« ΠροηγούμενηΣυνέχεια »
wore no overcoat, witness changed seats with him and sat in the front seat with his foster-brother, the chauffeur. The complaining witness testified that Peter, before he moved to the front seat, put his hand on her breast and that she objected and moved it away. He testified that after he moved into the front seat he did not notice particularly what was going on in the back seat but suspicioned that the young men were having sexual intercourse with the complaining witness and without any objection on her part. Alex Marx testified that he drove the car; that he did not know that Miss Arnold was in it until he arrived at Eighteenth and Throop streets; that he did not hear any outcry or fighting or wrestling in the back of the car and did not take part in any way in having sexual intercourse with anyone or know that there was anything of that nature going on. George Haley testified that when they were sitting at the table at Tancl's cabaret Miss Arnold came over and asked them if they did not know that that was her table, and they then invited her to sit down, and afterward Petkus danced with her and later suggested that they take the girl home; that Petkus and he and his brother, John, and Duffy, each had intercourse with her in the order named, on the back seat of the car, while they were driving along; that she did not resist him and nobody held her or offered any violence to her to get her to consent to such intercourse; that when she got out of the car she said, “Don't say anything at Tancl's about the trip." John Haley testified that the four young men just mentioned had sexual intercourse with Miss Arnold, Petkus being the first, and that before that time Petkus had been hugging and kissing her; that it was perfectly agreeable to Miss Arnold and no one forced her in any way; that after his brother got through with the sexual intercourse witness was to have the next turn, and Miss Arnold asked him to wait a few minutes so she could rest, and that while she was waiting she kept her dress partly up. This witness also testified that she asked him
not to let her employer know about the matter. Duffy also testified that Miss Arnold asked him to wait a short time and that he then had intercourse with her consent, she waiting for him with her dress up while she rested, and that afterward she asked them not to tell at Tancl's about her being out with them. Miss Arnold herself testified that when she got out of the car she told the young men not to tell what had happened, because she was ashamed and did not want anyone to know about it. The man called Skippo or Petkus does not seem to have been arrested and was not tried with plaintiffs in error.
The testimony is all to the effect that Skippo, the two Haleys and Duffy all had sexual intercourse with Miss Arnold on the back seat of the automobile as they drove from Tancl's cabaret to the Calvert Hotel, through the streets of Chicago. The evidence also shows that they drove several miles out of their way in going between the cabaret and the hotel in the early morning hours of May 3. The testimony of the complaining witness, as well as that of the plaintiffs in error, agrees substantially that the car was running at a moderate rate,—about fifteen miles an hour. The complaining witness testified that they went through some streets that were rather dark; that the top of the car was up and that everything inside of the car would be somewhat dark, even if the streets were lighted...
Counsel for plaintiffs in error argue with great earnestness that the evidence was not sufficient to justify the verdict; that the testimony of the complainant is not corroborated by the facts or circumstances otherwise proven on the trial; that the automobile did not drive through dark country roads or deserted localities but through a populously settled portion of Chicago, where a woman's screams, if made, would quickly bring assistance, and that the young woman showed by her own testimony as to asking for her pocketbook after she left the car that she was not as greatly excited or moved as she naturally would have been if her testimony were true and if the acts were committed upon her forcibly. We cannot concur in the conclusions as to the evidence reached by counsel for plaintiffs in error. This question was peculiarly one for the jury. They saw and heard the story of the complaining witness and the other witnesses, including the plaintiffs in error, and were in a much better position to judge of the truth or falsity of the testimony than is this court. We do not think it is at all unreasonable to believe that even if this young woman had cried out when she could, although not gagged or her mouth stopped all the time the acts were being committed, she would not have been heard from the moving automobile in the early hours of the morning in such a way that passers-by might have interfered. We do not think the argument that she is uncorroborated is based on the record. Her testimony as to her condition when she reached the hotel is fully corroborated by the clerk, the doctor who examined her and the policeman who came shortly thereafter. The fact that her clothing was not more badly torn or disturbed than it was does not, in our judgment, tend to contradict her story. With four or five vigorous young men holding her, it can be readily seen that her clothing might not be as much torn or disturbed as if she had only been attacked by one man. The fact that three of these young men had served in the army in the recent great world's war and had been honorably discharged, and that all five plaintiffs in error had previously borne good reputations, was before the jury for their consideration. The fact that three of these young men admit that they had sexual intercourse with the complaining witness, even though she consented, under the circumstances shown by this record, would tend to show that they were not of the highest moral character and standing. Where there is a conflict of evidence, as there is in this case, it is the peculiar province of the jury to pass upon the credibility of witnesses and the weight of the evidence, and the court will not disturb the verdict of the jury unless such verdict is palpably contrary to the weight of the evidence and the defendant has not been proved guilty beyond a reasonable doubt. (Henry v. People, 198 Ill. 162; People v. Bond, 281 id. 490; People v. Foster, 288 id. 371.) The testimony on all the conflicting matters was before the jury, and the question whether plaintiffs in error or the complaining witness told the truth was primarily one for the jury to pass on. We cannot say that the evidence does not support the verdict.
Counsel for plaintiffs in error argue that the examination of the complaining witness was unduly limited by the trial judge. It appears from the briefs and certain questions asked of the prosecutrix that she had engaged the services, for some purpose, of attorney Louis Grollman, and counsel argue that they were trying to show by her examination that she had engaged him to settle with plaintiffs in error for their acts towards her by money damages, and that this might throw light on the credibility of her testimony. Of course, the complaining witness had a rigiit to settle with the plaintiffs in error for the injury done her, and she might have maintained a civil suit. This being so, the trial court did not err in excluding her examination as to what attorney Grollman had been engaged to do for her with reference to such settlement. People v. Cassidy, 283 III. 398.
Counsel for plaintiffs in error argue most strenuously that the Marx brothers were not guilty of the crime of rape as it is not claimed that either of them had sexual intercourse with the prosecutrix or took any active part in holding her while the others did have such intercourse; that the aiding, abetting or assisting in a crime, under the authorities in this State, is different from consenting to a crime; that the acts of aiding, abetting or assisting are affirmative in their character, and that consenting may be a mere negative acquiescence, not in any way made known at the time to the principal malefactor; that such consenting, although it involves moral turpitude, does not make the person an accessory under the statute. (White v. People, 81 Ill. 333; White v. People, 139 id. 143.) Without question, to constitute a person guilty of a crime as principal there must be presence or participancy, or the doing of some act, at the time of the commission of the crime, in furtherance of the common design. A person who encourages the commission of an unlawful act cannot escape responsibility by quietly withdrawing from the scene. It is not necessary that he should do some act at the time to constitute him a principal, but he must encourage its commission by acts or gestures, either before or at the time of the commission of the offense, with full knowledge of the intent of the persons who commit the offense. (1 R. C. L. 139, and authorities there cited.) It cannot be contended, of course, that mere presence at the commission of a criminal act renders a person liable as a participator therein. If he is only a spectator, innocent of any unlawful intent and does no act to countenance or approve the acts of those who are actors, he is not criminally responsible because he happens to be a looker-on and does not use active endeavors to prevent the commission of the unlawful acts. “Notwithstanding these rules as to the non-liability of a passive spectator, it is certain that proof that a person is present at the commission of a crime without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, leant to it his countenance and approval and was thereby aiding and abetting the same.” (1 R. C. L. 141, and authorities there cited.) It is clear that the plaintiff in error Alex Marx, who was driving the automobile, did not in any way take part actively in the holding of the prosecutrix at the time when she charges the acts were being forcibly committed, but the evidence shows without contradiction, and he himself admits, that he drove the car several miles out of the way in Chicago while going from the cabaret