WRIT OF ERROR to the Circuit Court of Clay County; the Hon.
FRANKLIN R. DOVE, Judge, presiding.
MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:
Defendant, Frank Allen, has sued out this writ of error to review a judgment of the circuit court of Clay County entered on a jury verdict finding him guilty of the crime of taking indecent liberties with a child under fifteen years of age.
The several issues presented by this appeal include: the propriety of the trial court's denial of defendant's motion for a change of venue on the ground of prejudice of the inhabitants of the county; the sufficiency of the proof of venue as alleged in the indictment; whether defendant's written statement constituted a confession; the propriety of the court's refusal to give a particular instruction offered by defendant; the sufficiency of the evidence of guilt; and the legal effect of certain remarks of the State's Attorney, and of the separation of the jurors.
From the record it appears that the indictment consisted of one count, which, in substance, charged defendant with taking indecent liberties with a female under the age of fifteen years. (Ill. Rev. Stat. 1951, chap. 38, par. 109.) Defendant entered a plea of not guilty after his motion to quash the indictment was overruled, and then filed a motion for a change of venue, alleging the prejudice of the inhabitants of the county. The application was supported by affidavits from his counsel, and from some fifty residents of Clay County. The People filed a denial of the facts alleged in the motion, and supported the denial by some 55 counteraffidavits, also from persons living in the county. The court denied defendant's motion, and the cause was set for trial. In the selection of the jury, which consumed a little over one day, defendant's counsel did not find it necessary to exhaust all of his peremptory challenges.
A fair summary of the evidence which is practically uncontradicted reveals that at about 2:30 P.M. on May 9, 1951, the complaining witness, an eleven-year-old girl, upon whom the improper acts were allegedly perpetrated, was walking home from the Iola Consolidated School which she attended. She was stopped by defendant, a 63-year-old farmhand, who was driving a bluish black five-passenger Chevrolet, in front of the Pemberton house, a few blocks northwest of the school. One of the witnesses testified that he saw defendant parked in front of this particular house, and another witness saw defendant driving in the vicinity between the farm on which he worked, which was just west of Iola, and the town.
The child testified that she started to run, but defendant grabbed her and put her into the car; that they drove to the corner near some woods; that she made another attempt to escape, but defendant pulled her back into the car; that there were further struggles when defendant took her into the woods; that she screamed several times, but he made her stop; that defendant tore her dress, removed her panties, and played with her private parts until she escaped from him and started home.
Two witneses saw the child with her dress torn, crying and walking in the direction of her home, about a mile from the Pemberton house. The school principal testified that the child wore that particular dress, introduced as People's exhibit 2, to school that day, but it was not torn at that time.
The sheriff of Clay County testified that pursuant to a call to investigate an alleged occurrence near Iola, he and his deputy went to the west edge of the village, near a "T" road, where he saw some tracks leading west. He then drove the complaining witness and her mother to this area and went into the wooded section where he found the child's panties, identified as People's exhibit 1. The following day the sheriff and two men drove to Edgewood, a town just west of Iola. They saw a car similar to that described by the child parked on the north side of the street, and when defendant, who had been walking toward the car, saw them, he walked back up the sidewalk and attempted to flee.
The sheriff and the deputy both testified to conversations with defendant in which he admitted having picked up the child, but denied having forced her to get into the car. He claimed he talked to her as they drove to the "T" road, and then left the car and went into the woods where she took off her panties and he played with her for a while. He asked her to lie down, but she jerked loose and ran away. Defendant then returned to the car and drove home to Edgewood.
Defendant, after being apprised of his rights by the State's Attorney, signed the statement introduced as People's exhibit 3, in which he admitted that "She was going to show it to me for some money. She pulled her panties down, pulled them plum off. I played with her a little bit. Had hold of her arm. She said if I wasn't going to give her any money she was going home. She jerked loose and started home." Defendant explained later that he played with her "like I play with all children."
On the stand defendant denied that he had molested or attempted to molest the complaining witness and that while his signature was on People's exhibit 3, he did not recall all that had taken place when he made the statement.
At the close of all the evidence the defense renewed a motion for a directed verdict, which was denied. The jury returned a verdict finding defendant guilty as charged and the court, after overruling a motion for a new trial, sentenced defendant to the Illinois penitentiary for a minimum term of one year and a maximum term of two years.
In determining the propriety of the judgment we shall consider first whether the court erred in denying defendant's motion for a change of venue. It is established that granting a change of venue on account of the prejudice of the inhabitants of the county rests in the sound discretion of the trial court. (People v. Witte, 350 Ill. 558; People v. Cobb, 343 Ill. 78.) This discretion, however, may not be arbitrarily exercised, and is subject to review by the courts in case of its abuse. (People v. Pfanschmidt, 262 Ill. 411.) Abuse of such discretion may arise not only from a decision based upon whim or caprice, or from a bad motive, but also from an unjust exercise of discretion under the circumstances. The inquiry of the court on such a motion is directed to a question of fact whether there is reasonable ground for fear that prejudice actually exists and that defendant will not receive a fair and impartial trial. People v. Katz, 356 Ill. 440; People v. Meyers, 381 Ill. 156.
In support of his motion, defendant, as hereinbefore noted, offered the affidavits of his attorney and fifty persons residing in the county, attesting that he would not receive a fair trial because they believed that the inhabitants of the county were prejudiced against him. The People filed some 55 counteraffidavits made by persons living in the county who denied the ...