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People v. Smith

NOVEMBER 6, 1968.




Appeal from the Circuit Court of Cook County; the Hon. HERBERT C. PASCHEN, Judge, presiding. Judgment affirmed.


Rehearing denied December 16, 1968.

Defendant, Herbert Lee Smith, was indicted for the crimes of rape and armed robbery. After a bench trial, he was found guilty of rape and not guilty of armed robbery. He was sentenced to a term of 4 to 8 years in the penitentiary. Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt, and that the trial court erred in admitting evidence of his escape from police custody.

Evidence for the State:

The complainant testified that she lived in the area of 42nd and Prairie in Chicago, with her husband. At approximately 2:30 or 3:30 a.m. on September 11, 1966, while her husband was at work, she was sitting on her front porch with her girl friend. Her girl friend went upstairs, and shortly afterwards, defendant came up to the front porch and asked whether a certain man lived at that address. As the complainant was putting her key in the door to go inside, the defendant put his hand over her mouth and a gun to her head, threatening to kill her if she said anything. She had never seen the defendant before that night. He was wearing a brown jacket, a sweater, dark shirt and no tie, a wide black belt, and had a pair of handcuffs. (She testified that he wore the same sweater in the courtroom during trial.) He forced her to accompany him to a basement in a nearby abandoned building where he made her take off all her clothing except her slip. Holding the gun, he then forced her to lie down on some old boards on the concrete floor and raped her. The defendant interrupted the act to go outside to investigate a noise, and the victim fled, running down the street clad only in her slip. She ran into Albert Bell, a friend of her husband, who was talking to someone at the corner of 43rd and Prairie. She told him what happened, and after he gave her his sweater, Bell called the police and walked her home. When the police arrived, she described her assailant to them and they went to look for him. They did not return. She had one can of beer during the entire evening. There was a big light on the street in front of her home and another light which they passed on the way to the basement. She suffered scratches on her back from the board, and went to the Michael Reese Hospital clinic two days later because of the pain in her back. About a month later, on October 12, 1966, while she and her mother-in-law were at a neighborhood laundromat, she saw the defendant taking clothes out of a washer. She saw only his face, and did not see what he was wearing. She ran across the street to tell the same Albert Bell who had been present the night of the rape. She then stopped a policeman and told him her story. The policeman entered the laundromat and arrested the defendant.

Albert Bell testified that he had known complainant and her husband for about three years. On the night of the incident, he had just finished work and was standing at the corner talking with a friend, when the complainant ran towards them in her slip, stating that she had been raped. She was screaming and hysterical and looked as though she had been rolling in dirt. He gave her his sweater, attempted to locate the defendant, and then called the police. The police arrived and wrote down the information. He then went home, stating that he did not take the victim to her home.

Officer Anthony Palmsone of the Chicago Police Department testified that on October 12, 1966, the complaining witness approached him, stating that she had just seen the man who had raped her a few weeks previously. He testified that she told him that the man was wearing a black wide belt and was carrying handcuffs. He arrested defendant who had a black belt, an ammunition carrier and a pair of handcuffs. Defendant denied any knowledge of the crime. No lineup was conducted, but the plaintiff positively identified the defendant as the man who had raped her. The officer testified that there was no police report regarding the rape.

Over objection of defendant, Officer Charles Burns of the Chicago Police Department testified that on October 13, 1966, he was assigned to transfer prisoners to the Criminal Courts building. While taking the men to the fourth floor, he saw one of the prisoners bolt to the side. As he apprehended that prisoner, defendant fled down the hallway and escaped.

Officer Augustus Lett of the Chicago Police Department testified that he was notified of defendant's escape and was stationed outside of defendant's home. On the day of the escape, he saw defendant, asked his name and was told it was Bobby Smith. Since defendant fit the description which had been given, he placed him under arrest, and Officer Burns later identified him at the police station. Defendant did not attempt to fight or resist arrest.

Evidence for the Defense:

Douglas L. White, Emma Tunstill and Louis Cunningham, friends of defendant, testified that they were with him on the night of the rape. In substance, they testified that several people including themselves and defendant, were drinking at two taverns from Saturday evening, September 10, until about 5:00 a.m. Sunday morning.

Defendant, a guard at the projects, testified that he did not work on the day of the occurrence; that he had had never seen the complainant prior to the time of his arrest; and that he was drinking with the people who testified on his behalf on the evening in question. On October 12, 1966, while in the laundromat, his belt cartridge holder and handcuffs fell out of his laundry. The complainant asked him if he knew her and he replied that he did not. A few moments later he was arrested by the police officer. He left the court building after his arrest because he was afraid of being convicted of a crime he had not committed.

Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt because of the discrepancies in the State's evidence. We do not agree. Specifically, defendant argues that there were nine discrepancies or weaknesses in the State's evidence. We cannot attach the magnitude to the discrepancies in the State's case that defendant does, and we find that many of the apparent conflicts in the testimony can be resolved easily.

Defendant first argues that the accuracy of the victim's identification is in doubt since she was hysterical on the night of the occurrence and did not see defendant until a month later. However, the victim had ample opportunity to observe her assailant. First observing him on her front porch, she testified that there was a large light in front of her home and another on the route that they took to the basement. She was with him for some time, and he made no attempt to conceal his identification. While any woman would be hysterical after such an experience, the victim recalled in detail what had occurred and also the identification of the assailant. There was no indication that her emotional reaction prevented her from being an ...

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