APPEAL from the Circuit Court of Cook County; the Hon. HARRY
S. STARK, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The defendant, James W. Taylor, was indicted and tried on charges of rape, deviate sexual assault, and armed robbery. After a trial by jury he was convicted of armed robbery and sentenced to serve 5 to 10 years in the Illinois State Penitentiary.
On appeal, the defendant contends that he was not proved guilty beyond a reasonable doubt, that he did not receive a fair trial, that the jury was improperly instructed, and that the jury rendered inconsistent verdicts.
We summarize the evidence presented at trial. Rebecca Velma, the prosecutrix, was a 37 year old woman who had been a widow for 10 years. She was the mother of a 6 year old child who she supported by working in a beauty shop. She testified that on February 3, 1968, at about 8:30 P.M., she was accosted from the rear by two men as she was walking from her place of employment to Doris Whitaker's apartment where her son was staying. The defendant grabbed her from the left and put a knife against her side. The other man twisted her right arm and then demanded her wallet. She handed over her wallet which contained $61.00. Her assailants then pulled her to the second floor of an apartment building located in the 1400 block of West Monroe Street. There in an attempt to escape she dashed into another apartment and sought aid from an old man. She screamed, "Please, mister, please help me, these men are going to kill me." The old man attempted to help her close the door on her assailants, but the defendant and the other man pushed the door open and dragged her out of the apartment. The two then brought her to another apartment on the second floor where they tore off her clothes. The defendant took $20.00 which she had concealed in her bra, and the unidentified second man raped her. The other man left when the defendant began to argue with him about money. The defendant then raped her and subjected her to a deviate sexual assault. After he was finished, he told her that he was going to get someone else to have sex with her, and he left. While the defendant was gone, she attempted unsuccessfully to escape through a barred window. When she heard footsteps, she threw her lipstick and rent receipt under the bed. The defendant returned, shouted at her, and ordered her to leave. "Bitch, get up and get out of here. My wife will be home in a few minutes. Who in Hell brought you in here? Get out of my room." She was then thrown out of the apartment. Barefoot and with her clothing in disarray she ran to Doris Whitaker's apartment, and told the Whitakers that she had been robbed and raped. The Whitakers did not have a telephone so she went to the home of Lillian Brimmage to call the police. The police came and she explained that she had been raped and robbed on the 1400 block of West Monroe Street. She then walked with the policemen along West Monroe Street. She saw the defendant standing on the steps of a building and identified him to the police. After that she went to the defendant's apartment with the police and recovered her lipstick which was under the bed.
Sylvester Johnson, a Chicago police, testified that he interviewed Rebecca Velma on the night of February 3, 1968. She told him that she had been raped and robbed, and she described her assailants. She did not know the exact address of the building into which she had been dragged, but she said she could identify the building if she saw it again. He and his partner accompanied her to the 1400 block of Monroe Street. After she had looked at two buildings, she identified as one of her assailants the defendant who was standing on a porch with about five others. Officer Johnson told the defendant that the prosecutrix had accused him of raping and robbing her. The defendant stated that he had never seen Rebecca Velma before. Officer Johnson then told the defendant that the prosecutrix said that she had left some of her belongings in the apartment. The defendant invited him to search his apartment. They went to the apartment and Rebecca Velma found her lipstick at the foot of the bed. In addition a lady's black shoe was found in the closet. He searched the defendant and found a pocket knife. He additionally testified that Rebecca Velma appeared frightened and that her dress was torn when he first saw her.
Doris Whitaker testified that Rebecca Velma arrived at her apartment at about 9:00 P.M. on February 3, 1968. She observed that Miss Velma had no shoes on her feet, that her garter belt and stockings were hanging halfway out of her pocketbook, and that her dress was all the way unzipped. Miss Velma said that she had been raped and robbed.
The defendant, James Taylor, testified on his own behalf and stated that on February 3, 1968, he was 24 years old and resided on the second floor of an apartment building located at 1430 West Monroe Street. Prior to that time he said he had seen the prosecutrix at various taverns and at the beauty shop. On February 3, 1968, he met the prosecutrix who was with a man named Shoe. He was told that Shoe and the prosecutrix were going to the Bedford Hotel to rent a room for $3.50, and he offered to let them use his room for $2.00. He took them to his apartment and while he was unlocking his door, the prosecutrix entered an old man's apartment. Edward Boyd, the old man, shouted at her and told her to leave the apartment. He, the defendant, went to the door of Boyd's apartment and told the old man that it was all right because he knew the prosecutrix. She then left Boyd's apartment and entered his apartment with Shoe. He left the two of them in his apartment and went out to a tavern. When he returned to the apartment he found the door open and the prosecutrix lying on the floor. He shook her and asked her to leave, but she said only that she wanted to sleep. He left the apartment to visit friends who lived on the first floor who were relatives of his former girl friend, Mary Jordan. After a while he went back to his apartment and again unsuccessfully attempted to waken the prosecutrix who was still lying on the floor and wearing only a bra. He went back to the first floor and told his friends about the prosecutrix. Since they did not believe him, Leon Jordan and two other men went upstairs to his apartment. After verifying his statement, they all went back downstairs and continued playing cards. He played cards for a few minutes and then left to try to waken the complainant, but she was gone when he arrived at his apartment. He returned to the first floor and resumed his card game. When someone said the police were coming, he went out to the porch with the others. He was then arrested, and his room and person were searched. At the police station he volunteered to take a sperm test, but the test was never given. He further testified that prior to February 3, 1968, Mary Jordan had lived in his apartment and that she had left some of her clothing and cosmetics there.
Airry Jordan, Mary Jordan's brother, testified that he knew the defendant only by the name of James, but that he had known him for over a year and had often shot pool with him. At about 8:30 P.M. on the night the defendant was arrested, he arrived at his brother-in-law's apartment at 1430 West Monroe Street. The defendant entered and joined in a game of cards. After a few moments the defendant left and on his return said that there was a woman in his room. He and the other men went upstairs and after seeing the woman naked on the floor, they went back downstairs and continued their game. Subsequently, the defendant left the apartment and returned. He told them that the lady had gone. Someone noticed police cars out in the street, and they went outside to the porch. He heard a lady shout, "There he is," and saw the defendant being arrested.
Leon Jordan testified that he arrived with his sister, Mary Jordan, at Alvin Patton's apartment at about 9:00 P.M. The defendant joined the group at about 9:30. He overheard the defendant telling Alvin Patton that there was a woman in his room. The defendant left the apartment, and he heard the defendant shout something like, "I don't want you here." Afterwards he went with the others to look at the defendant's room, and he saw a lady lying on the floor. They returned to the first floor and resumed playing cards. He was on the porch with the defendant at the time of the arrest.
Mary Jordan testified that she went to Alvin Patton's apartment with her brother, Leon, on February 3, 1968. Up to that date she had been living with the defendant, but she had moved out that morning after an argument. The defendant came into Patton's apartment, stayed a few minutes, and then left. He returned five minutes later, and said that he was unable to get a lady out of his apartment. Her two brothers and her brother-in-law, left with the defendant to see the lady, but she did not go with them. They returned and resumed playing cards. She went out to the porch when the police came and she heard the prosecutrix identify the defendant.
In rebuttal, Edward Boyd, aged 62, testified that he lived on the second floor of an apartment building located at 1430 West Monroe Street. The defendant lived on the same floor of the building, but he did not often associate with the defendant, and he did not even know the defendant's name. He saw Rebecca Velma for the first time on February 3, 1968, when she cried for help and ran through his apartment. "She said, please open the door, so she could get in, that she was afraid they were trying to kill her." She appeared frantic when she entered the apartment. She dropped her sweater and he gave the sweater to the defendant.
The defendant first contends that he was not proved guilty beyond a reasonable doubt. In support of this contention he argues (1) that the testimony of the prosecutrix was improbable and contrary to human experience, (2) that the prosecutrix was impeached and discredited on cross-examination, (3) that the defense witnesses were more credible than the prosecutrix, (4) that the prosecutrix's testimony was contradicted by the State's rebuttal witness, Edward Boyd, and (5) that the prosecutrix's testimony was substantially uncorroborated. The main thrust of these arguments is that the jury improperly evaluated the credibility of the witnesses.
• 1, 2 A reviewing court will not set aside a jury verdict unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable, or unsatisfactory, as to cause a reasonable doubt as to the guilt of the accused. (People v. Sumner, 43 Ill.2d 228, 252 N.E.2d 534.) The testimony of a single witness, if it is positive, and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused. People v. Hampton, 44 Ill.2d 41, 253 N.E.2d 385.
In the case at bar the defendant was convicted of armed robbery. The prosecutrix testified that the defendant whom she had never seen before, robbed her at knife point. She immediately called the police and complained that she had been robbed and raped. She gave the police a description of her assailants. She accompanied the police in search of the building into which she was taken, and upon seeing the defendant she positively identified him as one of her assailants. Edward Boyd corroborated the fact that the prosecutrix was frightened and ...