Appeal from the Circuit Court of Cook County; the Hon. F.
EMMETT MORRISSEY, Judge, presiding. Affirmed.
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Rehearing denied April 6, 1970.
In a bench trial defendant was found guilty of the offenses of rape and deviate sexual assault. He was sentenced to the penitentiary for a term of 8 to 20 years. Defendant admitted the acts but asserted consent of the prosecutrix. On appeal he contends (1) that he was not proved guilty beyond a reasonable doubt; (2) prejudicial trial errors were committed; and (3) that the State failed to prove venue.
On September 18, 1967, at about 8:30 or 8:45 p.m., the prosecutrix, age 16, was walking alone across the Ford City parking lot in Chicago to meet her boyfriend. Defendant pulled up in an automobile and asked what her name was and how long she had lived in the neighborhood, and she answered him both times. He then told her he had a gun and that she should get inside the car or he would shoot her. She saw an object in the crook of his arm that she took to be a gun. No one else was in the vicinity at that time. She testified, "I stood there. I didn't know exactly what I should do. He told me to walk around in front of the car and get inside, otherwise he would shoot me. . . . He said, `Just get in the car and shut up.' And he said, `There is no need of screaming or yelling or running anywhere because no one will hear you.'" She complied with defendant's order and got into the car, a 2-door dark maroon sedan with bucket seats in the front. She was made to sit on the floor in the front with her head on the seat.
The prosecutrix testified that they drove for quite awhile, during which time they had a conversation involving "love" and "metaphysics." During the time they were driving they stopped at stop signs and stop lights, but she made no effort to get out of the car. They eventually stopped "somewhere out in open land," where there was grass on either side of the car. Defendant then told her to take her clothes off, and she got out of the car and ran for about 100 feet until she was caught by defendant. He again told her to take her clothes off or he would rip them off, and she complied. He then told her to get in the back seat, and they had sexual intercourse. She made no effort to resist him. They got dressed and went into the front seat, where defendant grasped her neck and said, "You are going to do what I tell you to do," and forced her to engage in an act of oral copulation as they were driving. They then stopped and defendant told her she could get out and go home. She got out of the car and they kissed goodby, defendant telling her that she was a real good girl and that if she went to the police they would take her to a hospital, and it might be embarrassing.
The prosecutrix was let out of the car near 79th and Kedzie, and at about 10:30 p.m. she entered a Chicago fire station in that vicinity to call her father. She told a fireman on duty that she had been raped. The police came to the fire station, and she was taken home and then to Holy Cross Hospital. Later that night she was taken to a police station, where she identified defendant.
The prosecutrix was extensively cross-examined. She said that she was about the same height as the defendant and weighed about 138 pounds. She never gave defendant permission to have intercourse with her, and in response to the question, "You made no physical resistance as such when he was having relations?," she answered, "I didn't know how. I didn't know what to do. . . . I never had any training, nobody told me anything. All they said, don't get into a situation like this, but nobody ever told me what to do if I got into a situation." In response to the question, "Wouldn't your natural instincts tell you to do something?," she answered, "I don't know what to say to that."
The State's witnesses included Peter T. Murphy, a Chicago fireman, and Police Officers Allman and O'Driscoll. Fireman Murphy testified that about 10:30 p.m. he was on duty in a fire station at 8026 South Kedzie. It was raining, and the prosecutrix walked into the station and asked to use a telephone. He asked her if something was wrong, and she said, "Well, I just want to call my father." She was a little nervous, so he asked her if he could help her, and she said she had been raped. Officer Allman testified that he answered a call at the fire station. He took the prosecutrix home and then drove her and her mother to Holy Cross Hospital. Officer O'Driscoll testified that the prosecutrix gave him defendant's credit card, which she found in the car, and then arrested defendant in his home.
It was stipulated that Dr. Smalley, if called to testify, would testify that he conducted an examination of the prosecutrix on September 18, 1967, and that spermatozoa was found in a smear test. It was also stipulated that there were no marks or bruises on the body of the prosecutrix, nor any torn clothing.
Defendant testified that he stopped his car where the prosecutrix was walking. He asked her name and where she was going, and she told him she was going to meet her boyfriend. He asked her if she wanted to take a ride with him. She said, "What do you want to do?," and he said, "Just drive around." She said, "All right," and got in the car. He had no gun at the time and did not use physical force to get her in the car.
Defendant said that when she got in the car she mentioned that she hoped no one who knew her would see her do this, so he suggested she get down on the floor. As they were driving he stopped many times, but she never attempted to get out of the car. They traveled for a period of thirty-five or forty minutes, during which time they discussed love, religion and metaphysics. He told her that he wanted to make love to her and that he could teach her something about love, and she said, "No, you can't. I know already." She then asked him if he was married, and he said no. When he stopped the car he kissed her, but she ran out of the car and stopped and turned around. She had a pleasant look on her face and walked back to the car with him of her own free will. He did not drag her and used no force, and while they were having sexual intercourse she in no way resisted him and, in fact, was receptive.
When they were finished they drove back to a residential area close to Ford City. She made no attempt to get out of the car when they made stops. When they arrived in the area she kissed him and left. He told her that she had been very, very enjoyable that evening, and that he had enjoyed her company immensely and also her conversation. She mentioned that her father would be angry because she was arriving home so late, and that "she would tell him that somebody forcefully picked her up in a car." He told her not to do so because her father would call the police and she would be taken to a hospital, where there would be embarrassment.
Defendant's wife, Elyce Taylor, testified she had been married to defendant for seven years and they had three children with "one on the way." She said that when the police came to arrest defendant at their home, he was in a bedroom, undressed. The police searched the premises for a gun, but her husband did not have one and she never saw him with a gun.
Initially considered is defendant's contention that the State failed to prove venue. Defendant argues that the prosecutrix testified that she was picked up by the defendant in the Ford City parking lot, and that she did not state that the parking lot was in Cook County. Also, she said that she entered defendant's car at approximately 8:30 and entered the fire station at approximately 10:30 or 11:00. She further stated that defendant drove on a dirt road to some open land, where the intercourse took place. Defendant asserts that "within an hour [he] could have driven to Will, Kendall, Lake or DuPage County." On this point the record shows the following:
Mr. Van Zeyl: "State rests its case in chief subject to a stipulation from counsel as to the age of the defendant and all of the events occurring in the City of ...