WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
GIBSON E. GORMAN, Judge, presiding.
MR. CHIEF JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 23, 1957.
Plaintiff in error, hereinafter referred to as the defendant, was indicted in the criminal court of Cook County, for the crime of taking indecent liberties with one Constance Petrie, a minor child. Upon trial by jury he was found guilty as charged and, after his motions for a new trial and in arrest of judgment were overruled, he was sentenced to serve a term in the penitentiary of not less than one year nor more than three years. The case is here for review upon a writ of error sued out by defendant.
From the evidence it appears that the defendant is 32 years of age. He attended Waukegan High School four years, after which he enlisted in the Coast Guard where he served over 2 1/2 years and was honorably discharged in 1944. He married in July, 1945, and moved into his present home in November, 1951, the site of the alleged occurrence. He is the father of three children, the oldest being Judy, age 10 years. He is now, and since his discharge from the service has been employed as a body and fender man by the Cadillac Motor Car Division in Evanston, Illinois. He had never before been arrested for any offense.
Upon the trial the defendant denied the charge and four witnesses testified to his good reputation for morality and chastity as well as for truth and veracity.
To reverse the judgment of conviction defendant contends (1) that his conviction depends solely upon the uncorroborated testimony of the nine-year old prosecutrix and therefore, as a matter of law, it cannot stand and must be reversed, (2) that the court erred in permitting the prosecuting attorney, in the closing argument, over objection by defendant, to read to the jury from the transcript of the evidence taken upon the trial, (3) that the court permitted the prosecuting attorney in the closing argument to make improper, inflammatory and prejudicial statements and remarks against the defendant thereby depriving him of a fair trial, (4) that the court erred in refusing to give to the jury certain instructions tendered by the defendant, and (5) that the court erred in restricting the cross-examination of the People's witnesses.
In order to determine whether there is any merit to the first contention it is, of course, necessary to examine the material portions of the testimony of the prosecutrix. Such examination reveals that at the time of the occurrences herein related she was nine years old, and lived with her parents, three brothers and two sisters in the neighborhood of defendant's home. In the rear of his home there was a play yard equipped with swings and toys where the children of the neighborhood, including Constance, frequently gathered to play. His daughter Judy was a playmate of Constance.
On Saturday, May 14, 1955, about two o'clock in the afternoon, Constance attended a birthday party given for Judy at the defendant's home. Fifteen or sixteen other girls about the same age also attended. They delivered their presents, refreshments were served to them in the basement and movies were shown to them there. The defendant operated the movie projector. After the movies were shown the children went upstairs and played games in the house and out in the yard. Afterwards Jeannie Wohlers, also about nine years old, who is a cousin of defendant, went down to the basement of the house to tell fortunes with cards. Constance followed her down to have her fortune told. At that time they were alone. Then the defendant came down. Constance was sitting in a chair across from Jeannie. There was a little card table between them. The defendant asked Constance to sit on his lap and she did. Jeannie was fortune telling and had to look at the cards while doing so. While Constance was sitting in defendant's lap, he whispered in her ear to put her hands behind her back and when she did, the defendant unzipped his pants, put her hands on his privates, took her two hands in his and made her squeeze it.
On Thursday following the party Constance told her mother what had taken place at defendant's house during the party. Shortly thereafter Mr. and Mrs. Petrie and Mr. and Mrs. Sepper, also neighbors, called at the home of defendant, and when Mrs. Petrie complained to him of his actions toward her daughter, who up to that time had told the mother only of the incident occurring at the birthday party, defendant volunteered the statement, "Don't be silly, what could happen in the time it takes to buy a bag of onions." No one had mentioned onions to the defendant at any time. Mrs. Petrie did not then know what he was talking about. Her daughter Constance had not yet told her about this incident. Later it was developed that two weeks before the party, on a Saturday, while Constance was in defendant's car a similar offense occurred under the following circumstances: Constance testified that upon return of defendant's wife from a shopping trip she had forgotten to get onions and asked the defendant to go get some. The defendant and his daughter Judy, accompanied by Constance Petrie, went to the store where he persuaded Constance to stay in the car with him while Judy went in to buy the onions and that while so waiting, he committed a similar act. This statement made by defendant to Mrs. Petrie, in the presence of Mrs. Sepper, after Mrs. Petrie had accused him of mistreating her daughter, tends to indicate that defendant was guilty of some wrongdoing (People v. Mueller, 2 Ill.2d 311,) and is corroboration of the highest quality and from a most reliable source.
Constance further testified that altogether defendant in a period of about four months committed from four to six such offenses. Aside from the incident in the defendant's car and in the basement, the other incidents occurred in the bedroom of defendant's home, while no one else was present. These incidents were all of the same pattern the holding by Constance of defendant's "privates."
From a consideration of the evidence above set forth we cannot agree with the contention of defendant that the testimony of the prosecutrix is uncorroborated. On the contrary we find that her testimony is substantially corroborated, and in the aforesaid instance, by the defendant himself. Apparently defendant had assumed that Constance had told her mother of that incident, and was ready with the foregoing answer. Mrs. Petrie and Mrs. Sepper both testified that defendant made that statement in the conversation between him and Mrs. Petrie. From this testimony the jury could well have found that the testimony of Constance was corroborated.
Moreover, evidence of more than one act of taking indecent liberties with the same child is admissible, not for the purpose of proving distinct offenses, but as showing the relationship and familiarity of the parties and as corroborating the testimony of the prosecutrix as to the particular act relied on for conviction. People v. Gray, 251 Ill. 431.
But even if we assume, as argued by defendant, that the testimony of the prosecutrix is actually lacking in corroboration, still it does not necessarily follow that the judgment of conviction in this case must be reversed, for the applicable rule is that if the testimony of the prosecutrix is clear and convincing it is sufficient to sustain the conviction although her ...