153 N.E. 707 | Ill. | 1926
Plaintiff in error was indicted and tried in the circuit court of Adams county on the charge of statutory rape upon Alice Bragg, of the age of fourteen years. The testimony for the People consisted of the story of the complaining witness. Amanda Bragg, the mother of the complaining witness, was apparently a witness before the grand jury and her name appeared on the indictment, but upon the trial the State's attorney stated that he desired the court to call her as a witness as he was not willing to vouch for her credibility. The defendant positively denied the charge and offered the testimony of numerous witnesses as to his good reputation for chastity and good morals.
It appears that Amanda Bragg, the mother of complaining witness, had been employed by the brother of plaintiff in error in a restaurant in Quincy. Plaintiff in error was cook in that restaurant and the complaining witness came there at various times to see her mother. The testimony of both State and defense shows that on April 14, 1925, plaintiff in error and George Couper were driving about the city of Quincy in an automobile owned by the brother of plaintiff in error, and that the complaining witness and her mother met them and got into the rear seat of the automobile and the four drove about the city, later going to one of the public parks known as Riverview Park. The four got out of the car and sat on the grass. The defendant's evidence is that they all sat in a group along the roadside. The complaining witness testified that at that time she and plaintiff in error went behind some bushes, where acts of *36 sexual intercourse took place. In this she is not corroborated by her mother, who testified that all remained together, and plaintiff in error also positively denies her testimony. Another occasion testified to by the complaining witness was at her home, when her mother was away from the house. The mother, however, testified there was but one occasion when she was away from the house while plaintiff in error was there; that when she left, the complaining witness and plaintiff in error were sitting on the porch and that when she returned they were still sitting where she left them; that she was gone but about fifteen minutes.
The evidence was conflicting and the jury should have been correctly instructed. The court gave the jury the following instruction:
"The court instructs the jury that the defendant may be convicted of the crime of rape upon the uncorroborated testimony of the complaining witness, Alice Bragg, provided you believe such evidence is clear and convincing and is such that convinces you of defendant's guilt beyond all reasonable doubt."
This instruction was prejudicial in a case of this character, where the testimony of the prosecuting witness is to be carefully considered. It called attention to the testimony of a single witness although there were other witnesses for the People. The danger of such an instruction is that the importance and credibility of such testimony are likely to be magnified in the minds of the jury. Such an instruction has been frequently condemned by this court. (Judy v. Judy,
The judgment is therefore reversed and the cause remanded.
Reversed and remanded.
DUNN and THOMPSON, JJ., dissenting.
