Appeal from the Circuit Court of Cook County; the Hon. JACQUES
F. HEILINGOETTER, Judge, presiding. Judgment affirmed.
MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.
Defendant, Osborn Fortson, was charged with the crimes of rape, deviate sexual assault and armed robbery. After a jury found him guilty of all three crimes, he was sentenced to the penitentiary for a term of 20 to 40 years for the rape, 10 to 14 years for the deviate sexual assault, and 10 to 20 years for the armed robbery, all sentences to run concurrently.
Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt; that he did not receive a fair trial because of the prejudicial actions of the prosecutor; that the instruction concerning his presumption of innocence was improper; and that his sentence was excessive.
Complainant testified that she left home about 6:00 a.m. on Saturday, January 14, 1967 to go to work. As she was walking toward a bus stop, a man ran across the street and asked her what time it was. She told him and continued walking. He jumped behind her, pulled out a knife, and told her to follow him. They were under a bright light, and the complainant looked up and had a close view of his face. The assailant, identified by the witness as the defendant, put the knife to her throat and demanded her money. She gave him $65 that she had in her coat pocket. Defendant then took her across the street to the top floor of a hallway and told her to be quiet. He pulled her dress up and pants down, unzipped his pants, raped her, and forced her to perform an act of oral copulation. Prior to the rape she told him she was ill and he replied "So what?" After he left, the complainant sat in the hall crying, then started running in a direction away from her home, but finally ran home to her husband, who called the police. When the police came, she told them what happened and they all went to the hallway, where the complainant found her coin purse. About an hour later, two detectives came and took her to an apartment. A lady opened the door, and the complainant saw her assailant in the apartment, lying on the couch with his shorts on.
Officer William Johnson of the Chicago Police Department testified that he interviewed the complainant in her home, and she told him that she was raped. She was ill and upset during the interview. They went to the scene of the crime, and he found a coin purse there, which he gave to the complainant.
Officer Francis J. Healy of the Chicago Police Department testified that his partner and he took the complainant to an apartment on the morning of the crime. He knocked on the door and identified himself as a police officer. The complainant identified a man in the apartment as her assailant. He was sitting on the couch in his shorts with the telephone in one hand and his penis in the other. His eyes were bloodshot and he had an odor of alcohol about him. The witness arrested him and in court identified defendant as the man arrested.
Evidence for the Defense:
Ray Joinar, a post office employee who had known the defendant for about five years, testified that on the evening of January 13, 1967, he and defendant bought some alcohol, sat in a hallway and drank it. They parted about 10:00 p.m. that night, when defendant went home.
Beatrice Fortson, defendant's mother, testified that she lives with defendant and her daughter. On January 13, 1967, her son came home about 10:00 p.m., ate, washed up, and went to bed about fifteen or twenty minutes later. When she got up to go to work the next morning about 5:45 a.m., she saw her son asleep in his room. Her daughter got up at 6:00 a.m. to feed her baby, and her son was still asleep when the witness left the house about 7:15 a.m.
Mary Ann Fortson, defendant's sister, testified that she lives with her baby, her brother and her mother. Defendant came home about 10:00 p.m. on the evening of January 13, 1967. He ate and went to bed about a half hour later. The next morning she got up about 6:00 a.m. to feed her baby and saw her brother sleeping. She went back to bed after her mother left for work, and saw her brother around 8:00 a.m., when he was making a phone call. About 8:45 a.m., she opened the door in response to a knock. Two men pushed their way into the apartment, and one of them brought in a lady, who identified her brother as the man who had robbed her.
Defendant testified that he lives with his mother and sister, and came home about 10:00 p.m. on January 13, 1967. He ate, washed and went to bed. He got up about 8:05 a.m. the next morning to make a phone call, and never left the apartment that night.
Officer James Hogan of the Chicago Police Department testified for the State in rebuttal that on the morning of January 14, 1967 he went with Officer Healy and the complainant to defendant's ...