Rafferty v. People of State

• Decision Date: 30 September 1873
• Citation: 1873 WL 8419,69 Ill. 111,18 Am.Rep. 601
• Parties: CHRISTOPHER RAFFERTYv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

69 Ill. 111

1873 WL 8419 (Ill.)

18 Am.Rep. 601

CHRISTOPHER RAFFERTY

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

September Term, 1873.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Lake county; the Hon. ERASTUS S. WILLIAMS, Judge, presiding.

This was an indictment against Christopher Rafferty, for the murder of Patrick O'Meara, found by the grand jury of Cook county, and taken, by change of venue, to the circuit court of Lake county. The opinion of the court contains a statement of the facts of the case.

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

Mr. JAMES K. EDSALL, Attorney General, and Mr. CHARLES H. REED, State's Attorney, for the People.

Mr. JUSTICE MCALLISTER delivered the opinion of the Court:

The plaintiff in error having been found guilty upon an indictment, for the murder of one Patrick O'Meara, and sentenced to suffer the penalty of death, has caused the evidence, together with the rulings of the court and exceptions taken, to be preserved in a bill of exceptions, and brought the record to this court, for review, upon writ of error.

Various errors have been assigned, among which is the exclusion of proper evidence, and overruling his motion for a new trial. We propose to consider but one question presented, and that is one vitally affecting the merits of the case, and which we can not disregard without overriding a plain and well settled rule of law, based upon a foundation no less solid than the natural rights of personal liberty and security--rights held sacred by the common law and recognized and protected by constitutional enactments.

The record contains evidence tending to show that the homicide was committed by the prisoner in resisting the deceased, who was a policeman of the city of Chicago, whilst engaged in connection with another policeman, whom he was aiding, in the act of committing an illegal and wholly unjustifiable invasion of plaintiff's liberty, by attempting to seize his person and take him off to prison, without any authority in law so to do. The circumstances, which the evidence tends to prove, were briefly these: At a little after midnight of the night of the 4th, and in the early morning of the 5th of August, 1872, the prisoner was sitting quietly and peaceably by a table in a saloon, when O'Meara, the deceased, and another policeman of the name of Scanlan, came in. O'Meara immediately pointed the prisoner out to Scanlan. The prisoner upon seeing O'Meara addressed him in a friendly manner, asking him to take something to drink, or a cigar, which was declined. Scanlan then went directly up to the prisoner, tapped him on the shoulder, and told him he had a warrant for him. The prisoner demanded the reading of the warrant, which was done, and the prisoner apparently submitted to the arrest; but immediately threatened to shoot the first man who should lay a hand upon him. O'Meara, who came with a slung shot hung to his wrist, stationed himself at the outer door to prevent prisoner's escape, while Scanlan kept himself in position to guard a back door. All this occurred in a brief space of time; and while O'Meara, with a slung shot suspended from his wrist, was thus guarding the door which led into the street, the prisoner shot him with a pistol, inflicting a mortal wound. There is not the slightest pretense in the case that the prisoner had been accused or suspected of having committed any felony, or that he, at the time, was in the act of committing a misdemeanor or even any violation of a city ordinance. The facts appearing, from the tendency of the evidence, are that the homicide was committed while the deceased was assisting in the arrest of the prisoner under the circumstances stated. No attempt was made by the State's Attorney, on the trial, to show that the prisoner had been charged with the commission of any felony, or to prove that either of the policemen in question had in their possession, at the time, any lawful writ or warrant authorizing the prisoner's arrest. But the counsel for the prisoner caused to be produced and identified, the supposed warrant, which the policemen had, and upon which the arrest was made, and established, by undisputed evidence, that Police Sergeant Hood had in his drawer a number of blank summonses and warrants, which had been signed by police magistrate Banyon, and which the sergeant had been accustomed to fill up in the absence of the magistrate, and use, from time to time, as exigences might require. That from these blanks he, on Sunday, August 4, 1872, filled up the one in question, putting the prisoner's name into it, in the absence of the magistrate; and to avoid the appearance of having been issued on Sunday, it was dated the 5th of August. This paper was delivered to Scanlan, and he and O'Meara proceeded, as the evidence clearly shows, to hunt for the prisoner all that Sunday night with the intention of arresting him on that pretended process, as soon as midnight was passed, if they could find him. When the supposed warrant was introduced in evidence, and the testimony showing how it was brought into existence was given, the court, upon the motion of the State's Attorney, excluded the warrant and all evidence relating to it, from the jury, as incompetent; to which the prisoner's counsel excepted.

The supposed warrant, as filled out by the sergeant, was directed to any constable or policeman of the city of Chicago, commanding them to take the body of Christopher Rafferty and bring him forth with before the magistrate, unless special bail should be entered; and if such bail should be entered, then to command Rafferty to appear before such magistrate at eight o'clock a. m., on the 10th day of August, 1872, at his office, etc., “to answer the complaint of the city of Chicago in a plea of debt for a failure to pay said city a certain demand, not exceeding one hundred dollars, for a violation of an ordinance of said city entitled ‘an ordinance for revising and consolidating...