Cunningham v. People
| Decision Date | 23 June 1904 |
| Citation | 210 Ill. 410,71 N.E. 389 |
| Parties | CUNNINGHAM v. PEOPLE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; Theodore Brentano, Judge.
George Cunningham was convicted of rape, and he brings error. Reversed.Harry L. Strohm and Ossian Cameron, for plaintiff in error.
H. J. Hamlin, Atty. Gen., and Chas. S. Deneen, State's Atty., for the People.
The grand jury of Cook county, on the 28th day of May, 1903, returned an indictment into the criminal court of said county charging George Cunningham with having committed the crime of rape upon one Irene Callahan, a female child under the age of 14 years. The defendant was arraigned and pleaded not guilty, and upon a trial was convicted, and sentenced to the penitentiary for the period of 10 years.
The prosecutrix testified she was 12 years of age; that she resided with her mother at 5221 Lake avenue, Chicago; that the defendant had a room upon the sixth floor of the Monroe building, a flat building located at Nos. 5513-5535 Monroe avenue; that she had formerly resided with her mother upon the third floor of said building; that on the afternoon of April 16, 1903, she went to the Monroe building, and in company with Alice Burke, an acquaintance, 13 years of age, who temporarily resided in said building, went to the room of the defendant; that they talked with the defendant, looked at some picture books for a time, and then left the room; that on her way out of the building she met another acquaintance by the name of Irene, whose last name she did not know; that she and said girl left Alice Burke, and returned to the defendant's room, where they remained a short time; that as they were leaving the room the defendant asked her to return at 5 o'clock; that she returned at that hour, when she found the defendant alone; that the defendant laid a comforter over a reclining chair in the room, placed her upon the chair, and had connection with her; that she was not afraid; that it hurt her, and she cried out to stop three times; that she then went home; that she said nothing to her mother as to what had occurred at the defendant's room.
Mrs. E. A. Parks, a probation officer of the juvenile court of Chicago, testified Irene Callahan made complaint to her about three weeks after said occurrence. Upon cross-examination she said: ‘
Dr. James W. Walker, a physician, testified that on May 15th he made an examination of the private parts of Irene Callahan. On cross-examination he said:
No further evidence was introduced upon behalf of the people.
Three apparently reputable witnesses testified the prosecutrix's reputation for truth and veracity was bad, and that they would not believe her under oath; while twelve equally credible witnesses testified they knew the defendant's reputation for chastity and good morals, and that it was good.
The defendant, who was a witness in his own behalf, denied that Irene Callahan was ever in his room with him alone, or that she was there with Alice Burke, or that he had ever had connection with her, or that he ever attempted to have connection with her, or solicited her to have connection with him.
Alice Burke testified she was not allowed to associate with Irene Callahan, and denied that she was ever in defendant's room with her.
HAND, J. (after stating the facts).
It is first assigned as error that the verdict and judgment are not supported by the evidence. The verdict and judgment rest entirely upon the testimony of the prosecutrix. The prosecution sought to corroborate the testimony of the prosecutrix by proof that she made complaint to Mrs. Parks. The statement to Mrs. Parks was made some three weeks after the offense was alleged to have been committed, and was made in reply to questions propounded to the prosecutrix by Mrs. Parks. While it is proper, in prosecutions of the character of this, to prove that the prosecutrix made complaint, such complaint is not received as the admissions of the prosecutrix as to what took place at the time of the commission of the offense, but such complaint is admitted upon the theory that the statement of the prosecutrix represents the spontaneous expression of her outraged feelings, and for that reason is admissible in evidence without the sanction of an oath. When the complaint is not made immediately, unless the delay is satisfactorily explained, its value as evidence is much weakened; and when the complaint is made, not as the spontaneous act of the prosecutrix, but in response to questions put to her, as was the case at the time the statement was made by the prosecutrix to Mrs. Parks, the complaint of the prosecutrix assumes the form of a recital of the facts connected with a past transaction, and is in the nature of hearsay evidence, and has but little, if any, probative force as evidence. The testimony of Mrs. Parks shows that within the meaning of the law the statement made to her by the prosecutrix did not amount to a complaint, but was the mere recital, in response to questions put to her by Mrs. Parks, of what she claimed was a past transaction, and was hearsay evidence; and had the objection to the testimony of Mrs. Parks been based upon the ground that she was giving hearsay evidence, instead of upon the ground that the time at which the complaint was made was too remote from the date of the commission of the offense, the statement of Mrs. Parks as to what the prosecutrix said to her in reply to the questions asked the prosecutrix should have been excluded, which would have eliminated from the consideration of the jury substantially all the testimony of Mrs. Parks. In no event can it be said the testimony of Mrs. Parks corroborated or tended to corroborate the testimony of the prosecutrix upon the main charge.
The testimony of Dr. Walker is in direct conflict with the testimony of the prosecutrix, and, instead of being in corroboration of her testimony, is in conflict therewith; and the...
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