Wistrand v. People

• Decision Date: 22 December 1904
• Citation: 213 Ill. 72,72 N.E. 748
• Parties: WISTRAND v. PEOPLE.
• Court: Illinois Supreme Court

213 Ill. 72

72 N.E. 748

WISTRAND

v.PEOPLE.

Supreme Court of Illinois.

Dec. 22, 1904.

Error to Criminal Court, Cook County; R. W. Clifford, Judge.

Charles Wistrand was convicted of rape, and brings error.Reversed.Charles P. R. Macaulay and Oscar D. Olson, for plaintiff in error.

H. J. Hamlin, Atty. Gen., Charles S. Deneen, State's Atty., and E. C. Lindley, Asst. State's Atty., for the People.

This is a writ of error, sued out of this court by Charles Wistrand, the plaintiff in error, to review a judgment of the criminal court of Cook county whereby plaintiff in error was adjudged guilty of the crime of rape and sentenced to the penitentiary for a term of two years.

The indictment consisted of three counts.The first and third charged rape by force upon one Eva Goldstein.There was no evidence of the use of force to sustain these counts.The second count charged the commission of the crime withoutforce, alleging that the defendant was a male person above the age of 16 years, that the female was under the age of 14 years, and that the act was committed with the consent of the female.

The evidence for the prosecution showed that the plaintiff in error had sexual intercourse with one Eva Goldstein, a girl under the age of 14 years, on or about June 17, 1904.The defendant below did not testify in his own behalf, except on a preliminary question considered by the court alone, and did not offer any evidence except that of his good reputation for chastity and for peace and quiet.

The jury which tried the case was composed in part of jurors obtained from among jurors serving in other branches of the criminal court of Cook county.Six hundred jurors had been summoned to attend this term of court, and had been distributed among the six branches of the court, and each one impaneled in the branch to which he had been assigned, each branch thus having different jurors.The list of jurors serving in that branch in which plaintiff in error was to be tried having been exhausted by reason of the fact that some of the jurors whose names constituted such list had been selected in a preceding case and were engaged in the consideration of that case, and by the fact that others had been transferred to other branches of the court, the sheriff, by order of court, obtained jurors from other branches of the court, and a list was thus made up from which to select a jury for the trial of the case.Plaintiff in error challenged the array, but the court overruled the challenge.He then challenged each juror called to the jury box for cause, assigning as the cause that the juror had been ordered, selected, and summoned to that branch of the court without authority of law.He exhausted all his peremptory challenges.As the list of jurors thus obtained became exhausted, the sheriff obtained more jurors from the other branches of the court.Plaintiff in error challenged these as they were brought in, and refused to accept any of the jurors called.He was furnished with a list of the jurors constituting the first list so obtained, and was also furnished with lists of the other jurors as they were brought in by the sheriff.

The only evidence of the age of the prosecuting witness was that of her father, who testified that she would be 14 years old on the 14th of September following.The only evidence of the age of the defendant was contained in a written confession, signed by the defendant, which was offered by the prosecution and admitted in evidence, after proof that it was voluntarily made, in which he stated that he was 44 years of age, and in which he also admitted having had sexual intercourse with the prosecuting witness at the time charged in the declaration and at times previous thereto.

The errors assigned are that the court erred in overruling the challenge to the array, and in overruling the challenge for cause to each juror in the case; in refusing certain instructions, and modifying others, asked by the defendant below; in giving certain instructions asked by the state; in failing to submit a form of verdict finding defendant guilty of assault; in admitting the confession in evidence, and in refusing to receive evidence of defendant's general reputation for peace and quiet.It is also urged that there is no legal evidence of the age of the plaintiff in error, and that the court permitted the state's attorney to ask leading questions of the witnesses for the prosecution.

SCOTT, J.(after stating the facts).

It is provided by section 88a of chapter 37, Hurd'sRev. St. 1903, ‘that two or more of the judges of the criminal court of Cook county may each hold a different branch of said court at the same time.’At the time of the trial of this cause, several branches of that court were in session.The jury commissioners had summoned 600 jurors to appear at that term, and these jurors had been divided among the various branches of the court, each juror being directed to report for service in a particular branch.Plaintiff in error was tried in the branch over which Hon. Richard W. Clifford, one of the judges of the circuit court of Cook county, was presiding.Upon the list of jurors who had been assigned to duty in that branch being exhausted, jurors were transferred from other branches to that branch of the criminal court.The legality of so transferring these jurors was questioned by a challenge to the array.

Section 29 of chapter 78, Hurd'sRev. St. 1903, which applies to Cook county, directs that ‘one or more of the judges of said court shall certify to the clerk of the court the number of jurors required at each term,’ and that jurors to that number shall be drawn from the jury box kept by the jury commissioners, and, ‘if more jurors are needed during said term, the court shall so certify, and they shall be drawn and summoned as above provided forthwith.’

Plaintiff in error's contention is that, upon the list of the jurors who had been assigned to duty in the branch of the court presided over by Judge Clifford being exhausted, others should have been drawn and summoned in accordance with the directions contained in the language last above quoted, and urges that the entire jury drawn cannot be regarded as a jury drawn for but one court, for the reason that if that was the situation, then under section 12 of chapter 78, supra, it would be the duty of the court to discharge all the jurors in excess of 24.Our view is that in Cook county, where the act authorizing the appointment of jury commissioners is in force, the fourth section of the lastmentioned act, being section 29, supra, governs this matter, and that the number of jurors who should be in attendance upon a term of the criminal court is ‘the number of jurors requiredat each term,’ in the language of that section, and that section 12, supra, in so far as it directs the discharge of all jurors in excess of 24 who appear in response to the jury summons, does not apply in that county to a court having several branches.There is...