APPEAL from the Circuit Court of Marion County; the Hon.
DANIEL H. DAILEY, Judge, presiding.
MR. JUSTICE HUNT DELIVERED THE OPINION OF THE COURT:
Wilburn Parris was indicted by the Grand Jury of Marion County, Illinois, for the crime of cruelty to children in violation of the Charities and Public Welfare Statute, Illinois Revised Statutes, 1967, Chapter 23, Sec. 2368.
He was tried by a jury and was found guilty. Probation was denied and Defendant was sentenced to 1-5 years in the State Penitentiary pursuant to statute. Defendant appeals to this court to set aside the jury verdict and the order of the trial court, or in the alternative for reduction of sentence.
Parris married Gladys Cook in March 1968. Mrs. Parris had five children at the time of the marriage, four of whom were the victims of the cruelty in this proceeding. They are Richard Cook and Michael Cook twins, then age 7, and George Wesley Cook, age 3, and Margaret A. Cook, age 6. All were residing in the home of the defendant, a carpenter, and step-father, and their natural mother, in Centralia, Illinois.
Prior to her second marriage, Gladys Parris had been on State aid, and during a slack season in construction, the Parris family again applied for relief. The record is silent as to any contribution of support or any parental visitation or supervision by the natural father, Roy Cook. The family circumstances would indicate these contributions were nominal if any. The mother was awarded custody in the divorce decree.
The twins, Richard and Michael, were repeating the first grade at Central School. They were described by their teacher, Irene Rice, as being undisciplined and a problem in taking other children's pencils and clothing without any apparent knowledge of right and wrong. They occasionally engaged in school ground fights, often between themselves. Their teacher felt they were responding to guidance somewhat, prior to the incident in question.
The younger children were pre-school age and little is set forth of their conduct in the home prior to February 20, 1969.
On that date, defendant was ill with sinus problems and sought medical assistance. He and his wife, with the three younger children, drove to the doctor's office. They left the children in the car unattended and were gone for some time. They made an appointment for later in the day. Upon their return to the car they found that George and Margaret had gotten into defendant's tool box and found his blue carpenter chalk. They had it all over themselves. Mrs. Parris scolded them and warned them if they did this again they would get a spanking.
On the second trip to the doctor's office that day, the children were again left unattended and again got into the chalk. When defendant and his wife returned to the car, defendant told the children they would get a spanking when they got home. After they returned to the house and while Mrs. Parris cleaned up the baby, defendant caused George and Margaret to be stripped and proceeded to whip them with a piece of insulated electric "bell" wire from which the insulation had been partially removed, leaving the copper wire, with 3/16 inch diameter, exposed for a distance of about 1 3/4 inches. The record is silent as to when the twins were similarly punished or why, although the body marks, photographed six days later, indicated a closely related time. The wire and photographs were admitted into evidence at the trial. Mrs. Parris stated she asked defendant not to whip the children, but did not otherwise intervene or call authorities or file a complaint.
The matter first came to the attention of authorities when Richard complained to his teacher that he hurt. She examined him, and later his brother, and found bloody marks, and sent them to the principal, Mr. J.W. Wheatley, who also looked at them. A police official, Charles Sanders, was notified as was the social agency case worker, Basil Sullens. The children were taken to the hospital emergency ward and examined by a Dr. Jose G. Bacallao, and their bodies photographed. The case worker called at the home where defendant admitted the whippings and his wife produced the wire whip.
The principal defense in the trial court which was preserved for review was the applicability of the statute to the defendant, a step-father of the victims. Defendant, at the close of the State's case and in the post trial motion argued the defendant, as a step-father, had no "legal control" over the children, and that the evidence failed to show beyond a reasonable doubt that he had assumed the role of in loco parenti over the children. Defendant also tendered one instruction in support of this defense which was refused.
Also an issue on appeal is the severity of the sentence. Defendant had no criminal record, and no previous conviction of cruelty to children.
The statute under which defendant was convicted (ch. 23, par. 2368 IRS 1967), reads as follows:
"Any person who shall wilfully and unnecessarily expose to the inclemency of the weather, or shall in any other manner injure in health or limb, any child, apprentice, or other person under his legal control, shall be fined not exceeding $500, or imprisoned in the ...