People v. Bendig

• Decision Date: 29 January 1968
• Docket Number: Gen. No. 51375
• Citation: 91 Ill.App.2d 337,235 N.E.2d 284
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bernard E. BENDIG, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 284

235 N.E.2d 284

91 Ill.App.2d 337

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bernard E. BENDIG, Defendant-Appellant.

Gen. No. 51375.

Appellate Court of Illinois, First District, First Division.

Jan. 29, 1968.

Gerald W. Getty, Chicago, for defendant-appellant, Shelvin Singer, James J. Doherty, Chicago, of counsel.

Daniel P. Ward, State's Atty., Chicago, for plaintiff-appellee, Elmer C. Kissane, Saul A Perdomo, Chicago, of counsel.

ADESKO, Justice.

Defendant was indicted for the crime of deviate sexual assault in violation of Chapter 38, Section 11--3 of the Illinois Revised Statutes, 1963. A plea of not guilty was entered and trial by jury was waived. He was found guilty and sentenced to the Illinois State Penitentiary for not less than one, nor more than five years.

On this appeal, defendant argues that he was not proven guilty beyond all reasonable doubt and that there is a fatal variance between the charge in the indictment and the evidence.

The State's evidence consisted of the testimony of the prosecutrix and the stipulated testimony of the doctor who examined her one day after the alleged incident. The nature of the facts in this case are of such a distasteful and degenerate character that we do not feel any purpose will be served by recounting them. This court has carefully scrutinized the entire record and assiduously reviewed the testimony of the prosecutrix. Suffice it to say that the prosecutrix met the defendant by prearrangement. They proceeded to his apartment where, by the use of force the defendant, who was a strong, husky young man, overcame the prosecutrix who was a rather small 20 year old girl. By holding her arms down and sitting on her, he inserted his penis into her mouth.

We cannot say that the conclusion of the trial judge in finding defendant guilty was against the manifest weight of the evidence. As the Supreme Court stated in People v. Finley, 22 Ill.2d 525, 177 N.E.2d 149 (1961):

'(W)hwere a case is tried by the court without a jury, the determination of the credibility of the witnesses and the weight to be accorded their testimony is committed to the trial judge; and, unless it can be said that the court's judgment is found to rest on doubtful, improbable or unsatisfactory evidence, or clearly insufficient evidence, a reviewing court will not substitute its judgment for that of the court below even though evidence regarding material facts is conflicting and irreconcilable. People v. West, 15 Ill.2d 171, 154 N.E.2d 286.' (p. 529, 177 N.E.2d p. 151)

Defendant's argument that the prosecutrix showed no desire to resist is without merit. As the Illinois Supreme Court said in People v. Smith, 32 Ill.2d 88, 203, N.E.2d 879 (1965):

'There is no definite standard fixing the amount of force required and each case must be considered on its own facts. It is the general rule that if the female has the use of her faculties and physical powers, the evidence must show such resistance as will demonstrate that the act was against her will. However, resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female, nor where she is overcome by superior strength or paralyzed by fear.' (p. 92, 203 N.E.2d p. 881)

As each case must be considered on its own facts, so must the degree of resistance required of each victim be judged. The evidence convinces us that the defendant was proven guilty beyond all reasonable doubt of the crime of deviate sexual assault.

The defendant next argues that there is a material variance between the indictment and the evidence. The indictment states that defendant 'committed the offense of deviate sexual assault, in that, he, knowingly by force and by threat of force, compelled one _ _ to submit to an act of oral copulation, in violation of chapter 38, Section 11--3 of the Illinois Revised Statutes 1963.'

Section 11--3 of the Criminal Code provides:

'Any person * * * who, by force or threat of force, compels any other person to perform or submit to any act of deviate sexual conduct commits deviate sexual assault.'

Defendant contends that the Code contemplates two general alternative categories of behavior, that...