Rock Island Argus. (Rock Island, Ill.) 1893-1920, 1914-07-03


me.
There has been some talk that this
change of venue was taken by the
defense from Judge Olmsted and Ram
say TO me. in order TO postpone the
trial. because OF my heavy work. l
cannot take the responsibility of a de.
lay. and will persist in my original in
tention to try this case next Monday.
unless the attorneys on both sides
stipulate time later"
Courts Ruling.
Judge r. c. Graves in his ruling
said; The motion to duash chal.
lenges this indictment for several rea.
sons. The reasons most earnestly
urged are based on the contention that
the appointment OF George w. Wood
as special prosecutor was and is void.
and that as his appointment is void
his presence in the grand Jury room
during the taking OF evidence on which
this indictment is based was unauthor-
lied. and so violates the rule of law re-
curing secrecy In proceedings of
grand juries as to render the indict-
ment void. They also insist that the
personal conduct OF Mr.. Wood in
the grand jury room and while exam
ming witnesses was of a character 10
intimidate the witnesses and invali.
date all indictment based on evidence
so procured.
The power OF the circuit court to
appoint a special states attorney IS
expressly given by section OF chap
ter Il. r. s.. and has been exercised
b. the circuit court of this and many
counties in the state from time to
time as occasion has required since
1s47 when the section referred to be
came law. and such exercises of such
power has been recognized by the SUI
preme court in LAWN VS.. Commission
ers, 245 III. 1876. and BY the appellate
court in People VS.. Northrup. not yet
reported. In both OF these cases the
position filled by special states at
torney is in effect held TO be an Office.
and in the LAWN case the special
states attorney is held to be at least
an officer de facto which holding ex-
pressly recognizes the fact that one
appointed TO that Office may by reason
OF some defect in the proceedings in
which he was named as such officer
be an officer de facto. although he is
not an officer de jure.
AN officer de facto is one who has
color OF authority, or title, to an office
under an election or appointment how
ever irregular or informal so that he
be not a mere volunteer. (Howard VS..
Burke. 24S Ill 224-229).
That. the title to a public office can
not be attacked in a collateral proceed
ing is not denied by counsel for de
PENDANTS. but II is earnestly contended
that this motion to quash is not a col
teraI attack.
"A collateral attack on a judgment
is any proceeding or attempt to i'm
peach il which is not instituted for the
express purpose of annulling. correct
ing or multiplying it or of enjoining its
execution. (Morrell VS.. Morrell. %
Pac. 1922. Defendants have offered in
evidence the record of the appoint
ment of Mr.. Wood as special states
attorney. From this record IL appears
that he was appointed by the circuit
court of Rock Island county at a reg
ular term of that court. and that he
thereupon assumed and has since that
time been exercising the powers and
performing the duties OF that Office
The circuit court has power 20 appoint
a special states attorney. CLavin rs.
Commissioners, supra, People VS.
Northrup. SUPRA.
Wood De Facto Officer.
This proceeding is an indictment
against the sheriff and states attorney
of this county charging criminal con-
duct. II was not returned for the ex-
press purpose OF annulling. correct
ing or modifying the order by which
Mr.. Wood was appointed. The motion
therefore is a collateral attack on the
On such an attack the
only question to determine is whether
the court had the power If it pro
ceeded in the proper way. This court
cannot inquire in this proceeding
whether that power was properly in |
voked or executed or not On the rec
ord here presented It is manifest Mr.. |
Wood was and is a special states attor-
ney de facto at Ieast. and that his acts |
for all intents and purposes of this mo- |
tion are as valid and binding as II he /
were admittedly a de jure officer. His |
presence in the grand jury room while |
the evidence was being taken on which |
this indictment was based was there |
fore proper and in the line of his |
duty.
There IS also contention that this |
should be quashed by rea-
son of the fact that Mr. Wood by his /
course with witnesses before the grand |
jury intimidated them. II may be that
II some of the afidavits filed in SUP /