(145 N. E.) testatrix bad in mind when she used the Key to the Scriptures,'” and directions are words "loyal branch church.” The trustee is given for the distribution of the trust fund under the fifth clause of the will to deter- to the building funds of certain churches. mine what churches are "loyal branches" | We are not in accord with appellants' conwith the assistance of the Christian Science tention. Less definite and certain charitable committee on publication of Illinois, and there gifts than this have been upheld. Hitchcock should be no difficulty in carrying out the v. Board of Home Missions, 259 Ill. 288, 102 plain intention of the testatrix in this re N. E. 741, Ann. Cas. 1915B, 1. gard.

The decree of the superior court is af[4, 5] The contention of appellants that the firmed. fifth clause of the will is void, because it is . Decree affirmed. in contravention of the rule against perpetuities, as it is not certain that the churches

(814 III. 150) which will receive the money under the fifth PEOPLE v. LOONEY et al. (No. 15736.) clause of the will will be in existence, or, if in existence, will start building within the (Supreme Court of Illinois. Oct. 28, 1924. period prescribed by the rule, cannot be sus Rehearing Denied Dec. 3, 1924.) tained. It is clear that this trust is a char

1. Attorney general Om 6-Appearance of At. itable trust. Such trust is one for the benefit

torney General after return of indictment not of an indefinite number of persons, by bring.

basis of objection; “trial." ing their hearts- under the influence of edu

Since Smith-Hurd Rev. St. 1923, c. 14, § 4, cation or religion, by relieving their bodies expressly authorizes Attorney General, when in of disease, suffering, or constraint by assist- his judgment people's interest requires it, to ating them to establish themselves for life, or tend trial and assist in prosecution of crime, by erecting or maintaining public buildings defendant cannot object to appearance of Ats or works or otherwise lessening the burdens torney General after return of indictment; of government. Jansen v. Godair, 292 Ill. “trial" also including all preliminary and sub364, 127 N. E. 97; Crerar v. Williams, 145 seguent proceedings in case. III. 625, 34 N. E. 467, 21 L. R. A. 454. Since [Ed. Note. For other definitions, see Words the gift in this case is a charity, the bene- and Phrases, First and Second Series, Trial.] ficiaries are not, as contended by appellants,

2. Grand jury w 34—Appearance of Attorney the Christian Science churches of Chicago

General by assistants before grand Jury not which may build church edifices, but the gift

ground for quashing indictment. is for the benefit of the people of Chicago generally, so they may have an opportunity ants before grand jury to assist in examination

Appearance of Attorney General by assistof learning the doctrine of Christian Science of witnesses is not ground for motion to quash The gift is not a conditional gift, but a gift indictment. in præsenti. The language of the gift is:

3. Criminal law Om 633(1)-Defendant cannot "I give, devise and bequeath unto Joseph E. question source of fund for Investigating and Otis, of Chicago, Illinois, as trustee, all of my prosecuting him. estate and property remaining,

Defendant cannot call on state's attorney trust for and upon the following trusts," etc. or Attorney General to disclose source from

which funds required to pay for investigating The gift is one to charity in præsenti, and and prosecuting him are derived. not on condition, and so does not come with 4. Indictment and information Om 137(1)-Inin the rule against perpetuities. Jansen v. dictment not quashed because of public senti. Godair, supra.

In the case just cited we ment or excitement, or denunciation by news. said:

papers. “It has long been the established rule in this Indictments cannot be quashed because of state that courts of equity favor gifts to char- public sentiment or excitement because open ity."

crime, has been committed and gone unpun

ished, or because newspapers or individuals We also adopted the doctrine laid down in have denounced crime or individuals charged section 607 of Gray on Perpetuities, which is therewith. to the effect that, if the intention of the tes- 5. Grand jury om 15—Not ground of challenge tator is to make an unconditional gift to char that grand juror has formed and expressed ity, the gift will be regarded as immediate, opinion. and not subject to any condition precedent, It is not ground of challenge of grand juror and therefore not within the scope of the that he has formed and expressed opinion as rule against perpetuities.

to prisoner's guilt. [6] The final contention of appellants 186. Indictment and information Cla_Compethat the gift is void, because it lacks a cer tency or sufficiency of evidence before grand tain definite object. The gift is to charity, jury not subject to inquiry, unless all wit. by furthering "the cause of Christian Science nesses incompetent. as taught and promulgated by Mary Baker Court will not inquire into competency of Eddy in her work 'Science and Health, with evidence nor of witnesses before grand jury

* in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

por sufficiency of evidence to justify indictment, | police protection, evidence of checks, considerunless all witnesses were incompetent.

ation of which was not shown to be connected 7. Grand jury Cm 34—Appearance of Attorney its admission error.

with conspiracy charged, was incompetent, and General before, to assist state's attorney, not ground for quashing indictment.

14. Criminal law m338(4,5)-Admitting evi. Presence of Attorney General in grand jury dence of homicide of alleged conspirator's room, for purpose of assisting state's attorney, son, not shown to be connected with conis not ground for quashing indictment.

spiracy, held error. 8. Conspiracy Omw 45—Evidence of occurrences

In prosecution for conspiracy to furnish after accomplishment of conspiracy held com- punch boards and gambling devices under popetent under indictment.

lice protection, it was error to admit evidence In prosecution for conspiring to furnish

of murder of son of alleged conspirator, no punch boards and other gaming devices to di- connection of defendants being shown with it. vers persons, where three counts of indictment 15. Conspiracy Om 48Instruction held erronevaried in statement of purpose of conspiracy

ous as authorizing conviction without proof to use powers of city officials to coerce pur

of conspiracy alleged. chase of boards, to refrain from arresting users thereof and to protect them, and its purpose spiracy to receive bribes as an inducement to

Instruction that certain count charged conto receive and accept any bribes, evidence of

use official power for certain unlawful purposoccurrences, after conspiracy as to punch boards had been carried out, and having no

es, and as to essentials to convict under such connection with placing punch boards, held count, held erroneous as authorizing conviction

upon proof of conspiracy to use official powers competent.

of officers mentioned corruptly, and for their 9. Criminal law 899 — Motion to exclude own gain without reference to receiving bribes.

parts of certain newspaper articles from jury held not waiver of prior objection to other parts.

Error to Circuit Court, Rock Island CounWhere, in prosecution for conspiracy, de- ty; Harry Edwards, Judge. fendants made general objection to certain John P. Looney, Harry M. Schriver, Thomnewspaper articles offered in evidence, they did as Cox, and Lawrence Pedigo were indicted not by afterwards moving that certain parts be for conspiracy. Defendants Schriver, Cox, not read to jury, waive their objection to other and Pedigo were convicted, and bring error. parts of exhibit.

Reversed and remanded. 10. Conspiracy Om 45 – Evidence concerning firearms found in residence of one defendant Sinnett, of Moline, W. C. Allen, of Rock

Kenworthy, Dietz, Shallberg, Harper & held improperly admitted as irrelevant.

Island, and P. R. Ingelson, of Moline (C. E. In prosecution for conspiracy to furnish punch boards and other gambling devices under Dietz, of Moline, and J. J. Neiger, of Virpolice protection, evidence of firearms found in ginia, of counsel), for plaintiffs in error. defendant's residence which had no connection

Edward J. Brundage, Atty. Gen., Ben S. with charge, and no tendency to prove conspir- Bell, State's Atty., of Rock Island, and Edacy charged or any act in relation to it, was ward C. Fitch, of Chicago (Charles W. Hadimproperly admitted.

ley, of Wheaton, James J. Barbour, of ChiId. Conspiracy Om 45 - Certain evidence held cago, and George W. Wood, of Moline, of admissible on question of knowledge and in counsel), for the People. tent of alleged conspirator. In prosecution for conspiracy to furnish

DUNN, J. At the January term, 1923, of punch boards and other gaming devices to saloons and houses of prostitution, and to pro- indictment was returned against John P.

the circuit court of Rock Island county, an tect such places from police interference, evidence of witnesses who followed chief of police, Looney, Harry M. Schriver, John K. Scott, a defendant, and keeper of house of prostitu- Thomas Cox, Lawrence Pedigo, and Robert tion, was properly admitted as tending to show Kinner for conspiracy to furnish punch knowledge and intent of chief of police.

boards and other gaming devices to divers 12. Criminal law 338(4, 5) Evidence of persons and divers keepers of houses of prosmurder whose perpetrators not identified, titution, and to protect them from arrest and held incompetent.

keep them free from police molestation while In prosecution for conspiracy to furnish they were engaged in the city of Rock Island punch boards and other gambling devices to sa- in the keeping, maintenance, and operation loons and houses of prostitution under police of such gaming devices, saloons, gaming protection, evidence of killing of certain saloon houses, and houses of prostitution. Looney keeper, there being no evidence identifying per was not arrested, Kinner was granted a serpetrators, held incompetent.

erance, and the cause was continued as to 13. Conspiracy w 45-Evidence of checks not Scott. The other defendants, Schriver, Cox, shown to be connected with conspiracy charge and Pedigo, were tried at the term the indictheld incompetent.

ment was returned and convicted, and are In prosecution for conspiracy to furnish presenting a writ of error to reverse the punch boards and other gambling devices under / judgment.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and lodexes

(145 N.E.) [1] The Attorney General, by his assist- | The report of the grand jury of the previous ants, appeared before the grand jury while | term, referring to crime conditions in Rock it was investigating the charges upon which Island, was introduced in evidence on the the indictment was returned, and after its hearing of the motion, as were several newsreturn represented the people as well in the paper articles on the same subject which had motions made preliminary to the trial before been circulated widely before the grand jury the jury as in that trial itself. The plain-met, and during its session. It was shown tiffs in error made a motion to quash the that a citizen's committee had raised by popindictment, and also objected to the appear- ular subscription a fund of $35,000 “to clean ance of the Attorney General and his assist- up Rock Island,” to be used in paying exants, making a motion that they be required penses in connection with the investigation to show by what authority they appeared for and prosecution of crime, and it was claimed the people. The motion to quash was based that the Attorney General's assistants were chiefly on the participation of the Attorney to be paid out of this fund. These assistants General in the proceedings before the grand testified on the hearing of the motion that jury. Both motions were denied, and the de- they represented the Attorney General only, nial of them is among the errors assigned and looked to him for their compensation. Since the act in regard to Attorney General Objections to questions asked as to the source and state's attorneys (Smith-Hurd Rev. St. of the Attorney General's funds were sus1923, c. 14, § 4), expressly authorizes the tained. Such questions were incompetent. Attorney General to advise the several Whether the assistant attorneys general state's attorneys in matters relating to the were paid or not paid was immaterial. duties of their office, and, when in his judg [3] A defendant charged with crime canment the interest of the people of the state not call upon the state's attorney or Attorrequires it, to attend the trial of any party ney General to disclose the source from accused of crime and assist in the prosecu- which the funds required to pay the expens tion, there is no basis for an objection by a es of investigating and prosecuting him ir defendant to the appearance of the Attorney particular or crime in general are derived General after the return of the indictment. There is no rule which declares the private The trial referred to is not merely the pro- subscription of funds for the prevention, disceedings beginning with the impaneling of covery, or prosecution of crime to be conthe jury and ending with the verdict, but in- | trary to public policy. It needs not to be cludes all the preliminary and subsequent said that neither the state's attorney nor proceedings arising in the progress of the the Attorney General may receive any pricase. It is not only the duty of the Attorney vate funds for his own use, either as comGeneral in the case specified in the statute pensation or for personal expenses, and nothto attend the trial before the jury, but to as-ing of the kind is claimed to have occurred. sist in the prosecution. His services are not [4-6] An indictment cannot be quashed belimited to consultations and advice, but in- cause of public sentiment in the community, clude whatever assistance may be desirable or of public excitement because open crime and beneficial to the prosecution. Since there has been committed and gone unpunished. are a hundred and two counties in the state, or because newspapers or individuals or and courts are in session at the same time associations have denounced crime or inin many of them, the Attorney General can- dividuals charged with crime. A grand junot be present in person in all of them, and ry is an accusatory body. It does not try must necessarily be represented, at times, by persoas charged with crime. It only inveshis assistants. The state's attorney made no tigates, and, if sufficient criminating evidence objection to the appearance of the Attorney is presented, makes accusation, which is an General or any act of his in the case. He indictment. So it is not a ground of chalwas satisfied to accept his assistance. If the lenge of a grand juror that he has formed state's attorney, without objection, permits and expressed an opinion as to the guilt of the Attorney General to appear in court as a prisoner. Musick v. People, 40 Ill. 268. sisting in the prosecution of one accused of Our statute (Smith-Hurd's Rev. St. 1923, c. crime, it certainly does not lie in the mouth 38, § 715) authorizes the grand jury to make of the defendant to object. The record shows presentments upon the information of not the appearance of both the state's attorney less than two of their own number, without and the Attorney General, and neither was the necessity of their being sworn, and to under any obligation to show any authority find indictments upon the sworn testimony for his appearance.

of one member, the same as in the case of [2] Much space is taken up in the record, other witnesses. An opinion of the guilt of and more in the briefs, with the question of the prisoner, therefore, cannot be a ground the right of the Attorney General to appear of challenge. Neither will a court inquire before the grand jury. The statements in into the competency of evidence or of witthe motion to quash were sworn to on infor- nesses before a grand jury, or the sufficiency mation and belief by one of the plaintiffs in of the evidence to justify an indictment, unerror, and did not prove anything as to what less all the witnesses were incompetent. took place in the presence of the grand jury. People v. Bladek, 259 Ill. 69, 102 N. E. 243;

People v. Duncan, 261 n. 339, 103 N. E. cute the action in the district court. The 1043,

office of Attorney General was created by [7] It is insisted, however, that the mere the Constitution, and he was required to perpresence of the Attorney General before the form such duties as might be prescribed by grand jury is a reason for quashing the in the Constitution or by law. By an act of dictment. We have seen that the statute the General Assembly of 1877 (Gen. Laws gives the Attorney General authority to as- 1877, p. 412, art. 3) he was required to apsist in the prosecution. "Prosecute” and pear for the state, prosecute and defend all "prosecution” have been variously defined. actions and proceedings, civil and criminal, It is said in 23 Am. & Eng. Ency. of Law in which the state should be a party or in(2d Ed.) p. 268:

terested, when required to do so by the GovTo prosecute is to proceed against judicial- ernor or General Assembly. When this act ly. A prosecution is the act of conducting or became effective the method for prosecuting waging a proceeding in court; the means adopt- felonies was by means of an indictment, ed to bring a supposed offender to justice and which the law required to be signed by the punish by due course of law. It is also de district attorney, who was required to apfined as the institution or commencement and pear in the courts of his district, and prosecontinuance of a criminal suit; the process of cute in behalf of the people. "Such being exhibiting formal charges against an offender the state of the law,” the court said, “it is before a legal tribunal and pursuing them to clear that when the Legislature' empowered final judgment on behalf of the state or govern- the Attorney General to prosecute under cerment, as by indictment or information."

tain conditions, that official, when the reCases are cited illustrating the various quired conditions existed, could do each and meanings with which the words are used every thing the district attorney might have upon different states of fact. This language done in the premises. Though the letter of has been approved in State v. Bowles, 70 the law required one official, alone, to do Kan. 821, 79 P. 726, 69 L. R. A. 176. That certain things, its spirit permitted another was an indictment which was signed by the to do and perform the same or similar acts Attorney General of the state. A motion was under certain conditions." made to quash the indictment, on the ground One of the duties of the Attorney General that it was not signed by the prosecuting at- of Montana prescribed by statute was that torney of the county, or any attorney au- he should, when required by the public servthorized by law to sign indictments in the ice or directed by the Governor, assist the county. The Code of Criminal Procedure re-county attorney of any county in the disquired each indictment to be signed by the charge of his duties. The district court hav. prosecuting attorney. This provision had ing denied the Attorney General the right been in force since 1858, but in 1861 (Laws to appear before the grand jury, he applied 1861, c. 58, $ 43) the office of Attorney Gen- to the Supreme Court for a writ of certiorari eral was created, and it was provided that to determine whether the order of the disthe Attorney General, whenever required by trict court judge was valid or void. In the the Governor or either branch of the Leg- case in the district court the Attorney Genislature, should appear for the state, and eral attempted to appear before and advise prosecute or defend in any court or before the grand jury and interrogate witnesses in any official in any cause or matter, civil or regard to bribery charges made by certain criminal, in which the state might be a par- members of the Legislature in connection ty or interested. It was held that the lan- with the senatorial election by the Legislaguage of this statute indicated that the in- ture, to which the judge of the district court tention was to grant plenary power to the had expressly directed the attention of the Attorney General, and he was invested with grand jury. In the opinion the court said: full authority to use all the means afforded by the law to meet the requirements of any

“Here we have a specific direction by which situation and fully protect the interests of the Attorney General is to do more than to ex. the state, and that when directed by the by previous requirements of the law,he is to

ercise those supervisory powers contemplated Governor or either branch of the Legislature assist the county attorney in the discharge of to appear and prosecute criminal proceedings his duties when the public service requires it, in any county, he became the prosecuting at- or when the Governor directs him to give such torney of that county in those proceedings assistance. * Nor is there any limit and had all the rights that any prosecuting whatever to the assistance to be given; no official there might have, including those of point where it is to begin or to end, except the appearing before the grand jury, signing in- bound of the official duty of the county attordictments, and pursuing cases to final deter- ney. Just so long as the county attorney has

a duty to discharge, and just so far as he may mination. A similar conclusion was reached in Peo- obligation of the Attorney General to actively

go in discharging it, so long is it the right and ple v. Gibson, 53 Colo. 231, 125 P. 531, Ann. assist him in the discharge of such a duty, and Cas. 1914B, 138, as to the right of the At- equally far in executing the duty shall he go torney General to file an information in the when the public service requires it, or when name of the people for a felony, and prose- directed to assist by the Governor. *

(146 N.E.) Circumstances sometimes demand that there, duty of various officers, and fixing penalties shall not only be a supervisory action, but an for various offenses. It then averred that assistance to an inferior official as well, to the Harry M. Schriver was the mayor, Thomas end that justice may be more certainly at. Cox, the chief of police, and John K. Scott, tained. When considerations of this nature the city attorney . that certain persons move the Attorney General, or even when they do not move him, if the Governor is moved by (named severally) kept saloons and main. them, and directs him to exert his authority, he tained gaming houses, and other persons shall assist the county attorney, and must do (named severally) kept saloons and main80 in the discharge of the duties which the tained gaming houses equipped with gamcounty attorney is required by law to perform." bling devices, and in conjunction therewith State v. District Court, 22 Mont. 25, 55 P. 916. also kept, maintained, and operated houses

of prostitution, and that upwards of 150 It is unnecessary to discuss the common saloons, gaming houses, and houses of prostilaw powers of the Attorney General. He tution were kept and operated in the city of has the statutory power to assist the state's Rock Island by divers other persons whose attorney. The state's attorney in this state

names were unknown to the grand jury ; has always exercised the power of calling that the defendants conspired to sell, lease, witnesses and examining them before the loan, give, furnish, and provide, for a corgrand jury, and this power is not now ques- rupt consideration, gambling devices, to wit, tioned by the plaintiffs in error. Neither

punch boards, slot machines, etc., to the is it denied that his assistant has the same named keepers of saloons, gaming houses. power; for the motion directed against the and houses of prostitution and to divers Attorney General and his assistants express other keepers, to the number of upwards of ly excepted from its scope the state's attor. 150, contrary to the ordinances of the city ney and his assistant. While it is essential and the laws of the state, and in violation to the secrecy of the proceedings and the of the duties of the mayor, chief of police, freedom and independence of judgment and and city attorney to use the powers of the action of the grand jurors that no unauthor offices of mayor, chief of police, and city ized persons shall be present during the attorney to coerce and require the keepers proceedings, and no person during their de- named, and divers other keepers of saloons, liberation and voting, the power of the gambling houses, and houses of prostitution, state's attorney to be present and assist in to purchase, lease, use, keep, maintain, and the examination of witnesses has been rec-operate gambling devices and share the profognized by implication, and it has been ex. its and proceeds therefrom with the defendpressly decided that the appearance of an ants and to refrain from arresting such attorney employed by private persons be keepers, and to protect the persons named fore the grand jury, and the examination of and other keepers, and keep them free from witnesses by him, when he is not present police molestation and attack while they during their deliberation on the evidence, were keeping, maintaining, and operating and does not attempt to influence their ac- said punch boards, slot machines, saloons, tion, is not ground for quashing an indict- gambling houses and houses of prostitution, ment. People v. Hartenbower, 283 Ill. 591, and to use the powers of their offices with 119 N. E. 605. There is a conflict in the corrupt partiality to the persons named decisions as to the effect of the appearance and other keepers of saloons, gaming houses, of private attorneys before the grand jury, and houses of prostitution. The third count influenced to some extent by varying stat contained the same recitals as the second, utory provisions, but the case last cited de- and charged the defendants with conspiring clares the rule in this state. In this case, to accept and receive bribes by them, said however, no private attorney appeared be- Schriver, Cox, and Scott, to cause them to fore the grand jury, but the Attorney Gen- unlawfully and knowingly sell, lease, loan, eral of the state assisting the state's at-give, furnish and provide divers gambling detorney pursuant to statutory authority, and vices, to wit, punch boards and slot machines, his action was clearly proper.

to keepers of gambling houses, and in their [8] There were three counts in the indict- said offices to protect the keepers named ment, the first of which charged that the de- in the use of such devices, and to protect fendants on November 15, 1921, conspired to divers other keepers, in violation of the do illegal acts injurious to the public police; ordinances and laws and in violation of their that is to say, then and there to unlawfully duties as mayor, chief of police, and city atand knowingly offer for sale, sell, lease, torney, and for their own gain to use the loan, and deliver to divers persons and powers of their offices for the same purposes divers keepers of gaming houses, punch mentioned in the second count. boards, being gambling devices used for Evidence was produced by the prosecution, the purpose of playing upon and winning which tended to show that there were a large and losing money and other articles of value. number of saloons, houses of prostitution, The second count set out a number of or- and gaming houses in Rock Island; that dinances of the city, showing the distribu-John P. Looney had conducted there for tion of official powers, the existence and some years a scandalous weekly paper, which

145 N.E.-24

« ForrigeFortsett »