Long v. People of State

• Decision Date: 28 March 1882
• Citation: 102 Ill. 331,1882 WL 10229
• Parties: JOHN LONGv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

102 Ill. 331

1882 WL 10229 (Ill.)

JOHN LONG

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

Filed at Springfield Mar. 28, 1882.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding.

Messrs. TIPTON & RYAN, for the plaintiff in error:

The case was tried without a plea, and while a motion was pending to quash the indictment. This fact was not discovered until after sentence. After sentence, and without notice to Long or his counsel, the court, without evidence and without a hearing, ordered the entry of a plea nunc pro tunc. The record must show that a plea of not guilty was entered, as without there is no issue to try. Johnson v. People, 22 Ill. 314; Aylesworth v. People, 65 Id. 301; Yundt v. People, 2 Gilm. 540; Phillips v. People, 88 Ill. 160.

One in the lawful possession of premises has a right to eject an intruder therein, using no more force than is necessary. Phillips et al. v. City of Springfield, 39 Ill. 83; Wyatt v. Wood, 4 Johns. 157; Woodman v. Howell, 45 Ill. 367; Abt v. Burgheim, 80 Id. 92.

But this doctrine has no application to this case, for the reason that Long was rightfully at Miller's house. Hence the eleventh instruction for the People, giving the jury to understand that Long was an intruder, and the assault on him with the razor justifiable, was erroneous.

Under an indictment for an assault with intent to commit murder, no conviction can be had of an assault with intent to commit manslaughter. An assault with intent to commit manslaughter is impossible. There can be no intent to commit manslaughter, in which there is no deliberation.

Such instructions only should be given as are based upon legitimate evidence, and if an irrelevant one be given, containing a correct abstract proposition of law, which is calculated to mislead, it will be error. Coughlin v. People, 18 Ill. 267; Humphrey v. Collier, 1 Scam. 47; Hill v. Ward, 2 Gilm. 285; Denman v. Bloomer, 11 Ill. 177; McKinley v. Watkins, 13 Id. 140; Baxter v. People, 3 Gilm. 368; Miller v. People, 39 Ill. 458.

The time for the argument of the case was limited to twenty minutes on a side. This was too short, and was error. White v. People, 90 Ill. 111.

Mr. JAMES MCCARTNEY, Attorney General, for the People:

Entering the plea of not guilty nunc pro tunc, was justified by the statute. Rev. Stat. ch. 38, sec. 423.

It is clearly inferable, from Hopkinson v. People, 18 Ill. 264, that a person may be convicted of an assault with intent to commit manslaughter. See, also, State v. Williams, 5 Baxter, (Tenn.) 655; Wilson v. State, 4 Tex. App. 637.

The following are some of the cases directly in point, holding that under an indictment for an assault to murder, the defendant may be convicted of an assault to kill, or to commit manslaughter: Jarrell v. State, 58 Ind. 293; State v. White, 45 Iowa, 325; State v. Butman, 42 N. H. 490; State v. Waters, 39 Me. 54; State v. Phinney, 42 Id. 384; State v. Nichols, 8 Conn. 496; Scott v. Commonwealth, 6 S. & R. 224; Slave Nancy v. State, 6 Ala. 483; State v. Reed, 40 Vt. 603.

But in this case the instruction on this subject was valueless, as the jury did not find the defendant guilty of an assault with intent to commit manslaughter.

Mr. ROBERT B. PORTER, State's Attorney, and Mr. JOHN T. LILLARD, also for the People:

The entry of the order showing a plea before trial, cured the defect in the record. Crim. Code, sec. 423; Johnson et al. v. People, 22 Ill. 317; May v. People, 92 Id. 346.

The motion to quash the indictment was waived by the plea of not guilty. McKinney v. People, 2 Gilm. 555; Bulliner v. People, 95 Ill. 395; Perteet v. People, 70 Id. 171. If one enters with authority the house of another, he becomes a trespasser and intruder when, on request, he refuses to leave. Woodman v. Howell, 45 Ill. 367.

A man's house is his castle, and he may eject a trespasser therefrom, using reasonably necessary force therefor. He may defend his dwelling house even to the taking of life, if necessary. Davison v. People, 90 Ill. 229; Woodman v. Howell, supra.

It is claimed there is no such crime as an “assault with intent to commit manslaughter.” The crime of manslaughter includes an intent. The statute says, ““it must be voluntary.” If an act of volition, it is an act of intent.

The law presumes an intent in every criminal act. Crim. Code, sec. 281; York v. Com. 9 Metc. 103; People v. Herrick, 13 Wend. 87; 1 Wharton on Crim. Ev. sec. 724.

Mr. JUSTICE WALKER delivered the opinion of the Court:

Plaintiff in error, together with Sophia Miller, were indicted in the McLean circuit court for an assault with intent to murder Fred Miller. A trial was had, and the jury found plaintiff in error guilty, as charged in the indictment, and Mrs. Miller guilty of an assault. Plaintiff in error brings the record to this court, and urges a reversal on various grounds, some plausible and others frivolous.

It is admitted that plaintiff in error shot Miller, but it is claimed that it was in self-defence. After a careful examination of the evidence, we fail to see a single element of self-defence. Even according to the testimony of plaintiff in error it does not appear. If we were to look alone to his evidence, as his counsel have argued the case, self-defence is wanting. He says that Miller had a razor, and said he would kill him, and he went into another room and got his gun, returned to and stood in the door, and shot first on the floor, to frighten Miller, and as he approached, plaintiff in error shot him. He does not state that Miller used, or attempted to use, the razor. He went to another room, and Miller did not follow him,--made no demonstration of any kind,--and yet, instead of closing the door to keep Miller out, had he attempted to pursue him to the room, he returned to and stood in the door, and shot, as he says, to frighten Miller. Could any person, under the circumstances, have believed he was in danger of losing his life, or of great bodily injury? No one, surely, could for a moment have believed he was justified in resorting to extreme measures to preserve his life, or to prevent great bodily harm. His own acts, as he details them, repel the belief that he so believed.

Again, in recounting the circumstances of the affair to two disinterested witnesses, a few days afterwards, plaintiff in error made no mention of Miller having a razor. This, so soon after the occurrence, and so important a fact in the case, he would surely have spoken of if it had been true. It must have been an afterthought, to strengthen his defence. It is true that Miller's daughter testified her father had a razor, but the jury, most probably, did not believe her. But even if they did as to that fact, she failed to state facts that justified plaintiff in shooting.

Again, from the evidence it appears that Miller was shot in the left arm and in the right side. Miller testified he was twice shot, and one of the physicians who saw the wounds says, from their location both wounds could not have been made by the same shot. The jury were therefore fully warranted in believing plaintiff in error had sworn falsely when he said the first shot was at the floor, and as that was a material fact, if the jury believed he had sworn falsely as to that, they were warranted in rejecting his whole testimony, unless corroborated by other credible evidence. All of the evidence considered, we think it not only warranted, but required, the verdict of the jury.

We shall now consider the technical objections urged for a reversal. It is first urged, that the case was tried without a plea, and while a motion to quash was pending. As to the motion to quash, it is not a rash presumption that all persons in the profession know that such a motion is waived by pleading to suit or action.

But it is said that the...