Dunn v. People of State

• Decision Date: 26 March 1884
• Parties: ROBBINS P. DUNNv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

109 Ill. 635

1884 WL 9831 (Ill.)

ROBBINS P. DUNN

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Springfield Mar. 26, 1884.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding.

Mr. THOMAS F. TIPTON, for the plaintiff in error:

A prisoner has the right to have a trial in a county where he can obtain a fair and impartial trial. Weyrich's case, 89 Ill. 90; Brennan v. The People, 15 Id. 511.

It being the policy of the law that every man charged with crime should have a fair and impartial trial, a change of venue may be awarded by consent. The People v. Scates, 3 Scam. 351.

Nor can the party object to the jurisdiction of the court to which the cause may be sent on his petition. Gardner v. The People, 3 Scam. 84; Weyrich's case, 89 Ill. 90.

The petition in this case clearly brought the prisoner within the requirements of the statute. The rule is, that whenever a prisoner, by petition verified by affidavit, brings himself within the requirements of the statute, the obligation of the judge is imperative, and admits of the exercise of no discretion. Clark v. The People, 1 Scam. 117; McGoon v. Little, 2 Gilm. 42.

It is only when the material facts are disputed that the court can pass upon the facts, as alleged. This right of change of venue has been applied by this court to cases of quo warranto, ( The People v. Shaw, 13 Ill. 581,) and is not a matter of discretion. Ensminger v. The People, 47 Ill. 384.

The case of Baum v. The People, 73 Ill. 259, was made under the statute of 1861, as was also Perteet's case, 65 Ill. 230, and Rafferty's case, 66 Id. 118. By the revision of 1874, act approved March 24, 1874, in force July 1, 1874, which is now in force, there is no discretion if the facts set up in the petition are not denied, or if there are sufficient facts that are undisputed to entitle the party to a change, and when the facts are contested the court must pass upon the same, and its findings are subject to review.

The prisoner was entitled to a continuance. Conley v. The People, 80 Ill. 236; Wray v. The People, 78 Id. 212.

The second of the People's instructions was improper, in virtually telling the jury they might disregard the defendant's testimony. Chambers v. The People, 105 Ill. 409.

When the nature and essence of a crime are made by law to depend upon the peculiar state and condition of the criminal's mind at the time, and with reference to the act done, drunkenness, as a matter of fact, affecting the state and condition of the criminal's mind, is a proper subject for consideration and inquiry by the jury. The question in such case is, “What is the mental status?” Swaim v. State, 4 Humph. 136; Lancaster v. State, 2 Lea, 575; Pirtee v. State, 9 Humph. 663; Huila v. State, 11 Id. 154; The People v. King, 27 Col. 507; The People v. Eastman, 14 N. Y. 562; The People v. Harris, 29 Col. 678; Mayne's Law of Crimes, sec. 22; The People v. Hamill, 2 Parker's Cr. Rep. 223; State v. McCautz, 1 Speer, 384; Ferrell v. State, 43 Texas, 503; State v. Johnson, 64 Conn. 130; State v. Garvey, 11 Minn. 154; Moline v. State, 49 Ga. 210; State v. Bell, 29 Iowa, 316; Shannahan v. Commonwealth, 8 Bush, 403; Roberts v. The People, 19 Mich. 401; McIntyre v. The People, 38 Ill. 521.

Mr. ROBERT B. PORTER, State's Attorney, for the People:

The proof very clearly shows that the shooting was not accidental, but intentional. The defendant's own testimony shows he was not insane, for he says: “I knew it was wrong to shoot.” All the law books make legal responsibility to depend on the ability of the accused to distinguish right from wrong. Ray's Medical Jur. sec. 242; Haskell's case, Fish on Insanity, 83; Freeman v. The People, 4 Denio, 9; Willis v. The People, 32 N. Y. 715; Chitty's Medical Jur. 354; Rex v. Offord, 5 C. & P. 168; State v. Spencer, 1 N. J. 196; Commonwealth v. Rogers, 7 Metc. 500; 1 Russell on Crimes, 8; Commonwealth v. Mosler, 4 Barr, 264.

Counsel, after reviewing and commenting upon the cases cited by plaintiff in error, contended that there was no error in refusing to grant a change of venue or a continuance.

The instruction as to a reasonable doubt was based on the celebrated cases of Commonwealth v. Harman, 4 Barr, 269, and Commonwealth v. Webster, 5 Cush. 320, and is abundantly sustained by the decisions of this court in Kennedy v. The People, 40 Ill. 488; Earll v. The People, 73 Id. 329; Smith v. The People, 74 Id. 144; Miller v. The People, 39 Id. 457; May v. The People, 60 Id. 119; Connaghan v. The People, 88 Id. 468; Pate v. The People, 3 Gilm. 644; Jackson v. The People, 18 Ill. 270.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an indictment in the circuit court of McLean county, against Robbins P. Dunn, for an assault on Phœbe Dunn, with intent to commit murder. Upon a trial before a jury the defendant was found guilty, and his term of imprisonment in the penitentiary was fixed at seven years. To reverse the judgment of the circuit court the defendant sued out this writ of error.

The first alleged error is the decision of the court overruling defendant's petition for a change of venue. The ground set up and mainly relied upon in the petition was, that certain newspapers published in Bloomington had published prejudicial accounts of the alleged assault, and as they had a standing and large circulation in the county, by reason of such publications the minds of the inhabitants of the county were prejudiced against the defendant. The State's attorney filed a denial of the allegations contained in the petition, and in support of the denial he also filed counter affidavits of certain citizens who were well acquainted in the county, who state, in substance, that no prejudice exists in the county against the defendant. Among the affidavits filed was one made by the sheriff of the county, who states that he talks about criminal cases with people from all parts of the county, and finds that there is but comparatively little interest taken in what is called the “Dunn case,” and from his knowledge of the temper of the people of the county he has no hesitation in saying that Dunn could have his case tried as fairly and impartially in McLean county as in any county in the State.

Section 22, of chapter 146, of the Revised Statutes of 1874, provides: “When the cause for the change of venue is the prejudice of the inhabitants of the county against the defendant, his petition shall set forth the facts on which he founds his belief, and the attorney on behalf of the People may deny the facts stated in the petition, and support his denial by counter affidavits, and the judge may grant or deny the petition, as shall appear to be according to the right of the case.” Here there was no dispute in regard to the publication of the newspaper articles, but the question was, whether these articles had produced a prejudice in the minds of the inhabitants of the county against the defendant. If they had, he would be entitled to a change of venue; if they had not, then it was the duty of the judge to overrule the petition. The affidavits filed by the People in support of the denial of the allegations of the petition, upon which the circuit court rendered the decision, tended to show that there was no prejudice of the inhabitants of the county against the defendant, and we are not prepared to hold that the decision of the court was contrary to the right of the case.

The alleged offence was committed on March 31, 1883. The indictment against the defendant was returned into court on the 27th day of April, 1883. On the 17th day of May following, the defendant entered a motion for a continuance of the cause until the next term of court. The court overruled the motion, and the decision is relied upon as error. One ground stated in the affidavit for a continuance is the absence of two witnesses, in the State of Pennsylvania; but it is not seriously contended that the affidavit was sufficient upon this point, as it does not appear from the affidavit but the same facts might be proven by other witnesses. The main ground relied upon in the affidavit for a continuance was, that counsel for defendant had been so occupied with other cases in the circuit and Appellate courts that he had not sufficient time and opportunity to prepare the case for trial. A defendant, as a general rule, should not be compelled to go to trial, after an indictment has been found, until he has had a reasonable time to prepare his case for trial; but in this case the alleged offence was committed on March 31, and the defendant was then arrested. He and his counsel then knew the nature and character of the offence, and then knew as well what the defendant would be called upon to meet, as they did after the indictment was found. Here was a period of forty-seven days from the time of arrest before the defendant was required to go to trial, and twenty days after indictment, in which he might prepare for trial, and from the nature and character of the case, as disclosed by the record, it is apparent that defendant had ample time to prepare for trial.

The court gave ten instructions on behalf of the People, and objection is made to all of them except the first, fourth and eighth. The second instruction announced the well-known rule that the credibility and weight to be given to the testimony of the defendant was a matter for the jury, and in weighing the defendant's evidence they had the right to take into consideration his manner of testifying, the reasonableness of his account of the transaction, and his interest in the result. The rule applied to the defendant may be adopted in regard to the testimony of any witness called to testify in a case, and no error is perceived in this charge to the jury. The third merely follows the language of the statute, which declares that drunkenness is no excuse for crime,--and we held in Fitzpatrick v. The People, 98 Ill. 270, that such...