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(187 U. S. 71) EDWARD & DREYER, Piff. in Error The indictment was based on $ 215 of tho o.

Criminal Code of Illinois, which is as folPEOPLE OF THE STATE OF ILLINOIS. lows:

If any state, county, town, municipal, or Constitutional laro due process of laro other officer or person who now is or here

failure to sucar officers in charge of jury after may be authorized by law to collect, -Illinois indeterminate sentence act

receive, safely keep, or disburse any money, judicial power conferred on nonjudicial revenue, bonds, mortgages, coupons, bank officers-criminal law-former jeopardy. bills, notes, warrants, or dues, or other

funds or securities belonging to the state or 1. The refusal of a state court to review the any county, township, incorporated city,

question whether the officers in charge of town, or village, or any state institution, or the jury on a trial for a felony were sworn, any canal, turnpike, railroad, school, or colas prescribed by statute, when the jury re- lege fund, or the fund of any public improve. tired, because such question was first ralsed ment that now is or may hereafter be au. on a motion for a new trial, Infringesothorized by law to be made, or any other right secured to the accused by the 14th fund now in being or that may hereafter be Amendment even if the swearing of such officers when established by law for public purposes, or the jury retire is essential to the due process belonging to any insurance or other comof law prescribed by that amendment; but pany or person required or authorized by such a ruling is simply an adjudication of a law to be placed in the keeping of any such

question of criminal practice and local law. officer or person, shall fail or refuse to pay or 2. The right to the due process of law guar deliver over the same when required by law,

anteed by the 14th Amendment to the Fed. or demand is made by his successor in office eral Constitution is not infringed by the decision of a state court sustaining the valid: the same should be paid or delivered over,

or trust, or the officer or person to whom Ity of the Illinois Indeterminate sentence act of 1899, although such statute may confer or his agent or attorney, authorized in judicial powers upon nonjudicial officers, and, writing, he shall be imprisoned in the peni. in effect, invest them with the pardoning tentiary not less than one nor more than power of the Executive.

ten years: Provided, Such demand need 8. A plea of former jeopardy cannot be based not be made when, from the absence or fault

upon tbe discharge of the jury for their in- of the offender, the same cannot convenient. ability to agree on a verdict after considerly be made: And provided, That no person ing the cause from four o'clock in the after shall be committed to the penitentiary unnoon until halt past alne ln the morning of der this section unless the money not paid the succeeding day.

over shall amount to $100, or if it appear

that such failure or refusal is occasioned by (No. 37.)

unavoidable loss or accident. Every person

(*convicted under the provisions of this sec. Argued and Submitted April 18, 1902. De- tion shall forever thereafter be ineligible cided November 10, 1902.

and disqualified from holding any office of N ERROR to the Supreme Court of the Stat. 1901, 8 215, p. 630.

honor or profit in this state.' Hurd's Rev. which affirmed a judgment of the Criminal of August, 1899, and a jury was impaneled

A trial was commenced on the 29th day Court of Cook County convicting a former and evidence heard. The jury, not having treasurer of the West Chicago park commis

agreed upon a verdict, were discharged. sioners of the offense of having failed to

A second trial was begun on the 19th day turn over to his successor in office property of February, 1900. The defendant filed a that came into his hands as such treasurer. plea of once in jeopardy, which in substance Affirmed. See same case below, 188 III. 40, 58 N. E. averred that it was not true, as recited in

the order of court at the previous trial, 620, 59 N. E. 424.

that the jury were unable to agree upon a

verdict; also, that the discharge of the jury Statement by Mr. Justice Harlan:

By an indictment returned in the crimi. was without the defendant's assent, was nal court of Cook county, Minois, on the against his objections made at the time, and 4th day of February, 1899, the plaintiff in was without any moral or physical necessity error, Dreyer, was charged with the offense justifying such a course on the part of the of having failed to turn over to his succes

trial court. sor in office, as treasurer of the West Chi- On motion of the state the plea of former cago park commissioners, revenues, bonds, jeopardy was stricken from the files, the defunds, warrants, and personal property that fendant at the time excepting to the action came to his hands as such treasurer, of the of the court. value of $316,013.40,-said commissioners There was a second trial, which resulted constituting a board of public park commis in the defendant being found "guilty of fail. sioners appointed by the governor and con- ure to pay over money to his successor in firmed by the senate of Illinois, and, as office, in manner and form as charged in the such, having the supervision of the public indictment,” the jury stating in the verdict parks and boulevards in the town of West the amount not paid over to be $316,000, Chicago, and authority under the law to col. and imposing the punishment of confinelect and disburse moneys, bonds, etc., for ment in the penitentiary. their maintenance.

The defendant, upon written grounds 1 3. See Criminal Law, vol. 14, Cent. Dig. § 344.

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Bled, moved for a new trial, and also moved considering their verdict without being in arrest of judgment. Both motions were placed in charge of a sworn officer, as ro overruled, and it was ordered and adjudged quired by the statute,-citing McIntyre v. that the defendant be sentenced to the peni-People, 38 Ill. 514, 518; Lerois v. People, 44 tentiary “for the crime of failure to pay III. 452, 454; Sanders v. People, 124 Ill. over money to his successor in office, where 218, 16 N. E. 81; and Farley v. People, 138 of he stands convicted."

Ill. 97, 27 N. E. 927. In Lewis v. People, The judgment of the trial court having just cited, the court observed that the probeen affirmed by the supreme court of Illi- visions of the above section "show the great pois, the case is here upon writ of error al care and solicitude of the general assembly lowed by the chief justice of that court. to secure to every person a fair and impar

tial trial; and it is eminently proper, as in Messrs. Alfred S. Austrian, T. A. Mo- many cases the accused is imprisoned and ran and Levy Mayer for plaintiff in error.

it is not in his power to protect his rights Messrs. H. J. Hamlin and Charles S. from being prejudiced by undue influences. Deneen for defendant in error.

It should ever be the care of courts of jus

tice to guard human life and liberty against *Mr. Justice Harlan, after stating the being sacrificed by public prejudice or exfacts as above reported, delivered the opin- from all outside influences from the time

citement. The jury should be entirely free ion of the court:

It is contended that the judgment of the they are impaneled until they return their supreme court of Illinois, affirming the verdict and it is accepted and they disjudgment, the present case, of the crimi- charged, and the legislature have deternal court of Cook county, in that state, de mined that the provisions of this statute aro nied to the plaintiff in error certain rights necessary to accomplish the object. It is a secured to him by the Constitution of the provision easily complied with, and one United States, particularly by the clause of member of the court, at least, has never, in the 14th Amendment forbidding a state to practice, seen it dispensed with, except in deprive any person of liberty without due cases of misdemeanor. The provisions of

the statute are clear, explicit, and perempprocess of law. The defendant insists that three ques

tory. We know of no power, short of its retions, involving rights secured by the Con- peal, to dispense with this requirement." stitution of the United States, are presented of controversy in the present case is not,

But the court further said: “The point by the assignments of error:

1. The first of those questions, as stated however, whether it is reversible error to by his counsel, relates to the alleged "omis. fail to comply with the statute, but whether sion to swear the bailiffs in the manner pre

the question is properly raised upon this scribed by the common law and the statutes record. No objection or exception was of the state of Illinois before the jury re- taken by the defendant, at the time of the tired to consider of their verdict." This retirement of the jury, that the officers in point will be first examined.

charge of it were not sworn, but the quesThe Criminal Code of Illinois provides: tion was raised by him for the first time "When the jury retire to consider of their on his motion for new trial, one of the verdict, in any criminal case, a constable or grounds of that motion being that when the other officer shall be sworn' or affirmed to jury retired to consider of their verdict in attend the jury to some private and conven- said case, no constable or other officer was ient place, and to the best of his ability sworn or affirmed to attend the jury, in keep them together without meat or drink manner and form as provided by the stat. (water excepted), unless by leave of court, davits made by the bailiffs "themselves, and

ute of the state of Illinois.'

Afiluntil they shall have agreed upon their verdict, nor suffer others to speak to them, and by an assistant of the prosecuting attorney, that when they shall have agreed upon their who participated in the trial, tend to prove verdict he will return them into court: that the oath adminstered was in the statProvided, In cases of misdemeanor only, if utory, form, but these affidavits also show the prosecutor for the People and the person that the only oath administered to them was on trial, by himself or counsel, shall agree, on the 21st day of February, immediately which agreement shall be entered upon the after the impaneling and swearing of the minutes of the court, to dispense with the jury. It is shown by the bill of exceptions attendance of an officer upon the jury, or that the trial was not concluded and the that the jury, when they have agreed upon jury finally sent out, until February 28th, their verdict, may write and seal the same, so that, even by the proof made on behalf and after delivering the same to the clerk, of the people, the only oath taken by the may separate, it shall be lawful for the bailiffs was some six days prior to their recourt to carry into effect any such agree tirement with the jury, and prior to the inment, and receive any such verdict so deliv. troduction of evidence, and the subsequent ered to the clerk as the lawful verdict of steps of the trial. This cannot be held to such jury.” Hurd's (III.) Rev. Stat. 1901, be a compliance with the requirement of the & 435.

statute that 'when the jury shall retire to Referring to this section the supreme consider of their verdict,' etc.; 'a constable court, in the present case, said that it was or other officer shall be sworn,' etc. To reversible error, in a trial for a felony, to swear the bailiffs immediately upon the allow the jury to retire for the purpose of ' jury being sworn, and prior to the introduc

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tion of the evidence, the arguments of coun. exceed the maximum term for the crime for sel, and instructions of the court,-six or which the said defendant was convicted and seven days prior to the retirement of the sentenced.jury to consider of their verdict,—would be The judgment was in conformity with a little less than farcical." [188 III. 40, 58 statute of Illinois, approved April 21st, N. E. 620, 59 N. E. 424.]

1899, entitled "An Act to Revise the Law in It was, however, held that, under the Relation to the Sentence and Commitment principles established by former decisions in of Persons Convicted of Crime, and Provid. fllinois, the requirement of the statute could ing for a System of Parole," etc. The statbe waived by the accused, and that his fail. ute is sometimes referred to as the indeterure to object at the time, that the officer minate sentence act of Illinois, and as its having charge of the jury was not sworn validity under the Constitution of the when the jury retired, was equivalent to a United States is assailed, its provisions waiver of compliance with its provisions. must be examined. And it was adjudged "that the question That statute provides that every male whether or not, upon the retirement of the person over twenty years of age, and every jury to consider of its verdict, it was placed female person over eighteen years of age, in charge of a constable, or other officer, convicted of a felony, or other crime pun. sworn to attend it, as prescribed by stat- ishable by imprisonment in the penitenti. ute, is not properly raised by the record (of ary, except treason, murder, rape, and kid. this case), and therefore [is] not available napping, shall be sentenced to the penitenas error in this court.”

tiary, the court imposing the sentence to fix It thus appears that while the state court its limit or duration, the term of such imexpressly recognized the rights of the ac- prisonment not to be less than one year, nor cused under the statute, it adjudged that he exceeding the maximum term provided by had not properly raised on the record the law for the crime of which the prisoner was question, raised for the first time on mo- convicted, making allowance for good time, tion for a new trial, as to noncompliance as provided by law. $ 1. with its provisions. But, manifestly, this It was made the duty of each board of decision presents no question of a Federal penitentiary commissioners to adopt such nature. A ruling to the effect that the ac- rules concerning prisoners committed to cused shall be deemed to have waived com- their custody as would prevent them from pliance with the statute if the record does returning to criminal courses, best secure not show that he objected at the time to their self-support, and accomplish their the action of the court was an adjudication reformation. To that end it provided that, simply of a question of criminal practice whenever any prisoner was received into the and local law, was not in derogation of the penitentiary the warden should cause to be substantial right recognized by the statute, entered in a register the date of his admisand did not impair the constitutional guar. sion, the name, nativity, nationality, with anty that no state shall deprive any person such other facts as could be ascertained, of of liberty without due process of law. We parentage, education, occupation, and early cannot perceive that such a decision by the social influences, as seemed to indicate the highest court of the state brings the case constitutional and acquired defects and upon this point within the 14th Amend- tendencies of the prisoner, and, based upon ment, even if it should be assumed that the these, an estimate of his then present condi. due process of law prescribed by that tion, and the best probable plan of treatamendment required that a jury in a felony ment. And the physician of the penitencase should be placed in charge of an officer tiary was required to carefully examine especially sworn at the time to attend and each prisoner when received, and enter in a keep them together until they returned their register the name, nationality or race, the verdict or were discharged.

weight, stature, and family history of each We adjudge that in holding that the rec prisoner; also a statement of the condition ord did not sufficiently present for consid of the heart, lungs, and other leading or eration the question now raised, the state gans, the rate of the pulse and respiration, court, even if it erred in its decision, did and the measurement of the chest and abdonot infringe any right secured to the defend- men, and any existing disease or deformity, ant by the Constitution of the United or other disability, acquired or inherited. States.

Upon the warden's register was to be en2. Another question which counsel for the tered from time to time, minutes of obdefendant contends is raised by the assign- served improvement or deterioration of ments of error relates to the final judgment character, and notes as to the method and of the criminal court of Cook county. It treatment employed; also all alterations afwas adjudged by the trial court that the fecting the standing or situation of the defendant be taken to the penitentiary of prisoner, and any subsequent facts or per. the state, at Joliet, and delivered to its sonal history, brought officially to his warden or keeper, who was required and knowledge, bearing upon the question of the commanded to "confine him in said peniten: parole or final release of the prisoner; and tiary, in safe and secure custody, from and it was the duty of the warden, or, in his abafter the delivery there until discharged sence, the deputy warden, of each penitenby the state board of pardons as authorized tiary to attend each meeting of the board and directed by laro, provided such term of of pardons held at the penitentiary of which imprisonment in said penitentiary shall not' he was warden, for the purpose of examining prisoners as to their fitness for parole sin said writ, and it is hereby made the duty He shall advise with that board concerning of all sheriffs, coroners, constables, police of. each case, and furnish it with his opinion, ficers, or other persons named therein, to in writing, as to the fitness of each prisoner execute said order or writ the same as any for parole, whose case the board considered. other criminal process. In case any pris. And it was made the duty of every public oner 80 conditionally released or paroled officer to whom inquiry was addressed by shall flee beyond the limit of the state, he the clerk of the board of pardons concerning may be returned, pursuant to the provisions any prisoner, to give the board all informa of the law of this state relating to fugitives tion possessed or accessible to him, which from justice. It shall be the duty of the might throw light upon the question of the warden, immediately upon the return of any fitness of the prisoner to receive the benefits conditionally released or paroled prisoner, of parole. $ 2.

to make report of the same to the state It was made the duty of the judge before board of pardons, giving the reasons for the whom any prisoner was convicted, and also return of said paroled prisoner: Provided the state's attorney of the county in which further, That the state board of pardons he was convicted, to furnish the board of may, in its discretion, permit any prisoner penitentiary commissioners an official state- to temporarily and conditionally depart ment of the facts and circumstances consti- from such penitentiary on parole and go to tuting the crime whereof the prisoner was some county in the state named, and there convicted, together with all other informa- remain within the limits of the county, and tion accessible to them in regard to the ca- not to depart from the same without writreer of the prisoner prior to the time of the ten authority from said board, for such committal of the crime of which he was con- length of time as the board may determine; victed, relative to his habits, associates, dis- and upon the further condition that such position, and reputation, and any other prisoner shall, during the time of his pafacts and circumstances tending to throw role, be and continuously remain a law. any light upon the question as to whether abiding citizen of industrious and temperate such prisoner was capable of again becom. habits, and report to the sheriff of the ing a law-abiding citizen. $ 3.

county on the first day of each month, giv. Other sections of the statute are as fol. ing a particular account of his conduct dur. lows:

ing the month; and it shall be the duty of “4. The said board of pardons shall have such sheriff to investigate such report and power to establish rules and regulations un ascertain what has been the habits and conder which prisoners in the penitentiary may duct of such prisoner during the time cov. be allowed to go upon parole outside of the ered by such report, and to transmit such penitentiary building and inclosure: Pro- report, upon blanks furnished him by the vided, That no prisoner shall be released warden of the penitentiary, to said warden, a from either penitentiary on parole until the within five days after the receipt of* such state board of pardons or the warden of said prisoner's report, adding to such report the penitentiary shall have made arrangements, sheriff's statement as to the truth of the reor shall have satisfactory evidence that ar- port so made to him by the prisoner. It rangements have been made, for his honora. shall also be the duty of such sheriff to keep ble and useful employment while upon pa secret the fact that such prisoner is a parole, in some suitable occupation, and also roled prisoner, and in no case divulge such for a proper and suitable home, free from fact to any person or persons, so long as criminal influences, and without expense to said prisoner obeys the terms and conditions the state: And provided further, That all of his parole. prisoners so released upon parole shall, at “5. Upon the granting of a parole to any all times until the receipt of their final dis- prisoner the warden shall provide him with charge, be considered in the legal custody of suitable clothing, $10 in money, which may the warden of the penitentiary from which be paid him in instalments at the discretion they were paroled, and shall, during the of the warden, and shall procure transpor. said time, be considered as remaining under tation for him to the place of his employ. conviction for the crime of which they were ment, or to the county seat of the county convicted and sentenced, and subject at any to which he is paroled. time to be taken back within the inclosure “6. It shall be the duty of the warden to of said penitentiary; and full power to en- keep in communication, as far as possible, force such rules and regulations, and to re- with all prisoners who are on parole from take and reimprison any inmate so upon pa- the penitentiary of which he is the warden, role, is hereby conferred upon the warden of also with their employers; and when, in his said penitentiary, whose order or writ, cer- opinion, any prisoner, who has served not tified by the clerk of said penitentiary, with less than six months of his parole acceptthe seal of the institution attached, and di- ably, has given such evidence as is deemed rected to all sheriffs, coroners, constables, reliable and trustworthy that he will repolice officers, or to any particular person main at liberty without violating the law, named in said order or writ, shall be suffi- and that his final release is not incompati. cient warrant for the officer or other person ble with the welfare of society, the warden

amed therein, to authorize -said officer or shall make certificate to that effect to the person to arrest and deliver to the warden state board of pardons; and whenever it of said penitentiary the body of the condi. shall be made to appear to the state board tionally released or paroled prisoner named of pardons from the warden's report, or

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88.

p. 142.

from other sources, that any prisoner has partment, with powers that are judicial, and faithfully served the term of his parole, and authorizing them to exercise the pardoning the board shall be of the opinion that such power which alone belongs to the governor prisoner can safely be trusted to be at lib of the state, presents no question under the erty, and that his final release will not be constitution of the United States. The incompatible with the welfare of society, right to the due process of law prescribed the state board of pardons shall have the by the 14th Amendment would not be inporoer to cause to be entered of record in fringed by a local statute of that character. its office an order discharging such prisoner Whether the legislative, executive, and jufor, or on account of, his conviction, which dicial powers of a state shall be kept altosaid order, when approved by the governor, gether distinct and separate, or whether shall operate as a complete discharge of persons or collections of persons belonging such prisoner, in the nature of a release or to one department may, in respect to some conimutation of his sentence, to take effect matters, exert powers which, strictly speakimmediately upon the delivery of a certified ing, pertain to another department of govcopy thereof to the prisoner; and the clerk ernment, is for the determination of the of the court in which the prisoner was con- state. And its determination one way or victed shall, upon presentation of such cer- the other cannot be an element in the intified copy, enter the ju ment of such con- quiry, whether the due process of law previction satisfied and released, pursuant to scribed by the 14th Amendment has been said order. It is hereby made the duty of respected by the state or its representatives the clerk of the board of pardons to send when dealing with matters involving life written notice of the fact to the warden of or liberty. "When we speak,” said štory, the penitentiary of the proper district, “of a separation of the three great depart whenever any prisoner on parole is finally ments of government, and maintain that released by said board.” Ill. Laws 1899, that separation is indispensable to publio

liberty, we are to understand this maxim In this connection we are referred to ar- in a limited sense. It is not meant to afticle 3 of the Constitution of Illinois, divid- firm that they must be kept wholly and ing the powers of government into three entirely distinct, and have no common link distinct departments, - legislative, executive, of connection or dependence, the one upon judicial,-and providing that “no person or the other, in the slightest degree. The true collection of persons being one of these de- meaning is, that the whole power of one partments shall exercise any power properly of these departments should not be exbelonging to either of the others, except as ercised by the same hands which possess the hereinafter expressly directed or permit- whole power of either of the other departted;" to s I of article 6 of the same Con- ments; and that such exercise of the whole stitution, providing that "the judicial pow. would subvert the principles of a free Coners, except as in this article is otherwise stitution.” Story, Const. 5th ed. 393. provided, shall be vested in one supreme Again: “Indeed, there is not a single concourt, circuit courts, county courts, justices stitution of any state in the Union, which of the peace, police magistrates, and in such does not practically embrace some acknowl. courts as may be created by law in and for edgment of the maxim, and at the same cities and incorporated towns ;” and to $ 13 time some admixture of powers constituting of article 5, providing that the pardoning an exception to it.” Id. 395. power shall be in the governor of the state. The objection that the act of 1899 con

If we do not misapprehend the position fers upon executive or ministerial officers of counsel, it is that the indeterminate sen- powers of a judicial nature does not, in our tence act of 1899 is inconsistent with the judgment, present any question under the above provisions of the state Constitution, due process clause of the 14th Amendmento in that it confers judicial powers upon a

3. The remaining contention of the de collection of persons who do not belong to fendant is that, under the circumstances disthe judicial department, and, in effect, in closed by the record, the second trial of the vests them with the pardoning power, com

case placed him twice in jeopardy, and theremitted by the Constitution to the governor fore the judgment should be reversed. of the state.

Under date of September 1st, 1899, the We will not stop to consider whether the following order was made of record in the statute is in conflict with the provisions of case: “This day come the said People," by the state Constitution to which reference is Charles S. Deneen, State's Attorney, and the here made. We may, however, in passing, said defendant, as well in his own proper observe that a similar statute, previously person as by his counsel, also comes; and enacted, was upheld by the supreme court of also come the jurors of the jury, aforesaid; Illinois. George v. People, 167 III. 447, 47 and the aforesaid jury, hearing the arguN. E. 741. It is only necessary now to say ments of counsel and instructions of the that, even if the statute in question were court, retire in charge of sworn officers to obnoxious to the objection now urged by consider of their verdict." And under date of plaintiff in error, it would not follow that September 2d, this order appears: “This day this court would review a judgment of the come the said People, by Charles S. Deneen, highest court of the state, which expressly State's Attorney, and the defendant, as well or by necessary implication sustained it as in his own proper person as by his counsel, constitutional. A local statute investing a also comes. And also come the jurors of collection of persons not of the judicial de 'the jury aforesaid, being now returned into

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