Wollf v. Van Housen

Mr. Justice Gary delivered the opinion ob the Court. The appellant sued the appellee in trespass, alleging an assault, and in one count charging a rape, and in a second an attempt at rape, and in a third a common assault. On the merits of the case we express no opinion, but there are errors for which the judgment for the defendant below must be reversed. First. The coúrt admitted the wife of the appellee as a witness for him, to deny that she made an exclamation to which the appellant had testified. Ho question is before us as to the admissibility of such exclamation, but admitting the wife as a witness was error. Poppers v. Wagner, 33 Ill. App. 113; Craig v. Miller, 133 Ill. 300. Second. The court, by one instruction, told the jury, “ before you can find the accused guilty you must be satisfied from a preponderance of the evidence, that he had carnal knowledge of said plaintiff forcibly and against her will,” and by another, that “ there must be shown in this cause by a preponderance of the evidence, not only that the defendant committed an assault upon the plaintiff, but that he did so with intent to compel her by force, and against her will, to have intercourse with hitfi, notwithstanding any resistance she might make.” These instructions precluded a recovery under the third count. Even under the other counts, a recovery for a common assault, if proved, might be had. Lewis v. Hoover, 3 Blackf. 407. The word “ satisfied,” in the first instruction, is too strong. Connelly v. Sullivan, 50 Ill. App. 627. Third. On cross-examination the court refused to require the defendant to answer whether he had been convicted of forgery, and also refused to admit the record of such conviction, on the ground of the lapse of time since 1868. This was error. Sec. 1, Chap. 51. How the lapse of time should qualify the effect of the conviction upon the credibility of the Avitness should be left to the jury. Pennsylvania Co. v. Versten, 41 Ill. App. 345. There is something in the case about an attempt to suborn witnesses. There is nothing for us to say about it, as the attention of the court was drawn to it only ex parte. The judgment is reversed and the cause remanded.