author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Nicholas A. Polito, Defendant-Appellant.
    (No. 55574;
    First District (4th Division)
    July 10, 1974.

      Paul Bradley and Allen Wiederer, both of the State Appellate Defenders Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant was convicted of deviate sexual assault occurring on August 15, 1969, and battery occurring on August 8, 1969, and August 15, 1969. Defendant was fined $100 for each battery conviction and sentenced to a term of 4 to 10 years in the Illinois State Penitentiary for the deviate sexual assault conviction.

The issues presented on appeal are (1) whether the defendant was denied due process of law when he was placed on trial before a valid adjudication of his competency; (2) whether the evidence was sufficient to prove the defendant guilty of deviate sexual assault; and (3) whether the court erred in convicting the defendant of two offenses which arose out of the same conduct.

On September 24, 1969, the defendant, Nicholas Polito, was indicted for the offenses of rape, attempt rape, deviate sexual assault, and battery. On October 1, 1969, pursuant to the defendant’s request, the trial court ordered a behavior clinic examination to determine the defendant’s mental condition. The examination was conducted by Dr. William H. Haines, who concluded the defendant was unable to cooperate with his attorney. On November 7, 1969, the State filed a petition requesting a competency hearing. A jury found the defendant incompetent. The trial judge entered an order declaring the defendant incompetent. On January 15,1970, pursuant to defense counsel’s request, the trial court ordered another behavior clinic examination of the defendant. Dr. R. A. Reifman examined the defendant and concluded the defendant’s ability to cooperate with his counsel was a matter that would have to be tested in court. On February 18, 1970, the trial court ordered an examination of the defendant by Dr. Zane D. Parzen to determine the defendant’s competency. Dr. Parzen concluded the defendant was aware of the charges against him and could cooperate with his attorney. On March 20, 1970, defense counsel moved for a competency hearing. The defendant filed a jury waiver and a competency hearing was conducted by the court without a jury. The trial judge found the defendant competent to stand trial. The first question is whether the defendant, while adjudged incompetent, can knowingly waive a jury trial.

On July 18, 1970, a bench trial was commenced. At the close of all the evidence the trial judge found the defendant guilty of deviate sexual assault occurring on August 15, 1969, and guilty of battery occurring on August 8, 1969, and August 15, 1969. The defendant was fined $100 on each battery charge. On the deviate sexual assault charge the defendant was sentenced to a period of 4 to 10 years in the Illinois State Penitentiary.

The defendant contends that having been previously adjudged incompetent to stand trial, he was denied due process of law when he was placed on trial prior to a valid adjudication of his competency. He argues the adjudication of competency was invalid because he could not waive a jury trial while under an incompetency judgment and his counsel could not do it for him. In support of his contention the defendant relies on the decision in People v. Johnson (1973), 15 Ill.App.3d 680, wherein the appellate court reversed a conviction for armed robbery on the ground that no valid restoration hearing adjudging the defendant competent to stand trial was held subsequent to a hearing adjudging him incompetent. The State argues the Johnson opinion is erroneous and urges us' to disregard it. We think the opinion in Johnson is well reasoned, well written and comes to the correct conclusion. Furthermore, our supreme court denied leave to appeal.

We believe the defendant was denied due process of law in the instant case. The Illinois Code of Criminal Procedure in effect at the time of trial (Ill. Rev. Stat. 1969, ch. 38, § 104 — 1) defines as “incompetent” as:

“[A] person charged with an offense who is unable because of a mental condition:
(a) To understand the nature and purpose of the proceedings against him; or
(b) To assist in his defense; or
(c) After a death sentence has been imposed, to understand the nature and purpose of such sentence.”

Section 104 — 2 of the same Code provides, in pertinent part:

“(a) If before a trial, or after a judgment has been entered but before pronouncement of sentence, * * * the court has reason to believe that the defendant is incompetent the court shall suspend the proceedings and shall impanel a jury to determine the defendant’s competency. If a jury is waived by the defendant, the court shall conduct a hearing to determine the defendant’s competency.”

In People v. Bender (1960), 20 Ill.2d 45, 48, the supreme court considered the question of the procedure at a pretrial sanity (now competency) hearing and held:

“The sanity hearing * * * is no empty formality, but is designed to preserve the constitutional right of a defendant not to be placed on trial while he is insane. It is, therefore, of great importance that such a hearing should be free from prejudicial error and that such a hearing proceed in accordance with proper rules of evidence and that the jury be properly instructed as to the law.”

Thus, it is fundamental that an incompetent person cannot be tried for a crime and it is denial of due process of law to place such a person on trial. (People v. McKinstray (1964), 30 Ill.2d 611.) The recent case of People v. Johnson (1973), 15 Ill.App.3d 680, cited by defendant, involved circumstances which were, in many particulars, strikingly similar to those presented in the instant case. Prior to trial in Johnson, the defendant had been found incompetent to stand trial after a psychiatric examination and was subsequently adjudged incompetent by a jury. Defendant was later given another psychiatric examination by order of the court. The doctor administering the examination found the defendant competent to stand trial. A restoration hearing was subsequently held to determine defendant’s competency to stand trial for armed robbery. Defendant waived a jury and the court, pursuant to a stipulation between the parties, declared the defendant competent to stand trial. Defendant was thereafter convicted of armed robbery. In reversing the defendant’s conviction, the appeHate court held:

“° * * defendant herein was in no position to knowingly and understandingly waive his right to a trial by jury on March 31, 1971, as he had been adjudged incompetent on October 22, 1970, and remained in that state of legal incompetence on the day on which he appeared before the court. Further, unless properly waived, which it could not have been, defendant was entitled to a trial by jury with regard to his restoration to competency in keeping with Illinois’ Criminal Code. [Citations.]” 15 Ill.App.3d at 686.

On March 20, 1970, when the instant defendant appeared before the trial court, the question of import was the defendant’s present mental condition. Having been legally found incompetent by a jury on November 7, 1969, it was necessary to conduct a hearing in accordance with the provisions of the Illinois Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, § 104 — 3). As set forth in People ex rel. Suddeth v. Rednour (1965), 33 Ill.2d 278, it was the intent of the legislature to extend the right to a jury trial in such a restoration hearing. In People v. Reeves (1952), 412 Ill. 555, 561, the supreme court stated:

“[T]he courts should exercise care to see that restoration proceedings be determined as directed by statute; that the issue submitted as one of fact be determined by the jury; * *

Applying the aforesaid principles to the instant case, we conclude the defendant should not have been placed on trial on July 18, 1970. The purported restoration hearing by the court without a jury, adjudging the defendant competent to stand trial, was held subsequent to the November 7, 1969, hearing wherein he was adjudged incompetent, and was invalid. Therefore, the judgment convicting defendant of deviate sexual assault and battery must be reversed. Likewise, the order of March 20, 1970, finding the defendant competent to stand trial must be set aside. In view of our decision on this point it is not necessary to consider further issues.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is reversed, and the cause is remanded for a restoration hearing consistent with this opinion and such other proceedings as may be appropriate.

Reversed and remanded.

ADESKO, P. J., and BURMAN, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Respondent-Appellee, v. Morris Hicks, Petitioner-Appellant.
    (No. 59823;
    First District (1st Division)
    July 1, 1974.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

EGAN, P. J., took no part.


author: Mr. JUSTICE MEJDA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ted Stanley, Defendant-Appellant.
    (No. 58216;
    First District (3rd Division)
    July 3, 1974.
    James J. Doherty, Public Defender, of Chicago (Susan K. Horn, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Roger L. Horwitz, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

After a trial without a jury, defendant, Ted Stanley, was convicted of attempted rape and sentenced to a term of 1 to 5 years in the Illinois State Penitentiary. On appeal, the only issue presented for review is whether the State proved the defendant guilty beyond a reasonable doubt. We affirm.

The incident herein occurred on Sunday, September 26, 1971. At the time, defendant was a union window washer; complainant was an airline stewardess based in Chicago, living in a sixth floor apartment in a building on the near north side of Chicago. Defendant had on former occasions worked in the building and was acquainted with complainant, having washed her windows in June of that year. On September 26, 1971, complainant had taken a bath, done some housework in her apartment, and washed her hair. She was dressed in a long terry cloth robe. There was a knock on her door at about 2:30 in the afternoon, but she did not answer. Fifteen to 30 minutes later defendant knocked on the door and said he had to remove and measure the window screens. Complainant admitted defendant who spent at least 30 minutes removing the three screens in the apartment. During that time complainant was in the kitchen cooking and washing dishes. One of the screens was located above the side of the bathtub. Defendant began to clean up the mess in the bathtub caused by the dirty screens. Complainant entered the bathroom and told defendant she was in a hurry to leave and that she would clean up the tub later. He went to the kitchen to wash his hands, then returned to the bathroom while complainant was leaning over the tub, and closed the door.

At this point the testimony of complainant and defendant differs. Complainant testified to the following: Defendant entered the room, closed the door behind him and remarked that she had a “nice looking pussy.” For a moment she turned and stared at him in surprise. He came toward her and shoved her into the tub as she struggled to get away. She fell into the tub but immediately regained her balance. Defendant, with one hand around her throat, pushed her into the comer and attempted to rip off her robe with his other hand while screaming the following obscenities at her: “You m-----f-----, you dumb m-----f-----, you English whore, I’ll f— you.” Defendant ripped her robe. He momentarily released his grip on her throat and pulled what appeared to be a “stick” from his shirt; she kept pulling at Ms hair and grabbed Ms hands when he had the stick. Defendant kept screaming obscenities, such as “I want to suck your pussy, I want to bite your tits off, I’m going to strangle you, I’ll stab you, I’ll stick my knife up your —.” Complainant hung onto Ms hands and he pushed her away, throwing her across the batMoom onto the toilet seat near the door. She quickly flung the door open and ran through the apartment, down the back stairs to the fifth floor, and finding no one there, continued to the fourth floor apartment of a friend, Steven Kramer. On cross-examination, complainant testified that although defendant was in close proximity to her he never attempted to open the zipper which ran the length of the front of the robe; that neither she nor the defendant was exposed; and that the entire scuffle lasted approximately 5 minutes. Complainant’s robe was received in evidence.

Steven Kramer testified on behalf of the State. On the afternoon in question he was awakened from a nap by a loud banging on his door. When he opened it the complainant was standing there in a hysterical state and told him that the window washer had attacked her and tried to rape her. He then went to complainant’s apartment and observed three screens in the haUway and a pot of noodles on the stove. The burner was on and the water had boiled out. Kramer did not see anyone in the apartment. In the bathroom he noticed a blue shirt slung over the side of the tub, a yellow pail that was tipped over, a blue pen on the floor, a knife lying inside the tub, and a muddy substance on the floor.

The knife was identified by complainant as belonging to her, but she could not identify it as being the “stick” defendant had pulled from his shirt. She testified that she was hit about the neck and back of the head, had some minor bruises — “nothing serious” — and was treated by the flight surgeon at the airline. The doctor was not called to testify.

Defendant testified in his own behalf as follows: When he entered the bathroom and stared at complainant, she turned and asked if he Hked what he saw. In response, he said that he would “eat it.” Complainant went wild and began hitting him. He grabbed her wrists but she kept hitting him. He said he wanted to leave and take his tools with him. He further testified that he used obscene language after complainant struck him. He did not strike her or put his hand around her neck. He was first to leave the bathroom and she ran past him. He did not tear her robe but it tore while she was hitting him. The entire incident in the bathroom lasted no more than two minutes. Defendant also testified that his window washing was a spare-time job and that he was a weight-lifter capable of lifting over 200 pounds in a bench press position.

On October 3, 1971, defendant was arrested in his home. The arresting officer testified that at the time, defendant admitted being in complainant’s apartment on September 26, 1971, and stated further that after he had made obscene remarks to her complainant became angry and a struggle ensued.

One of the arguments presented by defendant on appeal is that he cannot be presumed guilty of the crime of attempted rape because the conditions can be explained by an innocent hypothesis. In support, defendant cites and relies upon People v. Benson (1960), 19 Ill.2d 50, 166 N.E.2d 80, where the defendant was charged with rape and murder. He was found having intercourse with the decedent, a stroke victim. The cause of death was attributed to a cerebral hemorrhage. The Illinois Supreme Court reversed the rape and murder convictions because there was insufficient evidence to establish that the cause of death was due to involuntary intercourse. In the instant case, defendant submits that the “conditions” may be explained by an innocent hypothesis: the provocative attire of the complainant, the misinterpretation of her silence as acquiescence; defendant’s assault and abusive language as a reaction to her use of force; and the absence of medical testimony as to complainant’s physical injury.

Defendant’s reliance upon the “innocent hypothesis rule” as stated in People v. Benson, supra, is misplaced. Benson and its progeny are distinguishable from the instant case, where both complainant and defendant testified, each as to his or her version of the events which took place in the bathroom. The “innocent hypothesis rule” does not require the trier of fact to presume innocence in such a case. The rule may be applied, as in Benson, where there is a lack of positive evidence as to the cause of injury, but not in a situation where guilt may be predicated upon the testimony of the complaining witness and where the defendant offers a contradictory set of facts supporting his innocence. In the latter case, the determination of guilt or innocence depends upon the credibility of each witness’ testimony.

The main thrust of defendant’s argument on appeal is that the State failed to prove beyond a reasonable doubt that he had the specific intent to carnally know complainant and also failed to prove that defendant performed a substantial step toward carnally knowing her.

It has been stated that a reviewing court will not disturb a verdict or reverse a judgment of conviction on the ground that the evidence is insufficient to sustain a conviction “unless the verdict is palpably contrary to the weight of the evidence, or the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.” People v. McKinnie (1928), 328 Ill. 631, 640, 160 N.E. 121.

The question before us is not whether the evidence of the complainant is sufficient to sustain a conviction, but whether her testimony is sufficiently credible to warrant a conviction. In People v. Stagg (1963), 29 Ill.2d 415, 421, 194 N.E.2d 342, the court held that “the testimony of the prosecutrix alone, if clear and convincing or if substantially corroborated by some other fact, evidence or circumstance, is sufficient to convict.” The court further stated at page 421 that “where, as here, the testimony of the prosecutrix alone is relied upon for a conviction, that testimony must be clear and convincing, and if it has been impeached, is inherently improbable, or is such that reasonable minds could not believe it, the conviction must be reversed.”

In the case before us the testimony of complainant is clear and convincing, has not been impeached, and is not inherently improbable. Furthermore, her testimony has been corroborated in part by that of Kramer. We cannot say that complainant’s testimony is such that reasonable minds could not believe it.

In People v. Stagg, supra, at page 417, the court held that to constitute the offense, the defendant “(1) must be guilty of assault, (2) have an intent to have carnal knowledge of the female, and (3) have a purpose to carry this intent into effect by means of force and against the will of the female.” Defendant argues that there is no. proof that he performed a substantial step toward carnally knowing complainant. However, when an assault and battery is coupled with the requisite intent, that is sufficient to prove that a substantial step has been taken to commit the offense of attempted rape. In People v. Otkins (1969), 114 Ill.App.2d 439, 252 N.E.2d 906, the defendant was charged with the offense of attempted rape. The prosecutrix testified that the defendant jumped onto her from behind when she was walking on the sidewalk; that he told bystanders she was his wife; that he dragged her to the basement of a building under construction, and that while choking her, he said, “At first I wanted your money, but now I want you.” The prosecutrix further testified that the defendant did not touch any intimate parts of her body, that he did not try to kiss her, that his body was about six inches from hers but not touching, and that he never tried to raise her dress. The court found that the trier of fact could find from defendant’s statement and the other circumstances that he intended rape and that there was adequate evidence at the prosecutrix’s resistance to sustain the conviction.

In the instant case defendant articulated his intention, and he admitted that he did use obscene language. Such an articulation of his intent to commit a specific crime is sufficient to sustain a conviction under the attempt statute. (People v. Otkins (1969), 114 Ill.App.2d 439, 446, 252 N.E.2d 906; People v. Coolidge (1963), 26 Ill.2d 533, 187 N.E.2d 694; People v. Bush (1960), 19 Ill.2d 151, 166 N.E.2d 91.) In People v. Mayer (1945), 392 1ll. 257, 259, 64 N.E.2d 372, the court held that “The intent to rape may become manifest from words, actions, violence or other conduct.” In the case before us, defendant violently attacked complainant after closing the bathroom door. A fight ensued for several minutes. Complainant testified that she sustained minor injuries, and that she resisted defendant’s efforts and successfuly escaped from her apartment. “[T]he mere fact the victim successfully frustrates the purpose does not establish a lack of criminal intent upon the part of the assailant.” People v. Mayer (1946), 392 Ill. 257, 260, 64 N.E.2d 372, 373.

Therefore, in the instant case, the trier of fact could have found, from the testimony and other circumstances, that the defendant possessed the requisite intent and performed a substantial step toward carnally knowing the complainant. The facts in the case are unlike those in Franey v. People (1904), 210 Ill. 206, 71 N.E. 443, where the testimony of the prosecutrix revealed that the defendant made no real attempt to rape. (See also Newman v. People (1906), 223 Ill. 324, 79 N.E. 80.) In People v. Richardson (1960), 18 Ill.2d 329, 164 N.E.2d 61, a conviction for attempted rape was reversed because the testimony of the prosecutrix was not clear and convincing and lacked sufficient corroboration. Here, the testimony of complainant was not implausible and was corroborated in part by the testimony of Kramer. Her testimony was not impeached and was in fact corroborated in part by that of the defendant.

' We hold that the facts admit of sufficient evidence to sustain the conviction, and the judgment is not palpably contrary to the weight of the evidence, nor is the evidence so unreasonable, improbable or unsatisfactory to justify a reasonable doubt of defendant’s guilt.

From all these circumstances we find that there was sufficient evidence from which the trier of fact could conclude beyond a reasonable doubt that defendant was guilty of an attempt to commit rape. The judgment is therefore affirmed.

Affirmed.

DEMPSEY and McGLOON, JJ., concur.


author: Mr. JUSTICE JOHNSON.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Felix Walls, Defendant-Appellant.
    (No. 59734;
    First District (4th Division)
    July 10, 1974.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Opinion by

Mr. JUSTICE JOHNSON.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Al C. Bennett, Defendant-Appellant.
    (No. 59735;
    First District (4th Division)
    July 10, 1974.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Opinion by

Mr. JUSTICE JOHNSON.


author: PER CURIAM:

text:
    The People of the State of Illinois, Respondent-Appellee, v. Pedro Carrion, Petitioner-Appellant.
    (No. 59123;
    First District (2nd Division)
    June 28, 1974.

      James J. Doherty, Public Defender, of Chicago (Harold A. Cowen, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM:

Pedro Carrion, petitioner, was charged by indictment with the crime of murder in violation of section 9 — 1 of the Criminal Code (Ill. Rev. Stat. 1963, ch. 38, par. 9 — 1). On September 7, 1966, petitioner, then aged 65, entered a plea of guilty to the indictment and was sentenced to a term of 14 to 20 years. There was no appeal. On May 10, 1972, petitioner filed a pro se petition under the Illinois Post-Conviction Hearing Act (Ill. Rev. Stat. 1971, ch. 38, par. 122 — 1 et seq.) alleging a violation of his constitutional rights. The public defender was appointed to represent petitioner. Upon motion of the State, petitioner’s post-conviction petition was dismissed without an evidentiary hearing by the same trial judge who had accepted the plea of guilty. In dismissing the petition, the judge said: “* # * before I took the plea I was convinced that he knew what he was doing and that he was guilty of the crime charged.” Petitioner appeals that dismissal.

Petitioner’s first contention is that he was entitled to an evidentiary hearing on the allegation in his post-conviction petition that the admonishments given him prior to the entry of his plea of guilty on September 7, 1966, were inadequate. The transcript of petitioner’s plea of guilty demonstrates that petitioner was represented by private court-appointed counsel who informed the trial judge that petitioner wished to withdraw his previously entered plea of not guilty and enter a plea of guilty. Counsel then stated that petitioner wished to personally relate how the incident had occurred. The trial judge immediately told counsel of his particular interest in finding out from petitioner what petitioner’s condition of sobriety had been at tire time of the incident. Under questioning by his counsel through an interpreter, petitioner stated the facts surrounding the killing, including the fact that, on the morning of the killing (which occurred in midafternoon by knifing), he had consumed 2 quarts of beer and almost a half-pint of brandy. Thereafter, petitioner was specifically admonished that he had a right to a jury trial or a bench trial; that there had been a pretrial conference with the judge; that upon his plea of guilty he could be sentenced to a minimum term of 14 years and a maximum term of any number of years in excess of 14. Petitioner was informed that, if he were tried by a jury trial or a bench trial, he could be found guilty of voluntary or involuntary manslaughter and be sentenced to a lesser number of years. After these admonishments, petitioner stated that he wished to enter a plea of guilty to the charge of murder.

In 1966, the Supreme Court Rule governing pleas of guilty was Rule 26(3) (Ill. Rev. Stat. 1965, ch. 110, par. 101.26(3)), which stated:

"(3) The court shall not permit a plea of guilty or waiver of indictment or of counsel, by any person accused of a crime for which, upon conviction, the punishment may be imprisonment in the penitentiary, unless the court finds from proceedings had in open court at the time waiver is sought to be made or plea of guilty entered, or both, as the case may be, that the accused understands he has a right to be held to answer for the offense on indictment by a grand jury and has understandingly waived that right and consented to his prosecution by information, that he understands the nature of the charge against him, and the consequences thereof if found guilty, and understands he has a right to counsel, and understandingly waives that right. The inquiries of the court, and the answers of the accused to determine whether he understands his rights to be indicted by a grand jury and to be represented by counsel and comprehends the nature of the crime with which he is charged and the punishment thereof fixed by law, shall be taken and transcribed and filed in the case. The transcript, when filed, becomes a part of the common law record in the case.”

This court has held that this Rule has been complied with where the defendant was informed of the consequences of his plea and the maximum and minimum penalties as provided by law. People v. Castillo, 130 Ill.App.2d 329, 264 N.E.2d 395.

Under Supreme Court Rule 401(b), a defendant need not be informed of the privilege against self-incrimination and the right to confront his accusers. (People v. Harris, 50 Ill.2d 31, 276 N.E.2d 327.) The fact that defendant was not specifically informed that he was charged in a two-count indictment does not vitiate his plea of guilty. Defendant was pleading guilty only to one count charging murder and was sentenced only on one count charging murder. He was therefore in no way prejudiced. (People v. Blumenthal, 1 Ill.App.3d 189, 273 N.E.2d 668.) Defendant was specifically informed that he was charged with murder. The statement of the offense by name has been held sufficient to apprise the defendant as to the nature of the charge. (People v. Palmer, 1 Ill.App.3d 492, 274 N.E.2d 910.) Moreover, our review of the record fails to reveal any evidence by defendant that his plea was the result of any force, threat or promises.

In the case at bar, the trial judge advised the defendant that he had a right to a trial by jury or a bench trial and that in such a trial, he could be found guilty of murder, voluntary manslaughter or involuntary manslaughter. He was specificaUy advised as to the possible penalties of the crime of murder and told that there were lesser penalties for manslaughter. He was advised that by entering a plea of guilty he would not get a trial of any type. These admonitions were sufficient to comply with Supreme Court Rule 401(b).

Petitioner argues that his fifth amendment privilege against self-incrimination was violated by the procedure used in his plea of guilty. Petitioner entered a plea of guilty only after a pretrial conference with the court, of the occurrence of which petitioner knew. Petitioner’s appointed counsel, in petitioner’s presence, informed the trial judge that petitioner wished to enter a plea of guilty. Counsel further advised the trial judge that petitioner wished to personally relate the facts as they occurred during the incident to the trial court. Petitioner then, under questioning by his own counsel, stated how the incident occurred. Petitioner was represented by counsel, had indicated a desire to enter a plea of guilty, and is not shown by the record to have been in any manner forced or coerced into testifying, but voluntarily did so under questioning by his own counsel. Under those circumstances, petitioner’s privilege against self-incrimination was not violated.

In this regard, petitioner also argues that his plea of guilty was not voluntarily or understandingly entered because the plea preceded the admonishments, the trial judge stated in advance that he was convinced of petitioner’s guilt, and the trial judge never inquired of petitioner if he understood the nature of murder as contrasted to manslaughter.

To determine whether a plea of guilty is understandingly and voluntarily entered, courts of review will look to the entire record in a practical and realistic manner. (People v. Domico, 15 Ill.2d 590, 155 N.E.2d 591; People v. Plecko, 46 Ill.2d 301, 263 N.E.2d 66; People v. Williams, 133 Ill.App.2d 214, 272 N.E.2d 775.) In accepting a plea of guilty, a trial judge need not use specific words or a defined formula to discharge his duties and accomplish justice. (People v. Wooley, 133 Ill.App.2d 571, 273 N.E.2d 718.) Here, petitioner was represented by counsel who informed the court that petitioner wished to enter a plea of guilty. Thereafter, petitioner, through questioning by his own counsel, made certain statements relating to the offense. This procedure does not in any way demonstrate that petitioner’s plea of guilty was not knowingly and understandingly entered.

Petitioner next urges that the trial judge stated in advance that he was convinced of petitioner’s guilt.. This argument is not supported by the records of petitioner’s plea of guilty. During the plea of guilty, the trial judge carefully admonished petitioner that he had a right to a trial by jury or a right to a bench trial and that, in either such trial, he could be found guilty of voluntary or involuntary manslaughter and be sentenced to a lesser term of years. Petitioner stated that he understood that he was entering a plea of guilty to the charge of murder and was doing so voluntarily.

It is apparent from the post-conviction petition that petitioner has come to believe that his state of intoxication at the time of the homicide made it impossible for him to have been proved guilty of any offense other than manslaughter so that, had he been properly admonished and competently represented, he would never have pleaded guilty to murder. It is equally apparent from the report of proceedings at the hearing on the change of plea that his own recital of the relevant facts shows a homicide which might, arguably, have been manslaughter but which the trial judge was satisfied presented a factual basis for the offense of murder because of petitioners memoiy of carrying the hunting knife to the hairdresser’s shop and of the sequence of events in the shop, including hitting the hairdresser with the knife once or twice.

Petitioner urges that the trial judge, prior to accepting his plea of guilty, did not ascertain if he understood the nature of murder as contrasted to manslaughter. The rule that a defendant must be informed of the nature of the charge against him does not require a recitation of all of the facts and elements of the charge. (People v. Tennyson, 9 Ill.App.3d 329, 292 N.E.2d 223.) The admonishment of the crime by name has been held sufficient to apprise the defendant of the nature of the crime charged. (People v. Wright, 2 Ill.App.3d 304, 275 N.E.2d 735; People v. Palmer, 1 Ill.App.3d 492, 274 N.E.2d 910.) Here, petitioner was specifically admonished by the trial judge that he had a right to a trial by jury or a bench trial, that at such a trial he could be found guilty of either voluntary or involuntary manslaughter and be sentenced to a lesser term of years and of the possible penalties for the crime of murder. After all these admonishments, petitioner persisted in his plea of guilty which was then accepted. The transcript of petitioner’s plea of guilty clearly demonstrates that the plea was voluntarily and understanding^ entered after the trial court made diligent inquiry and had given petitioner adequate warnings of the consequences of the plea of gmlty. (People v. Washington, 5 Ill.2d 58,124 N.E.2d 890.) From the totality of the record, we conclude that petitioner’s plea of gmlty was understandingly entered in 1966 and that the allegations of his post-conviction petition relating to that matter and as “supported” by the record were insufficient to require an evidentiary hearing.

Petitioner’s second contention is that he was entitled to an evidentiary hearing on the aHegation in his post-conviction petition that his trial counsel was incompetent. In order to require a hearing, a post-conviction petition must make a substantial showing that the defendant’s constitutional rights have been violated. (People v. Ashley, 34 Ill.2d 402, 216 N.E.2d 126.) Where the allegation of incompetency of counsel is made, petitioner must establish actual incompetence of counsel as reflected in the manner of carrying out his duties as trial counsel, and substantial prejudice resulting therefrom without which the outcome would probably have been different. (People v. Lynch, 11 Ill.App.3d 479, 297 N.E.2d 382.) The claim of prejudice cannot be based upon mere conjecture.

In the case at bar, petitioner’s allegations of incompetency of counsel were bare allegations. Petitioner did not supply the trial court with any affidavits, depositions or other evidence to support his statement, other than his own affidavit attesting to the statements made in his post-conviction petition. Petitioner has failed to demonstrate actual incompetence of counsel and has failed to show any substantial prejudice resulting therefrom without which the outcome would probably have been different. Petitioner’s allegation of incompetency of trial counsel was insufficient to require a hearing under the Post-Conviction Act and the petition was properly dismissed by the trial court. People v. Smith, 40 Ill.2d 562, 241 N.E.2d 413.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.


author: Mr. JUSTICE STAMOS.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Otis Davis, Defendant-Appellant.
    (No. 58199;
    First District (2nd Division)
    June 25, 1974.

      James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Opinion by

Mr. JUSTICE STAMOS.

HAYES, P. J., specially concurring.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward Walker, Defendant-Appellant.
    (No. 58269;
    First District (2nd Division)
    June 28, 1974.

      James J. Doherty, Public Defender, of Chicago (Suzanne M. Xinos, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM:

Edward Walker, defendant, was found guilty after a bench trial of the offense of burglary, in violation of section 19 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 19 — 1). He was sentenced to a term of 6 to 12 years. Defendant appeals, arguing (1) that the prosecution’s disclosure of a letter allegedly written by him to the complainant in which he admitted the crime was prejudicial error; (2) that, when the State failed to produce the letter allegedly written by defendant, they were concealing favorable evidence; (3) that he was not proven guilty beyond a reasonable doubt; and (4) that his sentence is excessive.

At trial, the following evidence was adduced: William Walls, Jr., testified that he lives at 661 East 100th Street, Chicago, Illinois, with his mother and father. The residence is a single-family home which is owned by Mr. and Mrs. Walls, Sr. On September 9, 1971, he returned home with his parents at approximately 4:40 P.M. The three had left the home about 3 P.M. after having locked all the doors. As he approached the house, he noticed that the outside screen door had been pried open and the panel had been knocked out of the front door. As he entered the home, he observed various articles on the dining room table. As he started to enter the kitchen, the defendant ran out of the kitchen saying, ‘We’ve got to go and cátch them.” The defendant tried to break away but was subdued. The police were called and placed defendant under arrest. A subsequent search of the defendant revealed a gold calendar watch which had been taken from Mr. Walls, Jr.’s, bedroom. He had never seen the defendant before that day.

Doretha Walls testified that she fives with her husband and son at 661 East 100th Street, Chicago, Illinois. On September 9, 1971, at approximately 4:45 P.M., she returned home and noticed that the front panel of the front door had been knocked out. She followed her son into the home and observed various items thrown about on the dining room table. The defendant was discovered as he came out of the kitchen of her home and stated that he was a neighbor and was trying to catch the people who had broken into the home. She did not know the defendant but had seen him before on several occasions, milling in the alley behind her home. Various rooms of the home had been ransacked and items were piled up on the bed.

William Walls, Sr., testified that he fives at 661 East 100th Street, Chicago, Illinois, with his wife and son. On September 9, 1971, upon his return to his home, he noticed that the panel of the front door had been kicked out. Upon entering into the home, he noticed that various items had been piled up on the dining room table. The defendant was discovered as he came out of the kitchen of the home. Defendant stated that he was trying to catch the burglar. Defendant tried to leave but was subdued by Mr. Walls, Sr., and his son. He testified that he did not at any time give the defendant permission to enter the home.

John Fans, a Chicago police officer, testified that on September 9, 1971, at approximately 4:45 P.M., he responded to a call and proceeded to the residence at 661 East 100th Street, Chicago, Illinois. Upon entering the home, he noticed that the lower panel to the front door had been knocked out. Mr. Walls, Sr., and Jr., were holding the defendant who was then placed under arrest. Defendant was transported to the police station where a search of his person revealed a gold watch which was identified by Mr. Walls, Jr., as belonging to him.

Defendant’s first contention on appeal is that he was prejudiced by the assistant State’s Attorney’s disclosure that defendant had written a letter to the complainant in which he had allegedly confessed to the crime of burglary. Prior to trial, defense counsel made a motion for discovery in which he asked for all statements or confessions allegedly written by the defendant. The State responded that there was a letter written by the defendant to the complaining witness in which the defendant admitted the burglary. After some discussion, the State agreed not to use the letter for any purposes at trial. Subsequently, defense counsel requested production of the letter, arguing that it was favorable evidence. The assistant State’s Attorney responded that he did not have the letter and, after a conversation with the complainant, stated that the letter had been in the complainant’s possession and she was unable to locate it.

Since the defendant, in his discovery motion, specifically, asked for any confessions or statements made by him, he cannot now complain that the State answered that question. Further, in a bench trial, the trial judge is presumed to consider only competent evidence. (People v. Miller, 2 Ill.App.3d 206, 276 N.E.2d 395.) Here, the disclosure of the defendant’s aUeged confession was made prior to trial and there is nothing in the record that would demonstrate that the defendant was in any way prejudiced.

Defendant also argues that he was prevented from examining evidence that might be favorable to his cause. The defendant, citing Brady v. Maryland, 373 U.S. 83, and Supreme Court Rule 412(c) (Ill. Rev. Stat. 1971, ch. 110A, par. 412(c)), argues that the State improperly refused to turn over to defense counsel the letter allegedly written by the defendant to the complaining witness in which defendant admitted the burglary. Defendant argues that the letter was in fact not written by him and therefore was favorable evidence to the defense. The thrust of the contention appears to be that the forger of the letter must have been the real burglar. But even if the letter were considered favorable evidence, defendant’s argument is without merit. Both Brady and Supreme Court Rule 412(c) require the State to disclose any material within its possession which tends to negate the guilt of the accused as to the offense charged or as to punishment. Here, the letter allegedly written by the defendant was not written to law enforcement authorities but was written to the complaining witness. When defense counsel requested production of the document, the assistant State’s Attorney stated that the State did not have possession of the document. After a conversation with the complainant, the assistant State’s Attorney stated that the complaining witness had had the letter but that she was unable to locate it. Defense counsel did not object to, or challenge the veracity of, the statements of the assistant State’s Attorney. Since the letter was not in the custody or control of the State, the failure of the State to turn the letter over to defense counsel cannot be considered error.

Defendant next contends that the prosecution failed to prove him guilty beyond a reasonable doubt. Defendant bases this argument upon three factors. First, defendant argues that the evidence was insufficient to prove that his entry was with felonious intent. While intent must be proved beyond a reasonable doubt, it must ordinarily be proved circumstantially by inferences drawn from conduct appraised in its factual environment. (People v. Johnson, 28 Ill.2d 441, 192 N.E.2d 864; People v. McCoy, 3 Ill.App.3d 642, 279 N.E.2d 417.) In the case at bar, defendant was discovered in the kitchen of the Walls’ home. The screen door of the home had been pried open and the panel of the front door had been broken out in order to gain entry. Various items were stacked up in the dining room and bedrooms of the home. A search of defendant’s person disclosed a watch taken from Mr. Walls, Jr.’s, bedroom. This evidence was sufficient to establish defendant’s felonious intent beyond a reasonable doubt.

Defendant secondly argues that the evidence was insufficient to show that his entry was without authority. Defendant argues that, although Mr. Walls, Sr., testified he did not give the defendant authority to enter his premises, Mrs. Walls and Mr. Walls, Jr., did not specifically testify that they did not give defendant authority to enter the premises. This argument is without merit. The evidence adduced at trial clearly shows that Mr. Walls, Sr., testified he did not give the defendant authority to enter his home. Mr. Walls, Jr., testified that he had never seen the defendant before in his life, and Mrs. Walls testified that, though she had seen the defendant several times miffing about in the alley, she did not know the defendant. The evidence clearly demonstrated that defendant’s entry was without authority.

Defendant’s third argument is that the evidence failed to prove ownership of the premises in question. In a burglary charge, it is not necessary for the State to prove ownership of, or precise legal title to, the burglarized premises. It is sufficient to prove that the named party has possession and control of the premises which is rightful as against the burglar. (People v. Whittaker, 45 Ill.2d 491, 259 N.E.2d 787.) Here, the indictment charged that the defendant entered the dwelling house of William Walls, Sr., and Doretha Walls. State’s evidence showed that Mr. Walls, Sr., Doretha Walls, and William Walls, Jr., occupied the home in question, and that the defendant entered the home without their knowledge or consent. This evidence was sufficient to establish possession rightful as against the burglar. People v. Saunders, 132 Ill.App.2d 421, 270 N.E.2d 217.

Since defendant’s case has not yet reached the stage of final adjudication, the Unified Code of Corrections is applicable. (People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.) Under the Unified Code of Corrections, burglary is a Class 2 felony (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 19 — 1 (b) ). The Code provides that the sentence for a Class 2 felony shall be a term of from 1 to 20 years (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8 — 1(b)(3)) and that the minimum shall be no greater than one-third of the maximum (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8 — 1 (c) (3)). In the case at bar, defendant’s minimum sentence of 6 years exceeds the one-third of the maximum and must therefore be reduced to a term of 4 years.

Defendant’s final argument is that his sentence, as modified, is excessive and should be reduced. While this court has the authority to reduce a sentence, our supreme court has indicated that this authority should be exercised with considerable caution and circumspection. (People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673.) The imposition of sentences is within the discretion of the trial court, and courts of review will not interfere with that discretion unless the sentence is clearly excessive. (People v. Keene, 1 Ill.App.3d 720, 274 N.E.2d 130.) Here, considering the nature of the offense, the facts as adduced at trial, and defendant’s prior record, we are of the opinion that the sentence imposed upon the defendant, as modified, is not excessive.

For the foregoing reasons, defendant’s minimum sentence is reduced to a term of 4 years and the judgment and sentence of the circuit court of Cook County, as modified, is affirmed.

Judgment affirmed as modified.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth F. Carter, Defendant-Appellant.
    (No. 59130;
    First District (2nd Division)
    June 25, 1974.

      Paul Bradley, of the State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE HAYES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. McKennie Houston et al., Defendants-Appellants.
    (No. 58159;
    First District (2nd Division)
    June 25, 1974.

      James J. Doherty, Public Defender, of Chicago (Ian Levin, Assistant Public Defender, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (James S. Veldman and Ronald Mendes, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

Indictment No. 72-99 charged McKennie Houston and Leroy Davenport with the offense of intimidation in that they allegedly communicated a threat to Lilly Mitchell to inflict physical harm on her person and on the persons of her children, thereby intending to cause Lilly Mitchell to prevent her son, Arzell Mitchell, from testifying in court against Arthur Lee Dozer, a friend of McKennie Houston and Leroy Davenport. After a trial before a jury, Leroy Davenport and McKennie Houston were found guilty of the crime of intimidation and sentenced to from 2% to 5 years in the penitentiary. From that conviction and sentence, defendants appeal.

At trial, 18-year-old Arzell Mitchell (also known as Isiah) testified that, on 18 August 1971 at about 4 P.M., he was robbed of $150 and shot once in the back. While in the hospital, he identified two persons as the offenders. One was an individual named Arthur Lee Dozer.

The next witness to testify was Lilly Mitchell. She testified that on 20 August 1971 she was in her sister’s seven-room apartment at 4525 S. Federal Street in Chicago, when two male individuals came to the door. When Lilly answered the door, one of the individuals asked whether she was the mother of the boy who got shot. She replied that she was, whereupon they threatened her life and the lives of Isiah and her other children if Isiah should testify against Dozer. Thereafter, the two individuals became verbally abusive. She then slammed the door and called detectives. The two individuals were subsequently identified by Lilly in a lineup as the defendants herein, Leroy Davenport and Mc-Kennie Houston.

On cross-examination, defense counsel attempted to impeach Mrs. Mitchell by confronting her with prior allegedly inconsistent statements made by her before the grand jury, at the preliminary hearing, and in the complaints charging appellants.

The final witness to testify was the investigating police officer, Officer Richard Crowley. He testified to having had a conversation with Arzell Mitchell relative to the latter s having been robbed and shot, after which the witness had occasion to arrest Arthur Lee Dozer and Ronald Caldwell. He also testified to having had a conversation with Mrs. Mitchell relative to two youths having approached and threatened her. (Defense counsel objected to the testimony concerning the conversation with Mrs. Mitchell on hearsay grounds and was overruled. Defense counsel also objected to the words “threatening her,” which the trial judge then rephrased to “talking to her”) Based on the facts given to him by Lilly, the officer stated that he then arrested Leroy Davenport and McKennie Houston.

On cross-examination of Officer Crowley, defense counsel elicited the fact that his police report charged a Leroy Carpenter and not Leroy Davenport with the commission of certain crimes but not with the commission of the crime of intimidation.

On re-direct examination, the officer testified that his police report, prepared in connection with the case, stated that Leroy Davenport, also known as Leroy Carpenter, had been charged, with unrelated offenses of armed robbery and aggravated battery, and that McKennie Houston had been charged with intimidation and with an unrelated armed robbery. This testimony was objected to by defense counsel as an impermissible reference to other crimes. The objections were overruled. Thereafter, the trial judge refused to permit defense counsel to demonstrate that the unrelated charges had been dismissed upon preliminary hearing thereof. OPINION

The first issue we decide is the constitutionality of the intimidation statute. The issue was raised by defendants’ motion to quash the indictment, which motion was denied. Defendants-appellants (hereafter appellants) contend that the punishment provision of the statute violates the equal protection and due process clauses of the constitution. The statute creating the offense of intimidation has made the offense an indictable misdemeanor. An indictable misdemeanor is a relatively new type of offense, created over the last decade or two in connection with new types of criminal conduct, as to which conduct the legislature appears to wish to give the State and/or the trial Judge a broad discretion in respect of penalty, ranging from the felony penalties of imprisonment in the State penitentiary for more than 1 year and/or a fine, to the misdemeanor penalties of imprisonment in a correctional institution other than the penitentiary for not more than 1 year and/or a lesser fine. The gist of appellants’ position is that, where there are no standards governing or guiding the exercise of the prosecutorial (or judicial) penalty discretion created by the statute, the statutory scheme permits and encourages an arbitrary and discriminatory enforcement of the law. The Illinois authority cited for this proposition is People v. McCollough (1972) , 8 Ill.App.3d 963, 291 N.E.2d 505.

It suffices to say that the McCollough decision has just been reversed by our supreme court (57 Ill.2d 440.) in an opinion sustaining the constitutionality of a criminal statute under which the degree of prosecutorial and judicial discretion was even greater than the degree of discretion involved in an indictable misdemeanor. Hence, there is no merit to appellants’ contention that the statute creating the offense of intimidation is unconstitutional.

The next issue we decide is whether the testimony of Lilly Mitchell, who was the sole occurrence witness for the State, was legally sufficient to support appellants’ convictions beyond a reasonable doubt. Appellants contend that prior statements of the witness in the complaints charging appellants, in her testimony before the grand jury, and in her testimony at the preliminary hearing were so inconsistent with her trial testimony as to render her trial testimony legally insufficient to support a conviction.

Prior inconsistent statements of a witness bear on the credibility of the witness’ trial testimony and go to the weight to be given to that trial testimony. This is a question for the jury. (People v. DeSavieu (1973) , 14 Ill.App.3d 912, 303 N.E.2d 782.) From our examination of the record, we cannot say that the testimony of the complaining witness was so unsatisfactory as to leave a reasonable doubt of the guilt of the appeUants as a matter of law. Therefore, we will not disturb the jury’s verdict.

Appellants next contend that the trial court committed reversible error in admitting evidence of unrelated offenses allegedly committed by appellants and, thereafter, in refusing to permit defense counsel to elicit the fact that those unrelated charges had been later dismissed. However, by first eliciting the fact that the police report charged Leroy Carpenter and not Leroy Davenport with the commission of the instant offenses, as well as of the unrelated offenses, defense counsel created an issue as to the identity of one of the defendants. It became incumbent upon the State to show that the name Leroy Carpenter meant Leroy Davenport.

Evidence which tends to prove a fact in issue is admissible even though it discloses that the defendant committed another crime; and evidence which establishes motive, intent, identity, accident, or absence of mistake is admissible even though it may also involve proof of a separate offense. (See People v. Dewey (1969), 42 Ill.2d 148, 246 N.E.2d 232.) Moreover, once the identification question had been resolved, it was not an abuse of discretion for the trial court to prohibit further inquiry into the subsequent disposition of the unrelated charges. After the original offenses charged were introduced, the State brought out that, as a result of the grand jury hearing, an indictment for intimidation was brought against appellants. The inference from this fact is that the other charges were not pursued. Further emphasis on this matter may well have resulted in the prejudice of which appellants now complain. Moreover, there was sufficient evidence, apart from any prejudice created by this testimony or by the court’s ruling, to convict both appellants.

Fourthly, appellants contend that prejudicial error was caused by the prosecution’s introduction into evidence of allegedly hearsay testimony of the investigating police officer which allegedly served the impermissible function of rehabilitating the credibility of the complaining witness. The offending testimony of the officer was that he had had a conversation with Mrs. Mitchell “relative to two youths approaching her and threatening her,” and that as a result of the conversation he had had occasion to arrest Leroy Davenport and McKennie Houston.

For two reasons, we do not agree that what the officer related to the jury was hearsay. Primarily, the officer was testifying under oath only to the fact of what he had been told by Mrs. Mitchell and not to the substantive truth of her assertion that McKennie Houston and Leroy Davenport actually intimidated her, and thereafter, only to what he did as a result of the conversation. He was explaining how he had come to arrest appellants for the instant offense. (See People v. Carpenter (1963), 28 Ill.2d 116, 190 N.E.2d 738.) Moreover, it is the lack of opportunity for cross-examination of the out-of-court declarant, whose assertion is being offered as substantive truth, that is the essential reason why the assertion must be rejected. (People v. Carpenter, supra.) Here the out-of-court declarant, Mrs. Mitchell, testified in court and was thoroughly cross-examined by defense counsel. The rule against hearsay is not applicable to the facts of this case. See People v. Poole (1970), 121 Ill.App.2d 233, 257 N.E.2d 583.

We note that, in one respect, the officers testimony was objectionable. It tended to rehabilitate the credibility of Mrs. Mitchell (whose credibility had been impeached by evidence of prior statements which were inconsistent with her trial testimony), because it disclosed that Mrs. Mitchell had made prior statements which were consistent With her trial testimony. Our courts have held that such rehabilitating testimony is objectionable as irrelevant, because the making of prior consistent statements does not negate the fact that prior inconsistent statements had been made. (People v. DePoy (1968), 40 Ill.2d 433, 240 N.E.. 2d 616.) We think, however, that in this case the rehabilitating aspect of the officer’s testimony does not appear to have been the primary purpose for which the State introduced the testimony, but was merely an inevitable consequence of the legitimate purpose of having the officer explain how he had come to arrest appellants. In any event, the defense objection to the testimony was based on its alleged hearsay character and not on its rehabilitating aspect.

Fifthly, appellants contend that certain remarks made by the trial judge and certain questions asked by him during the course of the trial and in the presence of the jury deprived them of a fair trial. Our examination of the remarks and questions complained of does not disclose any error. The remarks and questions of the trial judge were aimed at the clarification of the questions asked by counsel and at the clarification of the reasons for his own rulings, both of which were legitimate purposes. (See People v. Clay (1971), 1 Ill.App.3d 736, 274 N.E.2d 843.) Moreover, appellants have failed to show how they were prejudiced by the trial judge’s actions. The record demonstrates that the trial judge conducted a fair and impartial trial.

The sixth issue raised on this appeal is whether the closing arguments of the prosecution denied appellants a fair trial. Appellants argue first that the closing arguments of the prosecution violated the appellants’ fifth amendment right to remain silent, and second, that certain remarks of the prosecutor amounted to an insinuation that the appellants had committed a separate offense of intimidation with respect to testifying against themselves in the present case.

With regard to the first contention, many times during closing argument the prosecutor, over objection, announced that the complaining witness’ testimony that the two appellants had threatened her stood “unrebutted, uncontradicted, and undenied.” Appellants concede that, had the prosecutor stopped with “unrebutted and uncontradicted,” no error would have been committed. But since the prosecutor added the word “undenied,” appellants contend the prosecutor intended improperly to call the jury’s attention to appellants’ failure to take the stand to deny the charges. We do not agree.

Where there is no evidence whatever contradicting the case made by the State, a statement by the prosecutor that the evidence has not been contradicted is not an unwarranted reference to the failure of the defendant to testify. (People v. Birger (1928), 329 Ill. 352, 160 N.E. 564.) This is so even where the prosecutor states that the evidence of the State had not been denied. (People v. Novak (1938), 370 Ill. 220, 18 N.E.2d 235; see also People v. Norman (1963), 28 Ill.2d 77,190 N.E.2d 819.) We note the State’s observation that its comment that its case had not been denied by appellants is not a direct reference to the failure of appellants to testify in their own behalf. While this is true, we express the opinion that the State’s comment that its case had not been “denied by defendants” is of such dubious utility and propriety that it ought not to have been made. In the instant case, however, despite the frequency of the comment over objection, we think that the comment was not so prejudicial as to warrant reversal.

Neither do we agree with appellants’ second contention that the prosecutor insinuated that appellants had committed a separate offense of intimidation relative to the present case. The alleged offending remarks are:

“She [Mrs. Mitchell] is a witness. She did what she thought was right coming to report these threats against her. She did what she thought was right, coming to court, under oath, on the record, against these two, by taking whatever risk it involves for her to come to court and testifying. Lilly Mitchell, coming here and testifying is an act of courage most of us never have to go through. She still lives at 51st and Federal, still in the ghetto, fear rampant * * * people can still dare to go up to citizens, threaten them, threaten their lives, put enough fear in the mind of that citizen to get away with anything.”

At most these remarks constitute comment on crime and evil in the complaining witness’ neighborhood and do not insinuate that appellants intimidated the witness not to testify against them in the instant case. The comments look to the future and state nothing that probably had not already occurred to the members of the jury. We find no error in these statements.

Defendants next contend that the minimum sentence of 2 years must be reduced to bring the sentence into compliance with the requirements of the Unified Code of Corrections. Intimidation is a Class 3 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 6(b).) Therefore, the minimum sentence cannot exceed one-third the maximum sentence of 5 years. (Ill. Rev. Stat, 1973, ch. 38, par. 1005 — 8 — 1(c)(4).) The sentence as it now stands violates the Unified Code of Corrections. Since this case has not reached a final adjudication within the meaning of the Code, the minimum sentence will be modified to 1 year and 8 months. See People v. Harvey (1973), 53 Ill.2d 585, 294 N.E.2d 269.

Finally, appellant Leroy Davenport contends that, since prior to trial and as a result of plea negotiations, the trial judge had agreed to sentence him to from 1 year to 1 year and a day if he would plead guilty and later he actually received a sentence of 2% to 5 years, the higher sentence was imposed as punishment for his decision to stand trial. It is our opinion that the mere fact that a higher sentence is imposed after trial than that offered before trial, without any other facts, does not warrant an inference that the higher sentence was imposed as punishment for having insisted on the right to stand trial. No such predisposition on the part of the trial judge appears on the face of this record, as it does in the case of People v. Moriarty (1962), 25 Ill.2d 565, 185 N.E. 2d 688, cited by appellant. Moreover, were not the possibility of a higher sentence a reality, any plea negotiation would be without consideration to support it. (See People v. Bannister (1974), 18 Ill.App.3d 154, 309 N.E.2d 279.) We will not reduce the sentence further.

For the foregoing reasons the judgment of conviction below is affirmed but the sentence is modified as indicated herein.

Judgment affirmed; sentence modified.

STAMOS and LEIGHTON, JJ., concur.

       While the prior inconsistent statements related to details of the alleged incident, they were calculated to attack the credibility of Mrs. Mitchell to the point of creating doubt as to whether the alleged incident had occurred at all. In that sense, Mrs. Mitchell’s prior statement to the officer was a prior consistent statement.


author: Mr. JUSTICE DOWNING

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Starling, Defendant-Appellant.
    (No. 59156;
    First District (2nd Division)
    June 25, 1974.
    James J. Doherty, Public Defender, of Chicago (Phillip A. Olson and John M. Kalnins, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

The defendant, Willie Starling, was charged, together with Martha Branch, a deaf-mute, with the armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2) of Sergio Bolanis. The indictment as against Martha Branch was dismissed during the course of defendant’s trial. After a bench trial, defendant was found guilty of simple robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 1) and sentenced to a term of not less than 1 year nor more than 3 years.

Upon a review of the record, the pertinent facts, as adduced by the testimony in the trial court, can be summarized as follows. Sergio Bolanis, the complaining witness, spoke only Spanish, save for a few words in English. Prior to his testifying in the trial court, the court appointed an interpreter, Teresa Avila, to translate from English to Spanish and Spanish to English. Both counsel for defendant and the State told the court that they were satisfied to have Teresa Avila act as interpreter.

On direct examination, Sergio Bolanis testified, in pertinent part, that, at approximately 9 P.M. on July 4, 1972, he arrived at a tavern located at 1758 West 21st Place in Chicago; that, at the time, he carried about $500 on his person, all in $20 denominations; that after defendant, Martha Branch, and defendant’s aunt, Queenola Starling, arrived at the tavern, he (Bolanis) offered to buy them a beer and that he used a $20 bill to pay for the beers; that Martha Branch asked him if he wanted to play a game of pool; that, after a time, he left the tavern and went outside with Martha Branch; that, while he was outside, defendant took out a gun and demanded money from him (Bolanis) and that Martha Branch then removed $480 in $20 bills from his shirt pocket; that, after he had been robbed, he threw a bottle at the windshield of defendant’s car and broke the window; that he immediately reported the robbery to the police; and that he was later taken to a police station, where he saw defendant and Martha Branch. During his direct examination in the trial court, Sergio Bolanis identified defendant as the man who had had the gun and Martha Branch as the woman who had taken his money.

On cross-examination, Bolanis testified that Martha Branch, on the night in question, by making certain motions with her hands, had asked him to have sex with her. In response, he had motioned with his hands that they should go walking, as he did not have a car. Bolanis was shown a pair of pants allegedly worn by Martha Branch that evening. He was asked whether he had ripped those pants from Martha Branch, to which he responded that he had not done so.

Officer Stump of the Chicago Police Department testified on direct examination that, at approximately 12:15 A.M. on July 5, 1972, he and a partner, who were working out of uniform in an unmarked patrol car, learned through the police communications center that a robbery had been committed at 1758 West 21st Place and that the two possible offenders were heading toward 3014 West Polk Street in Chicago. One individual, a male Negro, was described as wearing a gray and black shirt and a red hat, and as having a bandage on his hand; the other, a female Negro, was described as a deaf-mute, who was wearing a purple blouse. At about 1 A.M., after the officers had placed the Polk Street address under surveillance for 30 minutes, Martha Branch was observed in a gangway at the address and the defendant in an open doorway nearby; both individuals fit the descriptions given earlier by the police communications center. The officers placed defendant and Martha Branch under arrest and advised them of their rights. Defendant was searched, and $180 in United States currency was found on defendant’s person. Officer Stump had inventoried the currency, and it was introduced into evidence in the court below.

Continuing, Officer Stump testified that he had been informed that the individuals might have been driving a brown auto with a broken windshield; and that, subsequent to the arrests, defendant’s auto, which fit the description and had a broken windshield, was found in front of 3015 West Lexington Boulevard, across the alley from the Polk Street address where the arrests were effected.

On cross-examination, Stump testified that, after a search of defendant’s person, apartment, and auto, no gun was recovered, and, further, that no money other than the above-mentioned $180 was recovered. He also testified that Martha Branch was not searched and that no money was discovered on her person. At the conclusion of Stump’s testimony, the State rested its case.

Martha Branch was called as a defense witness, and her testimony was elicited with the assistance of a certified interpreter for the deaf. She identified the pants which had been placed in evidence as those she was wearing on the night of her arrest. She testified that, on the evening in question, she was dancing at the tavern; that it was hot and she walked outside to cool off, but that she did not leave the tavern with Sergio Bolanis; that when she was outside, Bolanis grabbed her and pulled her pants, and that she hollered; that she had not taken any money from Bolanis that night and had not asked him to have sexual intercourse with her; that defendant never pulled a gun that night; and that she had not danced with Bolanis and did not play pool with him, and that he did not buy her any beer or liquor. On cross-examination, she testified that defendant supported her.

Defendant testified on direct examination that he lived at the Polk Street address with his mother, grandmother, and, for a time, with Martha Branch; that, on July 4, 1972, he had arrived at the tavern on 21st place between 10:30 and 11 P.M.; that after he, Martha Branch, and his aunt, Queenola Starling, had taken seats and bought some beer, Sergio Bolanis came up to their table and had engaged in a conversation, in English, with his aunt; that, at approximately 12 or 12:30 A.M., the witness had left the tavern with “rent money,” with which he was to pay his landlord the rent at the Polk Street address; that, earlier in the evening, before he had come to the tavern, his mother had given him $180 with which to pay the rent, pay other bills, buy some gasoline for his car, and use as spending money; that he had told his aunt he was going to leave the tavern to go home and pay the rent and that she had asked him to later return and pick her up; that, at this time, Martha Branch had “stepped out” of the tavern, and that he had walked outside, but didn’t see her; that, after having returned to the tavern briefly, he left, entered his car to leave, and then heard a scream; that he knew it had to be Martha Branch screaming; that he exited his car and left it in the street; that he then came upon Sergio Bolanis and Martha Branch wrestling on the ground in an alley near the tavern; that Martha Branch’s blouse and pants had been torn; that he picked up a stick and started screaming at Bolanis, and Bolanis ran into the tavern; and that he put Martha Branch in the car and drove her to the Polk Street address. Defendant further testified that he had not taken $180 from Bolanis, had not drawn a gun on Bolanis, and had not observed Martha Branch solicit Bolanis to have sexual intercourse for money on the night of the incident.

Defendant’s mother, Mary Harris, was then called by the defense in an attempt to corroborate defendant’s account of how he had come into the possession of the $180.

The defense then rested its case, and defendant was subsequently found guilty of plain robbery. This appeal followed.

The issues presented for review are: (i) was defendant proven guilty of robbery beyond a reasonable doubt, and (ii) questions relative to the appointment of an allegedly ineffective and incompetent interpreter.

I.

On appeal, we find it necessary to consider only one of the assignments of error presented by defendant: whether defendant was denied his right to be confronted by the witnesses against him, owing to the court’s appointment of an allegedly ineffective and incompetent interpreter for Sergio Bolanis. In sum, defendant urges that because the complaining witness spoke only Spanish, because the interpreter was incompetent, and because the translator frequently engaged in unrecorded discussions with the complaining witness, defendant was deprived of his right to confrontation and cross-examination of the witness against him.

To put matters in perspective, we first reiterate that prior to allowing Bolanis’ testimony, the trial court appointed an interpreter to translate from English to Spanish and Spanish to English; both counsel agreed that they were satisfied to have her as the interpreter in the case. The trial began, and, during the State’s direct examination of Bolanis, defense counsel objected to a conversation being held between the witness and the interpreter; the objection was sustained. At other points during Bo-lanis’ testimony, similar objections were made, and the court took pains to admonish the interpreter regarding the conversations.

At one point, even the assistant State’s attorney commented about the difficulty of understanding what the witness was saying as related by the interpreter, and observed that the witness should testify in narrative. On the second trial day, defense counsel was accompanied to court by another interpreter, who, it is evident from the record, he planned to have act as interpreter, if the court would so allow. However, on that day, the complaining witness was unavailable, and the matter was again continued. When the trial was resumed (some 24 days later), the original interpreter was again sworn to her duty, and there is nothing in the record to indicate that defense counsel had brought along the other interpreter by whom he had been accompanied earlier. Subsequent to the trial’s end, during argument over post-trial motions, defense counsel, while admitting that both the defendant and the State had agreed to the use of the appointed interpreter, urged that several times during the course of the trial he had objected to conversations between the interpreter and Bolanis and complained regarding the general ineffectiveness of the interpreter.

When necessary, interpreters may be sworn truly to interpret (Ill. Rev. Stat. 1971, ch. 38, pars. 165—11 and 165—12 and ch. 51, par. 47), and the calling of an interpreter is normally within the discretion of the trial court (People v. Soldat (1965), 32 Ill.2d 478, 481, 207 N.E.2d 449; People v. Shok (1957), 12 Ill.2d 93, 95, 145 N.E.2d 86; People v. Rivera (1st Dist. 1973), 13 Ill.App.3d 264, 267, 300 N.E.2d 869). While these principles are clear, where there has been an abuse of that discretion vested in the trial court and a defendant is thereby deprived of a basic right — such as the right to confront the witnesses against him — we have the duty to review the question (People v. Shok, supra, at 95). Furthermore a conviction will be reversed where the abuse of that discretion deprives a defendant of some basic right. People v. Murphy (1961), 21 Ill.2d 149, 152, 171 N.E.2d 618.

While many of the significant cases involving interpreters have arisen in situations where courts have failed to appoint interpreters for various reasons, and, thus, an abuse of discretion was claimed (People v. Maurantonio (1956), 8 Ill.2d 60, 132 N.E.2d 515; People v. Soldat, supra; People v. Murphy, supra; People v. Shok, supra), the central question in those cases, as we see it, was whether witnesses’ testimony was “understandable” (People v. Soldat, supra; People v. Murphy, supra), or “incomprehensible” (People v. Soldat, supra; People v. Maurantonio, supra), or “unintelligible” (People v. Soldat, supra), or whether a witness displayed a “lack of comprehension” of the English language (People v. Shok, supra), to the extent that he could not be understood.

Here, we are presented with different circumstances, as the court below did, in fact, within his discretion, appoint an interpreter to translate for Bolanis, the complaining witness. Nonetheless, the central question still remains: was Bolanis’ testimony, as presented through the interpreter, understandable, comprehensible, intelligible? And, if it was not, did that lack of intelligibility, brought about by an ineffective and incompetent interpreter, deny defendant the right to be confronted by the witnesses against him? We find, from a thorough review of the record, that defendant was denied that right.

Bolanis was the State’s sole occurrence witness, and his testimony was wholly uncorroborated. Although counsel for defendant cross-examined Bolanis, the difficulties with which that procedure was fraught are abundantly apparent from the record. Defense counsel complained repeatedly of the interpreter’s ineffectiveness, as did counsel for the State on at least one occasion. The trial judge was aware of the problems attendant on the matter before him and attempted to act accordingly. He admonished the interpreter regarding conversations with the witness; he attempted to clarify testimony of Bolanis (as did both counsel).

It appears from the record that neither the trial judge, nor the attorneys or defendant understood Spanish. Thus, the accuracy of the questions and answers rested solely in the hands of the interpreter. It is obvious the interpreter was not fully, completely or accurately translating the questions and answers. When an interpreter is employed, that practice must be strictly followed; otherwise the possibility of editing, and error, rests solely with the interpreter. Due process rights of persons charged with crimes cannot be short-cut by avoiding the ritual of translating each question and answer as required in section 2 of the Act relating to interpreters (Ill. Rev. Stat. 1971, ch. 38, par. 165 — 12). In our view, the only cure for the unfortunate situation would have been another interpreter, one who would translate truly, competently, and effectively, each question and answer with due regard for his or her oath to do so.

We realize that it must be shown that some injustice has been done by the selection of an interpreter before we are justified in interfering with the trial judge’s discretion in the selection of an interpreter (American Brake Shoe & Foundry Co. v. Jankus (1905), 121 Ill.App. 267, 271), but we find in this record an abuse of discretion in the selection made, which brought on an injustice: the denial of defendant’s right to be confronted by the witnesses against him.

For these reasons, then, we reverse the judgment of the circuit court of Cook County and remand this matter to that court for a new trial to be conducted in a manner not inconsistent with this opinion.

Judgment reversed and remanded.

HAYES, P. J., and STAMOS, J., concur.

       It is to be noted that Martha Branch had minimal language skills, according to the interpreter, and that she had conceptual limitations. The interpreter explained to the court that communication with her would be minimal, but that the interpreter could communicate with the witness.


author: Mr. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Browder et al., Defendants-Appellants.
    (No. 59159;
    First District (4th Division)
    June 26, 1974.

      James J. Doherty, Public Defender, of Chicago (Leonard V. Solomon, Assistant Public Defender, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Marianne Jackson, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

Ricky Nolls, Ronald Williams, Robert Hinkle, Van Johnson, Calvin Fisher, Willie Johnson, and Thomas Browder were charged with the rape of Diane Cross and Rosemary Brown. Following a bench trial at which all except Williams were tried together, Browder and Hinkle were each found guilty of two counts of rape and sentenced to 5 to 15 years in the penitentiary. The other four were found not guilty. Browder and Hinkle instituted the present appeal, contending that the finding of not guilty with respect to the other defendants are irreconcilable with their own convictions and create a reasonable doubt as to their guilt, that there is no evidence that the alleged intercourse with the complainants was accomplished by force and against their will, and that the testimony of the complainants is insufficient to establish their guilt beyond a reasonable doubt.

We consider first whether the convictions of Browder and Hinkle are irreconcilable with the findings of not guilty as to the other four defendants. It is contended that the evidence against all six defendants was essentially the same, inasmuch as the two complainants, Diane Cross and Rosemary Brown, observed all six under similar conditions and positively identified all six both in and out of court. The defendants state that the only rational explanation of the trial court’s findings is that it rejected the identification testimony of the complainants as to the four men acquitted, but accepted it as to them. This, they argue, is contradictory and casts doubt upon their convictions. The trial court did not provide any explanation of its split findings, and indeed such would be helpful to this comt. However, after a careful review of the record, it is our opinion that the findings are consistent and raise no doubt concerning the defendant’s guilt.

The complainants testified that on April 20, 1972, at about 9:30 in the evening, they were walking down Pulaski Road near Monroe Street when they were grabbed by three men who threatened them with a pistol and took them to a vacant apartment at 4043 Monroe Street. A fourth man was waiting at the apartment when they arrived. They were taken to separate rooms, and each was forced to undress and engage in sexual intercourse with the abductors. Following the original four, other men came into the apartment and had intercourse with the complainants. As soon as one man had finished, another would take his place. In all, 15 or 16 men had intercourse with Rosemary Brown, and 10 or more had intercourse with Diane Cross. The two women were finally released about 4 o’clock the following morning. They stopped a passing police car and told the officers that they had been raped.

Rosemary Brown identified Browder and Hinkle from a book of photographs shown to her by the police. She also identified Willie Johnson from a police car as he stood on Pulaski Road. At a lineup held on April 21, she identified Willie Johnson, Browder and Hinkle. Diane Cross identified Browder and Hinkle at Rosemary Brown’s house on April 21. She identified Ricky Nolls on the street while she was riding in a police car and picked Hinkle, Browder, and Nolls out of the lineup held on April 21. She also identified Van Johnson in the courtroom of Branch 43, located at 937 North Wood Street. Both women identified aH of the defendants in comt.

The complainants testified that the lighting conditions in the apartment were such that they could see their attackers clearly. No lights were on, but the window shades were up, and light came in from the streetlights outside. Rosemary Brown stated that she saw Calvin Fisher for a period of about 7 minutes. She was lying on the floor looking up at him, and someone else was on top of her. She saw Willie Johnson on three different occasions in the fight coming in through the windows and also saw his face when he struck a match to light a cigarette. Hinkle was in the room with her for about half an hour and was on top of her for about 3 minutes. She had also seen him 2 or 3 months prior to the incident when he came to her house to teach her nephew to play the guitar. She got a clear look at Browder while he was sitting next to her. During this time he was shining a flashlight on her body and asking if she ever wore her hair in a “natural”. She had gone to school with Browders sister and had seen him before on the street and in an automobile. She also talked with him for about 10 minutes after she and Diane were allowed to leave, by which time it was daylight.

Diane Cross testified that she first saw Ricky Nolls standing over her as she lay on her back in the bedroom. He had intercourse with her twice, during which she was able to observe him for about 20 minutes. She saw Hinkle for about 3 minutes while he was on top of her. Van Johnson was on top of her for 3 or 4 minutes. His face was approximately 6 inches from hers, and she looked at it while he was having intercourse with her. Browder had intercourse with her twice. On the first occasion she observed him for about 15 minutes prior to the act and 5 minutes during it. On the second occasion she observed him for about 3 minutes while he was on top of her.

The foregoing demonstrates that the evidence against Nolls, Fisher, Willie Johnson, and Van Johnson can be distinguished from that against Hinkle and Browder. They were each identified out of court by only one of the complainants. Neither of the complainants had ever seen any of the four prior to the incident, and their only opportunity to observe them was under the lighting conditions that prevailed in the vacant apartment and during repeated sexual assaults. In addition, Nolls, Fisher, and Willie Johnson offered alibi testimony. Under these circumstances it is entirely possible that the trial court considered the identifications of these defendants too vague and uncertain to produce an abiding conviction of their guilt. See People v. Gardner (1966), 35 IIll.2d 564, 221 N.E.2d 232.

On the other hand, each of the victims made independent identifications of Hinkle and Browder both prior to and in the lineup. Rosemary Brown was acquainted with both and had seen each on prior occasions. Browder stood with the complainants outside the apartment building for about 10 minutes, during which they were able to see him in the daylight. Rosemary Brown also testified that Browder exclaimed, “Hey man, I know her”, to the other occupants of the apartment after he had shined the flashlight on her. Thus the identifications of Hinkle and Browder were far more certain and positive than those of the other men and were bolstered by independent corroborating circumstances.

We have often said that in a trial without a jury, the trial court, which hears and observes the witnesses, is best suited to sift the evidence and determine questions of fact. (People v. Boney (1963), 28 Ill.2d 505, 192 N.E.2d 920; People v. Means (1963), 27 Ill.2d 11, 187 N.E.2d 679.) Where the truth lies in any debatable set of circumstances is a matter to be determined by the trier of fact, and it is not for this court to substitute its opinion for that of the trial court. The judgment of the trial court will not be set aside by this court unless the proof is so unsatisfactory or implausible that it justifies a reasonable doubt of the defendant’s guilt. People v. Woods (1963), 26 Ill.2d 582, 187 N.E.2d 692.

We cannot say that the proof as to Browder and Hinkle is so unsatisfactory that it raises a reasonable doubt of their guilt. As we have pointed out, the evidence against them was considerably more than that against the four men who were acquitted and is, in our opinion, sufficient to support the trial court’s findings. Therefore, we will not disturb them. It is true that Browder offered an alibi; however, the principles stated above apply to this as well. The trial judge was in the best position to observe Browder while testifying and to disregard the alibi if he concluded that it was incredible.

We have examined the cases of People v. Ethridge (1971), 131 Ill.App.2d 351, 268 N.E.2d 260; People v. Griffin (1967), 88 Ill.App.2d 28, 232 N.E.2d 216; and People v. Patterson (1972), 52 Ill.2d 421, 288 N.E.2d 403, cited to us by the defendants, and find them distinguishable from the present case. In each of them, the evidence against the defendants) that were acquitted was the same as or greater than the evidence against the person convicted. As we have stated, we do not find that to be true in the present case. For these reasons we conclude that the findings of the trial court are not inconsistent.

We consider next whether the State proved that the defendants had sexual intercourse by force and against the will of the complainants. The defendants take the position that there is no evidence that either of them was among the group that originally abducted Diane Cross and Rosemary Brown and that the two women themselves testified that neither defendant had any weapon or threatened them in any way. When the defendants entered the apartment, the complainants were completely undressed and did not scream or resist during intercourse. Based upon this they contend that, assuming arguendo that they did have intercourse with the complainants, the State failed to prove that they exerted the essential element of “force,” either directly or through accountability, and hence failed to prove them guilty of rape. We find this argument unpersuasive.

Where two or more persons have a common design to accomplish an unlawful purpose, the act of one is the act of all, and all are equally guilty of whatever crime is committed. (People v. Nowak (1970), 45 Ill.2d 158, 258 N.E.2d 313; People v. Smith (1972), 8 Ill.App.3d 270, 290 N.E.2d 261.) As stated in People v. Hubbard (1972), 4 Ill.App.3d 729, 281 N.E.2d 767, “proof of a common purpose need not be supported by words of agreement or direct evidence, but can be drawn from circumstances surrounding the commission of an act by a group.” (4 Ill. App.3d at 733, 281 N.E.2d at 770.) In the present case there was evidence that three men forced the complainants to a vacant apartment at gunpoint, where a fourth man was waiting. The only furniture in the apartment was a couch in the living room and mattresses in the kitchen and bedroom, and no lights were on. More than one of the men ordered the complainants not to look at his face. After the first four had intercourse with the complainants, other men, among them Hinkle and Browder, entered and did likewise.

Upon this evidence, it would have been reasonable for the trial court to have found that it was the purpose of the group to rape the complainants. As observed by the State’s attorney in her oral argument before this court, it is apparent from the circumstances surrounding the actions of the men present in the apartment that they did not invite the women there to attend a tea party. Hinkle and Browder as members of the group were responsible for the group’s actions. We conclude, therefore, that, under the theory of accountability, the State proved the element of force with respect to Hinkle and Browder, and we so hold.

Finally we consider whether the defendants were proven guilty beyond a reasonable doubt. They contend that the succession of men coming into the apartment could have been under the impression, or been told, that there were two girls in the apartment “giving it away”. They argue that nothing in the record concerning the conduct of the complainants or the other men in the apartment would belie that impression. They also bring up the possibility that at some point during the night the complainants decided to acquiesce in the events taldng place in the apartment. They point out that neither of the women testified that she screamed for help at any time and that the State failed to prove that either suffered any bodily injury or torn clothing.

Much of what we have said with respect to the contentions discussed previously applies here as well. As we have indicated, it is our opinion that the evidence is sufficient to support a finding that a gang of young men formed a common design to rape Diane Cross and Rosemary Brown and that Hinkle and Browder participated in the offense. That the complainants’ clothes were not torn does not raise a reasonable doubt as to the defendants’ guilt, for, as stated in People v. Sims (1972), 5 Ill. App.3d 727, 283 N.E.2d 906, “[tjhere is no definite standard concerning the amount of force required to establish the offense of rape * * *. In weighing the evidence of force, it is proper to consider the disparity in size and strength of the parties and the place and conditions under which the act took place.” (5 Ill.App.3d at 729, 283 N.E.2d at 908.) In the present case two women were abducted at gunpoint by four men, held in a dark, vacant apartment, and assaulted sexually by 15 or 16 men. These circumstances alone are sufficient to establish the use of force.

Nor do we consider it particularly significant that the complainants did not scream for help or attempt to resist. Enroute to the apartment, they were told that they would be killed if they were not quiet, and once inside it is likely that the circumstances led them to believe that to cry out or resist would be futile and perhaps even dangerous. It is well established that the victim of a rape need not resist where such would be futile and would endanger her life or where she is overcome by superior strength or paralyzed by fear. (People v. Smith (1965), 32 Ill.2d 88, 203 N.E.2d 879.) However, the complainants did stop a police car and report that they had been raped immediately upon being released. We are convinced, therefore, that the trial judge was correct in finding the defendants guilty of rape.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

ADESKO, P. J., and JOHNSON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Carl Gibbs, a/k/a Carl Menefee, Defendant-Appellant.
    (No. 59367;
    First District (2nd Division)
    June 25, 1974.

      No appearance for appellant.
    No appearance for the People.
   PER CURIAM.

DOWNING, J., took no part.