Mckinney v. People of State
| Decision Date | 31 December 1845 |
| Citation | 2 Gilman 540,1845 WL 3965,43 Am.Dec. 65,7 Ill. 540 |
| Parties | WILLIAM MCKINNEYv.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
INDICTMENT for murder against the plaintiff in error and others, in the Rock Island circuit court, tried at the May term, 1845, the Hon. Thomas C. Browne presiding. The various proceedings in the cause are fully stated in the opinion of the court.
C. GILMAN, and J. B. WELLS, appeared in behalf of the plaintiff in error in this court, and relied, for a reversal of the judgment of the court below, upon the following points and authorities:
I. The requirements of the statute, in reference to the preliminary proceedings in the court below, were not complied with.
1. The record does not show that the names of the witness or witnesses, upon whose testimony the indictment was found, were indorsed thereon. On this point, the statute is imperative. R. L. 379, § 3.
2. It does not show that the prisoner, previous to his arraignment, was furnished with a copy of the indictment, and a list of the jurors and witnesses. On this point, the statute is equally imperative. R. L. 212, § 170; Ib. 379, § 3; Gardner v. The People, 3 Scam. 89.
3. The cause was continued from the September special term over the regular October term, without any order of continuance at the latter term, or taking any notice of it whatever. It is submitted whether this did not operate as a discontinuance. 1 Bovier's Law Dic. 328; 1 Tomlin's do. 408, 559; 1 Chitty's Crim. Law, 363 top paging, 643 marginal.
4. The appointment of the September special term was unauthorized by law.
II. The proceedings, after the trial was commenced, were irregular and illegal.
1. After a portion of the evidence had been heard, the court improperly took a recess until the next morning, without making any order in relation to, or disposition of the jury. R. L. 213, §§ 178, 179; 3 Thomas' Coke, 392; The People v. Meany, 4 Johns. 294; Nomaque v. The People, Breese, 11, and cases cited in the note; The People v. Scates, 3 Scam. 352; Jones v. The State, 2 Blackf. 479; Van Doren v. Walker, 2 Caines, 373; Fink v. Hall, 8 Johns. 437; Beekman v. Wright, 11 do. 442; The People v. Douglass, 4 Cowen, 26; State v. Prescott, 7 N. Hamp. 287, and the numerous cases there cited, and ably commented on; The King v. Stone, 6 T. R. 531.
2. When the jury retired to consider of their verdict, it does not appear from the record (and therefore not to be presumed), that they were placed in the charge of a sworn officer, as required by statute. R. L. 213, § 179.
3. The oaths administered to the jurors and witnesses in this cause, were not administered as required by the statutory or common law. The general rule of law is, that an oath shall be taken by laying the hand upon and kissing the Gospels. Every departure from this general rule constitutes an exception to it, and has been provided for by legislative enactment, in order to accommodate the conscientious scruples of the person taking the oath. The history of judicial oaths, from the earliest period, fully sustains this position. Our own statute, which is our rule, recognizes this doctrine by its peculiar phraseology, and is simply in affirmance of the common law. Its language is, “conscientious scruples about the present mode of administering oaths, by laying the hand on and kissing the Gospels.” The word “present,” as here used, is synonymous with “usual.” The person must, in the language of the statute, “declare that he or she has conscientious scruples,” etc., or the oath should be administered in the “present mode.” The law on this subject, from the earliest period, will be found on reference to the following authorities: Puffendorf (folio edition), 338, Book iv. ch. 2, § 4; Archbold's Crim. Pl. 146; Roscoe's Crim. Ev. 119; 2 Phil. Ev. (Cowen & Hill's edit.) 63; 1 Starkie's do. 23; 1 Greenl. § 371; 1 Chitty's Crim. Law, 552; R. L. 472; Commonwealth v. Buzzell, 16 Pick. 157.
III. The remaining objections are general, and grow out of the preceding.
J. A. MCDOUGALL, attorney general, for the people, in reply:
The court will presume that the prisoner was furnished with a copy of the indictment, etc., previous to his arraignment, the record showing that a copy was furnished.
There was no irregularity in continuing the cause over the regular term; the English rule is not in force in this State.
If there was any irregularity in administering the oaths, which we do not admit, objection should have been made by the counsel on the trial below. It is now too late to urge it. Gill v. Caldwell, Breese, 28; Cady v. Norton, 14 Pick. 236.
The general presumption of law is, that courts do their duty; were it otherwise, there would be no safety in judicial proceedings. The rule applies in the present case. Until the contrary is shown, this court will presume that the court below made the proper disposition in relation to the jury, both at the time a recess was taken, and when they retired to consider of their verdict. It is not necessary that these facts should appear of record. Again, admitting that the court did not so dispose of the jury, it is incumbent upon the prisoner to show that harm has been done, before this court will disturb the verdict. These objections, too, should have been made at the trial; they can not now be urged.
The cases cited from the New York reports, were determined on applications for a new trial. The case in Indiana, so strongly relied on by the counsel for the prisoner, was based upon those decisions, which were made in civil cases and dependent upon statutory regulations. The causes originated in their inferior courts, where no presumptions are indulged in favor of correct proceeding. The statute is the charter of their authority, and it must appear affirmatively that its requirements have been complied with. The court is not required to see that every fact in the progress of the trial is recited upon the record. The presumption of law is, that every act necessary and proper to be done, was done.
J. B. WELLS, for the plaintiff in error, in conclusion:
The first and second errors assigned, are fatal. The framers of the statute had in view the necessity of the case. The prisoner should know who are his accusers, and the nature of the charge against him, before he is required to plead. These are his rights, and he can not be presumed, in either case, to have waived them; on the contrary, he is presumed to be standing in all his rights.
As to the third error. The proceedings of the court below operated as a discontinuance. Such is the current of English authority, and no attempt has been made to show it inapplicable to the judicial proceedings in this country.
The court erred in appointing a special term at a special term. There is no warrant in the statute for such a proceeding, except under peculiar circumstances, which did not exist in this case.
The objections made under the fifth and sixth assignments of error, are insuperable. The law, as laid down in Indiana, is the only safe and correct rule. However much may be presumed in favor of courts in civil cases, the same presumption can not be indulged in criminal. The case in 2 Blackf. is precisely in point, and should be decisive of this cause.
The counsel for the people contends, that objections to the mode of swearing the jurors and witnesses, should have been made by the prisoner at the trial. The prisoner surely had no control over this matter. The same may be said in regard to other points, which, he contends, should have then been made.
According to the authority of the case in the term reports, it should appear of record that the court made the proper disposition of the jury, and the particular form of the entry is there given.
Where a motion for a new trial and in arrest of judgment has been made in the court below, in the Supreme court the whole record is thrown open to exception; and whatever appears on its face to have been irregular, may be here taken advantage of.
a1
At the October term of the Rock Island circuit court, in the year 1843, William McKinney was jointly indicted with George Blaylock and Isaac McKinney, for the murder of Edmund A. Philleo, and the indictment was indorsed “a true bill,” and signed by the foreman, which as far as the record shows, was the only indorsement thereon. A motion was made to quash the indictment, but it does not appear that any reasons were filed, or that any disposition was made of the motion. The defendants were arraigned, and furnished with a copy of the indictment, and a list of the jurors and witnesses, and pleaded “not guilty,” and at the same term a jury was impanelled, but could not agree on a verdict; and they were discharged by the consent of the prisoners and the attorney for the people. The cause was then continued to the May term, 1844, when another trial was had, but the jury could not agree, and they were again discharged by like consent. The cause was then continued to a special term of said court, appointed to be held on the second Monday of July, 1844. At this term no jury could be obtained, and the cause was again continued to a second special term, ordered to be held on the fifth Monday of September, 1844. At the September special term aforesaid, the prisoners filed their affidavit for a continuance to the May term, 1845, and the court granted the same, and ordered the cause to be continued to that term.
At the May term, 1845, a jury was impanelled for the trial of William McKinney alone, and after hearing a portion of the evidence, the court took a recess until the next morning, when the prisoner being again brought into court, the remainder of the evidence and arguments of counsel were heard, and the cause submitted to the jury, who retired to consider their verdict, and afterwards returned into court with a verdict of “guilty” against the prisoner, William McKinney. The prisoner then entered a motion in arrest of...
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