151 N.E. 507 | Ill. | 1926
Joseph Okopske was indicted at the March, 1925, term of the criminal court of Cook county for the rape of Genevieve Petrey. A jury trial resulted in a verdict finding him guilty and fixing his punishment at ten years in the penitentiary. Motions for a new trial and in arrest of judgment were made and overruled and judgment was rendered and sentence imposed. He seeks a review by this writ of error.
Okopske was a widower, fifty-five years of age. He had three children, Victoria, Stella and Simon, respectively seventeen, thirteen and eleven years of age, and resided with them in the basement of a flat-building at 2936 South Throop street, in the city of Chicago. He was the owner of the property. Genevieve Petrey, the prosecutrix, fourteen years of age, lived with her parents and brother on the third floor of the same building. Her sister, Margaret Moore, lived on the second floor with her husband and two children. Genevieve often visited Stella Okopske and occasionally assisted her in doing the housework.
The prosecutrix testified substantially as follows: On the morning of February 4, 1925, shortly after 8:30 o'clock, she started for school. When she reached the bottom of the rear stairway she stopped to ascertain whether Victoria, Okopske's older daughter, who had been ill the evening before *34 as the result of a vaccination, was going to work. She rapped on the door, and, no one responding, turned to leave, when she met Okopske and inquired of him whether Victoria was at home. He answered that he did not know but invited her to enter and ascertain whether his daughter was present. Upon looking about the rooms the prosecutrix failed to find Victoria and so informed Okopske. She then remarked that she would have to hurry on to school or be late. Okopske replied, "Don't go to school; you are late now; if you go now your mother will see you go and she will wonder what has kept you so long," and he would not permit her to leave. She then did certain housework for him, after which he put her on a couch and ravished her. Protesting, she stated she would tell her father, to which he replied that he would shoot her if she did. She read a book the rest of the forenoon and then returned to her home up-stairs. In the evening her mother upbraided Okopske for permitting the prosecutrix to remain in his home during the forenoon, and when her mother slapped her in his presence, he remarked that she, the mother, should not have done so because it was his fault. Over objection the prosecutrix was permitted to testify to other acts of intercourse, one in November of the previous year, another about a month later, and a third still later. The prosecutrix testified that she made no outcry, and that although her mother knew that she had visited Okopske's home on the morning of the 4th of February she did not inform her what happened until two days later.
Dr. Daniel E. Meaney examined Miss Petrey on the 6th or 7th of February. He testified that in his opinion the vaginal opening had been penetrated, although there was no raw surface or indication of recent tearing and that he found no infection. Margaret Moore testified that the prosecutrix was not married. Ellen T. Hessell, the police officer who arrested Okopske, testified that in answering certain questions he admitted that the prosecutrix *35 had been in his home; that he had patted her on the shoulder and embraced her; that on several occasions he had given her small sums of money to attend shows and amusements but denied that he had committed the offense charged.
On the defense, Stella Okopske testified that she came home from school, which was a half-block distant, at recess, about ten o'clock in the forenoon on the 4th day of February; that she unlocked the door, entered and found her father asleep, and there was no other person in the house; that she went back to school and returned home again at half-past eleven o'clock and found her father still asleep; that she woke him and they had lunch, and that he went to work in the afternoon. Simon Okopske testified that he accompanied his sister Stella home from school twice during the forenoon of the day in question; that he found his father asleep, and that there was no other person in their home at either hour.
Okopske, the plaintiff in error, denied that he was guilty of the charge made against him. He admitted that the prosecutrix called at his home on the morning of the 4th day of February and that he asked her why she did not go to school. She answered that she had no school that day. He then asked her if she would remain while he went to the butcher shop, and she assented. Upon his return he told her that she might go or stay, as she desired, for she was often present in his home. He retired to sleep and awoke at 11:30 o'clock, when his daughter returned from school. He then had lunch and went to work. He admitted that he had given the prosecutrix five dollars at Christmas, but said that it was done because her parents had made gifts to his children.
Anton Nowecki testified that he conducted a grocery store about five doors from Okopske's home; that he had seen him two or three times a day for four years; that he knew his general reputation for chastity in the neighborhood *36 of his residence prior to the indictment and that it was good. On cross-examination the witness admitted that he had not discussed that reputation with anybody, and on motion of the State's attorney the testimony was stricken and the jury was instructed to disregard it. The plaintiff in error then tendered nine witnesses, among them his employer for nearly ten years, all of whom were ready to testify that they knew Okopske's general reputation for chastity in his neighborhood before he was indicted on the instant charge and that that reputation was good. None of these witnesses, it was admitted, had discussed Okopske's reputation with any person, and on objection by the State the trial court refused to permit them to testify.
Numerous errors are assigned but only four questions are argued. They are, (1) that there is no evidence to support the necessary allegation that the parties were not married to each other; (2) that the trial court erred in admitting the testimony of the police officer without a preliminary examination concerning its admissibility; (3) that the testimony of the character witnesses was erroneously excluded; and (4) that there is, on the evidence, a reasonable doubt of the guilt of the plaintiff in error.
It is alleged in the second count of the indictment that the prosecutrix was not the wife of the plaintiff in error. Such an allegation in a count charging rape without force is material and necessary. (People v. Kingcannon,
Preliminary proof of the voluntary character of the admissions to which the police officer testified, it is contended, *37
was necessary because those admissions amounted to a confession. Wigmore in his work on Evidence (2d ed. sec. 821) says: "A confession is an acknowledgment, in express words, by the accused in a criminal case, of the truth of the guilty fact charged or of some essential part of it." A confession implies that the matter confessed constitutes a crime. An acknowledgment of facts merely tending to establish guilt is not a confession but only an incriminating admission, which may be made without any intention to confess guilt. (People v. Kircher,
The nine witnesses tendered by the plaintiff in error were ready to testify that they knew his general reputation for chastity in the neighborhood of his residence prior to his indictment and that it was good. These witnesses were not permitted to testify because they had not discussed that reputation. Evidence of the character here rejected was held competent in Gifford v. People,
The remaining contention is that, upon the evidence, a reasonable doubt of the guilt of the plaintiff in error arises. The cause must be tried again and it is therefore unnecessary to consider that question.
The judgment is reversed and the cause is remanded to the criminal court of Cook county.
Reversed and remanded. *39