Peoria County IL Archives Court.....Nomaque, V The People 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 9, 2009, 12:41 am

Source: Il Court Reports, 1819-1830
Written: 1825

December Term 1825

Nomaque, an Indian, Plaintiff in Error, v. The People, Defendants in Error.

ERROR TO PEORIA.

It is necessary, in order to give the court the right, to try a 
prisoner, "that the bill of indictment found by the grand jury, should be 
indorsed "a true bill," and signed by the foreman; an indictment without such 
indorsement is a nullity. (1)

It is an act of great indiscretion in a court to permit the jurors to go at 
large after they are sworn, as well before the trial, as after. 

On the production of affidavits going to prove that one of the jurors had made 
up his mind against the prisoner, though he swore that he had not formed an 
opinion, if the fact is discovered after the trial, a new trial ought to be 
granted.

A prisoner in a capital case is considered as standing on all his rights, and 
waiving nothing on the score of irregularity; an agreement therefore between 
his counsel and the counsel for the people that the jury, if they agree, may 
deliver their verdict to the clerk, is irregular, and a verdict delivered in 
court under such an agreement, in the absence of the jury, ought be set aside 
for such irregularity.

A prisoner has a right to the presence of the jury when they deliver the 
verdict, as he is entitled to have them polled, and a verdict is not final, 
until pronounced and recorded in open court.

Opinion of the Court by Justice Smith. It appears from the record that the 
plaintiff in error was tried at a circuit court at the November term, 1825, in 
the county of Peoria, on a charge of having murdered a man by the name of 
Pierre Londri. From an inspection of the record, it also appears that the 
indictment, as set forth, was never found by the grand jury of that county; no 
finding of any kind is made on the bill. It further appears, that on the 15th 
of October, 1825, being the day of the commencement of the trial, nine of the 
petit jurors were impanneled and sworn, and permitted to go at large until the 
next day, when the panel was completed. After the trial had closed, an 
agreement in the following words was entered into, between the public 
prosecutor and the prisoner's counsel, viz.: "It is agreed by the attorney-
general and the counsel for the defendant, that if in case the jury should 
agree on their verdict between this and to-morrow morning, that they may 
deliver their verdict to the clerk." In pursuance of this agreement the clerk, 
on the morning of the 18th of October, 1825, as the record recites, presented 
to the court the following verdict, which had been handed him by the jury, viz:

State of Illinois, Peoria county circuit court, November term, 1825. We, the 
traverse jury, in and for the county aforesaid, do find Nomaque, an Indian of 
the Pottawattomie tribe, guilty of the murder of Pierre Londri, November 17, 
1825.

A motion was thereupon made for a new trial, on the ground of partiality in 
Dumont, one of the jurors, who, as is established by the oath of two persons, 
declared before he was sworn on the jury, that Nomaque was a damned rascal, 
and all those who took his part, and he would give five dollars to H. M. 
Curry, to appear and assist to convict Nomaque of the crime charged, and pay 
it in surveying, or hunting land.

The court below refused to grant a new trial, and an exception was taken to 
that decision. There are other objections which were made on the trial of the 
cause, but as they are not deemed important, we pass them by. No exception is 
taken in this court to the manner in which the proceedings come before the 
court, nor do we mean to say that any valid one could have been stated or 
urged.

From the preceding statement, which embraces, substantially, all the facts of 
importance in the case, the points which present themselves for consideration 
are, first, whether the prisoner could have been legally tried at all in the 
court below, it not appearing that there had been a finding of the grand jury, 
on the paper purporting to be an indictment; and whether he can now avail 
himself of the objection in this court, the question appearing not to have 
been made in the court, below: Secondly, whether permitting the nine jurors 
impanneled and sworn, on the first day of the trial, to separate and go at 
large before the trial, would have formed sufficient cause for the circuit 
court to have arrested the judgement, or granted a new trial: Thirdly, whether 
the evidence offered to show that Dumont had, previously to the trial, 
expressed his belief of the guilt of the prisoner, or of his hatred to him, 
and was therefore not an impartial juror, was sufficient to establish either 
point, and authorize a new trial: Fourthly, whether the consent that the jury 
might deliver their verdict to the clerk, could have been legally made by the 
prisoner's counsel; and whether that agreement dispensed with the personal 
appearance of the jury, and the rendering of their verdict in open court.

On the first point, we are of opinion; that it was necessary, in order to give 
the court the right to try the prisoner, that the grand jury should have 
indorsed their finding on the bill of indictment, verified by the signature of 
their foreman. This was indispensable, and as it appears not to have been 
done, the proceedings were coram nonjudice. This objection going to the power 
of the court to try the prisoner on that indictment, may, although not noticed 
or urged below, be now urged as cause of error. (a)

On the second point, we give no positive opinion, but it certainly was an act 
of great indiscretion in the court, to permit the jurors to go at large after 
they were sworn; because the reason of the rule, in keeping jurors together 
and apart from every other person, is as applicable, after they are chosen and 
sworn, and before the trial, as after they are charged with the prisoner. The 
object certainly is, to keep them from receiving any other impressions in 
regard to the prisoner, than those which shall be made by the testimony given 
on the trial; if suffered to go at large at any time after they are elected to 
try the prisoner, the object might be wholly defeated. (b)

As to the third point, it is very apparent that the prisoner has been tried by 
one who, so far from standing perfectly indifferent between the parties, as 
the law emphatically requires, was in a condition the very opposite. The state 
of his mind must have led him to look on the testimony against the prisoner 
with every view to a conviction, and his feelings, it would seem, could alone 
have been pacified with the surrender to him, by his fellow jurors, of his 
victim. We are therefore constrained to say, that the circuit court ought to 
have awarded a new trial on the production of the affidavits, as they show 
sufficient grounds discovered after the trial. (c) (2)

The fourth point is, we think, easily settled. The prisoner, in a capital 
case, must be considered as standing on all his rights. He can not be 
considered as waiving any thing, nor could his counsel do it for him. They 
possess neither the power nor right, and if ever there was a case in which an 
observance of the rule should be required, the present is one. (3) The case of 
The People v. McKay, 18 Johns. Rep., 212, is conclusive on this point. The 
supreme court of New York, in that case say, that a paper purporting to be a 
venire, but without the seal of the court, is a nullity, and they declared 
that the prisoner in that case, who had been convicted of murder, and although 
he had challenged some of the jurors, who had been summoned under the supposed 
venire, did not thereby waive his right to object to the want of a venire. It 
is further said in that case, "that it is a humane principle, applicable to 
criminal cases, and especially when life is in question, to consider the 
prisoner as standing on all his rights, and waiving nothing on the score of 
irregularity"; and in that very case, the judge who delivered the opinion of 
the court relates a case analogous to the present. In Ontairio county, New 
York, in 1814, a woman of color was indicted, tried, and found guilty of 
murder. The jury had separated after agreeing on a verdict, and before they 
came into court, and on that ground a new trial was granted, and she was tried 
again. On the present occasion, this precise point is not necessary to be 
decided. The agreement extends no farther than to depositing the verdict with 
the clerk. It did not dispense with the personal appearance of all the jurors 
in court, and a rendition of the verdict by them. It can only be considered as 
authorizing the jury to separate when they agreed on their verdict until the 
next day, for their personal convenience. The prisoner had a right to have the 
jurors polled: this right could not have been exercised where the presence of 
the jurors was dispensed with. For a confirmation of the soundness of this 
doctrine, see the case of Blackley v. Sheldon, 7 Johns. Rep., 32, and 6 Johns. 
Rep., 68. Root v. Sherwood, where it is said, "a verdict is not valid and 
final, until pronounced and recorded in open court; and before it is recorded, 
the jury may vary from their first uttering of their verdict, and the verdict 
which is recorded, shall stand; and if the parties agree that a jury may 
deliver a sealed verdict, it does not take away the right of either to a 
public verdict." If this be law, in a civil case, is it not important, under 
our system of jurisprudence, that it should be adhered to in a criminal case 
affecting life? In the present case, the verdict was not even scaled; it was 
liable to alteration, and besides, the court had no legal evidence that it was 
the verdict of the jury. (4)

While on this part of the case the court feel it their indispensable duty to 
reprobate the tolerance of a practice which might lead to the most dangerous 
consequences, in that case affecting the life of an individual, and to express 
their disapprobation of it, in the present instance.

The judgment of the circuit court of Peoria must be reversed, and a 
supersedeas awarded; and as a flagrant crime has no doubt been committed, and 
possibly by the prisoner, and in order that public justice may not be evaded, 
the court make this additional order, that the prisoner remain in custody for 
thirty days from this day (21st December instant) in order to enable the local 
authorities to take measures to bring him again to trial.

Judgment reversed.

Starr and Blackwell, for plaintiff in error.

James Turney, attorney general, for defendants in error.

-----------------
(1) Although this decision has heen generally followed on the circuits of this 
state, and seems in one case to be approved by the supreme court, yet I am 
unable to see any good reason for it, and believe the current of modern 
authorities in other states is against it. The statute of this state on this 
subject is as follows:—"After the grand jury is impanneled, it shall be the 
duty of the court to appoint a foreman, who shall have, power to swear or 
affirm witnesses to testify before them; and whose duty it shall be, when the 
grand jury, or any twelve, of them, find a bill of indictment to be supported 
by good and sufficient evidence, to indorse thereon 'a true bill;' and when 
they do not find a bill to be supported by sufficient evidence, to indorse 
thereon 'not a true bill;' and shall, in either case, sign his name as 
foreman, at the foot of said indorsement." Purple's statutes, p. 654, Sec. 3. 
Scate's Comp., 681. The English law is nearly the same. 4 Black. Com., 305-6. 
The origin of this requirement is found in the practice in England of first 
preparing all bills that are submitted to the grand jury, they acting on no 
other offenses than those for which bills are so prepared; and such as they 
find to be true bills, they so indorse; but such as were not so found, were 
indorsed "ignoramus," or "not found." And while such practice existed, there 
was an evident propriety in so indorsing them. With us, although the letter of 
the statute would seem to require that bills of indictment should first be 
prepared and submitted to the grand jury before they act on the offense 
charged, the practice has always been not to draw the bill until the jury hear 
the evidence and agree to find an indictment; the prosecuting attorney is then 
instructed to prepare it, and it is by them then returned into court in open 
court. The only object sought to be attained by indorsing an indictment "a 
true bill," was to distinguish it from such as were "not found" by the jury: 
and if the reason for this practice has ceased, why continue it? It is a maxim 
that when the reason of a law ceases, the law itself also ceases. Broom's 
legal maxims, 118. Until a bill is returned into court in open court, by the 
grand jury, and is received by the court as such, it is not an indictment, 
although every juror may have voted for it, and it is indorsed by the 
foreman "a true bill;" and unless the records of the court show that it was so 
received by the court in open court, it will be void. Gardner et al. v. The 
People, 3 Scam., 84. McKinney v. Same, 2 Gilm., 540. Rainey et al v. S_me, 3 
Gilm., 71. Gardner v. The People 20 Ill., 430. Our legislature have endeavored 
to do away with technical objections. "Every indictment or accusation of the 
grand jury, shall be deemed sufficiently technical and correct, which states 
the offense in the terms and language of this code, or so plainly that the 
nature of the offense may be easily understood by the jury." Purple's 
statutes, p. 398, Sec. 209. Scates' Comp., 403. And again: "All exceptions 
which go merely to the form of an indictment, shall be made before trial, and 
no motion in arrest of judgment, or writ of error, shall be sustained, for any 
matter not affecting the real merits of the offense, charged in such 
indictment." Purple's statutes, p. 398, Sec. 209. Scates' Com., p. 403, Sec. 
163. But we are not without authorities on this question. In the case of 
Gardner et al. v. The People, 3 Scam., 84, the record of the indictment 
contained an indorsement "a true bill," but it did not appear to have been 
signed by the foreman. The opinion of the court was delivered by Judge 
Douglas, who said: "All that is necessary to appear on the record is, that the 
grand jury returned the indictment, in open court "a true bill." The 
indictment, in this case, having been received by the circuit court, and 
entered of record as a true bill, and neither the prisoner nor his counsel 
making any objection at that or any other time during the progress of the 
trial, we feel constrained, in the absence of all evidence to the contrary, to 
give full faith and credit to the record." In the case of The State v. 
Freeman, 13 N. H. Rep., 488, after a full investigation of all the 
authorities, the court held such indorsement was not indispensable. In the 
case of The State v. Davidson, 12 Vermont Rep., 300, an indorsement "True 
bill" was held to be a compliance with the statute which required it to be 
indorsed "A true bill." In a late case, Commonwealth v. Smyth, 11 Cushing's 
Rep., 473. the court, in a very able opinion, came to the same conclusion. 
They said: "These words obviously constitute no part of the description of the 
offense charged in the indictment. They are not, indispensable to the due and 
legal authentication of the action of the grand jury. Their absence can 
subject ihe accused to no inconvenience or disadvantage. The reason upon which 
they are elsewhere held to be essential, does not exist in our practice; and I 
herefore this omission in an indictment is simply the omission of a form, 
which, if oftentimes found convenient and useful, is in reality immaterial and 
unimportant."

If I am right in the assumption that the reason for this rule has long since 
ceased to exist—if a change in the practice has superseded the necessity or 
propriety of the requirement in question, unless the provision of the statute 
is imperative, I can see no propriety in adhering to it. If an indictment has 
been fairly and legally found, if the offense is charged in the manner 
required by the laws, if the court has received it from the grand jury as a 
true bill, and so entered it on its records, the omission of a useless form, 
the reason for which has, long since, become obsolete, ought not to intervene 
to prevent a fair and impartial trial on the merits.

An indictment was indorsed "a true bill, George S. Rice, Foreman," while the 
records showed that another person was appointed foreman of the grand jury. In 
the absence of anything on the record to negative the supposition, this court 
will intend that the first foreman was discharged, and another appointed in 
his place. Mohler v. The People, 24 Ill., 26.

(a) In strict legal parlance an indictment is not so called, until it has been 
found "a true bill" by the grand jury; before that, it is named a bill, 
merely, Arch. Crim. Pl., 33.

(b) If a jury separate, after a case is committed to them, and before thev 
have agreed upon their verdict, and afterwards return a verdict, a new trial 
will be granted. Lester v. Stanley, 3 Day, 287. Howard v. Cobb, ibid., 309. 4 
Johns., 293.

(C) When one of the jurors, in a trial for treason, had previously made 
declarations, as well in relation to the prisoner personally, as to the 
general question of the insurrection, manifesting a bias or predetermination, 
a new trial will be awarded. United States v. Fries, 3 Dall., 515.

(2) As to the misconduct of jurors, or disqualifications, see Sawyer v. 
Stevenson, ante., p. 24. Sellers v. The People, 3 Scam., 413. Vennum v. 
Harwood, 1 Gilm.,659. Guykowski v. The People, 1 Scam., 480. Greenup v. 
Stoker, 3 Gilm., 222.

If the parties choose to have their cause tried by a prejudiced juror, it is 
not for the court to refuse them that right. Van Blaricum v. The People, 16 
Ill., 364.

If an officer having charge of a jury permits any member of it to drink 
spirituous liquors after he is sworn, (but before the case is submitted, he 
may be punished for it, but the verdict will not be vitiated. Davis v. The 
People, in Ill., 74.

(3) In the case of The People v. Scates, 3 Scam., 351, in speaking of the case 
of  Nomaque v. The People, the court said: "This case means nothing more than 
this-that a prisoner, in a capital case, is not to be presumed to waive any of 
his rights; but that he may, by his express consent, admit them all away, can 
be neither doubted nor denied, he may certainly plead guilty, and thus deprive 
himself of one of the most valuable rights secured to the citizen—that of a 
trial by jury."

(4) At common law, in all capital cases, the verdict must be received in open 
court, and in the presence of the prisoner. In misdemeanors, it may be 
received in his absence. Holliday v. The People, 4 Gilm., 114.

The prisoner should be personally present when the sentence is pronounced, in 
cases where corporeal punishment is a part of the sentence. Perry v. The 
People, 14 Ill., 500.

Additional Comments:
Reports of Cases at Common Law and in Chancery, Argued and Determined in the
Supreme Court of the State of Illinois, From its First Organization in 1819, 
to the End of December Term, 1831 

By Sidney Breese, Counsellor at Law
Second Edition, with Additional Notes, By Edwin Beecher

Chicago: Callaghan & Company, 1877.

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