19 N.E.2d 334 | Ill. | 1939
Mrs. Mary Gibbs, aged fifty-three, testified in the criminal court of Cook county at the trial of Arthur J. Canonica, aged twenty-eight, on a charge of assault with intent to rape. She said she left her home in Chicago about one-thirty in the afternoon, March 24, 1938, to go to a street car line. She had opened her purse to take out her fare and was walking along the sidewalk. Canonica passed her and turned and seized her. He said: "Grandma, if you never was before you are going to get it now." She explained that one of the words he used meant sexual intercourse. He attempted to push her down on the prairie and had his privates exposed. She struggled with him and broke away when he reached down with one hand. She ran and he pursued her. Her daughter-in-law happened to be looking out of the window at the time. She sent Catherine Gibbs to her mother to see what was wrong. When Catherine came up on her bicycle her mother told her to follow Canonica. Catherine overtook him and he told her to get away and reached into his overcoat which he then had over his arm. Catherine called officer Prescott who arrested Canonica. Canonica was buttoning his pants at the time he was arrested. The trial was before the court without a jury. Canonica was found guilty and sentenced to the penitentiary. He has sued out this writ of error.
Canonica denied making the statement Mrs. Gibbs testified he made. His statement was that he had been drinking, had been out all night and that he did not know just how he got to the neighborhood. He said he brushed *443 against Mrs. Gibbs when he passed her and that he apologized; that she mentioned the police and he ran away. Officer Prescott testified that he had had considerable experience with intoxicated persons, detailing that experience, and gave it as his opinion that Canonica was not intoxicated. Mrs. Gibbs did not detect any odor of drink on Canonica's breath when he seized her and pulled her towards him.
Canonica insists that the evidence for the People, if true, is insufficient to prove the intent to commit rape; that the proof shows he was not physically able to overcome Mrs. Gibbs, and that the crime was not proved beyond a reasonable doubt. He relies onPeople v. Jenkins,
In the case before us Canonica told Mrs. Gibbs he was going to have intercourse with her, seized her, attempted to push her down, had his privates exposed, struggled with her and followed her when she broke away. The fact that it was day and on a public street is to be considered, of course, but there is no lack of proof of Canonica's intent to overcome Mrs. Gibbs' resistance. This contention cannot be sustained. He relies on People v.Stevens,
Canonica's final contention, that he was not proved guilty beyond a reasonable doubt, is without merit. The trial court saw and heard the witnesses and was warranted in finding Canonica guilty of the charge. His complaint that Mrs. *445 Gibbs' daughter-in-law should have been called by the People to corroborate Mrs. Gibbs, and that this in some way makes the case doubtful because of her failure to testify, is also without merit.
For the reasons stated the judgment of the criminal court of Cook county is affirmed.
Judgment affirmed.