, 1873-11-01

tho oxhaatlon Of rower at tho clogo Of tho torn At
which Judgment waa rendered. Tlicse lroposltona
Of the Criminal Court over this oxiaustod-.
oniled--by tho rendition Of flna Judgment at tho
vo SHOWN sSa y h ae S
not follow that tho rcaBoninE Of tho majority IT THO
Court Ia ,tnsnt,Hlacory at tl,o Conclusion tsos'nd
power at'll inerca IN the lower Court. and is ncroy
a'.srenaea BY tlo e,perse.leas NY pos'ton is that
This coeo,so o 10 liz haaug point 'i'' Of a dis
s,'aaion: Fort the power DO utterly gone to' I fol
ncon no e m eeH w n H.
cause by thnt Court II wo 90 out Of tic record, All,
.ssme s,, what ao9se anpcara IN It that there saa
then tho legal OBJECT was to withdraw tho from tie
lowor Court whosc power over It was erlauatod 10
this Court Wo 1nny travel still farther out Of The
ssass % Gast q II. sn9 qnn Teh d.
i lnol claimed, In the opinion of Tho majority Il
entcro ii thia Court md AIT is not true in fact lint
any mandate Or process Of romittttur over Issued
o Gour 81
1a1 n hs m caso af9F tho closo 9f Tho peeen.
espresa 1sndst. Of this Court should &C. n duo form
Ing ths caise 5sck to thate Court. @ s'''' 9As ~
every case It lts discretion, which as gono into final
Judgment there, uron The mere reversal here7 Yot
~ writ Of error or appeal and Is simply reyeracd the
Court below has no power to net unless II j. alao re-
bodied in our STATUTE In force ut tho tmo Of the attempt
to rcnstate this cause. "Whcn proccedng1s
tho order Of Il tic supreme Court rsanns tho apme 9.
being flied in tho Court from which tho cause or pro-
seedlng wss Fen'orsd and not css than ten days. no
t:ssss sis Ss:so &C., &c. E 1s"'' s.
areslon on to the oerk o what gment wh'sn ss
DO entered, aud to td Court below In respect to It's
rulings 4 Transcript Of tha order q this Court nor
sHe case was eyor before thn Court was read, md a
below assumed. to exercise Jurisdiction which had
bcon utterly exhausted and ended. + maintain that
a a aSe liz Ge 9ea "ss q te ssefsss Soar % ID
ays much stress upon tho fact at application WA
change Of venue. It must bo remembered that tho
record docs not stow that detondauts counsel moved
ro.docSoting lin T was made, he moved for e,,aneo Of
out transcript Of tho ami order Of this Court being
filed, tho Court below was utory without Jurisdiction
II correct in this. 1t follows that the Court hnd
thority to mako any order n the cause md tho arp
elementary rule, that consont cannot confer juria-
dlcon OF tho subject matter. Suppose tie question
Of writ Of T. error we're Wholly out q tue case saa not
that tho sheriff had let the time 60 BY for executing
tho prisoner under hs l,at Judgment and tho Grim.
Into cour % and When brought h nad orderea his eaas
to stand for another trial, Tho prisoner makes no
voluntary appearanee; 10 is brought IN by fores:
ia granted to viii County. Ho Is taken by force to
that county, and there tried md conyctod. Would It
venue he therefore revived tho aIrealy exhausted
1uriadction Of tho Criminal 0onrt or conferrea any
p1.ones % @ charged viii eauy IL o1derad to sspd
trial without Any Indictment having been found
ssn @ or which n es
tho case of nainey " The People 9 Gilman, Il, thu
never been presented In court. Mo applied for sud
took q change Of ven'o to another, circuit,
gheFs he psa fS mna md found
f fnis Court tho tbi: coavc.ion p was '1o reversed,
because tho record did not show tho returning Of the
ranged. Why waa this not waived BY taking change
Of yenuo7 Simply because II was jntisdicttonal:
was Ien 70 tho coart o error wSsro ho adsnens
awarded. but which WIS mover sued out. And the
second trial was consequently without any authority
and in our opinion altogether NUT and roid. There
out any award By the Court for the same aud rithout
Ss %sfsy q tie appsssans' q 'a'
pear Voluntarily. Tha Ia capital case, where tie
borcgarded standing upon all ia rights except such
as be deliberately and expressly valves.
aM' an Of o tho opln,on thnt tug Judgment q the WI
ordered to DO executed, ia altogether null md void
think also That there WIS error in overruug tho
Williams.
The theory Of the defense was TINT the prison.
erR wife committed suicide, a1o had often tArca
Il in rTn fhrIH and
could get down stairs only slowly and with difficulty
The homicide took place upstairs. Now, by showing
Williams mot hmi was for tho purpose Of raising the
Inference TINT tho prisoner could not hare inflicted tho
wound, and, In hA pyAca condition, have got fur
from the spot at tho tiuo he by this Rbacnt
witness.
For tho reasons stated think the Judgment should
be Reversed, and tho cause reminded back to the
Criminal Court Of Cook County, thus treating the
change Of yenio a. n1illity.,
6chp3ted, J-1 concur III the views EXPRESSED In the
foregoing opinion Of Atr. Justice MeAlistov.
ANOTHER p1ssENrEn.
Mr. Justice Scott alao tllod d dissenting opin-
ion, as follows;
am Of tho opinion that 1t error in Tho Circuit
Court to refuse continuance the athdayits filed
The evidence sought to be procured al-imposant
to enable tho accused to lnake his defense mud the
diligence ahowp to procure the atendanee Of the
II WIS not possible, under tho circumstances, for the
prisoner to do more Upon tho question whelhcr the
cause without mandate from this Court having boon
Arat 0ed, do not desire To express opinion al
thia timo further thnn to say TO not concur in ali
the reasoning of tho majority Of the Court on thai
| point. Iu view Of the rules Of court. and nftcl
most careful consideration, 1t ia my deliberate Judg
cnt there Is in tho rocord for which tho judg
! 1uent OF tho Circuit Court should bo reyerael.
IOWA NEWS ITEMS,
Till-tappiug has become so frequent at DoE
Moinea that merchants arc becoming Justly
alarmed, and in many casos arc putting II
+" alarm. .ilrnWDtan