Parkinson v. People

• Decision Date: 12 June 1890
• Citation: 24 N.E. 772
• Parties: PARKINSON v. PEOPLE.
• Court: Illinois Supreme Court

24 N.E. 772

PARKINSON

v.PEOPLE.¹

Supreme Court of Illinois.

June 12, 1890.

Error to criminal court Cook county.

Samuel W. Jackson, (Mills & Ingham, of counsel,) for plaintiff in error.

The Attorney General, for the People.

SCHOLFIELD, J.

The plaintiff in error was convicted of the crime of rape upon a girl of the age of 11 years. One ground of reversal urged is that the jury was impaneled and sworn to try the case, and a witness called and sworn, before a plea was entered. The record made by the clerk shows a proper arraignment of the plaintiff in error, and the entry of the plea of not guilty by him, before the calling of the jury. The bill of exceptions, however, contradicts this, and shows that the jury was impaneled and sworn to try the case, and a witness was called and sworn, before the plea of not guilty was entered. The arraignment, pleading, and impaneling of the jury are matters that should appear in the record prepared by the clerk. Bish. Crim. Proc. §§ 922–924. The office of a bill of exceptions is to bring into and make some things a part of the record which would otherwise be no part of it. Lowe v. Moss, 18 Ill. 477;Chase v. DeWolf, 69 Ill. 47. We have often held that matters which are not in fact a part of the record cannot be made such by the mere recital of the clerk. Railway Co. v. Yando, 127 Ill. 214, 20 N. E. Rep. 70; Gould v. Howe, 127 Ill. 252, 19 N. E. Rep. 714, and authorities cited. And, upon like principle, that which is in fact part of the record cannot be taken therefrom, or qualified by a bill of exceptions. We can no more look into the bill of exceptions for matters which must appear in the recitals of the clerk than we can look into the recitals of the clerk for matters that must appear in the bill of exceptions. If the record as made up by the clerk was not a true record of what occurred, appellant should have made a motion in the circuit court to have it amended. Not having done so, he could not afterwards contradict it by a recital in the bill of exceptions. The objection, being unsustained by the proper record, cannot be entertained.

Upon the trial, evidence was offered by the people, and admitted over the objections of plaintiff in error, as follows: ‘Question. Now, the man you are speaking of is Mr. Parkinson. Is this man here? Answer. Yes, sir. He another little girl, and me and this little girl was playing; and he was motioning to us by his laundry, and told us to come in, and so we did, after school hours. * * * Q. You say there was another little girl who went there the same time you dis? A. Yes, sir. Q. Who was it? A. Annie Monroe. (Objected to by counsel for defendant.) Q. Did he do anything to her? (To which question, defendant, by his counsel, then and there objected; but the court overruled the objection, to which ruling of the court, defendant, by his counsel, then and there excepted.) A. Yes, sir. A. At the same time? A. Yes, sir; he threw her down, too. Mr. Jackson. I object to all this. (Objection was overruled by the court, to which ruling of the court, counsel for defendant then and there excepted.) * * * Q. You say that this little girl went in with you from school at that time? A. Yes, sir. Q. Was it at the same time when she went in with you that he did something bad to her? (To which question the defendant, by his counsel, objected; but the court overruled the objection, to which ruling of the court the defendant, by his counsel, then and there excepted.) A. Yes, sir. Q. Well, both at the same time? A. No; I waited for her. Q. Did you see what he did? A. Yes, sir. Mr. Jackson. Well, I object to all this. The Court. Well, this time, when the little girl went with you, he...