Kennedy v. People of State

• Court: Illinois Supreme Court
• Writing for the Court: WALKER
• Citation: Kennedy v. People of State , 44 Ill. 283, 1867 WL 5145 (Ill. 1867)
• Decision Date: 30 April 1867
• Parties: JOHN KENNEDY, Jr.,v.THE PEOPLE OF THE STATE OF ILLINOIS.

44 Ill. 283

1867 WL 5145 (Ill.)

JOHN KENNEDY, Jr.,

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

April Term, 1867.

WRIT OF ERROR to the Circuit Court of Ogle county; the Hon. WILLIAM W. HEATON, Judge, presiding.

This was a proceeding upon an indictment found against the plaintiff in error, for an assault upon Nancy McManus, with intent to commit a rape. The cause was tried at the November Term, 1866, of the Ogle county Circuit Court, and the defendant found guilty; whereupon motions for a new trial, and in arrest of judgment, were severally made and overruled, and afterward, on application to this court, a writ of error was ordered to issue, and made a supersedeas, so far as to stay the execution of the sentence of five years' imprisonment in the penitentiary. Various errors were assigned, all of which are fully noticed in the opinion.

Messrs. DUTCHER & MIX, and Messrs. LELAND & BLANCHARD, for the plaintiff in error.

Mr. DAVID MCCARTNEY, for the people. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court:

It is insisted, that the record in this case fails to show that the indictment was returned by the grand jury into open court. The record, however, recites, that they did so report a bill for the crime of rape, properly indorsed and signed a true bill by the foreman. The case was docketed and numbered, and it appears that the case was tried, the verdict returned, and the judgment rendered in a case of the same title and number. The indictment copied into the record is for an assault with intent to commit a rape, and was properly indorsed and signed by the foreman. We might no doubt from these facts infer, that this was the only indictment presented against the accused, and that it was a clerical error of the clerk in entitling the cause when the presentment was made. But in the view we take of this case, we deem it unnecessary to pass on this point. If such a mistake was made, the court below has the power to permit the record to be amended upon a proper application by the people.

It is also insisted, that the instructions given on behalf of the prosecution are erroneous. It is true, that a portion of these instructions fail to inform the jury that they must believe the accused to be guilty beyond a reasonable doubt before they could convict. A portion of these instructions do so inform the jury, and in so clear a manner, that they could not have been misled, and the same instruction is repeated in several of those given for plaintiff in error. It is not necessary that...