Appeal from the Circuit Court of Cook County; the Hon. JOHN C.
FITZGERALD, Judge, presiding. Judgment affirmed.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 29, 1969.
The defendant, Richard L. Wendt, was indicted for the crime of indecent liberties with a child in violation of Ill Rev Stats 1965, c 38, § 11-4. After a trial without a jury, he was found guilty of that crime and sentenced to a term of 1 to 3 years in the penitentiary. He appeals, contending that he was not proved guilty beyond a reasonable doubt; that the trial court erred in excluding evidence of the reputation of the complaining witness; that the trial court erred in allowing evidence of other offenses; and that the sentence imposed was harsh and should be reduced.
The complaining witness testified that he was 10 years old, in fifth grade, and lived with his parents. He met the defendant about two years before trial. On August 5, 1965, he went to the defendant's apartment after school about 3:45 p.m. and entered by means of a key which had been given to him by defendant. He played records and cleaned the apartment until the defendant arrived about 4:15 p.m. Complainant then watched T.V. and ate a supper which he had prepared. After supper he did some homework, worked on a shortwave set for about an hour, and went to bed at 9:00 p.m. He and defendant slept in the same bed, and they both wore pajamas. The air conditioner was on, but shortly after they went to bed defendant stated that he was hot; he took off his pajamas and told the complainant to do the same. At that point, defendant played with the complainant's penis for approximately one-half hour. Another boy about the same age was in the apartment that night. The other boy slept on the couch in the living room, and the door between the living room and the bedroom was closed. At about 6:00 a.m. the following morning, defendant drove the complainant home and the other boy to Hanover Islands. A few days afterwards, complainant's father directed him to tell what had happened, stating that he already knew about it. Complainant did not know how his father had found out about the incident. Complainant had slept with the defendant on numerous prior occasions, and defendant had touched his penis many times before. Defendant had bought him presents at times and gave him an allowance of fifty cents a week. The defendant, at times, had struck the complainant around his thighs with a belt, a paddle, or his open hand, usually before defendant touched him in his private parts. Defendant warned him not to tell anyone about what was going on in the apartment or he would punish him.
On cross-examination, complainant stated that at the preliminary hearing he had testified that just he and defendant were present on the night in question, and that defendant had touched his penis for "five or more minutes." He could not remember whether they went to the Allied Radio store on that particular evening. He was not attending school on the day in question, and the homework he was doing on that evening was part of a long-range summer assignment.
Complainant's mother testified that four days after the above incident, she and her husband went to defendant's apartment. They were there from about 10:00 p.m. until 11:00 p.m. When accused, defendant at first denied doing anything, but then admitted fondling their child, stating that there was nothing wrong with what he did. On cross-examination, she testified that defendant was a Sunday School teacher and otherwise active in their Church; that they had known him for some time; that she knew that he had struck her son with a paddle, but that she did not know about a belt. She denied being intoxicated on the evening they went to defendant's apartment, but stated that she could have had something to drink.
The father of the complainant also testified that he and his wife went to defendant's apartment four days after the incident. After being accused by the father, the defendant at first denied, then admitted fondling the complainant. Defendant explained the term "fondling" as playing with their son's penis. Defendant said that what he had done "wasn't so terrible." The father told the defendant that if he would not turn himself in to the police or to a mental institution within 24 hours, he would notify the police. On cross-examination, the father stated that he did not remember whether he and his wife had anything to drink, and that he had no knowledge that defendant had on occasion struck his son. Although stating that defendant had their permission to discipline the children, he would never have given permission to defendant to strike them with any instrument. His children also had permission to stay at defendant's apartment, and defendant had on one occasion lent him money.
Leonard J. Keating, youth officer of the Cook County Sheriff's Police Department testified that he talked to defendant for about an hour after his arrest. Defendant admitted that he had slept in the nude with the complainant on the night in question, and with other children on different occasions. He denied ever fondling the complainant, but stated that he probably rolled over in bed at times and touched the children on their private parts, but "they never objected so he just let it go."
It was stipulated that defendant was 26 years of age.
Evidence for the Defense:
Reverend Mr. William Bartley, pastor of the Church where defendant taught, testified that the defendant's general reputation for good morals, chastity, truth and veracity was good. Complainant and his family were members of his congregation. John Frederickson, a school teacher and head of the Sunday School, also testified that defendant's general reputation for good morals, chastity, truth and veracity, was good.
David Hewing, a boy of the approximate age of complainant, testified that he had met the complainant through the defendant, and had also slept at the defendant's apartment on several occasions. On the night in question the three of them went to Allied Radio store to buy a birthday present for the complainant and his brother, and then returned to the apartment, where he and the defendant worked on a coil in the bedroom. The complainant fell asleep in the living room, and David and the defendant later went to sleep in the bedroom.
Steven Mendak, the principal of the school attended by the complainant, testified that he did not have any knowledge of school work assigned to the complainant during the summer. His testimony concerning the complainant's reputation for truth and veracity was stricken by the trial judge.
Thomas Maher, a fellow employee of the defendant, testified that defendant's reputation for truth, veracity, morals and chastity was good. He also testified that he had heard Officer Keating say at the police station that the complainant's father was intoxicated when he signed the complaint.
Emily Peyer testified that her 13-year-old son had been in the fun program at the Church under the supervision of the defendant, and that defendant's general reputation for good morals and chastity was good.
Defendant's mother, Lucille Wendt, testified that during a recess in the courtroom at the time of the preliminary hearing, she overheard a conversation between the complainant and his parents. She heard the complainant say that the defendant did not do anything to him, and his father agreed, but asserted that they had to go through with it. The complainant also told his mother that defendant did not do anything, but his mother told him to be quiet.
Defendant testified that he was a production engineer at Motorola; that he had been a member of the Apostles Lutheran Church for the past three years; that he was a Sunday School teacher and the director of the fun program there. He had known the complainant and his family for about two and a half years, and that he had seen the father strike the complainant and his brother on several occasions. He had given the father a key to the apartment some time previously. On the night in question, he, the complainant and David Hewing went to his apartment together. After supper, they went to Allied Radio to buy some gifts. When they returned, the complainant said that he was tired and went to sleep on the living room couch, while defendant and David were in the bedroom working with the gifts. The complainant called the defendant because he had a heat rash on his abdomen, and defendant rubbed some talcum powder on the rash. Later, the defendant and David went to sleep in the bedroom. In the morning, defendant drove the two boys to the complainant's home. A few days later, the parents of complainant came to his home and accused him of the act in question, which act he denied. They both threatened him if he would not commit himself to an institution. Three days later he was arrested. He never touched the boy's private parts.
On cross-examination, the defendant stated that he had slept in the same bed with complainant but not on the night in question. On the nights that they slept in the same bed, complainant sometimes was in the nude, but not the defendant. He struck the complainant sometimes with his hands, and sometimes with a paddle, a "seater-heater." He ...