Appeal from the Circuit Court, Twentieth Judicial Circuit, of
St. Clair County; the Hon. QUINTEN SPIVEY, Judge, presiding.
Reversed and remanded.
Defendant appeals from a conviction of rape in the Circuit Court of St. Clair County, Illinois.
He contends that the evidence does not support a finding of guilt beyond a reasonable doubt, that the court erred in allowing rebuttal evidence alleged to be hearsay, and that the People's rebuttal argument was prejudicial.
The complaining witness, Mrs. Jessie Beard, testified that on April 15, 1963, she attended a dance with her husband. At the conclusion of the dance, she and some of her girl companions visited two of the neighborhood taverns in the area, the last of which was one block from her home. After leaving her companions at about 2:00 a.m., she walked toward her home. Soon thereafter she was attacked by a man whom she later identified at a police lineup as the appellant, Kelly Payton, Jr. After an initial struggle in which the appellant seized a gun carried by Mrs. Beard, he forced her at gunpoint to walk to the Intercoastal Paint Company plant where he raped her twice. Then after being alerted by a passerby, he forced her to walk to a set of railroad tracks near the plant. After forcing her to lay her head on the track, he made her get up and walk down the track, firing a shot after her. She walked to a service station close to the tracks and told the night manager that she had been raped and that he should call the police. He testified that her clothes were torn and dirty and that her face was bleeding. She arrived at the station at about 4:00 a.m.
After the police arrived, Mrs. Beard showed them the scene of the crime. The police found a black wallet containing the appellant's identification. It was not weathered, dirty, or wet with dew. Thereupon Mrs. Beard was taken to a hospital, examined, and treated. On April 22, 1963, the appellant was arrested. Mrs. Beard identified him in a lineup shortly thereafter.
At the trial, four alibi witnesses testified on behalf of the appellant. However, after the testimony of two of the witnesses, Moore and Murdock, who testified that they were with the appellant from 2:00 a.m. to 3:45 a.m., Mrs. Beard's cousin, a Mrs. Lodie Mae Swift, testified that she had overheard a conversation between these two witnesses before they testified. She said she heard Moore say to Murdock that "he was going to get paid to come up here and lie; he was going to have to get paid to come up here and lie." The appellant's objection to this testimony on the ground that it was hearsay was overruled. Murdock returned to the stand the following day and denied the statement. Moore failed to appear although contacted by the defense attorney and the State's Attorney's office.
The jury returned a verdict of guilty and the court sentenced the appellant to a term of not less than five nor more than twenty years in the state penitentiary.
Appellant points out numerous inconsistencies in the testimony of Mrs. Beard and other prosecution witnesses. Mr. Beard testified the dance was over at about 1:30 a.m., and Mrs. Beard testified the dance was over about 10:00 p.m. Mr. Beard testified that a white gold ring was stolen from his wife; Mrs. Beard testified that a yellow gold ring was stolen. Mrs. Beard testified that there were four or five men in the lineup; the officer in charge testified that there were only three men. Mrs. Beard testified that the gun was in her bosom and that she did not attempt to use it at the place where she was first accosted; that she did attempt to use the gun when they got to a field. The policeman, to whom she reported the incident, testified that she told him the gun was in her purse and that she attempted to use it when she was first accosted under a street light.
The appellant then relies upon People v. Weisberg, 396 Ill. 412, 71 N.E.2d 671, in which the court held that:
We have held, however, that evidence will be closely scrutinized where it is conflicting, if incompetent evidence creeps in (People v. Rogers, 348 Ill. 322, 180 N.E. 856); or where there is misconduct upon the part of the prosecuting attorney (People v. McLaughlin, 337 Ill. 259, 169 N.E. 206); or if there are other circumstances during the trial of the case which might have the effect of diverting the jury from considering the competent evidence (People v. Gordon, 344 Ill. 422, 176 N.E. 722).
The appellant's theory is, therefore, that even though the weight of the evidence is for the jury to determine, its determination is not final where incompetent evidence is admitted or where improper argument was used. A final determination of this issue must depend upon an analysis of the other issues, for the inconsistencies noted are not by themselves sufficient for reversal.
Lodie Mae Swift, a cousin of the complainant, testified that she was in the court every day since the trial started. She was in the courtroom "this morning" when Arthur Moore testified and was in court when the man immediately before him testified; that she did not know them before; that she heard their testimony "this morning." She testified that when the court recessed she left the courtroom to eat and when she returned she sat "out there." The two men were leaving when she went "out there." When she came to the court that morning she sat on a chair "and then immediately people started coming back there and these two fellows was just as you come downstairs on the two chairs down on the end; the last one who testified, he whispered to the other one, this was before they had testified in the courtroom. They were sitting there. There was about three of them. I overheard a conversation between two of them. The man who did the talking was the man who testified last. He says to the other guy that he was going to get paid to come up here and lie; he was going to have to get paid to come up here and lie. That is what was said by the last man who testified and the other man is the first man who testified."
Payton's counsel: "I will object on the basis of hearsay. We have no opportunity of cross-examination on this; the party isn't a party to this lawsuit or trial. What this witness might quote from other witnesses as saying certainly ...