Writ of error to the Circuit Court of Cook County; the Hon.
DAVID A. CANEL, Judge, presiding. Affirmed.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
The defendant, John Washington, was indicted for the crimes of rape and robbery, found guilty in a bench trial, and sentenced by the Criminal Division of the Circuit Court of Cook County to serve a term in the Illinois State Penitentiary of 20 years for rape and 5 to 10 years for robbery. The sentences were to run concurrently. From that finding and sentencing the defendant brings this appeal, and he urges as grounds for reversal (1) that the trial was conducted in a prejudicial manner; and (2) that the evidence was not sufficient to support a finding of guilty. It therefore becomes necessary for this court to review the evidence.
Mrs. Janna Williams, the victim, testified that she was on her way home from work at the Post Office at about midnight on December 19, 1960; that as she entered the hallway to her residence at 7203 Yale Avenue, Chicago, the defendant grabbed her and struck her in the face; that she screamed and the defendant again struck her and took her to the back of the building, threw her on the ground, tore off her underwear and had intercourse with her. She testified that he then took her purse and asked if she had any money; that he took her wallet out of the purse, took her change purse out of her jacket pocket, and told her not to get up until he had left. She stated that he had taken a $5 bill, five singles and about thirty cents; that after he left she got up, went to her apartment on the third floor, and was let into the apartment by her mother. Police officers were downstairs by that time, and they were told to come up to the third floor.
Police Officer Utter testified that when he came to the door of complainant's residence he found a woman's shoe; that when he went to the third floor he was told by the complainant what had happened to her; that her clothing was mussed up and she had marks on her face; that he noticed her shoes were missing and that the back of her coat was soiled. The police took her down to their car, then went to the back of the building and gathered up the articles that were strewn there a bag or purse, its "contents," and her pants. The police stated that the scene of the incident was a "basement landing" which was covered by an overhead, on which particular spot no snow had fallen, although fresh footprints were found at the rear of the building in the snow which had recently fallen. The police followed the footprints from the scene of the crime across the street [Yale Avenue] into a gangway to the building where the defendant lived. They found a woman's pink wallet and change purse in the gangway.
The police then went to the apartment of the defendant and when they saw him he was wearing a brown zippered jacket. When they searched him the police found a $5 bill and five singles on his person. Officer Murray testified that defendant's shoes were very wet. When they told the defendant to get his hat he replied that he didn't wear a hat but wore a "bandanna" on his head. The complainant had testified that the man who accosted and raped her wore a scarf on his head. The complainant was taken to Englewood Hospital for examination, and the defendant was taken directly to the police station; later the complainant came to the police station and identified the defendant in a lineup. Defendant's trousers were taken from him, inventoried and sent to the Chicago Police Crime Laboratory, together with a handkerchief taken from the pocket of the trousers.
At the trial a microanalyst employed by the Chicago Police Crime Laboratory testified that defendant's trousers had a white crust on the front of them which, when examined, was found to be a seminal fluid stain of dead sperm.
The defendant testified at the trial that on December 18, 1960, the night in question, he had shot pool at 63rd and Normal, having arrived there at about 9:30 p.m.; that he left there and took a bus to 69th Street where he went into the 69th Street poolroom and played pool until about 11:20 or 11:30; that thereafter he walked to his home at 7724 Wentworth Avenue; that it was snowing and he took about 10 or 12 minutes to get to his home; that on his way he saw two officers in a police car. He testified that he was wearing a gray overcoat, but nothing on his head. He stated that the trousers he was wearing had spots on them. He further testified that at the time he was arrested he had a five-dollar bill and six one-dollar bills in his pocket; that the officers came to his house about half an hour after midnight; that they asked him what kind of coat he was wearing and he told them it was a gray overcoat, and added that he had three or four overcoats, including one which was a tannish brown; that his shoes were dry at the time and that he had on the same shoes he had been wearing earlier that evening. He denied raping or robbing the complaining witness and denied telling the officers that he wore a "bandanna" on his head instead of a hat.
Johnella Burton testified on behalf of the defendant that she saw him at his house on the 18th of December at about 11:00 p.m.; that she and the defendant had come from a bowling alley to his house; that she left the defendant the following day about noon, and that she had noticed there was a stain on the front of his trousers.
The defendant first argues that the court allowed private investigation and private knowledge to affect the determination of the case and he bases that on the fact that at the beginning of the trial the defendant had requested the court to ask his grandfather or his family if he could get a paid lawyer and the court stated that the defendant's family had told him they had no money. The public defender had been previously appointed for the defendant, and when called for trial the defendant asked for a lawyer from the Bar Association, which request the court denied. The defendant in this court argues that the statement of the court with reference to the inability of the defendant's family to pay for a lawyer indicated that the court must have made some private investigation. That, of course, does not follow at all. The court had previously tried and acquitted the defendant on a different charge and could easily have obtained the information in question at the time of the previous trial. See People v. Brown, 64 Ill. App.2d 203, 212 N.E.2d 275.
Defendant also urges that the fact that the court refused to substitute an attorney from the Bar Association for the public defender and to continue his trial, indicated that the court was prejudiced against him. There was nothing in the record which would indicate that the court's refusal to continue the case further or to appoint a different attorney was an abuse of his discretion. People v. Clark, 9 Ill.2d 46, 137 N.E.2d 54; People v. Jones, 51 Ill. App.2d 391, 201 N.E.2d 194.
There is nothing in the record to indicate that the court showed "an abrupt, hostile manner towards the defendant." As a matter of fact, after the discussion with the court concerning defendant's lawyer, when defendant was properly advised by the court as to his right to a jury trial, the defendant stated, "I know you are a fair Judge because you tried me then. I knows that myself. I will waive the jury." The court again stated the defendant's constitutional right to a jury trial, and the defendant signed a jury waiver. The court made various remarks during the time the evidence was being heard, none of which went beyond the proper functions of a trial court in a bench trial. In People v. Wesley, 18 Ill.2d 138, 163 N.E.2d 500, the Supreme Court said:
". . . A trial judge has the right to question witnesses in order to elicit the truth or to bring enlightenment on material issues which seem obscure.
"The propriety of judicial examination is determined by the circumstances of each case. . . ."
In that case, as in the instant case, the trial judge was justified in making ...