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to the hotel at Wabash avenue and Eighteenth street. His acts in this regard tend to show that he was actually encouraging and approving what was being done in the car. We think, under the authorities and the testimony in this regard, the jury were justified in finding that his fosterbrother, Peter Marx, was assenting and by his actions approving, thereby aiding and abetting in the commission of the offense, as he himself said that he suspected what was going on in the rear of the car, and while he denies the act the prosecutrix testified that he put one of his hands upon her breast at some time while they were in the car.
Counsel further argue that John Haley and Peter Marx, being under the age of twenty years, should have been sentenced to the reformatory for an indeterminate term, as decided in People v. Rardin, 255 Ill. 9. That case was decided by this court in 1912. The Parole act was amended by the legislature of this State in 1917 as to this crime, and under the wording of the first four sections of said act as enacted in 1917, in force at the time of this crime, (Hurd's Stat. 1917, P. 1042,) the plaintiffs in error John Haley and Peter Marx were rightly sentenced to the penitentiary for the crime of rape.
It is further argued that the complaint of the prosecutrix to the hotel clerk was improperly admitted in evidence. The clerk in his testimony described the condition of the prosecutrix at the time she came into the place, and stated that she, after talking with him, did make complaint, but the objection to the question by the assistant State's attorney as to what complaint she made was sustained by the court and the clerk did not testify as to the details of the complaint. Under the authorities there was no error committed by admitting what the hotel clerk testified to. 22 R. C. L. 1217; State v. Griffin, 43 Wash. 591; 11 Ann. Cas. 95, and authorities cited in note.
It is further urged by counsel for plaintiffs in error that the assistant State's attorney made improper remarks in his
address to the jury. They object to the statement of the assistant State's attorney as follows: “When I talked to you in your examination on the voir dire I asked you not to assume any responsibility not given to you. Don't assume any power of the Governor as to executive clemency or parole." Counsel argue that under the reasoning of this court in Farrell v. People, 133 Ill. 244, it was error to so argue. In the case just referred to it was held that it was error for the State's attorney to call the attention of the jury to what was generally known as the "good time” statute and insist that they should take that into consideration in fixing the term of imprisonment. The argument of the assistant State's attorney in this case did not tell the jury that the Governor had a right to parole and therefore they ought to convict. It was merely a reference to some questions that had been asked the jurors when they were being examined as to their qualifications, and we do not see how plaintiffs in error were injured by this reference.
Certain objections were also made by counsel to the instructions given and refused in the trial court. It is urged that the court erred in failing to give two instructions that were asked for plaintiffs in error which referred to the question of the guilt of the accused if the prosecutrix had consented to the sexual intercourse. An instruction was given by the court at the request of plaintiffs in error which stated in positive language that to authorize a conviction for the crime in question the jury must believe from the evidence, beyond a reasonable doubt, that one or more of the defendants had carnal knowledge of the prosecuting witness forcibly and against her will and “that she did not yield her consent during the act.” The chief difference between this instruction given and the two instructions refused is that the refused instructions were long and complicated and full of seemingly contradictory terms, and one of the refused instructions, in part, was not based on the evidence. There is another reason why the refusal to give these instructions cannot be held to be reversible error. The abstract nowhere shows that the instructions given were the only ones given, and this court has held that it will not presume that there were no instructions given covering the point raised by counsel for plaintiffs in error. Thompson v. People, 192 Ill. 79; Reavely v. Harris, 239 id. 526.
Counsel for plaintiffs in error further argue that the court overruled the motion for new trial after it was made, without giving them an opportunity to be heard thereon, and that under the reasoning of this court in White v. People, 90 Ill. 117, Neathery v. People, 227 id. 110, and People v. Ambach, 247 id. 451, this was error. Nine witnesses testified in this case,-four on behalf of the State and the five plaintiffs in error for the accused. Moreover, the record does not show that counsel for plaintiffs in error told the court that they wanted to argue the motion for a new trial at the time it was made, but they stated they were not prepared at that time and wanted to put it off to some future day so they might adequately prepare. Having found in this opinion that no reversible error was committed on the trial of the case, we do not see how plaintiffs in error could have been injured by the refusal of the trial court to permit the decision of the motion for new trial to be delayed so that counsel for plaintiffs in error could adequately and properly present their suggestions on such motion. We do not think, in view of the record in this case, that the court committed reversible error in refusing to delay the hearing on the motion for a new trial.
The judgment of the criminal court of Cook county will therefore be affirmed.
(No. 12875.-Judgment affirmed.) THE PEOPLE OF THE STATE OF Illinois, Defendant in Er
ror, vs. FreD Joxes, Plaintiff in Error. Opinion filed December 17, 1919—Rchearing denied Feb. 4, 1920.
1. CRIMINAL LAW—what is a sufficient showing as to organisation of court. The fact that the court was legally constituted or organized sufficiently appears in a criminal case where the record shows that the indictment was returned in open court on one of the days of the term shown by the record to have been opened and properly constituted or organized on a previous day of the term, and it is not necessary, where apt reference is made to said term, that the record show the presence of all the necessary officers of the court on the day the indictment was returned.
2. SAME—when fact of misjoinder of counts cannot be taken adz'antage of. Even though counts charging distinct offenses are joined with a count for rape, if the defendant pleads to the indictment without making a motion to quash or to require the State to elect on which count it will proceed, he cannot, after being convicted on the count for rape, take advantage of the misjoinder.
3. Same-in absence of a motion the court is not obliged to require State to elcct. In the absence of a motion by the defendant the court is not obliged to require the State to elect upon which count of an indictment it will seek a conviction.
Writ of Error to the Criminal Court of Cook county; the Hon. Thomas G. WINDES, Judge, presiding.
SHEADRICK B. TURNER, for plaintiff in error.
EDWARD J. BRUNDAGE, Attorney General, MACLAY HOYNE, State's Attorney, and EDWARD C. FITCH, (EDWARD E. Wilson, of counsel,) for the People.
Mr. JUSTICE STONE delivered the opinion of the court:
This cause comes to this court on writ of error to the criminal court of Cook county, in which plaintiff in error was convicted of rape and sentenced to life imprisonment.
No evidence is preserved by bill of exceptions, and plaintiff in error relies on errors presented by the common law
record to reverse the judgment and sentence of the trial court.
On the 23d day of January, 1919, an indictment was returned by the grand jury of Cook county against the plaintiff in error containing seven counts. The first count charges plaintiff in error with the offense of crime against nature. The second charges the plaintiff in error with buggery. The third, fourth and fifth charge the crime of rape. The sixth charges taking indecent liberties with a child, and the seventh charges contributing to the delinquency of a minor female person. After conviction of plaintiff in error by the jury, motions for new trial and in arrest of judgment were made, overruled and exceptions preserved.
It is contended by the plaintiff in error that the record does not show that at the time of the return of the indictment into open court, on January 23, 1919, the court was legally constituted or organized for the transaction of legal business; that the indictment contains counts for distinct offenses, and that the trial court erred in not requiring the State to elect the counts on which conviction should be had.
The rule in this class of cases is that the record must show how the court which heard the cause was organized. (Swartzbaugh v. People, 85 Ill. 457.) An examination of the record in this case shows that it contains a placita in regular form showing the convening of the court on the 6th day of January, 1919, for the January term, and recites the presence of the judge, State's attorney, sheriff and clerk, naming each of them. Following the entries made on that day the record recites: “And afterwards, to-wit, on the 23d day of January, in the year last aforesaid, it being the term of court aforesaid, the following among other proceedings were had and entered of record in said court, which said proceedings are in words and figures following, to-wit: The grand jurors came into open court and made a presentment indorsed a true bill in the follow