People v. Osborne

• Court: Illinois Supreme Court
• Writing for the Court: FARMER
• Citation: People v. Osborne, 278 Ill. 104, 115 N.E. 890 (Ill. 1917)
• Decision Date: 19 April 1917
• Docket Number: No. 10899.,10899.
• Parties: PEOPLE v. OSBORNE.

278 Ill. 104

115 N.E. 890

PEOPLE

v.OSBORNE.

No. 10899.

Supreme Court of Illinois.

April 19, 1917.

Error to Circuit Court, Peoria County; Clyde E. Stone, Judge.

Harry Osborne was convicted of assault with a deadly weapon with intent to kill, and brings error. Affirmed.

Cooke, J., dissenting.Sucher & Moore and Scholes & Pratt, all of Peoria, for plaintiff in error.

P. J. Lucey, Atty. Gen., and C. E. McNemar, State's Atty., of Peoria (George A. Shurtleff and Clarence D. Murphy, both of Peoria, of counsel), for the People.

FARMER, J.

Plaintiff in error, Harry Osborne, was convicted in the circuit court of Peoria county of an assault with a deadly weapon with intent to kill. The indictment consists of two counts. The first count charges that:

Plaintiff in error ‘with force and arms in and upon one Daniel Smith, in the peace of the people then and there being, with a certain dangerous weapon, to wit, with a gun, with which the said Harry Osborne was then and there armed, feloniously, willfully, and of his malice aforethought did make an assault, and the said Harry Osborne in and upon clothing, to wit, coat, of him, the said Daniel Smith, then and there feloniously and unlawfully did shoot, with intent the said Daniel Smith then and there, with the gun aforesaid, feloniously, willfully, and of his malice aforethought to kill and murder.’

The second count charges that:

The plaintiff in error ‘with force and arms in and upon one Daniel Smith, in the peace of the people then and there being, with a certain dangerous weapon, to wit, with a rifle, with which the said Harry Osborne was then and there armed, feloniously, willfully, and of his malice aforethought did make an assault, and the said Harry Osborne at, against, into, and upon the clothing of him, the said Daniel Smith, then and there feloniously and unlawfully did shoot, with intent the said Daniel Smith then and there, with the gun aforesaid, feloniously, willfully, and of his malice aforethought to kill and murder.’

Motions to quash the indictment and in arrest of judgment were overruled, and these rulings of the court, among others, are assigned as error.

While this indictment could not be used as a model for faultless pleading, its defects are not such as to destroy the sufficiency of the charge against plaintiff in error. It is contended by plaintiff in error that the language in the first count, ‘and the said Harry Osborne in and upon clothing, to wit, coat, of him, the said Daniel Smith, then and there feloniously and unlawfully did shoot,’ and in the second count, ‘and the said Harry Osborne at, against, into, and upon the clothing of him, the said Daniel Smith, then and there feloniously and unlawfully did shoot,’ is descriptive of the particular manner in which the offense charged was committed, and while it might have been omitted from the indictment, having been thus alleged, it becomes an essential ingredient of the charge made. From this premise it is then argued that the indictment does not charge the commission of any offense against plaintiff in error, because it does not state where the clothing was, and that if it was not on or about Smith's person no assault could have been committed upon Smith by shooting the clothing. It is also argued that, even if plaintiff in error deliberately shot into the clothing while it was on Smith's person, and that was all he was intending to do, that act of itself negatives any intention of assaulting Smith. On the other hand, the people contend that the language last above quoted is mere surplusage and should be rejected.

The indictment will not bear the construction sought to be placed upon it by plaintiff in error. It is quite clear that the language pointed out was not neant to be descriptive of the assault made, but was simply intended to describe the effect of the assault. The only reasonable construction which the language used in the two counts of this indictment will bear is that plaintiff in error made a felonious assault upon Smith with a gun or fifle with intent to kill him, and that in making such assault he fired a shot which struck Smith's clothing. The statement in regard to the effect of the assault was unnecessary and under the authorities may be treated as surplusage. An averment in an indictment may be treated on the trial as surplusage and be rejected where it can be stricken out without vitiating the indictment. Durham v. People, 4 Scam. 172,39 Am. Dec. 407;People v. Boer, 262 Ill. 152, 104 N. E. 162. The language pointed out in the two counts, being merely a statement of the effect of the assault was not necessary, did not become a material averment when made and should be rejected as surplusage. The court did not err in overruling the motions to quash and in arrest of judgment.

Plaintiff in error did not testify on the trial. The testimony of the people tended to prove that the assault occurred at the home of the plaintiff in error, in the city of Peoria, between midnight and 2 o'clock in the morning of June 24, 1914. Between 12 and 1 o'clock that morning Mrs. Morrissey, who lived next door to plaintiff in error, was awakened by two gunshots. She went to the door and saw plaintiff in error sitting in a chair on his own porch with a gun in his hands. She asked him if he would please put up the gun; that her family all worked hard and had to get up early in the morning. He said he would not have anybody tell him what to do and told her how little he thought of her and her family. She then said to him, ‘Maybe you would like to go to the police station,’ to which he responded: ‘Old Mrs. Morrissey is going to have me pinched. Have me pinched, and I will shoot every damned policeman as fast as they come down. Every policeman in Peoria is afraid of me.’ He then arose and said: ‘Old Mrs. Morrissey don't like it. Well, we will just give her a little more.’ Mrs. Morrissey did not make any complaint of send and message to the police, but at about this time information was sent by some one to police headquarters of the disturbance plaintiff in error was making. The two policemen on this beat, Smith and Lebin, were flashed a signal and were given this information by telephone. After receiving their orders from headquarters they proceeded in the direction of plaintiff in error's home, when they heard two shots fired. When in the vicinity of his house they heard another shot fired from a point directly across the street from the residence. They searched the barns and sheds from which apparently the shot came, and also plaintiff in error's yard and premises outside the dwelling, but saw no one. The plaintiff in error's wife then came up the street, and at her request the two officers went into the house and helped her take her children from the premises. Just as Mrs. Osborne was leaving the premises the patrol wagon came down the street with other officers and stopped in front of the house. The wagon and these officers had been sent from headquarters as a result of telephone complaints having been made as to the conduct of plaintiff in error. Immediately after these officers alighted from the wagon they heard a noise in the house similar to the clicking of a gun which was being cocked or the clicking of a doorlatch. Officers Smith and Lebin, together with officers Roth and Waldron, who had come in the patrol wagon, started toward the house, with officer Smith leading. Just as Smith was going up the steps he saw the barrel of a rifle sticking out through the door, which was partially open, and a voice inside said, ‘God damn you, I will kill you.’ As Smith stepped up on the porch the barrel of the gun was raised. He took one step on the porch, reached up and took hold of the rifle barrel, and pushed it to one side. All the witnesses testify that the gun was fired either an instant before or an instant after Smith seized the barrel. The bullet passed through Smith's coat. After the shot was fired the officers rushed into the house, where a scuffle with plaintiff in error ensued. He broke away from the officers and rushed out to the street. As he was running to the street one of the officers shot at him. When he got to the middle of the street he stopped, stating that he was through; that he had shot at one of the officers, one of them had shot at him, and they were square. He was then put in the patrol wagon and taken to the station. After he was placed in the wagon he stated, in the presence of the officer in charge and the driver, that his intention was ‘to kill the first son of a bitch of a policeman that came on his porch.’ These are the material facts as shown by the testimony of the people. The only proof offered on behalf of plaintiff in error was the testimony of three witnesses to the effect that plaintiff in error was drunk on the night in question.

It was not improper to admit the testimony of Mrs. Morrissey relative to the statement of plaintiff in error as to what he would do if an attempt were made to arrest him. This statement was competent and tended to show the intent with which the shot was fired. We do not believe that this language is suspectible of the construction placed upon it by counsel for plaintiff in error. It was clearly a threat to shoot any policeman who might attempt to arrest him, and not a threat that he would shoot every policeman after he had been ‘pinched’ or placed under arrest.

Two of the police officers were permitted to testify, over the objection of plaintiff in error, that they were acting under orders from their superior officers when they proceeded to plaintiff in error's home. They stated what information they had received from their superiors and what the orders were. One of the officers testified that they were told that Harry Osborne was ‘raising hell and shooting at the corner of Ann and Blaine streets.’ The other officers testified:

‘I received orders that Osborne was having trouble with his wife; that he was shooting up the...