APPEAL from the Circuit Court of Kane County; the Hon. JOHN S.
PAGE, Judge, presiding.
MR. JUSTICE THOMAS J. MORAN DELIVERED THE OPINION OF THE COURT:
A jury found the defendant, John Shields, guilty of deviate sexual assault in violation of Section 11-3 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, sec. 11-3); he was sentenced for a period of four to eight years in the penitentiary. His appeal was transferred here by the Supreme Court.
It is undisputed that on three separate occasions in January, 1971, the complaining witness, a seventeen year old male who was being held in the Kane County Jail, was blindfolded and sexually assaulted by some of his fellow inmates. The complaining witness testified that the last assault occurred in the late evening of January 6 and early morning of January 7; that he was ordered to lay down on a bunk; that he was subjected to pederasty; that during this assault his blindfold slipped off; that he looked up and recognized defendant, one of his fellow inmates, at the person committing the act. He also testified that on all three occasions, the defendant participated in blindfolding and leading him to the cell where the attacks occurred; but that he could positively identify him by sight as an attacker, only during the last assault. The defendant denied participating in or assaulting the complaining witness and alleged that the assaults were perpetrated by other inmates.
On appeal, defendant first alleges that reversible error occurred when improper hearsay testimony was admitted into the record. Fred Morelli, Jr., a public defender, represented the complaining witness on the charges for which he was being held in jail. Called by the State, Mr. Morelli testified that, during the morning of January 7, 1971 in the Kane County Courthouse, he saw the complaining witness who had a black eye.
"Q. [State's Attorney] Did you ask him about his black eye?
Q. Did he tell you about his black eye?
A. He told me that he had some trouble over in the jail * * * he told me that he had been involved in a mock trial over there and that during the course of the whole thing, he had been sexually assaulted.
Q. As a result of him telling you this, what did you ask him to do?
A. * * * I asked him to go to the State's Attorney's Office with me and sign a complaint.