WRIT OF ERROR to the Circuit Court of Winnebago
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 19, 1957.
James Davis, defendant, was indicted in the circuit court of Winnebago County for the crimes of forcible rape, statutory rape, and assault with intent to commit rape, alleged to have been committed on September 18, 1955, upon a 14-year-old girl. He entered a plea of not guilty; the case was tried before a jury which found him guilty of forcible rape, in the manner and form as charged in count I, and guilty of statutory rape, as charged in count II of the indictment, and fixed his punishment at imprisonment in the penitentiary for 15 years. No verdict was returned as to the third count of the indictment which charged assault with intent to commit rape. Post-trial motions were overruled, and the defendant was sentenced on the jury's verdict. He now brings this writ of error to review the judgment of conviction and sentence.
The defendant assigned the following errors for reversal of the judgment: (1) denial of application for change of venue; (2) the admission of evidence; (3) the evidence failed to prove the guilt of defendant beyond a reasonable doubt; (4) improper argument by State's Attorney; (5) the giving and refusing of certain instructions; and (6) error in entering judgment of conviction on the verdict of the jury and in imposing sentence.
Defendant first contends that the court erred in denying his application for change of venue. He was indicted by the grand jury and capias issued for his arrest on January 9, 1956. On January 11, 1956, the defendant appeared in court with his attorney, and after being arraigned, made a motion to quash the indictment which motion was heard and denied. Defendant then entered a plea of not guilty to the indictment and the court set the case for trial on February 13, 1956, but it was not reached. On the following day, the defendant filed a petition for change of venue from Judges O'Sullivan and Dusher, on the ground of prejudice. The verified petition, not accompanied by supporting affidavit, averred that "such cause for a change of venue arose and came to his knowledge heretofore and again on February 13, 1956."
The Venue Act, (Ill. Rev. Stat. 1955, chap. 146,) contains the requirements and provides the procedure to be followed in connection with a change of venue. The specific provisions of certain sections of this act are subsequently outlined. Section 18 provides that when any defendant in an indictment or information fears that he will not receive a fair and impartial trial in the court in which the case is pending because the judge is, or the inhabitants of the county are, prejudiced against him, the court shall award a change of venue upon the application of the defendant, provided the application is in conformity with subsequent sections of the act. Section 20 provides that every such application shall be by petition setting forth the cause of the application and praying a change of venue, and that the petition shall be verified by the affidavit of the defendant. Section 21 provides that when the cause for change of venue is the prejudice of the judge against the defendant or his attorney, the petition shall be accompanied by the affidavit of the defendant or his attorney, stating that he believes the judge is so prejudiced against the applicant or his attorney that either cannot have a fair and impartial trial. Section 24 provides that no application for change of venue made more than 30 days after the earliest day at which the applicant might have been heard shall be allowed unless the applicant shall have given to the State's Attorney at least 10 days' previous notice of his intention to make such application, except where the causes have arisen or come to the knowledge of the applicant within less than 10 days before making the application. Section 25 provides that no change of venue shall be granted more than 30 days after the earliest day at which the applicant might have been heard unless he shall show that the causes for which a change is asked have arisen or come to his knowledge since the expiration of such 30 days.
In a criminal case, if the petition for change of venue on account of the prejudice of the judge, and the accompanying affidavit, are in compliance with the act, the right of the defendant to a change of venue is absolute. Under such circumstances the trial judge loses all power and authority over the case except to make the necessary orders to effectuate the change; and the denial of the petition constitutes reversible error. People v. Rosenbaum, 299 Ill. 93; People v. Cohen, 268 Ill. 416; Cantwell v. People, 138 Ill. 602.
The petition was not accompanied by an affidavit of defendant or his attorney, and we question whether it was filed in apt time. However, we need not determine whether it met with the technical requirements of the statute. In colloquy relative to change of venue, between the trial court, the attorney for defendant, and the State's Attorney, and in the presence of the defendant, the attorney for the defendant stated: "I understand your Honor is going to be here next month; Judge Dusher is not going to be here. I would say this, if the Court would remove this case from the trial list at the present time and not pass on the petition, it could be set for trial before you next month. I understand there is to be a jury." In view of this statement we conclude that the allegation of prejudice was without foundation; that the petition was filed for the purpose of delay; that the alleged prejudice of the trial judge was waived; and that the trial court properly denied the petition for change of venue.
Defendant next contends that the trial court erred in the admission of evidence. He first urges that the comments of the complaining witness made immediately after the alleged offense were not admissible. The mother of the complaining witness testified on direct examination that she was awakened by her 9-year-old daughter about 2:30 or 3:00 o'clock on the morning of September 18, 1955; that she went into the kitchen, turned on the light, and saw a man standing beside complaining witness's bed in the adjoining bedroom; that she could see his height but not his face because there was no light in the bedroom and she wasn't close enough to him; that he was in the neighborhood of six feet tall; that he told her to get back in her room if she knew what was good for her; that she went back to her bedroom to awaken her husband and then heard the person leave the house by the kitchen door. She further testified that, after telephoning for the sheriff, she talked to her 14-year-old daughter, the complaining witness; that said daughter was hysterical and there wasn't much she could get out of her; and that the complaining witness said, "Mother, he threatened to kill me." The mother also testified that the complaining witness told her that defendant also threatened to kill Billy; that he said he would cut her guts out if she didn't lay down and shut up; that he said if she didn't do what he wanted to do he would kill her; and that complaining witness said, "Mother, he did it to me."
In rape cases, where the injured female is a witness, it is proper for her to testify that she made prompt complaint concerning the outrage which had been perpetrated upon her, and it is proper to permit the person to whom she complained to give testimony that the complaint was made, but it is not proper for such person to give the name of the accused or the details of the offense. We believe that the testimony of the mother was within the limitations prescribed by law. The details of the offense were not related by her. The declarations preceding the words, "Mother, he did it to me" were merely introductory. Evidence of such complaint is admitted on the theory that the natural instinct of a female thus outraged prompts her to express her indignation at the injury inflicted upon her, and it is deemed relevant on the ground that it corroborates her statement that she was assaulted. (People v. Romano, 306 Ill. 502; Stevens v. People, 158 Ill. 111.) To be admissible the complaint of the offense must be made, as it was in this case, without inconsistent or unexplained delay and must be a spontaneous declaration of injury, and not the mere recital of past events made in answer to questions. (Cunningham v. People, 210 Ill. 410.) The admission of such complaint is an exception to the general rule that hearsay evidence is not admissble and does not extend to crimes other than rape. People v. Romano, 306 Ill. 502; Stevens v. People, 158 Ill. 111.
Defendant also urges that the sister of the complaining witness, an eyewitness to the event, should not have been permitted to testify in that preliminary inquiry was not sufficient to establish her competency. At the time of the offense, the sister was 9 years old; at the time of trial she was 10 years old and in the fourth grade. We are unable to agree that it was error to permit her to testify. She was subjected to an examination by the court to determine her competency; the court found that the child had sufficient mental perception and moral understanding to qualify her to speak as a witness. If the witness was sufficiently mature to receive correct impressions by her senses, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth, she was competent. Not age, but the degree of intelligence of a child, determines the question of the child's competency. (Shannon v. Swanson, 208 Ill. 52; State v. Segerberg, 131 Conn. 546, 41 A.2d 101.) In the case at bar the intelligence of the witness was ascertained, to some extent, by her appearance and conduct in the presence of the court, and it is only where there has been an abuse of discretion or a manifest misapprehension of some legal principle that a decision to admit such testimony will be reviewed. (People v. Karpovich, 288 Ill. 268.) We find no reason to disturb the court's determination that the witness was competent.
At the trial a statement in writing in narrative form, signed by the defendant, was offered in evidence as People's exhibit No. 1. The defendant objected to its introduction on the ground that the statement was not voluntary. A preliminary hearing on this issue was had before the court out of the presence of the jury. Joe Ferona, a witness for the People, testified that on October 14, 1955, approximately an hour-and-a-half after being taken into custody, the defendant was questioned by the witness and another deputy sheriff at the sheriff's office; that approximately one-half hour thereafter the witness typed People's exhibit No. 1 from statements made to him by defendant; and that the defendant immediately read and signed it. In substance, the statement sets forth that the defendant was 28 years of age; that on the morning of September 18 he entered the complaining witness's home in Rockford at about 4:00 A.M.; that a young girl let him in; that he told her to go to bed; that he got on top of her but had nothing to do with her sexually; that he left by the rear door of the house; and that no threats or promises were made to defendant and no acts of violence done him in connection with the giving of the statement.
On cross-examination Ferona testified that he and deputy sheriff Mike Iasparro, picked up defendant at about 6:45 P.M. at the house of defendant's sister; that they drove him first to the complaining witness's home, then to the Atwood factory to be viewed by a prospective witness, and then to the sheriff's office; that about 8:15 P.M. or twenty minutes after the three arrived at the sheriff's office, the defendant made the statement, and that the defendant, deputy sheriff Mike Iasparro, and Robert L. McDonald, an assistant State's Attorney, were present.
Mike Iasparro was called as a witness on behalf of the People. His testimony on direct examination corroborated that of witness Ferona. On cross-examination he testified that defendant was told he could have a lawyer, and that defendant didn't appear to be too nervous.
Defendant, on direct examination, testified that he was at his sister's home eating supper when the officers arrived on October 14; that he was taken by the deputies to the complaining witness's home and the Atwood factory, and was questioned by the officers during this time; that after they reached the court house the two officers questioned him for at least half an hour; that he was nervous and scared; that the officers promised that if he would sign a statement, he could go home to his wife and eat supper; and that he had eighth grade education and was unable to read or write. While a witness he was presented with the statement in question and asked to read it, and the record indicates that he read the introductory portion of the statement well. It also appears that after reading approximately one third of the body of the statement he apparently remembered that he had testified that he was unable to read. Thereafter, he read in a halting, stumbling and ...