Writ of error to the Criminal Court of Cook County; the Hon.
GEORGE FIEDLER, Judge, presiding. Affirmed.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.
Defendant, Wavery Smith, in a jury trial, was convicted of the crime of rape and sentenced to the penitentiary for a term of 30 to 40 years. He urges reversal of his conviction on the grounds that he was not proven guilty beyond a reasonable doubt; that he did not receive a fair trial, and that the court committed reversible error in refusing to give a certain instruction.
The evidence in the cause reveals that the complainant and her mother were walking in a northerly direction on the east side of the 1500 block of south St. Louis Avenue in Chicago about 2:00 o'clock on the morning of June 5, 1962. They were searching for her daughter who had gone to a show and had not returned home.
Complainant testified that there was no one else in sight when defendant approached them from the rear; that she and her mother separated thinking "he was going to pass on by"; that defendant grabbed her neck with his right hand, and her mother's neck with his left; that he asked them for money, but she told him they didn't have any; that he threatened to kill them if they did not obey him; that he then dragged them into a gangway and made her mother lie on the ground and made her lie across her mother's legs; that her mother was lying on her left side with her legs curved out; that the mother was arranged in a kind of curve on the ground, and that she was straight; that her head was east and her mother's head was ahead of hers. "I was lying across her legs."
Complainant further testified that they begged defendant to leave them alone, but he told them to shut up or they would be killed. He kept pushing her mother's head down. He was on his knees. He lifted complainant's dress and spread her legs with his free left hand. His right hand was still around her neck and contained an unknown instrument which she thought was a knife. He forced her to insert his penis into her vagina. "His penis was in me just a few minutes. I don't think he discharged in me." She estimated the entire incident took about four or five minutes, and then a man appeared with a flashlight and gun.
The mother's testimony as to their initial encounter with defendant was similar to that of her daughter. She stated that when defendant grabbed them her daughter said, "Take your hands off me; you don't know me, and I don't know you." They were forced into a basement, and when the mother tried to escape defendant told her, "You fool with me, if you holler I will cut your neck, . . . I will cut your neck off and leave you lay here." She further stated that he had her lie down on her daughter's feet, but that she did not know what happened next.
About this time Leonard Jackson and his wife Tanzella were in bed in their second floor apartment at 1515 S. St. Louis. Mrs. Jackson testified she was awakened by voices in the adjacent gangway, went to the window, and heard a woman's voice saying, "Please don't do this to me," and "I just have one dollar." She also heard a male voice ordering someone to lie down. She awakened her husband who dressed, told her to telephone the police, and proceeded downstairs carrying a flashlight and his grandson's toy pistol. Prior thereto, Jackson stated that he had also gone to the window and saw a man and two women in the gangway and heard one of the woman say, "I ain't got no money."
Jackson further testified that when he got downstairs one woman was lying on the ground; that defendant was on top of her; that he flashed his light on defendant, and ordered him to stand; that he noticed defendant's pants were open and when defendant started to fasten them, he (Jackson) said, "Don't fasten up your pants. Wait until the officer gets here"; that he heard defendant reply, "This is my old lady. I caught her in a car with another guy." He said he kept defendant sitting on an adjacent bench by pointing his toy pistol at him, concealing its identity by shining his flashlight in defendant's face until the police arrived.
In response to Mrs. Jackson's call officer Steven Moore of the Chicago Police Department arrived on the scene a few minutes later. He testified that he observed complainant and her mother crying; that the mother's coat showed dirt on the left side and the back of complainant's coat was rather dirty; that defendant's clothes were shabby, his pants legs dirty, his pants open, and "you could see his penis."
The officer further stated that he asked complainant if defendant was the man who raped her and that she she replied "Yes"; and that he heard defendant say, "Why don't you tell them the truth? Why don't you tell them who I am? This is my old lady. . . . Hold on, wait a minute, tell them who I am, tell who I am." On cross-examination it was brought out that defendant's pants and shorts had been taken to the Police Department Crime Laboratory.
Complainant had also testified that when asked by officer Moore if defendant was the man who raped her she said "Yes," and further that she had never seen defendant before that night. Complainant was taken directly to Cook County Hospital. At the trial it was stipulated that she was examined and that no sperm was found. Defendant offered no evidence in his behalf.
In contending that the State failed to prove him guilty beyond a reasonable doubt defendant argues (1) that complainant's testimony was inherently improbable, and required that a directed verdict be entered in his favor; (2) that there were discrepancies in the testimony of complainant and her mother; and (3) that the circumstances failed to show that rape had occurred.
Defendant argues that the evidence regarding penetration is insufficient to support his conviction since the weight and credibility of the State's evidence has been impaired by contradictions appearing in the testimony. Some contradictions do appear when comparing the testimony of complainant and her mother. The mother testified that the incident occurred in a basement. However, complainant, the Jacksons and officer Moore all agreed that the correct location was a gangway.
Complainant's mother also testified that she was lying across her daughter's feet. Complainant testified that she was lying across her mother's legs, and the testimony of Mr. Jackson revealed that when he came upon them in the gangway he found defendant on top of complainant and her mother lying on the ground. Defendant points out that the mother testified she did not see the rape. Rather than being contradictory, the fact that she could not view the rape corroborates ...