APPEAL from the Circuit Court of Stephenson County; the Hon.
WESLEY A. EBERLE, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The defendant was convicted in a jury trial of the offense of indecent liberties committed upon a fifteen-year-old boy. Upon application for probation the court placed the defendant on probation with the condition that he serve seven months at the Illinois State Penal Farm at Vandalia and seek psychiatric assistance during his period of probation. The defendant appeals.
Defendant contends that (1) he was not proven guilty beyond a reasonable doubt, and that (2) the court erred in permitting the State to reopen the State's case after both the State and the defense had made their final argument.
The defendant is a cab driver employed by the Freeport Cab Company. He is a paraplegic and the cab he drives is equipped with hand controls for operation by the defendant and is not used in taxi service except by the defendant. The complaining witness is a fifteen-year-old boy and a sophomore in high school. On the morning of May 4, 1971, the boy went to the nurse's office in the high school complaining of a migraine headache. The nurse called his mother. He was excused from school and a cab was called. After picking up the boy, the driver drove the cab on to a side road where he performed an act of deviate sexual conduct upon the fifteen-year-old boy. The victim did not make a complaint about the incident until approximately one week before August 30, 1971, when he advised his mother, his aunt, his uncle, and his minister. This latter fact was elicited from complaining witness by defendant's counsel. The defendant did not testify but his wife and business associate testified as to the alibi of the defendant; namely, that he was with them during the morning in question.
The defendant contends that the testimony of the victim was not clear and convincing in that portions of the victim's testimony had been contradicted. The discrepancies relied upon by the defendant were that the complaining witness testified that the cab was a red cab, when in fact it was a yellow cab; that the complaining witness testified at trial that the appearance of the defendant was the same as on the date of the crime, when in fact defendant had shaven off his beard and did not have dyed blonde hair as he had on the date of the incident in question; and that in his original complaint to the police, also introduced by the defendant, the victim stated that the offense occurred on a "school day in April, 1971," when in fact the proof disclosed the offense allegedly occurred on May 4.
These discrepancies in the complaining witness' testimony, however, are minor and insignificant in view of the fact that he correctly stated both in his testimony at trial and in his prior statement to the police, that the defendant had a crippled condition and used hand controls for the operation of the taxi cab, the defendant's most distinguishing features. Furthermore, the school nurse substantiated the correct date in question by testifying that a cab was called for the boy on May 4, 1971.
Other variances in the statement given by the victim to the police and the testimony at the trial do not appear to this court to be of sufficient importance to warrant consideration.
The defendant also contends that, inasmuch as the victim failed to make a complaint until some time in August, approximately four months after the incident, this fact makes the boy's story doubtful. The fact that the victim herein did not make a complaint until about four months after the incident is understandable. This is the type of offense which is embarrassing to the victim. It is also to be noted that the complaining witness testified "If I ever told anyone he'd get me. He didn't know how but he would." The State has cited Honselman v. People (1897), 168 Ill. 172, 48 N.E. 304. In Honselman the defendant was indicted for the then "infamous crime against nature" involving a sixteen-year-old boy who did not make a complaint until a year and a half after the offense. The appellate court in observing the shame and disgrace upon the victim refused to set aside the guilty verdict of the jury.
• 1, 2 The courts of Illinois have repeatedly stated that the credibility of witnesses is for the jury. We do not deem it necessary to cite authority, as Illinois Digest, Vol. 10A, Sec. 742(1), cites some three hundred cases to this effect. It is only the duty of the reviewing court to reverse the judgment of the jury as to the guilt of the accused when we are of the opinion that the evidence does not prove the defendant guilty beyond a reasonable doubt. Because it is true that the charge of indecent liberties, as in a case of rape, is an accusation easily made, hard to prove, and even harder to refute, the Illinois Supreme Court in People v. Nunes (1964), 30 Ill.2d 143, 146, 195 N.E.2d 706, 707, stated:
"* * * In such cases reviewing courts are especially charged with the duty of carefully examining the evidence, and while due weight must be given to the judgment of the jury as to the credibility of the witnesses, it is our duty to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant's guilt and create an abiding conviction that he is guilty of the crime charged."
Under these principles the court has required the complaining witness' testimony when uncorroborated, to be clear and convincing. People v. Williams (1953), 414 Ill. 414, 111 N.E.2d 343.
• 3, 4 Applying the standard required in Nunes we are of the opinion that the evidence herein does in fact show that the defendant is guilty beyond a reasonable doubt in that the testimony of the complaining witness is clear and convincing. The complaining witness clearly identified the defendant in both his statement to the police and his testimony at trial. The discrepancies in his statement and testimony were minor and inconsequential. The complaining witness had no reason to falsely accuse the defendant as he did not know the defendant prior to the incident, and only saw him once driving by his house after the crime. The delay in reporting of the incident can be easily understood in the light of the offense, and the threats made against him, and in this case, does not make the complaining witness' story any less convincing. In a case factually similar to the one now before us (People v. Meyers (1972), 7 Ill. App.3d 82, 287 N.E.2d 11), this court held that the description of the defendant was positive and that the defendant was proven guilty beyond a reasonable doubt. Defendant has cited an opinion of this court (People v. Thornton (1971), 132 Ill. App.2d 126, 268 N.E.2d 887) involving a charge of indecent liberties in which we reviewed a number of similar cases. That case is not controlling here. In Thornton the record disclosed that the testimony of the prosecutrix was doubtful and that bad feeling existed between the mother of the child and the defendant grandfather.
We turn next to the contention of the defendant relative to the trial court allowing the State to reopen its case after final arguments. As a part of the defendant's alibi defense a witness testified he drove the defendant to the First National Bank of Freeport on May 4, the day of the offense, where the defendant made a payment on his loan there. In rebuttal, the State produced the loan officer of the bank who testified that the bank journal showed the payment was made on May 14, 1971. Upon cross examination the witness stated that where the bank journal indicated it was paid May 14, that it would have been paid on that date. Defense counsel then introduced the defendant's loan payment book which allegedly showed the payment made on May 4.
After final arguments, counsel for the State then represented to the court that they had discovered the loan payment book kept by the bank showing defendant's payment on May 14. He requested permission to reopen the case to introduce this document in contradistinction to ...