Writ of error to the Criminal Court of Cook County; the Hon.
GEORGE B. WEISS, Judge, presiding. Judgment affirmed.
MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.
After a trial without a jury, defendant was convicted of aggravated incest *fn1 and sentenced to the penitentiary for a term of three to ten years. He contends that he was not proved guilty beyond a reasonable doubt, that various rulings by the court as to the admissibility of evidence were erroneous, and that he was unduly restricted in the cross-examination of certain witnesses. The facts follow.
Defendant was indicted for having intercourse with his 12-year-old daughter Emily on February 7, 1963. The matter was brought to the attention of the police on Tuesday, February 20, 1963, by Rosie Lee Armstrong, the wife of the defendant and mother of the complaining witness, and the police questioned Emily about the incident on the same day. Rosie Lee testified that following the police questioning, Emily revealed to her that defendant kept a supply of prophylactics in an unused kitchen cabinet over the grocery pantry; that she (Rosie Lee) had not discovered the presence of these prophylactics and that she took them to the State's Attorney's office the following day and showed them to Police Officer James Jack. She stated that she had asked the defendant to use a contraceptive when engaging in sexual relations with her, but that he had always refused.
On cross-examination, she said that while her husband was in jail, she received ADC payments. Counsel for defendant then asserted that as long as defendant remained in jail, such payments would continue. The State's Attorney objected to that question as argumentative and the objection was sustained.
Emily testified that she had sexual intercourse with her father on February 7, 1963. Over objection of defense counsel, she stated that she had been forced to submit to him for a period of more than 3 years; that in this time she had intercourse with him on an average of twice a week; and that she never told her mother about it because defendant had threatened to kill her. She testified that defendant first molested her sexually in December, 1959, when "he stuck a spoon into my privates," that she bled; that the defendant took her to the hospital and forced her to tell the police detectives, hospital authorities and her mother that she had been attacked by school boys; and that after she returned home from the hospital, defendant began to have sexual relations with her on a regular basis. During the course of her testimony, Emily described the first act of intercourse with her father and his use of a prophylactic as follows:
"Q. And what, if anything, happened between yourself and your father in December, 1959, at your . . .
"A. He asked me to come into his bedroom. He said he wanted me to do him a favor.
"Q. Mr. Malek: So what did you do?
"A. He told me to pull my skirt and slip off and lay down on the bed, and he unzipped his pants and pulled out his penis.
"Q. And what, if anything, did your father do with his penis?
"A. He put on something white, and then he laid down on the bed and stuck his penis into my privates.
"Q. Now, this something white, would you describe it, please, if you can?
"A. It came in a small gold package, and it had Silvertex on the cover of the box, and when he took one out and it was white, it seemed like paper felt seemed like it was rubber."
Emily also testified that she and the defendant assumed various positions while engaged in intercourse, and ...