People v. Klemann

• Decision Date: 20 May 1943
• Docket Number: No. 27128.,27128.
• Citation: 383 Ill. 236,48 N.E.2d 957
• Parties: PEOPLE v. KLEMANN.
• Court: Illinois Supreme Court

383 Ill. 236

48 N.E.2d 957

PEOPLE

v.KLEMANN.

No. 27128.

Supreme Court of Illinois.

May 20, 1943.

Error to Circuit Court, Lake County; Ralph J. Dady, Judge.

Walter R. Klemann was convicted of taking immoral, improper, and indecent liberties with a certain male child of age of 13 years, and he brings error.

Affirmed.Frank M. Daly, of Waukegan, for plaintiff in error.

George F. Barrett, Atty. Gen., and Harry A. Hall, State's Atty., of Waukegan (George W. Field, of Waukegan, of counsel), for the People.

THOMPSON, Justice.

Walter R. Klemann, plaintiff in error, was indicted and tried in the circuit court of Lake county, on a statutory charge of taking immoral, improper and indecent liberties with a certain male child of the age of thirteen years, in violation of the Criminal Code. Ill.Rev.Stat.1941, chap. 38, par. 109. He was found guilty by a jury and motions made at the close of the evidence to strike the testimony of the complaining witness and to find the defendant not guilty were overruled. After a verdict, motions for a new trial and in arrest of judgment were denied and plaintiff in error was sentenced to the penitentiary. To reverse the conviction and sentence, this writ of error is prosecuted. Counsel for plaintiff in error presents for consideration three contentions in opposition to the judgment and sentence: first, that the court should have quashed the indictment; second, that there is a fatal variance between the allegations and the proof; and third, that defendant was too intoxicated to form an intent.

The fourth count of the indictment, on which the defendant was convicted, was in the words of the statute. A similar indictment was held sufficient in People v. Scattura, 238 Ill. 313, 87 N.E. 332, 333 wherein this court said: ‘It is sufficient to charge the offense in the language of the statute when the words of the statute so far particularize the offense that by their use alone the defendant is notified with reasonable certainty of the precise offense with which he is charged. * * * The indictment was substantially in the language of the statute, and was entirely sufficient to notify the defendant of the nature of the offense with which he was charged. The motion to quash was properly overruled.’ The application of that case and a similar holding in People v. Crane, 302 Ill. 217, 134 N.E. 99, to the indictment under consideration is complete and renders further discussion of the first contention unnecessary. The cases cited by counsel for plaintiff in error to the effect that charging more than one act in the disjunctive renders the indictment defective for uncertainty, are readily distinguishable.

It is next contended there is a fatal variance between the proof and the allegations as set forth in the indictment. With this contention we cannot agree. The indictment charges the plaintiff in error with taking certain immoral, improper and indecent liberties with a certain male child under the age of fifteen years and of the age of thirteen years, with the intent of arousing, appealing to or gratifying the lust, passions, or sexual desires of the said plaintiff in error, or of the said child, or of both, and the charges are amply supported by the proof. It is true if the acts complained of amounted to merely an attempt, here would be a fatal variance, as urged by counsel for plaintiff in error. However, the acts as committed on the person of prosecuting witness in this case are such acts as constitute the crime of taking indecent liberties with a child, as charged in the indictment.

The final inquiry is whether plaintiff in error was sufficiently intoxicated, at the time he committed the acts complained of, to excuse the crime. The common-law rule has always prevailed in this State that voluntary intoxication affords no excuse for crime. McIntyre v. People, 38 Ill. 514;Rafferty v. People, 66 Ill. 118;Fitzpatrick v. People, 98 Ill. 269;Bartholomew v. People, 104 Ill. 601, 44 Am.Rep. 97; Dunn v. People, 109 Ill. 635;Crosby v. People, 137 Ill. 325, 27 N.E. 49;Addison v. People, 193 Ill. 405, 62 N.E. 235;Bruen v. People, 206 Ill. 417, 69 N.E. 24;Bleich v. People, 227 Ill. 80, 81 N.E. 36;People v. Gilday, 351 Ill. 11, 183 N.E. 573. That rule has been woven into our statute, Ill.Rev.Stat.1941, chap. 38, par. 599, which provides that ‘drunkenness shall not be an excuse for any crime or misdemeanor, unless such drunkenness be occasioned by the fraud, contrivance or force of some other person, for the purpose of causing the perpetration of an offense.’ In the instant case there is no claim that the intoxication relied on as a defense was involuntary.

It is insisted, however, that there is an exception to the above general rule, which is as well established as the rule itself, to the effect that where a specific intent is an essential element of the crime charged, the defendant is not guilty if he was intoxicated to such a degree as to be unable to form an intent. That exception was authoritatively recognized by this court in the late case of People v. Gilday, supra. This supposed exception to the rule, to be exact, is not an exception proper, but a superimposed rule applicable only where the offense is, by law, made to depend upon the state or condition of the mind of the accused at the time, for if the act must be committed with a specific intent, and the defendant is incapable of forming any intent whatever, the offense has not been committed. While drunkenness is no excuse for any act done or committed, the want of mind operates, not to excuse the crime, but to render the accused incapable of committing it. Crosby v. People, supra; People v. Bartz, 342 Ill. 56, 173 N.E. 779;Schwabacher v. People, 165 Ill. 618, 46 N.E. 809. Since specific intent is an ingredient of the crime charged, it was proper for the defense to offer evidence to prove that defendant was intoxicated to that degree that he was incapable of entertaining the specific intent, and that he neither then nor afterwards yielded it the sanction of his will. Schwabacher v. People, supra; Bruen v. People, supra. Such proof is competent to show that an indispensable element of the crime was wanting. Addison v. People, supra. The fact that defendant's drunkenness was voluntary does not render the defense incompetent, because an intent to become intoxicated would not tend to prove an intent to take indecent liberties with a child. Addison v. People, supra. The question properly and squarely presented here is, Was plaintiff in error intoxicated to that degree that he was incapable of entertaining the specific...