People v. Karpovich

• Court: Illinois Supreme Court
• Writing for the Court: STONE
• Citation: People v. Karpovich, 288 Ill. 268, 123 N.E. 324 (Ill. 1919)
• Decision Date: 05 June 1919
• Docket Number: No. 12546.,12546.
• Parties: PEOPLE v. KARPOVICH.

288 Ill. 268

123 N.E. 324

PEOPLE

v.KARPOVICH.

No. 12546.

Supreme Court of Illinois.

April 15, 1919.

Rehearing Denied June 5, 1919.

Error to Criminal Court, Cook County; Thomas J. Windes, Judge.

Evan Karpovich was convicted of taking indecent liberties with a child of the age of eight, and he brings error. Affirmed.

George B. Cohen, of Chicago (Joseph H. Lawler, of Chicago, of counsel), for plaintiff in error.

Edward J. Brundage, Atty. Gen., Maclay Hoyne, State's Atty., of Chicago, and Noah C. Bainum, of Springfield (Edward E. Wilson, Eugene L. McGarry, and Grover C. Niemeyer, all of Chicago, of counsel), for the People.

STONE, J.

The plaintiff in error was convicted in the criminal court of Cook county under the fourth count of an indictment charging him with taking indecent liberties with Rose Rozhon, a child of the age of eight years.

The indictment consisted of five counts, the first three of which charged plaintiff in error with the offense of rape, and the fifth of which charged him with having committed certain acts tending to contribute to the delinquency of said child, Rose Rozhon.

At the close of all the evidence the court overruled a motion of the plaintiff in error to exclude the evidence and to instruct the jury to return a verdict finding the plaintiff in error not guilty. Thereupon the plaintiff in error entered a motion to exclude the evidence and direct a verdict of not guilty on the three counts charging rape. This motion was allowed, and instructions given by the court to the jury to find the plaintiff in error not guilty on counts 1, 2, and 3 of the indictment, and the jury so found. The cause was submitted to the jury on the fourth and fifth counts of the indictment.

It is contended by plaintiff in error that the trial court erred in overruling his motion to exclude the evidence and in refusing to give the instruction directing a verdict of not guilty as to each and every count in said indictment; that the plaintiff in error was convicted on the uncorroborated evidence of Rose Rozhon, a child of eight years, and that the evidence, taken as a whole, is insufficient to sustain the conviction; that if the evidence tends to prove the committing of any crime it is that of assault with intent to commit rape on the said prosecutrix, which was not charged in said indictment; that the court erred in admitting and refusing testimony and in refusing certain instructions of plaintiff in error.

As to the first contention, the rule in this state is that the trial court cannot entertain a motion to instruct the jury to find the defendant not guilty in a criminal case, for the reason that the jury are the judges of both the law and the facts, although it is proper practice for the court, in case it is his judgment that a new trial must be granted if a conviction is had on any count or counts of the indictment, to so advise the prosecutor, for the exercise of his official judgment and discretion. People v. Zurek, 277 Ill. 621, 115 N. E. 644. While the ruling of the court in instructing the jury to find the defendant not guilty as to the first three counts of the indictment was error, it was not an error that the defendant could complain of, as he received the benefit of it.

It is urged that the court erred in not making proper and sufficient examination of the complaining witness, Rose Rozhon, touching her intelligence and knowledge of the moral and legal consequences of a violation of her oath, before permitting her to testify. The rule obtains as laid down by this court in Shannon v. Swanson, 208 Ill. 52, 69 N. E. 869, in the following language:

‘Section 10 of division 2 of the Criminal Code provides that every person who is neither an idiot nor lunatic, nor affected with insanity, and who has arrived at the age of fourteen years, shall be considered of sound mind, and that persons who have not reached that age shall be considered of sound mind if they comprehend the distinction between good and evil. In analogy to this rule of the criminal law, a witness who has reached the age of fourteen years should be presumed, prima facie, competent. If below that age, his competency to testify is to be determined by an inquiry as to the strength of his mental faculties and his power to understand and appreciate the moral duty to speak the truth. This inquiry is to advise the trial judge, whose duty it is to determine whether the person is competent to testify. The decision of this matter may be reviewed, but as the intelligence of the witness is to be ascertained, to some extent, by his appearance and conduct while in the presence of the court, and as the judge is vested with a degree of discretion, it is only when there has been an abuse of discretion or a manifest misapprehension of some legal principle that the decision will be reviewed.’

The requirement is not one of age but of understanding. Whether such child possessed the understanding necessary to be competent to testify may be determined, on review, from the preliminary examination and her testimony before the jury. Featherstone v. People, 194 Ill. 325, 62 N. E. 684. It appears from the record that Rose Rozhon was examined before the court touching her competency to testify by the state's attorney. It lay within the discretion of the trial court to permit her to testify, and from her answers and her testimony in the case it is evident that there was no abuse of that discretion.

It is very earnestly urged by plaintiff in error that he was convicted on the uncorroborated evidence of Rose Rozhon and that the evidence is insufficient to sustain the conviction. Rose Rozhon testified that on Sunday, August 18, 1918, about noon, the defendant came to her while she was at a lumber pile near her home, and pulled her about a block, to an office at Homan avenue and Twenty-First street, where the alleged immoral, improper, and indecent liberties detailed by the witness took place; that the plaintiff in error laid her on the floor and lay upon her; that he put his privates in contact with hers; that she screamed and tried to get away; that while they were in the room in question somebody called ‘Roesky,’ after which plaintiff in error left the room; that while plaintiff in error was out of the room witness ran away to her home and told her mother of the occurrence; that she never saw plaintiff in error before the day in question; that she pointed him out in the office to the policeman; that plaintiff in error wore black clothes, a white shirt, and had a mark on his nose.

Helen Sotana, a witness called on behalf of the state, testified that on the day in question, between 11 and 12 o'clock, while playing on a water pipe, she heard some one say, ‘No!’ ‘No!’ ‘No!’ in Bohemian; that she went to the corner and saw plaintiff in error pulling her (Rose); that she had seen plaintiff in error frequently; that he is the man she saw that day; that she could tell by the hat and suit he had on; that they went about one-half block; that she did not see him drag Rose into the office; that about one-half hour later she saw Rose running home; that she was not close enough to identify Rose when she first saw her, but that when she saw her running home she recognized her and could tell by her dress that she was the same child she had first seen.

Annie Sikora testified that on the day in question, at about noon, she went to the office in question with bread and milk for some dogs housed in said building; that she knocked on the door twice, and receiving no response from within, she opened the door and entered the office; that she called, ‘Roesky,’ to which plaintiff in error responded, ‘All right;’ that she said, ‘Here is the bread and milk,’ and then went home; that plaintiff in error came to her, but that she was unable to determine the part of the premises from which he...