Appeal from the Circuit Court of Cook County, County
Department, Criminal Division; the Hon. HAROLD P. O'CONNELL,
Judge, presiding. Judgment affirmed.
MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT:
This is an appeal from a judgment entered May 1, 1959, on a jury verdict finding the appellant, Norman Hill, guilty of forcible rape. The appellant asks that his conviction be reversed outright, or in the alternative, that the conviction be reversed and the cause remanded for a new trial, on the grounds that evidence was improperly admitted, that both the prosecuting attorney and the trial judge acted improperly during the course of the trial, and because his guilt was not shown beyond a reasonable doubt.
During the evening of January 31, 1959, the complaining witness, Sharon Eddington, age 19, was a baby sitter for a family in Winnetka, Illinois. A friend of hers, Karon Martin, also 19 years old, was acting as baby sitter for another family in the same community. Sharon's employers returned home about one o'clock on the morning of February 1, 1959, and she then drove her father's car to the house where Karon was staying. When the family for whom Karon was sitting returned home, the two girls drove Sharon's father's car to a restaurant for a snack. When they started for home, after having eaten, they discovered that the automobile they were driving was nearly out of gas and, therefore, stopped at a service station in the vicinity. The girls testified that while they were at the gas station they noticed two men in another car watching them. The gas station attendant who waited on the girls that night testified that he recognized the car. He stated that he had serviced that car several times before and that it belonged to the appellant, but said he did not pay any attention to who was in it that night. The attendant explained that the car he recognized as the appellant's did not stop at the station that night, but only drove through slowly. He said that since he was busy waiting on customers, he did not bother to look to see who was in that car. The girls confirmed the attendant's testimony that the car in which the two men were in did not stop at the gas station, but only drove through.
The two girls testified that the car in which the men were left the gas station before they did. They said they drove north on Green Bay Road while the other automobile went south. As they were driving home, however, they noticed that the car they had observed in the gas station had reversed its course and was following them. The girls drove toward Sharon's home which was on the grounds of the Indian Hill Country Club, her father being employed as the Club steward. The men forced the girls' car off the road and into a snow bank just inside the entrance to the country club.
Karon Martin testified that the car which was following them was blue and white and was either a hardtop or a convertible. She looked at a photograph of the appellant's automobile and stated that it looked like the car the assailants were driving.
Sharon Eddington said during her testimony that there were two metal Vs on the grill of the automobile the two men were in, and that the ends of the two Vs touched each other so as to form a W-like design. When describing the car of their assailants to a policewoman, Sharon stated that the car had two spotlights, one on each side. She also described the car as a Chevrolet hardtop.
A garage mechanic, Harold Koehler, testified that he repaired the starter switch on the appellant's car on or about January 24, 1959, a week before the alleged rape. He described the appellant's automobile as a 1956 Chevrolet convertible. He said the car had two rear view mirrors, one on each side, and that the grill had been altered so that it had only five or six vertical bars with two Vs on them. He stated that the top of the convertible was unusual in that the rear window was enlarged so that it had the lines of a hardtop. He said that from a distance, one might not be able to distinguish this car from a hardtop. Koehler said the Vs on the grill of this car did not form a W, that they were too far apart for that.
Sharon Eddington, the complaining witness, testified that when they were stopped, she locked the doors of the car and turned on the interior light. The appellant then got out of his car and walked to the driver's side of the girls' automobile, according to this witness. Sharon said he forced his arm through the no-draft, or small vent window on her side of the car and opened the door from the inside. He then reached over and opened the door on the opposite side of the car to let in his companion. Sharon said that the defendant's face was but a few inches from hers at this time, and stated that she definitely recognized the appellant as the man who assaulted her.
Karon Martin also testified that the interior light of their car was on, and she too made a positive identification of the appellant as being the man who assaulted Sharon.
The testimony was uncontroverted that it was a cloudy, dark night and that there were no street lights in the vicinity of the place where the girls were assaulted. The girls testified, however, that the headlights of the car of their attackers were on during the assault and that this plus the interior lights of their car furnished enough illumination for them to identify the men. The evidence shows Sharon Eddington was raped. Karon Martin was assaulted, but managed to repulse her attacker.
After the men had gone, the girls went immediately to Sharon's house and told her father she had been raped. Sharon's brother telephoned the police and the girl was taken to the hospital for treatment. A doctor at the hospital testified that he examined Sharon on February 1, 1959, and that her face was bruised, her jaw swollen and her left eye black and blue. He testified that in his opinion the girl had been entered vaginally.
On February 3, the police told the girls they were bringing two men to the hospital for them to identify. The girls testified they went into a room where two men were standing, but could not identify them because the men were standing in front of a window and the sun was shining in the girls' eyes. The girls left the room and asked the police if the blinds could be closed, which request was granted. The girls then re-entered the room and identified the men as their assailants.
A severance was granted for the trial of the two men since the man arrested with the appellant, one Joe Louis Dumas, apparently made statements which would not be admissible against the appellant.
As his first point the appellant urges that it was error for the Court below to admit over objection the opinion of a physician that the prosecuting witness had been recently entered vaginally. There are several cases cited in support of the appellant's proposition; none of them are controlling in the case before us. In two of the cases, People v. Schultz, 260 Ill. 35, 102 N.E. 1045 (1913) and People v. Kwilosz, 368 Ill. 461, 14 N.E.2d 475 (1938), ...