People v. Vaughn, 28334.

• Decision Date: 23 May 1945
• Docket Number: No. 28334.,28334.
• Citation: 390 Ill. 360,61 N.E.2d 546
• Parties: PEOPLE v. VAUGHN.
• Court: Illinois Supreme Court

390 Ill. 360

61 N.E.2d 546

PEOPLE

v.VAUGHN.

No. 28334.

Supreme Court of Illinois.

May 23, 1945.

Error to Circuit Court, Sangamon County; Lawrence E. Stone, judge.

Edward Vaughn was convicted of rape, and he brings error.

Affirmed.

Ellis & Westbrooks and Kimball Smith, all of Chicago (Richard E. Westbrooks, of Chicago, of counsel), for plaintiff in error.

George F. Barrett, Atty. Gen., and John W. Curren, State's Atty., of Springfield (Roy M. Rhodes and Thomas W. Hoopes, both of Springfield, of counsel), for the People.

THOMPSON, Justice.

Plaintiff in error, Edward Vaughn, hereinafter called the defendant, was indicted and tried in the circuit court of Sangamon county for the crime of forcible rape against the person of the prosecutrix. He entered a plea of not guilty, was tried before a jury and, at the close of all the evidence, was found guilty as charged in the indictment. He was sentenced to the penitentiary for a term of twenty-one years. Motion to set aside the verdict and for a new trial was overruled and the defendant was sentenced accordingly. No motion was made to quash the indictment.

Numerous errors are assigned but they group themselves in about five questions: (1) Whether the People proved the guilt of the defendant beyond a reasonable doubt; (2) the rulings of the court on evidence; (3) instructions to the jury; (4) improper conduct of the State's Attorney in his examination of witnesses and prejudicial remarks in his argument to the jury; and (5) the defendant did not receive a fair and impartial trial as guaranteed by the Constitution.

The facts and circumstances as shown by the evidence are as follows: On October 3, 1943, the prosecutrix left the downtown district in Springfield, en route to her home at 1803 East Jefferson street. She was alone and the time was around 1 o'clock A.M. At Fifth and Jefferson streets she stopped and inquired as to whether or not the bus had left the corner and was told by someone standing there that she had missed it. She then proceeded in the direction of her home and upon reaching an alley in the middle of the block between Fourteenth and Fifteenth streets, on Jefferson, a man came up behind her, placed his hand over her mouth, dragged her between two houses, threatening, if she holloed, to cut her throat, then threw her on the ground and, with force and against her will, committed the act as charged in the indictment; that in accomplishing his purpose he broke one of a number of glass jars contained in a bushel basket sitting in the alley; that he then permitted her to arise and she emerged from the alley and ran two blocks to her home. She was crying when she arrived and told her father what had happened. The next morning, accompanied by her sister and brother-in-law, she went to the police station and reported the matter, which resulted in the arrest of the defendant.

The evidence reveals that the defendant, a colored man, weighing some 180 pounds, was employed at the yards of the Chicago & Alton Railroad Company and resided with his wife at 1614 East Mason street, in Springfield; that he knew the prosecutrix and, as he testified, on two occasions had conversations with her; that in the second conversation he met her while he was going in the same general direction and talked to her about his dog which he was taking for a walk. He testified she told him she did not have a dog but did have some kittens; that he asked her if he might have one of her kittens. Prosecutrix testified that he had talked to her on four different occasions and that at one time, prior to the date of the alleged offense, as she was on her way home, about four o'clock in the afternoon, the defendant walked behind her and asked her if she was married and if he could come over to her house and see her; that she told him ‘no’ and that he was entirely out of his place; that he later accosted her on the street and asked her if she had thought about what he had said; that she did not answer him and walked on without saying anything.

The prosecutrix positively identified the defendant as being the person who committed the alleged act. The defendant denied the accusation and testified he attended a picture show on the night of October 3, and did not leave until the last show was over; that they turned the lights on and there was no more show when he got out; that he proceeded down the street to the Eighth Street Tavern and remained there a short time observing an argument; that when it quieted down he went on his way down Jefferson and Madison to his home, arriving there at twenty minutes to one.

The defendant contends that he was not proved guilty beyond a reasonable doubt by competent evidence and insists that where a conviction for rape depends upon the testimony of the prosecuting witness and defendant denies the charge, the testimony of the prosecutrix must be corroborated. This rule, however, does not apply where the testimony of the prosecutrix is clear and convincing. People v. Polak, 360 Ill. 440, 196 N.E. 513;People v. Sciales, 345 Ill. 118, 177 N.E. 689. Corroboration of her testimony was her complaint when she ran crying to her home from the scene of the alleged crime and complained to her father. In cases of a prosecution for rape or for an assault with an intent to commit rape, it may be proved by testimony of third persons that the prosecutrix made complaint to them, provided such complaint is made as soon as practicable, or without any inconsistent delay. This is an exception to the general rule that hearsay evidence is inadmissible. The law allows the exception upon the generous supposition that a woman thus wronged will be prompted to express her indignation at the injury inflicted upon her. The fact that the prosecutrix made a complaint immediately after the occurrence is allowed to be proved because it tends to corroborate her testimony as given on the trial.

The question, however, before the jury for determination was whether the defendant or the prosecutrix told the truth. It is apparent the jury, in the discharge of that function, believed the prosecutrix and not the defendant. The jury, acting within the province committed to it, has passed upon the credibility of the witnesses and has determined the weight of the evidence. People v. Hiddleson, 389 Ill. 293, 59 N.E.2d 639.

[7] It is urged by the defendant that he was not sufficiently identified and that his identification was not proved beyond a reasonable doubt; and that the testimony was insufficient because he was not identified except by the testimony of the prosecutrix. In the instant case, the evidence reveals the prosecutrix had talked with the defendant on different occasions, and she testified that when he started to drag her into the alley she was able to see him because she turned around and saw his face and that she also saw him at the police station after the crime was committed, at the time of his arrest; that she viewed the defendant at that time. It is true the defendant was alone at the time the prosecutrix saw him at the police station but the law does not require that the People must place a defendant among a group of persons for the purpose of testing whether an identifying witness can point him out as the guilty party. People v. Minor, 388 Ill. 436, 58 N.E.2d 21;People v. Barad, 362 Ill. 584, 200 N.E. 858. The testimony of one witness as to identification, if positive and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused. People v. Minor, 388 Ill. 436, 58 N.E.2d 21;People v. Eckman, 380 Ill. 413, 44 N.E.2d 60;People v. Bloom, 370 Ill. 144, 18 N.E.2d 197;People v. Kerbeck, 362 Ill. 251, 199 N.E. 789;People v. LeMar, 358 Ill. 58, 192 N.E. 703;People v. Fortino, 356 Ill. 415, 190 N.E. 688. We have analyzed the cases cited by the defendant upon this question and, in particular, the case of People v. Grizzel, 382 Ill. 11, 46 N.E.2d 78, and while we find no fault with the principle therein announced, that the burden rests upon the People to prove beyond a reasonable doubt, not only the commission of the crime charged, but also the commission of the crime by the accused and by no one else, we find the identification of the defendants there depended upon a witness who saw the defendants for the first time when the alleged acts complained of were committed. Under the facts in the instant case, the prosecutrix had talked to the defendant on several occasions before the time of the alleged acts and, of course, was in a better position to recognize him, both by his features and by his voice, when he threatened to cut her throat if she made outcry.

Defendant contends the indictment is void because the record fails to show that the special grand jury which returned the indictment was legal. A supplemental record of the proceedings was filed, which shows the verified petition of the State's Attorney and the order of the court calling for a special grand jury to be and appear on October 13, 1943, and ordering the clerk of the court to issue a venire to the sheriff of Sangamon county, Illinois, commanding that he summon, from the body of the county, twenty-three persons having the qualifications of grand jurors, to appear before the court on October 13, 1943, to act as a special grand jury for the September, 1943, term of court.

Counsel for defendant urge that this record fails to show, either by the petition of the State's Attorney or by order of the court, that public justice requires the calling of a special grand jury and that this is required by the statute. The statute, in part, provides: ‘The judge of any court of record of competent jurisdiction may order a special venire to be issued for a grand jury at any time when he shall be of opinion that public justice requires it.’ Ill.Rev.Stat.1943, chap. 78, par. 19. The plain language of the petition, as filed, shows that it was necessary to call a special grand jury for the reason that...