People v. Gambony

• Court: Illinois Supreme Court
• Writing for the Court: THOMPSON
• Citation: People v. Gambony, 402 Ill. 74, 83 N.E.2d 321 (Ill. 1949)
• Decision Date: 17 January 1949
• Docket Number: No. 30620.,30620.
• Parties: PEOPLE v. GAMBONY.

402 Ill. 74

83 N.E.2d 321

PEOPLE

v.GAMBONY.

No. 30620.

Supreme Court of Illinois.

Nov. 18, 1948.

Rehearing Denied Jan. 17, 1949.

Error to Criminal Court, Cook County; Harold Ward, Judge.

Frank Gambony was convicted of taking immoral, improper and indecent liberties with a minor 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 (John T. Gallagher, W. S. Miroslawsky, Arthur Manning and Melvin S. Rembe, all of Chicago, of counsel), for the People.

THOMPSON, Justice.

Frank Gambony, plaintiff in error, was tried in the criminal court of Cook County on an indictment consisting of two counts, the first charging him with taking immoral, improper and indecent liberties with a certain female child of the age of thirteen years and the second charging him with contributing to the delinquency of such minor child. He was tried by a jury and found guilty on the first count of the indictment. Motions for a new trial and in arrest of judgment were overruled and he was sentenced to the penitentiary for a term of not less than five nor more than ten years. To reverse the conviction and sentence this writ of error is prosecuted.

Errors assigned by the plaintiff in error are: (1) That he was not proved guilty beyond all reasonable doubt; (2) that improper evidence was admitted and proper evidence excluded on the trial; (3) that he was deprived of a fair and impartial trial by the prejudicial conduct of the State's Attorney; (4) that the court erred in refusing to give proper instructions at his request; and (5) that counsel was not given an opportunity to argue a motion for a new trial.

The evidence discloses the prosecuting witness, a female child thirteen years of age, who was in the sixth grade of school at Saint Ann's, became acquainted with plaintiff in error in the summer of 1946, through a girl friend, one Charlotte, who was sixteen years of age. Charlotte introduced her to plaintiff in error at which time he took them in his automobile for a short ride past Lincoln Park and then brought them back in front of Charlotte's home; that he gave Charlotte fifty cents saying it was for both of them and they took the money and went to the corner drugstore and had a coke; that she saw plaintiff in error again in about two weeks with Charlotte, which was on a school day; that Charlotte called plaintiff in error on the telephone and that the prosecuting witness, with Charlotte, saw him in front of a grocery store on the corner of Webster and Sedgwick; that they got in his automobile and Charlotte asked him for some money which he gave her and then drove them to school; that thereafter, on several occasions, he took them in his automobile to school, took them riding and always gave Charlotte money; that he took the prosecuting witness to his place of business, which is located on North Avenue; that it was an electric shop and in the back there was a sink, ice-box, bed, desk and phonograph. The evidence further discloses that prosecuting witness continued to call at his place of business, talk to him on the telephone, and he met her on several occasions, taking her to school and giving her small amounts of money.

The prosecuting witness testified that she went to plaintiff in error's place of business with Barbara Baumgardner a thirteen-year-old girl, and when they went into the back of his place, plaintiff in error was playing the phonograph; that he offered them whisky and showed them a nude picture. She testified, in particular, that on April 16, 1947, she saw plaintiff in error between 5:00 and 6:00 o'clock in the afternoon when he stopped his car while she was on the street and said, ‘Hop in;’ that he said, ‘Let's go to the shop;’ that when they got there he called her in back and said he would show her some pictures; that they sat down on the bed looking at the pictures, he telling her they were pictures of himself when he was on the stage. She further testified, ‘He pinned my one arm down to the bed with his and got on top of me. He pulled down my underwear. He unzipped his trousers before. I tried biting him but I couldn't.’ She testified that after this instance she visited him again and on other occasions received money from him.

The testimony of the prosecuting witness was corroborated as to plaintiff in error's attentions to her and other girls, but proof of the alleged assault depended upon her own testimony. Plaintiff in error admitted the attentions paid by him to the girls, but denied any impropriety with the prosecuting witness.

There was considerable evidence offered that plaintiff in error carried on some negotiations with the People's witnesses before and during the trial. He testified they were trying to shake him down for $5000. The People's witnesses testified he tried to bribe them to drop the case or testify in his favor.

The mother of the prosecuting witness testified that during the pendency of this suit plaintiff in error called her on the telephone and talked with her and she had him talk with her husband.

The father testified that he talked with plaintiff in error twice over the telephone and that plaintiff in error asked him, ‘I want to know whether you and your wife would give me permission to marry your daughter;’ that he said, ‘You are a forty-three-year-old man and want to marry my daughter thirteen years old. No;’ that plaintiff in error then said, ‘I like that kid and she likes me.’ He further testified that he was later called on the phone by plaintiff in error who said he would like to meet him at Russo's place, that they could go back there and talk; that he told him there was nothing to talk about; that plaintiff in error then said if Gilio could get his daughter to change her story it would make things a lot easier for him; that he said, ‘Why should I do that?’ And plaintiff in error said, ‘After all, you are a Dago and I am a Dago.’

Edna Chivina testified, in rebuttal, that she met and talked with plaintiff in error on a number of occasions while the cause was on trial; that at the restaurant across the street from where the trial was being heard, during the lunch period, he talked to her and asked her to say that they (the Gilios) were supposed to ask for $5000; that he offered her a reward to do this and asked her if she knew anything about the telephone calls to the Gilios and she told him she did; that later, accompanied by her son, James Baumgardner, she met him at Adler's drugstore, and he told her he would not have an awful lot right now until after the case but would give her $500 and following that would be money until $5000 was paid.

James Baumgardner testified that he went with his mother to Adler's drugstore and Gambony came in and sat down with them; that he said things did not look too good for him, that if we would do him this favor he would help us out; that he would give us $500 for doing it.

Plaintiff in error contends the People failed to prove his guilt beyond all reasonable doubt and in support of this contention he cites the case of People v. Pazell, 399 Ill. 462, 78 N.E.2d 212, and urges that it is the rule that where a conviction of taking indecent liberties with a child rests upon the testimony of the prosecuting witness and the defendant denies the charge, there must be substantial corroboration of the prosecuting witness by some other evidence, fact or circumstance in the case. People v. Martin, 380 Ill. 328, 44 N.E.2d 49, and a number of other cases are also cited in support of this rule. There can be no doubt that these cases present a correct proposition of law, which was properly applied ot the facts as revealed in those cases, but there is much dissimilarity in the facts there and the facts that appear from the record in the instant case. In the Pazell case the prosecuting witness was seven years of age and her testimony was entirely uncorroborated as to the acts alleged and the testimony as to surrounding circumstances. In the Martin case the prosecuting witness was six years of age and the question of identification by the child of tender years was brought about by unusual circumstances. It will readily be observed by the facts as disclosed by this record that both the analyzed cases are not analogous in comparison with the undisputed evidence in the instant case, which presents a long, continued and unusual interest on the part of plaintiff in error in girls of adolescent ages. His acts in giving money to and in entertaining the prosecuting witness and other young girls of immature age in the privacy of his living quarters certainly give rise to an inference that his interest in them was other than platonic. His attempt to negotiate with the parents of prosecuting witness and the testimony offered that he attempted to bribe the People's witnesses is a further inference of guilty knowledge.

Other cases cited by plaintiff in error are differentiated in that they involve the crime of rape and the questions there revolve around the identity of the accused or the question of consent, neither of which is involved here.

Plaintiff in error contends that the prosecuting witness made no complaint and that this casts doubt on her story, and the cases of People v. Blanch, 309 Ill. 426, 141 N.E. 146, and People v. Provenzano, 305 Ill. 493, 137 N.E. 414, are cited in support of this...