McKevitt v. People

• Court: Illinois Supreme Court
• Writing for the Court: SCOTT
• Citation: McKevitt v. People, 208 Ill. 460, 70 N.E. 693 (Ill. 1904)
• Decision Date: 20 April 1904
• Parties: McKEVITT v. PEOPLE.

208 Ill. 460

70 N.E. 693

McKEVITT

v.PEOPLE.

Supreme Court of Illinois.

April 20, 1904.

Error to Criminal Court, Cook County; Chas. G. Neeley, Judge.

Michael McKevitt was convicted of robbery, and brings error. Affirmed.Charles P. R. Macaulay, for plaintiff in error.

H. J. Hamlin, Atty. Gen., Charles S. Deneen, State's Atty., and F. L. Barnett and John R. Newcomer, Asst. State's Attys., for the People.

Plaintiff in error was indicted at the September term, 1902, of the criminal court of Cook county, for the crime of robbery. The indictment, consisting of one count, charges that Michael McKevitt, on February 14, 1902, in said county of Cook, made an assault upon one Patrick Cahill, and then and there put said Cahill in bodily fear and danger of his life, and against the will of said Cahill did feloniously and violently, by force and intimidation, from the person of said Cahill rob, steal, take, and carry away money, personal goods, and property of the said Cahill, the indictment enumerating numerous treasury notes of the denomination of $100 down to $2, bank bills of denominations unknown to the grand jury, greenbacks of denominations unknown to the jury, silver coin of the United States, enumerating 500 of each of the denominations of $1 down to one dime, 500 pieces of nickel coin of the United States, 100 pieces each of gold coin of the denominations of $20 down to $1, and two keys of the value of 10 cents each, and further charges that the said Michael McKevitt then and there was armed with a revolver, with the intent, if resisted, to kill and main said Cahill, and that said McKevitt then and there had two confederates present, whose names are unknown to the jurors, said confederates being armed so as to aid and abet said McKevitt. No motion was made by the plaintiff in error to quash the indictment before pleading to the indictment. The record shows a plea of not guilty made by him on September 26, 1902. The verdict of the jury was as follows: ‘We, the jury, find the defendant, Michael McKevitt, guilty of robbery in manner and form as charged in the indictment.’ Plaintiff in error moved for a new trial and in arrest of judgment, which motions were respectively overruled and exceptions taken. He was then ‘sentenced to the penitentiary of this state at Joliet for the crime of robbery, etc., whereof he stands convicted.’

In the bill of exceptions there appears a recital, under date of November 17, 1902, that on that date ‘defendant, by his counsel, moved the court to quash the indictment,’ with reasons therefor, and further reciting that this motion was overruled.

The evidence on the part of the people shows that Patrick Cahill kept a saloon at the northwest corner of Thirty-Sixth street and Parnell avenue, in the city of Chicago; that there were two doors leading from the street into the saloon building, the one on the east side opening on Parnell avenue and the one on the south side opening on Thirty-Sixth street; that on the night of February 14, 1902, two men came into the saloon by the south door, and at the same time the plaintiff in error came in at the east door; that one of the two men first mentioned asked Cahill for a glass of beer, and at the same time McKevitt made a sign to them; that as Cahill turned to get the beer one of the men struck Cahill on the head with a revolver. Cahill testified that he got the revolver away from the man, and struck him on the head with it, while Frank Cahill, a son of Patrick Cahill, testifying on the part of the people, said that the revolver used by his father was one that had been kept in the saloon for some time. Patrick Cahill further testified that he struck this man repeatedly on the head with the revolver, until his hand was covered with blood and the revolver slipped from his hand; that he held on to the man, and knocked him down three times; that while he was beating this man the man said, ‘Oh, Cahill! that is enough!’ that McKevitt jumped over the bar and fired twice at the son, who ran upstairs, and McKevitt went to the cash drawer and took $2 in United States money, a lead half-dollar that had been there for some time, and two keys; that the man with whom Cahill was fighting called to McKevitt for help, and McKevitt came up, put his revolver against witness' stomach and fired, the bullet being subsequently taken out of Cahill's back; that Cahill's son returned, and the men ran out of the saloon.

A police officer, named McCarthy, on the part of the people testified, over the objection of plaintiff in error, that on June 10, 1902, he was walking on Wells street, and heard quarreling in a saloon on that street; that he went in, and saw McKevitt in the saloon with a revolver in his hand; that he went up to him, and McKevitt pointed the revolver at witness, and said, ‘I will clear you and the whole bunch out of this,’ and snapped the weapon; that witness took the revolver from plaintiff in error, and called two other officers to help arrest him; that while taking him to the station two more revolvers were taken from him while he was attempting to use them on the officers. The other two police officers testified to facts corroborating McCarthy concerning the arrest and finding of the revolvers on the person of plaintiff in error and his attempts to use those revolvers. McCarthy did not inform McKevitt that he was arresting him for the robbery of Cahill, nor did any one else. They had no warrant for him, and did not know that he was wanted for that robbery. The three revolvers, together with the cartridges they had contained, were admitted in evidence over the objection of plaintiff in error.

Both Patrick Cahill and his son testified that McCkevitt on the night of the robbery wore a short coat and a soft fedora hat, and that this night was the first time they had seen him.

The defendant, on his part, testified that he never had been in the saloon in question, and that he did not take part in the assault upon Patrick Cahill nor in the robbery; that he never wore a short coat or soft fedora hat, but always wore a long coat and a hard derby hat. When Patrick Cahill was being cross-examined, counsel for McKevitt called one McKnight into court, and Cahill then said that this man McKnight looked like the man with whom he had fought at the time of the robbery. Later, McKnight, on the part of plaintiff in error, testified that he was the person whom Patrick Cahill had so identified, and that he did not see plaintiff in error at any time during the month of February. The people, on cross-examination of this witness, were permitted by the court (over defendant's objection that this was not the best evidence) to show that this witness had been convicted and sent to the penitentiary for a robbery, which, however, did not appear to be this robbery of Patrick Cahill. The record of a prior conviction of plaintiff in error for the crime of robbery, for which he was sentenced to the reformatory at Pontiac, was also admitted in evidence on the part of the people in rebuttal.

After the motion for a new trial had been overruled, plaintiff in error moved the court to strike the plea of ‘not guilty’ from the record on the ground that plaintiff in error had not entered such plea, and that the same had been entered by mistake of the clerk of the court, and offered to testify to certain facts to show that such plea had not been made by plaintiff in error, whereupon the court said: ‘You ask me to strike something from the record which you say is not there. The motion is overruled;’ and refused to hear the evidence offered by plaintiff in error in support of the motion.

SCOTT, J. (after stating the facts).

The motion to quash the indictment seems to have been made after plea. Such a motion cannot be considered after a plea is entered, unless, upon leave obtained, the plea is first withdrawn. The basis of the motion was that the description of the money ($2) which the prosecuting witness, Cahill, claimed was taken from him, was included with the description of many pieces of money of other kinds, so that it was impossible for the defendant to tell what money he was charged with taking by force from Cahill. This is not ground for quashing the indictment. If the defendant is entitled to any relief, under such circumstances, for the purpose of enabling him to determine which of the money described in the indictment the prosecution seeks to show was stolen by him, it is by motion of another character.

After the motion for a new trial had been overruled, defendant below sought first to have the record amended by striking out the plea of not guilty which appeared upon the record, for the reason that the defendant never had pleaded, and for the reason that the plea of not guilty had been entered by a mistake of the clerk of the court, and, upon this motion being overruled, make a motion in arrest of judgment, based upon the same grounds, which motion was also overruled. Where a defendant charged with a felony has not pleaded, he may, in the event of conviction upon trial, have the judgment arrested (Johnson v. People, 22 Ill. 314;Yundt v. People, 65 Ill. 372;Hoskins v. People, 84 Ill. 87, 25 Am. Rep. 433); and where the record erroneously shows that a plea of not guilty has been entered, the defendant, upon establishing that fact, may, if he act with dilligence, have the record corrected at any time prior to the adjournment of the court at the term at which final judgment in the cause is entered. Phillips v. People, 88 Ill. 160;May v. People, 92 Ill. 343;Knefel v. People, 187 Ill. 212, 58 N. E. 388,79 Am. St. Rep. 217. In this case the defendant offered to show by his own evidence...