Smith v. People of State

• Court: Illinois Supreme Court
• Writing for the Court: BREESE
• Citation: Smith v. People of State , 74 Ill. 144, 1874 WL 9094 (Ill. 1874)
• Decision Date: 30 September 1874
• Parties: JOHN W. SMITHv.THE PEOPLE OF THE STATE OF ILLINOIS.

74 Ill. 144

1874 WL 9094 (Ill.)

JOHN W. SMITH

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

September Term, 1874.

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

Messrs. E. & A. VAN BUREN, for the plaintiff in error.

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

Mr. JUSTICE BREESE delivered the opinion of the Court:

This was an indictment, in the Criminal Court of Cook county, against John W. Smith and James Jordan, for an assault upon Cornelius Tighe with a loaded pistol, with intent to kill him. The defendant Smith was found guilty, and his term of imprisonment in the penitentiary fixed at fifteen months.

The record is brought here by writ of error, and various errors assigned.

The first point made is, that the verdict is against the evidence. There is some conflict in the testimony, but as to the fact of shooting by the prisoner and inflicting a serious bodily injury upon the prosecuting witness, there is no conflict. The point is, was the prisoner justified, under the circumstances? On this point the controversy arises. The prosecutor, Tighe, the person shot, makes out a clear case, without the shadow of justification, and he is corroborated, in some particulars, by other witnesses, especially as to the fact of his having a pistol at the time of the shooting. He and the other witnesses examined as to that fact testify that he had no pistol, whilst the prisoner and Jordan testified he had one and had drawn it. This conflict was for the jury to settle, and we think the jury were justified in finding that Tighe did not, with a pistol in his hand, as argued, assault the prisoner, or conduct in such manner toward him as to induce the prisoner's belief his life or limb was in any danger. And there is some testimony from which it might be inferred, the attempt on Tighe was premeditated by the prisoner. But the idea that the prisoner had a reasonable apprehension his life was in danger from Tighe is dispelled by his own testimony, for he says, he intended to fire over his head. Surely, a man armed with a loaded pistol, violently assaulted by another so armed, seeing his life or limb in danger, would never think of firing his weapon over the head of his assailant, but would take such aim as would at least cripple him, in order to protect his own life or limb.

The evidence justifying the finding, we are next to consider if the law was properly given to the jury.

It is complained by the prisoner that the court erred in giving the first instruction for the people. The instruction was as follows: “The court instructs the jury that a reasonable doubt means, in law, a serious, substantial and well founded doubt, and not the mere possibility of a doubt. The jury have no right to go outside of the evidence to search for or hunt up doubts in order to acquit the defendants, not arising out of evidence or for the want of evidence.”

This instruction is free from any well founded objection,...