, 1873-11-01
The Scope and Office Of the
Remittitur Defined.
judge McAllister Dissents from the
Majority, and Has the Concur
renee Of Judge 6oholfeld.
Unless Pardoncd, Perfect Will
Be Executed Dec.
IL, 1873.
spec3al Dispateh to Tie Chicago Tribune.

being able to send the hrBt copy OF tNo op1n1ona
in the Posteet caae. Attorneys generally may
rely upon them as being absolutely accurate.
The opinion OF the majority Of tho Court iB
by MIR. Justice Craig, and is his maiden efrot In
that line:
On the soth Of November A. D. 1877, Andrew Per-
tect was inctcd for murder IN he Criminal Court q
Gs s or DC 81 a1a ~ 1 s p,on sar he
change Of venue. The motion for change Of vonuo
On tle 2oth Of December 1871, the ea,so was tried
lnd they zel tho penaty that the defendant should
q he " Ea ne Ss
Tho 10Th Of January, 1872.
writ of error, and tio Judgment Of tho Criminal
Court reversed and the cause romanded, on tho
ground that ho Criminal Court erred in not granting
On tho 2os day Of November 1872 tho record Of tho
Criminal Court showa tie following nroceodings IN the
again the aaid People by Charles H. Recd, stae's
Attorney, md tho said dofendant we'll In his
np!csring to Ito Court from certiaed copy Of tho
orinion Of tho Supreme Court Of ha State produced
tha @ tbs iudRent of Il ts cort in s eaao has beet
revereed, aud this remauded for another trial,
It i, ordered that this cause he, and the same is here
"And now comes the said defendant and presents
his petition for Change Of vonuo u this causc,
and the Court being fully advised III the premibcs,
oh order that the Venue III this cause be changed 10
the County OF WILL and tiat the Clerk OF thia Court
County n The papers file iii this cause, With true
aud corrccs copy of a orders md proceedings Of this
&C. o Il oo
The' venue of the case having neen changed to Will
Court of ihe County Of Will tie defendant entered
motion for continuance The motion waa oysrraisd, yaaa
penai.y f@s lint ho suger death By hanging, ~
the M teisndan Perfect b hsngod on the i4th day Of
IT, AgM az he - ogs ra. hq roc
Daa 1a Of 4 ihe S judgment % e for saToas errors
We will examine the questions IN tho ordcr IN which
they during tho progress Of tho trial OF tho
Tic trat dcclason of tho Circuit Court. to which
eepton was taken, was tho ovSrrung tue motion fer
snes Of i one Williams, wno, on tic rs trial. was W.T.
o s eyenng .aS II e marsr hs walk
Ing on Polk street, in tho direction Of pertoets house,
s fn aS s o o
about half block distant from the house. going north.
How his evidence could 9 material foF the @ defendant
ui showing tho defendant at near the house when
tAe murder WAS committed at the tae aoqn after
It occurred In order 10 connect him with The crime
aud for tho defendant to show that ho leaving the
house ut the time the cry Of murder gven would
certainly DO evidence against him rather than in his
favor.
vog xas snes Se IN s
whether his attendance could ever be procured s en-
tircly uncertain, from the affidavit. No sufficient faets
pre set out In the nhdnyit by Which the Court could
pco hat the evidence Of Harvey could ever be obtained
Which ia necessary in criminal case, whom Tue Wit
III out Of the stne, aud cannot be reached ~ tho
process Of the Court. Ewbanks '. The People, Il 1s
Nc arc therefore Of opinion that the motion for
continuance wpR properly oyorruled.
The question that arose was the decafon Of tho
Court In allowing H. Merrill and James Shelton, two
sh1uo
hat about throo weeks before ho trial the attorney OF
defendant was notified that these witnesses would bo
called by tho people, and On the morning before the
trlei was begun written notice Was served on tho de-
condans attorney that these witnesses would be used
This Court has repeatedly held that the People nro
orsed ] On tha bacK I Of The Indictment. st Of which
10 required to be furnished defendant previous to ar
RdnnS TIE - peon scs a H. 9s2
Ii many eascs tho construction Of tue aw contended
tor by defendant counsel would defeat tho elds Of
jusGG and turn loose upon society the worst OF cfn'
Tho ncxt question that arose waa the refusal Of tia
Court permit the witness Hhedon, On crosse1anina
Hon. 10 answer tho question: Did you hear any eEea
DT
BY tGo counsel for defendant, to show tint Perfect
LEFT tho house where tho murder was committed, and
eurreudprel htgcf to tho officers Of tue Inv, for tla
purpose Of protecting hinself from mob violence
he defense did not see, or offer to show, that Per
thst he Lad ai.y hnoWledso tia. NY made: r.
decd tho ey!dico c!cary showa that crtSet left ths
to ths question would not have tended to explain tue
tlciendnnts conduct, unleha TINT hrcats Wera made
and this point VIC percoyo no efFor III she ruling o.
tbs no1t point relied upon BY the defendant to r.
serse the Judgment Of the Circuit Court ts hat tht
for tsat reason Inc Criminal Court Of Cook County
lad no utprity to change tho Of tho cause and
the Circuit Court Of YIN Connty had no right or 1nFis
trr$ -
'ae, Thero Is !si iarled M setop, in many Fcspec
tween tls English practice W.T. o'r own IN era r1 ",
led humane judges to resort technical Fas to eayt
tho ife Of eriuu who WIS iunioa The stBLt ef eo!n
sel or tbo attendance Of witnessos to vindcae hls ~
uulor our laws, criminal IL IN m entirely differ.
sn " 1at ns rKas 70 s1eay mas r4 oe,Gfc
The laws Of tho land furnish him abc connHel for biz
defense. wisther h. he las money or nut The proeess
~ for one elnENs9 viii crime s 2 obtain tair and
shssip, .hesi ,raes IT, III ths | |Eaa. nsae!se' sro not
use under ours. Under lie English praetleo, tl1s
mittcd tho entire record to tho inferior court.
s s III
supreme Court, and Tho ro,nttttnr docs not transmit
ssf At e oEssr !ss lefs % s s4 ey
iii ouy mission IL TO inform the lower court ot th
.ction ii tio Supreme Court tp ths sa'sS, with rec
.sr at error Il, capital caae, takes the jurisdiction
.of tho Cause iso,n the Oslmnul Court. THIS position
Is not tonablo THO Circuit Court returns tho or1gDa
uot takol, nway, but fl power mud authority to &C
or proceed In lie ca,as y staged. ;, ,r. -,,.
n,c writ OF orror st.alI be sufficient authority to t
erh q hu supreme oourt to sso . f%Hsrsftas St
tia iycharRo Of Tue prisoner from ail' jacob in hi
iawDictionary. says: hlreHedeas Ia writ tlAt s
IN great many easss aud s!ss ~ 4tssa e s 5 aeg aoo
na,so show,, which might anlorlzo to proceed" Thl
tjourt In te caso Of Dackerley ct a. v The People,
11ilm eU7 gaid ''Tl4e order allowing auporacttea
,Iocs not operate AZ a suspension Of the Judgment
"ntil tIe bond IL AIel aud tho writ Of error issuef