Appeal from the Circuit Court of St. Clair County; the Hon.
James W. Gray, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
The defendants were tried by a jury in the circuit court of St. Clair County on charges of rape and aggravated kidnapping. They entered a not guilty plea, and on trial the jury returned a general verdict of guilty. Sentences of 50 to 100 years in the Illinois penitentiary system were imposed. The appellate court affirmed the convictions and modified the sentences to 8 to 25 years. (6 Ill. App.3d 669.) We granted leave to appeal.
The prosecutrix, who was 13 years of age at the time of the crime, was walking home with her 7-year-old sister at about 10 o'clock in the evening. A gold-colored Oldsmobile containing four black males approached the girls on Audubon Avenue near 23rd Street in East St. Louis, Illinois, and some of the occupants left the car and asked the girls for money. The girls replied that they did not have any money, continued walking on 23rd Street toward their home, and the black males returned to the car and drove off. The Oldsmobile apparently only went around the block in that it returned shortly and the occupants succeeded in getting the prosecutrix into their car. Her younger sister ran away. The prosecutrix testified that while being forced into the car she was crying and screaming and was repeatedly struck in and hit about the face; that while screaming and resisting, she was then taken to and forced to go into a vacant unlighted house, where she claims that all four occupants of the car, and another male who was at the house, had intercourse with her against her will. She was left in the house by her attackers, and she then made her way to the street where a black woman picked her up and gave her a ride home. The attendant facts, which are set forth more fully in the appellate opinion (6 Ill. App.3d 669) are adopted herein. We will refer to other facts in the record only as necessary to discuss the issues raised.
Doctor West was called as a witness by the State. He testified that he examined the complaining witness on March 9 or 10, 1970; that she then related that she had never had sexual intercourse before the incident in question; that she had been picked up and taken to a house in East St. Louis; that she was nervous, upset and frightened; that he found evidence of bruises in the outer vaginal area and of tearing in the lining of the vagina; that she was tender upon pressure; that the indications were that she had been penetrated and did not have a normal type of intercourse, and that a vaginal smear showed sperm, plus gonorrheal germs. He further testified that his findings were consistent with a person having gonorrhea depositing the germs at the time of the alleged rape.
The defendants make the following charges of error in this appeal: that they were denied the right to a fair and impartial trial; that they were not proved guilty beyond a reasonable doubt; that a general verdict of guilty is insufficient; that the jury was improperly instructed concerning the elements of the alleged offense, and that the sentences imposed are excessive.
They set forth three grounds in support of the contention that they were denied a fair and impartial trial. First, that it was error to allow testimony that Wilford Jones allegedly suffered from a venereal disease; however, the doctor who examined the prosecutrix shortly after her return home testified that she had been infected with gonorrheal germs. An initial objection to the questioning of the doctor about this matter was sustained, but the ruling was reversed on the prosecutor's assurance that he would connect it up. The State then, through the testimony of Officer Russell, introduced admissions allegedly made by Wilford Jones, that he did have a venereal disease. The questioning went as follows:
"Q. Now then, did you then have a discussion with either Wilford Jones or Norbert Jones to determine whether or not either one of those individuals had a social disease at the time?
Mr. Hoban: Object. It is immaterial.
The Witness: A. At the time of arrest and after the subjects had been advised of their rights, I am talking about Wilford and Norbert Jones had been advised of their rights, and talking to them privately, I was told by Wilford Jones that he did have some problem, sex problem. We had asked these questions in general discussion to try to help the victim, if at all possible. That was our motive, not to try to get them to incriminate themselves. Wilford Jones told me he had contracted some form of disease while in Asia * * *."
The identity of the attacker is certainly a material issue to a charge of rape, and we find that the evidence complained of was relevant to the issue of identity. As to the inquiry of the doctor of whether the prosecutrix was infected with gonorrheal germs, such a question was proper, assuming the prosecutor will eventually put on some evidence that one of the defendants suffered from the disease. A more substantial question arises concerning the sufficiency of the testimony of Officer Russell to support the doctor's testimony.
It should be noted that there is apparently no Miranda problem here. The defendant Wilford Jones neither denies that he was read his Miranda rights nor that he did not ask to see an attorney. The testimony of Officer Russell is the sole direct evidence that Wilford Jones had a venereal disease: that Wilford Jones had admitted such circumstance to him. The defendant urges that there was no corroborating evidence of this factual circumstance. However, we believe that the testimony of Dr. West furnished sufficient foundation for admission into evidence of Wilford Jones's statement to Officer Russell; and we hold that the State is correct in its contention that the evidentiary question here is one of weight rather than one of admissibility. We note that the evidence against the defendant Wilford Jones on the point was not conclusive.
The defendants next claim that the prosecution was allowed improper latitude in the cross-examination of a defense witness, James Harley. Harley was originally subpoenaed by the State, but was not called by it as one of its witnesses. The direct examination by the defendants included testimony that Harley had been arrested and charged as an accomplice, had been kept in jail for 2 or 3 days, and had then been released. The defendants complain that the prosecutor's sole ...