Carrow v. People

Mr. Justice Scott delivered the opinion of the Court: The information in this case was filed on the 10th day of May, 1883, in vacation, after the January term, 1883, in the county court of Iroquois county, by the State’s attorney, and charges defendant, Alex. B. Carrow, with selling intoxicating liquors contrary to the statute, he not having a legal license to keep a “dram-shop.” It contains twenty-six counts, alleging, by appropriate averments, that many distinct offences. On the trial in the county court, defendant was found guilty of five offences as charged in the information, and the court imposed a fine of $40 and costs on each count on which defendant was found guilty, and rendered judgment against him accordingly, and, as a part of the judgment, ordered that defendant stand committed until fine and costs should be paid. That judgment was affirmed in the Appellate Court for the Second District, and defendant brings the case to this court on error. No matter what view could be taken of the merits of the case, the present judgment against defendant must be reversed on account of the refusal of the court to allow defendant’s motion for a change of venue of the cause. The petition .on which the motion was based was in the usual form, and alleged the judge of the court in which the cause was pending was so prejudiced against- defendant that he feared he could not have a fair and impartial trial in such court. It conformed in all essential particulars to the requirements of the law, and was presented in apt time. As appears from the record, the information was filed against defendant on the 10th day of May, 1883. He was arrested on the 11th day of that month, and gave bail for his appearance at the next term of the county court, which convened on the 14th day of the same month. On the first day of the May term, 1883, of the county court, (that is, on the 14th day of that month,) defendant caused notice to be served on the State’s attorney that he would ask a change of venue of the cause on account of the prejudice of the judge, and on the next morning he made his motion for that purpose, which was by the court disallowed. Greater diligence the law does not require, and it was error in the court to refuse to change the venue of the cause, as was asked to be done by the petition. There are a few questions that may arise on another trial of the cause, concerning which something ought now to be said. The point made the information is founded on no sufficient affidavit, is not well taken. Construing the statute, as, perhaps, should be done, with reference to the sixth section of the Bill of Bights, which declares “no warrant shall issue without probable cause, ” the affidavit filed in this cause does show probable cause for filing the information, and the subsequent arrest of defendant. It is a matter of no consequence before whom the affidavit was made. It is not essential it should have been made before the judge of the county court that granted leave to present the information. In this case the affidavit was sworn to before a justice of the peace, and that is sufficient, if it satisfied the judge to whom it was presented there was “probable cause” for filing the information. More than that the law does not require for the security of the citizen against unwarrantable prosecutions. Myers v. People, 67 Ill. 503. Objections are taken to the rulings of the court touching the competency of a number of jurors chosen to try the cause. It is no legal objection to the competency of a juror, in such cases as the one now being considered, the juror may not approve of selling intoxicating liquors, either with or without a legal license to keep a dram-shop. He is quite as competent, other qualifications being equal, as one who does approve of it; and if both classes should be excluded, it is obvious it would be impracticable to secure a jury in such cases, for it is apparent most men who have capacity enough to make an intelligent juror have convictions as to the propriety of such a business. One may approve it, and another condemn it, but his convictions in that respect would not disqualify a person having all other necessary qualifications from becoming a juror. Some of the persons in this case, when examined touching their competency as jurors, answered, they had a “prejudice against the business of selling intoxicating liquors, ” and some, perhaps, went to the extent of saying that prejudice extended to defendant. It is apparent, from the whole examination, that all the juror wished to be understood as saying was, he did not approve of the business of selling intoxicating liquors, and nothing more. All right-minded persons disapprove of crime, but their hatred of everything they may believe hurtful to the public welfare by no means disqualifies them for jury service,—otherwise the administration of the criminal law would be largely committed to the worst class of persons, which, of course, the law will not tolerate. But if a person is so prejudiced against one charged with selling intoxicating liquors, or any other misdemeanor or crime, that he could not give the accused a fair and impartial trial, he would, of course, be an incompetent juror, and should be excused from serving in that capacity. Under this latter rule one or two of the jurors chosen in this case were clearly disqualified, and the court should have sustained the challenges to their competency. On account of the. error indicated, the judgment of the Appellate Court will be reversed, and the cause remanded, with directions to reverse the judgment of the county court and remand the cause for a new trial. Judgment reversed!.