Spicer v. the People.

• Decision Date: 31 August 1882
• Citation: 11 Ill.App. 294,11 Bradw. 294
• Parties: JAMES SPICERv.THE PEOPLE.
• Court: United States Appellate Court of Illinois

11 Ill.App. 294

11 Bradw. 294

JAMES SPICER

v.THE PEOPLE.

Appellate Court of Illinois, Fourth District.

August Term, 1882.

OPINION TEXT STARTS HERE

APPEAL from the County Court of Johnson county; the Hon. C. M. DAMRON, Judge, presiding.Opinion filed September 29, 1882.

Mr. WM. A. SPANN, for appellant; that it was error to put defendant upon trial without entering his plea, cited Johnson v. The People, 22 Ill. 314;Yundt v. The People, 65 Ill. 372;Haskins v. The People, 84 Ill. 87;Gould v. The People, 89 Ill. 216.

It is error to give an instruction which assumes controverted facts as proved: Wallace v. De Young, 98 Ill. 638;Faran v. Childs, 66 Ill. 544;M. S. & N. I. R. R. Co. v. Shelton, 66 Ill. 424;C. B. & Q. R. R. Co. v. Griffin, 68 Ill. 499;Cusick v. Campbell, 68 Ill. 508;Russell v. Minter, 83 Ill. 150;Gohn v. Doerle, 85 Ill. 514.

It is error to give an instruction not based on evidence: Bank of Montreal v. Page, 98 Ill. 109;Waldron v. Marcier, 82 Ill. 550;Cottom v. Holliday, 59 Ill. 176;Ill. Cent. R. R. Co. v. Cragin, 71 Ill. 177;B. & W. R'y Co. v. Birney, 71 Ill. 391;Smith v. The People, 74 Ill. 144;Martin v. Johnson, 89 Ill. 537.

In criminal cases where the evidence is conflicting, the instructions must be accurate: Swan v. The People, 98 Ill. 610;Otmer v. The People, 76 Ill. 149;Gulliver v. The People, 82 Ill. 146.

Where the erroneous instruction has a tendency to mislead, it is not cured by the giving of others which are correct: Baldwin v. Killian, 63 Ill. 550;Ill. Cent. R. R. Co. v. Moffit, 67 Ill. 431;T. W. & W. R'y Co. v. Larmon, 67 Ill. 68;Camp Point Mfg. Co. v. Ballon, 71 Ill. 417.

Where the verdict is manifestly against the weight of evidence the judgment will be reversed: Lincoln v. Stowell, 62 Ill. 83;Smith v. Slocum, 62 Ill. 354;Stenger v. Swartwout, 62 Ill. 257;Davenport v. Springer, 63 Ill. 276;Rafferty v. The People, 72 Ill. 37;Chicago v. Lavalle, 83 Ill. 482;Eastman v. The People, 93 Ill. 112;Hayward v. The People, 96 Ill. 492;Gainey v. The People, 97 Ill. 270.

WALL, J.

Appellant was tried before the County Court of Johnson county, upon an information charging him with committing an assault and battery upon the person of one Thomas Elkins, and was found guilty.A motion for new trial was overruled, and a fine imposed.The record is brought here by writ of error, and various causes are assigned for a reversal of the judgment.The evidence shows that the affair occurred at a school-house at night.The prosecuting witness, Thomas Elkins, swears that he saw a difficulty progressing between his son and one Lovelace; that he went to the defense of his son, and endeavored to catch the arm of Lovelace, and that just then the defendant Spicer took hold of his (witness') clothing, and struck him a blow with his fist, repeating the blow several times, knocking him down, and giving details not necessary to be stated.Some eight other witnesses besides the defendant, also testified, not one of whom agrees with the prosecutor as to all material points, and the most of them present the case in quite a different aspect; that is, that the younger Elkins assaulted Lovelace, who was defending himself, when the prosecuting witness went to the aid of his son and also assaulted Lovelace, and that then the defendant Spicer laid his hand upon the shoulder of the prosecuting witness and said “hold on,” whereupon the latter turned and struck defendant, and a fight then ensued between the two, resulting in Spicer getting Elkins down, and holding him there by the wrists.Elkins asked to be let up and Spicer said: “I will, if you will behave and let me alone.”Some one said “Let him up, I will see that he behaves.”Spicer did so, and here the struggle ended.We think the great weight of the testimony is to the effect that Spicer was only endeavoring to prevent Elkins from committing a breach of the peace, when he was assaulted by Elkins, and that what Spicer afterward did was in his proper self-defense.The court gave the following instruction at the instance of the prosecution. 1st. “You are instructed for the people that it devolves upon the defendant, before he can successfully defend the charge made by this information upon the ground that he committed the assault and battery to prevent a felony, to show that such assault and battery was committed to prevent the commission of a felony; and further, that no more force was used than was necessary to prevent the impending violence.And unless you believe from the evidence, that a felony was actually impending, such defense is of no avail.”We can not understand why it should be assumed that the defense was predicated upon the ground that the assault and battery alleged, was committed to prevent the commission of a felony.There was nothing in the evidence that would warrant the view that the prevention of a felony was necessary, for there was no reason to think that Elkins was trying to commit a felony.According to the view of the defendant and some of the other witnesses, as before stated, it was quite apparent that Elkins was about to commit an unlawful assault upon Lovelace, and to prevent this the defendant interfered.The instruction was faulty in assuming that defendant did commit the assault and battery charged; that is, the unlawful beating of Thomas Elkins.If the defense had...