Writ of error to the Criminal Court of Cook County; the Hon.
ABRAHAM W. BRUSSELL, Judge, presiding. Judgments affirmed.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Defendant, Robert S. Hartnett, was found guilty by a jury and sentenced by the court to a term of not less than ten years and not more than twenty-five years for the crime of burglary, and for a term of not less than ten years and not more than fourteen years for the crime of assault with intent to commit rape, the sentences to run concurrently.
The defendant was charged in two separate indictments with the crimes of burglary and assault with intent to commit rape, which were consolidated by agreement of the parties.
He prosecutes this writ of error contending the following: (1) There was insufficient evidence to sustain the charges of assault with intent to commit rape and of burglary, and that the state did not prove defendant guilty beyond all reasonable doubt; (2) the state should have been required to elect to proceed on only one indictment; and (3) the giving of instructions numbered 8, 11 and 17 and the refusal to give defendant's instruction number 5 were erroneous and prejudicial to the defendant.
Iris Smith, age twenty-two, was asleep in a bedroom in her parents' home at 500 Melrose Street, Chicago, Illinois, at approximately 3:00 a.m. on August 4, 1961. Her two younger sisters, Karen and Ronna, occupied a second bedroom separated from Iris' bedroom by a small bathroom. Mr. and Mrs. Smith slept in a third bedroom attached to that of their younger daughters. Iris Smith had gone to sleep wearing a pajama top and a pair of pants. She awoke to observe a man, subsequently identified as Robert Hartnett, holding a butcher knife standing by the foot of her bed in front of the bathroom door. Her bedroom was illuminated by a 100-watt bulb in the adjoining bathroom. At the time of the assault the bathroom door was open. The man walked over to the bed and put the knife at her chest and ordered her to do as he said. She begged him to leave and not to hurt her. He walked a few feet away, looked out a door leading to the kitchen and returned to the bed. She told him to put the knife away. He put the knife into his right rear pocket. The man pulled the woman's panties off and unbuttoned her pajama top. He then stood up, took the knife out of his pocket and opening his pants, took out his penis. Again he walked to the door, looked out and returned to the bed. Iris was again threatened with the knife and in response to her pleading he again put the knife in his right rear pocket. The handle of the knife was in the pocket with the blade extending above the pocket. The man then climbed on top of her, forced his way between her legs and used his hands to rub his penis against her vagina. Iris reached over his back with her right hand and pulled the knife out of his right rear pocket and plunged it into his left shoulder. She pulled the knife out immediately and as he jumped up she fell on the floor on top of the knife and started to scream. The man ran "out the kitchen door." Iris then ran to her parents' room and told them she had just killed a man. They said that it must have been a nightmare. Iris then went back to the bedroom and returned with the bloody knife.
The police were called and arrived within a few minutes. A description of the man was given to the police by Iris, which description was transmitted city-wide on police radios. Iris described her assailant to the police as being between 5'7" and 5'10" tall and weighing between 150 and 170 pounds. She is 5'5 1/2" tall and weighs about 125 or 126 pounds.
She had a slight cut on her little finger after it was all over. A police officer wrapped up the knife and took it away. There was blood on the knife blade from the handle to the tip. The knife was 12" long.
Officer William Carroll testified that at about 4:15 a.m. the same morning he and his partner, James Janda, went to 5930 West Lawrence Avenue in response to a call of a burglary in progress; going to the rear of the building near a garage they heard a moan and found the defendant lying face down on the sidewalk. He was wearing a white T-shirt, gray pants and blue-black oxford shoes. The man found by Officer Carroll is the defendant in this case. He told the officers that he had heard glass breaking, and, coming down to investigate, had walked to about where he was lying when something hit him. They noticed a large red stain on his left shoulder, the outer edges of which were dry. They checked his car and found the engine warm and radiator hot. His hair was neatly combed.
Officer James Janda testified that the defendant told them that he had been asleep in bed when, hearing glass break in the stairwell below the back porch of his apartment, he went down to investigate. When he reached the end of the garage by the alley he was either shot or stabbed. There was a blood stain on his left shoulder about 10" in diameter. Blood was seeping through the hole. Lifting the T-shirt he saw a hole about 5/8 to 3/4 of an inch which was located about 1/2" to the right of the left shoulder blade, and about 6" down from the collar bone or top of the shoulder blade. Other police officers arrived and after further quizzing he told them that he had been to Sears, Roebuck shopping and had arrived home about 9:30 p.m. on August 3rd; that he was in bed from 10:00 p.m. until he heard glass breaking.
Officer John O'Brien arrived at 5930 West Lawrence Avenue, pursuant to a burglary in progress call, with his partner John O'Connor. He testified that he was the one who tied defendant in with the description of a man wanted in the 38th District. He also testified that defendant's hair was neatly combed. He further testified that he found a broken window in the doorway at the rear of the building.
Iris Smith identified the defendant in a lineup at about 7:00 a.m. on August 4, 1961. The defendant was taken to Northwest Hospital for his wound and from there he was hospitalized at the Bridewell Hospital.
Detective Harold P. Thompson testified that he saw the defendant on August 9, 1961 when he was being interrogated at the Sex Bureau by Assistant State's Attorney Pat Egan. The defendant then stated he had been shopping at Sears, Roebuck at Irving and Milwaukee. He left there about 9:30 p.m. and went to Sheridan Road and Irving Park where he went to several taverns. In the Avalon Tavern he met a woman at the bar and bought her a drink. They talked and she told him that she wanted to go to a bar in her neighborhood. They left and went to a tavern located about one block south of Belmont Avenue on Broadway or Clark Street. He became ill at this tavern and vomited in the washroom.
A doctor testified that he had examined the defendant on August 4, 1961 and described the wound he saw as at the angle of the scapula, overlying the third rib. That he saw a clean edged incised wound of about one inch in length. That there was a partial collapse of the left lung, and that his diagnosis was a stab wound.
Detective Walter Vallee testified that he interviewed Iris Smith and then took her to the "show-up." He conducted the "show-up." He subsequently interviewed the defendant and asked him why he had at first stated he was at home and later admitted that he was not at home, and ...