APPEAL from the Circuit Court of Du Page County; the Hon. L.L.
RECHENMACHER, Judge, presiding.
MR. JUSTICE HUNT DELIVERED THE OPINION OF THE COURT:
This is an appeal from a conviction by a jury, and concurrent sentencing of 4 to 10 years for each of the crimes of attempt (rape) and deviate sexual assault. Defendant challenges the indictment, the proof and the sentencing.
The complaining witness was a 20-year-old woman, a student at Wheaton College. On May 16, 1971, about 10:30 in the morning, she rode with a friend to a rural pasture and timber area near a road known as Prairie Path. The friend left and prosecutrix lay on the grass to sunbathe and study some college texts. The nearest dwelling was at least a block away and no one was within sight or sound of her at this time. She was dressed in blue jeans rolled to the knees, over panties, and a blue work shirt with the shirt tail out, sleeves rolled to the elbow over a bra.
The defendant, who lived in the area, approached and started a conversation with her. He was wearing a shirt and slacks and had a sheath knife in a hunting case on his belt. He told her that he had a gun and that she better come with him or someone would get hurt. She looked around and, seeing no help or avenue of escape, elected to accompany him. He took her hand and led her a distance of about 500 feet to a wooded area heavy with underbrush where he ordered her to sit down. She repeatedly plead with him, "Please don't hurt me," but displayed no further resistance to his advances for a time. He talked to her briefly about life in communes, the new morality, free love and the joys of body kissing. He then unbuttoned her shirt, lifted her bra and kissed her on the neck, breasts and stomach. She remained passive. He then removed her jeans and panties and kissed her legs and stomach. Then, spreading her legs and placing them over his shoulders, he placed his mouth hard against her vagina and again kissed her legs and abdomen.
He then put her legs down, folded her jeans and placed them under her hips and opened his pants exposing his penis. She said that she was a virgin and asked him not to have intercourse with her and he agreed not to. He told her to lie flat on her back and he placed his penis between her legs close to the vagina and told her to pull her legs together. There followed a simulated intercourse without noticeable penetration for a period of about 20 minutes.
At that time the movements of his hips loosened the sheath knife which fell to the ground at her side. She felt around, found the knife and jabbed it into his side just below the shoulder at the eighth rib, almost puncturing the lung and leaving a cut 1 to 1 1/2 inches wide.
The defendant sat back and prosecutrix held on to the knife. A struggle ensued for the knife and defendant wrested it away from her. He threatened to cut her and in fact threatened her life with it. She persuaded him he needed medical help from his wound, helped him staunch the flow of blood with a sleeve from her shirt, and helped him to a house which they reached at his direction. On entering the yard, he threw the knife and sheath into a dog house and they went to the door to seek help. It turned out to be his house and his wife met him at the door. He said there had been an accident and that prosecutrix had helped him.
She asked to use the telephone, called the Wheaton College and arranged for the dean of women to meet her at the hospital. She then accompanied the defendant and his wife to the hospital. While he received medical aid she told the dean of women what she had experienced. They drove first to the city hall and then to the county police. She was examined by a physician. He found her hair matted and bloody, mud on her legs, dirt in the opening of the vagina, the hymen intact and no evidence of sperm. He could not say positively if there had been a penetration.
Prosecutrix testified as to the above facts, which were corroborated by the police, the dean of women, and the medical testimony. Defendant did not testify, and a police officer was called as to some possible inconsistent items in the police report.
Prosecutrix first signed a rape complaint (which was later nolle prossed), and the defendant was arrested. Subsequently defendant was indicted for attempt (rape), and about 3 months later for deviate sexual assault. The two indictments were consolidated for purposes of trial.
Prior to the trial, defendant filed a motion to quash the indictment charging deviate sexual assault, arguing that the grand jury heard no competent evidence only the testimony of an assistant State's Attorney. The assistant State's Attorney acknowledged that another member of the staff had presented the case to the grand jury and that he, the assistant, had appeared and testified as the only witness. He declined to say what testimony he had presented, on the ground that it was before a grand jury and therefore a secret investigation. No record was made of the grand jury proceedings. It is conceded the evidence was hearsay.
• 1, 2 In Illinois a grand jury may return an indictment upon hearsay evidence. (People v. McCracken, 61 Ill. App.2d 457, 209 N.E.2d 673 (1965).) It is common for an investigating police officer to appear and testify as to matters he saw or uncovered at the scene of the crime and also what was told him by others who were present. The grand jury is an official body, constituted and sworn by the court, to make an independent investigation into all matters which may come before it presented by the State's Attorney or otherwise. Section 112-4(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, § 112-4(a)) states: "The Grand Jury shall hear all evidence presented by the State's Attorney."
• 3 It has the power to require the presence of witnesses if it feels it needs further or better information. Its inquiries are secret, and the court will not inquire into proceedings had before it, for the purpose of determining whether the evidence heard by it was sufficient to support an indictment, unless all the witnesses were incompetent. (People v. Bladek, 259 Ill. 69, 102 N.E. 243 (1913).) "Incompetent" means mentally deranged or otherwise disqualified by law. People v. McCracken, 61 Ill. App.2d 457, 209 N.E.2d 673 (1965).
There is no showing that the witness here was mentally incompetent. The fact he was called as an investigating witness and was also on the staff of the State's Attorney does not render him legally incompetent, nor does it constitute an improper attempt to influence the grand jury. (People v. Strauch, 247 Ill. 220, 93 N.E. 126 (1910).) While this practice could be subject to abuse and is not ...