Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. NATHAN M. COHEN, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
The defendant, Clarence Porter, was found guilty of rape after a bench trial and was sentenced to the penitentiary for a term of not less than five nor more than twelve years. In this appeal defendant contends that the element of force was not established and that his identification was not sufficiently positive.
The complaining witness, Della Beasley, testified and stated that she was nine years old and that on the evening of May 13, 1964, she was baby-sitting in the apartment of Minnie Harris where the alleged rape took place. The remainder of her testimony in relevant part is as follows:
Miss Minnie left the basement apartment with Joe and Clarence Porter. I see Clarence Porter here in court. After they left, Clarence Porter came back. Clarence Porter came back, one of Minnie's children opened the door. He took me in the bathroom and laid me on the floor. He told me if I don't shut up he'd choke me. He got on top of me. Then I told him to get off and he wouldn't get off. Then he took me in Miss Minnie's room. He laid me on the bed. Then I told him to get up and he wouldn't get up. Then he pee'd on me. When I went to Minnie's apartment I did not have any underclothes on. He put his stick in me and I told him to get off and he wouldn't get off. Then I heard somebody knocking. The little girl said, "Who is it?" And he said, "Shut up." Then he got up and ran out the back door. I went in the kitchen and locked the door. Then I came back and then I told Miss Minnie what happened. She called the police. I went to the hospital. I never saw Clarence Porter before that night. The man who came back was the man who walked out with Minnie and Joe, and that is the same man that's in the courtroom. I had blood on me that day. It was not on my clothes. The night I was baby-sitting, there was blood on me after Clarence Porter came back. There was no blood on my clothing that night. My dress was up.
On cross-examination she stated that:
All three of those people left the apartment about two hours after I arrived. It was dark when I arrived at the apartment. While I was in the apartment I was playing in the bedroom with Minnie's children. The three adults stayed in the front room. I did not enter the front room at all. When I first entered the apartment, I went in the front room and remained for a minute. Then Minnie told me to take care of the children. I left the room. I did not return to the front room again.
I had never seen him [defendant] before that day. I took a real good look at him that day. I don't know what he had on; what kind of clothes. He had a mustache.
The witness offered no response to questions on cross-examination as to the reason she was sure that it was the defendant who committed the alleged rape and after repeated questioning finally stated that it could have been a man other than Clarence Porter. However, on redirect examination the witness again identified Clarence Porter as the assailant.
Minnie Harris testified and stated that:
On May 13, 1964 I lived at 708 South Central Park. In my home with me at that time were Joe Andrews, and a boy named Clarence Porter. Also, Della Beasley, and my other children. Della Beasley arrived after Clarence Porter arrived. Clarence Porter had on black pants, white shirt, green sweater, and a brown coat. He did not take his sweater off while I was there. I went to the store while Clarence Porter and Joe Andrews were in my apartment with my children. I returned from the store and later left again with Joe Andrews and Clarence Porter. When we left together, Clarence Porter had the green sweater on. I saw the sweater again wrapped up in the blanket. And there was some blood in the bed and the bed was wet, and I found her slip [referring to Della] halfway up in the bed mattress and it was wet and had some blood on it.
Earlier that evening, I left the apartment [at approximately 9:30 p.m.] with Porter and Andrews. I went over to a friend of mine to pick up a dress. We went up to the corner, like a store and a tavern together, so we made a phone call to call a cab and so Clarence and Joe Andrews went on with me to pick up the dress, so Clarence stayed on the corner. When I returned home, I saw Della Beasley. All my kids were on top of her, she was wet and I took her in the bedroom and looked to see if there was anything wrong with her; I looked at my little girl, nothing was wrong with her; then I looked at her and seen she was wet and her panties was bloody. I called the police.
The witness also stated that she and Joe Andrews left the defendant at about 9:40 p.m. and that they returned home at approximately 10:00 p.m.
Joe Andrews testified and identified the sweater described by Minnie Harris as belonging to the defendant. He also stated that defendant was wearing the sweater at the home of Minnie Harris and that he never saw him take it off. Andrews testified that he, Minnie Harris and defendant left the apartment of Minnie Harris at about 8:00 p.m. but did not know at what hour they returned thereto.
Ethel Beasley, mother of Della, testified that on the date in question Della requested that she be allowed to baby-sit for Minnie Harris and that she took Della ...