Gillespie v. People

• Decision Date: 24 October 1898
• Citation: 52 N.E. 250,176 Ill. 238
• Parties: GILLESPIE et al. v. PEOPLE.
• Court: Illinois Supreme Court

176 Ill. 238

52 N.E. 250

GILLESPIE et al.

v.PEOPLE.

Supreme Court of Illinois.

Oct. 24, 1898.

Error to circuit court, Johnson county; A. S. Vickers, Judge.

James Gillespie and Charles Dunn were convicted of burglary, and they bring error. Affirmed.

Thos. H. Sheridan and David J. Cowan, for plaintiffs in error.

E. C. Akin, Atty. Gen., and Geo. B. Gillespie, State's Atty., for the People.

CARTWRIGHT, J.

Plaintiffs in error, James Gillespie and Charles Dunn, were convicted in the circuit court of Johnson county of the burglary of a house owned by William H. Craig, and the larceny therefrom of a quantity of wheat. Several of the questions raised by the assignment of errors and the argument of counsel relate to rulings of the court prior to the November term, 1897, at which the trial was had. Those things which are not part of the record proper can only be made so by a bill of exceptions, and these questions were attempted to be preserved in that way by making the proceedings a part of the record by means of two bills of exceptions. Those bills were stricken from the transcript of the record for the reason that they were not taken at the respective terms at which the proceedings excepted to took place, and that there was no order of court, in either instance, extending the time for signing, sealing, or filing the same beyond the term. The argument was doubtless prepared before these bills of exceptions were stricken from the record, but that order eliminated from the case all questions attempted to be raised thereby.

There was a motion to quash the indictment, which was overruled. The indictment was sufficient on its face, and the grounds upon which the motion was based were set forth in an affidavit contained in a bill of exceptions stricken from the record. The record, as it stands, does not show any illegality, and no objection founded upon the affidavit can be considered. The record shows a legal organization of a grand jury of 17 persons, and the return by them of the indictment. The statute requires that a full panel of the grand jury shall consist of 23 persons, 16 of whom shall be sufficient to constitute a grand jury. The grand jury which returned this indictment contained more than that number, and it was legally authorized to find the indictment. Beasley v. People, 89 Ill. 571. It is also urged that there is no record of the return of this indictment into open court by the grand jury. But this is an error. The record, as certified to this court, shows the return of the indictment by the grand jury on March 23, 1897. Of the same character is the complaint by the defendant Charles Dunn that he was never arraigned, and never pleaded to the indictment. The record recites that at the November term, 1897, previous to the commencement of the trial, the defendants, James Gillespie and Charles Dunn, on November 12, 1897, were formally arraigned, and pleaded not guilty of the charge in the indictment, and both announced themselves ready for trial upon the issue made by the pleas. This record must prevail over the affidavit of the defendant Charles Dunn, filed in support of his motion in arrest of judgment, that he had never been arraigned or pleaded to the indictment.

The defendants were first tried at the August term, 1897. The trial resulted in a disagreement of the jury, and at the November term, 1897, each made a motion, based upon his affidavit, for his discharge because he had not been admitted to trial or tried within the time provided by the statute. Rev. St. 1881, div. 13, c. 38, § 18. The statute could not be applied to the case of the defendant Gillespie in any event, since he was not committed for this offense. He pleaded guilty to another felony at the March term, 1897, of the same court, and has been in the state penitentiary at Chester ever since, except when brought into court and tried on this charge. This was sufficient answer to his application, in any event. The defendant Dunn was committed during the March term, 1897, at which the indictment was returned. That term is not to be included in the limit fixed by the statute, but the time is exclusive of said term, which is not to be counted as the first term. Ochs v. People, 124 Ill. 399, 16 N. E. 662. At that time, the next term of court in that county fixed by statute would be held in November, 1897. Subsequently, by an act in force July 1, 1897, a term was created for the third Monday of August. At that term there was an adjournment of the case to a later date in the term, but the case was tried during the term. The trial was complete up to the verdict, but at that point came to an end prematurely, for the reason that the jury failed to agree, and were discharged. The cause was then continued to the November term, 1897. The intent of the statute is that the right to discharge shall result from a want of prosecution, and a defendant is admitted to trial and tried although a verdict may not be reached, as happened in this case. The defendants were tried at the next term after the indictment was returned, and the fact that the jury did not agree did not show a want of prosecution. A construction of the statute which would lead to the absurd result that, if a trial resulted in a disagreement, it should not be regarded as a trial, and the defendants should be discharged under the statute, of course would not be adopted.

It is next complained that the court erred in not giving defendant Charles Dunn a separate trial. The motion was based upon his affidavit and that of his attorney, setting forth that part of the testimony competent against his co-defendant, Gillespie, was incompetent as to him; that the separate counsel of the defendants had different ideas, in many ways, about the management of the defense; and that he could prove an alibi which was inapplicable to the other defendant. A party indicted with others cannot insist upon a separate trial as a matter of right, but upon a proper showing the court may, in its discretion, award a separate trial. An application of that kind is addressed to the discretion of the court, and it has generally been said that the refusal cannot be assigned as error. In White v. People, 81 Ill. 333, this court, under the very peculiar circumstances of the case, directed the circuit court to give the parties separate trials. But, whatever the correct rule may be, it is at least certain that the action of the court will not be reviewed here unless there is a clear abuse of discretion. Maton v. People, 15 Ill 536;Johnson v. People, 22 Ill 314;Spies v. People, 122 Ill. 1, 12 N. E. 865, and 17 N. E. 898;Doyle v. People, 147 Ill. 394, 35 N. E. 372. In this case the reasons offered would apply in almost every case where there are separate counsel, and there was no abuse of the discretion.

The next complaint is that upon the examination of the jurors three of them showed that they were not competent, by reason of an opinion that the indictment was some evidence of the defendant's guilt. The court overruled challenges for cause upon this ground, and the defendants challenged peremptorily two of the jurors and accepted the third. No advantage can be taken of the rulings or of the disqualification, if it existed, for the reason that the record does not show that the peremptory challenges were exhasted. In order to be ground of reversal it must appear that an objectionable juror was forced upon the defendants. If the court holds a juror competent, and the objector can exercise a peremptory challenge, no harm results to him. In order to render the...