People v. Kolep
| Decision Date | 27 September 1963 |
| Docket Number | No. 36681,36681 |
| Citation | 29 Ill.2d 116,193 N.E.2d 753 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Philip KOLEP, Appellant. |
| Court | Illinois Supreme Court |
Prentice Marshall, Chicago, for appellant.
William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago , for appellee.
A joint indictment against the defendant, Philip Kolep and James Bracken, Dennis Doherty, LeRoy Buick, Eugene Avery, Roy McGovern and Donald Coglan, was returned in the criminal court of Cook County charging the murder of Roseann Beckman. The defendant, Kolep, who was tried jointly with Avery, McGovern, Coglan and Bracken before the same jury, was found guilty and sentenced to 14 years in the penitentiary. For a reversal of the lower court judgment he urges that (1) the proof against him was insufficient, (2) the denial of the petition for change of venue was error, (3) the admission of certain photographs into evidence was error, (4) the giving of a certain instruction was erroneous and (5) permitting the jury to fix the punishment was unconstitutional and erroneous.
On the night of June 21, 1960, McGovern and Mrs. Beckman arrived at Joe's Tavern at the corner of 37th Street and Wallace Avenue in Chicago. The defendant had already been there, drinking with some friends of his-a married couple. Mrs. Beckman drank there and danced with McGovern and Coglan. Later the defendant joined Coglan at the bar. Shortly before 2:00 o'clock in the morning someone suggested going to another tavern and, upon being invited to accompany them, Kolep joined the group. He, Coglan, McGovern, Avery and Mrs. Beckman then left the tavern in McGovern's car. On the way to the other tavern, McGovern side-swiped another car, left the scene of the accident and drove to the corner of 43rd and Parnell, where Kolep resided. Just before reaching Kolep's house, McGovern passed another car in which Bracken, Doherty and Buick were riding. This car followed McGovern to the street in front of Kolep's home. While McGovern's car was stopped Mrs Beckman got out and began walking west along 43rd Place. Colgan and McGovern followed her, while Kolep got into the other car. Both Coglan and McGovern struck Mrs. Beckman; she fell to the sidewalk and struck her head. The second car then drove up, with the defendant in it. Someone picked Mrs. Beckman up and placed her in the back seat. Buick, Bracken and Doherty were in the front seat while Kolep, Coglan, McGovern, Avery and Mrs. Beckman were in the back seat. This car was driven another one-half block into an alley where one of the group had intercourse with her. When someone turned to defendant and asked if he 'wanted some,' he stated that he got disgusted and went home. When someone expressed the opinion that Mrs. Beckman was dead, McGovern, Coglan and Avery ran while Bracken, Buick and Doherty took Mrs. Beckman to a desolate area near a railroad track, dumped her body on the ground and fled. After Kolep's departure, Coglan took Mrs. Beckman's rings, which were later recovered. Her body was found where it had been left and was there photographed by members of the police department.
Defendant contends the proof merely reveals he was an innocent spectator and the proof was insufficient to show he was an accessory before the fact. The written statements and the oral admissions of defendant and the respective co-defendants had various portions deleted for evidentiary purposes and the admitted portions were limited to the person making the statement or those in his presence when the same was made. It clearly appears from the evidence that the woman was not conscious when the intercourse took place in the car. Prior to the men leaving the tavern there is proof as to conversations between certain of them as to their intentions to have intercourse with the woman. The defendant left the tavern with the woman, Avery, McGovern and Coglan. These three men had discussed having intercourse with her. Later when the second car drove along side the McGovern car, one of the occupants asked who the girl was-at the time she was walking away from McGovern's car. McGovern stated that he told the men in the other car that they could 'have' her if they wanted. The accused called to someone in the other car, left the McGovern car and got into the second car. He was in this second car when it pulled up to where Coglan, McGovern and Mrs. Beckman were walking. He saw them hit her, was in the back seat where she was placed after being picked up from the sidewalk, remained in the car when all the other men were in it, remained in the car when it was driven to the alley and while the intercourse took place, making no objection. In an oral admission he stated that he had seen one of the men have intercourse with the unconscious body of Mrs. Beckman. In a later written statement he stated that he did not know if Mrs. Beckman was sexually molested.
In People v. Smith, 391 Ill. 172, 62 N.E.2d 669, we held that an innocent spectator is not criminally responsible because he happens to see another person commit a crime, but if the proof shows that a person is present at the commission of a crime without disapproving or opposing it, it is competent for the jury to consider this conduct in connection with other circumstances and thereby reach the conclusion that he assented to the commission of the crime, lent to it his countenance and approval and was thereby aiding and abetting the same. In the absence of explanation, such conduct is not consistent with that of an innocent person similarly situated, and is sufficient to support an inference that a common understanding or design existed. Mere presence or negative acquiescence is not enough to constitute a person a principal, but circumstances may show there is a common design to do an unlawful act to which all assent. (See, People v. Thicksten, 14 Ill.2d 132, 150 N.E.2d 813.) Although it is generally true that the proof tending to show one to be an accessory before the fact would be of events occurring before the inflicting of the fatal blow, evidence of subsequent acts is nonethless competent to prove participation in a criminal assault. People v. Cione, 293 Ill. 321, 127 N.E. 646, 12 A.L.R. 267.
After a thorough examination of the evidence in this record it is difficult to assess the conduct of the defendant other than that of participating in a common understanding and design to have sexual relations with Mrs. Beckman against her will. No other reasonable explanation can be advanced for the striking her, knocking her to the ground and thereafter having intercourse with her. The fact that they may not have intended to bring about her death cannot relieve them of their legal responsibility. The killing of a human being, even though involuntary, constitutes the crime of murder if it occurs during the commission of an unlawful act which in its consequences naturally tends to destroy human life, or is committed in the prosecution of a felonious intent. (Ill.Rev.Stat.1959, chap. 38, par. 363.) In standing by, aiding, abetting or assisting in the prepetration of a crime, the accused was an accessory before the fact and punishable as a principal. (Ill.Rev.Stat.1959, chap. 38, par. 582.) If the group with which the accused associated himself had a common design to rape Roseann Beckman, then whatever act any one of the group did in furtherance of the original design is the act of all and all are equally guilty of the murder that inadvertently occurred while they perpetrated the rape. People v. Rudecki, 309 Ill. 125, 140 N.E. 832.
As to the defendant's contention concerning the alleged error of the trial court in denying his petition for a change of venue, the State asserts that such right was waived by the defendant. It is provided in section 26 of the Venue Act (Ill.Rev.Stat.1961, chap. 146, par. 26), that:
On July 19 the case was assigned for trial to Judge Drucker, who ordered the case set for trial on October 3. On September 16 Braken moved for a severance on the ground that...
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