153 N.E. 697 | Ill. | 1926
Upon leave of this court first had and obtained, an original petition was filed herein in the name of the People of the State of Illinois on the relation of Oscar E. Carlstrom, Attorney General of the State, praying for the issuance of a writ of mandamus to compel Emanuel Eller, one of the judges of the superior court of Cook county and ex-officio one of the judges of the criminal court of that county, to expunge from the records of the criminal court an order releasing and discharging Arthur Lorenz from the house of correction of the city of Chicago. The respondent demurred to the petition, and the cause has been argued and submitted on the issue of law raised by the demurrer.
The material facts stated in the petition and admitted by the demurrer to be true are that Arthur Lorenz was indicted, tried and convicted in the criminal court of Cook county of the crime of libel and sentenced to six months at labor in the house of correction of the city of Chicago and to pay a fine of one dollar and costs. By successive writs of error this judgment of conviction was reviewed by *30
the Appellate Court for the First District and by this court and affirmed in People v. Spielman,
Where a judge of the circuit or criminal court has entered a void order setting aside a judgment of conviction or has declared void a judgment which is legal and released a petitioner from custody in a habeas corpus proceeding, mandamus
to compel the court to expunge the void order is the proper remedy. People v. Green,
Circuit and superior courts, and the judges thereof, have concurrent jurisdiction with this court in habeas corpus
proceedings. When, however, this court, in the exercise of its appellate jurisdiction, has determined a question, either of law or of fact, the matter is ended so far as the circuit or superior court, and the judge thereof, is concerned, and such court may not, by reason of its concurrent jurisdiction inhabeas corpus, overrule or review such decision of this court. When a judgment is affirmed by this court all questions raised by the assignments of error, and all questions that might have been so raised, are to be regarded as finally adjudicated against the appellant or plaintiff in error, and the judgment must be regarded as free from all error. (Gould v. Sternberg,
A writ of habeas corpus does not operate as a writ of error and cannot be used to review a judgment entered by a court which had jurisdiction of the person and subject matter of the suit wherein the judgment was rendered. In People v. Zimmer,
While respondent had no jurisdiction to pass in review upon the judgment of the criminal court, he did have jurisdiction to determine whether or not that judgment had been satisfied. Where a judgment of conviction is valid a person imprisoned under it is entitled to be set at liberty on habeas corpus if the judgment has ceased to be operative because of any matterex post facto, and where the judgment under which he is confined has been paid and satisfied he is entitled to his release from imprisonment. Eisen v. Zimmer,
It is contended by respondent that when Lorenz paid the fine and costs the judgment of the criminal court thereby was satisfied and that he thereupon became entitled to a discharge from the imprisonment. This question is not a new one in this State. In People v. Green, supra, it was held that the rule sustained by the great weight of authority is, that where a sentence of imprisonment imposed, with jurisdiction of the person and of the offense, is excessive, the prisoner will not be discharged for that reason on habeas corpus unless the sentence which might legally have been imposed has been served, and that where imprisonment *33
is imposed in addition to a fine, which has been paid, and the court had authority only to fine or imprison the accused, he may be discharged on habeas corpus, citing Ex parte Montgomery,
It may be that this construction allows Lorenz to select his own penalty and to escape with a punishment entirely disproportionate to his crime, but if this be true the blame therefor must rest with the criminal court and its State's attorney, who stood by in three courts and allowed the error of the court to go uncorrected. This court cannot correct or modify sentences, but in this case can only determine *34 the legal effect of that imposed by the criminal court. TheGreen case was decided by this court in 1917 and the Siman case in 1918, and they were only declaratory of the common law. (15 Am. Eng. Ency. of Law, 171.) The judge who imposed the sentence, and the State's attorney, must be presumed to have known of its legal effect and intended that it should have that effect. When Lorenz elected to pay the fine and costs and paid the same, and the payment was accepted, it was then determined that the fine was the legal part of the sentence and the imprisonment the excessive part, and he thereupon became, entitled to release from imprisonment. The order of respondent releasing him on habeas corpus was not void, and the writ ofmandamus must therefore be denied.
Writ denied.