APPEAL from the Circuit Court of Rock Island County; the Hon.
RICHARD STENGEL, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 10, 1971.
James Preston Starling was found guilty of forcible rape and sentenced to a term of from four to 15 years at a bench trial in Rock Island County. The sole question on review is whether the evidence was sufficient to establish that defendant was proven guilty beyond a reasonable doubt.
It is defendant's contention that he was not properly identified by the complaining witness and that his evidence established an alibi. Since we are concerned primarily with the facts as developed in the record in this cause, it is necessary that we discuss the evidence in greater detail than would otherwise be required.
Mrs. Ruth A. Simmons, age 64, the victim of the rape, lived in an apartment in Rock Island with an adult grandson. She was alone the evening of Sunday, October 26, 1969, and was in the kitchen preparing food at about 7:15 in the evening when she heard a knock at her door. The door was locked and also had a chain lock on it. She opened the door but left the chain lock on. The visitor, who was described by her as a "colored man", said he wanted to visit with her. She refused and the man pushed or pulled the door breaking the chain lock. Mrs. Simmons told the intruder to get out, but he struck her causing her head to go around "like a windmill". After she regained consciousness her attacker asked her if she was cooking supper for him. She told him that she was not and went to the kitchen to turn off the stove. He followed her and he turned off the stove. He then told her that if she tried anything he would kill her. He then struck Mrs. Simmons about 15 times on her face causing numerous bruises. Mrs. Simmons told the attacker, who was intoxicated, that she had no money but he said he was not after money. The attacker then took off his coat, came toward Mrs. Simmons and pushed her down on the bed and, while holding her with one hand, he raped her. She testified that, during the attack, she was wearing a housecoat and a half slip and that the attacker did not remove his underwear during the rape. During the act of intercourse, Mrs. Simmons was torn on her insides and bled quite extensively on herself and on the floor.
After the attacker left, Mrs. Simmons called the police and locked her door. The police received the call at 7:23 and they immediately went to Mrs. Simmons' apartment and took her to the hospital. One of the policemen picked up the bloody towel found in Mrs. Simmons' apartment. Officer Roy E. West was first to arrive at the apartment after the rape. He found Mrs. Simmons, who is white, sitting on the bed in the rear of her apartment. She told him she had been raped by a male Negro subject. She also told the officer that the attacker was wearing a black three-quarter length leather coat, black pants and a yellow sweater and was about 5 feet 7 inches tall. At this time, Mrs. Simmons did not mention that there were any marks on her attacker's face. The officer observed a knife in the apartment which the attacker had held on Mrs. Simmons, but Mrs. Simmons was so upset she stated that she washed it after the attacker left. Consequently, there were no fingerprints on the knife.
Dr. Otis, Mrs. Simmons' personal physician, testified that Mrs. Simmons had contusions on both sides of her head and a laceration and contusion on her left breast. The doctor also testified that there had been intercourse with Mrs. Simmons within an hour or two before the examination and that this had caused vaginal bleeding.
Officer Geiger returned Mrs. Simmons from the hospital to her home in an automobile around 10:00 o'clock P.M. the evening of the attack. As he talked with Mrs. Simmons on the way to her home, she described her attacker as a male Negro, 22 to 23 years old, about 5 feet 9 inches tall and wearing a black three-quarter length coat, black pants and a yellow sweater. She also said her attacker had a scar on the right side of his face. As Officer Geiger and Mrs. Simmons reached Mrs. Simmons' apartment building, Officer West pulled up behind them. The two officers both noted a male Negro fitting the description given by Mrs. Simmons coming from the rear of Mrs. Simmons' apartment building. He was the defendant James Preston Starling. He was wearing a black three-quarter length coat, black pants, yellow sweater and a white shirt. The officers stated that the man had been drinking. Starling was led over to Mrs. Simmons and while he was about one or two feet away, Mrs. Simmons identified Starling as the man who had raped her. Starling was then arrested and taken to the police station.
Mrs. Simmons again saw Starling at the preliminary hearing. She was later shown several photographs by the police and she picked out the picture of Starling as the man who raped her. During the trial, Mrs. Simmons identified Starling in open court as the man who raped her. She was cross-examined thoroughly about her eyesight, as she expressed some concern about being able to see when being shown the pictures of her apartment. When she was shown a photograph of the inside of her apartment, Mrs. Simmons said, "It looks familiar, but I can't really tell you, there's the door there, I don't know whether he took this * * * is this supposed to be inside?". She then said she couldn't see very well without glasses. It was shown that Mrs. Simmons did not have her glasses on during the rape or when she identified defendant on the street in front of her apartment. She also testified that in 1942 she had injured her eyes and had lost her eyesight for about two years but had regained her sight. She further said that one eye specialist stated that she had cataracts and that one told her that she did not have cataracts. Mrs. Simmons also stated that she did not wear glasses now and could see all right without glasses.
On redirect examination she described details and photographs taken of her apartment and she described the defendant's appearance and clothing the defendant was wearing in court from a distance of 12 feet. At a distance of 4 feet she could tell that he had dark eyes. She also stated that the man who raped her said he would be coming back at 11:00 o'clock the next night. She identified the towel introduced in evidence as the one she used to wipe blood from her body after the rape. There was no direct testimony as to the lighting in the Simmons apartment during the rape, other than the fact that Mrs. Simmons was working in the kitchen preparing food when the attacker entered. There was no showing that any lights were turned off during the time the man was in her apartment. A witness, Joe Earl Howard, a cousin of defendant, placed defendant in the Bridges' apartment across the hall from Mrs. Simmons apartment the evening of the rape. This witness stated that he saw the defendant in the Bridges' apartment at 6:00 o'clock P.M. when Howard went to sleep.
Julia Bridges who lived in the apartment with Joe Earl Howard was also called as a witness for the State. She testified that Starling was in her apartment with her and two other men the afternoon and early evening of the day of the rape. She saw Starling leave about five minutes after seven in the evening and stated that she saw him walk outside of the apartment building.
Officer West also testified for the State. He was one of the officers who arrested Starling and was present at the police station when defendant removed his clothing. Officer West testified that there was blood on defendant's undershorts when defendant removed them in the police station around 10:30 the evening of the rape. West further stated that he found no blood on any of defendant's other articles of clothing.
Defendant's evidence consisted of alibi witnesses and testimony to explain the presence of blood on his undershorts. Defendant stated about 1:00 P.M. on Sunday, October 26, 1969, he was in the Clover Club in Rock Island and drank beer with a friend. They left, visited a friend's house and then another tavern, where the defendant drank beer, and about 4:00 to 4:30 in the afternoon he got to Joe Howard's apartment. This was the Julia Bridges apartment across the hall from Mrs. Simmons where Joe Howard and Julia Bridges lived together. There were three men at the Joe Howard apartment, defendant, Joe Howard and a man named Felix. Julia Bridges testified that she arrived at the apartment about 5:00 P.M. and that defendant was in the apartment. She said she had been with the three men earlier in the afternoon and they had been drinking and had continued to do some drinking in the apartment after 5:00 P.M. She said that Joe Howard was intoxicated and that all three men fell asleep. She remembered that Starling left the apartment about five minutes after seven that evening. She did not know how much defendant had to drink that day but she thought he was not drunk. As we have indicated, she stated that she saw Starling walk out in the alley. Starling testified that after he left the Bridges apartment he walked to the Charles Speights house seven or eight blocks away and that he arrived there four or five minutes after he left the Bridges' apartment.
Mr. and Mrs. Speights stated they were just arriving home in their car and that Starling was there. They stated they arrived home about 5 or 10 minutes after 7:00 P.M. as Speights wanted to be home in time to watch the Bill Cosby Show on T.V. Speights said that after sitting in the house with Starling a few minutes he and Starling left and went to Duncan's Liquor Store arriving there about 7:30 to 7:35 P.M. They then drove down Ninth Street and drank some liquor and picked up a friend.
William Starling, defendant's brother, testified that he saw defendant about 7:35 P.M. at his aunt's house when defendant stopped by for a short visit. He also remembers the time as he had just begun to watch the Bill Cosby Show. At about 10:15 P.M. defendant asked a friend to take him to his cousin, Joe Howard's house. Defendant stated that he went into the building, and when Julia could not waken Felix, defendant left and was apprehended by police in front of the apartment.
When Julia Bridges was testifying for the State, on cross-examination, she told of seeing a Bob Kittrell drive up in the alley about 7:30 and that he left his car and went into the back of the building. She said she saw him leave in a hurry about 10 or 15 minutes later. This was the first time Julia mentioned that she had seen Kittrell in the vicinity of the apartment on the day of the rape. She said she had never mentioned him before when interviewed by the authorities because she didn't think it was important.
Officer Jack Geiger testified that he saw the defendant Starling in Duncan's Liquor Store about ten minutes after 6:00 on the evening of the rape. He knew Starling and saw him through the window in the lighted liquor store. He stated that Starling was wearing a three-quarter length black coat, a yellow sweater and black pants at the time. He also stated that Starling was intoxicated. He was specific as to the time, since he ate in the evening from 5:30 to 6:00, and then went directly to the area of the Duncan Liquor Store. He was also one of the officers who participated in defendant's arrest later that same evening.
Defendant's mother testified that when defendant was about 6 years old he fell on an iron, and that ever since he passes some blood when he urinates and that she had seen this on his underwear. Defendant testified that he did not remember any blood stains on his shorts the night he was arrested, but said he has had blood stains as he had a hernia operation about three or four weeks before he was arrested. On cross-examination, defendant said his hernia operation was in June and that he still bled from the operation and sometimes passed blood when he urinated. He stated the blood on his shorts when he was arrested could have been from the hernia or from a girl he was with the night before. An employee of the Sheriff's office testified that he examined the defendant and found a scar on defendant's abdomen which was completely closed. He further stated that in his periodic work at the jail, in examining defendant's laundry, he never observed any blood on any of defendant's underclothing while defendant was in custody.
• 1 The function of a court of review, when an issue of the character presented to this Court is raised, it is not in controversy as between the parties. The same issue was raised in People v. Guido, 25 Ill.2d 204, where a defendant in a bench trial was found guilty of selling narcotics. The court there stated, at page 208:
"In the absence of a jury, the credibility of witnesses, the weight to be given their testimony and the inferences to be drawn therefrom are for the trial judge and, upon review, we will not substitute our judgment for his unless it clearly appears there is reasonable doubt of the defendant's guilt (People v. Barney, 15 Ill.2d 503; People v. Morrison, 23 Ill.2d 201.) A conviction will not be set aside merely because the evidence is contradictory, and a conviction depending upon the weight of the evidence will not be set aside except to prevent an apparent injustice. (People v. Arnold, 2 Ill.2d 92; People v. Pride, 16 Ill.2d 82; People v. Lynumn, 21 Ill.2d 63.) Here it was the province of the court, who was no doubt aware of the interest of the opposing witnesses in the outcome of the trial, to determine the truth of the matter between the evidence tending, on the one hand, to show defendant's ...