Fitzpatrick v. People of State

• Court: Illinois Supreme Court
• Writing for the Court: SCOTT
• Citation: Fitzpatrick v. People of State , 98 Ill. 269, 1881 WL 10475 (Ill. 1881)
• Decision Date: 21 March 1881
• Parties: FRANK FITZPATRICKv.THE PEOPLE OF THE STATE OF ILLINOIS.

98 Ill. 269

1881 WL 10475 (Ill.)

FRANK FITZPATRICK

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Springfield Mar. 21, 1881.

OPINION TEXT STARTS HERE

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

Messrs. STEVENSON & EWING, for the plaintiff in error, claimed that, from the evidence, the defendant was not guilty of the crime, there being no proof of any intent to commit a rape, and that the proof showed simply an assault, though an unprovoked, senseless and reckless one, made while under the influence of intoxicating liquor.

The second and third of the people's instructions were calculated to mislead the jury. In a case like this, where the circumstances are such as to inflame the passions, the instructions should be so worded as that they may not be taken as a license for a vent of their passions. Chicago and Alton R. R. Co. v. Murry, 62 Ill. 326.

The intent of the defendant in the assault was the vital issue. On this question the jury are told, “that it is not necessary to prove that defendant, Fitzpatrick, expressed by any words what his intention was in committing the assault.”“But the intention of Fitzpatrick may be inferred from the circumstances of the said assault.” This is equivalent to saying, “the circumstances of this assault will warrant you in inferring the intent.”

The first instruction for the people was wrong. Although drunkenness is no excuse for crime, yet the jury may take into consideration the condition of the accused caused by drunkenness, with the other parts of the case, in settling the question of intent. People v. Harris, 29 Cal. 678; People v. Eastman, 14 N. Y. 562.

The judgment should have been arrested, because the record fails to show the return of the indictment into open court. “This day comes again the grand jury, and present to the court,” etc., does not show the court was open. Rev. Stat. 1845, p. 309, sec. 3; 1 Archb. Cr. Pr. 98 n. 1; 4 Black. Com. 366; Gardner v. People, 3 Scam. 85; Rainey v. People, 3 Gilm. 71; Gardner v. People, 20 Ill. 430; Yundt v. People, 65 Id. 372; Aylesworth v. People, Id. 301.

The sentence is uncertain and indefinite as to the place and time of the punishment. Laney v. Cleveland, 34 Ohio St. 599.

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

The indictment was returned into court, which means when convened for the transaction of business. Bouv. Law Dic. “Court.” Gardner v. People, 3 Scam. 85; Rainey v. People, 3 Gilm. 71; Schirmer v. People, 33 Ill. 276; McKennie v. People, 2 Gilm. 540.

The judgment is as certain and definite as the circumstances of the case will permit, and is abundantly justified by the authorities. Laney v. Cleveland, 34 Ohio St. 599; Williams v. State, 18 Ohio St. 46.

The intent of the accused in making the assault will be sufficiently shown by his words or acts. 2 Archb. Cr. L. 309; People v. Bates, 2 Park. Cr. R. 27.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

Frank Fitzpatrick was jointly indicted with one Montgomery, for an assault on the person of Cynthia Morrison, with intent to commit a rape upon her. On the trial Montgomery was acquitted, but Fitzpatrick was found guilty, and by the verdict, the time he should serve in the penitentiary was fixed at five years. Motions for a new trial and in arrest of judgment were severally overruled, and judgment pronounced in accordance with the verdict. By the judgment of the court, the imprisonment of defendant was to commence at the expiration of the sentence and imprisonment pronounced against him in another case, tried at the same term of the same court, in which he was indicted for malicious mischief, and of which he was convicted. Defendant brings the case to this court on error, and seeks a reversal of the judgment against him.

One objection taken on the motion in arrest of judgment is, it does not appear from the record the indictment was presented by the grand jury in “open court.” This is a misapprehension of the record. It is recited in the record, “this day comes again the grand jury and presents to the court indictments in the following cases,” among which was this one against plaintiff in error. This recital makes it sufficiently clear the indictment against the accused was publicly presented to the court, and that is all the law requires. Blackstone, in his Commentaries, says an indictment must be publicly presented to the court, and our statute has not made any more strictness in this regard necessary than was observed at common law. It is argued, with much earnestness, the testimony fails to show accused was guilty of the crime for which he was indicted, however reckless and wanton his conduct may appear to have been. It is conceded a wanton assault was made on the prosecutrix. The intent with which the assault was made of course characterizes the crime, and determines whether it was a felony or a mere misdemeanor. Neither the accused nor his counsel have assigned any motive for the assault consistent with his innocence. If it was not done with the intent charged in the indictment, what possible motive could have induced the assault? The manner, time and place of the assault were all elements to be considered by the jury in arriving at a conclusion as to the intent with which the assault was made upon the prosecutrix. Considering together all the circumstances proven, the verdict is warranted by the law and the evidence, and there is no sufficient reason for disturbing it for the causes alleged.

Complaint is made as to the second, third and fifth instructions given on behalf of the people. No specific objections are pointed out to the second and fifth instructions, and none are perceived. As respects the third instruction, it is not obnoxious...