Sanders v. People

Decision Date27 March 1888
Citation124 Ill. 218,16 N.E. 81
PartiesSANDERS v. PEOPLE.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

Error to circuit court, St. Clair county; B. H. CANBY, Special Judge.

Indictment of plaintiff in error, James Sanders, for perjury.

George Hunt, Atty. Gen., for the People.

MAGRUDER, J.

Plaintiff in error was indicted jointly with Christian A. Schmidt and Peter Tourville for breaking into a house a few miles from East St. Louis on the night of October 22, 1886, and taking therefrom certain articles of property. He was tried on March 29, 1887, for the burglary and larceny for which he had been so indicted, and was acquitted. In the case at bar, plaintiff in error was indicted for perjury. The complaint is that on March 29, 1887, before his trial for burglary and larceny began, he made an affidavit for continuance on the ground that he could not safely proceed to trial in the absence of H. T. Winchester, a witness by whom he expected to prove an alibi. In the affidavit he made the following statement: ‘That Winchester will swear that this affiant was at his home in East St. Louis, St. Clair Co., Illinois, in the First ward, between Main and Second streets, in said city, on the night of the 22d day of October, 1886, from 8 o'clock P. M. until 11:30 o'clock P. M.; that said Winchester is the only witness by whom he can prove that he was at his home there, as aforesaid, until that time.’ The indictment for perjury in making this affidavit charges that, ‘in truth and in fact, the said H. T. Winchester was not the only witness who could swear the facts, and by whom the said James Sanders could then and there prove that he, the said James Sanders, was at his home in the First ward of the city of East St. Louis, in the county of St. Clair, aforesaid, on the night of the 22d day of October, A. D. 1886, from 8 o'clock P. M. to half-past 11 o'clock P. M., as the said James Sanders then and there well knew at the time the said James Sanders made his oath and affidavit as aforesaid.’ The continuance was refused, on the ground that due diligence had not been used to procure the attendance of the absent witness. The trial for burglary and larceny then proceeded. Upon the trial, which took place on the same day on which the affidavit was made, Sanders introduced Annie Lane and Lenndorf Tate as witnesses to prove the alibi. Mrs. Lane swore that she was at the home of Sanders on the night in question until 11 o'clock, and that Sanders was there up to that time. Tate swore that he was at the home of Sanders during the whole of the night of October 22, 1886, and that Sanders was at home during the entire night. It was also proven that Sanders, who had been out on bail from March 16, 1887, to March 29, 1887, came on the latter day, shortly before making the affidavit for continuance, on the cars from East St. Louis to Belleville in company with Tate, and was then and there engaged in conversation with Tate in reference to what the latter would testify to about the alibi. The jury found plaintiff in error guilty of perjury. Judgment has been entered upon the verdict, and plaintiff in error has been sentenced to the penitentiary. The judgment is brought before us for review by writ of error.

The first error assigned is the refusal of the court below to quash the indictment. The indictment is claimed to have been insufficient, on the alleged ground that the false swearing was not in respect to a matter material to the point of inquiry, and, therefore, could not constitute the crime of perjury under the rulings of this court. Pollard v. People, 69 Ill. 148;Henderson v. People, 117 Ill. 265, 7 N. E. Rep. 677. The issue presented by the affidavit for continuance was not whether the defendant was guilty or innocent of the charge of burglary and larceny. The affidavit alleged that there was no other person by whom an alibi could be proved except Winchester. The issue presented was the truth or falsity of this allegation. It was pertinent and material to the motion for continuance which had been made by Sanders, and was then pending in the pending cause of People v. Sanders, Schmidt, and Tourville. It makes no difference that the continuance was denied, or that the affidavit did not show the exercise of due diligence. If the affidavit was false as to a material fact necessary to support the general ground upon which a continuance was asked, then perjury was committed. The indictment in this case is not obnoxious to the objections mentioned in the case of Morrell v. People, 32 Ill. 502, referred to by counsel. There, it did not appear from the indictment that an application for a continuance was made, and that the affidavit was material on such application. Here, the indictment avers that a cause was pending in the court, that a motion for continuance had been made, and that, upon the hearing of that motion, the affidavit was material. It was a material question, upon such hearing, whether or not Winchesterwas the only witness by whom the alibi could be proved. We do not think that the trial court erred in refusing to quash the indictment, or to sustain the demurrer thereto.

It is next assigned for error, that the jury were not placed in charge of a sworn officer when they retired ‘to consider of their verdict,’ in accordance with the requirement of section 435, Crim. Code. That section provides that, ‘when the jury retire to consider of their verdict in any criminal case, a constable or other officer shall be sworn or affirmed to attend the jury,’ etc. The evidence shows that, when court adjourned at noon, the officer who took charge of the jury was sworn by the clerk in the manner required by said section, but after the noon recess the jury returned into court. Some further proceedings were had in the trial. The jury then retired ‘to consider of their verdict,’ but the officer who attended them was not again sworn. It would have been better if the officer had been sworn to attend the jury, and keep them together, and prevent others from speaking to them, etc., at the time they retired to their consultation room to agree upon their verdict; but, if the statutory oath was administered to the same officer an hour or more before they retired to the jury-room, we do not regard this as such an irregularity as will justify a reversal. In Lewis v. People, 44 Ill. 452, it appeared that the officer in whose charge the jury were placed while deliberating upon their verdict, either was not sworn at all, or was not sworn in the mode required by the statute. So, also, in McIntyre v. People, 38 Ill. 514, it appeared that ‘the oath required by the statute was not administered.’ In the case at bar, however, such an oath as the statute provides for was administered by the clerk to the officer in charge. The only peculiarity about it was that it was administered an hour or more before the jury retired, instead of being taken at the time or ‘when’ they retired. In McIntyre v. People, supra, the officer was sworn ‘on an adjournment of the court at a previous time in the progress of the trial,’ just as in the present case; but there the objection was only as to the character of the oath, and not as to the time when it was taken. We...

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14 cases
  • Redd v. State
    • United States
    • Arkansas Supreme Court
    • July 9, 1898
    ... ... proved by reading from the bill of exceptions in the former ... trial. Stern v. People, 102 Ill. 540; ... Roth v. Smith, 54 Ill. 431 ...          ( b ) ... If these facts could be established that way, the effect ... ...
  • Fletcher v. State
    • United States
    • Wyoming Supreme Court
    • April 25, 1912
    ... ... 222; Odell v. Solomon, 4 N.Y.S. 440; Reynolds v ... Fitzpatrick, (Mont.) 72 P. 510; Robins v. Barton, ... (Kan.) 58 P. 279; People v. Macard, (Mich.) 67 ... N.W. 968; Dickerson v. State, (Wyo.) 111 P. 857.) ... Section 944, Compiled Statutes, 1910, has reference simply to ... perjury charge the direct tendency of the testimony was to ... put the accused at another place at the time of the offense ... ( Sanders v. People, 124 Ill. 218, 16 N.E. 81; ... Brown v. State, 57 Miss. 424; State v. Gibbs, ... (Mont.) 10 L. R. A. 749; Tellis v. State, ... ...
  • Taylor v. State
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    • Arkansas Supreme Court
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  • State v. Varnado
    • United States
    • Louisiana Supreme Court
    • July 11, 1923
    ... ... litigant, and contrary to law and justice." ... See, ... also, Morrell v. People, 32 Ill. 499; Sanders v ... People, 124 Ill. 218, 16 N.E. 81; State v ... Johnson, 7 Blackf. 49; State v. Winstandley, ... 151 Ind. 316, ... ...
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