Peak v. People of State

• Decision Date: 31 January 1875
• Citation: 76 Ill. 289,1875 WL 8192
• Parties: GEORGE C. PEAKv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

76 Ill. 289

1875 WL 8192 (Ill.)

GEORGE C. PEAK

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

January Term, 1875.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the County Court of Scott county; the Hon. THOMAS P. ROWEN, Judge, presiding.

This was a prosecution against George C. Peak, for bastardy, on the complaint of Elzina Laws. The defendant was convicted, and this writ of error is prosecuted by him to reverse the judgment.

Mr. JOHN G. HENDERSON, Mr. N. M. KNAPP, and Mr. JAMES M. RIGGS, for the plaintiff in error.

Mr. JAMES M. EPLER, for the People.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

A preliminary question is raised here as to whether the writ of error lies, it having been sued out to the county court from a judgment of conviction there, in a bastardy proceeding. This case was once before this court on appeal from the circuit court, and the judgment of that court was reversed, and that of the county court left in force, the court holding that, as no appeal to the circuit court had been provided by statute in this class of cases, none would lie to the circuit court, or thence to this court. The plaintiff has now sued out a writ of error from the judgment in the county court.

The “Act concerning Bastardy,” Laws 1871-2, p. 198, under which the case was instituted and prosecuted to judgment, does not provide for any review whatever of the proceedings of county courts in such cases. Unless this writ of error lies, the judgment of the county court is final and beyond review. Section 8, article 6, of the present constitution provides that, “Appeals and writs of error may be taken to the Supreme Court held in the grand division in which the case is decided.”

There is no limitation to any particular class of courts. Sec. 2, art. 6, provides that the Supreme Court shall have original jurisdiction in cases relating to the revenue, in mandamus and habeas corpus, “and appellate jurisdiction in all other cases.” If this writ of error can not be maintained, then there is one class of cases in which this court has not appellate jurisdiction. It is not claimed that writs of error must be allowed, or that they are allowable, directly, to the county courts in all cases.

Where appeals to the circuit court are provided for, a party can avail himself of his constitutional right to have his case reviewed by this court by coming here through the circuit court. But in this case no appeal to the circuit court was provided, nor writ of error. Art. 6. sec. 19, of the constitution, provides that, “Appeals and writs of error shall be allowed from final determinations of county courts, as may be provided by law.”

No writ of error here has been provided by statute. But, “A writ of error is a writ of right by the common law, and lies in all cases, civil and criminal, except capital cases, but can, of course, be regulated by statute.” Unknown Heirs of Langworthy v. Baker, 23 Ill. 487. See also Bowers v. Green, 1 Scam. 42; McClay v. Norris, 4 Gilm. 370.

If provision by law, further than the constitution, be needed to authorize the writ, it is to be found in the common law. A right of appeal exists only by virtue of some statute giving it, being merely a statutory right. But it is otherwise with a writ of error. A writ of error to the circuit court, it is true, is expressly provided for by statute, but it was said, in Unknown Heirs of Langworthy v. Baker, supra, that, without the statute, it could be prosecuted as a writ of right belonging to all persons by the common law; and it was there held that, no appeal being allowed from the final order of the county court to the circuit court in that case--being an application by an administrator for the sale of the real estate of a decedent to pay debts--it would follow, necessarily, to prevent a failure of justice, that error should lie to this court.

In Schlattweiler v. St. Clair County, 63 Ill. 449, the right to a writ of error was held to be a constitutional right.

Holden et al. v. Herkimer et al. 53 Ill. 258, which has been cited as an opposing authority, is consistent. That case was one of a writ of error to the Common Pleas Court of the city of Mattoon, and the writ was held not to lie. But there the statute gave a right of appeal to the circuit court. There was no necessity for the writ of error to prevent a failure of justice. An appeal might have been taken to the circuit court, and from the decision there, by appeal or writ of error, the judgment of this court might have been had on the case. Had there been no appeal to the circuit court, the decision would have been to the contrary, to be in conformity with Unknown Heirs of Langworthy v. Baker, supra, and there was no intention to overrule the latter case. We hold that the writ of error lies.

The county court gave the following instructions to the jury, on behalf of the people:

“The court instructs the jury that, in this case, it is not incumbent upon the people to show, by a clear preponderance of evidence, that the defendant, George Peak, is the father of the child charged to be his in the complaint, but it is sufficient if the evidence creates probabilities in favor of that opinion, and that the weight of evidence inclines to that side of the question.”

“The court further instructs the jury, for the people, that the maxim, ‘false in one statement, false in all,’ should only be applied in cases where a witness wilfully and knowingly gives false testimony. And...