{ "id": 2728719, "name": "James Wilson v. The People of the State of Illinois", "name_abbreviation": "Wilson v. People", "decision_date": "1880-01", "docket_number": "", "first_page": "299", "last_page": "327", "citations": [ { "type": "official", "cite": "94 Ill. 299" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "74 Ill. 146", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "72 Ill. 179", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2714536 ], "opinion_index": -1, "case_paths": [ "/ill/72/0179-01" ] }, { "cite": "71 Ill. 511", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "40 Ill. 502", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "79 Ill. 525", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2687899 ], "opinion_index": -1, "case_paths": [ "/ill/79/0525-01" ] }, { "cite": "77 Ill. 309", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 821820 ], "opinion_index": -1, "case_paths": [ "/ill/77/0309-01" ] }, { "cite": "78 Ill. 332", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 824033 ], "opinion_index": -1, "case_paths": [ "/ill/78/0332-01" ] }, { "cite": "71 Ill. 100", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5310811 ], "opinion_index": -1, "case_paths": [ "/ill/71/0100-01" ] }, { "cite": "80 Ill. 416", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2681949 ], "opinion_index": -1, "case_paths": [ "/ill/80/0416-01" ] }, { "cite": "4 Wend. 257", "category": "reporters:state", "reporter": "Wend.", "opinion_index": -1 }, { "cite": "10 Pick. 497", "category": "reporters:state", "reporter": "Pick.", "case_ids": [ 2014345 ], "opinion_index": -1, "case_paths": [ "/mass/27/0507-01" ] }, { "cite": "15 Ill. 511", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 436695 ], "opinion_index": -1, "case_paths": [ "/ill/15/0511-01" ] }, { "cite": "73 Ill. 329", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5318535 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/73/0329-01" ] }, { "cite": "73 Ill. 320", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5318655 ], "opinion_index": -1, "case_paths": [ "/ill/73/0320-01" ] }, { "cite": "42 Ill. 292", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "42 Ill. 131", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "5 Gilm. 508", "category": "reporters:state", "reporter": "Gilm.", "opinion_index": -1 }, { "cite": "5 Gilm. 480", "category": "reporters:state", "reporter": "Gilm.", "opinion_index": -1 }, { "cite": "2 Gilm. 552", "category": "reporters:state", "reporter": "Gilm.", "opinion_index": -1 }, { "cite": "82 Ill. 523", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "63 Ill. 525", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "60 Ill. 473", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "3 Gilm. 202", "category": "reporters:state", "reporter": "Gilm.", "case_ids": [ 2463016 ], "opinion_index": -1, "case_paths": [ "/ill/8/0202-01" ] }, { "cite": "54 Ill. 274", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5274529 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/54/0274-01" ] }, { "cite": "53 Ill. 317", "category": "reporters:state", "reporter": "Ill.", "weight": 2, "opinion_index": -1 }, { "cite": "24 Ill. 65", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "3 Scam. 81", "category": "reporters:state", "reporter": "Scam.", "weight": 2, "pin_cites": [ { "page": "89" } ], "opinion_index": -1 }, { "cite": "54 Ill. 470", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "58 Ill. 421", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "77 Ill. 29", "category": "reporters:state", "reporter": "Ill.", "opinion_index": -1 }, { "cite": "80 Ill. 28", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2681424 ], "opinion_index": -1, "case_paths": [ "/ill/80/0028-01" ] }, { "cite": "73 Ill. 381", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5317105 ], "opinion_index": -1, "case_paths": [ "/ill/73/0381-01" ] }, { "cite": "30 Miss. 656", "category": "reporters:state", "reporter": "Miss.", "case_ids": [ 11262393, 12144822 ], "opinion_index": -1, "case_paths": [ "/miss/30/0656-01", "/mor-st-cas/1/0860-01" ] }, { "cite": "26 Ill. 344", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5244762 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/ill/26/0344-01" ] }, { "cite": "3 Gilm. 376", "category": "reporters:state", "reporter": "Gilm.", "opinion_index": -1 }, { "cite": "53 Ill. 354", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5277237 ], "opinion_index": 0, "case_paths": [ "/ill/53/0354-01" ] }, { "cite": "88 Ill. 312", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5339871 ], "opinion_index": 0, "case_paths": [ "/ill/88/0312-01" ] }, { "cite": "82 Ill. 522", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "3 Scam. 88", "category": "reporters:state", "reporter": "Scam.", "opinion_index": 0 }, { "cite": "24 Ill. 65", "category": "reporters:state", "reporter": "Ill.", "opinion_index": 0 }, { "cite": "3 Scam. 81", "category": "reporters:state", "reporter": "Scam.", "opinion_index": 0 } ], "analysis": { "cardinality": 1657, "char_count": 59981, "ocr_confidence": 0.561, "pagerank": { "raw": 5.614725794349844e-07, "percentile": 0.9481981381926128 }, "sha256": "b5c0958fcbdb3c5b21fb1f258007c94b07c3f49fa84b531d2b565f7c609b1b0a", "simhash": "1:b1ef33762c004284", "word_count": 10654 }, "last_updated": "2023-07-14T21:30:34.542925+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "James Wilson v. The People of the State of Illinois." ], "opinions": [ { "text": "Mr. Justice Scholfield\ndelivered the opinion of the Court:\nAn indictment was returned by the grand jury of,Hancock county into the circuit court of that county, at its October term, 1876, against Zachariah Wilson, alias Zack Wilson, Nicholas Wilson, alias Nick Wilson, and James Wilson, for the murder of Thomas McDonald.\nJames Wilson was put upon his trial alone, upon that indictment, at the March term, 1877, of the Hancock circuit court. The jury returned a verdict of guilty,- as charged in the indictment, against him, and fixed his punishment at fourteen years imprisonment in the penitentiary. The court, after overruling motions for a new trial and in arrest of judgment, gave judgment upon the verdict of the jury, and the present writ of error is prosecuted to reverse that judgment.\nWhile empanneling the jury, William Gray was called as a juror in the case, and, being first duly sworn, testified, in response to questions touching his qualifications as a juror: \u201c I have read newspaper accounts of the commission of the crime with which the defendant is charged, and have also conversed with several persons in regard to it since coming to Carthage and during my attendance upon this term of court; do not know whether they are witnesses in the case or not; do not know who the witnesses in the case are. From accounts I have read and from conversations I have had, I have formed an opinion in the case; would have an opinion in the case now, if the facts should turn out as I heard them, and I think it would take some evidence to remove that opinion; would be governed by the evidence in the case, and can give the defendant a fair and impartial trial, according to the law and the evidence.\u201d The defendant, by his counsel, thereupon challenged said Gray, for cause, but the court refused to allow the challenge, and held that he was a competent juror to try the case. To this the defendant excepted, and then challenged Gray peremptorily.\nA. A. Garlinghauser was also called as a juror in the case, and, after he was examined touching his qualifications as a juror, the defendant challenged him peremptorily.\nThe point is made that the court erred in holding these jurors to be competent.\nThe question of Garlinghauser\u2019s competency was not raised in the court below. The bill of exceptions simply shows that, after his examination touching his competency, the defendant challenged him peremptorily. It fails to show that the question of his competency was presented to the court by challenge for cause or otherwise.\nWe think all objection to Gray\u2019s competency is clearly removed by the statute, if indeed he would have been incompetent otherwise. It provides in two of the clauses of sec. 14, chap. 78 (Rev. Stat. 1874, p. 633,) as follows: \u201cProvided, further, that it shall not be a cause of challenge that a juror has read in the newspapers an account of the commission of the crime with which the prisoner is charged, if such juror shall state, on oath, that he believes that he can render an impartial verdict according to the law and the evidence: And, provided, further, that in the trial of any criminal cause, the fact that a person called as a juror has formed an opinion or impression based upon rumor or upon newspaper statements (about the truth of which he has expressed no opinion), shall not disqualfy him to serve as a juror in such case, if he shall, upon oath, state that he believes he can fairly and impartially render a verdict therein in accordance with the law and the evidence, and the court shall be satisfied of the truth of such statement.\u201d\nThe opinion formed seems not to have been decided, but one of a light and transient character which, at no time, would have disqualified the juror from serving. It was said, in Smith v. Eames, 3 Scam. 81, \u201cIf the opinion be merely of a light and transient character, such as is usually formed by persons in every community, upon hearing a current report, and which may be changed by the relation of the next person met with, and which does not show a conviction of the mind and a fixed conclusion thereon, or if it be hypothetical, the challenge ought not to be allowed.\u201d See also, to the same effect, Gardner v. The People, 3 Scam. 88; Thompson v. The People, 24 Ill. 65; Leach v. The People, 53 id. 317.\nBut even if the juror had been incompetent, still, under the ruling in Robinson v. Randall, 82 Ill. 522, holding that he was competent was an error that did no harm, and could not, therefore, be held to be ground for reversal. The defendant exhausted but two of his peremptory challenges, and hence, when he accepted the jurors by whom he was tried, he was entitled to eighteen peremptory challenges; and it must, therefore, be presumed the jurors by whom he was tried were entirely unobjectionable to him.\nThe most important question in the case, and that to which our attention shall now be directed, is, whether the verdict is against the law and the evidence?\nThe fact that Thomas McDonald was shot and killed by Zachariah Wilson, in Wade\u2019s drug store, in the town of Plymouth, Hancock county, on Monday, the 14th of August, 1876, is not controverted. It is controverted, however, 1st, that James Wilson w\u00e1s a party to that killing; and 2d, that such killing was felonious.\nThe evidence shows, that on Saturday, the 12th day of August, 1876, Zachariah Wilson and Thomas McDonald were in Plymouth. Wilson had got on his horse to go home, and, whilst his horse was drinking at a public well, McDonald seized the bridle and threatened to whip Wilson\u2014cursing and abusing him with loud and profane epithets\u2014and daring him to get off his horse and fight. Wilson seems to have taken this very quietly, at the time, remaining on his horse, and, when ready to go, disengaging McDonald\u2019s hold without difficulty. The witnesses all concur that he let his horse walk off at a moderate pace, and kept watching McDonald over his shoulder, who followed him for some distance, abusing him, threatening him, and challenging him to fight. Some of the witnesses think McDonald had a knife or pistol, or both, in his hands at the time, while others, with equal opportunity for observation, deny that he displayed any weapons whatever. Some of the witnesses also say that McDonald, at this time, threatened to kill Wilson, while others, with equal opportunity of hearing, deny that he made such threats. Without stopping to consider on which side is the weight of evidence in these respects, we think it sufficient to say that all of the witnesses concur that McDonald did not use, or attempt to use, any weapon upon Wilson ; and they also concur in describing such conduct on the part of Wilson, as pretty clearly indicated, that he, in fact, had no fear of McDonald. It is shown, however, that his anger was aroused, and that he resolved to have revenge.\nZachariah Wilson, when examined as a witness, admitted that he intended, on Monday, the 14th of August, to cowhide McDonald, qualifying it, however, with the proviso, \u201cif McDonald did not let him alone.\u201d\nWhether the defendant was in Plymouth, on Saturday, is not certain,\u2014both he and Zachariah deny that he was\u2014but one of the defendant\u2019s witnesses (Washington) makes McDonald say, on Saturday, that he was threatening him and Zachariah, and he Avould kill both before they left town. This, doubtless, is not very reliable; but it is certain, at all events, that defendant learned, in some way, on Saturday, that there had been trouble between Zachariah and McDonald on that day; for he says, in his direct examination as a witness, \u201cI had been informed, on Saturday, that McDonald, with the Barkers, had assaulted Zack.\u201d\nThe defendant, Zachariah, and Nicholas Wilson, are brothers, and, at that time, they lived in the country, within a few miles of Colmar, though not all in the same locality. On Monday morning, August 14, 1876, three of the Wilsons, (probably not including the defendant, as he denies that he was with them, and the proof does not show affirmatively with certainty that he was) and a cousin of theirs, called \u201cArch Allen,\u201d were in Colmar, as it appears, to take the train for Plymouth.\nAndrew Way, testifying on behalf of the prosecution, says : \u201c I was in Colmar the Monday morning that McDonald was killed; saw the Wilsons and Allen come in Colmar together; there were four, of them; came in two buggies; they all took the train together for Plymouth.\u201d This witness also shows Avhy these parties went to Plymouth on that morning. He says that he, himself, Avent to Plymouth in the afternoon, and, on cross-examination as to his motives for going there, he said : \u201c I had two reasons for going to Plymouth. * * * The other reason was, when I went into the saloon where the Wilsons and Allen were that morning, one of them said, 'Tom McDonald will be the Worst hurt man' in Plymouth\u25a0 before night;\u2019 and, just like any other fool, I had my ctiri'osity aroused, and went down to see what would turn up.\u201d\nWhether the defendant went from Colmar to Plymouth on the same train with his brothers, and cousin, or not, it is certain that he also went to Colmar on the same morning, and there took the train for Plymouth,\u2014and that Zachariah, James and Nicholas Wilson,and Arch Alien, were all in Plymouth by noon, or a little after that time.\nThe next account the evidence gives of these parties is, Zachariah and the witness Marion Curry, not far from noon, were playing cards, for money, at an old hay-press. This was only about fifty yards south of the street on which is Wade\u2019s drug store, in which McDonald was killed. When in the middle of the game, some one came below and called up: \u201c Zack, Jim wants you! \u201d The witness saw no one, but recognized the voice calling to be that of Nicholas Wilson. Zachariah immediately threw down the cards, got up, and departed without saying a word. Zachariah, in his examination, admits that it was his brother Nicholas who called him, and he says: \u201c Nick came and said he wanted to see me, and told me McDonald had come to town, and I had better look out for him; that McDonald and I had had trouble before, and I had better be careful. We went to Bagby\u2019s store, and, I think, got a drink there. Went from there to the harness shop. Met Domine Smith, and talked about the affair on Saturday,\u201d etc.\nThe village of Plymouth contains a public square, with a street on each side of the square, and four streets, being one from each point of the compass, terminating opposite the center of the square. Wade\u2019s drug store is on the street running east and west, on the south side of the square. It is near the south-east corner of the square, and faces to the north. Metzger\u2019s store is 30 or 40 feet east of Wade\u2019s drug store, and adjoins, on the east side, the street running from the south, opposite to the center of the square. There is a stairway on the east side of this stove, running up to the second story of the building, and affording access to Ballston\u2019s harness shop, which was then kept there. Bagby\u2019s- store is just across the street from Metzger\u2019s store, facing north, and King\u2019s store is a few feet still west of Bagby\u2019s store. Shafer\u2019s drug store is on the street running north and south, on the east side of the square, near its south-east corner, facing west. It is about 150 feet diagonally across from Shafer\u2019s drug store to Wade\u2019s drug store. Just north, a few feet, of Shafer\u2019s drug store is Miller\u2019s hardware store, also facing west. On the north side of the street running from the east, opposite the center of the square, and facing to the west, is the Ballston House; and farther north, on the same street, and near the north-east corner of the square, and also facing west, is the postoffice.\nWhen Zachariah met Bornine Smith, as Smith says, he was in front of King\u2019s store, and Zachariah was coming down the street from the west. Smith says, \u201che came up toward me, and, looking me in the face with a peculiar smile, said: ' There is going to be a man in Plymouth get a-good cowhiding to-day.\u2019 I said: 'Who, Zack?\u2019 He repeated it, that some one would g\u00e9t a-cowhiding before night. I asked him again who he meant. He said: 'Thomas McDonald.\u2019 Just then Nick Wilson came up from the east, towards Bagby\u2019s store, and beckoned to Zack to step to one side. Zack and he talked together a few minutes in a low tone, but I could not hear what' They said. They then started east. They went down by Metzger\u2019s store, and went up into Ballston\u2019s harness-shop.\u201d This same witness says that about ten minutes before hearing the conversation with Zachariah, he had a conversation with Nicholas, and that while they were talking Thomas McDonald rode up and tied his horse in front of Wade\u2019s drug store. Thereupon Nicholas said: \u201cYonder is a man that will be the worst hurt man in Plymouth before night. I said: 'Who?\u2019 He said: \u2018Old Tom McDonald.\u2019 He then started off south.\u201d That was in the direction of the old hay-press, where Zachariah, as we have before seen, was playing cards; and so, this conversation must have been before, and that with Zachariah after, Zachariah was called away from the hay-press, by Nicholas, to see the defendant.\nAfter Zachariah and Nicholas went into the harness shop, other witnesses take up the narrative. Samuel Rallston, the proprietor of the shop, says: \u201cZack and Nick Wilson came in there,\u201d (the shop) \u201cjust after noon the day McDonald was killed. They were looking at the whips. Zack asked for a rawhide. I didn\u2019t have any. One of them laughed and said: (Black-snalce will do as well for driving a threshing machine.\u2019 * * * James Wilson came to the head of the stairs and said something, and they all went away together.\u201d\nSilas Wright, another witness present in the harness shop when they were there, corroborates Rallston as to what occurred.\nZachariah Wilson, in his evidence, admitted that his object in going into the harness shop was to get a cowhide to use on McDonald. He said : \u201cWent with Nick to .harness shop; asked for a cowhide; I wanted to use it\u2014to use it on McDonald, if he kept on abusing me, and intended to get a cowhide if Rallston had any.\u201d\nSilas Wright says, when the Wilsons were in the harness shop, \u201cJim,\u201d the defendant, came to the head of the stairs, put his head in at the door and asked for something, which the witness thought was a revolver. All three then went down together.\nWhen McDonald hitched his horse, as alluded to in the evidence of Romine Smith, he went directly across the street to Wade\u2019s drug store. Samuel Wade was then sitting on a box in front of the store, between the door and the door of Wade\u2019s doctor\u2019s office, which was annexed to and east of his drug store; and he says, just after McDonald came across, he saw the defendant up by Bagby\u2019s store. McDonald remained and talked with Wade awhile, and then went into the drug store.\nCharles Cox, a clerk in the drug store, says: \u201c McDonald came into the store a little after noon and sat on the west counter. There are two counters in the store\u2014one on the east and one on the west.side. The door is in the middle in front, and a window on each side of the door at the ends of the counter. James Wilson and Allen came into the store and started towards McDonald, looking him right in the face. They walked pretty fast. Both had their coats off. Neither spoke until they got within about six feet of McDonald, when McDonald jumped off the counter, pulled a revolver, and said: \u2018-you, stop; don\u2019t you come any nearer. You have come to get the drop on me, but you shan\u2019t.\u2019 * * * I think McDonald pulled out his revolver as he jumped off the counter; * * * he followed them to the door\u2014soon after came back into the store.\u201d * * *\nHenry Iineff says : * * * \u201c I went into Wade\u2019s drug store and saw McDonald sitting on the counter. When Jim Wilson and Allen came in I was taking a drink of water at the south end of the counter. I saw James step into the door; he came in on a fast walk. Allen followed him. Heard McDonald say: \u2018Stop; you are after me; you want to get the drop on me, but you shan\u2019t do it.\u2019 James said, \u2018 I am not,\u2019 and turned and went out. They were walking towards McDonald. Heard a pistol click, and McDonald raised it towards James. He kept on talking and followed them to the door.\u201d\nGeorge Barker says: \u201cI was near Metzger\u2019s when James Wilson and another man they called Allen passed by, going to Wade\u2019s store. Soon after they came out on the run. Jim went up to the harness shop. In a short time Jim, Zack and Nick were all down on the sidewalk. They made two or three steps towards Wade\u2019s, when McDonald stopped them.\u201d\nAfter the defendant and Allen were thus driven out of Wade\u2019s drug store, the evidence shows that McDonald made no effort to inflict violence, but stood with one foot in the door and the other on the sidewalk, brandishing a revolver in one hand and a knife in the other, telling the Wilsons they must keep away from him,\u2014that all that he asked of them was to keep away from him, etc. He was very profane and abusive towards all of the Wilsons, and especially towards Zachariah, whom he charged with ruining his family by debauching his daughter. He remained standing while abusing them, but afterwards sat down on the box, before alluded to as being in front of the store, and sat there for a little while, and then returned into the store and resumed his seat upon the west counter. While McDonald was standing and abusing the defendant and his brothers-, the evidence shows that the defendant advised Zachariah to shoot McDonald.\nAlexander Woodworth says: \u201cI heard loud talking in Wade\u2019s store, and saw Jim and Arch Allen come running out. Jim said he would see about that, using an oath. James went up to the harness shop. Jim, Zack and Nick all three came down on the sidewalk and started towards McDonald. They went about three or four steps\u2014Zack first, James next, and Nick next. McDonald told them to stop. He stood in the door of the store and said: \u2018Zack, it\u2019s you I am talking to. * * * You have ruined my family, and I want you to keep away from me.\u2019 Jim said to Zack: \u2018Walk right down, you needn\u2019t be afraid; shoot,\u2014shoot him.\u2019 Jim turned and said, \u2018 I know where there is a double-barreled shot-gun.\u2019 \u201d\nAllen Milton says: \u201cMcDonald stood with one foot in Wade\u2019s store and the other outside, and had a knife and revolver in his hands. He raised his hands up and said: \u2018I want you to stop following me,\u2019 and cursed them. Wilsons stopped. McDonald said: \u2018lam talking to you now, Zack Wilson. You have damaged my family enough, and now you want to beat me up; but I won\u2019t be beat up by you.\u2019 James Wilson then said to Zack: \u2018 Shoot him down,-him; kill him, kill him. * * *\u2019 The Wilsons turned and went west; as they started, one of them said : \u201c-him, let\u2019s go and get a double-barreled shot-gun and shoot him.\u201d\u2019\nJesse Cain says, after describing the position of the parties: \u201c Heard McDonald say \u2018 * * * I want you to keep away from me.\u2019 James Wilson said, * * let\u2019s go and get a shot-gun and kill him.\u2019 \u201d\nWilborn Milton says: \u201c* * * McDonald said they had injured his family and ruined his daughter; told them to keep away. Heard James say to Zack : \u2018 Shoot him, shoot him.\u2019 James turned and went west and said : \u2018I know where there is a shot-gun, and I Avill get it.\u2019\u201d\nThere are other witnesses corroborative of these, but it is unnecessary at this place to repeat their testimony. Indeed, the defendant does not deny that he advised Zachariah to shoot McDonald, but claims that he thought it necessary for his self-defence.\nAfter this scene both the defendant and Zachariah went in pursuit of arms. They stopped at Bagby\u2019s store. The defendant Avent in the room, Zachariah and Nicholas remaining at the door. The defendant there asked for Ben Griffin\u2019s shot-gun, and looked behind the door and in the back room for it. The defendant went then to Ben Griffin\u2019s residence, which Avas about eighty yards north from the north-Avest corner of the public square, and requested of him the loan of his shot-gun. Griffin informed him that he could have it, and that it was at Shafer\u2019s store.' He then went to Shafer\u2019s store, got the gun and found there was no shot. He Avent to Miller\u2019s and purchased five cents worth of No. 1 shot. He proceeded to load the gun Avith these shot, and then sent a younger brother, Edwin, for caps. He brought G. D. caps. The defendant, AA\u00dath an oath, said he AA\u2019Ould not have G. D. caps, but must have Avater-proof caps, saying, I Avant something that Avill go. His brother effected the exchange of the caps he desired, and he then finished loading the gun. HaA\u00dang done this, he left the gun in Shafer\u2019s back room and started out to hunt Zachariah, whom, it seems, he found near the postoffice.\nZachariah, meanAvhile, had made several ineffectual attempts to borroAV a revolver,\u2014in particular, once from Henry Kneff, saying to him that he wanted to exchange shots with Tom McDonald, and once from Charles Wright\u2014and he had also made an ineffectual effort to purchase cartridges for a revolver at Watte\u2019s, on the west side of the public square.\nWhen the defendant found Zachariah near the post office, he and Arch Allen were sitting on the fence conversing with Charles Wright. The defendant called out to Zachariah to come along, saying that he had business enough for all of them\u2014more than they could attend to;\u2014this was about five minutes before the shooting. This is testified to by Wright and also by Ellis, the postmaster. They all, that is to say Zachariah and Allen, started south with the defendant. As they came by the door of Miller\u2019s store, Miller says he heard the defendant and Zachariah talking; that, as they started on south, he heard the defendant say to Zachariah, \u201cI have got the shot-gun ready,\u201d or \u201cthe shot-gun is ready,\u201d\u2014and this is substantially corroborated by Pectold, who was standing at the time in front of Shafer\u2019s. When they arrived at Shafer\u2019s store, the defendant and Zachariah passed through the store into the back room where the gun was, remained a minute, then came back in the front room; then Zachariah went into the back room alone, picked up the gun, went out at a back door and passed thence on to the sidewalk in front of the store. As he got on the sidewalk, the witnesses describe him as first raising his head to look around, then dropping it and starting diagonally across to Wade\u2019s. The defendant, at this time, Mark Homes says, was watching the movements of Zachariah, and, as Zachariah started across towards Wade\u2019s, the defendant said to Homes, \u201c How, we will see some fun.\u201d When Zachariah had got about half way across, he changed the gun from his left hand to his right, cocked it, and carried it then with the breech under his right arm and the muzzle down by his right leg until he stepped on the sidewalk in front of Wade\u2019s. As he did this, he threw the barrel of the gun into his left hand, holding the gun at the lock with his right hand and with his eye fixed on Wade\u2019s door. He advanced until he had got directly in front of it, when he quickly drew the gun up, and, according to several of the witnesses, said: \u201cHow, if you want anything out of me, lead out,\u201d and immediately snapped the right-hand barrel of the gun. He then seemed, momentarily, to give or shrink back on his left foot, and then straightened himself and instantly fired the other barrel of the gun. At the same moment with the discharge of this barrel, was the report of McDonald\u2019s pistol from within the store room. The evidence' is unable to distinguish which of these reports was first. The overwhelming preponderance of the evidence shows, however, that Zachariah snapped the right-hand barrel before there was any pistol-shot fired, and, when Zachariah fired, the muzzle of his gun was either actually in or very near to the store door. His shot killed McDonald. McDonald\u2019s shot was wild,\u2014 entirely out of range of Zachariah, and downward.\nWith regard to McDonald\u2019s attitude when Zachariah approached and snapped the gun, there is but one witness aside from Zachariah,\u2014Charles Cox, the clerk in the store. He seems to be entirely disinterested and without feeling, and describes clearly what transpired. He says: \u201cI was in the store when the shooting took place; saw Zack coming across from Shafer\u2019s; first saw him through the east window, McDonald then sat on the west counter, a little over two-thirds of the way back, facing east. I was about five feet nearer the door than McDonald,\u2014behind the west counter. Zack did not pass by the door after I first saw him. * * * I saw him get on the sidewalk about fifteen feet from the door and a little east of it; he then walked in a direct line towards the door. He came right to the door, presented the gun, snapped the cap, dodged back, then straightened himself immediately and fired. At the time the cap snapped McDonald still sat on the counter; as Zack raised the gun the first time, he jumped from the counter. At the time the gun fired, or almost at the same time, McDonald\u2019s revolver fired. I saw where the shot from the revolver went; * * * it went to the left of the door where Zack was standing, some six or seven feet, and struck the west counter and passed downward to the left,\u2014was apparently shot with a hand held an high as a man\u2019s head.\u201d\nThis evidence is not successfully contradicted. There is no pretence by any witness that McDonald was elsewhere than in the store room when he was shot,\u2014no pretence by any witness entitled to credit that he was advancing upon or menacing Zachariah at that time.\nThe defence claim that Zachariah had reasonable grounds to suppose that he was in great danger of bodily harm from McDonald, and that, in shooting, he acted from the instincts of self-preservation, and not from motives of malice or revenge. This position is utterly unsustained by the evidence.\nIt is to be observed, in the first place, that the proof shows when McDonald came to Plymouth he went straight to Wade\u2019s, and never left there, staying most of the time inside the store. If he made threats of violence, he made not the slightest attempt to execute them. Even when the defendant, and his cousin, Arch Allen, were within a few feet of him, advancing as if in a hostile attitude, and were completely within his power, he inflicted no violence, and showed by his manner, as unmistakably as was possible, that he was acting only on the defensive, and wanted merely to be let alone. He is shown to have had a motive in going to Wade\u2019s. He had a sick family, and was in the constant habit of getting medicines there, and it was not a place that he ought to have anticipated he would probably meet with the defendant and his brothers, for they were not in the habit of resorting there. During the entire day up to the time McDonald was killed, no one other than McDonald is shown to have had any difficulty with the defendant and his brothers, or either of them. They were all over Plymouth hunting arms, and indicating bloody intentions by act and speech, and yet not a single human being is shown to have attempted to violently interfere with them. As has been seen, on Monday morning, in Colmar, one of Zachariah\u2019s party, in his presence, if indeed it was not himself, declared that McDonald would receive violent injury on that day. When he was called from the hay-press by Nicholas, it was to inflict violence on McDonald. McDonald had then but just come to town, had given out no threats, had menaced no one, and the promptitude with which Nicholas informed Zachariah of his arrival, showed that he was expected\u2014that they were waiting and watching for him. When Zachariah went to buy the cow-hide to use on McDonald, McDonald had not yet driven the defendant and Arch Allen out of Wade\u2019s, and had made use of no offensive language to Zachariah on that day When, by reason of McDonald\u2019s being armed, the cow-hiding was abandoned, the search for arms was to inflict vengeance, not for defensive purposes. Zachariah wanted of Kneff a good revolver to take a shot with McDonald. Had they not stood within shooting distance and heard all of McDonald\u2019s abuse, and passed away leisurely and without harm? No one pretends that McDonald or his friends was pursuing or following them up, and when McDonald was found, he had to be hunted up in his place of refuge, for such, to some extent, the proof shows it was, at Wade\u2019s. Then, the manner of Zachariah\u2019s approach shows, more strongly than any words can, that he was hunting his man. He cocked both barrels of his gun before he got across,\u2014 then, as he stepped on the sidewalk, he threw his gun in shooting position, and as he came, in this attitude, in front of his victim, he says, \u201cNow, if you want anything out of me, lead out,\u201d and instantly pulls the trigger.\nWhy did he go to Wade\u2019s at all? He knew McDonald was there. The law does not allow a person to wilfully bring an attack upon himself for the purpose of getting an opportunity to kill his assailant, and then justify on the ground that he was acting only in his necessary self-defence. The pretence is made that Zachariah\u2019s object was only to get Nicholas, who was then in front of Metzger\u2019s, away and out of danger. But who was menacing Nicholas? No one. From whom had he reason to anticipate injury? No one, unless McDonald, and he had passed and repassed in front of the door of the room in which McDonald was sitting, in perfect safety. The evidence shows clearly this is all pretence.\nIt will be recollected that when the defendant, having got and loaded the shot-gun, went to get Zachariah, he found him near the postoffice, at the north-east corner of the square. Now, the claim is, the defendant wanted to take Zachariah out of town, to the defendant\u2019s father-in-law\u2019s, and that Zachariah would not go and leave Nicholas, and that the gun was simply got to defend them on the road,\u2014in short, that the hunt of arms, etc., was simply to protect a retreat out of town to a place of safety. If this were true, how strange it is they did not keep together, and when they were once out of danger, why they did not stay out. They\" were all together in front of Bagby\u2019s store, when the search for arms commenced, and when the defendant passed north from Shafer\u2019s, in-search of Zachariah, Nicholas was on the same street, near the Ballston House, in easy hailing distance, and at a quarter of the town where it does not appear they were in any anticipation of danger, and the defendant and Zachariah either passed him or went part of the way in his company as they returned to Shafer\u2019s.\nEllis, the postmaster, says that at the time the defendant came up to Zack and told him to go with him, that they had business on hand, etc., he saw Nicholas standing on the sidewalk by the Ballston corner, and this, he says, was only about forty steps away.\nJames Miller says Nicholas was in his hardware store just before the shooting; and Casper Pectold says: \u201cWhen Jim and Zack went into Shafer\u2019s, Nick went on across the street towards Metzger\u2019s.\u201d\nBomine Smith says: \u201cSaw James and Zack come back from the postoffice; saw Nick with them when they were over by Miller\u2019s.\u201d\nCharles Wright says: \u201c When Jim came up and called Zack, I saw Nick about 20 or 30 steps on the sidewalk behind him, standing near the corner of the Pallston House.\u201d\nIt is quite evident that Nicholas understood what was going to happen, and he passed on, leaving the defendant and Zaehariah at Shafer\u2019s, to take position himself at Metzger\u2019s, where, in the language of the defendant, he could see \u201cthe fun,\u201d and, if necessary, lend a helping hand.\nThis subterfuge being disposed of, there is no purpose pretended for Zachariah\u2019s going to Wade\u2019s with the shot-gun, except to shoot McDonald.\nThe evidence quite clearly shows that, instead of McDonald being acting on the aggressive on Monday, he was agitated and alarmed, and was afraid to leave Wade\u2019s store. Thus, Charles Cox, the clerk in the drug store, says: \u201c McDonald appeared very much excited after they (defendant and Allen) left, and very uneasy; kept watching the door; went and sat on a box by the front door five or ten minutes; then came in and stayed there until the shooting; he kept watching the front door and sometimes the back door.\u201d\nDr. W. D. Wade says, on cross-examination, after speaking of the occurrence of McDonald driving the defendant and Allen out of the drug store: \u201cI went in the store with McDonald and had a conversation with him; told him he must go away from my store; if he wanted to have any fuss, he musn\u2019t fuss there; he did not go out of the store until they had all left; after that he went and sat on a box in front of the store a few minutes, and then went back into the store.\u201d * * * Again, he said, on re-examination: \u201cWhen I told McDonald to leave my store, if he wanted to fuss, he replied: \u2018I am afraid to leave; they have got me surrounded; and I then told him he could stay in the store if he was afraid to leave.\u201d\nDaniel Michaels, railroad agent, says: \u201cAfter dinner I came up on the south side of the square; saw Thomas McDonald sitting on a box by the side of Wade\u2019s store door. I noticed that he was excited, and holding a revolver and knife. I said: \u2018Any trouble, Uncle Tom?\u2019 He replied: \u2018They are trying to run over me\u2014to trample me down.\u2019 I asked: \u2018Who?\u2019 He said: \u2018 The-Wilsons.\u2019 \u201d\nRomine Smith, on re-examination, says: \u201cI told him \\i. e. McDonald] that the Wilsons had threatened to kill him, and that they had gone to get a gun, and that he had better hide himself, or slip out. He said he couldn\u2019t get out. He then said: \u2018 I will stay here if I have to die here.\u2019 \u201d\nBut, conceding Zachariah\u2019s guilt, the defendant insists the evidence does not sufficiently connect him with it. On this point, too, we think the evidence overwhelmingly against the defendant. In the light of all the facts spread out before us in this record, it would seem there could hardly be a rational doubt that the defendant was at Plymouth on Monday, the 14th of August, 1876, for the express purpose of seeing his brother Zachariah revenged upon McDonald. His story that he was going to his father-in-law\u2019s, etc., we regard as of but little moment. The facts, his actions and the actions of his brothers, show that he was not going there. The proof does not show that he and Zachariah were together on Saturday, but it does show that he knew, on Saturday, that Zachariah and McDonald had had a personal difficulty of some character, on that day, in which McDonald was said to be the assailant. It is not expressly shown that the defendant and Zachariah had any communication in Plymouth before he and his cousin Allen were driven out of Wade\u2019s store by McDonald ; but the circumstances irresistibly show that such was the fact, and that he knew when he went to Wade\u2019s that Zachariah and Nicholas had gone to Ballston\u2019s harness shop to get a rawhide with which to punish McDonald.\nWhen Nicholas went to the hay-press and called Zachariah, he said, \u201cJim wants you,\u201d and we are justified in assuming this was true. We have before seen that Nicholas started to the hay-press for Zachariah, soon after he discovered that McDonald had come to town. Nicholas and Zachariah went from the hay-press direct to Bagby\u2019s store. The evidence shows that defendant was there about that time. Samuel Wade says, as we have before observed, just after McDonald hitched his horse and came across to Wade\u2019s store, \u201cI saw James Wilson up by Bagby\u2019s store.\u201d It is but reasonable to suppose, then, that defendant and Zachariah and Nicholas met there. For what? The sequel showsathat just after that, Nicholas and Zachariah go to Rallston\u2019s to buy a raw-hide, and Zachariah informs us that was for McDonald. At or very near the same time, the defendant and Allen go to Wade\u2019s drug store, a place where Dr. Wade, the proprietor, says they were not in the habit of going or trading, pass by the clerk, the only man there in charge, without saying a word to him, and walk straight towards McDonald, and by their manner satisfy him, as we have a right to assume, that they mean violence to him. The defendant says they were only going to get something to drink. Then why eye McDonald and walk straight towards him, instead of stopping and making their business known to the clerk? There is no proof of such degree of familiarity and intimacy between the defendant and Dr. Wade as would have justified him in assuming that he might go in there and take liquor at his pleasure, without speaking to any one about it. When the defendant left the room at McDonald\u2019s instance, he did not have to stop to inquire where Zachariah was. He knew already, and ran directly to him in the harness shop. Here, then, is evidence of association, and of a common understanding, probably, that defendant and Allen should seize and hold McDonald while Zachariah and Nicholas entered and punished him with the cow-hide. This was what was at that time intended, as we infer from Zachariah\u2019s and Nicholas\u2019 declarations\nBut waiving this: after McDonald had brandished his pistol and knife on the street before the defendant and his brothers, and abused and threatened them, the defendant\u2019s own declarations show that he was in search of a shot-gun, not, as he subsequently pretended, with which to defend himself, but with which to punish McDonald. He was writhing under Avhat he regarded as a grievous insult and he wanted revenge. In addition to Avhat has already been quoted, when he was in Bagby\u2019s store hunting for a shot-gun, William Jackson says he said: \u201c He had been run out down there, and he be-if he Avould be run out.\u201d\nGeorge Barker says the defendant said, after directing Zachariah to kill McDonald: \u201cIf there is a shot-gun in this toAvn I am going to get it. I won\u2019t allow any G\u2014d d-d man to draw a revolver on me.\u201d\nEomine Smith says, after McDonald had cursed the defendant and his brothers on the street: \u201c Jim turned and started west, and said, \u2018 I will go and get a shot-gun and kill him.\u2019 \u201d\nThe evidence, which we have heretofore quoted, shows that the defendant repeatedly said to Zachariah, \u201cShoot him, kill him,\u201d etc. And this is not denied, though attempted to be palliated by the defendant.\nThe naked facts of themselves that relate to the getting of the shot-gun, loading it, etc., and its use by Zachariah, shoiv, incontestably, harmony and unity of design and action between Zachariah and the defendant. The defendant procured the shot-gun, loaded it so that it would kill; then went and got Zachariah, showed him where it Avas; vrent out on the sidewalk and stood, Avatching him go across the street to Wade\u2019s with the gun in his hands, remarking, \u201cNow, Ave will see some fun.\u201d His location at Shafer\u2019s, and Nicholas\u2019 location at Metzger\u2019s, would enable them to intercept all aid to McDonald, and all interference with Zachariah that might approach from the streets.\nWhile the defendant was procuring and loading the gun, a friend of his (one Tingling,) Avent to him and said, \u201cJim, you had better keep out of that fuss.\u201d He replied: \u201cG\u2014d d-you, I don\u2019t want you to take any part against me. If you don\u2019t let me alone I\u2019ll knock you down,\u201d\u2014thus showing that he was desperately enlisted in it. Afterwards, however, upon Tingling saying that \u201cI am talking to you for your own good,\u201d he said: \u201c I am out of it, and I am going to stay out of it.\u201d He had then procured and loaded the gun,\u2014the. balance\u2014the using of it\u2014remained for Zachariah.\nIt would seem impossible to make stronger and more complete proof of a conspiracy.\nIt is claimed, in argument, that the defendant and his brothers had reason to apprehend personal danger, not only from Thomas McDonald, but likewise from his brother, Newt. McDonald, and McDonald\u2019s friends, (Romine Smith, the Barkers, Wattes and Rallstons, and perhaps others) who, it is alleged, were there and armed.\nAs has been already observed, there is no proof that any of these persons, or any one else, uttered threats of violence, against the defendant and his brothers, or either of them, or that they offered to inflict such violence, before the killing of McDonald. Indeed, it is not pretended they made any effort to defend McDonald and save him from a violent death. The proof shows no one making threats against these parties, except Thomas McDonald, and that to have brought them within danger of his executing them, they had to go to Wade\u2019s where he was staying,\u2014afraid to go away, lest he should be attacked.\nWhatever may have been the vices and faults of McDonald, this record present no excuse for the taking of his life.\nWhere threats to take life are made, we have held, that before a party may attack or inflict bodily harm upon the person making the threats,, there must be some overt act from which an intention may be reasonably inferred to carry into effect the threats, and the danger must be imminent. Cummins v. Crawford, 88 Ill. 312. There is some evidence (upon which, however, we place but little reliance, because of the improbability of its truth from the other evidence in the case) that, as Zachariah got in front of Wade\u2019s door, McDonald cried out to him to halt. Concede this to be true and that McDonald instantly attempted to kill Zachariah,\u2014Zachariah went there to kill him. He is in no situation to claim that he is acting on the defensive. His act is dictated by malice and a desire for revenge;\u2014his peril is courted that he may have opportunity to gratify that malice and desire for revenge. All the authorities concur that in such case his act in killing is murder.\nThe defendant is clearly guilty, and any other verdict than that of guilty, on this evidence, would have been making a mockery and farce of justice.\nObjection is urged that the court erred in admitting in evidence the testimony of Dr. Wade, that \u201c I told McDonald to leave my store if he wanted a fuss. He replied, \u2018 I am afraid to leave; they have me surrounded/ I then told him to stay in the store if he was afraid,\u201d etc. It is enough to say of this evidence the record does not show that it was objected to on the trial.\nAnother objection urged is, that the people asked Dr. Wade, and he answered, this question: \u201cWill you tell the jury how you came to load your gun?\u201d Answer: \u201cI had an intimation that Zack was coming there to shoot McDonald, and I was loading my gun to protect my house.\u201d This, had it been introduced as original testimony, would doubtless have been objectionable. But the defendant drew out of the witness, on cross-examination, that he was loading his shotgun when Zachariah approached McDonald, necessarily with the view to raise some unfavorable inference against the witness, or some favorable inference in behalf of the defendant. Under these circumstances, we think, there was no impropriety in getting at the motive which controlled the act.\nObjection is also urged, that Daniel Michaels said that McDonald said to him what we have before herein quoted in showing that McDonald was not acting on the aggressive. The record' likewise fails to show that this evidence was objected to.\nObjection is also urged against the like kind of evidence testified to by Domine Smith, but the record here again fails to show that it was objected to.\nAn objection is also urged that the court erred in allowing Smith to state what Nicholas Wilson said to him in regard to the whipping of McDonald. To this, too, the record fails to show any objection was urged on the trial.\nWe think, notwithstanding the question is not properly before us, that inasmuch as the line of defence justified the shooting of McDonald as in the necessary self-defence of Zachariah, it was competent, in rebuttal of that theory, to show that McDonald was not aggressive, but, on the contrary, acting on the defensive, and hence that any of his declarations explanatory of accompanying acts were admissible as a part of the res gestee. The declarations of Nicholas were admissible because the evidence, in our opinion, shows that he was at that time acting in concert with the defendant and Zachariah.\nObjection is urged to declarations of Zachariah made on Saturday, to the effect that he would kill McDonald, etc. These declarations were inadmissible, and the ruling of the court thereon was erroneous. The proof does not show that a conspiracy existed, at that time, between the defendant and Zachariah, but it is not such error as will in the present case authorize a reversal. In the nature of things it did no harm. The conspiracy did exist on the following Monday, and Zachariah did then do, without any legal excuse or palliation, what these threats showed he intended to do. Disregarding these threats he is clearly guilty,\u2014they do not make him more guilty than he would otherwise appear to be.\nZaehariah\u2019s declaration to Bomine Smith was clearly admissible, because the proof sufficiently shows that the conspiracy then existed. So, also, we think the declaration made by one of the party in Colmar, on Monday morning, was admissible, although that was drawn out on cross-examination, and of course was not objected to. The whole evidence furnishes proof that the defendant and his brothers were then making their way to Plymouth for a common purpose\u2014having the injury or punishment of McDonald in contemplation, and the declaration of one was hence the declaration of all.\nThe evidence offered by the defendant and rejected by the court was properly rejected. There was no foundation for the pretence that Zachariah was acting in self-defence,\u2014and the evidence offered and rejected was Avholly inconsequential.\nObjection is urged to the giving and refusing of instructions. Without saying there was not any error in that regard, we are contented that, as a Avhole, the case was fairly given to the jury. There may have been some slight technical errors in this respect, and also in the ruling of the court in regard to the admitting and excluding of evidence, which Ave have not noticed. None of these, in our opinion, are of such gravity as to require a reversal of this judgment. We have endeavored to give to the record itself, not merely the printed abstracts and arguments, but the transcript made up by the clerk, a patient and thorough investigation; and we can come to no other conclusion than that the defendant is rightly convicted,\u2014under any correct ruling the verdict should have been, and with an honest jury must have been, equally unfavorable to the defendant. If any body has cause to complain it is the people, not the defendant.\nThe State\u2019s attorney, we assume, without premeditation on his part, but from impulse of the moment, was led into much intemperance of speech in his closing argument. This Avas entirely unworthy of him as an officer of the law, and as a member of an honorable profession. Had the attention of the presiding judge been called to it at the time, he should have been, and doubtless would have been checked and rebuked-It does not appear that the judge\u2019s attention Avas called to this language, and it can not, therefore, be said the court erred in not checking him. In no event, however, should Ave regard such an error as one that Avould authorize the reversal of a judgment clearly right under the evidence.\nWhere the result reached by a judgment is clearly right, it will never be reversed for errors which do not affect the substantial merits of the case. Calhoun v. O\u2019Neal, 53 Ill. 354; Leach v. The People, id. 311.\nThe judgment is affirmed.\nJudgment affirmed.", "type": "majority", "author": "Mr. Justice Scholfield" } ], "attorneys": [ "Mr. Henry W. Draper, and Mr. Bryant T. Scofield, for the plaintiff in error:", "Messrs. Mason & Griffith, for the People:" ], "corrections": "", "head_matter": "James Wilson v. The People of the State of Illinois.\n1. Juror\u2014competency, in what manner to be questioned. This court can not inquire into the competency of a juror, where the record fails to show that the question of his competency was presented to the court below by challenge for cause or otherwise, the bill of exceptions simply showing that after the juror was examined touching his competency, he was challenged peremptorily.\n2. Same\u2014competency of a juror as having formed an opinion. A person called as a juror in a criminal case where the defendant was indicted for murder, stated, in response to questions touching his qualifications as a juror: \u201cI have read newspaper accounts of the commission of the crime with which the defendant is charged, and have also conversed with several persons in regard to it since coming here, and during my attendance upon this term of court,\u2014do not know whether they are witnesses in the case or not\u2014do not know who the witnesses in the case are. From accounts I have read and from conversations I have had, I have formed an' opinion in the case, and would have an opinion in the case now if the facts should turn out as I heard them, and I think it would take some evidence to remove that opinion. Would be governed by the evidence in the case, and can give the defendant a fair and impartial trial according to the law and the evidence.\u201d A challenge for cause in behalf of the defendant having been denied, the juror was challenged peremptorily. It was held, the juror was competent. The opinion formed seems not to have been decided, but one of a light and transient character, which, at no time, would have disqualified the juror from serving. But aside from this, all objection as to his competency in respect to any opinion he seems to have formed was removed by the statute. Rev. Stat. 1874, 633, g 14.\n3. Same\u2014effect of peremptory challenge where challenges not exhausted. In this case the defendant, in the selection of the jury by whom he was tried, exhausted only two of his peremptory challenges, so that even if the juror was erroneously held to be competent, and the defendant thus compelled to accept him or to challenge him peremptorily, no harm could have resulted, and the error would not be ground of reversal.\n4. Criminal law\u2014self-defence. The law does not allow a person to wilfully bring an attack upon himself for the purpose of getting an opportunity to kill his assailant, and then justify on the ground that he was acting only in his necessary self-defence. So where a person pursues another to his place of refuge, with malice, and actuated by a desire for revenge, and invites the peril of an attack upon himself in order that he may have an opportunity to kill his assailant, if he thus draws an attack and kills his assailant, the act of killing is murder.\n5. Same\u2014threats. Where threats to take life are made, it has been held thatr before a party may attack or inflict harm upon the person making the threats, there must be some overt act from which an intention may be reasonably inferred to carry into effect the threats, and the danger must be imminent.\n6. Same\u2014of evidence as to motive of witness. One McDonald, while in the store of another, was shot and killed by one Zack Wilson. On the trial of a brother of Zack, on the charge of murder, as having advised and aided in the act of killing, the proprietor of the store in which the killing was done, and who was present at the time, was a witness, and in answer to the question by the prosecution: \u201cWill you tell the jury how you came to load your gun?\u201d said: \u201cI had an intimation that Zack was coming there to shoot McDonald, and I was loading my gun to protect my house.\u201d As original testimony this would doubtless have been objectionable. But on cross-examination the defendant had drawn from the witness the fact that he was loading his gun when Zack approached McDonald, necessarily with the view to raise some unfavorable inference against the witness, or some favorable inference in behalf of the defendant,\u2014and under the circumstances there was no impropriety in getting at the motive of the witness in loading his gun.\n7. Same\u2014as to declarations of the person killed. In the case mentioned, inasmuch as the line of defence justified the shooting of McDonald as in necessary self-defence of Zack, it was competent, in rebuttal of that theory, to show that McDonald was not aggressive, but on the contrary acting on the defensive, and to that end, any of his declarations explanatory of accompanying acts would be admissible as a part of the res gestee.\n8. Same\u2014declarations of a co-conspirator. Where several persons have conspired t.o have done an unlawful act, the declarations of one of them in respect of the subject matter of the conspiracy, made after the conspiracy has been formed, are admissible in evidence against his co-conspirators.\n9. But declarations in respect to the proposed unlawful act, made by one of the parties before the conspiracy was entered into, will not be competent evidence against other persons who subsequently joined in the conspiracy to do the threatened act. Though in this case the admission of such declarations against a subsequent co-conspirator was held not to be ground of reversal, as the evidence could have done no harm, under the circumstances of the case, to the party against whom they were admitted.\n10. Error\u2014improper argument by counsel. Although a State\u2019s attorney may have indulged in much intemperance of speech in his closing argument in a criminal case, yet, if it does not appear that the attention of the presiding judge was called to the circumstance, it can not be said the court erred in not checking the counsel.\n11. Error will not always reverse. But even if there were error in that regard, it would not authorize the reversal of a judgment clearly right under the evidence. Where the result reached by a judgment is clearly right, it will never be reversed for errors which do not affect the substantial merits of the case.\nWrit of Error to the Circuit Court of Hancock county; the Hon. Joseph Sibley, Judge, presiding.\nMr. Henry W. Draper, and Mr. Bryant T. Scofield, for the plaintiff in error:\nThe jurors Gray and Garlinghauser were incompetent, having both formed an opinion from what they had read and heard, and stating that it would require some evidence to remove their several opinions. They were challenged for cause and the challenge overruled, when they were challenged, peremptorily. It will not'do to say that the defendant was not injured in being compelled to use his peremptory challenges as to them because the bill of exceptions fails to show he exhausted his peremptory challenges.. Prudence would require an attorney to be careful not to exhaust his right to such challenges, and to accept jurors he dislikes rather than do so, for fear of getting still more .objectionable jurors forced on him. Baxter v. The People, 3 Gilm. 376; Gray et al. v. The People, 26 Ill. 344.\nThe court erred in admitting in evidence the threats made by Zachariah Wilson, in Colmar on the Saturday evening before the killing took place, as there was no pretence that there was any conspiracy between him and the defendant before the next Monday, when the killing did take place. There being no conspiracy at the time these threats were made, they could not affect the defendant on trial, as he was no party to them and knew nothing of them at the time. After a conspiracy is formed, anything said or done by any one of the conspirators in pursuance of the original concerted plan is evidence against each, but what any one of the conspirators said or did before the conspiracy was formed, or after the object of the conspiracy has been accomplished, is evidence against him alone. 2 Russ. on Crimes, 697; 1 Phil. on Ev. 201, (9th ed.) ; 3 Arch. Crim. Prac. and Pl. 6th ed. by Waterman, 621-2, and note; 1 Greenlf. Ev. sec. 111.\nThe declarations of Zachariah Wilson had no tendency to further or promote any common criminal intent so as to become a part of the res gestee. They were mere hearsay, and not admissible to prove the body of the crime against the prisoner, or to prove the existence of a conspiracy. Clawson v. State, 14 Ohio State, 234-8; Fouts v. State, 7 id. 471 ; Roscoe\u2019s Crim. Ev. 84 and 617; 1 Starkie\u2019s Ev. 406\u20147; Browning v. State, 30 Miss. 656-666.\nThe fourth, fifth and twenty-sixth of the people\u2019s instructions given had attached to each a brief of authorities. This was highly improper, and we think error, as giving undue weight and prominence to them. Wright v. Prosseau, 73 Ill. 381.\nThe ninth instruction informed, the jury that if they believed the defendant had wilfully and knowingly sworn falsely to any material fact in the case they might disregard his entire testimony, except so far as the same was corroborated by other witnesses whose testimony they believed to be true.\nThe latter clause of this instruction ignores all the evidence in the case except that of \u201cother witnesses,\u201d such as the acts of the parties, which is generally the strongest kind of evidence, and the jury might well understand from it that it was left to them to determine without restriction whom to believe or disbelieve. Hartford Life Ins. Co. v. Gray et al. 80 Ill. 28-31.\nThe 13th instruction for the people proceeds upon the assumption that all the parties indicted were acting together in pursuance of a common, unlawful and felonious design against the person of McDonald. This was one of the disputed facts, and the jury should have been left free to say from the evidence if the defendant did so act. Roach et al. v. People, 77 Ill. 29; Adams v. Smith, 58 Ill. 421; Durham v. Goodwin. 54 Ill. 470.\nMessrs. Mason & Griffith, for the People:\nThe jurors had no such fixed opinions as to disqualify them. They were only hypothetical, and not decided. Smith v. Eames, 3 Scam. 81; Gardner v. People, id. 89; Thompson v. People, 24 Ill. 65; Leach v. People, 53 Ill. 317.\nBut if the challenges to them were improperly overruled, the defendant was not prejudiced thereby, as he excused the jurors peremptorily, and did not exhaust his peremptory challenges in the selection of the jury. Mingia v. People, 54 Ill. 274.\nIt is the well settled rule of this court that it will not grant a new trial or reverse a judgment where it appears from the entire record that justice has been done, and that the errors complained of could not have affected the merits of the case. Greenup v. Stoker, 3 Gilm. 202; Winnesheik Ins. Co. v. Schuelter, 60 Ill. 473; St. Louis and Southeastern Railway Co. v. Lux, 63 Ill. 525; Robinson et al. v. Randall, 82 Ill. 523; Roach v. People, 53 Ill. 317.\nThe question whether or not evidence is admissible and improper can not be raised for the first time in this court. It must be objected to in the court below, and the record must show it, and show that the ruling was excepted to. Snyder v. Laframboise, Bre. 343; McKinney v. People, 2 Gilm. 552; Holmes v. People, 5 Gilm. 480; Clay v. Boyer, 5 Gilm. 508; Miner v. Philips, 42 Ill. 131; Mingia v. People, 54 Ill. 274; Gardner v. Haynie, 42 Ill. 292; Beebe v. People, 73 Ill. 320; Earl v. People, 73 Ill. 329; Humphreyville v. Culver, Page & Hoyne, 73 Ill. 329.\nThe threats of Zachariah Wilson, made in Colmar on the Saturday before the killing of McDonald, were properly admitted as tending to show malice on the part of Zachariah, and characterizing the act of killing by him as murder. The defendant was tried as an accessory to the murder, and hence it became necessary to show what crime the act of the principal actor in the tragedy amounted to. If it was not murder, then the defendant could not have been convicted as accessory thereto. Brennan v. People, 15 Ill. 511; Regina v. Murphy, 8 C. & P. 744; Regina v. Shellard, 9 C. & P. 170; Crowningshield\u2019s case, 10 Pick. 497; People v. Mather, 4 Wend. 257; 1 Phil. Ev. 194-197, note 5, p. 197.\nThe giving or refusing of an instruction stating merely an abstract proposition of law can not be assigned for error. Reynolds v Greenbaum, 80 Ill. 416; Ryan v. Donelly, 71 Ill. 100; Tuttle et al. v. Robinson, 78 Ill. 332.\nIf the whole series of instructions present the law fully and fairly to the jury, this court will not reverse because some of them may appear insufficient or erroneous when considered independently. Toledo, Wabash and Western Railway Co. v. Ingraham, 77 Ill. 309; Stowell v. Beagle, 79 Ill. 525; Kennedy v. People, 40 Ill. 502; Northern Line Packet Co. v. Binninger, 71 Ill. 511; Latham v. Roach, 72 Ill. 179; Smith v. People, 74 Ill. 146." }, "file_name": "0299-01", "first_page_order": 299, "last_page_order": 327 }