People v. Ross

• Decision Date: 20 April 1927
• Docket Number: No. 18023.,18023.
• Citation: 325 Ill. 417,156 N.E. 303
• Parties: PEOPLE v. ROSS.
• Court: Illinois Supreme Court

325 Ill. 417

156 N.E. 303

PEOPLE

v.ROSS.

No. 18023.

Supreme Court of Illinois.

April 20, 1927.

Error to Third Branch Appellate Court, First District, on Error to Criminal Court, Cook County; Emanuel Eller, Judge.

Ernest J. Ross was convicted of assault with deadly weapon with intent to inflict bodily injury. Judgment was affirmed by Appellate Court (242 Ill. App. 221), and defendant brings error.

Reversed and remanded.

Everett Jennings, and John F. Tyrrell, both of Chicago, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and James B. Searcy, of Springfield (Edward E. Wilson and Clarence E. Nelson, both of Chicago, of counsel), for the People.

THOMPSON, J.

Plaintiff in error, Ernest J. Ross, was charged in an indictment returned January 31, 1923, with a crime alleged to have been committed August 22, 1919. The first count charged him with assault with intent to murder, and the second with assault with a deadly weapon with intent to inflict a bodily injury upon the person of Frank E. Rhode; no considerable provocation appearing. Each count alleged that since August 22, 1919, plaintiff in error ‘was not usually and publicly a resident within the state of Illinois.’ The cause was continued twenty-one times, and a hearing was finally had July 13, 1925. Plaintiff in error was found guilty under the second count of the indictment, and the court sentenced him to imprisonment in the house of correction for a term of six months and to pay a fine of $100 and costs. This judgment was affirmed by the Appellate Court for the First District, and this writ of error is prosecuted to review that judgment.

About 1 o'clock a. m. August 22, 1919, Frank Rhode, a motorcycle patrolman of the city of Chicago, saw a Marmon automobile towing a Ford east on Lake street, at Kedzie avenue. The Ford carried no lights, and Rhode followedthe automobile east to Sacramento boulevard, where he ordered the driver to stop. A man about 6 feet tall, weighing about 175 pounds, and wearing a cap and a khaki army shirt, stepped out of the automobile, and, as the officer left his motorcycle and started toward the Marmon, fired three shots at him, one of them taking effect. The assailant and three other men who were in the automobiles all ran from the scene. Other police officers, hearing the gunshots, hurried to the place. Some of them removed Rhode to Washington Boulevard Hospital, while the others pursued the fleeing men. Plaintiff in error was arrested in a vacant lot across the street from the scene of the shooting. He was lying face down on the ground, concealed by weeds growing in the lot, and had an automatic pistol in his hand. It contained seven loaded cartridges in the clip and one in the chamber, which was all the gun would hold. Plaintiff in error was taken to the hospital and into the presence of Rhode, who was on the operating table. Rhode said, ‘That is the son of a bitch that shot me;’ and plaintiff in error was immediately taken from the room and removed to the police station, where he was questioned. He was asked why he shot Rhode, and answered, ‘Why didn't you get the right man?’ The dress of another man who fled from the scene of the shooting was similar to that of plaintiff in error, and they were about the same size. There was a hearing at the Des Plaines street branch of the municipal court in September, 1919, and Officer Rhode was present. One cross-examination, Rhode was asked whether he had not testified at the preliminary hearing that he could not describe the man who shot at him, and he answered that he did not remember. The record does not show the result of the preliminary hearing, but from other facts appearing plaintiff in error must have been discharged.

[1] In order to prove the allegation of the indictment that plaintiff in error ‘was not usually and publicly a resident within the state of Illinois' between August 22, 1919, and the date of the return of the indictment the people produced five police officers, who testified that they had not seen plaintiff in error in the city of Chicago between September, 1919, and March, 1923. Some of these witnesses knew plaintiff in error prior to August 22, 1919, and had seen him driving an automobile in the vicinity of the Warren avenue and the Des Plaines street police stations. None of them knew where he lived, nor did any of them testify that they had made any effort to ascertain his place of residence or his whereabouts at any time. There is no proof in the record that plaintiff in error concealed himself within the state of Illinois or that he resided outside the state of Illinois at any time prior to March, 1923. The fact that these police officers did not see this particular person of the 3,000,000 people in the city of Chicago between September, 1919, and March, 1923, does not tend to prove that he was not usually and publicly resident within the state of Illinois.

[2][3][4][5] Division 4 of the Criminal Code (Smith-Hurd Rev. St. 1925, c. 38, §§ 628–633) provides that all indictments for felony, except murder, manslaughter, arson, and forgery, must be found within three years next after the commission of the crime, and for misdemeanors within eighteen months, except that no period during which the party charged was not usually and publicly resident within this state shall be included within the time of limitation. The indictment must show on its fact that the offense was committed on a date within the period of limitation (People v. Rhodes, 308 Ill. 146, 139 N. E. 53), or there must be an averment which places the case within an exception (Lamkin v. People, 94 Ill. 501;Garrison v. People, 87 Ill. 96). It being incumbent upon the prosecution to allege the existence of facts which bring the case within the exception to the statute of limitations, the burden of proving the allegation necessarily follows. Bartelott v. International Bank, 119 Ill. 259, 9 N. E. 898;Ingersoll v. Davis, 14 Wyo....