People v. Romano

• Decision Date: 21 February 1923
• Docket Number: No. 14863.,14863.
• Citation: 306 Ill. 502,138 N.E. 169
• Parties: PEOPLE v. ROMANO.
• Court: Illinois Supreme Court

306 Ill. 502

138 N.E. 169

PEOPLE

v.ROMANO.

No. 14863.

Supreme Court of Illinois.

Feb. 21, 1923.

Error to Criminal Court, Cook County; M. L. McKinley, Judge.

Joseph Romano was convicted of taking indecent liberties with a female child, and he brings error.

Reversed and remanded.

Carter, J., dissenting.

J. M. Camelon, of Chicago (H. F. Chaveriot, of Chicago, of counsel), for plaintiff in error.

Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, George C. Dixon, of Dixon, and James Wilson Gullett, of Springfield (Henry T. Chace, Jr., Edward E. Wilson, and Clyde C. Fisher, all of Chicago, of counsel), for the People.

THOMPSON, C. J.

Plaintiff in error was convicted in the criminal court of Cook county of the charge of taking immoral, improper, and indecent liberties with Florence Gezing, a female child of the age of six years. The conviction rests upon the testimony of the complaining witness and of two other little girls, six and nine years old, respectively. The mother of the complaining witness and the nine-year-old girl were permitted to testify, over objection, that the child made a complaint to them of the conduct of plaintiff in error. The evidence showed the child had not suffered a physical injury.

Acts or declarations which are so closely connected with the main transaction as to explain it or form a part of it are admissible in criminal cases as part of the res gestae but where the main transaction is completed and the declarations amount to a mere recital of past events they are hearsay and are inadmissible. In rape cases, where the injured woman is a witness, it is proper for the woman to testify that she made prompt complaint concerning the outrage which had been perpetrated upon her, and it is proper to permit the person to whom she complained to give testimony that the complaint was made, but it is not proper to give any of the details of the complaint. Evidence of the complaints is admitted on the theory that the natural instinct of a female thus outraged and injured prompts her to disclose the occurrence at the earliest opportunity to the relative or friend who naturally has the deepest interest in her welfare, and it is deemed relevant on the ground that it corroborates her statement that she was assaulted. 4 Elliott on Evidence, § 3099; State v. Neel, 21 Utah, 151, 60 Pac. 510. To be admissible the complaint must be the spontaneous expression of her outraged feelings and not the mere recital of a past event. Cunningham v. People, 210 Ill. 410, 71 N. E. 389. Such a complaint constitutes no part of the res gestae, nor is the evidence, when restricted to the complaint alone, hearsay. It is original evidence of a fact which is important in rape cases and which cannot be ascertained in any other way. 1 Wharton on crim. Evidence (10th Ed.) 518; Roscoe on Crim. Evidence, 24; People v. Mayes, 66 Cal. 597, 6 Pac. 691,56 Am. Rep. 126. The rule permitting evidence of a complaint does not extend to the crime of taking indecent liberties with a child (People v. Scattura, 238 Ill. 313, 87 N. E. 332), nor to other offenses (1 Wharton on Crim. Evidence [10th Ed.] 522; Shoecraft v. State, 137 Ind. 433, 36 N. E. 1113). The reason for receiving such evidence is not present in cases of assault, other than rape cases. The admission of the evidence of the complaint was reversible error.

The judgment is reversed, and the cause is remanded to the criminal court of Cook county.

Reversed and remanded.

CARTER, J. (dissenting).

I do not agree with the conclusion reached in the foregoing opinion. Had the prosecution been for rape, it is clear that the testimony as to the complaint made by the girl, Florence, to her mother would have been admissible. Under other properly admitted evidence the facts here are not dissimilar from those involved in rape, and this is likely to be the case in a large number of prosecutions involving indecent liberties with children. The restriction of such testimony to cases of rape has, it seems to me, no logical or other basis. In fact, the tender age of the child gives a more proper basis for the admission of such testimony in cases of this character. People v. Scattura, 238 Ill. 313, 87 N. E. 332, is clearly distinguishable from this case because there the father gave in detail the circumstances of the crime as related by his daughter, such statements by the daughter being made some hours after the first opportunity for her to disclose the occurrence and after much questioning. The mother's testimony in this case as to the fact of complaint by her daughter was properly admitted. Failure to make prompt complaint should, in rape cases, be given such weight in favor of the accused as the circumstances will...