Pope County IL Archives Court.....Whitesides, V The People 1819-31
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 27, 2008, 11:24 pm

Source: Reports Of Cases Illinois
Written: 1819-31

DECEMBER TERM, 1819.

James A. Whitesides and others, Plaintiffs in Error, v. The People or the 
State of Illinois, Defendants in Error.

ERROR TO POPE.

If an indictment does not aver the year to be the year of our Lord, and does 
not contain the words, "in the name and by the authority of the people of the 
state of Illinois," it is bad. (1)

In an indictment for a riot, the facts constituting a riot, should be clearly 
set forth.

Opinion of the Court. This was a criminal prosecution for a riot, against the 
plaintiffs in error. Three errors are assigned.

1. Uncertainty in the indictment, in not averring the year to be the year of 
our Lord.

2. The form prescribed by the constitution, in which, criminal prosecutions 
shall be commenced, is not pursued.

3. There is not such a criminal offense alleged in the indictment, as will 
make the plaintiffs in error guilty of a riot, if committed.

On the first point, the law makes it necessary to have common certainty in 
every indictment, and nothing can be inferred to aid it. Without inference, 
the year could not be gathered from the indictment, and therefore it is 
defective. On the second point, when a constitution or act of the legislature, 
prescribes a certain form to be used in legal proceedings, it would seem that 
the court has no power to dispense with that form. Therefore, as the 
indictment does not pursue the form given in the constitution, that all 
indictments shall be carried on "in the name, and by the authority of the 
people of the state of Illinois," it is bad.

On the third point, the charge in the indictment is, that the defendants made 
a great noise and disturbance of the peace. This, the court considered too 
vague and uncertain. In criminal proceedings, the charge should be distinct 
and positive, and the way and manner in which the great noise and disturbance 
of the peace was made, should have been stated.

For this omission, the indictment is also defective. The judgment of the court 
below must be reversed. (a)

Judgment affirmed.

------------------
(1) An indictment or complaint, which states the year of the commission of the 
offense in figures only, without prefixing the letters "A. D." is 
insufficient. Commonwealth v. McLoon, 5 Gray, (Massachusetts) Rep., 91. State 
v. Lane, 4 Iredell, 121.

In State v. Hodgeden, 3 Vermont Rep., 481, the time of the commission of the 
offense was stated as follows: "A. D. 1830," and was held to be sufficient. 
And similar was the case of State v. Gilbert, 13 Vermont Rep., 647.

In Hall v. State, 3 Georgia Rep., 18, the offense was charged to have been 
committed "In the year eighteen hundred and forty-six;" and the court said 
they would presume that to mean "In the year of our Lord." The same was held 
by the Supreme Court of Indiana in Engleman v. State, 2 Carter, 91.

From the authorities we think an indictment which alleges an offense to have 
been committed "in the year," &c., would be held good, although the words "of 
our Lord," were omitted.

In McFadden v. Fortier, 20 Ill. Rep., 515, the court referred to the second 
proposition decided in the case of Whitesides v. The People, and approved of 
the decision in that case.

(a) In an indictment a day certain must be stated, so must also the year, 
otherwise the indictment will be insufficient, and (In England) the year of 
the king's reign is usually inserted; but the year of our Lord is equally 
unobjectionable. Archbold's Crim. Pl., 11.

The criminal code of 1827, page 157, provides, that "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 the indictment."

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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