People v. Diekelmann

• Decision Date: 09 December 1937
• Docket Number: No. 24192.,24192.
• Citation: 11 N.E.2d 420,367 Ill. 372
• Parties: PEOPLE v. DIEKELMANN.
• Court: Illinois Supreme Court

367 Ill. 372

11 N.E.2d 420

PEOPLE

v.DIEKELMANN.

No. 24192.

Supreme Court of Illinois.

Oct. 22, 1937.

As Modified on Denial of Rehearing Dec. 9, 1937.

Error to Criminal Court, Cook County; John J. Lupe, Judge.

Paul Diekelmann was convicted of kidnapping an infant, and he brings error.

Affirmed.Wm. Scott Stewart, 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, Melvin S. Rembe, and Blair Varnes, all of Chicago, of counsel.), for the People.

WILSON, Justice.

Paul Diekelmann was convicted in the criminal court of Cook county, on a jury trial, on the charge of kidnaping an infant. He was sentenced to imprisonment in the penitentiary for the term of thirty years. He has sued out this writ of error to review the record.

The indictment consisted of two counts. The first charged that on April 17, 1936, the defendant enticed away one Dorothy Hubick, an infant four years of age, without the consent of her parents, with the intent to conceal her. The second count charged that the defendant did conceal and imprison the infant without the consent of her parents. Section 166 1/2 of the Criminal Code, under which the indictment was drawn, is as follows: ‘Whoever willfully and without authority forcibly takes or carries or entices away any infant under the age of twelve years, without the consent of the parent, guardian or lawful custodian of such child, with intent to conceal or imprison such infant, or whoever willfully and without authority conceals or imprisons an infant under the age of twelve years, without the consent of the parent or guardian or lawful custodian of such infant, shall, upon conviction, be imprisoned in the penitentiary for his or her natural life, or for any number of years not less than one year.’ Smith-Hurd Ill.Stats. c. 38, § 385; Ill.Rev.Stat.1935, p. 1204, c. 38, par. 378.

The defendant is a drug clerk. He lived with his wife and small son on the first floor of an apartment building at 1834 Melrose street, Chicago. The family of Dorothy Hubick lived at 1805 School street in the same neighborhood where the defendant resided. The mother of Dorothy Hubick testified that on April 17, 1936, shortly before 6 o'clock in the evening, she had given Dorothy a bath, dressed her in clean underwear, gave her two pennies, and permitted her to go outdoors to play; that about two minutes before 6 o'clock the witness was at the hall door talking to Dorothy who was in front of the house. At that time the defendant (whom the witness did not then know by name) passed the door, and Dorothy was missing about the same time. The witness, after hastily looking for her daughter, entered the house, put on her coat, went out the front entrance and to an alley and called her child's name, but did not see her. She then telephoned to a police officer and told him that a man had picked up her baby. She thought the man who had passed her home might be the one who had the child. The child returned to its home, under the circumstances hereafter related. Police officers went to the defendant's apartment. They then informed the witness that they had the man who took her baby, and she went to the defendant's apartment and there saw the defendant. He had on his pants, which were unbuttoned, but did not have on a vest or jacket.

Mary Wimmer testified that she lived in the apartment above the defendant; that in the early afternoon of April 17, 1936, no one appeared to be at home in the defendant's apartment. She did not see the defendant come home but at about 6 o'clock she heard a man's footsteps and the sound of the feet of a child, and afterward she heard a child's voice which sounded as if it came from the defendant's apartment. After 6 o'clock the defendant's mother came to his apartment and asked him to open the door, but she was not admitted and went away with the defendant's small son. The defendant's wife and her mother, Mrs. Schmidt, then came to the defendant's apartment and the witness heard the defendant's wife say, ‘Open the door, Paul,’ and afterward there was a noise as if she were pounding or kicking against the bedroom door in the defendant's apartment. The witness heard the defendant say, ‘Stay out; there is a child in here,’ and that he swore at the time . The defendant's wife and her mother then went out and the witness saw her talking to the landlady of the defendant's apartment. The witness further testified that at about 7:30 o'clock she saw the defendant and Dorothy, the child, near the alley gate; that the defendant told the little girl to go home and waved his hand: that the little girl went down the alley and the defendant went inside. The witness saw three boys outside at the same time she saw the little girl.

Mary Haas, one of the owners of the premises where the defendant resides, testified that a little after 6 o'clock on the evening of April 17, 1936, she saw the defendant's wife go to the front porch alone, but did not see the defendant's mother that evening. Three boys, Ralph Gillespie, Willard Niemic, and Otto Wenzel, the first aged ten, and the latter two each eleven years of age, all testified that they were playing in an alley between School and Melrose streets; that the defendant was near a lamp post and the little girl was a short distance down the alley; that the defendant told the child to get her wagon, and he was pointing; that the child was crying and the three boys took her home. One of the boys testified that the cause of the little girl's crying was that the defendant pushed her.

An aunt of the Hubick child testified to having made an examination of the child and her clothing. The police officer who responded to the telephone call of Mrs. Hubick testified that he and other officers toured the district in search of the child and the man described as the one who might have taken her. After the examination of the child by its aunt, the officers went to the defendant's apartment and found the defendant lying on a couch with his eyes closed and covered with a quilt. The officer had a revolver in his hand and touched the defendant and told him to sit up. The officer was not dressed in uniform but announced that he was a police officer. As the officer started to cross the room in order to open a door, the witness testified the defendant jumped to his feet and picked up a chair, and, as he started to raise it, he, the witness, struck him in the face, causing the defendant's mouth to bleed. The defendant released the chair and fell back on the couch on which he had been lying. The police officers found two pennies in the defendant's apartment, one on the bed and one on the floor.

A physician testified that he examined the defendant; that he saw a laceration on the left side of his upper lip. There was some blood on the gums about the upper teeth. The defendant had no cuts or abrasions on his body. On the index fingers of each hand was blood uniformly distributed, and there was blood under the finger nail and cuticle, some of which was fresh and some had dried. The doctor testified that he examined the Hubick child and found bruises on her face, one of which extended along the left side from the region of the eye to the ear. A vaginal examination disclosed that the hymen was completely torn and there was blood in the vagina. On cross-examination the defendant's counsel sought to show that the doctor had, in the presence of witnesses during a recess of the court, stated that there was no evidence of semen present, and that if permitted to testify upon the subject the doctor would so state. The same offer was made with respect to the absence of semen on the clothing of the little girl. People's objections to the offer were sustained. The defendant's counsel objected to certain questions and answers contained in a statement or confession alleged to have been made by the defendant to polic officers at the police station on the night of the alleged crime, which was propopsed to be read and was read in evidence on behalf of the people. The questions and answers were with respect to indecencies of a revolting character committed by the defendant. The statement in its entirety was admitted in evidence.

On behalf of the defendant the latter's mother testified that she went to the defendant's apartment several times on April 17, 1936. She took care of the defendant's child that day and went in the afternoon to the defendant's home after 4 o'clock with the child. She knocked at the front door but received no response and then went to the rear door and used her key. She was there when the defendant returned. He was drunk. He lay on the sofa and went to sleep; that about 6 o'clock she went to a store about a block away and took the defendant's child with her. She was gone only about eight or ten minutes. The defendant was on the sofa when she left and when she returned, and when she left his apartment at 8 o'clock that night the defendant was asleep on the sofa. When she had gone a short distance from the apartment, she saw people running and saw a policeman in the yard and asked him what was the matter. During the time the witness was in the defendant's apartment there was no little girl present.

A sister of the defendant testified that on April 17, 1936, at about 6:30 o'clock she met the wife of the defendant near the place of the employment of the defendant's wife and that the latter boarded a street car to go home about 8:30 o'clock, and she afterward learned the defendant had been arrested.

The defendant, in his own behalf, testified that he did not know the Hubick child before his arrest, but saw her after the police arrived at his apartment. He denied kidnaping or having the child in his apartment, and stated that he did not see her. He testified that he had been in a tavern on School street and after he was arrested he was taken back to the tavern. He...