WRIT OF ERROR to the Circuit Court of Sangamon County; the
Hon. L.E. WILHITE, Judge, presiding.
MR. JUSTICE CRAMPTON DELIVERED THE OPINION OF THE COURT::
Rehearing denied March 17, 1952.
Plaintiff in error, Ronald U. Tilley, hereinafter referred to as defendant, was found guilty of manslaughter, after a trial by jury in the circuit court of Sangamon County. He was sentenced to the penitentiary for a term of not less than four nor more than ten years. He brings the cause here for review, listing 38 assignments of error. The cause was before this court, on review of a previous trial, in People v. Tilley, 406 Ill. 398, and was remanded for a new trial because of certain errors not involving the weight of evidence.
The record discloses that on July 20, 1946, Renee Stanley, a woman nineteen years of age, died in a hospital as the result of peritonitis caused by an abortion. In an oral statement made on the evening before her death she revealed to her physician and to Frank M. Pfeifer, an assistant State's Attorney, that she had been pregnant and on July 9 had gone to defendant's office for an abortion; that he used an instrument on her private parts, and after applying a packing of gauze and cotton told her to go home; that on a subsequent visit the procedure was repeated; and that on the following day she became violently ill. Her statement, as testified to by Pfeiffer and the physician, was admitted into evidence as a dying declaration. It was the only evidence tending to connect defendant with the death of the girl. Defendant did not testify. In the course of the trial, after the State's Attorney began to prove intent by evidence that similar crimes had been committed by defendant on previous occasions, the latter signed a waiver stating that if it were proved he performed the abortion then he agreed the abortion was not necessary to save the life of the girl and no proof of criminal intent should be necessary. The waiver was introduced into evidence.
The assignments of error as argued in the briefs fall into five groups which we shall consider accordingly. Defendant first contends the statement of the deceased was not properly admitted into evidence for the reason that she was extremely ill, under the influence of drugs and medicine, and was not in sufficient possession of her mental faculties to understand the transaction. This same contention was disposed of by our previous opinion in this case, on evidence substantially similar to that contained in the present record, and need not be discussed at length herein. The assistant State's Attorney who questioned her testified she talked coherently and intelligibly; the clergyman who administered the last rites of her church testified she was coherent and lucid; and her physician testified that in his opinion her mental condition was very clear at the time the statement was obtained, that she was conscious and aware of what was going on, that she was mentally alert and lucid, and that peritonitis victims are generally alert. Questions concerning the credibility of the witnesses and the weight to be given their testimony are matters for the court on the preliminary examination, or for the jurors when the witnesses testify before them, and this court will not substitute its judgment on such matters for that of the trial court or the jury. People v. Tilley, 406 Ill. 398.
It is also contended the court erred in admitting into evidence the preserved female parts of the deceased and allowing them to be exhibited to the jury: that such evidence could serve no useful purpose except to arouse anger and prejudice. This contention must likewise be rejected. The court has a reasonable discretion in the admission or rejection of exhibits in evidence. Even though the jury may have a full description of the injury by the testimony of physicians, it is not an abuse of discretion to admit in evidence the uterus itself to aid the jury in understanding the nature and extent of the injury and in determining how the offense was committed. It at least tended to prove a circumstance to be considered by the jury along with all the other evidence. See People v. Tilley, 406 Ill. 398; People v. Hobbs, 297 Ill. 399.
Further assignments of error are predicated upon the trial court's refusal to give certain instructions tendered by defendant. Eight instructions are specified. They concern the weight to be given the dying declaration, and refer to particular circumstances and conditions under which the statement was given, such as the effect of the drugs, medicine and illness upon the recollection and memory of deceased and her ability to understand what was happening. We have considered them in order and find in each case that the instruction is either improper, unnecessary or repetitious. Other instructions given by the court at defendant's request informed the jury that a dying declaration is not the best evidence, and that the circumstances under which it is made, such as the physical and mental condition of the declarant, and the method and manner of taking it, "may be taken into consideration in determining the credibility or weight to be given such declaration." The court gave seventeen instructions tendered by defendant and nine tendered by the People. We think the jury was sufficiently instructed as to all those parts of the refused instructions which were proper to be given. Defendant tendered 41 instructions, a number far in excess of that necessary for the points involved in the case, and he is not in a position to complain that the court, in the length of time it could devote to consideration of the instructions, refused to give some of those tendered. People v. Schneider, 370 Ill. 612.
Defendant next alleges as prejudicial error that the trial judge was guilty of improper conduct in communicating with the jurors after they had retired to deliberate upon their verdict. The trial was concluded on a Saturday, and after the jury had retired it deliberated all night without arriving at a verdict. The next morning about eight o'clock the judge went to the jury room in the company of a bailiff, and inquired whether there was any hope of arriving at a verdict. One of the jurors stated they wanted further information, whereupon the judge told them to read the instructions. He explained further that any new instructions would have to be given in the presence of the attorneys and the defendant. One of the jurors then asked the meaning of defendant's waiver hereinabove referred to, and inquired whether defendant in that statement admitted performing an abortion. The judge replied, "No, he specifically denies it." Not long thereafter the jury reported the verdict.
It is insisted that any communication whatever between the judge and the jury, except in open court with the defendant present, is prejudicial error entitling defendant to a new trial. Several early decisions are cited in which the language of the court tends to support this contention. But the holdings in such cases were discussed in People v. Brothers, 347 Ill. 530, wherein an exhaustive review of the authorities on the present question was made, and the rule was announced that judgments will not be reversed when it is apparent that no injury has resulted from a communication to the jury, either by the court or by third persons. In that case the judge received from the jurors a request for information concerning a form of verdict submitted for use in case defendant was found guilty of manslaughter. In defendant's absence he thereupon withdrew the form of verdict from the jury. There had been no evidence in the case to warrant the giving of an instruction on that subject or a form of verdict concerning it, and the latter had been submitted through inadvertence. It was held that the action of the trial judge was not prejudicial error, and the judgment, entered upon a verdict finding defendant guilty of murder, was affirmed. In the case at bar the judge merely inquired as to the possibility of a verdict, and, in response to questions by the jurors, advised them to read their instructions, explained that any new ones would have to be made in the presence of defendant and the attorneys, and stated that defendant in signing the waiver did not admit performing an abortion. While the action of the judge in communicating at all with the jurors under these circumstances was highly imprudent, it is clear that the statements, in themselves, could by no possibility work an injury to defendant's interest. The communication was neither prejudicial to him nor calculated to influence the jury. Although we do not wish to imply the slightest sanction to such practices, we think that in view of its nature the present communication would not warrant setting aside the verdict or reversing the judgment. As we observed in the Brothers case: "Privacy of jury deliberations should be zealously protected against invasion, but the cardinal test on a motion to set aside a verdict on that ground is whether or not the invasion was calculated to influence the verdict of a jury. If it was not so calculated it would be idle to disturb a verdict. Often it is practically impossible to prevent a juror from communicating with a trial judge, as when he approaches the judge and asks permission to telephone to his family or to say that he is sick. Surely, such harmless communications of themselves are an insufficient excuse for setting aside a verdict or reversing a judgment."
Defendant lastly urges that the evidence is such that it admits of but one of two conclusions, either defendant is guilty of murder or he is innocent; and that the court erred in giving a manslaughter instruction. In support of this contention he argues that the element of intent to commit the act when not necessary to save the mother's life being admitted by the waiver, any question of manslaughter was thereby removed from the case. We find no merit in the contention. The offense of involuntary manslaughter includes the killing of a human being without any intent to do so, in the commission of an unlawful act. (Ill. Rev. Stat. 1949, chap. 38, par. 363.) The waiver or agreement entered into in the trial court does not eliminate any of the elements of such offense from the case at bar. The intent therein stipulated was not an intent to cause death but was merely an intent to perform the unlawful act of causing an abortion when not necessary to save the mother's life. While the statute contemplates that persons performing such acts shall be guilty of murder when death results, it does not remove the offense from the definition of manslaughter. As we have heretofore construed the statutes, "they do not take the offense here charged out from under the definition of manslaughter, but define this and similar offenses, under certain conditions, to constitute also the more serious offense of murder." (People v. Carrico, 310 Ill. 543.) Defendant cannot complain that the jury convicted him of the lesser offense of manslaughter.
Upon examination of this record we are convinced that defendant has had a fair and impartial trial notwithstanding the irregularity hereinabove discussed. It is not the purpose of a reviewing court to determine whether a record is perfect, but to determine whether the accused has had a fair trial under the law and whether his conviction is based on evidence establishing his guilt beyond all reasonable doubt.
Defendant has failed to show any prejudicial error, and the judgment of the circuit court of Sangamon County is, therefore, affirmed.