Austin v. People of State

• Decision Date: 28 March 1882
• Parties: FRANK AUSTINv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

102 Ill. 261

1882 WL 10220 (Ill.)

FRANK AUSTIN

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Springfield Mar. 28, 1882.

WRIT OF ERROR to the Circuit Court of Adams county; the Hon. JOHN H. WILLIAMS, Judge, presiding.

Messrs. SCOFIELD & SCOFIELD, and Messrs. EWING & HAMILTON, for the plaintiff in error.

Mr. JAMES MCCARTNEY, Attorney General, for the People.

Mr. JUSTICE DICKEY delivered the opinion of the Court:

Austin was convicted in the circuit court of the county of Adams, upon an indictment charging him with the crime of rape. The indictment was found in the circuit court of the county of Hancock, and the cause was removed to Adams county, by change of venue. We have carefully examined and considered all the proofs given upon the trial, and they fail to convince us of the truth of the charge. It may be that if the cause had been properly submitted to the jury, we might not feel compelled to disturb the conviction on merely a consideration of the evidence, but the record shows what we regard as manifest error, which may have seriously affected the result of the trial.

On the trial the accused did not testify. In the opening argument to the jury by the State's attorney of Adams county, he, among other things, said to the jury: “There are only two persons in this wide world who absolutely know whether the offence charged has been committed--the prosecuting witness and the defendant. She swears positively that the crime was committed, and the defendant has not testified on this trial, although”-- At this point his remarks were interrupted by an objection interposed by counsel for the accused. The court said to the State's attorney, “It is not proper for you to allude to the fact that the defendant has not testified in the case,” and that attorney made no further allusion to that fact in his argument.

After argument in behalf of the accused, in which Mr. Scofield took part, the closing argument was made by Mr. Mason, the State's attorney of the county of Hancock, who assisted the State's attorney of the county of Adams in the conduct of the prosecution. In that closing argument Mr. Mason, among other things, said: “Mr. Scofield, in his argument for the defendant, has quoted to you the maxim of Lord HALE, to the effect that rape is a crime easily charged, hard to be proven, and more difficult to be defended, and has pressed it home to the minds of the jury with much amplification and great force of reason. This was once a very celebrated maxim, and no doubt a very just one. But the letter of the law and the spirit of the law have undergone great change. In the time of Lord HALE rape was a crime easily to be charged and hard to be defended, for the very reason the nature of the crime was such that in all human probability it would be committed out of the presence of all persons except the defendant and the prosecutrix. By policy of the common law, the mouth of the defendant was sealed during the trial. This is no longer the case in our State. The defendant now has a right to give his version of the affair. Since the legislature passed a statute giving the defendant in criminal cases the right to testify in his own behalf, it can no longer be said as a maxim of law that rape is a crime hard to be defended. So far as the spirit of law is now fixed by a statute, I know of no crime on the statute book the charge of which is more easily to be defended against than the crime of rape.”

To these statements of Mr. Mason, at the time they were made, the defendant objected, but the court overruled the objection, and permitted the statements to go to the jury,--to which ruling of the court ...