Bulliner v. People of State

• Decision Date: 14 June 1880
• Citation: 95 Ill. 394,1880 WL 10049
• Parties: JOHN BULLINER et al.v.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

95 Ill. 394

1880 WL 10049 (Ill.)

JOHN BULLINER et al.

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Mt. Vernon Jun. 14, 1880.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Jackson county; the Hon. MONROE C. CRAWFORD, Judge, presiding.

Mr. F. E. ALBRIGHT, and Mr. M. C. WHITE, for the plaintiffs in error:

The defendants went into trial with the hope that Crain, Musick and all other witnesses would be kept apart from each other, but their rights under the law were violated with impunity, and the order of the court separating the witnesses and refusing them communication with each other, was wholly diregarded. It was error to permit newspapers containing a garbled and untrue statement of the evidence, and comments thereon unfavorable to the defendants, to be read by the jury over the protest of the defendants. The facts and effects thereof are set forth in the affidavits of the defendants in support of the motion for a new trial, which, not being denied, are prima facie true.

The court erred in permitting Abe Stanley and James Conners, whose names are not indorsed on the indictment, and whose names were not furnished defendants, to testify, the last named witness having remained in the court room and heard all the testimony of the other witnesses. Rev. Stat. 1874, p. 409, sec. 421.

Defendant Baker, after testifying for the defence, was, on cross-examination, compelled to narrate the facts of having previously killed a man while in the army in Arkansas.

It is a familiar principle of law, strictly enforced by the courts, that a defendant upon trial charged with a felony never tacitly waives any of his rights. Baker was a witness in his own behalf, and the evidence of a previous killing was drawn out by the prosecution for the sole purpose of prejudicing the jury against him.

Law, justice and the rules of evidence are all outraged by inducing a jury, through a prejudice raised by such improper evidence, to convict a man for a crime of which he is innocent, because he ought to be punished for another and distinct crime of which he may be guilty. 1 Whart. Am. Crim. Law, sec. 647; Bish. Crim. Proc. sec. 1064; Brock v. State, 26 Ala. 104; The People v. Corbin, 56 N. Y. 363; Bonsal v. State, 35 Ind. 460; The People v. Barnes, 48 Cal. 551; Barton v. State, 18 Ohio, 221.

The evidence should be confined to the charge set forth in the indictment. Kribs v. The People, 82 Ill. 425.

The court erred in refusing to allow further time to prepare affidavits and make preparation to present motion for a new trial. Meredith v. The People, 84 Ill. 480; White v. The People, 94 Ill. 604.

The court erred in permitting counsel for the people, in the closing speech, to improperly comment on a letter and other matters not in evidence.

The testimony of Crain and Norris was very important, but was refused by the court for the reason that they had heard other witnesses testify,--a reason not considered good, when asked by the defendants to apply it to Conners, a witness for the people. Moore's Crim. Law, 695; Flood v. Prettyman, 24 Ill. 597.

Mr. JAMES K. EDSALL, Attorney General, for the People:

It was within the discretion of the court to allow witnesses to be examined whose names were not indorsed on the indictment. Gardner v. The People, 3 Scam. 89; Gates v. The People, 14 Ill. 436.

The statute which gives the defendants in criminal cases the right to testify in their own behalf, provides that the fact of conviction of another crime may be shown as affecting his credibility. Rev. Stat. 1874, 410, sec. 426. The facts elicited upon the examination of Baker were competent for this purpose. 1 Whart. Crim. Law, (7th ed.) 782 b; Commonwealth v. Bonner, 97 Mass. 587.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

John Bulliner, Allen Baker and Marshall Crain were jointly indicted by the grand jury of Jackson county for the murder of George W. Sissney. Bulliner and Baker were placed upon trial under the indictment at the September term, 1875, of the Jackson county circuit court, the cause being continued as to Crain. The jury returned a verdict of guilty, as charged in the indictment, against both, and fixed the punishment of each at confinement in the penitentiary for the term of twenty-five years. Motions for new trial and in arrest of judgment were made by counsel for the defendants, which were overruled by the court, and the court thereupon gave judgment upon the verdict of the jury. The defendants bring the record here, and assign numerous errors as grounds for the reversal of the judgment. These will be briefly noticed in their order.

The first error assigned is: “The court permitted Samuel Musick and Marshall Crain, the two accomplice witnesses, to testify, over objections of defendants, said witnesses having each been conversed with (in violation of rule separating witnesses) by B. F. Lowe, Elkanah Brush, witnesses, and W. A. Lemma, one of the attorneys for the people.”

It is not shown that any harm to the defendants resulted from this violation of the rule of court. The only respect in which it is suggested that it might have resulted in harm is, in the repeating by these parties of the testimony given by Musick to Crain before Crain testified, thereby enabling Crain to follow Musick in his testimony. It is quite evident that no such result actually followed. The testimony of Crain bears strong internal evidence that it was not patterned on that of Musick.

The disregard of this rule might have afforded good grounds for the punishment of the parties for contempt, but it was within the discretion of the court, and hence not error to permit the witnesses to testify after they had been thus conversed with. 1 Greenleaf's Evidence, sec. 432; 3 Wharton's Crim. Law (7 ed.), sec. 3009 a; see also, note c to same section at p. 66 of that volume.

If witnesses, after an order of separation, upon being spoken to by third parties in violation of an order of court, would become thereby disqualified to testify, a wide door would be opened to unscrupulous friends of those charged with crime to disqualify all material prosecuting witnesses.

There might, probably, be such an interference with witnesses, in disregard of an order of court, as would justify the court in setting aside a verdict based upon their evidence, the defendant being free of fault and the facts being brought to his attention for the first time after the examination of all the witnesses had concluded. But the present is not such a case. It does not appear but that the defendants knew, when Crain was examined, that he had been conversed with by the parties named, and if they did, he should then have been interrogated with reference thereto and its probable effect upon his evidence left to the jury. But, as before observed, it is not shown that any harm to the defendants resulted from this disregard of the rule of court.

The second error assigned is: “The court permitted the jury to read newspapers containing garbled and untrue reports of the evidence and comments unfavorable to the innocence of defendants, over the objection and protest of the defendants.” It is not shown that, in point of fact, any juror read any such garbled and untrue reports of the evidence and comments unfavorable to the innocence of the defendants. It is shown simply that a juror was seen to be reading a newspaper in which was published what purported to be a report of the trial, and also comments upon the case. Whether he read that report or those comments is not shown.

The facts relating to this matter, as disclosed by the record, are these: “While the jury was being impanneled to try the cause, the court noticed that one of the counsel for the defendants handed one of the jurymen, who had been accepted and sworn to try the cause, a newspaper. There was no objection to this by the counsel for the people, and nothing was said by either party against the jurymen reading the newspapers, from which the court was induced to believe that there was no objection. A day or two afterwards one of the attorneys for the defendants spoke to the court, stating that there was an article in the Globe-Democrat of that day that might be viewed by the jury as prejudicial to the defendants, and while he did not want to make a motion on the subject or have the counsel for the people to do so, he would like for the court to have the paper kept from the jury. The court looked around immediately and discovered that one of the jurymen had the paper and was reading it, and called the counsel's attention to the fact that his suggestion came too late, as one of the jurymen already had the paper and had probably read the article; and, on further conversation, it was thought best by the court, and was so stated to counsel at the time, that as the paper was already in the hands of one of the jurymen it would give the article too much prominence and do the defendants more harm than good to speak about it, and nothing further was said or done about it. * * * There was no motion made by the counsel for defendants at the time, and no exception taken.”

It thus appears that the counsel for the defendants are responsible, in the first instance, for the introduction of newspapers to the jury, and that the defendants, knowing that the newspaper, of the reading of which they now complain, was being read by a juror, made no motion to have the reading stopped or prevented, and took no exception to the course pursued by the court.

It was said in McKinney v. The People, 2 Gilm. 556, “A prisoner on trial, under our laws, has no right to stand by and suffer irregular proceedings to take place and then ask to have the proceedings reversed on error on account of such irregularities. The law, by furnishing him with counsel to defend him, has placed him on the same platform with all other defendants, and if he neglects in proper time to insist on his rights, he waives them.”

This doctrine was applied in ...