McDonald v. PeopleMcDonald v. People
delivered the opinion of the Court:
This wаs an indictment in the Criminal Court of Cook county, against Nicholas Schneider, William J. McGarigle, Frederick Faber and Edward S. McDonald, in which the defendants were charged with a conspiracy to obtain money from Cook county by false pretenses. The indictment contained several counts, some of which charge a conspiracy to defraud the county by means of false pretenses, generally, while others charge a conspiracy to defraud the county with respect to repairs at the Normal School. At the June term, 1887, of the Criminal Court, McGarigle and McDonald were tried, jointly, before a jury. The two other defendants, Schneider and Faber, were not put upon trial, but were used as witnesses by the People against McGarigle and McDonald. The jury found the two defendants guilty, and fixed their term of imprisonment at three years in the penitentiary. Edward S. McDonald alone sued out this writ of error.
Various errors have been assigned, and elaborate arguments have been filed in behalf both of the defendant and the People. We shall not, however, undertake to follow counsel, and consider all the questions raised, but will content ourselves with the consideration of a few questions which are decisive of the judgments rendered both in the trial and Appellate courts.
Every person charged with a crime is entitled to a fair and impartial trial,—a trial in conformity to the laws of the State, —and it is a duty resting upon the courts to see that this guaranty conferred by the laws upon every citizen, is upheld and sustained. A fair and impartial administration of the laws is one of the most sacred rights of the citizen,—one that can not be abridged or frittered away. In looking over the record beforе us, we are not satisfied that the defendant, McDonald, had a fair and impartial trial in the Criminal Court. Improper evidence was admitted, the instructions to the jury did not lay down the law correctly, and other irregularities occurred during the trial, which doubtless led to the verdict returned by the jury. Under the last head may be mentioned the opening statement of the case to the jury made by the counsel for the People. Much latitude is always allowed counsel in the statement or argument of a case to a jury, but there are bounds which ought not to be transcended. As a general rule, a full statement of the facts expected to be proven on the trial, with a statement of the law relied upon, would seem to be sufficient;' but here, the court ruled that counsel for the People might elect the manner in which to make his opening. He was allowed to talk about the “boodle prosecutions in Hew York City,” to discuss and explain to the jury the meaning and office of an “exception” entered by counsel for defendant. Among other things, it was said “that the object of taking exceptions wras to get error in the record; that evеrything said is taken down by the stenographers; that in case the defendants are found guilty, they have a right to take an appeal to the Supreme Court; that the whole record goes up to the Supreme Court; that if the judge has made a remark which he ought not to have made, and which, very likely, he has, those seven wise men down at Ottawa, if it shall appear to them that any remark was made which might have prejudiced the cause of these gentlemen who have been found guilty, will consider whether or not they will grant them a new trial; that errors may be run all through the case.” The counsel for the People also informed the jury that the law had been so changed that any defendant might testify in his own behalf. Objection being made to this statement, and overruled, counsel then said: “There is another exception. The court thinks I am right, or he would tell me to vary my line of argument.” The jury were also told that the defendants had applied for a change of venue to another county, and the application for a change was commented upon at length. Other matters wholly foreign were stated and argued to the jury. Indeed, full liberty was givеn counsel' for the People, by the court, to make any statement he saw proper to make, whether it had any legitimate bearing on the case or not. The' manner in which legal proceedings are required to be conducted, under the laws, was ridiculed at great length by counsel for the People, with the sanction and approval of- the court.
It is a proposition too plain to admit of argument, that the jury had nothing to do with the force or effect or the office of an exception that might be taken by counsel during the trial; nor could they take into consideration the fact, if it was a fact, that the defendants had applied for a change of venue; nor was' it material for them to know that the law had been so changed that a defendant might testify in his own behalf; and ' it is plain that the court ought not to have permitted the attorney for the People to bring these matters before the jury in the opening statement. In State v. King,
Our statute, which allows a defendant in a criminal case to testify, declares, that “his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.” Under this statute, why was the attorney of the People allowed to comment, before the jury, on the right of the defendants to testify in the case ?
In State v. Smith,
The defendants were charged with a crime which was a violation of the laws of the State. They were on trial under the laws of the State. The inquiry is a pertinent one, why the laws of the State, under which criminals are tried, were permitted to be ridiculed in the opening argument to the jury. What the object of counsel was in pursuing the course that was pursued, may be difficult to understand; but whatever may have been the object, the effect of what was done, without doubt, created a prejudice in the minds of the jury, and may have, in part, at least, led to the verdict which wаs rendered.
Again, in the closing argument to the jury on behalf of the People, counsel were allowed to travel outside of the record, and discuss M. C. McDonald, and his influence in the administration of justice in Chicago. Among other things, the State’s attorney said: “They say there is a fabled tree, which grows in some torrid clime; that the birds of the air which fly near its branches, influenced by the aroma of it, fall beneath it and die. That is the influence of M. C. McDonald in this and all matters connected with the administration of justice.” Other allusions of a similar character were made, in the argumеnt, to the same person. He was in no manner connected with the case, and upon objection being made, it was the duty of the court to confine the argument to a consideration of such matters as properly pertained to the case, under the evidence. The People v. Mitchell,
The indictment contained six counts, but the State’s attorney dismissed the fifth count out of the case-. The first four counts charged the defendants, in general terms, with a conspiracy to defraud Cook сounty by means of false pretenses. The last count charged a conspiracy to defraud Cook county by means of false pretenses as to work done and materials furnished at the Normal School, in 1886. Before the cause was called for trial, the defendant filed a motion in writing, requesting the court to enter an order requiring the State’s attorney to file a bill of particulars. After due consideration the court granted the order, and in response thereto, the State’s attorney filed what is known in the record as the original bill of particulars. The bill of particulars thus filed did not, however, prove to be satisfactory to the defendant. It was but little more definite or specific, as to the character of the charge, than the indictment. The defendant then filed a petition for a further and better bill of particulars, which, upon due consideration, the court granted, and entered an order requiring the State’s attorney to furnish defendant, McDonald, a further and better bill of particulars. In the order, the State’s attorney was required “to furnish the defendant, McDonald, the date and number of" all bills, vouchers or warrants which аre relied upon by the Peojole, and which have been on file in any county office, and which have been in the possession of the State’s attorney ; and also that the said People permit the inspection of the said bills, vouchers and warrants by the attorneys for said Edward S. McDonald, or some of such attorneys; also, that said People furnish the. defendant, Edward S. McDonald, the dates between which the work or labor done or pretended to be done, was done or pretended to be done; also, that the State’s attorney permit the defendant, McDonald, and his counsel, to examine and inspect any books which the State’s attorney claims were kept in pursuance of the conspiracy charged in the indictment.”
The amended bill of particulars furnished McDonald is as follows: •
“1. The dates between which the labor was done or pretended to have been done, and the material furnished or pretended to have been furnished, by said Nicholas Schneider, as set forth in the bill of particulars heretofore furnished said defendants, McGarigle and Edward S. McDonald, are January 1,1886, until January 1,1887.
“2. The dates and numbers of bills that are relied upon, are No. 7, August 2, 1886; No. 9, August 9, 1886; No. 12, August 16, 1886; No. 13, September 4, 1886; No. 15, September 13, 1886; No. 18, September 20, 1886; No. 23, October 2, 1886; No. 26, October 9, 1886; No. 27, October 16, 1886; No. 31, November 1, 1886; No. 36, November 8, 1886; No. 40, November 20, 1886.
Julius S. Grinnell, State’s Att'y.”
The order of the court under which the last bill of particulars was furnished, is plain, and can not be misunderstood. The dates and numbers of all fraudulent bills, vouchers or warrants relied upon by the People to secure a conviction, by the order were to be furnished by the State’s attorney to the defendant. The order of the court was obeyed, and a list of the fraudulent bills which were to be relied upon on the trial to secure a conviction, was submitted to the defendant. The bills relied upon were twelve in number, the first bearing date August 2,1886, and the last, November 20, of the same year. They all related to services performed and materials furnished at the Normal School. Under the bill of particulars which had been furnished, it was contended, on the trial, by the defendant, that the evidence should be confined to the Normal School transactions ; but this position was overruled by the court, and the People were allowed to introduce еvidence of fraudulent bills for services rendered and materials furnished at the court house, insane asylum, infirmary and the,hospital. Some twenty-nine of Schneider’s bills, relating solely to these places, were introduced in evidence to establish the charge of conspiracy to defraud' Cook county in rendering fraudulent bills for services rendered and materials furnished at the Normal School, as stated in the bill of particulars.
The ruling of the court on the admission of this evidence presents a question of importance, and one, too, not entirely free from difficulty. Where the charge in the indictment is a general one, as is usually the case in an indictment of this character, it is a matter of great importance to a defendant to obtain a bill of particulars, in order that he may know, specifically, what he will be required to meet on the trial. If, however, after a bill of particulars has been furnished, the evidence to establish a conviction is not confined to the specifications therein, what benefit is to be derived from a bill of particulars ? Where is the necessity for an order of court requiring a bill of particulars? Commonwealth v. Snelling,
In The People v. McKinney,
Regina v. Esdaile et al. 1 F. & F. 213, was an information for conspiracy. Prior to the trial, bills of particulars having been delivered under an order of court, and evidence of transactions not named therein having been offered and rejected, the court held, “that particulars having been ordered of оvert acts, the counsel for the Crown were confined within them.” See, also, Commonwealth v. Davis,
A leading case on the question is Commonwealth v. Giles,
‘.‘The evidence, therefore, of sales not mentioned in the list which was furnished to the defendant in the present case, was inadmissible, and should have been rejected. The particular purpose for which it was allowed to be adduced, scarcely, if at all, limiting or diminishing its general force and effect, constituted no excеption to the general rule, and afforded no sufficient or legal reason for disregarding it. ”
The court of last resort in New York, in Starkweather v. Kettle,
It will be observed that in the last case cited, the court treats a bill of particulars, when furnished, as a part of the declaration, plea or notice to which it relates, while in the Giles case it is said, he who furnishes a bill of particulars must be confined to the particulars as closely as if they constituted essential allegations in a special declaration, and the evidence was confined strictly tо the bill of particulars. It will also be observed, that in the case of The People v. McKinney, supra, the court seems to take a slightly different view of the office of a bill of particulars, and says it does not constitute a part of the record, but its office is to inform the defendant of the nature of the evidence, and the particular transactions to be proved. These different expressions in the authorities are more formal than otherwise. The object of a bill of particulars is to give the accused notice of the specific charge he is required to meet on the trial, so that he may be prepared to defend. Here, the State’s attorney, had he seen proper, might have given notice, in the bill of particulars, that fraudulent bills for labor and materials had been presented by Schneider, relating to the court house, insane asylum, infirmary and the hospital, specifying the date and amount in each case. Then the evidence relating to the lulls at these various institutions might have been properly admitted; but he saw proper to limit the charge to twelve specific bills for labor and materials on the Normal School. Having done this, under the plainest principles of law relating to the admission of evidence under an averment in a pleading,—treating the bill of particulars as a pleading,—the evidence ought to have been confined to the twelve bills specified in the bill of particulars, otherwise the bill of particulars was a delusion—a legal snare—furnished for the purpose of deceiving the defendants. It is not claimed that the act of presenting Normal School bills was connected with the presentation of the оther bills in such a manner that they were, on that account, inseparable; nor was such the case. The bills of the different county institutions, and fraudulent pretenses relating thereto, had no immediate or direct connection with each other. In order to establish a conspiracy on the part of the defendants in regard to the work and materials on the Normal School, it was not necessary to prove that Schneider had presented fraudulent bills as to work and materials furnished at the court house, insane asylum, infirmary and hospital, and it was erroneous to allow such evidence to go to the jury. The effect of the bill of particulars furnished by the State’s attorney under the order of the court, was to narrow the issue to the fraudulent bills relating to the Normal School, and, as a necessary consequence, exclude all evidence of a conspiracy to obtain money from Cook county, except as to the bills for labor and materials furnished on the Normal School.
We are not unmindful that it is competent, when the issue is whether a party is guilty of a general conspiracy, distinct overt acts of сonspiracy may be given in evidence, and that when the issue is whether a party is guilty of a specific overt act of conspiracy, it is competent to give in evidence other overt acts of conspiracy which include or are dependent upon or constitute a part of the res gestee of that' act; but it has never been held admissible to give in evidence to prove a specified overt act, wholly disconnected and independent overt acts having no other relevancy to each other than that they are оvert acts of the same parties.
What was said in the case of Ochs et al. v. The People,
In the fifteenth instruction for the prosecution, the jury were told “that any evidence which has been admitted by the court in the presence of the jury is for the consideration of the jury, and should be considered by them in making up their verdict.” In quite a number of the instructions given at the instance of the People, the jury were instructed that they should find the defendants guilty, if they believed, from the evidence, beyond a reasonable doubt, that they were guilty “as charged in the indictment.” These instructions wholly ignored any restrictions placed upon the general charge contained in the indictment by the bill of particulars which was furnished the defendants, and by these instructions, thus wholly unqualified, the jury were left at perfect liberty to find the defendants guilty of a conspiracy to obtain money by false pretenses, by means of either false and fraudulent court house bills, hospital bills, asylum bills, infirmary bills or Normal School hills.
Twenty instructions were given by the court on behalf of the People. In no one of these instructions was the jury directed to acquit the defendants unless they found them guilty of the Normal School conspiracy,—the conspiracy for which they were placed upon trial. In order to meet this difficulty, and place that question in a proper light before the jury, the defendants’ counsel prepared instruction No. 2, which, among other things, contained the following: “The defendants are not, in this case, charged with conspiring to defraud the county by bribing county commissioners to allow exorbitant and unjust bills. Neither are they upon trial for conspiracy to defraud the county in any way, in any transactions other than those relating to the repairs at the Normal School, undertaken by Nicholas Schneider.” This pаrt of the instruction was stricken out by the court, and, as modified, the instruction was then given to the jury. As that part of the instruction stricken out by the court was not embraced in any other instruction, we think the modification was erroneous. Under the bill of particulars furnished by the People, the only conspiracy involved on the trial, related to the materials furnished and repairs done by Schneider at the Normal School, and the defendants had the right to have the jury so instructed. As has been said before, much evidence in regard to fraudulent transactions had been introduced, relаting solely to labor and materials at the court house, insane asylum, infirmary and hospital. This evidence being before the jury, they were as likely to convict the defendants of a conspiracy in regard to repairs at one of those institutions as they were in regard to the repairs at the Normal School, unless they were instructed by the court that the defendants were not on trial for conspiracy to defraud Cook county" in any transactions other than those relating to the Normal School. How could the jury know upon which one of the five transactions relating to the five county institutions they were authorized to return a verdict, unless directed by the court in the instructions ? It is apparent the jury were left entirely in the dark upon this question, and for aught that appears, the jury may have been satisfied that no conspiracy was established in regard to the repairs for which bills were rendered in reference to the Normal School, and yet found the defendants guilty as to some one of the other institutions,—an offense for which they were not on trial.
The manner in which the case was submitted to the jury by the instructions, leaves it impossiblе to determine whether the defendant was convicted of the offense upon which he was put upon trial, or for some other or different offense. We are not prepared to hold that a conviction of this character can be sustained. The modification of the instruction was, in our judgment, erroneous, and that, too, in a vital point in the case.
It is claimed that other irregularities and errors occurred on the trial, which led to the conviction of the defendant, but it will serve no useful purpose to consider them here.
We are satisfied that the defendant was not tried in conformity to law, and for the errors indicated, the judgments of the Appellate and Criminal Courts will be reversed, and the cause remanded fpr another trial.
Judgment reversed.
Mr. Justice Mageudee : I do not concur in this decision. Not having time to prepare a dissenting opinion I refer to the opinion of Mr. Justice Moban of the Appellate Court (25 Appellate Ct. Rep. 350,) as expressing the views of the case, which seem to me to be correct.
Mr. Justice Bailey having passed upon this ease in .the Appellate Court, took no part in its consideration here.