Dacey v. People

• Decision Date: 25 March 1886
• Citation: 6 N.E. 165,116 Ill. 555
• Parties: DACEY v. PEOPLE.
• Court: Illinois Supreme Court

116 Ill. 555

6 N.E. 165

DACEY

v.PEOPLE.

Supreme Court of Illinois.

March 25, 1886.

Error to McHenry.

T. D. & E. D. Murphy, for plaintiff in error.

Geo. Hunt and J. S. Grinnell, for defendant in error.

SHOPE, J.

The indictment in this case was returned into the criminal court of Cook county, May 31, 1884. An arraignment of defendant was had June 13th following, and on the twenty-third of the same month a motion for change of venue was entered by defendant, and such proceedings were had that on the fifth of July, 1884, the venue of the cause was changed to McHenry county. The circuit court of McHenry county commenced the fourth Monday in September, and on the twenty-fourth of September, being one of the days of that term, the defendant entered his motion for continuance, supported by his own affidavit, and the affidavit of his brother Patrick Dacey. On the same day, this motion was overruled by the court, and on the twenty-ninth of September the defendant was put upon trial, which resulted, on the third of October, in a verdict of guilty of murder, and fixing the penalty at death. Motion for new trial by defendant was overruled by the court, and judgment rendered on the verdict, sentencing the defendant to be hanged by the sheriff of McHenry county, November 21, 1884. Exceptions were duly taken to the various rulings of the circuit court, and the defendant, James Dacey, prosecuted this writ of error to the circuit court of McHenry county to reverse the judgment so entered. The first error assigned is the overruling of the motion by defendant for a continuance.

It will be unnecessary to quote the affidavit except so far as it relates to the two witnesses Ellen and Michael Farrell, without whose evidence it is alleged the defendant could not safely proceed to trial. The other portions of the affidavit of plaintiff in error state, in substance, that plaintiff in error was arrested on the thirteenth day of May, 1884, and has since been in close confinement; that very soon after his arrest a lawyer of high standing and reputation was retained by friends of the accused to prepare and conduct his defense, to whom large sums of money were paid; that he and his friends relied upon said attorney, who represented at various times that the case was being prepared; that he knew no better until the twenty-fourth day of August, 1884, when his case was abandoned by his attorney, who had failed to make any preparation thereof whatever; that he was refused permission by the jailer to communicate with his friends after the twenty-fourth of August until about a week before his removal from the Cook county jail to McHenry county; that his attorneys, then in charge of his case, had been employed only a few days; that his only friends who were able to assist him resided in Buffalo, New York; ‘that as soon as he could, situated as he was, he communicated with and informed his friends in Buffalo, and as soon as they possibly could they came on, reaching Woodstock last Saturday morning,’ when the present counsel was employed. It is noticeable that nowhere in the affidavits filed it is even inferentially stated that the counsel then defending were, because of their recent employment or for other cause, unable to fairly present the defendant's case. The affidavits are whooly silent on that subject. And it will also be observed that there is no statement in the affidavits that there are persons who may have known the defendant during the years he resided in Chicago, from 1879 to A. D. 1884, whose names or residences were then unknown, or who had not been found; that is, that further time, for preparation, if allowed, would enable the defense to produce a single witness who had known the defendant and his condition during the five years preceding the homicide that they did then know of and were able to produce. True, Patrick Dacey in his affidavit says ‘he believes there are two respectable physicians in the city of Chicago who have, since defendant has been a resident of said Chicago, treated him, and know him to be an insane man, but whose names this affiant is this moment unable to give,’ but if permitted time believes he can produce them. At ‘the moment’ he was unable to give the names; but there is no statement that the names were unknown to the defense, or that they could not be produced at that term of court, as well as at any subsequent one. Indeed, it is perfectly clear from the record that they were in fact in attendance on that court, and testified in the case. The testimony of Patrick Dacey when on the stand discloses that Dr. Bluthardt, county physician of Cook county, and his assistant, were the physicians who attended upon his brother James in Chicago, both of whom testified upon the trial of the cause.

The defendant in his affidavit sets forth what he expects to prove by said Farrells, and says that their testimony, with such testimony as he is able to provide from Chicago and the scene of the tragedy, will satisfy any unprejudiced jury of his innocence. The names of Michael Leyden, John O'Brien, Benjamin Price, ‘and others' of Chicago are given as such witnesses. As already said, there is no reason given or facts shown why he is not prepared for trial, so far as witnesses who had known him for the five years preceding the homicide, or so far as the ability of his counsel was concerned, or on account of any other matter, except the attendance of said witnesses Farrells, as he could ever hope to be.

Upon a showing that for want of time counsel did not have the cause properly in hand, or that witnesses were not in attendance who could be found if more time was given, or the cause was not ready for trial for want of opportunity for preparation for any cause shown to exist, the court would undoubtedly, in the exercise of a wise discretion, have postponed the trial until a later day in the term, or until another term, if apparently necessary to do so, and such action would not have occasioned any just criticism. But it is insisted that this being the first application by defendant for continuance, and the defendant, as shown, having been abandoned by his counsel, and from the twenty-fourth of August until some time in September having been refused permission to communicate with his friends, that upon consideration of these facts a continuance should have been granted. It is the right of every citizen, when indicted for an offense, to have a fair and impartial trial, and compulsory process to compel the attendance of his witnesses, and that involves, as a matter of course, the time reasonably necessary to prepare for trial, and to find and produce testimony in his defense. It is not, however, a matter of which the defendant can complain that the trial is speedy, or occurs at the first term, or however speedily after the alleged commission of the offense, if he has had time for preparation, and is ready for his defense. The affidavit filed, as already seen, presented no facts which, in the exercise of reasonable discretion by the court, would have warranted a continuance of the cause, outside of the alleged absence of the witnesses Michael and Ellen Farrell.

We will next consider the application with reference to those two witnesses. The affidavit of defendant states-

‘That he expects to be able to prove by Michael Farrell and Ellen Farrell, of the city of Buffalo, New York, that he [this defendant] is a person of unsound and insane mind, and has been for the ten years last past; that his abnormal mental condition at the time of said alleged murder was the prime cause of any act of his which is the foundation of the complaint by the people in [this] case; that he knows of no other witness or witnesses by whom he can prove such fact of insanity prior to his residence in Chicago, which has been for the last five years; that, in order to establish his condition at the time of the alleged murder as to sanity or insanity, it will be necessary to show his condition in prior years, which he can do only by procuring the attendance of said witnesses Michael and Ellen Farrell, from Buffalo, aforesaid, which he believes he can do by the next term of this court, and that this application is not made for delay, but that justice may be done; * * * that he verily believes he can prove by said Michael Farrell and Ellen Farrell that for the ten years last past he [this defendant] has been of unsound and insane mind,-subject to insane delusions,-and that uniformly, when under the influence of excitement from any cause, his reason would leave him, and he would become the victim of all sorts of insane delusions, and by the aid of their testimony, with such testimony as he is able to provide from Chicago and the scene of the tragedy which resulted in the alleged murder, he will be able to satisfy any unprejudiced jury of the fact of his insanity at the time of said homicide, and that in fact and in law he is not guilty in manner and form as charged in the indictment; that he expects to be able to prove by Michael Leyden, John O'Brien, Benj. Price, and others, of Chicago, Ills., who have known defendant since his residence, [there,] such facts and circumstances as, when taken in connection with the testimony of said Michael Farrell and Ellen Farrell, of Buffalo, as aforesaid, as will make a complete and legal defense against said indictment.’

The defendant, in further support of his motion for continuance, filed the affidavit of his brother Patrick Dacey, as follows:

‘That he is a brother of defendant, resides in Buffalo, has taken a deep interest in his brother's fate. That soon after the alleged murder he was informed that Mr. Augustus Van Buren had been employed to defend his brother, and the preparation of the case confided to him, and that he was making every necessary preparation. That he knew no better until two weeks ago. That, immediately after learning the course pursued by said attorney, he received an injury that...