Ochs v. People

• Decision Date: 09 May 1888
• Citation: 124 Ill. 399,16 N.E. 662
• Parties: OCHS et al. v. PEOPLE.
• Court: Illinois Supreme Court

124 Ill. 399

16 N.E. 662

OCHS et al.

v.PEOPLE.

Supreme Court of Illinois.

May 9, 1888.

Error to appellate court, First district.

Alexander Sullivan

and William Brown, for plaintiffs in error.

George Hunt, Atty. Gen., Joel M. Longenecker, State's Atty., ( Stiles & Lewis, of counsel,) for defendant in error.

SHELDON, C. J.

The indictment in this case charges the defendants with the crime of conspiracy to obtain money from Cook county by means of false pretenses. It was returned into the criminal court of Cook county on April 2, 1887, against Adam Ochs, Michael Leyden, John E. Van Pelt, Michael Wasserman, Daniel J. Wren, Harry A. Varnell, John Hannigan, George C. Klehm, James J. McCarthy, Charles, F. Lynn, Richard S. McClaughrey, Christian Casselman, Richard M. Oliver, Christian Geils, William J. McGarigle, Frederick W. Bipper, Charles L. Frey, and Edward S. McDonald. McGarigle, McDonald, Hannigan, Bipper, and Frey were not put on trial. Klehm and Lynn entered a plea of guilty. The other 11 defendants were tried at the June term, 1887, of said court, the jury rendering a verdict of guilty, and fixing the punishment of Ochs, Leyden, Van Pelt, Wasserman, McClaughrey, and Varnell at imprisonment in the penitentiary for the term of two years, and imposing upon McCarthy, Casselman, Oliver, and Geils a fine of $1,000 each. After overruling motions for a new trial and in arrest of judgment, judgment was pronounced in accordance with the verdict. Ochs, Leyden, Van Pelt, Wasserman, Wren, and Varnell, by writ of error, took the case to the appellate court for the First district, where the judgment as to them was affirmed, and they now, by writ of error, bring the record here for review.

At the June term of the court, the defendants before commencement of the trial, entered their motion to be discharged for want of prosecution, under section 438 of the Criminal Code, and the overruling of this motion is assigned for error. That section is as follows: ‘Any person committed for a criminal, or supposed criminal, matter, and not admitted to bail, and not tried at or before the second term of the court having jurisdiction of the offense, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner. If such court, at the second term, shall be satisfied that due exertions have been made to procure the evidence for and on behalf of the people, and there are reasonable grounds to believe that such evidence may be procured at the third term, it shall have power to continue such case till the third term. If such prisoner shall have been admitted to bail for a crime other than for a capital offense, the court may continue the trial, of said cause to a third term, if it shall appear by oath or affirmation that the witnesses for the people of the state are absent, such witnesses being mentioned by name, and the court shown wherein their testimony is material.’ The criminal court of Cook county has 12 terms each year, commencing respectively on the first Monday of each month. April 2, 1887, the day on which the indictment in this case was returned into court, was the last day of the March term. The April term commenced on the 4th day of April, and Ochs, Wasserman, and Varnell were arrested and admitted to bail April 6, Leyden April 8, and Van Pelt April 9. The object of this provision of the statute appears to be to fix an absolute limit of time within which the prosecution must bring the prisoner to trial, and beyond which there shall be no continuance on account of the absence of evidence for the people; and to fix, as this limit, three terms of the court. Is the term during which a prisoner is committed or admitted to bail to be counted as one of these terms? The prisoners in this case having been arrested and admitted to bail at an early day of the April term, might possibly have been brought to trial at that term. But suppose their admission to bail had been on the last day of the term, or but just before its adjournment; it would then have been impossible to have brought them to trial at that term, and nothing of default in that respect could be attributable to the prosecution. If in the case supposed, the April term should not be computed as one of the terms, neither should it be, we think, where the commitment or admission to bail might have been at any earlier day in the term. It is to be a fixed and certain rule in this respect of the first term, which is to apply in all cases where the commitment or admission to bail is during a term, and not to depend on what particular day of the term the commitment or admission to bail might have occurred. There being this peremptory limit of three terms within which the people must bring a prisoner to trial, we think they should be allowed the benefit of that period for the purpose,-that they should have not two terms and a fraction of another, but three terms; that is, three full terms. To count the term during which the commitment or admission to bail takes place as one of the terms-as the first term,-would really be but the allowance of two terms, where such commitment or admission to bail should be just at the close of the term. A statute of Virginia provided that ‘every person charged with felony, and held in any court for trial, shall forever be discharged from prosecution for the offense, if there be three regular terms of such court after he is so held, without a trial,’ unless the delay should be caused by the prisoner. In Sand's Case, 20 Grat. 800, the prisoner was brought into court on the first day of the term, and then entered into a recognizance for his appearance, and the supreme court of Virginia held that that term should not be counted as one of the three terms which must elapse before the prisoner would be entitled to his discharge under the statute; and see Bell's Case, 7 Grat. 646. Under the interpretation of the statute which we are disposed to adopt,-that the term during which the prisoner is committed or admitted to bail is not to be counted as the first term,-the prisoners were here brought to trial at the second term,-the June term; the May term being the first term and there was no ground for the motion to discharge, and it was properly overruled.

The discharge by the court of the jurors Tate, Ostrander, and Parks is assigned for error. After these persons had been accepted and sworn as jurors, but before the panel was completed, the state's attorney filed a petition, verified by affidavit, tending to show that they were improper persons to sit as jurors, and asking the privilege of re-examining said jurors for the purpose of exercising a peremptory challenge. The court permitted such re-examination, from which ti appeared that Tate, who was a stranger to the bailiff who served the special venire, was selected and summoned by the bailiff at the suggestion of another person who was also a stranger to the bailiff; that Tate and a brother of said Ostrander were intimate associates of Varnell, one of the defendants; that they had met together and discussed the subject of Varnell's connection with the matters in respect of which the indictment was found, and Tate had expressed a desire that Varnell should not be convicted; that the juror Ostrander was selected and summoned by the bailiff at the suggestion of said brother of Ostrander; that said Parks was an acquaintance of one Kelly, who was acting as a detective or messenger for defendants, and had conversed with him after being summoned as a juror, from which conversation it appeared that he, too, had been pointed out and selected by some person other than the bailiff; that in said conversation Kelly told Parks that certain other parties had given the bailiff Park's name, and that he, Kelly, had just come from Park's house, and something further that was suspicious appeared. Thereupon the court discharged these jurors. The re-examination tended to show bias on the part of the jurors in favor of the defendants, or one of them, and that there had been the exercise of outside influence to get them upon the jury. That there is a discretionary power in courts thus to discharge a juror after he has been sworn, is very well settled. Thomas v. Leonard, 4 Scam. 556;U. S. v. Morris, 1 Curt. 23;State v. Diskin, 34 La. Ann. 919;State v. Pritchard, 16 Nev. 101;State v. Bell, 81 N. C. 591. It is urged that it is only in the case of the disqualification of a juror that this power may be exercised. But the rule is by no means thus restricted, as a reference to the authorities will show. It was said in U. S. v. Perez, 9 Wheat. 580, that it is impossible to define all the circumstances which would render it proper for a court to interfere in the exercise of its discretion in the discharge of a jury. In a case of this character and magnitude the consequence of a mistrial from any cause would have been hardly less than a public calamity, and it was for the court anxiously to guard against any danger of such a contingency. We cannot say that there was here any abuse in the exercise of the court's discretion. Besides, in Spies v. People, 122 Ill. 1, 12 N. E. Rep. 865, it was recognized that any error with respect to challenges in the impaneling of a jury should be disregarded unless an objectionable juror had been forced upon the defendant after the exhaustion of his peremptory challenges. The same principle would seem to apply here, though the particular error complained of is different. It does not appear that the defendants' peremptory challenges were exhausted. And it was expressly stipulated in the case ‘that the twelve jurors sworn and retained to try the case were all accepted by the defendants without the interposition of a challenge, objection, or exception, there appearing neither to the court, the people, or the defendants any objection or cause of challenge to any of them.’ It does not appear otherwise than that the defendants had a fair and impartial jury....