Edward Dreyer v. People of the State of Illinois

Decision Date10 November 1902
Docket NumberNo. 37,37
Citation47 L.Ed. 79,23 S.Ct. 28,187 U.S. 71
CourtU.S. Supreme Court

[Syllabus from pages 71-72 intentionally omitted] By an indictment returned in the criminal court of Cook county, Illinois, on the 4th day of February, 1899, the plaintiff in error, Dreyer, was charged with the offense of having failed to turn over to his successor in office, as treasurer of the West Chicago park commissioners, revenues, bonds, funds, warrants, and personal property that came to his hands as such treasurer, of the value of $316,013.40,—said commissioners constituting a board of public park commissioners appointed by the governor and confirmed by the senate of Illinois, and, as such, having the supervision of the public parks and boulevards in the town of West Chicago, and authority under the law to collect and disburse moneys, bonds, etc., for their maintenance.

The indictment was based on § 215 of the Criminal Code of Illinois, which is as follows:

'If any state, county, town, municipal, or other officer or person who now is or hereafter may be authorized by law to collect, receive, safely keep, or disburse any money, revenue, bonds, mortgages, coupons, bank bills, notes, warrants, or dues, or other funds or securities belonging to the state or any county, township, incorporated city, town, or village, or any state institution, or any canal, turnpike, railroad, school, or college fund, or the fund of any public improvement that now is or may hereafter be authorized by law to be made, or any other fund now in being or that may hereafter be established by law for public purposes, or belonging to any insurance or other company or person required or authorized by law to be placed in the keeping of any such officer or person, shall fail or refuse to pay or deliver over the same when required by law, or demand is made by his successor in office or trust, or the officer or person to whom the same should be paid or delivered over, or his agent or attorney, authorized in writing, he shall be imprisoned in the penitentiary not less than one nor more than ten years: Provided, Such demand need not be made when, from the absence or fault of the offender, the same cannot conveniently be made: And provided, That no person shall be committed to the penitentiary under this section unless the money not paid over shall amount to $100, or if it appear that such failure or refusal is occasioned by unavoidable loss or accident. Every person con- victed under the provisions of this section shall forever thereafter be ineligible and disqualified from holding any office of honor or profit in this state.' Hurd's Rev. Stat. 1901, § 215, p. 630.

A trial was commenced on the 29th day of August, 1899, and a jury was impaneled and evidence heard. The jury, not having agreed upon a verdict, were discharged.

A second trial was begun on the 19th day of February, 1900. The defendant filed a plea of once in jeopardy, which in substance averred that it was not true, as recited in the order of court at the previous trial, that the jury were unable to agree upon a verdict; also, that the discharge of the jury was without the defendant's assent, was against his objections made at the time, and was without any moral or physical necessity justifying such a course on the part of the trial court.

On motion of the state the plea of former jeopardy was stricken from the files, the defendant at the time excepting to the action of the court.

There was a second trial, which resulted in the defendant being found 'guilty of failure to pay over money to his successor in office, in manner and form as charged in the indictment,' the jury stating in the verdict the amount not paid over to be $316,000, and imposing the punishment of confinement in the penitentiary.

The defendant, upon written grounds filed, moved for a new trial, and also moved in arrest of judgment. Both motions were overruled, and it was ordered and adjudged that the defendant be sentenced to the penitentiary 'for the crime of failure to pay over money to his successor in office, whereof he stands convicted.'

The judgment of the trial court having been affirmed by the supreme court of Illinois, the case is here upon writ of error allowed by the chief justice of that court.

Messrs.Alfred S. Austrian, T. A. Moran and Levy Mayer for plaintiff in error.

Messrs.H. J. Hamlin and

Charles S. Deneen for defendant in error.

Mr. Justice Harlan, after stating the facts as above reported, delivered the opinion of the court:

It is contended that the judgment of the supreme court of Illinois, affirming the judgment, in the present case, of the criminal court of Cook county, in that state, denied to the plaintiff in error certain rights secured to him by the Constitution of the United States, particularly by the clause of the 14th Amendment forbidding a state to deprive any person of liberty without due process of law.

The defendant insists that three questions, involving rights secured by the Constitution of the United States, are presented by the assignments of error:

1. The first of those questions, as stated by his counsel, relates to the alleged 'omission to swear the bailiffs in the manner prescribed by the common law and the statutes of the state of Illinois before the jury retired to consider of their verdict.' This point will be first examined.

The Criminal Code of Illinois provides: 'When the jury retire to consider of their verdict, in any criminal case, a constable or other officer shall be sworn or affirmed to attend the jury to some private and convenient place, and to the best of his ability keep them together without meat or drink (water excepted), unless by leave of court, until they shall have agreed upon their verdict, nor suffer others to speak to them, and that when they shall have agreed upon their verdict he will return them into court: Provided, In cases of misdemeanor only, if the prosecutor for the People and the person on trial, by himself or counsel, shall agree, which agreement shall be entered upon the minutes of the court, to dispense with the attendance of an officer upon the jury, or that the jury, when they have agreed upon their verdict, may write and seal the same, and after delivering the same to the clerk, may separate, it shall be lawful for the court to carry into effect any such agreement, and receive any such verdict so delivered to the clerk as the lawful verdict of such jury.' Hurd's (Ill.) Rev. Stat. 1901, § 435.

Referring to this section the supreme court, in the present case, said that it was reversible error, in a trial for a felony, to allow the jury to retire for the purpose of considering their verdict without being placed in charge of a sworn officer, as required by the statute,—citing McIntyre v. People, 38 Ill. 514, 518; Lewis v. People, 44 Ill. 452, 454; Sanders v. People, 124 Ill. 218, 16 N. E. 81; and Farley v. People, 138 Ill. 97, 27 N. E. 927. In Lewis v. People, just cited, the court observed that the provisions of the above section 'show the great care and solicitude of the general assembly to secure to every person a fair and impartial trial; and it is eminently proper, as in many cases the accused is imprisoned and it is not in his power to protect his rights from being prejudiced by undue influences. It should ever be the care of courts of justice to guard human life and liberty against being sacrificed by public prejudice or excitement. The jury should be entirely free from all outside influences from the time they are impaneled until they return their verdict and it is accepted and they discharged, and the legislature have determined that the provisions of this statute are necessary to accomplish the object. It is a provision easily complied with, and one member of the court, at least, has never, in practice, seen it dispensed with, except in cases of misdemeanor. The provisions of the statute are clear, explicit, and peremptory. We know of no power, short of its repeal, to dispense with this requirement.'

But the court further said: 'The point of controversy in the present case is not, however, whether it is reversible error to fail to comply with the statute, but whether the question is properly raised upon this record. No objection or exception was taken by the defendant, at the time of the retirement of the jury, that the officers in charge of it were not sworn, but the question was raised by him for the first time on his motion for new trial, one of the grounds of that motion being 'that when the jury retired to consider of their verdict in said case, no constable or other officer was sworn or affirmed to attend the jury, in manner and form as provided by the statute of the state of Illinois.' . . . Affidavits made by the bailiffs them- selves, and by an assistant of the prosecuting attorney, who participated in the trial, tend to prove that the oath administered was in the statutory form, but these affidavits also show that the only oath administered to them was on the 21st day of February, immediately after the impaneling and swearing of the jury. It is shown by the bill of exceptions that the trial was not concluded and the jury finally sent out, until February 28th, so that, even by the proof made on behalf of the people, the only oath taken by the bailiffs was some six days prior to their retirement with the jury, and prior to the introduction of evidence, and the subsequent steps of the trial. This cannot be held to be a compliance with the requirement of the statute that 'when the jury shall retire to consider of their verdict,' etc.; 'a constable or other officer shall be sworn,' etc. To swear the bailiffs immediately upon the jury being sworn, and prior to the introduction of the evidence, the arguments of counsel, and instructions of the court,—six or seven days prior to the retirement of the jury to consider of...

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