People v. Pargone

• Decision Date: 09 December 1927
• Docket Number: No. 18348.,18348.
• Citation: 158 N.E. 716,327 Ill. 463
• Parties: PEOPLE v. PARGONE.
• Court: Illinois Supreme Court

327 Ill. 463

158 N.E. 716

PEOPLE

v.PARGONE.

No. 18348.

Supreme Court of Illinois.

Oct. 22, 1927.

Rehearing Denied with Modification Dec. 9, 1927.

Error to Criminal Court, Cook County; William V. Brothers, Judge.

Patsy Pargone was convicted of rape, and he brings error.

Affirmed.Frank A. McDonnell, of Chicago (Lester E. Williams and Elwyn E. Long, both of Chicago, of counsel), for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., and Robert E. Crowe, State's Atty., of Chicago, and James B. Searcy, of Springfield (Henry T. Chace, Jr., Edward E. Wilson, and Samuel A. Hoffman, all of Chicago, of counsel), for the People.

DUNN, J.

Patsy Pargone was convicted of rape and sentenced to 25 years' imprisonment in the penitentiary. He has sued out a writ of error to review the record, assigning errors in the admission of evidence, the giving and refusing of instructions, the conduct of the state's attorney during the trial, and the sufficiency of the evidence.

Bessie Mikle, the complaining witness, is a colored woman, who had been employed as a maid in Chicago at one place for more than 5 years, but at the time of the commission of the crime was not working, having recently returned from a hospital. She occupied a three-room flat in Roosevelt road and another colored woman lived with her. On August 11, 1926, they were sitting in the living room at 11 o'clock at night when there was a knock at the door. To the question who was there, the answer ‘Bob’ was made. Miss Mikle opened the door and the plaintiff in error walked in, followed by two other men, all armed and with weapons drawn. They demanded her money first of Miss Mikle, then of her companion, and took what money the women had, as well as a wrist watch of Miss Mikle. They then tied the women's hands behind them, their feet together, and laid them on the bed. There was another person in the flat at the time—Samuel Evans, a colored boy employed as a porter in a poolroom and barber shop, who had called on Miss Mikle about a half hour before and at the time of these events was in the bathroom. The plaintiff in error pushed the bathroom door open, made Evans come out, tied his hands and feet, and laid him on the bed, but afterward pulled him off the bed and pushed him under it. The men then ransacked the house, gathered together a large quantity of clothing, underwear, dresses, and hats, which they packed in hat boxes, suitcases, and clothes bags and later took away. They then came back to the bed on which the women were lying, cut the ropes which bound their feet, and the plaintiff in error had intercourse with Miss Mikle, while one of his companions had intercourse with the other woman. The two men then exchanged women, and the other man had intercourse with Miss Mikle, while the plaintiff in error committed the crime against nature with the other woman. The men then left, taking the clothes which they had packed with them, after threatening the victims if they complained to the police. This was the narrative testified to by the two women and Evans. The two women succeeded in releasing one another and then released Evans, who ran at once to the police station and reported the occurrence. Later in August Miss Mikle went to the same police station in response to a telephone call and reported to the desk sergeant. While in the station she saw the plaintiff in error, recognized him as the man who had assaulted her, and upon her identification he was arrested. He was later identified by the other woman and Evans, and on the trial these three witnesses testified positively to his identity as the man who committed the crime.

The defense was an alibi, in support of which Jennie Cerrato testified that she conducted a grocery store and meat market at 1753 Polk street and lived next door, at [327 Ill. 466]1751. The plaintiff in error had formerly worked for her for $22 a week, but on August 11 had not been working for her for over two months because he had cut his leg with a cleaver. She had a daughter, whose birthday was August 11, and for whom she was giving a party at her home that evening. In the afternoon she telephoned to the home of the plaintiff in error and gave a message to his mother that she wanted him to help her in the store that evening. The plaintiff in error, in response to the message, reached the store at about 7 o'clock, and Mrs. Cerrato left him in charge and went to her home, where the party was beginning at the same time. She was back at the store at 8 and at 10 o'clock and saw him there. At the latter visit she told him to prepare lunches for 15 men who were working across the street at the Psychopathic Hospital. Mrs. Cerrato stayed at the store while the plaintiff in error took the lunches to the hospital. He delivered them at 11 o'clock and came back in about five minutes. Upon his return he cleaned the store and put things in the ice box. Mrs. Cerrato paid him $6 for his services, and he left about 11:30, 11:45 or 12 o'clock.

Felix Greco, Mrs. Cerrato's son, testified that, when the plaintiff in error reached the store at about 6:30 or 6:45 o'clock, Greco gave him an apron and told him to stay at the store.

The plaintiff in error denied any connection with or knowledge of any of the events testified to for the prosecution or his presence at the place. He testified substantially to the same account as Mrs. Cerrato of his presence at the store and work there. He did not remember seeing Greco at the store. He got an apron from some one there, but did not remember whether it was Mrs. Cerrato's son or not.

[1] The contention that the evidence did not prove the plaintiff in error guilty beyond a reasonable doubt cannot be sustained, for, if the three witnesses to the occurrence are believed, he is clearly guilty and the evidence showing the alibi cannot be true. The identification of the plaintiff in error was positive and was not shaken by anything shown in the record unless the evidence of the alibi was true.

Bessie Mikle testified that plaintiff in error had ‘a kind of a scar on one side of his nose,’ which aided her in making the identification. On cross-examination Evans testified that when he went to the police station the night of August 11 he described three men, among whom was the plaintiff in error, whom he described as follows:

‘I gave the weight of Patsy Pargone about 130 pounds, height five feet two, age about 24. I gave the complexion and color of coat, light suit, gray cap. I told him that the smallest one had a mark on his nose across the top, between the eyes, over the nasal bone.’

On direct examination plaintiff in error testified:

‘I never had any scar on the right or left side of my face in my life. I have no scar across the nose on the nasal bone. I never had a scar across the nose. I never had a scar on the nose, through the nose, on my face, either temporarily or permanent. I have no scar on my face on either the left or the right side or across the bone of the nose, as indicated by Sam Evans, who testified here.’

The cross-examination developed the fact that plaintiff in error did have a mark on his nose, which he felt with his finger. He was then asked to and did step down and show the mark to the jury at the jury box. The facts that such a mark was on his nose, that witnesses noted it at the time the crime was being committed, and that he first denied its existence and finally exhibited it to the jury, may have seriously discredited him with the jury, for it was a material matter about which he was testifying on the question of his identification.

[2][3] The plaintiff in error contends that the evidence does not establish, beyond a reasonable doubt, that the crime of rape was committed, because it fails to show that force was used at the time the act of carnal intercourse occurred.Reference is made to the fact that after the women were tied they were left lying on the bed while their assailants left them to ransack the house, after which they returned to the bedroom, untied the women's feet, pulled up their skirts, took off their step-ins, and had intercourse with them; the fact that the plaintiff in error first asked Bessie Mikle if she had anything wrong in there, to which she...