Durden v. People

• Decision Date: 24 October 1901
• Citation: 61 N.E. 317,192 Ill. 493
• Parties: DURDEN v. PEOPLE.
• Court: Illinois Supreme Court

192 Ill. 493

61 N.E. 317

DURDEN

v.PEOPLE.

Supreme Court of Illinois.

Oct. 24, 1901.

Error to circuit court, Pulaski county; A. K. Vickers, Judge.

George Durden was convicted of murder in the first degree, and he brings error. Reversed.

H. A. Mason, L. G. Caster, and H. G. Carter, for plaintiff in error.

H. J. Hamlin, Atty. Gen., and George E. Martin, State's Atty. (B. D. Monroe, of counsel), for the People.

MAGRUDER, J.

Many errors are assigned upon this record, but we deem it necessary to consider only one. The trial of the case commenced on January 21, 1901, before the Hon. Joseph P. Robarts, one of the judges of the First judicial circuit of the state of Illinois, who heard all the evidence in the case, and the opening argument for the prosecution, and a portion of the arguments of counsel for plaintiff in error, and presided at the trial and conducted the same up to and until the close of the 30th day of January, 1901. On the 30th day of January, 1901, the Hon. Joseph P. Robarts vacated the bench as presiding judge, and left the county of Pulaski; and thereafter took no part in the trial of the cause, nor in any of the other proceedings therein, until the hearing of the motion for a new trial on February 25, 1901, which he overruled. This vacation of the bench was without the knowledge or consent of the plaintiff in error or his counsel, or either of them. On January 31, 1901, the Hon. A. K. Vickers, another one of the judges of the First judicial circuit of the state, took the place of the Hon. Joseph P. Robarts on the bench, and thereafter acted as the presiding judge in the case, against the protest of the plaintiff in error. Hon. A. K. Vickers thereafter heard the closing argument of one of the counsel for plaintiff in error, and the closing argument of the prosecution, and gave all the instructions to the jury which were given, and refused certain instructions offered by the plaintiff in error. He also received the verdict of the jury, and adjourned court until February 4, 1901. There are two bills of exceptions in the cause, one signed by the Hon. Joseph P. Robarts, showing the proceedings taken before him, including the evidence and the overruling of the motions for new trial and in arrest of judgment. Another bill of exceptions is signed by the Hon. A. K. Vickers, showing the proceedings taken before him, including the instructions given to the jury and the instructions refused, and also the return of the verdict by the jury. The bill of exceptions signed by the Hon. A. K. Vickers shows, among other things, the following proceedings, to wit: ‘Be it remembered that, during the progress of this trial, and on the 31st day of January, A. D. 1901, the Hon. A. K. Vickers, judge, takes the place of the Hon. Joseph P. Robarts on the bench, said exchange of judges occurring during the closing argument on behalf of the defendant, and said Hon. A. K. Vickers, judge, so presiding, made the following rulings, during the progress of said trial; that is to say: * * * Now, on this day, 31st day of January, A. D. 1901, being the tenth day since the commencement of the trial of this case, comes the defendant and objects to the action of the Hon. Joseph P. Robarts this day, without the consent of this defendant or any notice to him, vacating the bench at this stage of the proceedings and placing thereon another judge to preside in his place; and he also objects to the court reporter absenting himself with his notes of the evidence in this case without the knowledge or consent of this defendant; and exception is hereby taken by George Durden, defendant in this case.’ The bill of exceptions shows the order of court overruling defendant's objections, as above made, and exceptions thereto. It then recites that the trial proceeded before the Hon. A. K. Vickers, judge, and argument was concluded. It further recites as follows: ‘And thereupon the court gave and read to the jury for and on behalf of the people, plaintiff, the following instructions over the objections of the defendant, to wit.’ Then follow 20 instructions given to the jury by the Hon. A. K. Vickers for and on behalf of the people, each of which is marked ‘Given.’ Exceptions were taken by the defendant to the giving of each of said last-named instructions. The bill of exceptions then proceeds to recite as follows: ‘And thereupon the court for and on behalf of the defendant read to the jury the instructions following, which said instructions had before that time been passed upon, approved, and marked ‘Given’ by the Hon. Joseph P. Robarts while presiding upon the trial of said cause, and before the said Hon. A. K. Vickers came to preside upon said trial.' Then follow instructions numbered from 1 to 18, inclusive, given and read to the jury for and on behalf of the plaintiff in error. The bill of exceptions then recites that plaintiff in error, by his counsel, then and there asked the court to also give and read to the jury instructions numbered 19 and 20, for and on behalf of the plaintiff in error, but that the court refused to give and read the said instructions to the jury, to which refusal plaintiff in error, by his counsel, then and there excepted. The court then gave to the jury instructions in regard to the form of their verdict. The bill of exceptions, signed by Judge Vickers, closes as follows: ‘And, upon the return by said jury of said verdict, the defendant then and there by his counsel excepted to said verdict, and moved the court to set aside said verdict, and grant the defendant a new trial in said cause, whereupon the said presiding judge, A. K. Vickers, stated that Hon. Joseph P. Robarts, one of the judges who had presided at this trial, would consider the motion for a new trial on Monday, February 4, A. D. 1901, whereupon the said circuit court was adjourned to the fourth day of February, A. D. 1901.’

The foregoing proceedings, consisting of the vacation of the bench by Judge Roberts, and the conduct of the trial thereafter by Judge Vickers, are assigned as error by the plaintiff in error. Several significant facts are involved in this assignment of error. Before the trial of the case was concluded, and before the argument in favor of the prisoner was finished, the judge who had presided at the trial up to that time left the bench, and another judge who, so far as this record shows, knew nothing about the proceedings which had taken place up to that time, took his place upon the bench, and presided during the rest of the trial, and gave the instructions to the jury, and received the verdict. It appears from the bill of exceptions that the instructions, which were given for the defendant, had been passed upon and marked ‘Given’ by Judge Robarts before he left the bench. They were read to the jury by Judge Vickers. Judge Vickers, however, gave and read to the jury all the instructions which were given for the state, and himself passed upon the same, and approved of the same, and marked the same ‘Given.’ We regard this assignment of error as being well taken. It requires a reversal of the cause, and therefore we pass no opinion upon the facts. It is well settled that ‘the argument of a cause is as much a part of the trial as the hearing of evidence.’ Meredeth v. People, 84 Ill. 479;Thompson v. People, 144 Ill. 378, 32 N. E. 968;State v. Carnagy, 106 Iowa, 487, 76 N. W. 805;Ellerbe v. State, 75 Miss. 527, 22 South. 950;State v. Beuerman, 59 Kan. 586, 53 Pac. 874. It is also a general rule, established by the weight of authority, that, in prosecutions for felonies, the continual presence of the judge during the entire course of the trial is essential; and it is expressly held in many decisions that, in the trial of capital cases, the judge should not retire from the bench, even for a brief absence, without orderinga suspension of business until his return. 21 Enc. Pl. & Prac. pp. 978, 979, and cases referred to in notes. It is claimed here, however, on the part of the state, that, during the trial of this case, the bench was at no time vacant, because, as soon as one circuit judge left the bench, another circuit judge, having equal power and belonging to the same circuit, took his place. The court, it is said, was the same during the whole of the trial, although two different persons presided during the trial at different times. In justification of the proceeding here under consideration section 62 of chapter 37 of our statutes, entitled ‘Courts,’ is referred to. That section provides that ‘judges of the several circuit courts of this state may interchange with each other and * * * may hold court or any branch of the court for each other, and perform each other's duties, where they find it necessary or convenient.’ 1 Starr & C. Ann. St. (2d Ed.) p. 1160. The vacation and substitution which took place in this case find no justification in the section thus referred to. A prisoner on trial for his life is entitled to the judgment of the judge who has heard the evidence in the case and conducted the trial thereof. The instructions given by a judge must be based upon the facts, and necessarily involve an application of the law to the particular facts of the case. Here, the instructions given for the state were given by a judge who heard none of the evidence. Two instructions asked by the defendant were refused by a judge who heard none of the evidence. It is true that the absence of one judge from the bench before the close of the trial was followed by the presence of another judge of equal power and jurisdiction. It is also true that circuit judges may hold court for each other and perform each other's duties where they find it necessary or convenient. But this does not involve the right or power of one judge to finish for another the performance of a duty already entered upon by the latter, when that duty involves the exercise of judgment and the application of legal knowledge and judicial deliberation to facts known to the...