Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EDWARD R. FINNEGAN, Judge, presiding.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
CHARGE: Attempted rape. *fn2
DEFENSE AT TRIAL: Defendant denied that he committed the alleged offense.
JUDGMENT: After a bench trial the court found defendant guilty and imposed a penalty of three to five years in the Illinois State Penitentiary.
POINTS RAISED ON APPEAL: The sentence should be reduced on a lesser included offense because the only evidence on the offense charged in the indictment was inadmissible.
EVIDENCE: Testimony of State witnesses.
Louise Harris testified that on December 16, 1964, she was walking home from work at about 11:20 p.m., going west on Fulton Street, when she noticed the defendant, Charles Huguley, walking behind her, going in the same direction; that as he walked by her he grabbed her, put his hand over her mouth, and said, "You're going with me." She stated that he then dragged her into a driveway; that she broke away from him twice and started to run, but he grabbed her and hit her each time; that he continued to drag her towards the alley and she fought back, screaming; that he said "Shut up. I'm going to stick you with this knife"; that she did not see the knife. She stated that the defendant hit her on the side of the head, pushed her up against a building; that she struggled with him and he hit her again and they fell to the ground; that he told her to take off the long-line panty girdle she was wearing; that she told him she couldn't take it off lying down, so he let her up, at which time she started running towards the alley, screaming, and he caught her and they again fell on the ground. She stated that about that time they saw a man coming across the driveway with a stick in his hand; that she ran towards him and asked for his help. She further testified that the defendant had crawled away when the man came towards them, and when the complaining witness told the man the direction in which the defendant had gone he started after him, but the defendant managed to get away. The man who came to the witness' aid was Jesse Baxter; he called the police after the defendant got away.
The complaining witness described to the police the defendant and the clothing he was wearing; the police then searched the neighborhood and discovered the defendant and placed him under arrest. That same evening the defendant was identified by both the complaining witness and Baxter in a lineup in the police station.
Jesse Baxter testified that on the evening in question he was sitting in his car when he saw the complaining witness walking on Fulton Street; he saw the defendant coming in the same direction, and he recognized the defendant because he had seen him a week before "following my sister-in-law the night she was attacked " He described the defendant and the clothing he was wearing. He further testified that he, Baxter, got out of his car to see if the defendant was going to bother the complaining witness; that he saw the defendant grab her and pull her into the driveway and across the alley; that he ran across the street to the store of a friend and told them to call the police, then ran after the defendant, picking up a stick on the way. He stated that at first he could not see the defendant and the complaining witness, then saw them fighting; that the complaining witness ran toward him and grabbed his coat, at which time the defendant got away, although Baxter tried to cut him off. He further testified that he identified the defendant in a lineup.
Ronald Mainellis, a police officer, also testified that after receiving a call he went to Fulton and Kedzie where he met and talked with the complaining witness and Baxter; that Baxter went with him to search the neighborhood, and they came across the defendant wearing the clothes as described, and the officer placed the defendant under arrest.
The defendant testified that he was arrested about two doors from his home; that he was taken to the police station where he denied to the police that he had attempted to rape the complaining witness; that after work on the night of December 16 he went to a skating rink with two friends, then to a restaurant, and later to a house where Clarence Williams and his sister, Ora Lee Williams lived, and stayed there until about 11:25 or 11:30, when he started home and was arrested. Ora Lee Williams testified that she had seen the defendant at her home, and that he left at about 11:15.
The point made by the defendant that the evidence was not sufficient to convict him of attempted rape is based on the following development during the trial. The complaining witness had testified that when the defendant had her lying on the ground he let her up and she ran; the defendant caught her and again they fell ...