Pate v. People of State

• Decision Date: 31 December 1846
• Citation: 3 Gilman 644,8 Ill. 644,1846 WL 3901
• Parties: ALONZO PATEv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

3 Gilman 644

8 Ill. 644

1846 WL 3901 (Ill.)

ALONZO PATE

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

December Term, 1846.

OPINION TEXT STARTS HERE

INDICTMENT for forgery, in the Adams circuit court, against the present plaintiff in error, at the April term 1845, tried before the Hon. RICHARD M. YOUNG. The jury found the defendant guilty and fixed the period of his imprisonment in the penitentiary at nine years. Judgment accordingly.

The instruments charged to have been forged are set forth in hæc verba in the opinion of the court, as also the material portions of the evidence, etc.

A. WILLIAMS, for the plaintiff in error, stated the points only which were relied on for a reversal of the judgment of the circuit court.

A. WHEAT, for the people.

The counsel for the plaintiff in error seem to have abandoned their first assignment, not having urged anything in support of it.

The second is equally untenable. If it be right ever for the jury to be informed of the fact, that the evidence introduced by a party in his own favor was manufactured by himself for the occasion--and of this there can be no doubt--then was it right for the jury in this case to be informed of the erasures and alterations to which Phillips testified. And the only question upon this point is, in what manner should they be informed of it? It is conceded that an inspection of the papers by the jury would be one mode, but it is denied that that is the only mode. When the papers are not brought into court the mode first suggested would be impossible, and it would be the least satisfactory in many cases where they are brought in. Phillips was an expert, and as such, was better able from experience to point out the erasures and alterations than the jury, who are presumed not to have made it a business to examine writings with a view of detecting the spurious from the genuine. Besides dimness of eyesight in some of the jury would render the mode resorted to in this case absolutely indispensable.

The objection to Crawford's testimony was properly sustained. It is not sufficient that a witness has barely seen a party write; he must be acquainted with his handwriting, or have some notion of its character from having seen him write, or from a correspondence with him, before he will be permitted to express an opinion relative to it. And if it appear that the witness's knowledge was acquired under such circumstances, as would show that the party had a motive for disguising his handwriting, then he is incompetent. Else a party would be permitted to manufacture testimony for himself. 1 Esp. 14; 2 Stark. Ev. 374; 3 Phillips on Ev. 1322; Doe ex. dem. Mudd v. Suckermore, 31 Eng. Com. Law R. 406. Such is the case here. Crawford never saw the plaintiff write until after the papers charged to have been forged by him made their appearance, or under any other circumstances than would show he had the strongest motive for disguising his handwriting. Besides, it appeared from the evidence at the same time, that the plaintiff, from the commencement of the transaction seemed to be impressed with the belief, that in order to make the papers avail him, it was necessary for him to procure testimony, aliunde the papers themselves, that they were not executed by him but by Randall, and that he had actually made sundry attempts to do so.

The instructions asked for by the prosecuting attorney are law. 1 Stark. Ev. 487, 496, 513-14, 523. And they are not mere abstract propositions, but have direct relevancy to the case. But if they were mere abstract propositions of law, the giving them would not be error, for they could not have misled the jury. 5 Ohio 556, 240; 1 Dana 156; 9 Cowen 680.

The counsel for the plaintiff are mistaken in supposing that the court below refused the instructions prayed for by them. The record shows that these instructions were given with a single qualification as to the meaning of a reasonable doubt, which, when taken altogether, is substantially correct and could not have misled the jury.

This court has already decided in the case of McKinney v. The People, 2 Gilm. 540, that unless it affirmatively appear from the record that the jury dispersed without the consent of the prisoner, it would presume such consent; and also that a sworn officer attended the jury when they retired to consider of their verdict, unless it should in like manner appear from the record that one did not. That case is conclusive of these two points in this.

At common law, a new trial can not be granted in a case of felony where the proceedings are regular. 1 Chitty's Crim. Law 653; The People v. Comstock, 8 Wend. 549. We proceed in criminal cases according to the course of the common law (Rev. Stat. 186 § 188), and therefore our courts possess no power to grant a new trial in cases of felony. At most, our courts possess but a discretionary power in the matter, and consequently a refusal to grant a new trial in such a case, could not be assigned for error. The 23d section of the Revised Statutes, 416, applies only to civil cases.

O. C. SKINNER, upon the same side, cited the following authorities: 1 Phil. Ev. 290; 4 Durn. & East. 497, bottom page; 8 Vesey 474, and note; Ibid. 476, notes; 1 Phil. Ev. 217-18; 31 Eng. Com. Law R. 406; 2 Pirtle's Dig. 106, §§ 7, 10; Wilcox's do. 377; Roscoe's Crim. Ev. 96; 1 Phillip's Ev. 491.

O. H. BROWNING AND N. BUSHNELL, for the plaintiff in error.

1. We insist that it was error in the court below to permit the jury to disperse after having been sworn, and after evidence had been submitted to them.

By the criminal code of this state, all trials for criminal offences are to be conducted according to the course of the common law, except when a different mode is pointed out by the criminal code. Rev. Laws, 1833, 213 § 178.

By the rules and requirements of the common law, the jury must be kept together, in criminal cases, after evidence given upon the issue. 3 Thomas' Coke, 392.

And this rule of the common law has not been repealed or modified by our statute. It was therefore improper in the court to permit the jury, in this case, to disperse after evidence had been given and progress made in the trial, which, however, they repeatedly did; and where there has been an improper separation of the jury during the trial, if the verdict is against the prisoner, he is entitled to the benefit of a presumption that the irregularity has been prejudicial to him; and it is incumbent upon the government to show, and that beyond a reasonable doubt, that the prisoner has suffered no injury by the departure from the forms usually pursued in the administration of justice. State v. Prescott, 7 New Hamp. 292; People v. McKay, 18 Johns. 217.

These irregularities may not have affected the prisoner, but that is not enough. Even if it was probable they had not, mere probability would not suffice. State v. Prescott, 7 New Hamp. 297; Commonwealth v. McCall, Va. Cases, in note in 1 Cowen 236-7; Brant ex. dem. Buckbee v. Fowler, 7 Cowen 562.

2. The court erred in permitting the jury to retire to consider of their verdict, without being attended by a sworn officer.

The record is silent upon this subject. It does not show whether the jury was, or not, attended by a sworn officer.

The law is imperative, that when the jury retire to consider of their verdict in any criminal case, a constable or other officer, shall be sworn to attend them. Rev. Laws, 1833, 214 § 179.

And the court can not presume, in the absence of any statement upon the subject, either that it was done, or that it was dispensed with by the consent of parties.

It is, as a general principle, right to presume that the court has acted correctly in all cases of discretion, unless the contrary appears of record; but, even in cases of discretion, no material proceeding which is entirely omitted can be supplied by intendment. Jones v. The State, 2 Blackf. 479; Commonwealth v. Doty, 2 Metc. 18; Van Doren v. Walker, 2 Caines 373; Fink v. Hall, 8 Johns. 437; Beekman v. Wright, 11 Johns. 442, and authorities before cited.

But, here, no discretion is reposed in the court. The law is explicit and imperative, that in all criminal cases an officer shall be sworn to attend the jury. This is admitted to be the law; but it is insisted that when the record is silent upon the subject, it is to be presumed that the requisitions of the law were complied with, and such is understood to be the doctrine held by the court in the case of McKinney v. The People, and the reason assigned is, that swearing an officer to attend upon the jury constitutes no part of the regular proceedings in the progress of the trial, and need not, therefore, be shown by the record to have been done.

But ought it not to appear of record? The law has devolved upon the court the duty of seeing that in criminal cases, above misdemeanors, the jury shall not retire unless attended by a sworn officer of the court, and the record is intended to preserve the evidence of the acts performed by the court during the progress of the trial, that nothing may be left to inference or intendment, but that the regularity and legality of the proceeding may be manifested by the record.

All trials for criminal offenses shall be conducted according to the course of the common law, and, according to the course of the common law, it was deemed necessary for the record to show, in criminal cases, that the juries were attended, when they retired, by sworn officers. King v. Stone, 6 D. & E. 246, top paging.

It is also said, that when it does not appear from the record that a sworn officer attended the jury, it may be fairly presumed that the defendant consented that they might retire without. This is a presumption which, under our statute, can not be indulged. The proviso to the section providing for the attendance of a sworn officer is: “That in cases of misdemeanor only, if the prosecutor and the person on trial shall agree, which agreement shall be entered upon the...