text:
      (Criminal Court of Cook County.)
    People of the State of Illinois vs. Archer Carroll.
    (1884.)
    1. Sentence — Suspension oe. There is no power in the court either under the statute or at common law to suspend the sentence of a prisoner found guilty hy a jury.
    2. Same — Common Law Rule — Reprieves. At common law the judges were empowered in capital cases to grant temporary reprieves but this power was only exercised in extreme cases.
    3. Same — Review of Action of Circuit Judge in Suspending Sentence by Another Circuit Judge. Where the trial judge suspends the sentence of a prisoner found guilty, this action is not subject to review hy another circuit judge and the latter has no power to again sentence the prisoner.
    Indictment for felony. Larceny. The facts are stated in the opinion.
   Tuley, J.:—

The defendant Carroll was indicted for larceny in the year 1884. He was tried by a jury, found guilty and his term of imprisonment fixed at three years in the penitentiary. Sept. 30th, 1884, the then presiding judge of this court suspended the sentence and the prisoner was ordered discharged.

Motion is now made that the court now sentence the defendant to the penitentiary for the term of three years for the felony referred to. It is known that I differ with all, or nearly all of the judges who hold this court as to the power of a judge to suspend sentence upon a criminal who has been tried by a jury, found guilty and had his term of imprisonment fixed by the verdict. In what I say I do not intend to criticise my brother judges. They are as conscientious as myself and their opinions entitled to as much credit.

See. 6 of division 14 of the criminal code requires that the jury shall in all cases “say in their verdict for what time the offender shall be confined” in the penitentiary and “the court in pronouncing sentence shall designate what portion of time the offender shall be confined to solitary imprisonment and what portion to hard labor.”

I find no warrant in the statutes of this state for the exercise of the power to suspend the punishment fixed by the jury; no justification for a judge’s failure to perform the duty enjoined upon him by the law. It is said, however, that the power exists by virtue of the common law. This I most emphatically deny. No case can be found where an English judge has ever suspended sentence for an indefinite period of time. Under a system of practice where the judge had no power to even grant a new trial in a case of felony, it would be strange indeed that the judges should undertake to say when the law should and when it should not be enforced. There was at common law what was known as the law of respite or reprieve, but even that appears to have been limited to capital cases. 1 Bishop, Grim. Law, sec. 1299. The same author says “the two terms are synonymous. Either signifies the suspension for a time of the execution of a sentence which has been pronounced.”

“Every court which,” says Hawkins, “has power to award execution may grant it of its own sentences.” This latter sentence has been seized upon by some courts as holding that the court may suspend the execution of any sentence. It clearly has reference only to granting a respite or reprieve for a definite time in capital cases, as in no other was an “execution” of a sentence ever awarded. In all other cases the judges made only a memorandum upon the calendar or list of criminal cases as to the result, and the sheriff without any writ carried the sentence into execution.

These reprieves were granted only in extreme cases ex necessitate, not depending upon the whim or caprice of the judge. An examination of the cases and of authors on criminal law will show they were granted where a woman condemned to death was found to be enceinte, where insanity had supervened and where there were extenuating circumstances in order to enable the prisoner to apply for a pardon.

“The judge should recommend the prisoner to a pardon •and not suspend sentence in ease he thinks no punishment should be inflicted.” 1 Bishop, Grim. Law, sec. 675.

The law which allowed benefit of clergy and permitted approvers and accomplices to go unpunished has no bearing upon the point in question.

The reason why the judge has no such power is very clear to my mind. Says Archbold, p. 578: “A judgment though pronounced or awarded by the judges is not their determination and sentence, but the sentence and determination of the law which depends not upon the arbitrary opinion of the judge, but the settled and invariable principles of justice,” and cites the form of the judgment which is not that “it is ordered” by the court, but that “it is considered, considera~ tum est per curiam which implies that the judgment is none -of their own but the act of the law pronounced and declared by the court upon determination and inquiry.”

In other words, the judge is not the law, but 'he is merely the instrument selected to pronounce the law of sentence and determination. Given the arbitrary power to say when the law shall and when it shall not be enforced, he has practically not only the judicial but the legislative and executive power -combined in one person. It is judicial usurpation not only -of the power of pardon, but also the power to say what shall be the law.

But it is claimed that the practice has prevailed in the United States, and I have been cited to a written opinion of the learned judge who suspended sentence in this case in which reference is made to the following American cases: Commonwealth v. Dowdican’s Bail, 115 Mass. 133, 136; State v. Addy, 43 N. J. L. (14 Vroom.) 113; Weaver v. People, 33 Mich. 296; People v. Morrisette, 20 How. Pr. 118.

The Massachusetts decision was upon the question whether placing an indictment on file entitled the prisoner to a discharge. The point was not involved in the New Jersey case, nor was it directly in issue in the Michigan case. In People v. Morrisette, 20 Howard Pr. 118, the judge expressly held that no court in that'state had the pardoning power. 11 That power is reserved exclusively to the governor.”

I can see no good reason or cause for exercising any such, power. If the verdict of the jury is not warranted by the evidence, the judge can grant a new trial. If the indictment is bad, the judgment can be arrested. As a matter of policy the practice should not be followed. A case which would appear to call for a suspension of the sentence would justify the granting of a new trial and the entering of a nolle prosequi.

The only opinion which recognizes the power as existing is the Michigan case, although, as before stated, that was not the question before the court. The Michigan case was in substance this: .The judge suspended sentence until the next term of court and released the prisoner on a nominal recognizance. .The second term thereafter another judge témporarily holding the court, sentenced the prisoner. The supreme court, on error, held: “The failure to sentence at the next term was practically the abandonment of the prosecution, and that the' act of the last judge was not the supplying of the trial judge’s omissions, but was practically overruling his decision.”

That decision is in point here. One circuit judge has no power to overrule the decision of another circuit judge in the same case. Only a court of review can do so. The decision of the judge who tried this ease, that this prisoner should be discharged and that the sentence of the law should not be pronounced against him, must stand until reversed by a higher court, however erroneous I may judge it to be. Even if the power to suspend sentence is admitted, the reasons for the suspension do not appear of record. I have no doubt the ex-judge acted conscientiously. I know of no writ authorized by law by which this defendant being once thus discharged can be seized and brought before this court. Being illegally in custody and finding no power or authority to set aside or overrule the judge, who suspended the sentence, the defendant must be discharged.

I admit this matter of suspending sentence has of late years come into practice, in this and other states. Even justices of the peace exercise the power to suspend the law. It is in my opinion a dangerous practice.

If the judge who tried Ford and Murphy, lately executed at New .Orleans, had arbitrarily suspended judgment and discharged the murderers, the public would have been aroused to the danger of having such power exercised by judges. If the power exists in one case, it exists in all. A Ford or a Murphy may yet have a'sentence suspended.


source: Caselaw Access Project

author: McAllister, J.:—

license: Public Domain

text:
      (Recorder's Court of Chicago.)
    The People vs. Edward Rummel.
    (February 15, 1870.)
    1. Contempt — Failure to Obey Subpoena Duces Tecum — Materiality oe Evidence. In an application for attachment for failure to-comply with an order to produce papers it is proper for the court to look into the nature of the evidence proposed, to see whether or not if produced they would be admissible in evidence; this can be usually determined on a rule to show cause.
    2. Subpoena Duces Tecum-t-When Insufficient. “Papers which were presented to the governor” is too indefinite a phrase upon which to base an action for refusing to obey a subpoena duces tecum.

    3. Criminal Libel — Privileged Communication — Petition fob Repbieve. A petition to the governor for a reprieve is a proceeding “in the regular course of justice” and as such is privileged if the matter contained therein is pertinent, and the governor cannot be compelled to produce the petition in order that an indictment for libel may be based thereon. Such a communication. is also privileged because it is a confidential communication sent to the governor of a state in the course of a duty he is called upon to perform as an officer, and is inadmissible to form the basis of an indictment unless there is a showing that there was libelous matter maliciously inserted and not pertinent to the petition.
    Motion to attach the secretary of state for contempt.
   McAllister, J.:—

This is an application made by the state’s attorney for an attachment against Edward Hummel, secretary of state, for non-compliance with a subpoena duces tecum. The chief and pertinent facts are simply these: that a few days ago a complaint was made before the grand jury of this court, against divers citizens of Chicago for an alleged libel consisting of matter contained in a petition signed by these parties and presented to the governor, asking for the commutation of the sentence of Daniel Walsh, who was under sentence of death; that there was contained in that petition a statement that the person whom Daniel Walsh murdered was his wife, and that she had been unfaithful to her marital relations, and in a fit of frenzy, arising from that condition of affairs, he took her life. The subpoena was issued upon the 11th day of January, 1870, was served on the secretary on the 12th day of February, and he declined to appear and produce the document mentioned in the subpoena.

It is not material in this application, as I view the subject, whether he put his refusal upon the proper ground or not. He declined to produce the paper himself, or to send it by a messenger.

The first question which occurred to my mind was, whether in this application for an attachment it was proper for the court jto look into the nature and character of the evidence proposed, and to determine whether, if the paper was produced, it would be admissible in evidence, it being very clear to my mind that if the paper itself would not be admissible in evidence for any good reason, it would be arbitrary and oppressive to issue an attachment to compel the secretary or governor of the state to come from Springfield here for the purpose of performing a useless act.

The proper practice generally would he, in such a case, to obtain an order to show cause why an attachment should not issue, and then all the fa.cts proper to be considered could be presented; but as the character of the paper, and uses which were made thereof, appear upon the face of the subpoena itself, it is quite as well to decide it on what appears there, as to make the order to show cause, and require the secretary of state to come here and make the same appearance. The order is, “We command you to summon Edward Hummel to bring with him the petition and papers which were presented to the governor of the state of Illinois for the commutation of the sentence of Daniel Walsh.”

It is also a general rule that a subpoena duces tecum should definitely define the papers which the party or witness is commanded to produce. So. far as it relates- to the petition itself, it may be sufficiently defined, bfit the expression, “and papers which were presented,” is too indefinite to base any actitin on whatever.

Now, as to the first point, whether the court has a right to examine into the nature of the evidence proposed, to determine whether it would be admissible on an application for an attachment, I have a case directly in point, the case of Rex v. Samuel Dixon, 3 Burrows, 1687.

“A subpoena out of the Crown Office had been served upon Mr. Samuel Dixon, an attorney, with a duces tecum of certain papers hereafter mentioned, to give evidence before the grand jury of the county of Northampton, at the last assizes there, and to produce three vouchers which had been produced and insisted upon by one Mr. Peach, Mr. Dixon’s client, before a Master in Chancery; and this subpoena, with the duces tecum, was in order to found a prosecution 'by way of indictment against Peach (who had produced these vouchers before the Master), for forgery. Mr. Dixon did not appear before the grand jury, in obedience to this subpoena, whereupon, on Monday, the 6th inst., Mr. Wallace moved, on behalf; of the prosecutor, for an attachment against him for refusing to appear, and had a rale to show cause. Mr. Caldecott now shewed cause. He insisted that Mr. Dixon could give no other evidence but of what had been communicated to him by his client in confidence, and therefore he was not compellable to produce these papers against his client, in order' to prove him guilty of a forgery. Lord Mansfield was; clearly of this opinion, and that Mr. Dixon, instead of producing them against his client, ought to have, immediately upon receiving the subpcena, delivered them up to his client-Mr. Justice Wilmot concurred that he ought not to have produced them against his client. Mr. Justice Yates was of the same opinion, and thought the rule ought to be discharged with costs. Rule discharged with costs.”

This case is quoted by Lord Ellenboro, with approbation, in the case of Haley v. Long (9 East.), and has never been attacked or shaken as an authority bn that question. The principle of it is, that, upon an application for an attachment against a witness for not obeying a subpoena duces tecum, it is proper for the court to look at the nature and character of the document proposed to be introduced as evidence, and determine whether or not it is admissible.

The next point to be determined on this application is whether the petition signed by the parties against whom the complaint is made, and caused to be presented by them or other persons to the governor, upon an application made to him to commute the sentence, is one that can be extorted from the possession of the governor or secretary of state, and introduced in evidence as the foundation of an indictment for libel. If this document, under the circumstances, is what would be called a privileged proceeding and communcation, then it is not admissible in evidence.

There is a variety of eases upon this subject, under the various heads of applications made to the grand jury, applications made to government officers, to commissioners— from all of which the rule may be deduced that, when the proceeding is one authorized by law, it is privileged, and whatever is said in any paper connected with that proceeding, which is pertinent to the proceeding itself, is privileged, and cannot be the basis for an action or indictment for libel. The rule is as properly stated as in any case in the case of Gilbert v. The People, 1 Denio, 43. The court there says:

“Whatever may be said or written by a party to a judicial proceeding, or by his attorney, solicitor, or counsel therein, if pertinent and material to the matter in controversy, is privileged, and, consequently, lays no foundation for a private action or a public prosecution. The general language of elementary writers is, that whatever occurs in the regular course of justice is privileged, and by which they intend to indicate the principle I have stated.”

Now, this is not, directly, a judicial, proceeding; but it is a proceeding in the “regular course of justice.”

The constitution of the state of Illinois contains this section (Constitution 1848, article IY, sec. 8):

“The governor shall have power to grant reprieves, commutations, and pardons, after conviction, for all offenses except treason and cases of impeachment, on such conditions .■and with such restrictions and limitations as he may think •proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons.”

There is no manner provided by law relative to the manner ,-of applying to the governor. The common mode in all the ¡states of this union, unless provision is made by law, is to rmake application by petition, and, of the petition made to rthe governor to exercise the power thus given to him by the -constitution, it may be said that it may be regaided as a regular proceeding in the absence of any provision of law for another and different proceeding, and it follows, as a matter of course, that anything stated; in the petition for that purpose, that would be pertinent to the application itself, would be privileged under the rules now established by the courts of the country. The leading case in the state of New York is the case ofj Thorn v. Blanchard, 5 Johns. 508. That was where divers inhabitants of a county presented a petition to the council of appointment, stating that B., district attorney, was actuated by improper motives in his official conduct and praying that he might be removed from office, which petition was read by the council, who removed B. from office. It was held that an action would not lie against A. at the suit of B., though the words be false and actionable in themselves. All the authorities, so far as they relate to civil actions, are reviewed in this case.

It might be said that there could be no protection given td those who circulated the petition. It will be apparent to any one that if the power is given to present a petition properly drawn, it being a necessary incident to the right that it should be circulated for the purpose of being signed, that it would come within the privilege precisely as much as presenting the petition to the governor. I refer to the case of Vanderzee v. McGregor, 12 Wendell, 545. This was:

A memorial presented to a board of excise, remonstrating against the granting of a license to a particular individual to keep a tavern, charging him with stirring up justices’' suits, with a view of having the causes tried at his tavern, and the court decided that “no action lies as for the publication of a libel unless express malice be proved.” The court say, “Perhaps the presenting the petition to different individuals for their signature might be considered a publication of the libel,' and not covered by the privilege; but I -am inclined to think that if the nature of the communication is such as to be privileged, when presented, to the tribunal for which it was originally designed that it cannot be a libelous publication of it to present it to others for their signature. The nature of the transaction requires that the memorial should be circulated to obtain signatures; and, unless express malice is shown, the conclusion of law, within the principle above adverted to is, that it was circulated with a bona fide intent of obtaining signatures, and not to propagate slanderous charges against the party. ’ ’

If it be maintained that this is not a privileged communication, then it follows, as a matter of course, that the right of petitioning the governor to pardon, or commute, under certain circumstances, is entirely taken away. The indictment, if one were found in this case, would be for a writing whose tendency was to “blacken the memory of the dead,” and the statute which defines libel in that manner also provides that the truth may be given in justification in all cases, except where the indictment is for a libel tending to “blacken the memory of the dead or to expose the natural defects of the living.” So that under an indictment for this class of libel, it would not be advisable to give the truth in evidence.

Let us use an illustration for the purpose of testing the position as taken by those who claim that this is not a privileged communication. Suppose, for instance, that Mr. Samuel Hale should wake up in the night thinking that he heard some- person in his house. He should seize his gun or pistol, and in going to the door should see a man emerging from his door, running away from his house. He shoots at him, the shot takes effect and kills the person. If complaint is made 'against him as his ease would stand under the law of the land, he would be guilty of murder; that billing would not be in self-defense, or in defense of his property or any of his family, But he killed the man when he was retreating, after he had committed the offense, and it would be as much murder as if he shot him next day, or went into the' jail, after his capture, and shot him there. Supposing he is proceeded against and convicted, it would be murder; there would be no defense; there must be a perversion of law or perjury by the jury to acquit him, and the jury must fix his punishment at imprisonment for life. The citizens are aroused; they think the sentence unjust, and wish to apply to the governor for a pardon. It would not be sufficient to allege in the petition that Mr. Hale was always a respectable citizen. Dr. Webster was a respectable citizen; John C. Colt was a respectable citizen. It would be necessary to show to the governor the circumstances under which the shooting took place. They proceed to write down that the deceased was a burglar; he had already committed a burglary; was notorious, perhaps, and had been convicted for burglary; the deceased was in his house, and under the excitement of the time and the occasion, he used firearms upon him and killed him, under circumstances which the -law would not justify. The moment you write down the word “burglar” in that petition you are guilty of a libel; you blacken the memory of the dead, and every man who signs that petition is guilty of a crime before the law, and, when he is indicted, he can’t prove that that man was a burglar in fact, because the statute forbids it. The law is not guilty of any such absurdity. When it is properly understood it harmonizes in all its particulars. This statute was not intended to apply to any such case.

Carrying the illustration a little further, suppose some of our enterprising newspaper men should send down to Springfield and obtain a copy of the petition and publish it in their newspaper. They have published a libel. They are indicted. What will they say? Can they give the truth in evidence? No! What would be their defense? Certainly, if every man who signed this petition aided in forwarding it to the governor for the purpose of having him act upon it under the constitutional power vested in him were guilty of libel by that act itself, then they were guilty of libel when they published it. Their only defense would be that this was a paper used in the “regular course of justice,” and they had a right to publish it for that reason. Upon no other ground could they defend themselves against an indictment for libel.

There is another position that may be taken in this case, that the rule of privilege extends to all confidential communications sent to the president of the United States, or to the governor of a state, in the course of the performance of any duty that he may perform as an officer, and was so decided on the Burr trial by Chief Justice Marshall. I have a case here, the case of Gray v. Pentland, 2 Serg. & R. 23:

“A subpoena had issued from the court below and had been served, directed to the governor and secretary of the commonwealth, with a duces tecum for the deposition.” That was a deposition which was alleged to have amounted to a libel, “and a rule was entered for the purpose of taking their depositions in Harrisburg. But they declined appearing, either under the rule or the subpoena. They also declined delivering to the plaintiff the deposition made by the defendant.”

Breckenridge, J., giving the opinion of the court, says: “As to the governor, in this case, being compelled to give the deposition or writing transmitted to him, I am inclined to think it cannot be done. It must be a matter within his discretion to furnish or refuse it, and this on the ground of public policy.”

This case was cited and approved by the supreme court of Pennsylvania by Chief Justice Gibson, in the case of Youten v. Sanno, 6 Watts, 166.

It is not pretended that the secretary of state knows any fact connected with this matter, independent of his being the mere legal custodian of that paper under the duties of his office. It may be necessary, in the ease, to summon the governor as a witness, to show who presented it and what was said, and I hold, and it is a position that cannot be successfully overthrown, that the communication itself is a privileged communication, and the document is not admissible in evidence, as the foundation of an indictment, unless it shows that matter was thrown into the petition which was not pertinent to the application, and with the malicious design of merely blackening the memory of, the dead. As this is an application for an attachment without obtaining an order to show cause, and there is no affidavit to anything in the case to show to the court that there is any such feature to this paper, it is my duty to presume, in the absence of such evidence, that there is no such feature to it and to deny this application.


author: Jameson, J.:—

text:
      (Superior Court of Chicago.)

    James Pratt vs. Russell Grimes.
    (October, 1869.)
    Appeal and Error — Power of Court Where Case Reversed and Remanded Without Directions. Where a decree in equity in favor of the defendant has been reversed and the case remanded by the supreme court without directions the lower court has complete power over the,disposition of the case.

      Motion for leave to introduce further evidence in a case that had been reversed by the supreme court.
   Jameson, J.:—

This is a motion for leave to introduce further evidence in a case that- has come from the supreme court. That court reversed the decree, and remanded the case without any directions, simply saying: “We reverse the decree on the ground that there is no sufficient proof of settlement, and remand the cause.” It is contended by the party prevailing that all we have to do is to enter a decree. On the part of the defendant here, it is contended that this order does not preclude the introduction of further testimony, and a hearing of the case.

On the part of the complainant, a case has been read to the court from 1 Kane, 586, at law, which is supposed to settle the rule as the complainant contends it should be. In that .case, the court of errors of New York reversed a case that had come up from the supreme court, and ordered the court below to enter an order decreeing a hearing of the matter da novo for a new trial by a jury. The order of the court of errors was not obeyed by the court below. A new trial was had, but without the issuing of an order for a venire. The case going again to the court .of errors, it was held that that was error; that the court below should have first entered an order for a venire da novo, and thereupon a new trial would properly have been had. Because there was no such order entered, the case was remanded again. This is a case at law, and even if it was in its circumstances precisely similar to this — that is, had the court of errors merely reversed and remanded the case without direction, I doubt very much if it would have applied to a case in chancery. On the other hand, the defendant has read several cases which I think establish a contrary rule. In the ease of Wescot v. Woodworth, 1 Hopkins, Ch. 576, it was held that where a ease had been taken to the supreme court, and. an order of remanding the case was entered, that it was the duty of the court below to allow evidence anew as .to a party who had been made a party to the suit after the evidence as to other defendants had been taken originally. It seems that there were certain defendants; the case had been prepared for trial in the court below as to them, and all the evidence taken, and then another party was made party to the suit. The court went on and entered a decree, -and in the supreme court the case was reversed and remanded. The new party to the case claimed the right to introduce evidence on the hearing, which was overruled, and the case was heard on the evidence originally in the case. The supreme court held that that was error. There are also two cases in 3 Dana (Ky.), 76, 536 (Riley v. Wiley; Broadhus v. Broadhus), to this effect: where a cause has been reversed and remanded without directions, the court below has the same power over it as though it had never been to a higher court, and of course it may either set aside orders entered in the cause that was originally before it, or it may make such decree as seems to be equitable and just. I think that these two cases are pertinent to this, and must govern. In this case it is claimed by the defendant that one of the depositions used on the trial in this court was hot taken to the supreme court. It formed no part of the record, but was lost, and it is claimed had that deposition been on file as a part of the record, the case might have been very different in the supreme court. This presents a strong equitable claim for the allowance of this motion.

The motion is allowed.

NOTE.

Case on former appeal, see Pratt v. Grimes, 48 Ill. 376. — Ed.


author: Putekbatjgh, J.,

text:
      (Circuit Court of Peoria County.)

    A. M. Wiley, et al. vs. James Smith, Collector of Elmwood Township, and C., B. & Q. R. R. Co.
    (February, 1870.)
    1. RaelboadI Aid Subscription — Validation of Void Subscription by Legislature. Where a township by resolution voted to subscribe forty thousand dollars more to the capital stock of a railroad corporation than it was authorized by law to do; though such a subscription be illegal, yet it can be made valid by a subsequent act of the legislature. •
    2. Same — Vote of People Not Necessary. The legislature can authorize such a subscription without a vote of the people to be effected thereby.
    3. Statutes — Constitutionality—Duty of Courts. A court ought not to declare a statute unconstitutional unless the opposition between it and the constitution is clear.
    4. Injunction — Doubtful Case. An injunction should not be issued in a doubtful case.
   Putekbatjgh, J.,

after stating the facts in the case; discussing when a court of chancery will interfere to prevent the collection of taxes; the authority of towns and cities to subscribe for stock in aid of the construction of railroads, and holding that the subscription of the township of Elm-wood to the stock of the Dixon Peoria and Hannibal railroad company of thirty-five thousand dollars, as authorized by the charter of said company was valid, concluded as follows :

On the day of the election one of the citizens offered a resolution which was adopted, as follows:

“Resolved, That it is expedient for the township of Elm-wood to subscribe to the capital stock of the Dixon, Peoria and Hannibal railroad company, in addition to the thirty-five thousand dollars authorized by the charter of said company, the further sum of forty thousand dollars; and that the poll list and box be now open for the legal voters of this town to vote, ‘For subscription,’ or ‘Against subscription,” to that amount, and that the terms and conditions of subscriptions to the same, be the same as those upon which the vote for thirty-five thousand dollars as authorized by the charter, is this day to be taken, and that this poll list and box be kept open for the reception of votes until six o’clock, p. m., of this day.”

The subscription of forty thousand dollars was carried, by this vote, by a large majority.

To show that the proceedings in calling this town meeting, and in voting forty thousand dollars additional subscription, was illegal, no argument is needed. It is sufficient to say that it was1 wholly unwarranted and unauthorized by law.

It is claimed by the defendants that this vote, though void at the time of the election, has been legalized by subsequent acts of the legislature.

Before the subscription was made, but after the election referred to, viz.: April 17, 1869, the legislature passed “an act to legalize the election in relation to this subscription.”

The act provides that a certain election held in the township of Elmwood, in Peoria county, on the 16th day of March, A. D. 1869, at which a majority of the legal voters of said township, in special town meeting, voted to subscribe for and take forty thousand dollars of the capital stock of the Dixon, Peoria, and Hannibal railroad company, over and above the $35,000 which was, on the same day, subscribed for and taken in accordance with the provisions of the charter of said company, is hereby legalized and confirmed, and is declared to be binding upon said township, and the said forty thousand dollars, when subscribed, according to the conditions of said vote, may be collected from said' township in the same manner as if the said subscription had been made under the provisions of said charter. z

•This act, if it is within the power of the legislature under the constitution so to do, seems to cure the illegality of the election referred to.

It is urged that it is not within the power of the legislature to make a void act valid, and that the act is repugnant to that part of the constitution which prohibits the passage of ex post facto laws.

The policy of passing laws by our legislature imposing the burden of taxation upon the people of a locality for any specified purpose, without their consent expressed at a legal election may well be questioned. Voters are not required W attend any election in order to be bound by it, unless it .is a legal election held according to the forms of the law.

If the question was an open one, I should hesitate before, subscribing to the doctrine, that- the legislature has power to authorize the officers of any county, city or town to take stock in any public enterprise, without first submitting the matter to th'e citizens for their approval or rejection.

But that question may be considered as settled. It has been frequently held by the supreme court of this state, as well as that of other states, that it is competent for the legislature to bestow the power directly upon a county, city or town to subscribe for and take stock in a railroad, without, requiring the subject to be submitted to a vote of the people. Johnson v. Stark County, 24 Ill. 75; Perkins et al. v. Trustees, etc., 24 Ill. 208; Town of Keithsburg v. Frisk, 34 Ill. 405.

If the legislature has the power to authorize town officers to subscribe stock in a railroad company, without the vote of the people to be taxed, by a parity of reasoning, it would seem that it has the power to pass a curative act as in this ease. Laws of this character are frequently passed to secure the collection of taxes defectively levied, and they have always been sustained by the courts. Cowgill et al. v. Long, 15 Ill. 202; City of Bridgeport v. Housatonic R. R. Co., 15 Conn. 475; Board of Commissioners v. Bright, 18 Ind. 93; Town of Keithsburg v. Frisk, 34 Ill. 405; McMillen v. Boyles, 6 Iowa, 304; Thomson v. Lee County (Iowa), 3 Wallace, 381; Gelpcke v. The City of Dubuque, 1 Wallace, 175.

The rule which is laid down by Cooley on Constitutional Limitations, as applicable to cases of' this nature, is this: If the thing wanting or which failed to be done, and which constitutes the defect in the proceedings, is something which the-legislature might have dispensed with the necessity of by prior statute, then a subsequent statute dispensing with it retrospectively must be sustained. And so if the defect consists in doing something which the legislature might have made immaterial by prior law, it may also be' made immaterial by subsequent law. Cooley’s Const. Limitations, 371.

And so in this case, if the legislature, as we have seen, can authorize a subscription to a railroad company without a vote of the people, it can certainly give validity to an illegal election and authorize a subscription of stock under that vote.

In order to overthrow the action of the town authorities of Elmwood, in the view I take of this ease, the court must pronounce an act of the legislature — a co-ordinate branch of the state government — unconstitutional and void. The question whether a law be void for its repugnancy to the constitution is at all times a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case. A court ought not to declare a law unconstitutional, unless the opposition between it and the constitution is direct and clear. The policy of the act referred to is one of legislative discretion and not one of judicial cognizance. -

The counsel for the complainants has suggested that if the court has a doubt as to the propriety of issuing an injunction in this case, that it ought to be granted, in order that the collection of the taxes may be stayed until the ease is passed upon by the supreme court.

As I understand the law this extraordinary writ should never be issued in a doubtful case. The application has been heard upon the merits of the case, as admitted by counsel. It is not probable that any new facts will be elicited. The bonds' have been issued and are probably in the hands of innocent parties, and unless this tax is collected any provision made for the payment of the interest that will soon fall due, the town of Elmwood will be liable to be sued upon every coupon for the current year, and thus become involved in a multiplicity of suits. While on the other hand it must be admitted that if the bonds are illegal, it will work a hardship upon the tax payers to be compelled to pay the assessment for the current year.

From the importance of the case, I regret that the pressing business of the court prevents a review of all the points raised by counsel in this case. I have been compelled to confine myself to the more important points, and have not had time to rewrite or review this opinion.

The injunction is denied.


author: Tuley, J.:—

text:
      (Circuit Court of Cook County. In Chancery.)

    Cleveland Rolling Mill Co. vs. Henry Crawford, Great Southern Railway, et al.
    (January, 1891.)
    1. Creditors’ Bill — Appointment of Receiver in Foreign State No-Bar To. The pendency of a creditors’ bill and the appointment of a receiver in a foreign state is no bar to the filing of a similar bill here.
    2. Receivers — Appointment in Foreign State — No Title to Assets. Here. The appointment of a receiver in a foreign state does not prevent a legal or equitable attachment in Illinois as the receiver in the foreign state acquires no title to assets here.
    3. Corporations — Right to Issue Capital Stock in Payment of its. Debts. A railroad corporation has the right to issue its stock to pay for the construction of its own road.
    4. Creditor’s Bill by Creditor of Corporation. Where the creditor of a corporation seeks to compel a third person to account to the corporation, the creditor’s equities are derivative and must be sought through the equities of the corporation.
    5. Corporations — Enquiry into Title of Directors to Their Office. The court will not enquire whether or not a contract is illegal because approved by a de facto and not a de jure board of directors as it cannot enquire- collaterally into the title of the directors to their office and it was sufficient if the contract was made by a de facto board.
    6. Corporations — Majority Stockholders Contracting With Corporation. When the owner of 99 per cent of the capital stock of a corporation enters into a construction contract with the corporation the contract is not void, if made in good faith, with a bonafide board of directors acting in the usual discharge of their duties.
    7. Judgment Against Corporation — Binding on Stockholders. A stockholder cannot, in the absence of fraud, challenge a judgement against the corp'oration.

      8. Corporations — Liability of Owner of All Stock. Where the owner of all the stock of a corporation usurps all the functions of the hoard of directors, and takes possession of all the corporate property and controls it as his own private property, he must be held to the same liability as the directors would have ■ been, had they converted the property to their own use.
    "9. Corporations — Capital Stock. The capital stock of a corporation is a trust fund for the benefit of creditors and neither the board of directors nor the corporation can give it away or divert it to the private use of the directors or other officers of the corporation.
    10. Corporations — Used as a Cloak fob Individual Enterprise. The law authorizing the formation of corporations never intended that persons should carry on individual enterprises under the guise of corporate action.
    11. Stockholders — Duty to Creditors. In so far as shareholders have power to control the funds in which the corporate creditors have an interest, shareholders must be regarded as occupying towards them a position of trust.
    12. Corporations — Liability of Owner of all Stock Selling Corporate Property. Where the owner of the entire stock of a corporation sells the corporate property and consents to the foreclosure of a mortgage thereon, in consideration of a certain payment, and for the purpose of cutting off general creditors, the court will compel such owner to account for the property on the proceeds of the sale.
    13. Corporations — Right to Prefer Creditors. Where a corporation is insolvent and a receiver is in possession of its property, such property can he appropriated only to the payment of the corporate debts. A director who is also a creditor can not apply such property to the payment of his debt, to the exclusion of other creditors.
    14. Corporations — Rights of Creditors. A corporation does not exist solely for the benefit of stockholders. It also exists for the benefit of its creditors.
    15. Corporations — Individual Enterprises — Liability of Owner of Entire Capital Stock. If corporate form is used for individual enterprises, the individual as to creditors stands as a trustee ex maleficio, usurping the power and place of the legal trustee, the corporation. Any creditor would have the right to call him to account and he could not shield himself behind the nominal action of the corporation by its “dummy" board of directors.
    Bill filed by the Cleveland Rolling MiR Company against Henry Crawford, H. H. Porter and the Chicago & Great Southern Railway Company for an accounting. Demurrer to same heard before Judge Murray F. Tuley. The facts are .stated in the opinion.

      Samuel W. Packard, for complainant.

      Gardner, McFadden & Gardner, for defendants.
   Tuley, J.:—

The allegations of the hill of complaint in this case are anomalous and probably very difficult of proof, but in deciding the demurrer, however, they must be taken as true. The bill is a creditor’s bill, founded on a judgment against the defendant corporation for $4,365.74; a return of nulla tona on an execution issued thereon, and seeks an accounting for certain property, and assets of the corporation alleged to be in the defendant, Crawford’s, possession, and of certain moneys alleged to be due Crawford from the defendant Porter which ought to be applied in the discharge of complainant’s judgment.

. I will first dispose of some minor points before passing upon the main question made by the bill.

The pendency of a creditor’s bill in Indiana upon the judgment of Hack et al., in which a receiver was appointed, is no bar to the prosecution of this suit. The'receiver in that case acquired no such title, by his appointment, to assets in this state as would prevent a legal or equitable attachment thereof by an Illinois creditor. Rhawn v. Pearce, 110 Ill. 356.

Nor does the pending of a creditor’s bill in Indiana prevent the sustaining of a creditor’s bill in this state. The complainant can have no relief as to the $700,000 of stock issued by Crawford, as president, to. himself, as the board of directors subsequently ordered it paid to him on account of the construction contract. It then ceased to be unpaid stock. A corporation has the right to use its own stock in payment for the construction of its own road Crawford cannot be charged as a trustee in an express trust by the receipt of one million of bonds for the purposes expressed in the unsigned memorandum, for the reason that it does not appear therefrom that he agreed to appropriate the proceeds of the bonds to the payment of the creditors of the corporation. His agreement to furnish money to pay such creditors does not make him a trustee.

Treating the relations between Crawford and the board of directors as in good faith and such as the law presumes to exist between them, the bill is defective in not making the specific allegation that Crawford has not accounted to the corporation for the stocks and bonds delivered him. In such a case the creditors’ equity is derivative and must be sought through the equities of the corporation.

It is alleged that -the bonds and stocks agreed to be paid for the construction of the road were greatly — four times, it is alleged — in excess of the cost thereof. No fraud is charged on the directors as to the making of the construction contract, and as no statement is found in the bill as to the actual cost or value of the work, the court cannot grant relief as to such contract, solely because it is alleged that an excessive price was agreed to be paid therefor.

The contract, it is charged, was never legally entered into because the Crawford board was only, a de facto and not a de jure board. The court cannot in this proceeding inquire into the title of the directors to their office, and it was sufficient if the contract was made by a de facto board.

The mere fact that Crawford owned 99-100 of the stock would not make the construction contract void as being in effect a contract with himself. One great object in becoming a stockholder in a corporation is to avoid individual liability. No reason is perceived why such a stockholder may not' enter into a construction contract, if made in good faith, with a tona fide board of directors acting in the usual discharge of their duties.

Crawford cannot challenge the judgment against the corporation. A judgment against the corporation is conclusive, in the absence of fraud, upon all stockholders. Thompson, Stockholders, secs. 329, 337, and cases cited.

This disposes of all the minor points raised upon the demurrer.

The main question and one of great importance is whether taking the allegations of. this bill as true, can the defendant Crawford be held chargeable as trustee, and accountable, as such, to creditors for the property and assets of the corporation which came to his hands 1 The bill alleges in substance that about the year 1881 Crawford purchased the block coal road which had about twenty miles of completed road, and shortly thereafter he bought the Great Southern railroad, an uncompleted road some 100 miles in length, and then consolidated the railroads under the laws of Indiana under the name of the Great Southern Railway. He undertook the completion as if it was private property, using large amounts: of his own money in so doing, without consulting the nominal board of directors. That when he made the purchase of the; Great Southern Railway .he made it a condition that the* board of directors should resign so that he coaid appoint his own board. That he appointed relatives and employees of his own as directors, and caused them to enter into a construction contract with himself by which he was to receive all the property of the corporation, and its bonds and stocks, to an amount several times in excess of the cost of construction.

It is alleged that in entering into the construction contract, and in all their other acts, the members of the board of directors did not act of their own volition, but were simply instruments to register the wishes and desires of Crawford. That it was a bogus or “dummy” board and that its intervention in the affairs of the company was merely perfunctory and as the agent of Crawford. It is alleged that Crawford was as absolutely in the control of the corporation and of its assets as he could have been had it been a corporation sole, and he the member thereof, and therefore that equity-should regard the substance and not the form of the transaction, and hold that in making its construction contract he, Crawford, was the only party to the same; that it was in effect a contract by himself with himself. Taking the allegations of the bill as true, there was only a form, a semblance of a corporation, and the building of this railroad was an individual and not a corporate enterprise. If, as alleged, Crawford did in fact usurp all the functions of the board of directors, and did take possession of the corporate property, and manage and control it as his own private property, and convert it to his own use, he must be held to the same liability as the directors would have been held, had they converted the property to their own use. It is not'only charged that he ignored the board of directors and usurped its functions, but also, that he ignored the construction contract and at his own will, without consulting the board, made contracts and contracted debts in the name of the corporation for work included in the construction contract, many of which debts still remain unpaid. It is the recognized American doctrine that the capital stock and property of a corporation is a trust fund, held primarily for the payment of creditors, and that neither the board of directors nor the corporation can give it away or divert it to the private use of the members of the board, or other officers of the corporation. If the board cannot do so, one who usurps its functions and takes possession of the trust property and uses it and converts it as his own individual property, cannot do so.

If B usurps the functions of A and takes possession of the trust property of which A is the trustee, B will, be held to account as trustee ex maleficio. And in this case if the allegations of the bill are true, Crawford must be held to account ¡as trustee ex maleficio for all the corporate property which ;has come into his possession. It is the duty of a court of .equity to strip the transaction of its corporation disguise and hold the real actor responsible. The law authorizing the for:mation of corporations never intended that persons should ■carry on individual enterprises under the disguise of corporate action. To do so is a fraud upon the law itself.

It also appears by the bill that the defendant Crawford entered into an arrangement with a syndicate which held, as collateral to Crawford’s indebtedness, all the bonds and stock of the corporation which had then been issued, by which he sold the railroad to the syndicate and agreed that the construction contract should be cancelled, the trust deed securing the first mortgage bonds be foreclosed, and the property of the corporation sold, and thereby the claims of the creditors and stockholders extinguished, in consideration of the payment to Crawford of $250,000; of the profits to be made by such foreclosure and sale; or, if the syndicate should buy in the railroad at such foreclosure sale, it would form a new corporation and give him one-third of the new stock, or the $250,000, at the option of the syndicate. It was in fact a sale o£ the equity o£ redemption in all the property of the corporation by the owner of nearly all the capital stock to the mortgagee for such owner’s (Crawford’s) own benefit and advantage. Says Taylor:. “In so far as shareholders constituting the body corporate have power to control the funds in which creditors have legally protected interests, shareholders must be regarded as occupying towards them a. position of trust, for the latter have ordinarily no voice in the corporate management.” Taylor, Corp. sec 710; see also Railroad Co. v. Howard, 7 Wall. 392.

No matter what form this sale of the road to the syndicate took, it" was in substance a sale of the railroad by a shareholder owning practically all the capital stock, to cut off general creditors and benefit himself at their expense.. A court of equity looks through the forms of transactions to the substance. Beach v. Shaw, 57 Ill. 17. Crawford must in such case account to the creditors either for the property of the" corporation in which they had a legally protected interest, which was thus sold' by them, or for the proceeds of the sale received by him.

There is also another ground upon which Crawford is liable to account to creditors. At the time of this sale to the syndicate the corporation was in a state of bankruptcy and in the hands of a receiver whom it is alleged Crawford procured to be appointed. That being the case, the corporate property was a trust fund for creditors which it' was the duty of the directors and of the parties in control thereof to appropriate only to the payment of the corporate debts. No director being a creditor could lawfully appropriate it to the payment of his debt, to the exclusion of other creditors, yet this in substance is what Crawford, .a director and president of the corporation, has done. If such acts can be done with impunity, then the. law authorizing corporations is to enable private individuals to successfully defraud bona fide Creditors.-

A corporation is a composite artificial being. “It is,” says Taylor, “the manifestation of a body of rules of law in legal relations, between persons who have fulfilled the prerequisite conditions of fact.” .

“But the legal relations which arise immediately consequent upon incorporation are not its entire consequences. Incorporation has a further indirect result, namely, that future acts in respect to corporate enterprises will give rise to legal relations different from those which such acts would have occasioned, had there been no incorporation.” Taylor, Corp. secs. 28, 29.

A corporation does not exist solely for the benefit of stockholders. It exists also for the benefit of creditors when it has any. Under the American doctrine a corporation is a trustee of the corporate property for its creditors, and creditors have an equity as to the corporation property, superior to that of the stockholders. The creditor also has the right to demand that this trustee, the corporation, shall seek relief as to such trust property, the legal title to which is in its name, and if it refuses, or if the corporation is dominated by influences adverse to the creditor, the creditor himself may seek relief in the name of the corporation to the extent at least of the payment of his debt.

This right to inquire into the disposition that has been made of the corporate property becomes a right inherent in the constitution of the corporate body, and absolutely necessary to the protection of the creditors’ interests in the property of the corporation. It may be said to be a primary equity and not a derivative one.

If the form of a corporation is used, as in this case, for individual enterprises and purposes, the individual, while he would be estopped to deny the title of the corporation to the property- — he would, as to creditors, stand as a trustee e<c maleficio, usurping the power and place of the legal trustee, the corporation. Any creditor or other cestue que tncst, would have the right to call him to an account. He could no more shield himself behind the nominal action of the corporation by its “dummy” board of directors than a guardian, or executor de son tort could shield himself behind the accounts of the legal guardian or executor procured to be made in the name of such legal guardian or executor. Lehman v. Rothbarth, 111 Ill. 185.

The position taken by the court in this case may be without precedent, but no new equity in favor of creditors is attempted to be created or new principle announced. It is only an application of well established maxims and rules of equity to a new phase of business and commercial life. “Equity regards the substance not the form of the transaction.” Why should courts of equity continue to shut their eyes to that which all the world can «see, to-wit, that it has become a common practice in the business world to use corporation forms in the prosecution of individual schemes, upon the failure of which, the loss is saddled upon innocent creditors and minority stockholders.

Creditors are absolutely without any remedy unless the doctrine here announced can be sustained. If it cannot, the doctrine of the American courts, that the capital stock and other property of a corporation is to be deemed a trust fund for the payment of the debts of the corporation, may as well be abandoned at once.

The demurrer must be overruled and the defendants held to answer.


author: Tuley, J.: — ■

text:
    The Benedictine Order vs. Potter Palmer.
    (Dec. 14, 1880.)
    1. Vendos and Purchaser — Specific Performance — Marketable Title — What Constitutes. The purchaser of property before . he can. be compelled to specifically perform his contract has the right to demand a “marketable title,” that is, a title which will be saleable in the market. If there is a reasonable doubt it is not a marketable title.
    2. Same — Doubt as to Trusts. Certain persons purchased a piece of property as commissioners of the “German Catholic Church” and received a deed “for the German Catholic Church,” held that these recitals showed that the commissioners acted in a trust capacity, but did not show for what church nor by whom the purchase money was paid.

      Bill for specific performance. The facts are stated in the opinion.
   Tuley, J.: — ■

In the view I take of this case it is not necessary for me to pass upon the validity of the title held by complainant nor whether its deed, together with that of the bishop’s, will confer a good title. The purchaser of property, before he can be required to specifically perform the contract, has the right to demand a marketable title. I use the term “marketable title” in the sense used by the American courts, not in the technical sense it is used by the English courts. It must be a title which will be a saleable title in the market. Unless a title is free from any reasonable doubt, it is not a marketable title, nor is it one as to which a chancellor will enforce specific performance. The doubt affects the discretion which in such cases is vested in a chancellor. This doubt concerning a title may relate either to the facts or the law of the case. If as to the law of the case, it may be as to the construction of some deed or instrument which enters into the chain of title.

Steffen and Briesbach purchased in 1848 of the canal trustees, as commissioners of the German Catholic Church, and in 1852 received a deed for the “German Catholic Church.” These recitals show they acted in a trust capacity, but for what church 1 With whose money does not appear by record or oral proof. I cannot assume that the church was the St. Joseph Church, nor that the congregation of that church furnished the money. Nor can I assume that the money came from the bishop’s treasury.

Not only does this lack of evidence create a reasonable doubt, as to the trusts upon which Steffen and Briesbach held the property, but on account thereof I am unable to give a construction to the trusts afterwards declared in the deeds of Steffen and Briesbach to the bishop and the deed of the bishop to the Benedictine Order.

I am inclined to the opinion that the purchaser having the deed of the complainant and of the bishop would never be disturbed in possession, but under the law, well settled, there being a “reasonable doubt” as to this title, and it not being, by reason thereof, a “marketable title,” I cannot force this defendant to accept of the same.


author: Williamson, J.:—

text:
      (Criminal Court of Cook County.)

    People of the State of Illinois vs. Maud Lyons and Edward Lyons.
    (1884.)
    Criminal Law — Right to Waive Jury Trial. Where a defendant in a criminal case voluntarily waived his right to a trial by jury and requested the court to hear all questions of law and fact without the intervention of a jury, which waiver was duly entered of record, and the cause was thereupon tried by the court and the defendant found guilty, the waiver is binding on the defendant, and the judgment of the court cannot be set aside.
    Motion to vacate judgment. Heard before Judge Williamson.

      Thompson & Felsenthal, attorneys for defendants.
   Williamson, J.:—

At the April term, defendants were brought into court for trial, upon a plea of not guilty, to an indictment for obtaining money by means of a confidence game. The case was called for trial and a jury had been ordered into the box, when said defendants in person and by George Sparling,' their attorney (selected and employed by themselves), voluntarily and without solicitation, appeared before the bar of the court, and expressly waived their right of trial by a jury, and requested me as the presiding judge of said court, to hear and determine all the questions of law and of fact on the trial of said cause without the intervention of a jury, which waiver was duly entered of record, and thereupon the cause was tried by me, as such judge, and after the evidence and arguments of counsel had been heard, the defendants were found guilty.

No motion for a new trial being interposed by said defendants, or either of them (their said attorney being still present in court), and after their statement to the court that they had nothing further to urge why sentence should not be pronounced upon said finding, they were then and there duly sentenced to imprisonment in the penitentiary for three and five years respectively.

At the May term of this court, the said defendants again appear, and by Henry Wendell Thompson, their attorney, move the court to vacate said finding and judgment, upon the ground that the same are null and void, for the reason that the waiver of their right to a trial by a jury was not in law binding upon them, and, therefore, conferred no jurisdiction upon the court to try said cause. The question thus presented is, could these defendants, under the circumstances above recited, legally waive their constitutional right to a trial by jury?

The precise question has never been passed upon by our supreme court, and the decisions of other courts of last resort, bearing upon the question, are far from harmonious.

It is an important question, for the reason, that under the practice in this court for some time past, by most if not all the judges holding the same, scores of persons have been sentenced to the penitentiary upon speh findings, and scores of others have been in the same way found not guilty and set at liberty, all of which is decidedly wrong unless the proceedings in thi,s case are sanctioned by law.

To hold that such method of trying a cause is proper and legal in the case of a person who is poor and friendless, and therefore obliged to submit to the same and then in a similar case where the defendant has means or friends with which to help himself to hold the contrary, would be, in my opinion, infamous.

The law should bear equally upon all, and if this method of trying causes is unlawful, it should he abandoned at once and in all cases.

In the case at bar it can not be doubted or denied that this court had jurisdiction of the subject-matter and the persons of the defendants (the only question being did the judge proceed legally in the trial of said cause) and therefore the following cases cited by defendants’ counsel, to-wit: Foley v. People, Beecher’s Breese, 57; Peak v. People, 71 Ill. 278; Shissler v. People, 93 Ill. 472; Beesman v. City of Peoria, 16 Ill. 484; People v. Maynard, 14 Ill. 419 and Ginn v. Rogers, 4 Gilman. 131, are not in point.

The case of Hill v. People, 16 Mich. 351, relied upon by defendants’ counsel, where one of the jurors before whom the trial was had, was not a citizen of the United States, which was held to be a fatal error by said court is not important, as our own supreme court has held exactly the contrary in Chase v. People, 40 Ill. 352, where defendant was on trial for murder.

The following decisions of courts of last resort, cited b> defendants’ counsel, to-wit: State v. Maine, 27 Conn. 281; State v. Lockwood, 43 Wis. 403; People v. O’Neil. 48 Cal. 257; Cancemi v. People, 18 N. Y. 128; State v. Mansfield, 41 Mo. 470, and possibly some others, support the views taken by the defendants’ counsel, but it is worthy of note that in two of said eases, State v. Lockwood and People v. O’Neil, the attorney representing the people in each case confessed that such a practice was not sanctioned by law, leaving no contest before said courts, and in State v. Maine and Cancemi v. People, no authorities are cited in support of said decisions; and in State v. Mansfield,, it seems the Missouri code provides that in cases of misdemeanors defendant may waive a jury and be tried by the court, and it is argued that this provision evidently denies the right of such waiver in eases of felony.

The following eases, several of which are of recent date, decide more or less directly against the position taken by •counsel for defendants, to-wit: State v. Kaufman, 51 Iowa, 578; State v. Polson, 29 Iowa, 133; People v. Rathbun, 21 Wendell, 509; Price v. State, 67 Ga. 723; Commonwealth v. Dailey, 12 Cush. 80; Murphy v. Commonwealth, 1 Met. (Ky.) 365; Tyra v. Commonwealth, 2 Met. (Ky.) 1; People v. Murray, Criminal Law Magazine, March, 1884, page 223, the last case, decided by Judge Cooley of the Michigan supreme court in December, 1883, wherein defendant waived his constitutional right to be confronted with witnesses and allowed depositions to be read in evidence which practice was sanctioned by the learned judge, and in deciding which he uses this language: “I shall always be ready to preserve in its integrity every constitutional right; but I do not understand that the constitution is an instrument to play fast and loose with in criminal cases any more than any other, or that it is the business of courts to be astute in the discovery of technical difficulties in the punishment of parties for their criminal conduct, ’ ’ — is a strong case in favor of defendants’ rights to waive constitutional provisions in their favor, but without reviewing in detail all the cases cited and examined, it is sufficient to say that the. weight of said authorities seems to be against the position taken by defendants’ counsel.

The decision of this motion, however, does not depend entirely upon the cases heretofore cited, for while our supreme court has not passed upon the precise question under consideration, it has passed upon questions very similar, in such a manner as to leave no doubt in my mind that it will not only sustain the agreement of these defendants to waive their constitutional right to a trial by jury as a matter of law, but will also compel them to deal honestly and fairly with this court.

In the case of Perteet v. People, 70 Ill. 171, wherein the defendant was charged with murder, found guilty and subsequently executed for said crime, our supreme court says: (p. 176) “There is a marked distinction, in many respects between the English practice and our own in criminal cases. The rigor of the English law at'an early day, led humane judges to resort to technical rules to save the life of a criminal who was on trial for stealing the value of a few shillings,' who was denied the right of counsel or the attendance of witnesses to vindicate his innocence. Under our laws a criminal stands in entirely a different attitude. He has a right to a speedy trial before a jury and court that are free from bias or prejudice. The laws of the land furnish him able counsel for his defense, whether he has money or not. The process of the court is at his command to compel the attendance of witnesses. In fact, our laws afford every facility for one charged with crime to obtain a fair and speedy trial. This being the ease, many of the technical rules of the English practice are not in use under ours.”

In the case of The People v. Scates, 3 Scam. 351, the court says: “It is said, that a prisoner, in a capital case, is standing upon all his rights, and can waive none of them, nor his counsel for him, and reference is made to Normaque v. People, Breese, 111, in support of this position. This case means nothing more than this: That a prisoner in a capital case is not to be presumed to waive any of his rights; but that he may, by express consent, admit them all away, can be neither doubted nor denied. He may certainly plead guilty, and thus deprive himself of one of the most valuable rights secured to the citizen, that of a trial by jury. If he can expressly admit, away the whole ease, then it follows that he can admit away a part of it, but will not be presumed to have done so. The consent must be expressly shown, and this is the whole scope of the doctrine of the case referred to.” To the same effect are the eases of McKinney v. People, 2 Gilm. 540, 556; Chase v. People, 40 Ill. 352; and Bulliner v. People, 95 Ill. 394.

And in a recent case, Sahlinger v. People, 102 Ill. 241; the court says: ‘1 The constitutional right of a prisoner to appear and defend in person and by counsel to demand the nature and cause of the accusation, to meet the witnesses face to face was conferred for the protection and the benefit of one accused of a crime, but, like many other rights, no reason is perceived why it may not be waived by the prisoner. He may, if he sees proper, waive any trial, and plead guilty to an indictment. If he may do this, he may waive the right to cross-examine a witnesfe, or to be present when his ease is argued to the jury, or when the verdict is received. * * * He can not be permitted to take advantage of his own wrong and thus defeat the ends of justice.”

Upon principle and what I believe to be the weight of authority, I am of the opinion that the defendants’ waiver of their right to a trial by jury is both legally and morally binding upon them.

The motion to vacate the finding and judgment is denied.

NOTE.

See the contrary decision of Judge McAllister on an application for habeas corpus (People ex rel. v. Hanchett, reported in this volume.) — Ed.

       52 Mich. 288. — Ed.


text:
      (Circuit Court of Cook County.)

    People ex rel. Maud Lyons and Edward Lyons vs. Seth F. Hanchett, Sheriff.
    (1884.)
    1. Criminal Law — Habeas Corpus. The court is authorized in a habeas corpus proceeding to go back of the process on which a prisoner is held and enquire whether or not the judgment was void for want of power to render it.
    2. Jury in Criminal Cases. The only tribunal possessing the legal power, under the laws of this state, to determine the legal question of the guilt of an accused, upon an indictment for felony, and under a plea of not guilty, is a jury of twelve men.
    3. Same — Consent of Prisoners to Trial By Court. The only legally constituted tribunal for the trial of the guilt or innocence in a felony case, under a plea of not guilty, is a jury of twelve men. The court or judge is not the legally constituted tribunal to try such question. The judgment of a court finding a defendant guilty in such a case is utterly void even though the defendant consents to a trial before the court.
    Indictment for felony. Petition for habeas corpus. Heard before Judge McAllister. The facts are stated in the opinion.

      Thompson & Felsenthal, for relators.
   McAllister, J.:—

This case is upon habeas corpus, on the petition of Maud and Ed. Lyons, who allege that they are unlawfully imprisoned by the sheriff of Cook county. The material facts are, that at the March term, 1884, of the criminal court of said county, an indictment was returned into court against the prisoners, containing five counts, each of which was for felony.

The first count charged that said Maud and Ed. Lyons, on, to-wit, March 1, 1884, in said county, “did unlawfully and feloniously obtain from Annie Thompson her money, by means and by use of the confidence game, contrary to the statute, etc.” At the April term, the prisoners were arraigned upon said indictment, and both pleading not guilty, formally put themselves upon the country, thus tendering an issue, which could be legally tried by a jury only.

But the cause having been brought forward for trial, instead of such issue being tried by a jury, it was tried by the judge then presiding in said court, without a jury, under an agreement between the prisoners, their counsel and the state’s attorney, that a jury be waived, and the cause tried by the court without a jury. The judge, after hearing the testimoney, found both the prisoners guilty in manner and form as charged in the first count of the indictment, and on that finding alone gave judgment against them, that they be confined in the penitentiary at Joliet, at hard labor — the said Maud for three; and the said Ed. Lyons, for five years. A certified copy of these judgments, respectively, was made out and delivered to said sheriff, for the purpose of having said sentences carried into effect; and, thereupon, on the petition of the prisoners, the writ of habeas corpus herein was awarded, with the view of having the validity of said sentences inquired into. In his return to that writ, the sheriff has set out the copies of said judgments so made as aforesaid, as the sole cause of the detention of the prisoners by him.

If it appears that the prisoners are in custody by virtue of the process of a court legally constituted, then the court is limited in its inquiry and power to discharge by section twenty-two of the habeas corpus act (B. S. 1874, p. 568), which provides: “If it appear that the prisoner is in custody by virtue of process from any court legally constituted, he ■can be discharged only for some of the following causes: 1. Where the court has exceeded the limits of its jurisdiction, either as to the matter, place, sum or person. * * * 4. Where the process, though in proper form, has been issued in a case, or under circumstances, where the law does not allow process or orders for imprisonment or arrest to issue. * * * 7. Where there is no general law, nor any judgment, order or decree of a court to authorize the process if in a civil suit, nor any conviction if in a criminal proceeding. No court or judge, on the return of a habeas corpus, shall, in any other matter, inquire into the legality or justice of a judgment or decree of a court legally constituted.”

I am of opinion that those provisions confer upon this court authority to go back of the process, on which the prisoners are held, and inquire whether or not the judgment was void for want of power to render it. People ex rel. v. Whitson, 74 Ill. 20. The supreme court, on habeas corpus, has no ■other or greater powers, in this behalf, than the circuit court. The question to be decided is, whether from the record of the proceedings of the criminal court, in the ease under consideration, and which I have properly before me, that court did not, in giving the judgment or sentence against the prisoners,, act entirely outside of any authority conferred upon it by the laws of this state. If it did, then, manifestly, that judgment was void.

The bill of rights contains the declaration that, “No person shall be deprived of life, liberty or property, without due process of law.” Also, that, “the right of trial by jury as heretofore enjoyed, shall remain inviolate; but the trial of ■civil cases before justices of the peace by a jury of less than twelve men may be authorized by law.” Section 428 of the Criminal Code declares, “all trials for criminal offenses shall be conducted according to the course of the common law, except when this act points out a different mode. ’ ’ Section 431 provides: “Juries in all criminal cases shall he judges of-the law and the fact. ’ ’

By the common law, a jury of twelve men was the only tribunal which that law recognized for the trial of the question of the guilt of the accused, under an indictment, especially for a felony, and a plea of not guilty. About this there can be no controversy. Under that system, it was a fundamental principle that questions of fact were for the jury — of law, for the court. But by our criminal code, both law and fact are for the jury. The only tribunal possessing the legal power, under the laws of this state, to determine the question of the guilt of an accused, upon an indictment for felony, and under a plea of not guilty, is a jury of twelve men. And the determination of that matter by any other tribunal, or functionary, would not be due process of law. I say it without hesitancy, and challenge any lawyer to show to the contrary, that power, authority, or jurisdiction has never been conferred upon any court, or judge of any court, of this state, by any law, constitutional, statutory or common, to sit in the place of such jury, try the question of the guilt of the accused under a charge of felony and plea of not guilty, and sentence the prisoner to the gallows, or the penitentiary. Such an innovation would be subversive of all constitutional safeguards, and in the very teeth of the statutory provisions, above quoted.

It is not claimed by the state’s attorney that any such power has been conferred upon the criminal court by any law of this state, but it is insisted that it is legal and proper, and that it has become a common practice in the criminal court so far as several of the judges of that court are concerned, for the judge or court to' sit in the place and stead of a jury, by, the consent of persons accused, even in cases of felony. Let us consider that position for a moment. The only legally constituted tribunal for the trial of the question of guilt or innocence, under the plea of not guilty, is a jury of twelve men. The court or judge, therefore, is not the legally constituted tribunal to try such questions. In the absence of a jury, the court, for the purpose of a trial of an issue to the country, has, by the law, no jurisdiction. It is not within its legal powers to sit as a substitute for the constitutional tribunal of twelve men. Now, when the court sat in the place of a jury, to pass upon the question of the guilt of these prisoners — both as to the law and the fact, from what source was his authority in the premises derived? Certainly not from the law. It was simply and entirely from the consent of the prisoners and the state’s attorney.

It would have been just as competent, in my opinion, for the prisoners and state’s attorney, to have agreed that the clerk of the court hear the case; because whatever authority there was for the procedure was by consent and act of the parties and not by the law. What more then, I ask, did such trial amount to than a species of arbitration ? The principle that consent can not give jurisdiction of the subject-matter, renders the finding of the court, that the prisoners were guilty, utterly void. The state’s attorney has cited many authorities showing that various of the constitutional safeguards, which an accused might properly insist upon, may be waived by him. That is not disputed. But there is one distinction -which he overlooks, and that is, “that the substantial constitution of the legal tribunal, and the fundamental mode of its proceeding, are not within the power of the parties.” Cancemi v. The People, 18 N. Y. 128, 136. This distinction is recognized with approval in Pierson v. The People, 79 N. Y. 424, 430.

It is in virtue of that distinction that the verdict in case of felony, where the jury, though by the consent of the accused, consist of a less number than twelve, is held to be void., Allen v. The State, 54 Ind. 461; State v. Mansfield, 41 Mo. 470; State v. Maine, 27 Conn. 281; State v. Lockwood, 43 Wis. 403.

Upon this question Judge Cooley says “Any less than this number of twelve would not be a common-law jury, and not such a jury as the constitution guarantees to accused parties, when a less number is not allowed in express terms; and the necessity of a full panel could not be waived — at least in a case of felony — even by consent. The informity in case of a trial by jury of less than twelve, by consent, would be that the tribunal would be one unknown to the law created by mere voluntary act of the parties; and it would in effect be an attempt to submit to a species of arbitration the question whether the accused has been guilty of an offense against the state.” Cooley’s Constitutional Limitations, 4th ed. p. 395, and cases in note 1.

If the law will not permit a person accused of felony to dispense with even one juror, can it be maintained that he may properly dispense with the whole panel, by consent?

Under our system, no court of the state has the power, authority or jurisdiction to sentence an accused to the gallows, or to the penitentiary, except upon an indictment duly found, a plea of guilty or a verdict of guilty, by a jury. The substitution of the finding of the court, under the consent of the accused, leaves the court as destitute of the power to sentence, as if no step whatever had been taken, intervening the plea of not guilty, and the sentence. I think the judgment is void, and the prisoners entitled to be discharged from imprisonment under the process which the sheriff has returned as the cause of their detention.

Prisoners discharged.

NOTE.

The above case was cited in People ex rel. v. McLaughrey, decided by Judge Gibbons and reported in this volume, p. 210. See also the contrary decision of Judge Williamson on the motion to vacate the judgment in the original case of People v. Lyons, reported in this volume, p. 199. — Ed.


author: Gibbons, J.: —

text:
      (Circuit Court of Cook County.)

    The People of the State of Illinois ex rel. Jeremiah Corridon vs. R W. McLaughrey, Warden, etc.
    (1898.)
    1. Habeas Corpus — When Issued. If a prisoner is committed by the sentence of a court of competent jurisdiction, no other court of competent jurisdiction, or even of superior jurisdiction, can discharge him on habeas corpus, unless the judgment upon which he is imprisoned is absolutely void.
    2. Same — Duty to Remand Prisoner to Sheriff When Discharged on Habeas Corpus. Where the court by virtue of the statute discharges a prisoner because the trial court has exceeded its jurisdiction or authority, the prisoner should simply be released from his illegal restraint and then be remanded to the custody of the sheriff. In such a case the prisoner was not in jeopardy.
    3. Verdict of Jury — How Returned. The method of returning a verdict of a jury in a criminal case at common law stated.
    4. Verdict — Delivered After Separation of Jury. Where a jury in a criminal case was permitted to separate by the consent of the prisoner and the jury agreed upon a verdict finding the defendant guilty and sealed the same and separated, 'and the verdict was thereafter delivered in open court to the clerk in the absence of the jury, it was held that the proceeding was void and the prisoner having been in jeopardy was entitled to his discharge.
    Petition for habeas corpus. Heard before Judge John Gibbons. The facts are stated in the opinion.

      E. J. Batten and H. W. Dikeman, for relator.

      F. L. Barnett, assistant state’s attorney, for respondent.
   Gibbons, J.: —

In this ease the prisoner was indicted with 'others, as I understand it for a burglary. He pleaded not guilty to the indictment, and thereupon a jury was called, empaneled and sworn to try the case. All the testimony was introduced on behalf of the people, and on behalf of the defendant, the arguments of counsel concluded, and the jury instructed respecting the law. The record shows that the jury was permitted to separate by consent of the prisoner and the polling of the jury was waived by him. The jury, after due deliberation, agreed upon a verdict, finding the defendant guilty as charged in the indictment, sealed the verdict and separated, and it was delivered, in open court, to the clerk the next morning, but the jury was not present, as the jurors had separated the night before and were not again called together in the case.

The able and conscientious assistant prosecuting attorney, Hr. Barnett, frankly admits that if the prisoner in this case was in jeopardy, in the sense that if the supreme court, on a writ of error would reverse the case, and remand the prisoner for trial, and that a plea of former jeopardy could be successfully interposed by the defendant upon such trial, that this court has the power, and it is its duty, to discharge the prisoner from his illegal imprisonment. In other words, that, while this is not a court of review in habeas corpus proceedings, that, if the case is such that nothing would be left for the supreme court to do but to order the discharge of the prisoner, on reversing the case, or if nothing was left to be done but to file a plea of former jeopardy, and that that plea could be sustained upon the evidence and upon the law, then that this court has the power, and it is its duty, to discharge the prisoner. .

There is a good deal of uncertainty and misapprehension obtaining in this jurisdiction respecting the power of the court to discharge a prisoner on habeas corpus. The true rule is that if the prisoner was committed by the sentence of a court of competent jurisdiction, no other court of concurrent jurisdiction, or éven of superior jurisdiction should discharge him on habeas corpus proceedings, unless the judgment upon which he is imprisoned is absolutely void. It is true that under one section of the Habeas Corpus Act the reviewing court is given power to discharge a prisoner if the trial court has exceeded its jurisdiction or its authority. But, in discharging the prisoner under such circumstances, the court would simply release him from his illegal restraint, and remand him to the custody of the sheriff, either to give bail (if a bailable case) or to remain in jail until properly tried by a jury, if the trial that he had had was void. Mr. Justice McAllister (a jurist whose knowledge of the law every lawyer at the Chicago bar, and wherever else he is known, holds in the highest esteem) discharged a man on habeas corpus who had been indicted for a felony, waived a jury and consented to be tried before one of the judges of the criminal court. It is safe to assume the question was not raised before Judge McAllister in 'that case (People v. Lyons, 16 Chi. L. News, 320) — that, while it was his duty to release the prisoner from his illegal restraint, it was also his duty to remand him to the custody of the sheriff for another trial; because the trial which he had had was void, as the judge had no power to try him, and, therefore, the man was never in jeopardy. Garvey’s Case, 7 Colo. 384, s. c. 4 Am. Law R. 254.

Now, if the case before me is one of that nature, then this man was not in jeopardy, and he may again be tried. The court, it is conceded, was legally constituted, and it was a court of competent jurisdiction for the trial of criminals, whether held for felony or misdemeanor. The record shows that a jury was duly impaneled and the trial proceeded in the usual way. Tqstimony was introduced, counsel were heard, and the instructions of the court given, and everything was perfectly regular up to the time of the separating of the jury. It was late in the day when the case was submitted, and the defendant agreed that the jury might seal their verdict and separate, and he waived the right to poll the jury, but he did not agree that the jury should be discharged or that the verdict should be returned into court in the absence of the jury.

"What is the manner in which a verdict must be returned ? Not by presenting the written verdict of the jury (although that is customary in this, jurisdiction) to the clerk, to be filed in the presence or in the absence of the jury, as the case may be, but the order in which the verdict must be returned is as follows: “When the jury have come to a unanimous determination with respect to their verdict, they return to the box and deliver it. The clerk then calls them over by their names, and asks them whether they agree on their verdict, to which they reply in the affirmative. He then demands, ‘who shall say for them?’ to which they answer ‘their foreman.’ ” That is the common-law way of delivering a verdict, and is the proper way, unless changed by statute. This being done, he commands the prisoner to hold up his hand, and addresses them: “Look upon the prisoner, you that are sworn; how say you, is he guilty of the felony whereof he stands indicted, or not guilty?” The foreman then answers “guilty,” or “not guilty,” according to the conclusion to which the jury have arrived in their consultation. The officer then writes the word “guilty,” or “not guilty,” on the record, and again addresses the jury: “Hearken to your verdict as the court hath recorded it; you say that A. B. is guilty (or not guilty) of the felony whereof he stands indicted, and so say you all.” That is substantially the course of procedure in all the states at the present day; but there are necessarily slight differences in the practice, and each court will pursue its accustomed course. There is no reason to believe that any minute departure from the old forms will vitiate that verdict. Hence it is sufficient in this jurisdiction that the verdict of the jury in writing signed by each juror or by the foreman is returned in the presence of the jury, the clerk then reads it aloud and asks them if this is their verdict, and if they answer in the affirmative it is accepted, but the prisoner may demand the jury to be polled, which is done by the clerk calling upon each juror to answer whether or not the verdict just read was and is now his verdict.

It has been adjudged time and again by courts of the highest respectability that the jury returning the verdict into court is not the rendition of the verdict, that is, that the returning of the paper verdict into court is not the rendition of the verdict of the jury, but that it is the oral interrogatory put by. the clerk to the jury and the answer of the jury to the clerk which constitutes a legal verdict. Whether the same formality is proceeded with as at common law, or the written verdict is returned, as in this jurisdiction, and the clerk interrogates the jury, in either event it has been frequently adjudged that the oral interrogatory and the entering of the verdict on the minute book (of course the filing of the verdict would suffice in our jurisdiction) is the rendition of the verdict.

The petitioner waived the right to poll the jury. He agreed that the jury might seal its verdict and separate, but that i£ as far as he went. He did not agree that the jury should not again assemble and listen to the reading of the verdict, or to the interrogation of the clerk as to whether or not the verdict returned was their verdict.

The common-law command “Look upon the .prisoner, you that are sworn,” has a peculiar significance that reaches back and has its foundation in the early history of jurisprudence. “Look upon the prisoner.” That is an admonition to the jury to look upon him, probably for the last time, and say whether he is guilty, although they may have signed a verdict finding him guilty. Some juror may say “I agreed to this verdict because I wanted to get home to the bedside of my sick wife or child, but in thinking it over carefully I fear I acted hastily and did wrong.” And this man may voluntarily, without being interrogated as to whether that is or is not his verdict, repent and stand up in the jury box and say “I agreed to that verdict but it was because I wanted to reach the bedside of my sick wife, and it is not my verdict. ’ ’ “Look upon the prisoner.” Now this admonition has indeed its peculiar significance. There are many instances incident to criminal trials and many passages in history that remind us of the force of that expression as applied to criminal procedure ; for example when Paul stood before Felix — he claimed to be a Roman citizen and that, it was his privilege under the Roman law, to meet his witnesses face to face, and if they had aught against him that they would there accuse him. So.it was when Christ looked upon Peter. He remembered what Christ had said to him, “Before the cock crows thou shalt deny me thrice,” and Peter turned aside and wept; and in the famous trial of Mary, Queen of Scots, she demanded that her accusers be brought to her that she might meet them face to face. There are hundreds of instances in history showing the significance which attaches to this fact, and, in the common parlance of the people, when one hears that another has accused him of some wrongdoing he will say, “He dare not do so to my face."

Coming back to the facts as they appear in the record, this man was in jeopardy. It was just the same as if the court had discharged the jury after the state had rested its case, seeing that there was not sufficient evidence to convict him. The court could not, after the jury was sworn to try the cause, and after any evidence is introduced material to the issue (no matter how slight the evidence) legally discharge the jury. The man is then in jeopardy, and the jury cannot be discharged without his consent, unless for some unforeseen accident. For example if a juror die or is taken suddenly ill, or they are kept out for a length of time, that the court can see that it would be useless for them to remain out longer. But without the consent of the prisoner, except in those cases, there cannot be a discharge of the jury by the court. Petitioner consented to everything that he had a right to consent to up to the very moment of the jury coming together again in his presence and rendering a verdict in open court. He did not consent to waive that formality. Now, then, the discharge of the jury without that consent is just the same as the discharge of the jury by the court at any stage of the proceedings, if it thought the prosecution had failed to make out its case or for any other cause without the consent of the prisoner. The prisoner could have consented, I am inclined to believe, that the jury should separate, and again assemble, but in that case, the judgment would probably be a voidable judgment. In other words the supreme court would doubtless reverse a judgment of that kind, but it would not be a .void judgment, because he consented — he was instrumental in permitting the court to commit that error, and the court of review would not say that that judgment was void, because he was instrumental in rendering it so, and therefore, would reverse the case and remand the prisoner for a new trial. But the court discharged the jury without the prisoner’s consent, and that has enabled him to plead his former jeopardy, and as I said before, inasmuch as the state’s attorney has well said that if nothing is left to do in this case except to put the man upon trial — admitting that the supreme court would reverse the case, as it undoubtedly would, and nothing was left to do except to put this man on trial again, so as to plead his former jeopardy, that the state will not put him to the trouble of going through that idle formality, and hence this court may as well discharge him as the supreme court.

Besides, let me say, that if I had any doubt about my position I would resolve that doubt in favor of the people. In cases of this kind where the matter of the guilt or innocence of the party is not involved, it is the duty of the court to resolve any doubt arising in favor of the people, because new evidence may be procured before the trial. So it is in this case, if I had any doubt about my position I would remand the prisoner, and compel him to sue out his writ of error in the supreme court, but, entertaining no doubt on the subject, my judgment is, that the prisoner ought to be discharged which is done accordingly.

       Reported in this volume at page 199 — Ed.