Mingia v. People

Mr. Justice Breese delivered the opinion of the Court : This was an indictment in the circuit court of Massac county, for murder, presented by the grand jury at the November term, 1867. A special term was held in the succeeding month of December, for the trial of the prisoner, and on being furnished with a copy of the indictment and a list of the jurors and witnesses, he was duly arraigned, and pleaded not guilty, and on his motion and affidavit a continuance was granted to the next May term. At that term of the court, a further continuance was granted, on motion of the prisoner, to the next November term, at which term no other proceeding appears to have been had, except ordering an attachment for a witness duly summoned on behalf of the prosecution. At the May term, 1869, the prisoner appeared in person and by his counsel, and by agreement with the State’s attorney, the cause was set for trial on the next Saturday. On that day the prisoner entered a motion to dismiss the prosecution, and for his discharge. No reasons were assigned for the motion, nor was the motion then disposed of by the court. A jury was empanneled, and a.verdict of guilty rendered, and his punishment fixed at twenty years imprisonment in the penitentiary, on which finding a formal judgment was entered by the court. A motion for a new trial, and in arrest of judgment, was overruled, to which no exception was taken. To reverse this judgment, the record is brought here by writ of error, and various errors assigned, the first of which questions the ruling of the court in discharging a juror, one Burnham, on motion of the State’s attorney, after the juror had been accepted by the prisoner. It appears the sheriff had returned as a talesman one Burn-ham, whose name had been given to the prisoner, in the list furnished to him, as H. C. Burnham. When Burnham was called, he was found to be a competent juror, and was accepted by the prisoner, but the State’s attorney discovering that his true name was R. C. Burnham, on his motion the court discharged him. We fail to perceive any error in this. It would have been ground of error, had a juror of a name different from the one furnished the prisoner, been sworn upon the panel. The persons named on the sheriff’s return, and those only, unless challenged, can be sworn as jurors. But aside from this, the bill of exceptions in this regard shows that the peremptory challenges of the people were not exhausted, and the motion to discharge him was nothing more than a peremptory challenge. The next error assigned, is in overruling the motion to dismiss the prosecution and discharge the prisoner. It is a sufficient answer to this to say, that it does not appear the prisoner’s counsel excepted to the manner in which the court disposed of this motion, nor are the grounds of the motion stated. The next error assigned, is in overruling the motion for a new trial. The reasons for a new trial were, that the verdict was contrary to law and evidence; newly discovered evidence tending to prove the innocence of the prisoner; that one of the jurors had expressed an opinion as to the guilt of the prisoner before he ivas SAVorn upon the jury, and last, because erroneous instructions were given on the part of the people, and proper instructions asked by the prisoner were refused. As to the verdict being against the evidence, we have no means of determining, as the e\Tidence is not preserved in the record. The point that the verdict is against the law, is not argued by counsel, and we fail to perceive wherein the law has been violated by the jury. There is no affidavit in support of the allegation of newly discovered evidence, and the charge that a juror had formed and expressed an opinion unfavorable to the prisoner, prior to the trial, is contradicted by the juror himself, whose affidavit is in the record. The juror named, when examined on his voir dire, declared he had expressed no opinion. The principal objection, on this branch of the case, arises on the instructions given for the prosecution. The record does not show that any instructions were asked by the defendant. We have examined those given for the people, and as abstract propositions of law, we have no fault to find with them. So far as they are founded on the evidence in the cause, we have no means of determining whether they were right or wrong, the evidence not being preserved. In support of the motion in arrest of judgment, it is argued by the plaintiff in error, that, as the homicide was committed in October, 1867, there was not, at the time of the trial and verdict, any law defining the punishment of murder, which was in force at the time of the homicide. The act of 1869, so far as the punishment of homicide is concerned, differs in no respect from the act of 1867, under which the criminal act was done, nor is it in conflict with it in any particular. The purpose of the act of 1869, not differing in its main provisions from the act of 1867, is found in the proviso therein inserted, to supply what was deemed a casus omissus in the act of 1867. Had the prisoner pleaded guilty to the indictment, and demanded his discharge, he would be in a position to raise the question he now seeks to raise. As a jury has passed upon his case, he can not raise it. Though the crime was committed in 1867, and the trial had in 1869, before a jury, it matters not, so far as the prisoner’s rights are involved, under which act the proceedings were carried on, inasmuch as both acts are, as we have said, precisely the same, and under neither was he deprived of any of his rights. We see no error in the record, and must affirm the judgment. Judgment affirmed.