Janzen v. People

• Decision Date: 20 January 1896
• Citation: 159 Ill. 440,42 N.E. 862
• Parties: JANZEN v. PEOPLE.
• Court: Illinois Supreme Court

159 Ill. 440

42 N.E. 862

JANZEN

v.PEOPLE.

Supreme Court of Illinois.

Jan. 20, 1896.

Error to circuit court, Stephenson county; James Shaw, Judge.

Ebbert Janzen was convicted of the crime of rape, and brings error. Reversed.

H. C. Burchard, for plaintiff in error.

M. T. Moloney, Atty. Gen., for the People.

CRAIG, C. J.

This was an indictment in the circuit court of Stephenson county against Ebbert Janzen, plaintiff in error, for rape alleged to have been committed on or about the 1st day of May, 1894, upon the person of Mary Janzen, a daughter of the defendant, who at the time the offense was committed was under the age of 14 years. On a trial before a jury, the defendant was found guilty as charged in the indictment, and his term of imprisonment was fixed at six years in the penitentiary. The court overruled a motion for a new trial, and entered judgment on the verdict, to reverse which the defendant sued out this writ of error.

It is first claimed by counsel for defendant that the court erred in the admission of improper evidence; and under this head it is said the prosecution was permitted to introduce evidence that another offense was committed by the defendant on the person of another daughter subsequent to the one charged in the indictment. Upon looking into the record it appears that Yetta Janzen, a sister of the prosecuting witness, was called and testified on behalf of the people, and from her evidence it appeared that she had been absent from home about three years living with a family named Clipping, who resided some five miles from the defendant. Upon cross-examination of the witness the following occurred: Counsel for defense stated that he desired to show that the witness had become displeased with her father because as she did not have as good a home with him as she had at Clipping's. By the Court: ‘You may show that briefly, but not go into details.’ ‘Q. You did not want to stay at home did you, Yetta? A. No, sir. Q. Did your father want you to stay at home? A. Yes, sir.’ After this evidence was called out by the defendant, the court, over the objection of the defendant, permitted the witness on behalf of the people to testify as follows: ‘He tried to use me in a bad way in bed. First he was in another bed, and afterwards he came into my bed. The boys and Mary were outdoors. This was about 5 o'clock in the morning. After he got into bed, he took hold of my arms, and got on top of me. He unbuttoned my drawers, and put his private parts between my legs. I hollered, ‘Ouch.’ I hollered more than once,-not very loud. When I got up and went outdoors, I found half a dozen men there.' The evidence was admitted, as stated by the court, for the purpose of showing why the witness Yetta left home, and the jury were told by the court that the evidence was not admissible for the purpose of showing that defendant had committed a crime on the girl Yetta, and they should not consider it for that purpose. The defendant testified as a witness in his own behalf, and in cross-examination admitted that he was in bed with the girl Yetta on the morning of May 15th, the day he was arrested, but he testified that he did nothing to the girl; and in rebuttal the court, over the objection of the defendant, permitted three witnesses to testify that on the morning of May 15th they were in the defendant's home, and saw the defendant in bed with Yetta Janzen in the act of criminal sexual intercourse with her. This evidence was admitted by the court, as stated at the time, on the following ground: The Court: ‘I wish to state that this evidence is admitted because the defendant, in his examination, testified that he had gone into this room and got into the bed with this girl, but had done nothing else. If it was material and competent for him to testify as to that matter, I think it is proper that the prosecution should be permitted to contradict it, and for that purpose I admit it in evidence, and the jury will understand that they are not hearing it for the purpose of trying this defendant for any crime committed on Yetta, but simply for the purpose of contradicting his own testimony.’ If the evidence of the girl Yetta and of the three other witnesses in regard to what occurred on the morning of May 15th proves anything, the evidence proves the defendant guilty of a rape on the person of Yetta Janzen, an offense for which the defendant was not indicted, and for which he was never put upon trial; and the question presented is whether the admission of evidence which proves the defendant guilty of a crime not charged in the indictment is error for which the judgment should be reversed. In 2...