, 1874-02-01
OPINION OF THE COURT.

OPINION OF THE COURT.
This case has been before us, upon writ Of
error, on two former occasions. On the first,
the conviction was revived upon the ground that
the Criminal Court of Cook County erred in
denying the prisoners application, upon q suf6-
cient petition, for change of venue. This
Court held, in accordance with the views of the
profession and Circuit Judges all over the State,
as shown by the general course Of practice, that
tho application was not addressed to the discre-
ton OF the Court, but, upon proper application
being made, the prisoner WAS entitled to it as
matter OF right. For depriving him Of that
right the judgment Of the Court below MAS
reversed and the cause zemanded. Rafferty, '.
The People, September term, 1872.
THE SECOND TRIAL.
Upon the second trial, in the county to which
the venue WAS changed, evidence rss given by
Scanlon, directly tending to show that he and
O'Mears, the deceased, at the t:aeotho"i "iatter
Was shot, were attempting to az1es:, the prisoner
upon = warrant not ii the hands OF O'Meara,
but scaulon* Whereupon tho prisoners coun-
sci gave evidence showing, without contradic-
tion. that the pretended proccss upon which
such arrest was attempted was blank taken
from number which the Police Hagistrate had
signed in blank, and which, on Aug. 4, 1879, had
been filled out by nero Police Sergeant, in the
absence of the Magistrate By inserting the
prisoners name, but dated IS of Aug. 5, 1879.
When the evidence Of the llcgality OF
the process VAS given, the Court, on motion
Of the States Attorney, excluded it from
the jury, to which the prisoners counsel except
ed. This egidence having been excluded. the
case was then submitted to the jury by the Court
malice, and us if no such element An illegal
arrest being attempted ut the time Of the homi-
eide was in the caso
m1EaAL111 or THE WARRANT.
Tho prisoner WAS convicted of murder, and
sentenced to suffer the penalty OF death. An
application was made, upon transcript Of the
record preserving tho evidence and rulings OF the
Court, for the allowance Of writ of error from
this Court. which was granted, and that
brought the case before us second
time. AB the case then stood, not having
been submitted to the jury on the ground OF e1-
press malice, and the evidence tending to show
O'Meara's participation in IN intended arrest,
and the evidence excluded showing that tho sup
made did not afford even the color OF justihca-
tion, because it was not issued in the course of
justice at all, but fabricated By mere Police
Sergeant, We could not pass upon the merits Of
the case, because portion Of the evidence
affecting the merits had been excluded. It ii
true the fact Of the homicide VAS established
beyond doubt; but every killing Of human
being is not necessarily murder; the character
of the act depends upon tho attending ci1cum-
stances. The pFoprioty Of the ruling Of the
before us, and We could not escape its decision.
We held, as vel have no doubt properly, and |
in accordance with all the decisions in England
and this country, that il d public officer be re- !
tempting to illegally arrest, without color of au-
thoEty Of law, the killing will be manslaagater |
only, unless the evidence shows previous or ex
press malice: Rafferty, =. The People, beptem
ber Term, 1878.
EVIDENCE wRoSoru1LY EXCLUDED.
AZ ne have before said. as the case WAS then |
presented there was evidence clearly tending to |
provo 0 31eara's participation. and the evidence
excluded would have shown the KarTant utterly
void, as We have stated, then it followed, upon
principle and authority, that the exclusion Of |
the evidence was wrong-was projudicial to the |
legal rights Of the prisoner. For. when it ap-
pea1ed that question could be properly raised |
as.;o,, g. to the Legality Of the arrest which e
make, and the evidence tended to show de-
ceased WAS -aiding him, the obnoxious and
proper course Was to let the excluded evidence
go to the jury, and they be required, BY the d.
was in fact participating in an attempted ar
rest by Scanlon. under the supposed warrant: II |
euch waB the facts and then told that il the |
prisoner resisted such illegal arrest and commit-
ted homicide, it WIS mansiauGhter only; but, il
he was actuated by previous OF express malice,
it would nevertheless be murder. This Was the
only proper course to have been: pursued By tho
Court below. and the departure from it was 50
plain departure from established principles OF
criminal Jurisprudence. that Ne: as Court Of
last resort, could not do otherwise than reverse
the conviction and direct new trial. In the
opinion then filed, it announced If when the
question wes made direct issue in the cause, as
to whether 0'Aeara was in fact, par
ed illegal arrest, it should be found
that hel WAS not, the 1u1e Ibid down