{ "id": 2930583, "name": "Lyman Ackerson v. The People of the State of Illinois", "name_abbreviation": "Ackerson v. People", "decision_date": "1888-05-09", "docket_number": "", "first_page": "563", "last_page": "575", "citations": [ { "type": "official", "cite": "124 Ill. 563" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "117 Ill. 423", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "55 N. Y. 565", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 517430 ], "opinion_index": -1, "case_paths": [ "/ny/55/0565-01" ] }, { "cite": "107 Ill. 162", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5366873 ], "opinion_index": -1, "case_paths": [ "/ill/107/0162-01" ] }, { "cite": "98 N. Y. 60", "category": "reporters:state", "reporter": "N.Y.", "opinion_index": -1 }, { "cite": "79 Ill. 402", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2685656 ], "opinion_index": -1, "case_paths": [ "/ill/79/0402-01" ] }, { "cite": "66 Ill. 219", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2622721 ], "opinion_index": -1, "case_paths": [ "/ill/66/0219-01" ] }, { "cite": "12 Metc. 235", "category": "reporters:state", "reporter": "Metc.", "opinion_index": -1 }, { "cite": "13 Allen, 570", "category": "reporters:state", "reporter": "Allen", "case_ids": [ 2114797 ], "opinion_index": -1, "case_paths": [ "/mass/95/0570-01" ] }, { "cite": "117 Ill. 44", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "10 Ga. 311", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 574776 ], "opinion_index": 0, "case_paths": [ "/ga/10/0311-01" ] }, { "cite": "20 Iowa, 267", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 343336 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/iowa/20/0267-01" ] }, { "cite": "32 Cal. 98", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2244528 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/cal/32/0098-01" ] }, { "cite": "3 Hawks, 377", "category": "reporters:state", "reporter": "Hawks", "case_ids": [ 11277381 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/10/0377-01" ] }, { "cite": "23 Barb. 13", "category": "reporters:state", "reporter": "Barb.", "case_ids": [ 1941889 ], "opinion_index": 0, "case_paths": [ "/barb/23/0013-01" ] }, { "cite": "39 Ill. 464", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "110 Ill. 45", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "55 N. Y. 565", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 517430 ], "opinion_index": 0, "case_paths": [ "/ny/55/0565-01" ] }, { "cite": "12 Metc. 235", "category": "reporters:state", "reporter": "Metc.", "opinion_index": 0 }, { "cite": "13 Allen, 570", "category": "reporters:state", "reporter": "Allen", "case_ids": [ 2114797 ], "opinion_index": 0, "case_paths": [ "/mass/95/0570-01" ] }, { "cite": "117 Ill. 44", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 } ], "analysis": { "cardinality": 962, "char_count": 27337, "ocr_confidence": 0.489, "pagerank": { "raw": 9.316330977858848e-07, "percentile": 0.9802119737482764 }, "sha256": "f038af278732d51c1706a228fce03197f3e248f65768eb97171a879a5bad6b7e", "simhash": "1:8e213943ff27f281", "word_count": 4807 }, "last_updated": "2023-07-14T20:59:21.850055+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Lyman Ackerson v. The People of the State of Illinois." ], "opinions": [ { "text": "Mr. Justice Shope\ndelivered the opinion of the Court:\nLyman Ackerson, plaintiff in error, was jointly indicted and tried with John Knorp and Emil T. Gehrig, for the rape of Mary Cottei. Knorp was acquitted. Ackerson and Gehrig were convicted, and the punishment fixed at eight years in the penitentiary, severally. A motion for new trial was sustained as to Gehrig, but overruled as to Ackerson, and sentence entered on the verdict.\nThe corpus delicti was clearly and satisfactorily established, leaving no doubt that the prosecutrix was ravished at the time and place stated by her. The offense was committed near Thirty-second and Dashiel streets, in the city of Chicago, between half-past eight and ten o\u2019clock of the night of Tuesday, August 9, 1887. The prosecutrix was on the street in company with two young men, Neumann and Pick, when they were approached by three men, one of whom arrested Neumann, took him two or three blocks away, and after kicking him, and telling him not to be seen on the corners again, let him go. Another attempted to arrest Pick, who escaped and ran away, and the third, whom the prosecutrix identified as the defendant Gehrig, arrested her and took her to a shanty on the prairie near by, and attempted to ravish her. Upon her resisting, Gehrig, as she says, whistled, and two men came and threw her oh the ground, two holding her while the other ravished her. She was ravished by each of them. After being released, she immediately made complaint, and examination of her person and clothing fully corroborated her in respect to the force employed.\nThe case, in its facts, turns wholly upon the question of the identification of Ackerson as one of the three engaged in the perpetration of the crime. The defendant Ackerson interposed the defense of alibi. The two boys, Neumann and Pick, while they fully corroborate the prosecutrix in every substantial particular, up to and including the pretended arrest, are unable to identify or describe either of the three men. The defendant Ackerson, on the evening in question, was employed as a watchman in new buildings then in process of construction at the corner of Thirty-second street and Lowe avenue. He testifies he went on duty about five o\u2019clock P. M., and remained there with Knorp until about eight o\u2019clock, and leaving Knorp in charge, then went to the corner of Emerald avenue and Thirty-first street, where he remained about an hour and a half or two hours. The new buildings front on Thirty-second street, and diagonally across that street was the shed or shanty to which the prosecutrix was taken. From Thirty-second street to Thirty-third street it was open prairie. It appears that the prosecutrix was on Thirty-second street, between Lowe avenue and Dashiel street, at the time of her pretended arrest. The first street west of Lowe avenue is Dashiel street, the next west of that is Emerald avenue, so that it is apparent, taking Ackerson\u2019s statements as true as to his whereabouts, he was at no time more than two or three blocks away from the scene of the crime. He went to the corner of Thirty-first street and Emerald avenue, as he says, to meet a friend, and failed to find him, but gives the names of four persons whom he met there, only one of whom, Agnes Clark, is produced as a witness. She testified she met Ackerson there, about ten minutes after nine o\u2019clock, and was with him about eight minutes. She is not definite as to the time of night or the length of time she was with accused. So, on the other hand, the assault on the prosecutrix may, from the evidence, have occurred at any time between half-past eight and ten o\u2019clock. It was after ten o\u2019clock, but not eleven, when she arrived at her home. The length of time consumed in the perpetration of the offense is not given. She testifies that it was ten or fifteen minutes after the men left her before she was able to rise; that she then started home. She soon received help, and was promptly taken to her home, a few blocks away.\nIt is manifest that the testimony of the witness Clark falls far short of establishing an alibi. Nor can it be seen how it tends to corroborate Ackerson, except as to the immaterial fact that for eight minutes out of the hour and a half in which the crime might have been committed, he was three or four blocks away from the place of its commission. No other -evidence, save that of the defendant, is found in the record tending to establish that defense. Ackerson denied participation in the crime, and stated that he left the new buildings about eight o\u2019clock, was at the corner of Thirty-first street and Emerald avenue with Frank McAllister,\u2014who was not produced as a witness,\u2014for, as he thinks, an hour and a half, and in that vicinity probably a half hour longer, with Agnes and Kitty Clark. No review of his evidence, which is in substance the foregoing, will be necessary. It was shown that at the preliminary examination he testified in his own behalf, and there stated that he was gone away from the new build\u2022ings, where he was watchman, about three-quarters of an hour, and then came back, and he and Knorp remained there together all night. The burden of making good the defense of alibi is upon the accused, and to make it availing he must establish such facts and circumstances clearly sustaining that-defense, as will be s\u00fcffieient, when considered in connection with all the other evidence in the case, to create in the minds of the jury a reasonable doubt of the truth of the charge against him. 2 Bishop on Crim. Proc. 29-32; Mullins v. People, 110 Ill. 45.\nThe identification of Ackerson by the prosecutrix is 'positive and unhesitating. She swears- that he was the largest man of the three,\u2014the large man \u201cwith the heavy mustache,\u201d who was the second to ravish her. It is shown there were lights at the street intersections where she was first assaulted. She next saw the accused on the following night, about half-past ten o\u2019clock. She went with an officer to the vicinity of the crime. A rain came on, and they took shelter in the new buildings before mentioned. Presently Ackerson and a man by the name of Overne came in. She was first asked if she knew Overne, and replied she did not, but at once recognized Ackerson as one of the men who had assaulted her. It is perhaps singular that at the instant her attention was directed to Ackerson there should have been a flash of lightning, giving her a perfect view of him; but she is fully corroborated in that respect by the officer, and contradicted by no one. She again recognized .him at the station, and again on the trial. The jury saw both the defendant and prosecutrix, heard them testify, had opportunity of observing the prosecutrix under the rigid cross-examination to which she was subjected, and in view of the whole evidence have believed her, and we are unable to say they were not justified in so doing. We are not, therefore, warranted in interposing for that cause.\nIt is properly said that the case is extremely close in its facts. The crime charged, in itself, is calculated to arouse indignation in the minds of a jury, especially where its commission is attended with circumstances of peculiar cruelty and atrocity, as was here shown, and the law should be given with accuracy, and nothing permitted to reach the jury that would have a tendency to improperly prejudice them against the defendant. It is insisted that the court erred in the following instruction given on behalf of the People:\n\u201c2. The court instructs the jury, as a matter of law, that where the People make out such a case as would sustain a verdict of guilty, and the defendant offers evidence, the burden is on him to make out that defense, and as to an alibi and all other like defenses that tend merely to cast a reasonable doubt on the case made by the People when the proof is in, then the primary question is,\u2014the whole evidence being considered, both that given for the defendant and for the People,\u2014is the defendant guilty, beyond a reasonable doubt. The law being, that when the jury have considered all the evidence, as well that touching the question of the alibi as the criminating evidence introduced by the prosecution, then if they have any reasonable doubt of the guilt of the accused of the offense with which he stands charged, then they should acquit, otherwise not.\u201d\nThe vice of this instruction is said to be, that it casts discredit on the defense of alibi, and that \u201cits effect was to impress the jury, that in the opinion of the court the State had made out a case that would sustain a verdict of guilty.\u201d The instruction is not properly subject to the criticism made. There is nothing in the 'instruction from which an inference as to the opinion of the court could be drawn. In respect of the other objection, it must be said that it is not true, as a general or legal proposition, that the defense of alibi \u201ctends merely to cast a reasonable doubt upon the case made by the People.\u201d That may, and will, in many cases, be the only effect of the evidence produced to sustain it, but the defense controverts the guilt of the defendant, and if certainly and satisfactorily established, would be conclusive of the defendant\u2019s innocence. While, in theory, it does not deny that the crime has been committed, it asserts that the defendant, during the whole of the time in which the crime is shown to have been committed, was so far removed from the place of its commission that he could not have participated in its perpetration. Miller v. People, 39 Ill. 464.\nBut it is not seen how the defendant could have been prejudiced by this instruction. The jury are expressly told by it, as well as by the fourth given for the defendant, that if the evidence of an alibi, when considered in connection with the criminating evidence, created in their minds a reasonable doubt of the defendant\u2019s guilt, they must acquit. It is not questioned that these instructions gave the law accurately, and that the defendant had the benefit of every principle that could be invoked in his behalf. The defendant would have been in no better position before the jury had they been told that the defense might, under proper evidence, be conclusive, and the fact, if it is a fact, that the jury were led to believe that the defense of an alibi tended only to raise a reasonable doubt of the defendant\u2019s guilt, in view of these instructions, could have created no prejudice against the defendant or against his defense. The law undoubtedly is, where the People have made a prima facie case, and the defendant relies on the defense of alibi, the burden is upon him to prove it,\u2014not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such degree of certainty, as will, when the whole evidence is considered, create and leave in the minds \u25a0of the jury a reasonable doubt of his guilt of the crime charged. Hoge v. People, 117 Ill. 44; Hopps v. People, 31 id. 392, and .authorities supra.\nIt is next urged, that the court erred in refusing the third instruction asked by the defendant. The witness Flannigan testified, that while the defendant Ackerson was at the police .station under arrest, the prosecutrix came into bis presence \u25a0and was told to look at him, and be sure as to whether or not he was one of the men that had assaulted her. She said, in the defendant\u2019s presence, she was sure he was one of the men, \u25a0or the man. The witness was then asked, \u201cWhat did he say?\u201d Objection was made to the question, which was overruled, and \u25a0exception taken. He answered, \u201cHe did not say anything\u2014 he hung his head down, and did not make any answer.\u201d The \u25a0court, on its own motion, ordered all stricken out except what Ackerson said. Thereupon the question was repeated, \u201cWhat \u25a0did he (Ackerson) say when she said she was sure he was the man?\u201d The answer was, \u201cHe held his head down.\u201d The \u25a0defendant did not object to the answers, or move to strike them out, but, by the instruction referred to, asked the court do instruct the jury, that the fact that Ackerson made no reply do the statement of the prosecutrix, \u201cif such was the fact, need not he taken as a circumstance against him, in any manner whatever.\u201d The refusal to give this instruction is assigned as \u25a0error. The question calling for declarations of the defendant was clearly unobj ectionable. It is apparent, however, that the fact that the defendant remained silent was permitted to go to dhe jury, without objection. Waiving the question of the right do raise the objection by instruction to the jury, and treating it as a motion to exclude the evidence, the instruction was properly refused.\nWe are referred to the cases of Commonwealth v. Kenny, 12 Metc. 235, and Commonwealth v. Walker, 13 Allen, 570, as sustaining the instruction, and as authority for the position that the presumption of acquiescence does not arise from the silence of a prisoner who is in custody. The decision of the latter case was based upon the former. The Kenny case was. peculiar in its facts, proof of the corpus delicti depending upon the supposed implied admission. But if these cases are to be-regarded as authority upon the question involved, they would seem not to be in harmony with the current and weight of authority in this country or in England. In Wharton on Criminal Law, sec. 696, (7th ed.) it is said: \u201cWhere a man at full liberty to speak, and not in the course of a judicial inquiry, is-charged with a crime, and remains silent,\u2014that is, makes no-denial of the accusation, by word or gesture,\u2014his silence is a circumstance which may be left to the jury.\u201d \u201cThe assent of the party is presumed, if nothing be said by him inconsistent, with that presumption.\u201d\nAn admission or confession may be implied from the conduct of a party in remaining silent, when charged with crime- or with complicity therein, or when statements are made by-third persons, in his presence, affecting him, when the circumstances afford an opportunity to act or speak in reply, and men similarly situated would naturally deny the imputed guilt, or make explanation of the statements. 1 Gfreenleaf on Evidence, secs. 197-215; Joy-on Confessions, 77; Boscoe on Crim. Ev. 53; Rex v. Bartlett, 7 Car. & P. 832; Rex v. Smithers, 5 id. 332; Jewett v. Banning, 23 Barb. 13; State v. Perkins, 3 Hawks, 377; Donnelly v. State, 2 Dutch. 463; People v. McCrea, 32 Cal. 98; State v. Pratt, 20 Iowa, 267; Perry v. State, 10 Ga. 311; Kelly et al. v. People, 55 N. Y. 565.\nThe ground upon which the evidence is admissible is, that-his silence, when he may and naturally would speak in denial of the statements imputing guilt, if untrue, is regarded as an acquiescence in their truth, and an implied admission of guilt. The degree of credit to be given to these tacit admissions is always to be determined by the jury, under the circumstances of the particular case. The authorities are uniform, that the evidence, when admissible, should be received with great caulion. Attention should be directed to the defendant, and to the circumstances surrounding him that would be likely to influence his action, with a view to determine, from his standpoint, the motive that induced or prompted his silence. If it be doubtful whether the statement was perfectly heard or understood by the prisoner, or circumstances existed which might prevent a reply, or render it improper or inexpedient, or Ms silence is attributable to fear, or any motive other than acquiescence in the truth of the proposition to which his silent assent is claimed, the evidence will be entitled to little or no weight, but its value is to be determined by the jury in view of the surroundings and attendant circumstances shown. 2 Phillips on Evidence, (Cowen & Hill\u2019s notes,) 194, note, 191, and authorities supra. The prisoner, at the time the statement was made by the prosecutrix, knew he was under arrest for the crime of rape upon her, and that the purpose of her visit was to identify him as one of the parties committing it. Any declaration he might then have made would have been competent evidence, and his admission, either express or implied, of the truth of her statement, is equally admissible. Its cogency as \u25a0evidence, and the weight to be given it, as we have seen, were to be determined by the jury. It is no,objection to the admissibility of his admissions or confessions, whether express \u25a0or implied, that he was under arrest, if no improper influence was used to induce them, and he was free to speak in denial of them. Wharton on Crim. Law, sec. 689, note f; Kelly v. People, supra; Donnelly v. State, supra; People v. McCrea, supra; State v. Pratt, supra; Rex v. Bartlett, supra; State v. Perkins, supra.\nIt is lastly objected, that the court admitted improper evidence. The defendant GeM-ig was arrested on Saturday following the commission of the offense. The police officer and others were permitted to testify, over the objection of the defendants, to Gehrig\u2019s statements, made on the evening of Ms arrest, and afterwards at the magistrate\u2019s offie.e, on oath. These were, that he knew nothing of the rape, personally, but that on Tuesday night,\u2014being the night of the rape,\u2014about ten o\u2019clock, or a little after, he was in the saloon,\u2014where he was tending bar,\u2014and Knorp came in at the side door, and called him down to the end of the bar, out of the hearing of others, and told him that he and the watchman had gotten into a bad -scrape over in the new buildings; that they had raped a girl, and asked his (Gehrig\u2019s) advice what to do; that he replied, \u201cWell, if that\u2019s the case, you had better skip.\u201d' It is not pretended this evidence was admitted as evidence against the defendant Aekerson. On the contrary, on objection to it by his attorney, the court said: \u201cThe objection is sustained, as far as your client is concerned.\u201d It was, however, admitted, and was so understood, as evidence against Gehrig, and him alone, and the jury were so instructed. But it is said that the evidence was of the most damaging character to the defendant -Aekerson, and that as the evidence was improper as against Gehrig, its admission was error, which should reverse the judgment against Aekerson. Numerous cases are cited holding that an instruction to disregard evidence improperly admitted will not cure the error in its admission; but the principle there announced can have no application in this case.\nIt is urged that the statements of Gehrig, testified to, were exculpatory and self-serving, and not criminatory, and therefore not admissible at the instance of the People. This, if the fact that they were exculpatory would render them inadmissible when offered by the People, is a misapprehension. The corpus delicti being proved, it was competent for the People to resort to proof of collateral facts and circumstances, from which guilt or guilty knowledge might be' inferred. These are offered and admitted as evidence, not as part of the res gestee of the crime itself, but as indicative of a wicked mind. Where declarations of the accused are proved, the whole declaration must be admitted, as well that which tends to exculpate as that from which an inference of criminality may he drawn, and the jury, considering it all in the light of the other facts proved, honestly applying their own experience, must say what inference, if any, is to be drawn therefrom. It was in this view the evidence under consideration was admitted, that the jury might say whether the defendant Gehrig had volunteered a false statement of facts, from which there would arise an inference of conscious guilt, and which had induced him to seek protection in falsehood. Roscoe on Crim. Ev. 18; Wharton on Crim. Law, 714.\nThe evidence was proper for the consideration of the jury, in determining the guilt or innocence of the defendant Gehrig, and as to the other defendants it was carefully guarded, both in the ruling of the court and by the instructions. As the defendant Gehrig may be again put upon trial, any discussion of the inferences to be drawn by the jury, from the time and circumstances of the alleged confession of guilt by Knorp, and the exclusion therein of the third person shown to have participated in the. crime, and the like, would be manifestly improper. It is apparent, however, that the jury gave no credence whatever to the alleged confession of Knorp, and that no one was injured by its admission, unless it operated to the injury of Gehrig himself, against whom it was proper evidence. Knorp, who was alleged to have made the confession to Gehrig, was acquitted, while Gehrig was convicted.\nThe jury were fully and accurately instructed upon every principle of law applicable to the facts. There was ample evidence to sustain a verdict of guilty, if the jury believed that given on the part of the People and disbelieved that of the defendant, which they have done, and we are not at liberty to interfere with their finding.\nThe judgment of the Criminal Court will be affirmed.\nJudgment affirmed.", "type": "majority", "author": "Mr. Justice Shope" } ], "attorneys": [ "Mr. E. C. Miles, and Messrs. Mills & Ingham, for the plaintiff in error:", "Mr. George Hunt, Attorney General, for the People:" ], "corrections": "", "head_matter": "Lyman Ackerson v. The People of the State of Illinois.\nFiled at Ottawa May 9, 1888.\n1. Criminal law\u2014proof of an alibi\u2014burden of proof\u2014degree of proof \u25a0 required. On a criminal prosecution, when the People have made out a prima faeie case, an.d an alibi is relied on, the burden is on the defendant to prove it,\u2014not beyond a reasonable doubt, nor even by a preponderance of the evidence, but by such evidence, and to such a degree of certainty, as will, when the whole evidence is considered, create and leave in the minds of the jury a reasonable doubt of his guilt of the crime charged.\n2. Same\u2014instruction as to proof of an alibi. On the trial of one for rape, the defense of an alibi being made, the court instructed the jury, \u201cthat when the People make out such a case as would sustain a verdict of guilty, and the defendant offers evidence, the burden is on him to make out that defense, and as to an alibi, and all other like defenses that tend merely to cast a reasonable doubt on the case made by the People when the proof is in, then the primary question is, (the whole evidence being considered, both that given for the defendant and that for the People,) is the defendant guilty beyond a reasonable doubt?\u2014the law being, that when the jury have considered all the evidence, as well that touching the question of the alibi, as the criminating evidence introduced by the prosecution, then, if they have any reasonable doubt of the guilt of the accused of the offense with which he stands charged, they should acquit, otherwise not:\u201d Held, that the instruction was not such as to impress the jury that in the opinion of the court the State had made out a prima facie case; nor was the defendant prejudiced by the words, \u201cthat tend merely to create a reasonable doubt. \u201d\n3. Same\u2014admission or confession\u2014whether implied from silence. An admission or confession may be implied from the conduct of the party in remaining silent when charged with crime, or with complicity therein, or when statements are made by third persons, in his presence, affecting him, when the circumstances afford an opportunity to act' or speak in reply, and men similarly situated would naturally deny the imputed guilt, or make explanation of the statements.\n4. The degree of credit to be given to such tacit admissions is always to be determined by the jury under the circumstances of the particular case. Such evidence should be received with caution, and attention should be directed to the defendant, and to the circumstances surrounding him that would be likely to influence his action, with a view to determine the motive that induced his silence.\n5. If it be doubtful whether the statement was perfectly heard or understood by the prisoner, or circumstances existed which might prevent a'reply, or render it improper or inexpedient, or his silence may be attributable to fear, or any other motive than acquiescence in the truth of the proposition to which his silent assent is claimed, the evidence will be entitled to little or no weight; but its value is to be determined by the jury in view of the surroundings and attendant circumstances shown.\n6. After the arrest of one charged with rape, the prosecutrix called at the police station to see if he was one of the persons who violated her person, and said in the prisoner\u2019s presence that he was one of the men. The witness testifying was asked, \u201cWhat did he say,\u201d to which question objection was made, and overruled. He answered, \u201cHe did not say anything,\u2014 he hung down his head and did not make any answer.\u201d The court directed all of the answer to be stricken out except what the prisoner said. The witness was again asked what the prisoner said, and answered, \u201cHe held his head down. \u201d The court was asked to instruct, that the fact the prisoner made no reply, if such was the fact, need not be taken into consideration as a circumstance against him, in any manner whatever: Held, no error to refuse such instruction.\n7. Same\u2014of statements of co-defendant. On the trial of two for rape, the admissions and statements of one of them are admissible in evidence against himself, as well that which is exculpatory of himself as that which is criminating; and there is no error in admitting the same, instructing the jury that it should not be considered against the other defendant.\nWrit of Error to the Criminal Court of Cook county; the Hon. E. S. Williamson, Judge, presiding.\nMr. E. C. Miles, and Messrs. Mills & Ingham, for the plaintiff in error:\nThe People\u2019s second instruction was calculated to arouse suspicion in the minds of the jury against an alibi, and casts discredit on the defense. It is not a defense that merely tends to cast a reasonable doubt on the case made by the People when the proof is in. Its effect was also to impress the jury that in the opinion of the court they had made out a case that would justify a conviction. Hoge v. People, 117 Ill. 44.\nThe court erred in the admission of evidence. Silence while in custody, when charged with crime, does not amount to an admission of that charge. Wharton on Grim. Ev. (8th ed.) sec. 680; Commonwealth v. Walker, 13 Allen, 570; Commonwealth v. Kenny, 12 Metc. 235.\nThe confessions of prisoners are received in evidence upon the presumption that a person will not make an untrue statement against his own interest. Eoscoe on Grim. Ev. 38.\nThe statement of Gehrig was in the nature of a self-serving declaration, and therefore was not admissible even to show his guilt. The instructions of the court limiting this evidence to Gehrig can not cure the error. Railroad Co. v. Winslow, 66 Ill. 219; Jackson v. People, 18 Bradw. 518; Denser v. Parsons, 8 id. 625; Fire Ins. Co. v. Rubin, 79 Ill. 402; Hutchins v. Hutchins, 98 N. Y. 60.\nMr. George Hunt, Attorney General, for the People:\nThe onus of proving an alibi rests upon the defendant. Garrity v. People, 107 Ill. 162; 1 Wharton on Crim. Law, 708-744.\nThe silence of a party when charged with crime, together with all the circumstances, may be given in evidence against him. Kelly v. People, 55 N. Y. 565.\nIt is the effect of evidence as a whole, and not distinct parts of it isolated from its connection with other evidence, by which the jury are to be governed in determining the question of the guilt or innocence of the prisoner. Bressler v. People, 117 Ill. 423." }, "file_name": "0563-01", "first_page_order": 563, "last_page_order": 575 }