Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. JOHN C. FITZGERALD, Judge, presiding. Judgment
of conviction affirmed.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
CHARGE: Indecent liberties with a child. *fn1
JUDGMENT: The defendants were jointly indicted by the grand jury of Cook County; the case was tried before the court without a jury, and the defendants were found guilty and sentenced to three to six years in the State Penitentiary.
POINT RAISED ON APPEAL: The defendants were not proved guilty beyond a reasonable doubt.
EVIDENCE: From the record it appears that William O'Connell, 41 years of age, Patrick McDonnell, 24 years of age, and Mason Turner, 36 years of age, maintained an apartment at 1472 North Paulina Street, Chicago, Illinois. In the indictment the defendants were accused of committing indecent liberties on November 28, 1964, with Roger Toler, 13 years old.
Roger Toler testified for the State, as did Duane Johnson, 12 years old, and Michael Johnson, 13 years old. The evidence educed at the trial was sordid. Roger Toler testified that Patrick McDonnell committed numerous indecent liberties on his person, including oral copulation. He further testified that William O'Connell committed none of the acts, but that "Bill [meaning William O'Connell] asked Don would I want to go into the bedroom with Pat. I said `Yes.'" Duane Johnson corroborated Roger Toler's testimony with reference to the indecent liberties involving McDonnell. His testimony was not confined to a single instance. Michael Johnson also corroborated Roger's testimony. All three boys testified that they had been in the apartment on various days; that they were served whisky, wine and beer; and that on one occasion O'Connell asked them if they wanted to stay overnight. Roger, Michael and Duane left to call their homes; Michael's mother told him to get on home; Roger called his mother, but there was no answer, and he and Duane went back to the apartment. Roger stated that they were told "there was a guy there, . . . to come back later." After about fifteen minutes they again went to the apartment; William O'Connell answered the door, and told them to come back a little later, that the man was still there. They left, then went back about three, four or five times, when they were let in; the man had gone. This was about 9:30 or 10:00 p.m. There was testimony from the boys that on one occasion Duane Johnson got sick from the combination of drinks and vomited.
Patrick McDonnell and Mason Turner testified on behalf of the defendants. McDonnell testified that he couldn't tell anything about the boys coming to the apartment because he was cleaning the second floor for the landlord. The defendants lived on the first floor rear. McDonnell denied any of the acts testified to by the boys, but he did state that the three boys were in the apartment together on November 28, 1964, which is the date set out in the indictment. He also testified that he was told by William O'Connell that there were some friends, or boys in the apartment, and that when he went downstairs he wasn't surprised to see three little boys, nor did he wonder what they were doing there. He admitted he saw the boys drinking beer and said "It wasn't strange to me to see three boys drinking." He did estimate that Duane was younger than Roger; he would say about 11 or 12. He did not think it strange that Duane should be in the apartment around 7:30 or 8:00 p.m., watching television after having been in the apartment all day, nor did he ask the boys at any time what they were doing.
Mason Turner, the other tenant in the apartment, testified that he had seen Roger at the house approximately four times on different days, and that he had also seen Duane and Mike Johnson.
The defendants' motion for a new trial was denied and the court thereupon sentenced the defendants.
We do not disagree with the rule laid down in People v. Sheppard, 402 Ill. 347, 83 N.E.2d 587, cited by the defendant in which case the court held:
". . . In criminal cases it is the duty of this court to review the evidence, and, if there is not sufficient credible evidence, if it is improbable or unsatisfactory, or not sufficient to remove all reasonable doubt of defendant's guilt and create an abiding conviction that he is guilty, the conviction will be reversed."
In the instant case, the question as to whether any of the acts took place on the date charged in the indictment November 28, 1964 is immaterial, since it is not a fatal variance to fail to prove the exact date of the crime as alleged in the indictment. People v. Schmidt, 10 Ill.2d 221, 139 N.E.2d 726; People v. Claussen, 367 Ill. 430, 11 N.E.2d 959.
The defendants argue that William O'Connell should not have been found guilty since there is no proof that he committed any act of indecent liberties upon the person of Roger Toler. There is no question that William O'Connell was present at the time the offense was committed. Roger has testified that William O'Connell suggested to another person present that Roger would like to go into the bedroom with McDonnell and that Roger assented; that he went into the bedroom and went to bed with McDonnell who committed indecent acts upon Roger's person. O'Connell also asked that the boys stay overnight and he was present, aiding, abetting and agreeing with the conduct of Patrick McDonnell towards the boys. In People v. Touhy, 31 Ill.2d 236, 201 N.E.2d 425, a case ...