Appeal from the Circuit Court of Logan County; the Hon. LELAND
SIMKINS, Judge, presiding. Reversed and remanded.
CRAVEN, J., DELIVERED THE OPINION OF THE COURT.
The defendant was convicted in a jury trial on the charge of rape. He was sentenced to the Illinois State Penitentiary for a term of not less than four nor more than twelve years. This appeal is from that conviction and sentence.
Initially, this appeal was filed in the Supreme Court, but certain constitutional issues sought to be raised were waived and thereafter this case was transferred to this court. In this appeal the defendant-appellant asserts that the evidence was insufficient to establish his guilt beyond a reasonable doubt, it being his contention that there was no showing that the act of intercourse was committed by force and against the will of the prosecuting witness. It is also asserted that the trial court committed error in refusing an instruction tendered by the defendant-appellant stating the law relating to force, resistance and consent and the refusal by the court to give any instruction as to force and against the will of the female. Other issues presented by this appeal relate to rulings on evidence.
From the inception of the trial of this case, the only issue for determination by the jury was whether the defendant had intercourse with the complaining witness, Cheryl Bellatti, forcibly and against her will or whether she consented to the act. The defendant testified on direct examination that he did have intercourse with her but that the act was with her consent. We deem it necessary to review only that portion of the evidence relating to the issue of consent.
On April 9, 1967, the prosecutrix was in the company of her brother Gerald, Mike Bryson, Jack Malone and the defendant. She had joined the four boys at their request that she go for a ride with them. She was induced to do so by a promise that she would be permitted to drive a car referred to throughout as belonging to Paul Helton. The car, in fact, belonged to the defendant's brother.
The group drove out of the town of Mount Pulaski for some miles. The defendant relinquished the driver's seat to the prosecutrix and she did drive the car. Ultimately the group drove back to Mount Pulaski to a house or a shack described as a one-room house on the south side of town, in order that the defendant and his friends could get more beer thought to be located in the house. Jack Malone was then living in this house.
Upon arriving at the Malone residence the boys got out of the car but the prosecutrix said that she remained in the car and didn't get out until urged to do so. She joined the boys in the house and after some few minutes Malone, Bryson and her brother left the house, or at least went outside, leaving her and the defendant alone. She testified that all the boys except her brother had been and were drinking beer. According to the testimony of the prosecutrix nothing was said by anyone prior to the time the three boys left, but Malone, in his testimony, stated that he left with the other two at the suggestion of the defendant who asked that Malone take the car and drive around and come back in half an hour or forty-five minutes. The defendant gave Malone the keys to the car and Malone and the others left in the car.
The prosecutrix testified that while the defendant and she were alone in the house the defendant asked her to sit down in a chair and as she started to sit down he took her by the upper part of her arms, forced her down on the bed, removed her cut-off jeans and underwear, and committed the act of intercourse.
She further testified as to threats by the defendant to kill her if she didn't cooperate. According to her testimony, after the act, she got up from the bed, dressed herself, searched for and found her glasses, and then left the premises and went to an area near the Mount Pulaski square where she had parked a family pickup truck, then went to a laundromat owned by her father which she and her brother were to have finished cleaning. They then went to a friend's house to pick up a trailer, and from there home. Her brother, who had been waiting for her at the truck, testified that she acted nervous and was crying. They arrived home at about 1:00 a.m. Upon arrival she told her parents what had happened and, at their request, was examined by a doctor the next day. The doctor testified that he conducted an examination of the prosecutrix. He found scratch marks about both sides of her neck, an abrasion resembling teeth marks near her left inner wrist, and his examination indicated that the prosecutrix had had sexual intercourse.
The defendant testified to essentially the same facts leading up to the arrival at the house. His version of the activities in the house was that after the three boys left he and the prosecutrix talked awhile; that he asked her to come and sit beside him on the bed. After some kissing and hugging he asked her to have intercourse and she agreed.
At the time of this occurrence the prosecutrix was an unmarried woman, 18 years of age. The defendant was 19. She was a senior in high school, was 5 ft., 8 in., in height and weighed about 115 pounds. The defendant was 6 ft., 1 in., tall and weighed about 160 pounds by his own testimony, although one witness indicated he believed his weight to be 180.
The defendant-appellant's main contention is that the State failed to prove the element of force beyond a reasonable doubt. He relies upon People v. Faulisi, 25 Ill.2d 457, 185 N.E.2d 211 (1962), and People v. Rossililli, 24 Ill.2d 341, 181 N.E.2d 114 (1962), for the proposition that in order to prove the charge of forcible rape there must be evidence to show that the act was committed by force and against the will of the female, and that if she has the use of her faculties and physical powers the evidence must show such resistance as will demonstrate that the act was against her will.
The State accepts that proposition as an accurate statement of the law but argues that the evidence here establishes the act to have been by force and against her will, or in any event that the question was one for the jury. We agree.
An accusation of rape may be easily made, hard to prove and harder yet to defend by one ever so innocent. However, it is the function of the jury to weigh testimony, judge the credibility of witnesses and determine factual matters in debatable circumstances. This court cannot substitute its judgment for that of the jury or disturb its finding unless the proof is so unsatisfactory as to cause a reasonable doubt of ...