Ackerson v. People

• Decision Date: 09 May 1888
• Citation: 16 N.E. 847,124 Ill. 563
• Parties: ACKERSON v. PEOPLE.
• Court: Illinois Supreme Court

124 Ill. 563

16 N.E. 847

ACKERSON

v.PEOPLE.

Supreme Court of Illinois.

May 9, 1888.

Error to criminal court of Cook county.

Indictment for rape.

E. C. Miles, (Mills & Ingham, of counsel,) for plaintiff in error.

George Hunt, Atty. Gen., for the People.

SHOPE, J.

Lyman Ackerson, plaintiff in error, was jointly indicted and tried with John Knorp and Emil T. Gehrig for the rape of Mary Cottei. Knorp was acquitted. Ackerson and Gehrig were convicted, and the punishment fixed at eight years in the penitentiary, severally. A motion for new trial was sustained as to Gehrig, but overruled as to Ackerson, and sentence entered on the verdict. The corpus delicti was clearly and satisfactorily established, leaving no doubt that the prosecutrix was ravished at the time and place stated by her. The offense was committed near Thirty-Second and Dashiel streets, in the city of Chicago, between half-past 8 and 10 o'clock of the night of Tuesday, August 9, 1887. The prosecutrix was on the street in company with two young men, Neumann and Pick, when they were approached by three men, one of whom arrested Neumann, took him two or three blocks away, and after kicking him, and telling him not to be seen on the corners again, let him go. Another attempted to arrest Pick, who escaped and ran away; and the third, whom the prosecutrix identified as the defendant Gehrig, arrested her and took her to a shanty on the prairie near by, and attempted to ravish her. Upon her resisting, Gehrig, as she says, whistled, and two men came and threw her on the ground, two holding her, while the other ravished her. She was ravished by each of them. After being released, she immediately made complaint, and examination of her person and clothing fully corroborated her in respect to the force employed. The case, in its facts, turns wholly upon the question of the identification of the prisoner as one of the three engaged in the perpetration of the crime. The defendant Ackerson interposed the defense of alibi. The two boys, Neumann and Pick, while they fully corroborate the prosecutrix in every substantial particular up to and including the pretended arrest, are unable to identify or describe either of the three men. The defendant Ackerson, on the evening in question, was employed as a watchman, in new buildings then in process of construction at the corner of Thirty-Second street and Lowe avenue. He testifies he went on duty about 5 o'clock P. M., and remained there with Knorp until about 8 o'clock, and leaving Knorp in charge, then went to the corner of Emerald avenue and Thirty-First street, where he remained about an hour and a half or two hours. The new building fronts on Thirty-Second street, and diagonally across that street was the shed or shanty to which prosecutrix was taken. From Thirty-Second street to Thirty-Third street it was open prairie. It appears that the prosecutrix was on Thirty-Second street, between Lowe avenue and Dashiel street, at the time of her pretended arrest. The first street west of Lowe avenue is Dashiel street; the next west of that is Emerald avenue; so that it is apparent, taking the defendant's statements as true as to his whereabouts, he was at no time more than two or three blocks away from the scene of the crime. He went to the corner of Thirty-First street and Emerald avenue, as he says, to meet a friend, and failed to find him, but gives the names of four persons whom he met there, only one of whom, Agnes Clark, is produced as a witness. She testified she met the defendant there, about 10 minutes after 9 o'clock, and was with him about 8 minutes. She is not definite as to the time of night or the length of time she was with accused. So, on the other hand, the assault on the prosecutrix may, from the evidence, have occurred at any time between half-past 8 and 10 o'clock. It was after 10 o'clock, but not 11, when she arrived at her home. The length of time consumed in the perpetration of the offense is not given. She testifies that it was 10 or 15 minutes after the men left her before she was able to rise; that she then started home. She soon received help, and was promptly taken to her home, a few blocks away. It is manifest that the testimony of the witness Clark falls short of establishing an alibi. Nor can it be seen how it tends to corroborate the accused, except as to the material fact that, for eight minutes out of the hour and a half in which the crime might have been committed, he was three or four blocks away from the place of its commission. No other evidence, save that of the defendant, is found in the record tending to establish that defense. The defendant denied participation in the crime, and stated that he left the new buildings about 8 o'clock; was at the corner of Thirty-First street and Emerald avenue with Frank McAllister, who was not produced as a witness, for, as he thinks, an hour and a half, and in that vicinity probably a half hour longer with Agnes and Kitty Clark. No review of his evidence, which is in substance the foregoing, will be necessary. It was shown that at the preliminary examination he testified in his own behalf, and there stated that he was gone away from the new buildings, where he was watchman, about three-quarters of an hour, and then came back, and he and Knorp remained there together all night.

The burden of making good the defense of alibi is upon the accused, and to make it availing he must establish such facts and circumstances, clearly sustaining that defense, as will be sufficient, when considered in connection with all the other evidence in the case, to create in the minds of the jury a reasonable doubt of the truth of the charge against him. 2 Bish. Crim. Proc. §§ 29–32; Mullins v. People, 110 Ill. 45. The identification of the accused by the prosecutrix is positive and unhesitating. She swears that he was the larger man of the three,—the large man ‘with the heavy mustache,’ who was the second to ravish her. It is shown there were lights at the street intersections where she was first assaulted. She next saw the accused on the following night about half-past 10 o'clock. She went with an officer to the vicinity of the crime. A rain came on, and they took shelter in the new buildings before mentioned. Presently Ackerson and a man by the name of Overne came in. She was first asked if she knew Overne, and replied she did not, but at once recognized Ackerson as one of the men who had assaulted her. It is perhaps singular that at the instant her attention was directed to Ackerson there should have been a flash of lightning, giving her a perfect view of him; but she is fully corroborated in that respect by the officer, and contradicted by no one. She again recognized him at the station, and again on the trial. The jury saw both the defendant and prosecutrix, heard them testify, had opportunity of observing the prosecutrix under the rigid cross-examination to which she was subjected, and, in view of the whole evidence, have believed her, and we are unable to say they were not justified in so doing. We are not, therefore, warranted in interposing for that cause. It is properly said that the case is extremely close in its facts; the crime charged in itself is calculated to arouse indignation in the mind of a jury, especially where its commission is attended with circumstances of peculiar cruelty and atrocity, as was here shown; that the law should be given with accuracy, and nothing permitted to reach the jury that would have a tendency to improperly prejudice them against the defendant. It is insisted that the court erred in the following instructions given on behalf of the people: ‘(2) The court instructs the jury, as a matter of law, that where the people make out such a case as would sustain a verdict of guilty, and the defendant offers evidence, the burden is on him to make out that defense; and as to an alibi, and all other like defenses that tend merely to cast a reasonable doubt on the case made by the people, when the proof is in, then the primary question is, (the whole evidence being considered, both that given for the defendant and for the people,) is the defendant guilty beyond a reasonable doubt?—the law being that when the jury have considered all the evidence, as well that touching the question of the alibi as the criminating evidence introduced by the prosecution, then, if they have any reasonable doubt of the guilt of the accused of the offense with which he stands charged, they should acquit, otherwise not.’ The vice of this instruction is said to be that it casts discredit on the defense of alibi, and that ‘its effect was to impress the jury that in the opinion of the court the state had made out a case that would sustain a verdict of guilty.’ The instruction is not properly subject to the criticism made. There is nothing in the instruction from which an inference as to the opinion of the court could be drawn. In respect to the other objection it must be said that it is not true, as a general or legal proposition, that the defense of the alibi ‘tends merely to cast a reasonable doubt upon the case made by the people.’ That may and will, in many cases, be the only effect of the evidence produced to sustain it, but the defense controverts the guilt of the defendant, and, if certainly and satisfactorily established, would be conclusive of the defendant's innocence. While, in theory, it does not deny that the crime has been committed, it asserts that the defendant, during the whole of the time in which the crime is shown to have been committed, was so far removed from the place of its commission that he could not have participated in its perpetration. Miller v. People, 39 Ill. 464. But it is not seen how the defendant could have been prejudiced by this instruction. The jury are expressly told by it, as well as by the fourth, given for the defendant, that if the evidence of an alibi, when considered in connection with the criminating...