Stone v. People of State
| Decision Date | 30 June 1840 |
| Citation | 3 Ill. 326,2 Scam. 326,1840 WL 2935 |
| Parties | JOHN STONEv.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
AT the April term, 1840, of the circuit court of Cook county, an indictment for murder was found against John Stone, by a grand jury which had been summoned by order of the court, after the regular grand jury had been discharged. A trial was had before the Hon. John Pearson and a jury, which had also been summoned after the regular petit jury had been discharged. The defendant below was found guilty by the jury. Thereupon he moved for a new trial, and in arrest of judgment. The court overruled both motions, and passed sentence of death on the prisoner.
Points relied on by the plaintiff in error:
1. It appears by the record that a regular grand jury was duly summoned by a venire issued by the clerk of the county commissioners' court, to attend for the whole term, and, having completed their business, the jurors were discharged by the court, on the 23d day of April, and on the 29th day of April the court directed the sheriff to summon a new grand jury; that such new grand jury was summoned; and, on the 1st day of May, found the indictment in this case. The court had no power to order the sheriff to summon this grand jury, and their acts are void; the 9th section of the act concerning jurors, (R. L. 380-1; Gale's stat. 397) only authorizes the court to order the summoning of grand jurors, in cases where the regular jurors fail to appear, or where, by reason of challenges or other causes, there shall not be sufficient to make up the panel, or where the county commissioners' court shall fail to make a selection. It is apparent that this section was never intended to apply to a case where the regular panel have attended, and have performed their duties, and have all been discharged by the court. It was only intended to apply to cases where the jurors failed to attend in pursuance of summons; where there is a delinquency on the part of the jurors summoned; or where their number has been reduced by challenges, or where the county court had failed to perform its duty. It never was intended to vest in a circuit judge and sheriff the dangerous power of discharging the regular panel ad libitum, and packing a grand jury of the sheriff's own selection, and thus depriving a prisoner of his constitutional right to have his case brought before a grand jury selected by the county commissioners' court, according to the law of the land; nor can the prosecution derive any aid from the 11th section of the same act, as that section evidently only applies to individual jurors, after being sworn. In case of absence, sickness, or discharge of such juror, it authorizes the summoning of another to serve in his stead; it has no application to the summoning of a new panel, after the whole of the regular panel shall have been discharged by the court.
2. The petit jury who tried the cause was illegal, and was empanelled without the authority of law. It appears, by the record, that two venires were issued by the county commissioners' court, and that petit jurors were summoned for the first and second weeks of the term; that they attended, and were discharged by the court, at the end of the second week; that on the second day of May, a new petit jury was summoned by the sheriff, by the order of the court. The observations made under the first point, will apply to this. This jury was objected to by the defendant, and he objected to being tried by this jury. The objection was overruled, and the defendant excepted. The defendant has been tried and convicted by a jury not selected according to the laws of the land, but selected by the sheriff. If it was necessary for the county commissioners' court to issue a second venire for a jury, for the second week of the term, it was equally necessary to have issued a venire for the third week of the term. The judge had no power to summon a jury of talesmen after he had voluntarily discharged the whole panel. The jury summoned by the order of the court, were talesmen, and there cannot be a tales except there be a quales, that is, one or more regular jurors at the same time. 10 Coke 104-5; 1 Chit. Crim. Law 518.
3. The court erred in ordering the withdrawal of Patterson Nickalls from the petit jury, after the trial had commenced, and three witnesses had been sworn. If a party has an opportunity of making his challenge, and neglects it, he cannot afterwards make the objection, although the juror is an alien. 8 Barn. and Cres. 417; 4 Dallas 353; Rex v. Edwards, 4 Taunt. 309; Roscoe's Crim. Ev. 177. A juror cannot be challenged after the trial has commenced. The prosecution having selected their jury, were bound to abide the result. Although a prisoner has, by our court, been allowed to raise the objection of alienage to a juror, after verdict, in favorem vitæ, still the prosecution could not make the objection after verdict. The annals of law do not furnish a case of a challenge being allowed by the prosecution to a juror, after trial commenced.
4. When the court allowed Nickalls to be withdrawn from the jury, the court erred in not discharging the whole jury. The withdrawal of a juror, in all cases, discharges the whole jury, unless the defendant consents to have the remaining jurors remain. Chitty lays down the law, that, on the withdrawal of a juror, the prisoner must be tried by a fresh jury. Nickalls was the seventh juror sworn, and when his substitute was placed upon the jury, the defendant was allowed only one challenge. His peremptory challenges having been previously exhausted, by this process of withdrawing a juror, and substituting another in his stead, the defendant is deprived of the exercise of the right of challenge, secured to him by law. Chit. Crim. Law 629-30, edition of 1819.
5. The court erred in refusing to grant a new trial upon the causes stated in the motion, and especially upon the cause set forth in the affidavit of McCorristen, that the doors of the court were locked during the trial.
6. The court erred in refusing to arrest the judgment. The indictment is insufficient; it does not describe the wounds by which it is alleged that the deceased came to her death.
J. BUTTERFIELD and S. LISLE SMITH, for the plaintiff in error.
A. HUNTINGTON, state's attorney, for the defendants in error.
The priswas indicted, tried, and convicted of the murder of one Lucretia Thompson, at the last April term of the Cook circuit court. A writ of error having been allowed, and the record certified and transmitted to this court, it is now called on to review and revise the proceedings had in the cause.
Before proceeding to the consideration of the questions presented for our examination and decision, it may not be improper to remark, that in performance of the duty required of the prosecuting attorney on the trial, by the 188th section of the criminal code of this state, to certify to the correctness of the record, that officer has made a qualified certificate of its accuracy and regularity, by which a portion of it is excluded, and other parts questioned.
This qualification and exclusion relates to the recitals of the mode of summoning and returning the venires and panels of the first and second grand and petit jurors; and the time and manner of their discharge from further service by the court. That such portions of the record, which have been thus excepted to, were irregularly incorporated into the record, we cannot doubt, because they could alone have been regularly made a part of the record, by having challenged the array, and thus brought those proceedings before the court; or by a motion, on affidavit of some irregularity in the proceedings connected with the issuing of the venires, or the want of power in the court to issue them, and execution by the sheriff, or some defect apparent therein. They formed no more a portion of the proceedings, in this cause, than they did in any other pending at that time in the circuit court. We have made these observations, not because the irregularity may be of any direct importance, in the consideration of the questions presented, and connected with the facts in this case, in reference to the want of power in the circuit court, to order and direct the summoning the grand jury which found the bill of indictment, and the petit jury which tried the cause, because we shall give the prisoner the full benefit of the consideration of all the questions presented by his counsel, connected therewith, but to prevent a presumption that the practice is sanctioned by this court. Having premised thus much, we proceed to the consideration of the main points in the case.
It appears that a grand jury, regularly summoned and duly empanelled, had been discharged during the term of the circuit court, having disposed of the business before it; that after such discharge, and during the continuance of the term of the circuit court, on the 26th day of April, 1840, the murder charged in the indictment was perpetrated. The priso er having been accused of the crime, arrested, and being in custody, the circuit court, on a special application of the attorney for the state, by an order on its minutes, directed the sheriff of the county of Cook to summon another grand jury to pass on the prisoner's case.
That, on the first day of May following, the grand jury presented the indictment against the prisoner. It further appears from the record, that in pursuance of law, the county commissioners' court of the county of Cook, had issued and directed to the sheriff of the county, two venires for two petit juries, one to serve for the first week of the term, and the other for the second week of the same term; which were returned duly executed; that the court continuing to sit for more than two weeks, had discharged each of the juries, at the expiration of the time limited for their services,...
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