Nixon v. People, 3 Ill. 267, 2 Scam. 267 (1840)

June 1840 · Illinois Supreme Court

3 Ill. 267, 2 Scam. 267

Absalom Nixon, plaintiff in error, v. The People of the State of Illinois, defendants in error.

Error to White.

An indictment charging that the defendant, with force and arms, at, and in the county aforesaid, in and upon one Adam, a man of color, then and there being a deformed person, and by reason of his being such deformed person, being unable to walk, or otherwise to move himself from place to place, and also then and there being deficient in voice, so as to be unable to call aloud, and in the peace of God, and of the people of the State of Illinois, then and there being, unlawfully did make an assault, and then and there forced and threw the said Adam from a certain wagon, in which he, the said Adam, then and there was, to and upon the ground, the said ground then and there being frozen and very cold, and then and there did force and compel the said Adam, then and there to lie upon the ground so being frozen and very cold as aforesaid, and then and there did abandon and leave him, the said Adam, lying on the ground as aforesaid, to the great pain and torture of the said Adam, and to the great damage and impoverishment of his health and strength of body, with intent him, the said Adam, by the means aforesaid, then and there feloniously, wilfully, and of his malice aforethought, to kill and murder — is good and valid.

At tlie April term, 1839, of the Wayne Circuit Court, the grand jury found the following bill of indictment against Absalom Nixon, to wit:

“ Of the April term of the Wayne Circuit Court, in the year of our Lord one thousand eight hundred and thirty-nine.

“ State of Illinois, Wayne, County, ss.

“ The grand jurors chosen, selected, and sworn, in and for the county of Wayne, in the name, and by the authority of the'people of the State of Illinois, upon their oaths present, that Absalom Nixon, late of the county aforesaid, laborer, on the twenty-third day of October, in the year of our Lord one thousand eight hundred and thirty-eight; with force and arms, at and in the county aforesaid, in and upon one Adam, a man of color, then and there being a deformed person, and by reason of his being such deformed person, being unable to walk or otherwise to move himself from place to place, and also then and there being deficient in voice, so as to be unable to call aloud, and in the peace of God, and of the people of the State of Illinois, then and there also being, unlawfully did make an assault, and then and there forced and threw the said Adam from a certain wagon, in which he, the said Adam, then and there was, to and upon the ground, the said ground then and there being frozen and very cold, and then and there did force and compel the said Adam, (so being such deformed person as aforesaid, and also by reason of his being such deformed person, being unable to move himself from place to place as aforesaid, and also, being deficient in voice, so as to be unable to call aloud as aforesaid,) then and there to lie upon the ground, so being frozen and very cold as aforesaid, and then and there did abandon and leave him, the said Adam, lying on the ground as aforesaid, to the great pain and torture of the said Adam, and to the great damage and impoverishment of his health and strength of body, with intent him the said Adam by the means aforesaid, then and there feloniously, wilfully, and of his malice aforethought, to kill and murder, and other wrongs to him, the said Adam, then and there did, to the great damage of him, the said Adam, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Illinois.

“ G. B. Shelledy, State’s Attorney. ”

The said Nixon being arraigned, pleaded not guilty, and filed his petition for a change of venue in said cause; whereupon it was ordered by the Court that the venue be changed to the county of White.

The cause was tried at the April term, 1839, of the White Circuit Court, before the Hon. Justin Harlan and a jury. The jury found the plaintiff in error guilty, and fixed the time of his confinement in the penitentiary at seven years. The plaintiff in error, by his counsel, moved the Court in arrest of judgment, and for a new trial, which motion the Court overruled, and pronounced sentence on him according to the verdict of the jury.

The cause was brought to this Court by writ of error.

Browne, Justice,

delivered the opinion of the Court :

This was an indictment for an assault with intent to commit murder, upon which Nixon was tried at the last April term of the White Circuit Court, and found guilty ; and a motion made in arrest of judgment, which was overruled.

The errors assigned bring into full view such parts of the record, as require particular attention from the Court, and are as follows: 1. The facts set forth in the indictment below do not constitute the offence with which said Nixon was charged. 2. The indictment does not sufficiently describe the place where Adam was abandoned, so as to show that death would probably have been caused by such abandonment. 3. The indictment does not sufficiently set forth the means by which the offence charged was committed. 4. The Court erred in refusing the motion for a new trial.

This indictment was brought under a statute of this State, ⁽¹⁾ which provides that an assault with an intent to commit murder, shall subject the offender to confinement in the penitentiary, for a term not less than one year, nor more than fourteen years. The indictment charges the aforesaid Absalom Nixon, with an assault with the intent to commit murder on one Adam, a man of color, by forcing and throwing the aforesaid Adam from a certain wagon, in which he, the said Adam, then and there was, to, and upon the ground, the said ground then and there being frozen and very cold ; and then and there did force and compel the said Adam, then and there, to lie upon the ground, so being frozen and very cold as aforesaid, did abandon and leave him, the said Adam, lying on the ground, 8zc. with intent him, the said Adam, by the means aforesaid, then and there feloniously, wilfully, and of his malice aforethought, to kill and murder, &c. It is stated in the indictment, that the said Adam is a deformed person, and unable to walk or otherwise to move himself from place to place, and so deficient in his voice as to be unable to call aloud. This indictment has every ingredient necessary to constitute a good one, under this statute. The offence is well set out. There may be a thousand forms of death, by which human nature may be overcome,— by poisoning, starving, drowning, fee. This differs from most cases of assault with intent to commit murder ; it is more malignant, and discovers more depravity. But if one assault with intent to commit murder differs from another, it makes it no less a crime. This one seems to be of a very atrocious character.

The judgment of the Circuit Court of White County is affirmed.

Judgment affirmed.

(1) R. L. 180 § 52 ; Gale’s Stat. 200.