Price v. People

23 N.E. 639, 131 Ill. 223, 1890 Ill. LEXIS 1159

• Court: Illinois Supreme Court
• Decided: January 21, 1890
• Status: Published

Opinions

Mr. Justice Wilkin

delivered the opinion of the Court:

At the last February term of the G-allatin circuit court, John Price, the plaintiff in error, was tried, convicted, and sentenced to be executed, for the crime of murder,—hence this writ of error. Numerous errors are assigned on the record, but a reversal is urged on three grounds only, viz.: First, the circuit court erred in refusing to grant the prayer of the defendant’s petition for a change of venue; second, the circuit court erred in overruling the defendant’s several motions for a continuance; and third, the court improperly modified the seventh, eighth and tenth instructions asked by the defendant.

The facts material to a consideration of the first of these propositions are as follows: The indictment was returned on the 6th of February, 1889, and on that day counsel for defendant gave notice that they would, on the rnorning of the 8th instant, present a petition on behalf of defendant “for a change of venue to a foreign county, ” and accordingly, on the last named day, the sworn petition of defendant, stating that he feared he would not receive a fair and impartial trial in said county of Gallatin, because of the prejudice of the inhabitants thereof against him, setting forth the facts on which he founded his belief, was filed, together with a large number of affidavits by citizens of said county supporting the allegations of said petition. The prosecuting attorney of said Gallatin county thereupon filed a general denial of the “facts alleged in defendant’s petition,” and in support of the same he also filed a large number of affidavits by citizens of said county. On the 12th of the same month the court denied said petition, and the defendant, by his counsel, duly excepted.

The first ground upon which this ruling of the court below is questioned is, that in a case punishable with death, when the defendant has made oath that he fears that he will not receive a fair and impartial trial in the court in which the case is pending, because of the prejudice of the inhabitants of the county in which the court is held, he is entitled to a change of venue as a matter of right, and that no denial of the petition by the prosecuting attorney, and no counter affidavits, are allowable. In support of this position, it is insisted that our present statute on the subject of change of venue in criminal cases, approved March 25,1874, is but a re-enactment of the law of 1845, as modified by the amendment of 1861 on the same subject. ‘

The constitutional right of one charged with a crime, to a trial by an unprejudiced, impartial jury, argued by counsel for plaintiff in error, is not here involved. That right is conceded ; but how and by whom shall it be determined when a prisoner can have that right in the county in which the indictment is pending, is the question. Prior to the amendment of 1861 that question was left to the defendant, alone. By making oath that he feared that he could not have a fair and impartial trial on account of the prejudice of the inhabitants, a change of venue followed as a matter of right. He, alone, was made the judge. The amendment of 1861 qualified that right in all cases not punishable with death, by requiring him to set forth in his petition, not only that he entertained such fears, but also to state the grounds of his belief, arid the facts which induced him to believe that such prejudice existed against him, and by authorizing the State’s attorney to con-' trovert the facts so stated. This amendment, in all cases to which it was applicable, made the court the judge as to whether or not a fair and impartial trial could be had without a change of the venue'.

The present statute (chap. 146) is neither an amendment to nor re-enactment of former statutes. It is complete and independent within itself, and abolishes the distinction between cases punishable with death and all others, which was made by the act of 1861. The language of section 18, chapter 146 is, “where any defendant * * * shall fear that he will not receive a fair trial, * * * the court shall award a change of venue, upon the application of the defendant, as hereinafter provided.” Section 20 provides how that application shall be made. Section 22 is as follows: “When the cause "of the change of venue is the prejudice of the inhabitants of the county against the defendant, his petition shall set forth the facts on which he founds his belief, and the attorney on behalf of the People may deny the facts stated in the petition, and support his denial by counter-affidavits; and the judge may grant or deny the petition; as shall appear to be according to the right of the case.” Taking these sections together, the intention of the legislature to make the question as to when a change of venue shall be granted, one of judicial determination in all cases, is so manifest that nothing is left for construction or argument. As well might it be said that section 22 does not apply to a case of burglary or arson, as that it has no application to cases of murder. Our former-decisions, holding that a change of venue was a matter of right guaranteed a defendant in a criminal case, on proper application, without his stating the reasons or facts upon which his fear was based, will be found to rest on statutes in force prior to 1874, and that so far as that right is held to continue in capital cases after the amendment of 1861, the decisions simply recognize the express exception made therein.

It is next contended, that if said section 22 is held to apply to cases of murder, still the denial of the State’s attorney in this case is not a compliance therewith, for the reason that it is too general and indefinite, failing to specifically deny the facts stated in the petition. We fail to find in the record any objection to the form or substance of that denial, made in the court below; but if it were otherwise, we think the statute was substantially complied with. The denial of the prosecutor is not required to be under oath. It serves no other purpose than to form an issue on the petition, and until it is supported by counter-affidavits, it in ncr way tends to refute the facts sworn to by the prisoner in his petition.

It is finally insisted on this branch of the case, with much earnestness, that on all the facts shown, defendant was justly entitled to a change of venue, and it was error to refuse it. The discretion which the court may exercise, under section 22, in granting or refusing the prayer of the petition, is undoubtedly a sound legal discretion, subject to review in this court; but we are not prepared to say that this record shows such an abuse of that discretion as that the decision of the court below on that- branch of the case should be held error. It is undoubtedly true, that in the city of Shawneetown and its immediate vicinity there was, at the time of the homicide, a high degree of excitement among the people, and a manifestation of strong prejudice against the prisoner; and there is much reason to fear that that feeling had not wholly subsided when the petition for a change- of venue was filed. Nor do we lose sight of the known fact that a violent feeling of prejudice in the public mind may operate so as to deprive a prisoner of a fair and impartial trial, even where an unbiased jury can be obtained; yet, in view of the numerous affidavits filed in support of the prosecutor’s denial, made by citizens from the various localities in the county, we can not say that the trial judge was not justified in holding that the defendant’s fears that he could not have a full, fair and impartial trial- in Gallatin county, were not well founded.

On the overruling of the petition for a change of venue, the prisoner entered his motion for a continuance to the next term. This motion was based on his own affidavit and that of his attorneys, to the effect, that owing to his having been confined in the jail of a foreign county, and refused the privilege of consulting with counsel and friends, and because after he was returned to said Gallatin county the sheriff denied him the privilege of consulting with his said attorneys, (this last fact being sworn to by the defendant only,) and for want of time since the return of the indictment into court, his attorneys being necessarily employed in the performance of other professional duties in said court, he had been wholly unable to properly prepare his defense. The court, over the objection of counsel for the defendant, permitted the sheriff to make a counter-affidavit' denying that he had refused to permit the defendant to consult with his said attorneys. This motion was entered on the 12th day of February, and was passed upon and overruled on the 16th of the same month. The case was then set down, for trial on the 26th, and the court adjourned to that date. On said last named date, the case being called for trial, the defendant again moved for a continuance to the next term, on account of the absence of a material witness on his behalf, named John Suggs. This motion was supported by the affidavit of the defendant, which was held by the •court to he sufficient to entitle him to a continuance. The prosecution thereupon asked time in which to bring said Suggs into court, which was allowed. There seems to have been no objection or exception to this action of the court. On the afternoon of the same day, the attorneys for the People did produce in court said witness, and thereupon both parties announced themselves ready for trial. A jury having been impaneled and sworn, and the State having closed its evidence, the witness Suggs was again found to be absent. Thereupon counsel for the prisoner entered their motion for a continuance on account of such absence, and asked time to prepare and file the affidavit of defendant in support of said motion. The court overruled the motion, to which ruling an exception was duly taken.

There was no reversible error in overruling the first motion for a continuance, because by the postponement of the trial the defendant was allowed further time to prepare his defense, and there is no complaint or showing that such additional time was not ample. In fact, the trial was not entered upon until the 12th of March following. There is no authority of law for the filing of counter-affidavits on a motion for continuance, in this State, and it was error to permit the prosecution to do so in this case; but for the reason stated, no injury resulted to the defendant thereby. A defendant in every criminal case is entitled, under the law, to a reasonable time, and full opportunity to prepare for his trial, and that right should always he guaranteed him. In this case, had the prisoner been compelled to proceed to trial immediately, upon his motion for continuance being denied, he would, under the facts shown by his affidavit and that of his attorneys, had just cause of complaint. But whether his trial was continued generally, or to a future day of the same term, could be a matter of no legal consequence to him, provided such continuance afforded him reasonable time to prepare his defense and secure-the attendance of his witnesses, and, as we have said, no complaint is made that such time was not allowed him. The ruling of the court on the second motion for continuance is not in question here, but the refusal to entertain the third request to continue, and grant time in which to prepare and file the defendant’s affidavit in support thereof, is urged as error.-

In Cotton v. The State, 4 Texas, 260, it was said: “When a party has announced himself ready for trial, it is generally too late to move for a continuance. But when he is surprised by the unauthorized withdrawal of his witnesses after the trial has commenced, the practice is to apply for a continuance or postponement of the trial; and, should the court unadvisedly refuse the application, such refusal may be made the ground for a new trial,”—citing 2 Bailey, 576, 1 id. 25, 4 Day, 471, and 3 Wend. 377. The rule here announced is quoted with approval by Wharton in his work on Criminal Law, (vol. 3, sec. 2930, 6th rev. ed.) We have found no authority to the contrary, and the rule seems to be reasonable and in consonance with justice and humanity.

It is said, however, that the defendant in this case failed to bring himself within its requirements, and can not therefore invoke it; that he did not show that the witness Suggs; was not absent the second time with his consent, nor did he show that he could procure his attendance at the next term. It was clearly the duty of the defense to satisfy the court that the absence of the witness was unauthorized by him; that he was in fact surprised by such absence, and to show all other facts, which would have been necessary on an application for a continuance on account of his absence, before entering upon the trial. Here, however, it must be observed that the request of his counsel for time to prepare and file his affidavit in support of his motion was denied. The trial being in progress, the refusal to grant this request deprived him of the opportunity to do the very thing which it is now said he should have done. All that he or his counsel could do, under these circumstances, was to except to the ruling of the court and urge it as ground for a new trial. The affidavit of the defendant, previously filed, did show the materiality of the evidence of Suggs, diligence to procure his attendance, and that, although a non-resident of the State, he would be able to procure bis attendance at the next term of the court. As before stated, the court, in passing upon that affidavit, had held it sufficient to entitle the defendant to a continuance. It also appears from the record, that the witness was within the reach and so far under the control of the prosecution, that it was able to bring him into court within a short time after that affidavit was passed upon by the court, without process. On his second absence, no offer was made to reproduce him. We are not to be understood as intimating that he was at any time absent by the procurement of the prosecution, but the circumstances alluded to appearing from the record, tend to show that the witness was not absent with the knowledge and consent of the prisoner, and that he was taken by surprise by his absence. The fatal error, however, in the ruling of the court, was in refusing to allow the counsel for defendant a reasonable time to make affidavit in support of their motion,—in effect, refusing to entertain the motion.

The modification of defendant’s seventh, eighth and tenth instructions was proper. They were each intended to instruct the jury as to the rights of the accused under the law of self-defense. The seventh and tenth, as asked, lay down the rule that if a person is threatened in such a manner as to induce in him a reasonable and well grounded belief that he is in danger of losing his life or suffering great bodily harm, he may kill the one so threatening him, whether the danger is real or only apparent. The eighth, as asked, required neither acts nor threats as a foundation for such belief. They were each so modified as to make it necessary that the defendant’s belief of danger should arise from “ demonstrations of the deceased at the time” the mortal blow was struck. Under the evidence they might well have been refused, but as modified and given, they were more favorable to the defendant than he had a right to ask. Without the modification, they would Pave been highly misleading and erroneous. It was shown by the evidence, that two days prior to the homicide, and again on that day, deceased made violent threats against the defendant. These instructions, without the modification, would have justified an acquittal, if the jury believed, from the evidence, that such threats induced in the mind of the defendant a belief that the deceased would carry his threats into execution, although at the time of the killing there was no overt act on his part,— no attempt whatever to do the prisoner bodily harm or take his life. It will not be seriously contended that such is .the law of this State. Our statute expressly provides that “if a person kill another in self-defense, it must appear that the danger was so urgent and pressing that in order to save his own life or prevent his receiving great bodily harm the killing of the other was absolutely necessary.” It is true the danger need not be real, but it must be apparently imminent, urgent and pressing. Gilmore v. The People, 124 Ill. 380; Hughes v. The People, 116 id. 330; Cummins v. Crawford, 88 id. 312; Forbes v. Snyder, 94 id. 374.

For the error indicated, the judgment of the circuit court is reversed, and the cause remanded. judgment reversed.