People v. Gardner
| Decision Date | 15 September 1963 |
| Docket Number | Gen. No. 49879 |
| Parties | The PEOPLE of the State of Illinois, Defendant in Error, v. Arthur GARDNER, Plaintiff in Error. . June, 30, 1965. Adams, Weston, Barnes & Grant, Chicago, George C. Adams, Chicago, of counsel, for plaintiff in error. Daniel P. Ward, State's Atty., of Cook County, Chicago, Elmer C. Kissane, Kenneth L. Gillis, Asst. State's Attys., of counsel, for defendant in error. DRUCKER, Justice. Defendant appeals from a conviction, by a jury, of the crime of forcible rape for which he was sentenced to a minimum of one year and a maximum of ten years in the penitentiary. Defendant argues that he was not proven guilty beyond a reasonable doubt; that certain instructions were erroneously refused; that comments by the State's Attorney in closing argument were prejudicial; and that the court erred in overruling defendant's motion for new trial. People's witness Helen L. Davis testified that on |
| Court | United States Appellate Court of Illinois |
Adams, Weston, Barnes & Grant, Chicago, George C. Adams, Chicago, of counsel, for plaintiff in error.
Daniel P. Ward, State's Atty., of Cook County, Chicago, Elmer C. Kissane, Kenneth L. Gillis, Asst. State's Attys., of counsel, for defendant in error.
Defendant appeals from a conviction, by a jury, of the crime of forcible rape for which he was sentenced to a minimum of one year and a maximum of ten years in the penitentiary.
Defendant argues that he was not proven guilty beyond a reasonable doubt; that certain instructions were erroneously refused; that comments by the State's Attorney in closing argument were prejudicial; and that the court erred in overruling defendant's motion for new trial.
People's witness Helen L. Davis testified that on September 15, 1963, she occupied a second floor apartment at 6028A South Blackstone Avenue in Chicago; that about ten o'clock of that evening she went to the back porch door and locked it; that she returned to her apartment; that the bedroom window was about 33 inches wide; that the window had 'sheer curtains'; that the shade was 'partly down'; that the window was open 'about three-fourths of the way'; and that there was a screen which was nailed to the window frame. She further testified that she locked her apartment door and left a 150 watt light on in her kitchen; that she entered her bedroom and completely undressed and put on a gown and housecoat. She testified that she went back to her kitchen to listen to the 'last two records' on her phonograph; that while there:
Well, I heard a swishing noise, but I knew that I was in the house and I had the door locked * * * I took it for granted, it was the wind blowing the curtains at the window. The next thing I knows, I heard a footstep. And, when I heard the step, I automatically turned around and jumps up and I looked right in the man's face. And, when I did, he grabs me around the throat with both his hands.
She testified that defendant said 'Don't scream' and admonished her not to look at him; that he kept one hand on her throat while he had intercourse with her which lasted 'about two or three minutes'; that he apparently had a climax because 'I was extremely wet.' She testified that defendant left her apartment by the kitchen door; that she 'jumped up' after she heard him unlock the hall door. The witness testified that she went to the porch door; that neighbors joined her there; that a neighbor called the police and that she told the assembling neighbors about the incident. She testified that:
They wanted to know what was the commotion. I guess I must have been hollering, or something, you know, and I was saying what happened, meanwhile, what the noise was all about.
She further testified that she was able to observe defendant's attire during the carnal act. She testified that:
He had on these kind of big shoes like boot shoes. In other words, they're brogans, or something like that. And, then, he had on some kind of bluish green pants or greenish blue pants, light, work, washable pants, and he had on white shirt * * * and a kind of bluish greenish looking sweater.
She testified that defendant has 'long sideburns' and 'a little slur' in his voice. She further testified that she identified the defendant at Billings Hospital the following morning; that she recognized the voice; and that there was no question in her mind that it was same man who had raped her.
On cross-examination she testified that defendant removed his left hand from her neck because 'I guess he take his penis out of his pants with it'; that she did not have any 'gentlemen company' around the day or night of the incident; that she did not hear the window screens being pried loose because 'my two neighbors and myself was sitting in the kitchen playing my record player'; that she told the police that defendant and that defendant was in her apartment 'approximately fifteen minutes.'
People's witness Chicago Police Officer John Jackson testified that he arrived at the Davis apartment at about 11:15 P.M.; that he had He asked her for a description which he then had broadcasted to police vehicles. On cross-examination he read the description from a report that he had made to the Police Department and which had subsequently been transcribed. The description: 'One male Negro, between the age of 29 and 30, six feet one inch tall, 160 pounds, light complexion, black short hair, wore blue shirt and blue fatigue pants.' On re-direct examination Jackson testified that Mrs. Davis' 'appearance was [that] she was emotionally upset and hysterical.'
People's witness Police Officer DeArmand Carter testified that on September 15, 1963, at approximately eleven o'clock he heard a description of an alleged rapist on the police radio; that he stopped defendant at 60th Street and University Avenue (about four and one-half blocks from the Davis apartment) at about 11:15 P.M. He testified that defendant was walking east toward Blackstone; that when he stopped him the defendant 'was sweating very profusely' and that he 'seemed to have been running or walking very fast.' In response to Officer Carter's questioning defendant said that he had been at the Regal Theater (47th Street and South Park Avenue); that he was proceeding on foot to his home at 7339 Kimbark; that he could not recall the name of the movie; and that he had not been with or seen anyone he knew at or in the vicinity of the theater. The officer testified that he conducted a search for narcotics on the defendant; that he uncovered $129.00 in currency and on ticket stub (Defendant's Exhibit No. 2) without a date or name on it. He testified that he took the defendant to Billings Hospital where Helen Davis was being examined; that she stated: ; that defendant 'didn't say anything, he dropped his head.' On cross-examination he testified that defendant 'didn't have an impediment of speech' and that he did not observe a 'retarded condition.'
Chicago Police Detective Jack Wallenda testified that he arrived at the apartment about 12:45 A.M. September 16, 1963; that he unsuccessfully dusted the room and entrances for finger prints; that he saw the defendant afterwards; that he estimated defendant's weight at 'approximately 225, 230'; and that he was 'very light' complexioned.
It was stipulated by both parties that an analysis of liquid taken from Mrs. Davis' privates on September 16, 1963, at the hospital disclosed the existence of 'live sperm.'
Defendant Arthur Gardner (twenty-eight years old in 1963) testified that on September 15, 1963, he went to the Regal Theater about 4:30 P.M.; that he proceeded to the Metropolitan Theater 'between seven-thirty and eight o'clock'; that he saw two pictures (The Balcony and The Trunk) at the Metropolitan and that he left there at about 11:00 P.M.; that he walked to the corner of 47th and South Park where he met Mr. Solomon Clark. Defendant testified that Clark did not remember that defendant had been Clark's newpaper boy in 1950; that defendant told Clark that he lived at 7339 Kimbark and that 'my mother is buying the place there'; that Clark gave him a card and said 'If you ever need any help in real estate, call on me.' Defendant further testified that he walked to 60th Street and University Avenue where he was 'picked up' by the police and taken to (Billings) Hospital; that he was taken into a room where 'As soon as I got in the door real good, she (Davis) say, 'That's him,' to the officer.' The defendant denied ever being at or knowing of a building at 6028 Blackstone; that the only times he saw Davis were at the hospital and subsequently at a police station; that on September 15, 1963, he weighed 265 pounds and was wearing 'dark blue pants, a white shirt and a black and white, black and yellow sweater.' On cross-examination he testified that he was wearing 'big * * * Army boots'; that he went to movies every Sunday in the 47th and South Park area; that Mr. Clark gave him two cards; that he placed both in his 'folder wallet'; but the police search did not uncover them; that he gave the police officer a ticket stub from the Metropolitan Theater (Defendant's Exhibit No. 2); that he kept the other ticket 'in my watch pocket'; and that he 'just saves tickets.'
Defendant presented four other witnesses.
Lonnie Lewis, manager of the Metropolitan Theater, identified Defendant's Exhibit No. 2 as part of a ticket sold for admission at his theater on September 15, 1963, between 7:00 and 8:00 P.M.; but that his records do not indicate who purchased the ticket; that if an individual entered the theater at that time and watched both productions he would be out at 'approximately eleven, eleven-thirty.'
Solomon Clark, an insurance counselor, testified that a young man (defendant) 'called me by name' a little after 11:00 P.M. on September 15, 1963, near 47th and South Park, that they had a brief conversation concerning defendant's prior occupation as a newspaper boy, and his present residence; that Clark '* * * just run my hand in my pocket and gave him my card and drove off.' On cross-examination he testified that he recalled that defendant was his paper boy 'after he renewed the acquaintance'; that he was not sure that he saw defendant on September 15, 1963, but that 'it must have been about that time * * * [but] I didn't keep up with the date'; and that 'I may have given him two (cards).'
Defendant presented two witnesses who testified that he had a good reputation in the...
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