Clark v. People of State

CourtSupreme Court of Illinois
Citation1833 WL 2696,1 Scam. 117,2 Ill. 117
PartiesREUBEN CLARK, plaintiff in error,v.THE PEOPLE OF THE STATE OF ILLINOIS, defendants in error.
Decision Date31 December 1833
OPINION TEXT STARTS HERE

THIS action was tried at the March term, 1833, of the Hamilton Circuit Court, before the Hon. Thomas C. Browne.

The jury returned a verdict of guilty against Reuben Clark, the plaintiff in error, and the Court gave sentence that he should be imprisoned in the county jail three weeks, pay a fine of $360 and the costs of the prosecution, and that he should be publicly whipped thirty-nine lashes on his bare back.

The errors assigned are:

1. The refusal of the Court to grant a change of venue.

2. The refusal of the Court to quash the indictment.

WALTER B. SCATES, for the plaintiff in error, made the following points, and cited the annexed authorities:

1. The indictment does not charge the crime to have been committed with a felonious intent.

2. It does not state the value of the property burned.

3. There is error in the judgment of the Court in overruling the defendant's motion for a change of venue.

At common law the venue must be laid where the offense was committed. 1 Chit. C. L. 177, 178; 4 Blac. Com. 303. And at common law the venue was matter of substance. 1 Chit. C. L. 177. And so strict was the law in this respect, that where an offense was commenced in one county and consummated in another, it could be tried in neither (except some crimes, as larceny in some cases). 1 Chit. C. L. 178; 4 Blac. Com. 303.

But this strictness has been remedied by statutes, so that the defendant may be tried where the death happened, or the guilt was contracted, or the offense consummated, or where the offender was apprehended, or in the adjacent county, or in any county. 1 Chit. C. L. 179, 180, 181, 182. But notwithstanding this great strictness of the common law, the Court possessed a discretionary power to change the venue when a fair and impartial trial could not be had in the county. 1 Chit. C. L. 201, 327, 494, 495. The courts at common law possessed the like power in civil cases. 1 Tidd's Pr. 548-9. A certiorari lay at common law to remove an indictment at any time before trial, which was one mode of changing the venue. 1 Chit. C. L. 327, 371, 378. 4 Blac. Com. 320, 321. See further as to venue, 2 John. Dig. 276, 278.

Penal statutes must be construed strictly, and in favor of life and liberty. 4 Blac. Com. 86, 89, and notes; 4 Blac. Com. 373, 240 (note 10), 375-6, 397, 401; 1 Chit. C. L. 218; Foster's C. L. 78, 355-8. 1 Am. Dig. 269; 2 Am. Dig. 285, 495; 2 East, C. L. 592-3, 614-15, 629; Stat. 10, 11 Wm. 642-3, 1099.

In capital cases, the defendant stands upon all his rights, and can not consent to his prejudice. Breese, 109. Foster, 126, 355-6; and by the Constitution of this State, an impartial trial by jury is secured to every man. § 9, Article 8. See also Foster C. L. 398. And the statute providing the mode of changing the venue is peremptory that the court shall award a change when the application is made in the mode and for the causes set out in the statute. (R. L. 607; Gale's Stat. 682.)

There is error in the judgment of the Court in overruling the defendant's motion to quash, and sustaining the indictment.

Arson is felony at the common law, 4 Blac. Com. 94, 221-2; 2 East C. L. 1015, 1021, and must be malicious. 4 Blac. Com. 222; 2 East, C. L. 1019, 1033.

The criminal intention must accompany the act, and from the intention alone is it determinable whether the act be criminal or innocent. It is alone punishable, being the very gist of the charge, and certain technical words alone express that intention according to the different degrees of guilt, and they can not be supplied by any circumlocution or inference. 1 East, C. L. 446-7. As in burglary, a mere breaking and entry does not constitute and complete the offense, but it is necessary to charge and prove a felonious intent; and that charge is contained alone in the words burglariously and feloniously. 1 Chit. C. L. 172, 242-3; 4 Blac. Com. 307, 338-9; Foster's C. L. 108; 2 East, C. L, 513-14, 778, 816, 1015, 1021, 1028-9, 1033.

The same doctrine applies to other felonies.

Not guilty puts in issue not only the facts but the intent of the party, and feloniously in felony is the gist of the charge. 4 Blac. Com. 338-9; Breese, 197, 198, 199; 1 Chit. C. L. 471-2, 242, 245, 251 a.

Felonies must be charged to be committed feloniously; but if an act be charged to be committed feloniously, and it amount to a trespass only, the indictment will be bad. 1 Chit. C. L. 172, 242, 245; 1 East, C. L. 346; 4 Blac. Com. 307, 334.

If a statute create an offense, or changes a common law offense, or alters the punishment, to inflict the statutory punishment, its language must be pursued in describing the offense; and it must likewise possess the common law requisites in charging the intent. 1 Chit. C. L. 281, 276, 282, 218; 1 Hale P. C. 174; 4 Blac. Com. 208, 307, 338; Bac. Abr. Indict. G. 1; 1 East C. L. 346, 414, 412-15-20; 2 East C. L. 576-7, 706, 985, 1006-7; 1106-7, 116-7; Breese, 197.

The same rules apply to indictments under statutes as at common law. 1 Chit. C. L. 275 et seq.

And all the precedents at common law and under statutes, support this doctrine. 4 Blac. Com. 307, 335, 338-9, 347, and appendix 2, 4; 1 East C. L. 346, 345, 414, 412, 415-20; 2 East C. L. 512, 513, 783, 979, 987, 1007, 1021, 1034; 1 Chit. C. L. 172, 242; Breese, 197-9.

Acts derogatory to the common law, are construed strictly. 1 Blac. Com. 89.

Our statute has not repealed the common law in its technicality in charging the intent to determine the degree of guilt; but if at all, only in the description of the offense or acts that constitute it. C. Code, §§ 58, 152; 1 East C. L. 412, 414-20; 2 East C. L. 577; 804-5, 1061-2; and the defendant can not be convicted of felony under this indictment, but only of a misdemeanor. 1 Chit. C. L. 637-8; 2 East C. L. 1030-31; R. L. C. Code, § 59; for the indictment can not be amended. 1 Chit. C. L. 279; 1 Stark. Ev. 252-3; 1 Same, 250, A. E. note 1; R. L. 67, § 14.

All the rules (with that exception, etc.) that apply to civil pleadings, apply with greater strictness to criminal; and an indictment should be as clear, explicit and certain as a declaration. 1 Saund. 250 d. e. note 1; 1 Stark. 252-255; 1 Chit. Pl. 216-257, 255; 4 Blac. Com. 306-7, and notes; 1 Chit. C. L. 169-175, 280-1; Breese, 4.

The indictment is defective in not stating the value of the property, as, if the property be valueless, it would be no offense, the law requiring the Court to pronounce judgment of fine at least to the amount of the value of the property. R. L. 133, § 58; 2 East C. L. 778; 1 Stark. Ev. 252-55; 1 Chit. Pl. 216-37, 255; 4 Blac. Com. 306-7, and notes; 1 Chit. C. L. 169-175, 280-1; 1 Saund. 250 d. e. note 1; Breese, 4.

Where several are indicted together, and the joint prosecution appears oppressive, the Court may in its discretion quash the indictment. 1 Chit. C. L. 269; for it does not deprive them of any right, not even of their full number of challenges. 1 Chit. C. L. 535; and if they refuse to join in their challenge, they must be tried separately; Ibidem; Foster's C. L. 21 106-7. J. SEMPLE, Attorney General, for the defendants in error.

WILSON, Chief Justice, delivered the opinion of the Court:

The plaintiff in error was indicted with three others for the crime of arson. Upon the calling of the cause, he moved the Court for a change of venue. The motion was founded on an affidavit in the usual form, and...

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