Vandermark v. People of State
| Decision Date | 31 January 1868 |
| Citation | 1868 WL 4947,47 Ill. 122 |
| Parties | JOHN VANDERMARK et al.v.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding. The facts are fully stated in the opinion.
Messrs. O'MELVENY & MERRITT, for the plaintiffs in error.
Mr. ROBERT G. INGERSOLL, Attorney General, for the people.
This was an indictment in the Marion Circuit Court, against plaintiffs in error, for an assault with an intent to commit murder. A trial was had before the court and a jury, which resulted in a conviction and sentence of confinement of each in the penitentiary, for the term of one year; to reverse which they prosecute this writ of error, and assign various errors on the record.
There seems to be no doubt, from the evidence, that Linville did shoot the prosecuting witness. But it is insisted, that he shot at another person, and that it was accidental that Bird was hit. But Bird testified that he believed it was intentional, as the accused pointed the pistol at him, and then fired. It is true, other persons were in the same direction, and between Linville and Bird. But it appears that Linville had no concern with the commencement of the affray. It occurred between Vandermark and Hand. Linville immediately drew his pistol, and seems to have shot and struck Bird, who was not even in the crowd. Under these circumstances, the jury were warranted in the conclusion, that he was actuated by malice against Bird. Or, if not, his conduct was so reckless that it implied a total disregard for the lives of others. The act was such as implied general malice. He evidently intended to shoot some one, and when it was without any apparent provocation, it must be referred to malice. As to him, the evidence was sufficient to warrant the finding of the jury.
On the other hand, Bird does not know whether Hand shot or not, and but one witness says he did, and that it was in an opposite direction. From the evidence, we are unable to see that he could have done so without some person having seen it. But, even if he did shoot, he seems to have been assaulted by Vandermark in a most brutal and murderous manner, and, so far as this record discloses, without the slightest provocation. When attacked with a club, which appears to have been a deadly weapon, without notice or even an intimation of his danger, so far as...
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