WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
GEORGE B. WEISS, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Defendant was charged with assault with intent to rape Ann Diebold and with robbing her of a cigarette lighter worth $5 and a purse worth $4. The jury found him not guilty of the robbery and guilty of the assault with intent to rape for which he was sentenced to the penitentiary for a term of not less than one nor more than three years.
The defendant contends here that: (1) the evidence was insufficient to sustain the conviction of assault with intent to rape; (2) he was deprived of the right to consult with his counsel at all stages of the proceedings; (3) the venue in Cook County was not established; (4) the court erred in its ruling concerning the admissibility of certain evidence; and (5) the court should have required the State to furnish the defendant for impeachment purposes all statements made by the prosecutrix.
An assault with intent to rape includes every element of the crime of rape except penetration. "Rape is the carnal knowledge of a female forcibly and against her will, and an assault is an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another." (People v. Cieslak, 319 Ill. 221, 224.) Therefore, to constitute the offense of assault with intent to rape, the defendant (1) must be guilty of assault, (2) have an intent to have carnal knowledge of the female, and (3) have a purpose to carry this intent into effect by means of force and against the will of the female. (1 Wharton, Criminal Law and Procedure, p. 664.) The proof of a mere assault and battery however aggravated it may be, without the intent to rape, will not warrant a conviction of assault with intent to rape.
Ann Diebold testified that about 2:10 P.M. on November 20, 1961, she left her home to go shopping but instead went to a tavern where she stayed and drank with friends, including James Michaels, until approximately 5:10 P.M. While there, she drank from four to six drinks and upon leaving she drove south on Milwaukee Avenue behind Michaels's car. She stated that at this time she had her purse, which contained, among other things, $370 in cash and a cigarette lighter. As she was attempting to pass Michaels's car, she bumped his fender.
The defendant, who was a radio repairman, employed part-time by the Wood Dale police department, and whose car was equipped with a large radio antenna, observed this accident and caused Miss Diebold and Michaels to stop. According to Miss Diebold and Michaels, the defendant showed them a policeman's star, an identification card from the Wood Dale police department (obtained by defendant a few years earlier when he was a dog catcher serving under appointment by the chief of police), and informed them that he was a police officer. The defendant, they testified, informed Michaels that he could leave but told Miss Diebold that she was under arrest and would have to come with him. While the defendant was talking to the prosecutrix, Michaels moved her car which was blocking traffic. Upon observing this, Miss Diebold began to shout and accuse Michaels of stealing her money.
Miss Diebold testified that the above accident occurred at 5:30 P.M. and that shortly thereafter, while she and the defendant were driving to the police station in his car, she began to cry because she had never been arrested before and was afraid that she would lose her job. The defendant, she claimed, then stated that he would take her to her employer, but instead pulled down a side road, stopped and asked her if she would like to get out of the trouble. She said she would and the defendant then slid across the seat towards her and asked her to give in to him. She further testified that when she refused he began to wrestle with her, got on top of her, attempted to pry her legs apart, unbuttoned his pants and told her to "take it". When she attempted to get out of the car, he told her to "take the finger", which she did. He also attempted to put his hands down the front of her blouse, punched her twice on the face and opened the door, threw her out and drove off. The defendant, she testified, kept her purse in the car, intentionally kicking it to the floor when she tried to reach it.
She further testified that she was in the defendant's car for a total of ten to fifteen minutes and that she lay in the road a minute and then got up. A car stopped but the driver refused to help and at his suggestion she walked two blocks to a school house and called the Cook County sheriff's office. She testified that this call was made at 7:00 P.M. and she could not recall what occurred between this call and the time she had left the defendant's car, around 5:45 P.M. Deputy sheriff Craig investigated the complaint and observed Miss Diebold at 8:00 P.M. and noted that she was crying, her clothes were disheveled, her clothes were wet and dirty with mud, her eyes were swollen from crying, her clothing was torn on the left side, her face was swollen near the left eye, and there were various bruises on her face, left cheek and jaw. It does not appear that Miss Diebold was examined by a physician.
On November 22, 1961, Miss Diebold and Michaels went to the Wood Dale police station and observed the defendant who had been called to repair a radio. They there identified the defendant as the person who stopped them and Miss Diebold stated that the defendant was the man who robbed her. She apparently did not at this point state that the defendant attempted to rape her. The defendant stated that he had never seen them before, but a black notebook in which he had written Michaels's name and address was found in defendant's car. The defendant later admitted to deputy sheriff Lamphere that he stopped Michaels and Miss Diebold. Lamphere testified that the defendant also mentioned that he had at first arrested Miss Diebold, but had later let her go because he felt sorry for her.
The defendant at the trial admitted that he stopped Michaels and Miss Diebold and stated that he never recognized them at the police station two days later because Michaels was wearing a policeman's coat and Miss Diebold was dressed differently and her face was so bruised that she appeared differently than when he last remembered. He further testified that Michaels originally desired to have Miss Diebold arrested because she was drunk and had hit his car. Later he changed his mind but Miss Diebold then accused Michaels of taking her money. Defendant testified that he was taking Miss Diebold to the police station because she was too drunk to drive herself and because she desired to press charges against Michaels for stealing her money. However, on the way to the station she decided not to get Michaels into trouble and asked defendant to drive her to Wheeling. He refused, stating that he was too busy with service calls and that he did not care about the accident as he was not a policeman but just a police communications officer. She then got angry and told the defendant that he had said he was a cop. She began to use profane language and finally the defendant stopped his car and when she refused to get out he kicked her out onto the ground.
Sometime between the arrest of the defendant on November 22 and the date of the trial, Miss Diebold prosecuted Michaels for the theft of her money and he then admitted taking $12 from her purse.
The defendant offered various witnesses, including a former chief of police of Wood Dale, who testified that defendant's reputation for being a peaceable and law-abiding citizen, for truth and veracity, and for morality were all good. His employers testified that on November 20, 1961, the defendant called in regarding service calls at 5:50 or 5:55 P.M. and at 6:15 P.M.
Sergeant Luellen of the Wheeling police department testified that he was in charge of the records and had brought with him, pursuant to subpoena, the records pertaining to the convictions of Miss Diebold. He testified that when she was previously arrested on a traffic charge, she was insulting and stated that she would get even. On motion of the prosecutor, Sergeant Luellen's testimony was stricken as was the defense counsel's question, directed to Luellen, "Are you familiar with the general reputation of Miss Ann Diebold as to morality and chastity?"
The aforesaid testimony of Miss Diebold as to what occurred inside the car, if accepted at face value, does in our opinion establish the elements of the offense charged and can hardly be classified as simply a rather vigorous attempt on the defendant's part to persuade the intended victim to have sexual intercourse as suggested by defendant. The responsibility of the defendant is not affected by the fact that after allegedly ...