Kerr v. People

Illinois Supreme Court

Kerr v. People

42 Ill. 307

CourtIllinois Supreme Court

DecidedNovember 15, 1866

StatusPublished

Cited by8 cases

This text of 42 Ill. 307 (Kerr v. People) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kerr v. People, 42 Ill. 307 (Ill. 1866).

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Opinion

Mr. Chief Justice Walker

delivered the opinion of the Court:

This was an indictment against plaintiff in error in the "Washington Circuit Court, for perjury. A trial was had before the court and a jury which resulted in a verdict of guilty. A motion for a new trial and in arrest of judgment was entered, which was overruled by the court, and a judgment rendered on the verdict. Defendant below brings the case to this court on writ of error, and assigns various errors for its reversal. We, however, deem it, in the view we take of the case, unnecessary to consider any but that which questions the sufficiency of the indictment. A motion to .quash was interposed before the trial,, but was overruled, and the question was thus preserved by the motion in arrest.

The indictment omits to aver before whom the affidavit, upon which perjury is assigned, was made. This averment has always been considered as material anti matter of substance. The accused has an undoubted right to be informed before whom it is alleged he took the oath charged to be false. He has the right in his defense to prove that the person administering the oath did not have legal and competent authority for the purpose. In the absence of such authority there could be no perjury, and hence the necessity of an averment as to who administered the oath, and that he had legal and competent authority for the purpose. This was the rule announced in the case of Morrell v. The People, 32 Ill. 499, and no reason has been presented why it should not govern this case. A party accused of crime should be fully advised by the indictment of all the material facts relied upon to establish the offense of which he stands charged. This indictment fails to do so, and was therefore materially defective.

The court below therefore erred in refusing to quash the indictment, or to arrest the judgment; and the judgment of the court below must be reversed and the cause remanded.

Judgment, reversed.

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Mr. Chief Justice Walker

delivered the opinion of the Court:

This was an indictment against plaintiff in error in the "Washington Circuit Court, for perjury. A trial was had before the court and a jury which resulted in a verdict of guilty. A motion for a new trial and in arrest of judgment was entered, which was overruled by the court, and a judgment rendered on the verdict. Defendant below brings the case to this court on writ of error, and assigns various errors for its reversal. We, however, deem it, in the view we take of the case, unnecessary to consider any but that which questions the sufficiency of the indictment. A motion to .quash was interposed before the trial,, but was overruled, and the question was thus preserved by the motion in arrest.

The indictment omits to aver before whom the affidavit, upon which perjury is assigned, was made. This averment has always been considered as material anti matter of substance. The accused has an undoubted right to be informed before whom it is alleged he took the oath charged to be false. He has the right in his defense to prove that the person administering the oath did not have legal and competent authority for the purpose. In the absence of such authority there could be no perjury, and hence the necessity of an averment as to who administered the oath, and that he had legal and competent authority for the purpose. This was the rule announced in the case of Morrell v. The People, 32 Ill. 499, and no reason has been presented why it should not govern this case. A party accused of crime should be fully advised by the indictment of all the material facts relied upon to establish the offense of which he stands charged. This indictment fails to do so, and was therefore materially defective.

The court below therefore erred in refusing to quash the indictment, or to arrest the judgment; and the judgment of the court below must be reversed and the cause remanded.

Judgment, reversed.

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Bluebook (online)

42 Ill. 307, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerr-v-people-ill-1866.

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