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People v. Lilly

DECEMBER 21, 1972.




APPEAL from the Circuit Court of Peoria County; the Hon. CALVIN R. STONE, Judge, presiding.


Rehearing denied January 11, 1973.

The defendant, James Lilly was found guilty of rape and indecent liberties after a jury trial in the Circuit Court of Peoria County. He was sentenced to the Illinois State Penitentiary for not less than 15 years nor more than 25 years on the rape charge only and this appeal is taken from that judgment.

The first issue raised by defendant is that the prosecution failed to prove him guilty beyond a reasonable doubt.

The victim, Cynthia Smiles testified that on the night of Dec. 16, 1970, between 8:30 and 9:00 she was 15 years old, that she had gone to Jane Brown's house earlier, that she left Jane's house at about 8:30 accompanied by her friends who walked with her part of the way but left her a few blocks from her home. Shortly thereafter a black man approached her, put his arm around her and held what she thought was a knife to her throat. She did not then see the knife but felt it in her neck. He put her in the front seat of his car and drove 8 or 9 miles to a dead end road. She kept asking him to take her home. He told her that if she was not quiet she would never see home again. After stopping the car he asked her to take off her blouse, she said no, and then she noticed the knife in his hand. It was 6 inches long. He said, "If you don't take your blouse off I'm going to stab you in the stomach and leave you out in the snow." She then took off her blouse, then for fear of being stabbed, the rest of her clothes, after being commanded to do so. After the act of intercourse there was some conversation which continued as he drove her back into the city and dropped her off about one block from her home. When she got home only her little sister was there. The little sister said Jane Brown had called and was worried so she called her. She then called her father and told him to come home. When her dad got home she told him what happened. He wrote it down and called the police. Officer Gamble came. She gave him a name. On the passenger side of the abductor's car there was a sticker with the name James Lilly on it. When he had pulled on to Knoxville Avenue she could see the sticker as the street lights shown through the paper. She could see the face of her abductor the whole time, for nearly an hour.

The evidence that the defendant was the attacker is overwhelming. Within two hours, at the hospital, she viewed pictures of 5 or 6 black males and pointed out James Lilly as her attacker. The next day at a line-up she positively identified James Lilly. At the trial she positively identified the defendant. After leaving the hospital from the physical examination she led the police to the scene of the attack. There the police took photographs of tire treads in the snow. One rear tire had snow treads and the other had regular treads. Meanwhile, but after James Lilly was identified by the photograph, he was arrested by the Peoria Police Department in a dark Chevrolet convertible (described by the victim) which bore an "applied for" sticker on the right front windshield as described by her. The car bore one rear snow tire and one rear regular tire. Experts testified at the trial that a comparison of the photographs of the impressions in the snow and the tires taken from the rear of James Lilly's car were similar in design and wear.

The victim was examined within two hours of the attack by Dr. Burnett who testified that she had had recent intercourse, that there was male sperm present and there were abrasions in and about the vagina which could have been caused by lack of lubrication.

Expert testimony established seminal fluid in her clothing and in the defendants clothing as well as on the car seat.

Jane Brown testified that she had tried to call Cynthia three times. When Cynthia called her Cynthia was hysterical and said that she had been raped and that she had to call her father because he wasn't home.

Lisa Smiles, age 12, testified that Cynthia came home about 10:15, her shirt was inside out and she was crying, she called Jane Brown, then called her father.

Edward Smiles, the father, testified that Cynthia called him and asked him to come home immediately. That when he got home she told him the story of what had happened. He made a few notes about the make of the car, the description she gave him and the name she saw on the license application. He gave the notes to Officer Gamble. (More of this later).

The defendant did not testify but offered alibi witnesses.

• 1, 2 The testimony of one credible witness identifying the accused as the person who committed the offense, if positive, is sufficient to sustain a conviction for rape, and if such evidence is corroborated by other evidence it is clearly adequate to justify a conviction. People v. Wilson, 1 Ill.2d 178; People v. Davis, 10 Ill.2d 430; People v. Murphy, 124 Ill. App.2d 71, and here even her uncontradicted testimony was corroborated. People v. Canale, 52 Ill.2d 107, 285 N.E.2d 133; People v. Jackson, 24 Ill.2d 226.

• 3 Defendant argues that the victim had several opportunities to escape and that she did not struggle. On cross-examination the victim testified that she was in fear. An outcry by the prosecutrix where it is useless or where she is restrained by fear of violence is not required. People v. Silva, 405 Ill. 158; People v. ...

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