Appeal from the Circuit Court of Cook County, County
Department, Criminal Division; the Hon. EDWARD E. PLUSDRAK,
Judge, presiding. Affirmed.
MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 16, 1965.
This is an appeal by defendant, James Reynolds, seeking reversal of his conviction for rape following a bench trial in the Circuit Court of Cook County. He was sentenced to imprisonment for a term of 10 to 30 years.
Immediately after judgment was entered on the finding, the court denied oral post-trial motions for a new trial and in arrest of judgment. Thereafter written motions for judgment notwithstanding the findings and for a new trial were also denied.
The defendant contends (1) that penetration, a necessary element in a prosecution for rape, was not proven beyond a reasonable doubt, either by direct or circumstantial evidence, and (2) the testimony of the complainant, which was not corroborated, was insufficient, standing alone, because such testimony was not clear and convincing and the defendant denied the charge.
Frances DeMar, age 10, the victim, testified that she lived with her mother, a 7-year-old brother and two sisters, ages 2 and 3, in a second floor apartment located at 4460 South Shields, Chicago. She was in the fifth grade at the time of the attack. She had known the defendant for about one year before the commission of the offense. The defendant had been a regular overnight visitor to the apartment, and on the occasion of such visits he had occupied the same bed with her mother. Frances occupied a bedroom with her two sisters adjoining her mother's bedroom.
Frances related the following version of the alleged rape and the occurences leading up to it:
On the evening of November 16, 1963, the defendant dined with Mrs. DeMar and her children and, afterwards, joined Mrs. DeMar in drinking intoxicating beverages. Later that evening, Mrs. DeMar retired. The younger children then went to bed, and when Frances retired the defendant was reading "comics" in the dining room. She awakened while it was still "dark outside," went to the bathroom and turned on the light. After she had used the toilet, the defendant entered the bathroom, closed the door and threatened to kill her. The defendant began choking Frances, placed her on the floor of the bathroom and removed her pajamas. The defendant was dressed in a shirt and trousers, with the trousers open, exposing his "underpants." The defendant assumed a kneeling position in front of her, spread her legs apart and placed himself in between her legs. He started choking her again and then she felt him jumping up and down by her "privates" or "crotch."
Frances further testified that she then went to her bedroom and the defendant went into her mother's bedroom. She went to sleep, and, when she awakened, early in the morning, she went into her mother's room and got in bed with her. Her mother was asleep, and the defendant, at this time, was sleeping on the couch in the dining room. After the defendant left the apartment in the morning, Frances observed blood on her mother's bed in the area where she had slept and also on the crotch area of her pajama pants. When her mother got up, Frances told her "what had happened." Later the same day, the defendant came back to the apartment, talked to Mrs. DeMar in the living room, came into Mrs. DeMar's bedroom where Frances was, went back into the living room and continued talking with Mrs. DeMar and then left. He came back later on and stayed all night. Several days later Frances told policemen that a tall man with a scar, taller than the coat rack in the police station had hurt her. She made that statement on three separate occasions.
The defendant was not a tall man and he had no scar. Frances, however, testified in court that the reason she had described another person, after first accusing the defendant, was that she was afraid because the defendant had threatened to kill her.
Frances further testified that on Thursday, four days after the alleged rape, she was taken to Cook County Hospital. While she was there, she saw the defendant twice. The first time, he came with Mrs. DeMar for a visit. The second time he came with a policeman and Mr. DeMar.
Harold DeMar, the father of Frances, testified that he was married to Frances' mother but was separated from her for several years. On November 21, 1963, four days after the alleged assault, he went to Mrs. DeMar's apartment accompanied by three police officers. He stated that Frances appeared nervous and and cried when asked what was wrong with her. They took her to Provident Hospital, from there to the police station and finally to Cook County Hospital. About two weeks after Frances was admitted to the Cook County Hospital, Mr. DeMar, together with the defendant and two police officers, visited Frances in the hospital. The defendant remained silent after being identified by Frances as the one who had "hurt her."
Dr. John Raffensperger, a pediatrician and surgeon, testified than an external and rectal examination was made on November 21, 1963 of Frances DeMar, and it disclosed a penetrating injury to her vagina that extended into the rectum causing a great deal of hemorrhage. On November 25, 1963, he performed an operation upon Frances DeMar, repairing the damage to her vagina and rectum. It was his opinion that the depth of the penetrating injury was from 6 to 7 inches and that the cause was due to an "assault."
Officer Clarence Moore testified that he saw Frances DeMar on November 23, 1963, and that he arrested the defendant on December 10, 1963, after being informed on December 9, 1963, by Mr. DeMar that his daughter had named ...