Appeal from the Circuit Court of Champaign County; the Hon.
BIRCH E. MORGAN, Judge, presiding. Judgment on the first count is
affirmed. Judgment on the second count is reversed.
Rehearing denied February 3, 1966.
January 11, 1966. Supplemental opinion,
Defendant appeals from a judgment of conviction following a bench trial upon an indictment which in one count charges rape, and in a second count charges burglary with intention to commit rape.
It is urged that the judgment should be reversed for failure to prove the defendant guilty beyond a reasonable doubt in, (1) the identification of the defendant as the one committing the offense, and (2) that rape was, in fact, committed. Finally, it is urged that the defendant was denied constitutional due process and equal protection of the law because of the failure to have made a stenographic report of the proceedings at the preliminary hearing upon the charges, and that by reason of such failure the defendant was unable to impeach the complaining witness.
The questions of proof of the elements of the offenses beyond a reasonable doubt arise under the following matters of evidence: The complaining witness was a 23-year-old unmarried woman employed at the Chanute Air Force Base. She resided alone in a house trailer with the address 218 West Grove in Rantoul, Illinois. This house trailer was one of a number of such trailers situated in a park or area devoted to such housing. The complaining witness was employed at the Chanute Air Force Base and the defendant is an enlisted man stationed at such base, but all of the evidence was that each was unknown to the other prior to the time of the offense charged.
The State's evidence of the occurrence is that at about 3:00 a.m. on July 10, 1964, the complaining witness heard a noise outside the trailer window at the head of her bed, then a noise at the locked screen door and that a man entered the room. There was no light illuminating the room, but there was a light in the bathroom. The details of the testimony concerning the conversation and of the struggle that ensued are not essential to the issue, except to say that there was testimony as to the incidental slapping and choking as a part of the assault upon the complaining witness, and that the intruder fled when she managed to scream.
The witness thereafter turned on the light and discovered a wallet on the floor. This proved to contain the airman's identification card and other documents of the defendant. She called the Rantoul police and Sergeant Baxter arrived promptly. The evidence is that while making the telephone report, the witness only said that a man had broken into her trailer and that she had his wallet. The testimony of Sgt. Baxter is that immediately upon his arrival the witness gave him the wallet and stated that she had been raped, that he examined the bedroom and observed that it was in disarray and that articles had been knocked to the floor. He observed the condition of the door and testified to details which justify the conclusion that it had been forced. Sgt. Baxter also testified that he and the witness looked at the defendant's photograph on the identification card and that the witness stated that the intruder was the man whose photograph appeared. She described him as blond, about 6 feet tall, wearing dark trousers with a light colored shirt. The identification card described the defendant as being 5 feet 10 inches tall with red hair.
Baxter testified that following a short examination of the premises he suggested that the witness have a medical exam and that she immediately agreed, stating that she would dress and that a neighbor would bring her to the police station in ten minutes. Baxter then left and arranged for a physician to make the medical examination. He testified that the witness arrived at the police station almost at the same time as he, Baxter, did.
The doctor testified, in summary, that his medical examination was not conclusive as to the fact of rape, that he found no trace of spermatozoa, that the hymenal range was not intact but that he observed no fresh injuries to the hymen, and that he observed no contusions either in the genital area, or about the face and neck where complaining witness had testified to being slapped and choked.
Baxter testified that following the medical examination of the witness, he and Sergeant Rarrick of the Air Force Police returned to the trailer and examined the area for possible evidence. The testimony is that directly beneath the bedroom window of the trailer were discovered "numerous prints . . . measured 2.3 inches by 2.7 inches in the bare earth." These prints were photographed at about 8:30 a.m. on July 10th and the photographs were admitted into evidence. Without the details of the search, Baxter and Rarrick arrested the defendant at about 5:10 a.m. in the vicinity of an entrance to the Air Force Base. At that time the defendant was carrying several phonograph records. He was dressed in a light blue knit "T" shirt with colored one inch dark blue stripes upon the front and dark colored trousers. There was a walking cast on his right foot.
The evidence is that at the time of making the arrest, Baxter asked the defendant if he had been in the area of 218 West Grove prior to the time of the arrest. Defendant answered that to the best of his recollection he did not think so. In reply to a question, defendant stated that prior to the arrest he had just been walking around. Baxter testified that, in his opinion, the defendant had been drinking but was not intoxicated at the time. Defendant was asked for his wallet and he stated that he had apparently lost it and that he had first noticed the loss when he was asked for it at the time of the arrest.
During the day of July 10th the walking cast was removed at the Air Force Base and such cast was admitted into evidence. The "heel" of the walking cast was not admitted into evidence, as it appears that it was not identified or marked for identification at the time of removal. The defendant testified that the "heel" present in court and sought to be admitted into evidence was similar to the one he was wearing on the date in question. It appears that on the same date a new cast was applied and that the defendant continued to wear it for a month or more.
The substance of defendant's testimony, as well as of his statements made to the police, is that on July 9, 1964, he went off duty at approximately 4:30 p.m., that he wrote a letter to his wife and then went to the Enlisted Men's Club and had some beer, whiskey and coke, that he remained there until 8:00 or 8:30 p.m. when he called a cab and went to a tavern known as the Caravan, mailing the letter to his wife en route. He stayed at the Caravan until it closed at about 1:00 a.m. While there he struck up an acquaintanceship with some Air Force men, several of whom were commissioned officers. He bought a bottle of whiskey and joined these men as they proceeded to a party that was held at the residence of Lieutenant Wetter at 401 North Tanner Street. The defendant left this address and was taken to the Air Force Base to procure some phonograph records and returned to the party.
Lt. Wetter verifies the fact that the defendant left and returned with some phonograph records and that the defendant left alone at about 2:45 a.m. on foot, so far as the witness knew. The testimony of the defendant is that as he left someone offered to drive him to the base but that he said that he would walk. The defendant testifies that all that he remembers after leaving is that he was walking around and through Rantoul until he was arrested, and that it must have been raining, or that it ...