192 N.E. 693 | Ill. | 1934
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *83 An original petition for a writ of mandamus was filed by leave of this court in the name of the People, on relation of the Attorney General and the State's attorney of Cook county. A writ is sought commanding Clyde H. Thompson, one of the judges of the circuit court of the eleventh judicial circuit, to expunge from the records of the circuit court of Livingston county an order entered in a habeas corpus proceeding discharging Spencer Brown from the custody of the warden of the penitentiary at Joliet.
The petition alleges that Brown was indicted, tried and convicted in the criminal court of Cook county of receiving *84
stolen property of the value of $24,500 for his own gain and to prevent the owner from again possessing the same. It also alleges that he obtained various stays of mittimus until he was granted a supersedeas by this court more than a year after his conviction; that during the stays of mittimus he was at large on bail for most of the time; that while he was at liberty he was indicted, tried and convicted by the Federal court for the Northern District of Illinois for the crime of erasing the cancellation on certain war savings stamps and possessing them for the purpose of using them again; that he was sentenced to the Federal penitentiary at Fort Leavenworth, Kansas, for a term of eight years, and that he served no part of his State prison sentence before he was imprisoned on the Federal charge. After his sentence on the Federal charge his conviction on the charge of receiving stolen property was affirmed by this court in People v. Brown,
The evidence produced at the hearing before the respondent is included in the mandamus petition. Brown testified that he was in custody of a deputy sheriff at the time he was sentenced in the criminal court, May 2, 1924, but that he was out on bond from that day until he was surrendered by the sureties on his bail bond on September 12, 1924; that he then remained in the sheriff's custody about three weeks, until a new bond was furnished; that this court granted him a supersedeas on May 10, 1925, but that he was denied bail, and that six weeks later he *86 was tried and convicted on the Federal charge and served his sentence.
The mandamus petition alleges that nothing appeared in thehabeas corpus petition, and that nothing was shown in the evidence at the hearing thereon, which would give the respondent jurisdiction to enter an order discharging Brown from custody.
The respondent's answer admits that he was a duly elected, qualified and commissioned judge of the circuit court in and for the eleventh judicial circuit of Illinois; that he presided over the January, 1934, term of the circuit court of Livingston county; that a petition for habeas corpus was filed in that court on behalf of Brown on January 17, 1934; that the respondent caused a writ of habeas corpus to be issued, and that the return of the warden was filed and is correctly set out in the mandamus petition. The answer also admits that a hearing was had and both parties introduced evidence on January 25, 1934. He then states that after the hearing he was of the opinion Brown was entitled to be released and that he ordered his discharge. He then denies that the petition for mandamus shows, or purports to show, all the evidence introduced in thehabeas corpus proceeding. He denies that the records in the prosecution in the criminal court of Cook county were brought to his attention by the petition for habeas corpus, the return of the warden or by the evidence produced at the hearing. The answer then says that there was no evidence that Brown was at liberty on bond during the time from the entry of judgment on his conviction until the affirmance of that judgment by this court, but that it appeared from the evidence before the respondent that Brown was in the custody of the sheriff of Cook county at the time the mittimus was issued, and there was no evidence before the respondent that there were any stays ofmittimus granted by any court. He says that the only *87 explanation for Brown being at large was the voluntary acts of the officials of Cook county.
In his answer the respondent objects to the form of the petition. He says, first, that it avers that Brown filed a petition for habeas corpus in the "circuit court of the eleventh judicial district," but that there is no such court. The second objection is that the prayer of the petition is insufficient, since the date and place of entry of the order of discharge are not given with sufficient particularity. The third point is that the mandamus petition should contain a complete certified transcript of all the evidence heard by the respondent in the habeas corpus case; and the fourth, that Brown should have been made a party defendant in this case. The answer then sets out the facts which the respondent says he relied upon in deciding that he should enter the order discharging Brown, and says that although on August 10, 1932, an order was entered in the criminal court of Cook county directing the clerk to issue a duplicate copy of the mittimus of May 2, 1924, no notice of the application for this order or the hearing upon such application was given to Brown.
The respondent's contention that Brown should have been made a party defendant in this mandamus proceeding is not well taken. He relies upon Powell v. People,
There is no force in the complaint of lack of particularity, since the respondent's answer admits that he was one of the judges of the eleventh judicial circuit and that as such judge he presided at the January, 1934, term of *88 the circuit court of Livingston county and entered the order discharging Brown in the habeas corpus proceeding. The purpose of requiring the petition for mandamus to set out the facts is to advise the respondent what court order is involved in themandamus proceeding. The respondent shows he knew precisely what order is involved. The court is correctly referred to by the respondent's answer and at various places in the petition for the writ of mandamus, although some of the references to it in the petition are not correct in every detail.
The respondent contends that Brown was entitled to be discharged because he had no notice of the application for an order that a new copy of the mittimus be issued by the clerk of the criminal court or of the hearing on such application. He relies upon the decision in People v. Weinstein,
The respondent next contends that although the petition purports to set out all the evidence taken before him in thehabeas corpus hearing it is uncertain whether it does, *90
since it is not certified to as a bill of exceptions. We have held that mandamus proceedings cannot be made to perform the office of a writ of error or an appeal. (People v. Shurtleff,
The respondent cites section 5 of the Habeas Corpus act, (Cahill's Stat. 1933, p. 1525; Smith's Stat. 1933, p. 1573;) which provides for a penalty of $1000 as a maximum in case a judge empowered to issue writs of habeas corpus "shall corruptly refuse to issue any such writ, when legally applied for in a case where it may lawfully issue," etc. This section does not deal with the entry of orders discharging prisoners from custody but has to do with the issuance of the writ ofhabeas corpus when the same is applied for. The section is of no avail to the respondent to justify his order discharging Brown from custody of the warden.
The next contention of the respondent is the main ground upon which he relies to show that he had jurisdiction to hear and determine the habeas corpus case and authority to enter the order sought to be expunged. He contends that the only reason contained in the petition, the return of the warden and the evidence at the habeas corpus proceeding to explain why Brown was not imprisoned at an earlier time under the judgment of conviction in the criminal court was the voluntary action of the Cook county sheriff. The effect would be to set up the failure of a sheriff or jailor to do his duty as a ground for the discharge of a prisoner who after a delay caused by such neglect was imprisoned in accordance with the judgment of conviction and sentence. The act is defined as a "voluntary *91
escape" where an officer permits a prisoner to go at large. (1 Pope's Legal Definitions, p. 471; Bouvier's Law Dict. (unabridged ed.) p. 1068.) In People v. Mallary,
The respondent also contends that Brown was entitled to the benefit of the rule stated in People v. Graydon,
The respondent cannot be sustained in his contention that he had jurisdiction to entertain this habeas corpus etition and power and authority to enter the order of discharge. Under the statute the court has jurisdiction in a habeas corpus
proceeding only where the original judgment of conviction was void or where something has happened since its rendition to entitle the prisoner to his release. If on the hearing of a petition for habeas corpus it develops that the court does not have jurisdiction in the particular case, any order except one dismissing the proceeding is void. (People v. Shurtleff,
The writ of mandamus is awarded as prayed.
Writ awarded. *93