People v. Johnson, 13788.

• Court: Illinois Supreme Court
• Writing for the Court: THOMPSON
• Citation: People v. Johnson, 298 Ill. 52, 131 N.E. 149 (Ill. 1921)
• Decision Date: 09 June 1921
• Docket Number: No. 13788.,13788.
• Parties: PEOPLE v. JOHNSON.

298 Ill. 52

131 N.E. 149

PEOPLE

v.JOHNSON.

No. 13788.

Supreme Court of Illinois.

April 21, 1921.

Rehearing Denied June 9, 1921.

Error to Circuit Court, Bureau County; Joe A. Davis, Judge.

Frank Johnson was convicted of the crime against children, and brings error.

Affirmed.R. L. Russell and J. L. Spaulding, both of Princeton, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Carey R. Johnson, State's Attorney, of Princeton, and Edward C. Fitch, of Chicago (Josef T. Skinner, of Princeton, of counsel), for the People.

THOMPSON, J.

Plaintiff in error, Frank Johnson, was convicted in the circuit court of Bureau county of the crime against children, and was sentenced to the penitentiary. He prosecutes this writ of error to reverse that judgment, on the grounds that the complaining witness was incompetent, that the verdict is against the evidence, that the court erred in refusing an instruction, and that the court erred in refusing to grant a new trial.

Plaintiff in error is 69 years of age and has lived in the city of Princeton for more than 50 years. The complaining witness, Alice Pierson, was 8 years of age January 9, 1921. Her father and mother were dead, and she lived with Mr. and Mrs. John Peterson, of Princeton. The testimony of plaintiff in error and the complaining witness was in substantial accord as to all occurrences leading up to the commission of the alleged offense, but with respect to the commission of the offense was in direct conflict. The complaining witness left her home on Sunday morning, September 19, 1920, to go to Sunday school at the Swedish Lutheran church. The usual way took her past the residence of plaintiff in error. He was in his front yard, and when she arrived in front of his home he invited her to come in and get some grapes. She followed him to the rear of the house, where he got some grapes, and then went into the house for some paper in which to wrap them up. When he handed her the package of grapes they were on the back porch, which was inclosed. According to the testimony of the little girl, plaintiff in error put his hands under her dress and passed his hands over her body. He did not get inside her underclothes, and did not in any way physically injure her. She testified that he then unbuttoned his pants and exposed himself to her, and asked her if she did not want to play with his private parts. She testified that she said she did not, and that she opened the porch door and ran away to Sunday school. Plaintiff in error denies that he felt of the body of complaining witness, and denies that he exposed his person to her.

It is first contended that the complaining witness was incompetent to testify, and that she want not able to understand the nature of an oath. The trial took place November 15 and 16, 1920, approximately 2 months before she arrived at the age of 8 years. She was then attending the public schools and was in the second grade, and appeared to be a child of ordinary intelligence. She testified that she understood the difference between a truth and a falsehood, and that she knew that it was wrong to tell a falsehood, and that when people take an oath to tell the truth, and then tell a falsehood, something bad happens to them after they are dead. The competency of a child to testify depends upon his or her intelligence, understanding, and moral sense. If the preliminary examination shows that the child understands the nature and meaning of an oath, and is of sufficient intelligence and understanding to comprehend the things about which she is called upon to testify, it is not error to admit her testimony. Sokel v. People, 212 Ill. 238, 72 N. E. 382;People v. Karpovich, 288 Ill. 268, 123 N. E. 324. Whether complaining witness possessed the understanding necessary to make her a competent witness was determined by the court from a preliminary examination. He saw the witness, and heard her testify, and was in a much better position to determine her competency than we are. From a review of the preliminary examination and of her testimony before the jury we are satisfied that the court did not err in permitting complaining witness to testify.

It is next urged that the evidence does not show beyond a reasonable doubt that plaintiff in error is guilty of the charge laid in the indictment. We realize the danger of resting a conviction on the testimony of a child of tender years, and such a conviction ought not to stand, unless the testimony is corroborated, or is otherwise clear and convincing. There is some conflict in the testimony of the complaining witness, but none in material matters. It also appears that she talked with her uncle, John Peterson, and with the state's attorney, regarding liberties taken with her, and they suggested to her words to use in describing the actions of plaintiff in error. For instance, she testified that plaintiff in error ‘took a part of his body out of his pants,’ and that Peterson told her to make that kind of an answer. It is natural that complaining witness would have difficulty in describing the acts of plaintiff in error, and the mere fact that language was suggested to her by which she might express herself modestly is not sufficient to reject her testimony. Peterson testified that he went to see plaintiff in error the morning following the alleged assault, and that he found him employed at his trade as an electrician. He charged plaintiff in error with the offense, and plaintiff in error replied that he did nothing but pull up the little girl's stocking. On Thursday of the same week plaintiff in error requested Peterson to come to the courthouse and have a talk with him about the case. They sat down together, and plaintiff in error suggested that they settle it in some way. Peterson told him that he could not settle the matter, after he had done what he had to the little girl, and plaintiff in error said:

‘Well, it was not quite so bad as she said; I don't think that I unbuttoned my pants before her, but they might have been unbuttoned, and I did not know it.’

Later on he said:

‘I don't think I asked her to play with it, or if she wanted to play with it.’

All of these statements are denied by plaintiff in error. The three witnesses whose testimony we have set out in substance were the only witnesses who testified on the trial. The jury and the trial judge saw and heard these witnesses, and they were in much better position to determine the credibility of the witnesses than we are from the written record. The weight to be given the testimony of these witnesses was a matter for the jury, and its verdict will not be set aside, unless the finding is so palpably against the evidence as to indicate that the verdict is based upon passion or prejudice. People v. Karpovich, supra. The trial judge who heard this testimony has approved the verdict, and we are convinced from an examination of the record that plaintiff in error was proven guilty beyond a reasonable doubt.

Plaintiff in error contends that the court erred in refusing to give his instruction No. 34. This instruction told the jury that in judging the weight to be given the testimony of the prosecuting witness, and in judging the credibility of the witness, they should take into consideration the age of the witness, her ability to know and understand the nature and meaning of an oath, her...