People v. Daugherty

• Decision Date: 26 November 1969
• Docket Number: No. 39596,39596
• Citation: 253 N.E.2d 389,43 Ill.2d 251
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. George DAUGHERTY, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 389

253 N.E.2d 389

43 Ill.2d 251

The PEOPLE of the State of Illinois, Defendant in Error, v. George DAUGHERTY, Plaintiff in Error.

No. 39596.

Supreme Court of Illinois.

Nov. 26, 1969.

Patrick T. Murphy, Chicago (Freddy S. Meinfelder, Minneapolis, Minn, of counsel) for plaintiff in error.

William J. Scott, Atty. Gen., Springfield, and Edward V. Hanrahan, State's Atty., Chicago (James B. Zagel, Asst. Atty. Gen., and Elmer C. Kissane and Patrick T. Driscoll, Jr., Asst. State's Attys., of counsel) for the People.

SCHAEFER, Justice.

In September of 1959, a jury in the circuit court of Cook County found the defendant, George Daugherty, guilty of taking indecent liberties with a child, and he was sentenced to the Illinois State Penitentiary for a term of not less than one year nor more than 15 years. That judgment is now before the court upon a writ of error, which has been consolidated with a writ of error to review an order dismissing the defendant's post-conviction petition.

The prosecuting witness testified that on January 4, 1959, when he was 14 years old, he visited the defendant's apartment to watch television. The defendant occupied an adjoining apartment and was on friendly terms with the boy's family. The boy testified that while he and the defendant were alone in the apartment watching television, the defendant asked him to rub his back. The defendant was dressed in pajamas. While the boy was massaging the defendant's back, the defendant turned around, unzipped the boy's pants and committed an act of fellatio. The prosecuting witness then committed a similar act upon him. A motion to suppress the defendant's confessions was overruled, and the two confessions, one to the arresting officer and one to an assistant State's Attorney, were received in evidence.

The defendant testified that he knew the boy's family socially and that they frequently visited his apartment and he visited theirs. He also testified that he did not, on January 4, 1959, or at any other time put his hands on the boy's penis or engage in fellatio with him, and that he had treated the children in the family of the prosecuting witness 'with the best of respect * * *. I treated them more or less as if they were my own children.' He also testified that after his arrest the interrogating officer accused him of committing similar acts with a younger brother, but that he denied any such acts. On cross-examination the defendant denied that the younger brother was ever alone with him in his apartment or that any of the boys ever massaged his back on the bed in the bedroom. He testified that he 'treated every one of the children with the highest respect and tried to take them under my wing, like a family.' The defense also called Arley Benton, a television repairman, who testified that he had removed the chassis of the defendant's television set for repairs on January 3, leaving only the cabinet.

On rebuttal the prosecuting witness was permitted to testify over objection to two other acts with the defendant, one of which occurred after he had been helping paint the defendant's apartment rather than after they had been watching television. He testified that he thought that it was the third act, that of January 4, which occurred after painting. One younger brother testified that he had been alone with the defendant in his apartment on three separate occasions and that each time he had massaged the defendant's back while defendant lay on the bed. Another younger brother also testified to being alone with the defendant in his apartment on three occasions and to massaging his back, twice on the couch in the living room and once on the bed in the bedroom. Each of the younger brothers denied that the defendant had treated him 'fine.'

In this court the defendant does not challenge the admissibility of his confession. His initial contention is that the rebuttal testimony of the two younger brothers was erroneously admitted in evidence because it suggested that the defendant performed sexual acts upon them. In a prosecution for taking indecent liberties with a child, evidence of similar offenses with other children is incompetent to establish any element of the offense charged. (People v. Greeley, 14 Ill.2d 428, 152 N.E.2d 825; People v. Blockburger, 354 Ill. 301, 188 N.E. 440; People v. Rogers, 324 Ill. 224, 154 N.E. 909.) In this case, however, the testimony was admitted to rebut the defendant's statements made during his direct examination. The situation thus differs from that in People v. Kirkwood, 17 Ill.2d 23, 160 N.E.2d 766, in which the admissibility of evidence suggestive of other offenses committed by the defendant was held to be improper. There the irrelevant testimony of the defendant which was relied upon to justify...