North v. People

• Decision Date: 31 October 1891
• Citation: 28 N.E. 966,139 Ill. 81
• Parties: NORTH v. PEOPLE.
• Court: Illinois Supreme Court

139 Ill. 81

28 N.E. 966

NORTH

v.PEOPLE.¹

Supreme Court of Illinois.

Oct. 31, 1891.

Error to circuit court, Livingston county; ALFRED SAMPLE, Judge.

Indictment of Daniel North for murder. Defendant was convicted, and he brings error. Reversed.C. C. Strawn and A. C. Norton, for plaintiff in error.

Atty. Gen. Hunt and H. H. McDowell, State's Atty., for the People.

SCHOLFIELD, C. J.

At the October term, 1890, of the Livingston circuit court, the plaintiff in error, Daniel North, was convicted of the murder of William Hodge, and sentenced to suffer the extreme penalty of the law,-death. Hodge was acting as city marshal of Pontiac, and it is claimed on behalf of the people that he was fatally shot by North while attempting to arrest him for carrying concealed weapons. It is not denied on behalf of North that he fatally shot Hodge, but it is claimed on his behalf that he did so while acting in his necessary self-defense; or, at least, that the conduct of Hodge, at and immediately before he thus shot, alone caused him to shoot; and that this conduct was a provocation apparently sufficient to make the passion irresistible, and so he is only guilty of manslaughter. No witness who testified on the trial heard what was said between Hodge and North at and immediately before the time the fatal shot was One witness only claimed to have observed the parties as they met. He thinks Hodge put his hands on North's shoulders, and then, in about the time a pistol could be drawn, he heard a shot, and saw smoke coming away from Hodge's clothing, and then both went in a ditch, soon after which another shot was fired. Other witnesses heard the shot, but saw nothing before, and them, just after the shot, observed Hodge strike North, from the effect of which North fell upon his hands and knees, and then another shot was fired. The evidence is that North fired both shots, and that Hodge used a policeman's ‘billy’ in striking North, inflicting therewith a contused wound of about two inches in length, from which blood flowed. Hodge was mortally wounded by one of the shots; the attorney or the people contending that it was the shot first fired, and the attorney for North contending that it was the last fired. North was arrested at the time of the shooting, and immediately placed in jail, where he has ever since remained. Hodge died from the effects of his wound a few minutes after 12 o'clock on the next day. A dying declaration of Hodge, which shall be hereinafter considered, was read in evidence on the trial, and in it Hodge said he arrested North, when he met him, for carrying concealed weapons, and requested North to surrender his pistol; that North told him to go away, and then shot, just as Hodge was reaching for North's pistol, and that it was that shot only which took effect.

The shooting occurred on the 21st day of July, 1890, and the first term of the circuit court to be held in Livingston county after that date was the October term, 1890, which convened on the 14th day of that month. On the 18th day of that month the grand jury returned an indictment against North for murder, and five days thereafter (on the 23d of the month) he was arraigned, and furnished with a copy of the indictment, with the names of witnesses indorsed on the indictment, and with a list of jurors. On the 7th of November, 1890, the case was called for trial, and North then entered his motion to continue the cause, and, in support of his motion, he read his own affidavit, in which he stated, among other things, that he had been unable to prepare his defense by reason of his being in jail, and of his having no means wherewith to employ counsel; that he wished Messrs. Strawn & Norton to defend him, and had a conditional contract with them to that effect, but that they would do nothing until the amount of their stipulated compensation was raised, which he had been unable to have done; that he had had communication with his father, who was taking steps to raise the requisite means as rapidly as possible; and that he expected soon to have them. And he also read the affidavit of one of the counsel named in corroboration of his affidavit, but the court overruled the motion, and thereupon Messrs. Strawn & Norton, who had acted as counsel for North when he was arraigned, and in making this motion for continuance, withdrew from the case, and declined to voluntarily act further as his counsel. The court, therefore, appointed Messrs. Strawn & Norton as counsel to defend North, and also ordered the case to be set down for hearing on the 17th of November. Thereupon, on the last-named date, North, by his counsel, applied for a change of venue, on account of the prejudice of the presiding judge, which was allowed, and another judge was immediately called in to preside, and did thereafter preside, in the court, and the cause was, by that judge so presiding, set down for hearing on the next day, the 18th of November. On that day North made a second application for a continuance of the cause, and supported it by affidavits as follows: ‘Daniel North deposes that he has been in jail ever since the time of the alleged homicide, July 21, 1890; that he was 26 years of age November 30, 1889, and is a farmer and ditcher by occupation; that, as set forth in former affidavit, he has been unable to procure counsel to advise him as to his rights, and unable, for want of means, to hunt up and ascertain material witnesses in his behalf, and has been unable, for want of means, to have anything done in the preparationof his defense until November 7, 1890, when Strawn & Norton were appointed by the court to defend him; that since that time he and his said attorneys have worked diligently and industriously, as circumstances would permit, to ascertain the facts in the case, and learn the names and whereabouts of such persons as may have witnessed the facts and circumstances leading up to the alleged shooting, but they have been unable to be ready for trial at this time, as hereinafter shown; that, imprisoned, defendant has been able to do but very little to assist his attorneys in the premises; that he is informed and believes that the witnesses for the prosecution will fix the time of the alleged shooting at or between 9 and 10 o'clock in the forenoon of July 21, 1890, and the place as near the Smith House, in Pontiac, and a populous part and near the business center of the city, and defendant is sure and certain that some person or persons not yet known must have been eye-witnesses to the facts which led up to and caused the alleged shooting; that defendant had not the slightest intention of assaulting Hodge or any other person, and did not do so except in his necessary self-defense; that though affiant was much intoxicated at the time, as shown in his affidavit of November 6, 1890, made part hereof by reference, he believes that Hodge came upon him in a very threatening manner, and demanded defendant's revolver, and that he refused to give it to him, and defendant tried to go away from him, but Hodge followed him up, and struck him several heavy blows on the head with a club or some other heavy weapon, and so dazed and stunned him that he has little or no knowledge of what subsequently occurred, except as he has it from hearsay; that since a knowledge of the facts, as now claimed by the prosecution, came to him since his imprisonment, he has, diligently as his imprisonment would permit, endeavored to ascertain the names of eye-witnesses of what occurred between defendant and Hodge leading up to the alleged shooting, and other facts and circumstances attending the same, but has been unable to do so until about the hour of 7 o'clock last evening, November 17, 1890, when he learned for the first time of the facts stated in the affidavit of Charles Lake filed herewith; that defendant has every reason to believe, and does believe, that the facts stated in said affidavit of Lake are true, and that the runner therein mentioned was an eye-witness to the matters and things related to said Lake as stated in said affidavit; that, if this cause shall be continued to the next term of this court, defendant has no doubt but that his attorneys and friends will be able to trace and ascertain the name and whereabouts of said runner from the hotel register in Pontiac, where said runner put up on the day of the alleged shooting, and have him in attendance upon this trial as a witness in defendant's behalf; that he is informed and believes that runners upon the road are most generally acquainted with each other, and by taking all of the names from the hotel registers in this city for the day in question he verily believes he will be able to ascertain the whereabouts of some of them, and that by conferring with them he will be able to trace up all of them, including said runner referred to in said Lake's affidavit; that it is reasonable to suppose, and he verily believes, that other persons yet unknown were eye-witnesses to said facts and circumstances, and, now that he has attorneys to look after and manage his defense, he will be able to ascertain their names, and have them present at the next term of this court to testify in his behalf; that Pontiac is a city of about 3,000 inhabitants, and there are only two or three hotels of any importance in the city, and it will not be difficult to trace up the transients stopping at them on a given day; that this is the first term of court since the alleged shooting, and under the unfortunate circumstances of the case it would be most unjust and unnecessary to compel defendant to submit to trial at this time; that the materiality of the testimony of said runner, and of other witnesses defendant believes he will be able to produce by the next term of court, consists in this: that it will show that Hodge violentlyassaulted affiant in such manner as to cause a reasonable man to believe that his life was in danger; that affiant knows of no other witness...