Housh v. People of State

Decision Date30 September 1874
PartiesJAMES D. HOUSHv.THE PEOPLE OF THE STATE OF ILLINOIS.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. WILLIAMS, MCKENZIE & CALKINS, and Mr. A. L. HUMPHREY, for the plaintiff in error.

Mr. J. J. TUNNICLIFF, State's attorney, for the People.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Appellant was convicted in the court below, for permitting the escape of a prisoner, who had been committed to his custody, in his official capacity of constable.

The affidavit upon which the warrant, by virtue of which the prisoner was arrested, was issued, is as follows:

+----------------------------+
                ¦“STATE OF ILLINOIS, ¦)¦     ¦
                +--------------------+-+-----¦
                ¦                    ¦)¦ss.  ¦
                +--------------------+-+-----¦
                ¦Knox County.        ¦)¦     ¦
                +----------------------------+
                

The complaint and information of George Huggins, of Knox township in said county, made before James Moore, Esquire, one of the justices of the peace in and for said county, on the sixth day of May, 1873, who, being duly sworn, upon his oath, says that, in Knox township, in the said county, on the 25th day of April, 1873, he had a saddle and sheep skin stolen from his barn in said place, and that he verily believes they are now in possession of a man, name unknown, a large size man, riding a sorrel mare with a light mane and tail, and young colt running after, when last seen; who stayed last night at Edmund Russel's, in Persifer township, this county. He therefore prays that the said unknown described man may be arrested, and dealt with according to law.

GEORGE HUGGINS.

+----------------------------------+
                ¦Subscribed and sworn to, before ¦)¦
                +--------------------------------+-¦
                ¦me, this sixth day of May, 1873.¦)¦
                +----------------------------------+
                

JAMES MOORE,

Justice of the Peace.

The warrant recites, among other things, that complaint had been made, under oath, by the complainant, that he “had just and reasonable grounds to suspect that a certain unknown man” (then follows the description given of him in the affidavit) “is guilty of said theft, or larceny of saddle and sheep skin, as he verily believes.” The warrant is, in other respects, in the usual form, and no objection is taken to it, except such as is predicated on the insufficiency of the affidavit.

The warrant was placed in the hands of a constable named Thurman, to execute. Thurman, after receiving the warrant, arrested a man answering to the description therein given, and subsequently delivered the warrant to appellant, and placed the prisoner in his custody. The proof, we shall assume, is sufficiently clear that appellant voluntarily permitted the prisoner to escape from his custody.

The first and third instructions given by the court, at the instance of the people, embrace the only question necessary to be considered, and are as follows:

“1st. The court instructs the jury that the warrant introduced in evidence in this case is a legal warrant, and will be so regarded by the jury.

3d. The jury are instructed that, if they shall believe from the evidence, beyond a reasonable doubt, that on the 6th day of May, A. D. 1873, the warrant introduced in evidence in this case, was issued by James Moore, a justice of the peace of said Knox county, in the State of Illinois, on the complaint of George Huggins, for the arrest of the person described therein, for a criminal offense, and that said warrant was delivered to Fletcher Thurman, a constable of said Knox county, to arrest the person named therein, and that said Thurman, as such constable, and under and by virtue of said warrant, did arrest one William Hughes, and that said Hughes was the person described in said warrant; and that said Thurman afterwards delivered the said warrant, and the body of said prisoner, Hughes, into the legal custody of the defendant, Jas. D. Housh, then and there constable of said Knox county, and that said James D. Housh wilfully failed and neglected to bring the said prisoner before said James Moore, the officer who issued said warrant, or before any other justice of the peace, in his absence, as...

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13 cases
  • People v. Hill
    • United States
    • Illinois Supreme Court
    • May 22, 1959
    ...v. Pishner, 73 W.Va. 744, 81 S.E. 1046, 52 L.R.A.,N.S., 369; State v. Ferguson, 100 Ohio App. 191, 135 N.E.2d 884,) and indeed Housh v. People, 75 Ill. 487, looks in that direction, although the case is distinguishable on its facts. But a more realistic point of view has come to prevail. 'A......
  • Comisky v. Breen
    • United States
    • United States Appellate Court of Illinois
    • June 30, 1880
    ...in form, it constituted a complete defense to the count for false imprisonment, cited Bigelow's Lead. Cases in Tort, 275; Housh v. The People, 75 Ill. 487; McDonald v. Wilkie, 13 Ill. 22; Martin v. Walker, 15 Ill. 378. As to what must be shown by plaintiff in support of this action: Bigelow......
  • People v. Elias
    • United States
    • Illinois Supreme Court
    • April 24, 1925
  • People v. Harding
    • United States
    • Illinois Supreme Court
    • March 24, 1966
    ...General in certain cases. People ex rel. v. Leinecke, 290 Ill. 560, 125 N.E. 513; People v. Clark, 280 Ill. 160, 117 N.E. 432; Housh v. People, 75 Ill. 487; also, Smith-Hurd Rev.St.1931, c. 38, §§ 662, 664, 711, 721. The only exceptions to these requirements arise in cases where the arrest ......
  • Request a trial to view additional results

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