People v. O'Neill

• Decision Date: 24 December 1895
• Citation: 65 N.W. 540,107 Mich. 556
• Parties: PEOPLE v. O'NEILL.
• Court: Michigan Supreme Court

65 N.W. 540

107 Mich. 556

PEOPLE v. O'NEILL.

Supreme Court of Michigan

December 24, 1895

Error to circuit court, Eaton county; Clement Smith, Judge.

Edward O'Neill was convicted of a violation of the local option law, and brings error. Reversed.

T. E. Tarsney and W. W. Wicker, for appellant.

Horace S. Maynard, Pros. Atty., for the People.

GRANT J.

1. The respondent was convicted of a violation of the local option law, in force in Eaton county, upon an indictment presented against him by the grand jury. After a motion to quash was denied, the respondent interposed three pleas in abatement, setting forth that the circuit court had no authority to make an order for the appointment of an assistant prosecuting attorney, that said assistant prosecuting attorney unlawfully counseled and advised the grand jury, that said assistant prosecuting attorney had no authority to act, and that he had been employed by private parties to assist in the prosecution of violators of this law. To this plea the prosecutor demurred. The demurrer was overruled, and the prosecutor permitted to file replications to the pleas. To these replications the respondent demurred upon the ground that the former order overruling the demurrer was final, that its effect was to quash the indictment, and that he should be discharged. This demurrer was overruled and a jury tendered to the respondent to try and determine the questions of fact set up in the plea. This the respondent refused, whereupon the plea in abatement was overruled, a plea of not guilty entered, and a trial had. Formerly in England, even in cases of felony, when the demurrer to an indictment was overruled, the prisoner was not allowed to plead over, upon the theory that his demurrer admitted his guilt. Such, however, has not been the rule in this country except, perhaps, in some cases of misdemeanor. Such a rule finds no commendation in reason. The purpose of a demurrer is to obtain the judgment of the court upon the law, and to determine whether the pleading on its face establishes a case. Of course, if the party stands by his demurrer judgment must go against him. But the usual and proper practice is, where the demurrer is overruled, to permit the proper pleading to be filed to join issue. The respondent's counsel cite Douglass v. Satterlee, 11 Johns. 16. The practice permitted in that case is against the learned counsel's contention. Upon overruling the demurrer to the plea, it was held that the defendant was entitled to judgment, but with liberty to the plaintiff to withdraw his demurrer and reply. The universal rule in this country, when a demurrer to an indictment or information has been overruled, is to permit the respondent to plead over. The court in such case has determined that the indictment is good, and allows the respondent to plead to the merits. There is no good reason why the same ruling should not apply in behalf of the people to a plea in abatement, and such is the rule. State v. Barrett, 54 Ind. 434; State v. Nelson, 7 Ala. 610.

2. The board of supervisors authorized the employment of an assistant prosecuting attorney to assist the prosecutor in preparing and investigating cases before the grand jury. Acting under this resolution, the prosecutor applied to the court, asking the appointment of Mr. McPeek, and an order was entered making the appointment. The statutes (sections 551, 560) prescribing the duties of the prosecuting attorney, and authorizing the employment of additional counsel in cases of felony, do not prohibit the employment of additional counsel when, in the judgment of the board of supervisors, the prosecuting attorney, and the court, such additional counsel is necessary.

3. Objection was made to the employment of Mr. McPeek to assist in trying this cause, because of his strong prejudices against the liquor traffic. Before the court made the order, Mr. McPeek was examined under oath, and testified that he had a very strong prejudice against the sale of intoxicants as a beverage. This did not disqualify him. The public authorities were not required to employ an attorney who believed in the liquor traffic, or was indifferent to the illegal sales of liquor. The traffic in Eaton county was made illegal by the vote of the people. The stronger one's convictions are against an illegal traffic, the more efficient prosecutor he is likely to make, and to such a prosecutor the people are entitled.

4. Objection was made to the competency of several jurors on the ground that they had formed opinions. Their opinions were based upon hearsay, were not fixed or positive, and the jurors swore that, notwithstanding such previously-formed impression or opinion, they could render a fair and impartial verdict. They were competent jurors.

5. One juror was incompetent. He had been a clergyman and was then a farmer. When asked what his verdict would be, if he found the testimony about equally balanced between the people and the respondent, he replied, "I should think it should be guilty."

6. A...