People v. Walsh

• Decision Date: 06 October 1926
• Docket Number: No. 16613.,16613.
• Citation: 322 Ill. 195,153 N.E. 357
• Parties: PEOPLE v. WALSH et al.
• Court: Illinois Supreme Court

322 Ill. 195

153 N.E. 357

PEOPLE

v.WALSH et al.

No. 16613.

Supreme Court of Illinois.

June 16, 1926.

Rehearing Denied Oct. 6, 1926.

Error to First Branch Appellate Court, First District, on Error to Criminal Court, Cook County; Oscar M. Torrison, Judge.

Thomas Walsh, Frank Hayes, Roy Shields and Patrick Kane were convicted of conspiracy. The judgment was affirmed by the Appellate Court, and they bring error.

Judgments affirmed.John F. Tyrrell, Short & Guenther, and William E. Rodriguez, all of Chicago (Thomas E. Swanson, of Chicago, of counsel), for plaintiffs 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.

DUNCAN, J.

Plaintiffs in error Thomas Walsh, Frank Hayes, Roy Shields and Patrick Kane were indicted January 13, 1922, in the criminal court of Cook county for the crime of conspiracy. The indictment consisted of ten counts, the first, fourth, fifth, and eighth counts of which were nolled by the state on the trial. They were found guilty by a jury as charged in the indictment, and sentenced to one year in jail by the court. The Appellate Court for the First District affirmed the judgment of the criminal court. Plaintiffs in error have sued out this writ of error to review the record.

Plaintiffs in error moved to quash the indictment upon the sole ground that the grand jury which returned the indictment had not been selected according to the statute. In support of their motion, one of their attorneys made an affidavit in which it is stated that the jury commissioners of Cook county had not compiled a list of all electors between the ages of 21 and 60 years possessing the necessary legal qualifications for jury service, as required by the Jury Commissioners Act, but during the year 1921, and for a long time prior thereto, had adopted the practice of using, and did use for that year, a city directory of the city of Chicago published in 1917 as the jury list of all qualified electors of the city of Chicago; that said city directory purported to contain the names of all persons then residing in Chicago as well as firms and corporations doing business in Chicago, and that as many as 100,000 electors having the legal qualifications for jury service residing in Chicago were not included in that directory, and that many persons whose names were therein listed had moved and their addresses were changed.

Martin Peterson, chief clerk of the jury commissioners, and Joseph Barnett, one of the jury commissioners, testified that since 1897 the practice in Cook county had been to use the city directory for the city of Chicago as the jury list of the electors for that city, and for the years 1921 and 1922 the 1917 city directory had been used as the jury list of electors in the city, as no city directory had been published since 1917. The poll list and registration list were used as the jury list for that part of the county outside of Chicago. The city directory was used or adopted by the jury commissioners as containing its jury list, and from it names of male citizens were selected by the commissioners as possibly eligible for jury service. These names so selected were copied into a bound book kept for that purpose, and questionaires were sent to every person whose name was selected, asking him his age, occupation, and whether or not he was a householder or a freeholder, etc. The answers to these questionaires were also copied into the book in which the names were listed. If the answers to the questionaire showed the person eligible for jury service, the name of the person was so marked, and then written on a card, and that card was deposited in the petit jury box. Answers to these questionaires were received in about 90 per cent. of the cases. The method of selecting names from the directory by the commissioners of persons to whom they desired questionaires sent was to exclude the names of policemen, firemen, lawyers, and doctors, and for the first year take the names on the first four pages of the directory, and omit the next twelve pages, and for the second year to take the second four pages and omit the next twelve pages, and so on in that manner from year to year, and in that manner exhaust the entire directory in four years. The cards containing the names of persons possessing the necessary qualifications for jury service as determined by the commissioners were placed in the petit jury box, and then names were drawn from that box and placed in the grand jury box. The petit jury box contained at least 15,000 cards at all times, and the grand jury box containedat least 1,000 names at all times. All occupations not exempt from serving on juries by the statute were selected by the commissioners from the directory of the city and the poll books aforesaid of the other towns of Cook county. When names were withdrawn from the jury boxes to fill panels, they were not again placed in the box until all names therein had been drawn and until the persons whose names had been drawn had either served or had been excuses. Each year the cards in the boxes are examined, and those of persons who have reached the age of 65 years are withdrawn. Some of the cards have been in the boxes for 10 years. The commissioners testified that they used the city directory as containing the jury list because it was more convenient than the poll and registration list, and, in addition, showed the occupations of the persons therein listed, and showed 100,000 more voters than the poll or registration list. It saved expense, and, moreover, sufficient money had not been appropriated to employ persons to copy the names from the poll list. According to the testimony of the chief clerk, it would take sixteen employees one year to compile a list of substantially all the electors of Chicago. A few names were added to the book containing the list as above made that were not in the directory where complaints came to the jury commissioners that persons were not voting in order to avoid jury service. All of the names of the persons composing the grand jury which returned the indictment against the plaintiffs in error were drawn from the grand jury box from cards in that box which had been placed there after being drawn from the petit jury box, as aforesaid.

[1] The contention of plaintiffs in error that the court erred in refusing to quash the indictment cannot be sustained. The method and manner of preparing jury lists and selecting jurors in counties having a population of 250,000 is provided in the Jury Commissioners Act of 1887 (Laws 1887, p. 214), as amended in 1897 (Laws 1897, p. 243) and in 1919 (Laws 1919, p. 407). Section 2 of that act provides that said commissioners, upon entering upon the duties of their office, and every 4 years thereafter, shall prepare a list of all electors between the ages of 21 and 60 years, possessing the necessary legal qualification for jury duty, to be known as the jury list. The list may be revised and amended annually, in the discretion of the commissioners. The name of each person on said list shall be entered on a book or books to be kept for that purpose, and opposite said name shall be entered the age of said person; his occupation, if any; his place of residence, giving street and number, if any; whether or not he is a householder residing with his family, and whether or not he is a freeholder. Section 4 of the act provides that the commissioners shall from time to time select from said jury list the requisite number of names, which shall each be written on a separate ticket, with the age, place of residence, and occupation of each, if known, the whole to be put into a box to be kept for that purpose and to be known as the jury box. In like manner they shall select the necessary number of names from said jury list, which names shall each be written on a separate ticket, with the age, place of residence, and occupation of each, if known, and put the whole in another box to be kept for that purpose, and known as the grand jury box. The jurors so selected shall, as near as may be, be residents of different parts of the county and of different occupations, etc. This section further provides that not less then 15,000 names shall be kept at all times in the petit jury box, and not less than 1,000 names in the grand jury box.

We think that the jury commissioners made a reasonable and substantial compliance in selecting the jurors or persons qualified to serve as jurors in Cook county and making a list thereof. It is probably very true that there were quite a number of names that were competent to serve as jurors that were not placed on the list, but it is clearly apparent that it would have been a matter of impossibility to have literally complied with the provisions of the statute in making such a list. This court may take judicial knowledge that there are over 3,000,000 people in the county of Cook. The evidence in the record shows that there are more than 550,000 registered male voters in Chicago, and, as we understand the record, the city directory aforesaid contains more than 100,000 more names of male persons between the ages of 21 and 60 years than there are registered male voters, and it is a fact that many of these persons are continually passing the age of 60 years and many others are dying and changing their residence and otherwise becoming ineligible for jury service, while others still are reaching the years of 21 and thus becoming eligible for jury service. We do not think it was the intent of the Legislature to require the jury commissioners to accomplish an impossibility-the obtaining of an absolutely complete list of all the male persons in Cook county that were eligible to jury duty. The commissioners adopted the 1917 directory twice in succession as containing the best known and practicable list of all the male persons in Cook...