Feinberg v. People

Mr. Chief Justice Carter delivered the opinion of the court: Inasmuch as it has been strenuously insisted upon by the plaintiffs in error in this court that by the method of procedure of the trial court they were deprived of the opportunity to make their defense in that court, a fuller statement of the proceedings below has been incorporated in the statement of the case foregoing than would otherwise have been necessary. In respect of the motion for a new trial, based on the absence of witnesses to prove the alleged alibi, it is clear that the showing made in the affidavits was insufficient. No diligence in that regard was shown. The names of but two of such witnesses, said to have been fifteen in number, were given by whom it was claimed plaintiffs in error could have proved that one of plaintiffs in error was at a birthday party given for his sister at his parents’ home, at the time the robbery was committed. None of these witnesses were called to testify, although one of them, the mother of plaintiffs in error, was present at the trial. No reason is shown why they had not been subpoenaed. If plaintiffs in error were attending such a party at the time of the robbery, they knew of the fact and knew the names of the witnesses by whom they could prove it. No reason is shown why the attendance of such witnesses could not have been procured, even after the trial commenced. It does not even appear that any effort was made to subpoena such witnesses after the court adjourned in the afternoon of the first day of the trial. It is very clear, therefore, that no cause for a new trial existed on account of the absence of witnesses to prove the alleged alibi. But counsel insist that the court erred in requiring plaintiffs in error to proceed at once with the trial on the call of the case, and in refusing to postpone the trial until their counsel could be released from the other trial in which he was engaged in the circuit court, and in refusing, at the close of the People’s evidence, to suspend the proceedings for a reasonable length of time to enable counsel who appeared for plaintiffs in error to consult with them and to talk with their witnesses, so that they might properly present their defense and determine whether they should be called as witnesses in their own defense. The following rule of the criminal court was then of record and in force: “That no case shall be passed, continued or postponed in this court by reason of the engagements of counsel in any other court.” The trial of the case had been postponed at a preceding term on the same grounds urged for this postponement. It is evident there was no abuse of the discretion of the court in refusing to pass the case a second time for the reasons given. The ruling of the court did not operate to deprive plaintiffs in error of counsel. The court appointed Hornstein to represent them, and Ingram appeared in King’s place at his request, and it by no means appears that the accused were not ably represented. Neither of these attorneys, after the court refused to wait for King, asked for time to enable them to present the defense properly, until the People had rested. The court had, however, made it reasonably plain to them that no delay would be tolerated. It will be observed that when, at the close of the People’s testimony, counsel for plaintiffs in error asked for the indulgence of the court for a short time to enable them to consult with their clients and talk with their witnesses, so as to make a proper defense in the case, while the request was refused and they wrere directed to proceed immediately, they did not so proceed, and the ruling of the court was complied with by the other defendant, Burns, and plaintiffs in error were given an opportunity to proceed with their defense after court convened on the following morning-,—at least as to the examination of such witnesses as were not in attendance the previous day. Had plaintiffs in error been compelled, by the ruling of the court and at the time it was made, to rest their defense for lack of opportunity of their counsel to consult with their clients and inform themselves concerning their defense, the action of the court would have been prejudicial error and sufficient to reverse the judgment. Under the bill of rights plaintiffs in error had the right to defend in person and by counsel, and the statute provides that “every person charged with crime shall be allowed counsel, and when he shall state upon oath that he is unable to procure counsel, the court shall assign him competent counsel, who shall conduct his defense;” and in North v. People, 139 Ill. 81, this court said: “We are not to assume that this was intended to be a mere empty formality, and that the counsel thus appointed should be compelled to act without being" allowed reasonable time within which to understand the case and prepare the defense.” But the accused and their counsel had time for consultation, and, so far as the record shows to the contrary, sufficient time in which to procure their witnesses and ascertain what pertinent facts were within their knowledge, before entering upon their defense the next morning. No witness, however, was called or offered, and plaintiffs in error rested their case without in any way making it appear to the court that they had not had sufficient time, since the adjournment the day before, to go on with their defense. Upon such a record it must be held the error of the court in the respect mentioned was not prejudicial and cannot operate to reverse the judgment. It is next urged that the court made improper and prejudicial remarks during the progress of the trial. During a colloquy between the court and attorney Ingram in regard to the cross-examination of Sergeant Robinson, a police officer, occurred the following: Mr. Ingram: “I object to the ruling of the court, and take exception. Your honor will remember that in the entire testimony of these witnesses on behalf of the State there is no testimony whatsoever tending to show guilt against the defendant Joseph Feinberg, except that of motorman Freligh, and I can show by this officer that this identification was procured by illegal means. The court: “Do you mean to say, sir, that there is no evidence here to show the guilt of the defendant? I say there is evidence. Mr. Ingram: “I except to the remarks of the court and also the court’s ruling, and with all due respect must say, as well the court knows, you have no right to pass upon any matter of fact or express any opinion as to the guilt of these defendants, and in answer to the court’s question I shall not respond.” This remark of the trial judge in the presence of the jury was serious error. It was somewhat, though not much, less forcible than to have said there was sufficient evidence to prove the defendant guilty. The evidence may have been sufficient to authorize a conviction, but that was a question for the jury and not for the court, and it was clear error for the court to express any opinion in the hearing of the jury as to the force or effect of the evidence upon the question of the guilt or innocence of the accused. As the judgment must be reversed we have not thought it necessary to consider other objections urged. The judgment is reversed and the case remanded. Reversed, and remanded.