O'Donnell v. Peopel

• Decision Date: 22 December 1906
• Citation: 224 Ill. 218,79 N.E. 639
• Parties: O'DONNELL v. PEOPEL.
• Court: Illinois Supreme Court

224 Ill. 218

79 N.E. 639

O'DONNELL

v.PEOPEL.

Supreme Court of Illinois.

Dec. 22, 1906.

Error to Criminal Court, Cook County; John Gibbons, Judge.

Michael O'Donnell was convicted of an assault with intent to rob, and he brings error.Affirmed.Julius Limbach and Limbach & Ledbetter, for plaintiff in error.

W. H. Stead, Atty. Gen., and John J. Healy, State Atty.(William A. Rettenhouse and F. L. Barnett, of counsel) for the People.

Plaintiff in error was jointly indicted with John E. Mulholland, by the grand jury of Cook county, for an assault with an intent to rob Joseph E. Dorgan.Mulholland entered a plea of guilty, and subsequently, on the trial of plaintiff in error, he was a witness and testified for the people.The case against plaintiff in error was regularly reached for trial on the 20th day of June, 1906, and the trial was commenced, and after four jurors had been selected and sworn the assistant state's attorney in charge of the case discovering some informality in the indictment, entered a nolle prosequi.On the same day the evidence was presented to the grand jury, which was then in session, and another indictment was returned charging the same offense.A motion to quash the indictment was made and overruled, after which a special plea was presented by plaintiff in error setting up the proceeding under the first indictment as a bar; the contention being that plaintiff in error had once been put in jeopardy for this offense.The court sustained a demurrer to this plea.Plaintiff in error then moved for a continuance on the ground that the last indictment returned against him constituted a new case, and that it should not be tried until all cases standing ahead of it on the calendar were disposed of.This motion the court overruled, and a trial was had resulting in the conviction and sentence of plaintiff in error to the penitentiary for an indeterminate term, in accordance with the verdict.The evidence on behalf of the people shows that about 12:15 o'clock on the morning of March 21, 1906, Mulholland, a man who is known by the name of ‘Curley,’ and plaintiff in error went to the ticket office of the Western Indiana Railroad elevated station at Forty-Seventh street and Western Indiana tracks.They had previously planned a raid on this station with the intention of blowing a safe therein and stealing its contents.The evidence shows that plaintiff in error had located the safe some time before this, and that he was the chief conspirator in the criminal enterprise.Upon arriving at the station plaintiff in error and ‘Curley’ advanced to the door of the station, leaving Mulholland about 20 paces away as a watch.The prosecuting witness, Joseph E. Dorgan, was a watchman and was inside the station, and when plaintiff in error and his confederate approached the door Dorgan opened the door, and one of the men inquired about the Wabash train.Dorgan positively identified plaintiff in error as the person who inquired of him concerning the train.One of the men then jumped into the waiting room and grabbed Dorgan, and a struggle ensued, in which two or three shots were fired, and one of the assaulting party called out, ‘Come on, John.’Dorgan succeeded in getting a pistol in the office and the parties were frightened away, running north and west into the Wabash yards.Mulholland ran toward Forty-Fifth street and was arrested by Officer Birmingham about three minutes after the shots were fired.Plaintiff in error was arrested about an hour later at Root and Halsted streets by Officer Fogarty.At the time plaintiff in error was arrested the officer found a revolver on his person which was loaded, except one chamber, which held an empty shell which smelled strongly of powder when the officer drew out the empty shell.Plaintiff in error was taken to the police station and Dorgan came there about 3 o'clock in the morning and identified him as one of the parties who had been at the station and assaulted him some three hours before.On behalf of plaintiff in error two witnesses testify that they were with plaintiff in error from 7:30 o'clock in the evening all of the time until a few minutes before he was arrested.These witnesses also testify that during that evening plaintiff in error found a pistol in a toilet room, and which was examined so critically by the witnesses that they were able to testify that it had one empty cartridge in it.There was also some evidence introduced, furnished by prisoners who had been in jail with Mulholland, tending to show that he had made certain statements to the effect that he was to be discharged if he would testify implicating plaintiff in error.These statements were, however, denied by Mulholland.

VICKERS, J.(after stating the facts).

1.Error is assigned upon the overruling of the motion to quash the indictment.The point is made that the record does not affirmatively show that the grand jury that returned the indictment were sworn by the form of oath prescribed by the statute.The recital in the record upon this question is that ‘the grand jurors aforesaid were duly sworn and charged by the court and thereupon retired to consider their presentments.’The word ‘duly’ has acquired a fixed legal meaning, and when used before any word implying action it means that the act was done properly, regularly, and according to law.It is often used before such words as ‘convened,’ arrested,' ‘qualified,’‘served,’‘presented,’‘discharged,’ and many others, and has in such cases the meaning of the word ‘legally’ or ‘properly,’‘according to law.’See10 Am. & Eng. Ency. of Law (2d. Ed.)p. 315, and cases there cited.The recital that the jurors were duly sworn is all that the law requires.It is not necessary that the record should show the particular form of oath that was administered.

It is next insisted that the indictment should have been quashed, for the reason that the name of the prosecuting witness is stated to be ‘Joseph E. Dorgan’ in one part of the indictment and ‘Joseph E. Durgan’ in another.In our opinion this objection is answered by the rule of idem sonans.Under this rule absolute accuracy is not essential in the spelling of names in legal documents or proceedings, either civil or criminal.The rule is stated to be that if the name, when pronounced, conveys practically the same sound as the correct name as correctly pronounced, the misspelling of the name is not a variance, and no advantage can be taken of the clerical error.There was no error in overruling the motion to quash the indictment.

2.It is next urged that the court erred in sustaining the dumurrer to the plea of former jeopardy.This contention is based on the facts set out in the special plea, which showed that the trial was entered upon and that four jurors were sworn to try the cause, and that the indictment was thereupon nolle prossed by the state's attorney.No authority has been submitted, and it is believed that none can be found, holding that this proceeding amounted to a putting of plaintiff in error in jeopardy, within the meaning of the constitutional provision on that subject.The trial and jeopardy begin when the accused has been arraigned and the jury impaneled and sworn.May on Crim. Law, § 117.Even after the jury has been sworn, the trial completed and the cause submitted to the jury, if for good cause, such as failure to agree, sickness of a juror, or the expiration of the term of court, the judge should discharge the jury without a verdict, the prisoner could not plead a former jeopardy to a second trial for such offense.May on Crim. Law, § 118;State v. Vaughan, 29 Iowa, 286;State v. Wilson, 50 Ind. 487, 19 Am. Rep. 719;Simmons v. United States, 142 U. S. 148, 12 Sup. Ct. 171, 35 L. Ed. 968.The demurrer to the plea was properly sustained.

3.It is next urged that the court erroneously refused to continue the case after the return of the second indictment, and that the trial of the case on this indictment was trying the case out of its regular order.The case had been reached in regular order and stood for trial when it was called, and the fact that the prosecuting attorney deemed it advisable to procure a more specific charge in the indictment on the same facts which were relied on for a conviction under the former indictment does not make this a new case.The new indictment was properly substituted for the defective one. and since no showing was made that additional proof was thereby made necessary, or that plaintiff in error was otherwise take by surprise by the return of this second indictment, he was properly put upon trial under it.In our opinion this proceeding should be governed largely by the rules applicable to amendments.While an indictment is not amendable by the state's attorney, yet the same thing is accomplished when a new indictment is returned to obviate defects in a previous one.There was no cause shown in the affidavit filed in this case justifying the court in continuing the case, and the motion for that purpose was properly overruled.

4.The next assignment of error questions the ruling of the trial court upon the admission of evidence.The record shows that counsel for plaintiff in error made an unnecessarily large number of objections, most of which were general; no reason being suggested why they were interposed.All the evidence objected to was proper, except that relating to the conviction of McCann of a number of felonies, which was proven by parol.Under the decisions of this court in Bartholomew v. People, 104 Ill. 601, 44 Am. Rep. 97,Matzenbaugh v. People, 194 Ill. 108, 62 N. E. 546,88 Am. St. Rep. 134, andMcKevitt v. People, 208 Ill. 460, 70 N. E. 693, the admission of parol evidence to show these several convictions is clearly erroneous, and the materiality of the evidence given by the witness McCann is such that we would feel compelled to reverse for the error had the objections...