Smith v. People

36 Ill. 290

• Court: Illinois Supreme Court
• Decided: January 15, 1865
• Status: Published

Opinion

Mr. Justice Breese

delivered the opinion of the Court:

This record shows that an indictment for a riot was found by the grand jury of Coles county, at the October term, 1861, of the Circuit Court of that county, against seven . persons named therein. Five of the defendants obtained a change of venue to Edgar county. The indictment, certified to the Edgar Circuit Court, from the Coles Circuit Court, was against six persons only, the name of one of the seven being omitted.

On this indictment, the defendants, who had obtained a change of venue, went to trial in Edgar county, and were convicted. A motion for a new trial was entered and overruled, whereupon, a motion in arrest of judgment was made, which was also overruled, and a fine imposed on each of the defendants.

The case is brought here by writ of error, and these rulings of the court assigned as error.

Upon the first point, as the evidence is not preserved, we cannot say a new trial should have been granted, or that any injustice has been done by the verdict.

Qn the other point, it appears the defendants were tried on an indictment which had not been found by the grand jury. The one found, and presented by the grand jury to the Coles Circuit Court, was against seven persons ; the one on which the defendants were tried, was against six of those persons, and if for the same offense, a recovery or judgment in the one case could not be pleaded in bar of a judgment in the other.

For this reason the judgment must be reversed, and the cause remanded. It was the duty of the State’s attorney, on perceiving the defect in the indictment certified to the Edgar Circuit Court, to have alleged a diminution of the record, and thus have obtained a full and correct copy from Coles county.

The judgment must be reversed and the cause remanded.

Judgment reversed.