People v. Callopy

• Decision Date: 24 October 1934
• Docket Number: No. 22479.,22479.
• Citation: 192 N.E. 634,358 Ill. 11
• Parties: PEOPLE v. CALLOPY et al.
• Court: Illinois Supreme Court

358 Ill. 11

192 N.E. 634

PEOPLE

v.CALLOPY et al.

No. 22479.

Supreme Court of Illinois.

Oct. 24, 1934.

Error to Criminal Court, Cook County; Joseph B. David, Judge.

William Callopy and another were convicted of robbery with a gun, and they bring error.

Reversed and remanded.

DE YOUNG, J., dissenting.Benjamin C. Bachrach and Sol. R. Friedman, both of Chicago (Walter Bachrach, Stanley J. Morris, and Adolph Moses, 2d, all of Chicago, of counsel), for plaintiffs in error.

Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson, J. Albert Woll, and Henry E. Seyfarth, all of Chicago, of counsel), for the People.

STONE, Justice.

Plaintiffs in error, William Callopy and Charles Kelly, were found guilty in the criminal court of Cook county of robbery with a gun. The cause is here on writ of error to review the judgment entered against them.

The court instructed the jury orally as to the law and reviewed the evidence, expressing opinion thereon in oral instructions. This was done over the objection of plaintiffs in error, on the ground that rule 27 of this court requires that ‘in criminal cases the court shall give instructions to the jury in accordance with section 67 of the Civil Practice act.’ This section of the Practice Act requires that the trial court instruct the jury only as to the law of the case and that such instructions be in writing. The validity of rule 27 presents the only question in this case.

Counsel for the people argue that this rule is in violation of the Constitution and the statute. It is not contended that section 67 of the Civil Practice Act of 1933 (Smith-Hurd Ann. St. c. 110, § 191) governs instructions to the jury in criminal cases. This Practice Act, though repealing the Practice Act of 1907, sections 72 and 73 of which required that instructions as to the law, only, be given and in writing, makes no provision for instructions in criminal cases, and no statutory enactment on that subject exists in this state (Smith-Hurd Ann. St. c. 110, §§ 72, 73). The specific question before this court, then, is whether it has power, in the absence of statutory enactment upon the subject, to adopt rule 27. Without going into the question, for it is not here, whether rules of practice prescribed by legislative enactment constitute an encroachment upon inherent powers of the judiciary, as is argued and held by much respectable authority, we have here the question whether this court has power to make a rule governing practice and procedure where no statutory enactment exists.

Section 1 of article 6 of our Constitution vests all judicial power, with exceptions noted in the judicial article, not material to this discussion, ‘in one Supreme Court, circuit courts, county courts, justices of the peace, police magistrates, and such courts as may be created by law in and for cities and incorporated towns,’ and the question here is whether the power to make rules comes within the power recognized and vested in this court by the Constitution. Article 3 of the Constitution of 1870 divides all powers of government of this state into ‘three distinct departments-the legislative, executive and judicial; and no person, or collection of persons, being one of these departments, shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted.’ The Constitution in the separation of powers does not clearly define the limits of such powers. This has been frequently recognized by this court. People v. White, 334 Ill. 465, 166 N. E. 100;People v. Morgan, 90 Ill. 558. Judicial power is vested in the Supreme Court and other courts of this state, but what constitutes judicial power is not defined nor limited by the Constitution. It must be said, therefore, that, so far as the provisions or limitations of the Constitution are concerned, there is vested in this court all power judicial in its nature. In order to ascertain what is meant by judicial power as vested in the courts of this state by the Constitution, recourse must be had to the history of our institutions prior to and at the time of the adoption of the Constitution and to the common law as it existed in this country at that time.

It is a matter of general information among those who have read legal history, that the common law of England, as it was changed to suit the genius of our institutions, afforded, prior to the adoption of our Constitution, the concept of judicial power. So it is necessary to look to the common law as one of the sources of information as to what constitutes judicial power, so far as that question is involved here. Did the rule-making power exist in the courts prior to the adoption of our Constitution? At the time of the formation of our government, in the latter part of the eighteenth century, and for nearly two centuries prior thereto, practice in the Court of King's Bench was governed by a series of general rules and orders made by the judges. As early as 1604, rules so made governed the filing of pleas and the making up of records after trial. The courts of Common Pleas and Exchequer were governed by general rules of procedure made by the judges as early as the fifteenth and sixteenth centuries, some of which were in force at the time of the Revolution. 1 Tidd's Practice (8th Ed.) 39-50. Thus judicial power, under the system which we inherited, included the regulation of procedure by rules of the superior courts of England. That system, as from time to time modified, was followed in this country prior to the adoption of our Constitutions and prior to any statutes on the subject. Dean Pound's Regulation of Judicial Procedure, 10 Ill. Law Review, 171.

There has grown up in this country the practice of providing rules of court by legislative enactment. Whether such, where exercised, has superseded courts, thus ousting them of the power, or whether the courts and legislatures have co-ordinate powers in relation to making rules of practice, is not here and requires no discussion, since there is no rule of practice in this state, other than rule 27 of this court, touching the question of instructions to juries in criminal cases. In People v. Kelly, 347 Ill. 221, 179 N.E. 898, 80 A. L. R. 890, it was held that the General Assembly has power to enact laws governing judicial practice where they do not unduly infringe upon the inherent powers of the judiciary. The question here specifically is whether, under the facts as they exist in this state, this court had power to enact rule 27, pertaining to the instructions to juries.

It is said that notwithstanding there is silence in the statutes touching practice as to the method of instructing juries in criminal cases, section 8 of division 13 of the Criminal Code (Smith-Hurd Ann. St. c. 38, § 736) prohibits the making of such rules by this court. It is also argued that rule 27 contravenes section 5 of article 2 of the Constitution, which provides that the ‘right of trial by jury as heretofore enjoyed, shall remain inviolate.’ Section 8 of division 13 of the Criminal Code, chapter 38 of Illinois Statutes, provides that ‘all trials for criminal offenses shall be conducted according to the course of the common law, except when this act points out a different mode,’ and it is argued that because of these provisions of the Constitution and the statute the procedure in force at common law must be followed, and that at common law the judge was empowered to instruct the jury orally as to the law, to sum up the evidence and give his opinion thereon. We come, then, to the question whether these provisions place a prohibition on the judiciary against the exercise of the rule-making power governing the trial of criminal cases.

The quoted language of section 8 of division 13 of the Criminal Code was first enacted by statute in 1827 (Rev. Laws of 1827, pp. 162, 163, § 176). In Sinopoli v. Chicago Railways Co., 316 Ill. 609, 147 N. E. 487, 490, this court considered the meaning of the language ‘right of trial by jury as heretofore enjoyed,’ as the same appears in section 5 of article 2 of the Constitution. The ordinance of 1787 was there referred to, and it was pointed out that by section 14 of article 2 of that ordinance it was provided that the inhabitants of the Northwest Territory should always be entitled to the benefits of trial by jury. This right was recognized by the Act of Congress of May 7, 1800 (2 Stat. 58), which divided that territory, and the Act of Congress of February 3, 1809 (2 Stat. 514), which again divided the territory, out of the western portion of which Illinois Territory was created. The latter act provided that the inhabitants of Illinois should be entitled to and enjoy all the rights and privileges and advantages granted to the people by the ordinance of 1787. When the Constitution of 1818 was adopted the right of jury trial was recognized as existing, and it was declared it should remain inviolate. This court in the Sinopoli Case said: ‘This referred to the right of trial by jury as it existedat the time that Constitution was adopted in the territory of Illinois, and had previously existed in the state of Virginia, and as it was guaranteed by the ordinance of 1787 and the acts of Congress constituting the territories of Indiana and Illinois.’ In People v. Kelly, supra, it is pointed out that in not all of the states of the Union was the practice of instructing the jury orally and commenting on the evidence followed: This is likewise shown in State v. Bissonnette, 83 Conn. 261, 76 A. 288. In Whitelaw's Ex'r v. Whitelaw, 83 Va. 40, 1 S. E. 407, 408, it was said: ‘However it may be elsewhere, in Virginia the courts have never indulged in the practice of making observations to the jury concerning the evidence. It is considered as encroaching too much upon the province of the jury.’ Again, in State v. Thompson, 21 W. Va. 756, it was said: ‘In England, as...