People v. Blockburger
| Decision Date | 22 December 1933 |
| Docket Number | No. 21844.,21844. |
| Citation | 188 N.E. 440,354 Ill. 301 |
| Parties | PEOPLE v. BLOCKBURGER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Madison County; Jesse R. Brown, Judge.
George Blockburger was convicted of statutory rape, and he brings error.
Reversed and remanded.
STONE, J., dissenting.Harold J. Bandy, of Granite City, for plaintiff in error.
Otto Kerner, Atty. Gen., Lester Geers, State's Atty., of Edwardsville, and J. J. Neiger, of Springfield (Leslie G. George, of Edwardsville, of counsel), for the People.
This writ of error is sued out for the purpose of reviewing a judgment of the circuit court of Madison county, entered upon a verdict of a jury finding the plaintiff in error guilty of the crime of statutory rape on Violet Stemler, a girl fifteen years of age, and sentencing him to the penitentiary for a period of eleven years. The case was tried once before in the circuit court of Madison county, resulting in a verdict of guilty and a sentence of ten years' imprisonment, which was set aside by the court and a new trial granted. The record does not show the reason for setting aside the first verdict.
The indictment charges the crime to have been committed on December 18, 1931, at which time the prosecuting witness was slightly under the age of fifteen years. The record shows that the plaintiff in error operated a bookmaking establishment and real estate office on the first floor of a store building in the heart of Granite City, on State street, directly opposite the Rialto Theater. The office faced west on State street, and the west or street side thereof was mostly of plate glass windows similar to those used as display windows in store rooms. This room was divided by a partition parallel with and about twelve feet from the street, which partition did not go entirely to the ceiling, but was about five or six feet in height. At the north side of the partition was a swinging door or gate, the top of which was four or five feet from the floor and with an open space below it. The complaining witness described this as a ‘flopping’ door. The front room contained a desk and chair, while the back room had some tables, chairs, a telephone, a cigarettevending machine, and a sofa or settee, the latter being, according to the complaining witness, up against the wall on the side of the swinging door. The premises had a back door leading into a small yard and thence into an alley. Plaintiff in error testified that this office had been lighted, unlocked, and open to the public every evening until 10 o'clock during the time in question, and this was not controverted.
Without any details, it is sufficient for our purpose to say that the complaining witness testified to several acts of intercourse with the plaintiff in error between September and Christmas of the year 1931, all of them claimed to have taken place in the back room of the office above described. She told of having once visited the office of the plaintiff in error with an aunt of hers for the purpose of seeing about getting her uncle, and possibly also her stepfather, out of the penitentiary, both of them being in that institution. This visit was prior to any of those later complained of. She testified, in substance, that on later visits she went to the office of the plaintiff in error by the alley and back entrance. On each of these occasions her sister, slightly older, accompanied her and was present during most of the conversation, but did not stay in the room during the time when the intercourse was claimed to have taken place, and that sometimes the sister waited outside and sometimes in the outer office. She testified that each of these occurrences took place about twenty-five minutes to 7 in the evening, the visits to the office being a day or two apart, and the acts of intercourse being on alternate visits, stating that on the first and second visits there was no intercourse, that on the third there was, that on the next visit there was not, and so on, alternately, as to the various visits. She testified that on each occasion the plaintiff in error gave her $2 and that she took the money home to her mother.
The defendant testified in his own behalf, denying all of the charges. He also produced the evidence of the doctor who had taken care of the sister of the complaining witness, who had been in the hospital under his care during part of the time the complaining witness claimed the sister had been accompanying her to the office of the plaintiff in error. The plaintiff in error also called the mother of the complaining witness, who denied that her daughter had ever brought her the sum of $2 as testified to by the complaining witness, and denied ever sending her to the plaintiff in error's office for the purpose of having sexual intercourse with him. He also called the sister of the complaining witness, who contradicted the testimony as to the trips to the office, denied that she was ever present when plaintiff in error asked her sister to have sexual intercourse with him, and testified that she had never heard any such conversation. She also contradicted her sister's testimony as to having told her sister to go ahead and have intercourse with the plaintiff in error, and that she never saw him pay $2, or any other sum, to her sister, and never knew of her receiving any money from him. She testified quite positively that she was never in the plaintiff in error's office but once, and that that was in the year 1932, when she went there with her mother.
In rebuttal the people recalled the sister of the complaining witness, who stated that she wanted to change her testimony, and then proceeded to testify that she was in the plaintiff in error's place of business with her sister in the nighttime in the months of November and December, 1931, and that she guessed it was five or six times; that the plaintiff in error took the complaining witness into the back room on each of those occasions; that the witness always went to the doctor, afterwards meeting her sister again; that they went in the front way, but that they went in the back way twice. She further testified that her sister had money on each of these occasions—sometimes $2—and that they took the money home and gave it to their mother. The mother was then recalled and stated that she wished to change her testimony. She proceeded to testify that her two daughters left home a couple of times that she knew of, to go to the plaintiff in error's office, and that the complaining witness brought money home to her a couple of times. On cross-examination she stated that all that day she had been in the state's attorney's office in the custody of a deputy sheriff and a police officer, who had talked to her, not by herself, but always in the presence of her husband and two daughters; that she was not promised anything if she would change her testimony, and was not pressed, but that she just decided to change the ‘wrong I made’; that her husband also talked to her; that the husband had previously been in the penitentiary. The record shows that he was then on parole.
This unusual situation in regard to the two witnesses, the mother and the sister of the prosecuting witness, was brought about as follows: The record shows they had been subpoenaed by the state and the defense, and that they appeared in court during the first day of the trial, but were not present at the opening of court on the second day. Counsel for plaintiff in error thereupon filed a motion for a continuance on the ground of their absence, setting forth in the affidavit of continuance what he expected to prove by them. This affidavit was admitted by the state's attorney to the extent that the witnesses, if present, would testify as stated in the affidavit, and thereupon the motion for continuance was denied. Counsel for plaintiff in error caused an attachment to be issued for these two witnesses, upon which they were apprehended and brought into court, and testified in the first instance as hereinabove stated. After giving their first testimony, they apparently left the courtroom and tried to leave the state, but came back when their truck broke down.
On cross-examination of plaintiff in error, the state's attorney was permitted to go at great length into the reasons for these two witnesses failing to reappear in court, the questions indicating, and being so framed as to be well calculated to convey to the jury the impression that their absence had been procured by the plaintiff in error, although the record is entirely void of anything to show that this was the fact. The record does show that the plaintiff in error had procured an attachment and caused their arrest and forced them into court to testify for him. After they had given their first testimony and left, they were apparentlytaken into custody by the state's attorney, or by some officers acting for him and under his direction, and kept in custody until they came back to the stand and in part recanted their previous testimony, as stated above.
Numerous errors are assigned on behalf of the plaintiff in error; it being contended that the cross-examination of the plaintiff in error and other witnesses was improper, inflammatory, and prejudicial; that evidence was permitted to go to the jury tending to prove separate and distinct offenses other than the one covered by the indictment; that the weight of the evidence was insufficient for conviction; and that improper instructions were given. Without going into these alleged errors in detail or considering them separately, it must be pointed out that the case, on the whole, is such and the penalty imposed so severe as to make it essential that the record be free from prejudicial error.
It is claimed by the plaintiff in error that the penalty of eleven years' imprisonment imposed upon a man fifty-five, and now fifty-six, years of age, for all practical puposes, amounts to a life sentence. It is argued that the...
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...charge against him but be permitted to meet the accusing witness face to face." Schallman at 569, 113 N.E. 113.In People v. Blockburger (1933), 354 Ill. 301, 188 N.E. 440, the court reiterated this rule in commenting on a witness examination which it found to be improper for several reasons......
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