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Smith v. Andrews

DECEMBER 15, 1964.

RAYMOND J. SMITH AND ROSEMARIE A. SMITH, PETITIONERS-APPELLEES,

v.

HAROLD LEE ANDREWS, CRAIG PATRICK ANDREWS, BY HIS GUARDIAN AD LITEM, AND MARILYN ANN ANDREWS, BY HER GUARDIAN AD LITEM, DEFENDANTS, HAROLD LEE ANDREWS, APPELLANT.



Appeal from the County Court of Winnebago County; the Hon. FRED J. KULLBERG, Judge, presiding. Affirmed.

MORAN, J.

Rehearing denied January 8, 1965.

The Illinois Adoption Statute, Ill Rev Stats ch 4, Secs 9.1-8, 9.1-1 (1961), provides that one of the grounds for the adoption of children without the consent of a natural parent is the unfitness of such parent by reason of "depravity." This is a case in which the lower court found that the defendant, Harold Lee Andrews, was an "unfit parent," by reason of "depravity," and entered a decree allowing the two minor children of the defendant to be adopted by the plaintiffs, Rosemarie A. Smith, who is the natural mother of the children and the former wife of Andrews, and Raymond J. Smith, her new husband.

The verified adoption petition alleged that the defendant had been convicted of the crime of robbery on November 12, 1959, and that he had received a sentence of one to seven years in the penitentiary. The petition further alleged that on January 27, 1960, the defendant had been found guilty of the crime of forcible rape, for which he received a sentence of ten years in the penitentiary, to run concurrently with the sentence on the robbery conviction. The petition sets forth in detail the docket numbers of these criminal cases, the dates involved and other pertinent information sufficient to identify the criminal proceedings. The petition went on to allege that, by reason of said convictions, the defendant was "depraved" within the meaning of the adoption statute.

The defendant filed a verified answer to the petition, in which he denied all material allegations, including the allegations concerning his alleged convictions for these crimes.

At the trial of this cause, the plaintiffs called as a witness a deputy clerk of the Circuit Court of Winnebago County. He brought with him the records of case number 9760. He testified that the name of that case was "People of the State of Illinois v. Harold Lee Andrews," that it was a proceeding by information (indictment having been waived) and that the charge was robbery and larceny from the person. He further testified that the record showed there had been a plea of guilty, a judgment of conviction on November 12, 1959, and a sentence of from two to seven years. This witness also had the court records in case number 9787. He testified that the caption of that case was "People of the State of Illinois v. Harold Lee Andrews" and that it was an indictment for forcible rape and assault with intent to commit rape. He testified that the record showed a plea of not guilty, a trial by jury commencing on January 25, 1960, and a verdict of the jury, returned on January 27, 1960, finding the defendant guilty of forcible rape and fixing his punishment at ten years in the penitentiary. The clerk further testified that the record showed that a motion for a new trial was filed, heard and denied; that a judgment of conviction was entered on February 11, 1960, and that the court imposed a sentence of ten years, to run concurrently with the sentence in case number 9760.

The court records themselves were not introduced into evidence. The defendant objected to the testimony of the clerk on the basis that "The substance and forms of questions and the materiality of the questions, I feel, are not admissible and are questionable in this case. This is a question of adoption and I think whatever proof they are attempting to bring in, should be brought in not through a method of conviction, but through some other method."

The plaintiff Rosemarie Smith testified that when she went to visit the defendant at the penitentiary, he would never say anything about what they were going to do as a family, but always talked about his intention to rob the Sublette Bank and "get the jury, the judge and the cops" when he got out. She admitted that the defendant had, prior to his convictions, been a pretty fair supporter and had always taken care of the children pretty well. She further conceded that he loved the children.

The only allusion to the robbery and rape convictions, aside from the testimony of the clerk, was an inquiry of the defendant on cross-examination as to why he had robbed the man and how much money he had taken from him. He answered that he had been drinking and did not remember how much money he obtained. No other evidence was introduced concerning the circumstances of the robbery, and there is no evidence in the record concerning the rape other than the testimony of the deputy clerk described above.

[1-4] The defendant contends, first of all, that the evidence of the deputy clerk was inadmissible to show the fact of the convictions. He argues that the best evidence rule requires that the court records themselves, rather than the testimony of the clerk, be offered to show the convictions. The defendant misunderstands the purpose and application of the best evidence rule. In a civil case, the fact of a previous criminal conviction can be shown in a variety of ways, including, but not limited to, the introduction of the court records pertaining to the conviction. It was the judgment of conviction, and not the existence or import of the court records, which the plaintiffs were attempting to prove in this case. Thus, the best evidence rule — which is limited to the proof of the contents of documents, Steward v. Bartley, 5 Ill. App.2d 208, 213, 124 N.E.2d 899 (3rd Dist 1955) — did not apply. It is true that, since it appears the clerk was merely reading from the documents, the proper procedure would have been to introduce the documents before the clerk was allowed to recite from them. What happened in this case, apparently, is that the witness was allowed to read from documents which were not in evidence. However, the defendant made no objection on this ground, nor, for that matter, did he object on the basis of the best evidence rule which he urges here. The objection he did make, which we have quoted above, was so general, and, in our view, meaningless, that it failed to preserve anything at all. Accordingly, no error can be predicated on the testimony of the deputy clerk.

We feel it is not inappropriate to digress at this point to wonder why, by the time the case came to trial, there was any issue remaining as to the fact of the defendant's convictions. The convictions were alleged with particularity in a verified petition. From our review of the record, we find nothing to indicate the slightest doubt that the defendant was in fact convicted in the manner and for the crimes set forth in the petition. He was brought from the penitentiary on a writ to testify in this cause. So far as we know, he is still there. At no time during the trial of the case did he deny that he had been convicted of robbery and rape in the manner alleged, and, as indicated, the question of his motive for the robbery was touched upon briefly during his cross-examination. In view of this, we find it difficult to understand how the defendant could have filed a verified answer to the petition, denying each and every allegation concerning his convictions and subsequent incarceration. We are equally at a loss to understand how his attorney could have prepared such an answer for his signature. Perhaps there is something here that does not meet the eye, but we cannot imagine what it would be.

Defendant's next point is that proof of his convictions is not admissible to prove the facts upon which the convictions were based. The defendant argues, in other words, that proof of his conviction for robbery does not show that he committed a robbery, proof of his conviction for rape does not show that he was, in fact, guilty of rape. If the defendant is right about this, then, of course, there is no evidence in the record to support the finding of "depravity." This is not a case where the material question is whether the defendant had been convicted of a crime, as where such conviction is relied upon as a statutory ground for divorce. The question here, rather, is whether the defendant actually committed the crimes of robbery and rape.

Although the plaintiffs had the defendant available for adverse examination, they chose for some reason not to ask him anything about these crimes, other than the brief inquiry mentioned above concerning his motive for the robbery and how much money he obtained in the robbery. He was not asked anything about the circumstances of the robbery and the rape was never even mentioned. As already indicated, the plaintiffs did not call any other witnesses to testify to any facts concerning either of the crimes for which the defendant was convicted.

We note at the outset that there is a distinction between the evidence of the defendant's conviction for the robbery and that of his conviction for the rape. He entered a plea of guilty to the robbery, and it is well settled that such a plea of guilty is an admission which may be received against him in a subsequent proceeding. Galvan v. Torres, 8 Ill. App.2d 227, 232, 233, 131 N.E.2d 367 (2nd Dist 1956). The evidence of this admission would be sufficient, especially when uncontradicted, to support the finding that the defendant had in fact committed a robbery. The plea to the rape charge, however, was "not guilty." There is no admission involved there. The only thing that could be used against the defendant would be the conviction itself. We are thus ...


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