People v. Crowe

• Court: Illinois Supreme Court
• Writing for the Court: FULTON
• Citation: People v. Crowe, 390 Ill. 294, 61 N.E.2d 348 (Ill. 1945)
• Decision Date: 23 May 1945
• Docket Number: No. 28555.,28555.
• Parties: PEOPLE v. CROWE.

390 Ill. 294

61 N.E.2d 348

PEOPLE

v.CROWE.

No. 28555.

Supreme Court of Illinois.

May 23, 1945.

Error to Criminal Court, Cook County; Rudolph Desort, Judge.

Harry Crowe was convicted of taking indecent liberties with a female child, and he brings error.

Affirmed.

Charles A. Bellows, of Chicago, for plaintiff in error.

George F. Barrett, Atty. Gen., and William J. Tuohy, State's Atty., of Chicago (Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, Joseph A. Pope, and Edmund H. Grant, all of Chicago, of counsel), for the People.

FULTON, Chief Justice.

The plaintiff in error, Harry Crowe, was indicted in the criminal court of Cook county on July 30, 1943, for the crime of taking indecent liberties with a female child who, at the time of the crime on July 19, 1943, was not quite seven years old, she having been born on July 22, 1936. The trial was commenced before a jury on March 6, 1944, and the plaintiff in error was later convicted by the jury and sentenced to imprisonment in the penitentiary. He prosecutes this writ of error to reverse that judgment.

At the time in question, the plaintiff in error was thirty-one years of age, was married and had two children. He and his family occupied the first floor and basement of an apartment at 3830 West Flournoy street in Chicago. Joanne Konsoer, a child about eight years of age, who testified for the State, resided with her mother, father, brother and sister on the second floor of this same building, and was in the third grade in a Catholic school. The complaining witness lived about three doors away on the same street and was in grade 2-B in the Gregory school. She and Joanne were playmates, and she had known the plaintiff in error, Harry Crowe, for a long time.

She testified to the commission of two offenses upon her, one in Crowe's home when she and Joanne were there together and were each sitting on one of plaintiff in error's knees, and the second offense about two weeks later when Crowe took her into his basement and stood her on a trunk and took indecent liberties with her. After she left the basement, she went upstairs with Joanne Konsoer and Joanne told her to go home and tell her mother and father, which she testified she did. Her mother testified that she had a conversation with her daughter on July 19, 1943, and, after she talked to her, the mother called the poice, and later she went to the State's Attorney's office with her daughter and Joanne and her mother.

Both girls were uncertain as to what day the first offense was committed, but they both testified it was in the month of July, 1943, and in the afternoon. Joanne corroborated the complaining witness as to the offense when she and complaining witness were sitting on Crowe's kness in the dining room of his home, and she further testified that the wife of plaintiff in error was not at home at the time but that his sons, Robert and Butchie, were running in and out of the house. Joanne told her mother that evening what Crowe had done. No objection was made by the plaintiff in error to this testimony.

Police officer March testified that he arrested the plaintiff in error on July 20, and took him to the police station and later sent him to the State's Attorney's office. Later that day, after plaintiff in error returned from the State's Attorney's office, he had a conversation with him in which Crowe admitted he had takne indecent liberties with complaining witness in his basement. The plaintiff in error did not testify and, therefore, the testimony of the complaining witness and Joanne Konsoer as to the commission of the two offenses was not denied by the defendant or by any other of the defense witnesses, nor did the plaintiff in error deny the testimony of the police officer as to the confession.

The only witness offered by the plaintiff in error was the testimony of his wife, Alice Crowe. She testified she saw complaining witness in her home on only one occasion, that being July 5, 1943, which was her little boy's birthday, at which time her husband was home in the afternoon and he was playing with the children, roughing them up a bit, playing tag and climbing over the furniture, and that they were all sitting around her husband's knees. She further testified that on July 19, 1943, she left home about 4:45 P.M. and the complaining witness was not there. On cross-examination this witness testified she had seen complaining witness come into their building and go up to the Konsoer apartment, and that from time to time, the Konsoer girl had been down in the basement, which was used by both families, and that the Leonard girl had at times gone down with her; that there was a trunk in the basement and that they kept some kittens there which her husband would feed.

The plaintiff in error put on the stand three witnesses to prove his general reputation for chastity and good morals. One of his character witnesses resided in Elmhurst and was general manager of a plant where plaintiff in error worked, and his knowledge was based simply on his business acquaintance, and on cross-examination he said he had never discussed it with anyone. Alice MacArthur, another character witness, lived distant about ten minutes walk, and Harriet Murray, the third witness, lived about five blocks away from the Crowe home. The People in rebuttal called three witnesses who testified the reputation of plaintiff in error for chastity and good morals was bad. The evidence on this point was about evenly divided.

The plaintiff in error contends that he was not proved guilty beyond all reasonable doubt. In support of his position the plaintiff in error cites, without comment, three cases, People v. Schwabauer, 369 Ill. 261, 16 N.E.2d 723;People v. Phipps, 338 Ill. 373, 170 N.E. 305;People v. Freeman, 244 Ill. 590, 91 N.E. 708. In the Schwabauer case, there was a conviction for taking indecent liberties with a male child eleven years of age. The judgment was reversed and the cause remanded for a new trial because of the unsatisfactory evidence for both the People and the defense. There were eleven witnesses produced by the defense to prove an alibi. The defendant testified and denied all the testimony of the State's witnesses; one of the State's witnesses was uncertain in his identification of the defendant, and there were strong contradictions as to other material features of the evidence.

In the Phipps case, there was a conviction for the crime of taking indecent liberties with a female child, but the indictment also contained a count for assault with intent to commit rape, which was later nolled after the proof was in. The child's mother had, however, testified to a complaint by the child as to the attempted rape. The girl was ten years of age. The defendant called several witnesses to contradict and impeach the testimony of the prosecuting witness and also testified in his own behalf. The court reversed and remanded the case for a new trial because there were too many errors of a material character committed on the trial to justify this court in affirming the judgment. The errors pointed out were in the giving of instructions, the refusal of the court to require the prosecution to elect on which count it would prosecute the case, and because the jury might be materially affected by the incompetent testimony of the mother given in support of the stricken count.

In the Freeman case, a judgment of conviction in an indecent-liberties case was reversed because the testimony of the prosecuting witness, a child about eight years of age, was not clear and convincing and because there was practically no corroboration of her story.

We are aware of the danger of resting a conviction on the testimony of a child of tender years, and such a conviction ought not to stand unless the testimony is corroborated or is otherwise clear and convincing. People v. Johnson, 298 Ill. 52, 131 N.E. 149, 151. In the case cited, the complaining witness was a girl eight years of age. She lived with an uncle to whom she told her story and the two were the only witnesses for the State. The defendant, Johnson, was the only witness for the defense, and he denied all the statements made by the complaining witness and her uncle. This court said in that opinion: ‘The weight to be given the testimony of these witnesses was a matter for the jury, and its verdict will not be set aside, unless the finding is so palpably against the evidence as to indicate that the verdict is based upon passion or prejudice.’

In People v. Fitzgibbons, 346 Ill. 338, 179 N.E. 106, a conviction of the crime against nature was sustained where the testimony of the complaining witness, a child seven years old, was corroborated by that of another boy of the same age and to some extent by that of adult witnesses, the court stating that the credibility of the witnesses and the weight of the testimony were questions for the jury.

On this trial the jury saw and heard all of the witnesses and it was their province to judge the credibility of the witnesses and the weight of the evidence, and we cannot say that the plaintiff in error was not proved guilty beyond all reasonable doubt. People v. Klemann, 383 Ill. 236, 48 N.E.2d 957;People v. Caylor, 386 Ill. 501, 54 N.E.2d 514.

Plaintiff in error also contends that the trial court erred in permitting the complaining witness to testify because of her age and because she did not know the nature of an oath or whether it was wrong to lie. She was born on July 22, 1936. At the time of the crime on July 19, 1943, she lacked three days of being seven years old, and at the time she testified at the trial on March 6, 1944, she was about seven years and seven and one-half months of age.

Counsel for plaintiff in error, in his statement of the facts, omits some of the child's testimony bearing on her competency. She testified: ‘I know what it means to lie; * * * I am going to tell the truth. * * * If I told my mother a fib or a lie she would hit me. I...