People v. Burns
| Decision Date | 07 October 1936 |
| Docket Number | No. 23590.,23590. |
| Citation | 4 N.E.2d 26,364 Ill. 49 |
| Parties | PEOPLE v. BURNS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; Russell Whitman, Judge.
James Burns was convicted of statutory rape, and he brings error.
Affirmed.Maurice G. Walsh, and Thomas L. Murphy, both of Chicago, for plaintiff in error.
Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and A. B. Dennis, of Danville (Edward E. Wilson, John T. Gallagher, and Richard H. Devine, all of Chicago, of counsel), for the People.
The defendant, James Burns, was indicted in the criminal court of Cook county for the crime of statutory rape on Betty Marshall on September 12, 1935, she then being fourteen years of age. He was tried by the court without a jury, found guilty, and sentenced to imprisonment in the penitentiary for fourteen years. Burns prosecutes this writ of error for a review of the record.
The defendant resided with his wife, the maternal aunt of the complaining witness, in Chicago. He had been acquainted with the parents of Betty Marshall since his marriage, namely, for more than eleven years, and was a frequent visitor in their home. From the testimony of the prosecutrix it appears that the defendant ravished her during the first week in June, 1935, at the forest preserve district, and that thereafter he frequently had sexual intercourse with her-on two occasions at his home but usually at the forest preserve. She testified that on Thursday, September 12, she met the defendant by appointment at 1 o'clock in the afternoon on Higgins avenue, near Milwaukee avenue; that she did so because he had on the previous day directed her to meet him there, adding that unless she complied he would ‘get her father’; that when she arrived at the appointed place the defendant said, ‘Get in the car; hurry up!’ and that she obeyed; that he thereupon drove to a side street in Edison Park (a suburban district northwest of Chicago), where the defendant twice had intercourse with her in the front seat of his automobile; that in the conversation which ensued during the interval between the two acts he again told her if she ever informed her parents he would ‘get her father,’ but that she did not know what he proposed to do. Betty testified further that on September 17 the defendant stayed at the home of her parents all night. On this occasion the prosecutrix, her father (Raymond Marshall), two brothers, and the defendant slept on a sleeping porch, the brothers occupying one bed, her father and the defendant another, and the witness a third, about a foot from the side of the bed on which the defendant lay. Betty stated that about 1 o'clock in the morning of the 18th the defendant became indecently familiar with her, and that her father saw him in the act of taking indecent liberties with her, jumped out of bed, and repaired to the kitchen for his gun. The defendant escaped to the street, and his wife, who had been sleeping with her sister, Betty's mother, took his clothes to him and gave him some money. Mrs. Marshall and one of her sons, it appears, succeeded in restraining Marshall from using his gun. Betty said that she, herself, went outside to the defendant. She made no complaint to her family concerning the defendant's relations with her prior to this occurrence.
The testimony of the prosecutrix was corroborated, in part, by her brother Leroy and her father. Leroy, seventeen years of age, testified that on September 12 he saw the defendant and Betty on Imperial avenue, in Edison Park, and that they were headed in a northwest direction, towards Park Ridge; that two days later he questioned the defendant whether he had been out with Betty on the preceding Thursday and that he replied in the negative; that he also asked the defendant if he objected to his wife being informed; and that he again answered in the negative, stating, however, that it would only arouse suspicion. The witness corroborated his sister's testimony with respect to the happening on the porch in the early morning of September 18. Raymond E. Marshall, the father, likewise confirmed the account of the event. According to his testimony it appears that Leroy had informed him of seeing the defendant and Betty in Edison Park on the afternoon of September 12. Marshall testified that although he had regarded the defendant as his best friend, he became somewhat suspicious and desired to ascertain the nature of the relationship, if any, between his daughter and the defendant; that he accordingly feigned sleep when he and the defendant retired; that later, when he observed what was happening, he jumped up and ran for his gun; and that when he reached the porch after obtaining the weapon he found that the defendant had gone.
The defendant was thirty-six years of age at the time of the trial and had been unemployed since the middle of the preceding May. He denied the commission of the act of intercourse on September 12, 1935, and also the numerous other acts testified to by the prosecutrix. He did not, however, account for his whereabouts on the afternoon of the day named, although he was positive he had not been with the prosecutrix at that time. Likewise, he asserted that he had never attempted to take any liberties with her person. He admitted that he was a frequent visitor at the home of Raymond Marshall, his brother-in-law. In particular he stated that during the period from June to September, 1935, he had visited there about twenty-five times, adding that his wife was also present. He testified that during the course of a conversation with Betty at her father's house in the early part of June she asked him to kiss her, and that although he demurred, pointing out that he was too old and also that he was her uncle, she nevertheless insisted. He also stated that upon other occasions when Betty's family and his wife went swimming she asked him to take her out, but that he informed her he could not, owing to the fact that he was married and also because he was her uncle. The defendant's version of the occurrence on the sleeping porch is that he and his wife arrived at Marshall's home after the evening meal on September 17 and played cards until 11 or 11:30, when all the persons present retired; that he and Marshall, together with their wives, had planned to take a trip the next day; that Betty had unsuccessfully sought permission from Mrs. Burns to accompany them; that she urged him to intercede with his wife in her behalf; that when he declined, reminding her that she should attend school because it was the beginning of a new term, she...
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