Appeal from the Circuit Court of Cook County, First Municipal
District; the Hon. ALVIN TURNER, Judge, presiding. Reversed and
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
This is an appeal from a conviction after a bench trial for contributing to the sexual delinquency of a child. Defendant was sentenced to thirty days in the county jail and fined one hundred dollars ($100).
Defendant contends that the magistrate considered incompetent and prejudicial evidence; that the magistrate assumed the role of an advocate rather than that of an impartial trier of the case, and that the guilt of the defendant was not proved beyond a reasonable doubt by the uncorroborated testimony of the complaining witness.
Edward Mattson, Jr., the complaining witness, testified that he spent the night of April 9, 1965, at the home of defendant, while visiting with defendant's stepson, Frank Homer. The Mattson boy further stated that about 12:30 a.m., while he was asleep, defendant "tried putting his mouth over my penis and I woke up and I said to him what are you doing and he said nothing and I told him to leave me alone and he just walked out." The next morning Mattson, Jr., told Homer of the incident and the latter said the witness should tell no one and that defendant would never do it again. Therefore complainant did not tell his parents. A month or so later Mattson, Jr., and another friend discussed the matter, and that friend told Homer what Mattson, Jr., had said. Thereafter Homer and Mattson, Jr., had an argument about the incident, after which Homer informed defendant and his wife of Mattson's, Jr.'s accusation.
McGrath went to the Mattson home to discuss the matter. This was the first time Mattson, Jr., said anything of the incident to his parents. The parents had an argument with defendant and the next day Mattson, Sr., signed a complaint against McGrath.
According to McGrath, on April 9, 1965, he arrived home from work about 4:00 p.m. His wife was not working that night and together they went to a pet shop and purchased a monkey. Defendant presented a check into evidence which was signed by him, dated April 9th, and payable to the Petland Shop. He testified that the complaining witness was at his home that night, along with one Phil LeClair, but that only the latter remained overnight. He denied that the alleged act of perversion occurred. His story was corroborated by the testimony of his wife. Frank Homer also testified that Mattson, Jr., did not spend the night at his house, but that LeClair did.
Defendant first contends that the magistrate considered incompetent evidence prejudicial to defendant in deciding the case. Some of the court's questioning of the Mattson boy, was as follows:
"The Court: What was said, what did he say to you or to your father and what did you or your father say to him?
"The Witness: I was arguing with Frank, his son, the night before because I had asked if anything unusual had happened to Frank Kasper when he spent the night at their house. And we were arguing about it and everything.
"The Court: You are saying you asked another young man, is that correct?
"The Court: Point him out.
"The Witness: (Pointing to another youngster, Frank Kasper.)
"The Court: You were discussing this later on with another ...