Appeal from the Circuit Court of Cook County; the Hon. JACQUES
F. HEILINGOETTER, Judge, presiding. Reversed.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Defendant appeals from a conviction, after a jury trial, of the offenses of rape and robbery. Judgments were entered and the defendant was sentenced on the rape count for not less than ten nor more than fifteen years and on the robbery count for not less than five nor more than ten years, the sentences to run concurrently. Defendant raises two points on appeal: (1) he was not proven guilty beyond a reasonable doubt; and (2) that since his identification by the complaining witness was doubtful, vague and weak, his alibi evidence should not have been disregarded.
Testimony of Wynice Thomas, Complaining Witness:
She is married and lives at 4023 West Polk. On June 10, 1966, at approximately 9:00 p.m., she drove to the home of her husband's cousin to visit a sister-in-law. The prosecutrix, her sister-in-law, and her cousin then drove to a tavern and had a beer. They left and drove to another tavern near Pulaski and Lexington. They each had another beer and then drove back to the cousin's house and sat in the car and talked. About 2:00 a.m. the prosecutrix drove home after stopping for some barbecue and parked the car in front of her house. She got out of the car and a man approached her from the rear and asked for money. She said she had about $50 from work and handed him her purse which he refused to touch. He told her to get the money out and give it to him.
The man was wearing work clothes with a dark, waist-type jacket and a cap. She gave him the money and asked him what else he was going to do to her. She was told to shut up. She asked the man not to harm her but he again told her to shut up. The man had her by the arm and kept the other hand in his jacket pocket as if he had something. He walked her across the alley from her house and through a gangway to the back of some stairs. He told her to undress and lie on the ground. She did as she was told. All this time he had his hand in his jacket pocket. The man then got on top of her, put his hand over her eyes, and had intercourse.
When he finished he told her to stay there until he left. After a couple of minutes she got up, walked across to her house and rang the doorbell. She was crying and nervous. However, when she first walked in, she did not say anything to her husband. She had the barbecue and her undergarments in her hands. As she was walking towards the bathroom she put the barbecue on the table. The first time she said anything to her husband was when he asked her what was wrong. She told him she had been raped and robbed. She then went into the bathroom and took a douche.
Later that night she went to the hospital. She was with the defendant for approximately thirty to forty minutes and identified him in court.
About two weeks after the attack she identified the defendant in a lineup consisting of four men, all Negroes, of different weights and heights.
There are no streetlights in front of or directly across from her house. The only lights are at either end of the block near the corners. She did not see the man come up behind her and could not recall which hand he used to grab hold of her arm or take her money. She did not yell for help at any time. The man did not rip any of her clothes nor did he strike her. She suffered no cuts or lacerations. The man had one hand over both of her eyes but she did not know where the other hand was. She was not held down.
On June 12, 1966, she picked out a photo of the defendant at police headquarters. She said it was similar looked something like the man. When asked by the defense if she couldn't be sure if the photo of the defendant was the man, she answered, "That's correct."
On June 28, 1966, a police officer came to her home and showed her a single photograph of the defendant. He told her the man in the photo was in the lineup. She was then driven down to the Maxwell Street Station where approximately three or four hours after viewing the single photograph of the defendant she viewed a lineup. She recognized and identified the defendant.
The complaining witness testified that the photograph she was shown on June 12, 1966, and the one shown to her on June 28, 1966, were not the same. When she saw the single photograph of the defendant on June 28, 1966, she was not shown the earlier picture. When asked if the man in the two photos was the same she answered, "It was a good resemblance."
Testimony of Willie Thomas, called by the State:
He is the husband of Wynice Thomas. On June 11, 1966, at approximately 3:00 a.m. he was home with his children. He heard the doorbell ring and let his wife in. She was crying and he asked her what was wrong. She said, "I got raped and robbed!" She was carrying her girdle in her hand. She went to the bathroom to take a douche while he called the police. His wife had left home about 8:30 or 9:00 p.m., later came back, and then left again.
Upon cross-examination he stated that his wife went out at 1:30 or 2:00 a.m. on June 11 and drove over to his aunt's house. His wife had picked up his sister and Georgia Lee, his cousin, about 9:00. They returned to his house about 12:00 and left again about an hour and a half later. His wife did not tell him she was going to stop at Lexington and Pulaski but only asked if she could bring him some food. There had been no drinking at his house.
At a prior hearing held on November 3, 1966, the witness testified that his sister had called his wife so that that she could be picked up. However, at trial the witness stated that he made a mistake in that his sister did not call for his wife to come and get her. Mr. Thomas also testified at the previous hearing that his ...