98 for the trial of felony cases, and that the consent of the accused could not vest jurisdiction in a judge to try a case alone." In holding that a jury might be waived in the trial of misdemeanors, it has been shown that it is immaterial in this connection whether the phrase, "as heretofore enjoyed", refers to the common law system of jury trials or whether it means the jury system that existed at the time of the adoption of the constitution since, in either case, a jury of twelve men was indispensable only for offenses which required a commencement by indictment. In a more recent decision, the court after holding that the constitution guarantees the right of trial by jury as it existed at common law, points out that the use of the term "misdemeanors" to indicate the class of cases in which a jury may be waived, is inaccurate, since at common law a trial by jury was known only as to cases which followed upon indictment, and under the construction placed on section 8 of this article, an indictment is required in the case of certain misdemeanors. Consequently, a jury trial may be waived only in the trial of those misdemeanors which may be commenced otherwise than by indictment." It has been held, however, that the right to waive a jury in any kind of a criminal case is dependent upon a statute vesting jurisdiction in the court without a jury, but this point seems to have been overlooked in the earlier cases.1 The right of jury trial does not include the right to have one jury try an issue of misnomer and a different jury to pass upon the merits." Nor is there a constitutional right to have the jury fix the punishment, but it may be fixed by operation of law, as in the case of an indeterminate sentence, or by the court as in convictions for wife abandonment.* The expression "impartial jury" as incorporated in the constitution had a fixed and definite meaning in the common law, and must be understood to mean a jury which stands indifferent between the parties. The court, however, in determining the competency of a juror has distinguished between mere impressions which have been hastily formed, and the decided bias which comes from a fixed opinion. It was early recognized that the fact that a prospective juror had expressed his opinion was entitled to consideration in determining whether the opinion was apt to be of an abiding character. In fact, in the first decision by the Supreme Court on this question. it was said that no opinion, whether the most hasty impression or a confirmed belief, would disqualify unless it had been expressed, but shortly after this decision, the court in a leading case laid down the rule that if a juror had made up a decided opinion upon the merits of the case, either from personal knowledge of the facts, or from the statements of witnesses. or from the relations of the parties, or from rumor, and that opinion was positive and not hypothetical, he was disqualified. A statute providing that the forming of an unexpressed opinion shall not disqualify if the juror shall state he can fairly and impartially render a verdict and the court shall be satisfied of the truth of the statement, does not violate the constitutional provision, but it must be construed as merely admitting in evidence the statement of the juror along with other facts by which the court can determine his qualifications. 3 While the limits to the examination of prospective jurors by counsel must rest in the sound discretion of the court, it must afford a reasonable opportunity, not only to disclose ground for challenge for cause, but also other 97 Harris v People, 128 Ill. 585 (1889); Morgan v People, 136 Ill. 161 (1891); but see Kelly v People, 115 Ill. 583 (1886). 98 Brewster v People, 183 Ill. 143 (1899). 99 Paulsen v People, 195 Ill. 507 (1902). 1 Brewster v People, 183 Ill. 143 (1899). 2 Schram v People, 29 Ill. 162 (1862). 3 George v People, 167 Ill. 447 (1897): People v Illinois State Reformatory 148 Ill. 413 (1894). facts which might have a bearing on the exercise of the right of peremptory challenge. Otherwise, it is practically a denial of the right to a fair and impartial jury.' Thus, in selecting a jury for a trial on the charge of selling intoxicating liquor to a person in the habit of becoming intoxicated, it is error not to permit the defendant's attorney to inquire as to membership in temperance societies or leagues formed for the prosecution of a certain class of persons.10 The locality from which the jury is to come. This section guarantees the right of a person accused of crime to be tried by a jury of the county or district in which the offense is alleged to have been committed. County or district corresponds to the visne or neighborhood of the common law and has come to mean simply county. It has no relation to a judicial circuit, so that when the right to a trial in a particular county is waived by an application for a change of venue, there is no constitutional requirement that it be sent to another county in the same circuit." A statute, however, permitting offenses committed within one hundred yards of a county line to be tried in either county, is invalid. The court expressly exempts from this holding offenses committed on a county line or within an inappreciable distance from it and cases where the offense is committed by a person in one county on a person or thing in another county.12 For the same reason, the city court act can not have application to a city, the territory of which lies in two counties.1 While the constitutions of 1818 and 1848 limit absolutely the jurisdiction of criminal offenses to the county where the offense actually was committed, the revised wording in the present constitution must be taken as evidence that the intent was to empower the General Assembly, in its discretion, to provide for the presentment of indictments in which the allegation as to the venue is not in accordance with the fact, and to determine what offenses shall be treated as transitory. Therefore, a statute providing that when an offense is committed on a railroad car or water-craft, and it cannot readily be determined in what county the commission actually occurred, it may be prosecuted in any county through which the car or water-craft has come on or near the time of the commission of the offense, does not violate the constitutional provision.14 Section 10. No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense. Self crimination. The first clause in this section guarantees the right of a person to refuse to answer any question, if the answer will expose him to imprisonment, fine, forfeiture or penalty.15 The provision is directed against compulsion in obtaining self-criminating evidence and not against testimony voluntarily offered. Incriminating statements made by an accused after being warned that they might be used against him, are properly received in evidence." But testimony elicited by a special interrogation of the accused at a coroner's inquest, not given voluntarily or of his own motion, 16 9 Donovan v People, 139 Ill. 412 (1891). 10 Lavin y People, 69 Ill. 303 (1873). 11 Weyrich v People, 89 Ill. 90 (1878). 13 Buckrice v People, 110 I. 29 (1884). 13 People v Rodenberg, 254 Ill. 386 (1912). 14 Watt v People, 126 Ill. 9 (1888). 15 People v Butler Street Foundry and Iron Co., 201 Ill. 236 (1903). 10 Hoch v People, 219 111. 265 (1906). cannot be used to convict him at a later trial." Answers made by a defendant to a creditor's bill to discover property fraudulently concealed, cannot be read in evidence against a defendant on trial under indictment for fraud.18 An indictment should be quashed when it is shown that it is based upon the testimony of the accused who was taken from jail to appear before that body.10 Even after a defendant an arraignment has pleaded guilty, if it appears that he is a foreigner and does not understand the charge against him, or his rights, he should not be called upon by the court to divulge incriminating facts.20 The privilege of refusing to testify is a personal one and must be claimed by the witness himself and the refusal must be based on the ground that the answer would tend to criminate him." A principal may not refuse to answer for the reason that his answer would criminate his agent; 22 nor can an officer refuse to produce books and papers of a corporation which are not his private records.23 Nor can a party to a suit assign as error the refusal of the trial court to inform a witness of his right not to testify. But when a defendant has waived his privilege at a former trial, his testimony may be introduced against him at a subsequent trial at which he does not take the stand.25 A witness is not the sole and absolute judge as to his right to refuse to answer, but the court must be able to see from the circumstances of the case and the nature of the evidence which the witness is called upon to give, that there is reasonable grounds to apprehend danger to the witness from being compelled to answer. But in order to claim the protection of the constitutional privilege, it is not necessary that the answer to a particular question is in itself incriminating, if it is one of a series of questions, the effect of which is to establish criminality. If, as the court has said, the answer would disclose a fact which forms a necessary and essential link in the chain of testimony which would be sufficient to convict him of any crime, he is not bound to answer it, so as to furnish matter for that conviction."27 And if a witness voluntarily discloses part of a transaction exposing him to criminal prosecution, he waives his privilege as to the whole transaction so long as it is a continuous account.28 The right to refuse to testify does not extend to offenses which can not be made the basis of criminal prosecution by reason of the running of the statute of limitations.29 But the fact that the prosecution is barred by the statute, and that no prosecution is pending, must be shown before a witness can be compelled to answer.30 For the same reason, where immunity from prosecution is granted a witness, he may not refuse to divulge incriminating evidence. But the immunity must cover prosecution as to all offenses involved in the transaction which is the subject of inquiry and be co-extensive with the constitutional privilege. Thus, a witness granted immunity from prosecution for bribery may refuse to answer if his answers would tend to criminate him of gambling. But if there is merely a bare possibility that the disclosure will furnish evidence of violations of laws of the United States or other states, that is not a real and probable danger which will afford reason for refusing to testify.32 31 17 Lyons v People, 137 Ill. 602 (1891). 18 Parrish v Byrns, 67 Ill. 522 (1873). 19 Boone v People, 148 Ill. 440 (1894). 20 Gardner v People, 106 Ill. 76 (1883). 21 Eggers v Fox, 177 Ill. 185 (1898); Buckingham v Angell, 238 Ill. 564 (1909). 22 N. Y. Life Ins. Co. v People, 195 Ill. 430 (1902). 23 Lamson v Boyden, 160 Ill. 613 (1896). 24 Bolen v People, 184 Ill. 338 (1900). 25 Miller v People, 216 Ill. 309 (1905). 26 Manning v Mercantile Securities Co., 242 Ill. 584 (1909). 27 Minters v People, 139 Ill. 363 (1891). 23 Samuel v People, 164 Ill. 379 (1897). 29 Weldon v Burch, 12 Ill. 374 (1851). 30 Lamson v Boyden, 160 Ill. 613 (1896). 31 People v Argo, 237 Ill. 173 (1908). The prohibition against compelling a person to criminate himself necessarily implies that the refusal to testify may not be the basis of prejudice or disadvantage. The failure of a defendant to take the stand may not be the subject of comment by counsel or the court, nor can reference be made to the right of the defendant to testify in his own behalf. And the same rule has been applied to the testimony of a co-defendant, particularly where the prosecution had the same opportunity to offer his testimony.** It was contended that the practice of entering a rule on the defendant to answer in contempt proceedings for acts committed out of the presence of the court, was unconstitutional for the reason that it compelled the defendant to give evidence against himself. The court, however, refused to pass upon this question since no exemption from answering had been claimed in the trial court.35 The fact that a witness might have properly refused to answer is no defense to a perjury charge if he waives his privilege and testifies falsely.36 Double jeopardy. The provision against double jeopardy for the same offense prohibits the retrial of a defendant after discharge by reason of not being afforded a speedy trial or by acquittal. This bars the prosecution of a writ of error by the state in a criminal prosecution 38 whether for a felony or misdemeanor." So a person indicted for murder and convicted of manslaughter, who obtains a new trial, may not be tried again for murder.40 But a trial, which in contemplation of law, does not constitute jeopardy will not bar a subsequent prosecution. The court has so held as to a trial under an indictment which was nolle prossed before a complete jury was selected and sworn;" and a trial in which the jury were unable to reach a verdict;+2 and also a trial in which the verdict had been set aside upon motion of the defendant. A trial in a felony case by a judge without a jury does not constitute jeopardy so as to preclude a subsequent prosecution.44 43 46 One transaction may include several offenses, and the prosecution for one offense will not bar a subsequent prosecution for a separate and distinct offense. One who has been convicted for assault and battery may be placed on trial for riot for the same transaction.4 And so the trial and acquittal on a charge of larceny by embezzlement based on some forged notes does not bar a later trial for forgery, the notes being the basis of both prosecutions." The principle is carried even to the extent of holding that a trial and acquittal for murdering a certain person by shooting is not a bar to a prosecution for the murder of the same person by beating with a gun.* In other words the second offense, to constitute double jeopardy, must agree in law and in fact with some offense of which the accused might have been convicted under the first indictment. A plea of former acquittal of a crime committed in one county will not be valid on a trial in another county except as to a transitory offense for which an indictment might be returned in either county.49 The same act may be an offense against the state and a municipality and may be punished by both. Thus, 48 33 Miller v People, 216 Ill. 309 (1905). 41 O'Donnell v People, 224 Ill. 218 (1906). 43 Dreyer v People, 188 Ill. 40 (1900). 43 Gannon v People, 127 Ill. 507 (1889); Lane v People, 10 Ill. 305 (1848). 44 Paulsen v People, 195 Ill. 507 (1902). 45 Nagel v People, 229 Ill. 598 (1907); People v Nall, 242 Il. 284 (1909). 46 Freeland v People, 16 Ill. 380 (1855). 47 Spears v People, 220 Ill. 72 (1906). 48 Guedel v People, 43 Ill. 226 (1867). 49 Campbell v People, 109 Ill. 565 (1884). a conviction under a city ordinance will not bar a prosecution by the state for the same act.50 In fact, a statute may permit a township to recover a fine or penalty and another statute permit the state to punish the same act as a nuisance.51 It has been held that statutes providing heavier penalties for repeated offenses do not violate the prohibition against putting a person in jeopardy twice for the same offense.52 Section 11. All penalties shall be proportioned to the nature of the offense; and no conviction shall work corruption of blood or forfeiture of estate; nor shall any person be transported out of the state for any offense committed within the same. Proportionate penalties. It has been suggested that the provision requiring that punishments be proportioned to offenses is equivalent to the prohibition in the federal constitution against cruel and unusual punishments. It is directed to the law-making body and courts are reluctant to sustain an objection to a penalty fixed by that body unless it is a cruel and degrading punishment unknown to the common law, or so wholly disproportionate as to shock the moral sense.53 The Supreme Court has sustained a fine of not less than $1,000 for failure on the part of railroad companies to make and file statements of taxable property; a fine of $200 by ordinance for selling or giving away intoxicating liquor without a license under a statute authorizing cities to punish by a fine of not over $200;55 a penalty of from $1,000 to $5,000 for unjust discrimination in rates for carriage;" 56 and a fine of from $500 to $1,000 for rebating by insurance companies." Inasmuch as the maximum term provided by law cannot be said to be disproportionate, commitment > under the indeterminate sentence act for a period not longer than the maximum term provided will not violate the constitutional provision." More severe punishments for subsequent convictions are sustained on the theory that a repetition of the offense aggravates the guilt, and are not objectionable.59 That a person has committed so many offenses that the combined punishment is severe does not constitute any objection to the penalty provided for each count as in the case of sentence on seventy-one counts for violations of the liquor laws on different days.60 But a statute prohibiting discriminations in freight rates and providing for the forfeiture of all franchises as a penalty for violation, in effect imposes a fine which would in some cases amount to millions of dollars and does not proportion the penalty to the offense.61 Corruption of blood and forfeiture of estate. This prohibition against corrupton of blood or forfeiture of estate has not been invoked against legis E 50 Robbins v People, 95 Ill. 175 (1880); Hankins v People, 106 Ill. 628 (1883). 51 Wragg v Penn Township, 94 Ill. 11 (1879). 52 Kelly v People, 115 Ill. 583 (1886). 53 People v Elliott, 272 Ill. 592 (1916). 54 C. R. I. & P. Ry. Co. v People, 217 Ill. 164 (1905). 55 City of Arcola v Wilkinson, 233 Ill. 250 (1908). 56 People v B. & O. S. W. R. R. Co., 246 Ill. 474 (1910). 57 People v American Life Ins. Co., 267 Ill. 504 (1915). 53 People v State Reformatory, 148 Ill. 413 (1894). 59 Kelly v People, 115 Ill. 583 (1886). 60 People v Elliott, 272 Ill. 592 (1916). |