Gardner v. the People
| Decision Date | 31 July 1841 |
| Parties | George Gardner, plaintiff in error,v.The People, defendant in error. |
| Court | Illinois Supreme Court |
The statute requires that the foreman of a grand jury shall indorse each indictment “a true bill,” and sign his name as foreman, etc.; but the statute does not require the name to be copied into the record. It is only necessary that it should appear on the record that the grand jury returned the indictment in open court, “a true bill.”
The indorsement and signature of the foreman are the evidence of the finding of the jury; and without these, the court should never permit an indictment to be entered of record as a true bill. a
The statute of 1841 requires the court to try all persons confined in jail at the time of holding a special term, and confers on the court the power to summon a grand jury whenever one shall be necessary for such trial.
A prisoner cannot object, after trial and verdict, to the jurisdiction of the court to which a cause has been sent, by change of venue.
Where a motion for a change of venue is made, in a criminal case, on account of the prejudices of the inhabitants of the county where the indictment is pending against the prisoner, it is a safe and judicious practice to require the plea to be entered before the change of venue is awarded.
The arraignment of a prisoner twice, once in the county where the indictment was found, and again in the county to which the cause was sent by change of venue, is not such an irregularity as can be assigned for error.
Where a juror, on being called, said he had formed and expressed an opinion, from report as to the guilt or innocence of the prisoner: that he had heard none of the witnesses, nor any other person who professed to know the facts, detail them; that he had no reason to believe or disbelieve the reports, more than any other reports that float through the neighborhood; and that he had expressed an opinion in this way: “If the reports are true, my opinion is so and so” (without stating what it was): Held, that the juror was competent. b
If a juror has made up a decided opinion on the merits of the case, either from a personal knowledge of the facts, from the statements of witnesses, from the relations of the parties, or either of them, or from rumor, and that opinion is positive, and not hypothetical, and such as will probably prevent him from giving an impartial verdict, the challenge should be allowed.
If the opinion of a juror be merely of a light and transient character, such as is usually formed by persons in every community, upon hearing a current report, and which may be changed by the relation of the next person met with, and which does not show a conviction of the mind, and a final conclusion thereon, or if it be hypothetical, the challenge ought not to be allowed; and to ascertain the state of mind of a juror, a full examination, if deemed necessary, may be allowed.
In the trial of criminal cases, the prosecuting attorney is not confined to the list of witnesses indorsed on the indictment, and furnished to the prisoner, previous to his arraignment; but the Circuit Court, in the exercise of a sound discretion, and having a strict and impartial regard to the rights of the community and the prisoner, may permit such other witnesses to be examined as the justice of the case may seem to require. c
On the separate trial of G., who was jointly indicted with T. and J., for the crime of murder, the statements and threats of the latter against the deceased, made when G. was not present, were admitted in evidence, the testimony warranting the conclusion that they were all acting in concert, in the prosecution of a common design, and, although temporarily separated, such separation being for the purpose of providing weapons, and making preparations to carry their design into execution.
On a trial for murder, the conversations of the prisoner about the deceased, on the day the murder was committed, but after the prisoner had traveled three-quarters of a mile from the place where the crime was perpetrated, are not admissible in evidence on the part of the accused.
In a criminal case, a motion in arrest of judgment opens the entire record for examination, and reaches any defect apparent therein.
This cause was heard in the court below at the June term, 1841, before the Hon. Stephen A. Douglass.
M. McConnel and Wm. Brown, for the plaintiff in error.
J. Lamborn, Attorney-General, for the defendants in error.
George Gardner, in connection with Thomas Creaw and Jonathan Creaw, were indicted by the grand jury of Scott county, at the May term, 1841, for the murder of Philip W. Nash. At the same term of the court, on the application of the prisoner, predicated on affidavit, the venue was changed to the county of Morgan, where the cause was tried at the June term of the Morgan Circuit Court, and the prisoner convicted of the crime of murder, and sentenced to be hanged on the 23d day of July instant. The prisoner, by his counsel, filed a transcript of the record, and moves this court for a writ of error and supersedeas, and assigns various causes of error, which will be considered in the order in which they arose in the progress of the cause.
First. The indictment is substantially defective, and not sufficient in law to authorize the court to put the defendant upon his trial for murder.
This objection would be more appropriately considered under the motion in arrest of judgment; but as it has been made the subject of a distinct assignment of error, and is the first alleged defect in the record, it will be first considered.
The only objection taken to the indictment is, that it does not appear from the record that it was indorsed “a true bill,” and signed by the foreman of the grand jury. If it be true that there was no such indorsement, verified by the signature of the foreman, the objection is fatal, there being no evidence that the indictment was ever found “a true bill” by the grand jury: Nomaque v. The People.1
The record in this case, after citing that the grand jury was empaneled and sworn, and entered upon the discharge of their duties, proceeds as follows:
“And at the May term of the Scott County Circuit Court aforesaid, on the 11th day of May, the grand jurors aforesaid, came into court, and reported the following bill of indictment:
+--------------------------------------------+
¦_ ¦)¦ ¦
+-----------------+-+------------------------¦
¦THE PEOPLE ¦)¦ ¦
+-----------------+-+------------------------¦
¦v. ¦)¦Indictment for Murder. ¦
+-----------------+-+------------------------¦
¦GEORGE GARDNER, ¦)¦ ¦
+-----------------+-+------------------------¦
¦THOMAS CREAWS AND¦)¦A True Bill. ” ¦
+-----------------+-+------------------------¦
¦JONATHAN CREAWS. ¦)¦ ¦
+-----------------+-+------------------------¦
¦_ ¦)¦ ¦
+--------------------------------------------+
This is the usual mode of entering the finding of the grand jury upon the record. The statute2 requires that the foreman shall indorse an indictment “a true bill,” and sign his name as foreman at the foot of said indorsement, and also note thereon the name or names of the witness or witnesses, upon whose evidence the same shall have been found; but it seldom, if ever, happens that the names of the foreman and witnesses are copied into the record, nor does the statute require it; all that is necessary to appear on the record is, that the grand jury returned the indictment, in open court, “a true bill.” The indorsement and signature of the foreman are the evidence of such finding, without which the Circuit Court should never permit the indictment to be entered of record as a true bill.
The indictment, in this case having been received by the Circuit Court of Scott county, and entered of record as a true bill, and neither the prisoner nor his counsel making any objection at that or any other time during the progress of the trial, we feel constrained, in the absence of all evidence to the contrary, to give full faith and credit to the record.
We deem it unnecessary, therefore, to allow the cross motion of the attorney-general, for a certiorari upon the clerk of the court below to send up a perfect record, showing that the name of the foreman of the grand jury was, in fact, signed to the indorsement on the indictment.
We now come to the consideration of the next assignment of error, which questions the authority of the Morgan Circuit Court to hear and determine said cause, at its June term.
The following is the section of the statute relied upon by the prisoner, to show the want of power, and also by the attorney-general, to sustain the power of the court to try and determine said cause, at said term:1
“No grand jury shall be selected to attend the Circuit Courts required to be held in the counties of Morgan and Greene, in the months of June and August, nor shall any criminal cause be docketed for trial at said terms; but all criminal causes pending in said courts shall stand for trial at the succeeding terms thereof; provided, that if any person shall be confined in the jail of either of said counties at the time of holding said courts, for any indictable offense, the court shall try such persons in the same manner as at any other term of the court; and the court shall have power to cause a grand jury to be empaneled at said terms, to inquire into the cases of all persons confined in jail as aforesaid, and, upon indictment found, to proceed thereon as at any other term of said court.”
It is insisted, that inasmuch as the latter clause of this section provides that the court shall have power to summon a grand jury to inquire into the cases of all persons confined in jail, therefore the...
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