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People v. Smith

JUNE 27, 1968.

PEOPLE OF THE STATE OF ILLINOIS, DEFENDANT IN ERROR,

v.

JOHN B. SMITH, PLAINTIFF IN ERROR.



Appeal from the Circuit Court of Cook County, Criminal Division; the Hon. DAVID A. CANEL, Judge, presiding. Judgment, as modified, affirmed.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

The defendant was charged with having taken, or committed the offense of, indecent liberties with a three-and-a-half-year-old boy. At a bench trial he was found guilty and sentenced to an indeterminate term of not less than nineteen years, ten months, nor more than twenty years, in the Illinois State Penitentiary at Menard. Defendant was fifty-two years of age at the time of the occurrence.

Defendant contends that the trial court improperly limited defense counsel in his cross-examination of the State's principal witness; that defendant's guilt was not established beyond all reasonable doubt, and that the court's finding of guilty and the sentence imposed were the results of passion and prejudice.

The State's principal witness, Mrs. Pearl Maggio, testified that on October 14, 1960, at approximately 3:15 p.m. she was walking through a viaduct on 25th Street in Chicago between Canal and Stewart Streets. The viaduct is a full block long and there were no lights under it. It was a dark rainy day. Under the viaduct there were sidewalks on both sides of the street. At the edges of the sidewalks and in the center of the street were rows of concrete pillars. The street was wide enough for two lanes of traffic in each direction.

When she had travelled about one-third the length of the viaduct she saw a man (defendant) and a little boy. When about two feet from them she noticed that the man was taking the boy's pants down. Thinking that the boy probably had to go to the washroom, and not wanting to embarrass them, she "crossed over" and continued walking in the street along the center row of pillars. As she reached Stewart Street she heard the boy cry out. She returned to where the man and boy were standing and saw the boy with his face pressed against the wall of the viaduct by the defendant. The front of the defendant was against the back of the boy. As she approached, defendant jumped up from a crouching position and she saw that his pants were open and his private parts were exposed.

Mrs. Maggio pulled the child toward her and asked defendant what he was doing to the boy. Defendant replied, "He has appendix, I'm taking him to the hospital." When asked if the child was his, defendant replied, "Yes, I'm his father." Mrs. Maggio and defendant had a brief struggle and then he grabbed the child, pulled up his pants and took him toward Stewart Street. Mrs. Maggio followed, a foot or two behind them. As they reached Stewart Street she stopped them and asked the boy if defendant was his father. The child did not reply. She then put her hand out and asked the boy if he would like to go with her and he took her hand. Smith then said, "Take that God-damned kid. I'm through with him." Mrs. Maggio yelled to a passing truck driver to apprehend defendant. The latter started to run but was caught and taken to the trucking office where defendant again said he was the boy's father. The police were summoned and arrested defendant.

Mary West testified that she was part owner of Capitol Press where defendant was a part-time employee on October 14, 1960. Sometime between 1 p.m. and 3 p.m. defendant came into the shop with a small boy whom she identified as the victim of the crime. When asked if the boy was his, defendant replied that he was. Defendant had come to the office for his last paycheck and was there about five minutes.

Mary Vickery testified that her son Ronald, the victim, left her house about 1:15 p.m. to play and that she next saw him about 4 p.m. at the police station with Mrs. Maggio.

Defendant first contends that the trial court improperly limited defense counsel in his cross-examination of Mrs. Maggio. He argues that the conditions under which she saw the defendant and the boy were not ideal for observation and that counsel was not permitted to question the witness as to her power of observation. It should be noted that the questions asked required conclusions from the witness and were improper in form. Defendant relies on People v. Del Prete, 364 Ill. 376, 4 N.E.2d 484, wherein the court said on page 379:

"The entire case depended upon an identification made by one witness, and reasonable latitude should have been granted the defendant to test the means of observation and the accuracy of the memory of that witness. While considerable latitude and discretion are permitted to a trial judge in controlling the limits of cross-examination, yet so far as it relates to facts in issue or facts relevant to the issue it may be pursued as a matter of right. (Spohr v. City of Chicago, 206 Ill. 441.) A witness may be cross-examined as to his direct testimony — as to whatever goes to explain, modify or discredit what he has previously stated. (Chicago City Railway Co. v. Creech, 207 Ill. 400.)"

There is no indication in that case as to whether the questions not allowed were proper in form.

In People v. Pelletri, 323 Ill. 176, 153 N.E. 591, the court held at page 182:

"The trial court has the right to hold the cross-examination within reasonable and proper limits, but it has no right to substantially deny cross-examination of a witness by unduly limiting it or by discrediting it by impertinent remarks. If plaintiffs in error are guilty of this crime their guilt can be established in an orderly trial. Until it is so established a conviction cannot be sustained."

In that case the trial court had engaged in extensive cross-examination of witnesses and had displayed partiality throughout the trial. Both of the above cases give guidelines for a court with regard to limitation of cross-examination of witnesses. In the instant case the record discloses that counsel made no attempts to rephrase his questions or elicit the testimony in another manner. The ...


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