Crosby v. People

• Decision Date: 30 March 1891
• Citation: 27 N.E. 49,137 Ill. 325
• Parties: CROSBY v. PEOPLE.
• Court: Illinois Supreme Court

137 Ill. 325

27 N.E. 49

CROSBY

v.PEOPLE.¹

Supreme Court of Illinois.

March 30, 1891.

Error to circuit court, Peoria county; L. W. JAMES, Judge.

Indictment of William Crosby and Lottie White for assault with intent to murder. Lottie White was acquitted, and Crosby was convicted. He brings error.

Worthington, Page & Brady, for plaintiff in error.

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

SHOPE, J.

Plaintiff in error and another were indicted for an assault with intent to murder one Belle Bennett, in the Peoria circuit court. That a violent assault and battery, at about or after midnight, April 2, 1890, was made upon her by plaintiff in error or his co-defendant, Lottie White, or by both, is practically conceded, and, if it was not, is abundantly proved. There is but little difference in the account given of the assault by the prosecuting witness and the defendants, except as to whether they kicked and stamped upon her. The prosecuting witness was strongly corroborated by the nature and extent of her injuries, while there is palpable conflict between the defendants in their account of what took place, so that the jury were justified in giving credence to her testimony, as they evidently have done, rather than that of defendants.

Complaint is made of the rullings of the circuit court, both in respect of the introduction of evidence, and in giving, modifying, and refusing instructions. It is first said the court erred in refusing to permit plaintiff in error to show by the cross-examination of Bennett that she had been an inmate of houses of prostitution, and was at the time of the assault renting rooms joining her own for the purposes of assignation, etc. It is assumed that this evidence would in some way account for plaintiff in error going there at 12 o'clock at night, when he would not, as it is said, have gone to the room of a virtuous woman. The evidence was properly excluded. It could not, in any view, tend to show why plaintiff in error would go to Bennett's room to assault her when he would not have gone elsewhere to assault another, against whom he had, or thought he had, the same provocation, and upon whom the assault could be made with like impunity. However amenable to the law the Bennett woman may have been, that furnished neither provocation, justification, nor excuse for the assault.

It is next objected that the court erred in refusing to permit Belle Bennett to be contradicted. She had sworn that she had no personal acquaintance with Crosby, and had never spoken to him but once, when he came to her room to borrow a glass. The witness Orlando Warner testified, without objection, that he had been in Bennett's room three or four evenings before the difficulty took place, with a gentleman named Brady and plaintiff in error. The question was then put: ‘Just tell what you did there,’ which was objected to, and the objection sustained. The witness then testified: ‘I know of my own knowledge that Belle Bennett was personally acquainted with the defendant before the occurrence of this difficulty. He has been in her room several times.’ It is not perceived how it could become important to know precisely what was done or said on the occasion referred to by the witness. The point upon which she was sought to be contradicted was whether she had met and was acquainted with Crosby. To this the witness testified fully. The ruling was not prejudicial error.

On the trial the people produced as a witness Mr. Fash, captain of the police, who testified that he had a conversation with Lottie White the night of her arrest, April 4, 1890, and that she then said that she did not do the work; that Crosby did it. The witness then asked her why she did not make an outcry to warn people, if she did not do the work, and she replied she was afraid of her own life. A motion was made on behalf of plaintiff in error to exclude these declarations, whereupon the court ruled: ‘The testimony is only competent so far as Lottie White is concerned. It will be excluded as against everybody but Lottie White;’ and the state's attorney also said it was only offered as against Lottie White. It must be presumed that the jurymen were of average and ordinary intelligence, and that they would not consider evidence as tending to show guilt upon the part of Crosby, which both the court and state's attorney directed should be considered only as to his co-defendant, Lottie White. It is, however, said that this ruling becomes important in view of the refusal of the court to permit Crosby to prove by witness Simpson the declarations of Lottie White, made directly after the affray. By looking into the abstract it will be seen that these declarations were excluded upon the objection of Lottie White, the co-defendant, and not under the objection of the people. This ruling might be error of which the people might justly complain as being prejudicial to their case against Lottie White, but the declarations of Lottie White made after the affray and after arrest were not competent evidence for Crosby, whether they tended to implicate her or to excuse him.

The defense introduced evidence tending to show that the occasion of Crosby and Lottie White going to the room of the Bennett woman was that she, Bennett, had written letters to Crosby's wife, in which were intimations, at least, of improper conduct between Crosby and Lottie White, and counsel say: ‘That the sole object of Crosby's going to her room the night of the difficulty was to call her to account for it, and to induce her to quit writing such letters;’ and as preliminary proof it is said it was necessary to prove the contents of these letters, either by producing them, or, if unable to produce them, by proving their contents. A witness was called for this purpose, and, upon objection being made, the evidence was held to be incompetent. Crosby testifies that when Bennett came to her door, he first asked her why she had been writing letters to his wife, and that she replied because she had a right to. Both Bennett and White contradict Crosby in this, but, conceding his testimony is to be received as the basis for its reception, we are of opinion that the evidence is wholly incompetent. It is true that if the defendant was on trial for murder, and possibly in this case, the evidence that the letters had been written to his wife imputing such misconduct might have become competent as tending to show a motive for the assault; not in justification or excuse, but as denoting previous provocation or ill will; which, if passion had time to cool, might degenerate into deliberate malice. Indeed, if the testimony of White is to be credited, the fact of such letters having been received by the wife of Crosby was the provocation for visiting Bennett's room, and inducing in the mind of Crosby such hatred and ill will to wards Bennett as that he proposed calling her from the quiet of her room into the dark hallway at the hour of midnight, and, in the language of the witness, ‘licking her.’ The evidence of the witness Hutchins, produced by defendant Crosby, is to the effect that Crosby and White were in his saloon, drinking, until near 12 o'clock; that at the last time he served them, just before they went out, Lottie said to Crosby, ‘Let us go lick this woman.’ It is manifest from this proof that both White and Crosby were actuated by malice, superinduced by the writing of letters by Bennett to Crosby's wife, as they supposed, assumed to implicate them in improper conduct. The production of letters or proof of their contents could only have been offered for the purpose of justifying or excusing such malice and ill-will. It is clear from the testimony that Crosby knew of these letters some time before the assault, and, if it could be conceded that they were otherwise sufficient provocation to reduce the killing from murder to manslaughter if death had ensued from the battery, they were not that sudden provocation requiredby the law to mitigate the killing. If, as testified to by Crosby, when asked why she had written them Bennett replied ‘because she had a right to,’ this would be no justification for the assault. The rule is well settled that no words or gestures, however provoking or insulting, can amount to that considerable provocation which the law recognizes as necessary to reduce the killing from murder to manslaughter. Nor, as it seems to be supposed by counsel, would these words, coupled with the letters previously written, have been any sufficient provocation in law to reduce the killing from murder to manslaughter, had death ensued. In cases of voluntary manslaughter there must be serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing; and the killing must be the result of that sudden, violent impulse of passion supposed to be irresistible. It is too clear for argument that defendants went to the room of Bennett for the purpose of avenging the injury that she had inflicted upon them by letters they assumed, whether true or false, that she had written to Crosby's wife, and in pursuance of such purpose committed the assault. It seems idle to contend that the production of the letters, or the proving of their contents, showing that she had in fact written them, and made charges therein implicating the defendants in improper intimacy, could have done more than have fixed upon the defendants the malicious purpose of their visit and assault.

In prosecutions of this character the specific intent charged is the gist of the offense; and it must be such an assault that, if death ensues, it is murder. It, however, by no means follows that in every case where the killing would be murder if death ensues, an assault with an intent to commit murder, death not ensuing, can be maintained. It is not necessary to a conviction,...