Parris v. People , 76 Ill. 274 ( 1875 )

Mr. Chief Justice Walker

delivered the opinion of the Court:

The record shows that plaintiffs in error were prosecuted in the county court for malicious mischief. The information charges, that “on the 10th day of October, 1873, at Ogden township, in said county, the criminal offense of malicious mischief, destroying and causing to be destroyed a part of twelve acres of wheat, the same being the property of Albert Coons, and unlawfully and maliciously, and for mischief, shooting and wounding a certain dog, the same being the property of Albert Coons, was committed, and that he has just and reasonable grounds to suspect that' William Parris, Isaac Jones, John Parris, George Parris and Walker Richards committed the same.”

When the statute dispensed with an indictment in the county court, and substituted an information, it was not designed to dispense with all the previous requirements of the law. The accused is still entitled to be informed of the offense with which he is charged, and not only so, but with the same certainty as is required in an indictment. The accused should be positively charged with the commission of the offense, and not that he is believed to be guilty or that the prosecutor has reason to suspect his guilt. Such loose and indefinite averments, if they may be denominated as such, are unknown to pleadings in any court or any class of cases. It may well be doubted whether the paper in this case, called an information, charges even a suspicion of anything against the accused.

Again, this information attempts to charge the offense of destroying a part of twelve acres of wheat. The reasonable construction of this language is, that the wheat was growing, and attached to and a part of the soil; but if in this we are mistaken, then it is at least doubtful whether it was growing wheat or wheat in shock or stack. There is no positive averment that it is the one or the other.

If this was intended as a prosecution, as we presume it was, under section 156- of the Criminal Code of 1845, then the destruction of growing wheat is not embraced in its provisions. That only includes any barrack, cock, crib, rick or stack of wheat, etc. The destruction of growing wheat is a trespass, but not a criminal offense. Hence the complaint was bad for the reason that, so far as it related to wheat, it did not embrace an indictable offense. A person can not be punished criminally for a mere trespass.

. The constitution, article 8, section 33, provides, that “all .prosecutions shall be carried on in the name and by the authority of the People of the State of Illinois,” and conclude “against the peace and dignity of the same.” There can not be the slightest pretense that there was any effort in this case at a compliance with this provision of the constitution. In fact, there is nothing that even resembles conformity. It seems that there has been an entire disregard both of legal ,and constitutional requirements in preparing the information in this case.

The instruction complained of tells the jury, that if they .believe,, from the evidence, that defendants maliciously and , for mischief drove a herd of cattle upon the wheat, thereby .injuring and damaging the wheat, then the jury should find the defendants guilty. This instruction was manifestly wrong. It authorized the jury to convict for a trespass, which we have seen is not the subject of a criminal prosecution.

For the errors indicated the judgment of the court below must be reversed, and the cause remanded.

Judgment reversed.