Appeal from the Circuit Court of DuPage County, Eighteenth
Judicial Circuit; the Hon. LeROY RECHENMACHER, Judge, presiding.
MR. JUSTICE ABRAHAMSON DELIVERED THE OPINION OF THE COURT.
The defendant was tried on a two-count indictment for the crimes of rape and aggravated battery. Count I of the indictment charged Gabler with the offense of rape in that he had sexual intercourse with ". . . Nancy G. Stephenson, a female person, not his wife, by force and against her will. . . ." Count II charged him with the offense of aggravated battery in that he "did strike and hit Nancy G. Stephenson about the face and body with his fists with great force and violence causing great bodily harm. . . ." The jury returned verdicts that found Gabler guilty of the crime of rape and not guilty of the crime of aggravated battery "in the manner and form as charged in the indictment." Judgment was entered on those verdicts and this appeal followed.
Nancy Stephenson testified that she first met Gabler in a tavern called "May's Hideout" at approximately 1:45 p.m. on April 29, 1967. Gabler left the tavern shortly thereafter but returned at 4:00 p.m. and agreed to drive Mrs. Stephenson to the Manor Lounge in Northlake where she was seeking employment as a singer. After a few drinks, they left May's and stopped at a farm where Gabler showed her a horse that he owned. They also stopped at another tavern called "Mr. Dukes" to visit a waitress they knew where they had a few more drinks and played billiards. They left Mr. Dukes and arrived at the Manor Lounge at approximately 9:45 p.m., where Nancy was introduced by the bandleader and had one or two more drinks. They left the Manor so that Mrs. Stephenson could return to May's for a party at 11:00 p.m., but on the way back Gabler drove to a secluded side road and stopped his car. She told him to start the car and go back to May's but he grabbed her and tried to push her to the seat. She was pushed down but hit the car handle, opened the door and fell to the ground. Gabler fell on top of her, ripped her slacks and slapped her a few times. She was screaming and biting Gabler in her effort to free herself and was able to get up and run about 20 feet from him. Gabler caught her, knocked her to the ground again, and struck her with his fists. Her head fell back and "hit something hard." The next thing she remembered was that Gabler was sitting in his car and she was still on the ground with her clothes "ripped." She got up, went to the car for her purse, and ran down the road where she stopped a police car that happened to be patrolling in the area. The police picked her up but she was unable to recall clearly what happened thereafter except that the police drove down and arrested Gabler at the end of the road.
Gabler testified that he had an argument with his wife and went to May's at around 6:00 p.m. on April 29. He met Nancy Stephenson and after a few drinks left with her. He also testified as to the various stops made by them but added that throughout the evening there was passionate kissing, fondling and other lewd behaviour. When he stopped his car, he continued to kiss her and was on top of her in the car when she "just went nuts" and began to scream, scratch, bite and hit him. He "cracked her back" and she ran from the car. He caught up with her, grabbed her from behind and he fell on top of her. He then noticed, for the first time, that her slacks were ripped. Gabler was asked if he then had intercourse with Nancy Stephenson to which he replied:
"She kept hitting and scratching, and I hit her back. I never used a closed fist. I hit her with just the back of my hand, or the other way, because she was hitting me and I just hit her back because she was hitting me, more or less.
"And as far as having intercourse with her, I can't remember. I could have, but I'm not sure. I wouldn't say, because I don't know, the way I was feeling."
The police testified that they came upon Mrs. Stephenson at around 11:45 p.m. running down the road, screaming incoherently with her slacks almost completely torn from her body. She told the police officers she had just been beaten and raped by a man down the road and when they drove to the end of the road they found Gabler seated in his car with his pants open. On the way to the hospital, Mrs. Stephenson lost consciousness in the police car. Her face was bruised and bleeding and her eyes were swollen. A subsequent medical examination disclosed that her thighs were bruised and that she had recently engaged in an act of intercourse.
On appeal, the defendant contends that it was incumbent on the State to prove by competent evidence that he had committed a battery upon the person of Nancy Stephenson in order to convict him of rape. He further urges that when the jury found him not guilty of aggravated battery, they, by operation of law, also found him not guilty of battery as a lesser included offense, and that the State therefore was necessarily precluded from proving a necessary element to sustain the conviction of rape.
The crime of rape is defined in the Criminal Code (Ill Rev Stats 1967, c 38, § 11-1(a) and (b)) as follows:
"(a) A male person of the age of 14 years and upwards who has sexual intercourse with a female, not his wife, by force and against her will, commits rape. Intercourse by force and against her will includes, but is not limited to, any intercourse which occurs in the following situations:
"(1) Where the female is unconscious; or
"(2) Where the female is so mentally deranged or deficient that she cannot give effective consent to intercourse.
"(b) Sexual intercourse occurs when there is any penetration of the female sex organ by the male sex organ."
The defendant cites a number of cases from other jurisdictions that appear to hold that a battery is an indispensable element to the crime of rape. People v. Mendoza, 55 Cal.App.2d 625, 131 P.2d 622; Territory v. Silva, 27 Haw. 271. There are no Illinois cases on this precise point but we have recently held that a "Battery is neither the same nor is it an includable offense in the crime of attempted rape." People v. Thompson, 87 Ill. App.2d 426, 430, 230 N.E.2d ...