People v. Jordan

• Decision Date: 21 April 1920
• Docket Number: No. 13208.,13208.
• Citation: 127 N.E. 117,292 Ill. 514
• Parties: PEOPLE v. JORDAN.
• Court: Illinois Supreme Court

292 Ill. 514

127 N.E. 117

PEOPLE

v.JORDAN.

No. 13208.

Supreme Court of Illinois.

April 21, 1920.

Error to Circuit Court, Stephenson County; Ralph E. Eaton, Judge.

John Jordan was convicted of rape, and he brings error.

Reversed and remanded.

L. A. Jayne, of Freeport, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Charles H. Green, State's Atty., of Freeport, and George C. Dixon, of Dixon, for the People.

CARTWRIGHT, J.

In an indictment preferred by the grand jury against the plaintiff in error, John Jordan, in the circuit court of Stephenson county, he was charged in four county with the crime of rape upon Irene Schwoob. In each count it was alleged that he was of the age of 17 years and upwards and she was under the age of 16 years, and in the first and second counts the rape was charged to have been committed without force, and in the third and fourth with force and against her will. Upon a trial he was found guilty and that his age was over 26 years, and his punishment was fixed at imprisonment in the penitentiary for the term of one year. The record has been brought to this court by writ of error.

The first alleged error is that the court failed to instruct the grand jury as required by section 1 of division 11 of the Criminal Code (Hurd's Rev. St. 1917, c. 38, § 403). The record, after reciting the presence of the judge, the return of a venire, and appointment of a foreman, contains the following:

‘Oath having been administered to the foreman and the other grand jurors here, and they having been charged by the state's attorney, the court designated an officer of this court to attend the said grand jury, and thereupon the said grand jury retired to consider of their indictments.’

While the state makes it the duty of the court to instruct the grand jury, there has been no recognized method by which one who is merely a prospective defendant to an indictment may preserve and exception to an alleged erroneous statement of law by the court to the grand jury or relating to the duties of that body or a failure to give any instruction. It does not appear in this case that the plaintiff in error was harmed or prejudiced by the fact that the duty was delegated to the state's attorney, and we see no good ground for saying that the failure of the court to advise the grand jury as to the law and their duties affected the validity of the indictment returned against the plaintiff in error.

On the trial a witness produced by the people testified that he heard a conversation between the father of Irene Schwoob and the wife of the defendant at the residence of the father in the presence of the defendant; that the defendant and his wife came there in a buggy and the father came near the buggy and motioned for the witness to come there, and said, ‘Now, folks, what did you come for?’ and that Mrs. Jordan said, ‘Now, we have come to settled this up.’ Counsel for the defendant moved to strike out the statement, and the court denied the motion, holding the statement competent because made in the presence of the defendant. The witness then continued his answer, that the father said: ‘Celia, why didn't you, when you caught them at it, not admit it to me he was guilty when I was there?’ And Mrs. Jordan replied: ‘If I only had, Pete! If I only had!’ The court denied a motion to strike out that statement. The father also testified for the people to the same conversation, and said that the defendant and his wife came there and he asked her: ‘Why didn't you talk to me when I was up there, when you knew this thing was going on? You catched them at it and I asked you about it and you denied it.’ To which she replied: ‘If I only had! If I only had!’ He also said that Mrs. Jordan wanted to know if he would not come along to Freeport with them to see if it could not be settled, and he told her it was out of his power; that the state had a hold of it.

It is sought to justify the ruling of the court under the general rule that an admission may be implied from the conduct of a defendant in remaining silent when statements are made by a third person in his presence charging him with a crime, if the circumstances are such that a person so situated would naturally deny guilt or make explanations. If the circumstances are of that nature the evidence is admissible, and the question whether it amounts to an implied admission of guilt is to be determined by the jury. Ackerson v. People, 124 Ill. 563, 16 N. E. 847;People v. Tielke, 259 Ill. 88, 102 N. E. 229. The evidence is admitted, not because somebody else made the statement, but because, taking all the circumstances into account, the jury may reasonably conclude that the accused has expressly or impliedly ratified the statement is his own or impliedly admitted its truth, and unless that is so the evidence cannot be admitted. People v. Pfanschmidt, 262 Ill. 411, 104 N. E. 804, Ann. Cas. 1915A, 1171. The fatal objection to this evidence is that it brought before the jury a statement of a witness who was not competent to testify to the fact and in defiance of an express statutory provision. The defendant's wife was neither competent to testify in his behalf nor against him, and when offered as a witness by the defendant she was properly excluded upon the objection of the people. Miner v. People, 58 Ill. 59;Gillespie v. People, 176 Ill. 238, 52 N. E. 250. Inevitably the jury would take the testimony that she made the statement as evidence of the fact. The question to Mrs. Jordan why she did not admit the fact when she had caught them in the act was no...