McKinney v. People (7 Ill. 540, 1845)

The Opinion of the Court was delivered by

Lockwood, J.

At the October term of the Rock Island Circuit Court, in the year 1843, William McKinney was jointly indicted with George Blaylock and Isaac McKinney, for the murder of Edmund A. Philleo, and the indictment was indorsed “a true bill,” and signed by the foreman, which as far as the record shows, was the only indorsement thereon. A motion was made to quash the indictment, but it does not appear that any reasons were filed, or that any disposition was made of the motion. The defendants were arraigned, and furnished with a copy of the indictment, and a list of the jurors and witnesses, and pleaded “not guilty,” and at the same term a jury was impannelled, but could not agree on a verdict; and they were discharged by the consent of the prisoners and the attorney for the People. The cause was then continued to the May term 1844, when another trial was had, but the jury could not agree, and they were again discharged by like consent. The cause was then continued to a special term of said Court, appointed to be held on the second Monday of July, 1844. At this term no jury could be obtained, and the cause was again continued to a second special term, ordered to be held on the fifth Monday of September, 1844. At the September special term aforesaid, the prisoners filed their affidavit for a continuance to the May term, 1845, and the Court granted the same, and. ordered the cause to be continued to that term.

At the May term. 1845, a jury was impannelled for the trial of William McKinney alone, and after hearing a portion of the evidence, the Court, took a recess until the next morning, when the prisoner being again brought into .Court, the remainder of the evidence and arguments, of counsel were heard, and the cause submitted to the jury, who retired to consider their verdict, and afterwards returned into Court with a verdict of “guilty” against the prisoner, William McKinney. The prisoner then entered a motion in arrest of judgment, and for a new trial, which motions were overruled, and sentence of death pronounced on the prisoner.

The following bill of exceptions appears in the record, to wit: “Be it remembered, that on the trial of this cause, and after the jury had returned into Court with their verdict, the defendant moved the Court in arrest of judgment and for a new trial, upon the following grounds, to wit: 1st.' It appears by the record in this cause, that a special term was appointed for the trial of this cause, which said special term was holden on the--Monday of-, 1844; that this cause was continued from the said special term to this present term of said Court, a-regular term of said Court having intervened between said special term and this present term, to wit, on the first Monday of October, 1844, at which said regular term no order or continuance was entered in this cause. 2d, That the indictment is defective and insufficient. And for a new trial, the defendant shows tfie following ■grounds: 1st. That it appears from the affidavit herein filed, that the oaths administered to the jurors and witnesses were not administered in conformity with the laws of this State. 2d. That the verdict is contrary to law and evidence. And also filed the affidavit of Joseph Conway, which is in these words: -‘The People of the State of Illinois against William McKinney, impleaded with George Blaylock and Isaac McKinney. May term of the Rock Island Circuit Court, "A. D. 1845. Joseph Conway, being duly sworn, deposes and says, that on the trial of the above entitled cause, he was and acted as clerk of said Court; and that he swore a majority of all the jurors and witnesses sworn on the trial; that none of said jurors or witnesses were sworn by this deponent, by laying the hand on and kissing the Gospels, and that the Gospels were not presented to any one of said jurors or witnesses by this deponent; nor did any of them declare that they had conscientious scruples about that mode of administering oaths, but that most of said witnesses and of said jurors were sworn by the uplifted hand without their request, or making objection to swearing on the Gospel. Joseph Conway. Sworn and subscribed before me, this 30th May, 1845, Thomas C. Browne, Judge,’ &c. And after argument and mature deliberation had, the Court overruled both said motions, and rendered judgment against defendant; whereupon the defendant by his counsel, excepts and prays this, his bill of exceptions, may be signed, sealed and made a part of the record in this cause, which is done.

Thomas C. Browne. [Seal.]”

The following errors have been assigned, to wit:

1. That it does not appear from the record in this cause, that the name of the witness or witnesses, upon whose evidence the indictment was found, were indorsed thereon.

2. That it does not appear from the record, that the defendant previous to his arraignment, was furnished with a copy of the indictment and a list of the jurors and witnesses.

3. That the cause was continued from the September special term, over the regular October term, without any order being entered thereon at said intervening term.

4. The Court erred in appointing said September special term.

5. That after the trial of the cause had been commenced and a portion of the evidence had been heard, the Court took a recess until the next morning, without making any order in relation to the jury.

6. That it does not appear from the record that when the jury retired to consider of their verdict, they were placed in charge- of a sworn officer, according to the provisions of° the statute in such case made and provided.

7. That the oaths administered to the jurors and witnesses in this cause, were not administered according to law.

8. The Court erred in overruling thedefendant’s motion in arrest of judgment and for a new trial.

9. The Court erred in rendering a judgment against the defendant.

On the argument of this cause, numerous authorities both English and American were cited to sustain the assignment of errors.

Before entering, however, upon the discussion of the various errors relied on to reverse the judgment rendered against the prisoner, it may not be amiss to take a cursory review of the laws of England, and of.this State, in relation to their respective criminal codes. The extreme technicality of the English Courts, in the administration of their criminal laws, would, to the superficial observer, have the appearance that their Courts were governed more by a desire that criminals should escape the punishment due to their crimes, than that public justice should be promoted and the guilty be brought to merited punishment.

Before coming to such a conclusion, a brief notice of the English criminal code will place the English Courts in an attitude to deserve approbation rather than censure. The English criminal laws may truly be characterised as written in blood. When Blackstone wrote his Commentaries, there were one hundred and sixty different kinds of felonies, for the commission of which the offenders expiated their crimes on the gallows. Stealing the value of one shilling was a capital offence. When the individual, accused of a capital crime, was arrested, he was, after examination and conviction by a justice of the peace, immured in a dungeon, and there remained, cut off from free intercourse with his friends, till brought into Court for arraignment and trial. On his trial for any of the numerous offences denominated felony, he was not allowed the aid of counsel in his defence. He was not even allowed witnesses to prove his innocence. And when in process of time, the Courts permitted the witnesses to be heard on the part of the accused, yet they were not sworn, and the consequence was that their evidence was not considered by the jury as entitled to as much credence as the witnesses on the part of the Government. The prisoner had no right to object to the inhabitants of the county where the crime was committed, however much they might be prejudiced against him, nor could he make any objection to the Judge.

In some cases, if the prisoner refused to plead, his obstinacy was construed into a confession of guilt, and he was condemned and executed, &c. In other cases, although no sentence of guilt was pronounced against him, yet, he was condemned to the horrible death of peine forte ei dure.

Because the prisoner was not allowed counsel in his defence, the Courts early adopted the maxim, that the Judge was counsel for the prisoner. Humane judges finding themselves thus called on to administer laws so reckless of human life, and that made so little provision for a fair trial, naturally caught- at trifles to save the life of the prisoner. In favorem vitse was the cause assigned for many technical rules that but for the extreme inhumanity of their laws, and the helpless condition of the prisoner would be a disgrace to an enlightened administration of justice. It is but just to add that England has within the last few years greatly ameliorated her criminal code. How stands the case in this State? By our Constitution the accused is entitled to be heard by himself and his counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his favor. He is also entitled to a speedy public trial by an impartial jury of the vicinage, and cannot be compelled to give evidence against himself. By our statute he may procure a change of venue, if he fears that the inhabitants of the county, where the offence is alleged to have been committed, are prejudiced against him; and he may also object to the Judge for the same reason.

By our criminal code, the accused is not permitted to plead guilty untikthe Judge has fully explained to him the consequences of such a plea, and when the prisoner refuses to plead, the law mercifully directs that a plea of “not guilty” shall-- be entered, and he can only be convicted by proving his guilt, in the same manner as if he had pleaded “not guilty.” If the prisoner is either unable or unwilling to employ counsel, the Court invariably assign him counsel.

From this hasty comparison between the systems of criminal jurisprudence that prevail in England and in this State, it is sufficiently apparent, that persons charged with heinous crimes in the Courts of this State, occupy a very different situation from the 'prisoner in an English Court. Here, the accused, so far as the means of defending himself are. concerned, is placed on a perfect equality with the prosecution; and there consequently can be no" reason for adopting many of the technical rules that have prevailed in England, arising out of the sanguinary character of their laws and the helpless condition of the prisoner. It is a well settled maxim of the Common Law, that where the reason of a law ceases to exist, that the law itself ceases with the reason. Courts in the United States, without giving sufficient attention to this excellent maxim of the Common Law, have in too many instances, as I conceive, blindly adopted many of the technical rules of the English Courts, without considering the reasons for their adoption, and how inapplicable they are in administering laws framed in a spirit of humanity, and furnishing every aid to the prisoner to secure a fair and impartial trial. The criminal code of this State is not, only framed in a very different spirit from that of England, but throughout its various provisions, it graduates punishment to the nature, aggravation, and turpitude of the offence.' There áre but two crimes that are made capital by our law. These are treason and wilful murder. The life of the accused is never taken, unless it clearly appears that he has wilfully and maliciously deprived a human being of life, or has been guilty of a crime, that in its consequence tends, not only to the destruction of the Government, but to cause blood to flow in torrents.

A system of criminal law thus framed ought to be administered in such a manner as to be a shield to protect the innocent, and a sword to punish the guilty. These objects should be the polar star of the Judge. Our Legislature in the criminal code have set the example of dispensing with many of the technicalities that have prevailed in the English Courts, and this Court, for several years, has followed the example.

Keeping in view these principles, I will now proceed to inquire, whether the prisoner has had a fair trial, according to the well established principles of the common law regulating criminal trials generally, but divested of such technicalities as evidently had their origin in the sanguinary nature of the English laws, and the unprotected condition of the prisoner.

Under the first assignment of error, it becomes important to inquire wh at the record shall contain, in order to show sufficient matter to support the judgment of the Court below. Records from the Circuit Court frequently contain statements that are clearly irrelevant, and which do not necessarily constitute any part of a record correctly made out. In a criminal case, after the caption stating the time and place of holding the Court, the record should consist of the indictment properly indorsed, as found by the grand jury; the arraignment of the accused, his plea, the impannelling of the traverse jury, their verdict, and the judgment of the Court. This, in general, is all that the record need state. If, during the progress of the prosecution, motions are made and overruled, the facts can be preserved by a special entry on the record, or by bills of exceptions. In one or the other of these ways, it is necessary to preserve every fact that the prisoner may deem essential to his rights, and a fair and regular trial.

From this exposition of what should compose the record in a criminal case, the names of the witnesses indorsed on the back of the indictment would not appear in the record. This Court decided in the case of Gardner v. The People, 3 Scam. 85, that