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People v. Kilgore

OPINION FILED JULY 9, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JOHN KILGORE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Perry County; the Hon. CARL H. BECKER, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This is an appeal by the defendant, John Kilgore, from a judgment of conviction for the crime of rape entered by the Circuit Court of Perry County, pursuant to a jury verdict of guilty. More particularly, the defendant presents seven issues of alleged error for review. The first of those issues is whether his constitutional right to a speedy preliminary hearing under article I, section 7, of the 1970 Illinois Constitution was violated, and if that right was violated, whether defendant is entitled to have his conviction reversed, and that he be ordered discharged?

• 1 Defendant was in custody for 84 days before he was given a preliminary hearing. The defendant had requested such a hearing 8 days after he turned himself in to the authorities. The State does not contend that 84 days is "prompt." The State does argue that defendant's failure to request a hearing on his motion for preliminary hearing obviates some of the hardship of the delay, but the State fails to show the manner in which that conclusion follows. We do not consider that contention here. An 84-day delay is a violation of section 7 in view of the finding by the Supreme Court that 65 days is a severe violation of section 7. (People v. Howell, 60 Ill.2d 117, 324 N.E.2d 403.) Defendant suggests that the only appropriate sanction is to discharge this defendant even after his ultimate conviction. In view of the position of the Supreme Court in People v. Howell, that remedy, or any remedy, must come from the legislature.

The second issue before us is whether the evidence presented at defendant's trial was sufficient to prove beyond a reasonable doubt that defendant had sexual intercourse with the prosecutrix by force and against her will.

In People v. Faulisi, 25 Ill.2d 457, 461, 185 N.E.2d 211, the Supreme Court cited the following standard:

"Reviewing courts are especially charged with the duty of carefully examining the evidence in rape cases. (People v. Qualls, 21 Ill.2d 252; People v. Kazmierczyk, 357 Ill. 592,) and it is the duty of the reviewing court not only to consider the evidence carefully but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant's guilt and to create an abiding conviction that he is guilty of the crime charged. People v. Qualls, 21 Ill.2d 252; People v. Abbate, 349 Ill. 147."

The court goes on to say, concerning the need for resistance and the nature of the force, as follows:

"The degree of force exerted by the defendant and the amount of resistance on the part of the complaining witness are matters that depend upon the facts of the particular case. Thus we have held that resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female as where the assailant is armed with a deadly weapon, and that proof of physical force is unnecessary if the prosecuting witness was paralyzed by fear or overcome by superior strength of her attacker. (People v. Ardelean, 368 Ill. 274.)"

In People v. Faulisi, there was no weapon, no threats of physical violence were made, the parties were of approximately equal size and weight, and no injuries were proven. By her own admission, the complaining witness did not cry out for help, although she testified that she was yelling for the defendant to get out and leave her alone. There was no corroborating evidence except one 1/4-inch cut under her eye, and the fact that she telephoned her husband, and told him she had been raped. It was also significant in the court's view that neither the prosecutrix nor her husband made any complaint to the police until after the police had been called by the defendant's wife at the request of the defendant.

In People v. Griggs, 131 Ill. App.2d 257, 259, 266 N.E.2d 398, the court stated:

"When a conviction for rape depends upon the testimony of the prosecutrix, her testimony, unless clear and convincing, must be corroborated by other evidence. (People v. Brown, (1967), 86 Ill. App.2d 163, 229 N.E.2d 922)."

In that case the conviction was upheld even though the victim took off her own clothes, made no outcry, did not resist, and changed her account of how the defendant got into the apartment. The prosecutrix made a call to her mother, which was repeated to the police when they arrived. A complaint promptly made is corroborative of a rape victim's testimony. (People v. Hayes, 93 Ill. App.2d 198, 236 N.E.2d 273.) She was hysterical, in tears, and helpless at the hospital.

After a thorough review of the evidence in the case before us, it appears that the defendant's guilt was proven beyond a reasonable doubt. The prosecutrix was threatened, and the lives of her children were threatened. Her attacker had a knife, and threatened to use it. Immediately after the attack the prosecutrix checked the safety of her children, locked the front door and called a girlfriend to ask her to come over because she was too frightened to be there by herself, and to complain of the rape to her. Her friend arrived and found the victim crying and in shock. The friend also discovered a knife in the grass outside the victim's apartment within 6 feet of the victim's front door the following morning. The investigating officer was called shortly after the friend arrived, and upon arrival at the apartment found the victim very emotionally upset, crying and almost unable to speak. There was no evidence of physical injury, and no evidence of vaginal tearing, marks, cuts or bruises. The absence of vaginal tearing is not exceptional in view of the fact that she was 24 years old, married, and the mother of two children. It was the prosecutrix's ...


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