People v. Curran

• Decision Date: 05 February 1919
• Docket Number: No. 11861.,11861.
• Citation: 286 Ill. 302,121 N.E. 637
• Parties: PEOPLE v. CURRAN et al.
• Court: Illinois Supreme Court

286 Ill. 302

121 N.E. 637

PEOPLE

v.CURRAN et al.

No. 11861.

Supreme Court of Illinois.

Dec. 18, 1918.

Rehearing Denied Feb. 5, 1919.

Error to Appellate Court, First District, on Error to Criminal Court, Cook County; Kickham Scanlon, Judge.

Frank Curran and others were convicted of conspiracy, and, to review judgment (207 Ill. App. 264) of Appellate Court affirming conviction, they bring error. Affirmed.

Willard M. McEwen, Benedict J. Short, Joseph R. Burres, and William J. Maher, all of Chicago, for plaintiffs in error.

Edward J. Brundage, Atty. Gen., and Maclay Hoyne, State's Atty., and James H. Wilkerson, both of Chicago (Edwin J. Raber, Edward E. Wilson, Marvin E. Barnhart, and

Nicholas Michels, all of Chicago, of counsel), for the People.

CARTWRIGHT, J.

Fifty-four persons were indicted in the criminal court of Cook county for the crime of conspiracy, and 25 of them were put on trial at the April term, 1916. The prosecution dismissed the indictment as to several, 3 were found not guilty, and 14 were convicted and sentenced to pay fines or to be confined in the penitentiary. Two of the defendants who were fined paid their fines, and the remaining 12 sued out writs of error from the Appellate Court for the First District, where the judgment was affirmed, and they sued out a further writ of error from this court.

There were 16 counts in the indictment, the seventh and sixteenth of which were dismissed by the state's attorney, and the court overruled a motion to quash the remainingcounts. All of the counts except the third, which concluded contrary to the statute, charged a conspiracy as at common law. The principal objection is that, as the counts contain the essentials of an offense under the Criminal Code (Hurd's Rev. St. 1917, c. 33, §§ 1-594), they should have concluded against the form of the statute. The third count, which was under the statute, was substantially in the words of the first count in the case of Thomas v. People, 113 Ill. 531, where it was held good, and the remaining counts charged a conspiracy to commit unlawful acts and were in every respect sufficient. If an act is an offense both against the common law and the statute, the prosecutor may proceed under either the statute or the common law, or both. Chicago, Wilmington & Vermilion Coal Co. v. People, 214 Ill. 421, 73 N. E. 770. It was not necessary, to constitute the offense of conspiracy at common law, that the object of the conspiracy should constitute a criminal act, but it was sufficient if the object was unlawful though not indictable. Smith v. People, 25 Ill. 17, 76 Am. Dec. 780. The court did not err in denying a motion to quash the indictment or any count thereof.

The bill of exceptions does not show any motion of the defendants for a bill of particulars, and the error alleged in not requiring the same cannot be considered. Star Brewery v. Farnsworth, 172 Ill. 247, 50 N. E. 228.

On April 27th, four jurors, including Brown and Shaw, were accepted by both sides and sworn to try the issue, and thereby became a part of the jury. Sterling Bridge Co. v. Pearl, 80 Ill. 251. Nine days afterward, during the examination of the second four, the court excused Brown for physical incapacity, and each defendant then interposed a peremptory challenge to the juror Shaw. The peremptory challenge was overruled, and another juror was called in place of Brown, examined, accepted, and sworn. It is contended that the court erred in denying the peremptory challenge of Shaw, and the basis of the claim is the provision of the statute that the jury shall be passed upon and accepted in panels of four by the parties. At the common law each juror was sowrn as he was chosen (4 Blackstone's Com. 352; 1 Chitty on Crim. Law, 547), and there was no right to a peremptory challenge after the juror was sworn. Under our statute there must be twelve jurors in the box and each panel of four must be accepted by both parties before calling up another, and until both sides accept a panel of four the statute permits either side to challenge peremptorily a juror tendered to the other side. People v. Gray, 251 Ill. 431, 96 N. E. 268. Neither that case nor the case of Sterling Bridge Co. v. Pearl, supra, involved in any manner the question whether a peremptory challenge may be allowed after a juror has been sworn. At common law, when a juror was taken ill during a trial the whole jury was discharged, and when the same eleven, with another, were presented the second time as a new jury, the prisoner had a right to challenge any of them as if they had never been previously in the panel. 1 Chitty on Crim. Law, 545.

In Stone v. People, 2 Scam. 326, Stone was indicted for murder, and after the trial began it was discovered that one of the jurors was an alien, and he was discharged. It was assigned for error that when the juror was withdrawn from the jury the whole jury should have been discharged. That was not done, but the place of the juror was filled, and the trial was begun anew. The court stated the rule of common law where a juror was withdrawn by reason of sickness or any other cause, or where the death of any one ensued during the trial, the remaining jurors were to be discharged, and the prisoner, unless he consented to have the eleven remain, must be tried by another jury, which, of course, was a good reason for allowing a peremptory challenge when the same persons were again presented on the new jury. The withdrawal of the juror was held proper, and the court said, the remaining eleven jurors being all competent and having been all chosen and accepted as well by the prisoner as the prosecutor, it would have been irregular to have dischargedthem. The court also referred to a statute in force at that time; but the provision of the statute is conceded now to be the law, and, regardless of any statute, if a juror is discharged it is lawful for the court to cause another to be called in his stead.

In Baxter v. People, 3 Gilman, 368, the court said that, in case a juror becomes unabl to go on with the trial, the court, on ascertaining the fact, will either suspend the trial or discharge him and impanel another in his place and commence the trial again.

In City of Shawneetown v. Mason, 82 Ill. 337, 25 Am. Rep. 321, a juror was taken sick and discharged and a new juror was summoned in his place and the trial was begun de novo. The counsel for the defendant moved that the remaining eleven jurors be also discharged, but the court overruled the motion and was sustained by this court.

In Mayers v. Smith, 121 Ill. 442, 13 N. E. 216, it was held that under our statute, after a panel of four jurors has been passed upon and accepted by both parties and another panel is called, the party having peremptory challenges will not have the right to go back and challenge peremptorily and one of the jurors accepted although they have not been sworn, and the court said that, whatever may have been the rule at common law, under our statute the right to a peremptory challenge is cut off with respect to any one of a panel of four jurors which has been passed upon and accepted by both parties. That case was referred to in People v. Gray, supra, as not applicable to the decision, because in Gray's Case a panel of four had not been accepted by both sides, while in this case the panel of four had been accepted by both sides and sworn to try the issue. The rule of all courts, without exception, has been that it is not a right of either party to peremptorily challenge a juror after he has been sworn. State v. Lyons, 70 N. J. Law, 635, 58 Atl. 398;Santry v. State, 67 Wis. 65, 30 N. W. 226;Cooley v. State, 38 Tex. 636;State v. Armington, 25 Minn. 29;Sackett v. Ruder, 152 Mass. 397, 25 N. E. 736,9 L. R. A. 391;People v. Reynolds, 16 Cal. 128;Bradham v. State, 41 Fla. 541, 26 South. 730;Kurtz v. State, 145 Ind. 119, 42 N. E. 1102;Myers v. State, 43 Fla. 503, 31 South. 275;People v. Carpenter, 102 N. Y. 238, 6 N. E. 584; 1 Bishop on Crim. Proc. § 945; 24 Cyc. 363.

Counsel have failed to find any case in which it has been decided that, after a juror is accepted and sworn and has become one of the jury to try the issue, he can be challenged peremptorily as a matter of right. Certainly there is no material distinction in that respect between statute and practice, by which jurors are accepted one at a time or four at a time or the whole twelve. After four jurors are accepted and sworn, they become jurors in the case and no longer constitute a panel, and if a juror should be excused after all are sworn or at any time during the course of the trial, which is as likely to happen as what occurred in this case, the court could not go back and divide the jurors into panels and treat a juror as one of a panel broken by his discharge and to be agains presented for acceptance. The statute was complied with in this case when a panel of four was passed upon, accepted, and sworn, and the time had passed when the defendants, having had an opportunity to peremptorily challenge the juror Shaw, had accepted him to try the issue. The court did not err in denying the peremptory challenge.

The plaintiffs in error were proved guilty beyond the semblance of a doubt, and no other verdict could have been reached by a jury giving any consideration to the evidence. The plaintiffs in error were members and business agents of labor unions-the Painters' District Council, the Glaziers' Union, the Wood Finishers' Union, and the Fixtures Hangers' Union. Every Monday the board of business agents caused to be prepared a list called ‘glass list,’ which contained the location of property charged to be unfair to the unions concerned in the list. Supplemental lists were made on Wednesday and Friday, on which some pieces of property were taken off and others were added at the direction of the various business agents. Copies of these lists were mailed to all dealers in glass in Chicago, who would refuse to furnish glass for any...