Fielden v. People

• Decision Date: 16 May 1889
• Citation: 128 Ill. 595,21 N.E. 584
• Parties: FIELDEN et al. v. PEOPLE.
• Court: Illinois Supreme Court

128 Ill. 595

21 N.E. 584

FIELDEN et al.

v.PEOPLE.¹

Supreme Court of Illinois.

May 16, 1889.

Error to criminal court of Cook county; JOSEPH E. GARY, Judge.W. P. Black and M. Salomon, for plaintiffs in error.

Geo. Hunt, Atty. Gen., for the People.

At the March term, 1888, of this court, motion was made to this court, in the words following:

‘And now comes the plaintiff in error Samuel Fielden, and the plaintiff in error Michael Schwab, and the plaintiff in error Oscar W. Neebe, and each for himself says that in a certain entry upon the records in the above-entitled cause, purporting to have been entered on the 14th day of September, A. D. 1887, there is error, and the said entry on said record in said cause is false and untrue, the recital in said record being as follows: ‘On this day came again the said parties, and, the court having diligently examined and inspected as well the record and proceedings aforesaid as the matters and things therein assigned for error, and being now sufficiently advised of and concerning the premises, for that it appears to the court now here that neither in the record or proceedings aforesaid, nor in the rendition of the judgment aforesaid, is there anything erroneous, vicious, or defective, and that that record is no error, therefore it is considered by the court that the judgment aforesaid be affirmed in all things as to each and every of said plaintiffs in error, and stand in full force and effect, notwithstanding the said matters and things therein assigned for error. And it is further ordered by the court that the 11th day of November, A. D. 1887, be and the same is fixed as the time when the sentence of death pronounced upon said plaintiffs in error August Spies, Michael Schwab, Samuel Fielden, Albert R. Parsons, Adolph Fischer, George Engel, and Louis Lingg, by the criminal court of Cook county, Illinois, shall be executed. And it is further ordered by the court that the sheriff of Cook county, Illinois, be, and he is hereby, ordered and directed to carry into execution the sentence by the criminal court of Cook county, Illinois, of the defendants in the indictment, August Spies, Michael Schwab, Samuel Fielden, Albert R. Parsons, Adolph Fischer, George Engel, and Louis Lingg, on Friday the 11th day of November next, [November 11, A. D. 1887,] between the hours of 10 o'clock in the forenoon and 4 o'clock in the afternoon of that day. And it is further considered by the court that the said defendants in error recover of and from the said plaintiffs in error their costs by them in this behalf expended, and that they have execution therefor.’ Whereas in truth and fact, as each plaintiff in error is ready to verify, he nor any of his co-plaintiffs in error was present in said court at the time of the rendering of the said judgment last above recited, either in person or by his attorneys, or either or any of them, nor were they, the plaintiffs in error, or either or any of them, or their counsel, or either or any of them, notified to be present either in person or by attorneys; and this each plaintiff in error is ready to verify; and the recital therein contained; ‘On this day came again the said parties,’ is wholly false and untrue. Wherefore plaintiffs in error and your petitioners, and each of them, pray that the said record may be amended to conform with the truth and the fact, and that it may appear upon the face of the said record that at the time of the rendering of said judgment hereinbefore recited, neither the plaintiffs in error, or either or any of them, nor their attorneys, or any or either of them, were present in court, nor were they notified to be present, and this your petitioners will pray.

‘SAMUEL FIELDEN.

‘MICHAEL SCHWAB.

‘OSCAR W. NEEBE.

‘By W. P. BLACK, and

‘M. SALOMON,

‘THEIR ATTORNEYS.’

‘W. P. BLACK.

M. SALOMON.'

The consideration of the motion was continued until the September term, 1888, when it was overruled. At the March term, 1889, the parties, by their attorneys, moved for leave to amend the original motion, which amendment consisted of certain affidavits in support of the fact set forth in the original motion as the ground thereof. This motion was also overruled; and thereafter, at the same term of court, a motion was made by the attorneys of the parties to rehear the motion, which also was then denied; and the parties then, by their attorneys, prayed that they have leave to prepare and tender a bill of exceptions reciting the several motions so made, and the rulings of this court thereon.

SCHOLFIELD, J., ( after stating the facts as above.)

The purpose of the proposed amendment of the record, as we learn from the argument of counsel, is to make it appear by the record that these plaintiffs in error have been deprived of an important constitutional right,-that of being present when this court rendered judgment affirming the judgment of the criminal court of Cook county; they contending that without their presence such judgment could not be pronounced. The effect which it is claimed will result from the proposed amendment is therefore in derogation of the judgment,-as they contend, to nullify and destroy it. It must hence be manifest that this motion ought to have been made at the term at which that judgment was rendered, for, not having been made then, it can avail nothing as to Spies, Parsons, Lingg, Engel, and Fisher; and, but for executive clemency under which, and not any judgment of court, Fielden and Schwab are now in the penitentiary, they could not cause the motion to be made. Under our practice, amendments of the record in affirmance of the judgment, when there is anything to amend by, may, upon notice, be made at a term subsequent to that at which final judgment is rendered; but amendments not in affirmance, but in derogation, of the judgment, are not allowed at a term subsequent to that at which final judgment is rendered. Mill Co. v. Bank, 97 Ill. 294. See, also, Pow. App. Proc. 387, app., and note 1. The amendment in Phillips v. People, 88 Ill. 161, was made before final judgment; and that in May v. People, 92 Ill. 346, was also before final judgment, and it was, moreover, in affirmance of the judgment. The other cases cited by counsel are less pertinent, and therefore demand no comment. This motion, not having been made at the same term at which final judgment was rendered, nor until the case had passed beyond the power of this court to stay by its order the execution of the judgment, clearly comes too late.

But it must not be understood that we concede that the amendment, if made, could have affected the validity of the judgment. In our opinion the amendment, if made, would be inconsequential, and would not affect in the slightest degree the rights of the parties under the judgment. The common law required, when any corporeal punishment was to be inflicted on the defendant, that he should be personaly present before the court at the time of pronouncing the sentence. 1 Chit. Crim. Law, (5th Amer. Ed.) 693, *696. Reasons given for this are: That the defendant may be identified by the court as the real party adjudged to be punished, (Rex v. Harris, Holt, 399;) that the defendant may have a chance to plead a pardon, (Anon., 3 Mod. 265;) that he may have a pardon to plead, or move in arrest of judgment. (King v. Speke, 3 Salk. 358;) that he may have an...