Lathrop v. People

• Court: Illinois Supreme Court
• Writing for the Court: MAGRUDER
• Citation: Lathrop v. People, 197 Ill. 169, 64 N.E. 385 (Ill. 1902)
• Decision Date: 19 June 1902
• Parties: LATHROP v. PEOPLE.

197 Ill. 169

64 N.E. 385

LATHROP

v.PEOPLE.

Supreme Court of Illinois.

June 19, 1902.

Error to circuit court, Knox county; Geo. W. Thompson, Judge.

John Lathrop was convicted of an assault with intent to rape, and he brings error. Affirmed.

This is a prosecution for assault with intent to commit rape. There were two trials of the case. Upon the first trial there was a disagreement of the jury. At the February term, 1902, of the Knox county circuit court there was a second trial, resulting in a verdict of guilty. A motion for a new trial was made, upon the hearing of which affidavits were introduced. This motion was overruled, and judgment was rendered upon the verdict, sentencing plaintiff in error to the penitentiary for a term of not less than one nor more than fourteen years, to be terminated on the recommendation of the board of pardons, as by statute in such case made and provided. The present appeal is prosecuted from such judgment of conviction.

W. T. Smith and M. J. Daugherty, for plaintiff in error.

H. J. Hamlin, Atty. Gen., A. J. Boutelle, State's Atty., and F. F. Cooke, for the People.

MAGRUDER, C. J.

In this case no errors are assigned in regard to the giving or refusal of instructions. It is not claimed by the plaintiff in error that the court below erred in giving any instruction which was given for the people, or in refusing to give any instruction which was asked by the plaintiff in error. Although there are assignments of error upon the record to the effect that the trial court admitted improper testimony over the objection of plaintiff in error and refused to admit proper evidence offered by plaintiff in error upon the trial, yet no point is made by counsel for plaintiff in error in regard to such admission or exclusion of evidence. Counsel for plaintiff in error do not state in their brief that there was any error committed by the court below in the admission or exclusion of testimony. The only alleged errors discussed by counsel for plaintiff in error in their brief are those hereinafter mentioned.

1. It is claimed on the part of plaintiff in error that the proof does not sufficiently identify plaintiff in error as the person who committed the crime charged in the indictment. The evidence shows substantially the following state of facts: Betsey Wilson, a Swedish woman 47 years old, resided with her son and her mother,-the latter being 80 years of age,-in a house in Knoxville, Knox county, which, from the testimony and plat introduced in evidence, would appear to have been located in a remote and sparsely settled part of the town. On the evening of September 17, 1901, about 8 o'clock, Mrs. Wilson went from her home to the business part of Knoxville to do some errands. Her home was the only house in a block, which fronted upon a street or alley called ‘Park Street.’ She walked south on Park street to North street, east on North street to Market street, and south on Market street to certain places of business upon the public square. She called at a doctor's office to consult with him, and went to a drug store to get some medicine, and to a meat market and to a grocery store to get some meat and groceries. Some time between 8 and 9 o'clock she started home, going north to North street, and walking west on North street. While she was walking along North street, she heard a man coming up behind her. She swears, as will be hereafter stated, that this man was the plaintiff in error, John Lathrop. She states in her testimony that plaintiff in error was intoxicated; that ‘he came up; smelled strong of liquor; he was not real drunk, but staggered’; that he walked behind her a part of the way, and then came alongside of her; that he asked her if she was a Swedish woman, and stated that he was a Swede; that he stated that he was going to his home near the fair grounds; that when she arrived at a certain corner she pointed out to him the road leading to the fair grounds, but he asked her where she lived, and when she told him that she lived in the next block he said that he sometimes went home that way himself. He talked to her in a maudlin way, saying that one Johnson had recommended her to him as a proper woman for him to marry. He said to her that he desired to marry her, and would give her $4,000. She says that she told him that she did not desire to marry him, and to look elsewhere for some other woman. When she reached the corner of Smith street and Park street, she turned north to go to her home, and he followed her. The evening was ‘dark and blustering.’ There seems to have been, between the corner of Park street and North street and her home, a hollow or depression in the ground. Park street had no sidewalks, and there was a wagon track in the middle of the street. A man named Lewis lived on the Galesburg road west of Park street, and southwest from Mrs. Wilson's home. Near Lewis' house was an electric light. Mrs. Wilson states that at this point, upon plaintiff in error making some remark to her, she turned and looked him in the face, and saw his face in the glare of the electric light. Further north, however, towards her home, the electric light failed to extend, so that the road was dark. When they were near the gate of her house, he struck her, and knocked her down, and told her to keep still, or he would kill her. He pushed her against a bank, placing his hand upon her throat, and pulled her into the shadow of two or three trees standing north of the gateway. She states that she hardly knew what happened, but that he was on top of her, and had one hand on her shoulder, and one on her throat, when the footsteps of some one coming out of the gate of her yeard were heard. This frightened him, and he arose, and went towards the north upon Park street. She then arose and went into her home. The evidence shows clearly that the next day there were bruises on her head and marks on her throat. Mrs. Wilson stated that the man who thus assaulted her was a man with a dark complexion and a dark mustache. She did not know Lathrop, and had never seen him before that evening. A few days afterwards he was arrested, and when he was taken into her presence by the officers who arrested him she identified him as the man who had assaulted her, and swore that he was the man. Witnesses were introduced by the defendant swearing, in substance, that the prosecuting witness stated to them that she did not know who assaulted her, and was not able to say whether it was plaintiff in error or not. The witnesses so testifying for the purpose of contradicting her were one of Lathrop's attorneys, a witness in this case, and his mother and his sister-in-law. The jury saw Mrs. Wilson, the prosecuting witness, and they saw the witnesses whose testimony was produced for the purpose of contradicting her. It was for the jury to determine which of these witnesses was most deserving of credit.

Many facts and circumstances confirm the testimony of Mrs. Wilson. It is shown by other witnesses that plaintiff in error was such a looking man as Mrs. Wilson described him to be before the officers produced him in her presence; that he was seen near the public square, upon Market street, and upon North street, and in the neighborhood of the stores where Mrs. Wilson went that evening; and that he was in an intoxicated condition. It is shown by the testimony of other witnesses than Mrs. Wilson that he was seen going towards the west just before or about the time when Mrs. Wilson was returning westward after finishing her errands. It is shown also by other testimony that plaintiff in error was seen coming from the west shortly after the time when Mrs. Wilson says that the assault was committed. When he fled northward on Park street after the assault, it was possible for him to have gone around the north end of the block, and, going south upon Henderson road on the east side of the block, he could easily have reached North street, and returned to the neighborhood of the public square, where he was seen shortly after the assault was committed. Many other circumstances might be named having a tendency to confirm the testimony of Mrs. Wilson identifying plaintiff in error as the person who committed the assault, but it is unnecessary to notice them.

In the absence of errors of law, the court will not set aside a verdict unless it is manifestly erroneous. Gore v. People, 162 Ill. 259, 44 N. E. 500;Bromley v. Same, 27 Ill. 20. To justify this court in reversing upon the ground that the evidence is insufficient, it must appear that the finding of the jury is not sustained by the evidence, or that it is palpably contrary to the decided weight of the evidence. Steffy v. People, 130 Ill. 98, 22 N. E. 861, and cases cited. In Steffy v. People, supra, which was an indictment for an assault to commit murder, we said: ‘It is urged, first, as ground of reversal, that the verdict of the jury is contrary to the evidence. Whether the evidence...