Section 7. All persons shall be bailable, by sufficient sureties, except for capital offenses, where the proof is evident or the presumption great; and the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. 38 The question whether a particular offense is bailable under this provision is addressed to the court and the fact that a grand jury has returned an indictment for murder does not preclude an inquiry of the facts by the court to ascertain whether the offense is of a grade which is bailable. It has also been held that the Supreme Court would not admit to bail pending the determination of a writ of error unless it was very clear that no conviction could be had upon another trial. Section 8. No person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army and navy, or in the militia when in actual service in time of war or public danger: Provided, that the grand jury may be abolished by law in all cases. 40 This section has been referred to as drawing the line between felonies and misdemeanors, requiring that felonies be prosecuted by indictment but permitting misdemeanors to be prosecuted on information, but in a later case the Supreme Court has pointed out that this provision limits the prosecution on information to offenses punishable by fine or imprisonment otherwise than in the penitentiary. Consequently since by an early statute larceny (including petit larceny) was an infamous crime, involving a deprivation of civil rights, petit larceny, though a misdemeanor, was punished by loss of civil rights in addition to fine and imprisonment in a county jail and could be prosecuted only by indictment."1 And an offense under the civil service law punishable by disqualification from holding office for five years in addition to a fine and imprisonment in a county jail, cannot be prosecuted on information. 12 But a criminal statute authorizing a court to abate a nuisance at the expense of the defendant and punish the defendant by fine and imprisonment in the county jail does not bring this offense within the class of crimes which can be prosecuted only by indictment because the abatement of the nuisance is not a part of the penalty.43 It has been contended that prosecution on information is limited by this section to offenses punishable by fine only, and offenses punishable by imprisonment otherwise than in the penitentiary only, but the construction by the Supreme Court includes as well, offenses punishable by either fine or imprisonment otherwise than in the penitentiary, in the alternative.** There are, therefore, four classes of cases which may be prosecuted on information: (1) Offenses punishable by fine only; (2) offenses punishable 38 Lynch v People, 38 Ill. 494 (1865). by imprisonment otherwise than in the penitentiary only; (3) offenses punishable either by fine or by imprisonment otherwise than in the penitentiary; (4) offenses punishable both by fine and by imprisonment otherwise than in the penitentiary. The provision of this section does not apply to a holding either by a recognizance or by imprisonment to await the presentment of the grand jury.45 The proviso as to the abolishment of the grand jury by law in all cases has not been construed by the Supreme Court but the Attorney General has said that the grand jury may not be abolished by law as to some offenses unless it is abolished entirely. 46 Section 9. In all criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation, and to have copy thereof; to meet the witnesses face to face, and to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. Criminal prosecution. This section has no application to summary proceedings to enforce the authority of a court, but a statute which authorizes a court to punish as for contempt, for refusal to appear in answer to a notary's subpoena, is violative of this section." It is not improper, however, for a statute to authorize a court on application to order the attendance of a witness before a notary and in the event of refusal, to compel obedience in a summary way.18 A proceeding to disbar an attorney is not a criminal prosecution in which there is a right to meet the witnesses face to face.19 a The right to appear. The record must show the presence of the accused in court.50 But if present at the commencement of the trial which proceeds continuously, he will be presumed to have been present at every subsequent stage," down to the return and receipt of the verdict.52 However, the record must show his presence during the hearing of motion for a new trial.53 Where the court has overruled such motion and pronounced judgment in the absence of the defendant, the whole proceeding is not void, but may be corrected by retracing these steps in his presence.54 The constitutional privilege of appearing in criminal prosecutions was conferred for the benefit and protection of the accused, but if he is present at the commencement of trial and voluntarily absents himself, he will have waived his privilege." a 45 Garrison v People, 21 Ill. 535 (1859). 46 Report Attorney General 1908, p. 52. 47 Puterbaugh v Smith, 131 Ill. 199 (1890); McIntyre v People, 227 Ill. 26 (1907). 48 People v Kipley, 171 Ill. 44 (1898). 49 People v Stonecipher, 271 Ill. 506 (1916). 50 Harris v People, 130 Ill. 457 (1889). 51 Padfield v People, 146 Ill. 660 (1893). 54 Harris v People, 138 Ill. 63 (1891). 55 Sahlinger v People, 102 Ill. 241 (1882); Gallagher v People, 211 Ill. 158 The right of a defendant in criminal proceedings to be present in court does not extend to writs of error in the appellate or Supreme Court.56 Right to defend in person and by counsel. The attorney appointed by the court to defend a person unable to secure counsel should be of sufficient ability to protect adequately the rights of the defendant and must not have any interest adverse to the defendant, and sufficient time must be allowed him to prepare the defense." The court should appoint an attorney to aid a defendant not only during the actual trial but during arraignment, when the accused needs such counsel. It is not a violation of this provision for the court in its discretion to limit the argument of counsel, but a sufficient opportunity must be afforded to permit a discussion and presentation of the whole case to the jury." 61 Right to demand the nature and cause of the accusation. The Supreme Court has been called upon in a great many cases to determine whether the indictment describes the offense charged with sufficient preciseness and particularity to satisfy the constitutional right of the accused to be informed of the nature and cause of the accusation against him. The degree of particularity required is indicated in a general way by the purpose of this provision as stated by the court, viz., to enable the accused to prepare fully for his defense and also to plead the judgment in bar of a subsequent prosecution for the same offense. However, the second reason given for a specific description of the offense is rejected by the court in a later case for the reason that, by the present practice, a former conviction or acquittal is proved by parol testimony under a plea of not guilty. It is also said that the offense must be described so as to enable the court to pass sentence in case of conviction. It has been held that an indictment for extorting money by threats to kill need not set out the words of the threat.62 An indictment for robbery need not describe with absolute accuracy the property taken." But an indictment for having or giving away an obscene pamphlet must set out the supposed obscene matter if possible, or aver the reason for its ommission. The full name of the injured party or the initials in place of the Christian name, if they are as well known, must be stated in an indictment, but an indictment charging the sale of whiskey without a license need not state the name of the purchaser.66 An averment that the pistol was loaded is unnecessary in an indictment for assault with a deadly weapon, to-wit, a pistol, but in an indictment for homicide, the means whereby life was taken must be averred if known, and the instrumentality must not be essentially different from that alleged-in the indictment.68 Evidence of beating the deceased to death with a gun will not support an indictment for murder by shooting." 65 Where there is a statute creating an offense, it is generally sufficient to describe the offense in the language of the statute," so an indictment under a statute prohibiting a banker from receiving deposits while insolvent need 50 Fielden v People, 128 Ill. 595 (1889). 67 Allen v People, 82 Ill. 610 (1876). 69 People v Lukoszus, 242 Ill. 101 (1909). 69 Guedel v People, 43 Ill. 226 (1867). 70 McCutcheon v People, 69 Ill. 601 (1873) not aver an intent to defraud, if the statute does not make that a material element." An indictment under a statute prohibiting the distribution to or by minors, of publications principally made up of criminal news is sufficient without incorporating all the matter contained in the publication or reciting the prohibited matter." But besides stating the substantive elements of the crime in the statutory language, the particular transaction must be identified and distinguished by apt averments. A statute may be so general in its terms that an indictment following its language will not apprise the accused of the precise nature of the crime charged. An indictment under such a statute must set forth the specific act or acts.74 73 Where a statute creating an offense contains exceptions or provisos, these need not be negatived by an indictment framed under the statute unless such exceptions or provisos are embraced in the same clause which creates the offense, and even then it is not necessary if the exceptions or provisos are not incorporated with the enacting clause, by apt words of reference.75 The Supreme Court has sustained the validity of a statutory provision which dispenses with a specific setting out of the particular acts and transactions constituting the confidence game, and makes sufficient an indictment charging the unlawful and felonious obtaining of money (or property) from A. B. The naming of the victim sufficiently identifies the offense." Informations when substituted for indictments in the county court by statute must, like indictments, inform the accused of the nature and cause of the accusation," and in both informations and indictments, the proper venue must be laid."8 Many of the cases cited under this subheading discuss the sufficiency of the indictment in question without an express reference to the constitutional provision, but the requirement as to particularity and preciseness in indictments is based on the constitutional right of the accused to be informed of the nature and cause of the accusation against him. Right to meet the witnesses face to face. The reading by counsel to a jury from medical books which have not been introduced in evidence and the statement as to what an absent witness would have testified deprive a defendant of his right to confront the witnesses against him." This constitutional right makes impossible the use of depositions in criminal prosecutions as in civil cases for the purpose of supplying the testimony of absent witnesses, but it does not render inadmissible what is known as record evidence, nor does it prevent the use of public records which import verity. Thus, in a prosecution for bigamy, proof may be made by the certificate of marriage returned to the county clerk, or copy thereof, or the county clerk's record of the return.81 80 A defendant in a criminal case is not deprived of his privilege of meeting the witnesses by a statute which authorizes a court to grant a continuance on account of the absence of a material witness unless the opposing party admits in evidence the affidavit as to what such witness, if present, would testify, since the constitutional right may be waived to secure the advantage of an immediate trial. Nor is it a deprivation of this right to admit on the trial of a case the testimony given at a preliminary hearing by 82 71 Meadowcroft v People, 163 Ill. 56 (1896). 72 Strohm v People, 160 Ill. 582 (1896). 84 a witness since deceased.83 The admission in evidence of dying declarations in homicide cases is an exception to the right to meet the witnesses face to face, but statements of the deceased tending to show a motive which are neither dying declarations nor a part of the res gestae, are inadmissible, since motive is a fact which must be proved by witnesses met face to face.85 Right to a speedy public trial. The right to be tried without undue delay, as expressed in general terms in this section has been given effect by legislation requiring trials of accused persons within certain limited periods (Hurd's Revised Statutes 1917, chap. 38, sec. 438) and providing that failure to bring a defendant to trial within the period or term of court fixed shall operate as a complete discharge. While this means entire immunity from prosecution for the offense charged, it does not bar subsequent prosecution for a different and distinct offense growing out of the same transaction.87 To give effect to the constitutional intent, the period fixed must date from the arrest, and not from the time the indictment is returned.88 But where a first trial resulted in a hung jury, the period commences to run again from the date of the disagreement of the jury. Neither the sickness of the judge nor inability for other reasons to preside nor the fact that the trial judge dispensed with a petit jury can operate to defeat the right of an accused to be put on trial within the period fixed by statute." But the constitutional provision prohibits only arbitrary and oppressive delays and has no reference to the delay caused by the prosecution of a writ of error to the Supreme Court.91 The right of a defendant in a criminal prosecution to a public trial is not denied by a temporary closing and locking of the doors of the court room on account of noise and confusion, so long as no one was denied access to the room."2 Trial, as used in this section, means by a fully constituted court and a hearing for two days in the absence of the judge, his place being filled by members of the bar, does not constitute a trial. Even the absence of the judge from the court room during the closing argument for the prosecution is a deprivation of the right to a trial. But it is not error for a judge to go to an adjoining room during the argument of counsel, when the door remained open and he was in a position to pass upon questions presented.95 Trial by an impartial jury. A consideration of the right to jury trial in criminal cases necessarily involves the more comprehensive provision of section 5 of this article, that "the right to trial by jury, as heretofore enjoyed, shall remain inviolate". In passing upon the right of a defendant to waive a jury in criminal prosecutions, the court has made reference to the phrase, "as heretofore enjoyed", which occurs in the other section. In several early cases decided prior to the adoption of the constitution, a waiver of the right to a jury trial in prosecutions for misdemeanors was permitted, but it was held that a jury was an indispensable part of a court 83 Barnett v People, 54 Ill. 325 (1870). Weyrich v People, 89 Ill. 90 (1878). 33 Meredeth v People. 84 Ill. 479 (1877). 95 Schintz v People, 178 Ill. 320 (1899). 6 Zarresseller v People, 17 Ill. 101 (1855); Darst v People, 51 Ill. 286 (1869). |