72 N.E.2d 311 | Ill. | 1947
Daniel Hesley, an inmate of the Illinois State Penitentiary at Joliet, filed herein his original petition for a writ of habeascorpus. The writ was ordered issued and respondent filed his return and also a motion to quash. On November 12, 1946, the court entered an order taking the motion to quash with the case, ordering the issues closed and briefs to be filed in accordance with the rules of this court.
Hesley was convicted of robbery in the Federal court at Hammond, Indiana, and was sentenced to the Federal *556 penitentiary for a term of twenty-five years. He was taken to the penitentiary at Leavenworth, Kansas, on or about July 9, 1926, to commence the service of his sentence imposed in the Federal court. After the delivery of petitioner to the penitentiary, he was, on July 20, 1926, indicted in the criminal court of Cook county for the crime of murder. Thereafter, the cause was continued from time to time and was finally set for trial on April 26, 1927. Prior thereto, a petition for a writ of habeascorpus ad prosequendum was filed by the State's Attorney in the criminal court of Cook county, who sought to have the petitioner returned from the Federal penitentiary to the criminal court of Cook county for trial on his indictment for murder.
Pursuant to this writ, the warden of the Federal penitentiary at Leavenworth produced the petitioner in open court, who, being represented by counsel, after arraignment, entered a plea of not guilty. He was tried by a jury, found guilty, and his punishment fixed at twenty-five years in the penitentiary. A motion for a new trial was filed but later withdrawn and he was sentenced by the court to the Illinois State Penitentiary for a term of twenty-five years. On the same day, April 23, 1927, the court entered an order dismissing the writ of habeas corpus and remanding the petitioner to the custody of the warden of the Federal penitentiary at Leavenworth, Kansas.
Petitioner remained in the said Federal penitentiary until August 25, 1938, when he was transferred to the Federal penitentiary at Alcatraz, California, where he remained until about May 1, 1942, when he was again transferred from the Federal penitentiary at Alcatraz to the Federal penitentiary at Leavenworth, Kansas. His sentence was due to expire on or about August 15, 1942. On or about August 4, 1942, the Governor of Illinois presented to the Governor of Kansas a request for the extradition of the petitioner as a fugitive from justice. The requisition *557 was honored and the petitioner was returned to Illinois and delivered to the Illinois State Penitentiary at Joliet, on or about August 27, 1942, where he is now incarcerated and serving his sentence for the crime of murder.
Petitioner contends that his imprisonment is illegal and that he is entitled to his discharge in accordance with the provisions of subsection 3 of section 22 of the Habeas Corpus Act. (Ill. Rev. Stat. 1945, chap. 65, par. 22.) He presents the following as grounds for discharge: (1) That the court did not suspend execution of the judgment imposed on April 23, 1927, and that no ministerial officer may disobey the mandate of the court by turning him over to another jurisdiction; (2) that the court was in error in demanding that petitioner be returned to the State of Illinois to commence service of a judgment that had expired two years prior to his commitment, and that he was not a fugitive from justice as charged by the State's Attorney of Cook county; (3) that the maximum term, twenty-five years, "less statutory good time allowed by law," expired before petitioner was returned and imprisoned in the Illinois State Penitentiary; and, (4) that the constitution of the State of Illinois supersedes any and all acts created by State legislatures and arbitrary acts of ministerial officers.
Petitioner first contends the court did not suspend execution of the judgment, and that the mandate was violated by turning him over to another jurisdiction. The effect of the judgment, as well as its force and validity, must be determined by the judgment itself when supported by the record. The question to be determined by the record here is whether or not the court had jurisdiction of the subject matter and the person of the defendant, and had the power and authority to enter the judgment which it entered. That such jurisdiction and power was present could hardly be questioned, and, under such circumstances, we hardly see how the court, in entering the judgment, in any way *558
exceeded its power and jurisdiction. Having been sentenced by a court having jurisdiction, petitioner could only be discharged from serving said sentence in the manner provided by the laws of Illinois. This court has repeatedly held that a sentence of imprisonment can only be satisfied by actual imprisonment for the period of time fixed by the judgment of the court, unless such sentence be remitted in a manner provided by law. We held in the case of People ex rel. Kelly v. Ragen,
Petitioner's contention that the court had no power to remand him to the custody of the Federal authorities is met with the record which discloses that he was produced in court pursuant to a writ of habeas corpus ad prosequendum issued by the criminal court of Cook county and honored by the Federal authorities. He was at all times a Federal prisoner and was never out of the custody of the warden of the Federal penitentiary at Leavenworth, Kansas.
This court in the case of People ex rel. McCarthy v. Ragen,
It has been held that no rights of a prisoner are violated who, while serving a Federal sentence, is delivered to a State court for trial for an offense against the State laws. (People v.Berardi,
It is the contention of petitioner that he was not a fugitive from justice and that he was unlawfully returned to the State of Illinois by extradition from the State of Kansas. Even if it could be said that he was unlawfully returned to the State of Illinois by extradition, this question cannot be raised in ahabeas corpus proceeding. The record discloses petitioner was present in open court and no question was raised concerning the authority or jurisdiction of that court to impose the judgment which was actually imposed upon him. The trial court will not inquire into the legality or illegality of the delivery of a fugitive from justice to the demanding State. The question whether the prisoner was lawfully or unlawfully surrendered to the demanding State affects neither the guilt or innocence of the accused, nor the jurisdiction of the trial court to try him.(People v. Klinger,
We now come to the final and serious question in this case as to whether or not petitioner is entitled to his discharge for the reason that the sentence imposed upon him by the Illinois court ran concurrently with his Federal sentence, and that the maximum term of twenty-five years "less statutory good time allowed by law" expired before petitioner was returned and imprisoned in the Illinois State Penitentiary, there being nothing said in the judgment as rendered in the Illinois court as to whether or not his sentence was to run concurrently or consecutively with his penal service in the Federal jurisdiction.
It is urged by petitioner that judgment of cumulative punishment must be of such certainty that commencement of the second and termination of the first sentence may be seen from the record, and he cites the case of People v. Decker,
We had occasion to directly consider the question as to whether or not sentences of imprisonment to different places of confinement run concurrently. In the case of People ex rel.Courtney v. Thompson,
We also held in People v. Kennay,
As to the last contention of petitioner, we have pointed out that no arbitrary acts of ministerial officers appear from the record in this case.
For the reasons hereinbefore expressed, it is ordered that the writ be quashed, and the prisoner remanded to the custody of the warden.
Prisoner remanded. *565