the door, the complaining witness, a woman she had never seen before, ran in screaming that a man had robbed and tried to kill her. According to Mrs. Scott, the woman was without one shoe, and her legs and feet were muddy, as though she had been lying on the ground. Mrs. Scott helped her up and asked her if she wanted to call her people. The complaining witness then telephoned her sister, and remained in the Scott home for about 15 minutes, until her family came to get her. They took her to Mt. Sinai Hospital, and then to the police station where she gave the police a description of the man who raped her, and of the crime.
Some weeks later, on January 3, 1960, when the complaining witness was with her sister and the latter's boy friend at the Triple Dollar Tavern, she recognized the defendant as the man who had raped her. They called the police while the sister's boy friend trailed defendant to his house. A short time later the complaining witness accompanied a police officer to the defendant's house. The officer brought defendant out on the porch, and asked the complaining witness if she recognized anyone. The witness pointed to defendant as the man who had raped her. Defendant was then standing just a few feet from her, and he said nothing. These circumstances were corroborated by the arresting officer.
While defendant did not deny that he said nothing or that the complaining witness pointed him out, he claims that he received no answer when he asked why he was being arrested. The police officer, however, claims that he told defendant on the way to the station that he was being arrested in connection with a rape.
At the station the complaining witness again identified defendant from among the line-up of some seven men. According to her testimony, defendant then made no comment. Defendant, however, testified that when he was told that the lady accused him of robbing and raping her, he said, "No, sir." When asked by the officer where he was on December 6, at about 9:45 P.M., he answered that he was at home watching television, and also that he had been at the Triple Dollar Tavern.
On the stand defendant testified that he was with Freddy Banks, a cousin, at the Triple Dollar Tavern, between 6:00 and 9:45 P.M., when they went home and watched television. He claimed that he recalled the hour because he had mentioned that it was getting late, and he had to go to work the next day. On defendant's behalf, his cousin, Freddy Banks, testified that on December 6 he and defendant came home from work about 5:00 P.M., had dinner, and then went to the Triple Dollar Tavern where they were in each other's presence until 10:00 P.M. Then they went back to the house, where they each had rooms, and watched television in Freddy's room until 11:00 or 11:30 P.M. The record shows that Freddy was married and that his wife was in the vicinity, but she did not testify.
On the basis of substantially the foregoing evidence the jury returned a verdict of guilty and fixed defendant's sentence at 25 years in the penitentiary.
Defendant argues that Mrs. Scott's testimony that the complaining witness came to her door screaming that someone had tried to kill her constituted inadmissible hearsay evidence, and was therefore reversible error. The prosecuting witness had, however, herself testified fully as to this occurrence, and the error, if any, in admitting the testimony of Mrs. Scott was harmless.
Defendant contends further that the admission of testimony relating to defendant's failure to deny the accusations was also reversible error. Our case law reiterates the rule that an admission may be implied from the silence of one who is accused of a crime, on the ground that "it is the nature of innocence to be impatient of a charge of guilt, and an innocent person will usually spontaneously deny the accusation and challenge the charge." (People v. Bennett, 3 Ill.2d 357; People v. Nitti, 312 Ill. 73, 90.) The silence is viewed in the same category as flight or similar conduct reflecting upon defendant's innocence or guilt, rather than as a confession. (People v. Nitti, 312 Ill. 73, 92.) In order that silence may be deemed an admission, however, it must appear that the accused heard the accusation, and ...