People v. Elliott

• Decision Date: 20 April 1916
• Docket Number: No. 10439.,10439.
• Citation: 112 N.E. 300,272 Ill. 592
• Parties: PEOPLE v. ELLIOTT et al.
• Court: Illinois Supreme Court

272 Ill. 592

112 N.E. 300

PEOPLE

v.ELLIOTT et al.

No. 10439.

Supreme Court of Illinois.

April 20, 1916.

Error to Appellate Court, Third District, on Writ of Error to Circuit Court, Macon County; W. K. Whitfield, Judge.

Michael Elliott and another were convicted, and judgment being affirmed by the appellate court, bring error. Reversed and remanded, with directions.J. C. Lee and Fred Hamilton, both of Decatur, for plaintiffs in error.

P. J. Lucey, Atty.

Gen., Jesse L. Deck, State's Atty., of Decatur, George P. Ramsey, of Springfield, and Charles F. Evans, of Decatur, for the People.

CARTWRIGHT, J.

Michael Elliott and Otho Jennings, plaintiffs in error, and James Howe and Richard Smith, were indicted in the circuit court of Macon county for selling intoxicating liquor in the town of Decatur, alleged to be anti-saloon territory. There were 71 counts in the indictment, the first 70 being for the unlawful sale of intoxicating liquor and the seventy-first for keeping a place where intoxicating liquor was unlawfully sold. James Howe and Richard Smith were not apprehended, but Michael Elliott and Otho Jennings, the plaintiffs in error, were tried and found guilty on each of the 71 counts. Judgment was entered by the court on the verdict, sentencing each of the plaintiffs in error to pay a fine and to imprisonment in the county jail under each count. The record was removed to the Appellate Court for the Third District by a writ of error, and, the judgment having been affirmed, the record has been brought to this court by writ of error.

Taking up the questions raised by counsel for plaintiffs in error, not in the order of their argument but in the order of the events occurring on the trial, the first alleged error to be noticed is that there was no proper proof that the town of Decatur was anti-saloon territory. A witness testified that he was town clerk of the town of Decatur; that he had in his office the record of the election in the town upon the proposition. ‘Shall this town become anti-saloon territory;’ that the result of the election was found on certain pages of said record, which was then produced; that the record was a well-bound book and the entry the original record, and the signature at the bottom of the page where the result was recorded was the genuine signature of the town clerk. The record showed a majority of 1,745 for the proposition, and, being offered in evidence, it was objected to and the objection overruled. The abstract shows merely a general objection, without specifying its nature, but counsel say in argument that the objection was a lack of proof that the record was in the exclusive possession of the town clerk. The general objection was without force, and if the objection had been as now stated in the argument there was no error in overruling it, since the proof was full and sufficient under the requirements of section 7 of the act in reference to anti-saloon territory. Laws 1907, p. 297. The town of Decatur became anti-saloon territory on May 7, 1914, and the indictment was returned on October 12, 1914.

The next alleged error is that the venue was not proved. On that question the abstract shows the testimony of a witness who said that he knew the defendant Michael Elliott and his place of business at No. 245 East Main street, and as to its location he testified as follows: ‘It is in the town of Decatur, county of Macon, state of Illinois.’ All the testimony related to sales by defendants and their bartenders in that place of business. The venue was proved.

It is alleged that the court made several erroneous rulings in the introduction of evidence. A witness whose place of business was near the premises of the defendants testified that, with the exception of two or three weeks when Elliott was away, there was hardly a day when there were not 20 or 30 cases of beer hauled to the back door of the defendants' place of business and taken inside. During a prolonged cross-examination, covering 25 pages of the record, it appeared that there was a division fence about six feet high between the place of business of the witness and the defendants' premises, in which there was an opening about eight feet wide. The court stopped further cross-examination about the height of the fence because the witness had said that he saw through the gap in the fence. The same witness said that he saw the name ‘Leisy Beer’ on the cases, and the court sustained an objection when the witness was asked to spell the name ‘Leisy.’ The cross-examination went beyond all reasonable limits, and the court did not err in curtailing it when an effort was made to ascertain the extent of the witness' education. These objections and rulings are not shown by the abstract, and the alleged errors might have been disregarded for that reason, but we have taken the statement of counsel as to what occurred. Some witnesses testified to sales, but did not know the name of the person selling the liquor. The court allowed such witnesses to point out the person making the sale, and they pointed to one or the other of the defendants, which counsel say was an error of the court. They give no reason for their claim, and we do not think of any. It is further contended that error was committed in allowing leading questions to be put to the witnesses. The questions were of this nature: Witnesses were asked whether they ever had occasion to visit the place of business of the defendants, and if they saw the defendants in that place. The questions merely directed the attention of the witnesses to the matter being tried, and they were not suggestive or leading in any proper sense. It is contended that the court erred in admitting testimony of sales made at the bar by persons other than the two defendants on trial. The defendants had charge of the premises and managed the business, and the other persons were acting as bartenders. All were guilty as principals. Stevens v. People, 67 Ill. 587;Johnson v. People, 83 Ill. 431. The proof that the defendants were assisted by others in selling the liquor was competent. There was no error in any ruling on the evidence.

In the argument counsel denounce the trial as a farce and criticize the trial judge as partial and unfair. Counsel have a right to make any fair criticism of a judge concerning matters shown by the record, but they have no right to make unjust accusations not borne out by the record, and when made they do not tend to advance the cause which they are intended to serve. The rulings on the trial were fair and impartial. A fair sample of matter complained of is that when the counsel for the defendants made an offer of proof, the judge suggested to him that the proper way was to ask questions and let the court rule on them. The court was right.

It is urged that the court erred in giving instructions to the jury, and the material objection is that the instructions stated the statutes relating to the sale of intoxicating liquors, including the giving away or delivering liquor or other shift or device for the purpose of evading the law, sales by a clerk or servant, and the provision of the Criminal Code (Hurd's Rev. St. 1913, c. 38) as to accessories. The objection is that many of these provisions were not applicable to any evidence. The defendants had bartenders who made sales as clerks or servants of the defendants. One witness called for ginger ale and was served with whisky (which is a favorite shift or device), and one witness who did not buy liquor but helped to unload liquor was given a glass of whisky in exchange for his labor. The instructions were applicable to the case, and stated the law in the language of the statutes. There was no error in ruling on the instructions.

It is contended that the evidence did not support the verdict, but that is not so. The evidence introduced by the people was uncontradicted. The defendants occupied premises at No. 245 East Main street, in the city of Decatur. Near the front of the room there was a cigar case, back of which the bar extended. The back part was partitioned off, and there was a door to the saloon which was kept locked. The defendant Elliott was usually at the cigar case, and when customers came they would knock on the door. Elliott looked them over, and if he thought it safe to admit them, he pulled a string, which unlocked the door and admitted them to the bar, where both defendants and the bartenders served them with beer or whisky. If some person came to the door who was not regarded as a safe customer, Elliott would tell him to get out, that there was ‘nothing doing,’ and if an undesirable person got into the barroom and was detected, or one was doubted, he was not permitted to have any liquor. Whenever one came to the door, either Elliott at the cigar case or some person who came from behind the bar would inspect him and admit him or not, as it was considered safe or unsafe. More than 100 sales of intoxicating liquors were directly proved, and witnesses who bought liquor testified that there were large numbers of persons lined up at the bar, drinking or standing there and talking, and one witness said he had seen 50 or 60 people drinking there at different times. Elliott would not sell to one witness, saying he would not take any more chances on him, and there is neither any question about the guilt of the defendants, nor that they were convicted on only a portion of the offenses committed against the law.

It is argued that the punishment inflicted upon the defendants was cruel, unusual, and excessive, in violation of the Constitution of the state of Illinois and the Constitution of the United States. The Constitution of the United States provides that excessive bail shall not be required nor excessive fines imposed nor cruel nor unusual punishments inflicted. Const. U. S. Amend. 8. But that provision does not apply to legislation by the states. It is restricted exclusively to the federal government, its courts and...