Rafferty v. People of State

• Court: Illinois Supreme Court
• Writing for the Court: SHELDON
• Citation: Rafferty v. People of State , 66 Ill. 118, 1872 WL 8516 (Ill. 1872)
• Decision Date: 30 September 1872
• Parties: CHRISTOPHER RAFFERTY.v.THE PEOPLE OF THE STATE OF ILLINOIS.

66 Ill. 118

1872 WL 8516 (Ill.)

CHRISTOPHER RAFFERTY.

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

September Term, 1872.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Criminal Court of Cook county; the Hon. LAMBERT TREE, Judge, presiding.

This was an indictment against the plaintiff in error for the murder of Patrick O'Meara. The facts involved in the decision are stated in the opinion of the court.

Mr. EDWARD A. SMALL, for the plaintiff in error.

Mr. C. H. REED, State's Attorney, for the People.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

Christopher Rafferty was indicted, tried and convicted of murder, in the criminal court of Cook county, and sentenced to be executed.

The case is brought before this court by writ of error.

One of the errors assigned is the refusal of an application, by the defendant, for a change of venue. The petition therefor was as follows:

+----------------------------+
                ¦“STATE OF ILLINOIS, ¦)¦     ¦
                +--------------------+-+-----¦
                ¦                    ¦)¦ss.  ¦
                +--------------------+-+-----¦
                ¦Cook county.        ¦)¦     ¦
                +----------------------------+
                

The September Term of the Criminal Court of Cook County, in said State, in the year of our Lord, A. D. 1872.

+--------------------------------------------------------------+
                ¦THE PEOPLE OF THE STATE OF ILLINOIS¦)¦                        ¦
                +-----------------------------------+-+------------------------¦
                ¦vs.                                ¦)¦Indictment for Murder.  ¦
                +-----------------------------------+-+------------------------¦
                ¦CHRISTOPHER RAFFERTY.              ¦)¦                        ¦
                +--------------------------------------------------------------+
                

The petition of Christopher Rafferty, the defendant and accused above named, respectfully represents to his Honor, the Judge of said court, that the petitioner fears he will not receive a fair and impartial trial in the court in which said trial is pending, on account that the minds of the inhabitants of said Cook county, wherein said trial is pending, are prejudiced against the petitioner. The petitioner further states that he did not ascertain the existence of such prejudice until the third day of September, A. D. 1872, and two days next before this date. He, therefore, prays for a change of venue in said cause, pursuant to the statute in such cases made and provided.

Dated September 4, 1872.

CHRISTOPHER his + mark RAFFERTY.”

The petition was duly verified by affidavit.

Previous to 1861, the law regulating the change of venue in criminal cases stood thus:

“When any defendant in any indictment or information in any court in this State, shall fear that he will not receive a fair and impartial trial in the court in which the trial is pending, on account that the judge is prejudiced, or that the minds of the inhabitants of the county wherein the trial is pending are prejudiced against him, such party may apply to the court in term time, or the judge thereof in vacation, for a change of venue, by petition setting forth the cause of such application, verified by affidavit, reasonable previous notice being given,” etc., “and the court or judge shall award a change of venue to the next nearest county where the causes complained of do not exist.”

On the 21st of February, 1861, the general assembly passed the following act, amendatory of that law:

“When any defendants in any indictment or information for any offense not punishable with death in any court in this State, shall apply to said court for a change of venue, under the provisions of section 5, chapter 106 of the Revised Statutes, such defendants shall, in addition to the causes in said section expressed, set forth in his petition the grounds of his belief or knowledge that the judge of said court or the minds of the inhabitants of the county in which the action is pending are prejudiced against him, and the facts which induced him to believe that such prejudice, either on the part of said judge or the inhabitants of said county, does exist.

SEC. 2. Such petition shall be verified by affidavit of the defendant, as now required by law; and said court shall hear said petition, and shall have power to grant or deny the same.

SEC. 3. It shall be lawful for the State's Attorney, on behalf of the people, to deny the facts stated in the petition and support the same by counter affidavit.

SEC. 4. No court shall grant any change of venue in a criminal cause where the facts set forth in the petition are disproved by counter affidavits on the part of the people, nor unless said court shall be satisfied that said petition is true, in substance and in fact, and that there is reasonable grounds to fear that said defendant can not receive a fair and impartial trial in the court where the same is pending.”

No question is made as to the regularity of the application in this case, but the position is taken, on the part of the people, that the court below was, notwithstanding, authorized to deny the petition, under the last clause of the fourth section of said amendatory act.

The former law was peremptory that the court “shall award a change of venue.” The court had no power to deny it, where the application was in due form. Such power was first given by the second section of the amendatory act of 1861; and it is given there clearly in the cases named in the first section--cases only where the offense is “not punishable with death.” We regard the fourth section as but regulating the exercise of the power given by the second section.

The first clause of the fourth section--“no court shall grant any change of venue in a criminal cause where the facts set forth in the petition are disproved by counter affidavits on the part of the people”--manifestly has respect to cases where the offense is not punishable with death, as it is only in such cases that the facts which induce the belief of the prejudice against the defendant must be set forth in the petition, and where counter affidavits are admissible; and the last clause of the fourth section, as we read it, relates to such cases only, requiring that, even if the said facts are not so disproved, the court shall not then grant the change of venue, unless it shall be satisfied that the petition is true in substance and in fact, and that there are reasonable grounds for the defendant's fear.

If that clause be...