People v. Rogers

• Decision Date: 04 February 1927
• Docket Number: No. 17523.,17523.
• Citation: 154 N.E. 909,324 Ill. 224
• Court: Illinois Supreme Court
• Parties: PEOPLE v. ROGERS.

324 Ill. 224

154 N.E. 909

PEOPLE

v.ROGERS.

No. 17523.

Supreme Court of Illinois.

Dec. 23, 1926.

Rehearing Denied with Modification Feb. 4, 1927.

Error to Circuit Court, Wabash County; Julius C. Kern, Judge.

Robert O. Rogers was convicted of taking indecent liberties with a female child under the age of 15, and he brings error.

Reversed and remanded.

Thompson, Dunn, and Farmer, JJ., dissenting.

Creighton & Thomas, of Fairfield, and Charles H. Schafer, of Mt. Carmel, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Ben H, Townsend, State's Atty., of Mt. Carmel, and Merrill F. Wehmhoff, of Decatur, for the People.

STONE, C. J.

Plaintiff in error was convicted in the circuit court of Wabash county of the crime of taking indecent liberties with a female child under the age of 15 years. The indictment consists of two counts. The first charges that plaintiff in error, a person of the age of 17 years and upwards, ‘unlawfully and feloniously did take certain immoral, improper, and indecent liberties with a female child under the age of 15 years, and of the age of 13 years, to wit, Laura May Painter,with intent then and there of arousing, appealing to, and gratifying the lusts, passion and sexual desires of him, the said Robert O. Rogers.’ The second count charges the same offense in slightly different language. When the case was called for trial, the plaintiff in error moved to quash the indictment on the ground that it was vague, uncertain, and informal, and that he was not advised in what manner he was charged with taking immoral, improper, and indecent liberties with Laura May Painter; that he was not by the indictment charged with a crime against the laws of the state; and that the indictment did not set out what constitutes immoral and indecent liberties. The motion to quash was overruled, and plaintiff in error's counsel filed a motion for a bill of particulars, stating specifically the time and place where such acts were supposed to have taken place with said child, and also stating the acts on the part of plaintiff in error which constituted immoral, improper, and indecent liberties, and such other particular facts as would enable him to properly prepare his defense. The motion was allowed, and the people filed a bill of particulars reciting:

‘You are hereby notified that the offenses charged in the indictment in said cause occurred and were committed in the month of August, A. D. 1924, at a woods on the Third street road, on the right-hand fork thereof going out from Little Brick school, beyond the city limits of the city of Mt. Carmel, county of Wabash and state of Illinois.’

Plaintiff in error did not ask for further bill of particulars and the cause proceeded to trial. He brings the record here, assigning as error the refusal of the court to quash the indictment, the refusal of the court to require the prosecutor to file a bill of particulars setting forth the acts constituting the alleged immoral, improper, and indecent liberties charged in the indictment, and errors in the admission of testimony and in instructions to the jury.

Plaintiff in error at the time the offenses charged in the indictment were alleged to have been committed was pastor of the Christian church at Mt. Carmel, Ill. He was 52 years of age, and had been in the active ministry for over 30 years, having had numerous pastoral charges in Tennessee, Arkansas, Missouri, Indiana, Mississippi and Illinois. He had a wife and son living. He devoted his entire time to church duties. The prosecutrix, Laura May Painter, was 13 years of age on August 25, 1924. She testified that during the month of August, a short time before her thirteenth birthday, she, with Blanche Barksdale, met plaintiff in error on the streets of Mt. Carmel; that he invited them to take a ride; that on his invitation they got into his automobile, and he took them to the store of the mother of the Barksdale girl, which was near the home of the prosecutrix. The girls had been at the home of Mrs. Seitz for the purpose of taking music lessons, and upon alighting from the automobile at the Barksdale store the prosecutrix took her music books to her home, and the Barksdale girl took her books into the store. The prosecutrix returned before the Barksdale girl came out of the store and plaintiff in error told her that Blanche was not going. The prosecutrix testified that she got into the car with plaintiff in error, and they drove west on Third street to the forks of the road, where they turned to the right near the Little Brick schoolhouse, and drove into the woods on the right-hand side of the road to a point where the car could not be seen from the road. She testified that plaintiff in error made no statement as to why he was driving into the woods, and on the way out had his arm around her, feeling of her breasts and of her legs on the outside of her dress; that he told her he loved her, and that she was pretty; that, after turning the car around in the woods, he again felt around her breasts and her legs, got out of the car, and walked around to the side on which she was sitting, took out his person and tried to take down her bloomers; that she held them up, and would not let him pull them down; that he said nothing, and, being unable to get her bloomers down, got into the car and drove her home.

Blanche Barksdale testified that she and the prosecutrix took their music lessons that morning at Mrs. Seitz's, and on their way home met plaintiff in error, who invited them to go with him for a ride; that when they got to the Barksdale store both girls got out, and that when she (Blanche) came out of the store later the car was gone. Mrs. Edna Barksdale, mother of Blanche testified that she saw plaintiff in error bring her daughter home and saw him leave with the prosecutrix.

Plaintiff in error denied that he took the two girls in his car on the morning mentioned in the testimony of the witnesses for the state, or that he took the prosecutrix out into the woods referred to, or had ever taken improper liberties with her in any way. The prosecution called twelve other girls, all under 15 years of age, who testified, over the objection of plaintiff in error, concerning acts of immoral, improper, and indecent liberties taken with them by plaintiff in error at different times and places. This testimony was offered and admitted on the ground that it tended to prove the intent charged in the indictment.

Counsel's first contention is that the indictment was insufficient. The statute under which the indictment was brought (Smith's Stat. 1925, par. 109, p. 881), so far as material to the consideration of this cause, provides:

‘That any person of the age of seventeen years and upwards who shall take, or attempt to take, any immoral, improper or indecent liberties with any child of either sex, under the age of fifteen years, with the intent of arousing, appealing to or gratifying the lust or passions or sexualdesires, either of such person or of such child, or of both such person and such child, or who shall commit, or attempt to commit, any lewd or lascivious act upon or with the body, or any part of member thereof, of such child, with the intent of arousing, appealing to or gratifying the lust or passions or sexual desires, either of such person or of such child, or of both such person and such child, * * * shall be imprisoned in the penitentiary not less than one year nor more than twenty years.’

[1] The indictment in this case charged the offense substantially in the language of the statute, but plaintiff in error contends that it should have set out the facts constituting the elements of the crime. The question of the sufficiency of an indictment similar to this was considered in People v. Butler, 268 Ill. 635, 109 N. E. 677, and People v. Scattura, 238 Ill. 313, 87 N. E. 332, and it was held that an indictment stating the offense in substantially the language of the statute is valid. Plaintiff in error's first contention cannot, therefore, be sustained.

[2] Plaintiff in error's second contention is that the court should have required the state to furnish a more specific bill of particulars concerning the offense charged. As we have seen, the motion filed by plaintiff in error for that purpose was allowed and a bill of particulars was filed. If he was not sufficiently informed by it, he was at liberty to demand a more specific bill of particulars. People v. Depew, 237 Ill. 574, 86 N E. 1090. He did not, however, make such motion, but went to trial on the bill of particulars furnished, and cannot how complain.

[3] Plaintiff in error also assigns as error the admission of the testimony of twelve other girls concerning acts of immoral, improper, and indecent liberties taken with each of them by plaintiff in error. The rule recognized by courts generally wherever the common law is in force is that evidence of a distinct, substantive offense cannot be admitted in support of the offense charged. In People v. Governale, 193 N. Y. 581, 86 N. E. 554, the reason for the general rule is given as follows:

‘A person cannot be convicted of one offense upon proof that he committed another, however persuasive in a moral point of view such evidence may be. * * * It would lead to convictions upon the particular charge made, by proof of other acts in no way connected with it, and to uniting evidence of several offenses to produce conviction for a single one.’

[4] This rule rests also on the ground that to the mind of an average person proof that the accused committed a similar offense or one equally heinous in character tends to the belief that he is guilty of the crime charged. Underhill on Crim. Evidence (3d Ed.) § 150. This author, in a note on page 188, cites a very large number of cases from nearly all of the states of the Union supporting the general rule. People v. Hagenow, 236 Ill. 514, 86 N. E. 370;Addison v. People, 193 Ill. 405, 62 N. E. 235;Farris v. People, 129 Ill. 521,...