Sidebilder
PDF
ePub

(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 of that duty.

[4, 5] It is next objected that the court erred in admitting incompetent testimony on the part of Dr. Kathleen R. Harrington. The question was asked this witness: "From your examination, have you any opinion as to whether or not her private parts had been penetrated by the private parts of a man?" and she answered, "Well, from my examination, I would say that her private parts had been penetrated by some blunt object, and my own personal opinion is " Objection was urged to further statement on the part of the witness and no further statement was made. This question was improper, as it called for an opinion on the part of the witness as to the ultimate fact in the case, but the witness did not so answer the question. On the contrary, her answer was entirely competent and proper. We are of the opinion that plaintiff in error was not prejudiced by the testimony of Dr. Harrington. While an expert witness is not allowed to give an opinion as to the ultimate fact in the case, no such opinion was rendered here, and the impropriety of counsel's question does not amount to the admission of improper evidence. Had the question been answered as asked, a different question might appear here.

[6] Plaintiff in error also contends that the verdict is contrary to the evidence. The complaining witness testified that on the afternoon of December 27, 1923, she was employed in the capacity of maid in the basement of the home of Mr and Mrs. Paschen, on Sheridan road, in the city of Chicago; that she was engaged in ironing clothing; that there was a stairway leading from the basement into the kitchen; that about 5 o'clock plaintiff in error, Sunesson, who was employed as a janitor at the residence, came into the basement to replenish the fire; that after a remark or two he came up behind her and threw his arms around her; that she made an outcry and he told her to shut up; that she tried to go upstairs and in so doing seized one of the rungs in the stairway railing; that he pulled her down, and in so doing pulled this rung out of the railing, and she fell to the floor; that he fell on top of her; that she screamed, and he put his hand over her mouth and told her to shut up, and that he thereafter ravished her; that she tried to get away from him. but could not, and that finally she fainted. Dr. Kathleen Harrington testified that she had examined the complaining witness on January 4; that she found her private parts torn and still ozzing blood. Dr. Helga Ruud, a practicing physician, testified that she ex

ber 27, 1923; that she found a badly lacerated condition of the private parts, out of which blood was oozing; that there was evidence of scratches there; that the complaining witness was in a highly nervous and excited condition, her pulse being about 100; that this was about four hours after the alleged attack; that her undergarments were bloody; that she was also bruised on her arms, shoulders, and chest.

Jacob Paschen testified that he saw the complaining witness on the evening of December 27; that she had on a torn dress, and was scratched over the shoulders, and appeared very much upset, as though something had happened; that she informed him that she had been attacked by a big brute; that after hearing her story the witness got his nephew and went to find the house where the defendant lived, and from there he went to a near by corner, secured a police officer, and went back to the defendant's house, and asked him if he had attacked the complaining witness; that he replied that he had; that they took him in an automobile to the home of the complaining witness, and that the defendant then and there admitted that he attacked her. Paschen's testimony is corroborated in full by William G. Triphahn, the police officer who made the arrest, who also states that plaintiff in error admitted that he had intercourse with the complaining witness. It also appears from the state's evidence that shortly after the alleged crime the complaining witness told Mrs. Paschen and her friends, also a Mrs. Shauer, and a Mr. Whitehead, a friend of her brother, of the attack.

Plaintiff in error took the stand and denied that he used force, or that he had intercourse with her, but stated that she consented to intercourse, but that they were interrupted. He also denied the testimony of the officer and of Paschen that he had admitted having attacked the complaining witness, or that he was with the officer on that night at the house of the complaining wit

ness.

Some testimony is offered concerning an attempted settlement of the matter, and a witness was offered by the defense who testified that complaining winess had, in effect, admitted that the act was done with her consent. In rebuttal the complaining witness took the stand and emphatically denied any such conversation.

We are of the opinion that the evidence abundantly justifies the verdict of the jury in this case, and that there is no reversible error in the record. The judgment will therefore be affirmed. Judgment affirmed.

[blocks in formation]

2. Contempt 52-Contempt held not committed in court's presence or so near as to interrupt its proceedings, and court could not act on view without trial.

Where assault was committed in corridor 50 feet from superior court room and neither judge in chambers nor clerk nor bailiff knew of matter until informed thereof by others, contempt of court was not committed in presence of court, or so near thereto as to interrupt its proceedings, and court could not act on view and without trial. 3. Contempt

Error to Second Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Denis E. Sullivan, Judge.

Robert McDonald was adjudged guilty of contempt of court, and on review by Appellate Court the judgment was affirmed, and he brings error. Reversed.

John L. Ward and Darrow, Sissman, Holly & Carlin, all of Chicago, for plaintiff in

error.

Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and Edward C. Fitch, Asst. Atty. Gen. (Edward E. Wilson and Clyde C. Fisher, both of Chicago, of counsel), for the People.

HEARD, J. On December 21, 1923, there was pending in the superior court of Cook county, Ill., on the docket of Judge Denis E. Sullivan, one of the judges of said court, the chancery case of Emanuel Goldstein et al. v. International Brotherhood of Teamsters, Chauffeurs, etc. At 9:10 o'clock of that day Goldstein, one of the complainants 40-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 at the time in the courtroom of Judge Jesse Holdom, in the immediate vicinity, heard Goldstein's cries for help, and upon going into the corridor saw plaintiff in error standing against the wall across the corridor from the toilet and four or five feet north of it, saw Goldstein come out of the toilet, and heard the noise of persons running down the stairs which were near. None of the bailiffs saw McDonald do anything, but he was arrested at the request of Goldstein, taken into the courtroom of Judge Sullivan, and when court convened at 10 o'clock one of the attorneys for the complainants in the chancery

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Criminal Contempt.]

4. Contempt 58(3)-In proceeding for contempt not committed in court's presence, answer denying wrongful acts held conclusive.

In contempt proceeding for acts committed not in presence of court and not in furtherance of remedy sought in suit or in enforcement of orders or decrees of court, but to maintain its authority and uphold administration of justice, sworn answer denying wrongful acts is conclusive, and defendant is entitled to discharge; but, if he fails to so purge himself, court may at once impose punishment.

case told Judge Sullivan that McDonald had 5. Contempt 58 (3)-If 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.

If sworn answer denying charge of contempt of court is false, remedy is by indictment for perjury

6. Contempt 58(3)-Person charged with contempt who under oath denied wrongful acts held entitled to discharge.

book. Judge Sullivan then proceeded to deal summarily with the matter and called MeDonald to the witness stand and questioned him. McDonald testified that he was in the corridor of the courthouse at 9 o'clock that

morning, having been told by his attorney to be at court at that time, and denied making the assault or having any connection Where no written complaint nor answer therewith. Other witnesses were called and was filed and person charged with assaulting examined, including the bailiffs, none of litigant in courthouse but not in court's presence 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 the proper administration of justice in the court. The order, among other things, contained the following:

"The court finds that the said Robert McDonald was and is in contempt of this court by reason of his said conduct; that said contempt is a direct contempt in the presence of the court. The court further finds from evidence heard in open court that no justification or mitigation appears for the said conduct of said Robert McDonald. It is therefore ordered by the court that the said Robert McDonald be and he hereby is committed to the common jail of Cook county, in the state of Illinois, charged with contempt of this court, there to remain and being safely held until the expiration of 60 days from this date or unless otherwise sooner released and discharged by due process of law, and that a warrant for that purpose do issue." In the bill of exceptions which was filed in the cause appears the following certificate: "The court further finds that Judge Denis E. Sullivan was not occupying the bench but in chambers of said courtroom, transacting business in connection with court matters pursuant to the adjournment of the previous day, at the time of the alleged assault on Emanuel Goldstein; the clerk and bailiff being present in the courtroom. The judge ascended the bench at

10 a. m."

The cause was reviewed by the Appellate Court for the First District upon error, by that court the judgment was affirmed, and the record is now before this court for review upon writ of error.

[1,2] The right to punish an offender for a contempt of court is a right inherent in the superior court of Cook county independent of any statute, and when the act constituting such contempt is committed in the presence of the court, the court has a right to deal summarily with the offender, and, without hearing any evidence, punish the offender. In such case the court acts upon view and upon its own knowledge. In the present case, while the certificate of the judge in the bill of exceptions shows that he was in the chambers of the court transacting

business in connection with court matters

pursuant to the adjournment of the previous day and that the clerk and bailiff were present in the courtroom, the alleged assault did not take place in Judge Sullivan's courtroom but at a distance of about 50 feet therefrom and nearer to Judge Holdom's courtroom, and neither Judge Sullivan nor the clerk or bailiff who were present in the courtroom knew of the assault until informed thereof by others, and neither the judge, clerk nor bailiff was disturbed by the occurrence. The contempt of court was not committed in the presence of the court or so near as to interrupt its proceedings, and the court could not act upon view and without trial.

[3-6] It is contended by plaintiff in error that the alleged contempt was criminal-not civil-in its nature, and that he having purged himself by his testimony, the court had no authority to enter an order finding him The disguilty of the contempt charged. tinction between criminal and civil contempts has been recognized in this jurisdiction since the decision in Crook v. People, 16 Ill. 534, which was decided in 1855. When the contempt consists of something done or omitted in the presence of the court tending to impede or interrupt its proceedings or lessen its dignity, or out of its presence in disregard or abuse of its process, the proceeding is punitive or criminal, and the penalty is inflicted by way of punishment for the wrongful act and to vindicate the authority and dignity of the people, as represented by their judicial tribunals. O'Brien v. People, 216 Ill. 354, 75 N. E. 108, 108 Am. St. Rep. 219, 3 Ann. Cas. 966; Hake v. People, 230 Ill. 174, 82 N. E. 561. In a case where the proceeding for contempt is for acts committed not in the presence of the court and not in further. ance of the remedy sought in a suit or in enforcement of the orders or decrees of the court but to maintain the authority of the court and uphold the administration of justice, if the party should answer denying the alleged wrongful acts his answer is conclusive and he is entitled to his discharge. Rothschild & Co. v. Steger Piano Co., 256 Ill. 196, 99 N E. 920, 42 L. R. A. (N. S.) 793, Ann. Cas. 1913E, 276; People v. Seymour, 272 Ill. 295, 111 N. E. 1008; People v. Elbert, 287 Ill. 458, 122 N. E. 816. In cases like the present the defendant is tried upon his answer, alone. No other evidence is heard. The defendant determines by his own answer under oath whether he is guilty of that which is charged against him as a contempt of court, and if he fail thereby to purge himself the court may at once impose the punishment. Storey v. People, 79 Ill. 45, 22 Am. Rep. 158. If the answers prove false, the remedy is by indictment for perjury; but if the party purges himself of the contempt by his answer, he will be discharged. Hake v. People, supra. In the present case no complaint in writing was filed against plaintiff in error and no sworn answer was made by him in writing, but he was called to the witness stand by the judge immediately upon being charged with contempt of court, was sworn, and made answer under oath denying all the acts alleged against him, and he thereby purged himself of the contempt and was entitled to be discharged without further trial.

The judgment of the Appellate Court will be reversed.

Judgment reversed.

[blocks in formation]

Will, giving testator's widow all his property for life, with power to use income necessary to maintain herself and such daughters as lived with her, and, if she was left alone, an annuity, and such additional sum as was necessary to make her comfortable, held to give her a simple life estate.

2. Wills 634(15)-Remainder not rendered contingent because made with directions to distribute in futuro.

That remainder to testator's children was made with direction to distribute in futuro did not make their interest contingent, where distribution was postponed for convenience of the property.

personal, * for the use of herself and such of my unmarried daughters as shall remain with her and as long as they or either of them, remain with their said mother, but in case my said daughters shall make and take up other homes for themselves and leave their mother, then in that case my wife shall have an annuity of $600 per year, payable to her in semiannual installments. I further direct, however, that in case, by reason of sickness or any other cause, my wife should require more than $600 per annum, a sum shall be added to said sum which shall be sufficient for the comfortable support and maintenance of my said wife.

"Second-Subject to the provisions in clause 1 for my wife, I give and devise all my real estate to my own children and to my stepson, Joseph Voellinger, the son of my wife, and to my granddaughter, Martha V. Mental, daughter of my deceased daughter, Elizabeth Mental to be equally divided between them, share

and share alike. *

"Third-My real estate devised to my chil

3. Wills 649-Restraint on alienation held dren, my granddaughter and my stepson shall void.

Where property was devised to testator's wife for life, with remainder vested in children, provision restraining alienation until after death of wife was void.

4. Partition

19-Suit maintainable by claimant of interest as tenant in common, though not entitled to possession.

Suit for partition may be maintained by claimant claiming an interest in the premises as tenant in common, without being entitled to possession.

5. Partition12(5)-That particular estate has not expired is not a valid objection. That particular estate has not expired is not a valid objection to partition.

6. Partition 21, 22—Equity will not award, in suit of one in violation of his own agreement, or in violation of condition of his estate.

Equity will not award partition in suit of one in violation of his own agreement, or in violation of a condition or restriction imposed upon estate by one through whom he claims. Error to Circuit Court, St. Clair County; George A. Crow, Judge.

Action by Christine Voellinger and others against Dina Kirchner and others. Decree for plaintiffs, and defendants bring error. Affirmed.

not be sold until after the death of my wife, and shall not become their property so as to be by them possessed or enjoyed, until after the death of my wife. *

*

"Fifth-I further will and devise that upon the settlement of the administration of my estate by my executors herein named in another clause of this will, that my friend Lucius D Turner, son of my deceased friend Lucius D. Turner, be and I hereby appoint him trustee to take charge of all personal assets and real estate shown by such settlement to belong to my estate, and he is hereby authorized to invest and keep invested such personal assets and collect the rents of the real estate, and after payment of the taxes, insurance and necessary repairs, to pay the net proceeds to my wife, in accordance with the provisions of clause 1 of this will, during her natural life, and after her death to distribute the assets in his hands to the persons entitled thereto, as is provided in clause 2 of this will. *

The widow and three of testator's children filed a bill in the circuit court of St. Clair county for the partition of the lands and made the other children and descendants of deceased children defendants. A demurrer to the bill was overruled and a decree entered in accordance with the prayer of the bill. The cause is here on writ of error.

Plaintiffs in error contend that the decree 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 partiants in error.

THOMPSON, J.

Jacob Voellinger died testate, possessed of certain real estate situated in St. Clair county. The following are the provisions of his will material to a decision of this case:

"First-I give and bequeath unto my wife, Christine Voellinger, all my estate, real and

tion until the determination of the particular estate. The bill states, and the decree holds, that under the will the widow took a life estate in the lands and the children a vested remainder in fee.

Plaintiffs in error contend that the estate of the widow is not a life estate, but that she has an estate subject to such contingencies that it may be more or less than a

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(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.

(314 Ill. 438)

AMBOS et ux. v. GLOS et al. (No. 15680.) (Supreme Court of Illinois. Dec. 16, 1924.) 1. Records 9(8)-Petition for registration of title held insufficient for failure to state nature of claims of others.

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 give to his widow a life estate in all his property, with power to use so much of the income as was necessary to maintain herself and such of her daughters as lived with her on the premises, and, in the event she was left alone, an annuity of $600 a year, and such additional sum as was necessary to make her comfortable, was to be paid from the income, and, if necessary, the corpus of the property; that, subject to this life estate in the widow, the children were to have the remainder in fee, without the right to sell, possess, or enjoy their estate until the termination of the life estate, and that the trustee named was to manage the estate for the widow during her lifetime and make distribution among the remaindermen at her death. The testator did not bequeath the income of his property to his widow as a trustee for herself and the daughters that remained with her, to be divided among them, but he gave all his property to the widow for life, to be controlled by her, as he had controlled it, for the benefit of herself and the children at home. The estate passing to the widow under the will was a simple life estate. Dee

v. Dee, 212 Ill. 338, 72 N. E. 429; Bryan v.

Howland, 98 Ill. 625. The fact that the gift

to the children was made with directions to distribute in futuro does not make their interest contingent. It is clear from the language of this will that the distribution was postponed for the convenience of the property, and so the gift in remainder vested at the death of the testator. People v. Allen, 313 Ill. 156, 144 N. E. 800. The restraint on

alienation contained in the third clause of the will is void. McIntyre v. Dietrich, 294 III. 126, 128 N. E. 321; Davis v. Hutchinson, 282 Ill. 523, 118 N. E. 721; Little v. Bowman, 276 Ill. 125, 114 N. E. 519; Muhlke v. Tiedemann, 177 Ill. 606, 52 N. E. 843. In order to maintain a suit for partition, it is not necessary that the complainant claiming an interest in the premises as tenant in common should be entitled to possession. Champion v Spurck, 302 Ill. 241, 134 N. E. 717; Mechling v. Meyers, 284 Ill. 484, 120 N. E. 542. The fact that the particular estate has not expired is not a valid objection to partition. Drake v. Merkle, 153 Ill. 318, 38 N. E. 654; Scoville v. Hilliard, 48 Ill. 453.

Titles Act, §§ 11, 13, stating merely that cerPetition for registration of title under Land tain named persons claimed certain interests without stating the nature of such interests or claims, that certain persons claimed interests under tax deeds without stating whether they claimed as grantees or as remote grantees of persons who received tax deeds, or as incumbraucers or otherwise, that certain persons claimed liens without giving character thereof, and that named persons claimed as trustees under trust deeds without statement of nature of trusts, held insufficient for failure to state nature of the estates or claims as required by section 11, par. g.

2. Records 9(6)-All persons having or claiming any estate or interest must be made parties to application for registration of title.

All persons having or claiming any estate or interest in land must be made parties to application for registration of title, under Land Titles Act, §§ 11, 13.

3. Trusts 257-Beneficiaries generally necessary parties in suits respecting trust property.

In suits respecting trust property, whethficiaries are generally necessary parties. er brought by or against a trustee, the bene4. Appeal and error 187(3)-Objection that beneficiaries are not parties to suit respecting trust property available on appeal.

jection that beneficiaries had not been made In suits respecting trust property the ob

parties may be taken on appeal.

5. Records 9(6)-Beneficiaries of trusts necessary parties on application to register title.

der Land Titles Act, §§ 11, 13, beneficiaries of On application for registration of title un. trusts are necessary parties, and nature of their estates or claims must be stated.

6.

Records 9(8)-Petition to register title held insufficient for failure to state names and addresses of beneficiaries of trusts.

Application to register title under Land Titles Act, §§ 11, 13, held insufficient for failure to state names and addresses of beneficiaries 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 Indexes

« ForrigeFortsett »