WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
ALFRED J. CILELLA, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
By writ of error the defendant in this case, Hubert Harrison, brings to this court the records of his convictions upon three indictments returned by the grand jury of Cook County. The first indictment charged an offense of rape on April 14, 1960. That offense is not related to the occurrences that formed the basis of the second and third indictments. Those indictments were concerned with events that took place on April 16, 1960, and they involved offenses alleged to have been committed, at the same time and place, upon two girls, one 16 years old and the other 13. There was a separate indictment as to each girl. As to the 16-year-old girl, the indictment charged rape and crime against nature. The indictment that related to the 13-year-old girl charged assault with intent to commit rape, crime against nature, and indecent liberties.
The second and third indictments were consolidated for trial. The defendant waived a trial by jury in all three cases. Both the rape case and the consolidated case were tried upon the same day. The defendant was found guilty in the rape case, and was sentenced to imprisonment for a term of ten years. In the consolidated case the defendant was found guilty upon all counts except the one that charged rape upon the 16-year-old girl. As to that count, he was found guilty of assault with intent to commit rape. The statutory indeterminate sentence was imposed as to each of the offenses of which the defendant was found guilty in the consolidated case, and the court ordered that all of the sentences imposed in that case should run concurrently with each other and with the sentence imposed in the rape case.
The record in the rape case and the record in the consolidated cases were separately certified by the clerk of the criminal court. The People have withdrawn their objection to the unorthodox procedure of reviewing multiple judgments of conviction upon a single writ of error, and we have not experienced undue difficulty in dealing with the two cases. (See People v. De Cola, 15 Ill.2d 527.) They will be discussed separately in this opinion.
In the rape case the prosecuting witness testified that she was married and lived with her husband at 4721 South Princeton Avenue in Chicago. At about 10:00 P.M. on April 14, 1960, she left to go to a club meeting at the home of a friend who lived nearby. As she approached an alley north of 48th Place on Princeton she saw a man hurrying toward her. She turned to go into a church on the southeast corner of 48th Place and Princeton, and as she did so the man, whom she identified as the defendant, grabbed her and put a knife at her neck. The defendant held the knife at her neck and forced her to walk down an alley and into a partially wrecked garage. As he began to have intercourse with her, a car came through the alley and he pulled her up and pushed her into the yard so that they could not be seen. He then "carried" her back in the garage where he had intercourse with her.
When he left she ran home and told her husband what had happened. They called the police, who drove them about the neighborhood looking for the attacker. The search was unsuccessful, and they were taken to the station at 47th and Halsted, where the prosecuting witness gave a statement. She then was taken to Evangelical Hospital where she was examined by a physician. Four days later she identified the defendant from a police line-up that included five men.
For the defense, Rosalie Powers testified that she had been with the defendant at the Woodmere Hotel from aroung 10:30 that evening until 7:30 the next morning. The defendant denied that he raped the prosecutrix and testified that he had never seen her before. He testified that he had worked late that evening at the T.V. shop where he was employed, had gone to a tavern for a few moments, and had then spent the night at the hotel with Rosalie Powers.
The defendant's first contention is that his identification by the prosecuting witness was insufficient to prove his guilt beyond a reasonable doubt. The evidence showed that she had a good opportunity to observe him when he first approached her on a well-lit street corner, and that she had further opportunity to observe him when the car passed the garage where the rape occurred. But the defendant asserts that he was prejudiced by inconsistent rulings of the trial judge upon objections to questions concerning lighting conditions. The prosecutrix was asked on direct examination as to the condition of the lighting after she and the defendant left the corner of 48th Place and Princeton. She had answered, "The streets are well lighted, and ____" when she was interrupted by a defense objection which was overruled. She did not complete her answer. On cross-examination her husband was asked whether it was dark in the alley where the rape occurred and he answered, "Yes, sir, it certainly is." An objection to the next question, "That is a dark neighborhood?" was sustained on the ground that the word "neighborhood" was too indefinite to be meaningful. Later, on redirect examination, her husband was asked by the State's Attorney whether "the streets, the area at 48th and Princeton, are light or dark?", and a defense objection was overruled.
We do not agree that the rulings of which the defendant complains were prejudicially inconsistent. The prosecutrix did not complete her answer. As to the testimony of her husband, a question concerned with the "neighborhood" can fairly be regarded as much less specific than one that centers upon the "area at" a particular street intersection. And on the more basic issue of proof of guilt beyond a reasonable doubt, the trial judge saw and heard the witnesses. He was not required to believe the testimony of the defendant and his alibi witness, and we see no reason to interfere with his conclusion that the defendant's guilt was established beyond a reasonable doubt.
The prosecutrix testified that when she got home her husband said, "`Have you been to Mrs. Whitiker's?' and I said `No, but I met a man with a switchblade knife and he raped me.'" On the ground that her complaint to her husband was made in response to a question that he had put to her, the defendant argues that there was no proper corroboration of the testimony of the prosecutrix. Apart from the fact that this contention overlooks entirely her prompt complaint to the police, it is intrinsically unsound. It is true that a belated complaint, made in response to questions aimed at eliciting the admission of a suspected occurrence, is not regarded as "the natural and spontaneous expression of outraged feeling" and so is not admissible. (See People v. Cappalla, 324 Ill. 11, 18; People v. Fryman, 4 Ill.2d 224.) In such a case it is too likely that without the questioning there would have been no complaint. But the question in this case was innocuous, and it followed immediately upon the occurrence. It did not deprive the answer, which was actually not responsive, of the spontaneous and voluntary quality that is required. See Wigmore on Evidence, 3rd ed., secs. 1134, 1761.
On her direct examination the prosecutrix testified that the defendant had had an emission during the rape. On cross-examination she testified that on the night of the rape she was taken by the police to a hospital where she was examined by a doctor who gave a written report of her condition to the police. Thereupon the defendant's attorney demanded that the prosecution produce the doctor's report. The judge reserved his ruling on the motion until later in the trial while the prosecution sought to find the report. When the assistant State's Attorney reported that the report had not been found, the judge denied the demand for its production. The defendant contends that this ruling was erroneous.
In People v. Moses, 11 Ill.2d 84, 89, and in People v. Wolff, 19 Ill.2d 318, 327, we held that a defendant is entitled to the production of a prior statement for the purpose of impeaching the testimony of the witness who made the statement. In the case now before us there was no testimony as to the contents of the doctor's report and its production therefore could not have been used to show the prior inconsistent statement of any witness. At most, the report might have cast doubt upon the testimony of the prosecutrix that the defendant had had an emission. Such a discrepancy would not, in our opinion, have sufficed to give rise to a reasonable doubt as to the defendant's guilt. We hold, therefore, that in the circumstances of this case it was not error to refuse to order the production of the report.
The defendant also contends that the evidence failed to show that the prosecutrix made "such resistence as demonstrates the act was against her will." (People v. Fryman, 4 Ill.2d 224, 228.) In answer to this contention, however, it is necessary only to refer to the fact that the defendant had held a knife to the neck of the prosecutrix at the ...