107 Ill. 113 (Ill. 1883), Duffin v. People

Citation:107 Ill. 113
Opinion Judge:Mr. Justice Scholfield.
Attorney:Mr. EDWARD L. THOMAS, for the plaintiff in error. Mr. R. D. W. HOLDER, State's attorney, and Mr. JAMES MCCARTNEY; Attorney General, for the People.
Case Date:June 16, 1883
Court:Supreme Court of Illinois

Page 113

107 Ill. 113 (Ill. 1883)




Supreme Court of Illinois

June 16, 1883

June 1883, Decided

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WRIT OF ERROR to the Circuit Court of St. Clair county; the Hon. AMOS WATTS, Judge, presiding.

This was an indictment against John R. Duffin, alias Hamlet S. Felton, for forgery.

After a verdict of conviction the defendant entered his motion for a new trial, and in support of some of the grounds of his application presented an affidavit alleging certain misconduct on the part of one of his counsel during the trial in the court below. The affidavit sets forth, substantially, that the counsel referred to undertook to address the jury while in an intoxicated condition, and that thereupon the defendant, himself an attorney, proceeded to address the jury in his own behalf, when he was interrupted by his counsel of whose conduct he complains, such counsel being still in an intoxicated condition, and who appeared at the rail of the jury box, and without asking permission from the court, or other preliminary, and in an excited manner, faced the jury, and addressing them, spoke as follows, to-wit: "Gentlemen, I want it distinctly understood that if Mr. Felton is going to argue his own case I withdraw all that I have said and done for him in this case. What I have said don't count,--I want that understood, gentlemen." At this point, Mr. E. L. Thomas, the other attorney for the defendant, rose and resisted the interruption, and stated to the court that he held it to be the constitutional right of his client to speak in his own defence. Then followed an unseemly scene, which was finally stopped by the court promptly informing the offending counsel that he had a perfect right to withdraw from the case and be silent.

The said defendant further says, that neither he nor his attorney, E. L. Thomas, or any agent of theirs, either agreed to or procured, or colluded with the said associate counsel to procure, him to do what he did in withdrawing from the case, but, on the contrary, that they did everything in their power to prevent him from doing what he did, and from uttering the words set out above.

The defendant further says, that this unexpected blow, coming, as it did, from his own attorney, and at the time and place described, unnerved and confused him, the defendant, and greatly impaired his ability to argue his case, and therefore injured his defence. And said defendant further says, that he believes that the remarks of his counsel, given above, to, and his conduct before, the jury, as set out above, greatly prejudiced the minds of the jury against him, the defendant.

The defendant further says, that when his counsel, E. L. Thomas, had advanced to the rail of the jury box to read his instructions to the jury, in obedience to the order of the court, the said associate counsel, still intoxicated, confronted the said E. L. Thomas, and in the presence and hearing of the jury demanded that the instructions be not read, saying, "I wrote those instructions, all of them, and they don't count in this case." Mr. E. L. Thomas informed him that the instructions had been passed on by the court, and that we did not have time now to write others. This unseemly scene took place in the presence and hearing of the jury, and was allowed by the court, but the defendant does not know that the court was aware of the controversy at the time it occurred.

The defendant further says, that while the instructions were being read by E. L. Thomas, the said associate counsel sat near the defendant, in the hearing and presence of the jury, and abused the defendant, by saying: "You are a God damned fool. You ought to be convicted, and sent up for forty years. I had you acquitted, God damn you, and you convicted yourself. You think you are sharp, don't you? You are a God damned ass. I wrote all them instructions, and they don't count," etc. The defendant says that this occurred after the said counsel had withdrawn from the case; that the defendant could not prevent it, and that it was allowed by the court, though the court may not have been aware that the said counsel was so abusing the defendant, and the defendant was in no condition to defend himself, for that at the time his only attorney was engaged in reading his instructions to the jury.

The defendant further says, that Mr. Charles Knispel, in closing the argument for the prosecution, commented on matters not in evidence, and not admissible in evidence, and said, in referring to the unseemly withdrawal of one of the counsel from the defence: "Gentlemen," (addressing the jury,) "you have seen yourselves that the leading attorney on the other side wisely withdrew from the case, for he knew that it was hopeless." And he shortly afterwards said: "Now, gentlemen, if, after...

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