61 N.E.2d 348 | Ill. | 1945
The plaintiff in error, Harry Crowe, was indicted in the criminal court of Cook county on July 30, 1943, for the crime of taking indecent liberties with a female child who, at the time of the crime on July 19, 1943, was not quite seven years old, she having been born on July 22, 1936. The trial was commenced before a jury on March *296 6, 1944, and the plaintiff in error was later convicted by the jury and sentenced to imprisonment in the penitentiary. He prosecutes this writ of error to reverse that judgment.
At the time in question, the plaintiff in error was thirty-one years of age, was married and had two children. He and his family occupied the first floor and basement of an apartment at 3830 West Flournoy street in Chicago. Joanne Konsoer, a child about eight years of age, who testified for the State, resided with her mother, father, brother and sister on the second floor of this same building, and was in the third grade in a Catholic school. The complaining witness lived about three doors away on the same street and was in grade 2-B in the Gregory school. She and Joanne were playmates, and she had known the plaintiff in error, Harry Crowe, for a long time.
She testified to the commission of two offenses upon her, one in Crowe's home when she and Joanne were there together and were each sitting on one of plaintiff in error's knees, and the second offense about two weeks later when Crowe took her into his basement and stood her on a trunk and took indecent liberties with her. After she left the basement, she went upstairs with Joanne Konsoer and Joanne told her to go home and tell her mother and father, which she testified she did. Her mother testified that she had a conversation with her daughter on July 19, 1943, and, after she talked to her, the mother called the police, and later she went to the State's Attorney's office with her daughter and Joanne and her mother.
Both girls were uncertain as to what day the first offense was committed, but they both testified it was in the month of July, 1943, and in the afternoon. Joanne corroborated the complaining witness as to the offense when she and complaining witness were sitting on Crowe's knees in the dining room of his home, and she further testified that the wife of plaintiff in error was not at home at the time but that his sons, Robert and Butchie, were *297 running in and out of the house. Joanne told her mother that evening what Crowe had done. No objection was made by the plaintiff in error to this testimony.
Police officer March testified that he arrested the plaintiff in error on July 20, and took him to the police station and later sent him to the State's Attorney's office. Later that day, after plaintiff in error returned from the State's Attorney's office, he had a conversation with him in which Crowe admitted he had taken indecent liberties with complaining witness in his basement. The plaintiff in error did not testify and, therefore, the testimony of the complaining witness and Joanne Konsoer as to the commission of the two offenses was not denied by the defendant or by any other of the defense witnesses, nor did the plaintiff in error deny the testimony of the police officer as to the confession.
The only witness offered by the plaintiff in error was the testimony of his wife, Alice Crowe. She testified she saw complaining witness in her home on only one occasion, that being July 5, 1943, which was her little boy's birthday, at which time her husband was home in the afternoon and he was playing with the children, roughing them up a bit, playing tag and climbing over the furniture, and that they were all sitting around her husband's knees. She further testified that on July 19, 1943, she left home about 4:45 P.M. and the complaining witness was not there. On cross-examination this witness testified she had seen complaining witness come into their building and go up to the Konsoer apartment, and that from time to time, the Konsoer girl had been down in the basement, which was used by both families, and that the Leonard girl had at times gone down with her; that there was a trunk in the basement and that they kept some kittens there which her husband would feed.
The plaintiff in error put on the stand three witnesses to prove his general reputation for chastity and good *298 morals. One of his character witnesses resided in Elmhurst and was general manager of a plant where plaintiff in error worked, and his knowledge was based simply on his business acquaintance, and on cross-examination he said he had never discussed it with anyone. Alice MacArthur, another character witness, lived distant about ten minutes walk, and Harriet Murray, the third witness, lived about five blocks away from the Crowe home. The People in rebuttal called three witnesses who testified the reputation of plaintiff in error for chastity and good morals was bad. The evidence on this point was about evenly divided.
The plaintiff in error contends that he was not proved guilty beyond all reasonable doubt. In support of his position the plaintiff in error cites, without comment, three cases, People v.Schwabauer,
In the Phipps case, there was a conviction for the crime of taking indecent liberties with a female child, but the indictment also contained a count for assault with intent to commit rape, which was later nolled after the proof was in. The child's mother had, however, testified to a complaint by the child as to the attempted rape. The girl was ten years of age. The defendant called several witnesses to contradict and impeach the testimony of the prosecuting witness and also testified in his own behalf. The court reversed and remanded the case for a new trial *299 because there were too many errors of a material character committed on the trial to justify this court in affirming the judgment. The errors pointed out were in the giving of instructions, the refusal of the court to require the prosecution to elect on which count it would prosecute the case, and because the jury might be materially affected by the incompetent testimony of the mother given in support of the stricken count.
In the Freeman case, a judgment of conviction in an indecent-liberties case was reversed because the testimony of the prosecuting witness, a child about eight years of age, was not clear and convincing and because there was practically no corroboration of her story.
We are aware of the danger of resting a conviction on the testimony of a child of tender years, and such a conviction ought not to stand unless the testimony is corroborated or is otherwise clear and convincing. (People v. Johnson,
In People v. Fitzgibbons,
On this trial the jury saw and heard all of the witnesses and it was its province to judge the credibility of the witnesses and the weight of the evidence, and we cannot say that the plaintiff in error was not proved guilty beyond all reasonable doubt.People v. Klemann,
Plaintiff in error also contends that the trial court erred in permitting the complaining witness to testify because of her age and because she did not know the nature of an oath or whether it was wrong to lie. She was born on July 22, 1936. At the time of the crime on July 19, 1943, she lacked three days of being seven years old, and at the time she testified at the trial on March 6, 1944, she was about seven years and seven and one-half months of age.
Counsel for plaintiff in error, in his statement of the facts, omits some of the child's testimony bearing on her competency. She testified: "I know what it means to lie; * * * I am going to tell the truth. * * * If I told my mother a fib or a lie she would hit me. I am going to tell the truth in this case. * * * I know I am in a court room. The man on the bench is a judge. I am going to tell the judge and the jury the truth." And in answer to the question: "Do you know that if you do not tell the truth that the judge might punish you," she answered "Yes."
We are aware that in People v. Martin,
The complaining witness here is corroborated by her mother and Joanne Konsoer, who was eight years old on *301 August 5, 1943. There is no attack made by the plaintiff in error on her qualifications and she described the act when complaining witness and she were each sitting on defendant's knees. She is further corroborated by officer March, who interviewed the plaintiff in error shortly after his arrest. The present case is not one where it can be said to be dependent entirely upon the uncorroborated testimony of the prosecutrix.
In People v. Peck,
It is true the complaining witness testified she did not go to church and did not go to Sunday school, and that she said she did not know whether it was right or wrong to lie, but it is clear from her preliminary examination that she understood the nature and meaning of an oath and knew she was in the courtroom and that the man on the bench was the judge and she said she was going to tell the judge and the jury the truth, and further said that if she did not tell the truth the judge might punish her.
In People v. Schladweiler,
We are satisfied that the trial court in the present case did not abuse his discretion nor err in permitting the complaining witness to testify.
Plaintiff in error insists it was error to permit the witness, Joanne Konsoer, to testify as to the defendant's conduct toward her when she was on his knee and complaining witness was on his other knee, on the ground that it was proving separate and distinct offenses in violation of the rule in People v. Rogers,
It has long been the rule of this court that testimony not objected to on the trial of the cause is not subject to review.(People v. Lanie,
It is next urged that the trial court erred in refusing to admit in evidence certain photographs, taken by the defendant's wife, of the trunk and the plaintiff in error standing alongside the trunk. The record discloses that neither the head nor the feet of the plaintiff in error appear in the picture, and that the pictures are horizontal. The wife of plaintiff in error testified as to the measurements she made of the trunk and where the top of the trunk was with reference to her husband's knees when she claimed he was standing alongside it, and plaintiff in error, therefore, was not harmed by the ruling of the court in excluding this photograph. Furthermore, it appears that the taking of this photograph was for the purpose of supporting the theory of plaintiff in error and not for the purpose of showing the physical facts as they actually existed at the time of the crime. Photographs of a scene or objects which have been posed or arranged by one party, for *304
the purpose of taking the photograph, in the way or manner sought to be shown are not admissible. (Chicago and Eastern IllinoisRailroad Co. v. Crose,
Under the circumstances shown by the testimony in this case, the trial court did not err in refusing to permit defendant's wife to testify that she did not see the defendant put his hand under the dress of the complaining witness on July 5. The defendant's wife was not prevented from rebutting the testimony of the State as to the children being in her home on the dates the State proved, and it was immaterial and irrelevant that defendant's wife did not see the defendant take any indecent liberties with a child on July 5, as that date was not in issue under the indictment, and the fact that the witness did not see the defendant commit the crime on some other date did not tend to rebut the State's proof that he did commit the crime on July 19.
Plaintiff in error contends that the trial court erred in refusing to give the following instruction offered by him: "The Court instructs the jury that the specific charge in this case is that the defendant on the 22nd day of July, 1943, took indecent liberties with * * * [complaining witness.] If the State fails to prove that such indecent liberties were taken on that day, you are to find the defendant not guilty, irrespective of any alleged acts of misconduct on any other day or any other child." We held in People v. Olroyd,
Plaintiff in error complains that the trial court erred in giving to the jury the following instruction: "The jury are instructed that it is necessary that the time of the offense should be alleged in the indictment, but it is not generally necessary to prove the time as laid. It is enough if some time is proved before the date of the indictment and within the period set by the statute of limitations, which is within eighteen months." One of his objections is that this instruction incorrectly stated the Statute of Limitations as eighteen months, whereas it should have been three years. It is true the latter part of the instruction as to the Statute of Limitations was incorrect, but that may be rejected as surplusage, as there was no question but what the defendant was charged in the indictment with having taken indecent liberties with a child, which is, of course, a felony and not a misdemeanor, and there was no question involved as to the Statute of Limitations in this case. In People
v. Poindexter,
We have carefully reviewed the record in this case and are of the opinion that the plaintiff has had a fair trial, and in our opinion the evidence was such that the jury could not have drawn any other conclusion from the facts than that the plaintiff in error was guilty as charged in the indictment. The judgment of the trial court is affirmed.
Judgment affirmed. *306