Earll v. People of State

• Decision Date: 30 September 1874
• Citation: 73 Ill. 329,1874 WL 8987
• Parties: CHARLES EARLLv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

73 Ill. 329

1874 WL 8987 (Ill.)

CHARLES EARLL

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

September Term, 1874.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. WM. W. FARWELL, Judge, presiding.

Mr. JOHN LYLE KING, and Mr. JOHN L. DORAN, for the plaintiff in error.

Mr. CHARLES H. REED, State's Attorney, for the People.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an indictment against Charles Earll, the plaintiff in error, for the murder of Rosetta Jackson, death having been caused by means of a criminal abortion produced upon her. A trial was had in the Criminal Court of Cook county, before a jury, resulting in a verdict of guilty of manslaughter, and the term of defendant's imprisonment was fixed at one year in the penitentiary. The court overruled a motion for a new trial, and rendered judgment upon the verdict. The defendant brought the record here by writ of error, and has assigned various errors to obtain a reversal of the judgment.

The first point relied upon by the plaintiff in error is, that the court erred in overruling a challenge to the array of jurors, for the reason the jury were not drawn or summoned in the manner provided by law.

The bill of exceptions contained in the record does not show that a challenge was interposed to the array, or any order or judgment of the court in regard thereto. It is true, the clerk of the criminal court has attached to the record a copy of a paper filed, which purports to be a written challenge to the array of jurors, signed by the attorneys of the defendant, and also a copy of an affidavit of the defendant, containing a statement of facts upon which the challenge was based; but these papers do not become a part of the record by the mere act of the clerk. Saunders v. McCollins, 4 Scam. 419.

Motions entered in a cause, and affidavits and other papers filed in support of the motion, and the decision of the court thereon, and exceptions taken, in order to become a part of the record should be incorporated in a bill of exceptions, and thus preserved in the record, otherwise the decision of the court will not be considered in the appellate court.

A challenge to the array of jurors necessarily involves the hearing of proof by the court, to determine whether it is well taken or not, and we are aware of no manner in which the evidence heard on the question or the action of the court can become a part of the record, unless made so by bill of exceptions.

A question, not unlike the one here, arose in the case of Holmes v. The People, 5 Gilm. 478, in which the court said, there is nothing in the record on which to base the assignment of error that the court erred in ordering a special jury to be summoned. For aught appearing to the contrary, the jurors who tried the prisoners were taken from the regular panel. The affidavit of the deputy sheriff is not properly a part of the record. It should have been introduced into the record by a bill of exceptions.

It is insisted that the plaintiff in error, having been indicted for murder, if not found guilty of that crime by the jury should have been acquitted--that as he was indicted for murder, the jury could not convict of manslaughter.

The statute under which this indictment was found, declares: “If any person shall, in the attempt to produce the miscarriage of a pregnant woman, thereby cause and produce the death of such woman, the person so offending shall be deemed guilty of murder, and shall be punished as the law requires for such offenses.”

By the express provision of the statute, the crime for which the plaintiff in error was indicted is declared to be murder, and unless there is some provision in the law which will take the crime of murder, caused by an abortion, out of the application of the general rule which governs and controls the same crime produced in another manner, then the rules of law which apply to and govern ordinary cases of murder must be held to control the case at bar. The act declares, the attempt to produce the miscarriage of a pregnant woman, which causes the death of such woman, shall be murder, and the penalty for the crime is the same as if murder had been committed in a different manner. An indictment is required as in other cases. The trial is conducted, in all respects, as is required where a criminal is on trial for murder caused by killing in some other manner; and in the absence of a law prohibiting a verdict of manslaughter, we are aware of no reason why a verdict of that character may not be found by the jury as well in a case of this character as under any other indictment for murder.

The indictment upon which the plaintiff in error was tried being for murder, and the jury having returned a verdict of guilty of manslaughter, a brief reference to the authorities will fully sustain the finding of the jury.

In Chitty's Criminal Law, vol. 1, page 638, the rule is stated as follows: “And where the accusation includes an offense of inferior degree, the jury may discharge the defendant of the higher crime and convict him of the less atrocious. Thus, upon an indictment for burglariously stealing, the prisoner may be convicted of the theft and acquitted of the nocturnal entry. Upon an indictment for murder he may be convicted of manslaughter.”

In Beckwith v. The People, 26 Ill. 500, it was held, that on an indictment for an assault with an intent to commit murder, the jury could convict for an assault with a deadly weapon, with intent to inflict a bodily injury, as on the ground that where an indictment charges wrong acts, with certain aggravations constituting a high crime, the jury may convict the prisoner of a lesser crime, consisting of only a portion of those acts or with less aggravation.

In the case of Prindeville v. The People, 42 Ill. 220, the same question arose, and it was fully considered and the authorities reviewed. In deciding the point the court said: “From all the authorities, we are satisfied that the general rule is, that where a higher and more atrocious crime fully embraces all of the ingredients of a lesser offense, and where the evidence requires it, the jury may convict of the latter.”

In the case of Yoe v. The People, 49 Ill. 410, this court said: “It has been often decided by this court, that a party indicted for murder may be found guilty of manslaughter, and...