WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
DANIEL A. COVELLI, Judge, presiding.
MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 22, 1955.
In May, 1939, Sam Hryciuk, hereafter referred to as defendant, was tried and convicted by a jury in the criminal court of Cook County for the crime of rape and was sentenced to the penitentiary for the term of his life. Throughout the proceeding, defendant, who was then 19 years old, was represented by counsel of his choice. No immediate review of the judgment of conviction was sought and it was not until August, 1951, that defendant filed a petition, in the same court, seeking relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1951, chap. 38, pars. 826-832) on the ground that his constitutional rights had been violated in many respects. After amendment, answer, extensive hearings and argument, during which phases defendant was again represented by counsel of his own selection, the court sustained the petition and ordered that defendant be accorded a new trial. The People have brought the cause to this court for a review of that order, a right they have despite defendant's interpretations to the contrary. See: People v. Joyce, 1 Ill.2d 225; People v. Wakat, 415 Ill. 610.
Defendant's petition alleges some twenty-six points in support of his asserted denial of due process. In substance, they may be resolved into the following: (1) That defendant was arrested without process and held for six days during which period he was moved from police station to police station for purposes of procuring a confession; (2) that a confession admitted in evidence against him was false and untrue, was not voluntary and had been obtained by the police through physical violence and mental torture; (3) that the prosecution failed to prove the corpus delicti; (4) that defendant's conviction resulted from false testimony of the prosecuting witness; (5) that the prosecution wilfully and knowingly suppressed evidence favorable to defendant; (6) that he was denied a fair and impartial trial: (a) because of improper and prejudicial conduct on the part of the court and prosecutor; (b) because of improper rulings by the court; and, (c) because the jury was influenced by newspaper articles, prejudicial to defendant, which were published and read by the jurors while his trial was in progress.
After weighing the evidence submitted at the hearing on the petition, which included a stenographic transcript of the proceedings at the original trial, the court rendered an opinion in which it indicated the order for a new trial was predicated on the following grounds: (1) That the corpus delicti had not been proved; (2) that the prosecution had suppressed evidence favorable to defendant to obtain his conviction; (3) that the newspaper articles, which were published and came to the attention of the jurors during the course of trial, denied him a fair and impartial trial, and, (4) that defendant was further prejudiced when there was submitted to the jury a typewritten form of verdict upon which the word "murder" was interlined and the word "rape" substituted therefor.
Since we believe the petitioner has here shown a denial of a constitutional right in the proceeding which resulted in his conviction, that judgment must be set aside and a new trial ordered. Since the cause must be tried anew, we refrain from discussing the sufficiency of the evidence, the alleged suppression of evidence favorable to the defendant, and the alleged error in the form of the verdict, and confine this opinion to what we consider a substantial denial of the defendant's constitutional right to an impartial and unprejudiced jury.
The sordid facts of the alleged crime provoke intense indignation and create a situation readily susceptible to bias and prejudice against one accused of such a crime. The record shows that on the morning of June 1, 1938, at approximately 8:00 A.M. the prosecuting witness, a widow forty-four years of age, was walking through Humboldt Park in Chicago en route to her employment. While on one of the park walks, she was seized by a man, whose upper face she had an opportunity to see, and was dragged into some bushes where she was choked and brutally beaten until she lost consciousness. Sometime later she revived and, after wandering in a dazed condition into a nearby road, was found by a passing motorist. She was completely nude except for a girdle and a shred of her skirt and one of her stockings was knotted loosely about her neck. Police were called and the victim taken to a hospital where an examination by her family doctor disclosed, among other injuries, swelling and bleeding inside her vagina. At the trial the doctor expressed the opinion that she had been entered by some object, while the victim herself testified she did not know what occurred while she was unconscious. In the months that followed the victim's eleven-day stay in the hospital, she was called to the police station upon numerous occasions to view suspects but was unable to make an identification, and, as we interpret the record, it was some peculiarity of her attacker's eyes that remained most vividly in her recollection. Returning for the moment to the date of the attack, police searching the area found articles of clothing belonging to the prosecutrix at the scene of the attack and one of her undergarments in a nearby public rest room.
Late on the night of March 14, 1939, approximately ten months after the attack described, police of the West North Avenue station were called to an address within three blocks of Humboldt Park where persons attracted by screams had seized defendant in the act of attempting to attack a young lady. Defendant was arrested and taken to the West North Avenue station and finger-printed. Because the station in question had no lockup defendant was removed to the Shakespeare Avenue station for the night. The following day he was taken to the sex bureau for questioning, following which he was returned to the West North Avenue station, questioned briefly, and again returned to the Shakespeare Avenue station for the night. On March 16, 1939, defendant was again returned to the North Avenue station where, while being questioned by the officer charged with investigating his arrest, defendant voluntarily confessed to the attack of June 1, 1938, in Humboldt Park, in terms leaving no doubt that he had committed the crime of rape. As part of his confession, defendant also stated that he had taken one of his victim's undergarments into a park toilet building and used it to cleanse himself. On the day following, March 17, the prosecutrix was brought to the station and identified defendant as the man who attacked her, and on March 18 defendant repeated his confession to the assistant State's Attorney who prosecuted the cause.
The petitioner's trial began on May 1 and was concluded on May 3. The jurors were not confined but were permitted to return to their homes each night. On the evening before the last day of the trial two of the Chicago daily newspapers published articles about the trial and stated therein that the defendant had confessed to two murders for which the State planned to try him, and would seek a death penalty if defendant's confession withstood the legal attack made upon it in the rape case. One paper attributed its knowledge of this plan to the assistant State's Attorney who was conducting the prosecution. The same paper reported defendant had, when arrested, boasted of attacks on more than fifty women, that police described defendant as a vicious degenerate, and that defendant had been arrested while trying to attack a young lady. Both articles were headlined in heavy print, one reading, "State Will Ask Chair For Young Slaying Suspect," and the other, "Slaying Confession Read in Trial."
The morning following the appearance of the articles, defendant's counsel made a timely motion to the court to withdraw a juror and continue the cause. The court advised the jurors of the motion and upon inquiry learned that each of them had read one or both of the articles. The court then interrogated the jury, as a group, as to whether they could and would ignore what they had read and not allow themselves to be influenced by anything not heard in the court room. Receiving affirmative answers from at least some of the jurors the motion was denied.
The transcript shows that the jury was subsequently instructed to ignore the newspaper articles, to consider them false and unfair, and to consider only the evidence introduced in the case.
The problems created when a juror reads a newspaper account relative to a criminal trial he is trying, and the manner in which the courts have resolved those problems, are the subject of a recent annotation found in 31 A.L.R.2d 417. It is there stated that the test in determining whether such an occurrence should occasion a mistrial, new trial or reversal, is whether, under the circumstances, a fair trial has been interfered with, the ultimate decision being dependent upon the facts in each case and resting in the sound discretion of the court. The reported cases show not only a divergence of opinion as to what newspaper accounts are so prejudicial as to warrant a new trial but reflect also a definite cleavage on the issue of whether other circumstances may overcome the harm done when a juror reads such an account, and obviate the necessity for a new trial. In some of the cases cited in this annotation it is held that there are no circumstances which can be said to overcome the unconscious influence created in the mind of the juror or to restore the trial to a fair and impartial basis. In others, however, it has been held that the harm caused is overcome where the juror, upon inquiry by the court, states that such account will not influence his verdict and where the jury is instructed to disregard the newspaper article.
On this issue in the case before us, the People cite and rely upon the decisions of this court in People v. Konkowski, 378 Ill. 616, and People v. Herbert, 340 Ill. 320. In the Konkowski case the defendants made a motion, concurred in by the State's Attorney, that the jury be kept together during their trial for conspiracy to cheat and defraud. The motion was denied. The motion was supported by the unsworn statement of defendants' attorneys that there had been considerable publicity of a prejudicial nature about the case in the newspapers. We there held that this was not a sufficient showing of prejudice to show an abuse of the trial court's discretion in denying the motion. In the Herbert case defendant's counsel moved for a mistrial based upon counsel's assertion that the jurors had read newspaper articles referring to defendant as a "beer runner" and stating that there had been nineteen postponements of the case but defendant was at last forced to trial. The court denied the motion but gave the jury precautionary instructions to disregard the information contained in the articles. In holding that the trial court did not err in denying this motion this court said there was nothing in the record, save counsel's assertion, to show that any of the jurors had read any of the articles, and it did not appear that defendant was prejudiced by their publication.
Our opinion in People v. Murawski, 394 Ill. 236, which neither party here saw fit to cite, is more analogous to the case at bar. On the second morning of defendant's trial for abortion her attorney presented a motion for a mistrial supported by his affidavit that the morning issue of the Rockford newspaper published an article which stated that, according to the records of the State's Attorney's office, defendant had been previously indicted on a charge of murder by abortion but was never brought to trial. The article also referred to two previous indictments for abortion. The motion was denied and no precautionary admonitions or instructions were given to the jury. In attempting to sustain this action of the trial court the People relied upon the Herbert case, and the cases which follow it, wherein we have held that the trial court does not abuse its discretion in denying these motions when there is nothing in the record to show that the defendant has been prejudiced. But we distinguished those cases from the case then under consideration because the record in the latter case did show facts from which the ...