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The defendant tendered instruction 12, which was abstract in form and defined negligence. It concluded with this sentence: "The duty is measured and dictated by the exigencies of the occasion,” and the court struck that sentence out. The instruction was complete without the sentence stricken out, and, being abstract in form and not applicable to the case, it might well have been refused. It was sufficient, as given, as a definition of negligence.
The defendant also tendered instruction 17, as follows:
“The court instructs the jury that under the law of Indiana the duty was imposed upon the plaintiff of using ordinary care to avoid injury to himself, and that the quantum of care required was proportioned to the danger. It was the duty of the plaintiff to employ his vision and other senses in discovering danger, and if he failed to see a defect which in the exercise of ordinary care he should have seen he was chargeable with constructive knowledge of the defect."
The court struck out all of the instruction after the word “danger” and gave it as altered. The portion of the instruction struck out would have taken from the jury the question whether the plaintiff ought to have been on the lookout to discover whether the scaffold was of proper material and well constructed, and for that reason it was not error to modify it.
A general complaint is made about other instructions, but as no reason is given for the complaint they will not be noticed.
The court refused to allow the defendant to open and close the argument, and there was no error in the ruling because the defendant had pleaded the general issue, and the plaintiff having the burden of proof had the right to open and close. The judgment of the Appellate Court is affirmed.
(No. 12913.-Judgment affirmed.) THE PEOPLE OF THE STATE OF ILLINOIS, Defendant in Er
ror, vs. ALEX Marx et al. Plaintiffs in Error. Opinion filed December 17, 1919–Rehearing denied Feb. 4, 1920.
1. CRIMINAL LAW—the weight of conflicting evidence is for the jury. Where the testimony is conflicting it is for the jury to pass on the credibility of witnesses and the weight of the evidence, and the Supreme Court will not disturb the verdict on the facts alone, unless it is palpably contrary to the weight of the evidence.
2. Same—evidence as to why prosecutrix employed an attorney is not admissible. In a prosecution for rape, where it appears that the prosecutrix had employed an attorney, it is proper for the court to refuse to allow the prosecutrix to be cross-examined as to the purpose for which she employed the attorney.
3. Sams—when on-lookers are accessories to the crime of rape. Where five young men are charged with the crime of rape committed in an automobile while taking a woman from a cabaret to her hotel, the driver of the car and his brother, who sat on the front seat, may be convicted as accessories though they took no active part in the rape, where it appears the driver drove several miles out of his way in going to the hotel and his brother testified that he suspected the other men were having intercourse with the woman but supposed it was with her consent.
4. Sams—under the Parole act of 1917 defendants under twenty years of age may be sentenced to penitentiary for rape. Under the Parole act of 1917 (Hurd's Stat. 1917, p. 1042,) defendants under twenty years of age who are convicted of the crime of rape may be sentenced to the penitentiary.
5. SAME-hotel clerk may testify that prosecutrix made complaint to him. In a prosecution for rape, the clerk of the hotel where the prosecutrix was living may testify as to the disordered appearance and nervous condition of the woman when she came into the hotel at half-past two o'clock in the morning and that after questioning her she made a statement as to the crime, where he does not testify as to the details of such statement.
6. Same-what remark by the assistant State's attorney is not prejudicial. Where the assistant State's attorney in addressing the jury, after calling attention to a statement he had made to the jurors when examining them, to the effect that they should not assume any responsibility not given to them, says, “Don't assume any power of the Governor as to executive clemency or parole," such remark is not prejudicial error.
7. SAME—when refusal to give instructions is not ground for reversal. Where the abstract does not show that the instructions shown therein to be given were the only ones given it will not be presumed that the jury were not instructed on points contained in instructions which were refused, and the refusal to give said instructions is not, in such case, ground for reversal.
8. SAME—when refusal to delay hearing of motion for new trial is not prejudicial error. A refusal to delay the hearing of a motion for new trial is not prejudicial error where the record does not show any error committed on the trial of the case which would jus• tify a reversal of the judgment.
Writ of ERROR to the Criminal Court of Cook county; the Hon. M. HENRY GUERIN, Judge, presiding.
DANIEL L. MADDEN, and Roy C. MERRICK, for plaintiffs in error.
EDWARD J. BRUNDAGE, Attorney General, MACLAY HOYNE, State's Attorney, and EDWARD C. Fitch, (EDWARD E. WILSON, and DANIEL G. RAMSAY, of counsel,) for the People.
Mr. Justice Carter delivered the opinion of the court:
Plaintiffs in error were found guilty in the criminal court of Cook county of the crime of rape and each sentenced to a term of five years in the penitentiary. This writ of error has been sued out to review the record of the criminal court.
Rosette Arnold, also known as Virginia LaVerne, was a young woman about twenty-three years of age, who resided at the Calvert Hotel, at Wabash avenue and Eighteenth street, in Chicago. She made her living partially by singing. On the evening of May 3, 1919, she was substituting for another singer in a cabaret conducted by one Tancl, at Ashland and Blue Island avenues, in Chicago. On that same evening the five plaintiffs in error and another young man called “Skippo," whose real name appears to have been Joe Petkus, were driving in an automobile around the city, visiting various saloons and cabarets on the west side. The car belonged to the father of Peter Marx. It was driven by Alex Marx, a foster-brother of Peter, who had worked for the elder Marx as a chauffeur for several years. Peter was aged twenty and Alex twenty-two. George Haley was twenty-three years old and worked for one of the large dry goods stores, as did Petkus. John Haley was twenty and worked for a newspaper, and Robert Duffy was twenty-two and worked for a teaming company. Alex Marx, George Haley and Duffy had all been in the army during the late war. Apparently the two Marx boys had started out that evening with the car without any preconceived plan of where they were going or whom they were to take with them and had taken in the others as acquaintances on their way. The complaining witness, Rosette Arnold, testified that she had danced with Petkus at Tanel's cabaret and had talked with the other young men; that one of them had invited her to ride home in the automobile, and, on account of the long wait necessary if she took the street car, she consented; that after they had gone a short distance in the automobile she was attacked, and Petkus, the two Haley boys and Duffy all had sexual intercourse with her forcibly and against her will, on the back seat of the car; that she struggled and cried but they assisted each other in holding her, and when she tried to cry out they put their hands over her mouth; that they rode around the streets of the city for an hour and a half or two hours, leaving the cabaret shortly after one o'clock and arriving at her hotel at 2:30 in the morning; that when she got to her hotel her underclothes had blood on them, her hair was all down, her face was black and blue and her arms and limbs bruised. She further testified that when she got out of the car in front of the hotel they threw out after her the grip which contained her costume, but that she missed her pocket-book and cried after them, “Give me my pocketbook, please," but they refused with an oath and drove on and that she never got it back. She further testified that at the time of the trial she was suffering from gonorrhea or an enlarged gland, which she had been free from at the time of the occurrence, and that she had never had any sexual intercourse with any person except that forced upon her on this occasion. The clerk of the Calvert Hotel testified that Miss Arnold came into the hotel at about 2:30 on the morning of May 3 and was hysterical and crying and that her face was swollen; that he asked her what was the matter and it took quite a while to get a statement out of her; that he then called the hotel doctor, and Miss Arnold went to her room and was examined by Dr. Weinlander, the physician in question. This physician testified that he was called about 2:45 that morning and found complaining witness very nervous; that her cheek and lip were bruised and her face swollen, and that there were some bruises on her leg and thigh as well as a slight laceration of her private parts and some blood-stains on her clothes; that about a month later he examined her and found she had an infection of the glands of her private parts, the nature of which he could not state with certainty. The policeman who arrested the five plaintiffs in error and who was in charge of investigating the occurrence, testified that when these young men were in the station, after their arrest, they were identified by the complaining witness and charged by her with committing the offense, and that neither of them said anything in reply.
The five plaintiffs in error took the stand in their own behalf. Peter Marx tęstified that when they started from Tanel's he sat in one of the small chair seats in the middle of the car and Duffy in the other; that Skippo and George Haley sat in the back seat with Miss Arnold, and witness' brother, Alex, and John Haley, were in the front seat; that he was dozing and sleepy and did not hear anyone scream or any fighting in the car and did not see any act of sexual intercourse or take part in anything of the sort; that shortly after they started the ride in the automobile, as John Haley