People v. Lewis
| Citation | 252 Ill. 281,96 N.E. 1005 |
| Parties | PEOPLE v. LEWIS. |
| Decision Date | 21 December 1911 |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Montgomery County; A. M. Rose, Judge.
Thomas Lewis was convicted of rape, and brings error. Reversed and remanded.
Hogan & Wallace, for plaintiff in error.
% w. h. s/tead, Atty. Gen., and Harry C. Stuttle, State's Atty. (Michael J. McMurray, of counsel), for the People.
Plaintiff in error was indicted and tried in the circuit court of Montgomery county for the crime of rape. A verdict of guilty was returned, and he was sentenced to 10 years in the penitentiary.
The evidence on the part of the people tended to show that on the evening of October 9, 1910, plaintiff in error, a young man 27 years of age, drove to the home of a neighbor, Luther Weller, and while there Margaret Ann Weller, a lady about 59 years of age, together with her two little granddaughters, aged 6 and 11 years, respectively, came to the same place; that plaintiff in error remained at the Weller home until after Mrs. Weller and her grandchildren had departed, leaving a few minutes thereafter; that he overtook Mrs. Weller and the children, who were riding in a single buggy, drove past them, tied his horse to a tree, and, returning, stopped the horse being driven by Mrs. Weller, took her forcibly from the conveyance, and ravished her by the roadside. Mrs. Weller died on November 24, 1910, but it is not claimed that the alleged assault contributed in any way to cause her death. As this trial was held at the January, 1911, term of the Montgomery circuit court, the only witnesses produced on the part of the people to prove the actual commission of the alleged assault were the two little girls.
Plaintiff in error contends that, admitting all the evidence on the part of the people to be true, the facts proven do not constitute any crime, that an incompetent witness was permitted to testify, that incompetent evidence was admitted on the part of the people, and that the court erred in giving certain instructions asked on behalf of the people.
The testimony of the two little girls relative to the assault was practically the same. They each testified that, after the plaintiff in error had driven around them, tied his horse, and returned, he stopped the horse their grandmother was driving and climbed into their buggy; that he entered into conversation with Mrs. Weller, and that he talked to her and she talked to him. They did not attempt to detail any of the conversation, but agree that plaintiff in error then seized hold of Mrs. Weller and pulled her from the buggy. The evidence is not clear as to the manner in which this was done, nor as to what resistance was offered by Mrs. Weller. The girls both testified, however, that all three of them were ‘hollering,’ and the older girl testified that plaintiff in error told them, if they did not shut up and keep quiet, he would kill them, and, if he killed one, he would kill all. The testimony of the girls shows that plaintiff in error pulled Mrs. Weller out of the buggy, and that when she reached the ground she was standing upon her feet, and the only evidence of any resistance made by her at any time is that the older girl says at that tiem she held to the buggy. Both firls say that plaintiff in error and Mrs. Weller then walked about three paces to the grass at the side of the road; that he laid Mrs. Weller upon her back and put up her clothing; that he stood up beside her and unbuttoned his own clothing, she lying on the ground meanwhile; that he then exposed his privates and got on top of her; that after a few minutes he arose, and without saying a word went to his own buggy, and she, likewise saying nothing, arose and joined the girls in her buggy. The testimony of both the children is that, from the time plaintiff in error and Mrs. Weller left the buggy until after the act was completed, Mrs. Weller made no outcry, said nothing, and made no resistance. Other evidence tending to corroborate the claim that an assault had been made was that of a neighbor living some distance away, who testified that he heard outcries from about the place where the assault was alleged to have been committed and at the time specified by the girls, and the testimony of a physician who was called shortly after the assault was alleged to have occurred, and who examined and treated Mrs. Weller. He testified that he found a torn and loosened condition of the viscera on the left side, and that it was bleeding; that this condition could have been occasioned by any sort of external violence, but he did not believe that voluntary sexual intercourse would cause such an abrasion.
[1] After the assault is alleged to have been committed, Mrs. Weller and the two little girls drove to the home of a nephew of Mrs. Weller. This nephew was called as a witness, and over the objection of plaintiff in error testified, on behalf of the people, as to the physical condition of Mrs. Weller when she reached his place and to her statement that she had been raped on the highway by Tommy Lewis. Upon objection being made, the answer of the witness that she had stated that she had been raped by plaintiff in error was stricken out, and the jury were instructed not to consider it. The witness was then permitted, over objection, to testify that Mrs. Weller had stated at that time that she had been raped out there on the road. It is this testimony which plaintiff in error contends was incompetent. Any statement made by Mrs. Weller in the absence of plaintiff in error, under the ordinary rules of evidence, was hearsay. In a prosecution for rape, where the prosecutrix herself testifies, it may be proven by third persons that the prosecutrix made complaint to them, provided such complaint was made without inconsistent or unexplained delay. This constitutes an exception to the general rule that hearsay evidence is inadmissible, and is allowed on the supposition that a woman thus assailed will avail herself of the first opportunity to tell of the wrong which has been done her. The proof of such statements is admissible, however, only upon the theory that it tends to corroborate the testimony of the prosecutrix given upon the trial. It is not proper to make such proof for the purpose of showing the commission of the offense itself, and this proof cannot be made at all if the prosecutrix is not a witness. Stevens v. People, 158 Ill. 111, 41 N. E. 856;State v. Wheeler, 116 Iowa, 212, 89 N. W. 978,93 Am. St....
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