{ "id": 5393252, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Lee King, Defendant-Appellant", "name_abbreviation": "People v. King", "decision_date": "1973-03-13", "docket_number": "No. 55547", "first_page": "652", "last_page": "656", "citations": [ { "type": "official", "cite": "10 Ill. App. 3d 652" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "219 N.E.2d 662", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill.App.2d 419", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2585546, 2586122 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/72/0419-02", "/ill-app-2d/72/0419-01" ] }, { "cite": "264 N.E.2d 199", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill.2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2902768 ], "opinion_index": 0, "case_paths": [ "/ill-2d/47/0019-01" ] }, { "cite": "32 N.M. 319", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1553013 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/32/0319-01" ] }, { "cite": "80 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1927, "opinion_index": 0 }, { "cite": "195 Va. 870", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2063519 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/va/195/0870-01" ] }, { "cite": "238 N.E.2d 205", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "95 Ill.App.2d 457", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2537503 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/95/0457-01" ] }, { "cite": "221 N.E.2d 133", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill.App.2d 483", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2580852 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/74/0483-01" ] }, { "cite": "221 N.E.2d 232", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill.2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5379196 ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0564-01" ] }, { "cite": "207 N.E.2d 444", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill.2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2839521 ], "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0502-01" ] }, { "cite": "247 N.E.2d 626", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "108 Ill.App.2d 325", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1595867 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/108/0325-01" ] }, { "cite": "244 N.E.2d 182", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill.2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853933 ], "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0401-01" ] }, { "cite": "97 N.E.2d 833", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "409 Ill. 55", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5310337 ], "pin_cites": [ { "page": "58" } ], "opinion_index": 0, "case_paths": [ "/ill/409/0055-01" ] } ], "analysis": { "cardinality": 573, "char_count": 10445, "ocr_confidence": 0.771, "pagerank": { "raw": 3.412211105924188e-07, "percentile": 0.8781705033768378 }, "sha256": "52e99c6b41a6b1a2aacfa1923081ca25793d30a3237520478f8116bb2445e4d7", "simhash": "1:d25054b0a32b26de", "word_count": 1796 }, "last_updated": "2023-07-14T20:49:00.166365+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Lee King, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE LEIGHTON\ndelivered the opinion of the court:\nThis was a prosecution for rape. Defendant waived trial by jury, was convicted and sentenced to serve four to five years. In this appeal, he presents three issues. (1) Whether he was proven guilty beyond a reasonable doubt. (2) Whether he was denied a fair tidal and deprived of due process of law by comments made by the trial judge. (3) Whether he was prejudiced when his motion for a continuance was denied. Resolution of the first issue requires a summary of the facts.\nOn October 19, 1968, the prosecutrix, a woman in her thirties and a mother, worked as a cook and barmaid in the Korvette Lounge, 8145 Cottage Grove Avenue, Chicago. That day, at about 4:15 A.M., she finished work and left for home, a short distance away. As she walked east on 81st Street between Cottage Grove and Maryland Avenue, a man she had seen in the lounge that evening and \u201ca couple of times\u201d before, came behind her, grabbed her arm, hit her on the head, dragged her into an alley and raped her. The prosecutrix observed that her assailant had sideburns and \u201ca heavy mustache.\u201d After he left, she walked home and called the police. They took her to a nearby hospital where she made her complaint to Detective Harold Huffman and described the man who raped her. The description consisted of the man\u2019s race, approximate age and height. She did not tell Detective Huffman that she had seen this man earlier that evening in the Korvette Lounge and \u201ca couple of times\u201d before October 19, 1968. And when he testified, Detective Huffman could not recall the prosecutrix mentioning that her assailant had \u201ca heavy mustache.\u201d\nSeveral weeks after October 19, defendant came to the Korvette Lounge while the prosecutrix was there. She did not tell anyone present that defendant had raped her. She did not call the police. Then, a short time later, defendant came into the lounge a second time. Again, the prosecutrix did not tell anyone that defendant had raped her. She waited until she got home and then she called the police. A detective came to her house and talked with her. During her testimony, the prosecutrix explained that she did not call the police from the Korvette Lounge because she feared for her life and for the safety of her children. Sometime later, the defendant came into the Korvette Lounge a third time. Again the prosecutrix did not tell anyone that defendant had raped her on October 19, 1968. But the prosecutrix said that she called the police station and asked for Detective Huffman. She was not able to contact him. Then, on April 22, 1969 defendant was in the Korvette Lounge with some friends. He ordered drinks for them. He put his hands on the prosecutrix. In her testimony she said that defendant\u2019s conduct \u201cjust made me sick. And I say I am going to call the police and I called.\u201d The police came and the prosecutrix told them that defendant raped her on October 19, 1968. He was arrested, charged and brought to trial.\nThe prosecutrix and Detective Huffman testified for the prosecution. Defendant testified in his defense and denied that he raped the prosecutrix. He admitted that prior to October 19, 1968 and subsequent to that date he was a patron of the Korvette Lounge. He said that between October 19, 1968 and April 22, 1969 when he was arrested, he had been in the lounge several times when the prosecutrix was there but she never complained about his conduct to anyone nor did she charge that he had raped her. After hearing the evidence, the trial court found defendant guilty and imposed the sentence.\nThe first issue before us is whether the evidence in this record on which the question of identity rests entirely on the testimony of one witness, the prosecutrix, proved beyond a reasonable doubt that on October 19, 1968 defendant committed the crime of rape.\nDefendant insists that it does not. He argues that on October 19, 1968 when the prosecutrix first complained to Detective Huffman, it was natural for her to assert that the man who raped her was one she had seen in the Korvette Lounge that evening and \u201ca couple of times\u201d before. According to Huffman, she did not do this. Moreover, defendant points out, he was in the Korvette Lounge three times between October 19, 1968 and April 22, 1969 without the prosecutrix complaining to anyone there that he had raped her or having him arrested for that offense. In addition, defendant argues that it was natural for the prosecutrix, when she described her rapist to Detective Huffman, to tell him that the man who attacked her had a heavy mustache. According to Huffman, she did not do this. The only description she gave was the race, approximate age and height of her assailant. From these facts, defendant contends that the testimony of the prosecutrix lacked the ring of truth; she was not a credible witness; and therefore, his conviction based solely on her identification testimony cannot stand. To determine the merit of this contention, we turn to the rules of law applicable to this case.\nThe identification testimony of one witness who is positive and credible is sufficient to convict, even though that testimony is contradicted by the accused. (People v. Sproch, 409 Ill. 55, 58, 97 N.E.2d 833; People v. Novotny, 41 Ill.2d 401, 411, 244 N.E.2d 182; People v. Hardaway, 108 Ill.App.2d 325, 247 N.E.2d 626.) Such a conviction, however, cannot stand if the identification testimony is vague, doubtful and uncertain. (People v. Cullotta, 32 Ill.2d 502, 504, 207 N.E.2d 444.) This is particularly true if the identification testimony reveals a failure to assert or mention some physical feature in the appearance of the identified individual such as sideburns, mustache or a distinctive item of clothing. See People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232; compare People v. Marshall, 74 Ill.App.2d 483, 221 N.E.2d 133 and People v. Martin, 95 Ill.App.2d 457, 238 N.E.2d 205.\nIt is a general principle of evidence that the failure to assert a fact when it would have been natural to assert it amounts in effect to an assertion of the non-existence of that fact. (Wigmore, Evidence \u00a7 1042 ( 3d ed.).) The omission, that is, the fafiure to assert a fact, is prima facie inconsistent conduct which unexplained has the tendency to discredit a witness. See Skipper v. Commonwealth (1954), 195 Va. 870, 80 S.E.2d 401; compare State v. Archer (1927), 32 N.M. 319, 255 P. 396.\nIn this case, it was the prosecutrix\u2019s testimony that earlier in the evening of October 19, 1968 and \u201ca couple of times\u201d before she had seen the man who raped her. It is natural to expect the prosecutrix to have initially asserted that the man who committed this offense was one she had seen in the place where she worked. Yet, it appears that when she complained to Detective Huffman, she did not teH him this important fact. Nor did she say this to anyone else. In addition, it appears from Detective Huffman\u2019s testimony that she did not say the man who raped her wore a heavy mustache.\nMore significantly, on three different occasions between October 19, 1968 and April 22, 1969, the prosecutrix saw the defendant in the Korvette Lounge. She did not tell anyone there that the defendant had raped her nor did she have him arrested. During her testimony when she was asked for an explanation, the prosecutrix said that she feared for her life and safety of her children. We take judicial notice that the Korvette Lounge is in the 8100 block of South Cottage Grove Avenue, a densely populated area of Chicago and a place within easy reach of law enforcing authorities. Nothing in this record suggests that the prosecutrix was isolated from others or was alone in the presence of defendant when he came into the Korvette Lounge. In our judgment, this identification testimony of the prosecutrix is unsatisfactory; it is doubful, vague and uncertain; it raises a reasonable doubt of the defendant\u2019s guilt. See People v. Charleston, 47 Ill.2d 19, 264 N.E.2d 199; People v. Kincy, 72 Ill.App.2d 419, 219 N.E.2d 662.\nThe second issue is whether the comments of the trial judge denied defendant a fair trial and deprived him of due process of law. Defendant\u2019s contentions and arguments on this issue impel us to observe the comments which the trial judge made just before imposition of the sentence. He said:\n\u201cThe testimony of penetration and that\u2019s it. So we can say it\u2019s attempt. If it is or anything else or aggravated battery or anything else, that\u2019s what should have been done in this case and this is where justice does not prevail. And I don\u2019t care who knows it. It\u2019s unfortunate and terrible and everything else and I don\u2019t know how I can sleep tonight sending this man to the penitentiary for four years. I must send him because the legislature says there is no probation on rape. It\u2019s a minimum four years sentence as long as the State\u2019s Attorney\u2019s office will not corroborate to reduce it to something else. Give him some time. There is nothing else I can do except find him guilty, [sic].\u201d\nAt the time these comments were made, it was the law that \u201c[a] person convicted of rape shall be imprisoned in the penitentiary for any indeterminate term with a minimum of not less than four years.\u201d (Ill. Rev. Stat. 1969, ch. 38, par. 11 \u2014 1(c).) By statute, rape was not a probationable offense. (Ill. Rev. Stat. 1969, ch. 38, par. 117 \u2014 1(a).) Therefore, it was the public policy of this State that the man who, in this case, committed the heinous offense described by the prosecutrix was to be imprisoned for a term not less than four years. If, beyond a reasonable doubt, defendant was that man, then sentencing him to the penitentiary for the minimum term required by law should not have occasioned any degree of nocturnal disquietude. These comments reveal dohbt that defendant was guilty of the rape with which he was charged. Having reached these conclusions, it is unnecessary that we resolve the remaining issue. The judgment is reversed.\nReversed.\nSCHWARTZ and HAYES, JJ\u201e concur.", "type": "majority", "author": "Mr. JUSTICE LEIGHTON" } ], "attorneys": [ "Gerald W. Getty, Public Defender, of Chicago, (Stanton Bloom and James J. Gramenos, Assistant Public Defenders, of counsel,) for appellant.", "Edward V. Hanrahan, State\u2019s Attorney, of Chicago, (Elmer C. Kissane and James T. J. Keating, Assistant State\u2019s Attorneys, of counsel,) for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Lee King, Defendant-Appellant.\n(No. 55547;\nFirst District (2nd Division)\nMarch 13, 1973.\nGerald W. Getty, Public Defender, of Chicago, (Stanton Bloom and James J. Gramenos, Assistant Public Defenders, of counsel,) for appellant.\nEdward V. Hanrahan, State\u2019s Attorney, of Chicago, (Elmer C. Kissane and James T. J. Keating, Assistant State\u2019s Attorneys, of counsel,) for the People." }, "file_name": "0652-01", "first_page_order": 676, "last_page_order": 680 }