Baxter v. People of State
| Decision Date | 31 December 1846 |
| Citation | 1846 WL 3865,3 Gilman 368,8 Ill. 368 |
| Parties | JOHN BAXTERv.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
INDICTMENT for murder against the plaintiff in error, tried in the Warren circuit court, at the November term, 1846, before the Hon. NORMAN H. PURPLE and a jury, when a verdict of guilty was rendered and sentence of death pronounced. A previous trial was had in the Rock Island circuit court, with a like result, when the accused brought the cause to this court by writ of error (see 2 Gilm. 578), procured a reversal of the former judgment, and subsequently obtained a change of venue to the Warren circuit court.
The prominent facts and proceedings upon the last trial are adverted to by the court in their opinion.
O. C. SKINNER, for the plaintiff in error.
1. The plaintiff in error was indicted as principal. The evidence shows that he was accessory before the fact. As to what constitutes such accessory, see Rev. Stat. 153 § 13; Const. U. S. on page 25, of Rev. Stat. Art. VI.
2. The court erred in refusing to grant a continuance. Rev. Stat. 415 § 13.
3. The jurors, Leper and Clark, were disqualified, and should have been set aside. Smith v. Eames, 3 Scam. 78; Gardner v. The People, Ib. 88; Sellers v. The People, Ib. 414. Another juror, Sisson, was rendered incompetent to sit by reason of sudden illness during the progress of the trial.
4. The sixth instruction was improperly refused. 3 Blackf. 434.
5. The verdict, judgment and sentence were on Sunday, all of which was contrary to law. 3 Thomas' Coke 354; 4 Black. Com. 278; 3 Tomlin's Law Dic. title “Sunday” 538; 7 Comyn's Dig. 399, B. 3; Mackelday's case, 5 Coke 66; Dakin's case, 3 Saund. 290; Swann v. Broome, 3 Burrow 1595; Story v. Elliott, 8 Cowen 27; Pearce v. Atwood, 13 Mass. 347; Bayley v. Smith, 12 Wend. 59; Frost v. Hall, 4 New Hamp. 158; King v. Strain, 6 Blackf. 447; Arthur v. Mosby, 2 Bibb 589; Shaw v. McCombs, 2 Bay 232; Nabors v. The State, 6 Ala. 290.
6. The reversal of a judgment operates necessarily as a reversal of all former proceedings. 1 Chitty's Crim. Law 755; 3 Comyn's Dig. title “Error” B. 568; 2 Hawk. P. C. 655 §§ 18, 19; 2 Bac. Abr. 503 M; The King v. Ellis, 11 Eng. Com. Law R. 260; Same v. Bourne, 34 do. 37: Commonwealth v. Shepard, 2 Metc. 419-20.
J. KNOX, for the defendants in error.
1. The statute makes an accessory before the fact a principal. Rev. Stat. 153 § 13.
2. As to the continuance, the court gave all the indulgence that could be asked. The cause had been once continued since the change of venue to the county of the last trial. Moreover, the Practice Act in regard to this matter does not apply to criminal cases, but the whole lies within the discretion of the court.
3. The court committed no error in permitting the jurors, Leper and Clark, to be sworn. They had formed no definite and fixed opinion as to the merits of the case, such as would bring them within the cases cited by the counsel who has opened the case. Nor was there a valid objection to the juror, Sisson; he could not, by his affidavit, impeach his own verdict.
4. The sixth instruction was unintelligible to the court and calculated to mislead or confuse the jury, and it was properly refused.
5. The verdict was properly received on Sunday. 15 Johns. 118, 178; 8 Cowen 31. There being no statutory regulation upon the subject of entering judgments, etc. on Sunday, and the prohibition if any, being by the common law, it is resolved into this: Is the common law applicable to this country? We think not. If the court think otherwise, we then contend, that as the verdict was properly received on that day, the court here, according to a well established practice, may now render such a judgment as should have been rendered in the court below.
D. B. CAMPBELL, attorney general, concluded the argument in behalf of the people.
J. MANNING, for the plaintiff in error.
The continuance was improperly refused. The act of the summer session of 1837, is applicable to criminal as well as civil cases, and the fact that it has been incorporated into the Practice Act of the Revised Statutes is no reason why it should not now, as before, be considered thus applicable.
The plaintiff in error should have been indicted as accessory, not as principal. The allegata et probata did not correspond, as required by all authority on the subject. Roscoe's Crim. Ev. 649; Arch. Crim. Pl. 6, 382; King v. Hughes, 24 Eng. Com. Law R. 241; 1 Russell on Crimes 30; 4 Black. Com. 36; Ib. 39.
Upon the question of the competency of the jurors, see Commonwealth v. Knapp, 9 Pick. 476. They could only state facts, not their opinions as to the merits of the case, etc.
The making up and rendering of a verdict on Sunday varies in no material respect from an inquest. 1 Strange, 387; 15 Johns. 177; and, therefore, from analogy it is void in this case.
In this state, in a criminal case the finding of the jury is a judicial act, they being made, by the statute, judges both of the law and the facts.
A verdict is like an award, and an award made on Sunday is void. Story v. Elliot, 8 Cowen 31.
To the statement of counsel that this court may now render the proper judgment, we have a conclusive answer. The Revised Statutes 188, § 198, only confer the power on this court so to do, where the judgment is affirmed. In the present case, the judgment can not be sustained.
The opinion of the court was delivered by CATON J.a1
Some of the questions presented in this record are important in themselves; all are important from the nature of the case, and from the consequences which may flow from our determination.
It is assigned for error, that the court overruled the defendant's motion for a continuance, and we will first enquire whether such decision can be assigned for error here. It is not pretended that it could be at common law. It is, however, insisted, that that right is secured under our statute. The common law prescribes no given state of facts, which shall entitle the party to a continuance in any case, but the whole subject is left entirely to the discretion of the court to which the application is made. Our legislature, by the practice act of 1827, enacted that a party should be entitled to a continuance of a cause upon filing an affidavit of certain facts, and yet this court has held that an application for a continuance was still addressed to the discretion of the court, and could not be assigned for error. Vickers v. Hill, 1 Scam. 308. This practice act, however, only applies to civil proceedings, and has never been held or supposed to apply to criminal cases. Had the courts in all criminal cases required affidavits for continuances to be as full as required under this statute, it might, and would frequently have operated most oppressively upon prisoners.
In view of such hardships, the circuit courts have hardly considered it an intimation of what should be required in an affidavit for a continuance in criminal cases; most frequently feeling themselves called upon to continue cases, especially at the first term, upon affidavits not as full as required by the statute, very frequently feeling constrained to require affidavits still more explicit, and frequently requiring the defendant's affidavit to be corroborated. Indeed, it is manifest that it would be utterly impracticable to apply that statute to criminal cases, for that entitles a party to a continuance on his own affidavit alone, if it contains the necessary statements, and it is easy to perceive that many cases would never be tried. But this act prescribes the practice in civil common law cases only, and was most manifestly never intended to apply to any others, as this court had repeatedly held, that exceptions could not be taken to the decisions of the circuit courts on motions for continuances and for new trials in civil cases.
The legislature on the 21st of July, 1837, passed a law entitled “an act to amend an act entitled an act concerning practice in courts of law,” approved 29th January, 1827, in which it is provided that “exceptions taken to opinions or decisions of the circuit courts overruling motions in arrest of judgment, motions for new trials and continuances of causes shall hereafter be allowed, and the party excepting may assign for error any opinion so excepted to, any usage to the contrary notwithstanding.”
In the revised statutes, this provision is incorporated into the chapter prescribing the practice in civil cases, to which, as originally passed, it was an amendment, and we are now to inquire whether this statute applies to criminal cases. We entertain no doubt that such was not the intention of the legislature, and that such is not its true construction. The very title of the act shows that it was only intended as an amendment to a law, which had never been pretended, and is not now pretended, to have applied to criminal cases. Its provisions are totally inapplicable, and this, of itself, would clearly show that the legislature had in view civil cases alone. As a further proof that it was not intended to apply the general practice act to criminal proceedings, we see that the legislature has, in the sixteenth division of the criminal code, gone on and fully prescribed a system of practice for the courts, when administering the criminal law, and in that division, by the 188th section, it is expressly declared, that The whole course of our legislation distinctly indicates an intention to maintain an independence between the civil and criminal jurisdiction and practice, as much as between those of the common law and chancery. For...
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