Appeal from the Circuit Court of Cook County; the Hon. WILLIAM
V. DALY, Judge, presiding. Judgment affirmed.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.
The defendant, Fred Oparka, was charged with the crime of rape. He was found guilty at a jury trial, and the jury fixed his punishment as imprisonment in the penitentiary for a term of 100 years. The defendant appeals from the judgment entered on the verdict, contending that the trial court erred in giving a certain State's instruction and in refusing a certain tendered defendant's instruction. A summary of the facts follows.
The complainant testified that she and her fiance were seated in a parked automobile at about 3:00 a.m. on August 9, 1959, in the vicinity of East 119th Street in Chicago. Defendant and John Cipich forced their way into the car at gunpoint. After forcing the girl's escort into the rear seat, the pair drove to an isolated area. The complainant was seated between Cipich and the defendant in the front seat during this ride. While defendant held her fiance at gunpoint in the automobile, Cipich dragged the complainant, fighting and crying, into an abandoned building. After beating her, Cipich raped her and forced her to commit an act of oral copulation. Cipich then left the complainant, and defendant entered the room and also raped her and forced her to commit an act of oral copulation. Cipich returned to the room and warned defendant that the police would be checking the building at 5:00 a.m. and that it was now 4:45 a.m. Defendant continued to submit the complainant to further indignities for a few minutes. The pair, with defendant driving, then drove the complainant and her escort back to within a block of where they had been parked. They wiped their fingerprints from the car, and defendant took the car keys. Her escort was able to get a passing motorist to take complainant to a nearby hospital. The complainant and her fiance identified defendant at a lineup and again at trial.
Dr. Aaron Heimbach, who treated the complainant, testified that she had sustained a broken nose, two black eyes, bruises on her chest and lacerations about the vagina.
Two police officers of the Chicago Police Department testified that they arrested defendant two days after the above crime, and at the time of his arrest they found a loaded gun. Both officers testified that defendant orally admitted participation in the rape, but that he refused to sign a written confession.
William Thomas, a gas station attendant, testified for the State that the defendant came to the station at about 9:00 a.m. on August 9, 1959, and gave him a watch in settlement of a prior debt. Complainant's fiance testified that it was the same watch taken from him during the commission of the crime.
Defendant testified that on the night of the occurrence, he was with friends until about 1:30 a.m. and arrived home about 1:45 a.m. He talked with his sister until 3:00 a.m. when she retired. About 3:45 a.m., a friend of his sister's called, and he awakened her. He then dressed and went to a friend's house, and the two of them went to a restaurant where they stayed until about 8:00 a.m. He also testified that the oral confession was false and the result of coercion by the police. (Prior to trial, the court conducted a hearing on defendant's motion to suppress the oral confession on the ground that it was involuntary. The court found that the admissions were made voluntarily.)
Patricia Zamich, defendant's sister, testified that defendant came home about 2:00 a.m. on the morning of the occurrence. They talked until about 3:15 a.m., when she went to bed. He later awakened her at about 3:45 a.m. because of a telephone call. She did not see defendant again that morning.
Defendant's first contention on appeal is that the trial court committed prejudicial error by giving State's Instruction No. 4 to the jury. The instruction given without objection was as follows:
"The court instructs the jury, as a matter of law, that before a defendant can avail himself of the defense of an alibi the proof must cover the whole of the time of the commission of the crime and be supported by such facts and circumstances in evidence as are sufficient when considered in connection with all the other evidence in the case to create in the minds of the jury a reasonable doubt of the truth of the charge against the defendant."
Defendant argues that in instructing the jury that the defense of alibi must cover the entire time of the commission of the crime, the court committed reversible error since the jury could have believed that defendant's sister was telling the truth but that the defense failed because she was unable to establish his whereabouts during the entire period when the crime was alleged to have occurred, citing People v. Johnson, 23 Ill.2d 465, 178 N.E.2d 878 (1961).
However, in People v. Naujokas, 25 Ill.2d 32, 182 N.E.2d 700 (1962), the Supreme Court affirmed a conviction in which a given instruction recited that the proof of alibi must cover the entire period of the commission of the crime. Although in that case, defendant did not testify, he produced alibi witnesses, and the court found that there were gaps in the time accounted for by the alibi witnesses. While criticizing the instruction, the court stated at page 36:
"In carefully considering the present record, the positive identification of the accused, his confession, and the other facts and circumstances, we cannot find that the ultimate outcome of the trial could have been affected by giving the challenged instruction."
Similarly, in the instant case, we do not believe that the outcome of the trial could have been affected by ...