Tracy v. People of State

Decision Date26 November 1880
Citation1880 WL 10169,97 Ill. 101
PartiesJAMES M. TRACYv.THE PEOPLE OF THE STATE OF ILLINOIS.
CourtIllinois Supreme Court

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Champaign county; the Hon. C. B. SMITH, Judge, presiding.

Messrs. A. W. and H. W. AYERS, and Messrs. SOMERS & WRIGHT, for the plaintiff in error.

Mr. M. W. MATHEWS, State's Attorney, Mr. E. L. SWEET, and Mr. M. B. THOMPSON, for the People.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

The grand jury of Champaign county, at the September term, 1879, of the Champaign circuit court, indicted James M. Tracy, plaintiff in error, for the murder of Alva H. Whitcomb. The cause was tried at the same term of court, resulting in a verdict of guilty of manslaughter, and fixing his punishment by confinement in the penitentiary for a period of twenty-five years. Motions for a new trial and in arrest of judgment were severally overruled and final judgment rendered by the court upon the verdict, to reverse which this writ of error is prosecuted.

By the first assignment of error it is claimed that the court upon the trial excluded proper testimony on behalf of the accused, and admitted improper testimony on behalf of the People. Under this general assignment plaintiff in error complains that the right of cross-examination as against the accused was unwarrantably restricted, while the greatest latitude was accorded to the People. Upon a careful examination of the rulings of the court upon which this complaint is based, we are satisfied that it is not altogether groundless. The liberty and life of the accused were involved in the issue, and in applying the rules governing the production of testimony all matters of doubt should have been solved in his favor. Whatever would have thrown any light on the subject of inquiry tending to exculpate the accused was of vital importance to him, and he should not have been embarrassed in his efforts to present it to the jury by drawing the lines too tightly upon the right of cross-examination.

Of all the tests which the law has provided for the ascertainment of truth, the right of cross-examination is justly deemed the most powerful and efficacious. Courts therefore, while guarding against any abuse of this right, watch with zealous care any attempt to invade or restrict it.

We do not propose to go to any great length into the details of the complaint under this assignment of error, but will merely call attention to one or two of the rulings of the learned judge who presided at the trial, as an illustration of a number of instances of the same character, in which we are of opinion that the right of cross-examination was improperly restricted.

B. F. Michael, a witness on behalf of the People, testified that just before the difficulty he saw the deceased go up the stairway and into the office of the accused, and knew from the motion of his lips he was engaged in conversation with him, and that immediately before his going up to the office the accused had hailed him from the open window of the office by the title of ““Sooner,” which the evidence tends to show was used and understood in an offensive sense. This witness further testified that he knew there had been before that time some difficulty “about their matters.” Now, inasmuch as it was evidently the purpose of the prosecution by this evidence to show that the deceased entered the office on account of the term “Sooner” having been applied to him from the window, it was highly proper to show, if such was the fact, that the witness knew that the deceased was in the habit of going into the office when no such reason for doing so existed, and the accused had an unquestionable right to call out this fact on cross-examination.

Such evidence would to some extent have negatived the hypothesis that the deceased went into the office on account of the supposed insult, and would also have strongly negatived the testimony of the witness to the effect that there was an existing difficulty between the parties “about their matters.” With the view, doubtless, of calling out what the witness might know upon this subject, he was asked by counsel for the accused on cross-examination this preliminary question: “Tell the jury whether you had noticed Whitcomb about the office some days before that?” The court, for some unaccountable reason, upon objection by the People, would not permit the witness to answer it, and this was error.

Again, on the cross-examination of E. T. Whitcomb, a brother of the deceased, who had been introduced by the People for the purpose of identifying the written statement which was subsequently admitted in evidence, and also for the purpose of showing the circumstances under which it was made, was asked if, during a conversation of which he had spoken in his examination in chief as having occurred immediately before the written statement was made, or if during any conversation had with the deceased after that conversation, the deceased used profane language.

On objection by the People's counsel the court refused to allow the witness to answer this question. So far as this inquiry related to the conversation of which the witness spoke in his examination in chief, there is not the slightest doubt of its propriety. Nothing is better settled in the whole domain of the law, than if a witness testifies to a part of a conversation, the party against whom it is offered is entitled to have all that was said on the same subject in that conversation. And it was especially important to the accused in this case, if the deceased had used language of the character sought to be elicited by the question, that it should be called out and considered by the court. The vital inquiry before the court was as to the real condition of the mind of the deceased when making the statement then under consideration. Before it was admissible in evidence it was necessary to show, from the evidence then being adduced, that the deceased was at the time sufficiently rational to make the statement in question, and that it was made under a sense of impending dissolution. Assuming that the deceased was a believer in a future state of rewards and punishments, and such is the presumption where nothing appears to the contrary, the use of profane language immediately preceding the statement is hardly to be reconciled with the assumption that he was at the time of sound mind and impressed with a sense of almost immediate death. To say the least of it, it was a fact which, if proved, would have tended strongly to negative that hypothesis, and should therefore have been received and considered by the court in connection with the other facts and circumstances bearing upon the question. It is hard to realize how any sane man who believes in his accountability to God can be indulging in profanity when at the same time he really believes that in a few short hours at most he will be called upon to appear before Him to answer for the deeds done in the body.

But outside of this, the fact sought to be shown was important in another point of view. It strikes at the very foundation of the reasons upon which dying declarations are admitted at all. There are certain guaranties of the truth of dying declarations, growing out of the solemnity of the time and circumstances under which they are made, which, in contemplation of law, are supposed to compensate for the fact they are not sanctioned by an oath, and the party against whom they are used has had no opportunity to cross-examine. But when it is affirmatively shown that the declarant in making the statement was not actuated by the motives and influences which the law contemplates, or where, upon the whole of the evidence, there is a reasonable doubt of this fact, the statement should be excluded; for in such case it would be without those guaranties for its truth which the law contemplates. This subject was fully considered in Starkey v. The People, 17 Ill. 17. We there said: “The principle upon which such declarations are admitted is, that they are made in a condition so solemn and awful as to exclude...

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