Bolen v. People

• Court: Illinois Supreme Court
• Writing for the Court: PHILLIPS
• Citation: Bolen v. People, 184 Ill. 338, 56 N.E. 408 (Ill. 1900)
• Decision Date: 19 February 1900
• Parties: BOLEN v. PEOPLE.

184 Ill. 338

56 N.E. 408

BOLEN

v.PEOPLE.

Supreme Court of Illinois.

Feb. 19, 1900.

Error to circuit court, Ogle county; James S. Baume, Judge.

John D. Bolen was convicted of incest, and he brings error. Affirmed.Francis Bacon, for plaintiff in error.

S. W. Crowell, State's Atty., J. C. Seyster, Special Counsel, and E. C. Akin, Atty. Gen. (C. A. Hill and B. D. Monroe, of counsel), for the People.

PHILLIPS, J.

Plaintiff in error was indicted and convicted of the crime of incest, in having illicit intercourse with his own daughter, a girl 15 years of age. The evidence shows that the arrest of the defendant was made on the same day that the prosecutrix alleges that the offense was committed. The evidence is conflicting; the prosecutrix swearing to the commission of the act, and the defendant denying it. Some additional evidence was heard, and the jury found the defendant guilty, and he was sentenced to imprisonment in the penitentiary under the indeterminate sentence act. The defendant sues out this writ of error, and urges that the court erred in not quashing the first court of the indictment, under which the conviction was had, because it is not averred therein that the act was feloniously committed, or that it was knowingly committed.

The first count of the indictment is exceedingly inartificially drawn, containing much surplusage, but it sufficiently states and charges the defendant with being guilty of the crime of incest, in the language of the statute. Every indictment found by a grand jury shall be deemed sufficiently technical and correct which alleges and charges the offense in the language of the statute creating the offense, or so charges the offense that it may be understood by the jury. This has been so frequently announced by this court that it is almost unnecessary to cite authorities. The last announcement made by this court of this rule is in Graham v. People, 181 Ill. 477, 55 N. E. 179, where unmerous authorities are cited. The contention that the indictment must state that the offense was feloniously and knowingly committed cannot be sustained. Incest is a statutory offense, and not indictable otherwise.[184 Ill. 340]4 Bl. Comm. 64; 1 Bish. Cr. Law, § 502. The rule, however, would be different where the offense was a felony at common law. Ervington v. People, 181 Ill. 408, 54 N. E. 981.

On the trial the defendant entered a motion to restrict the people to the list of witnesses indorsed on the indictment. This motion was overruled, and witnesses not indorsed on the indictment were permitted to be called, sworn, and to testify. It is not error to overrule a motion to restrict the people to the list of witnesses indorsed on the indictment, nor to allow witnesses not indorsed on the indictment to be called to testify in the case. This is a matter resting in the sound discretion of the court, and cannot be assigned for error. Gates v. People, 14 Ill. 433;Gardner v. People, 3 Scam. 83;Perteet v. People, 70 Ill. 171;Smith v. People, 74 Ill. 144;Logg v. People, 92 Ill. 598;Bulliner v. People, 95 Ill. 394;Andrews v. People, 117 Ill. 195, 7 N. E. 265;Gore v. People, 162 Ill. 259, 44 N. E. 500. In overruling the motion to restrict the people to the list of witnesses indorsed on the indictment, and in permitting others to be called and to testify, there was no error.

It is next insisted that the court erred in refusing to inform the prosecuting witness that she need not answer questions put to her, if such answers would criminate her, or add a link in the chain of evidence to convict her of any crime. A witness is not bound to answer questions which may form an essential link in the chain of evidence which will be sufficient to convict him of a crime. This right to refuse to answer questions which will criminate him is a privilege of which the witness may avail himself, or he may waive it. The right to claim the privilege is one resting with the witness alone, and his failure to claim his privilege cannot inure to the benefit of the defendant in a case, and is no ground for complaint by him. The right exists with the witness to inquire of the court the extent of his right to refuse, and, when such inquiry is made by the witness, it is the duty of the court to informhim as to the extent of his rights and privilege; but it is not a matter which in any manner concerns the defendant or his counsel, and he has no right to assign error for the same.

It is next urged that the court erred in admitting the evidence of Daniel Stover and Joanna Bolen....