People v. Makovicki, 316 Ill. 407 (1925)

April 24, 1925 · Illinois Supreme Court · No. 16551
316 Ill. 407

(No. 16551.

Judgment affirmed.)

The People of the State of Illinois, Defendant in Error, vs. Paul Makovicki, Plaintiff in Error.

Opinion filed April 24, 1925.

1. Criminal law — what is gist of offense of assault with intent to rape. In a prosecution for assault with intent to rape the specific intent charged is the gist of the offense, and the proof must show such an assault that if the purpose were accomplished the crime would be rape.

2. Same — the intent to commit rape may be proved by circumstances of assault. In a prosecution for assault with intent to commit rape the intent with which the act was done is a question of fact, which may be proved by the character, manner and circumstances of the assault as well as by the declarations of the assailant.

3. Same — giving several instructions defining reasonable doubt is not approved practice. The giving of several instructions defining the term “reasonable doubt” is not approved practice but is not such error as requires a reversal of a judgment of conviction where the guilt of the defendant is clearly established by the evidence.

Writ op Error to the Criminal Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.

O’Brien, Prystalski & Owen, for plaintiff in error.

Oscar E. Carlstrom, Attorney General, Robert E. Crowe, State’s Attorney, and James B. Searcy, (Edward E. Wilson, and Clarence E. Nelson, of counsel,) for the People.

Mr. Justice Thompson

delivered the opinion of the court:

Plaintiff in error was convicted in the criminal court of Cook county of the crime of assault with intent to rape. He prosecutes this writ of error to reverse the judgment on the ground that the evidence does not show, beyond a reasonable doubt, that he entertained the intent to commit *408rape at the time he made the assault, and that the court erred in giving too many instructions defining reasonable doubt.

Plaintiff in error came to the door of the apartment building at 2426 South Troy street, Chicago, and inquired about the renting of an apartment. The landlady was not at home at the time he called and he talked with Tillie Rada, a girl who roomed in the building. She told him that he would have to see the landlady and that she would not be home for two hours. He left the building, was gone about ten minutes and then again appeared at the door. He asked Miss Rada to see the landlady, and she told him that she had informed him ten minutes before that the landlady would not return for two hours and that he had better come again the next day. After some further conversation he told her that he had walked a long distance, that he was not feeling well and that he would like to have a drink of water. She unhooked the screen door and permitted him to step into the kitchen to get a drink. After he had drunk the water he expressed a desire to look through the apartment, but Miss Rada refused to show him through and told him he would have to come back when the landlady was at home. At this he seized her and started to carry her toward the bed-room. She struggled with him and they fell to the floor. There they fought for a time and then he finally pulled her into the bed-room. He tried to get her onto the bed, but she continued to struggle and they fell on the floor of the bed-room. She screamed for help and he put his hand over her mouth to stifle her cries. She bit his finger, and after some further struggle he left her and ran out of the house. She raised a window and shouted to the neighbors to catch the man. Several of them saw him running across lots in his effort to get away, and a storekeeper down the street caught him and brought him back to the apartment building. Miss Rada immediately identified him as the man who had assaulted her. One of his *409fingers was bleeding, and he accounted for its condition by stating that Miss Rada had slammed the door in his face and his finger was caught in the door. Several witnesses testified that her face was scratched, her lips swollen and her arms bruised, that her hair was disheveled and her clothing was disarranged and torn. The small rugs in the kitchen and the bed-room were disarranged and pushed into a pile.

In prosecutions of this character the specific intent charged is the gist of the offense, and the proof must show such an assault that if the purpose were accomplished the crime would be rape. It does not follow, however, that an express intention need be proved. The intent may be inferred from the acts of the person charged with the crime as well as by his words. The intent with which the act was done is a question of fact, to be determined in the first instance by the jury from the declarations of the assailant or from the character, manner and circumstances of the assault. (Crosby v. People, 137 Ill. 325; Fitzpatrick v. People, 98 id. 269.) The fact that plaintiff in error returned to the apartment within ten minutes after he had been told that the landlady would not be there for two hours, the fact that he induced Miss Rada to permit him to enter the apartment by deceit, and the manner, time and place of the assault, were all elements to be considered by the jury in arriving at a conclusion as to the intention with which the assault was made upon the prosecutrix. Considering together all the circumstances proven, the evidence fully warrants the verdict of the jury. (Lathrop v. People, 197 Ill. 169.) There is nothing in the facts in this case that indicates acquiescence in the indecent conduct shown by the record in Newman v. People, 223 Ill. 324, and Franey v. People, 210 id. 206.

The court gave in this case three instructions defining reasonable doubt. While we have repeatedly criticised the practice of over-emphasizing the term “reasonable doubt” *410by giving several instructions defining it, we have not in any case, where the evidence was clear as it is in this case, deemed the error one of sufficient importance to require a reversal of the judgment. People v. Heard, 305 Ill. 319; People v. Miller, 292 id. 318.

The judgment of the criminal court is affirmed.

Judgment affirmed.