77 Ill. 484 | Ill. | 1875
delivered the opinion of the Court:
The plaintiff in error was indicted, at the February term, 1875, of the Marion circuit court, for the murder of John G. Davis, and tried at the following March term, convicted of manslaughter, and sentenced to confinement in the penitentiary for eight and one-half years.
The error first assigned is, the overruling of a motion which was made to quash the indictment on the ground that the grand jury, which found the bill, were not properly sworn.
The motion was founded on an affidavit made by the defendant, that, as he was informed and believed, the grand jury were sworn by one Jacob O. Chance, and that he was neither the clerk nor deputy clerk of the court. The statute requires a certain prescribed oath to be administered to grand jurors, but does not designate that the clerk of the court, or what officer, shall administer the oath.
The -statute confers upon a long list of officers the power to administer "all oaths of office, and all other oaths authorized or required of any officer or other person,” etc. We are of opinion that any officer thus authorized by law to administer oaths generally, may, under the direction of the court, lawfully administer the prescribed oath to a grand jury. Every presumption is in favor of the correctness of the action of the circuit court in the matter, until the contrary is made to appear. The affidavit' did not negative that the person who administered the oath was an officer authorized to administer oaths generally. It did not appear that the grand jury were not properly sworn, and the motion was properly overruled.
It is insisted that the verdict is against the evidence—i hat the prisoner should have been acquitted on the ground that he acted in self-defense in the commission of the homicide.
The evidence disclo’ses that a state oí enmity existed between the deceased and the prisoner; that just before the occurrence, the prisoner was sitting on the counter, about fifteen feet from the door, in the store of Jones and Wilson, in Kinmundy, Marion county. It was about seven or half-past- seven o’clock in the evening of November 25, 1874. The deceased had looked in through the glass of the store dour, and seen the prisoner sitting on the counter, and placed himself a few feet north of the store door, for the purpose, no doubt, of assaulting the prisoner when he came out. The latter started to go out of the store, and as he reached the door and opened it, and was standing in the door-way, the deceased advanced toward him in a threatening manner, with his arms extended; the prisoner stepped back a step or two inside the door, drew a revolver, pointed it at the deceased and fired, discharging a ball into the body of the latter near the heart. The deceased sank down, was taken into a store across the way, and died soon after. The deceased had no weapon, and none was found upon his person. He and the prisoner were about of the same size, the difference, if any, in physical ability being in favor of the latter. It was a moonlight night,, there was glass in the top of the store door, large glass show-windows on both sides or" the door, a lamp near each window, and a chandelier eight feet from the front of the store, which, when lighted up, made it, in the words of the testimony of one of the proprietors, “ almost as light as dav, out doors.” The prisoner said, immediately after he shot deceased : “That is the way I do my business.” He told the officer who arrested him afterward, that the revolver found with him was his, that “that was what I done the work with ; that it was loaded, except the one that Davis got.”
The evidence presents no proper case of self-defense. The jury were fully warranted in finding that it did not appear that the danger was so urgent and pressing that, in order to save the prisoner’s own life, or to prevent his receiving great bodily harm, the killing of the deceased was necessary, or that the circumstances were such as to induce a reasonable and well-grounded belief of such necessity, and that the prisoner really acted under the influence of such reasonable belief. There was that in the prisoner’s declarations in respect to the homicide, which told against him. Instead of indicating regret., and that the life of a fellow-being had been reluctantly taken under the necessity of self-defense, they were rather expressive of satisfaction at what had been done, tending to. denote that the act had been perpetrated deliberately, of set purpose, in a spirit of revenge.
There were six instructions asked for the defendant which the court refused to give, and there is claimed to be error in this respect. Had there been no other instructions given for the- defendant, one or more of these refused instructions should have been given. But the court did give fourteen other instructions for defendant, and the refused instructions, so far as they contained correct principles of law, were substantially embraced in those which were given, and it was unnecessary that the same should be repeated.
Objection is taken, too, to the 11th instruction which was given for the people. In view of the facts, and other instructions which were given, we see no substantial ground of error in the giving of this instruction.
The further point is made, that the term of punishment fixed by the verdict of the jury is excessive, in embracing a fractional part of a year, it being for eight and one-half years. The statute provision is: “ Whoever is guilty of manslaughter shall be imprisoned in the penitentiary for his natural life, or for any number of years.” The objection is, that, under the statute, the imprisonment must be for one or more whole years only; that there is no power to fix the term of imprisonment for any fractional part of a year. We are of opinion that the verdict of the jury in this respect is warranted by the above provision of the statute.
The judgment must be affirmed.
Judgment affirmed.