People v. Gray

• Decision Date: 25 October 1911
• Citation: 96 N.E. 268,251 Ill. 431
• Parties: PEOPLE v. GRAY.
• Court: Illinois Supreme Court

251 Ill. 431

96 N.E. 268

PEOPLE

v.GRAY.

Supreme Court of Illinois.

Oct. 25, 1911.

Error to Circuit Court, Jersey County; Owen P. Thompson, Judge.

Charles R. Gray was convicted of rape, and he brings error. Reversed and remanded.Ferns & Sumner (Smith & Wallace, of counsel), for plaintiff in error.

W. H. Stead, Atty. Gen., Walter J. Chapman, State's Atty., and Fred H. Hand, for the People.

CARTER, C. J.

Charles R. Gray, plaintiff in error, was indicted by the grand jury of Jersey county, at the September term, 1910, for the crime of rape upon one Josephine Miles. He was afterward convicted in the circuit court of that county, and his punishment fixed at two years in the penitentiary. After motions for new trial and in arrest of judgment were overruled and judgment entered on the verdict, this writ of error was sued out.

The prosecuting witness was 15 years of age on May 17, 1911. Plaintiff in error, at the time of the alleged offense, was 39 years old. He was unmarried, a piano agent by occupation, and for several years had been making his headquarters at Jerseyville, in said county. He testified that he considered that city his home. The prosecuting witness testified that she became acquainted with the plaintiff in error in May, 1909, while she was helping with housework at the home of Mr. and Mrs. Henry C. Maloney, in Jerseyville; that he brought player pianos there for Maloney to fix, coming about once a week; that along in October of that year she met him in front of English & Slayton's store, in Jerseyville, in response to a letter she had received from him through the mail, requesting her to come; that she went with him to a certain yard, which she described, where he had intercourse with her; that she next met him about a week after, by appointment, between 7 and 8 in the evening, in English & Slayton's store, where he made his headquarters for selling pianos; that he let her in the door, which he then locked, and they had intercourse twice that evening on a leather couch in the back part of the store; that she met him in that store on four or five evenings in October and November, 1909, and had intercourse with him each time; that they also had intercourse once on the ground, near the railroad track; that after this last-mentioned occasion he went with her a part of the way to the house where she was working, and while talking on the corner near the house they saw people they knew in the yard, and one of the men started towards them; that Gray pulled off his overcoat and started away, saying he did not want them to know who he was; that the man spoke to her as he passed, and she replied. The man in question testified that he was keeping company with a lady for whose mother the complaining witness then worked; that he spoke to Josephine Miles after he left the house, and by walking rapidly tried to overtake the man, when the latter started to run. The witness stated that he could not recognize who the man was. The prosecuting witness further testified that she received several letters during October and November of that year from plaintiff in error, but had burned them; that besides these letters she received two unsigned postal cards from him; that she knew plaintiff in error's handwriting; and that the cards were in his handwriting. The two cards, both addressed to the prosecuting witness, were introduced, and one of them had, in addition to the address, the words, ‘Something coming.’ The witness further testified that shortly thereafter, about Christmas, 1909, she received a pocketbook at the Jerseyville post office, wrapped in pasteboard, and addressed to her in plaintiff in error's handwriting; that he had previously told her he was going to send her a Christmas present. Another witness testified that she knew the handwriting of plaintiff in error, and that these postal cards were written by him. The testimony for the people also tended to show that plaintiff in error had a key to English & Slayton's store at certain times, when his headquarters were there. There was also evidence tending to show that plaintiff in error had tried to hire a witness to procure testimony that the prosecuting witness was over 16 at the date of the alleged offense.

Plaintiff in error denied having had improper relations of any kind with the prosecuting witness. He testified directly contrary to her on all material points. He denied that the postal cards were in his handwriting, or that he had sent them or the pocketbook to her, or had had the meetings with her at any of the places testified to, or had done more than try to ascertain her correct age. Testimony on his behalf was also given by a physician, who stated that he had treated the prosecuting witness, in April, 1910, for a venereal disease, and she stated to him that plaintiff in error never had intercourse with her, but that a married man was the cause of her trouble. A deputy sheriff also testified for plaintiff in error that in reply to a question of the state's attorney, in the latter's office, the prosecuting witness said that she did not have intercourse with Charles R. Gray. From the state's attorney's questions, on his cross-examination of this witness, it would seem that there was some misunderstanding on the part of the prosecuting witness as to who was meant by the state's attorney by ‘Dolly’ Gray; she not knowing, or pretending not to know, that it was a nickname for plaintiff in error. It may be noted, however, that the deputy sheriff, immediately after this interview, personally swore to a complaint charging Gray with rape upon said Josephine Miles. Testimony was introduced to the effect that the reputation of the prosecuting witness for truth and veracity was bad.

Plaintiff in error at the proper time moved to quash the indictment. It is contended that the court erred in overruling this motion. The indictment consisted of four counts. Each count charged the plaintiff in error with having carnal knowledge of the prosecuting witness, and alleged that she was a female child under the age of 16 years. The second count alleged that the act was done with force and violence. Two of the counts alleged that plaintiff in error was over 17 years of age. It is insisted that the court should have quashed the indictment, because it is apparent on their face that the counts charged separate and distinct felonies.

[1] A person cannot be placed on trial for two or more separate and distinct felonies at one trial, but it is proper practice to insert several counts, in an indictment charging the felony in different ways, to meet the varying phases of the evidence. The court will not quash the indictment, or put the prosecutor to his election as to which count he will proceed under, where it may be doubtful if the intention be not to charge the same or cognate offenses growing out of the same transaction. West v. People, 137 Ill. 189, 27 N. E. 34; 34 N. E. 254;Kotter v. People, 150 Ill. 441, 37 N. E. 932.

[2] It is argued that, as each count charged the felony to have been committed on a different date, it affirmatively appears on the face of the indictment that it charged as many separate and distinct felonies as there were counts. Such is not the law. It is necessary to allege in the indictment a day and year, but the time may be laid at any time previous to the finding of the indictment, during the period within which it may be prosecuted. Wharton on Crim. Pl. & Pr. (9th Ed.) § 120; 1 Bishop's New Crim. Proc. § 400; 1 Chitty on Crim. Law (4th Am. Ed.) 223; Kettles v. People, 221 Ill. 221, 77 N. E. 472;Koop v. People, 47 Ill. 327.

[3] Nothing appears on the face of the indictment to indicate that the different counts were not introduced solely for the purposeof meeting the evidence as it might transpire; the charges being substantially for the same offense. The court did not err in overruling the motion to quash the indictment.

[4] Plaintiff in error, before the trial opened, moved for a bill of particulars, which motion was granted and the bill of particulars furnished. Plaintiff in error then made a motion for a more specific bill, which was denied. It is urged that the court erred in this ruling. Whether or not the state shall be required to furnish a bill of particulars in a particular case, and the character of such a bill, rests in the sound legal discretion of the trial court. Du Bois v. People, 200 Ill. 157, 65 N. E. 658,93 Am. St. Rep. 183;People v. Smith, 239 Ill. 91, 87 N. E. 885. It is not shown in what way plaintiff in error was surprised or injured by the failure to furnish a more specific bill of particulars. We do not think there was any abuse of the discretion of the court in its ruling on this question.

[5] Counsel for plaintiff in error, at the beginning of the trial, moved to exclude private counsel (who was the state's attorney's law partner) from assisting the prosecution, on the ground that said counsel was employed and paid by a person unfriendly to plaintiff in error. The state's attorney then stated to the court that he was sick and not able to try the case alone. The court thereupon denied the motion. Such matters rest largely in the discretion of the trial court, to be decided according to the special facts and situation in each case. It is the duty of the court to prevent oppression of the accused, and permit such assistance only as justice and fairness may require. The general rules regulating this question have been discussed by this court in Hayner v. People, 213 Ill. 142, 72 N. E. 792, and People v. O'Farrell, 247 Ill. 44, 93 N. E. 136. Under the rules laid down in those decisions, the court was justified in denying the motion.

[6] In selecting the jury, counsel for the state examined a panel of four jurors and tendered them to counsel for the plaintiff in error, who excused two, and thereafter filled the panel and tendered the four to opposing counsel. The state then challenged peremptorily one of the two...