O'Sullivan v. People

• Citation: 144 Ill. 604,32 N.E. 192
• Parties: O'SULLIVAN v. PEOPLE.
• Decision Date: 31 October 1892
• Court: Illinois Supreme Court

144 Ill. 604

32 N.E. 192

O'SULLIVAN

v.PEOPLE.¹

Supreme Court of Illinois.

Oct. 31, 1892.

Error to criminal court, Cook county; S. P. McCONNELL, Judge.

Indictment of Patrick O'Sullivan for murder. Defendant was convicted, and brought error. Before judgment was given in this court, defendant died. Defendant's administrator moves to have judgment entered in the case nunc pro tunc as of some day before defendant's death. Motion denied, and writ of error abated.

W. S. Forrest, R. M. Wing, and Donahoe & David, for plaintiff in error.

Atty. Gen. Hunt, for the People.

PER CURIAM.

Patrick O'Sullivan and others were convicted in the criminal court of Cook county of the crime of murder, and sentenced to be punished therefor by confinement in the penitentiary. He sued out of this court a writ of error upon the record. Errors were assigned on his behalf upon that record, and there was joinder in error by the attorney general; and the questions thus presented were discussed in printed arguments presented to us at our March term, 1891. But the record being unusually voluminous, and the questions discussed numerous, and requiring for their examination and solution the careful reading of hundreds of printed pages of evidence, and many legal authorities, it was impossible for us to give judgment thereon at that term, and so we then took the case under advisement. It is now made known to us that, on the 5th day of May, 1892, and before we had caused judgment to be entered upon the record or in any manner indicated to the parties or the public what our judgment would be Patrick O'Sullivan died, intestate, leaving personal property which has been administered upon pursuant to law. It has been suggested to us, by one of the attorneys representing O'Sullivan in his lifetime, as amicus curiae, that we now cause judgment to be entered in the case, nunc pro tunc, as of our March term, 1891, or as of some day subsequently, but before the death of O'Sullivan; and the administrator of O'Sullivan's estate, by his attorneys, makes a motion to that effect. We do not question either our power or the propriety of our causing judgments to be entered of record in cases pending before us, after the death of a party to the record subsequent to the submission of the case to us for decision, as of a day before his death, where the delay in causing judgment to be entered has been purely for the convenience of the court or of some of its members, and in certain other cases, where injustice will otherwise result to one or both of the parties to the record, provided the judgment thus to be entered of record can be operative and effective as a judgment from the day as of which it is entered. But no case has been cited to us which holds that a judgment should be entered nunc pro tunc when it can be no more operative and effective than where it is entered of record as of a present date; and, since a court is never required to do a useless act, we do not think that any well-reasoned case so holding can be found. Judgments in civil cases, whether in actions upon contracts or upon torts, are for the recovery or the denial of something either specifically or in the form of damages of some pecuniary value. If the plaintiff recovers, he thereby becomes entitled to have, and the defendant must lose, something which, but for that recovery, he would not have had and the defendant would not have lost. But in criminal cases, under indictments for felonies, the sole purpose of the action is not to give the people anything, but to punish the defendant in his person; and the primary judgment, when the defendant is found guilty, is, simply, the defendant being found guilty, that he be punished, specifying how. It is true that, under our statute, judgment is also rendered for costs; but this is incidental only, and it stands or falls with the primary judgment that the defendantbe punished. The inquiry upon the trial is only whether the defendant be guilty, and, if guilty, the punishment that shall be inflicted upon his person; the question of costs being neither submitted nor considered, and the judgment therefor resulting solely as a legal consequence of the primary judgment. It is therefore apparent that, in judgments in civil cases, property rights are more or less directly affected; and such rights, under statute, are made to descend to and be obligatory upon the representatives, after death, of either or all of the parties to the judgment. But in criminal cases, where judgments are rendered against the defendants under indictment for felony, the people acquire no property rights, and the representatives of the defendant do not take that which is affected by the primary judgment, namely, the person of the defendant. It would therefore seem to inevitably follow that the common-law rule in civil cases, that a writ of error does not abate by the death of the plaintiff in error, after error joined, (2 Tidd. Pr. 1086,) can have no application to criminal cases, since that rule rests upon the right of the defendant in error to have the judgment revived against the personal representatives of the plaintiff in error, and to thus enforce against them the judgment against him whom they represent. The only instance found in the books in which a writ of error can, at common law, be prosecuted by the representatives of a deceased person, upon the record of his conviction in a criminal case, is that of an attainder for treason or felony. The effect of such attainder at common law was forfeiture of all estate, both real and personal, and corruption of blood. 4 Bl. Comm. p. 382. And it was held that a writ of...