Appeal from the Circuit Court of Cook County; the Hon. SIDNEY
JONES, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
In a bench trial, defendant was found guilty of the offense of aggravated incest, in that he knowingly had sexual intercourse with his 13-year-old stepdaughter in violation of chapter 38, § 11-10(b), Ill Rev Stats. He was sentenced to the penitentiary for a term of four to eight years.
On appeal defendant asserts prejudicial trial errors in that the trial court (1) improperly restricted the cross-examination of defendant's wife and mother of the victim, who testified as a State's witness, and (2) permitted the State to argue after both sides had waived argument and reopened the proofs, after both sides had rested, to permit one of the State's witnesses to testify as a court's witness.
At the trial the prosecutrix, defendant's stepdaughter, testified that sometime during the early morning hours of February 1, 1967, she was awakened by defendant standing over her, naked and with a knife in his hand. Her brother Donnie, aged 12, shared her bedroom, and he was awake at the time defendant entered the room. The prosecutrix related in detail defendant's act of sexual intercourse with her, the tearing of her pajamas, the washing out of a bloody sheet, and the giving to her of $10, admonishing her not to tell anyone. He also gave a dollar to Donnie and admonished him to remain silent. The prosecutrix then dressed and with Donnie went to a neighbor's apartment (Mrs. Wheeler), who telephoned the witness's mother, who was visiting in Birmingham, Alabama, and then called the police. The prosecutrix was then taken to Billings Hospital, where she was examined by a doctor.
The testimony of the prosecutrix was substantially corroborated by her brother Donnie and Patricia Wheeler and Alice Walker, neighbors who lived in the building. Patricia Wheeler lived on the first floor, and the Wilders lived on the third floor. Patricia Wheeler testified that the prosecutrix came to her apartment with Donnie in the early morning of February 1, 1967, appearing very upset. After having a conversation with the prosecutrix and Donnie, she called Edith Wilder in Birmingham, Alabama. The prosecutrix spoke with her mother, and after that conversation Patricia Wheeler called the police. Alice Walker also arrived at her apartment, and she left with the Johnson children and the police.
Alice Walker, as a State's witness, testified that in the early morning of February 1, 1967, she received a telephone call from Mrs. Wilder at approximately 1:45 a.m., from Birmingham, Alabama. She began a conversation with Mrs. Wilder, stopped, and went downstairs to Mrs. Wheeler's apartment. She brought the prosecutrix back upstairs to her apartment and terminated the call. Later the police came to her apartment, and she went with the police and the prosecutrix to Billings Hospital, where a doctor examined the prosecutrix. On the way to the hospital the prosecutrix gave her a ten dollar bill, which she gave to Officer Downey.
Edith Wilder, defendant's wife, testified for the State. On January 31 and February 1, 1967, she was in Birmingham, Alabama, with her mother and was on friendly terms with defendant before she left. She received a telephone call early in the morning from her daughter, the prosecutrix. After terminating that conversation, she called Alice Walker, who lived on the third floor. On February 1, 1967, her daughter, the prosecutrix, was 13 years old.
Police Officer John Downey testified he was assigned to investigate the occurrence. He went to Billings Hospital and talked with the prosecutrix and Alice Walker, who gave him a ten dollar bill, which he marked. After going to the hospital, he went to 1140 East 64th Street, where he went to the third floor with another police officer, the prosecutrix and Mrs. Walker. He entered the apartment and observed a knife lying on a table inside the door. Hearing a noise in the rear of the apartment, he found the defendant, Ned Wilder, cooking in the kitchen. The prosecutrix identified the defendant, and Officer Downey arrested him.
The court received into evidence as State's exhibits the knife, the torn pajamas of the prosecutrix, a bed sheet and the ten dollar bill. It was stipulated that the Chicago Crime Laboratory had examined the sheet and pajamas, and that both contained dry human blood and spermatozoa. It was also stipulated that Dr. Merrick would testify that on February 1, 1967, he conducted a vaginal examination of the prosecutrix, and that various chemical tests indicated that human spermatozoa was on the swab. The State then rested its case in chief.
Defendant testified and recounted his whereabouts during the entire night of January 31 and February 1, 1967. He had sexual relations with two different women. He left the first one about 10:30 p.m. and was in the company of the other from 11:30 until about 1:30 a.m. He further said that he was home at 5:00 a.m. on February 1, 1967, and that he was home earlier on that night. Defendant's account of his whereabouts was supported by the direct testimony of Anna Britton and by a stipulation as to the testimony of Susie Addison to the effect that defendant left her home at approximately 1:30 a.m. on February 1, 1967.
In rebuttal, Edith Wilder and Officer John Tully testified for the State. Edith Wilder testified that at 11:30 p.m. on the night in question she received a telephone call in Birmingham, Alabama, from defendant, who told her he was at home. At 1:30 a.m. she received a call from her daughter. Later she called defendant, who answered the telephone, and she asked him what he had done. He said nothing. He also told her that Rendella and Donnie were not in the house. Later on that evening defendant called her again and asked what happened, and she told him nothing. Ten or fifteen minutes after that she had a telephone call from Mrs. Wheeler and talked to a detective. After the incident she separated from the defendant.
Officer Tully testified that he was the first police officer on the scene, and that after his arrival and prior to taking the prosecutrix and Mrs. Walker to Billings Hospital, he searched defendant's apartment. He found no knife, no sheet, no torn pajamas. All he found was one small boy sleeping, and defendant was not present at that time.
At the conclusion of Officer Tully's testimony both sides rested and waived final argument. Then the State was permitted, over defendant's objection, to argue. Defendant's counsel also argued at the time. Thereafter, and following an extended colloquy, the trial court, over the objection of the defendant, reopened the case and examined Officer Tully as a court's witness. Officer Tully stated that he did not look for evidence in searching the apartment, only for the offender. After examining Officer Tully, the court remarked: "Well, that was the only point that disturbed the Court. I can't hold it against the State because the officer didn't operate as I thought perhaps one would have operated under those circumstances, but I think the evidence is overwhelming. There is no dispute, too, that there was sexual intercourse. There was all the evidence as to that. There will be a finding of guilty."
Considered first is defendant's contention that the court erred in restricting the cross-examination of defendant's wife when she testified in rebuttal. Counsel for defendant opened the cross-examination with the question, "Mrs. Wilder, you lied before on the stand haven't you?" The State's objection was sustained, and after further attempts to impeach the credibility of this witness by showing that she had previously lied on the ...