Appeal from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding. Affirmed.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
Defendant, Edward Lee Sevastos, has appealed from a judgment of conviction of the crime of attempted kidnapping, entered upon a jury verdict. Defendant was sentenced to the penitentiary for a term of 2 to 5 years.
The appeal raises the questions: whether the testimony was sufficient to convict; whether defendant was prejudiced by remarks made by a judge in the courtroom where part of the jury panel was present on the day prior to the trial; and whether it was error to permit the State to bring out the precise nature of defendant's prior felony conviction on cross-examination when he had admitted to a prior felony conviction without identifying the crime, on direct examination.
Defendant's argument that the proof is insufficient, more precisely is directed to a claim that the testimony of the complaining witness, allegedly uncorroborated, was insufficient to support the conviction in view of defendant's complete denial.
Mrs. Constance Morgan testified that on the evening of September 8th, 1968, she and her husband had taken clothes to the laundromat to be laundered. They returned to their apartment which was 3 or 4 blocks away where they visited with friends, Curtis Sowl and his wife. Later Mrs. Morgan returned to the laundromat to pick up her laundry and returned at about 9:45 or 10:00 p.m. in her car which she then parked on a street to the side of her apartment building. She took the laundry out of the car and was approximately halfway to the steps of her building when she saw a car pull up in back of her car. She testified that she saw a man get out of the car, whom she later identified as the defendant, that he grabbed her as she was walking toward the stairs and put his hand over her mouth, telling her to shut up or he would kill her; that he put one hand on her neck and she started screaming for her husband and then he was choking her and then she was on the ground. She said:
". . . he was sort of like dragging and just choking and by this time I knew I was by his car. I don't know how I got there."
She testified that defendant was trying to push her into his automobile and she was hanging onto the door and as she got halfway in the car she was hanging onto the steering wheel; that after he got her in he was choking her for awhile, and then she was on the passenger's side and the next thing she remembered was that her husband was there and was pulling her out. She testified that when she was placed in the car she was lying down on the front seat of the car and was screaming; that she had not seen her husband approaching the car; however, when her husband opened the door, she was sitting up on the passenger's side of the front seat. She said she was in the car approximately a minute or two. The complaining witness testified that Mr. Morgan tried to disconnect something under the hood of the car and he was beating on the top of the car roof with a piece of wood. Mrs. Morgan further testified she saw the car's license plate, but did not obtain the last digit; and that she received a cut and a scratch or bruise on her eye, a cut on her leg and scratches on her neck (photographs taken of the complaining witness on the following day at the Rockford Police Department were introduced as Exhibits).
Edward Morgan testified that he was becoming worried since his wife had not returned from the laundromat. He had gone to the back door and had then started walking down the stairs, at which time he saw some of the clothes his wife had taken to the laundromat laying on the ground and saw that the clothes basket was tipped over with some clothes still in it. At that point he heard his wife screaming and proceeded down the stairs, but could not see anyone in either car until he opened the car door of the other vehicle and saw his wife and then pulled her from the car.
Defendant testified that he parked his car directly behind the complaining witness's car, rolled down the window on the passenger's side and called to her to come over. That she came over and entered the car and they were talking when the husband approached the car, and that this was the first time she screamed. He stated that he didn't see the basket of clothes upset, but that he saw her lay it down when she came into the car. He denied any threat to the complaining witness, or that he put his hands upon her in any way.
Curtis Sowl testified that he heard Morgan going down the back stairs and he went to the bedroom and looked out. He saw the defendant's car and someone behind the wheel. He saw the complaining witness in the car and saw the husband on the bottom of the stairs. He testified that the first time he heard any screams was when the husband opened the door and pulled his wife out of the car.
[1-4] The testimony of the complaining witness and that of the defendant are completely opposed. But even if it could be said that the complaining witness's version of the occurrence was uncorroborated, there was sufficient evidence to convict. The testimony of even one witness, if positive and credible, is sufficient to convict in a criminal prosecution even though it is contradicted by the accused. The People v. Novotny, 41 Ill.2d 401, 411, 244 N.E.2d 182 (1968). The jury is not bound to accept defendant's exculpatory statements as true in any event. The People v. Warren, 33 Ill.2d 168, 174, 210 N.E.2d 507 (1965). It has often been stated that the courts will not reverse a judgment of conviction unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to justify entertaining a reasonable doubt of defendant's guilt. The People v. Williams, 40 Ill.2d 522, 526, 240 N.E.2d 645 (1968). We do not so find the evidence in this case.
The problem here clearly was one of credibility. There was testimony of the husband of the complaining witness, as well as physical facts, which could have been found by the jury to corroborate the testimony of the complaining witness. That there was conflicting testimony and the possibility of conflicting inferences from the physical facts created issues of weight and credibility which were for the trier of fact. No injustice is apparent from our view of the record in the way the jury resolved the issues.
Defendant's claim that he was deprived of a fair trial because of remarks made in the presence of the jury panel, relates to events which occurred in another courtroom and before a judge other than the trial judge on a day prior to the trial.
At that time the entire unassigned jury panel was in the rear of the courtroom of the chief judge. Defendant appeared before that judge with his counsel and made a motion for a change of venue from the county and also for a change of judge. The court stated that he ...