Appeal from the Circuit Court of Cook County; the Hon. WILLIAM
S. WHITE, Judge, presiding. Reversed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a bench trial, defendant Frank Evans was found guilty of "attempt rape" (Ill Rev Stats, c 38, § 8-4). He was sentenced to the penitentiary for a term of five to twelve years. On appeal defendant contends that he was not proved guilty beyond a reasonable doubt because the testimony of the complaining witness was neither clear and convincing nor substantially corroborated, and that the evidence shows she made no effort to resist.
On October 19, 1966, the prosecutrix, Josephine Johnson, lived in an apartment at 4308 Congress Parkway with four of her thirteen children Lavador, 14; Billy, Jr., 11; Margie Ann, 9; and David, 8. They had been watching television, and about twelve midnight she left home to purchase cigarettes. She initially went to a gas station, but not finding her particular brand available, she then went to a tavern, Mickey's 400 Club, where she purchased cigarettes and left. Defendant followed her home and entered her apartment four times in the early morning hours of October 20, 1966. Mrs. Johnson testified that on the third of these occasions the defendant attempted to rape her. Defendant maintains that he had been drinking at the tavern with Mrs. Johnson most of the previous evening and into the early hours of the morning and had escorted her home primarily for the purpose of hanging a mirror, but also because of Mrs. Johnson's offer of prostitution.
Mrs. Johnson testified that after she purchased the cigarettes at the tavern, defendant followed her out of the tavern and asked her to return with him to have a couple of drinks. She refused, and he followed her home. She had difficulty unlocking the door of her first-floor apartment and when she finally did so, the defendant "pushed right in on me" into her living room, threw her on the floor, and announced he was going to have intercourse with her. As she was fighting with him, he bumped her head on the floor, and she started screaming for her daughter Lavador. She stated, "All my kids got up out of bed and ran in there. Lavador picked up a statue and hit him on the top of the head with it. Billy hit him first with his fist and picked up an iron pipe. I picked up my end table and hit him on the side of the head. He was kicking; he threw one of my cocktails [table] back at me and then he ran out the door. He started kicking on the door, screaming, `Throw me my sweater and hat out.' I called the police officer. Later I threw his sweater and hat out of the window. The police arrived; I had a conversation with them. After they left he threw a two by four through my window. I looked out the window and he was going down the street. The man who threw the two by four through my window is in the courtroom the second man with the mask on his face [for health purposes defendant wore a mask in court]. He is the man I saw running down the street. After that happened, I called the police officer again. The police came; I had a conversation with them, and they left my premises. Then I sat on my couch. I dozed off and went to sleep. Billy Jr. was in the room with me, on the floor by me on the rug. The next thing I remember, I felt something on my neck and I jumped and threw my hand up. I observed this man with the mask on had a knife on my throat. When I threw my hand up the knife cut my ear and he put the knife back on my throat and told me I'd better not scream or else he would kill me. He said, `Get up off the couch and walk into the bedroom.' I told him I couldn't get up with the knife on my throat. He said, `You better get up.' So then I got up. He walked me to my bedroom with the knife at my throat."
At defendant's command, and with a knife at her throat, she removed most of her clothing and lay on the bed. "As I lay down he fell right on top of me, with the knife still on me. I did not scream at this time. He didn't rip my clothes. He didn't make any bruises on my face or arms. . . . He still had the knife on me, but it didn't cut me. I don't know how long I was in the bedroom with him. It wasn't too long before my children came in screaming. He was still on top of me. He attempted to place his penis in my vagina. I wasn't fighting him at that time. I didn't scream." Defendant was about to commence intercourse "when my kids began to scream and holler and my daughter Lavador said she was coming in the room and leave my momma alone. He said, `If that girl comes in this bedroom I am going to kill you and your kids too.' I pleaded with him and asked him not to brother my children, that I would do anything he said if he would just let me get up and talk my kids back to bed. He said if I tried anything he would kill the children and myself. I told him I wasn't going to try anything if he'd just please not bother my children; that I'd do anything he said when I had gotten the kids back to bed. He took the knife off my throat. I leaped off the foot of my bed and ran and pushed my kids out through the back door."
Together with the four children, the prosecutrix ran through the yard and a neighbor called the police. "After that Lavador and I returned to the house. The other children I left with the man by his station wagon. When I returned to the house I searched it as I went through and I locked my doors. I looked up in my front door and there that gentleman with the mask was right back there again. I walked to my front window, which was broken, looked out, saw the police officer coming and hollered out to him, `There is the man.' The defendant was right in my front door." Defendant was arrested and searched, and two knives were taken from his person, one of which the prosecutrix identified as "my butcher knife."
Lavador, Mrs. Johnson's 14-year-old daughter, testified that Mrs. Johnson had been home all evening and later left to buy cigarettes. Subsequently she heard her mother call her name and, on entering the living room, saw Mrs. Johnson and the defendant struggling on the floor. Lavador and the other three children began striking defendant. Lavador left the room and returned with a knife (People's Exhibit 2) and gave it to her mother. Mrs. Johnson was in the living room and defendant had already run out of the door. The police came and then left. The defendant left a hat and a pink sweater in the house, and her mother threw them out of the window. Then a two by four was thrown through the window, and she saw defendant run. The police were called again and left. Lavador and her sister went to bed, and she told her brothers to stay in the front room because her mother went to sleep on the couch. David went back to bed, but Billy, Jr., stayed with her mother.
Later, Billy came into her room and awakened her. The four children went into the kitchen, and Lavador stated, "I gave Margie and David a milk jug and Billie that pipe of the divider. And I had a chain and a hammer. Then we went back into the front room. I observed some blood on the arm of the sectional couch." They opened the door to her mother's bedroom, and the light was off. "We couldn't see anything in the room. I heard somebody say, get away from that door. . . . My mother came out of the room. She had on a blouse and her slip. She didn't have her shoes on. She told us to run out the back door." The four children and Mrs. Johnson ran to a neighbor. Later Lavador and her mother returned to their home. Defendant returned and was arrested.
Billy, Mrs. Johnson's 11-year-old son, testified that she went out for cigarettes about midnight. He corroborated the testimony of his sister and mother and identified People's Exhibit 2 as the family kitchen knife.
Another witness for the State, Police Officer John Grimes, described the arrest of defendant in the early morning hours of October 20, 1966, on the steps of 4308 West Congress. Defendant was taken back into the house, where the victim and her children were all screaming. Two knives were found on the defendant.
Defendant testified that he was at Mickey's 400 Club on October 19, 1966, from 6:00 p.m., and he met Mrs. Johnson in the tavern early in the evening. They drank heavily together for a number of hours. "I would say we were both intoxicated. We left the tavern at five minutes to two o'clock. They put us out." During the course of the evening Mrs. Johnson had suggested prostitution to the defendant and also asked him about hanging a mirror in her apartment. After leaving the tavern, they went to Mrs. Johnson's apartment, and her daughter let them in. After drinking for awhile, Mrs. Johnson mentioned money to the defendant. When defendant started to leave because Mrs. Johnson did not show him the mirror, Mrs. Johnson grabbed him, they struggled and fell to the floor, and "her kids came running and one of them hit me on the head with something. The other kid hit me on my back. I did not force my way into her door. I did walk in with her. She invited me into her house. I never followed her from the tavern. I walked with her." He returned four times. The first time he returned to get his sweater, which was given to him. The second time he returned to toss a two by four through the window, because of his anger over being rudely treated after being invited into the apartment. The defendant then went to a restaurant on Madison Street and ate bacon and eggs or rib tips at about 3:30 or 4:00 a.m. The third time he returned to the apartment the door was open, and he entered. Mrs. Johnson was lying on the couch, and her son was lying on the floor next to her. Defendant shook her and said, "`Why did you and the kids jump on me?' I said, `I come to see if I could put the mirror up for you that you wanted to put up, and about the other thing, I didn't go that way, I said, if I want something, I have a girl I can go to.' I was just explaining this was a business deal. She didn't say anything. She got up off the couch and went to her bedroom and said, `Come behind me.' She started pulling off her clothes voluntarily. . . . I did not take a knife out of my pocket while I was in there the second time." The door to her bedroom was open, and the lights were off. Mrs. Johnson removed part of her clothing and lay on the bed, and "by that time, the kids started, `Leave my mother alone.' She said, `I will go and talk to the kids.' Next thing I knew she had run out through the back. I got up and left. . . . I waited by the next building because I wanted to talk to her. Because I wanted to see if she wanted the mirror put up." After waiting about ten minutes, he saw them coming back to the house and went over to talk to them, and while trying to talk to her, "she hollered, `There he is, he is the one.'" Defendant was then arrested and taken to the police station.
A witness for the defense, Edward Pickens, testified he was an old friend of the defendant. He saw defendant in Mickey's at about 6:45 p.m. He saw Mrs. Johnson come into the tavern between 8:00 and 8:30. She was drinking at the bar, and defendant was talking to her when Pickens left "about a quarter to nine."
Another witness for the defense, Gail Randall, testified that she was a barmaid at Mickey's. On the night of October 19, 1966, defendant entered the tavern between 6:00 and 7:00 p.m. Shortly thereafter, Mrs. Johnson entered, and she and defendant were in the tavern together for the entire evening. They were both intoxicated by the end of the evening, and at about 2:00 a.m. they were ejected because Mrs. Johnson was cursing and bothering the bartender.
In finding defendant guilty, the trial judge remarked: "The defendant is guilty beyond a reasonable doubt. That is it. There is absolutely no doubt at all. What to do about a case like this is to fight back temptation of the person. He did that by getting on the stand, telling a ridiculous story. I am going to overcome that temptation. You got on the stand and ...