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People v. Thome

JULY 28, 1969.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

PHILLIP THOME, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County, Sixteenth Judicial Circuit; the Hon. JOHN A. KRAUSE, Judge, presiding. Judgment affirmed.

PRESIDING JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.

The defendant appeals from a jury's verdict finding him guilty of aggravated battery and the court's order sentencing him to the penitentiary for a period of from two to ten years.

As grounds for reversal he claims (1) that the evidence was insufficient to prove him guilty beyond a reasonable doubt, (2) that the trial court admitted hearsay and prejudicial testimony, (3) that the admission of other wrongdoing by the defendant was prejudicial, (4) that the trial counsel was incompetent and (5) that the failure of the record to affirmatively show that the defendant waived transcription of the voir dire examination constituted error.

The indictment charged that the defendant committed the offense of aggravated battery against Mary Thome, the complaining witness and estranged wife of the defendant. On direct examination, she testified that during the early morning hours of November 11, 1967, the defendant dragged her to a barn to the rear of the home in which she was residing with her six children. Once inside the barn he made her remove all of her clothing and then tied her hands. He then forced her to commit unnatural sex acts upon him at different times, beat her with a stick, stabbed her in the stomach with his pocket knife, stuck her tongue with the knife, pushed the blade of the knife under her fingernails and strung her up so that she was actually swinging from a rafter by means of a rope which was tied to the rope around her hands.

Following this, she was allowed to return to the house where the defendant stated that the beating had been given to her because she had reported him to the police in September for another occasion when he beat her and which ultimately resulted in his conviction and sentencing. She further testified that the November incident was not reported to the police until on or shortly before December 16, 1967, when the defendant was arrested. She claimed, at the time of trial, that she did not report the incident in question to the police because her husband had threatened her with further abuse, but the reason the incident was finally reported was that another assault and beating was made upon her by the defendant on or about December 16, 1967.

On cross-examination by the defendant's counsel, she was questioned about another beating in September, prior to the incident in question. She also was cross-examined and testified as to the beatings received in September, November and December of 1967. Although the State offered no medical testimony concerning treatment, as corroboration for her injuries, it did offer testimony of the eleven-year-old daughter of the defendant and a next door neighbor as corroborative proof of the injuries received on the night of November 11, 1967.

The defendant categorically denied that any beating, assault or any form of attack took place upon his wife on November 11, 1967. In explanation of his wife's condition and corroborated injuries, he testified that at his daughter's birthday party on November 3, 1967, his wife had been injured when attempting to corral a horse which had broken loose on the farm.

The defendant first raises the issue that the evidence was not sufficient to remove all reasonable doubt of his guilt. Counsel for the defendant urges this Court to apply a reasonable doubt standard equatable to that of a rape case, particularly, holding the State to an "extraordinarily high standard of care in examining the evidence." For this proposition the defendant cites the case of People v. Kazmierczyk, 357 Ill. 592, 192 N.E. 657 (1934). The Court, in that case, was faced with the peculiar situation of most rape cases where there was little if any corroborative proof. The complaining witness made an accusation and the defendant denied same. The Court, at page 598, in considering this situation, had this to say:

"This court has repeatedly held that where a conviction of rape depends upon the testimony of the prosecuting witness and the defendant denies the charge, the evidence of the prosecuting witness should be corroborated by some other evidence, fact or circumstance in the case. (Citation omitted.) It is our duty to carefully review the evidence in a criminal case, and if it is not sufficient to remove all reasonable doubt of the defendant's guilt and to create an abiding conviction that he is guilty the conviction will be reversed."

We do not feel that the Court has changed the reasonable doubt standard and applied any new or extraordinarily high standard of proof. It has merely stated that an allegation without corroboration will not suffice to fulfill the reasonable doubt standard when the defendant makes a categorical denial of the charge. In the present case there is ample corroboration to support the verdict. In the first instance, we have the physical scarring of the complaining witness as well as the cuts, bruises and abrasions which were seen shortly after this incident by two witnesses. This corroborative evidence and testimony clearly distinguishes this incident from the rape situation where there is no visible physical mistreatment available for corroboration.

[1-3] It is true that the testimony and evidence should be subject to close scrutiny; however, we do not see in this case, and particularly in the suggested areas of inconsistency in the testimony of the prosecuting witness, how the defendant may state that his wife's entire testimony should be disregarded because of alleged inconsistencies as seen by defendant. The defendant cites People v. Fitzgibbons, 343 Ill. 69, 72, 174 N.E. 848 (1931) for the proposition that ". . . where evidence is offered substantially impeaching the truth of her statements and the defendant denies the crime her evidence should be corroborated." This does not have application to the facts of this case since we find no substantially impeaching evidence as to the testimony of the prosecuting witness. At best, there may have been some minor discrepancy in the testimony of the prosecuting witness and the corroborative witnesses; however, as the State pointed out in its brief in citing the case of People v. Cooper, 69 Ill. App.2d 18, 21, 216 N.E.2d 168 (1966), minor discrepancies and inconsistencies in testimony go only to the weight to be given to the testimony. Moreover, we do not feel that we need meet the problem or situation as raised in the case of People v. Kazmierczyk, supra, for the present case is not one of a prosecuting witness's testimony standing alone against the categorical denial of the defendant. Rather, there is ample corroborative proof to substantiate the testimony of the prosecuting witness and to meet the reasonable doubt standard imposed upon the State.

The defendant next suggests that the trial court erred in allowing hearsay testimony from the two corroborating witnesses, namely, the defendant's eleven-year-old daughter and a neighbor woman. Defendant takes particular issue with the fact that the daughter of the parties testified as to the events which took place on the evening in question when she had no immediate knowledge of it and could not remember the exact date when the incident occurred. We have carefully reviewed the record of testimony of the daughter. Although the defendant urges that there was reversible hearsay testimony presented by this witness, we are unable to find any objection by the defense counsel during the trial, nor are we able to find any hearsay testimony elicited by the prosecution which would be the foundation for reversal. The only comment by the defendant's daughter referring to the events of the evening in question, made outside of her own knowledge in reply to a query by the State, was upon request of the defense counsel. The State asked the witness when she saw the injuries on her mother, the colloquy between the parties being as follows:

Q. "What kind of injuries?"

A. "After that on December somewhere, after I came home from my girl friend's she had cuts, great big ...


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