People v. Strauch

• Decision Date: 08 December 1910
• Citation: 93 N.E. 126,247 Ill. 220
• Parties: PEOPLE v. STRAUCH.
• Court: Illinois Supreme Court

247 Ill. 220

93 N.E. 126

PEOPLE

v.STRAUCH.

Supreme Court of Illinois.

Oct. 28, 1910.

Rehearing Denied Dec. 8, 1910.

Error to Appellate Court, Second District, on Error to Circuit Court, Ogle County; J. S. Baume, Judge.

Andrew Strauch was convicted of criminal libel, and he brings error. Affirmed.Franc Bacon, E. E. Wingert, and O. M. Grove, for plaintiff in error.

W. H. Stead, Atty. Gen., W. J. Emerson, State's Atty., and Ralph E. Eaton, Special State's Atty., for the People.

CARTER, J.

Plaintiff in error was indicted in Carroll county for criminal libel, and on a change of venue to Ogle county the first trial resulted in a disagreement and on the second trial a verdict of guilty was found against him, the court thereafter imposing a fine of $300 and costs. The appel late Court affirmed the judgment of the trial court. This writ of error was then sued out.

Plaintiff in error on June 26, 1907, and for some time prior, was publisher of the Chadwick Clarion, a newspaper published at Chadwick, in Carroll county. He was also supervisor of that county, and had previously been postmaster and collector of his town. The complaining witness, Frank J. Stransky, was on June 26, 1907, and has been since 1904, state's attorney of that county. During his term of office, he assisted the state's attorney of Stephenson county, in this state, in the prosecution of corporations and persons forming what is called in the evidence the ‘bridge trust,’ for alleged violations of the laws concerning conspiracies against trade. In 1907 the matter of the illegal sale of liquor on election day was before the grand jury of Carroll county, and a number of citizens of Chadwick, including plaintiff in error, were subpoenaed as witnesses. The question also apparently came up as to whether a certain drug sotre in Chadwick had sold liquor on that day. In the issue of his newspaper of June 26th the plaintiff in error published an article headed ‘Stransky, Chadwick and the Grand Jury.’ The portions of the article that are especially claimed as libelous read as follows:

‘The attention of the last grand jury was directed to Chadwick, Many of its citizens had an invitation to appear before it, and so had we. The result of the stir-up has brought out comparatively little violations. Of course, it was not so much concerning violations than to get a little political capital out of it and some new material for attack. * * * We do not wish to criticise any honest intention against violations of laws, but, so far as the state's attorney and his local henchmen are concerned, there was nothing in the movement but spite work and a chance at giving us a good grilling before the grand jury. We did not hesitate in the least to answer every fool question put to us by the conceited fool of a state's attorney. Could we have reversed the order we should have asked him whether he had not at one time drank whisky in the Chadwick drug store and called for beer as a wash; also, whether he did not play poker with a Chadwick gentleman till three o'clock in the morning. We have been more than confirmed in our belief that the attitude of Stransky in connection with the bridge combine is one that will not bear investigation. While we have no direct knowledge of his offering his service or the getting in on the Stephenson county prosecution, we are satisfied it was at his instigation. * * * There are some who have been deluded into the belief that Stransky's aim is to enforce the laws. * * * In connection with the bridge investigation it is evident an idea struck him that had a well-defined purpose. To become associated with the Stephenson county attorney made other plans feasible. * * * It strikes one peculiar that of the facts gathered in Stephenson county, some of the principal ones have not been reached or even an attempt has been made. To sum it all up, there is good grounds to suspect a nigger in the bush. Once a prosecution started in one county it made it easy to bring other violators to terms. There will be nothing further done in Carroll county about a bridge trust. One can feel safe on making this assertion. There is no doubt but that the bridge trust has proven a fat goose for some one. * * * This much came out of it while Stransky was quite willing to go after the saloons, but when it came to the drug store he was ready to shut off further investigation. It is a fact that he agreed with a certain gentleman to call off on the saloons with a light penalty if the drug store crowed would not be examined.’

It is urged that the trial court erred in refusing to quash the indictment for the reason that, while the grand jury was in its private room investigating the indictment of plaintiff in error, the presiding judge entered the room and read a statement concerning the law of criminal libel from some typewritten sheets. Certain affidavits were offered concerning this point. It appears from them that some time during its deliberations, and before the indictment in question was found, the judge was requested by the grand jury to give instructions on the law of libel, and that the appearance of the judge before the jury was in response to that request. The affidavits do not set up any improper statement that it is claimed was made by the judge to the grand jury, but it is insisted it was error for him to make any statement in the jury room; that all instructions to the grand jury by the court should be given in open court. The record shows that the indictment in this case was returned to the November term, 1907, of the Carroll county circuit court. The motion to quash the indictment was made on March 4, 1908, and overruled on March 6, 1908, at the March term of that court, but a bill of exceptions was not then presented containing the evidence and an exception to the ruling of the court in refusing to quash the indictment, nor did plaintiff in error ask leave for time to present such bill of exceptions. The leave to present the bill of exceptions was obtained on February 8, 1909, after plaintiff in error had been twice tried and once convicted and judgment pronounced against him.

These affidavits were presented on a motion to quash at the March term, 1908, of the circuit court of Carroll county. No motion was made at that term or leave granted to file a bill of exceptions of the matters heard at that term. The leave to present the bill of exceptions in this case was obtained at another term nearly a year later. A bill of exceptions must be taken at the term at which the rulings were made unless the court at that term extends the time within which the bill may be signed and sealed. Finch & Co. v. Zenith Furnace Co., 245 Ill. 586, 92 N. E. 521;Village of Franklin Park v. Franklin, 228 Ill. 591, 81 N. E. 1132;Cella v. Chicago & Western Indiana Railroad Co., 217 Ill. 326, 75 N. E. 373;Dougherty v. People, 118 Ill. 160, 8 N. E. 673. These affidavits are not properly in the record before this court.

It is further urged that the indictment should have been quashed because, it is claimed, Franklin J. Stransky, the state's attorney, was also the prosecuting witness in this case and appeared before the grand jury in his offical capacity as state's attorney, examined witnesses, and prepared and signed the indictment. There is nothing in the record to support these contentions except as to the signing of the indictment. On the contrary, the uncontroverted evidence shows that Stransky appeared before the grand jury as a witness at the request of its foreman; that he was not present at any time when any other witness besides himself was before the grand jury in this case; that he was not there as state's attorney, but as a witness only; that he told the court there was a case to come before the grand jury in which he was to be prosecuting witness, and that he did not feel that he should give the grand jury any instructions or have anything to do with the case, only as a witness; that he was not present at any time when the grand jury were discussing the evidence or voting on the case. After the denial of the motion to quash on March 6, 1908, plaintiff in error pleaded not guilty. The first trial was then had, in which the jury disagreed. January 16, 1909, before the commencement of the second trial, plaintiff in error entered a motion for leave to amend his motion to quash the indictment for the reasons just stated. A defendant who has pleaded to the indictment cannot, as a matter of right, thereafter make a motion to quash it for any error that occurred before the grand jury. While the court may have the power to permit the plea of not guilty to be withdrawn for that purpose, the exercise of such power rests in the sound discretion of the trial court. 1 Bishop's New Crim. Proc. §§ 761, 882. The fact that the state's attorney signed the indictment and appeared as a witness before the grand jury was as well known to plaintiff in error and his counsel at the time the original motion was made to quash the indictment as it was nearly a year later, when this question was first raised in the trial court. After the indictment was returned to the Novemer term, 1907, of the circuit court of Carroll county that court entered an order finding Stransky interested as a witness in said cause and appointed Ralph E. Eaton, an attorney, as special state's attorney to prosecute said cause. The court had the authority (Lavin v. Board of Commissioners of Coke County, 245 Ill. 496, 92 N. E. 291), and we think it would have been the better practice to have appointed the special state's attorney before the matter was presented to the grand jury. The general rule is that, in the absence of a statute to the contrary, it is not essential to the validity of an indictment that it be signed by the public prosecutor. Joyce on Indictments, § 447; Commonwealth v. Stone, 105 Mass. 469; Ex parte Lane, 135 U. S. 443, 10 Sup. Ct. 760,30 L. Ed. 219; 1 Bishop's New Crim. Proc. § 702; Edwards on Grand...