APPEAL from the Circuit Court of Cook County; the Hon. MAURICE
W. LEE, Judge, presiding.
MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Defendant, Henry Jenkins, after a bench trial, was found guilty of the offense of contributing to the sexual delinquency of a child (Ill. Rev. Stat. 1971, ch. 38, par. 11-5(a)) and sentenced to a term of 90 days.
Defendant now prosecutes this appeal presenting the following issues for review: (1) whether the complaint upon which the prosecution proceeded was fatally defective; (2) whether the trial court erred in finding that the prosecutrix was competent to testify; (3) whether the trial court erred in permitting the State to introduce hearsay testimony; (4) whether the trial court properly permitted a witness for the State to identify as marijuana the odor he detected in defendant's apartment; and (5) whether the evidence presented was sufficient to support a finding that defendant was guilty beyond all reasonable doubt.
The complaint in this case charged the defendant with the offense of contributing to the sexual delinquency of a child in that he "performed an act of sexual intercourse with the victim, ____ ____" *fn1 who, at the time of the offense, was 14 years of age. The complaint was signed by the mother of the 14-year-old girl.
The prosecutrix testified that on March 12, 1971, she went to defendant's apartment to visit a girl friend and there saw the defendant, his small son, a man named Earl, and her girl friend Cookie. Once inside the apartment, the witness noticed that they were "smoking reefer and drinking." The witness stated that defendant offered her a "reefer" and also a drink but she refused both. The defendant then told her to go into the bedroom and, when she would not do so, he pulled her there. At this point Cookie said, "* * * watch out! She's going to let you do it," but, the witness testified, "I said I wasn't." The witness further testified that Earl suggested they rip her clothes off; that the defendant disagreed but nonetheless held her while Earl pulled off her clothes; that the defendant held her by the arms on the bed while Earl "had intercourse"; that Earl held her "while Jenkins did it"; and that, during the ordeal, the bed fell.
On cross-examination the witness stated that the defendant had thrown her out the apartment's back door into the parking lot in the rear of the building where her mother found her; that, although she could not recall specifically, she thought defendant's apartment was on the second or third floor of the building; and that the offense occurred on a school night but she could not remember the exact day or time. The witness further testified that she had been in Elgin State Hospital for the 2 weeks prior to her testifying as a witness; that she had been there on one previous occasion for 2 days in February, 1971; and that her mother had committed her each time because of their failure to get along together. She then stated that she had gone to defendant's apartment once before to see her friend Cookie and that defendant was not present at that time.
Officer Cena, a Chicago police officer, testifying on behalf of the State, stated that he first arrived at defendant's apartment at approximately 7 P.M. pursuant to a complaint for narcotics transmitted by the vice control department; that only defendant and his son were in the apartment; and that, with defendant's permission, they looked through the apartment "to check for any pot party or narcotics" but found none. As they left defendant's second floor apartment and proceeded down the stairs, the officers encountered the prosecutrix and her mother. The witness noticed that the prosecutrix's clothes were ripped, that she was crying and holding her back, and, when he asked "what the problem was," she responded that she had been raped on the second floor of the building. The officers then returned to defendant's apartment with the prosecutrix and her mother, and, when the defendant came to the door, the prosecutrix identified him as the man who had raped her. The officers proceeded to search the apartment, looking into every room, and noticed an odor but found no narcotics. In the bedroom they found "rumpled up" clothes and bed sheets on the floor and noted that the bed had been broken down. The witness then testified that he had been in the narcotics section of the police force for approximately 3 1/2 years; that he had handled around 150 cases; that he had smelled narcotics; and that, although he had no formal laboratory training, he associated the odor detected inside defendant's apartment with that of marijuana.
The mother of the prosecutrix, testifying for the State, stated that her daughter had asked for permission to go to Cookie's house; that she had instructed her to be home by 6 P.M.; and that at 7 P.M. her daughter had not returned home, the witness went to the defendant's apartment, asked defendant if her daughter was there, and defendant said that she had been there but had gone to the store with his sister. The witness stated that it took a long while for defendant to come to the door, and that she saw no one in the apartment but defendant and his son because of the way defendant opened the door.
The witness further testified that she saw her daughter on the second floor of the same building; that she was bruised, her pants had been torn off her, and she was hollering; that later on a police officer came; that she had called the police earlier because she smelled "dope"; and that she, her daughter, and the officer then went to the defendant's apartment.
At this point in the proceedings defense counsel moved for a directed finding on the ground that the State had offered no evidence of medical tests to demonstrate that sexual intercourse had in fact taken place. The court then permitted the State to re-open its case.
Recalled to the stand, the mother testified that her daughter had been taken to Billings Hospital where she underwent an examination.
Officer Cena stated that the prosecutrix had been taken to Mercy Hospital and, referring to the doctor's report, testified that it stated there had been penetration and that the prosecutrix's hymen had been "busted" previously. Responding to questions then posed by defense counsel, the witness stated that no sperm was found. Questioned once again by the State, the witness testified that, according to the examining doctor, "there was penetration" and "the vagina was abrasive and more or less forced."
Testifying in his own behalf, the defendant stated that he lived on the second floor at 5447 1/2 S. Racine, denied ever having sexual relations with the prosecutrix, and specifically denied any such conduct on the date in question. On cross-examination the witness stated that the prosecutrix had not been in his apartment.
Defendant contends that the complaint filed in this matter was fatally defective in that the complaint in the name of the prosecutrix was signed by her mother, and that the complaint bore no verification. The complaint does contain the signature of the mother, which signature was subscribed and sworn to before a representative of the clerk of the circuit court.
• 1 In People v. McCall (1963), 42 Ill. App.2d 295, 297, 192 N.E.2d 257, this court held that where one person appears as complainant, another signs, and there is no verification: "The concurrence of these errors is sufficient to devitalize the document as an information." On the other hand, our supreme court has held that the failure to verify a complaint does not affect the jurisdiction of the court and a defendant may waive the right to have an information sworn by going to trial without objection. People v. Billow (1941), 377 Ill. 236, 239, 36 N.E.2d 339.
Since the complaint in the instant case does not contain the quantity of errors required to devitalize the complaint under McCall, the issue here is more appropriately resolved by the holding in Billow.
The record of defense counsel's cross-examination of the prosecutrix reveals that he knew of the signature on the complaint. Defendant nonetheless in trial court failed to object to the form of the complaint. By giving notice of his objection at trial, the prosecutrix could have verified the complaint.
• 2 It should also be noted that prior to the trial, the record indicates defendant was in court four times with counsel, and that after the finding of guilty a written post-trial motion was filed without listing any objection concerning the complaint presented to the trial court. In our opinion defendant has waived any defects in the complaint. People v. Childress (1971), 2 Ill. App.3d 319, 323, 276 N.E.2d 360.
Defendant contends that the trial court abused its discretion in finding that the prosecutrix was competent to testify.
At trial, pursuant to defense counsel's objection, the court directed the State to establish the witness's testimonial competency and the following colloquy took place:
"Mr. Grant [sic: Mr. Gabitis]: Q. ...