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(187 U. S. 71)
EDWARD 8. DREYER, Piff. in Err.,

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PEOPLE OF THE STATE OF ILLINOIS.

Constitutional law due process of law failure to swear officers in charge of jury act -Illinois indeterminate sentence judicial power conferred on nonjudicial officers-criminal law former jeopardy.

14th

The indictment was based on § 215 of the Criminal Code of Illinois, which is as follows:

"If any state, county, town, municipal, or other officer or person who now is or hereafter may be authorized by law to collect, receive, safely keep, or disburse any money, revenue, bonds, mortgages, coupons, bank bills, notes, warrants, or dues, or other funds or securities belonging to the state or any county, township, incorporated city, town, or village, or any state institution, or any canal, turnpike, railroad, school, or college fund, or the fund of any public improvement that now is or may hereafter be authorized by law to be made, or any other fund now in being or that may hereafter be established by law for public purposes, or belonging to any insurance or other company or person required or authorized by law to be placed in the keeping of any such officer or person, shall fail or refuse to pay or deliver over the same when required by law, or demand is made by his successor in office or trust, or the officer or person to whom the same should be paid or delivered over, or his agent or attorney, authorized in writing, he shall be imprisoned in the penitentiary not less than one nor more than ten years: Provided, Such demand need A plea of former jeopardy cannot be based not be made when, from the absence or fault upon the discharge of the jury for their in- of the offender, the same cannot convenientability to agree on a verdict after consider-ly be made: And provided, That no person Ing the cause from four o'clock in the after noon until half past nine in the morning of the succeeding day.

1. The refusal of a state court to review the question whether the officers In charge of the jury on a trial for a felony were sworn, as prescribed by statute, when the jury retired, because such question was first raised on a motion for a new trial, infringes no right secured to the accused by the Amendment to the Federal Constitution, even if the swearing of such officers when the jury retire is essential to the due process of law prescribed by that amendment; but such a ruling is simply an adjudication of a question of criminal practice and local law. 2. The right to the due process of law guaranteed by the 14th Amendment to the Federal Constitution is not infringed by the decision of a state court sustaining the valid Ity of the Illinois indeterminate sentence act of 1899, although such statute may confer Judicial powers upon nonjudicial officers, and, In effect, invest them with the pardoning power of the Executive.

8.

[No. 37.]

shall be committed to the penitentiary under this section unless the money not paid over shall amount to $100, or if it appear that such failure or refusal is occasioned by 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.

'N ERROR to the Supreme Court of the IN ERROR to the S review a judgment which affirmed a judgment of the Criminal Court of Cook County convicting a former treasurer of the West Chicago park commissioners of the offense of having failed to turn over to his successor in office property that came into his hands as such treasurer. Affirmed.

See same case below, 188 Ill. 40, 58 N. E. 620, 59 N. E. 424.

Statement by Mr. Justice Harlan:

By an indictment returned in the criminal court of Cook county, Illinois, on the 4th day of February, 1899, the plaintiff in error, Dreyer, was charged with the offense of having failed to turn over to his successor in office, as treasurer of the West Chicago park commissioners, revenues, bonds, funds, warrants, and personal property that came to his hands as such treasurer, of the value of $316,013.40,-said commissioners constituting a board of public park commissioners appointed by the governor and confirmed by the senate of Illinois, and, as such, having the supervision of the public parks and boulevards in the town of West Chicago, and authority under the law to collect and disburse moneys, bonds, etc., for their maintenance.

3. See Criminal Law, vol. 14, Cent. Dig. § 344.

and disqualified from holding any office of
Hurd's Rev.
honor or profit in this state."
Stat. 1901, § 215, p. 630.

A trial was commenced on the 29th day of August, 1899, and a jury was impaneled and evidence heard. The jury, not having agreed upon a verdict, were discharged.

A second trial was begun on the 19th day The defendant filed a of February, 1900. plea of once in jeopardy, which in substance the order of court at the previous trial, averred that it was not true, as recited in that the jury were unable to agree upon a verdict; also, that the discharge of the jury was without the defendant's assent, was against his objections made at the time, and was without any moral or physical necessity justifying such a course on the part of the trial court.

On motion of the state the plea of former jeopardy was stricken from the files, the defendant at the time excepting to the action of the court.

There was a second trial, which resulted in the defendant being found “guilty of failure to pay over money to his successor in office, in manner and form as charged in the indictment," the jury stating in the verdict the amount not paid over to be $316,000, and imposing the punishment of confinement in the penitentiary.

The defendant, upon written grounds

filed, moved for a new trial, and also moved in arrest of judgment. Both motions were overruled, and it was ordered and adjudged that the defendant be sentenced to the penitentiary "for the crime of failure to pay over money to his successor in office, whereof he stands convicted."

considering their verdict without being placed in charge of a sworn officer, as required by the statute, citing McIntyre v. People, 38 Ill. 514, 518; Lewis v. People, 44 Ill. 452, 454; Sanders v. People, 124 Ill. 218, 16 N. E. 81; and Farley v. People, 138 Ill. 97, 27 N. E. 927. In Lewis v. People, just cited, the court observed that the pro

The judgment of the trial court having been affirmed by the supreme court of Illi-visions of the above section "show the great nois, the case is here upon writ of error allowed by the chief justice of that court.

Messrs. Alfred S. Austrian, T. A. Moran and Levy Mayer for plaintiff in error. Messrs. H. J. Hamlin and Charles S. Deneen for defendant in error.

Mr. Justice Harlan, after stating the facts as above reported, delivered the opin

ion of the court:

It is contended that the judgment of the supreme court of Illinois, affirming the judgment, in the present case, of the criminal court of Cook county, in that state, de nied to the plaintiff in error certain rights secured to him by the Constitution of the United States, particularly by the clause of the 14th Amendment forbidding a state to deprive any person of liberty without due process of law.

The defendant insists that three questions, involving rights secured by the Constitution of the United States, are presented by the assignments of error:

1. The first of those questions, as stated by his counsel, relates to the alleged "omission to swear the bailiffs in the manner prescribed by the common law and the statutes of the state of Illinois before the jury retired to consider of their verdict." This point will be first examined.

The Criminal Code of Illinois provides: "When the jury retire to consider of their verdict, in any criminal case, a constable or other officer shall be sworn or affirmed to attend the jury to some private and convenient place, and to the best of his ability keep them together without meat or drink (water excepted), unless by leave of court, until they shall have agreed upon their verdict, nor suffer others to speak to them, and that when they shall have agreed upon their verdict he will return them into court: Provided, In cases of misdemeanor only, if the prosecutor for the People and the person on trial, by himself or counsel, shall agree, which agreement shall be entered upon the minutes of the court, to dispense with the attendance of an officer upon the jury, or that the jury, when they have agreed upon their verdict, may write and seal the same, and after delivering the same to the clerk, may separate, it shall be lawful for the court to carry into effect any such agreement, and receive any such verdict so delivered to the clerk as the lawful verdict of such jury." Hurd's (Ill.) Rev. Stat. 1901, $435.

Referring to this section the supreme court, in the present case, said that it was reversible error, in a trial for a felony, to allow the jury to retire for the purpose of

care and solicitude of the general assembly to secure to every person a fair and impartial trial; and it is eminently proper, as in many cases the accused is imprisoned and it is not in his power to protect his rights from being prejudiced by undue influences. It should ever be the care of courts of justice to guard human life and liberty against being sacrificed by public prejudice or exfrom all outside influences from the time citement. The jury should be entirely free they are impaneled until they return their verdict and it is accepted and they discharged, and the legislature have determined that the provisions of this statute are necessary to accomplish the object. It is a provision easily complied with, and one member of the court, at least, has never, in practice, seen it dispensed with, except in cases of misdemeanor. The provisions of the statute are clear, explicit, and peremptory. We know of no power, short of its repeal, to dispense with this requirement." of controversy in the present case is not, But the court further said: "The point however, whether it is reversible error to fail to comply with the statute, but whether the question is properly raised upon this taken by the defendant, at the time of the record. No objection or exception was retirement of the jury, that the officers in charge of it were not sworn, but the question was raised by him for the first time on his motion for new trial, one of the grounds of that motion being 'that when the jury retired to consider of their verdict in said case, no constable or other officer was

sworn

Affi

or affirmed to attend the jury, in manner and form as provided by the statute of the state of Illinois.' davits made by the bailiffs "themselves, and by an assistant of the prosecuting attorney, who participated in the trial, tend to prove that the oath adminstered was in the statutory form, but these affidavits also show that the only oath administered to them was on the 21st day of February, immediately after the impaneling and swearing of the jury. It is shown by the bill of exceptions that the trial was not concluded and the jury finally sent out, until February 28th, so that, even by the proof made on behalf of the people, the only oath taken by the bailiffs was some six days prior to their retirement with the jury, and prior to the introduction of evidence, and the subsequent steps of the trial. This cannot be held to be a compliance with the requirement of the statute that 'when the jury shall retire to consider of their verdict,' etc.; 'a constable or other officer shall be sworn,' etc. To swear the bailiffs immediately upon the jury being sworn, and prior to the introduc

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 little less than farcical." [188 Ill. 40, 58 N. E. 620, 59 N. E. 424.]

It was, however, held that, under the principles established by former decisions in Illinois, the requirement of the statute could be waived by the accused, and that his failure to object at the time, that the officer having charge of the jury was not sworn when the jury retired, was equivalent to a waiver of compliance with its provisions. And it was adjudged "that the question whether or not, upon the retirement of the jury to consider of its verdict, it was placed in charge of a constable, or other officer, sworn to attend it, as prescribed by statute, is not properly raised by the record [of this case], and therefore [is] not available as error in this court."

The judgment was in conformity with a statute of Illinois, approved April 21st, 1899, entitled "An Act to Revise the Law in Relation to the Sentence and Commitment of Persons Convicted of Crime, and Providing for a System of Parole," etc. The statute is sometimes referred to as the indeterminate sentence act of Illinois, and as its validity under the Constitution of the United States is assailed, its provisions must be examined.

That statute provides that every male person over twenty years of age, and every female person over eighteen years of age, convicted of a felony, or other crime punishable by imprisonment in the penitentiary, except treason, murder, rape, and kidnapping, shall be sentenced to the penitentiary, the court imposing the sentence to fix its limit or duration, the term of such im

exceeding the maximum term provided by law for the crime of which the prisoner was convicted, making allowance for good time, as provided by law. § 1.

It thus appears that while the state court expressly recognized the rights of the ac-prisonment not to be less than one year, nor cused under the statute, it adjudged that he had not properly raised on the record the question, raised for the first time on motion for a new trial, as to noncompliance with its provisions. But, manifestly, this decision presents no question of a Federal nature. A ruling to the effect that the accused shall be deemed to have waived compliance with the statute if the record does not show that he objected at the time to the action of the court was an adjudication simply of a question of criminal practice and local law, was not in derogation of the substantial right recognized by the statute, and did not impair the constitutional guaranty that no state shall deprive any person of liberty without due process of law. We cannot perceive that such a decision by the highest court of the state brings the case upon this point within the 14th Amendment, even if it should be assumed that the due process of law prescribed by that amendment required that a jury in a felony case should be placed in charge of an officer especially sworn at the time to attend and keep them together until they returned their verdict or were discharged.

We adjudge that in holding that the record did not sufficiently present for consideration the question now raised, the state court, even if it erred in its decision, did not infringe any right secured to the defendant by the Constitution of the United States.

2. Another question which counsel for the defendant contends is raised by the assignments of error relates to the final judgment of the criminal court of Cook county. It was adjudged by the trial court that the defendant be taken to the penitentiary of the state, at Joliet, and delivered to its warden or keeper, who was required and commanded to "confine him in said penitentiary, in safe and secure custody, from and after the delivery thereof, until discharged by the state board of pardons as authorized and directed by law, provided such term of imprisonment in said penitentiary shall not

It was made the duty of each board of penitentiary commissioners to adopt such rules concerning prisoners committed to their custody as would prevent them from returning to criminal courses, best secure their self-support, and accomplish their reformation. To that end it provided that, whenever any prisoner was received into the penitentiary the warden should cause to be entered in a register the date of his admission, the name, nativity, nationality, with such other facts as could be ascertained, of parentage, education, occupation, and early social influences, as seemed to indicate the constitutional and acquired defects and tendencies of the prisoner, and, based upon these, an estimate of his then present condition, and the best probable plan of treatment. And the physician of the penitentiary was required to carefully examine each prisoner when received, and enter in a register the name, nationality or race, the weight, stature, and family history of each prisoner; also a statement of the condition of the heart, lungs, and other leading or gans, the rate of the pulse and respiration, and the measurement of the chest and abdomen, and any existing disease or deformity, or other disability, acquired or inherited. Upon the warden's register was to be entered from time to time, minutes of observed improvement or deterioration of character, and notes as to the method and treatment employed; also all alterations affecting the standing or situation of the prisoner, and any subsequent facts or personal history, brought officially to his knowledge, bearing upon the question of the parole or final release of the prisoner; and it was the duty of the warden, or, in his absence, the deputy warden, of each penitentiary to attend each meeting of the board of pardons held at the penitentiary of which he was warden, for the purpose of examin

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ing prisoners as to their fitness for parole. in 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, in writing, as to the fitness of each prisoner for parole, whose case the board considered. And it was made the duty of every public officer to whom inquiry was addressed by the clerk of the board of pardons concerning any prisoner, to give the board all information possessed or accessible to him, which might throw light upon the question of the fitness of the prisoner to receive the benefits of parole. § 2.

ficers, or other persons named therein, to execute said order or writ the same as any other criminal process. In case any prisoner so conditionally released or paroled shall flee beyond the limit of the state, he may be returned, pursuant to the provisions of the law of this state relating to fugitives from justice. It shall be the duty of the warden, immediately upon the return of any conditionally released or paroled prisoner, 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 pa facts 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 durlows:

ing the month; and it shall be the duty of such sheriff to investigate such report and ascertain what has been the habits and conduct of such prisoner during the time cov. ered by such report, and to transmit such

warden of the penitentiary, to said warden, within five days after the receipt of *such prisoner's report, adding to such report the sheriff's statement as to the truth of the report so made to him by the prisoner. It

secret the fact that such prisoner is a paroled prisoner, and in no case divulge such fact to any person or persons, so long as said prisoner obeys the terms and conditions of his parole.

"5. Upon the granting of a parole to any prisoner the warden shall provide him with suitable clothing, $10 in money, which may be paid him in instalments at the discretion of the warden, and shall procure transportation for him to the place of his employment, or to the county seat of the county to which he is paroled.

"4. The said board of pardons shall have power to establish rules and regulations under which prisoners in the penitentiary may be allowed to go upon parole outside of the penitentiary building and inclosure: Pro-report, upon blanks furnished him by the vided, That no prisoner shall be released from either penitentiary on parole until the state board of pardons or the warden of said penitentiary shall have made arrangements, or shall have satisfactory evidence that arrangements have been made, for his honora-shall also be the duty of such sheriff to keep ble and useful employment while upon parole, in some suitable occupation, and also for a proper and suitable home, free from criminal influences, and without expense to the state: And provided further, That all prisoners so released upon parole shall, at all times until the receipt of their final discharge, be considered in the legal custody of the warden of the penitentiary from which they were paroled, and shall, during the said time, be considered as remaining under conviction for the crime of which they were convicted and sentenced, and subject at any 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 incompaticient warrant for the officer or other person ble with the welfare of society, the warden named 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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from other sources, that any prisoner has faithfully served the term of his parole, and the board shall be of the opinion that such prisoner can safely be trusted to be at liberty, and that his final release will not be incompatible with the welfare of society, the state board of pardons shall have the power to cause to be entered of record in its office an order discharging such prisoner for, or on account of, his conviction, which said order, when approved by the governor, shall operate as a complete discharge of such prisoner, in the nature of a release or commutation of his sentence, to take effect immediately upon the delivery of a certified copy thereof to the prisoner; and the clerk of the court in which the prisoner was convicted shall, upon presentation of such certified copy, enter the judgment of such conviction satisfied and released, pursuant to said order. It is hereby made the duty of the clerk of the board of pardons to send written notice of the fact to the warden of the penitentiary of the proper district, whenever any prisoner on parole is finally released by said board." Ill. Laws 1899, P. 142.

In this connection we are referred to article 3 of the Constitution of Illinois, dividing the powers of government into three distinct departments,-legislative, executive, judicial, and providing that "no person or collection of persons being one of these departments shall exercise any power properly belonging to either of the others, except as hereinafter expressly directed or permitted;" to 1 of article 6 of the same Constitution, providing that "the judicial pow. ers, except as in this article is otherwise provided, shall be vested in one supreme court, circuit courts, county courts, justices of the peace, police magistrates, and in such courts as may be created by law in and for cities and incorporated towns;" and to § 13 of article 5, providing that the pardoning power shall be in the governor of the state. If we do not misapprehend the position of counsel, it is that the indeterminate sentence act of 1899 is inconsistent with the above provisions of the state Constitution, in that it confers judicial powers upon a collection of persons who do not belong to the judicial department, and, in effect, invests them with the pardoning power, committed by the Constitution to the governor

of the state.

partment, with powers that are judicial, and authorizing them to exercise the pardoning power which alone belongs to the governor of the state, presents no question under the Constitution of the United States. The right to the due process of law prescribed by the 14th Amendment would not be infringed by a local statute of that character. Whether the legislative, executive, and judicial powers of a state shall be kept altogether distinct and separate, or whether persons or collections of persons belonging to one department may, in respect to some matters, exert powers which, strictly speaking, pertain to another department of government, is for the determination of the state. And its determination one way or the other cannot be an element in the inquiry, whether the due process of law prescribed by the 14th Amendment has been respected by the state or its representatives when dealing with matters involving life or liberty. "When we speak," said Story, "of a separation of the three great depart ments of government, and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is, that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free Constitution." Story, Const. 5th ed. 393. Again: "Indeed, there is not a single constitution of any state in the Union, which does not practically embrace some acknowledgment of the maxim, and at the same time some admixture of powers constituting an exception to it." Id. 395.

The objection that the act of 1899 confers upon executive or ministerial officers powers of a judicial nature does not, in our judgment, present any question under the due process clause of the 14th Amendment.

3. The remaining contention of the defendant is that, under the circumstances disclosed by the record, the second trial of the case placed him twice in jeopardy, and therefore the judgment should be reversed.

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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 Ill. 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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