Vol. IV.]

GREEN V. THE COMMONWEALTH.

[No. 4.

and the bullet wound was the undoubted cause of death. Still the fact of the blow is important in determining the state of the prisoner's mind, and his disposition towards the deceased. Had the conflict and the blow occurred before the shooting, a different case would have been presented, bearing on the prisoner's state of mind and intention. But here one whose mind had before been inflamed toward the deceased, who had threatened him, levelled a loaded gun and fired at him, at some distance and before the latter had committed an assault upon him, or could have reached him with the poker held in his hand, and found still in it when carried into the house. It is evident, therefore, that there was ample time for the prisoner to frame in his mind the deliberate purpose to shoot the deceased, and to carry this intent out, by levelling his gun and discharging it, when told to shoot. It is no doubt true that he was also irritated by the very bad language of the deceased, but this was no sufficient cause of provocation for taking life; while the turning back of the prisoner when called to come back, his expression as he turned, — “ God damn your wicked heart, I have been waiting for that," walking back towards the deceased, levelling the gun at him, and shooting at the instant the deceased told him to shoot, all evidence a sufficient time to act deliberately, and not under a sudden gust of passion, tearing up reason by the roots and urging him on to a rash and thoughtless deed. These facts, together with the previous state of the prisoner's feelings toward the deceased (his half brother), clearly presented a case where the ingredients of murder in the first degree were proved to exist, and therefore must be submitted to the jury for their judgment. Nor can we say that there was such a strong and reasonable doubt of their existence as to require an acquittal.

But one other assignment of error is worthy of notice. The prisoner's first point is, that to constitute murder in the first degree, there must be a design and intention to kill at the time the homicidal act is committed, and this intention must be a fully formed purpose to kill, with as much time for deliberation and premeditation as to convince the jury that this purpose is not the immediate result of rashness and impetuous temper. The answer affirmed the point in its own language nearly, and the judge added, "but the purpose to kill, necessary to constitute murder in the first degree, may sometimes be the immediate result of rashness and impetuous temper.' A rash and impetuous temper is no excuse, unless it has been aroused by adequate legal provocation, as explained in the general charge, and the intention to kill has been formed in the heat of passion thus generated." The first clause of the qualification is perhaps doubtful; yet in view of the whole sentence and of the reference to the explanation given in the general charge, relating to the crime of manslaughter as an offence committed under provocation and passion, we are led to believe that the qualification contained in the answer was intended to guard the jury against a mistake by which they might reduce the offence from murder to manslaughter in the absence of a legal provocation, there being a seeming provocation in the bad language of the deceased. In this view we may reasonably conclude that the jury were not misled by the seeming inaccuracy of the first clause in the qualification of the answer. The gen

eral charge correctly set before the jury the distinctions in regard to homi

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GREEN V. THE COMMONWEALTH.

[No. 4.

cide, and drew their attention to the difference between murder and manslaughter. The point, however, was not intended to bring this distinction into view, but rather the frame of mind necessary to the commission of murder in the first degree, that is, the deliberation and premeditation which the act of assembly makes essential to the crime of murder in the first degree. So far as impetuous rage and rashness, followed by the immediate act which takes away life, tend to deprive the prisoner of deliberation and premeditation, and to reduce the homicide from murder in the first to murder in the second degree, the point was pertinent; for it was for the jury, judging upon the evidence, to determine whether the act was a result of a deliberate and premeditated purpose to kill. The time may be short, yet a jury may find that the fully conscious purpose to kill existed. Yet if, on the other hand, by reason of the shortness of the time, and the presence of great rage produced on the instant, and in a moment of impetuous temper a blow is given, a jury may be convinced that it was not the result of a fully formed purpose to kill, but of a rash and hasty impulse, with scarcely a consciousness of any purpose except to do bodily harm to the object of wrath. Hence, though the absence of a legal provocation may prevent the reduction of the crime from murder to manslaughter, the want of the deliberation and premeditation required by the law may reduce the grade of the murder from the first to the second degree. If therefore the learned judge intended the qualification in his answer to the first point to apply to the point itself, it would be inaccurate. But his reference to his general charge conveys the impression that he intended only to guard the jury against a misapprehension, reducing the offence to manslaughter in the absence of a legal provocation. This acquires strength when we remember the facts of the homicide. The prisoner returned at the call of the deceased, and before reaching him, levelled his gun and fired, and this too after the expression, "God damn your wicked heart, I have been waiting for that," excited by the call. No doubt he was angry and provoked by the threats of the deceased; but his anger was the offspring of hate and revenge, and not of that hasty and impetuous rage which for the instant dethrones reason, and impels to the commission of an act of violence with scarcely a consciousness of its own real purpose. To use the language in Drum's case, 8 P. F. Smith, 16, the law regards, and the jury must find the actual intent, that is, the fully formed purpose to kill, with so much time for deliberation and premeditation as to convince them that this purpose is not the immediate offspring of rashness and impetuous temper, and that the mind has become fully conscious of its own design. If there be time to frame in the mind fully and consciously the intention to kill, and to select the weapon or means of death, and to think and know beforehand (though the time be short) the use to be made of it, there is time to deliberate and premeditate.

Upon the whole case we discover no substantial error. The judgment of the Court of oyer and terminer is affirmed, and it is ordered that the record be remitted for the purpose of execution.

Vol. IV.]

TOWN OF OTTAWA V. PERKINS.

[No. 5.

SUPREME COURT OF THE UNITED STATES.

[MARCH, 1877.]

MUNICIPAL BONDS. -THE VALIDITY OF A MUNICIPAL BOND DEPENDENT UPON THE VALIDITY OF THE ACT UNDER WHICH IT IS ISSUED.

TOWN OF OTTAWA v. PERKINS.

SUPERVISORS OF KENDALL CO. v. POST.

Actions were brought upon certain bonds issued by plaintiffs in error, the town of Ottawa and Kendall County. Evidence was offered in the court below that the statutes in. pursuance of which the bonds had been issued, had not been passed in the exact form and manner prescribed by the state Constitution. The testimony was excluded, the court holding that the facts showed that the holder of the bonds was a bonâ fide purchaser without notice of any objection to their validity; that the first instalment of interest had been paid at maturity; that the law had been duly published among the printed statutes of the state; and that the defendant was, therefore, estopped from offering any evidence that the law was not passed according to the provisions of the Constitution. Held, that this view was erroneous; that there can be no estoppel in the way of ascertaining the existence of a law; and that as, under the decisions of the state court of last resort, the evidence was admissible to prove that the law as published was not a law it should have been received.

WAITE, C. J., and CLIFFORD, SWAYNE, and STRONG, JJ., dissenting.

IN error to the circuit court of the United States for the Northern District of Illinois.

Mr. Justice BRADLEY delivered the opinion of the court.

The first of these actions was brought by Perkins, the plaintiff below, to recover the amount due upon two negotiable bonds of the town of South Ottawa, in the usual form, for one thousand dollars each, made payable to the Ottawa, Oswego, and Fox River Valley Railroad Company, or bearer, in three years from July 1, 1869, with coupons for the semiannual payment of interest attached. They each contained recitals as follows:

"This bond is one of a series of 20 bonds bearing even date herewith, each for the sum of $1,000, and is issued in pursuance of an election held in said town, on the 8th day of October, 1866, under and by virtue of a certain act of the Legislature of the State of Illinois, approved February 18, 1857, entitled An act authorizing certain cities, counties, incorporated towns, and townships to subscribe to the stock of certain railroads,' . . . at which election a majority of the legal voters participating in the same voted for subscription' to the capital stock of said railroad in the sum of twenty thousand dollars, and to issue the bonds of said town therefor; and the said election was by the proper authorities duly declared carried for subscription,' previous application having been made to the town clerk of the town, and said clerk having called said election in accordance therewith, and having given due notice of the time and place of holding the same, as required by law and the act aforesaid."

The second action was brought on a bond issued by the county of Kendall, in Illinois, bearing date the 4th day of May, 1869, in aid of the same

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TOWN OF OTTAWA v. PERKINS.

[No. 5.

railroad, and by virtue of the same act of the legislature, and containing substantially the same recitals, mutatis mutandis, as those in the Ottawa bonds, except that the election authorizing the issue of the bonds is stated to have been held on the 30th day of March, 1869. The facts in the two cases are, in other respects, substantially the same:

The only authority claimed for issuing these bonds is the act referred to in the above recital therein. If no such act was ever passed by the Legislature of Illinois the bonds are void. A municipal corporation cannot issue bonds in aid of extraneous objects without legislative authority, of which all persons dealing with such bonds must take notice at their peril. Pendleton Co. v. Amy, 13 Wall. 304; Kennicott v. Supervisors, 16 Wall. 465; St. Joseph v. Rogers, 16 Wall. 659; Coloma Town v. Eaves, 92 U. S. 481; S. C. 3 Am. L. T. R. N. S. 235.

It is insisted on the part of the plaintiffs in error in these cases, that the law relied on for authority to issue the bonds in question was never passed, no entry of its passage appearing on the Journal of the Senate of Illinois.

The Constitution of Illinois, adopted in 1848, contains the following provisions:

"Art. III. sec. 1. The legislative authority of the state shall be vested in a general assembly, which shall consist of a senate and house of representatives, both to be elected by the people.'

"Sec. 3. Each house shall keep a journal of its proceedings, and publish them."

"Sec. 21.

On the final passage of all bills, the vote shall be by ayes and noes, and shall be entered on the journal; and no bill shall become a law without the concurrence of a majority of all the members elect in each house."

The Constitution also provides that all bills passed shall be signed by the speakers of the two houses, and approved and signed by the governor, or, in case of his refusal, shall be repassed by a majority elected to each house. The general laws of the state provide for depositing all acts of the legislature, and the original journals of the two houses, in the office of the secretary of state, who is charged with having them printed; and the printed statute books are made evidence of the acts contained therein.

In the construction of the constitutional provisions above recited, the supreme court of Illinois, by a long course of decisions, has held that it is necessary to the validity of a statute that it should appear by the legislative journals that it was duly passed in the manner required by the Constitution.

As early as 1853, it was decided, in Spangler v. Jacoby, 14 Ill. 299, that it was "competent to show from the journals of either branch of the legislature, that a particular act was not passed in the mode prescribed by the Constitution, and thus defeat its operation altogether. The Constitution requires each house to keep a journal, and declares that certain facts, made essential to the passage of a law, shall be stated therein. If those facts are not set forth, the conclusion is that they did not transpire. The journal is made up under the immediate direction of the house, and is presumed to contain a full and complete history of its proceedings. If a certain act received the constitutional assent of the body, it will so appear

Vol. IV.]

TOWN OF OTTAWA v. PERKINS.

[No. 5.

on the face of its journal. And when a contest arises as to whether the act was passed, the journal may be appealed to, to settle it. It is the evidence of the action of the house, and by it the act must stand or fall. It certainly was not the intention of the framers of the Constitution, that the signatures of the speakers and the executive should furnish conclusive. evidence of the passage of a law. The presumption indeed is, that an act thus verified became the law pursuant to the requirements of the Constitution, but that presumption may be overthrown. If the journal is lost or destroyed, the presumption will sustain the law, for it will be intended. that the proper entry was made on the journal. But when the journal is in existence, and it fails to show that the act was passed in the mode prescribed by the Constitution, the presumption is overcome and the act must fall."

This case was followed, in 1855, by Turley v. County of Logan, 17 Ill. 151. There, a law was supposed to have been passed at the session of the legislature in 1853, for the removal of the seat of justice of Logan County, by a vote of the people. In the fall after, a vote was taken, which resulted in favor of the removal. Turley and his associates then filed their bill to restrain the county officers from erecting county buildings at the new location, on the ground that, as appeared by the journal, the act had not been read in the house of representatives the full number of times required by the Constitution, and so was no law. The fact being as alleged, the injunction was, in the first instance, allowed, but afterwards, in February, 1854, the same legislature met in extra session, and, on recollection of members, and by the manuscript notes of the clerk, the house of representatives amended its journal so that it showed the bill had been read the requisite number of times. Thereupon, the supreme court, when the case came there, while recognizing fully the authority of Spangler v. Jacoby, affirmed a decree dissolving the injunction and dismissing the bill, for the reason that it was within "the power of the same legislature, at the same or a subsequent session, to correct its own journals, by amendments which show the true facts as they actually occurred."

The same question was also considered by the same court in Prescott v. The Trustees of the Illinois & Michigan Canal, 19 Ill. 324, decided in 1857. There, Prescott and Arnold were entitled to purchase at the appraised value, certain lots in Chicago, which had been appraised twice, and the point to be decided was whether they should pay according to the first or second appraisal. The second appraisal was made under a law supposed to have been passed February 14, 1851, but which the journals showed had never in fact passed either branch of the general assembly. Accordingly, the court held, upon the authority of Spangler v. Jacoby, that the second appraisal was invalid and that the parties had the right to purchase under the first.

In the case of The Supervisors of Schuyler County v. The People, 25 Ill. 181, which came before the court in 1860, it was objected that the senate journal did not show that the bill incorporating the railroad company was read three times in that body before it was put on its final passage, but the court, while still approving Spangler v. Jacoby, held that the Constitution did not require the fact that the bill had been read three times to be entered on the journals, and consequently, that the validity of the law could not be impeached on that ground.