Reese v. the People.

Decision Date31 August 1882
PartiesANDREW J. REESE ET AL.v.THE PEOPLE.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

ERROR to the County Court of Union county; the Hon. THOMAS HEILMAN, Judge, presiding. Opinion filed September 29, 1882.

Messrs. DAY & GREAR, for plaintiffs in error.

Mr. D. W. KARRAKER, for defendant in error; that a scire facias may be amended, cited Connor v. The People, 20 Ill. 382; Graves v. The People, 11 Ill. 542.

A variance between the scire facias and the record can not be taken advantage of by general demurrer: Farris v. The People, 58 Ill. 28.

CASEY, J.

At the March term of the Circuit Court of Union county, Andrew J. Reese was indicted for selling intoxicating liquor by a less quantity than one gallon. On the 18th of April, 1881, Reese, with Guthrie as surety, entered into recognizance in the sum of one hundred dollars for his appearance at the next term of the county court, “to answer an indictment which was preferred against him, etc., for and concerning the crime of selling liquor in a larger quantity than one gallon.” At the November term, 1881, of the said county court, the defendant Reese failed to appear, and forfeiture of his recognizance was taken and a scire facias ordered by the court. A scire facias was issued returnable at the May term of the court, A. D. 1882, and duly served. The defendants appeared and filed a plea of nul tiel record. Whereupon the attorney for the people obtained leave to amend the scire facias by alleging that in the recognizance the said offense is described as the crime of selling liquor in a larger quantity than a gallon, meaning thereby the crime of selling liquor in a less quantity than one gallon. Defendants withdrew their plea and filed a demurrer to the amended scire facias. The demurrer was overruled by the court. Defendants elected to stand by their demurrer; a default and judgment was taken against the defendants. The case is brought to this court by a writ of error. The indictment in this cause was against Reese for selling liquor by a less quantity than one gallon. The recognizance, when taken by the sheriff, required Reese to appear and answer to the charge of selling liquor by a larger quantity than one gallon. The recognizance was filed in the office of the clerk of the county court by the sheriff and thereby became a matter of record. It does not describe the offense set forth in the indictment, and it is attempted to avoid this error by...

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