Kelly v. People

• Decision Date: 23 October 1907
• Citation: 82 N.E. 198,229 Ill. 81
• Parties: KELLY et al. v. PEOPLE.
• Court: Illinois Supreme Court

229 Ill. 81

82 N.E. 198

KELLY et al.

v.PEOPLE.

Supreme Court of Illinois.

Oct. 23, 1907.

Error to Criminal Court, Cook County; J. W. Mack, Judge.

Thomas Kelly and another were convicted of murder, and they bring error. Reversed and remanded.

Hand, C. J., and Scott and Carter, JJ., dissenting.

Symmes & Kirkland (John A. Rose, of counsel), for plaintiffs in error.

W. H. Stead, Atty. Gen., and John J. Healy, State's Atty. (James J. Barbour, of counsel), for the People.

FARMER, J.

This is a writ of error sued out to the criminal court of Cook county to reverse a judgment of conviction for murder, rendered at the March term, 1907, against plaintiffs in error. Thomas Kelly, Ole Olson, Lant Maloney, and Charles Nyquist were jointly indicted in Cook county for the murder of Joseph F. Messenie. Olson and Kelly were convicted of murder, and their punishment was fixed by the jury at imprisonment in the penitentiary for the term of 15 years each. Maloney and Nyquist were found guilty of manslaughter. A motion for a new trial was sustained as to Maloney and Nyquist and overruled as to Kelly and Olson, who sue out this writ of error and assign numerous errors on the record.

In the view we take of this case it will not be necessary to make an extended statement of the facts, nor will it be necessary to consider all of the assignments of error that have been argued in the briefs. After the prosecution had offered evidence tending to make out a case against plaintiffs in error, evidence was offered on behalf of the accused in support of the claim that the killing of the deceased was done in necessary self-defense. The evidence on behalf of the prisoners tended to show that the deceased had committed a serious assault upon Olson about four hours before the fatal difficulty, and the version given by plaintiffs in error of the difficulty in which the deceased was killed tends to show that the deceased was the aggressor on this occasion also. The evidence of plaintiffs in error was confined to the question of self-defense. The reputation of the deceased for peaceableness was not attacked by plaintiffs in error. After plaintiffs in error had rested their case, the people called Erich H. Ladish in rebuttal, and he testified as follows: ‘I live 632 Larrabee street. Am a druggist. Have been at 632 Larrabee street since April, 1894. I knew Joe Messenie in his lifetime very well, something like four or five years. I knew his reputation for peace and quiet. Q. What was that reputation? Mr. Symmes: I object to the state's showing the reputation of the deceased, for the reason that the defendants have not attacked his reputation for peace and quiet, and because it is not rebuttal. (Objection overruled. Exception by defendant.) A. Good.’ The state was permitted, over the objection of plaintiffs in error, to introduce Hamm, Ford, Killen, Weber, and Boch, all of whom testified that the general reputation of the deceased for peaceableness was good. The court instructed the jury that if they believed that the deceased, Joseph Messenie, at and before the commission of the crime charged in the indictment against the defendants, was of peaceable, quiet, and inoffensive disposition, and a man of good moral character, then these facts are to be received and weighed, together with the other evidence, in determining whether the defendants, or any of them, are guilty of the crime charged in the indictment. The errors assigned upon the admission of this evidence and the giving of this instruction may be considered together.

It is contended by the state that evidence of the general reputation of the deceased for being a peaceable and quiet man was competent upon two grounds, namely, because the defendants sought to prove that the killing was don in self-defense, and also that it was proper in rebuttal of proof offered by defendants of the character of deceased. The exact question whether the state can introduce evidence of the good character of the deceased for peaceableness, in rebuttal, when defendant claims that the deceased assaulted him in such a manner as to justify a resort to self-defense, has, so far as our examination has disclosed, not been passed upon by this court. The question in therefore to be determined from a consideration of the principles of the common law as evidenced by the judicial decisions outside of this state. In the American and English Encyclopedia of Law (volume 25 [2d Ed.] p. 282) it is said: ‘The general rule is that the prosecution cannot introduce evidence to sustain the reputation of the deceased for peace and quietnessuntil the defendant makes an attack upon him.’ In 21 Cyc. 907, it is said: ‘Ordinarily the character or reputation of the deceased person is not involved in the issue of murder, and proof relative thereto is generally inadmissible.’ In support of this text cases are cited in the notes from Alabama, California, Delaware, Georgia, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Montana, New York, North Carolina, Pennsylvania, Tennessee, Texas, and Wisconsin. Again, on page 908, (21 Cyc.) the following qualifications of the rule above stated are given: ‘The general rule excluding evidence of the character of the deceased applies with equal force against the state and the defendant. The state will not be permitted to offer primary evidence of the character of the deceased for morals or for peace and quiet, although defendant offers evidence of his own good reputation; but where defendant attempts to show that the deceased was a violent and dangerous man the state may properly offer proof of his peaceable and law-abiding character, although defendant does not attack the general reputation of deceased for peaceableness and good disposition.’ In 3 Greenleaf (section 27) the rule is laid down as follows: ‘In regard to the character of the person on whom the offense was committed, no evidence is, in general, admissible; the character being no part of the res gestae.’ To the same effect is Elliott on Evidence, § 2722. In McClain on Criminal Law (volume 1, § 423) the rule is laid down as follows: ‘Evidence of the character of the deceased as a quiet and peaceable man is not admissible as original evidence in behalf of the prosecution. The general character of the deceased as a violent and quarrelsome man cannot be shown in behalf of the defendant except as bearing on the question of self-defense, as already explained. Where such evidence is admitted on behalf of the defendant, the state may, in rebuttal, prove that the deceased was of a peaceable character.’ In Bishop on Criminal Procedure (volume 2, § 612) the rule is stated as follows: ‘It is never competent for the prosecution to show, in the first instance, against the defendant, that the person slain was of good or peaceable character, but such evidence may be given in rebuttal if the opposite has been testified to by the defense.’

A leading case on this subject is State v. Potter, 13 Kan. 414. Potter was on trial for murder. He relied on self-defense. The trial court allowed the state to introduce evidence of the character of the deceased for peace and quiet. In disposing of this question the Supreme Court of Kansas, speaking by Mr. Justice Brewer, said: ‘On the trial, and before closing their case, the prosecution was permitted, over objection, to ask witnesses, who had testified that they knew the deceased, this question: ‘State if you knew his general reputation for being a peaceable, quiet, and law-abiding citizen,’ and the witnesses testified that he was a peaceable, quiet and law-abiding nam. No attack was made by defendant at any time during the trial upon the character of the deceased, and no attempt made to show that he was a quarrelsome or turbulent man. The question, then, is fairly presented whether the prosecution, on a trial for murder, may in the first instance, and as a part of the case, show the character and reputation of the deceased. We do not understand counsel for the state as claiming that such testimony is admissible in all cases, but only in cases where there is doubt as to whether the killing was done in self-defense, and where such testimony may serve to explain the conduct of the deceased, and is therefore a part of the res gestae. In such cases it is said that the authorities hold that the defendant may show the bad character and reputation of the deceased as a turbulent and quarrelsome man. And if the defendant may show that the deceased was a known quarrelsome, dangerous man, why may not the state show that he was a known peaceable, quiet citizen? The argument is not good. The books are full of parallel cases. The accused may in some cases show his own good character. A party can never offer evidence to support a witness' credibility until it is attacked. The reasons for these rules are obvious. Such testimony tends to distract the minds of the jury from the principal question and should only be admitted when absolutely essential to the discovery of the truth. Again, the law presumes that a witness is honest, that a defendant has a good character, and that the party killed was a quiet and peaceable citizen, except so far as the contrary appears from the testimony in the case; and this presumption renders it unnecessary to offer any evidence in support thereof. No authorities have been cited sustaining the admission of such testimony, and the following are in point against it'-citing cases.

In State v. Woodward, 191 Mo. 617, 90 S. W. 90, the Supreme Court of that state expressed the following view: ‘It is insisted that the court erred in permitting the state to prove the good reputation of the deceased. This testimony, under the rules of evidence, could only be admissible to rebut the testimony elicited by the appellant affecting the reputation of the deceased. Unless the reputation of the deceased was put in issue by the appellant, then this testimony was clearly inadmissible.’...