People v. Gibson

• Decision Date: 26 October 1912
• Citation: 99 N.E. 599,255 Ill. 302
• Parties: PEOPLE v. GIBSON.
• Court: Illinois Supreme Court

255 Ill. 302

99 N.E. 599

PEOPLE

v.GIBSON.

Supreme Court of Illinois.

Oct. 26, 1912.

Error to Criminal Court, Cook County; William H. McSurely, Judge. George Gibson was convicted of statutory rape, and brings error. Reversed and remanded.

J. K. McMahon, of Chicago, for plaintiff in error.

W. H. Stead, Atty. Gen., and John E. W. Wayman, State's Atty., of Chicago (Frederic Burnham, of Chicago, and Oris Barth, of Chrismon, of counsel), for the People.

FARMER, J.

Plaintiff in error, George Gibson, was found guilty in the criminal court of Cook county of statutory rape upon Ida Cedergren, a girl 12 years of age at the time of the alleged crime, and sentenced to the penitentiary for seven years. This writ of error was thereupon sued out.

The father of plaintiff in error was the proprietor of a stoneyard on the south side in Chicago, and plaintiff in error was employed there, first, as a foreman and afterwards as a draftsman. At the time of the alleged offense he was 32 years of age, a married man, with three children. Across from the stoneyard is a public playground in charge of a superintendent, and adjacent to the playground is located one of the Chicago public schools, with its playground. About these places a number of young girls who lived in that vicinity, including the complaining witness, were in the habit of playing. Ida Cedergren testified that in the summer of 1909 plaintiff in error called her into the office of his stoneyard about half past 5 in the evening; that Nora Porter, a schoolmate, then 11 years old, was with her; that, when they went into the office, he barred the door and asked her (Ida) to sit on a table used for drafting purposes; that she took her drawers off, seated herself on the edge of the table, and in that position plaintiff in error had intercourse with her. She further testified that after he had accomplished that act, and before she got off the table, he committed the crime against nature upon her, and then Nora Porter got on the table and plaintiff in error had intercourse with her, and that this all occurred in about 10 or 15 minutes. Nora Porter testified to the same acts. Ida Cedergren also testified that during the six months following that occasion plaintiff in error had intercourse with her in his office a dozen or more times, and that on each occasion one of her girl playmates was with her when the act was committed. Four girls, whose ages at the time of the commission of the acts they testified about ranged from 10 or 11 years to 13 years, testified they had gone to the office of plaintiff in error with Ida, and had seen him have intercourse with her. She was never accompanied by more than one girl at a time, but one or more of them testified they had accompanied Ida to the office of the plaintiff in error a number of times, and at each time he had intercourse with Ida.

[1] The indictment contained five counts, but the state elected to rely upon the offense Nora Porter and Ida testified was committed in the presence of Nora, which was the first alleged offense. Plaintiff in error objected to any proof that he committed the crime against nature upon Ida or that he had intercourse with Nora, and also to any proof of subsequent offenses with Ida. The court overruled the objections, permitted Ida and Nora to testify that plaintiff in error had intercourse with both of them, and other witnesses to testify to several subsequent offenses with Ida. The prosecution also called a physician, who testified he had examined Nora Porter in February, 1910, that the hymen was partially destroyed, and that in his opinion it was caused by external violence. We recently held in People v. Gray, 251 Ill. 431, 96 N. E. 268, that in a prosecution for rape of a female under the age of consent more than one act of intercourse with her might be proven for the purpose of showing the relations and familiarity of the parties, and as tending to corroborate the prosecutrix concerning the particular act relied on for a conviction.

[2] Plaintiff in error objected to the testimony of Ida Cedergren and Nora Porter that he had intercourse with Nora Porter at the time of the commission of the offense upon Ida for which a conviction was sought. The objection was overruled and the proof admitted. Subsequently plaintiff in error moved to strike out that testimony, but the motion was overruled. At the conclusion of the evidence plaintiff in error requested the court to instruct the jury not to consider the testimony of Nora Porter and Ida that he also had intercourse with Nora, but the instruction was refused. Counsel for the state endeavor to sustain these rulings of the court on the ground that the offense against Nora Porter was so connected with the offense charged in the indictment as to form part of the transaction, and therefore proof of the offense against Nora tended to establish the offense against, Ida. We do not think this position sustainable upon reason or authority. The offense testified to as having been committed upon Nora Porter was no part of the offense for which the plaintiff in error was being tried. It was a separate and distinct offense, no part of the res gestae, and proof of it was inadmissible upon any ground.

[3] The rule repeatedly announced in cases of this character is that a separate and distinct offense cannot be proven in support of a prosecution for another offense. But there is an exception to the rule when the two acts are so connected as to be parts of one transaction. In that case proof of one tends to establish the other. Farris v. People, 129 Ill. 521, 21 N. E. 821,4 L. R. A. 582, 16 Am. St. Rep. 283;Parkinson v. People, 135 Ill. 401, 25 N. E. 764,10 L. R. A. 91;Lyons v. People, 137 Ill. 602, 27 N. E. 677;Wistrand v. People, 218 Ill. 323, 75 N. E. 891;People v. White, 251 Ill. 67, 95 N. E. 1036;People v. Molineux, 168 N. Y. 264, 61 N. E. 286,62 L. R. A. 193. Plaintiff in error was tried for rape upon Ida Cedergren. If, as alleged, he a few munutes later committed the same offense against Nora Porter, it no more formed a part of the transaction with Ida, and was no more an explanation of that act, than if it had been committed in her presence on another occasion. Proof of it was no more necessary to an understanding of the question at issue than the testimony of the other girls that on subsequent days plaintiff in error had intercourse with them, and their testimony the court held was incompetent, and either refused to admit it or ordered it stricken out after the witnesses had testified. The mere proximity of time within which two offenses may be committed does not necessarily make one a part of the other. Immediateness is not the true test. There must be a causal relation or logical and natural connection between the two acts or they must form parts of but one transaction. Tested by these rules, it seems very plain the court erred in admitting testimony of an offense against Nora. This testimony was of a highly prejudicial character. Plaintiff in error testified he was not guilty of either the offense againstIda Cedergren or Nora Porter. He introduced a number of witnesses who worked in and about the stoneyard, and others, who testified they never at any time saw Ida or any of the other girls going in or out of the plaintiff in error's office; that Ida and the other girls who testified were in the habit of coming into the yard and annoying the men by soliciting pennies and otherwise; that the plaintiff in error had more than once driven them out of the yard, and had at one time used a whip on some of them. Plaintiff in error also proved good general reputation for chastity by a considerable number of witnesses, and this proof was not disputed. Some of the evidence of Ida Cedergren, and some other testimony, was of such character that we refrain from referring to it in this opinion. It is sufficient to say that in the state of this record it cannot be said the admission of the testimony referred to was harmless.

Fully appreciating the gravity of the offense charged and the importance to the public morals and welfare of administering punishment in such cases where there is no reasonable doubt of the guilt of the accused, we have read the evidence with much care. The record does not make a case where a court of review can say the competent proof so conclusively shows guilt as to remove all doubt and justify the affirmance of the judgment notwithstanding the error in the admission of the proof referred to. People v. Cleminson, 250 Ill. 135, 95 N. E. 157. We do not say that if only competent proof had been admitted, and the verdict had been guilty, it would not have been sustained, but as plaintiff in error testified he was not guilty, and offered other proof tending to show, in some degree, at least, the improbability of the stories told by the little girls, it is impossible for us to say that the verdict must have been the same if the incompetent testimony had not been admitted. This court in People v. Gray, supra, adopted a more liberal rule in permitting proof of other offenses upon a female under the age of consent than the one for which the defendant is being tried than is applied in some other jurisdictions, but we cannot, without violating the right of a defendant to a fair trial, hold that proof may also be offered that he committed other offenses of the same character with other females. Nor can we say that, where the evidence is conflicting, the admission of such proof would not be sufficient to turn the scales against a defendant in an otherwise doubtful case.

Lena Levy was permitted, over plaintiff in error's objection, to testify that he had intercourse with her on one occasion when she went to his office with Ida after he had first committed the act with Ida, but at the conclusion of her testimony in chief that statement was stricken out. There is room for grave doubt whether the damaging effect of it could be removed from the minds of the...