APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. WILSON, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 8, 1974.
After a bench trial, both defendants were found guilty of rape and sentenced to terms of from 4 to 12 years. On appeal defendants contend: (1) the trial court erred in refusing to allow the defendants to testify regarding matters essential to their defense; and (2) the evidence was insufficient to establish their guilt beyond a reasonable doubt.
At trial, the following evidence was adduced: Mary Anne Kantorski testified for the State that on February 18, 1971, at 1:30 A.M., she left her home to make a telephone call from the phone booth next to an unlighted gas station at 31st and Halsted. She was carrying her radio and was trying to call a radio station disc jockey but got a busy signal. As she left the phone booth, Michels grabbed her arm, put an 8-inch knife to her throat and said, "Don't make a sound or I'll kill you." Eilers grabbed her other arm and put his hand over her mouth and both men pulled her down an alley and into a shed where Michels stood at the door, and Eilers then ordered her to take off her clothing. When she refused, Eilers knocked her down and pulled off her slacks, socks and underpants. Eilers attempted to have intercourse with her but was unable to do so because of her struggles. He then forced her to perform an act of oral copulation, after which he ordered her to put on her clothing. She got dressed but could not find her socks or underpants. An object then was put into her back, and one of the men said it was a gun and ordered her not to turn around or they would kill her. They took her to a first-floor rear apartment where she was pushed into a bedroom and ordered to take off her clothing. When she refused, one of the men put a knife to her throat and she then removed all of her clothing. Eilers again and then Michels attempted to have intercourse with her but were unable to do so because of her struggling. Eventually, after several hours, both Eilers and Michels forced her to have intercourse with them, and then she was released about 5:00 A.M. after they threatened to kill her and her family if she told the police. She went to the home of Rose Garno, her cousin, and told her that she had been raped, and they went to a police station to report the incident. The police took her to a hospital, where she was examined. The police also went with her to the shed, where they found her socks and underpants.
Rose Garno, the cousin of Mary Anne, testified for the State that on February 18, 1971, about 5:00 A.M., Mary Anne came to her home. Her hair was messed, her clothing dirty, and her eyes were bloodshot and full of tears. She said that she had just been raped by two men.
Maurice Sullivan, a Chicago police investigator, testified for the State that on February 18, 1971, he was assigned the investigation of an attack on Mary Anne Kantorski and went to the apartment of Michels, where he arrested defendants and found a set of knives and a bedsheet which he took with him.
James W. Kessler, a Chicago police officer, testified for the State that on February 18, 1971, Mary Anne came into the police station and reported she had been raped. He accompanied her to the phone booth at 31st and Halsted, where he found a key chain and personal items belonging to her. Inside a shack down the alley he found a pair of socks and panties, which the complainant identified as belonging to her. He testified that earlier, on February 18, 1971, at about 1:00 A.M., he and his partner responded to a disturbance call and went to the area of 31st and Halsted. Defendants were in a group there but, to his knowledge, they were not searched at that time.
Fredrick Michels, defendant, testified that in the early morning of February 18, 1971, he was in a restaurant at 31st and Halsted with Eilers and several other men when an argument developed between two men who went outside, where a fight ensued. He and Eilers went out to break up the fight, and when the police arrived defendant and others were searched. He denied having a knife or gun in his possession. Later he and Eilers met Mary Anne as she left a phone booth at 31st and Halsted, and when they asked her where she was going, she stated that she was going to a restaurant on 35th Street. He and Eilers went with her to a shed where Eilers started kissing her. He went home, and about 10 or 15 minutes later Eilers came to his apartment with her and the two of them went into the bedroom. When Eilers came out he went in and had intercourse with her, after which she dressed and all three talked and had coffee. Later she and Eilers left the apartment together. He denied threatening her at any time.
Edwin Eilers, defendant, testified that early on February 18, 1971, he was at a restaurant at 31st and Halsted with Michels when Officers Kessler and Rinkenberger came to the scene of a fight. They were searched, but no weapons were found on their persons. Eilers testified they then met Mary Anne as she left a phone booth at 31st and Halsted, and they asked her where she was going and whether she would come with them. She agreed to go with them to Michels' house and, as they were going through the alley, they observed a shack with the door open and Eilers said, "Let's go in there." She agreed, and all three entered the shack where he and she started necking, and Michels left, Eilers testified that he then left with her, and they went to Michels' apartment, where he had intercourse with her in the bedroom. He denied at any time having a weapon or threatening her in any manner. After about 1 hour he left the bedroom and Michels then went into the bedroom and remained with her for approximately one hour. Later all three stayed in the kitchen where they talked, and he then left the apartment and walked with her to 31st and Emerald.
Chicago Police Officer Rinkenberger testified for the State that on February 18, 1971, he responded with Officer Kessler to a disturbance at 31st and Halsted, where he observed defendants, but they were not placed under arrest or searched.
Defendants initially argue that the trial judge erred in refusing to allow them to testify concerning matters essential to their defense. They point out that their defense was grounded solely on the consent of the complaining witness, and they contend that the trial judge should have allowed Eilers to testify concerning her reputation in the community for unchastity.
• 1 Reputation testimony is admissible as an exception to the hearsay rule where the defense to the charge of rape is consent. People v. ...