Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. HERBERT C. PASCHEN, Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
The defendant was found guilty of rape in a non-jury trial and was sentenced to the penitentiary for a term of ten to twenty years.
His theory on appeal is that the judgment of conviction should be reversed because the indictment did not specify the nature and elements, or the time and place of the alleged offense; that the State failed to prove the use of force; that the testimony of the complaining witness was so improbable that it was inadequate to sustain his conviction, and that the trial court erred in permitting the State to question him on the details of a prior conviction for rape.
The prosecutrix lived with her husband and four children on the eleventh floor of a nineteen-storied building in a public housing project on Chicago's near north side. She returned from shopping about 8:15 on the night of January 18, 1964, and entered the lobby of the building. There were two elevators; one stopped at the odd-numbered and the other at the even-numbered floors. A man, whom she had never seen before, was waiting at the elevators and had pressed the buttons for both of them. After a few minutes' wait the two elevators arrived about the same time. The man entered the even-numbered one and the prosecutrix the odd but before the doors closed the man jumped into the elevator for the odd-numbered floors. She pushed the button for the eleventh floor and he for the nineteenth. Near the fifth floor he pushed the emergency button and the elevator stopped. The man held a knife to her neck, warned her to be quiet and asked for her money and a kiss. They kissed twice and he searched for her money. Finding none, he said he had to have something. He told her to take off her coat. As she did so he grabbed it from her, threw it on the floor and told her to remove part of her underclothes. He said she could keep her dress on although he was used to naked women. He unzipped his pants, got on top of her and, with his knife at her neck, ordered her to put his sex organ into hers. She did this and he had an emission.
When he was through he told her to get up and put her clothes on. He said he had a gun and asked if she would like to see it pointing in her face. He instructed her to say nothing to anyone and not to get off when the elevator stopped at a floor. He pushed one button at a time until they reached the top floor and then did the same thing on the way down. No one entered the elevator at the odd-numbered floors. At the ground floor he pressed the button for the eleventh floor, left her in the elevator and jumped out. As soon as the elevator reached the eleventh floor she went to the apartment of a friend who had a phone and the police were called. She then went to her own apartment and informed her husband of what had happened. The police took her to a hospital; vaginal smears were taken which showed spermatozoa.
The next evening she and her husband were in the lobby waiting with other people for the same elevator. It was crowded when it arrived at the first floor and in the rear she saw the man who had raped her. He covered his face as he came out, went to the exit and started to run. She pointed him out to her husband as he passed her. Her husband chased but did not catch him. She again called the police and later on that evening went to a police station, saw the defendant in a lineup of six men and identified him as the man who had raped her. The defendant denied the accusation.
His defense at the trial consisted of an alibi, an attack on the probability of the complainant's story and an attack on her virtue. He testified that he was in a tavern between 8:00 and 9:00 p.m. on the date of the alleged crime and his testimony in this respect was corroborated by his brother and an employee of the tavern.
The complainant testified that she and the defendant were in the elevator about twenty minutes and that during this time the emergency bell was ringing. She explained that it was not unusual for the bell to ring because children often closed the doors and played in the elevators. The defendant's sister, who lived on the fifteenth floor of the same building, testified that security officers in the project made their rounds every two hours and that in the event of trouble tenants were supposed to call the officers. Another tenant whose apartment was also on the fifteenth floor, two doors from the elevator, said the same thing and added that if the emergency bell were to ring for a long time someone would call the security office. She said she was home the night of January 18th and that she did not hear the bell ring. A man who was visiting in her apartment that night said he did not hear a bell ringing. He also testified that he arrived at the building at approximately 8:30 p.m., and that the odd-numbered elevator was in service and that he rode it to the fifteenth floor.
The defendant testified that he was well acquainted with the prosecutrix, had dated her and had sexual relations with her the last time at 1:00 p.m. the day of the alleged rape. His sister said she had seen him and the prosecutrix in bed together at her mother's apartment in November of the previous year.
The indictment which the defendant criticizes as invalid stated in pertinent part:
". . . that on January 18, 1964, at and within said County [Cook], John Louis Scott, a male person of the age of fourteen years and upwards, committed the offense of rape, in that he had sexual intercourse with . . . not his wife, by force and against her will, in violation of Chapter 38, Section 11-1, of the Illinois Revised Statutes 1963. . . ."
The argument is that the indictment does not meet the requirements of the statute (Ill Rev Stats 1963, c 38, § 111-3(a)) which states that an indictment must contain provisions:
"3. Setting forth the nature and elements of the offense charged;
"4. Stating the time and place of the offense as definitely as can ...