Walker v. Martin

• Decision Date: 30 April 1867
• Citation: 1867 WL 5082,43 Ill. 508
• Parties: MARTIN O. WALKER et al.v.HUGH MARTIN.
• Court: Illinois Supreme Court

43 Ill. 508

1867 WL 5082 (Ill.)

MARTIN O. WALKER et al.

v.HUGH MARTIN.

Supreme Court of Illinois.

April Term, 1867.

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

This was an action on the case brought by Hugh Martin against Martin O. Walker and Guy H. Cutting, in the Cook Circuit Court, for malicious prosecution. A change of venue was taken to Will county, where the case was tried before a jury, and resulted in a verdict and judgment in favor of appellee for twenty thousand dollars.

The declaration contains three counts.

The first and second of which allege, that on the 17th day of March, 1866, defendants charged plaintiff with larceny of coal, and caused a justice to issue a warrant for his apprehension, and on the 29th day of March, caused him to be arrested under said warrant--detained seven hours--and held to bail for his appearance at the next term of the Recorder's Court of the city of Chicago, and also committed him to the jail of Cook county, and there kept him for nine days then next following, until, on the 5th day of April, 1866, to procure his release from imprisonment, plaintiff sued out of the Circuit Court of Cook county, a writ of habeas corpus, by virtue of which he was conveyed before said court, on the 7th day of April, 1866, and then and there adjudged and determined not guilty of said supposed offense, and fully acquitted and discharged; and that defendants have not further prosecuted said complaint, but deserted and abandoned the same, and that the said complaint and prosecution is ended and determined.

The third count is general, and, without specifying any manner of discharge, alleges an arrest on the 29th day of March, 1866, for felony, and that at the expiration of nine days, the plaintiff was duly discharged and fully acquitted.

The plaintiff's evidence shows, that a warrant was issued against him on the 17th day of March, 1866; that on the 29th day of the same month he was arrested and brought before the justice. That an examination took place on that day, and he was required to give bail in the sum of three hundred dollars for his appearance in the Recorder's Court, in default of which he was committed to the Cook county jail.

The only proof introduced on the trial, tending to show the prosecution ended, was, that on the 5th day of April, A. D. 1866, the plaintiff sued a writ of habeas corpus out of the Circuit Court of Cook county, and on the 7th day of the same month was discharged from imprisonment by an order of that court in these words, “and it appearing to the court that the said Hugh Martin, relator as aforesaid, is illegally detained under the custody of the said John A. Nelson, sheriff, etc., therefore it is ordered and considered by the court, that the said Hugh Martin, relator as aforesaid, be and he is hereby discharged, out of the custody of said John A. Nelson, sheriff, etc., and that he go hence thereof without day.”

The defendants moved the court to exclude from the evidence in the case, the record of proceedings in the Cook Circuit Court on habeas corpus, on the following grounds:

1. Of variance between such record, and the statements of the declaration.

2. That such record did not show plaintiff to have been discharged in the manner alleged, which motion the court overruled and defendants excepted.

The defendants' counsel then moved to exclude all plaintiff's evidence on the same grounds; and also, on the ground that it did not appear that there had been a legal determination of the charge against plaintiff by the proceedings thereon, or that the same has been wholly ended.

This motion was also overruled, and exception taken.

The defense introduced several witnesses who testified that plaintiff's character for honesty and integrity was bad.

Mr. W. K. MCALLISTER, for the appellant.

Messrs. U. F. LINDER and G. W. BRANT, for the appellee. Mr. JUSTICE BREESE delivered the opinion of the Court:

The first point made on this record is, that the action is prematurely brought, for the reason, that the criminal prosecution which originated it was not legally terminated at the time it was commenced, neither by the action or decision of a competent tribunal, nor by abandonment thereof by the appellants as prosecutors.

It appears, a warrant was issued against Martin on the affidavit of Cutting, one of the appellants, made before a justice of the peace of Cook county, charging him with the larceny of some coal, the property of appellants. Martin was arrested on this warrant and brought before the justice, was examined in relation to the charge, and both of the appellants testified as witnesses. Martin was required to give bail for his appearance at the next term of the Recorder's Court to answer the charge; failing to do this, he was committed to jail, where he remained nine days, during which time, he applied to the Circuit Court of Cook county for a writ of habeas corpus. A hearing was had on this writ on Saturday, the 7th day of April, and Martin was discharged on that day. On the following Monday, the 9th of April, he commenced this action.

Do these facts show that the prosecution was legally ended?

It is very clear, that, by the proceedings before the magistrate, the prosecution was not ended, for he required the accused to appear at the next term of the Recorder's Court to answer the charge, and, as we must suppose, for the law made it the duty of the magistrate so to do, that he bound over the witnesses who had testified before him to appear at that court at the same term; and we must further presume, that the magistrate returned all the papers to that court, as the law requires. That court commenced its term on the second day of April, the law requiring, that the regular terms of that court shall commence on the first Monday of every month, and was in session on the day the accused was discharged. He was required by the magistrate to appear on the first day of the next term, which would have been the 2d day of April, the commitment having been on the 29th day of March; the Circuit Court discharged him on the habeas corpus.

What effect had this discharge on the recognizance to appear before the Recorder's Court? Appellee contends, that it superseded and nullified all the proceedings before the magistrate, and precluded investigation by the grand jury of the Recorder's Court. We cannot know, for the record does not state, why the Circuit Court discharged the accused--for which one of the seven causes specified in the habeas corpus act. Perchance, as suggested by appellants, it was for the reason the process issued by the magistrate was defective in some substantial form required by law. No reason for his discharge is assigned in the order of discharge, nor is there any statement in it, that the merits were investigated, and the innocence of the accused made manifest, or any thing of that nature. But we must presume the court did examine the merits of the case, and became satisfied the criminal charge was not established. The law made it the duty of the court to investigate the charge, and we must presume the court performed its whole duty.

But to say, that the prosecution was legally terminated, by what appears in this record, when the record shows the return of the papers and the bail bond for the appearance of the witnesses before that court, and as nothing is shown of the final action of that court thereon, to insist that the discharge on habeas corpus precluded an investigation by the grand jury, is not the law, nor is it reasonable. A prisoner may be discharged from actual imprisonment by the efficacy of this writ, but it does not wipe out the offense. A hearing on habeas corpus is had, most...