People v. Page

• Citation: 6 N.E.2d 845,365 Ill. 524
• Decision Date: 18 February 1937
• Docket Number: No. 23956.,23956.
• Parties: PEOPLE v. PAGE.
• Court: Illinois Supreme Court

365 Ill. 524

6 N.E.2d 845

PEOPLE

v.PAGE.

No. 23956.

Supreme Court of Illinois.

Feb. 18, 1937.

Error to Appellate Court, Second District, on Error to Circuit Court, Ogle County; Frank T. Sheean, Judge.

Ira Page was convicted of a mere assault, which conviction was affirmed by the appellate court , and he brings error.

Reversed and remanded.

WILSON, J., dissenting.C. H. Linscott, of Rockford, for plaintiff in error.

Otto Kerner, Atty. Gen., and S. Donald Crowell, State's Atty., of Oregon, Ill., for the People.

FARTHING, Justice.

Ira Page, whom we shall call the defendant, was indicted by the grand jury of Ogle county for the crime of assault with a deadly weapon with intent to do bodily injury. A jury found him guilty of a mere assault and he was fined $50. His conviction was affirmed by the Appellate Court for the Second District, and the cause is here for further review on writ of error.

Without permission, on October 6, 1934, Frank Simone and two companions entered upon defendant's land to hunt squirrels. They killed one squirrel, and defendant, who was at home, heard the shot. He and Jake Fassler at once set out in search of the hunters and in a short time came upon their parked automobile on a public highway near the west line of Page's land. Defendant came upon the hunters and asked who gave them permission to hunt upon his land, and they admitted that they were there without leave. The evidence is hopelessly in dispute as to what happened from then on. Defendant told them they were under arrest and seized Simone's gun and attempted to wrest it from him. He was unsuccessful, but in the course of the struggle the gun was discharged without harm. The hunters and defendant proceeded toward the boundary line, and defendant continued arguing and threatening to have them arrested for trespassing. Defendant says he placed one hand on Simone's gun and the other on his shoulder and marched him to the line fence, but this is disputed by the hunters, who testified that he merely walked along with them. About the time they reached the fence, defendant was joined by John, Paul, and William Page, relatives of his who had heard the shot fired during the struggle over the shotgun. The people's evidence shows that defendant was about to throw a rock at Simone, but was told not to by Fratello, one of the hunters. Defendant then turned and hurled the rock at Fratello. Simone then climbed the fence. Defendant obtained a club, went under the fence and struck Simone across the face with the club, rendering him unconscious. He then disarmed him. Defendant's version is that as they neared the road he asked Fassler to bring him ‘the club,’ and that Simone then jerked away from him, climbed the fence, and fell into the ditch on the other side. Defendant pursued Simone, carrying the club under his right arm, and again took hold of him. In endeavoring to pull away, Simone again fell into the ditch, and defendant insists that the stock of the gun struck the ground, causing the barrel to hit Simone over the eye, knocking him unconscious. Defendant says that Fratello was hit by William Page with a club rather than by himself with a rock, and that this blow was struck while William Page was helping defendant in a struggle for the possession of Fratello's gun. It appears that William Page disarmed Fratello and took from him a revolver and his shotgun. This witness also took Simone's revolver from him while he was unconscious. Defendant's witnesses claimed that the attack with the clubs was provoked by Simone thrusting his shotgun through the fence and pointing it at defendant. There is evidence that progane language was freely used by defendant and the hunters alike.

In the view we take it is unnecessary to consider whether the verdict is supported by the evidence. An examination of the record shows that defendant was prejudiced at the trial by the introduction of irrelevant and immaterial testimony. Defendant was asked on cross-examination, over objection of counsel, if it was not a fact that he had had lots of trouble in the past and if he had not threatened to shoot people who came onto his land. He was also asked if he had not, on the morning of October 8, 1934, two days after the alleged assault, in the presence of certain people, threatened to shoot any game warden who came on his farm. The facts of his difficulties with certain game wardens and sheriffs were then gone into in detail, over his objections. On his motion this testimony was ordered stricken at the close of all the evidence, and the jury was instructed to disregard it. These same game wardens testified for the people in rebuttal of the testimony of defendant's character witnesses. The testimony as to the threats was irrelevant and injected a collateral issue, to defendant's prejudice. The error was not cured by striking the testimony at the end of the trial and instructing the jury to disregard it.

On the cross-examination of Edward Nettz, a character witness for defendant, the following occurred.

‘Q. Didn't you, on one of these occasions, state that you knew that Mr. Page had been having considerable trouble in the past in that connection? [Meaning with regard to hunters on defendant's farm.]

‘Objection by Mr. Hanneken.

‘The Court: Overruled. He may answer.

‘A. Not to my knowledge.

‘Q. Did you ever...