Austine v. People of State
| Decision Date | 13 June 1884 |
| Citation | 110 Ill. 248,1884 WL 9878 |
| Parties | NATHANIEL J. AUSTINEv.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.
Messrs. MCKENZIE & CALKINS, for the plaintiff in error.
Mr. J. J. TUNNICLIFF, State's Attorney, and Mr. JAMES MCCARTNEY, Attorney General, for the People.
The plaintiff in error was indicted for the crime of rape upon one Permelia Slutz. Upon trial he was convicted of an assault with intent to commit rape, and sentenced to the penitentiary for the term of three years.
Before the case was called for trial, the plaintiff in error moved the court to continue the cause until the next term, supporting the motion by his affidavit. The court overruled the motion, and this ruling presents the first question for our consideration. The affidavit shows that Permelia Slutz, the prosecutrix, is the principal witness on behalf of the prosecution; that she will testify, on the trial, that the defendant committed a rape upon her upon two different occasions, giving time and place; that this evidence will be false; that the defendant is not guilty as charged in the indictment, and the prosecution of the case by the prosecutrix is purely for blackmail. Diligence is then shown in procuring the attendance of a witness, whose name is given, and who is a resident of the county, by whom he can prove that at a time named, subsequent to that when the last rape is alleged to have been committed, in a conversation which he then had with the prosecutrix, she told him, voluntarily, “that the defendant never used any force or violence on the occasions the said prosecuting witness will testify as having been raped and assaulted by the defendant, and that the defendant never committed the crime of rape upon her, as charged,” but his only offence was soliciting her to commit adultery, which she refused to do. The absence of the witness beyond the limits of the State without his procurement or consent, his inability to procure his attendance at that term of court, and his ability to procure his attendance at the next term of court, are then shown; and it concludes by stating that he knows of no other witness by whom this proof can be made, and that the affidavit is not made for delay, etc.
If authority be needed upon so obvious a proposition as that the prosecutrix, in a case like this, may be contradicted by showing that she has made statements, not under oath, inconsistent with her evidence, and that the question of her credibility is then a question for the jury, it will be found in Kennedy v. The People, 44 Ill. 283.
The only objection urged against the sufficiency of this affidavit is, that it does not state that the prosecutrix will, in giving her evidence, deny that she made the statement to which the absent witness will testify. We do not think this was essential. The matters to which the affidavit shows the prosecutrix and the absent witness will testify, are directly contrary to each other. Both can not be true, and it is not, therefore, to be presumed that the prosecutrix would admit the matters to which the affidavit alleges the absent witness will testify. Whether she would do so or not, so far as appears by the affidavit, was, when it was made, undisclosed, and rested entirely in her breast. How could the defendant testify to a future, undisclosed intention of the prosecutrix? Her intention to testify in regard to the alleged commission of a rape, the record shows was disclosed in a preliminary trial before a justice of the peace, and probably before the grand jury, and was therefore properly embodied in the affidavit. But this can not be said as to her testimony in regard to a subsequent admission contradictory of that testimony, unless it affirmatively appears her intention with regard to her testimony in that respect has been disclosed. An affidavit of this kind is...
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People v. Davis
...jury determined, and we believe properly, that the acts were against her will, People v. Eccarius, 305 Ill. 62, 136 N.E. 651; Austine v. People, 110 Ill. 248, and that the defendant was guilty beyond a reasonable doubt of forcible and statutory The defendant urges that his age was not prove......
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...from human help that an outcry might be unavailing, there need be no outcry. People v. Silva, 405 Ill. 158, 89 N.E.2d 800; Austine v. People, 110 Ill. 248. From our review of the evidence in the instant case, it is undisputed that the prosecutrix at no time made any outcry or attempt to esc......
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... ... [13 N.E.2d 977]Wm. Scott Stewart, of Chicago, for plaintiff in error.Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and A. B. Dennis, of Danville (Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, Blair L. Varnes, and Leslie V. Curtis, all ... Austine v. People, 110 Ill. 248. The jury was likewise justified in determining that penetration had occurred, at least to a certain extent. To sustain a ... ...
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