People v. Schwabauer

• Court: Illinois Supreme Court
• Writing for the Court: STONE
• Citation: People v. Schwabauer, 369 Ill. 261, 16 N.E.2d 723 (Ill. 1938)
• Decision Date: 05 October 1938
• Docket Number: No. 24504.,24504.
• Parties: PEOPLE v. SCHWABAUER.

369 Ill. 261

16 N.E.2d 723

PEOPLE

v.SCHWABAUER.

No. 24504.

Supreme Court of Illinois.

June 15, 1938.

Rehearing Denied Oct. 5, 1938.

Error to Criminal Court, Cook County; John Prystalski, Judge.

Robert Schwabauer was convicted of taking indecent liberties with a certain child of the age of eleven years with intent of arousing, appealing to and gratifying his lust, passions and sexual desires, and he brings error.

Reversed and remanded for new trial.Charles A. Bellows, of Chicago, for plaintiff in error.

Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and A. B. Dennis, of Danville (Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, and Blair L. Varnes, all of Chicago, of counsel), for defendant in error.

STONE, Justice.

Plaintiff in error seeks the reversal of a judgment of the criminal court of Cook county entered on a verdict of a jury finding him guilty of taking indecent liberties with a certain male child eleven years of age, as charged in the indictment.

An indictment consisting of four counts charged plaintiff in error, in the first count, with committing a crime against nature; the second, with the crime of buggery; the third, with taking indecent liberties with a certain child of the age of eleven years with intent of arousing, appealing to and gratifying the lust, passions and sexual desires of plaintiff in error, and the fourth, that he did take certain immoral, improper and indecent liberties with a certain named child under the age of seventeen years, which said acts tended to render said named child under the age of seventeen years guilty of indecent and lascivious conduct. On motion of the People all counts ‘except the indecent liberties court’ were dismissed.

To prove the charge, the prosecuting witness, a boy eleven years of age, testified that on November 29, 1936, about 7 o'clock P. M., he was waiting at Grand and Harlem avenues to get a lift; that plaintiff in error stopped at the stop light, that he, the witness, entered plaintiff in error's car and was driven to a point on Oriole avenue, about seventy-five feet south of Addison avenue where the revolting act of taking indecent liberties was committed, and that plaintiff in error gave him a quarter. This witness further testified that, since 1935, it had been his custom to seek lifts, and he had been picked up and given about three hundred lifts by motorists; that the first part of July he was standing at the northwest corner of Addison and Harlem avenues and he first saw plaintiff in error when he picked him up and gave him a lift, and he spent about one-half an hour with him; that about two weeks later plaintiff in error again gave him a lift from the same corner and he was with him about one-half an hour; that early in August, 1936, at Grand and Harlem avenues, plaintiff in error again gave him a lift and took him toward Addison and he was with him about forty-five minutes; that in October, 1936, about 7 o'clock in the evening, plaintiff in error came to the back yard where the witness lived, at 3421 Ottawa avenue, and asked if the witness could come out tonight, and upon being told that he could not, plaintiff in error gave the witness and his brother each a dime and went away. He further testified that each time he rode with plaintiff in error the latter was driving a black Chevrolet sedan and on January 2, 1937, he recognized plaintiff in error's car and plaintiff in error at the police station. On direct examination he testified that he went to a show at the ‘Montclair Theatre’ and, on cross-examination, he testified that he did not, and that he was not sure, but thought he did attend a show at the theater on November 29, 1936; that up to January 2, 1937, he had not told his mother about the ride on November 29 nor what happened on that evening; that before going to the police station with the officer, he had a conversation with his mother relative to the ride he took on South Harlem avenue; that he told the officer he would be glad to identify any moron he could. He further testified that he identified plaintiff in error's car by the spotlight on the left side, the button which, by pressing, permitted the front seat to slide back, and the flashlight plaintiff in error carried in the compartment in the dash, inside the car; that he did not take down the license number on the car; that he could not identify the license plate as he paid no attention to it; that he did not recall the color of the wheels but thought they were yellow. On re-direct examination, this witness testified that prior to January 2, 1937, he talked with the Doherty boy or the McCambridge boy about plaintiff in error, and later, that the two last named boys were the boys he talked to before January 2, 1937, about this matter.

The thirteen-year-old brother of the complaining witness testified that he first saw plaintiff in error at Addison and Harlem avenues in the middle of July, 1936, when his brother was getting into plaintiff in error's car and they drove toward Grand avenue; that he next saw him in the latter part of September, 1936, in the back yard of his, the witness', home, around 7 o'clock-it was getting dark-where he and his brother were chopping wood; that plaintiff in error asked his brother if he could come out and when his brother replied ‘No,’ that the plaintiff in error gave him and his brother a dime. On cross-examination, this witness testified that in July, around 7 o'clock-it was getting dark-he saw his brother enter plaintiff in error's car; that he, the witness, stood about five feet from his brother and the pavement. On cross-examination, he testified that he did not see plaintiff in error's face in July, when his brother got in the car, but as he got a lift right after his brother he saw plaintiff in error in his car at Grand avenue because the corner was brightly lighted by the drug store; that when his brother got into the plaintiff in error's car, witness ‘saw his coat in back, but I saw him, anyway, this guy;’ that he could see his nose, ears and profile, and his hat, too. He also testified when he saw plaintiff in error at the police station he said: ‘I don't think he is the man,’ but testified he changed his opinion after he saw the cap. He testified that he saw a car with yellow wheels in the yard at the police station.

Joseph Dorsch, a State highway officer, testified that he talked to a Mr. Doherty and his son James on January 2, 1937, and looked up in the State automobile license book for the number that Doherty had given him; went to Des Plaines and found a black...