Sokel v. People

• Court: Illinois Supreme Court
• Writing for the Court: CARTWRIGHT
• Citation: Sokel v. People, 212 Ill. 238, 72 N.E. 382 (Ill. 1904)
• Decision Date: 24 October 1904
• Parties: SOKEL v. PEOPLE.

212 Ill. 238

72 N.E. 382

SOKEL

v.PEOPLE. ^*

Supreme Court of Illinois.

Oct. 24, 1904.

Error to Criminal Court, Cook County; E. F. Dunne, Judge.

Joseph Sokel was convicted of bigamy, and brings error. Affirmed.

John A. Silha and Charles A. Churan, for plaintiff in error.

H. J. Hamlin, Atty. Gen., Charles S. Deneen, State's Atty., and Ferdinand L. Barnett, Asst. State's Atty., for the People.

CARTWRIGHT, J.

Plaintiff in error was convicted in the criminal court of Cook county of the crime of bigamy upon an indictment charging that in the year 1885, in Safed, in Palestine, in the empire of Turkey, he lawfully married one Esther Schocherts, and afterward, on March 9, 1901, in the city of New York, while the said Esther was still living, unlawfully married Rachel Schur.

By the assignment of errors the correctness of various rulings during the trial is questioned, as well as the sufficiency of the evidence to warrant a conviction. The points upon which plaintiff in error relies are very fully presented by his counsel in their brief and argument, to which there is a merely perfunctory reply on the part of the people, having neither the form nor the substance of a brief, and not containing any citation of authority, or any allusion to the most important questions in the case. It is apparent that several errors were committed in the course of the trial, but our examination of the record has led us to the conclusion that none of them call for a reversal of the judgment, and that the evidence adduced upon the trial warranted the conviction.

The first witness examined was Israel Levy, who testified that he knew the defendant and Esther Schocherts in Safed, Palestine, in the empire of Turkey, and saw them together in that place in June or July, 1885. He was then asked what the occasion was that brought them together, and answered that the rabbi married them. On objection the court refused to strike out the answer, and this was error. The question whether the defendant married Esther Schocherts was the principal fact in issue which the jury were impaneled to try, and the answer substituted the conclusion of the witness for the finding of the jury on that question. The question whether the parties were married was to be determined by the jury from the evidence as to what was done in the way of entering into a marriage contract, and the ruling permitted the witness to usurp the province of the jury. Chicago & Alton Railroad Co. v. Springfield & Northwestern Railroad Co., 67 Ill. 142. The witness, however, afterward detailed what occurred at the time, which, in our opinion, was prima facie evidence of a legal and valid marriage, and the testimony was wholly uncontradicted. He testified that he knew the parties in Safed; that he was between 13 and 14 years old; that he went to the wedding with his brother, who boarded with Esther Schocherts' father; that there was a ceremony performed by a rabbi in the presence of a large crowd in Safed, in the yard of the synagogue; that they brought a canopy, and placed under it the groom and bride; that the rabbi called upon two persons and made them witnesses, that they shoul see and bear witness that the defendant was married to Esther, and must see the way he put the ring on her finger; that the two witnesses bore witness to the marriage contract, and signed a paper produced at the trial; that he saw the paper under the canopy, and the rabbi read it; that he knew the witnesses, and saw them sign it; that after the wedding they went to the house, and there was a festive occasion-eating, drinking, and playing; that after the marriage the defendant lived with Esther at her father's house; and that he was in the house several times where they were living as husband and wife. Inasmuch as everything that was done was subsequently detailed by the witness, and was sufficient to prove a marriage contract, and was not contradicted, the error was not prejudicial. There was also testimony of a witness that the defendant said he was married in Palestine, 18 or 19 years ago, to Esther Schocherts. He also said to that witness that he had been divorced by a rabbi, but, as it does not appear that a rabbi had jurisdiction to grant divorces, the alleged divorce, if his statements were any evidence of it, would be void. A divorce granted without jurisdiction is absolutely void. Tucker v. People, 122 Ill. 583, 13 N. E. 809.

The second witness was Tillie Sokel, a child nine years old, who testified that she was the daughter of the defendant and his wife, Esther, born in Jerusalem; that when she met her father in New York he recognized her, and kissed her, and that afterwards he took a child of his second marriage in his lap, and asked the witness how she liked her sister. The girl was objected to as a witness on the ground that she was not of proper age and did not comprehend the nature and effect of an oath. The competency of a child to testify depends upon his or her intelligence, understanding, and moral sense. Draper v. Draper, 68 Ill. 17. If the preliminary examination shows that the child understands the nature and meaning of an oath, and is of sufficient intelligence and understanding, it is not error to admit the testimony, and the weight to be given to it is a matter for the jury. Featherstone v. People, 194 Ill. 325, 62 N. E. 684. The preliminary examination of the witness in this case showed that she had attended school, and knew the difference between truth and falsehood; that she knew her oath obliged her to tell the truth, and that she would be punished if she failed to do so. It was not error to permit her to testify. Another witness testified that she went to defendant's house with the daughter, Tillie, and defendant asked how his wife, Esther, was, and asked Tillie how she liked her sister, referring to a child of the second marriage.

The court admitted, over objection, a paper purporting to be a transcript from the records of marriages reported to the department of health in the city of New York, showing the marriage of Joseph Sokel to Rachel Schur. The ruling was erroneous for want of identification and evidence that the record was one required by law to be kept. Afterward the state's attorney, by leave of the court, withdrew the paper, and the defendant excepted to the ruling. An instruction was also given to the jury that they should not consider the transcript as any evidence in the case. It is contended that the withdrawal of the certificate did not cure the error of its admission, and it is doubtless true that the withdrawal of evidence of such a nature would not remedy the error in admitting it. The paper was of a nature to prejudice the defendant, and was not competent evidence. But here again the marriage was proved by other and competent evidence, which was not controverted. It was proved by a witness present at the marriage that the defendant and Rachel Schur were married in New York City in March, 1901, by a rabbi, in a public assembly; that there was a ceremonial marriage, in which the defendant put a ring on Rachel Schur's flnger; that a wedding present was given to them at that time; and that they lived together afterwards as husband and...