Archibald P. Willis, plaintiff in error v. The People of the State of Illinois, defendants in error, 1 Scam. 399

Smith, Justice, delivered the opinion of the Court: At the July term, 1837, of the Gallatin Circuit Court, Willis was indicted for larceny, and at the September term following, tried and convicted. To revise the judgment rendered on the conviction in this case, the present writ of error is prosecuted, and two grounds are assigned and relied on, as causes of reversal. I. That the Circuit Court should have arrested the judgment, because the owners of the goods charged to have been stolen, are not sufficiently described. 2.

That the Court misdirected the jury as to the effect of the affidavit admitted by the prosecution, to be read in evidence on the trial. As to the first ground, it is well settled, that, in indictments for offences against the persons or property of individuals, the Christian and sur-names of the parties injured, must be stated, if the injured party be known. The name so stated must be either the real name of the party injured, or that by which he is usually known. In cases where the owners are unknown, it must be so stated. In the present case, the indictment alleges the goods to be the property of T. D.

Hawke and E. Dobbins, doing business in the town of Equality, under the style and firm of T. D. Hawke & Co. This was clearly erroneous, and there is no reason whatever to justify the omission to state the Christian names of the owners. It appears that the residence of the owners was known, and the least enquiry would have enabled the prosecution to have obtained and inserted the Christian names at length.

Certainty in criminal proceedings, where attainable, will not be dispensed with; and it becomes highly essential to enable a party to plead either a former acquittal or conviction, in case of a second prosecution for the same offence.

In regard to the second objection, it appears from the bill of exceptions, that an affidavit made for the purpose of continuing the cause to another term, in which the defendant declared he could prove, by an absent witness, certain facts which, if true, disproved his guilt, was agreed by the prosecuting attorney to be admitted as evidence in the cause, and was accordingly read to the jury as such, under a misconception of the statute relating to similar admissions in civil cases.

The Court, however, instructed the jury that they might give to the facts stated, such weight as they would give if the witness was present and had stated them himself, and that they might be contradicted. The instructions of the judge on the effect of the facts contained in the affidavit, and its admission to the jury, were most clearly erroneous. The prosecution having admitted the affidavit as evidence, admitted the truth of the statements therein contained; and having done so, was not at liberty to impeach or contradict them.

By his voluntary act, and to prevent a continuance of the cause to another term, he precluded himself from the exercise of the right. Such has been the decisions in civil cases, and the rule ought not to be relaxed in a criminal one. It is not, however, meant to recognise the propriety of the introduction of affidavits in criminal cases, though under some peculiar cases they might be introduced by consent, nor to sanction a practice of admitting those of the accused in evidence in any case, whether for the purpose of preventing a continuance of the cause, or for any other object.

The judge should either have continued the cause on the application under the affidavit, or denied it; but having permitted the parties to introduce, by agreement, the deposition, it should have been given to the jury without the right to impeach it; and he should have so instructed the jury. The defect in the indictment, and the erroneous instructions of the judge, require a reversal of the judgment of the Circuit Court of Gallatin county, and it is accordingly ordered. Judgment reversed. Arch. Crim. Plead. 30, 31, 32; Hawkins C. 25 § 71-2.