Opinion
Gen. No. 8,415.
Opinion filed June 11, 1930.
1. CRIMINAL PROCEDURE — sufficiency of verdict of guilty in manner and form charged. In a prosecution for assault with a deadly weapon, the verdict was not open to the objection that it did not contain all the elements necessary to constitute the crime, where the defendant was found guilty in the manner and form charged in the indictment, the sufficiency of which was not questioned.
2. CRIMINAL PROCEDURE — propriety of instruction given after submission of case to jury. Where a jury in a prosecution for assault with a deadly weapon, when called by the court after long deliberation, asks if they may presume from the evidence that anything happened to enrage the defendant previous to the time of the assault, an instruction that if they believe from the evidence beyond all reasonable doubt that the defendant made an assault with a deadly weapon upon the complainant at the time and place in question, with intent to inflict bodily injury, and if they further believe from the evidence beyond a reasonable doubt, that just prior to said assault, if any there was, the complainant had not said anything to the defendant and had done nothing in his presence to provoke defendant, then they should find the defendant guilty in the manner and form charged in the indictment, is not open to objections on the ground that it was not in response to the inquiry of the jury and that its effect was to coerce a verdict, where no objection was made to its accuracy.
3. CRIMINAL PROCEDURE — when instructions permissible after submission of case to jury. Where a jury in a prosecution for assault with a deadly weapon, when called by the court after long deliberation, makes inquiry on a point of law and the court gives instructions in answer thereto, an objection that the court had no right to instruct the jury at that stage of the proceedings cannot be sustained, since additional instructions may be given in a criminal case after the jury has retired, where defendant and his counsel are present and are given an opportunity to submit further instructions.
4. WITNESSES — inadmissibility of conversations of defendant's wife. In a prosecution for assault with a deadly weapon, it was not error to refuse to permit the defendant or his wife to testify as to what she had told the defendant, prior to the assault, concerning threats made by the complainant, since the wife of the defendant is an incompetent witness and nothing she may have said can be testified to by another.
Appeal from the Circuit Court of McLean county; the Hon. EDWARD BARRY, Judge, presiding.
L.C. SIEBERNS and W.B. LEACH, for plaintiff in error.
JOSEPH W. DE PEW, State's Attorney and EDWARD BARRY, JR., Assistant State's Attorney, for defendant in error.
Plaintiff in error was convicted under an indictment consisting of one count in which it was charged that he, then and there being armed with a certain revolver, the same being a dangerous and deadly weapon, with said revolver, and without any considerable provocation whatever, and under circumstances showing an abandonment and malignant heart, did, unlawfully, wilfully and maliciously make an assault in and upon one Fred Niergarth, a human being in the peace of the people of the State of Illinois then and there being, with intent then and there to inflict upon the person of the said Niergarth a bodily injury. The verdict of the jury was as follows: "We the jury find the defendant Egbert Hudson guilty of an assault with a deadly weapon, in manner and form as charged in the indictment, and we further find from the evidence that the said defendant is now about the age of fifty-one years." It is contended that the verdict is insufficient in that it does not contain all the elements necessary to constitute the crime. In the case of Donovan v. People, 215 Ill. 520, it is held: "Reference may be had to the indictment or the count under which the verdict is found, and where an indictment charges a crime, a general verdict of guilty in manner and form as charged in the indictment is a specific finding of each element of the crime as charged, and is sufficient." The court held in that case that the verdict was in sufficient, the crime involved being an assault with intent to commit rape, because the verdict only found the defendant guilty on an intent to commit rape and omitted any finding in regard to an assault with intent to commit rape. An intent to commit rape is not a crime unless there is some overt act to carry out the intent, but no such defect appears in the verdict in the case at bar. There was but one count in the indictment and the verdict is sufficient.
After the jury had retired to consider their verdict and had been out about 25 hours without coming to an agreement the court, in the presence of plaintiff in error and his counsel and the State's Attorney, directed the sheriff to call the jury into the court room. Whereupon he asked them if they had been able to reach a verdict to which the foreman replied that they had not. The court then asked them whether the trouble was on the facts or the law or both and the foreman replied, "Both." The court then asked them if they had studied the instructions and the foreman replied that they had. Thereupon the court asked them if they desired further instructions and counsel for the plaintiff in error stated that he wanted an objection noted to each one of these questions. The foreman answered that he was inclined to think that with further instructions they might reach a verdict. The court then directed the jury to retire to the jury room and indicate in writing on what subject they desired further instructions. The jury retired and shortly thereafter again came into the court and presented a written request as follows: "Have we any right to presume from the evidence that anything happened to enrage the defendant before the trouble on the sidewalk on that date." The court then read to the jury the following instruction in the presence of all the parties above noted: "The court instructs the jury, that if you believe from the evidence beyond all reasonable doubt that the defendant made an assault upon Fred Niergarth with a deadly weapon at the time and place in question, with an intent to inflict upon the person of the said Niergarth a bodily injury; and if you further believe from the evidence beyond a reasonable doubt, that just prior to the said assault, if any there was, the said Fred Niergarth had not said anything to the defendant, and had done nothing in the presence of the defendant to provoke the defendant, then and in such case you should find the defendant guilty of an assault with a deadly weapon, in manner and form as charged in the indictment." To this instruction plaintiff in error objected on the ground that at that stage of the case the court had no right to instruct the jury and that the instruction submitted to the inquiry of the jury was not in response thereto, and that the effect thereof was to coerce a verdict. No objection was made to the accuracy of the instruction. The jury again retired and subsequently returned a verdict heretofore noted. It is claimed this was error. It has been frequently held that a court may give additional instructions in a criminal case after a jury has retired in the presence of the defendant and his counsel where also an opportunity is given to the defendant to submit further instructions if he so desired. Crowell v. People, 190 Ill. 508; Shaw v. Camp, 160 Ill. 425; Lee v. Quirk, 20 Ill. 392.
The principal errors relied on, however, by plaintiff in error are the court's rulings on the admissions of evidence. Plaintiff in error was asked on his direct examination the following question: "While you were at the State Bank of Gridley did you receive a telephone call?" This question was objected to. Whereupon counsel for plaintiff in error made an offer of proof to the effect that the witness while he was at the State Bank of Gridley received a telephone call from his wife asking him to come home at once. The court sustained the objection to the question and to the offer. The witness then testified that he went from the bank to Taylor's drug store and that from Taylor's drug store he went to his home. The statement that he went to his home was stricken out over the objection of the State's Attorney. The witness was then asked where he went after he left Taylor's drug store to which an objection was sustained. Counsel then offered to prove by the witness that after he left Taylor's drug store he went to his home in company with Mr. Taylor where he had a conversation with his wife. An objection was sustained to the offer. He was then asked this question, "During the time you were gone did you have a conversation with anybody?" to which objection was also sustained. Then the following offer of proof was made: "I offer to prove by the witness now on the stand that he left Taylor's drug store in company with Mr. Taylor in response to a telephone message that he had received from his wife, and went to his home approximately three and a half blocks from Taylor's drug store; that when he got home he found his wife very much excited and she told him that the complaining witness, Fred Niergarth, had been there and demanded to know where Pansy was; that his wife told him that she did not know where Pansy was; that thereupon the complaining witness, Fred Niergarth, told her that she 'was a God damned liar' and that he 'would get both of them'; that the defendant immediately left the home and went back to the business district of Gridley to the place where the alleged assault occurred, and that the time that he was gone from Taylor's drug store up until he had the conversation with his wife and returned, did not exceed five minutes." All these facts sought to be proved took place prior to the assault in question. A wife of a defendant in a criminal case is an incompetent witness for any purpose unless she is the one on whom the wrong has been committed by the defendant nor can anything that she may have said be testified to by another witness. In People v. Jordan, 292 Ill. 514, where evidence was sought to be introduced of certain statements made by the wife of the defendant it was held: "The fatal objection to this evidence is that it brought before the jury a statement of a witness who was not competent to testify to the fact and in defiance of an express statutory provision." The same rule is announced in the civil case of Schreffler v. Chase, 245 Ill. 395. There was no error in the rulings of the court on the exclusion of this evidence. Neither was there any error in refusing to permit the wife of plaintiff in error to testify.
There was no reversible error in the instructions of the court and as the assault itself was admitted by the plaintiff in error and otherwise abundantly proved, the judgment of the circuit court is affirmed.
Affirmed.