Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. EDWARD E. PLUSDRAK, Judge, presiding.
MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.
James Smith, the defendant, was indicted by the Cook County Grand Jury on July 8, 1961, charged with having committed "the infamous crime against nature upon and with one Vernon Hill, a male person." In the same indictment the defendant was charged with taking indecent liberties with Vernon Hill, and unlawfully tending to make the said Vernon Hill (a male child under the age of 17 years) a delinquent child.
The case against the defendant was first tried before a judge without a jury, at which trial the defendant was found guilty and sentenced to 5 to 15 years in the penitentiary. The defendant took an appeal from that sentence and this court reversed and remanded the case for a new trial. (People v. Smith, 55 Ill. App.2d 480, 204 N.E.2d 577.)
A second trial was held before a jury in July 1965. After the case had been presented to the jury the prosecution moved to nolle prosequi the charges of a crime against nature and contributing to the delinquency of a minor. The jury found the defendant guilty of indecent liberties with a child and the court sentenced the defendant to 15 to 20 years' confinement. From that judgment and sentence this appeal is taken.
In this court the defendant urges:
1) The introduction of the evidence of flight and the instruction on flight constitute reversible error;
2) The introduction of the three previous convictions for crimes against nature was error;
3) The evidence supporting the conviction of the defendant rests on the testimony of a child of 10 years, and this testimony is not clear and convincing and is not otherwise substantially corroborated;
4) The prosecutor's comments upon the defendant's failure to produce certain defense witnesses was reversible error;
5) The prosecution's questions of defense counsel implying that defense counsel, prior to interviewing the State's witnesses, should have advised them that they had the right to have an attorney present, and should have called the State's Attorney's office first;
6) The defense counsel was unduly restricted in his cross-examination of the State's witnesses.
At the time of the trial Vernon Hill was 14 years of age, and attended grade 8-A of Vaughn Public Elementary School in Chicago. He testified that on the evening of July 8, 1961, at about 9:30, he met the defendant on the street; that the defendant had been to his home twice, once in June, and again on July 4, when he had taken pictures at a barbecue party. He stated that on the evening of July 8, the defendant asked him to come with him and clean his room; that he got a wastebasket near the front door, then followed the defendant to the basement, where he was forced to commit an indecent act on the defendant's person, the details of which it is not necessary to relate here. The witness testified that the defendant said he would kill him if he told anyone what had occurred, then held him by the wrist and walked him home. He was unable to tell at what time he arrived home, but stated that his grandmother was in the hall, and followed him upstairs.
Ruby Hill, Vernon's mother, testified that she had seen the defendant twice before; once in June, and again on July 4, when he took pictures of her children at a barbecue in the yard. She testified as follows: On the night of July 8, 1961, she had been out for about two hours looking for her son Vernon. When she returned home about 11:00 p.m., she saw the defendant standing in front of her building, and he told her that Vernon had been with him, cleaning his room. After the witness complained to the defendant that he should not have kept Vernon out so late he gave her $1 for Vernon and told her it was for some work Vernon had done for him. While they were standing there Earl Stamply, a friend of Ruby Hill's, shouted from a second-floor window to hold the defendant and not let him get away, because he had done something to Vernon. The defendant then ran down the street. Mrs. Hill said she did not see him again that night. The court overruled an objection made to the testimony of Ruby Hill with reference to the shouted statement from the window and the flight of the defendant.
Ruby Hill further testified that she called the police and gave them a statement when they arrived; that about 11:20 p.m. they went to the defendant's apartment, but he was not there; that about 2:00 a.m. the next day the witness and her mother were looking out the window of their apartment and saw the defendant across the ...