APPEAL from the Circuit Court of Rock Island County; the Hon.
DAN McNEAL, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Mack Arthur Wilson was convicted in a jury trial of the crime of forcible rape. Defendant did not testify at the trial. There was no direct evidence as to defendant's age. Defendant appeals to this Court contending that his conviction should be reversed because of failure to prove his age. He also raises various other questions relating to evidence admitted during the trial and the closing argument of the prosecutor.
The complaining witness, Beverly Banks, was 17 years of age. She was a senior at Rock Island High School where she had a B-plus grade average. Miss Banks had known defendant Mack Arthur Wilson for about two years but had dated him only once prior to September 5, 1969. On her only date with defendant, she went skating and after the party, they went to Sunset Park where they had kissed. She did not think that defendant was married as no one had ever told her anything to make her suspect he was married.
On the night of September 5, 1969, Beverly Banks left home about 9:00 P.M. with her sister. While they were waiting around Stop and Shop Liquor Store, she had occasion to see defendant although they did not have a date previously arranged. Defendant said that he wanted to see her and asked her to wait. He returned thereafter about 11:00 P.M. They drove to a dance at the "Y" in Moline where they arrived at 11:30 P.M. Defendant went into the dance, and Miss Banks did not, but stayed outside to talk to another girl and with some boys until about 12:00 A.M. on the morning of September 6, 1969. Defendant returned to the automobile and Miss Banks and defendant left and thereafter stopped at a tavern. Defendant picked up a six-pack of beer. Defendant drank one or two cans of beer. They then stopped at a gas station where defendant visited with a policeman friend. The officer testified that he remembers "kidding" defendant and asking him if that was his wife with him. After they left the gas station, Miss Banks asked defendant if he was going to take her home or back to the dance. Defendant drove past the place where the dance was being held and drove to Hampton Bluffs where he stopped the automobile and talked with Miss Banks. Miss Banks asked defendant to take her home but he refused, saying he had to talk with her. She finally got out of the car saying she was going to walk home. Defendant got out of the car and offered to take her home but when she got back into the car he still said that he wanted to talk. She got out of the car again and defendant got out and grabbed her by the arm and said he would take her home so they got in the car and drove away. As they drove on further, Miss Banks could see that defendant was not taking her home and she got a pair of sharp pointed scissors from her purse. Defendant stopped again on a gravel road and attempted to kiss Miss Banks telling her that he wished to engage in sexual intercourse. Miss Banks opened the door to get out of the automobile and as the defendant reached out to pull her she hit him in the right wrist with the scissors and jumped out of the car. Defendant caught her outside the car and twisted her hand behind her back and took the scissors from her. As another automobile came by, defendant threw Miss Banks into the ditch, twisting her arm, and holding his hand over her face so she could not scream. They got back in the car and defendant made repeated advances trying to force Miss Banks to lie down on the front seat of the car. Miss Banks refused, saying that her religion did not allow her to have intercourse before marriage. Defendant then pushed her down on the front seat with her head under the steering wheel. Miss Banks stated that defendant had her left arm pinned down with his hand and her right arm was pinned down on the seat. While defendant was on top of her, he unzipped Miss Banks slacks and, according to her testimony, defendant penetrated her private parts by going through one of the leg holes of her underpants. Miss Banks testified she was kicking, moving and screaming during all of this time. She also said that at this time she began to bleed a little. There was no evidence of any rips or tears in her clothing, but there was evidence to show the presence of blood on her underpants. Miss Banks testified that prior to September 6, 1969, she was a virgin.
Defendant then brought Miss Banks home. She immediately told her sister what had happened and the family took Beverly to the hospital where she was checked. Dr. Cunningham, who examined her during the early morning of September 6, 1969, at the hospital, testified that in his opinion she had been penetrated and that this was the first time. The doctor also took vaginal smears to be analyzed. Several people connected with the hospital testified as to the slides with the smears, and over objection. Ruth Jennes testified that she found spermatozoa on the slides. There was a question raised as to the hospital procedures on the smear slides. Deputy DePew testified that he obtained Miss Banks' clothing for examination and that it was sent to the lab. A crime lab technician testified that she examined the clothing for blood and semen and all she found was blood on the underpants.
Miss Banks' parents along with Miss Banks went to find defendant the next morning where he was located at his job pumping gas for a trucking outfit in East Moline. Miss Banks identified defendant and her father then asked defendant if he had taken his daughter out and raped her. Defendant answered by saying, she should keep her "black ass" out of his car. Miss Banks' father told defendant he would get a warrant out for him and defendant said he didn't care as he would be waiting for them when they came. Miss Banks' father also testified that he saw some scratches on defendant's right hand.
During the opening argument in the trial of the cause, defendant's attorney indicated to the jury that he would show that defendant had an alibi. A list of alibi witnesses was furnished to the State but no such witnesses were used during the trial. Defendant did not testify during the trial. The jury found the defendant guilty. His post-trial motion was denied, and he was sentenced to from 4 to 10 years in the Illinois State Penitentiary.
The significant issue in the case was whether or not the State, as part of its case, was required to prove that defendant was above 13 years of age at the time he committed the alleged forcible rape. The Illinois Statute under which defendants was indicted defines forcible rape as "a male person of the age of 14 years and upwards who has sexual intercourse with a female, not his wife, by force and against her will, commits rape" (1969 Illinois Revised Statutes, ch. 38 par. 11-1). Defendant contends that the age of the defendant is a necessary element in the State's case which must be proven beyond a reasonable doubt. In any early case of Sutton v. People, 145 Ill. 279, the court considered the requirements for rape under common law and stated, at page 285:
"At common law, a boy under fourteen years of age was conclusively presumed incapable of committing a rape, and that strictness is adhered to in some jurisdictions in this country, but it has never been held that, in charging the crime as defined at common law, it was necessary to aver that the accused was, at the time, of the age of fourteen years or upwards."
The court then went on to say, at page 286, in holding that the averment in the indictment as to defendant's age was surplusage:
"That averment being surplusage, the people were not bound to prove it. Durham v. People, supra. If the defendant was in fact under fourteen years of age, and wished to avail himself of that defense, he was bound to prove it. The question would then have arisen as to whether he knew right from wrong, and perhaps as to his physical ability to commit the crime. The prosecution was not called upon in the first instance to introduce any proof whatever as to his age."
While the Sutton case was an 1893 case, later Illinois cases have adopted the same rule as to forcible rape. In determining the question relating to age where a statutory rape charge is made, however, a distinction is noted. In Wistrand v. People (1904), 213 Ill. 72, a statutory rape was involved. The court determined there that when statutory rape was the crime charged, proof of age of both the victim and the defendant was an essential element of proof, and the court further held that a jury could not determine defendant's age by his appearance alone. It is, therefore, apparent from the Sutton and Wistrand cases, that there was a distinction between forcible and statutory rape, and that the age of defendant was a requirement or proof by the prosecution in statutory rape, but was a matter of affirmative defense by defendant in forcible rape cases.
Other Illinois cases have followed the Sutton case when forcible rape was the crime involved. In People v. Schultz (1913), 260 Ill. 35, it was argued that the Wistrand case had overruled the Sutton case. The court, however, held (at pages 39-40), that there was a distinction between forcible and statutory rape and that this was still the law in Illinois. The court pointed out specifically that the burden of proof as to age of the defendant, if he was underage, would rest upon him. To the same effect is People v. Musial (1932), 349 Ill. 516, where this same distinction was held to be the law of Illinois. The court stated (at page 517):
"The crime charged is rape by force, against the will of Marion Blas, and it is not necessary in such case for the prosecution to allege in the indictment, or to prove, the ages of the defendants, and any allegation of the ages of the ...