delivered the opinion of the court.
The defendant, William Oparka, and his brother, Fred Oparka, were charged with the crime of rape. After a jury trial, both men were found guilty and sentenced to the penitentiary for a term of 60 years. Defendant appealed to the Supreme Court, and that court transferred the appeal to this court on the finding that no substantial constitutional issue was presented. Fred Oparka appealed his conviction to this court, and in People v. Oparka, 85 Ill App2d 33,
Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt; that introduction of evidence concerning a certain wristwatch constituted reversible error; that introduction of evidence concerning an ether bottle constituted reversible error; and that the trial court improperly restricted the cross-examination of one of the State’s witnesses.
Since the facts were set forth in considerable detail in the Fred Oparka opinion, supra, we deem it necessary to summarize the facts only briefly in this opinion. The complainаnt, a student nurse at South Chicago Community Hospital, identified defendant and his brother as the two men who forced their way at gunpoint into a parked automobile in which she and her companion were parked near the hospital. After forcing the escort into thе back seat, they then drove to a secluded area some blocks
For the defense, a bartender testified that defendant was with him during the entire evening, first at the tavern where the witness was employed and then at a restaurant. A friend of defendant’s sister testified that some months after the crime, she met the complainant who stated that she would be unable to identify her assailants because it was dark. In rebuttal the complainant dеnied making such a statement.
Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt, arguing that the complainant’s identification could not have been positive because of the circumstances under which the rape took place. We have already found in the Fred Oparka case, supra, that the complainant’s testimony was consistent and that her descriptions to the police of her assailants were accurate. She identified the defendant at a lineup, and we find from the record in the instant
Defendant next contends that introduction of evidence concerning a wristwatch was prejudicial and constituted reversible error. Mildred Peters, a nurse and fellow worker of defendant at a laboratory, testified that about the timе of this occurrence, defendant showed her a watch which she described as a nurse’s watch and told her that he found it in the ash tray of his car. The record discloses no testimony by the complainant that she had a watch on the night of the occurrence, or that it had been taken from her. The State contends that the complainant in fact had testified that the watch had been taken from her by the assailants, but that such testimony was inadvertently omitted from the record. After certification of the record, the State petitioned the trial court to amend the record, but the trial court denied that motion.
In People v. Oparka, 85 Ill App2d 33,
“While it is true the record does not contain evidence that a wristwatch was taken from (the complainant), it appears that the trial judge, the prosecuting attorney аnd the defense attorney all assumed this fact to be in evidence.”
At one point during the trial, outside of the presence of the jury, the trial judge stated:
“Might have been better, of course, if the State would have had the complaining witness describe the watch with somе degree of accuracy, but that in itself only goes to the weight. She said it was a nurse’s watch.”
Defense counsel made no objection or comment to this statement by the judge, and in fact during his argument for a directed verdict counsel objected to the evidence as to the defendant only because the description of the watch by Mildred Peters constituted a conclusion, not because her testimony was irrelevant or because no foundation was laid for its introduction. In its closing argument, the State also assumed, withоut objection by defendant, that the complainant had testified about a watch being taken from her, and on that basis, the prosecuting attorneys made several references to the watch.
In the Fred Oparka case, the defense argued that the State’s remarks about the watch in closing argument were erroneous; while in the instant case defendant also contends that the testimony of Mildred Peters about the watch was error. In that case, this court found that the evidence concerning the watch was merely сumulative, and although error as to Fred Oparka, it was not prejudicial and did not require reversal. We stated at pages 41-42:
“Where the evidence shows a defendant guilty beyond all reasonable doubt the verdict will not be setaside where a different verdict would not have been reached had no error intervened.”
Likewise, we find in the case at bar, that since there was no testimony in the record by the complainant about a watch, the court erred in allowing testimony and references to the watch, but that such error was not prejudicial and does not require reversal. As stated in People v. Oberholdt, 359 Ill 39,
Defendant next argues that reference to a brown bottle marked by the State as an exhibit for identification but not introduced into evidence, was prejudicial error. The complainant testified that defendant poured chloroform or ether out of a bottle into a handkerchief and put it to her escort’s face. She also testified that a small brown bottle was used by defendant, but that she did not know whether it was the same bottle which was shown to her in court. She testified on cross-examination that the bottle shown to her in court was similar to the one used by defendant. Mildred Peters testified that bottles of ether were kept in unlocked cabinets at the laborаtory
Evidence that defendant used a bottle of ether or a similar substance in the commission of the crime, and that in his employment he had access to ether and its contаiners was properly introduced into evidence. The defendant now argues that the State “flouted” the bottle before the jury, but the record clearly reveals that after objection, the State withdrew the exhibit and that the bottle was not displayed again. The State did not attempt to prove that the bottle shown in court was the one used in the crime, or that such a bottle was taken from defendant, nor did the State ever refer to it as such. The only evidence that the bottle used in the crime resembled the one shown in court was elicited on cross-examination. References to this testimony in closing argument, to which there was no objection, were not improper.
Defendant finally contends that the trial court erred in improperly restricting the cross-examination of one оf the State’s witnesses. Dr. Albert G. Weiss, physician who treated the complainant at the hospital on the evening of the occurrence, testified on direct examination as to the results of his physicial examination. During cross-examination he testified that his examination of complainant took place about one hour after the occurrence and that he had a conversation with the girl. He then
The latitude permitted in the cross-examination of witnesses at trial is a matter within the sound discretion of the trial court and its rulings in this regard will not be upset on review unless there has been a plain abuse of discretion. People v. Provo, 409 Ill 63,
Moreover we reject defendant’s contention that сomplainant’s description of her attackers was a spontaneous declaration. While the contents of a spontaneous declaration may be shown in their entirety, People v. Damen, 28 Ill2d 464,
For the foregoing reasons the judgment of the Circuit Court is affirmed.
Judgment affirmed.