APPEAL from the Circuit Court of Cook County; the Hon. FRED J.
SURIA, JR., Judge, presiding.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT:
Steven McClure was indicted for rape and armed robbery. At his trial he and the complainant, a widow with three children, agreed that they had sexual intercourse; he said it was with her consent and she said it was not. Evidence was introduced that she had a reputation as a prostitute; the jury accepted his version and acquitted him of rape. However, it found him guilty of robbing her while armed with a knife. The jury's verdict was approved at the trial court and the defendant was sentenced to the Department of Corrections for a term of 5 to 15 years.
McClure and the complainant met for the first time in a tavern on a Sunday afternoon. He sat next to her at the bar and bought her a glass of wine. She testified that he offered to sell her a case of the same wine for $10. She agreed to buy it and he left the tavern, but returned in a few minutes and said she would have to go with him and pick it up herself. He testified that she offered him a date which he assumed to be for sexual purposes. He was on his way to work and said he did not have the time. He left the tavern, walked a block or two, changed his mind and went back. He asked the complainant if her offer was still good. She said it was and that it would cost $15.
He testified that he gave her the $15 and took her up the back stairs of the three-apartment building where he lived on the third floor with his mother-in-law, wife and three-year-old son. The second floor apartment was vacant and they stopped on the landing and had intercourse. He said that she then asked for another $15; he told her she was crazy, and left.
The complainant testified that she became alarmed as they went up the stairs so she started back down, telling McClure to bring the wine down. McClure ran after her, put a knife in her side and told her he would kill her if she screamed. He forced her back to the second floor and forcibly raped her. After this he went through her purse, throwing items on the floor as he looked for money. He found none and asked where it was; he said he knew she had some because she was going to buy the wine. She pointed to an inside pocket of the purse which contained $60. When he unzipped the pocket she grabbed the knife he was holding loosely. He hit her in the face and she fell against the wall. He came at her again and she threw the knife away. He struck her again and ran down the stairs.
• 1 McClure contends that prejudicial trial errors were responsible for his conviction. The alleged errors, however, relate chiefly to the charge of rape for which he was acquitted. The first of these was the refusal of the trial court to permit a defense witness to testify that seven years earlier the complainant had accused him of rape when he refused to pay after having sexual intercourse with her. The court would not permit this testimony because it was a single incident outside the complainant's general reputation for chastity. The testimony, however, was not offered to prove her reputation, but to suggest her motivation in bringing the current charge an incident demonstrating a common design to use criminal prosecution as retribution against men who did not pay all she wanted for her sexual services.
• 2 The State argues that the defendant did not cross-examine the complainant about the prior incident and hence failed to lay a foundation for the witness' testimony. A foundation would have been necessary if the purpose of the proffered testimony had been to impeach something the complainant had said while testifying (see People v. Rainford (1965), 58 Ill. App.2d 312, 208 N.E.2d 314), but this was not its purpose. Its purpose, as we have said, was to show her predilection under certain circumstances to charge men with rape. The testimony should have been admitted, but we do not think its exclusion was of prejudicial dimension in light of the remoteness of the incident, the other evidence of the complainant's morals and, particularly, the finding of not guilty on the rape count.
A second and more serious error occurred during the prosecutor's cross-examination of McClure. He was asked whether he had told his wife or his mother-in-law of the proposition supposedly made to him in the tavern by the complainant. He replied that he had told no one. Despite this response, the prosecutor persisted:
Assistant State's Attorney: "Did you ever tell police officers that arrested you for raping and robbing that woman "
Defendant: "I told no one."
Assistant: " that woman, that it was not a rape and armed robbery, and she consented to it because she was a prostitute?"
Defendant: "I told no one."
Assistant: "This is the first time, today, ...