Logg v. People of State

• Court: Illinois Supreme Court
• Writing for the Court: SCHOLFIELD
• Citation: Logg v. People of State , 92 Ill. 598, 1879 WL 8566 (Ill. 1879)
• Decision Date: 30 September 1879
• Parties: WILLIAM LOGG et al.v.THE PEOPLE OF THE STATE OF ILLINOIS.

92 Ill. 598

1879 WL 8566 (Ill.)

WILLIAM LOGG et al.

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

September Term, 1879.

OPINION TEXT STARTS HERE

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

This was an indictment in the Knox circuit court against William Logg, John Logg, and James Logg, for a riot.

The seventh and eighth instructions given for the People are as follows:

“7. If the jury believe from the evidence, beyond a reasonable doubt, that James Logg and John Logg, while acting together, struck Amos Means at the school meeting in school district No. 9, in Ontario township, in Knox county, State of Illinois, in April, 1877, not in necessary self-defence, and in a riotous manner, then the jury are instructed that such striking is unlawful, and would constitute a riot on the part of said James and John Logg.

8. If the jury believe from the evidence, beyond a reasonable doubt, that at the school election in school district No. 9, in Ontario township, in Knox county, State of Illinois, in April, 1877, Martin Lowry and Amos Means were endeavoring to separate J. S. Hollett and James Logg and prevent them quarreling or fighting, and while so doing John Logg and James Logg struck Amos Means, and William Logg struck Martin Lowry, and that such striking was not in necessary self-defence, then by such acts, if proven beyond a reasonable doubt, the defendants are guilty of a riot, and the jury should find them guilty under the second count of the indictment.”

The jury found the defendants guilty under the second count, and the court, after overruling a motion for a new trial, sentenced the defendants each to pay a fine of $50.

Messrs. MCKENZIE & CALKINS, and Mr. E. P. WILLIAMS, for the plaintiffs in error.

Mr. J. J. TUNNICLIFF, State's Attorney, for the People. Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

The defendants were indicted and convicted, in the court below, of a riot. The second count of the indictment, and the one upon which the jury returned a verdict of guilty, charges that the defendants “then and there being together, did, unlawfully, tumultuously, and with force and violence, assault, beat, ill treat and wound Martin Lowry and Amos Means, with the unlawful intent then and there to assault said Martin Lowry and Amos Means, contrary,” etc.

On the trial, the State's attorney offered to examine one John S. Hollett, as a witness on behalf of the People, but the counsel for the defendants objected to his examination upon the ground that his name did not appear correctly indorsed on the indictment. Thereupon the State's attorney withdrew the witness, and gave notice that he would call him afterwards--the indictment having the name of James S. Hollett instead of John S. Hollett indorsed. Subsequently, and after the examination of some five witnesses on behalf of the People, the State's attorney again offered to examine said Hollett, as a witness on behalf of the People. The defendants, by their counsel, again objected, upon the same ground as formerly, but the court overruled the objection and permitted the witness to give evidence. And this ruling is one of the errors assigned upon the record.

There was clearly no error in this. It has been the settled law of this State since the decision in Gardner v. The People, 3 Scam. 89, (decided in 1841,) that the prosecution “is not confined to the list of witnesses indorsed on the indictment and furnished previous to the arraignment; but that the circuit court, in the exercise of a sound discretion, and having a strict regard to the rights of the community and the prisoner, may permit such other witnesses to be examined as the justice of the case may seem to require.” Gates v. The People, 14 Ill. 433; Perteet v. The People, 70 Id. 171; Smith v. The People, 74 Id. 144. It does not appear here that the defendants could have been surprised by the examination of this witness. There does not appear to have been any other person present of the name of Hollett at the time and place when and where the transactions occurred, which were the subject of consideration on the trial; and it is apparent the only mistake was in writing “James” instead of John in making the indorsement. It would, moreover, seem that the defendants, by the delay before examining the witnesses, after the notice was given that he would be examined, had ample time within which to prepare to meet his evidence. At all events, if this delay was not sufficient, and the defendants were really taken by surprise by the examination of the witness, it devolved upon them to affirmatively show it, and that they have not attempted.

After the evidence was heard the court gave, among others, the following instruction to the jury:

“5. If the jury believe from the evidence, beyond a reasonable doubt, that at a school election in school district No. 9, in Ontario township, in Knox county, Illinois, in April, 1877, Thomas J. Mansfield was requested by one Thomas Doyle, one of the directors, at the instance or request of John Logg, another director, and one of the defendants in this suit, to make a report as former clerk of the board of directors of said district, relative to the expenditures of certain moneys before made by him when clerk of the board, and that said Mansfield, in compliance with said request, proceeded in a quiet and peaceable manner to make such report, and that while making such report said defendant, John Logg, interrupted him by calling him a thief, a liar, and a son of a bitch, and that while said Mansfield was reading or making his report, and such expressions were being used by said John Logg, a son of said...