APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
A. POWER and the Hon. LOUIS B. GARIPPO, Judges, presiding.
MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:
We have here appeals in two separate and yet related proceedings involving the same individual and they have been consolidated on his motion.
In No. 58879, Roy Lee Hamil, who was then under indictment for rape, attempt rape, robbery, etc., involving four females, two of them under age, was charged in a petition filed in 1966 in those cases, with being a "sexually dangerous person" under "An Act relating to sexually dangerous persons and providing for their commitment, detention and supervision," approved July 6, 1938, as amended (Ill. Rev. Stat. 1965, ch. 38, §§ 105-1 through 105-12). After a full scale hearing in which he was represented by private counsel, he was adjudged to be such a person and was committed to the custody of the Director of Public Safety "until he has recovered." The said criminal charges were stricken with leave to reinstate. No contention was made in that proceeding that the statute under which he was so committed was unconstitutional. In August of 1968, after treatment at the Elgin State Hospital, he was given another hearing in the Criminal Court and was given a "conditional release" from his said commitment.
On December 2, 1971, Hamil was involved in another sexual incident which will be more fully discussed under the second appeal (No. 59325). Suffice it to say here that he was indicted for the attempt rape and aggravated kidnaping of Loretta Lingle, was found guilty as charged on May 25, 1972, by Judge Louis B. Garippo and was sentenced to serve 3 to 14 years.
Meanwhile, in January of 1972, a petition had been filed in the earlier cases alleging that Hamil had been so arrested and charged and seeking the entry of an order revoking his 1968 conditional release and recommitting him under the 1966 adjudication and commitment. Testimony by Miss Lingle and others, including Hamil, was taken before Judge Joseph A. Power on January 21, 1972, and the matter was then continued from time to time until May 31, 1972, when the findings and sentence above described were reported to Judge Power and Hamil testified further to his version of the Lingle incident. At the conclusion of said hearing, Judge Power revoked his conditional release and ordered him recommitted.
During this proceeding Hamil was represented by the same private attorney who had represented him in the 1966 proceedings and in the 1972 criminal trial. No contention was made during said hearings that the statute ("* * * relating to sexually dangerous persons * * *") under which he had been committed was unconstitutional.
Thereafter the Public Defender of Cook County substituted as Hamil's attorney and on August 11, 1972, appealed from the May 31, 1972, judgment that he was "guilty of violation of conditioned release as a sexually dangerous person."
In November of 1973, the Office of the State Appellate Defender filed its brief in this court in these consolidated cases and, in addition to four other grounds for reversing the said 1972 revocation of Hamil's 1968 "conditional discharge" from his 1966 adjudication and commitment as a "sexually dangerous person," for the first time challenged the constitutionality of the statute under which he had been so adjudicated and committed. In December of 1973, the People filed a confession of error in Case No. 58879 and on January 4, 1974, this court reversed, and, as a result, the People's brief does not, other than mentioning said confession and reversal, deal further with this case.
On the oral argument, however, the office of the State Appellate Defender argued orally that its Point I (being a full scale constitutional attack on said statute) survived said confession and reversal; and we have read their brief in this case.
• 1 No such attack was made in 1966, 1968 or 1972 or at any other time in the trial court and we hold that it cannot be made here for the first time. See People v. Amerman (1971), 50 Ill.2d 196, 279 N.E.2d 353, citing People v. Allen (1959), 17 Ill.2d 55, 61, 160 N.E.2d 818; People v. Brand (1953), 415 Ill. 329, 337, 114 N.E.2d 370; People v. Luckey (1969), 42 Ill.2d 115, 117, 245 N.E.2d 769; and Van Meter v. Stout (1970), 45 Ill.2d 7, 9-10, 256 N.E.2d 784; Also, citing Amerman, see Jarvis v. Herrin City Park Dist. (1972), 6 Ill. App.3d 516, 520, 285 N.E.2d 564.
Grasso v. Kucharski (1968), 93 Ill. App.2d 233, 236 N.E.2d 262; Rau v. Village of Warrenburg (1939), 302 Ill. App. 37, 23 N.E.2d 371 (abstract opinion); Joseph v. Joseph (1948), 336 Ill. App. 258, 83 N.E.2d 600; and People ex rel. Kilduff v. Brewer (1927), 328 Ill. 472, 160 N.E. 76, are cited for the propositions that an unconstitutional statute is void ab initio; that such a statute does not give a court jurisdiction; and that where a court lacks jurisdiction its judgments may be attacked at any time. The first two cases (Grasso and Rau) did involve the constitutionality of statutes but the attacks were initially made in the trial court; the other two cases (Joseph and Kilduff) had nothing to do with the constitutionality of statutes of the effect thereof; none of the four cases was a criminal case; all four of them were handed down before the Supreme Court decided Amerman (1971); and none of them deals with the proposition that attacks on the constitutionality of a statute must initially be made in the trial court.
We therefore conclude that, insofar as Case No. 58879 is concerned, nothing remains before us and we pass on to the other appeal.
In No. 59325, Roy L. Hamil, was found guilty following a bench trial of the crimes of attempt rape (Ill. Rev. Stat. 1971, ch. 38, par. 8-4) and aggravated kidnaping (Ill. Rev. Stat. 1971, ch. 38, par. 10-2) and was sentenced to a term of from 3 to 14 years on each charge, the sentences to run concurrently. Defendant appeals on the ground that the evidence was insufficient to establish his guilt beyond a reasonable doubt. We disagree and affirm the judgment.
The complaining witness testified at trial that on December 2, 1971, at 7:30 A.M., she left her home and was proceeding to her place of employment. As she walked down the street, the defendant pulled up in a white Chevrolet and asked her for directions. As she stood next to the car, he grabbed her left arm and pulled her into the vehicle. She began to cry and asked him to release her. Defendant put his hand on her throat and told her to shut up or he would kill her. He then drove the car through several alleys and stopped near the side of a building so that the passenger's door could not be opened. Defendant ordered her to remove her coat, but she refused. He then ordered her to lift up her dress and pull down her pantyhose. She began to fight off the defendant and struggled to get to the driver's door of the vehicle to escape. During the fight, the back and arm of her coat were torn. Defendant pulled down her pantyhose and put his hand underneath her dress. He lifted off her brassiere and fondled her breasts. He then asked if she was a virgin and she replied that she was. She testified that defendant stated that if she was a virgin he would let her go, but if she was not, he was then going to have intercourse with her. Defendant was exposed and sexually aroused. He stuck his finger into her vagina and ordered her to touch him, but she refused. Defendant said she was "nothing but a virgin and no good." He got behind the wheel of the car and, as he started to pull away, the complainant opened the passenger door and jumped out. As she went by the rear of the automobile, she saw the license number of the car. She ran to a nearby bus stop and told a woman that she had just been attacked. The woman ...