221 Ill. 166 | Ill. | 1906
delivered the opinion of the court:
Section 438 of chapter 38, Hurd’s Revised Statutes of 1903, provides:
“Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried at some term of the court having jurisdiction of the offense commencing within four months of the date of commitment, or if there is no term commencing within that time, then at or before the first term commencing after said four months, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, or unless the court is satisfied that due exertion has been made to procure the evidence on the part of the People, and that there is reasonable grounds to believe that such evidence may be procured at the next term, in which case the court may continue the case to the next term. If any such person shall have been admitted to bail for an alleged offense other than a capital offense, he shall be entitled, on demand, to be tried at some term commencing within four months after he has been admitted to bail, if there is a term of court within that time at which he may be tried; if not, then at the first term after the expiration of said four months: Provided, that if the court shall be satisfied that due exertions have been made to procure the evidence on behalf of the People, and that there is reasonable ground to believe such evidence may be procured at the next term or at some term to commence within seventy (70) days thereafter, the court may continue the cause to such term.”
Newlin was indicted March 7, 1905, and confined in the county jail from that time until he was put upon trial on the first day of December, 1905, under a later indictment, which had been returned on the 21st day of November, 1905, charging the same offenses, burglary and larceny, as the first indictment, which had been disposed of by a nolle prosequi on November 25, 1905. After his first indictment, and prior to his trial, the March term, 1905, after being in session two days only, lapsed because no judge appeared to preside, and the June term, 1905, commenced, was in session on varioús days and adjourned on September 5/1905, until court in course.
It is apparent from the record that there was a term of court having jurisdiction of the offenses with which Newlin was charged which commenced within four months after the date of his commitment, and that he was not tried at that term nor at any time within four months after his commitment nor at any term beginning within four months after his commitment, and that there existed none of the circumstances mentioned in section 438, supra, which would defeat his right to be set at liberty.
Two of the judges of the circuit were too ill to hold the March term, 1905. One of these two died in April, 1905, and the other of these two was too ill to hold the June term and died during that term. These facts, while greatly to be deplored, do not answer Newlin’s motion.
By the section of the statute in question an absolute right is conferred upon a person charged with crime and committed to and imprisoned in jail, to be set at liberty unless tried within the-time limited by that section, except where the circumstances exist which by the provisions of that statute require the court to hold the person for trial. Thus is the constitutional guaranty of a speedy trial made effective. To an application under this statute it is not sufficient for the prosecution to say that it was inconvenient or impossible for the judges of the circuit to hold the term of court at the time fixed by the statute. The law of the State gives the judges of the various circuits the right to interchange with each other, hold court for each other and perform each other’s duties where they find it necessary or convenient. (Hurd’s Stat. 1903, chap. 37, sec. 57.) If the provisions of the law do not insure the transaction of the business of the courts a remedy may be afforded by the legislature. We are without power to read into the statute in question an exception which does not appear there.
The fact that one of the judges of the circuit, in vacation after the March term, 1905, of the circuit court of Iroquois county, made an order dispensing with the petit jury for the June term, 1905, unless such a jury should thereafter be ordered by the court or some judge thereof, does not alter the situation for several reasons: First, Newlin had the right to be tried at the June term, 1905, and that right could not be arbitrarily defeated by any order, made without his consent, dispensing with the services of a jury at that term. Second, there seems to be no statute authorizing one circuit judge to make an order in vacation dispensing with a petit jury for any term of court. Section 79 of chapter 37, Hurd’s Revised Statutes of 1903, provides that such an order may be made by a majority of the judges of a circuit in vacation or by the court in term time. The order made by the circuit judge in vacation was therefore without legal effect. Third, on the first day of July, 1905, Hon. A. O. Marshall, successor to Hon. Charles B. Garnsey, deceased, was elected, and thereafter, on the 19th day of July, 1905, being one of the days of the June term, 1905, of the circuit court of Iroquois county, he convened that court, and it was thereafter in session on various days up to and including September 5, 1905, and at all of its sessions after and including July 19, 1905, Judge Marshall presided. Had the order made in vacation been valid, it was still within the power of the court, at either of the sessions at which Judge Marshall presided, to direct that a petit jury be drawn and summoned, as the order entered in vacation provided that the petit jury should be dispensed with “unless hereafter ordered by the court or some judge thereof,” and was evidently designed to be, in that respect, in accordance with section 79, supra.
Authorities from other States are cited, under enactments similar in purpose but not in terms to our own, holding that the death or incapacity of the judge of a court which prevents the court being held suspends the operation of the statute. We are not disposed to follow these authorities, as we think both the letter and spirit of our statute, section 438, supra, require that the defendant be set at liberty unless tried in accordance with its provisions.
The circumstances that a second indictment was here found alleging the same offenses as the first, that a nolle prosequi was entered as to the first indictment, and that Newlin was tried within four months after the return of the second indictment, are without significance. Each indictment was for the same felonies. If plaintiff in error was entitled to be set at liberty while held under the first indictment, he could not be rightfully arrested, held or committed for the same offenses when charged by the second indictment. Brooks v. People, 88 Ill. 327.
The matter may be presented to the court in which the second indictment is pending, by motion, and if it appears from consideration of all the proof offered for and against the motion that the defendant was entitled to his discharge while held under the first indictment, the order releasing him contemplated by the statute should be entered without regard to whether or not such an order had in fact been entered while he was held under the first indictment.
When Newlin made his application and proved the existence of facts which brought him within the statute, and it appeared that the limitations which that section places upon the right to be released from imprisonment did not apply to him, the circuit court should have set him at liberty. Brooks v. People, supra; Guthmann v. People, 203 Ill. 260.
The judgment of the circuit court will be reversed and the cause remanded to that court, with directions to enter an order setting Newlin at liberty.
Reversed and remanded, with directions.