People v. Arnold

• Decision Date: 09 February 1911
• Citation: 93 N.E. 786,248 Ill. 169
• Parties: PEOPLE v. ARNOLD.
• Court: Illinois Supreme Court

248 Ill. 169

93 N.E. 786

PEOPLE

v.ARNOLD.

Supreme Court of Illinois.

Dec. 21, 1910.

Rehearing Denied Feb. 9, 1911.

Error to Circuit Court, Stephenson County; Richard S. Farrand, Judge.

Benjamin A. Arnold was convicted of rape, and brings error. Reversed and remanded.Robert P. Eckert and Amos W. Marston, for plaintiff in error.

W. H. Stead, Atty. Gen., and Louis H. Burrell, State's Atty. (Douglas Pattison, of counsel), for the People.

CARTWRIGHT, J.

At the March term, 1910, of the circuit court of Stephenson county, the plaintiff in error, Benjamin A. Arnold, a physician and surgeon living in Freeport, in said county, and practicing there, was found guilty by a jury of the crime of rape upon Alta Rosenstiel on July 8, 1908, when she was 15 years and 11 months of age, and his punishment was fixed at imprisonment in the penitentiary for the term of four years. He was sentenced in accordance with the verdict.

There was a motion to quash the indictment on the ground that Alta Rosenstiel and her father and mother were all present in the ground jury room at the same time. The proceedings before a grand jury must be kept strictly secret, and that could not be done if witnesses should be present during the examination of each other. The rule, therefore, is that one witness must never be permitted to be present at the examination of another. 17 Am. & Eng. Ency. of Law (2d Ed.) 1204. The court refused to consider the affidavits of grand jurors with reference to the alleged fact, and did not thereby commit error. Gitchell v. People, 146 Ill. 175, 33 N. E. 757,37 Am. St. Rep. 147. What occurred was proved, however, by other witnesses, and there was no substantial violation of the rule. The father was in the grand jury room at a time when some cloths that had been used were identified, for the alleged reason that the girl was timid and unable to appear alone in respect to a matter of that kind, but there was practically no examination of witnesses in the presence of each other. There could have been no prejudice to the defendant from anything that occurred before the grand jury, and the court did not err in refusing to quach the indictment.

There is much complaint concerning the examination of persons summoned as jurors for the purpose of ascertaining their qualifications, including questions asked by the court; and in the same connection objection is made to questions asked by the court and remarks made in the course of the trial. Without going into unnecessary detail, it is sufficient to say that the complaints are unfounded. The court did not take any more part in the trial than was proper, but in our opinion did not participate in the proceedings to the extent that would have been desirable for the attainment of justice.

After the opening statement by the state's attorney the attorneys for the defendant asked leave to reserve their opening statement until after the evidence for the people had been heard, but the court refused such leave. It was a matter resting in the discretion of the court. Sands v. Potter, 165 Ill. 397, 46 N. E. 282,56 Am. St. Rep. 253;Sinclair Co. v. Waddill, 200 Ill. 17, 65 N. E. 437. No reason was given for deferring the opening statement for the defendant and none is apparent, so that there is no reason for saying that the discretion was abused or the defendant injured by the ruling.

So far as the material facts were not in dispute at the trial they are as follows: Alta Rosenstiel was the daughter of a farmer, living with her parents between five and six miles northwest of Freeport. The defendant was the family physician, and at different times in the spring of 1908 was consulted with reference to troubles of the girl, consisting of pains and soreness in her side, which were diagnosed as appendicitis, and on May 18, 1908, he performed an operation on her at the hospital in Freeport. The difficulty was appendicitis, and the right ovary was also found to be diseased, and a part of it was removed. When the girl left the hospital, she was not fit to go home, and was taken to the home of the defendant, where she was cared for by his wife for a time, and then returned to the farm. Afterwards she visited the defendant at his office with her parents occasionally for consultation and treatment. The defendant also called at the farm while visiting patients in the neighborhood, or at the call of the parents, several times in the early part of July. The last call was on July 8, 1908, at about 8 o'clock in the morning, when he happened to be in the neighborhood. The girl was in bed in a bedroom on the ground floor, and he examined the wound and the condition of her side and prepared new medicine, and soon afterward washed his hands at the summer kitchen and left. The mother was about the house, and most of the time while defendant was there was in the summer kitchen. The doors were all open between the bedroom where the girl was and where the mother was, and there were several carpenters working close to the house in the yard, framing timbers for a barn. The mother and men were all within call from the bedroom. The girl got up and was sitting on the porch, and about an hour and a half after defendant left her mother went to the bedroom and found a blood stain about the size of the palm of her hand on the bed, and also stains upon the girl's nightgown. After asking the girl twice, she stated to her mother the alleged act of the defendant. There was a considerable hemorrhage, which lasted for two or three days. The defendant weighed 180 pounds and the girl 110. In the following spring or summer of 1909 the defendant sent a statement of his account to the father of the girl, and the mother dictated a letter, which the girl wrote, which was not dated but postmarked September 25, 1909, saying: ‘When you want that bill you hold against us, sue it, and the public will know more about your damnable character than they already know.-Mrs. Rosenstiel.’ On the morning of October 2, 1909, a collector and an attorney called at the farm with the bill, and the father said that if the defendant wanted the money to go ahead and sue it, but that, if he did, he would bring a charge against him. Upon the return of the collector to Freeport the defendant sued out a summons against the father, and upon the summons being served the bill was paid. On October 4, 1909, the defendant was arrested upon a warrant issued upon a complaint made by the girl before a justice of the peace, and this was nearly 15 months after the offense was alleged to have been committed.

The matters which were in dispute at the trial were these: The mother and the girl testified that after the defendant had made the examination and gone to get a drink of water he went back into the bedroom, saying that his team was tired, and he would go in and talk with the girl a few minutes and let them rest. The girl testified that he sat down on the bed, and then laid down by her, and then committed the offense by force; that she tried to call her mother, but could not; that she was so frightened, full of pain, and paralyzed that she could not make any outcry, and that, after the offense was committed, her mother, who was attending to the baking, came to the door of the bedroom, and the defendant led the mother out through the house. The mother testified that she came to the door and was led out or backed out, and the defendant then washed his hands and left. The mother knew nothing and heard nothing of any trouble until the girl told her in answer to the inquiries, and she testified that, after learning of the act, she called up the defendant's office at Freeport by telephone, but he was not there; that he called her by telephone before the noon hour, and asked her how the girl was, and she answered that he ought to know, and she wanted to see him just as soon as possible. The father and mother both testified that when the former came home, about 10 o'clock, from the creamery, he was informed of the facts, and he testified that on the afternoon of that day he drove to Freeport to find the defendant to kill him, but the defendant was not at his office. They both testified that the next day they went to Freeport, leaving home about 1 o'clock, and called on the defendant at his office; that the father said, ‘You have been monkeying with that girl of ours'; that he denied it, and said he had a notion to commit suicide because he was accused, and that he then said the girl was guilty of certain conduct, which it is claimed was an admission, by implication, of a voluntary act. The mother testified that on the Friday or Saturday after July 8th defendant telephoned her that they should come in and he would fix it up, and the father testified that about the last of July he went to the defendant's office and referred to the telephone message that they should come in and fix the thing up, and wanted to know of the defendant what he wanted to fix and what they should do, and the defendant said that they would drop the matter and he would go on and be their doctor, but the father said they would see about it, and left. The defendant denied that he went back into the house on July 8th after the examination, but testified that he washed his hands to remove any odor after the examination, and left. He denied that he committed the offense, and denied every incriminating circumstance testifiedto. The bookkeeper in the office testified that there was no call by telephone from the mother, and the defendant denied that he called the mother by telephone, or that any visit was made by the father and mother to his office. According to the testimony for the prosecution, the father and mother left home about 1 o'clock and went directly to the office of the defendant, but it was proved that about the time they would reach the office, and for a good part of the afternoon, the defendant...