APPEAL from the Circuit Court of Cook County; the Hon. JACQUES
F. HEILINGOETTER, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
The defendant, Charles Newson, was tried in the Circuit Court of Cook County and a jury found him guilty of rape. He had previously been tried for the same offense, and the trial resulted in a hung jury. The court sentenced the defendant to the Illinois State Penitentiary for a period of seven to twenty-one years.
On appeal defendant raises the following questions: whether the retrial after the first jury failed to reach a verdict constituted double jeopardy and violated the defendant's rights to due process of law, whether the identification of the defendant was the product of unnecessarily suggestive identification procedures, whether the defendant was proven guilty beyond a reasonable doubt, whether the defendant's right to be tried by a fair and impartial jury was violated, whether defendant was denied due process by the prosecution's failure to produce an alleged statement of a witness, and whether the denial of defendant's motion for a continuance denied defendant's right to counsel.
We summarize the facts and events, all of which took place in the City of Chicago. On August 14, 1964, between 2:30 and 4:00 A.M., a 27-year old woman was raped in the back seat of a cab, by its driver. She had gotten into the cab in front of the Hilton Hotel on South Michigan Avenue. The area was well illuminated with street lights and the hotel marquee. As she entered the cab there was a minor disturbance between a man who was just exiting and the cab driver. The driver argued with him for three to five minutes in the presence of the woman.
When the cab reached the immediate vicinity of her home, Mrs. Sams, the prosecutrix, told the driver her residence was straight down the street two more blocks. Instead of continuing on Pratt Avenue, the driver turned north on Ravenswood Avenue and pulled over to the curb near a railroad embankment. Mrs. Sams jumped out, and the driver asked, "Isn't this where you live?" In response to a negative reply, he said he must have made a mistake. Mrs. Sams looked at him to determine whether or not to believe him. She then re-entered and sat on the back seat as before. The driver reached back, as if to close the door, but grabbed her around the throat with his right hand. He then climbed into the back and pinned her to the seat. She began screaming and kept opening the door in an effort to escape, but she was struck many times on the face and head, and then a knife was placed against her throat. She was told to be quiet or her throat, face and eyes would be cut, whereupon he raped her.
Mrs. Sams feigned a heart attack, and the driver said he would take her home, but started driving in the other direction. As the car was moving through the intersection of Clark and Farwell, she jumped out and started running down the street, screaming for help. She was allowed into an apartment, where she called the police. She was taken to St. Francis Hospital in Evanston, where she was treated for bruises and given a pelvic examination, which revealed the presence of live sperm.
She described her assailant to police officers as being a dark complexioned male Negro, between thirty and forty years of age, with a round head, short hair, husky shoulders, wearing a zipper windbreaker jacket and dark pants. She also gave them the number of the cab, which was 1825.
A supervisor for the cab company discovered cab number 1825 abandoned at 45th and State Street. He learned this cab had been assigned to the defendant, Charles Newson. He proceeded to Newson's apartment, where he obtained the keys from Newson's wife, who told him she received the keys, not from her husband, but from someone named Edward.
At about 8:00 A.M. on the day of the crime, a police officer procured two photographs from the cab company, one of the defendant and one of another driver who failed to return his cab on that morning. The two black-and-white photographs of Negro males were shown to Mrs. Sams at the hospital in the afternoon. At the time the officer did not tell her the two men in the pictures were cab drivers. Mrs. Sams picked the defendant's photograph as the man who attacked her. She stated, "This is the man, but I want to look at him in person."
Police officers went to the defendant's apartment where his wife told them he could probably be found at Letha Parrott's Beauty Shop. Upon arrival at the beauty shop one officer testified they saw a male Negro heading toward a rear doorway. They approached him, showed their identification and asked, "Are you Charles Newson?" The defendant answered, "Yes, what took you so long."
At a hearing on a motion to suppress statements, defendant stated the officers asked if they could search him and did search him. At trial he claimed he was not searched. He further stated he did not know how the knife taken by police officers got into his pocket.
At about ten o'clock in the evening of August 14, 1964, the defendant was taken to the hospital in Evanston to be viewed by the prosecutrix. Before bringing him into the room, Detective Curtin told Mrs. Sams that they had brought somebody for her to look at. Both Mrs. Sams and the detectives stated the room was well lighted. The defendant said he did not know he was in a hospital and that it was so dark he never saw Mrs. Sams or anyone else. Mrs. Sams viewed the defendant standing at the foot of the bed and stated, "That's the man." She was then shown the knife and she identified it as being the one used by the assailant, noting the broken handle.
The defendant testified to an alibi defense. He stated he and Edward Giles left his cousin's beauty shop together at about 11:00 P.M. in his cab. He stopped the car in a bus zone and waited while Giles went into the tavern. After waiting five to ten minutes he went into the tavern to get Giles and left his cab double parked with the keys in the ignition. He talked with Giles in the tavern, and Giles said he would be right back. Newson exited in time to see Giles driving his cab away. Newson stated he waited in the tavern until 2:00 A.M. and then went to Giles' wife's house, where he waited for about one-half hour before leaving briefly to purchase some beer. Giles called the apartment between 5:00 and 6:00 A.M. and then arrived twenty minutes later. Upon leaving, Newson said he went to his own house where he observed his cab parked outside, and then went to his cousin's beauty shop to borrow money. He stayed there until his arrest. He also stated Giles had given him the pocket knife in question to use in opening the broken lock of his sister's apartment above the beauty shop, but had given it back to Giles and did not know how he regained possession.
The defendant's testimony was corroborated by Letha Parrott, his second cousin, who also knew Edward Giles very well, since Giles had lived in her home for about eight months. She testified she saw Giles walk through her bedroom about 5:00 A.M., carrying a lady's purse. Several witnesses testified as to the defendant's good ...