Kelly v. People

Decision Date24 October 1901
Citation61 N.E. 425,192 Ill. 119
PartiesKELLY v. PEOPLE.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to criminal court, Cook county; John Gibbons, Judge.

C. V. Kelly was convicted of the crime against nature, and brings error. Affirmed.

Jno. E. W. Wayman and Thomas J. Graydon, for plaintiff in error.

H. J. Hamlin, Atty. Gen., Charles S. Deneen, State's Atty., and F. L. Barnett, Asst. State's Atty., for the People.

WILKIN, C. J.

At the February term, 1901, of the criminal court of Cook county, plaintiff in error was convicted of the ‘crime against nature.’ His motions for a new trial and in arrest of judgment were overruled, and he was sentenced to the penitentiary at Joliet. By this writ of error he brings before us for review that record of conviction. Most of the grounds of reversal urged have been decided adversely to the contention of counsel for plaintiff in error in the late case of Honselman v. People, 168 Ill. 172, 48 N. E. 304.

It is first insisted that the evidence of guilt produced upon the trial is insufficient to justify the verdict of the jury. The indictment charged the crime, substantially in the language of the forty-seventh section of the Criminal Code, to have been committed upon and with one Lyle Patterson, averred in the first count to be ‘a man,’ and in the second and third ‘a male person.’ The proof shows that Lyle Patterson was at the time a boy between six and seven years of age. He was sworn, and testified upon the trial to acts of copulation by the defendant, first by means of his own mouth upon him (th boy), and then by means of the mouth of the boy upon defendant. If the testimony of the boy is to be believed, there can be no doubt but that, under the law as laid down in the Honselman Case, the crime was established. The defendant positively denied the charge and the acts sworn to by the boy. Other witnesses testified upon the trial, but we find nothing in their evidence which can be said to corroborate or contradict that of the prosecuting witness or the defendant as to the criminal acts. In view of the extreme youth of the boy, we have carefully scrutinized his testimony, and endeavored to apply to it all the rules for testing its truthfulness, and have reached the conclusion that there is no sufficient legal reason for discrediting it. No motive to falsely accuse the defendant, either on the part of the child or others, can be discovered. His father and other parents who believed their children had been outraged and debauched by similar practices were anxious to discover the guilty party and have him punished, but there is nothing in the evidence from which we can perceive a motive to falsely charge this defendant. In some jurisdictions the uncorroborated testimony of an accomplice is never sufficient to convict one of a crime. But that is not the rule in this state. Besides, consent on the part of the boy in this case cannot be presumed, he being incapable of understanding the nature of the act. He was incapable of committing a crime. We are not unmindful of the fact that the crime is of a class easily charged and difficult to disprove, and that it should therefore be established with clearness; but whether it was established in this case must depend upon whether or not the jury believed the testimony of Lyle Patterson. The court instructed the jury, on behalf of the defendant, ‘that the credibility of the witnesses is a question exclusively for the jury; that the jury have a right to determine from the appearance of the witnesses on the stand, their manner of testifying, their apparent intelligence or lack of intelligence, their youth, and from all the surrounding circumstances appearing on the trial, which witnesses are to be worthy of credit, and to give credit accordingly.’ This instruction properly directed the jury as to the tests of credibility. No complaint is made of any of the instructions given on the questions of fact, and they were, to say the least, fair to the defendant. The testimony, then, on behalf of the people being...

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56 cases
  • State v. Dietz, 9953
    • United States
    • United States State Supreme Court of Montana
    • August 4, 1959
    ...... People ex rel. Weed v. Whipp, 352 Ill. 525, 186 N.E. 135; LaGore v. Ramsey, Mo.1939, 126 S.W.2d 1153; McWilliams v. Walker, 209 Iowa 769, 229 N.W. 183; ...Start, 1913, 65 Or. 178, 132 P. 512, 46 L.R.A.,N.S., 266; Honselman v. People, 1897, 168 Ill. 172, 48 N.E. 304; Kelly v. People, 1901, 192 Ill. 119, 61 N.E. 425, 85 Am.St.Rep. 323; Herring v. State, 1904, 119 Ga. 709, 46 S.E. 876, and State v. Whitmarsh, 1910, 26 ......
  • Koontz v. People
    • United States
    • Supreme Court of Colorado
    • December 5, 1927
    ...... 551, 21 S.W. 360, 37 Am.St.Rep. 833; Mitchell v. State, 49. Tex. Cr. R. 535, 95 S.W. 500; Lewis v. State, 36 Tex. Cr. R. 37, 35 S.W. 372, 61 Am.St.Rep. 831. . . Counsel. for the people cite the following cases to the contrary:. Honselman v. People, 168 Ill. 172, 48 N.E. 304; Kelly v. People, 192 Ill. 119, 61 N.E. 425, 85 Am.St.Rep. 323; Woods. v. State, 10 Ala. App. 96, 64 So. 508; Strum v. State, 168. Ark. 1012, 272 S.W. 359; Smith v. State, 150 Ark. 265, 234. S.W. 32; State v. Maida, 6 Boyce (Del.) 40, 96 A. 207;. Ephriam v. State, 82 Fla. 93, 89 So. 344; Jackson v. ......
  • People v. Gerold
    • United States
    • Supreme Court of Illinois
    • December 16, 1914
    ......The requiring of a bill of particulars is within the sound discretion of the court. It is only required when the defendant cannot properly prepare his defense without such bill. Kelly v. People, 192 Ill. 119, 61 N. E. 425,85 Am. St. Rep. 323;People v. Nall, 242 Ill. 284, 89 N. E. 1012;People v. Poindexter, 243 Ill. 68, 90 N. E. 261. On this record we can reach no other conclusion than that on this count, with the indefinite wording that it contained, plaintiff in error was not ......
  • State v. Patterson
    • United States
    • United States State Supreme Court of Missouri
    • May 29, 1917
    ...... arrest was properly overruled. Sec. 5115, R. S. 1909;. Regina v. Norton, 8 Car. v. Payne, 671;. Hanselman v. People, 168 Ill. 172; Kelley v. People, 192 Ill. 119; Davis v. State, 3 Harris & Johns (Ind.), 478; Bradford v. State, 53 Am. St. 34. Defendant not being ......
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