APPEAL from the Circuit Court of Cook County; the Hon. PHILIP
ROMITI, Judge, presiding.
MR. JUSTICE EGAN DELIVERED THE OPINION OF THE COURT:
The defendant, Antonio Carrillo, was convicted of rape and burglary after a bench trial and sentenced to terms of 6 to 18 years for rape and 3 to 9 years for burglary. The defendant contends that he was entitled to discharge under the four-term act (Ill. Rev. Stat. 1971, ch. 38, par. 103-5 (a)); he was not proved guilty of rape beyond a reasonable doubt; and the State failed to prove the necessary elements of intent in the burglary charge.
The defendant and the prosecutrix were both residents of the same city in Mexico, were both in this country illegally and both lived in an apartment in Chicago with his brother and sister-in-law and their five children and his cousin. Later, the prosecutrix and the defendant had their own separate apartments in the same building and sometimes ate together. She testified that on June 3, she was awakened by the defendant who tried to kiss and fondle her. She ran around the room trying to elude him. She told him she would jump out the window if he didn't leave her alone. She tried to jump out the window but he pulled her inside. He told her he would leave and started toward the door; then he turned back toward her and she went out the window and hung by her hands. When he sat down on the sofa and asked her to talk, her arms became tired and she fell to the street from her third floor apartment. When she regained consciousness she was in bed in his apartment; he was nude and was having intercourse with her.
After he was finished, she told him to call an ambulance but he could not because he did not speak English. She was bleeding from the head and in great pain. After she called an ambulance, he put a pair of his pants and a shirt on her over her nightgown and took her down to the street where he stopped a police car. Pursuant to the defendant's instructions, she told the police that she had fallen down some stairs. At the hospital, when the police officer said he did not understand how she could get the injury she had from falling down stairs, she told him the defendant had caused her to jump out a window and later raped her. A vaginal examination disclosed the presence of spermatozoa. At the time of trial, deportation proceedings were pending against her and she had applied for welfare under another name. She denied having had any previous sexual relations with the defendant.
The defendant testified through an interpreter that he knew the prosecutrix in Mexico and had had sexual relations with her there, in his brother's apartment in Chicago and in his own apartment. The last time was on June 1. He was awakened by the sound of the prosecutrix shouting and saw her in the hallway. He was not permitted to testify to what the complaining witness said to him. He tried to calm her down and took her into her apartment. She told him to leave and he did. He later used the key she had given him to open her door. He wanted to see what was troubling her. When he went to the window he saw her lying on the ground. He went downstairs and assisted her to his apartment where he dressed her in a pair of his pants and a shirt and assisted her to the telephone. She spoke to the operator and asked for an ambulance. He went outside with her and remained until the police arrived. He denied having relations with her that evening.
The defendant was arrested on June 3, 1972, and first appeared in the Felony Court on June 5, at which time the State requested that he be examined by the Behavior Clinic. The case was continued on the State's motion until July 24 and again on July 24 until August 14, because the report from the Behavior Clinic had not been completed. On August 14, the record shows the following:
"PUBLIC DEFENDER: We have an interpreter, Mr. Al L. Martinez. He informs me he is unable to communicate with the defendant. He doesn't make sense.
STATE'S ATTORNEY: The first time this case was up June 5th, we asked for Dr. Kelleher.
THE COURT: I don't have it.
COURT SERGEANT: My record shows that also.
THE COURT: There may be a report available; and if so, we can get it over the phone.
(Whereupon, the case was passed and called later.)
THE COURT: Dr. Kelleher didn't know anything ...