People v. Celmars

• Decision Date: 25 October 1928
• Docket Number: No. 18926.,18926.
• Citation: People v. Celmars, 332 Ill. 113, 163 N.E. 421 (Ill. 1928)
• Parties: PEOPLE v. CELMARS
• Court: Illinois Supreme Court

332 Ill. 113

163 N.E. 421

PEOPLE

v.CELMARS

No. 18926.

Supreme Court of Illinois.

Oct. 25, 1928.

Error to Circuit Court, Peoria County; J. N. Green, Judge.

James Celmars was convicted of rape, and he brings error.

Reversed and remanded.Charles T. McElwee, Jr., and George Z. Barnes, both of Peoria, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Henry E. Pratt, State's Atty., of Peoria, and Royce A. Kidder, of Springfield (Frederick F. Beckman, of Peoria, of counsel), for the People.

DE YOUNG, C. J.

The plaintiff in error, James Celmars, was convicted in the circuit court of Peoria county of the crime of rape, and in accordance with the verdict of a jury was sentenced to 23 years' imprisonment in the penitentiary. He prosecutes this writ of error for a review of the record.

Myrtle Reese, the prosecutrix, white, unmarried, and upwards of 21 years of age, and the plaintiff in error, colored, 26 years old, reside in the city of Peoria. The testimony of the prosecutrix is substantially as follows: On November 26, 1927, about 6:15 a. m., she left her home to go to work. After she had gone a short distance on Jefferson street, she met a man going in the opposite direction. She turned on Green street, and as she reached an alley the man whom she had met on Jefferson street overtook her from behind, put his cap over her eyes, pushed or dragged her in the alley to a point near a street light, held his hand over her mouth, and demanded her money. When her assilant discovered that she had no pocketbook, he, despite her resistance, threw her to the ground, tore her clothing, and committed the act charged. He told her to make no outcry and ran away. She returned to the street, crying, met William Birmingham, a railway crossing-flagman, and told him what had occurred. He took her to a restaurant. She identified the plaintiff in error as her assailant when he was brought into her presence after his arrest on the morning of December 17, 1927, and she later recognized his voice when he spoke in the police court.

William Birmingham testified that the prosecutrix stopped him at the corner of Green and Adams streets one morning at about 6:35 o'clock, that she had mud on her hands, and that he took her to Saylor's restaurant. From the testimony of Maude M. Saylor it appeared that Birmingham brought the prosecutrix to her restaurant on a certain morning; that she was dirty and hysterical at the time but made no complaint; and that the witness called the police and they took the prosecutrix away.

Glen Ford, a city detective, testified that on December 17, 1927, at about 6:45 a. m., he and Albert Whittaker, another detective, while seated in an automobile, saw a man walking rapidly along Bryan street towards Madison street, in the city of Peoria; that after he had crossed an alley the officers turned the spot-light of their car upon him, whereupon he turned and ran down the alley; that the witness pursued him on foot, but the man eluded him; that the two officers then continued their search by automobile and on another street discovered a man emerging from an alley and walking down the street towards a corner; that one of the officers alighted from the automobile and followed him; that the man turned and the officers arrested him; and that he proved to be the plaintiff in error.

The substance of the testimony of the plaintiff in error is as follows: He was a waiter at the Creve Coeur Club of Peoria and had been employed there 18 months. He started his daily work alternately at 7 and 11 a. m. On the morning of November 26, 1927, he was awakened at 6 o'clock. Marie Bibbs was in the room with him. He did not arise until 10:30 o'clock and reached the club at 11:05 a. m. On the morning of December 17, 1927, he arose at 6:25 o'clock, started a fire, brought two buckets of coal from the shed, and left home at 6:45 a. m. to go to work. He walked down certain streets, and when he passed the Court Hotel, on Jefferson street, two officers in an automobile approached and asked him where he was going. He answered that he was on the way to his work. They then inquired where he was employed, and he told them at the Creve Coeur Club. The officers arrested him and took him first to the police station, then to the home of the prosecutrix, who was called but failed to identify him, still later to three other places, and finally back to the police station. He denied that he had ever seen the prosecutrix prior to the time the officers took him to her house on the morning of December 17, 1927, or that he had committed the crime charged against him.

Marie Bibbs testified that she was 27 years of age and lived with the plaintiff in error as his wife; that she was employed as an elevator operator at the Jefferson Hotel, in Peoria, and started to work at 7 a. m. and 12 m. on alternate days; that when she left home on the morning of November 26, 1927, at 6:20 o'clock, plaintiff in error was still in bed though not asleep, and that on the day of his arrest he arose at about 6:15 a. m., started a fire, washed and dressed, and left the house at 6:40 o'clock.

Era H. Palmer, the manager of the Creve Coeur Club, testified that the time book showed that on November 26, 1927, the plaintiff in error began work at 11 a. m., and that he was paid for his work on that day. Henry Houston, the head waiter of the same club, testified that the plaintiff in error worked on November 26, 1927, and that he was always attentive to duty and sober-minded.

[1][2] The first contention for a reversal of the judgment is that sufficient time was not allowed the plaintiff in error within which to prepare his defense. The indictment was returned on January 12, 1928. Two days later the trial court appointed counsel to defend the plaintiff in error. The trial had been fixed on Monday, January 16, and on that day a motion, supported by an affidavit, was made seeking a postponement of the trial until the March term of court to give the attorneys for the plaintiff in error time to prepare for trial. The motion was denied and the case was set for trial on January 23, 1928. When the case was called on that day, no request was made for further delay, and no intimation was given the court that counsel were not then ready, and the trial proceeded. It is only when the trial court has abused its discretion in denying a reasonable time for the preparation of the defense that a court of review will interfere with the trial court's action. People v. Rasmussen, 328 Ill. 332, 159 N. E. 360;People v. Bopp, 279 Ill. 184, 116 N. E. 679;North v. People, 139 Ill. 81, 28 N. E. 966. In the absence of a motion or request for additional time to prepare the defense when the case was called on January 23, this court cannot say that plaintiff in error has been denied the right properly to prepare and to present his defense.

[3] It is contended that it was improper to admit in evidence a written statement signed by Marie Bibbs without first showing the circumstances under which it was made. The state's attorney sought to impeach the witness by the statement and upon cross-examination interrogated her concerning it. She admitted that it was read to her and that she signed it. The statement was not incorporated in the record, and it does not appear how the plaintiff in error was prejudiced by it.

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