Perteet v. People of State
| Decision Date | 30 September 1873 |
| Citation | 70 Ill. 171,1873 WL 8572 |
| Parties | ANDREW J. PERTEETv.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.
This was an indictment against Andrew J. Perteet, for the murder of his wife, Martha F. Perteet, by cutting her throat with a razor. This case was before this court at the September term, 1872, and is reported in 65 Ill., page 230. The opinion of the court gives a statement of the facts of the case.
Mr. J. H. KNOWLTON, for the plaintiff in error.
Mr. CHARLES H. REED, State's Attorney, for the People.
On the 20th day of November, A. D. 1871, Andrew J. Perteet was indicted for murder, in the Criminal Court of Cook county. On the 22d day of the same month, he plead not guilty, and, on the 25th, filed a petition for a change of venue. The motion for a change of venue was overruled.
On the 20th of December, 1871, the cause was tried, and the verdict of the jury was, guilty of murder, and they fixed the penalty that defendant should suffer, death by hanging. This was followed by a judgment of the court that the defendant be hanged on the 12th day of January, 1872.
The defendant brought the record to this court by writ of error, and the judgment of the criminal court was reversed and the cause remanded, on the ground that the criminal court erred in not granting a change of venue.
On the 20th day of November, 1872, the record of the criminal court shows the following proceedings in the cause of The People v. Andrew J. Perteet:
“This day again come the said People, by Charles H. Reed, State's Attorney, and the said defendant, as well in his own proper person as by his counsel, also comes; and it appearing to the court, from a certified copy of the opinion of the Supreme Court of this State, produced and read to the court by the said defendant's counsel, that the judgment of this court in this cause has been reversed, and this cause remanded for another trial, it is ordered that this cause be, and the same is hereby, re-docketed.
And now comes the said defendant, and presents his sworn petition for a change of venue in this cause, and the court, being fully advised in the premises, doth order that the venue in this cause be changed to the county of Will, and that the clerk of this court transmit to the clerk of the circuit court of said Will county all the papers on file in this cause, with a true and correct copy of all orders and proceedings of this court had and entered therein, and that the said defendant be remanded into the custody of the sheriff of Cook county.”
The venue of the cause having been changed to Will county, at the January term, 1873, of the circuit court of Will, the defendant entered a motion for a continuance. The motion was overruled, a trial had, and, on the 16th of January, 1873, the jury returned a verdict of guilty, and fixed the penalty that he suffer death by hanging.
The judgment of the court on the verdict was, that the defendant, Perteet, be hanged on the 14th day of February, 1873. Again the defendant brings the record to this court, by writ of error, and urges a reversal of the judgment, for various errors.
We will examine the questions in the order in which they arose during the progress of the trial of the cause.
The first decision of the circuit court, to which exception was taken, was the overruling of defendant's motion for a continuance. In support of the motion, two affidavits were filed--one for the purpose of procuring the attendance of one Williams, who, on the first trial, was a witness for the people. In appears, by the affidavit, that, on the evening of the murder, this Williams was walking on Polk street, in the direction of Perteet's house, and at the time he heard the cry of murder, he saw the defendant at the corner of the alley, on Polk street, about a half block distant from the house, going north. How this evidence could be material for the defendant, it is difficult to see. On the first trial, this evidence was, no doubt, offered by the people for the purpose of showing the defendant was at or near the house where the murder was committed, at the time or soon after it occurred, in order to connect him with the crime; and for the defendant to show that he was leaving the house at the time the cry of murder was given, would certainly be evidence against him, rather than in his favor.
In the other affidavit filed, it is alleged that one Harvey was a material witness; that he lived in Missouri, but whether his attendance could ever be procured, is entirely uncertain, from the affidavit. No sufficient facts are set out in the affidavit by which the court could see that the evidence of Harvey could ever be obtained, which is necessary in a criminal case, where the witness is out of the State, and can not be reached by the process of the court. Eubanks v. The People, 41 Ill. 486. We are, therefore, of opinion the motion for a continuance was properly overruled.
The next question that arose was, the decision of the court in allowing H. Merrill and James Shelton, two witnesses whose names were not on the indictment, to testify on the part of the people. The record shows that, about three weeks before the trial, the attorney of defendant was notified that these witnesses would be called by the people, and, on the morning before the trial was begun, a written notice was served on the defendant's attorney, that these witnesses would be used on the trial.
This court has repeatedly held that the people are not restricted to the witnesses whose names are indorsed on the back of the indictment, a list of which is required to be furnished defendant previous to arraignment. McKinney v. The People, 2 Gilman, 552; Gardner v. The People, 3 Scammon, 89; Gates v. The People, 14 Ill. 436. In many cases, the construction of the law contended for by defendant's counsel would defeat the ends of justice, and turn loose upon society the worst of criminals.
The next question that arose was, the refusal of the court to permit the witness Shelton, on cross-examination, to answer this question: Did you hear any cries, or noisy threatening by the crowd that they would hang Perteet?
The object of the question, as stated by the counsel for defendant, was, to show that Perteet left the house where the murder was committed, and surrendered himself to the officers of the law, for the purpose of protecting himself from mob violence.
The defense did not seek or offer to show that Perteet heard any of these threats, if any were made, or that he had any knowledge that any were made. Indeed, the evidence clearly shows that Perteet left the house before the crowd had assembled. The answer to the question would not have tended to explain the defendant's conduct, unless he knew that threats were made; and on this point, we perceive no error in the ruling of the court.
The next point relied upon by the defendant, to reverse the judgment of the circuit court, is, that the record does not show a remittitur from this court, and, for that reason, the criminal court of Cook county had no authority to change the venue of the cause, and the circuit court of Will county had no right or jurisdiction to try the defendant.
There is a marked distinction, in many respects, between the English practice and our own in criminal cases. The rigor of the English law, at an early day, led humane judges to resort to technical rules to save the life of a criminal who was on trial for stealing the value of a few shillings, who was denied the right of counsel or the attendance of witnesses to vindicate his innocence.
Under our laws, a criminal stands in entirely a different attitude. He has a right to a speedy trial, before a jury and court that are free from bias or prejudice. The laws of the land furnish him able counsel for his defense, whether he has money or not. The process of the court is at his command to compel the attendance of witnesses. In fact, our laws afford every facility for one charged with crime to obtain a fair and speedy trial. This being the case, many of the technical rules in the English practice are not in use under ours.
Under the English practice, the writ of error took the entire record from the lower court to the King's Bench, and the remittitur transmitted the entire record to the inferior court. Under our practice, however, the writ of error only brings a copy of the record from the lower court to the Supreme Court, and the remittitur does not transmit a record back to the lower court, but it is simply a copy of the final order or judgment of this court, and its only mission is, to inform the lower court of the action of the Supreme Court in the cause, with directions to proceed.
It is argued that the allowance of a writ of error in a capital case takes the jurisdiction of the cause from the circuit court. This position is not tenable. The circuit court retains the original record in the cause. Its jurisdiction of the cause is not taken away, but its power and authority to act or proceed in the cause are stayed. The statute (Gross, 207) reads: “The allowance of such writ of error shall be sufficient authority to the clerk of the Supreme Court to issue a supersedeas to stay the execution of the sentence of death, but not the discharge of the prisoner from jail.” Jacob, in his Law Dictionary, says, a supersedeas is a writ that lies in a great many cases, and signifies, in general, a command to stay some ordinary proceedings at law, on good cause shown, which ought otherwise to proceed. This court, in the case of Blackerby et al. v. The People, 5 Gilman, 267, said, the order allowing a supersedeas does not operate as a suspension of the judgment until the bond is filed and the writ of error issues. When these proceedings are had, the clerk issues the certificate prescribed by the sixth rule of this...
To continue reading
Request your trial
-
State v. Slorah
...Hopt v. Utah, 110 U. S. 574, 4 Sup. Ct. 202, 28 L. Ed. 262; Cancemi v. People, 18 N. Y. 128; Dempsey v. People, 47 Ill. 323; Perteet v. People, 70 Ill. 171. In the case of Hopt v. Utah the right to be present at a hearing before triers of the qualification of jurors in a capital case was un......
-
State v. Kusel
... ... State ... (Ga.) 103 S.E. 189; State v. Donovan, 90 A ... 220; State v. Burris, 97 A. 427; State v. Doran, ... (Me.) 59 A. 440; People v. Kane, 55 N.E. 946; ... Smith v. State, 94 N.W. 106.) the filing of the ... amended information was either a nullity or it superseded the ... where the offense is alleged to have been committed ... ( Kent v. State, 64 Ark. 247; Weyrich v ... People, 89 Ill. 90; Perteet v. People, 70 Ill ... 171; State v. Knapp, 40 Kan. 148; 19 P. 728; ... State v. Potter, 16 Kan. 80; Parker v. Com ... 12 Bush, 191; ... ...
-
People v. Weisberg
...by defendant adhere to the same rule: Gardner v. People, 3 Scam. 83; Perry v. People, 14 Ill. 496;Scott v. People, 63 Ill. 508;Perteet v. People, 70 Ill. 171;Smith v. People, 74 Ill. 144;Logg v. People, 92 Ill. 598;Kota v. People, 136 Ill. 655, 27 N.E. 53;Gifford v. People, 148 Ill. 173, 35......
-
State v. Mortensen
...56, it was said: "It is well settled that the accused may waive his right to be confronted with the witnesses on the trial." In Perteet v. People, 70 Ill. 171, it was observed: prisoner, in a capital case, is not to be presumed to waive any of his rights; but that he may, by express consent......