Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. RICHARD J. FITZGERALD, Judge, presiding.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Defendant received a bench trial and was found guilty of rape. On appeal his sole contention is that his guilt was not proved beyond a reasonable doubt.
Testimony of Nancy Aderman, Prosecutrix
On Sunday, October 24, 1965, she was living alone in a one-room apartment at 839 Diversey in Chicago. She had met defendant four or five times when he was with her friend Roberta Lindenthaler who lived in the same building. Roberta spent the night of the 23rd in the prosecutrix's apartment remaining until 1:30 or 2:00 o'clock on the afternoon of the 24th. Between 4:30 and 4:45 defendant rang the buzzer in the lobby and asked her over the intercom if Roberta was there. Prosecutrix told him that Roberta wasn't there and he left but he rang the buzzer a minute later and asked if he could come up and talk to her about Roberta. Prosecutrix said, "Yes" and let the defendant into her apartment. The conversation was concerned with the fact that the defendant was upset because Roberta had started drinking and "running around" ever since the prosecutrix had called her a thief. This had grown out of a dispute over $75 which the prosecutrix had left with Roberta and which had disappeared. The prosecutrix and the defendant then went to Roberta's apartment and she was not at home. Defendant left and she returned to her own apartment.
At approximately 5:15 or 5:30 p.m. the defendant rang her bell again and requested to come up to her apartment. She let him come up and upon opening the door defendant stepped in and pulled out a knife. The defendant said that she had better do what he wanted or he would cut up her face. He then slapped her across the face and told her to take off her clothes. The defendant put the knife in his back pocket and she did not see it again until after two acts of intercourse. She took off her own clothes and lay down on the bed. The defendant told her that she had better satisfy him or he would cut her up. She responded by saying, "Well, when you are being forced, you can't put your heart into anything."
After having intercourse, the prosecutrix and the defendant had a conversation about Roberta. Then they engaged in another act of intercourse. Following the second act of intercourse, defendant said what he was doing was not right and he told prosecutrix to go to the bathroom and get dressed. While they had been in bed, she did not see a knife. Shortly thereafter, defendant came into the bathroom and at the point of a knife forced prosecutrix to perform an act of oral copulation. Before defendant left her apartment he offered to call the police and turn himself in, but she refused. The defendant left her apartment about 6:00 or 6:30.
Dressed in the same clothes she wore prior to being raped, prosecutrix attempted to call her aunt, but she was not at home. However, she spoke to another individual at her aunt's house, but she did not mention the incident to that person. While she was at the phone, she made no attempt to call the police. She then returned to her apartment and her buzzer was rung by Roberta's brother William. She did not mention to him that she had been raped. Upon going out in the hall to meet William, whom she had invited upstairs, she ran into the defendant and another man. After a short conversation William and the other man left and defendant remained. He offered once again to turn himself in to the police, but prosecutrix again refused. It was actually at this point she was going downstairs to call her aunt for the first time.
On the way upstairs, she ran into the defendant and Roberta. Prosecutrix and Roberta went into her room and closed the door while the defendant waited outside. She apologized to Roberta for calling her a thief, but did not tell Roberta that she had been raped. Even when Roberta asked her what she was crying about, prosecutrix did not tell of the rape.
On cross-examination prosecutrix testified there were eight or ten apartments on her floor; that her clothing was not torn and that she made no outcry or scream. She did not attempt to pound on the wall or make any attempt to escape. Moreover, she made no effort to seek aid from her neighbors during and after the alleged acts. Prior to her rape she had heard a story about another girl in the building who had been raped by a man with a knife.
When the prosecutrix finally spoke to her aunt on the telephone, she did not mention that she had been raped. At 7:00 or 7:30 when her aunt arrived at her building, she told her what had happened. At approximately 1:00 a.m., eight hours after the act, prosecutrix reported the incident to the police. She went to the Illinois Masonic Hospital for an examination about 2:00 a.m. She did not show the doctor where she had been slapped. There was no mark.
Testimony of Dr. Robert MacNerland
The parties stipulated that Dr. Robert MacNerland, if called, would have testified that he examined the prosecutrix at 2:00 a.m. on October 25 at Illinois Masonic Hospital, that he found no signs of trauma or abrasion in the vaginal area, that there were deposits of spermatozoa ...