McDonald v. People

• Decision Date: 16 November 1888
• Citation: 126 Ill. 150,18 N.E. 817
• Parties: McDONALD v. PEOPLE.
• Court: Illinois Supreme Court

126 Ill. 150

18 N.E. 817

McDONALD

v.PEOPLE.

Supreme Court of Illinois.

November 16, 1888.

Error to appellate court, First district.

Edward S McDonald, William J. McGarigle, Nicholas Schneider, and Frederick Faber were jointly indicted in the criminal court of Cook county for conspiracy to defraud the county. McDonald and McGarigle were tried together, convicted, and sentenced to three years' imprisonment. The M. C. McDonald referred to in the opinion of the court as having been alluded to by Mr. Grinnell, the prosecuting attorney, is a brother of defendant Edward S. McDonald. McDonald took a writ of error to the appellate court, where the judgment was affirmed. 25 Bradw. 350. He again brings error.

W. S. Forrest and C. Beckwith, for plaintiff in error.

George Hunt, Atty. Gen., Joel M. Longenecker, State's Atty., Francis W. Walker and Edmund Furtherman, Asst. State's Attys., I. N. Stiles, and John Lewis, for the People.

CRAIG, C. J.

This was an indictment in the criminal court of Cook county against Nicholas Schneider, William J. McGarigle, Frederick Faber, and Edward S. McDonald, in which the defendants were charged with a conspiracy to obtain money from Cook county by false pretenses. The indictment contained several counts, some of which charge a conspiracy to defraud the county by means of false pretenses generally, while other charge a conspiracy to defraud the county with respect to repairs at the normal school. At the June term, 1887, of the criminal court, McGarigle and McDonald were tried jointly before a jury. The two other defendants, Schneider and Faber, were not put upon trial, but were sued as witnesses by the people against McGarigle and McDonald. The jury found the two defendants guilty, and fixed their term of imprisonment at three years in the penitentiary. Edward S. McDonald alone sued out this writ of error.

Various errors have been assigned, and elaborate arguments have been filed on behalf both of the defendant and the people. We shall not, however, undertake to follow counsel, and consider all the questions raised, but we will content ourselves with the consideration of a few questions which are decisive of the judgment rendered both in the criminal and appellate courts.

Every person charged with a crime is entitled to a fair and impartial trial,-a trial in conformity to the laws of the state,-and it is a duty resting upon the courts to see that this guaranty conferred by the laws upon every citizen is upheld and sustained. A fair and impartial administration of the laws is one of the most sacred rights of the citizen,-one that cannot be abridged or frittered away. In looking over the record before us, we are not satisfied that the defendant McDonald had a fair and impartial trial in the criminal court. Improper evidence was admitted; the instructions to the jury did not lay down the law correctly; and other irregularities occurred during the trial which doubtless led to the verdict returned by the jury. Under the last head may be mentioned the opening statement of the case to the jury made by the counsel for the people. Much latitude is always allowed counsel in the statement or argument of a case to a jury, but there are bounds which ought not to be transcended. As a general rule a full statement of the facts expected to be proven on the trial, with a statement of the law relied upon, would seem to be sufficient; but here the court ruled that counsel for the people might elect the manner in which to make their opening. He was allowed to talk about the ‘boodle prosecutions in New York city;’ to discuss and explain to the jury the meaning and office of an ‘exception’ entered by counsel for defendant. Among other things, it was said that the object of taking exceptions was to get error in the record; that everything said is taken down by the stenographers; that in case the defendants are found guilty, they have a right to take an appeal to the supreme court; that the whole record goes up to the supreme court; that if the judge has made a remark which he ought not to have made, and which very likely he has, those seven wise men down at Ottawa, if it shall appear to them that any remark was made which might have prejudiced the cause of these gentlemen who have been found guilty, they will consider whether or not they will grant them a new trial; that errors may be run all through the case. The counsel for the people also informed the jury that the law had been so changed that any defendant might testify in his own behalf. Objection being made to this statement and overruled, counsel then said: ‘There is another exception. The court thinks I am right or he would tell me to vary my line of argument.’ The jury were also told that the defendants had applied for a change of venue to another county, and the application for a change was commented upon at length. Other matters wholly foreign were stated and argued to the jury. Indeed, full liberty was given counsel for the people by the court to make any statement he saw proper to make, whether it had any legitimate bearing on the case or not. The manner in which legal proceedings are required to be conducted under the laws was ridiculed at great length by counsel for the people with the sanction and approval of the court.

It is a proposition too plain to admit of argument that the jury had nothing to do with the force or effect or the office of an exception that might be taken by counsel during the trial; nor could they take into consideration the fact (if it was a fact) that the defendants had applied for a change of venue; nor was it material for them to know that the law had been so changed that a defendant might testify in his own behalf. And it is plain that the court ought not to have permitted the attorney of the people to bring these matters before the jury in the opening statement. In State v. Kring, 64 Mo. 595, where the jury was told in the argument that if they wronged the defendant by finding him guilty that wrong can be righted by an appeal by the defendant to the supreme court, the remark was held to be error. It is there said: ‘The statements that the higher courts referred to had the power to review the finding of the jury on the weight of evidence was calculated to induce the jury to disregard their responsibility.’ Our statute, which allows a defendant in a criminal case to testify, declares that ‘his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect. Under this statute, why was the attorney of the people allowed to comment before the jury of the right of the defendants to testify in the case? In State v. Smith, 75 N. C. 307, a judgment wherein a defendant was convicted was reversed, upon the ground alone that the attorney for the people was allowed, in addressing the jury, to state that ‘the defendant was such a soundrel he was compelled to remove his trial from Jones county to a county where he was not known;’ and yet, in this case, counsel for the people was permitted to argue at great length upon the fact that the defendants had applied for a change of venue, and the application had been denied. The defendants were charged with a crime which was a violation of the laws of the state. They were on trial under the laws of the state. The inquiry is a pertinent one, why the laws of the state under which criminals on trial were permitted to be ridiculed in the opening argument to the jury. What the object of counsel was in pursuing the course that was pursued may be difficult to understand; but whatever may have been the object, the effect of what was done, without doubt, created a prejudice in the minds of the jury, and may have, in part, at least, led to the verdict which was rendered. Again, in the closing argument to the jury on behalf of the people, counsel were allowed to travel outside of the record and discuss M. C. McDonald and his influence in the administration of justice in Chicago. Among other things, the state's attorney said: ‘They say there is a fabled tree that grows in some torrid clime; that the birds of the air which fly near its branches, influenced by the aroma of it, fall beneath it and die. That is the influence of M. C. McDonald in this and all matters connected with the administration of justice.’ Other allusions of a similar character were made in the argument to the same person. He was in no manner connected with the case, and, upon objection being made, it was the duty of the court to confine the argument to a consideration of such matters as properly pertained to the case under the evidence. People v. Mitchell, 62 Cal. 411;Insurance Co. v. Cheever, 36 Ohio St. 201;Rolfe v. Inhabitants of Rumford, 66 Me. 564.

The indictment contained six counts, but the state's attorney dismissed the fifth count out of the case. The first four counts charged the defendants, in general terms, with a conspiracy to defraud Cook county by means of false pretenses. The last count charged a conspiracy to defraud Cook county by means of false pretenses as to work done and materials furnished at the normal school, in 1886. Before the cause was called for trial, the defendant filed a motion in writing requesting the court to enter an order requiring the state's attorney to file a bill of particulars. After due consideration the court granted the order, and in response thereto the state's attorney filed what is known in the record as the original bill of particulars. The bill of particulars thus filed did not, however, prove to be satisfactory to the defendant. It was but little more definite or specific as to the character of the charge than the indictment. The defendant then filed a petition for a further and better bill of particulars, which, upon due consideration, the court granted, and entered an order requiring the state's attorney to furnish defendant McDonald a further and better bill of...