author: Mr. Justice Shope

text:
    Lyman Ackerson v. The People of the State of Illinois.

      Filed at Ottawa May 9, 1888.

    1. Criminal law—proof of an alibi—burden of proof—degree of proof ■ required. On a criminal prosecution, when the People have made out a prima faeie case, an.d an alibi is relied on, the burden is on the defendant to prove it,—not beyond a reasonable doubt, nor even by a preponderance of the evidence, but by such evidence, and to such a degree of certainty, as will, when the whole evidence is considered, create and leave in the minds of the jury a reasonable doubt of his guilt of the crime charged.
    2. Same—instruction as to proof of an alibi. On the trial of one for rape, the defense of an alibi being made, the court instructed the jury, “that when the People make out such a case as would sustain a verdict of guilty, and the defendant offers evidence, the burden is on him to make out that defense, and as to an alibi, and all other like defenses that tend merely to cast a reasonable doubt on the case made by the People when the proof is in, then the primary question is, (the whole evidence being considered, both that given for the defendant and that for the People,) is the defendant guilty beyond a reasonable doubt?—the law being, that when the jury have considered all the evidence, as well that touching the question of the alibi, as the criminating evidence introduced by the prosecution, then, if they have any reasonable doubt of the guilt of the accused of the offense with which he stands charged, they should acquit, otherwise not:” Held, that the instruction was not such as to impress the jury that in the opinion of the court the State had made out a prima facie case; nor was the defendant prejudiced by the words, “that tend merely to create a reasonable doubt. ”
    3. Same—admission or confession—whether implied from silence. An admission or confession may be implied from the conduct of the party in remaining silent when charged with crime, or with complicity therein, or when statements are made by third persons, in his presence, affecting him, when the circumstances afford an opportunity to act' or speak in reply, and men similarly situated would naturally deny the imputed guilt, or make explanation of the statements.
    4. The degree of credit to be given to such tacit admissions is always to be determined by the jury under the circumstances of the particular case. Such evidence should be received with caution, and attention should be directed to the defendant, and to the circumstances surrounding him that would be likely to influence his action, with a view to determine the motive that induced his silence.

      5. If it be doubtful whether the statement was perfectly heard or understood by the prisoner, or circumstances existed which might prevent a'reply, or render it improper or inexpedient, or his silence may be attributable to fear, or any other motive than acquiescence in the truth of the proposition to which his silent assent is claimed, the evidence will be entitled to little or no weight; but its value is to be determined by the jury in view of the surroundings and attendant circumstances shown.
    6. After the arrest of one charged with rape, the prosecutrix called at the police station to see if he was one of the persons who violated her person, and said in the prisoner’s presence that he was one of the men. The witness testifying was asked, “What did he say,” to which question objection was made, and overruled. He answered, “He did not say anything,— he hung down his head and did not make any answer.” The court directed all of the answer to be stricken out except what the prisoner said. The witness was again asked what the prisoner said, and answered, “He held his head down. ” The court was asked to instruct, that the fact the prisoner made no reply, if such was the fact, need not be taken into consideration as a circumstance against him, in any manner whatever: Held, no error to refuse such instruction.
    7. Same—of statements of co-defendant. On the trial of two for rape, the admissions and statements of one of them are admissible in evidence against himself, as well that which is exculpatory of himself as that which is criminating; and there is no error in admitting the same, instructing the jury that it should not be considered against the other defendant.
    Writ of Error to the Criminal Court of Cook county; the Hon. E. S. Williamson, Judge, presiding.
    Mr. E. C. Miles, and Messrs. Mills & Ingham, for the plaintiff in error:
    The People’s second instruction was calculated to arouse suspicion in the minds of the jury against an alibi, and casts discredit on the defense. It is not a defense that merely tends to cast a reasonable doubt on the case made by the People when the proof is in. Its effect was also to impress the jury that in the opinion of the court they had made out a case that would justify a conviction. Hoge v. People, 117 Ill. 44.
    The court erred in the admission of evidence. Silence while in custody, when charged with crime, does not amount to an admission of that charge. Wharton on Grim. Ev. (8th ed.) sec. 680; Commonwealth v. Walker, 13 Allen, 570; Commonwealth v. Kenny, 12 Metc. 235.
    The confessions of prisoners are received in evidence upon the presumption that a person will not make an untrue statement against his own interest. Eoscoe on Grim. Ev. 38.
    The statement of Gehrig was in the nature of a self-serving declaration, and therefore was not admissible even to show his guilt. The instructions of the court limiting this evidence to Gehrig can not cure the error. Railroad Co. v. Winslow, 66 Ill. 219; Jackson v. People, 18 Bradw. 518; Denser v. Parsons, 8 id. 625; Fire Ins. Co. v. Rubin, 79 Ill. 402; Hutchins v. Hutchins, 98 N. Y. 60.
    Mr. George Hunt, Attorney General, for the People:
    The onus of proving an alibi rests upon the defendant. Garrity v. People, 107 Ill. 162; 1 Wharton on Crim. Law, 708-744.
    The silence of a party when charged with crime, together with all the circumstances, may be given in evidence against him. Kelly v. People, 55 N. Y. 565.
    It is the effect of evidence as a whole, and not distinct parts of it isolated from its connection with other evidence, by which the jury are to be governed in determining the question of the guilt or innocence of the prisoner. Bressler v. People, 117 Ill. 423.
   Mr. Justice Shope

delivered the opinion of the Court:

Lyman Ackerson, plaintiff in error, was jointly indicted and tried with John Knorp and Emil T. Gehrig, for the rape of Mary Cottei. Knorp was acquitted. Ackerson and Gehrig were convicted, and the punishment fixed at eight years in the penitentiary, severally. A motion for new trial was sustained as to Gehrig, but overruled as to Ackerson, and sentence entered on the verdict.

The corpus delicti was clearly and satisfactorily established, leaving no doubt that the prosecutrix was ravished at the time and place stated by her. The offense was committed near Thirty-second and Dashiel streets, in the city of Chicago, between half-past eight and ten o’clock of the night of Tuesday, August 9, 1887. The prosecutrix was on the street in company with two young men, Neumann and Pick, when they were approached by three men, one of whom arrested Neumann, took him two or three blocks away, and after kicking him, and telling him not to be seen on the corners again, let him go. Another attempted to arrest Pick, who escaped and ran away, and the third, whom the prosecutrix identified as the defendant Gehrig, arrested her and took her to a shanty on the prairie near by, and attempted to ravish her. Upon her resisting, Gehrig, as she says, whistled, and two men came and threw her oh the ground, two holding her while the other ravished her. She was ravished by each of them. After being released, she immediately made complaint, and examination of her person and clothing fully corroborated her in respect to the force employed.

The case, in its facts, turns wholly upon the question of the identification of Ackerson as one of the three engaged in the perpetration of the crime. The defendant Ackerson interposed the defense of alibi. The two boys, Neumann and Pick, while they fully corroborate the prosecutrix in every substantial particular, up to and including the pretended arrest, are unable to identify or describe either of the three men. The defendant Ackerson, on the evening in question, was employed as a watchman in new buildings then in process of construction at the corner of Thirty-second street and Lowe avenue. He testifies he went on duty about five o’clock P. M., and remained there with Knorp until about eight o’clock, and leaving Knorp in charge, then went to the corner of Emerald avenue and Thirty-first street, where he remained about an hour and a half or two hours. The new buildings front on Thirty-second street, and diagonally across that street was the shed or shanty to which the prosecutrix was taken. From Thirty-second street to Thirty-third street it was open prairie. It appears that the prosecutrix was on Thirty-second street, between Lowe avenue and Dashiel street, at the time of her pretended arrest. The first street west of Lowe avenue is Dashiel street, the next west of that is Emerald avenue, so that it is apparent, taking Ackerson’s statements as true as to his whereabouts, he was at no time more than two or three blocks away from the scene of the crime. He went to the corner of Thirty-first street and Emerald avenue, as he says, to meet a friend, and failed to find him, but gives the names of four persons whom he met there, only one of whom, Agnes Clark, is produced as a witness. She testified she met Ackerson there, about ten minutes after nine o’clock, and was with him about eight minutes. She is not definite as to the time of night or the length of time she was with accused. So, on the other hand, the assault on the prosecutrix may, from the evidence, have occurred at any time between half-past eight and ten o’clock. It was after ten o’clock, but not eleven, when she arrived at her home. The length of time consumed in the perpetration of the offense is not given. She testifies that it was ten or fifteen minutes after the men left her before she was able to rise; that she then started home. She soon received help, and was promptly taken to her home, a few blocks away.

It is manifest that the testimony of the witness Clark falls far short of establishing an alibi. Nor can it be seen how it tends to corroborate Ackerson, except as to the immaterial fact that for eight minutes out of the hour and a half in which the crime might have been committed, he was three or four blocks away from the place of its commission. No other -evidence, save that of the defendant, is found in the record tending to establish that defense. Ackerson denied participation in the crime, and stated that he left the new buildings about eight o’clock, was at the corner of Thirty-first street and Emerald avenue with Frank McAllister,—who was not produced as a witness,—for, as he thinks, an hour and a half, and in that vicinity probably a half hour longer, with Agnes and Kitty Clark. No review of his evidence, which is in substance the foregoing, will be necessary. It was shown that at the preliminary examination he testified in his own behalf, and there stated that he was gone away from the new build•ings, where he was watchman, about three-quarters of an hour, and then came back, and he and Knorp remained there together all night. The burden of making good the defense of alibi is upon the accused, and to make it availing he must establish such facts and circumstances clearly sustaining that-defense, as will be süffieient, when considered in connection with all the other evidence in the case, to create in the minds of the jury a reasonable doubt of the truth of the charge against him. 2 Bishop on Crim. Proc. 29-32; Mullins v. People, 110 Ill. 45.

The identification of Ackerson by the prosecutrix is 'positive and unhesitating. She swears- that he was the largest man of the three,—the large man “with the heavy mustache,” who was the second to ravish her. It is shown there were lights at the street intersections where she was first assaulted. She next saw the accused on the following night, about half-past ten o’clock. She went with an officer to the vicinity of the crime. A rain came on, and they took shelter in the new buildings before mentioned. Presently Ackerson and a man by the name of Overne came in. She was first asked if she knew Overne, and replied she did not, but at once recognized Ackerson as one of the men who had assaulted her. It is perhaps singular that at the instant her attention was directed to Ackerson there should have been a flash of lightning, giving her a perfect view of him; but she is fully corroborated in that respect by the officer, and contradicted by no one. She again recognized .him at the station, and again on the trial. The jury saw both the defendant and prosecutrix, heard them testify, had opportunity of observing the prosecutrix under the rigid cross-examination to which she was subjected, and in view of the whole evidence have believed her, and we are unable to say they were not justified in so doing. We are not, therefore, warranted in interposing for that cause.

It is properly said that the case is extremely close in its facts. The crime charged, in itself, is calculated to arouse indignation in the minds of a jury, especially where its commission is attended with circumstances of peculiar cruelty and atrocity, as was here shown, and the law should be given with accuracy, and nothing permitted to reach the jury that would have a tendency to improperly prejudice them against the defendant. It is insisted that the court erred in the following instruction given on behalf of the People:

“2. The court instructs the jury, as a matter of law, that where the People make out such a case as would sustain a verdict of guilty, and the defendant offers evidence, the burden is on him to make out that defense, and as to an alibi and all other like defenses that tend merely to cast a reasonable doubt on the case made by the People when the proof is in, then the primary question is,—the whole evidence being considered, both that given for the defendant and for the People,—is the defendant guilty, beyond a reasonable doubt. The law being, that when the jury have considered all the evidence, as well that touching the question of the alibi as the criminating evidence introduced by the prosecution, then if they have any reasonable doubt of the guilt of the accused of the offense with which he stands charged, then they should acquit, otherwise not.”

The vice of this instruction is said to be, that it casts discredit on the defense of alibi, and that “its effect was to impress the jury, that in the opinion of the court the State had made out a case that would sustain a verdict of guilty.” The instruction is not properly subject to the criticism made. There is nothing in the 'instruction from which an inference as to the opinion of the court could be drawn. In respect of the other objection, it must be said that it is not true, as a general or legal proposition, that the defense of alibi “tends merely to cast a reasonable doubt upon the case made by the People.” That may, and will, in many cases, be the only effect of the evidence produced to sustain it, but the defense controverts the guilt of the defendant, and if certainly and satisfactorily established, would be conclusive of the defendant’s innocence. While, in theory, it does not deny that the crime has been committed, it asserts that the defendant, during the whole of the time in which the crime is shown to have been committed, was so far removed from the place of its commission that he could not have participated in its perpetration. Miller v. People, 39 Ill. 464.

But it is not seen how the defendant could have been prejudiced by this instruction. The jury are expressly told by it, as well as by the fourth given for the defendant, that if the evidence of an alibi, when considered in connection with the criminating evidence, created in their minds a reasonable doubt of the defendant’s guilt, they must acquit. It is not questioned that these instructions gave the law accurately, and that the defendant had the benefit of every principle that could be invoked in his behalf. The defendant would have been in no better position before the jury had they been told that the defense might, under proper evidence, be conclusive, and the fact, if it is a fact, that the jury were led to believe that the defense of an alibi tended only to raise a reasonable doubt of the defendant’s guilt, in view of these instructions, could have created no prejudice against the defendant or against his defense. The law undoubtedly is, where the People have made a prima facie case, and the defendant relies on the defense of alibi, the burden is upon him to prove it,—not beyond a reasonable doubt, nor by a preponderance of the evidence, but by such evidence, and to such degree of certainty, as will, when the whole evidence is considered, create and leave in the minds ■of the jury a reasonable doubt of his guilt of the crime charged. Hoge v. People, 117 Ill. 44; Hopps v. People, 31 id. 392, and .authorities supra.

It is next urged, that the court erred in refusing the third instruction asked by the defendant. The witness Flannigan testified, that while the defendant Ackerson was at the police .station under arrest, the prosecutrix came into bis presence ■and was told to look at him, and be sure as to whether or not he was one of the men that had assaulted her. She said, in the defendant’s presence, she was sure he was one of the men, ■or the man. The witness was then asked, “What did he say?” Objection was made to the question, which was overruled, and ■exception taken. He answered, “He did not say anything— he hung his head down, and did not make any answer.” The ■court, on its own motion, ordered all stricken out except what Ackerson said. Thereupon the question was repeated, “What ■did he (Ackerson) say when she said she was sure he was the man?” The answer was, “He held his head down.” The ■defendant did not object to the answers, or move to strike them out, but, by the instruction referred to, asked the court do instruct the jury, that the fact that Ackerson made no reply do the statement of the prosecutrix, “if such was the fact, need not he taken as a circumstance against him, in any manner whatever.” The refusal to give this instruction is assigned as ■error. The question calling for declarations of the defendant was clearly unobj ectionable. It is apparent, however, that the fact that the defendant remained silent was permitted to go to dhe jury, without objection. Waiving the question of the right do raise the objection by instruction to the jury, and treating it as a motion to exclude the evidence, the instruction was properly refused.

We are referred to the cases of Commonwealth v. Kenny, 12 Metc. 235, and Commonwealth v. Walker, 13 Allen, 570, as sustaining the instruction, and as authority for the position that the presumption of acquiescence does not arise from the silence of a prisoner who is in custody. The decision of the latter case was based upon the former. The Kenny case was. peculiar in its facts, proof of the corpus delicti depending upon the supposed implied admission. But if these cases are to be-regarded as authority upon the question involved, they would seem not to be in harmony with the current and weight of authority in this country or in England. In Wharton on Criminal Law, sec. 696, (7th ed.) it is said: “Where a man at full liberty to speak, and not in the course of a judicial inquiry, is-charged with a crime, and remains silent,—that is, makes no-denial of the accusation, by word or gesture,—his silence is a circumstance which may be left to the jury.” “The assent of the party is presumed, if nothing be said by him inconsistent, with that presumption.”

An admission or confession may be implied from the conduct of a party in remaining silent, when charged with crime- or with complicity therein, or when statements are made by-third persons, in his presence, affecting him, when the circumstances afford an opportunity to act or speak in reply, and men similarly situated would naturally deny the imputed guilt, or make explanation of the statements. 1 Gfreenleaf on Evidence, secs. 197-215; Joy-on Confessions, 77; Boscoe on Crim. Ev. 53; Rex v. Bartlett, 7 Car. & P. 832; Rex v. Smithers, 5 id. 332; Jewett v. Banning, 23 Barb. 13; State v. Perkins, 3 Hawks, 377; Donnelly v. State, 2 Dutch. 463; People v. McCrea, 32 Cal. 98; State v. Pratt, 20 Iowa, 267; Perry v. State, 10 Ga. 311; Kelly et al. v. People, 55 N. Y. 565.

The ground upon which the evidence is admissible is, that-his silence, when he may and naturally would speak in denial of the statements imputing guilt, if untrue, is regarded as an acquiescence in their truth, and an implied admission of guilt. The degree of credit to be given to these tacit admissions is always to be determined by the jury, under the circumstances of the particular case. The authorities are uniform, that the evidence, when admissible, should be received with great caulion. Attention should be directed to the defendant, and to the circumstances surrounding him that would be likely to influence his action, with a view to determine, from his standpoint, the motive that induced or prompted his silence. If it be doubtful whether the statement was perfectly heard or understood by the prisoner, or circumstances existed which might prevent a reply, or render it improper or inexpedient, or Ms silence is attributable to fear, or any motive other than acquiescence in the truth of the proposition to which his silent assent is claimed, the evidence will be entitled to little or no weight, but its value is to be determined by the jury in view of the surroundings and attendant circumstances shown. 2 Phillips on Evidence, (Cowen & Hill’s notes,) 194, note, 191, and authorities supra. The prisoner, at the time the statement was made by the prosecutrix, knew he was under arrest for the crime of rape upon her, and that the purpose of her visit was to identify him as one of the parties committing it. Any declaration he might then have made would have been competent evidence, and his admission, either express or implied, of the truth of her statement, is equally admissible. Its cogency as ■evidence, and the weight to be given it, as we have seen, were to be determined by the jury. It is no,objection to the admissibility of his admissions or confessions, whether express ■or implied, that he was under arrest, if no improper influence was used to induce them, and he was free to speak in denial of them. Wharton on Crim. Law, sec. 689, note f; Kelly v. People, supra; Donnelly v. State, supra; People v. McCrea, supra; State v. Pratt, supra; Rex v. Bartlett, supra; State v. Perkins, supra.

It is lastly objected, that the court admitted improper evidence. The defendant GeM-ig was arrested on Saturday following the commission of the offense. The police officer and others were permitted to testify, over the objection of the defendants, to Gehrig’s statements, made on the evening of Ms arrest, and afterwards at the magistrate’s offie.e, on oath. These were, that he knew nothing of the rape, personally, but that on Tuesday night,—being the night of the rape,—about ten o’clock, or a little after, he was in the saloon,—where he was tending bar,—and Knorp came in at the side door, and called him down to the end of the bar, out of the hearing of others, and told him that he and the watchman had gotten into a bad -scrape over in the new buildings; that they had raped a girl, and asked his (Gehrig’s) advice what to do; that he replied, “Well, if that’s the case, you had better skip.”' It is not pretended this evidence was admitted as evidence against the defendant Aekerson. On the contrary, on objection to it by his attorney, the court said: “The objection is sustained, as far as your client is concerned.” It was, however, admitted, and was so understood, as evidence against Gehrig, and him alone, and the jury were so instructed. But it is said that the evidence was of the most damaging character to the defendant -Aekerson, and that as the evidence was improper as against Gehrig, its admission was error, which should reverse the judgment against Aekerson. Numerous cases are cited holding that an instruction to disregard evidence improperly admitted will not cure the error in its admission; but the principle there announced can have no application in this case.

It is urged that the statements of Gehrig, testified to, were exculpatory and self-serving, and not criminatory, and therefore not admissible at the instance of the People. This, if the fact that they were exculpatory would render them inadmissible when offered by the People, is a misapprehension. The corpus delicti being proved, it was competent for the People to resort to proof of collateral facts and circumstances, from which guilt or guilty knowledge might be' inferred. These are offered and admitted as evidence, not as part of the res gestee of the crime itself, but as indicative of a wicked mind. Where declarations of the accused are proved, the whole declaration must be admitted, as well that which tends to exculpate as that from which an inference of criminality may he drawn, and the jury, considering it all in the light of the other facts proved, honestly applying their own experience, must say what inference, if any, is to be drawn therefrom. It was in this view the evidence under consideration was admitted, that the jury might say whether the defendant Gehrig had volunteered a false statement of facts, from which there would arise an inference of conscious guilt, and which had induced him to seek protection in falsehood. Roscoe on Crim. Ev. 18; Wharton on Crim. Law, 714.

The evidence was proper for the consideration of the jury, in determining the guilt or innocence of the defendant Gehrig, and as to the other defendants it was carefully guarded, both in the ruling of the court and by the instructions. As the defendant Gehrig may be again put upon trial, any discussion of the inferences to be drawn by the jury, from the time and circumstances of the alleged confession of guilt by Knorp, and the exclusion therein of the third person shown to have participated in the. crime, and the like, would be manifestly improper. It is apparent, however, that the jury gave no credence whatever to the alleged confession of Knorp, and that no one was injured by its admission, unless it operated to the injury of Gehrig himself, against whom it was proper evidence. Knorp, who was alleged to have made the confession to Gehrig, was acquitted, while Gehrig was convicted.

The jury were fully and accurately instructed upon every principle of law applicable to the facts. There was ample evidence to sustain a verdict of guilty, if the jury believed that given on the part of the People and disbelieved that of the defendant, which they have done, and we are not at liberty to interfere with their finding.

The judgment of the Criminal Court will be affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Sheldon

license: Public Domain

text:
    Benjamin H. Bean v. The People of the State of Illinois.

      Filed at Ottawa May 9, 1888.

    1. Cbiminaii law—prosecution for rape—evidence■—of the complaint filed, as showing a different time. On the trial of one for rape; the prosecutrix testified that the rape was committed on the evening of May 19. The defendant offered in evidence the complaint of her brother, who was not a witness, made on May 28, alleging the offense to have been committed on that day, which, on objection, the court refused, to admit: Held, that the ruling of the court was proper.
    2. Same—statements as to the date of another transaction. On the same trial, for an alleged rape on May 19, the defendant offered to prove that on May 23 a brother of the prosecutrix proposed the name of the accused for leader of a band, of which they were members, which the court excluded: Held, that the evidence was not competent, except to impeach the testimony of the brother in case a proper foundation had been laid.
    3. Same—complaint by the prosecutrix to her family, of the alleged rape—of proof thereof. The fact that the prosecuting witness, immediately after the alleged rape, made complaint to her father, may be shown to sustain her testimony that she did make such complaint, but not as to the fact who committed the rape. It would be proper, in such case, to instruct the jury, that her telling her father of the assault was a circumstance tending to sustain the truth of her statement on the trial that such an assault was made.
    4. On a trial for rape, the court instructed the jury, that if they believed, from the evidence, that the prosecuting witness told her father of the assault alleged to have been made on her, at the earliest opportunity, then that was a corroborating circumstance, tending to sustain the truth of her statements: Held, that while the instruction was, strictly, too broad, in its use of the term “statements,” there was no substantial error in it, and that it was not open to the charge of singling out a part of the facts, and thereby giving them undue prominence.
    5. Same—instruction as to act being against the will. On such a trial, it is prope'r to instruct the jury that the question of the act being against the will of the prosecutrix is to be determined upon consideration of all the facts and circumstances proved on the trial. But if some of the circumstances, of but little force or weight, are named, as, the acquaintanceship of the parties, or their relative physical strength, this will not render the instruction erroneous.

      6. Instruction—on question of reasonable doubt. As what is a reasonable doubt is liable to be misconceived by a jury, an instruction telling them what it is, at some length, may be excused, when the several propositions are correct.
    7. Sew trial — newly discovered evidence. A new trial will not be granted on the ground of newly discovered evidence which is merely cumulative, and which is not decisive, or when there has been a want of proper diligence to procure the evidence on the trial.
    Writ of Error to the Circuit Court of Winnebago county; the Hon. 0. H. Horton, Judge, presiding.
    Mr. Charles E. Fuller, for the plaintiff in error:
    The circumstances surrounding the alleged assault should be closely scrutinized, and the defendant’s rights guarded, as the charge is easily made and hard to be defended against. People v. Huler, 3 Hill, 399; Hale’s P. C. 635; Sherwin v. People, 69 Ill. 59; 1 Blackstone’s Com. 215; 1 Russell on Crimes, 691; Austine v. People, 51 Ill. 236.
    Even to convict of an assault with intent to commit a rape, the jury must be satisfied not only that the prisoner intended to gratify his passion on the prosecutrix, but also that he intended to do so at all events, and notwithstanding any resistance on her part. Rex v. Lloyd, 7 C. & P. 318; 3 Jacob’s Fisher’s Digest, 3573.
    The jury should be satisfied, not merely that the act was in some degree against the will of the woman, but that she was, by physical violence and terror, fairly overcome, and forced against her will, she resisting as much as she could, and so as to make the prisoner see and know that she was really resisting to the utmost. Regina v. Rudland, 4 F. & F. 494; 3 Jacob’s Fisher’s Digest, 3579.
    To constitute a rape on a woman conscious and capable of giving consent at the time of connection, there must be actual resistance of the will. Non-resistance to connection, by a woman conscious and capable of consenting, amounts to consent. Regina v. Borrow, 38 L. F. M. G. 20; 1 L. R. C. C. 156; 3 Jacob’s Fisher’s Digest, 3579.
    One of the strongest corroborating circumstances is stated to be, “if she showed circumstances and signs of the injury, whereof many are of that nature that women only are proper examiners.” (1 Russell on Crimes, 688; 1 East’s P. C. chap. 10, sec. 7.) And if the signs do not exist, and are not proved, “if the place where the act is alleged to have been committed was near to personé by whom she might probably have been heard,” etc., “these and the like circumstances afford a strong, though not conclusive, presumption that her testimony is feigneri.” 1 Russell on Crimes, 689; 4 Blackstone’s Com. 213, 214.
    The state and appearance of the prosecutrix, marks of violence upon her person, and the torn and disordered state of her dress recently after the transaction, at the time of complaint, are material circumstances. 2 Starkie, 241; 4 Blackstone’s Com. 214, note 10.
    A law treatise- ought not to be given to the jury as an instruction. Dunn v. People, 109 Ill. 635.
    The particulars of the complaint of the prosecuting witness are not evidence of the truth of her statements. Rex v. Brador, 1 East’s P. C. 444; Rex v. Clarke, 2 Starkie, 241; People v. Crouch, 2 Wheeler C. C. 42; Wharton on Crim. Law, (original ed.) 296.
    The particulars of her complaint are not evidence at all, and tend to prove nothing. It is “the state and appearance of the prosecutrix, marks of violence upon her person, and the torn and disordered state of her dress recently after the transaction, at the time of complaint, ” that are the “material circumstances which are always admissible in evidence.” 4 Blackstone’s Com. p. 214, note 10; 2 Starkie, 241; Regina v. Mercer, 6 Jut. 243; 3 Jacob’s Fisher’s Digest, 3584.
    A person to whom the prosecutrix made a complaint very recently after the offense, as she was on her way home, may be asked whether she named a person as having committed the offense, but not whose name she mentioned. Regina v. Osborne, Car. & M. 622.
    The mere fact, and that only, of the prosecutrix making complaint of the outrage, and the state in which she was at the time of making the complaint, are evidence. Regina v. Walker, 2 M. & R. 212; Rex v. Clarke, 2 Starkie, 241; 1 Russell on Crimes, 689, note c.
    Not even the name of the party can be shown. Rex v. Wink, 6 C. & P. 397.
    Mr. George Hunt, Attorney General, and Mr. Charles A. Works, State’s Attorney, for the People.
   Mr. Chief Justice Sheldon

delivered the opinion of the Court:

At the October term, 1887, of the Winnebago circuit court, the plaintiff in error was indicted for, tried, and convicted of the crime of rape, and sentenced to imprisonment in the penitentiary for one year. He brings this writ of error for the reversal of the judgment.

It is insisted that the evidence does not support the verdict. It appears from the testimony, that the alleged offence was committed upon the prosecutrix in her father’s garden, about twelve rods from the house, on the evening of May 19,1887,— a pleasant evening, when it was “middling light,”—at about seventeen minutes past eight o’clock, or just as the 8:17 train pulled out of the station. Her father’s house was on the west side of the river, in Cherry Valley, (a village of some six hundred inhabitants,) on high ground, and the place in the garden where the assault was claimed to have taken place, was in full view of the hotel, mill, and most of the business places of the town. Her father was in the house, in bed, and the front door was open. There was a house just across the alley, where Mr. and Mrs. Kettle lived, and a Swede family lived in another house near by. The accused was the family physician. His weight was about two hundred pounds. The prosecutrix was twenty-two years of age, and weighed about one hundred and twenty-seven pounds. Her story is, that she stood by a four-board fence of the garden, leaning her arms on the fence, watching the train, when, all at once, without her having previously seen him, the defendant grabbed her from the other side of the fence, said he was there for the purpose of getting the best of her, climbed over the fence, pulled her some distance, threw her down upon the ground, and violated her person. She states that she made all the resistance in her power, describing particularly what she did; that she cried out loud all the tim.e,—as loud as she had the strength to cry,—though in describing the particulars in that respect they do not show very satisfactorily that outcry to such extent was made. Her father testifies, that somewhere near half-past eight o’clock that evening, she came to his room, where he was in bed, and made complaint of the assault. Her two brothers, Maurice and George Beid, testify that on the evening in question they met the accused on the west side of the river, in Cherry Valley, some twenty-five or thirty rods from their father’s place, and went directly home; that on going into the house they found their sister crying and sobbing, and in answer to inquiry what was the matter, she told of the occurrence. They say her hair was all down, and the back of her clothes was all dirt. There is no testimony directly contradicting any of these statements. The facts testified to certainly tended to prove the commission of the cime alleged, and if the jury believed the testimony, we could not say that they were not justified from it in finding that the offence charged had been committed. There is somewhat of an air of improbability, that, under all the circumstances disclosed by this record, the crime charged in the indictment should have been committed by this defendant. But the question of the credibility of witnesses is one peculiarly for the jury, and we think their finding in that respect must in this ease he accepted as final. We do not think there is warrant for saying that the verdict is not sustained hy the evidence.

On May 28,1887, a complaint, before a justice of the peace in Winnebago county, was made and sworn to by J ames Beid, the brother of the prosecutrix, charging the defendant with the offence for which he ‘was indicted, and alleging that the offence was committed on the 26th day of May, 1887. This complaint was offered in evidence by the defendant on trial under the indictment, and its exclusion by the court is urged as error. James Beid was not a party. He was not a witness upon the trial, and there is no ground shown to make his statement on another occasion, under oath or otherwise, competent evidence in the case.

Defendant offered to prove by the witness Crompton, that himself and Maurice Beid, and others, were .present at a band meeting in Cherry Valley, on May 23, 1887, and that Maurice Beid then proposed the name of the defendant for leader or director of the band. On objection, this offered evidence was excluded by the court, and exception taken. We do not perceive on what ground this evidence was competent, except for the purpose of impeachment of the witness Maurice Beid, and no proper ground had been laid in his examination, by calling his attention to the matter of such proposal, to render the evidence admissible for the purpose named.

Complaint is made as to the giving of instructions on behalf of the People. The first instruction is complained of, which relates to the meaning of “reasonable doubt.” It is said this instruction might answer for a treatise on the subject of reasonable doubt, and that a law treatise ought not to be given to the jury as an instruction. What is a reasonable doubt is liable to be misconceived by a jury, and in order to their full understanding of its import somewhat of amplification may he excusable. The instruction is rather unusual in length, upon the subject, it consisting of seven specifications of what is, and what is not, a reasonable doubt. It is not claimed that any one of the statements is incorrect, and we believe that they have all received the sanction of this court. We can not hold that the instruction is erroneous.

It is said the third instruction, relating to the law as to penetration, is not based on any evidence in the case. We think otherwise. The witness says- there was sexual intercourse.

The fifth instruction is as follows:

“The court instructs you, that if you believe, from the evidence, that the prosecuting witness told her father of the assault alleged to have been made on her, at the earliest opportunity, then that is a corroborating circumstance tending to sustain the truth of her statements.”

As the witness, in the complaint to her father, as well as in her testimony, had stated that the defendant was the offending party, it is said this instruction informed the jury that telling her father of the assault was a corroborating circumstance tending to sustain the truth of the witness’ statement that the defendant was the person who committed the offence, and ■that the particulars of her complaint are not evidence of the truth of her statements. The complaint made by the witness was proper evidence only of the fact of making complaint, and not of who the person was that committed the offence. On the giving of the evidence of the complaint, no objection was made to the statement of the name of the person involved. The instruction was, strictly, too broad in its use of the term “statements.” The instruction might properly have been more guarded, and have said that the prosecuting witness’ telling her father of the assault was a circumstance tending to sustain the truth of her statement, on. trial, that such an assault was made. In that form the instruction was unobjectionable. This was the substantial meaning of the instruction given, and was probably so accepted. We do not think the instruction erroneous, as is claimed, in singling out a portion of the facts and giving undue prominence thereto.

By the seventh instruction the jury are directed, in determining whether sexual connection, if had, was against the will of the prosecutrix, to “take into account all the surrounding circumstances, the acquaintanceship of the parties, the relative pthysical strength of the defendant and the complaining witness, the condition as to fear, or otherwise, in which the complaining witness then was, * * * as well as all other facts and circumstances proved on the trial.” It is objected to this instruction that it is difficult to see how the fact of the acquaintanceship of the parties, or of their relative physical strength, tended to prove that the sexual act, if committed, was against the will of the woman. The instruction did not say what weight these facts should have in determining this question, or that they should have any weight, but that they, and all other facts and circumstances proved on the trial, should be taken into account in determining the question. Because there was mention made of one or two weak or immaterial circumstances, we do not think it should have the effect of making the instruction erroneous, and reversing the judgment,—the instruction being, essentially, that the question of the act being against the will of the prosecutrix, was to be determined upon consideration of all the facts and circumstances proved on the trial.

It is further objected to the instruction, that it is faulty in singling out particular facts, and calling special attention of the jury to them. The instruction is not, in our view, so objectionable in this respect as to make it fatally defective. "Very many of the instructions asked and given for the defendant were equally, and even more, obnoxious to this objection. There were twenty-five instructions given on behalf of the defendant, instructing the jury most fully and favorably for the defendant, upon every aspect of the defence. We find no substantial error in any of the instructions given on behalf of the People, and that plaintiff in error has no just cause of complaint on .the score of instructions.

It is finally urged, as a ground for reversal of the j udgment, that the court erred in not granting defendant’s motion for a new trial because of newly discovered evidence, shown by affidavits of the defendant, C. Wycliff Loomis, Lyman Ward, Edward Bowley, Henry Cruikshank and Benjamin C. Kimhlin.

On the trial the witness Olney testified, that on the 26th day of May, 1887, she saw the prosecutrix talking with the defendant on the bridge in Cherry Valley; that she wanted him to come up to her father’s place,—her father’s; that defendant said he could not—he had to go into the country. She said, “Come up as soon as you can.” The witness Brown testified, on the trial, to seeing defendant on the bridge in Cherry Valley some time in May, 1887, when the prosecuting witness came along and spoke to defendant, and said she was sick, and wanted him to come up, and he said he had got to go into the country, and could not; that Olney. was present. The affidavits of Ward, Bowley and Cruikshank were only to the effect that on May 26, 1887, they saw the defendant and the prosecutrix engaged in a conversation on the bridge in Cherry Valley. Defendant says in his affidavit, that, relying ón the testimony of said Olney and Brown, he did not seek for or call other witnesses. These affidavits do not show any evidence newly discovered since the trial, and the additional evidence is but cumulative to that of Olney and Brown, in no manner conclusive, and manifestly affords no ground for a new trial, to give opportunity for the introduction of this evidence.

Kimhlin is the keeper of a billiard hall in Cherry Valley, and Loomis a traveling salesman, residing at Garden Prairie, Illinois. Their affidavits are to the effect, that on the 19th day of May, 1887, the defendant came into the billiard hall of Kimhlin, in Cherry Valley, at about the hour of seven o’clock P. M.,- of that day, and remained there continuously until after the hour of nine o’clock P. M., of that day. Loomis says that defendant was somewhat under the influence of intoxicating liquors at the time, and Kimhlin says that defendant was considerably intoxicated. Loomis states, that by reference to his note-book and memorandum which he kept, he is absolutely and certainly sure that the defendant was in said billiard hall during and between the hours aforesaid. The defendant, in his affidavit, states the same as to his being in the billiard hall all the time mentioned; that he did not know, or could "not remember, the persons who were present, except that he recollected the proprietor, Kimblin, was there, and two or three others, whom he took to be railroad men. Both he and Kimblin state, that, previous to the trial, defendant made repeated applications to Kimblin for information as to what the latter knew about defendant being in the billiard hall at the time, and for the names of the persons who were present there, and that Kimblin invariably told defendant that he had better not call him, Kimblin, as a witness for defendant, on his trial; that he could and would do him no good as a witness; and that Kimblin also refused to tell defendant the names of any persons who were present in the billiard hall during said evening, or to give him any information that would lead to their discovery. Kimblin states, as his reason for so doing, that he had special reasons, peculiar to himself and his business, for not divulging to the defendant the requested information, and that he then thought and believed that he would suffer pecuniary loss, and might, perhaps,' be subjected to prosecution under the gaming laws of this State, if it should appear to the public who were present on the evening of the said 19th day of May, 1887.

It thus appears that defendant, before the trial, knew that there were persons present with him in the billiard hall, and what he has discovered since the trial is the name of one of the persons who was present,—Loomis. We are of opinion there was not sufficient diligence in procuring this testimony upon the trial. Kimblin might have been subpoenaed to attend as a witness on the trial. Application might have been made to the court for a Continuance of the cause, in order to give time for the ascertainment of the names of the persons present at the billiard hall, and afford opportunity for the procurement of their testimony upon the trial. No such application was made,, nor was Kimblin subpoenaed. The latter’s statement that he could not help defendant in any way by his testimony, and that defendant had better not call him as a witness, as he would do him no good, can not be taken as a sufficient excuse' for not procuring the attendance of Kimblin as a witness. All due diligence must be exacted of parties in making preparation for trial. If a party, before trial, knows of the existence of needed testimony, he should exhaust all reasonable means in his power to secure the evidence upon his trial. If he fails to do so, and chooses to take the risk of going into trial in the absence of the testimony, and there be an adverse verdict, he should be left to abide the consequence, and not have granted to him a new trial for the purpose of the procurement of such testimony upon another trial. Any other practice would be pernicious in its operation. Were this additional testimony had upon another trial, it would not be at all conclusive of the result. There would then be an equipoise of witnesses upon the point of the alibi,—three witnesses (defendant, Kimblin and Loomis) for, and three (the prosecutrix and her two brothers) against, an alibi.

We think the motion for a new trial upon the ground of newly discovered evidence was properly overruled.

Finding no material error in the record, the judgment must be affirmed.

Judgment affirmed.

Mr. Justice Cbaig, dissenting.


author: Mr. Justice Magruder

text:
    The First National Bank of Michigan City et al. v. Simon D. Haskell et al.

      Filed at Ottawa May 9, 1888.

      Practice—trial by the court without a jury—how to preserve questions for review. Where there is a trial before the court, without a jury, in order to present a question of law to this court the parties should present propositions of law to the trial court, as provided for in section 42 of the Practice act.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Hervey H. Anderson, for the appellants.
    Messrs. Tenney, Bashford & Tenney, for the appellees.
   Mr. Justice Magruder

delivered the opinion of the Court:

On October 13,1884, appellees commenced a suit in attachment, in the Superior Court of Cook county, against William Mellors & Son, residents of the State of Indiana, to recover an indebtedness of $2074.02 for goods sold and delivered. The .attachment writ was served upon the appellants as garnishees, the bank having been served October 18, 1884, and Einstein & Rosenthal October 13, 1884.

Interrogatories were filed to be answered by the garnishees; the garnishees' filed their answers and the answers were traversed by the plaintiffs. Mellors & Son made no defense to the claim, and judgment by default was rendered against them for the full amount of then indebtedness to the plaintiffs.

Upon the issues made by the interrogatories and the answers thereto, the cause was submitted by agreement to the court j for trial without a jury; the finding was in favor of the plaintiffs; new trial was refused and judgment rendered against the bank for $1683.68, and against Einstein & Bosenthal for $1540.08, the latter to be satisfied on payment of the former.

Upon appeal to the Appellate Court of the First District, the latter court has affirmed the judgment of the Superior-Court, and the case comes before us upon the appeal of the garnishees from the judgment of the Appellate Court.

Einstein & Bosenthal, who lived in the city of Chicago, held, as bailees, certain money and property belonging to Mellors- & Son! It is claimed, that Mellors & Son, being indebted, on October 7, 1884, to the First National Bank of Michigan-City in-the sum of $1780 on their note for that amount, executed to the bank on the latter day a transfer, assignment or bill of sale of all the money and effects belonging to them,, which were then in the hands of Einstein & Bosenthal, and. directed the latter to deliver possession of such money and. effects to the bank. On October 8, 1884, Einstein & Bosenthal paid the bank $143.60, which sum was credited on the-note for $1780 on October 11, and sold the goods, which they-held for the bank after October 7, for $1540.08, but were garnisheed before the money was paid over. The $1540.08 was, paid to the bank on October 17 and credited on the note on October 18, 1884, leaving a small balance still unpaid.

On October 8, 1884, Mellors & Son also gave the bank a. chattel mortgage on chattels in Michigan City, Indiana, to secure what might remain unpaid of the $1780, after applying-the Chicago property. On the same day Mellors & Son, in. Indiana and under Indiana law, made an assignment for benefit of creditors to one Blinks, including in such assignment the-property embraced in the chattel mortgage and leaving out. the money and property in Chicago.

• The question before the trial court was whether the bank, was the owner of the money and effects in the hands of the bailees in Chicago, or whether such money and effects belonged to Mellors & Son so as to entitle appellees to subject them to-the payment of their debt through the attachment suit. Involved in the question thus stated was the validity of the transfer from Mellórs & Son to the bank and of the assignment to Blinks and also of the chattel mortgage.

We are obliged to hold in this case, as we have held in a number of other cases, that there is nothing before us for our consideration. We can not consider any of the questions of fact, because they are all settled by the judgment of the Appellate Court. We can not consider the questions of law suggested by counsel, because the trial in this case took place before the court without a jury and no “written propositions to be held as law in the decision of the case” were submitted to the trial judge in accordance with section 42 of the Practice .act. This point is made by the appellees, so that we can not avoid passing upon it, and we must adhere to our former ruling. Where there is a trial before the court without a jury, in order to present a question of law to this court, the party should submit propositions of law to the trial court, as provided for in the section referred to. Mutual Aid Association v. Hall, 118 Ill. 169.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.


author: Mr. Justice Craig

text:
    The City of Chicago v. Eliza T. Porter et al.

      Filed at Ottawa May 9, 1888.

    Bill oe exceptions—when necessary—in order to preserve a question for review. In the absence of a bill of exceptions showing upon what ground the court below dismissed a petition to condemn land for a public use, it will be presumed that the action of the court was fully authorized by the facts before it.

      Writ of Error to the Superior Court of Cook county; the • Hon. Joseph E. Gary, Judge, presiding.
    Mr. James P. Root, for the plaintiff in error.
    Mr. E. A. Otis, for the defendants in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was a petition brought by the city of Chicago, in the Superior Court of Cook county, to condemn a portion of certain lots for public use. The Superior Court, on motion of one of the defendants, dismissed the petition, and the ruling of the court on the motion is assigned for error.

The record contains no bill of exceptions. There is therefore nothing to show upon what ground the court dismissed the cause. In the absence of a bill of exceptions showing upon what ground the court dismissed the petition, this court will presume that the action of the Superior Court was fully authorized by the facts before it. In Bulger v. Hoffman, 45 Ill. 352, where an appeal was dismissed in the circuit court, and the record contained no bill of exceptions, it was held: Where an appeal from an inferior court to the circuit court of Cook county was dismissed, it will be presumed, in the absence of a bill of exceptions preserving the ground of dismissal, that it was for non-compliance with some proper order or rule of court. The same principle must apply here. In the absence of a contrary showing, we will presume in favor of the judgment. If the plaintiff in error was not satisfied with the judgment dismissing the petition, the facts upon which the court acted should have been preserved in a bill of exceptions, and then the decision of the court might have been reviewed on appeal or writ of error.

No error appearing in the record, the judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Mulkey

text:
    Henry Wulff v. J. Frank Aldrich.

      Filed at Ottawa May 9, 1888.

    1. Fees and salaries—compensation of cownty officers—by whom to be fixed. Under the constitution of 1870, the county boards alone have the right and power to fix the compensation of county officers, except that of clerks of courts of record, of the treasurer, sheriff, coroner and recorder of the county of Cook.
    2. Same—county board of Cook county—by whom the compensation of its members may be fixed—constitutionality of the statute on that subject. Section 39 of chapter 53, of the Revised Statutes, fixing the per diem compensation of a member of the county board of Cook county at two dollars and a half, is in violation of section 10, of article 10, of the constitution, and therefore void. The county board of Cook county is alone invested with the power to fix the compensation of its own members.
    3. Same—the compensation of what officers may be fixed by the legislaturre. The legislature, in express terms, is invested with the power to fix the pay of all officers connected with the legislative, State, executive and judicial departments of the government, by specific provisions of the constitution.
    4. Constitutional law—presumption in support of legislative acts. It is settled law, that the presumption is in favor of the constitutionality of every legislative act, and that in cases of doubt every possible presumption and inference will be made in favor of the constitutionality of the act in question, and that the courts will only interfere in cases of clearly unquestioned violation of the fundamental law.
    Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.
    Mr. H. S. McCartney, for the appellant.
    Mr, E. R. Bliss, for the appellee.
   Mr. Justice Mulkey

delivered, the opinion of the Court:

On the 22d day of November, 1887, J. Frank Aldrich filed a petition in the circuit court of Cook county, against Henry Wulff, county clerk of said county, praying for a peremptory writ of mandamus, to compel him, as county clerk, to draw a warrant on the county treasurer for the amount of an allowance made the petitioner by the board of county commissioners on account of his services as a member thereof, and of mileage in going to and returning from the meetings of said board, the compensation being so fixed at the rate of five dollars a day, and five cents a mile going and returning. The court overruled a demurrer to the petition, and the defendant declining to answer further, the court entered an order awarding a peremptory writ of mandamus, as prayed, to reverse which this appeal is prosecuted.

The appellant’s refusal to draw his warrant on the treasurer is based entirely on the provisions of section 39, chapter 53, of the Revised Statutes, which fix the per diem compensation of a commissioner at two dollars and fifty cents, instead of five dollars, as allowed by the board, which, of course, affords a complete answer to the action, if that section is a valid law. Judge Tuley, who heard and decided the case in the circuit court, in holding the section of the statute cited unconstitutional, delivered the following opinion, which we fully approve, and reproduce it as an expression of our own view on the subject:

“The question presented by the pleadings in this case is as to the constitutionality of an act of the General Assembly of this State, in force July 1, 1872, section 39 thereof providing that the pay of a member of the board of commissioners of Cook county shall be two dollars and fifty cents per day for the time actually and necessarily engaged in discharging the duties of a member of such board, and five cents each way for necessary travel. The question is, whether or not this act is in conflict with section 10, of article 10, of the constitution of 1870,—or, in other words, whether the legislature or the county board of Cook county has the power to fix the pay of the commissioners of the board. The fact that the legislature,—a co-ordinate branch of the government,—has, by the passage of the act in question, given a practical construction to the constitution, must have great weight with the court in determining the question here presented.

“The provisions of the constitution bearing upon this question are sections 5, 7, 8, 9 and 10 of said article 10, but more particularly sections 8, 9 and 10.

“Section 7 provides that the county affairs of Cook county shall be managed by a board of commissioners of fifteen persons, ten of whom, shall be elected by the city of Chicago, and five by the towns outside of said city.

“Section 8 provides that in each county there shall be elected the following county officers: A county judge, a county clerk, a sheriff and treasurer, and in counties having more than sixty thousand inhabitants, a recorder of deeds. As this section stood at the time of the passage of the- act of 1872, it included among such county officers the county surveyor.

“Section 9 provides that clerks of all the courts of record, the treasurer, sheriff, coroner and recorder of deeds of Cook county, shall receive as their only compensation for their services, salaries to be fixed by law, * * * which shall, in no case, be as much as the lawful compensation of the judge of the circuit court of said county, and shall be paid, respectively, out of the fees of the office, when collected, * * * the number of deputies and assistants to be determined by a rule of the circuit court.

“Section 10 provides, ‘that the county board, except as provided in section 9, shall fix the compensation of all county officers, with the amount of their necessary clerk hire, stationery, fuel, and other expenses, and in all cases where fees are provided for, such compensation shall be paid out of, and shall in no instance exceed, the fees actually collected. They shall not allow either of them more per annum than §1500 in counties not exceeding twenty thousand inhabitants, etc., * * ' * and §4000 in counties containing more than one hundred thousand inhabitants and not exceeding one hundred and fifty thousand inhabitants, and not more than $1000 additional compensation for each additional one hundred thousand inhabitants: Provided, that the compensation of no officer shall he increased or diminished during his term of office.’

“It is settled law that the presumption is in favor of the constitutionality of every legislative act,—that in cases of doubt, every possible presumption and inference will be made in favor of the constitutionality of the act in question, and that the courts will only interfere in cases of clearly unquestioned violation of the fundamental law. Our Supreme Court say, in Lane v. Foreman, 2 Scam. 238 : ‘The courts will not interfere unless it is clear that the legislature has transcended its authority,’ and that the question for the court is, ‘whether the will of the representative, as expressed in the law, is or is not in conflict with the will of the people, as expressed in the constitution.’

“The particular words relied upon as giving the power of fixing the compensation of the commissioners of the county board, are found in section 10: ‘The county board, except as provided in section 9 of this article, shall fix the compensation of all county officers.’ It must be admitted that the commissioners of the county hoard of Cook county are not only officers, but are county officers, and the term, ‘all county officers,’ is certainly broad enough to include them. But in the construction of the constitution, as well as of laws, the constitution is not to be interpreted strictly according to the words used in a particular clause or part of a clause. The whole clause, and in fact the entire constitution, must he referred to, with a view to ascertain the sense in which the words were employed. Let us first consider section 10 in all its parts.

“Section 10 appears clearly to embrace county officers to whose offices fees are attached, and those having no fees. The limitation upon the amount of the allowance,—that ‘they shall not allow either of them more per annum’ than the specified amounts, varying with the number of inhabitants,— is clearly a limitation upon the salaries of officers with and ■ officers without fees. The officers clearly may be officers who may or who may not need an allowance for clerk hire, stationery, fuel, or other expenses. It would appear, then, to be clear, from the consideration of section 10 alone, that the county officers referred to there are all the officers of the county except those specified in section 9.

“Section 9 in effect provides that the legislature shall fix the compensation of all clerks of courts of record, of the treasurer, sheriff, coroner and recorder of the county of Cook. But these are not all the county officers of Cook county. Not included are the county surveyor, the superintendent of schools, the county judge, the probate judge, and the commissioners of , the county board of Cook county. If the county officers enu- 1 merated in section 8 were the only officers whose election is provided for, there might be some reason to contend that the county officers referred to in section 10 were those enumerated in section 8. But section 6 provides for the election of certain county officers, to-wit: three commissioners in counties not under township organization, to be known as the board of county commissioners; and section 7 provides for the election of fifteen commissioners, to compose the board of county commissioners of Cook county. The term, ‘all county officers,’ must be held to embrace all the county officers of each county in the State, including the county officers of Cook county that ■ are not specified in section 9.

“There would be no question, for instance, that the county hoard’ of Cook county had power to fix the compensation of the surveyor of Cook county, he being one of 'the officers enumerated in section 8, but omitted from the enumeration of. Cook county officers in section 9, whose compensation is to be fixed by the legislature. This alone would demonstrate that section 10 was intended to refer to Cook county, as well as to all other counties. The question occurs, then, is there any other provision in regard to the-appointment of county officers contained in this article upon counties, or elsewhere in the constitution, which will throw any reasonable doubt upon the intention of the legislature to confer the power on the county board to appoint all county officers, because if there exists such reasonable doubt, the legislative act must stand. Except in section 10, there is not to be found in article 10, on counties, any words which, by any possible construction, can be said to relate to the fees, compensation or salaries of the members of the board of county commissioners of Cook county, or of the county board of any other county in the State. A large number of counties in this State are governed, under the present constitution, by a board of three county commissioners, provided for in section 6 of article 10.

“There can be no doubt but’ that the legislature would have the power to fix the compensation of any public officer, without express words in the constitution donferring such power. Without constitutional limitation, the power of the General Assembly to make laws is absolute. Was it the intention of . the convention that this general power should be exercised by the legislature, as to the salaries or compensation of the members of the different county boards ? A reference to the different provisions of the constitution, concerning the mode of fixing the compensation of the various public officers of the State and of counties, will, in my opinion, throw some light upon the question here submitted.

“In the legislative department the provision is, that the members of the General Assembly shall receive five dollars per day for the first session, and thereafter such ‘compensation as shall be prescribed by law.’ As to the Governor and the executive State officers, it is provided that they shall receive for their service, ‘a salary to be established by law.’ .As to the members of the judicial department of. the government, the judges of the Supreme Court were provided with a salary of $4000, ‘until otherwise provided by law.’ All the circuit judges ‘a salary of $3000 per annum, until otherwise pro-Tided by law,’ The judges of the county court, and the judge of the probate court, when established, have no salary fixed in the constitution, but are covered by a general provision to be noted. The State’s attorney of the county of Cook, it is provided, shall receive the same salary as the State’s attorney in other counties, together with such further compensation as the county of Cook may give him; and all clerks and other officers, concerning whom no express provision is made, are included in the provision which reads as follows: ‘All officers, where not otherwise provided for in this article,’ (6) ‘shall perform such duties and receive such compensation as is or may be provided for by law.’ As to the county superintendent of schools, it is provided that his powers, duties, compensation, etc., ‘shall be prescribed by law.’

“The foregoing citations, it will be noticed, provide the manner of fixing the compensation of all public officers except county officers. We thus see that the legislature, in express terms, is invested with the power to fix the pay of all officers connected with the legislative, State, executive and the judicial departments of the government, by specific provisions in the constitution, heretofore referred to. When we come to the compensation of county officers, we find no" express provision for the legislature fixing the pay of any county officer, except those especially named in section 9, article 10, to-wit: ‘The clerks of all the courts of record, the treasurer, sheriff, coroner and recorder of deeds of Cook county.’ It therefore appears that as to the fixing of the compensation of county officers, (except those specified in section 9,) there is a radical departure made in the constitution, from the policy adopted as to fixing the compensation of all the other public officers of the State. Also a radical departure from the constitution of 1848, and other prior constitutions, in this respect. The question recurs, whether there was any reason for such radical change of policy.

“The constitution of 1870 was a radical innovation upon the prior constitutions of this State. It may be said to be a constitution with many and peculiar limitations. The severest criticism I remember to have heard upon it was, that it is based upon the theory that all men are dishonest,—all office holders, particularly. While previous constitutions gave us the mere skeleton or frame-work of government, leaving the legislature to supply the substance, this constitution appears, by its many limitations, to have-gone to a greater extreme in legislating for the future conduct of the government than any prior constitution of this State, or that of any State of the Union. Its excellence and superiority over former constitutions is unquestioned. Having taken such peculiar pains to provide in what manner the compensation of all public officers should be determined, by what authority it should be' fixed, arid having designated the legislature of the State as the authority for fixing the compensation for all such officers, (except county officers,) the question is why'the legislature was not expressly given the power,—if that was the intent of the framers of the constitution,—to fix the' compensation of the county officers. The answer would be, necessarily, that the framers of the constitution did not intend to confer the power upon the legislature, if words can be found which vest the power elsewhere.

“References to the proceedings of a constitutional convention are sometimes resorted to by the courts in order to find reasons for a particular action of the convention. They are not resorted to for the purpose of construing away any express language of the constitution, or even for the purpose of construing what may be doubtful. ‘When the inquiry is directed,’ says Judge Cooley, ‘to ascertaining the mischief designed to be remedied or the purpose sought to be accomplished by a particular provision, it may be proper to examine the proceedings of the convention which framed the instrument. Where the proceedings clearly point out the purpose of the provision, the aid will be valuable and satisfactory.’ (Cooley’s Const. Lim. 63, and cases cited.) In referring to the proceedings of the; ■constitutional convention of 1870, it appears there was much debate on this particular section 10 of article 10. One great evil sought to be remedied was, that certain officers,—county officers and clerks of courts of record,—had previously been receiving princely salaries from their offices, in the shape of fees, running from $20,000 to a town collector, for three months’ work in a year, to $60,000 per annum to a circuit clerk in the county of Cook. In that debate, it appears it was stated that one object of this provision was ‘to disenthrall the legislature’ from the influences which experience had demonstrated had theretofore been brought to bear, by such officers, to increase their fees and salaries. The fees and salaries of county officers varied greatly in the counties throughout the State.

“Such acts were passed, as, for instance, ‘to increase the fees of certain officers in forty-eight counties,’ ‘regulating the fees of certain officers in counties therein named,’ ‘to regulate the compensation of sheriffs and collectors in certain counties,’ and often an act to regulate them in a single county. Acts of this kind were passed in favor of certain officers, clerks, sheriffs, coroners, supervisors, by combinations among such officials, and by influences brought to bear upon the legislature which it appeared impossible for it to resist, so that two-thirds of the counties of the State were under the operation of special laws in regard to fees and salaries of the officers. It was stated that in the last session of the legislature preceding the constitutional convention, no less than eighty-five bills were passed, specially regulating the fees and compensation of public officers. It appears, also, that in the debate the attention of the convention was called to the fact that the language of section 10, by which the county board was given power to fix the compensation of all county officers, was broad enough to include other county officers than clerks, sheriffs, treasurers, coroners and surveyors, by a substitute that was offered by Mr. Washburn, that ‘the board of county commissioners of each county shall fix the maximum compensation of each county officer, except sheriff, county treasurer, and county commissioners. Such compensation shall he fixed by the General Assembly, which shall be paid in fees, not to exceed $2000 in any county/ and grading it according to the number of inhabitants. That substitute was voted down, but it demonstrates to my mind that the attention of the convention was called to the fact that the term, ‘all county officers/ as embraced in section 10, was broad enough to include county commissioners.

“This section 10, at the time the debate referred to was going on, was intended to apply to all counties in the State, and the limitation of $1000 for every additional one hundred thousand inhabitants was added upon the request of the member from this county,—Mr. Joseph Medill. Subsequently, it was thought best to exempt Cook county, in part, at least, from its operation, and section 9 was proposed, which authorizes the legislature to fix the compensation of a portion of the officers of Cook county,—i. e., the clerks of courts of record, the treasurer, sheriff, coroner, recorder of deeds and surveyor. This made it necessary to limit the power of county boards, given by section 10, to fix the compensation of all county officers, by inserting the words, ‘except as provided in section 9’ thereof, leaving section 10 to apply to Cook county only so far as it concerned officers not embraced in section 9.

“I am of the opinion that it was the intent of the framers of the constitution to make a radical departure from previous methods as to fixing the compensation of county officers; that it was the intent not to confer the power on the legislature, ' which had shown itself susceptible to the influences of county officers, and unable to resist them, but to devolve it upon the county boards of the respective counties. Larger powers of legislation were conferred upon counties than had previously been conferred'; and it was the intent, it appears to my mind, to assimilate county government somewhat to municipal govemment. In fact, in this constitution, counties are, for the first time, recognized expressly as municipal corporations. The intention was to bring close home to the people the power of regulating the compensation of county officers, thereby fixing the responsibility upon the people themselves, to secure good officers,—or, in the language of one of the members of the convention debating this very provision, ‘to give the people to understand that in electing their officers they must discriminate in favor of honest men and against scoundrels.’

“Upon a review of the proceedings of the constitutional convention, the mischief designed to be remedied clearly appears, as does also the purpose of the provision referred to,, contained in section 10, article 10. The question was much debated- as to whether the power to fix the compensation of the county officers was more liable to abuse if left with the legislature than it would be if conferred on the county boards. It was conceded that it was liable to abuse with either body; but of the two evils, it appears that the convention found that to give the power to the county board was the least, as the county board was nearer the people than the legislature, and the responsibility would be more directly cast upon the voters of each county to see that they selected honest men for their county boards. The conferring of this power upon the county boards to fix the compensation of all county officers, including their own, may not have been wise, but that is not for the court to judge. The other method, of leaving it to the General Assembly, had been tried, and found a failure. The State legislature fixes its own salary, and the convention concluded to give like power to the county legislature or board.

“The express, plain, unambiguous language of section 10, which confers the power upon county boards to fix the compensation of all county officers, leaving no room for doubt as to the meaning of the framers of the constitution, and as to the understanding of the people who adopted it, and not. finding elsewhere in the constitution any provision which- raises any reasonable doubt as to the intent to confer such power upon the county boards, I feel compelled, with great reluctance, to hold that the act of the legislature assuming the power to fix the compensation of the county officers,—the commissioners of Cook county,—is in violation of section 10, article 10, of the State constitution, and therefore a void act.”

Judge Tuley’s treatment of the constitutional question involved is so complete, exhaustive and conclusive, that nothing remains to be said,—at least profitably,—on the subject.

The judgment will be affirmed.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    Benjamin L. T. Bourland v. George L. Gibson et al.

      Filed at Springfield May 9, 1888.

    1. Vend OB and purchases—whether convey anee should precede payment—failure of consideration. The agent of the owner of a tract of land agreed to sell and convey the same to G., upon the latter giving his note for $2100, with security, payable one year after date, and another note of $4000, secured by deed of trust on the property, payable at a later date. The notes were made and delivered by G., payable to the agent, but no deed was ever made conveying the land to G., and suit was brought on the first note after its maturity: Held, that the undertaking in the note to pay was dependent upon the undertaking to convey, but the performance by the purchaser was to be subsequent to the conveyance, and that G. was under no obligation to demand a deed before he might refuse to pay the note, and that the facts constituted a total failure of consideration. In such case, it was the duty of the plaintiff to have executed and delivered the conveyance one year before he was entitled to payment of the first note.
    2. Instruction—must he based on some issue. A plaintiff is not entitled to an instruction based upon a waiver of his performance of a condition precedent, when the pleadings present no such issue.

      Appeal from the Appellate Court for the Third District;—• heard in that court on appeal from the Circuit Court of DeWitt county; the Hon. Lyman Lacey, Judge, presiding.
    This case was before this court in 1879, and is reported in 91 Ill. 471. Since then it has been four times in the Appellate Court for the Third District,—7 Bradw. 227, 13 Bradw. 352, 21 Bradw. 43, and 26 App. Court Rep. 416,—and reference need only be made to the printed volumes for statements -of the case, as presented on these several occasions.
    The case, as now presented, is this: Assumpsit is brought 4o recover the amount alleged to be due on a promissory note given by appellees to appellant. The following plea was pleaded: “That after the last pleading in this cause on July 1, 1878, said Patterson, by deed duly executed and delivered to ■one Farrell, sold and conveyed to said Farrell said homestead, and that said causes of action in said declaration mentioned .are one and the same, to-wit, the supposed promissory note in the first count mentioned; and the defendants aver that the ■consideration of said note has wholly failed, in this, that before the execution of said note the plaintiff, as agent of Patterson, had purchased, at trustee’s sale, said homestead of said Gibson for $6000, and had, as such agent, received a deed conveying the same to said Patterson, and said Gibson being desirous to re-purchase the same, on February 22, 1875, at Peoria, proposed to the plaintiff, as such agent, to re-purchase said homestead, and to give the plaintiff for the same his note for $2100, •due in one year, with interest at ten per cent per annum, said ■note to be executed by Gibson as principal, and Snell as surety, and also to give said plaintiff, as agent of Patterson, his promissory note for $4000, secured by mortgage on said homestead, and that plaintiff, in consideration thereof, should then and there execute and deliver, or cause to be executed and delivered, a deed to Gibson, conveying to Gibson said homestead in fee simple, and that thereupon the plaintiff accepted said proposition, and undertook and promised to make or cause to be made said conveyance to Gibson, and defendants then and there, in consideration thereof, executed and delivered to the plaintiff the note in suit, and Gibson also executed the note and mortgage aforesaid, and delivered the same to plaintiff, which agreement aforesaid was and is the sole consideration for said note, yet the plaintiff has wholly neglected and refused, and still neglects and refuses, to execute and deliver, or cause to be executed and delivered, said deed to Gibson, although often requested so to do, but on the contrary, by the conveyance by Patterson, of said homestead, to said Farrell, said Patterson and the plaintiff have placed it beyond their power to comply with their contract with the defendant Gibson, by means whereof the consideration of said note has wholly failed; and defendants aver that they are not informed and did not know that plaintiff and Patterson had wholly disregarded the trust deed last given, by said Gibson, and had conveyed said homestead by said Patterson to said Farrell, until on or about the 1st day of May, 1882; and defendants further aver that they have pleaded, in substance, the foregoing facts at the August term of this court, but the same not being in form, a demurrer was sustained to said plea, and leave was then and there obtained to amend said plea and to file additional pleas; and the defendants now come and file this amended plea. And this the defendants are ready to verify,” etc. The circuit court held this was a plea puis darrein continuance, and, as such, sustained a demurrer to it; but this ruling was reversed in 13 Bradw. supra, the Appellate Court there holding that it was not a plea puis darrein continuance, but a simple plea of failure of consideration, and, as such, sufficient.
    The first replication filed to this plea is: “Plaintiff says precludi non, because he says that the said note was not given and delivered to the plaintiff in consideration that plaintiff would deliver to defendant Gibson the deed in said plea mentioned, on the delivery to him of said note,”—and to this the similiter was added. Subsequently plaintiff, by leave, filed an additional replication, thus: “The plaintiff, hy leave of the ■court first had and obtained, for further replication to the plea of the defendants filed herein on November 24,1882, says jprecludi non, because he says that he did not and has not refused to execute and deliver, or to cause to be executed and delivered, to said Gibson, the deed in said plea mentioned, as in said plea alleged,” etc. The court sustained a demurrer to this replication, but plaintiff elected to stand by the replication and refused to plead over.
    The jury, on the trial, returned a verdict for the defendant, upon which the court gave judgment, and that judgment, on appeal, was affirmed by the Appellate Court.
    Messrs. Moore & Warner, for the appellant:
    Until demand of conveyance, and neglect or refusal to execute the same, there can not be said to be any failure of the consideration. Lough v. Bragg, 18 Minn. 121; Willets v. Burgess, 34 Ill. 494; Gage v. Lewis, 68 id. 604; Foster v. Jared, 12 id. 451; Sage v. Raney, 2 Wend. 532; Duncan v. Jeter, S Ala. 604; Giles v. Williams, 3 id. 316.
    Mr. James S. Ewing, for the appellees:
    There was no error in sustaining the demurrer to appellant’s additional replication. The cases cited are where a deed was made which failed to convey the title to the proper tract. In those cases the defendant had the covenants of warranty upon which to rely.
   Mr. Justice Scholfield

delivered the opinion of the Court:

The principal question arising upon this record is, whether the trial court erred in sustaining a demurrer to the second replication.

The substance of the plea is, that the sole consideration of this note, and of another note executed, by Gibson at the same time, for $4000, is, that plaintiff would, when the notes were delivered to him, execute and deliver a deed conveying the described property in fee to Gibson, and that the deed was not executed and delivered. Assuming the contract to be as pleaded, plaintiff undertook to execute and deliver the deed to Gibson on the 22d day of February, 1875, and, to pay him therefor, Gibson and Snell agreed to pay him $2100 on the 22d day of February, 1876, and Gibson agreed to pay him the further sum of $4000 on the 22d of February, 1879,—in other words, the $2100 was to be paid for the execution and delivery of a deed which was to be executed and delivered one year before the payment was to be made. The undertaking to pay was dependent upon the undertaking to convey, but its performance was to be subsequent. It is true, the burden is upon the defendants to prove their plea. But if the agreement as alleged be proved, there is no obligation upon them to prove a demand for the execution and delivery of the deed, for, as has been seen, under that alleged agreement the duty was upon the plaintiff to execute and deliver the deed one year before he was entitled to demand payment of the note. This, therefore, is not like the cases cited, where the deed is executed but the title fails. Here, Gibson has nothing, and he is sought to be coerced to make a payment which he was not to make until one year after the delivery of a deed which has not been executed and delivered, and which was the sole consideration for his undertaking to make payment. The agreement, in fact, may have been different, but for the present question we must accept it as alleged. Plainly, then, it was immaterial that plaintiff had not refused to execute the deed. That did not meet the plea. If the agreement was as alleged, then it only remained to show performance,—that is, that he had executed and delivered the deed,—or some excuse for nonperformance, as, a waiver, etc., neither of which was alleged. Bishop on Contracts, sec. 1434.

The first instruction asked by the plaintiff, and refused by the court, embodied the idea of the second replication, and was therefore properly refused. The instructions relating to a waiver were properly refused, because no issue in that respect was presented by the pleadings.

It is objected that the court improperly admitted evidence of what was said to Snell, in the absence of the plaintiff, to induce him to sign the note. But the court excluded all of the answer of the witness, in this respect, except that he told Snell what the contract- was with the plaintiff. Snell was entitled, certainly, to know that, and it could not prejudice plaintiff, therefore, that it was communicated to him. The instructions, as given, presented the law upon the issues raised by the pleadings with sufficient fullness and accuracy. The great contest in the lower courts was one of fact.

We can not say that there was no evidence tending to support the conclusion reached, and we must, therefore, in the view of the law we have expressed, affirm the judgment, which we accordingly do.

Judgment affirmed.