{ "id": 2601599, "name": "People of the State of Illinois, Defendant in Error, v. Wavery Smith, Plaintiff in Error", "name_abbreviation": "People v. Smith", "decision_date": "1965-04-12", "docket_number": "Gen. No. 49,644", "first_page": "123", "last_page": "133", "citations": [ { "type": "official", "cite": "58 Ill. App. 2d 123" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "414 Ill 445", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5314057 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/ill/414/0445-01" ] }, { "cite": "13 NE2d 976", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1938, "opinion_index": 0 }, { "cite": "368 Ill 274", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2569100 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/ill/368/0274-01" ] }, { "cite": "102 NE 1045", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1913, "opinion_index": 0 }, { "cite": "260 Ill 35", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4734802 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/ill/260/0035-01" ] }, { "cite": "47 NE2d 694", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1943, "opinion_index": 0 }, { "cite": "382 Ill 388", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2479429 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/ill/382/0388-01" ] }, { "cite": "140 NE2d 675", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1957, "opinion_index": 0 }, { "cite": "10 Ill2d 430", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2726213 ], "weight": 3, "year": 1957, "opinion_index": 0, "case_paths": [ "/ill-2d/10/0430-01" ] }, { "cite": "105 NE2d 746", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "412 Ill 136", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2664266 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/ill/412/0136-01" ] } ], "analysis": { "cardinality": 819, "char_count": 16215, "ocr_confidence": 0.495, "pagerank": { "raw": 1.7346914400813413e-07, "percentile": 0.7061083484017794 }, "sha256": "1fa0cf65fcf6a4978959d84f7167dab6394f383609076b14efe0b71a281e2ad5", "simhash": "1:5e29b37923a6d43a", "word_count": 2759 }, "last_updated": "2023-07-14T19:12:10.724902+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BURMAN, P. J. and MURPHY, J., concur." ], "parties": [ "People of the State of Illinois, Defendant in Error, v. Wavery Smith, Plaintiff in Error." ], "opinions": [ { "text": "MR. JUSTICE KLUCZYNSKI\ndelivered the opinion of the court.\nDefendant, Wavery Smith, in a jury trial, was convicted of the crime of rape and sentenced to the penitentiary for a term of 30 to 40 years. He urges reversal of his conviction on the grounds that he was not proven guilty beyond a reasonable doubt; that he did not receive a fair trial, and that the court committed reversible error in refusing to give a certain instruction.\nThe evidence in the cause reveals that the complainant and her mother were walking in a northerly direction on the east side of the 1500 block of south St. Louis Avenue in Chicago about 2:00 o\u2019clock on the morning of June 5, 1962. They were searching for her daughter who had gone to a show and had not returned home.\nComplainant testified that there was no one else in sight when defendant approached them from the rear; that she and her mother separated thinking \u201che was going to pass on by\u201d; that defendant grabbed her neck with his right hand, and her mother\u2019s neck with his left; that he asked them for money, but she told him they didn\u2019t have any; that he threatened to kill them if they did not obey him; that he then dragged them into a gangway and made her mother lie on the ground and made her lie across her mother\u2019s legs; that her mother was lying on her left side with her legs curved out; that the mother was arranged in a kind of curve on the ground, and that she was straight; that her head was east and her mother\u2019s head was ahead of hers. \u201cI was lying across her legs.\u201d\nComplainant further testified that they begged defendant to leave them alone, but he told them to shut up or they would be killed. He kept pushing her mother\u2019s head down. He was on his knees. He lifted complainant\u2019s dress and spread her legs with his free left hand. His right hand was still around her neck and contained an unknown instrument which she thought was a knife. He forced her to insert his penis into her vagina. \u201cHis penis was in me just a few minutes. I don\u2019t think he discharged in me.\u201d She estimated the entire incident took about four or five minutes, and then a man appeared with a flashlight and gun.\nThe mother\u2019s testimony as to their initial encounter with defendant was similiar to that of her daughter. She stated that when defendant grabbed them her daughter said, \u201cTake your hands off me; you don\u2019t know me, and I don\u2019t know you.\u201d They were forced into a basement, and when the mother tried to escape defendant told her, \u201cYou fool with me, if you holler I will cut your neck, ... I will cut your neck off and leave you lay here.\u201d She further stated that he had her lie down on her daughter\u2019s feet, but that she did not know what happened next.\nAbout this time Leonard Jackson and his wife Tanzella were in bed in their second floor apartment at 1515 S. St. Louis. Mrs. Jackson testified she was awakened by voices in the adjacent gangway, went to the window, and heard a woman\u2019s voice saying, \u201cPlease don\u2019t do this to me,\u201d and \u201cI just have one dollar.\u201d She also heard a male voice ordering someone to lie down. She awakened her husband who dressed, told her to telephone the police, and proceeded downstairs carrying a flashlight and his grandson\u2019s toy pistol. Prior thereto, Jackson stated that he had also gone to the window and saw a man and two women in the gangway and heard one of the woman say, \u201cI ain\u2019t got no money.\u201d\nJackson further testified that when he got downstairs one woman was lying on the ground; that defendant was on top of her; that he flashed his light on defendant, and ordered him to stand; that he noticed defendant\u2019s pants were open and when defendant started to fasten them, he (Jackson) said, \u201cDon\u2019t fasten up your pants. Wait until the officer gets here\u201d; that he heard defendant reply, \u201cThis is my old lady. I caught her in a car with another guy.\u201d He said he kept defendant sitting on an adjacent bench by pointing his toy pistol at him, concealing its identity by shining his flashlight in defendant\u2019s face until the police arrived.\nIn response to Mrs. Jackson\u2019s call officer Steven Moore of the Chicago Police Department arrived on the scene a few minutes later. He testified that he observed complainant and her mother crying; that the mother\u2019s coat showed dirt on the left side and the back of complainant\u2019s coat was rather dirty; that defendant\u2019s clothes were shabby, his pants legs dirty, his pants open, and \u201cyou could see his penis.\u201d\nThe officer further stated that he asked complainant if defendant was the man who raped her and that she she replied \u201cYes\u201d; and that he heard defendant say, \u201cWhy don\u2019t you tell them the truth? Why don\u2019t you tell them who I am? This is my old lady. . . . Hold on, wait a minute, tell them who I am, tell who I am.\u201d On cross-examination it was brought out that defendant\u2019s pants and shorts had been taken to the Police Department Crime Laboratory.\nComplainant had also testified that when asked by officer Moore if defendant was the man who raped her she said \u201cYes,\u201d and further that she had never seen defendant before that night. Complainant was taken directly to Cook County Hospital. At the trial it was stipulated that she was examined and that no sperm was found. Defendant offered no evidence in his behalf.\nIn contending that' the State failed to prove him guilty beyond a reasonable doubt defendant argues (1) that complainant\u2019s testimony was inherently improbable, and required that a directed verdict he entered in his favor; (2) that there were discrepancies in the testimony of complainant and Tier mother; and (3) that the circumstances failed to show that rape had occurred.\nDefendant argues that the evidence regarding penetration is insufficient to support his conviction since the weight and credibility of the State\u2019s evidence has been impaired by contradictions appearing in the testimony. Some contradictions do appear when comparing the testimony of complainant and her mother. The mother testified that the incident occurred in a basement. However, complainant, the Jacksons and officer Moore' all agreed that the correct location was a gangway.\nComplainant\u2019s mother also testified that she was lying across her daughter\u2019s feet. Complainant testified that she was lying across her mother\u2019s legs, and the testimony of Mr. Jackson revealed that when he came upon them in the gangway he found defendant on top of complainant and her mother lying on the ground. Defendant points out that the mother testified she did not See the rape. Rather than being contradictory, the fact that she could not view the rape corroborates her daughter\u2019s testimony which indicated she was lying across her mother\u2019s legs and that the latter had had her face down.\nThe fact that the mother\u2019s testimony varied from that of her daughter regarding some details is insignificant since the jury was at liberty to weigh all of her testimony in the light of other testimony, specifically that given by complainant, as to the entire incident, and the corroboration in several important respects by disinterested witnesses, the Jacksons, as well as by officer Moore. The mere fact that there is minor conflicting evidence does not justify reversal. People v. Meyers, 412 Ill 136, 105 NE2d 746 (1952); People v. Davis, 10 Ill2d 430, 140 NE2d 675 (1957).\nDefendant asserts that the circumstances could be reasonably construed as a quarrel over money between a man and his \u201cold lady,\u201d or at most, a robbery rather than a rape. He points out that Mr. Jackson did not testify that he observed defendant having sexual intercourse with complainant. This argument is not persuasive as the sufficiency of the evidence of penetration does not depend on Jackson\u2019s testimony alone. His testimony is corroborative and gives credence to complainant\u2019s account of the incident. The fact that Mr. Jackson saw the women on the ground with defendant on top of complainant is certainly not consistent with an argument over money with his \u201cold lady.\u201d Defendant\u2019s further assertion that if a rape had taken place the Jacksons would have heard and testified to much more damaging statements than those recited, is disposed of by the fact that they did not testify to having heard the entire conversation in the gangway, and is explained by the fact that Mrs. Jackson had gone to telephone the police and Mr. Jackson was dressing himself in preparation for going outside.\nNext, defendant argues that complainant did not vent a spontaneous expression of outraged feelings or complaint at her first opportunity, and that it was not until officer Moore arrived and asked her a leading and suggestive question did the word \u201crape\u201d appear. Such delay, it is argued, indicates that the evidence has little if any probative value and is consistent with a spur of the moment \u201cframe up.\u201d\nIn rape eases it is proper to adduce evidence indicating that complainant made prompt complaint concerning the outrage which had been perpetrated upon her, and it is proper to permit the person to whom she complained to give testimony that the complaint was made. Evidence of such complaint is admitted on the theory that the natural instinct of a female thus outraged prompts her to express indignation at the injury inflicted upon her, and it is deemed relevant on the ground that it corroborates her statement that she was assaulted. To be admissible the complaint of the offense must be made without inconsistent or unexplained delay and must be a spontaneous declaration of injury. The admission of such complaint is an exception to the general rule that hearsay evidence is not admissible and does not extend to crimes other than rape. People v. Davis, 10 Ill2d 430, 140 NE2d 675.\nIn the instant case, only a few minutes elapsed between the time Mr. Jackson apprehended defendant, who was then lying on top of complainant with his pants open, and the arrival of officer Moore. During that interval there was some evidence to indicate that complainant spoke to Mrs. Jackson. The fact that complainant apparently did not mention to her or Mr. Jackson that she had been raped by defendant is not significant because it was reasonable for her to assume that under the circumstances the Jacksons realized that a rape had been committed.\nWhen officer Moore arrived he saw that both women were crying; that defendant\u2019s pants were open and his sex organ exposed. Thus, as we view the circumstances appearing in the record we find that the fact that complainant did not make an immediate complaint to the Jacksons and that her implication of defendant first came in response to a question put to her by officer Moore almost immediately upon arriving at the scene, places her testimony as well as that of officer Moore within the limitations prescribed by the rule.\nWe believe the overall character of complainant\u2019s nnimpeached testimony is clear and convincing, and is corroborated in material respects by the Jack-sons and officer Moore. It was clearly adequate. People v. Davis, 10 Ill2d 430, 140 NE2d 675; People v. Elder, 382 Ill 388, 47 NE2d 694 (1943). It is well settled law, for which no authority need be cited, that the determination of the credibility of the witnesses and the weight, if any, to be accorded their testimony is for the trier of fact and unless the evidence can be said to be so unsatisfactory as to justify a reasonable doubt of defendant\u2019s guilt, a reviewing court will not substitute its judgment for that of the jury who have observed the witnesses, heard them testify, and were in a better position than this court to determine where the truth lies.\nIn further arguing that penetration has not been proven, defendant points out that his pants and shorts were taken to the police crime laboratory but were never produced at trial, from which he concludes that the failure on the part of the State to produce evidence within its possession raises a presumption that had such evidence been produced it would have been unfavorable to the State, and therefore, the court committed reversible error in refusing to instruct the jury on said presumption. Defendant contends that the jury could have reasonably concluded that the pants and shorts contained neither vaginal nor seminal stains, and that if penetration did in fact occur as complainant testified, then in the absence of vaginal lubrication there would of necessity have to be vaginal irritation. On the latter point defendant asserts that the stipulation that no spermatozoa was found in complainant\u2019s vagina is proof that there was no vaginal irritation. The argument is a nonsequitur.\nComplainant, the mother of three, did not sense an emission during intercourse. A prompt medical analysis of her vagina revealed no spermatozoa. The stipulation did not determine whether or not there was vaginal irritation due to an absence of vaginal lubrication. Section 11-1 (b) of the Criminal Code (Ill Rev Stats (1963) c 38, \u00a7 11-1 (b)) provides that:\nSexual intercourse occurs when there is any penetration of the female sex organ by the male sex organ.\nThus, codifying the previous case law, proof of the slightest penetration is sufficient to sustain a conviction for rape. People v. Schultz, 260 Ill 35, 102 NE 1045 (1913); People v. Ardelean, 368 Ill 274, 13 NE2d 976 (1938). The State adduced sufficient evidence to warrant the submission of the question of penetration to the jury. The record does not indicate that the pants and shorts were unavailable to the defendant or that he requested their production. Where the evidence is available to both parties such presumption does not exist. The trial court did not err in failing to so instruct the jury.\nEeviewing this record we find the evidence adduced adequately supports the verdict of the jury and sustains the conviction.\nFinally, defendant contends that he was deprived of a fair trial because of the prosecutor\u2019s prejudicial conduct; that during the examination of complainant\u2019s mother the prosecutor indulged in a series of questions which were in part leading; that defense counsel made objections to these questions which the court, in the main, sustained but did not admonish the prosecutor as defendant requested. Complainant\u2019s mother was a difficult witness and was not responsive to many questions. \"When the prosecutor expressed disagreement with the court\u2019s ruling defense counsel objected to the remarks and the court, directing its attention to the prosecutor, said, \u201cI have ruled, Mr. Porter.\u201d When the examination of the mother was concluded, defense counsel made an intemperate suggestion that the prosecutor be sworn as a witness in order that he might be cross-examined. The prosecutor addressed the court, stating, \u201cI am willing to abide by the court\u2019s rulings, but I am not willing to allow him to make statements uncalled for.\u201d The court ruled that \u201c(t)he remark of Mr. Doherty will be stricken and the jury instructed to disregard it.\u201d\nDefense counsel suggests that the prosecutor\u2019s misconduct in examining complainant\u2019s mother was compounded by the fact that the court, though not approving of the prosecutor\u2019s behavior, failed to admonish him, and prejudiced defendant by rebuking his counsel, from which the jury could have been led to believe that the court was hostile toward him.\nIt is true, as pointed out in People v. Marino, 414 Ill 445, Ill NE2d 534 (1953), that jurors are ever watchful of the attitude of the trial judge and his influence upon them is necessarily and properly of great weight. Here, however, the trial judge was eminently fair and impartial and in our opinion did not convey any impression or demonstration of hostility toward defendant or his counsel.\nFor the reasons stated the judgment of the trial court is affirmed.\nAffirmed.\nBURMAN, P. J. and MURPHY, J., concur.", "type": "majority", "author": "MR. JUSTICE KLUCZYNSKI" } ], "attorneys": [ "Gerald W. Getty, Public Defender of Cook County, of Chicago (Chester P. Majewski and James J. Doherty, Assistant Public Defenders, of counsel), for plaintiff in error.", "Daniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and William J. Nellis, Assistant State\u2019s Attorneys, of counsel), for defendant in error." ], "corrections": "", "head_matter": "People of the State of Illinois, Defendant in Error, v. Wavery Smith, Plaintiff in Error.\nGen. No. 49,644.\nFirst District, First Division.\nApril 12, 1965.\nGerald W. Getty, Public Defender of Cook County, of Chicago (Chester P. Majewski and James J. Doherty, Assistant Public Defenders, of counsel), for plaintiff in error.\nDaniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and William J. Nellis, Assistant State\u2019s Attorneys, of counsel), for defendant in error." }, "file_name": "0123-01", "first_page_order": 133, "last_page_order": 143 }