Wilson v. People of State

• Decision Date: 31 January 1880
• Citation: 1880 WL 9949,94 Ill. 299
• Parties: JAMES WILSONv.THE PEOPLE OF THE STATE OF ILLINOIS.
• Court: Illinois Supreme Court

94 Ill. 299

1880 WL 9949 (Ill.)

JAMES WILSON

v.THE PEOPLE OF THE STATE OF ILLINOIS.

Supreme Court of Illinois.

January Term, 1880.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Circuit Court of Hancock county; the Hon. JOSEPH SIBLEY, Judge, presiding.

Mr. HENRY W. DRAPER, and Mr. BRYANT T. SCOFIELD, for the plaintiff in error:

The jurors Gray and Garlinghauser were incompetent, having both formed an opinion from what they had read and heard, and stating that it would require some evidence to remove their several opinions. They were challenged for cause and the challenge overruled, when they were challenged peremptorily. It will not do to say that the defendant was not injured in being compelled to use his peremptory challenges as to them because the bill of exceptions fails to show he exhausted his peremptory challenges. Prudence would require an attorney to be careful not to exhaust his right to such challenges, and to accept jurors he dislikes rather than do so, for fear of getting still more objectionable jurors forced on him. Baxter v. The People, 3 Gilm. 376; Gray et al. v. The People, 26 Ill. 344.

The court erred in admitting in evidence the threats made by Zachariah Wilson, in Colmar on the Saturday evening before the killing took place, as there was no pretence that there was any conspiracy between him and the defendant before the next Monday, when the killing did take place. There being no conspiracy at the time these threats were made, they could not affect the defendant on trial, as he was no party to them and knew nothing of them at the time. After a conspiracy is formed, anything said or done by any one of the conspirators in pursuance of the original concerted plan is evidence against each, but what any one of the conspirators said or did before the conspiracy was formed, or after the object of the conspiracy has been accomplished, is evidence against him alone. 2 Russ. on Crimes, 697; 1 Phil. on Ev. 201, (9th ed.); 3 Arch. Crim. Prac. and Pl. 6th ed. by Waterman, 621-2, and note; 1 Greenlf. Ev. sec. 111.

The declarations of Zachariah Wilson had no tendency to further or promote any common criminal intent so as to become a part of the res gestæ. They were mere hearsay, and not admissible to prove the body of the crime against the prisoner, or to prove the existence of a conspiracy. Clawson v. State, 14 Ohio State, 234-8; Fouts v. State, 7 Id. 471; Roscoe's Crim. Ev. 84 and 617; 1 Starkie's Ev. 406-7; Browning v. State, 30 Miss. 656-666.

The fourth, fifth and twenty-sixth of the people's instructions given had attached to each a brief of authorities. This was highly improper, and we think error, as giving undue weight and prominence to them. Wright v. Prosseau, 73 Ill. 381.

The ninth instruction informed the jury that if they believed the defendant had wilfully and knowingly sworn falsely to any material fact in the case they might disregard his entire testimony, except so far as the same was corroborated by other witnesses whose testimony they believed to be true.

The latter clause of this instruction ignores all the evidence in the case except that of “other witnesses,” such as the acts of the parties, which is generally the strongest kind of evidence, and the jury might well understand from it that it was left to them to determine without restriction whom to believe or disbelieve. Hartford Life Ins. Co. v. Gray et al. 80 Ill. 28-31.

The 13th instruction for the people proceeds upon the assumption that all the parties indicted were acting together in pursuance of a common, unlawful and felonious design against the person of McDonald. This was one of the disputed facts, and the jury should have been left free to say from the evidence if the defendant did so act. Roach et al. v. People, 77 Ill. 29; Adams v. Smith, 58 Ill. 421; Durham v. Goodwin. 54 Ill. 470.

Messrs. MASON & GRIFFITH, for the People:

The jurors had no such fixed opinions as to disqualify them. They were only hypothetical, and not decided. Smith v. Eames, 3 Scam. 81; Gardner v. People, Id. 89; Thompson v. People, 24 Ill. 65; Leach v. People, 53 Ill. 317.

But if the challenges to them were improperly overruled, the defendant was not prejudiced thereby, as he excused the jurors peremptorily, and did not exhaust his peremptory challenges in the selection of the jury. Mingia v. People, 54 Ill. 274.

It is the well settled rule of this court that it will not grant a new trial or reverse a judgment where it appears from the entire record that justice has been done, and that the errors complained of could not have affected the merits of the case. Greenup v. Stoker, 3 Gilm. 202; Winnesheik Ins. Co. v. Schuelter, 60 Ill. 473; St. Louis and Southeastern Railway Co. v. Lux, 63 Ill. 525; Robinson et al. v. Randall, 82 Ill. 523; Roach v. People, 53 Ill. 317.

The question whether or not evidence is admissible and improper can not be raised for the first time in this court. It must be objected to in the court below, and the record must show it, and show that the ruling was excepted to. Snyder v. Laframboise, Bre. 343; McKinney v. People, 2 Gilm. 552; Holmes v. People, 5 Gilm. 480; Clay v. Boyer, 5 Gilm. 508; Miner v. Philips, 42 Ill. 131; Mingia v. People, 54 Ill. 274; Gardner v. Haynie, 42 Ill. 292; Beebe v. People, 73 Ill. 320; Earl v. People, 73 Ill. 329; Humphreyville v. Culver, Page & Hoyne, 73 Ill. 329. The threats of Zachariah Wilson, made in Colmar on the Saturday before the killing of McDonald, were properly admitted as tending to show malice on the part of Zachariah, and characterizing the act of killing by him as murder. The defendant was tried as an accessory to the murder, and hence it became necessary to show what crime the act of the principal actor in the tragedy amounted to. If it was not murder, then the defendant could not have been convicted as accessory thereto. Brennan v. People, 15 Ill. 511; Regina v. Murphy, 8 C. & P. 744; Regina v. Shellard, 9 C. & P. 170; Crowningshield's case, 10 Pick. 497; People v. Mather, 4 Wend. 257; 1 Phil. Ev. 194-197, note 5, p. 197.

The giving or refusing of an instruction stating merely an abstract proposition of law can not be assigned for error. Reynolds v Greenbaum, 80 Ill. 416; Ryan v. Donelly, 71 Ill. 100; Tuttle et al. v. Robinson, 78 Ill. 332.

If the whole series of instructions present the law fully and fairly to the jury, this court will not reverse because some of them may appear insufficient or erroneous when considered independently. Toledo, Wabash and Western Railway Co. v. Ingraham, 77 Ill. 309; Stowell v. Beagle, 79 Ill. 525; Kennedy v. People, 40 Ill. 502; Northern Line Packet Co. v. Binninger, 71 Ill. 511; Latham v. Roach, 72 Ill. 179; Smith v. People, 74 Ill. 146.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

An indictment was returned by the grand jury of Hancock county into the circuit court of that county, at its October term, 1876, against Zachariah Wilson, alias Zack Wilson, Nicholas Wilson, alias Nick Wilson, and James Wilson, for the murder of Thomas McDonald.

James Wilson was put upon his trial alone, upon that indictment, at the March term, 1877, of the Hancock circuit court. The jury returned a verdict of guilty, as charged in the indictment, against him, and fixed his punishment at fourteen years imprisonment in the penitentiary. The court, after overruling motions for a new trial and in arrest of judgment, gave judgment upon the verdict of the jury, and the present writ of error is prosecuted to reverse that judgment.

While empanneling the jury, William Gray was called as a juror in the case, and, being first duly sworn, testified, in response to questions touching his qualifications as a juror: “I have read newspaper accounts of the commission of the crime with which the defendant is charged, and have also conversed with several persons in regard to it since coming to Carthage and during my attendance upon this term of court; do not know whether they are witnesses in the case or not; do not know who the witnesses in the case are. From accounts I have read and from conversations I have had, I have formed an opinion in the case; would have an opinion in the case now, if the facts should turn out as I heard them, and I think it would take some evidence to remove that opinion; would be governed by the evidence in the case, and can give the defendant a fair and impartial trial, according to the law and the evidence.” The defendant, by his counsel, thereupon challenged said Gray, for cause, but the court refused to allow the challenge, and held that he was a competent juror to try the case. To this the defendant excepted, and then challenged Gray peremptorily.

A. A. Garlinghauser was also called as a juror in the case, and, after he was examined touching his qualifications as a juror, the defendant challenged him peremptorily.

The point is made that the court erred in holding these jurors to be competent.

The question of Garlinghauser's competency was not raised in the court below. The bill of exceptions simply shows that, after his examination touching his competency, the defendant challenged him peremptorily. It fails to show that the question of his competency was presented to the court by challenge for cause or otherwise. We think all objection to Gray's competency is clearly removed by the statute, if indeed he would have been incompetent otherwise. It provides in two of the clauses of sec. 14, chap. 78 (Rev. Stat. 1874, p. 633,) as follows: “““ Provided, further, that it shall not be a cause of challenge that a juror has read in the newspapers an account of the commission of the crime with which the prisoner is charged, if such juror shall state, on oath, that he believes that he can render an impartial verdict according to the law and the evidence: And, provided, further, that in the trial of any criminal cause, the fact that a person called as a juror has formed an opinion or impression based upon rumor or upon newspaper statements (about the truth...