Appeal from the Circuit Court of Hamilton County; the Hon.
RANDELL S. QUINDRY, Judge, presiding. Affirmed and remanded with
The defendant, Noel Evrard was tried by the Court, without a jury, on the statutory charges of rape (Ill. Rev Stats 1963, c 38, § 11-1) and taking indecent liberties with a child under the age of 16 years. (Ill. Rev Stats 1963, c 38, § 11-4.) The Court found the defendant not guilty on the charge of rape, guilty on the charge of indecent liberties, entered judgment on its findings, and sentenced defendant to imprisonment in the penitentiary for a term of not less than one year nor more than three.
Defendant does not deny the commission of the act upon which the charge of indecent liberties is based. He contended at the trial, and contends here, that he was so intoxicated at the time of the occurrence as to be incapable of forming the specific intent essential to the crime charged. In the alternative, defendant urges that if the judgment of the trial court be affirmed, the sentence imposed is so harsh as to require its reduction by this Court. (Ill. Rev Stats 1963, c 38, § 121-9.)
At the time of the occurrence defendant was thirty years of age, married, and the father of two children who resided with him and his wife. He has two children by a prior marriage, and is contributing to their support.
On Friday, September 20, 1963, he worked from 4:00 p.m. to 12:00 p.m. as a shuttle operator at Freeman Coal Co. near Marion, Illinois. He arrived home at approximately 1:00 a.m. on Saturday, September 21, 1963, drank "a couple of beers" and went to bed. His brother came to his home at about 1:30 a.m. and suggested they go fishing. They had several drinks while they discussed the matter and then left defendant's home. Instead of going fishing, they stopped at a night club where defendant drank "five, six or seven" beers. Defendant's brother had a six-pack of beer in his car at the time, and they bought more at the club. Shortly after leaving the club, they stopped at the side of the road and drank all the beer in the car.
At approximately 7:30 a.m. defendant and his brother arrived at the home of Edward Halley, father-in-law of defendant's brother. Mr. Halley offered each of them a glass of wine. Defendant drank both glasses of wine. Defendant testified there was a container of wine in the Halley smoke house, a rubber hose was connected to the container, he sat down, siphoned wine from the container and drank it, and remembers nothing from that time until much later that afternoon.
At about 9:30 a.m. defendant's brother discovered that he was out of cigarettes. Mr. Halley's daughter, the complaining witness here, then 15 years of age, volunteered to ride her bicycle to the store approximately a half-mile away and get him some. Defendant offered to drive her to the store, and defendant and the complaining witness left in defendant's brother's car.
The record is not too clear as to the sequence of events, but sometime after leaving the Halley home, defendant drove the car into a ditch. Sometime during the morning, and before their return to the Halley home, defendant had sexual intercourse with the complaining witness, however, whether this occurred prior to the car's being driven into the ditch, or while it was in the ditch, cannot be ascertained from the testimony.
[1-3] Ch 38, sec 6-3, Ill. Rev Stats 1963, provides that a person who is in an intoxicated condition is criminally responsible for his conduct unless his condition of intoxication negatives the existence of a mental state which is an element of the offense. Intent is an essential element of the crime charged. People v. Freedman, 4 Ill.2d 414, 123 N.E.2d 317. A defense based upon section 6-3, (supra) is an affirmative defense. (Ill. Rev Stats 1963, c 38, § 6-4.) The defendant having raised the issue of lack of intent, the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense. (Ill. Rev Stats 1963, c 38, § 3-2.)
This case was tried to the Court without a jury. The Supreme Court has repeatedly stated that the trial judge, as trier of the facts, who saw and heard the witnesses and observed their conduct and demeanor while testifying, is in a better position to determine their credibility and determine the weight to be accorded their testimony, than is the reviewing court. The People v. Sudduth, 14 Ill.2d 605, 153 N.E.2d 557. The record supports the finding of the trial court that the defendant's intoxication was not so great as to exclude his having the specific intent essential to the crime, and under such circumstances we will not substitute our judgment for that of the trial court. The People v. Cozzie, 397 Ill. 620, 74 N.E.2d 685.
We consider now defendant's prayer for reduction of the punishment imposed by the trial court. By legislation approved August 14, 1963, effective January 1, 1964, the General Assembly enacted the Code of Criminal Procedure of 1963. Section 121-9 (Ill. Rev Stats 1963, c 38, § 121-9) empowers a reviewing court on appeal to reduce the punishment imposed by the trial court. This provision is new in Illinois, and introduces a substantial change in the law of this State. Prior to the effective date of this legislation, a reviewing court could not reduce a sentence if it fell within the maximum limits set by statute. People v. Calhoun, 22 Ill.2d 31, 174 N.E.2d 166.
Section 1-7 of the Criminal Code of 1961 (Ill. Rev Stats 1963, c 38, § 1-7), provides that upon conviction, the court shall determine and impose the penalty in the manner, and subject to the limitations therein imposed. The statutory penalty for the crime of indecent liberties with a child is imprisonment for not less than one year nor more than twenty. (Ill. Rev Stats 1963, c 38, § 11-4.) Under the provisions of Section 1-7 (supra) and Section 117-1 (Ill. Rev Stats 1963, c 38, § 117-1), this defendant is eligible to be admitted to probation. Confronted with this range of permissible punishment the determination of the penalty to be imposed is extremely difficult. The court must strive to render a judgment which will adequately punish the defendant for his misconduct, safeguard the public from further offenses, and reform and rehabilitate the offender into a useful member of society. In order to select an appropriate sentence, it is essential that the court be in possession of the fullest possible information concerning the defendant's life and characteristics. The People v. Spann, 20 Ill.2d 338, 169 N.E.2d 781. To that end, the Criminal Code contains the following provisions:
"Mitigation and Aggravation.
"For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider ...