Bartholomew v. People of State

• Citation: 44 Am.Rep. 97,104 Ill. 601,1882 WL 10461
• Parties: WILLIAM H. BARTHOLOMEWv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Decision Date: 20 November 1882
• Court: Supreme Court of Illinois

104 Ill. 601

1882 WL 10461 (Ill.)

44 Am.Rep. 97

WILLIAM H. BARTHOLOMEW

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Ottawa Nov. 20, 1882.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Lee county; the Hon. WILLIAM BROWN, Judge, presiding.

Messrs. BARGE, RATHBUN & BARGE, for the plaintiff in error:

To constitute a criminal offence there must be a union, or joint operation, of act and intention. Hurd's Stat. 1881, page 409, sec. 280. If one who is too drunk to entertain a felonious intent takes property of another, but relinquishes it before such intent could arise in his mind, there is no larceny. (1 Bishop on Criminal Law, sec 490.) Where drunkenness is brought about by fraud, etc., of some other person, for the purpose of causing the perpetration of an offence, the statute makes it a defence for the person so intoxicated. Hurd's Stat. 1881, page 410, sec. 291.

It was not material whether the defendant was ever in the penitentiary. There was no such issue, and being an immaterial question, the answer of defendant, on cross-examination, that he had not been in the penitentiary, was conclusive on the People, and they had no right to introduce testimony to contradict him, either for the purpose of contradicting or discrediting him. 2 Phillips on Evidence, 955, sec. 3; Roscoe on Criminal Evidence, 168; Gifford v. People, 87 Ill. 214; Fogleman v. State, 32 Ind. 145; People v. Brown, 72 N. Y. 571; People v. Crapo, 76 Id. 288; State v. Huff, 11 Nev. 17.

Even if it was proper for the prosecution to show that defendant had been in the penitentiary as a convict, it was not proper to do so by parol evidence. 1 Greenleaf on Evidence, 487, sec. 375; Rex v. Castel Carcinion, 8 East, 77.

The court erred in admitting in evidence the two mittimuses authorizing and commanding the sheriff to convey the defendant to the penitentiary, and the warden to receive him, etc. This is not evidence to prove a conviction. The whole record, so far as it concerns the formal stages, must be either produced or exemplified, and if exemplified, the exemplification must show, on its face, that the record is complete. Wharton on Criminal Evidence, (8th ed.) sec. 603; 1 Bishop on Criminal Procedure, (2d ed.) sec. 814; Davidson v. Murphy, 13 Conn. 203; Miller v. Beaver, 30 Ind. 373; Mason v. Wolf, 40 Cal. 246; Godefroy v. Jay, 3 C. & P. 192, 14 E. C. L. 521; Porter v. Cooper, 6 C. & P. 354, 25 E. C. L. 435; Young v. Thompson, 14 Ill. 380. Mr. JAMES MCCARTNEY, Attorney General, for the People:

In order that a person charged with crime may derive any benefit from sec. 291 of the Criminal Code, three elements are evidently necessary:

First--The drunkenness must be caused by the fraud, contrivance or force of some other person.

Second--The drunkenness must be such as to cause the perpetrator of the deed to be bereft of “sound reason and discretion.”

Third--The drunkenness must be caused by some other person, for the purpose of causing the commission of an offence. The evidence fails to establish either of these propositions.

That the instructions upon the subject of drunkenness state the law correctly, see Shannahan v. Commonwealth, 8 Bush, 464; Estes v. State, 55 Ga. 31; State v. Welch, 21 Minn. 22; Beasley v. State, 50 Ala. 149; State v. Thompson, 12 Nev. 140; Colbath v. State, 2 Texas App. 391; State v. Hundley, 46 Mo. 414; Marshall v. State, 59 Ga. 154; Fisher v. State, 64 Ind. 435.

Mr. C. B. MORRISON, also for the People, after referring to and commenting upon the facts in evidence, especially as to the defendant's guilt, and his acts, made the following among other points:

The moment the defendant took the witness stand his credibility became material. Criminal Code, sec. 426; Commonwealth v. Nichols, 114 Mass. 287.

As affecting his credibility, great discretion is allowed on cross-examination. Connors v. People, 50 N. Y. 242.

A witness, on cross-examination, may be compelled to answer whether he has been in jail or prison, or State's prison. Real v. People, 42 N. Y. 281; Wharton on Criminal Evidence, (8th ed.) secs. 154, 174, and notes. So he may be asked, within the proper discretion of the court, not only concerning his conviction, but also concerning any serious charge brought against him. Wilbur v. Flood, 16 Mich. 40; Hamilton v. People, 29 Id. 173; Clemmens v. Conrad, 19 Id. 170.

When a defendant takes the witness stand, he does so of his own free will, and subjects himself to all that any other witness would, and he waives the constitutional privilege that no man shall be compelled to give testimony against himself. State v. Beal, 68 Ind. 345; Wharton on Criminal Evidence, (8th ed.) secs. 430-434; State v. Fay, 43 Iowa, 651; Burden v. People, 26 Mich. 162; State v. Huff, 11 Nev. 17; Brubaker v. Taylor, 76 Pa. St. 83; Brandon v. People, 42 N. Y. 265; Commonwealth v. Curtis, 97 Mass. 587.

The records introduced in evidence were copies of the judgments, and are made out according to the requirements of the statute, and contain all that the law requires. Hurd's Stat. 1880, page 418, sec. 456, Criminal Code.

The instruction that voluntary drunkenness is no excuse for crime, states a correct principle of law. 1 Arch. Criminal Law, (7th ed.) 31, 832; Kenny v. People, 31 N. Y. 330; 24 Wis. 452; Hurd's Stat. 1881, sec. 291, Criminal Code; Rafferty v. People, 66 Ill. 118; McIntyre v. People, 38 Id. 514; People v. Garbutt, 17 Mich. 9; Commonwealth v. Hawk, 3 Gray, 463; Nicholls v. State, 8 Ohio St. 435.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Plaintiff in error was convicted, by the judgment of the court below, of the crime of larceny. It was not seriously contested that a larceny was committed, or that plaintiff in error was connected therewith,--the property stolen being found in his possession. The defence was, at the time of the taking, and for some hours afterwards, plaintiff in error was under the influence of intoxication caused by the fraud or contrivance of another person for the purpose of inducing him to commit, or to aid in committing, the larceny. Our statute provides: “Drunkenness shall not be an excuse for any crime or misdemeanor, unless such drunkenness be occasioned by the fraud, contrivance or force of some other person, for the purpose of causing the perpetration of an offence.” (Rev. Stat. 1874, p. 395, sec. 19.) At common law, where it required a particular intent in the doing of an act to constitute crime,--as, for instance, larceny, where the intent to steal must accompany the act of taking,--it is held it may be shown in defence that the party charged was intoxicated to that degree that he was incapable of entertaining the intent to steal, and that he neither then, nor afterwards, yielded it the sanction of his will. 1 Bishop on Criminal Law, (3d ed.) sec. 490; United States v. Routenbush, 1 Baldw. 517; Swan v. The State, 4 Humph. 136; Pigman v. The State, 14 Ohio, 555; Kessy v. The State, 3 S. & M. 518. See, also, 1 Wharton on Criminal Law, (7th ed.) sec. 41. It was, therefore, competent to make the defence relied upon.

The defendant was himself examined as a witness, and his testimony tended to make out this defence. Upon cross-examination he was asked if he had not been in the penitentiary. The same question was repeated to him several times, under different forms. He uniformly answered in the negative. Afterwards the prosecution introduced Moses H. Luke, receiving and discharging clerk of the penitentiary located at Joliet, whom the court permitted to testify, over the defendant's objection, that he had seen the defendant in the penitentiary at Joliet, suffering punishment as a convict under two different judgments of conviction. The same witness was also allowed to produce and read to the jury, over the defendant's objection, the mittimuses under which, he testified, the defendant had been, each time, received into the penitentiary as a convict. The same witness was also allowed to produce and read to the jury, over the defendant's objection, a statement made by the officers in charge of the penitentiary, as, the witness said, when the defendant was each time received into the penitentiary. This gives the date received, the number by which registered, the name, the alias, the county where from and the crime for which sent, term of imprisonment, age, personal description, etc. Exception was taken to these rulings at the time.

Under the common law, persons convicted of crimes which rendered them infamous were excluded from being witnesses. (1 Wharton on Criminal Law, (7th ed.) sec. 758; 3 Blackstone's Commentaries, (Sharswood's ed.) 369, 370; 1 Greenleaf on Evidence, sec. 372.) All crimes were not deemed infamous, (1 Roscoe on Criminal Evidence, (5th Am. ed.) 134, 1 Greenleaf on Evidence, sec. 373,) and it was the infamy of the crime, and not the nature or mode of the punishment, that rendered the witness incompetent. Our statute provides: “Every person convicted of the crime of murder, rape, kidnapping, willful and corrupt perjury or subornation of perjury, arson, burglary, robbery, sodomy or other crime against nature, incest, larceny, forgery, counterfeiting, or bigamy, shall be deemed infamous.” (Rev. Stat. 1874, p. 394, sec. 279.) This leaves several offences punishable by confinement in the penitentiary that were neither deemed infamous at common law nor are declared to be so by statute, notably among which may be mentioned manslaughter,--an offence which is clearly not inconsistent with entire veracity.

By section 6 of division 42, of the revised Criminal Code, Rev. Stat. 1874, page 410, it is enacted: “No person shall be disqualified as a witness in a criminal case or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason...