People v. Phipps

• Court: Illinois Supreme Court
• Writing for the Court: FARMER
• Citation: People v. Phipps, 338 Ill. 373, 170 N.E. 305 (Ill. 1930)
• Decision Date: 21 February 1930
• Docket Number: No. 19948.,19948.
• Parties: PEOPLE v. PHIPPS.

338 Ill. 373

170 N.E. 305

PEOPLE

v.PHIPPS.

No. 19948.

Supreme Court of Illinois.

Feb. 21, 1930.

Error to Circuit Court, Kankakee County; Arthur W. De Selm, Judge.

Ellis Phipps was convicted of taking indecent liberties with the person of a female child, and he brings error.

Reversed and remanded.

W. H. Dyer and Donald Gray, both of Kankakee, and K. C. Ronalds, of Eldorado, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., T. R. Johnston, State's Atty., of Kankakee, and Joel C. Fitch, of Albion, for the People.

FARMER, C. J.

On May 7, 1929, the grand jury of Kankakee county returned an indictment against Ellis Phipps, hereafter called defendant. The first three counts in varying language charged defendant with having taken improper and indecent liberties with Darlene Boudreau, a female child of the age of 10 years. The fourth count charged defendant with an assault to rape her. Before the trial began defendant moved the court to require the people to elect under which count or counts they would prosecute the case. The motion was denied. Defendant was found guilty by the jury, and, after motions in arrest of judgment and for a new trial were denied, the court sentenced him to imprisonment in the penitentiary at Joliet from 1 to 25 years. Defendant has sued out a writ of error to review the record.

The prosecuting witness testified she was 10 years old. She lived about five blocks from the barber shop, to which she went alone about 4:30 p. m. for the purpose of having her hair cut. Defendant cut her hair and was in the shop alone at the time. She testified he put his knee between her legs while cutting her bangs and made her get out on the edge of the chair, saying he had to hold onto something because something was wrong with the chair. He put his hand under her dress. She had on a suit of underwear and over that bloomers, which fastened around the waist with an elastic band. He put his hand inside the bloomers from under the waistband and unbuttoned her underwear. The second time he did that he put some cold cream on his finger and put his hand inside her bloomers and her underwear and in her private parts and asked if that hurt. She told him it did, and he then began cutting her hair and putting tonic on it. The barber chair was facing toward the window and there was a sidewalk outside the window. He was cutting her hair while doing that. He put his hand on her privates three times. He told her not to tell her school companions; that if it felt good she could tell him the next time to do it again. She testified she went directly home from the barber shop, about 5:20 or 5:30. She said she was crying and told her mother what defendant had done. Her father returned shortly and went to get the sheriff. She, her father, and the sheriff went down to the barber shop.

Defendant moved to strike out the evidence of the witness as to what she did after she left the shop, and that she went home and told her mother what had happened. The court ruled that the statement she told her mother or her parents would be stricken, but that he thought the evidence was proper so far as the count charging assault to commit rape was concerned. Defendant again moved to require the state's attorney to elect on what count he would prosecute. The court denied the motion, but said he would determine later whether the state should be required to elect, and stated the jury would disregard what the witness said to others, except on the charge of assault to commit rape.

The prosecuting witness testified on crossexamination that it was not dark when she arrived at the barber shop, and that defendant turned on one light while she was there. The chair she sat on was near the window and the shade was up. It was not put down at any time, nor was the door locked. She had previously been to the shop a number of times and defendant had cut her hair. She always went to the shop alone. She testified not many people passed by the window while she was in the shop; that a good many employees of the Paramount factory passed along the sidewalk by the shop about 4:30. It was defendant's left hand he put inside her clothes. She did not say a word, or try to get out of the chair, or call or make any noise. She further testified that people were passing by on the sidewalk while she was having her hair cut.

The prosecuting witness' mother testified that her daughter came from the barber shop on January 24, 1929, about 5:30 and was terribly frightened and was crying. The mother examined her daughter a few minutes after she arrived home and found cream of some kind in her private parts but she was not hurt in any way. She examined her bloomers and found cold cream on them. She exhibited the bloomers during her testimony. She went to a neighboring telephone to call up the barber shop, but before she did so her husband returned.

The father of the prosecuting witness testified he returned home from work about a quarter to 6. His daughter was not crying when he returned home. He got the sheriff, and he and his daughter went to the barber shop on Washington avenue, where Phipps was employed. The father asked his daughter if defendant was the man that cut her hair, and she said yes. Witness told his daughter to tell the sheriff what defendant had done to her, and she did so. Defendant denied what the daughter charged him with, but said he cut the daughter's hair; that he had a sore finger, and afterward got some cold cream for it. On cross-examination the witness testified that his wife told him after he had returned home from work what had happened to his daughter.

The sheriff stated he accompanied the father and his daughter to the barber shop, and, when they arrived there he asked the prosecuting witness, ‘Is that the man that done what you said?’ and she said, ‘Yes.’ An objection to the question and answer was overruled. Defendant said there was some mistake. The prosecuting witness repeated what had happened, and said, ‘Now, you know you did,’ to defendant. Defendant denied it, but said he put some cold cream on a sore finger. On cross-examination the sheriff testified defendant had a slight injury, which he thought was on his left forefinger. Defendant told the prosecuting witness' father to have the girl examined by a doctor. The girl at that time did not seem to be excited. The witness testified the barber chair was the first one from the window and there was room to walk between it and the window.

It was admitted defendant was about 45 years old. The foregoing is substantially all the testimony for the people.

Defendant testified in his own behalf that the barber chair at which he worked was next to the north window and right by the door. The window opposite the chair covered one side next to the door on the north wall. At the time the prosecuting witness was in the shop the shades on the window were up. There was a bright light of 100 watts or more right over the chair. Just as the prosecuting witness got in the chair defendant turned on the lights. He testified he did not put his hand under the girl's dress or inside her bloomers at any time. She had a hair cloth, which was approximately three feet wide, over her and around her neck. It covered the whole arm of the chair, unless it slipped off. To the best of his memory the prosecuting witness was resting her arms under the cloth and he never put his hand under that cloth. He spoke to her about moving forward so he could even up her bangs, but he did not at any time put cold cream under her bloomers. He did not say anything to her about not telling what he had done. He said nothing about the chair being out of order and did not put his knee between her legs at any time. He did not tell her that if she liked the feeling he would do it again. People were passing each way on the street at the time he was cutting the child's hair, and there were cars parked in front of the shop. People on the opposite side of the street could have seen into the shop. People leaving the Paramount factory passed by the shop. He noticed people were passing, but he never gave a thought to that. He testified he injured his finger while shaking the stove about four o'clock, before the prosecuting witness came in. He put no cold cream on the wound while prosecuting witness was in the chair, but afterward, before she left the shop, he did so. While she was in the chair he did not touch any cold cream. When the sheriff, the prosecuting witness and her father visited him at the barber shop, the defendant testified, the prosecuting witness did not accuse him of having his hand on her privates; that no one accused him of that until the day before the witness...