WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
JOHN S. BOYLE, Judge, presiding.
MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
The defendant John Kolden was indicted for rape and for taking indecent liberties with his 9-year-old stepdaughter, tried before the court, found guilty of taking indecent liberties, and sentenced to one to twenty years in the penitentiary. He brings the case before us on writ of error, contending that he was not proved guilty beyond a reasonable doubt, that the court erred in the admission of evidence, and that the court based its decision on facts not in the record.
Prior to trial the court ordered a psychiatric examination of the defendant pursuant to statute. (Ill. Rev. Stat. 1959, chap. 38, pars. 825f, 825g.) The resultant report indicated that defendant was not a sexually dangerous person and was not committable to a mental institution.
Defendant's 9-year-old stepdaughter testified that on September 7, 1960, the defendant called her into the bathroom and told her to touch his "private," but her brother knocked at the outside door and the defendant answered it. At 12:30 that afternoon defendant and the witness were in the bedroom, and she testified that defendant "put his finger in my private." The defendant was only wearing underwear shorts. Over objection the witness testified as to past seduction attempts and other indecent acts by defendant.
On cross-examination the witness testified that she did not know what "privates" are, and the following interrogation took place:
"Q. Now, when you said that he put his finger in your privates, you don't know where he put his finger then, isn't that right?
Q. You don't know what privates are, do you?
Q. And so, when you say he put his finger in your privates you don't know what you mean by saying that, do you?
Q. And you are just telling us what this gentleman over here told you to say, isn't that right?
After this examination, the witness went into the corridor and talked with her mother; the mother told her what the word "private" meant, and the witness was recalled for the redirect examination, at which time she explained the meaning of the word. She testified ...