| Ill. | Dec 22, 1906
Lead Opinion
delivered the opinion of the court:
The People charge the crime to have been committed in a room in Kevern’s residence on the night of October 24, 1905. The charge rests solely upon the evidence of the prosecutrix, which is emphatically denied by Kevern, who testified that he never at any time had sexual intercourse with her. She swears positively that the offense was perpetrated on that night. It seems reasonably certain from this record that Ida Nickel was not in this house on that night, the preceding night nor for several nights thereafter, and that if this crime was committed in a room therein, as she says it was, it occurred at a date several days, probably a week, later than October 24.
The girl’s father was a witness to prove a statement of Kevern which the People regard as disserving, made in a conversation with the father in February, 1906, in these words: “I can’t give the girl anything; I haven’t got anything.” This witness, the father, however, in response to interrogatories propounded by the court, was permitted to relate the entire conversation between himself and Kevern, in which he says he repeated to Kevern his daughter’s statement to the witness charging the plaintiff in error with the crime, and the witness was also permitted to repeat the language which he used in the conversation with Kevern characterizing the alleged conduct of the latter. It was not proper to have the father repeat the statements of the prosecutrix as a preliminary to proof of the alleged disserving statement. He could have been asked if he, in substance, charged Kevern with having committed .the crime or with having had sexual intercourse with the daughter, and if he answered in the affirmative he could then have been asked whether Kevern made response, and, if so, what the response was. Proof of the repetition of the girl’s statements by the father in the conversation would be admissible only if called for on cross-examination. The jury were apt to regard the repetition of the girl’s charges against Kevern as original substantive evidence tending to prove the averments of the indictment, and for that reason the court erred in eliciting that repetition. (Stevens v. People, 158 Ill. 111" date_filed="1895-10-11" court="Ill." case_name="Stevens v. People">158 Ill. 111.) It was not necessary here, as it was in Gannon v. People, 127 Ill. 507" date_filed="1889-04-05" court="Ill." case_name="Gannon v. People">127 Ill. 507, to make proof of the exact words addressed to the accused for the purpose of enabling the jury to fully understand the significance of the language used by him.
It appears from a colloquy which took place between the court and counsel.during the trial that there was at that time another indictment pending against Kevern charging him with having committed the same crime upon the person of this girl in July, 1905. The girl testified that prior to the commission of the act charged by the indictment now before us, a like offense had twice been committed by Kevern,—once in July, 1905, and once in August, 1905,—and that on October 24, 1905, she had been with child for about three months. Kevern urges that this testimony was incompetent; but he cannot successfully raise this question because he elicited the substance of this evidence himself in cross-examination. On re-direct, however, the prosecutor asked the witness, “Do you know who the father of the child is?” and objection was sustained, and then he asked, “Is that the same child you are holding in your arms that you were carrying at that time?” To this question an objection was also sustained, but it is apparent that the impression was thereby conveyed to the jury that the prosecutrix was the mother of a child which she then held in her arms, begotten at about the time of the first offense mentioned in her testimony.
The court gave two instructions on the part of the People to the effect that “the acts constituting the crime may be proved by circumstances.”
The only material controverted question was, did sexual intercourse occur between the prosecutrix and Kevern in the room in his house ? There is no evidence whatever tending to show that coition actually took place in that room save the direct and positive evidence of Ida Nickel. There was no circumstantial evidence on the subject. The jury, however, guided by the two instructions just mentioned, were apt to reason that the birth of the child was a circumstance from which they might presume there had been sexual commerce between Kevern and this girl in July, and that if they were then criminally intimate her account of the October affair was thereby made more probable,—a conclusion manifestly unjust to plaintiff in error, because the birth of the child, in itself, is not a circumstance tending to show that Kevern was its father. It may have been begotten by another. Even if it could be presumed that the child was his offspring it could not be presumed from such presumed fact that he had intercourse with the prosecutrix at a later date. That would be to base one presumption upon another, which may not legally be done. Globe Accident Ins. Co. v. Gerisch, 163 Ill. 625" date_filed="1896-11-23" court="Ill." case_name="Globe Accident Insurance v. Gerisch">163 Ill. 625; Condon v. Schoenfeld, 214 id. 226.
As there was no evidence upon which to base them, the giving of the two instructions relative to circumstantial evidence was erroneous. In a somewhat similar condition of the record it was so held in Cunningham v. People, 210 Ill. 410" date_filed="1904-06-23" court="Ill." case_name="Cunningham v. State">210 Ill. 410.
The eighth instruction given at the request of the People, which deals with the law bearing on the weight to be attached to the evidence of the accused, is inaccurate. In view of other instructions given, however, this would not work a reversal.
There is no occasion to determine whether other errors are well assigned.
The judgment of the circuit court will be reversed and the cause remanded. D , , . ,
, Reversed and remanded.
Dissenting Opinion
dissenting:
I do not concur in the conclusion reached in the foregoing opinion. The date testified to by the prosecutrix upon which the intercourse between her and the plaintiff in error took place was not material, and the fact that she may have been mistaken as to the particular night when it took place only bore upon her credibility as a witness, and if she was mistaken in that regard such mistake should not work a reversal of the case.
I also think that the father of the girl was properly permitted to testify that he repeated the charge to the plaintiff in error made against him by his daughter and the reply of the plaintiff in error thereto, as the jury could only get the full force of the reply when advised of the remark of the father which elicited the reply. (Gannon v. People, 127 Ill. 507" date_filed="1889-04-05" court="Ill." case_name="Gannon v. People">127 Ill. 507.) The fact the prosecutrix made complaint to her brother that the plaintiff in error had outraged her was a circumstance tending to corroborate her statement that the plaintiff in error was responsible for her condition. Where ■there is evidence tending to support the theory of a party, he has a right to an instruction presenting to the jury his view of the case. (Chicago Union Traction Co. v. Browdy, 206 Ill. 615" date_filed="1903-12-16" court="Ill." case_name="Chicago Union Traction Co. v. Browdy">206 Ill. 615.) The giving of the instructions referred to in the majority opinion was not, I think, reversible error.
It is far more important that a defendant, clearly proven guilty, be punished than that a record free from technical errors be built up.
Vickers and Carter, JJ.: We concur in the foregoing dissenting opinion of Mr. Justice Hand.