Rafferty v. People of State

• Decision Date: 31 January 1874
• Citation: 1874 WL 8754,72 Ill. 37
• Parties: CHRISTOPHER RAFFERTYv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

72 Ill. 37

1874 WL 8754 (Ill.)

CHRISTOPHER RAFFERTY

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

January Term, 1874.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Lake county; the Hon. T. D. MURPHY, Judge, presiding.

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

Mr. CHARLES H. REED, State's Attorney, for the People. Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

This case has been before us, upon writ of error, on two former occasions. On the first, the conviction was reversed upon the ground that the Criminal Court of Cook county erred in denying the prisoner's application, upon a sufficient petition, for a change of venue. This court held, in accordance with the views of the profession and circuit judges all over the State, as shown by the general course of practice, that the application was not addressed to the discretion of the court, but, upon a proper application being made, the prisoner was entitled to it, as a matter of right. For depriving him of that right, the judgment of the court below was reversed and the cause remanded. Rafferty v. The People, 66 Ill. 118.

Upon the second trial, in the county to which the venue was changed, evidence was given by Scanlan directly tending to show that he and O'Meara, the deceased, at the time the latter was shot, were attempting to arrest the prisoner upon a warrant, not in the hands of O'Meara, but Scanlan. Whereupon, the prisoner's counsel gave evidence showing, without contradiction, that the pretended process upon which such arrest was attempted, was a blank taken from a number which the police magistrate had signed in blank, and which, on August 4, 1872, had been filled out by a mere police sergeant, in the absence of the magistrate, by inserting the prisoner's name, but dated as of August 5, 1872.

When the evidence of the illegality of the process was given, the court, on motion of the State's Attorney, excluded it from the jury, to which the prisoner's counsel excepted. This evidence having been excluded, the case was then submitted to the jury by the court below, upon the ordinary presumption of implied malice, and as if no such element as an illegal arrest being attempted at the time of the homicide, was in the case. The prisoner was convicted of murder, and sentenced to suffer the penalty of death. An application was made, upon a transcript of the record preserving the evidence and rulings of the court, for the allowance of a writ of error from this court, which was granted, and that brought the case before us a second time. As the case then stood, not having been submitted to the jury upon the question of express malice, and the evidence tending to show O'Meara's participation in an attempted arrest, and the evidence excluded showing that the supposed warrant on which the arrest was being made did not afford even the color of justification, because it was not issued in the course of justice at all, but fabricated by a mere police sergeant, we could not pass upon the merits of the case, because a portion of the evidence affecting the merits had been excluded.

It is true, the fact of the homicide was established beyond doubt, but every killing of a human being is not necessarily murder. The character of the act depends upon the attending circumstances. The propriety of the ruling of the court in excluding that evidence was therefore before us, and we could not escape its decision.

We held, as we have no doubt, properly, and in accordance with all the decisions in England and this country, that, if a public officer be resisted and killed by a person whom he is attempting to illegally arrest, without color of authority of law, the killing will be manslaughter only, unless the evidence shows previous or express malice. Rafferty v. The People, 69 Ill. 111.

As we have before said, as the case was then presented, there was evidence clearly tending to prove O'Meara's participation, and the evidence excluded would have shown the warrant utterly void, as we have stated; then it followed, upon principle and authority, that the exclusion of the evidence was wrong, was prejudicial to the legal rights of the prisoner. For, when it appeared that a question could be properly raised as to the legality of the arrest which Scanlan was undoubtedly attempting to make, and the evidence tended to show deceased was aiding him, the obvious and proper course was, to let the excluded evidence go to the jury, and they be required, by the directions of the court, to find whether deceased was in fact participating in an attempted arrest by Scanlan under the supposed warrant, if such were the facts; and then told that, if the prisoner resisted such illegal arrest, and committed the homicide, it was manslaughter only; but if he was actuated by previous or express malice, it would, nevertheless, be murder. This was the only proper course to have been pursued by the court below, and the departure from it was so plain a departure from established principles of criminal jurisprudence, that we, as a court of last resort, could not do otherwise than reverse the conviction and direct a new trial. In the opinions then filed, it was announced, if, when the question was made a direct issue in the cause, as to whether O'Meara was, in fact, participating with Scanlan in an attempted illegal arrest, it should be found that he was not, the rule laid down would not apply; or if, on the other hand, the evidence should show express malice, then it would be murder at all events.

The case was sent back under these rulings, and again tried, with the same result as before. A transcript of the record, duly certified, with an assignment of errors, was presented in vacation, for the allowance of a writ of error. It was allowed, and the case is now before us for the third time.

The evidence as to the illegality of the supposed warrant was admitted on this trial, and it was made a direct issue in the cause, whether or not O'Meara was participating in the arrest, and whether the prisoner was actuated by previous or express malice.

The prisoner's counsel earnestly insists that the evidence would sustain a conviction for manslaughter only, and that this court should revise the finding of the jury upon the evidence, and set it aside. It is true, the statute has clothed this court with a revisory power over the verdicts of juries in criminal as it has in civil cases; and it is also true, that there is some difference between the two classes of cases, for, in criminal cases, the guilt of the accused must be established beyond a reasonable doubt, while, in civil cases, the issue is determined by a preponderance of evidence. In the latter class, it is the established rule, if the verdict is wholly unsupported as to any necessary element, or if there is evidence upon both sides, and the verdict appears to be manifestly against the clear weight and preponderance of the evidence, we set it aside. In criminal cases, this court has, as yet, established no fixed, definite rule, and it is doubtful if any can be established farther than this: If, when the evidence is all carefully considered and weighed, it appears that it is wholly wanting in respect to some necessary element of the crime, or if there is a conflict of evidence, and there is such a clear preponderance of evidence against the verdict, as to suspend the judicial mind in serious doubt as to the guilt of the accused, then, in either case, we ought to grant a new trial.

Questions of the credibility of witnesses are peculiarly for the jury. As, for instance, suppose the conviction rests solely upon the evidence of an accomplice. If the jury choose to believe him, we could not reverse when that fact was the only one affecting his credibility, although we may believe that faith should not be reposed in such a witness. But, when a verdict rests solely upon the evidence of a single witness, and direct evidence of impeachment is introduced to such an extent as to lead to the conclusion that the jury were actuated by passion or prejudice in disregarding such impeaching evidence, then we ought to set the verdict aside, and direct a new trial. We are satisfied that, under no rule which ought to govern, in reviewing the verdicts of juries in criminal cases, upon the evidence, can we consistently interfere in this case. The evidence is different from what it was when the case was last before us; it fails to show that deceased was, in fact, participating in any degree in an attempt by Scanlan to arrest the prisoner upon the supposed warrant. But it is said Scanlan has committed perjury, in testifying as he did; that his testimony on the former trial was introduced, from which it appears that deceased was standing against the door, with a slung-shot suspended from his wrist, to prevent egress by the prisoner from the room, and was thereby assisting. It is true, such evidence was introduced, but that evidence only tended to affect the credibility of Scanlan, was competent for that purpose only, and could not be used to prove the facts previously sworn to. This was a part of the prisoner's defense, to be established by him. The question of Scanlan's credibility was for the jury, and the evidence opposed to him was very slight.

But there is another view of the evidence which would entirely override the question of illegal arrest, or O'Meara's participation in it, and that was the evidence of previous or express malice. Only some...