O'hare v. People of State

• Decision Date: 30 April 1866
• Parties: PATRICK O'HAREv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

40 Ill. 533

1866 WL 4526 (Ill.)

PATRICK O'HARE

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

April Term, 1866.

WRIT OF ERROR to the Circuit Court of Jo Daviess county; the Hon. BENJAMIN R. SHELDON, Judge, presiding.

At the August Term, 1862, of the court below, Patrick O'Hare was tried upon an indictment for murder, and convicted of the crime of manslaughter. A new trial was refused, and he was sentenced to the penitentiary during his natural life. There was no bill of exceptions taken in the case, and the reason therefor is set forth in an affidavit of Mr. M. Y. Johnson, the prisoner's counsel. The affidavit states: “There is no bill of exceptions in said cause, preserving the evidence given on the trial, but said cause will have to be heard, on the indictment, motions, exceptions and instructions and judgment of the court, as they are preserved in the record.” Affiant “assigns as a reason why the same are so defectively preserved, that this affiant was the only attorney engaged in the defense, and during the progress of said cause and before the trial was finally disposed of, affiant was arrested, on a telegraphic dispatch, by the United States marshal, at the instance of the secretary of war, in the court room, and was permitted, while under arrest and in the custody of the officer, to complete the defense. This affiant states, that, in obedience to the order of the court, notwithstanding he did protest at the time against such an unusual order, he was compelled to argue said cause to the jury at a night session held for that purpose. That the arrest of this affiant, by said marshal, was without any warrant, process or legal authority, or any of the forms of law, and without any charge of any offense or violation of any law; and on the termination of said trial, said marshal transported said affiant to the State of New York, where he was confined in Fort La Fayette and detained as a political prisoner, by virtue of, and on the authority of, said telegraph dispatch alone.”

“This affiant further states that said O'Hare was a very poor man, depending on his daily labor to support several small children, and no means to pay counsel when he was arrested, and no property or means to defend himself.”

Mr. MADISON Y. JOHNSON, for the plaintiff in error.

Mr. CHARLES BLANCHARD, State's Attorney, for the people. Mr. JUSTICE BREESE delivered the opinion of the Court:

It is unfortunate for the plaintiff in error in this...