« ForrigeFortsett »
(145 N.E.) This is an important duty of the trial court, amined the complaining witness on Decembut we see no evidence here of a violation ber 27, 1923; that she found a badly laceratof that duty.
ed condition of the private parts, out of [4, 5] It is next objected that the court which blood was oozing; that there was evi. erred in admitting incompetent testimony dence of scratches there; that the complainon the part of Dr. Kathleen R. Harrington. ing witness was in a highly nervous and exThe question was asked this witness: “From cited condition, her pulse being about 100 ; your examination, have you any opinion as that this was about four hours after the alto whether or not her private parts had been leged attack; that her undergarments were penetrated by the private parts of a man?" bloody; that she was also bruised on her and she answered, “Well, from my examina- arms, shoulders, and chest. tion, I would say that her private parts had Jacob Paschen testified that he saw the been penetrated by some blunt object, and complaining witness on the evening of De. my own personal opinion is—" Objection cember 27 ; that she had on a torn dress, and was urged to further statement on the part was scratched over the shoulders, and apof the witness and no further statement was peared very much upset, as though some made. This question was improper, as it thing had happened ; that she informed him called for an opinion on the part of the wit- that she had been attacked by a big brute; ness as to the ultimate fact in the case, but that after hearing her story the witness the witness did not so answer the question. got his nephew and went to find the house On the contrary, her answer was entirely where the defendant lived, and from there competent and proper. We are of the opin- he went to a near by corner, secured a police ion that plaintiff in error was not prejudiced officer, and went back to the defendant's by the testimony of Dr. Harrington. While house, and asked him if he had attacked an expert witness is not allowed to give an the complaining witness; that he replied that opinion as to the ultimate fact in the case, he had; that they took him in an automobile no such opinion was rendered here, and the to the home of the complaining witness, and impropriety of counsel's question does not that the defendant then and there admitted amount to the admission of improper evi- that he attacked her. Paschen's testimony is dence. Had the question been answered as corroborated in full by William G. Triphahn, asked, a different question might appear the police officer who made the arrest, who here.
also states that plaintiff in error admitted  Plaintiff in error also contends that that he had intercourse with the complainthe verdict is contrary to the evidence. The ing witness. It also appears from the state's complaining witness testified that on the aft- evidence that shortly after the alleged crime ernoon of December 27, 1923, she was em- the complaining witness told Mrs. Paschen ployed in the capacity of maid in the base and her friends, also a Mrs. Shauer, and a ment of the home of Mr and Mrs. Paschen, Mr. Whitehead, a friend of her brother, of on Sheridan road, in the city of Chicago; the attack. that she was engaged in ironing clothing; Plaintiff in error took the stand and dethat there was a stairway leading from the nied that he used force, or that he had inbasement into the kitchen; that about 5 tercourse with her, but stated that she cono'clock plaintiff in error, Sunesson, who was sented to intercourse, but that they were inemployed as a janitor at the residence, came terrupted. He also denied the testimony of into the basement to replenish the fire; that the officer and of Paschen that he had adafter a remark or two he came up behind mitted having attacked the complaining wither and threw his arms around her; that ness, or that he was with the officer on that she made an outcry and he told her to shut night at the house of the complaining wit. up; that she tried to go upstairs and in so doing seized one of the rungs in the stair Some testimony is offered concerning an way railing; that he pulled her down, and attempted settlement of the matter, and a in so doing pulled this rung out of the rail- witness was offered by the defense who tesing, and she fell to the floor; that he fell tified that complaining winess had, in effect, on top of her; that she screamed, and he admitted that the act was done with her conput his hand over her mouth and told her sent. In rebuttal the complaining witness to shut up, and that he thereafter ravished took the stand and emphatically denied any her; that she tried to get away from him. such conversation. but could not, and that finally she fainted. We are of the opinion that the evidence
Dr. Kathleen Harrington testified that she abundantly justifies the verdict of the jury had examined the complaining witness on in this case, and that there is no reversible January 4; that she found her private parts error in the record. The judgment will torn and still ozzing blood. Dr. Helga Ruud, therefore be affirmed. a practicing physician, testified that she ex Judgment affirmed.
(314 Ill. 548)
Error to Second Branch Appellate Court, PEOPLE V. MCDONALD. (No. 16230.) First District, on Appeal from Superior
Court, Cook County; Denis E. Sullivan, (Supreme Court of Illinois. Dec. 16, 1924.)
Judge. 1. Contempt On 34, 52–Superior court has in Robert McDonald was adjudged guilty of
herent right to punish for contempt and to contempt of court, and on review by Appeldeal summarily with contempt committed in late Court the judgment was affirmed, and its presence.
he brings error. Reversed. Superior court has inherent right to punish for contempt of court independent of statute, John L. Ward and Darrow, Sissman, Holand, when contempt is committed in its pres- ly & Carlin, all of Chicago, for plaintiff in ence, court acting on view and on its own knowledge may deal summarily with offender, Edward J. Brundage, Atty. Gen., Robert E. and without hearing any evidence punish him.
Crowe, State's Atty., of Chicago, and Edward
C. Fitch, Asst. Atty. Gen. (Edward E. Wil2. Contempt om 52-Contempt held not com
mitted in court's presence or so near as to in- son and Clyde C. Fisher, both of Chicago, of terrupt its proceedings, and court could not counsel), for the People. act on view without trial.
Where assault was committed in corridor HEARD, J. On December 21, 1923, there 50 feet from superior court room and neither was pending in the superior court of Cook judge in chambers nor clerk nor bailiff knew | county, Ill., on the docket of Judge Denis of matter until informed thereof by others, con- E. Sullivan, one of the judges of said court, tempt of court was not committed in presence the chancery case of Emanuel Goldstein et of court, or so near thereto as to interrupt its al. v. International Brotherhood of Teamproceedings, and court could not act on view and without trial.
sters, Chauffeurs, etc. At 9:10 o'clock of
that day Goldstein, one of the complainants 3. Contempt @mw40—What constitutes “crimi- in the case, went into the room occupied by nal contempt," stated.
said judge and put a motion in said cause on When contempt consists of something done the court's motion book. He immediately or omitted in presence of court tending to im- thereafter left the courtroom, and as he pede or interrupt its proceedings or lessen its walked down the corridor he was assaulted, dignity, or out of its presence in disregard of pushed into a toilet room on the opposite side or abuse of its process, proceeding is “criminal," of the corridor from the courtroom and some and penalty is to vindicate authority and dig-distance away from it, and there severely nity of people.
beaten. A number of court bailiffs who were (Ed. Note. For other definitions, see Words at the time in the courtroom of Judge Jesse and Phrases, First and Second Series, Crimi- Holdom, in the immediate vicinity, heard nal Contempt.]
Goldstein's cries for help, and upon going in4. Contempt om 58(3)-In proceeding for con
to the corridor saw plaintiff in error standtempt not committed in court's presence, an- ing against the wall across the corridor from swer denying wrongful acts held conclusive.
the toilet and four or five feet north of it, In contempt proceeding for acts committed saw Goldstein come out of the toilet, and not in presence of court and not in furtherance heard the noise of persons running down the of remedy sought in suit or in enforcement of stairs which were near. None of the bailiffs orders or decrees of court, but to maintain its saw McDonald do anything, but he was arauthority and uphold administration of justice, rested at the request of Goldstein, taken into sworn answer denying wrongful acts is con- | the courtroom of Judge Sullivan, and when clusive, and defendant is entitled to discharge; court convened at 10 o'clock one of the atbut, if he fails to so purge himself, court may torneys for the complainants in the chancery at once impose punishment.
case told Judge Sullivan that McDonald had 5. Contempt 58(3)-18 answer denying con- made an assault upon Goldstein as he left
tempt be false, remedy is by indictment for the courtroom after putting a motion on the perjury.
book. Judge Sullivan then proceeded to deal If sworn answer denying charge of contempt summarily with the matter and called Me of court is false, remedy is by indictment for Donald to the witness stand and questioned perjury
him. McDonald testified that he was in the
corridor of the courthouse at 9 o'clock that 6. Contempt E58(3)—Person charged with morning, having been told by his attorney
contempt who under oath denied wrongful to be at court at that time, and denied makacts held entitled to discharge.
ing the assault or having any connection Where no written complaint por answer therewith. Other witnesses were called and was filed and person charged with assaulting litigant in courthouse but not in court's pres
examined, including the bailiffs, none of was sworn and denied all acts alleged whom, except Goldstein, in any way connectagainst him, he purged himself from contempted plaintiff in error with the assault. Judge and was entitled to discharge without further Sullivan thereupon entered an order finding trial.
plaintiff in error guilty of conduct which was
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
(145 N.E.) contumacious and clearly tending to obstruct (3-6] It is contended by plaintiff in error the proper administration of justice in the that the alleged contempt was criminal-not court. The order, among other things, con- civil-in its nature, and that he having purgtained the following:
ed himself by his testimony, the court had "The court finds that the said Robert Mc
no authority to enter an order finding him
The disDonald was and is in contempt of this court by guilty of the contempt charged. reason of his said conduct; that said contempt tinction between criminal and civil contempts is a direct contempt in the presence of the has been recognized in this jurisdiction since court. The court further finds from evidence the decision in Crook v. People, 16 Ill. 534, heard in open court that no justification or mit- which was decided in 1855. When the conigation appears for the said conduct of said tempt consists of something done or omitRobert McDonald. It is therefore ordered by the court that the said Robert McDonald be and ted in the presence of the court tending to he hereby is committed to the common jail of impede or interrupt its proceedings or lessen Cook county, in the state of Illinois, charged its dignity, or out of its presence in disrewith contempt of this court, there to remain and gard or abuse of its process, the proceeding being safely held until the expiration of 60 days is punitive or criminal, and the penalty is from this date or unless otherwise sooner re- inflicted by way of punishment for the wrongleased and discharged by due process of law, ful act and to vindicate the authority and and that a warrant for that purpose do issue." dignity of the people, as represented by their
In the bill of exceptions which was filed judicial tribunals. O'Brien v. People, 216 11l. in the cause appears the following certificate: 354, 75 N. E. 108, 108 Am. St. Rep. 219, 3
Ann. Cas. 966; Hake v. People, 230 Ill. 174, "The court further finds that Judge Denis E. Sullivan was not occupying the bench but in 82 N. E. 561. In a case where the proceedchambers of said courtroom, transacting busi- ing for contempt is for acts committed not in ness in connection with court matters pursuant the presence of the court and not in further. to the adjournment of the previous day, at the ance of the remedy sought in a suit or in time of the alleged assault on Emanuel Gold- enforcement of the orders or decrees of the stein; the clerk and bailiff being present in the court but to maintain the authority of the courtroom. The judge ascended the bench at court and uphold the administration of jus10 a. m."
tice, if the party should answer denying the The cause was reviewed by the Appellate alleged wrongful acts his answer is concluCourt for the First District upon error, by sive and he is entitled to his discharge. that court the judgment was affirmed, and Rothschild & Co. v. Steger Piano Co., 256 the record is now before this court for review 111. 196, 99 N E. 920, 42 L. R. A. (N. S.) upon writ of error.
793, Ann. Cas. 1913E, 276; People v. Sey[1, 2] The right to punish an offender for mour, 272 Ill. 295, 111 N. E. 1008; People v. a contempt of court is a right inherent in Elbert, 287 Ill. 458, 122 N. E. 816. In cases the superior court of Cook county independ like the present the defendant is tried upon ent of any statute, and when the act consti- his answer, alone. No other evidence is tuting such contempt is committed in the heard. The defendant determines by his own presence of the court, the court has a right answer under oath whether he is guilty of to deal summarily with the offender, and, that which is charged against him as a conwithout hearing any evidence, punish the tempt of court, and if he fail thereby to offender. In such case the court acts upon purge himself the court may at once impose view and upon its own knowledge. In the the punishment. Storey V. People, 79 Ill. present case, while the certificate of the judge | 45, 22 Am. Rep. 158. If the answers prove in the bill of exceptions shows that he was false, the remedy is by indictment for perin the chambers of the court transacting jury; but if the party purges himself of business in connection with court matters pursuant to the adjournment of the previous
the contempt by his answer, he will be dis
charged. Hake v. People, supra. In the day and that the clerk and bailiff were present in the courtroom, the alleged assault did present case no complaint in writing was not take place in Judge Sullivan's courtroom filed against plaintiff in error and no sworn but at a distance of about 50 feet therefrom answer was made by him in writing, but he and nearer to Judge Holdom's courtroom, and
was called to the witness stand by the judge neither Judge Sullivan nor the clerk or bail- immediately upon being charged with coniff who were present in the courtroom knew tempt of court, was sworn, and made answer of the assault until informed thereof by oth- under oath denying all the acts alleged ers, and neither the judge, clerk nor bailiff against him, and he thereby purged himself was disturbed by the occurrence. The con
of the contempt and was entitled to be distempt of court was not committed in the pres- charged without further trial. ence of the court or so near as to interrupt
The judgment of the Appellate Court will its proceedings, and the court could not act be reversed. upon view and without trial.
(314 Ill. 398)
for the use of herself and VOELLINGER et al. v. KIRCHNER et al. such of my unmarried daughters as shall re(No. 16275.)
main with her and as long as they or either of
them, remain with their said mother, but in (Supreme Court of Illinois. Dec. 16, 1924.) case my said daughters shall make and take 1. Wills 616(7) WIII construed to give mother, then in that case my wife shall have an
up other homes for themselves and leave their widow life estate,
annuity of $600 per year, payable to her in Will, giving testator's widow all his prop- semiannual installments. I further direct, howerty for life, with power to use income nec
ever, that in case, by reason of sickness or essary to maintain herself and such daughters any other cause, my wife should require more as lived with her, and, if she was left alone, than $600 per annum, a sum shall be added an annuity, and such additional sum
to said sum which shall be sufficient for the necessary to make her comfortable, held to give comfortable support and maintenance of my her a simple life estate.
said wife. 2. Wills 634(15)-Remainder not rendered "Second-Subject to the provisions in clause 1
contingent because made with directions to for my wife, I give and devise all my real distribute in futuro.
estate to my own children and to my stepson, That remainder to testator's children was Joseph Voellinger, the son of my wife, and made with direction to distribute in futuro
my granddaughter, Martha V. Mental, daughdid not make their interest contingent, where ter of my deceased daughter, Elizabeth Mendistribution was postponed for convenience of tal. to be equally divided between them, share the property.
and share alike.
“Third-My real estate devised to my chil. 3. Wills Om649—Restraint on alienation held dren, my granddaughter and my stepson shall void.
not be sold until after the death of my wife, Where property was devised to testator's and shall not become their property so as to wife for life, with remainder vested in child be by them possessed or enjoyed, until after dren, provision restraining alienation until the death of my wife. * after death of wife was void.
"Fifth-I further will and devise that upon
the settlement of the administration of my 4. Partition 19–Suit maintainable by claim. estate by my executors herein named in anant of interest as tenant in common, though other clause of this will, that my friend Lucius not entitled to possession.
D Turner, son of my deceased friend Lucius D. Suit for partition may be maintained by Turner, be and I hereby appoint him trustee claimant claiming an interest in the premises to take charge of all personal assets and real as tenant in common, without being entitled to estate shown by such settlement to belong to possession.
my estate, and he is hereby authorized to in5. Partition Ono 12(5)_That particular estate vest and keep invested such personal assets and has not expired is not a valid objection.
collect the rents of the real estate, and after That particular estate has not expired is payment of the taxes, insurance and necessary not a valid objection to partition.
repairs, to pay the net proceeds to my wife,
in accordance with the provisions of clause 1 6. Partition 21, 22-Equity will not award, of this will, during her natural life, and after
in suit of one in violation of his own agree- her death to distribute the assets in his hands ment, or in violation of condition of his es- to the persons entitled thereto, as is provided tate.
in clause 2 of this will. * Equity will not award partition in suit of one in violation of his own agreement, or in The widow and three of testator's children violation of a condition or restriction imposed filed a bill in the circuit court of St. Clair upon estate by one through whom he claims.
county for the partition of the lands and Error to Circuit Court, St. Clair County; made the other children and descendants of
deceased children defendants. A demurrer George A. Crow, Judge.
to the bill was overruled and a decree enAction by Christine Voellinger and others tered in accordance with the prayer of the against Dina Kirchner and others. Decree
bill. The cause is here on writ of error. for plaintiffs, and defendants bring error.
Plaintiffs in error contend that the deAffirmed.
cree should be reversed because the interests Barthel, Farmer & Klingel, of Belleville, of the parties are not properly set out in the for plaintiffs in error.
bill, and because, under the provisions of P. K. Johnson, of Belleville, for defend the will, the lands are not subject to parti. ants in error.
tion until the determination of the particu
lar estate. The bill states, and the decree THOMPSON, J. Jacob Voellinger died holds, that under the will the widow took a testate, possessed of certain real estate situ- life estate in the lands and the children a ated in St. Clair county. The following are vested remainder in fee. the provisions of his will material to a de Plaintiffs in error contend that the estate cision of this case :
of the widow is not a life estate, but that "First-I give and bequeath unto my wife, she has an estate subject to such continChristine Voellinger, all my estate, real and Igencies that it may be more or less than a
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(145 N.E.) life estate. They contend that the daugh- , Equity will not award partition in the suit ters living with the widow have an interest | of one in violation of his own agreement, or in the income from the property, and that in violation of a condition or restriction imthe widow is under obligation to maintain posed upon the estate by one through whom them, as long as they live with her. It is he claims. Dee v. Dee, supra. But there is further contended that, under the will, the no such agreement, condition, or restriction corpus of the estate may be consumed to pro- in the case at bar. Defendants in error were vide for the widow and the daughters re-entitled to a decree of partition. maining at home, and that for that reason The decree of the circuit court in affirmed. the interests of the children are contingent. Decree affirmed.
[1-6] Our first duty is to determine the intention of the testator as expressed in his will. We think it clear that he intended to
(314 III. 438) give to his widow a life estate in all his AMBOS et ux. v. GLOS et al. (No. 15680.) property, with power to use so much of the income as was necessary to maintain herself (Supreme Court of Illinois. Dec. 16, 1924.) and such of her daughters as lived with her
1. Records 9(8)-Petition for registration on the premises, and, in the event she
of title held insufficient for failure to state left alone, an annuity of $600 a year, and such
nature of claims of others. additional sum as was necessary to make her
Petition for registration of title under Land comfortable, was to be paid from the income, Titles Act, 88 11, 13, stating merely that cerand, if necessary, the corpus of the property ; tain named persons claimed certain interests that, subject to this life estate in the widow, without stating the nature of such interests or the children were to have the remainder in claims, that certain persons claimed interests fee, without the right to sell, possess, or en- under tax deeds without stating whether they joy their estate until the termination of the claimed as grantees or as remote grantees of life estate, and that the trustee named was persons who received tax deeds, or as incum
braucers or otherwise, that certain persons to manage the estate for the widow during claimed liens without giving character thereof, her lifetime and make distribution among and that named persons claimed as trustees unthe remaindermen at her death. The tes- der trust deeds without statement of nature tator did not bequeath the income of his of trusts, held insufficient for failure to state property to his widow as a trustee for her nature of the estates or claims as required by
section 11, par. g. self and the daughters that remained with her, to be divided among them, but he gave 2. Records em 9(6)-All persons having or all his property to the widow for life, to be
claiming any estate or interest must be made controlled by her, as he had controlled it,
parties to application for registration of title.
All persons having or claiming any estate at home. The estate passing to the widow or interest in land must be made parties to ap
plication for registration of title, under Land under the will was a simple life estate. Dee Titles Act, 88 11, 13. v. Dee, 212 Ill. 338, 72 N. E. 429; Bryan v.
3. Trusts 257–Beneficiaries generally necHowland, 98 Ill. 625. The fact that the gift
essary parties in suits respecting trust propto the children was made with directions to
erty. distribute in futuro does not make their in
In suits respecting trust property, whethterest contingent. It is clear from the language of this will that the distribution was ficiaries are generally necessary parties.
er brought by or against a trustee, the benepostponed for the convenience of the property, and so the gift in remainder vested at 4. Appeal and error 187(3)-Objection that
beneficiaries are not parties to suit respectthe death of the testator. People v. Allen,
ing trust property available on appeal. 313 Ill. 156, 144 N, E. 800. The restraint on alienation contained in the third clause of jection that beneficiaries had not been made
In suits respecting trust property the obthe will is void. McIntyre v. Dietrich, 294 parties may be taken on appeal. Ill. 126, 128 N. E. 321; Davis v. Hutchinson, 282 Ill. 523, 118 N. E. 721; Little v. Bowman, 5. Records Om9(6)-Beneficiaries of trusts 276 Ill, 125, 114 N. E, 519; Muhlke v, Tiede
necessary parties on application to register
title. mann, 177 III, 606, 52 N. E. 843. In order to maintain a suit for partition, it is not der Land Titles Act, ss 11, 13, beneficiaries of
On application for registration of title un. necessary that the complainant claiming an
trasts are necessary parties, and nature of interest in the premises as tenant in com- their estates or claims must be stated. mon should be entitled to possession. Champion v Spurck, 302 111, 241, 134 N. E. 717; 6. Records em 9(8)–Petition to register title
held insufficient for failure to state names Mechling v. Meyers, 284 Ill. 484, 120 N. E.
and addresses of beneficiaries of trusts. 542. The fact that the particular estate has
Application to register title under Land not expired is not a valid objection to parti- Titles Act, 88 11, 13, held insufficient for failure tion. Drake v. Merkle, 153 Ill. 318, 38 N. I to state names and addresses of beneficiaries E. 654; Scoville v. Hilliard, 48 Ill. 453. I of trust as required by section 11, par. g, or to
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexen