Davis v. People

19 Ill. 74

• Court: Illinois Supreme Court
• Decided: November 15, 1857
• Status: Published

Opinion

Breese, J.

This judgment must be reversed, because the evidence does not show that the person struck and killed was Seth Taylor, as alleged in the indictment. In no part of the evidence, which is spread upon the record, is he thus indicated. He is referred to by all the witnesses as “ Taylor,” — whether the Seth Taylor named in the indictment, or not, the court may presume, but cannot say with certainty. It is not so proved.

It is essential, in all criminal prosecutions, that the name of the party injured, or, as in this case, killed, should be proved as laid. There is no conflict of authority on this point.

Had the objection been made in the court where the trial was had, a new trial would have been allowed and the error there corrected. It is made for the first time in this court.

The challenges to certain jurors for cause were properly disallowed. It is manifest, from the manner in which Turner was examined, that the counsel were disposed rather to subject him to ridicule than to have the true state of his own convictions brought out.

As to the other juror — Miller—his being over sixty years of age was not a disqualification ; it was but an exemption — and the defendant voluntarily chose him as a juror, knowing the facts.

The instructions given by the court, considered in reference to the proof offered, and taken together, are not objectionable. The officer having charge of the jury, permitting any member of them to drink spirituous liquors, was certainly very culpable, and would have been properly punished by the court, but it is not such conduct as would vitiate a verdict. For the error above noticed, however, the judgment must be reversed and the cause remanded, and a venire de novo awarded.

Judgment reversed.