People v. Zwienczak

• Court: Illinois Supreme Court
• Writing for the Court: STONE
• Citation: People v. Zwienczak, 338 Ill. 237, 170 N.E. 303 (Ill. 1930)
• Decision Date: 21 February 1930
• Docket Number: No. 19961.,19961.
• Parties: PEOPLE v. ZWIENCZAK.

338 Ill. 237

170 N.E. 303

PEOPLE

v.ZWIENCZAK.

No. 19961.

Supreme Court of Illinois.

Feb. 21, 1930.

Error to Criminal Court, Cook County; William J. Lindsay, Judge.

Maria Zwienczak was convicted of murder, and she brings error.

Affirmed.

T. Fred Laramie, of Chicago, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., John A. Swanson, State's Atty., of Chicago, and James B. Searcy, of Springfield (Edward E. Wilson and John Holman, both of Chicago, of counsel), for the People.

STONE, J.

Plaintiff in error was found guilty in the criminal court of Cook county of the charge of murder of one Ann P. Fazio by means of abortion. The jury fixed the punishment at fourteen years in the penitentiary. She seeks reversal of the judgment on the ground (1) incompetency of her counsel; (2) the verdict is against the law and the evidence; and (3) the court erred in instructing the jury.

Concerning the question of competency of the counsel, the record discloses that she was defended in the trial court by two attorneys licensed to practice law in this state. They were counsel of her own choosing. Persons accused of crime have the right to choose their own counsel, and, where this is done, a court of review will not, upon a change of counsel, consider the question whether, if objections had been made or questions raised which were not made or raised on the trial, a different judgment might have resulted. This court has held that, where young and inexperienced counsel have been appointed to defend a person accused of crime, the trial court should, in the absence of objection by such counsel, prevent the introduction of incompetent evidence of an extremely prejudicial nature. People v. Blevins, 251 Ill. 381, 96 N. E. 214, Ann. Cas. 1912C, 451. Such is not the rule in a case where a party employs counsel of his own selection. Failure of counsel employed by a defendant to exercise care or skill in the trial court does not affect the rule that this court reviews only the record, and a reversal of a judgment on the ground that the defendant has not been properly represented in the trial court is not justified where such counsel is selected by the accused. People v. Thompson, 321 Ill. 594, 152 N. E. 516;People v. Schulman, 299 Ill. 125, 132 N. E. 530, 24 A. L. R. 1022;People v. Barnes, 270 Ill. 574, 110 N. E. 881;People v. Anderson, 239 Ill. 168, 87 N. E. 917.

It is next contended that the verdict is not supported by the facts. In support of the charge against plaintiff in error, the state introduced the testimony of the coroner's physician showing that he made a post mortem examination of the body of the deceased on the 13th day of February, A. D. 1929, the day on which she died; that the body presented no marks of external violence; that the breasts contained colostrum, and that he found a condition of general peritonitis, spetic internal genetalia, and multiple abscesses; the curvix of the uterus presented multiple gangrenous lacerations. He gave as his opinion that the deceased died from generalized peritonitis secondary to a septic abortion, and that in his opinion it was not necessary to perform such an operation to save the life of deceased. He stated that he did not know who committed the abortion.

Ethel Colby, a sister of deceased, stated that deceased lived with her in their home; that on the 4th of February, the day on which she went to the home of plaintiff in error, she was in good health; that witness saw her at the latter place on February 11 and her sister was very sick because of an abortion; that she knew of her own knowledge that the operation was performed by plaintiff in error; that she did not find out the cause of her death. She testified that deceased lived at home during her married life, was separated from her husband, and had been for about a year, and that a divorce proceeding was pending.

Elmer Kagel testified that he had known deceased for a little over a year, and had kept steady company with her for a few months prior to her death; that he knew of the divorce proceeding, and intended to marry deceased after her divorce. He testified that he saw deceased on February 4 at the home of plaintiff in error; that her condition then was all right as far as he knew; that he saw her almost every day after she went to the home of plaintiff in error; and that the second morning thereafter she began to be ill, and grew worse during the week; and that on the 11th he assisted in taking her to the hospital.

Marion Swiont, a physician, testified that he was called to the home of plaintiff in error on the 11th of February; that he there saw deceased; that she was very ill, almost lifeless; and that he diagnosed her illness as general peritonitis. He testified that he had a talk with plaintiff in error about the illness of deceased, and that the latter requested him to give her some medicine to make her well. He testified that he refused to do this, but told her the thing to do was to take the patient to the hospital. He also testified that plaintiff in error told him she operated on deceased, but did not describe the system used, and that three or four days later she, with another midwife, had curetted her. He testified that he went to the hospital to see deceased on the evening of the 12th of February, that she died on the morning of the 13th, and that he could not say whether it was necessary to perform an abortion to save her life.

Edward Conrath testified that he frequently did work of chauffeur for plaintiff in error; that he took a woman to the hospital at plaintiff in error's request; that there was a young man in the car with her whom he identified as Kagel; that he overheard the woman in the car say that she was sorry she caused so much trouble...