WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
WILLIAM J. LINDSAY, Judge, presiding.
MR. JUSTICE FULTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 17, 1952.
Plaintiff in error, Robert Ulrich, hereinafter called the defendant, was indicted by a grand jury in the criminal court of Cook County, tried by a jury, found guilty, and sentenced on the indictment consisting of two counts, charging him with the crime of taking indecent liberties with a minor child. He prosecutes a writ of error to reverse the judgment entered upon the verdict by the criminal court.
The assignments of error argued by counsel for defendant in this court all relate to the legal sufficiency of the evidence presented at the trial. The first contention is, assuming that the defendant did the acts as detailed by the complaining witness, still he has not been proved guilty of the crime defined in the statute in question. Defendant's second contention is that the evidence in corroboration of the prosecuting witness, a child of tender years, is not sufficient to sustain a conviction, particularly since no medical testimony was introduced. The third and final contention is that the evidence as a whole, particularly in view of the alibi evidence offered by the defendant, does not establish the guilt of the defendant beyond a reasonable doubt. A careful consideration of these assignments of error requires a rather full statement of the evidence.
Defendant was 28 years of age at the time of the trial on June 12, 1950. He is single and lives with his parents and an unmarried older brother in the city of Chicago. For twelve years prior to the trial he had been employed by the Howard laundry in that city as an assembly man and sorter. His work record was good. The complaining witness, Eva Julia McGuire, was nearly seven years of age at the time of the trial. She lives with her parents and an older brother and sister in Chicago. The testimony was that she attended the Stockton School and was in Grade 1-A and going into 2-B. Preliminary to her testifying as to the occurrences in question, she gave information concerning her family and school and stated that she knew what it meant to tell the truth.
The evidence further discloses that on Sunday afternoon, June 19, 1949, Eva had gone with her mother, Myrtle McGuire, her older sister, Janine, and a Mrs. Warnicke to the Clarendon Community Play Ground, a public park in the city of Chicago. This playground has several baseball diamonds and the usual swings and equipment for children. There is also a fieldhouse which has a gymnasium and toilets on the upper level and showers and dressing rooms, among other facilities, on the lower level. The director of this playground at the time in question was George Morse.
Eva had been playing with her sister on the swings and Mrs. Warnicke and her mother were seated nearby on a bench which was only about thirty feet from one of the entrances to the clubhouse and commanded a view of that entrance. The park was crowded with people and several baseball games were in progress.
Sometime between 4:00 and 4:30 P.M. Eva came to her mother and asked if she could go to the washroom, and, having obtained permission, entered the building at the entrance near which her mother was seated. As she entered the building she met a man and asked him the way to the washroom. Instead of directing her to the washroom, the man carried her downstairs into the shower room. There, according to the child's own story, he pulled down her panties and "hurt" her. She stated that she was crying but that the man held her and would not let her go. At the trial she demonstrated to the court and jury where the man had "hurt" her. After the man released her, Eva ran out to her mother by the door through which she had entered. The man left by another exit.
The mother, Myrtle McGuire, had become alarmed at the child's absence when Eva ran from the building crying and sobbing. She told her mother that a man had hurt her. The mother went immediately into the clubhouse but caught only a fleeting glimpse of a man she could not identify leaving by another doorway. The mother then contacted George Morse, the playground director. Eva described the man as a tall thin man with brown wavy hair, wearing glasses and clothed in blue pants and a white shirt. Morse and Mrs. McGuire searched the premises but could find no sign of the person described by Eva. The matter was reported to the police and the child was taken to American Hospital that afternoon where she was examined by a Doctor Garcia. Dr. Garcia did not testify at the trial. The record shows that he was in the Philippine Islands at the time.
On Saturday evening, June 25, 1949, Morse, who was on duty at the playground, saw the defendant come into the grounds at about 9:15 P.M. Defendant's appearance fit the description of the man given by Eva McGuire. In addition, Morse recognized defendant as the man he had encountered in the basement of the clubhouse at about 3:00 P.M. on June 19, 1949, the date of the alleged crime. At that time Morse had asked him what he was doing there and defendant replied that he was looking for the men's washroom. Morse states that he positively told the defendant at that time that he was not allowed in the basement and directed him to the upper level of the clubhouse where the washroom was located.
After defendant came into the playground on the evening of Saturday the 25th Morse observed him enter the clubhouse and followed him. Defendant stood in a corner of the gymnasium for about ten minutes. No one else was there. A little girl came into the gymnasium to get a drink and, as she was drinking at a fountain there, the defendant was observed as he approached her and talked to her. Defendant then walked away with the girl and proceeded into the basement. Morse followed them and found them together in a dark part of the basement which they had entered through a door marked "Keep out." Morse apprehended the defendant and took him to the former's office in the building. This testimony was developed by defense counsel on cross-examination of Morse.
Morse turned the defendant over to the police on that same evening, and defendant was questioned and held. On the following day, Sunday, June 26, 1949, Eva and her mother came to the district police station at the request of police officer Delford R. Brust, to see if Eva could identify the defendant. The defendant was lined up in a line with three other men and an officer in plainclothes when Eva entered the room with her mother. Officer Brust testified that before anything else was said, Eva exclaimed (pointing to defendant,) "That is the man that hurted me, Mommy." Brust further states that upon questioning the defendant at the time of his arrest on Saturday, June 25, 1949, defendant denied ever having been at the Clarendon Play Ground, but that after Eva identified the defendant at the "show-up" on the 26th, defendant admitted to him (Brust) that he had been at the playground on Sunday, the 19th. At the trial the child, Eva, positively identified the defendant as the man who molested her, and Morse pointed out the defendant as the man he had encountered in the basement of the clubhouse at 3:00 P.M. on Sunday, June 19, 1949, and as the identical person later appearing at Clarendon and being found in the basement of the building Saturday evening.
The defendant flatly denied at the trial that he knew or had ever seen and molested Eva McGuire. He denied that he had ever been at the Clarendon Play Ground prior to his going there on Saturday evening, June 25. He stated that on Sunday, June 19, which was Father's Day, he had been at home with his family where a family dinner was served about 3:00 P.M. Those present at the dinner were defendant's mother, his father, his older brother and two guests, long-standing friends of the family. All testified that defendant was home continuously from about 2:30 P.M. until after 11:00 P.M. on the date in question.
Defendant produced two character witnesses, who testified that the reputation of defendant for ...