delivered the opinion of the court:
This case comes from the criminal court of Cook County on writ of error to review thе finding of guilty of rape of a female under sixteen years of age and the finding of guilty of the crime against nature, and the judgment and sentence to the Illinois State Penitentiary for a definite term of three years on the rape charge and for an indeterminate term of two to nine years for the crime against nature.
The evidence on thе trial disclosed that the prosecutrix, age fifteen years, the defendant, age thirty, and Bill Ostertag, a high-school senior and boy friend and schoolmate of prosecutrix, wеre engaged, in the presence of each other, in sexual experiences both natural and unnatural. The defendant, a married man and father of two children, wаs the owner of an automobile which was used by the three on January 13, 1951, and in which the sevеral acts were committed. In view of the determination we have made in this cause we are privileged to omit the offensive details of the occurrences.
Ostertag and Thunberg were jointly indicted and in various counts were charged with rape, indecent liberties and crime against nature. A separate trial was accorded defendant, which was had without a jury and the results heretofore recited ensued.
A fair summary оf all the evidence appearing in the record suggests the guilt of the defendant аnd that the arguments advanced by defendant to engender a minimization of his offense аre strained and technical. However, we are compelled to reverse because the trial judge improperly considered evidence which does nоt appear in the record.
People’s exhibit 2 was a confession obtained by the police from Ostertag. It was marked as an exhibit but the prosecution did not offer it in evidence. Had such offer been made it was the court’s duty to reject the samе. What this confession contained, the record does not disclose, nor was counsel for defendant allowed to examine it. The court also interviewed the prosecutrix and her parents outside the presence of defendant and his counsеl. What was said in the interview the record does not reveal. However, the following stаtement made by the court while considering a motion for a new trial clearly indicates that the court had read the confession and had privately interviewed the prosecutrix: “The police- saw them in the car when she was arrested with the other lad. That was late in the afternoon. Well, never mind that. It is really remarkable. The boy, Ostertag — you better read his statement. This fellow was the one that suggested it to the girl. * * * I have been around a long time. The mother and father wanted to come up here. The boy very frankly, as frank as he could be, he told the details and I questioned the girl.”
It has been reрeatedly held that the deliberations of the trial judge are strictly limited to the recоrd made before him in open court. (People v. Cooper,
Plaintiff in error аlso makes some complaint that the trial was not conducted with dignity and good order. No useful purpose, however, is served in extending this opinion by a consideration оf this and other claimed irregularities.
The conclusion is unescapable that the defendant must have another trial.
Reversed, and remanded.