McMahon v. People
| Decision Date | 20 February 1901 |
| Parties | McMAHON et al. v. PEOPLE. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to circuit court, Madison county; William Hartzell, Judge.
Edward K. McMahon and Elbert J. Parks were convicted of assault with intent to kill, and they bring error. Affirmed.J. F. Gillham and John E. Hillskoetter, for plaintiffs in error.
E. C. Akin, Atty. Gen., C. A. Hill, and B. D. Monroe, for the People.
Edward K. McMahon and Elbert J. Parks, plaintiffs in error, were indicted by the grand jury at the March term, 1900, of the Madison county circuit court, for an assault with intent to kill and murder Henry Walter. On the trial they were found guilty, and sentenced to the penitentiary.
The plaintiffs in error arrived by a freight train in Edwardsville, in said county, from East St. Louis, on the evening of December 16, 1899. Soon after their arrival they were met by Thomas Morairity, a policeman, and warned to leave the town. Late that night or early the next morning they were discovered by Fritz Fiesler and Henry Walter, two other police officers, in the act of breaking into the dwelling house of Louis Nimnich, in Edwardsville. Upon seeing the officers, they filed. Walter fired his revolver in the air, and called upon them to halt. Parks returned the fire. Parks and McMahon separated, Parks being pursued by Walter, and McMahon by Fiesler. Several shots were exchanged between Parks and Walter. Parks called out, ‘I am done with,’ and fell down upon his face. Walter ran up to him, and when within four or five feet of him Parks whirled over on his side, and again shot at him. Upon their arrest Parks had in his possession a revolver, four chambers of which were empty, having been recently fired. No revolver was found in the possession of McMahon, but he had in his pocket five cartridges of the same caliber as the revolver of Parks. They were indicted for burglarizing the house of Nimnich, and upon trial were acquitted.
It is first contended that, the plaintiffs in error having been found not guilty of the charge of burglary, Walter and Fiesler had no rhght to arrest them without a warrant. There is no force in this contention. It is apparent from the evidence in this record that the plaintiffs in error attempted to break into Nimnich's house in the nighttime, that they were discovered by the officers while in the act, and that their arrest immediately followed. Under such circumstances, the officers had the right to make the arrest without a warrant. If it were the law that when an officer discovers a man in the nighttime breaking into a dwelling house, before he could make an arrest he would be obliged to repair to the office of a magistrate and procure a warrant, few burglars would be arrested, as they would escape before the officer could return.
It is, however, said that plaintiffs in error were acquitted of the technical charge of burglary. The verdict in the burglary case does not change the facts that they were attempting to break into the dwelling house of Nimnich, that they were caught in the act by the officers, and in resisting arrest and in an endeavor to escape they attempted to shoot Officer Walter. The verdict in the burglary case is immaterial in this case.
It is further contended, assuming that Parks and McMahon went to Nimnich's house for the purpose of committing a burglary, there is no evidence on the part of the state to show that they were there with the common purpose of resisting with violence any officer who might try to arrest them. It is apparent from the evidence that the plaintiffs in error were intimates; that they were traveling together; that they went to the house of Nimnich for the purpose of burglarizing the same; that they were armed; and that they fired upon the officers before they separated in their flight. The law is well settled that if two or more persons conspire together to commit a burglary, and in the...
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