Donovan v. People

• Decision Date: 23 June 1905
• Citation: 215 Ill. 520,74 N.E. 772
• Parties: DONOVAN v. PEOPLE.
• Court: Illinois Supreme Court

215 Ill. 520

74 N.E. 772

DONOVAN

v.PEOPLE.

Supreme Court of Illinois.

June 23, 1905.

Error to Circuit Court, Lee County; R. S. Farrand, Judge.

John Donovan was convicted of intent to commit rape, and he brings error. Reversed.

The third instruction referred to in the opinion as given was as follows:

‘The court instructs the jury that if you are satisfied beyond a reasonable doubt from the evidence that the defendant, John Donovan, induced the prosecuting witness, Mrs. Hill, to enter his buggy under the inducement that he would take her home, and that after he got her in the buggy the defendant took hold of her with intent to have carnal intercourse with her, and against her will, and with an intent to accomplish his power, at all events, by his strength and power, against any resistance which she might offer, then he was guilty of an assault with intent to commit rape, whether he succeeded in his purpose or not.’

Trusdell & Smith and John E. Erwin, for plaintiff in error.

W. H. Stead, Atty. Gen. and Charles H. Wooster, State's Atty., for the People.

CARTWRIGHT, C. J.

John Donovan, plaintiff in error, was indicted in the circuit court of Lee county for the crime of assault upon Katherine Hill with intent to commit rape. At the trial it appeared that Katherine Hill was a widow, and the defendant had driven a delivery wagon in the city of Dixon, where they lived, and they had been acquainted eight or nine years. At about 9 o'clock in the evening of September 8, 1904, Mrs. Hill and her sister were walking home in Dixon, when the defendant drove up to them with a horse and buggy and asked them to ride. They refused, but he said he would take them home, and they then got into the buggy. He sat on their laps, between them, and drove for a block or two, when he stopped and whistled to a young man named Gannon; saying that he wanted to tell him that he would be along in about five minutes. Gannon came to the buggy, and put his foot on the step. There is a conflict in the evidence as to whether Gannon was going to get into the buggy, but it appeared that he was. Defendant stood up, and the sister scrambled out behind him, and over Mrs. Hill, and in doing so fell, and was caught in the running gear. Mrs. Hill testified that she also tried to get out, but defendant held her, and sat down on her lap, and started the horse at a rapid gait; and in this she was corroborated by her sister. He denied that she tried to get out, or that he restrained her. All the testimony as to what occurred after that came from the defendant and Mrs. Hill. He said he was going to take her home, but did not do so, and turned in a different direction, on a road leading to Franking Grove. She testified that he then said he was not going to take her home, and declared, in the coarsest language and with profanity, an intent to do the act which, if forcible and against her will, would be rape; that he kept repeating his declaration, and drove as hard as he could; that she beat him in the face, pulled his hair, and knocked his hat off, and he put his head out of the buggy so she could not hit him; that he got her head under his arm, so she could do nothing, but she got her head out, and lost her hat in doing so; that he drove up to some bushes not far from a house, and said, in language of the same kind he had been using, that that was where he was going to do the act; that she started to jump out, and he started the horse again, and grabbed her dress, and tore the binding; that she fell in the road, and got up and went to the house, where she complained of the assault. He testified that his purpose in taking Mrs. Hill to ride was to solicit her to sexual intercourse; that he made a proposal of that kind to her, which she rejected, and struck him once, only; that she did not attempt to get out, and he did not restrain her; that she told him to turn around and take her home, but there were deep ditches on each side of the road at that place, so that he could not turn; and that he drove on to a place that was wide enough, when she jumped out, and went to the house near by. It was proved that she made complaint of an assault when she went into the house. He positively denied that he committed any assault, while she testified that he sat upon her, held her in the buggy by her limbs, and at one time had her head under his arm, but that he did not make any actual attempt to do the act which he said he was going to do.

The court gave to the jury forms for their verdict adapted to different findings. The instruction designed to cover the charge of the indictment was as follows: ‘If you find the defendant guilty of the crime of an intent to commit rape, as charged in the indictment, the form of your verdict may be. ‘We, the jury, find the defendant guilty of the crime of an intent to commit rape, in manner and form as charged in the indictment, and we find his age to be (over) or (under) the age of...