O'Hare v. People, 40 Ill. 533 (1866)

April 1866 · Illinois Supreme Court

40 Ill. 533

Patrick O’Hare v. The People of the State of Illinois.

Exceptions must be taken. A party who was convicted of manslaughter, under an indictment for murder, was prevented from taking exceptions to the rulings of the court below by reason of the arrest of his counsel pending the trial, for an alleged political offense, yet this court could not relieve the party from the force of the circumstances which prevented his taking a bill of exceptions.

"Wept op Ekbob to the Circuit Court of Jo Daviess county; the Hon. Benjamin R. Sheldon, Judge, presiding.

At the August Term, 1862, of the court below, Patrick O’Hare was tried upon an indictment for murder, and convicted of the crime of manslaughter. A new trial was refused, and he was sentenced to the penitentiary during his natural life. There was no bill of exceptions taken in the case, and the reason therefor is set forth in an affidavit of Hr. H. T. Johnson, the prisoner’s counsel. The affidavit states: “ There is no bill of exceptions in said cause, preserving the evidence given on the trial, but said cause will have to be heard, on the indictment, motions, exceptions and instructions and judgment of the court, as they are preserved in the record.” Affiant “ assigns as a reason why the same are so defectively preserved, that this affiant was the only attorney engaged in the defense, and during the progress of said cause and before the trial was finally disposed of, affiant was arrested, on a telegraphic dispatch, by the Hnited States marshal, at the instance of the secretary of war, in the court room, and was permitted, while under arrest and in the custody of the officer, to complete the defense. This affiant states, that, in obedience to the order of the court, notwithstanding he did protest at the time against such an unusual order, he was compelled to argue said cause to the jury at a night session held for that purpose. That the arrest of this affiant, by said marshal, was without any warrant, process or legal authority, or any of the forms of law, and without any charge of any offense or violation of any- law; and on the termination of said trial, said marshal transported said affiant to the State of ¡New York, where he was confined in Fort La Fayette and detained as a political prisoner, by virtue of, and on the authority of, said telegraph dispatch alone.”

“ This affiant further states that said O’Hare was a very poor man, depending on his daily labor to support several small children, and no means to pay counsel when he was arrested, and no property or means to defend himself.”

Mr. Madison Y. Johnson, for the plaintiff in error.

Mr. Charles Blanchard, State’s Attorney, for the people.

Mr. Justice Breese

delivered the opinion of the Court :

It is unfortunate for the plaintiff in error in this cause that he was prevented, by the circumstances detailed by his counsel, from making a full defense before the jury, and of availing of all the rights and privileges guarantied by the laws of this State to a party to an action civil or criminal. It is out of the power of this court to avoid the force of those circumstances, or alleviate it in the least degree. They have prevented exceptions being taken to the rulings of the court which tried the prisoner, and have deprived him thereby of an opportunity of spreading upon the record the testimony in the cause, that this court might pass upon it, so that there is nothing upon the record, which we can examine, save the validity of the indictment, and that is admitted by the prisoner’s counsel to be good.

For these reasons, the judgment must be affirmed.

Judgment affirmed.