Appeal from the Thirteenth Judicial Circuit of LaSalle County;
the Hon. WALTER DIXON, Judge, presiding. Judgments of conviction
Two indictments were returned by the grand jury of LaSalle County against Defendant-Appellant, Orville Lee Masterson. The first indictment charged in two counts the attempted murder and assault of Diane Miller. The second indictment, in six counts, charged aggravated kidnapping, rape and aggravated assault against Elaine Davis and like offenses against Linda Peterson. Prior to trial, the People moved to dismiss the aggravated assault count in the first indictment as to Diane Miller. Both indictments were then consolidated for trial. The jury found Defendant guilty on each of the seven counts and thereafter judgments of conviction were entered by the Circuit Court of LaSalle County. Defendant was sentenced to the penitentiary for indeterminate periods of time, the maximum sentences being from 40 to 60 years for the convictions of aggravated kidnapping and rape, the sentences to be served concurrently.
Since most of the alleged errors depend on the sufficiency of the evidence we believe that a summary of the evidence is required.
Diane Miller, age 14, the object of the attempted murder charge, testified that on November 11, 1963, she was at home baby-sitting with her boy friend, William Smith. Linwood Sluder, age 21, with whom she was acquainted, came to the door on three occasions and asked her to go out with him. On the first two occasions he was alone, on the third occasion at about 8:15 p.m., another person unknown to the witness and later identified as the Defendant, appeared from around the corner of the door with a gun in his hand and ordered the witness to open the door or he would shoot. The witness slammed the solid wooden door, and jumped to one side. Moments later a gun discharged, a bullet came through the door about 4 feet from the floor, and embedded itself in a wall opposite the door. The witness was undecided as to what to do but shortly thereafter her mother called and immediately came home, the sheriff's office being thereafter notified of the incident.
Defendant Masterson, age 35, in testifying in his own behalf, described his acquaintance with Linwood Sluder. On the morning of November 11, 1963, he had picked up Linwood Sluder. In the afternoon Defendant and Sluder met Elaine Davis and Nellie Thomas and offered to meet the girls about two blocks away. Defendant and Sluder secured some beer and met the girls, offering them beer which Elaine Davis accepted and Nellie Thomas refused. According to Defendant, Sluder made a date to meet Elaine Davis later that night. Defendant and Sluder then drove around finally going to Sluder's home located a short distance from Diane Miller's house. Defendant went with Sluder on the three occasions that Sluder called on Diane Miller, remaining in the car on the first two occasions. According to Defendant, Sluder told him that Diane Miller would go out with them later as soon as her mother returned. Between the visits Defendant and Sluder drove around and returned to Sluder's home. Prior to the third visit to the Miller house Sluder put a 45-caliber pistol and a 22 rifle in the car. Defendant accompanied Sluder to the door on the third visit, Sluder at the time having a pistol in his belt. As they approached the door Sluder gave him the pistol saying that if Diane Miller saw it she might be scared. During the ensuing conversation Defendant was standing to the left of the door. When Sluder made a threatening gesture towards Diane Miller she slammed the door and Sluder asked for the pistol which Defendant gave to him. Thinking that Sluder intended to shoot the boy friend, Defendant struggled for the pistol which discharged, the bullet passing through the door. Both Sluder and Defendant left the Miller house.
Linwood Sluder, serving a term in the penitentiary as a result of revocation of probation because of his participation in this incident was called as a witness by Defendant. He confirmed the three visits to Diane Miller's house indicating that when they had left his sister's house they had two knives, a 22 rifle and the 45-caliber pistol. He stated that when Diane Miller refused to come out he had told the Defendant Masterson to shoot. He also indicated that there might have been a struggle but that he was too excited to recall just what happened.
Linda Peterson testified that late in the evening on November 11, 1963, she was walking home after having visited a girl friend. A car pulled up driven by a person unknown to her, later identified as Defendant. Linwood Sluder, with whom she was acquainted was sitting in the passenger seat. He asked the witness if she wanted a ride which she refused. The car turned around and the procedure was repeated. The car then stopped a third time and on this occasion the Defendant got out of the car, came over to her, twisted her arm behind her back, put a hand over her mouth and forced her to get in the front seat of the car. She testified that when she refused to go with them she was threatened and told that they had previously shot Diane Miller. She saw a pistol in the car and two knives were passed back and fourth between Defendant and Sluder, the knives being admitted as exhibits and identified by the witness. Linda was told that some person had agreed to pay $1,500 to have the witness and Elaine Davis picked up. Defendant then drove the car to the home of Elaine Davis in Wedron, Illinois.
Concerning the incident with Linda Peterson, Defendant testified that a few minutes after leaving Diane Miller, Defendant and Sluder overtook a girl unknown to him at the time but later identified as Linda Peterson. Defendant was driving the car which stopped on three occasions in an effort to get the Peterson girl into the car. After her refusal on the first two occasions Sluder said that the reason she didn't get in was because Sluder had been drinking. Sluder told Defendant that if he would get out and explain to her that he had not been drinking she would get in. This Defendant did on the third stop and according to his testimony Linda Peterson got into the car voluntarily. Concerning this incident Sluder corroborated Linda Peterson's testimony that she was forced into the car in the manner she described.
Elaine Davis testified that late in the evening of November 11, 1963, Linwood Sluder, with whom she had been acquainted approximately two years, came to the door of her home and indicated that "Tex," Defendant Masterson, wanted to see her in the car. She went with him to the car and as they approached the car Sluder pulled a gun, forced her into the front seat of the car with a girl she did not know, later identified as Linda Peterson, and Defendant Masterson. The witness testified that she had met and talked briefly with Defendant and Sluder in the afternoon in Wedron but denied that she had made a date with Sluder or that she had spent any time during the afternoon drinking with either Defendant or Sluder.
Defendant Masterson testified that Elaine Davis had come out to the car with Sluder, she came to his side of the car and told him she had to go talk to a priest first. According to Masterson she changed her mind and got into the car voluntarily. Witness Sluder testified that Elaine Davis started to get into the car and backed away at which time he (Sluder) forced her into the car at the point of a gun.
Elaine Davis and Linda Peterson testified that they, Sluder and Defendant Masterson, drove around country roads in the LaSalle County area all night. That Sluder and Defendant made numerous threats to kill them if they did not cooperate and that they were compelled to submit and did submit to acts of sexual intercourse, that their submission was the result of threats and intimidation including repeated references to the fact that Diane Miller had been killed earlier in the evening. The girls testified that in addition to the pistol, which was always in evidence, there were two knives and two rifles in the car. That sometime during the night the car stopped at a filling station for gasoline but the girls were warned not to make any effort to cry out. At about 7 o'clock in the morning they went to Defendant Masterson's house where Defendant and Sluder cleaned up and shaved and where Defendant again had intercourse with Linda Peterson again accompanied by threats and intimidation. They then drove to a factory where they changed cars transferring the guns to another car and then drove to the residence of Marybelle Manning in Wedron.
Defendant admitted acts of intercourse with both Elaine Davis and Linda Peterson during the night but claimed that the girls were not threatened or intimidated and that their presence in the car and the actual intercourse were voluntary. Witness Sluder corroborated the testimony of the girls admitting that threats were made, that there were knives and guns in the car and a pistol in his possession most of the night and that Linda Peterson was crying most of the time.
Marybelle Manning testified that Linda Peterson, Elaine Davis, Sluder and Defendant came to her apartment between 9 and 10 o'clock on November 12, 1963, and asked to come in. The witness was acquainted with all four persons. She testified that the girls were disheveled and that Linda Peterson was crying. She stated that Linda's sister had been around about 8 that morning looking for Linda saying Linda had been out all night. She also testified that Defendant Masterson talked to her in the kitchen and asked her to keep the girls in the apartment for 30 minutes, not to let them go any place or talk to anyone. After Sluder and Masterson had been gone five minutes, Marybelle called the sheriff's office and they immediately dispatched a deputy for Linda Peterson and Elaine Davis. Thereafter the witness called the parents of each girl. Marybelle stated that no mention was made in her presence of any assault, kidnapping or rape.
After leaving the Manning apartment, Sluder and Defendant headed for Kentucky, Defendant claiming that Sluder forced him to go. Defendant and Sluder were apprehended in Taylor County Kentucky on November 14, 1963, offering no resistance. A 45-caliber pistol containing 5 undischarged shells ...