People v. Turner
| Decision Date | 28 October 1913 |
| Parties | PEOPLE v. TURNER. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Logan County; Thomas M. Harris, Judge.
Irvin H. Turner was convicted of incest, and he brings error. Reversed and remanded.C. F. Mortimer, of Springfield, Evan Worth, of Lincoln, and Beach & Trapp and Humphrey & Anderson, all of Lincoln, for plaintiff in error.
Patrick J. Lucey, Atty. Gen., and Everett Smith, State's Atty., and King & Miller, all of Lincoln, for the People.
Irvin H. Turner, the plaintiff in error, was found guilty by a jury, in the circuit court of Logan county, of the crime of incest with his daughter, Grace B. Turner, and was sentenced by the court to imprisonment in the penitentiary.
[1] The court failed to observe that the punishment for incest is imprisonment in the penitentiary for a term not exceeding 20 years, so that the parole law (Hurd's Rev. St. 1911, c. 38, § 498), which provides that the term of imprisonment shall not be less than one year, does not apply. The jury did not fix the term of imprisonment, and the sentence was for an indeterminate period under the provisions of that law. For that error the judgment must be reversed, and the cause remanded to the circuit court for another trial. People v. Hartsig, 249 Ill. 348, 94 N. E. 525;People v. Afton, 258 Ill. 292, 101 N. E. 557.
[2] The assignment of errors includes numerous other alleged grounds for a reversal of the judgment, some of which cannot arise upon another trial, and others probably will not, but some of them must be considered and decided, either because sustaining them would be fatal to the prosecutionor to its further prosecution in Logan county, or because they will doubtless arise upon another trial. One of these is that the court erred in not permitting an amendment of a motion to quash the indictment and quashing it. The indictment was returned by the grand jury at the January term, 1912, when a formal motion to quash was made without assigning any grounds therefor. The motion was overruled, and the defendant pleaded not guilty. The cause was continued, on his motion, to the May term, 1912, and upon his motion was again continued until the September term, 1912, when he asked leave to withdraw his plea of not guilty and to amend the motion to quash, for the purpose of raising the question whether the meeting of the board of supervisors at which the grand jurors were selected was a lawful meeting. The grand jurors were selected on December 8, 1911, at a meeting of the board commencing on December 4, 1911, and the motion to amend was accompanied by a certificate of the county clerk that there was no request in writing by at least one-third of the members of the board, addressed to the clerk, requesting the meeting. The court overruled the motion to withdraw the plea and amend the motion to quash. To allow or disallow the motion was within the discretion of the court, and inasmuch as the motion did not present any question concerning the sufficiency of the charge, but only sought to raise a question having no relation to the merits, and there had been two continuances, on motions of the defendant, while the statute of limitations was running, and the facts had been a matter of public record during that time, the discretion was properly exercised.
[3] A grand jury can only be selected at a meeting of the board of supervisors lawfully held, when the board could exercise the power given by law to select grand jurors. Marsh v. People, 226 Ill. 464, 80 N. E. 1006. But the certificate of the clerk did not show that the December meeting was not legal. It was silent as to whether there was an adjournment of the regular September meeting to December 4, 1911. The court could not have quashed the indictment upon such evidence.
[4] It was alleged that the certificate of the county clerk to the clerk of the circuit court of the selection of the grand jurors was not under seal, but there is no requirement that it shall be under an official seal.
[5] At the May term, 1912, the defendant applied to the court for a change of venue on account of the prejudice of the inhabitants of Logan county, and his application was supported by affidavits of a great many persons that the case had been discussed and publications made in newspapers, from which facts they concluded that there was a strong prejudice against the defendant. On the part of the prosecution there was a large number of affidavits by public officials and persons engaged in various lines of occupation in different parts of the county, denying that there was any prejudice of the inhabitants of the county against the defendant, or that they had heard the case discussed adversely to him. The court was justified in finding that there was no prejudice which would prevent the defendant receiving a fair and impartial trial in Logan county, and in denying the application. It seems that the jury were selected from the regular panel, and that no difficulty was experienced in obtaining jurors to whom there was no objection. Counsel quote the examination of a juror as indicating that the defendant could not receive a fair and impartial trial. The juror was asked if he was sure that he had no prejudice against the crime of incest greater than he had against any other penitentiary offense, and he answered that he did not think he had, which, they say, shows that he was not very positive about it. The crime of incest between father and daughter is one so unnatural, shocking, and revolting to the normal mind that it would be strange if any person should regard it as of the same grade as some minor offense relating to property such as breaking into a freight car or building for the purposeof stealing some trifling thing, although the offense might be punished by imprisonment in the penitentiary. If a juror should say that he had a greater abhorrence of the crime with which the defendant was charged than of some other offense, it would not indicate incompetency to sit as a juror, and the answer of the juror in this case was quite favorable to the defendant. Presumably there would be the same abhorrence of this crime in other counties as well as Logan. The court overruled a challenge for cause, and the juror was challenged peremptorily, and the defendant, having exhausted his challenges, then challenged peremptorily the last four jurors together. There is no ground for saying that the court erred in denying the application for a change of venue.
[6] The state's attorney elected to rely for conviction upon acts committed by the defendant on November 16, 1911, and it is alleged that the court erred in...
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