Murphy v. People of State
| Decision Date | 30 April 1865 |
| Parties | JAMES MURPHYv.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
WRIT OF ERROR to the Circuit Court of Kane county; Hon. J. G. WILSON, J.
Defendant was indicted at the October term, 1863, and tried at the February term 1865, for the murder of William Shies. Before the jury were empaneled the defendant moved to quash the venire on the ground that the jurors were selected by the supervisor, and a writ of venire issued, commanding that they should be summoned for the second week, whereas, the sheriff, without proper authority and at the request of the Circuit Judge, had summoned them for the third week of the term, thus requiring the prisoner to be tried before a jury chosen for a different week than that in which he was to be tried. The motion was overruled and an exception taken.
The defendant, on the call of the jury, objected to one juror as over sixty years of age, which objection was overruled and exception taken.
Various witnesses were sworn preliminary to the introduction of the dying declaration of Shies; their testimony going to show that he was repeatedly told by his physicians and others, before making the declaration, that he could not live, that he was in a partial stupor caused by the use of morphine, and that when told that it would be necessary for him to swear in the declaration that he had no hope of life, he nodded assent. The declaration was then offered, objected to, admitted, and exception taken. It was as follows:
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¦STATE OF ILLINOIS, ¦)¦ ¦
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¦ ¦)¦ss.¦
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¦KANE COUNTY. ¦)¦ ¦
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I, William Shies, of the county of Kane, State of Illinois, having no hope of life, and having the fear of God before me, do declare this to be a true statement of facts of an occurrence hereinafter related:
On the evening of the 23d day of August, A. D. 1863, myself and one McDonald started for home; I went to accompany him. When we were going by the house of James Murphy, said Murphy came running out of the house into the road with a hickory club. He struck Dummy with a club on the sidewalk, in front of Murphy's house; he then knocked down Dummy with a hickory club. After he struck Dummy with a club, I clinched the Irishman, to prevent his striking him again; we then had a struggle together. Dummy got up as quick as he could, and went to Fred Rang's for help. I called Dummy back, fearing the Irishman would hurt me, as he was too strong. When Dummy came back from Rang's, Rang came with him; the Irishman at that time had me down; Rang took the Irishman off from me; the Irishman then ran into his house and got his gun, and came out in the street again; I stepped toward him and told him I wanted to talk with him; he said I must not come near him as the gun would go off; I said to him, “What have I done to you that you treat me in this way?” and that I did not want to hurt him; I saw the gun in his hand at this time; I was in reach of the gun, and tried to push it away, as I saw that he was going to shoot me, but could not; he then shot me in the bowels; I never had any difficulty with the Irishman before; his name is James Murphy.
Sworn and subscribed, etc., and signed by four witnesses.
The instructions given on both sides are sufficiently characterized and described in the opinion of the court.
The following are the first, second, eighth and ninth instructions asked by the defendant and refused by the court:
1. If the jury believe, from the evidence, that Murphy, at his own gate, had a loaded gun in his hands, for the purpose of defending himself from a real or fancied assault of Shies, or his comrades, and Shies hold the muzzle of the gun, and in a struggle or controversy over the gun, or for the possession of it, or to turn it aside, Shies thereby in any manner contributed to the discharge of the gun, and that the gun went off and wounded Shies, of which wound Shies died, then the jury must acquit Murphy; and if, from all the evidence in the case, there is a reasonable doubt whether or not such is really the fact in the case, the jury should acquit, it being the duty of the jury to give the defendant the benefit of every reasonable doubt.
2. If the jury believe, from the evidence, that both Shies and Murphy had a struggle about a gun, and in that struggle the gun went off and wounded Shies, of which wound Shies died, and that that struggle contributed in any degree to the discharge of the gun, then the jury should find for the defendant; and if there is a reasonable doubt, based upon and growing out of the evidence, whether or not such was the fact, then the defendant is entitled to the benefit of that doubt, and then the jury should acquit.
8. If, from the evidence, it is uncertain in the minds of the jury whether the discharge of the gun spoken of in the case was the sole act of Murphy, or was the joint act of Murphy and the deceased, then they must find the prisoner not guilty.
9. If the jury believe, from all the evidence in this case, that Murphy had hold of one end of the gun in question, and Shies, the deceased, the other, and in a struggle over the gun for the possession, and then if the gun in question went off and killed Shies, and that the struggle over the gun was the real cause of the discharge of the gun, then in that case the jury should acquit.
Five other instructions were asked by the defendant, and refused, but are regarded as having been embraced in those already given.
The jury returned a verdict of guilty of manslaughter, and fixed the term for the confinement of the defendant in the penitentiary at twenty-five years.
The defendant thereupon moved for a new trial and in arrest of judgment, and in support thereof presented the affidavits of the clerk of the County Court and sheriff, which are not preserved, however, in the bill of exceptions.
The court overruled the motion, but the defendant below neglected to make the affidavits on which the motions were based a part of his bill of exceptions.
Judgment was entered on the verdict and the defendant sued out a writ of error assigning the several grounds above indicated.
B. F. PARKS, for plaintiff in error.
CHARLES BLANCHARD, State's Attorney for the people. Mr. CHIEF JUSTICE WALKER delivered the opinion of a majority of the court:
It is insisted that the court below erred in refusing to quash the venire for the petit jury. That a panel was chosen, and a venire facias was issued requiring the attendance of the jurors on the third week of the term, whilst it was afterwards changed, without authority, requiring their attendance on the second week, and they were summoned and attended at the latter named time. And that accused was thereby compelled to select a jury from the panel chosen for a different week than that on which he was tried. The court was convened on the 6th day of February, 1865, and the trial commenced on the 21st day of that month. It thus appears that the trial was had during the third week of the term. But the affidavits of the sheriff and the clerk are not made a part of the record by a bill of exceptions, and cannot, therefore, be considered, and we are unable to see from the record, that accused did not have the proper panel from which to select a jury on his trial. But we are not prepared to hold, that such a change, if it had occurred, would have been ground of reversal.
The accused, on the trial below, peremptorily challenged a juror, because he was over sixty years of age, but the court refused to allow the challenge, which is assigned for error It was held in the case of Davis v. The People, 19 Ill. 74, that this was not a disqualification, but was an exemption or privilege of which the juror could alone avail himself. But was not ground of challenge by either party. We see no reason...
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