Appeal from the Circuit Court of Cook County; the Hon. JACQUES
F. HEILINGOETTER, Judge, presiding. Reversed.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Defendant appeals from a conviction, after a bench trial, of the offenses of rape and deviate sexual assault. Judgments were entered and the defendant was sentenced to three to eight years in the Illinois State Penitentiary on each offense, the sentences to run concurrently. Defendant raises two points on appeal: (1) he was not proven guilty beyond a reasonable doubt; and (2) the sentence was manifestly excessive.
Testimony of complaining witness:
She is divorced and living with her three children, ages six, five and three and one-half. She occupies a three bedroom house with two bedrooms upstairs and one downstairs. Her parents' home is about twelve feet away and her other neighbor about thirty feet. She is five feet four or five inches in height and weighs about 135 pounds and has no physical infirmity or disability. On May 5, 1967, she went to sleep at 10:00 p.m. in the downstairs bedroom with her three year old daughter. At about one o'clock the doorbell rang and she got up, put on a floor length robe over her nightgown and answered the door. The defendant was at the door and he said, "It's Frank. Let me inside." She had met him once or twice before and remembered him vaguely. She said, "What's the matter?" and he replied, "I don't know." He put his hand to his head like there was something the matter with him, like he was in trouble.
She met defendant a few months prior to the incident when he drove her and her date, Jack Soper, to a party. She had met the defendant once before with his wife. Defendant had never been a guest in her home. On May 6th she did not remember his last name although she did know his first name.
She let defendant into the house. He sat on the couch and she sat in another chair. A conversation took place. Defendant asked if she had a gun. The telephone rang in the dining room and it was Jim Wallace on the phone. She asked Jim if he knew the defendant but she could not remember defendant's last name so she asked him what it was. He said his name was "Fred. Fred Keno." She told Jim and asked him to come over. Defendant then asked if she would make him some coffee; when she refused he said that he thought he had better go, and he asked her to walk him to the door. She refused.
Defendant got up and she got up, and then he walked towards her and grabbed her and threw her down on the couch, and a lamp fell over. He grabbed her around the shoulders. He threw her down on the couch and started choking her. She does not know if she was screaming or crying or what. He said, "If you shut up I'll leave you alone." So she shut up, and then he pushed her onto the floor. He then pushed up her nightgown and he forced his way to have intercourse with her.
He then let her get up. She was crying or screaming and he said, "Just be quiet and I'll leave. I'll leave you alone." And he said, "I'm sorry, I'm sorry."
He went toward the door and then he turned around and came at her again and pushed her down on the floor. They struggled for awhile and then he got down on top of her. He was moaning and groaning and he forced her to commit an act of oral copulation.
Then the doorbell rang and defendant got up and told her to shut up. He took her into the hallway. She had told him previous to this that James Wallace was going to come over; and she kept telling him. She said, "Leave, Jim's going to come over." He said, "If that guy comes through the door I'll kill him."
She is not sure when she told him about Jim Wallace coming over. It might have been right after the telephone conversation or it might have been when he came back at her again. At the time he left her son had fallen out of bed upstairs, so she ran upstairs and put him in bed. She came downstairs and looked out the window and saw defendant walk right to a car that was two doors down. She then called the police and called her father who lives right next door. The police arrived in five minutes. She spoke with Officer Toomey. She described what happened and described the defendant. She told the officer that defendant had told her that his name was Fred but that she believed that it was Frank. The police took her to the hospital.
In court she identified a picture of defendant and noted that he was wearing a brace in the picture. She had felt the brace when she was battling with him on the floor. She identified the nightgown that she was wearing the night of the occurrence and noted that it was ripped along the top. It was not ripped before defendant came into her home on the night in question.
The lamp was knocked over as she was thrown to the couch. Neither the bulb nor the filament broke. The lamp was off during the first act of intercourse. It must have gone off when it fell over, but the bulb was not broken. She is not really sure how the lamp went off; in fact she is not sure if the lamp was off. She does not remember if defendant turned off the lamp. She told the Grand Jury that the lamp was knocked over. After her testimony to the Grand Jury was read to her she remembered stating that defendant shut the lamp off.
There was an intercom system between her house and her father's but it never worked well. She doesn't believe that it was working on the night in question. She never left it on all the time. It was a system where one party had to buzz the other to talk. She did not scream or cry to bring her mother to her house.
Defendant was choking her hard but it left no marks on her; neither were there bruises from the fighting, wrestling and choking.
During the act of intercourse she did not scratch him nor did she scream; she was frightened. Defendant ...