{ "id": 5458412, "name": "Joseph Montag v. The People of the State of Illinois", "name_abbreviation": "Montag v. People", "decision_date": "1892-03-24", "docket_number": "", "first_page": "75", "last_page": "84", "citations": [ { "type": "official", "cite": "141 Ill. 75" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "35 Ind. 492", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1461921 ], "opinion_index": -1, "case_paths": [ "/ind/35/0492-01" ] }, { "cite": "24 Cal. 640", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2283173 ], "opinion_index": -1, "case_paths": [ "/cal/24/0640-01" ] }, { "cite": "90 Mo. 54", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 456728 ], "opinion_index": -1, "case_paths": [ "/mo/90/0054-01" ] }, { "cite": "53 Ala. 486", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3345397 ], "opinion_index": -1, "case_paths": [ "/ala/53/0486-01" ] }, { "cite": "25 Kan. 349", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 8864846 ], "opinion_index": -1, "case_paths": [ "/kan/25/0349-01" ] }, { "cite": "89 Ill. 90", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 826306 ], "opinion_index": -1, "case_paths": [ "/ill/89/0090-01" ] }, { "cite": "80 Ind. 338", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1311384 ], "opinion_index": -1, "case_paths": [ "/ind/80/0338-01" ] }, { "cite": "116 Ill. 206", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2887280 ], "opinion_index": -1, "case_paths": [ "/ill/116/0206-01" ] }, { "cite": "3 Heisk. 348", "category": "reporters:state", "reporter": "Heisk.", "case_ids": [ 8540354 ], "opinion_index": -1, "case_paths": [ "/tenn/50/0348-01" ] }, { "cite": "87 N. Y. 377", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 549433 ], "opinion_index": -1, "case_paths": [ "/ny/87/0377-01" ] }, { "cite": "43 N. H. 224", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4555650 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/nh/43/0224-01" ] }, { "cite": "4 Neb. 407", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2863493 ], "opinion_index": -1, "case_paths": [ "/neb/4/0409-01" ] }, { "cite": "56 Miss. 269", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 11260566 ], "opinion_index": -1, "case_paths": [ "/miss/56/0269-01" ] }, { "cite": "17 Mich. 9", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1944642 ], "opinion_index": -1, "case_paths": [ "/mich/17/0009-01" ] }, { "cite": "11 Kan. 53", "category": "reporters:state", "reporter": "Kan.", "opinion_index": -1 }, { "cite": "31 Ill. 385", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 8500919 ], "opinion_index": -1, "case_paths": [ "/ill/31/0385-01" ] }, { "cite": "35 Ind. 432", "category": "reporters:state", "reporter": "Ind.", "opinion_index": 0 }, { "cite": "89 Ill. 96", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "116 Ill. 105", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "3 Gilm. 381", "category": "reporters:state", "reporter": "Gilm.", "opinion_index": 0 }, { "cite": "31 Ill. 394", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "56 Mass. 269", "category": "reporters:state", "reporter": "Mass.", "opinion_index": 0 }, { "cite": "24 Cal. 640", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2283173 ], "opinion_index": 0, "case_paths": [ "/cal/24/0640-01" ] }, { "cite": "25 Kan. 349", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 8864846 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/kan/25/0349-01" ] }, { "cite": "17 Mich. 9", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1944642 ], "opinion_index": 0, "case_paths": [ "/mich/17/0009-01" ] } ], "analysis": { "cardinality": 772, "char_count": 19731, "ocr_confidence": 0.494, "pagerank": { "raw": 4.3256945102101503e-07, "percentile": 0.9175200948008938 }, "sha256": "7767fcfc07cdef7284ff6816f8b603adfbe3215b2f97640d9b04d4c7dc59c779", "simhash": "1:3e01726cbed0d183", "word_count": 3482 }, "last_updated": "2023-07-14T20:28:45.742060+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Joseph Montag v. The People of the State of Illinois." ], "opinions": [ { "text": "Mr. Justice Craig\ndelivered the opinion of the Court:\nAt the June term, 1890, of the Criminal Court of Cook county, Joseph Montag, plaintiff in error, was indicted for the murder of his wife, Anna Montag, on the 9th day of June, 1890. A trial of the cause before a jury resulted in a verdict of guilty of murder as charged in the indictment, and the jury fixed the punishment at death. The court overruled a motion for a new trial and rendered judgment on the verdict, and the defendant applied for and obtained this writ of error, which was made a supersedeas.\nIt appears from the record that plaintiff in error was engaged in the mercantile business, for -several years, at 129 North Clark street, Chicago. In the latter part of May, 1890, Eickmeier, a son-in-law, obtained a judgment against plaintiff in error, levied upon the stock of goods, and upon a sale the stock was bought by Mrs. Eickmeier, a daughter of the defendant. She then carried on the store, defendant\u2019s wife acting as cashier. The defendant and his wife resided at No. 107 Wells street, and Mrs. Eickmeier resided next door. About the middle of May a difficulty arose between the defendant and his daughter, Mrs. Eickmeier, in which defendant\u2019s wife took sides with the daughter. The result of this difficulty was, defendant was required by the wife and daughter to leave the home residence. The fact that defendant was required to leave home seems'to have been the source of considerable trouble to him, and he made several efforts to induce his wife to consent to his return. On June 9 he called at the store between twelve and one o\u2019clock, and had a long interview with his wife, remaining some two hours, but his wife did not consent that he might return home. Defendant then left the store, but returned in about a half hour and shot his wife, and in the alley in the rear of the store he shot himself. The wife died a few moments after she was shot, but the wound defendant inflicted on himself did not prove to be dangerous.\nThere is no substantial controversy in regard to the facts. The fact that the defendant shot and killed his wife is conceded. That the homicide was deliberately and intentionally committed is beyond dispute; but counsel for the defendant, as we understand the argument, rely upon three alleged errors rto reverse the judgment: First, that the evidence does not show that the accused was of such sound mind at the time of the killing as to support a verdict of guilty; second, that instruction No. 21, given for the People, was erroneous; and third, that the court improperly permitted a witness to state what the deceased told her the accused had said ten or fifteen minutes before the killing.\nMuch is said in the argument in regard to the proof of insanity, and the burden of proof on that question in a case of this character. The law on that -subject is plain and well understood. Every man is presumed to be sane, and in the absence of evidence which may raise a reasonable doubt of sanity, no evidence need be introduced; but whenever the question of sanity is put in issue by facts coming from either side, which may raise such doubt, then it devolves upon the People to establish the sanity of the prisoner. (Cunningham v. The State, 56 Mass. 269 ; The People v. Garbert, 17 Mich. 9; Hopps v. The People, 31 Ill. 394.) In this case the People offered no proof whatever on the question of the defendant\u2019s sanity. We are, however, inclined to think that no proof was required. There was evidence that the defendant was in trouble with his family, that he was disturbed in mind, and perhaps somewhat excited; but there was little or no testimony which, when properly considered, could raise a reasonable doubt in regard to the sanity of the defendant.\nIn this connection complaint is made that the court failed to instruct the jury in regard to the form of verdict in case they should find the defendant insane at the time of the homicide. No instruction was asked by the defendant on this question, and the court could not be required to volunteer an instruction, especially when there was no sufficient evidence which would justify a verdict of insanity.\nInstruction numbered 21, complained of, was as follows:\n\u201cThe court instructs the jury that voluntary intoxication furnishes no excuse for a crime committed under its influence, even \"if the intoxication is so extreme as to make the author of the crime unconscious of what he is doing, or to create a temporary insanity.\u201d\nThe evidence fails to show that the offense was committed by the defendant while intoxicated, or that he was unconscious of what he was doing, or temporarily insane from intoxication. The evidence on this question was, briefly, as follows: Bell testified: \u201cDefendant said he had been drinking previous to this day, as I understood it. I should think he was drinking that day. I could smell liquor from his breath. Could not tell how much or how little he had been drinking.\u201d Ida Hoerneffer, who was present when the shooting occurred, and during several interviews of the accused with his wife, testified: \"I did not see anything to indicate that he was drinking. * * * When he was in there the fourth time I did not see anything in his manner that would indicate that he was intoxicated.\u201d Henry Montag testified: \u201cI saw him at nine o\u2019clock, and at one o\u2019clock in the afternoon, on the day of the shooting. He seemed excited. I can not say that he was intoxicated.\u201d William Welty, who saw him two hours before the shooting, testified that \u201che was sober at that time.\u201d\nThere was some other evidence in regard to the defendant\u2019s habits for sobriety, but we find no other evidence in regard to the intoxication of the defendant at the time of the shooting. There was therefore no evidence introduced on the trial that could justify the instruction, or upon which it could be predicated. This is conceded in the argument for the People, but it is claimed that as there was no evidence to which the instruction could be applied by the jury they could not be misled by it. The object of an instruction to the jury is clearly laid down in Baxter v. The People, 3 Gilm. 381, where it is said: \"\u201cThe object of instructions is to convey to the minds of the jury correct principles of law as applicable to the evidence which has been laid before them, and nothing should be given them unless it will promote that object.\u201d In United States Rolling Stock Co. v. Wilder, 116 Ill. 105, in considering the same question, it is said: \u201cIt is an elementary principle, of universal application, that all instructions to a jury should be based upon evidence from which it legally and logically reaults,\u2014that it is not error to refuse an instruction which announces a mere abstract proposition of law not suggested or warranted by the evidence in the ease. On the other hand, it is error to give such an instruction where the giving of it will have a tendency to mislead the jury. If, however, where such an instruction is given, the reviewing court is able, from the nature of the case, to say it had no such tendency, then, though improperly given, it will afford no ground for reversal. \u201d\nThere are doubtless many cases where the giving of such an instruction would do no harm, but in a case of this character, where the life of the accused was at stake, we are not prepared to say that the instruction had no tendency to mislead the jury. We do not hold that the giving of this instruction of itself, if the record disclosed no other error, would be sufficient ground upon which the judgment should be reversed. It is not necessary so to hold, as the record discloses another error far more serious than the one just considered.\nIt will be remembered that on the day of the homicide the defendant called at the store where the shooting occurred, between twelve and one o\u2019clock, and had an interview with the deceased, lasting some two or three hours. He then left the store, but in a short time returned, and then the shooting occurred. The witness Ida Hoerneffer was allowed to give a conversation she had with the deceased, which occurred ten minutes after defendant had left the store, and fifteen minutes before he returned. In answer to the question, \u201cWhat did the deceased say to you after he had been out ten minutes ?\u201d she replied: \u201c She told me that he warned her if he couldn\u2019t come and see her that night he would kill her. I asked her if she wasn\u2019t afraid, and she said no.\u201d\nAny declarations or threats that the defendant may have made were competent evidence against him, and if the witness had heard the defendant make the statement which the deceased narrated to the witness, she might have given that statement to the jury. But the declaration was not that of the defendant, but of the deceased, and we are aware of no principle upon which it was admissible unless it was a part of the res gestee. Anything said or done by the deceased or the defendant at the time of the homicide was competent, as a part of the act itself. Greenleaf (vol. 1, sec. 108,) says: \u201cThe principal points of attention are, where the circumstances and declarations offered in proof were contemporaneous with the main fact under consideration, and whether they were so connected as to illustrate its character.\u201d And in the note to the text it is said: \u201cDeclarations, to become a part of the res gestee, must have been made at the time of the act done which they are supposed to characterize, and have been well calculated to unfold the nature and quality of the facts they were intended to explain, and to so harmonize with them as obviously to constitute one transaction.\u201d (See, also, Weyrich v. The People, 89 Ill. 96; The People v. Carkhuff, 24 Cal. 640 ; Cheek v. The State, 35 Ind. 432; Montgomery v. The State, id. 338; The State v. Pomeroy, 25 Kan. 349.) Here, the declarations of the deceased were made in the absence of defendant. It is true, he appeared fifteen minutes after the declaration of the deceased and committed the homicide; but if what the deceased said fifteen minutes before is admissible as a part of the act, upon the same principle what she may have said six hours or twenty-four hours before was also admissible.\nIn Montgomery v. The State, supra, in speaking in regard to the admission of dying declarations, the question under consideration is also discussed. It is there said: \u201cMatters which do not form part of the res gest\u00e6 are not provable by dying declarations. The rule is confined to a statement of the circumstances connected with the fatal act, and forming a part of the same transaction. It is quite well settled that what occurs before or after the act has been done does not constitute a part of the res gest\u00e6, although the interval of separation may be very brief. \u201d The same doctrine is announced in The State v. Pomeroy, supra.\nBut it is said in the argument, omitting this evidence entirely, the remaining evidence shows plainly that the defendant is guilty of murder. Conceding that the other evidence is sufficient to warrant the jury in finding the defendant guilty of murder, that fact alone does not meet the difficulty. Section 142 of our Criminal Code provides: \u201cWhoever is guilty of murder shall suffer the punishment of death, or imprisonment in the penitentiary for his natural life, or for a term not less than fourteen years. If the accused is found guilty by a jury, they shall fix the punishment by their verdict.\u201d Under this section of the Criminal Code the jury not only pass upon the guilt of a defendant, but they also determine what the punishment shall be,\u2014whether it shall be death, or imprisonment for life, or imprisonment for fourteen years. Where the evidence makes out an aggravated case, the jury will be likely to visit upon a defendant a severe punishment,\u2014the severest known to the law; but, on the other hand, where the evidence does not show that premeditation and deliberation which characterize an aggravated case of murder, they would be likely to fix upon the lesser punishment provided by the statute. The testimony admitted was of the most damaging character. Here was a deliberate threat, made a short time before the shooting, to take the life of the deceased, and when this evidence was admitted for the consideration of the jury, with the sanction and approval of the court, it doubtless had an important bearing on the minds of the jury in determining the punishment that should be inflicted upon the defendant for the crime he had committed. Indeed, the evidence could not do otherwise than have a controlling influence with the jury. Under such circumstances it can not be said the defendant has had a fair trial,\u2014one that is guaranteed by the law.\nThe judgment will be reversed and the cause remanded.\nJudgment reversed.", "type": "majority", "author": "Mr. Justice Craig" } ], "attorneys": [ "Mr. N. A. Kaupmann, and Messrs. Alschuler & Murphy, for the plaintiff in error:", "Mr. George Hunt, Attorney General, for the People:", "Mr. J. M. Longenecker, State\u2019s Attorney, and Mr. C. G. Neely, Assistant State\u2019s Attorney, also for the People:" ], "corrections": "", "head_matter": "Joseph Montag v. The People of the State of Illinois.\nFiled at Ottawa March 24, 1892.\n1. Sanity \u2014presumption of\u2014 burden of proof. Every man is presumed to be sane, so that in the absence of evidence which may raise a reasonable doubt of the sanity of one charged with a criminal act, no evidence need be introduced on that point; but when the question of sanity is put in issue by facts coming from either side, which may raise such doubt, then it devolves upon the People to establish the sanity of the prisoner.\n2. Evidence\u2014res gestee\u2014what constitutes. Declarations, to become a part of the res gestee, must be made at the time of the act done which they are supposed to characterize or illustrate, and must be calculated to unfold the nature and quality of the facts they are intended to explain, and to so harmonize with them as obviously to constitute one transaction. What occurs before or after an act has been done does not constitute a part of the res gestee, although the interval or separation may be very brief.\n3. Same\u2014conversation before the acts complained of\u2014not res gestee. On the trial of one for the murder of his wife, it appeared that there had been a difficulty between the parties, in which the defendant was-required to leave his house by the wife, and that on the day of the homicide the defendant had a long interview with his wife, in which he sought for leave to return, which she refused, and that he then left-the store where his wife was, and returned within a half hour and shot her, and then himself, her wound proving mortal. On the trial of the-person committing the homicide, for murder, a witness was called, and. allowed to testify to a conversation with the deceased about ten minutes after the defendant left the store and fifteen minutes before he-returned, to the effect that the wife told her (the witness) that the defendant warned her (the wife) that if he could not come and see her that night he would kill her: Held, that such statement was not a part of the res gest\u00e6, and that the court erred in its admission.\n4. Criminal law\u2014on a trial for murder the court is not required to-volunteer an instruction on the question of sanity. On the trial of one-for murder, where no instruction is asked by him on the question of his sanity, and there is no sufficient evidence that will justify a verdict, of insanity, the court will not be required to volunteer an instruction on the question of the sanity or insanity of the defendant.\n5. Same\u2014voluntary intoxication\u2014no excuse for crime\u2014instruction concerning must be based on the evidence. On the trial of one for murder, where the evidence failed to show that the offense was committed by the defendant while intoxicated, or that he was unconscious of what he was doing, or temporarily insane from intoxication, the court instructed the jury that \u201cvoluntary intoxication furnishes no excuse for a crime committed under its influence, even if the intoxication is so extreme as to make the author of the' crime unconscious of what \"he is doing, or to create a temporary insanity:\u201d Held, that the instruction was improperly given.\n6. Same\u2014sufficiency of legal proof\u2014effect of erroneous damaging evidence. Where the jury are required not only to pass upon the defendant\u2019s guilt, but also upon the measure and extent of his punishment, the admission of erroneous evidence of a highly damaging character is not rendered harmless from the fact that the other evidence clearly shows defendant\u2019s guilt, as such evidence may affect the nature of the punishment inflicted by the jury.\n7. Instructions\u2014-not based on the evidence\u2014when reversible error. If, when an instruction having no sufficient basis in the evidence is given, the reviewing court is able, from the nature of the case, to say it had no tendency to mislead the jury, then, though improperly given, it will afford no ground of reversal. But in a case involving the life of the defendant, when there are other errors in the record, a judgment of conviction will be reversed.\n8. Same\u2014announcing mere abstract propositions of law. It being an elementary principle that an instruction toa jury should be based upon -evidence from which it legally and logically results, it is not error to refuse an instruction which announces a mere abstract proposition of law not suggested or warranted by the evidence in the case. On the other hand, it is error to give such an instruction where the giving of .it will have a tendency to mislead the jury.\nWrit op Error to the Criminal Court of Cook county; the \"Hon. Henry M. Shepard, Judge, presiding.\nMr. N. A. Kaupmann, and Messrs. Alschuler & Murphy, for the plaintiff in error:\nThe burden of proof to show the sanity of the defendant is upon the prosecution. Hopps v. People, 31 Ill. 385; Chase v. People, 40 id. 352; Dacey v. People, 116 id. 555; State v. Crawford, 11 Kan. 53; People v. Garbutt, 17 Mich. 9.\nWhenever the question of sanity is raised and put in issue \"by such facts, proven on either side, as engender a reasonable doubt of sanity, it devolves upon the prosecution to remove it, and to establish the defendant\u2019s sanity beyond a reasonable doubt. Cunningham v. State, 56 Miss. 269 ; Wright v. People, 4 Neb. 407; State v. Bartlett, 43 N. H. 224; State v. Pike, 49 id. 399 ; O\u2019Connell v. People, 87 N. Y. 377; People v. McCann, 16 id. 58; Dove v. State, 3 Heisk. 348.\nThere was no evidence of the intoxication of the accused, -and hence the instruction based on that theory was improper, .and calculated to mislead.\nThe statements made by the deceased to the witness, not -in the presence or hearing of the defendant, was improperly admitted. It was hearsay. Railroad Co. v. Johnson, 116 Ill. 206.\nThe testimony was not admissible as a dying declaration. Montgomery v. State, 80 Ind. 338; Jones v. State, 71 id. 66.\nIt was not a part of the res gestee. Weyrich v. People, 89 Ill. 90; Montgomery v. State, supra; Jones v. State, supra; State v. Pomeroy, 25 Kan. 349; Smith v. State, 53 Ala. 486; Jackson v. State, 20 id. 305; State v. Rider, 90 Mo. 54; State v. Dominique, 30 id. 485; People v. Carhhuff, 24 Cal. 640; Check v. State, 35 Ind. 492.\nMr. George Hunt, Attorney General, for the People:\nThe evidence was too meager to raise the question of defendant\u2019s insanity. If the defendant desired instructions on the question, he should have asked the court to give them.\nThe instruction as to intoxication was harmless, and there was evidence of his intoxication at various times in the last few years.\nThe evidence of the statements of the deceased could work no harm. Independent of this evidence the proof of the homicide was ample. The case was fully made without this evidence.\nMr. J. M. Longenecker, State\u2019s Attorney, and Mr. C. G. Neely, Assistant State\u2019s Attorney, also for the People:\nThe statements of the deceased were admissible as part of the res gestee. 2 Bishop on Crim. Proc. sec. 62; Wharton on Crim. Evidence, (9th ed.) secs. 262, 263." }, "file_name": "0075-01", "first_page_order": 75, "last_page_order": 84 }