People v. O'Connor

• Decision Date: 21 December 1920
• Docket Number: No. 13494.,13494.
• Citation: 295 Ill. 198,129 N.E. 157
• Parties: PEOPLE v. O'CONNOR.
• Court: Illinois Supreme Court

295 Ill. 198

129 N.E. 157

PEOPLE

v.O'CONNOR.

No. 13494.

Supreme Court of Illinois.

Dec. 21, 1920.

Error to Criminal Court, Cook County; Joseph Sabath, Judge.

David O'Connor was convicted of rape, and be brings error.

Reversed and remanded.

Farmer, J., dissenting.

Cantwell, Smith & Cantwell, of Chicago (Thomas E. Swanson, of Chicago, of counsel), for plaintiff in error.

Edward J. Brundage, Atty. Gen., Maclay Hoyne, State's Atty., and Edward C. Fitch, both of Chicago (Edward E. Wilson, of Chicago, of counsel), for the People.

CARTER, J.

Plaintiff in error, David O'Connor, was indicted, tried, and convicted in the criminal court of Cook county in October, 1919, on the charge of rape, and sentenced to the penitentiary for the term of 1 year.

The plaintiff in error was 31 years of age at the time of the alleged offense, and lived a short distance from the home of the complaining witness, Irene Myers. She was then 2 months under 16 years of age. They had met casually, and, without having been for mally introduced, had become acquainted through these chance meetings. On the day in question the plaintiff in error telephoned her at her home, and asked her to go auto riding with him. She replied that she had to be at home very shortly for the evening meal, and he told her that he would get her back in time for that. He later called and took her for a ride, during which they stopped at a restaurant near Humbolt Park, where they had something to eat and drank some wine. During their conversation Miss Myers stated that she and her mother were looking for a flat, and plaintiff in error said that he knew of a flat for rent, and asked her to go and see it, so that she could tell her mother whether she liked it. The flat was owned and occupied by Louis Alberto, who wanted to rent it. The plaintiff in error called up Alberto on the telephone, and asked if it would be convenient for them to come and look at the flat, and on being told that it was, they went there in the auto, and were let in by Alberto and shown through the flat, and then were conducted to the parlor, where the victrola was started, and to its music the complaining witness danced with plaintiff in error and with Alberto. They also drank some wine. The complaining witness testified that O'Connor sent out for more wine during the time they were there, although she stated that she did not wish any; that she had never drunk wine before; that the wine which was sent for was taken to the kitchen, and they (not specifying the particular individuals) came back with three glasses filled with a white liquid; that the other parties drank theirs, and a little later she put her glass to her lips, and from that time knew nothing that happened until 2 o'clock in the morning, when she found herself in bed with plaintiff in error, neither of them having any clothes on; that she asked for a robe, saying she wished to go to the bathroom, but in fact she went to the telephone and called up her mother's place, and talked with her sister, Mrs. Matthews, and told her she did not know where she was but could give her the telephone number; that she asked Alberto, who came into the room, where she was, and he and the plaintiff in error laughed, and Alberto said that she would have to go downstairs and look at the number; that he would not tell her where she was. The evidence shows that when Mrs. Matthews heard from Miss Myers she called up the information department of the telephone company, giving the operator the telephone number, and was given the name and address, and she went out and hunted up Mrs. Myers, who was investigating regarding her daughter's absence. They went with police officers to Alberto's house and found that the complaining witness and plaintiff in error and Alberto had left for the Myers home. In the meantime plaintiff in error had called up Attorney Karasek, who had been his lawyer, and talked with him over the phone about the situation, stating that the girl said she would not go home with him, and this attorney testified that the complaining witness herself talked with him over the phone and told him that nothing had been done to her, but that she would not go home with the plaintiff in error because she was afraid he would not act the part of a gentleman. This testimony of Karasek is borne out by plaintiff in error and Alberto as to what complaining witness said over the phone.

Plaintiff in error testified on the trial that Miss Myers took sick at the Alberto flat after they had been drinking the wine, and commenced to vomit and went from the parlor to the bathroom; that he caught hold of her and helped her, and asked her if she didn't want to go home, and she said she did not, but wished to lie down for awhile; that he took her into the bedroom, as the parlor was being cleaned up, and she lay down on the bed with her clothing on, and asked him to lie down with her. Alberto testified that he found them lying on the bed at right angles to each other, she at the foot and he at full length, and that as there were two extra mattresses on the bed and another man by the name of Helf in the flat, they took the two mattresses off and laid them on the floor in the parlor, and Helf slept on them while Alberto slept in a chair. Alberto and this other witness testified on the trial that Miss Myers did not take off her clothes, and that she and plaintiff in error were not in a nude condition in the flat.

When the complaining witness reached home her mother examined...