Appeal from the Circuit Court of Cook County; the Hon. JACQUES
F. HEILINGOETTER, Judge, presiding. Affirmed as modified.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a 2-count indictment defendant, Willie Charleston, was charged with the offenses of attempted rape and armed robbery. In a bench trial he was found "guilty as charged in the indictment," and he was sentenced to the penitentiary for a term of two to ten years. On appeal he contends that the essential elements of the two offenses were not established, and that he was not proved guilty beyond a reasonable doubt.
The prosecuting witness was Mrs. Dena Anderson, married for five years and the mother of three children. On October 13, 1966, at 12:30 a.m., she left work, and as she proceeded home she stopped to pick up food from a take-out service. As she walked east on 47th Street she noticed the defendant, whom she recognized, standing outside a liquor store, dressed in a dark hat and a corduroy coat and wearing tinted glasses. As she walked she became aware that she was being followed, and as she looked around she saw defendant coming behind her. She started to run, but defendant struck her on the neck and knocked her down. She had a ten dollar bill in her hand, which she gave him saying, "here is this money," and he accepted it. He kept saying, "Get your stuff, get your stuff, you're going with me." She was screaming loudly, and defendant "stomped" on her hand. She further said, "So while I was on the ground, his hand and fists went under my dress. And so he said he want me, `I'm going to have you for a little while.' . . . I was near the curb, he was trying to push me under the car. I kept screaming and he kept telling me to shut up." A man came out of a house, and she heard a shot, and the defendant went down the street. The man fired two more shots. Defendant had a knife and cut her leg and smashed her hand, which caused her to be taken to a hospital for treatment.
At the trial the prosecutrix identified defendant as her assailant and said, "I have seen Mr. Charleston before the morning of October 13th. The number of times I have seen him, well, about five years I have seen him in the neighborhood. When I first observed the defendant on the street, the streetlights was on. I was about ten feet from the nearest streetlight where this incident occurred."
The prosecutrix further testified that for the next few days after the attack she was met by her husband after work. On October 19, 1966, she went to a doctor's office at 47th and Lake Park Avenue with her sister and saw the defendant in front of a cleaning shop at about 3:00 p.m. She looked at him across the street, and "he saw me, and he turned his back, and the other two fellows kept on looking." While she was in the doctor's office she looked out the window and saw the defendant and his companions cross the street and go into a recreation room. She called her husband and the police.
Upon the arrival of the police, defendant was in the recreation room. The prosecutrix pointed defendant out to a police officer and said, "Yes, this is the fellow that attacked me," and defendant was placed under arrest. She further said that on October 13, 1966, the defendant was wearing a brown corduroy coat, tinted glasses and a dark hat. When he was arrested on the 19th he was wearing a brown corduroy coat, tinted glasses and a dark hat. She did not pay any attention to his trousers.
On cross-examination the prosecutrix said that when she first noticed defendant she recognized him as a friend of her husband, and that she knew his name was Willie Charleston. On the night of the incident she gave the police a description, which included his height, weight, clothing and glasses but not a mustache. She said, "They didn't ask me about no mustache, and I did not look. I didn't tell them he had a mustache and I didn't give any description as to any scars on his face at the time. He did not ever put the knife in my throat, only in the leg." She told the police that she had seen her assailant before and would recognize him if she saw him again. She did not reveal that she knew his name because she was afraid of his seeking revenge, since he had been bold enough to attack her initially. She denied ever being with her husband and the defendant at a social occasion or otherwise.
Police Officer Dammons testified that he fired the shots which caused the assailant to flee. He was visiting a friend to repair a television set after he was off duty at 11:00 p.m. At about 1:30 a.m. he heard a woman scream and saw a man on the street struggling with a woman. Running out the door he shouted, "Police," and fired one warning shot. The assailant began running, and he fired two shots at him. Officer Dammons further said, "I did not ever see this man's face at the time, his back was to me. I noticed his clothing. I noticed his height and build. He had a hat on, which color I couldn't state. He also had a brown coat, similar to a car coat, corduroy. I saw the defendant in police custody on October 19th, 1966 . . . he was of the same height and build as the man I saw running away on October 13th." He identified a brown coat as the coat worn by defendant when he fired shots at him. After he fired the two shots he picked the girl up from the curb, and she was taken to a hospital "She was bleeding, she was crying, she was hysterical. . . . I know this girl to be Mrs. Dena Anderson." Officer Dammons also testified he heard defendant swearing at the prosecutrix, "something like, `Shut up, bitch, shut up, bitch,' and something to the extent however, `I am going take you with me for a little while.'"
Police Officer McMillan testified that pursuant to a radio call on October 19, 1966, he went to 47th and Lake Park Avenue and met Mrs. Dena Anderson, the prosecutrix. At the Kimbark Community Social Club he arrested defendant after the prosecutrix pointed him out by saying, "That's the man." Defendant was wearing a corduroy coat and a pair of brown tinted glasses. Defendant had no weapon on him and denied committing the crime.
Defendant testified he was with certain people on the date in question, accounted for his whereabouts at the time in question, and admitted knowing the prosecutrix and her husband. Two other witnesses placed defendant in their presence during the time in question.
A defense witness, Gerry Marie Evans, testified she had known the prosecutrix since they were children. She was the financee of defendant, and on an occasion in June or July of 1966, the prosecutrix, her husband, the witness and defendant were together in a cocktail lounge and sat at the same table, where they engaged in conversation.
Considered first is defendant's contention that he was not proved guilty beyond a reasonable doubt because (1) it was incredible for the prosecutrix to give the police a description of a man she knew and not give them his name; and (2) it was unbelievable that she could have positively identified her assailant and not recall whether he had a mustache.
Defendant charges that the statement of the prosecutrix that she did not give his name initially because she was frightened was a paltry explanation and unbelievable. If she were indeed frightened, "having him arrested and put into custody would end her fear. The true reason for her failure to tell the police his name was that she did not know who accosted her. It was simply a figment of her imagination." Defendant also contends that it is unbelievable that the prosecutrix, who allegedly could positively identify her assailant, did not recall a mustache.
Defendant also notes that the husband of the prosecutrix did not testify and he could have corroborated his wife's testimony. Defendant contends that the testimony of the prosecutrix is contrary to natural law and to human ...