People v. Musial

• Decision Date: 12 October 1932
• Docket Number: No. 21297.,21297.
• Citation: 349 Ill. 516,182 N.E. 608
• Parties: PEOPLE v. MUSIAL et al.
• Court: Illinois Supreme Court

349 Ill. 516

182 N.E. 608

PEOPLE

v.MUSIAL et al.

No. 21297.

Supreme Court of Illinois.

June 24, 1932.

Rehearing Denied Oct. 12, 1932.

Error to Criminal Court, Cook County; John Prystalski, Judge.

Frank Musial and another were convicted of rape, and they bring error.

Affirmed.

Cohen, Tomas & Cohen, of Chicago (George B. Cohen, of Chicago, of counsel), for plaintiffs in error.

Oscar E. Carlstrom, Atty. Gen., John A. Swanson, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson and Grenville Beardsley, both of Chicago, of counsel), for the People.

DUNCAN, J.

Frank Musial and Adolph Mishalik, plaintiffs in error (whom we will herein call defendants), and Stanley Milewski, all of the age of twenty-one years and upward, were convicted by the criminal court of Cook county, without a jury, of the crime of rape. Motions for a new trial and in arrest of judgment were overruled, and they were sentenced on November 18, 1931, to imprisonment in the penitentiary for one year. They have sued out this writ of error.

The indictment is in two counts. The first count charges that Frank Musial, Stanley Milewski, and Adolph Mishalik on August 8, 1931, in Cook county, Ill., ‘then and there being a male person of the age of sixteen years and upwards,’ did assault, forcibly ravish, and carnally know Marion Blas, a female, against her will. The second count charges the commission of the crime against nature. No motion to quash the indictment was made, but it is contended by defendants that the first count of the indictment, on which they were convicted, is fatally defective because it alleges three separate and several acts, and because it does not allege that each of the defendants was of the age of six-teen years. The first count of the indictment is clearly a charge of rape on Marion Blas by the defendants jointly, and is not subject to the objection that it charges the crime of rape against each defendant severally. Two or more persons may be jointly indicted and convicted of the crime of rape. People v. Bogue, 319 Ill. 294, 149 N. E. 750. It is true that there is no allegation that each of the defendants was of the age of sixteen years when the crime was committed, because, after naming three defendants, the words of the indictment are, ‘then and there being a male person of the age of sixteen years and upwards.’ The crime charged is rape by force, against the will of Marion Blas, and it is not necessary in such case for the prosecution to allege in the indictment, or to prove, the ages of the defendants, and any allegation of the ages of the defendants in the indictment may be rejected as surplusage. Sutton v. People, 145 Ill. 279, 34 N. E. 420,People v. Schultz, 260 Ill. 35, 102 N. E. 1045. In the case of People v. Trumbley, 252 Ill. 29, 96 N. E. 573, cited and relied upon by the defendants in error, the charge was not rape by force, but was the crime of statutory rape by having sexual intercourse with a female under sixteen years of age.

The testimony of Marion Blas, the prosecuting witness, is in substance as follows: On August 8, 1931, she was seventeen years of age and lived on Wabansia street, in the city of Chicago, with her parents. At about 9:45 o'clock in the evening on that day she and a girl friend, Cecelia Mack, who lived two doors from witness' home, went to the corner of Wood and Wabansia streets to buy sandwiches. As they walked along the street, an automobile followed them and the occupants of the car called to them. The car stopped at the corner on which the sandwich stand was located. Witness thought she recognized one of the men in the car. She stepped up beside the car, looked in, and then went back to the sandwich stand. Milewski got out of the car and spoke to her. She told him that she did not know him, and he then took hold of her and shoved her into the front seat of the car. Mishalik was in the car, at the steering wheel. She called to her friend, saying, ‘Cecelia! Don't leave me alone!’ but Cecelia ran away. Musial ran after her, but did not catch her. Witness told Milewski that she was going to get out of the car, and he said, ‘No, you are going to stay right here,’ and held her by the shoulders. Musial and Mishalik returned to the car. She sat at Mishalik's right, between him and Milewski. Musial sat in the back seat. The car was driven into a dark street and stopped there. Milewski took her out of the front seat and got into the rear seat with her. Musial moved to the front seat. The car was then driven to a gasoline station, where the defendants bought gasoline. They left the gasoline station and drove out into the country. They tried to pour whisky down her throat. Milewski asked her if she knew what she was there for. She said, ‘No; I want to go home.’ He said, ‘We will take you home.’ After a while he tried to ‘get funny’ with her. She fought with him and screamed. He told her that, if she screamed or motioned to any one, he would beat her up. He struck her in the face and held her by the shoulders. The car stopped on a road. After a while Milewski said to Mishalik: ‘I can't do anything with her; you come back and I will take the wheel.’ Milewski moved to the front seat, at the steeringwheel, and Mishalik came into the back seat with her. Mishalik, without saying anything, started to ‘beat her up.’ Her dress was torn. His trousers were open. He made her spread her feet and had intercourse with her. Later he made her turn around and ‘put it in’ her rectum. He then said to Milewski, ‘Now is your chance.’ Milewski then got into the back seat with her and did the same as Mishalik had done. He made her ‘turn around’ also. She fought with him as hard as she could. He was in the back seat with her about fifteen minutes. He got out of the back seat, and then Musial came into that seat with her and did the same as the others had done. While Musial was in the back seat with her, the car got stuck in a hole in the road at a place where the road was being repaired. The defendants tried to get the car out of the hole or ditch. A car from Joliet with two men, a woman and a baby in it came along. The men in that car assisted the defendants in their efforts to get the car out of the hole but without success. Witness got out of the car. She was crying. One of the men from the Joliet car asked her what was the matter, but she did not tell him why she was crying. Her dress was torn, and Milewski put his coat on her. Witness and the three defendants got into the back seat of the Joliet car, and the other people got into the front seat of that car. The Joliet car was driven into town, and the driver stopped and said, ‘Here is a place where you can get a street car.’ The defendants got out of the car and wanted to take witness with them, but she would not go. The Joliet people took her to a police station at La Grange. It was then about 3 o'clock in the morning. She told a policeman at the station what had occurred, and in about an hour the defendants were brought to the police station, and she identified them as the persons who had attacked her. The policeman took her to a doctor for examination. The Joliet people took her home about 7 o'clock that morning. She identified the dress she wore on the night she was with the defendants, and it was introduced in evidence. She testified that before she got into the automobile with the defendants the dress was in perfect condition, that it was torn in her struggle with the defendants, and that it was torn when she got into the car from Joliet.

Material parts of the testimony of the prosecuting witness tending to show the guilt of the defendants were corroborated by five other witnesses for the people, whose names and whose evidence in that regard are as follows:

Cecelia Mack went with Marion...