People v. SmithPeople v. Smith
- Reporters:
- , ,
- Before:
- Burke
delivered the opinion of the court:
Defendant was indicted for taking indecent liberties with Vernon Hill and with Steven Hill, ages ten and eight respectively at the time of the incidents complained of. Indictment No. 61-2159 charged defendant with taking indecent liberties with Vernon Hill on July 8, 1961, and Indictment No. 61-2160 charged him with taking indecent liberties with Steven Hill on July 1, 1961. At a bench trial a finding of not guilty was entered on the charge involving Steven Hill at the close of the State’s evidence. At the close of all of the evidence, defendant was found guilty on the charge involving Vernon Hill and was sentenced to five to fifteen years in the penitentiary. He appeals from the conviction.
Vernon and Steven Hill are brothers. They reside with their mother, grandparents and six brothers and sisters on West 59th Street in Chicago, and are the oldest of the eight Hill children. Defendant resides a short distance down the street from the Hill home; he
Vernon Hill testified he was returning home about 9:00 p. m. on July 8,1961, when he was stopped by the defendant across the street from Ms, Vernon’s, home. Defendant asked him if he would do some work for defendant, to which Vernon agreed. The pair proceeded to the defendant’s home, through the apartment and into the basement of the building via a stairway on the rear porch. Defendant turned on the light, locked the door and forced Vernon to perform an indecent act with defendant, the details of which are unnecessary to relate here. Vernon stated that defendant choked him and threatened to kill him if he told anyone of the incident. They were in the basement some two hours, until about 11:30 p. m. Defendant then took Vernon by the hand and walked him home. When they arrived at the Hill home a few minutes later, Vernon’s mother, her cousin from the west side and her cousin’s husband were standing on the front porch. Defendant told Mrs. Hill that Vernon was cleaning defendant’s room and emptying trash that evening and asked her not whip the boy for arriving home so late; he then gave Mrs. Hill a dollar for the boy’s services. This conversation lasted about three minutes, during which time Vernon remained silent.
Vernon testified that Ms grandmother called him upstairs and asked him why he was out so late, whereupon he said he would tell if he did not receive a whipping and related the incident with defendant to her. Some two or three minutes after Vernon left the conversation on the front porch, Mrs. Hill joined him and the grandmother upstairs. Over objection of defense counsel Vernon stated he told his mother what had occurred and that at this time only he, his mother and his grandmother were present. The police were then called.
Vernon’s mother, Ruby Hill, testified she met defendant for the first time in the latter part of June through her son, Steven. She saw defendant again on the 4th of July, when he attended a party at the Hill home and took photographs of the Hill family, and again saw defendant on the 8th of July when he came to the Hill home looking for Steven. About 11:30 on the 8th of July, Mrs. Hill, her cousin from the west side and her cousin’s husband were standing on the front porch of the Hill home waiting for Vernon. She stated defendant and Vernon arrived together and she asked defendant why he kept her son out from 9:30 to 11:30. Defendant answered that Vernon was cleaning defendant’s room and emptying the trash, asked Mrs. Hill not to whip the boy and gave her a dollar for his services. At this point, Mrs. Hill testified, Vernon’s brother told Vernon his grandmother wanted to see him and he went upstairs. Several minutes later Mrs. Hill went upstairs where Vernon, in the presence of the entire family, related the incident with defendant. Defense counsel again objected to the testimony as to what was said by Vernon concerning the incident.
Defendant testified in his own behalf. He stated he knew the entire Hill family and, more specifically, that he had known Mrs. Hill since about the first of May, 1961, and had since been to the Hill home “quite a few times.” He had given the Hill children money on several occasions. He had given Steven money several times, which gave rise to defendant’s meeting Mrs. Hill because she wanted to know where Steven had been getting the money. Defendant gave money to
Estelle Black, defendant’s landlady, testified that children frequently visited with defendant in his room; sometimes they would arrive as early as 7:00 a. m. She had seen defendant about 6:00 on the evening of July 8, 1961, just prior to his leaving the building. Mrs. Black went to sleep “real early” that evening and was awakened about 8:00 or 9:00 p. m. by the police when they came looking Jor defendant. She next saw defendant when he returned after the police left. Mrs. Black testified that at no time during the evening of July 8th, had she seen defendant in the house with a boy, that
At the close of the State’s evidence and after a finding of not guilty on the charge involving Steven Hill, the trial judge stated that he would not strike the testimony given by Steven for the reason that it was admissible in the case involving Vernon for the purpose of showing the relationship of the parties.
Defendant first maintains that the testimony of Vernon Hill was not clear and convincing for the reason that it was contradictory and insufficient as a matter of law, that there was no substantial corroboration of his testimony, and that therefore his guilt was not proven beyond a reasonable doubt. We are of the opinion that the State made out a prima facie case showing defendant’s guilt, but that prejudical error was committed by allowing into evidence the testimony of Vernon Hill and Mrs. Hill relating to the statement made by Vernon to his mother and grandmother concerning the incident with defendant and by allowing into evidence the testimony of Steven Hill as to the alleged incident of July 1, 1961.
It is also argued by defendant that there was no substantial corroboration of Yernon Hill’s testimony, such as is required in a case charging indecent liberties with a child where the defendant denies the charges. Defendant’s own testimony was that he walked Yernon home that evening, attested to by Mrs. Hill; that he had, on prior occasions, given money to the Hill children, and especially to Steven Hill, for no
While defendant’s request for outright reversal must be rejected, in the interest of justice the conviction must be reversed and the cause remanded. Prejudicial error was committed by allowing into evidence testimony relating to the statement made by Vernon to his mother and grandmother concerning the incident with defendant. This was clearly not admissible as a complaint by an injured party for the reason that the rule regarding complaint applies only to rape cases and not to indecent liberties cases. People v. Romano, 306 Ill 502, 138 NE 169. Nor was it admissible as part of the res gestae, for the reason that it was not spontaneous and further was given in response to questioning by the grandmother. People v. Borella, 312 Ill 34, 143 NE 471.
It was also prejudical error to consider the testimony of Steven Hill in connection with the charge involving Vernon Hill. The trial court, first, found the testimony of Steven untrustworthy and insufficient to sustain a conviction for taking indecent liberties with him on July 1,1961. More importantly, in cases of
While it is true, in a bench trial of a criminal case, the trial judge will be presumed to have considered only competent evidence in arriving at the judgment, People v. Robinson, 30 Ill2d 437, 197 NE2d 45, if it affirmatively appears that he considered incompetent evidence prejudicial to the defendant, the judgment will be reversed. People v. Grodkiewicz, 16 Ill2d 192, 157 NE2d 16. The record shows that the trial judge gave weight to the testimony of Steven Hill in his consideration of the charge involving Yernon Hill and further gave weight to the evidence relating to the statement made by Yernon to his mother and grandmother concerning the incident with defendant. Since we are unable to determine how much weight was given to this improper evidence, the conviction must be reversed and the cause remanded.
It is of interest to note at this point that the majority of Illinois Supreme Court decisions on the question of admissibility of evidence in a criminal bench trial hold that the trial judge is presumed to have considered only competent evidence in arriving at his judgment. This line of decisions begins with People v. Reed, 287 Til 606, 122 NE 806, and continue down to date. Three cases exist, however, which have in no way been commented upon in any case in the Reed line and which hold directly contrary to the Reed line, namely, the trial judge in a bench trial of a criminal case is not accorded the same presumption which is accorded the chancellor in a chancery case that he will consider only competent evidence. See People v. Reichert, 352 Ill 358, 185 NE 585; People v. Arendarczyk, 367 Ill 534, 12 NE2d 2, and People v. Borrelli, 392 Ill 481, 64 NE 2d 719.
For these reasons the judgment is reversed and the cause remanded with directions to proceed in a manner not inconsistent with the views expressed.
Judgment reversed and cause remanded with directions.
BRYANT and LYONS, JJ., concur.