307 Ill. 87 | Ill. | 1923
delivered the opinion of the court:
Plaintiff in error, George Cohen, impleaded with four other persons, was indicted in the criminal court of Cook county. The indictment contained two counts. The first count charged robbery, and contained a further allegation of aggravation in these words: “And the grand jurors aforesaid, upon their oaths aforesaid, do further present that the said Isadore Goldberg, the said Meyer Cohen, the said George Cohen, the said Ben Liebermann, and the said Benjamin Malichefslcy, then and there were armed with a certain dangerous weapon, to-wit, a certain revolver, with the unlawful and felonious intent then and there, if resisted, then and there to kill and maim the said Sam Greenfield in the said robbery,” and concluding in the usual form employed in such indictments. The second count is the ordinary count for receiving stolen property knowing it to be stolen, etc. When the case came on for hearing the State’s attorney made a motion “to waive the gun count.” The court then entered the order'that on motion of the State’s attorney the “gun count in the indictment in this cause be and the same is hereby waived.” The record then recites that the defendant George Cohen, “by leave of court, now here withdraws his plea of ■ not guilty heretofore rendered to the indictment in this cause, and for a plea thereto says that he is guilty of plain robbery in manner and form as charged.” The record further shows that the defendant was admonished by the court, “and he being fully advised by the court of the effects in rendering said plea, he still persisting therein, the court orders said plea to be accepted and entered of record against the said defendant George Cohen.” The usual sentence then followed, finding the age of the defendant to be twenty years, and by the judgment and sentence he was committed in the usual form to the State reformatory for an indeterminate sentence. The plea of guilty and sentence were entered April 27, 1920. More than two years thereafter this writ of error was sued out of this court to review the judgment.
The grounds upon which it is claimed that the judgment should be reversed are, first, that the gun count was waived, and as that count was waived the first count of the indictment was waived, and there could be no conviction or sentence thereunder for robbery or under the second and only remaining count, which does not support the judgment and sentence; and second, the Parole law, which provides for indeterminate sentences, is void because it violates the provisions of the State constitution.
The condition of this record is another reminder of the well demonstrated truth that a clear understanding of the law and of the procedure applicable to any case before proceeding to the trial or disposition thereof is essential to the avoidance of embarrassing complications and many times of fatal errors. Courts of review are often furnished, as we are in this case, with strong and able briefs and well reasoned arguments for sustaining the judgment to be reviewed, which would have been unnecessary if more time had been employed in the first instance in ascertaining the true procedure and the law applicable to the case before diving into a trial thereof without a proper knowledge of the fundamental law and the proper procedure governing the case. In this case there were only two counts in the indictment, which have already been stated. There is no gun count in the case at all. The first count is simply a count for robbery with a gun. In other words, it does not constitute two charges or two counts against the defendant. People v. Boer, 262 Ill. 152.
The claim in this case is that the count for robbery was “waived” by the State’s attorney. The showing in the record is that the gun count was waived, and there is no such a count in the indictment. Waivers usually come about by agreement, either express or implied, entered into by the parties to the record or their attorneys, and the claim of plaintiff in error is that by the statement of the State’s attorney and by his motion that he waived the gun count, which did not exist, he to all intents and purposes entered a nolle prosequi to the first count of the indictment. It is also the apparent claim of the plaintiff in error that the order of the court entered on motion of the State’s attorney that the gun count be waived had the effect of quashing this count and taking it entirely out of the record. The proper procedure for the State’s attorney in this,case would have been to enter a nolle prosequi, which in criminal practice amounts to a simple declaration of record that he will not further prosecute the particular indictment or some designated parts thereof, (i Bishop’s New Crim. Proc. sec. 1387.) The simplest form of the nolle prosequi is to the entire indictment. It may, however, be to only a part of the counts of the indictment, or it may be simply to a separable part of any one count. (Ibid. sec. 1391.)
We are disposed in this case to take, in part, the view of the plaintiff in error that by waiving the gun count the State’s attorney meant that he would enter a nolle as to the gun count, meaning thereby that he entered the nolle as to all that part of the first count which was simply matter of aggravation to the count for robbery. This is a reasonable conclusion, and we think the only proper conclusion, inasmuch as there was not, in fact, any gun count in the indictment. It is absolutely clear that the plaintiff in error understood that this was the meaning of the State’s attorney when he made the motion “to waive the gun count.” It is absolutely clear, also, that after the court entered the order on the State’s attorney’s motion, the first count then charged “plain robbery,” simply, — and that is exactly the charge to which plaintiff in error pleaded guilty, and he did it understandingly. It is also clear that the count as it remained after entering the nolle or "waiver” entirely supports the judgment on the plea of guilty. The plaintiff in error’s contention, therefore, that there was no count in the indictment to support the judgment cannot be sustained. The plaintiff in error received all the consideration from the State’s attorney that he asked, and by pleading guilty to plain robbery he escaped the longer sentence which would have been coming to him had he pleaded guilty to the count as originally framed.
It is argued by plaintiff in error that the Parole law violates section 11 of article 2 of the constitution, (or bill of rights,) and also article 3 of the constitution. These contentions have heretofore received the full consideration of this court in the case of People v. Connors, 291 Ill. 614, and also in the cases of People v. Simmons, 299 Ill. 201, and People v. Dillon, 303 id. 539. We see no cause for receding from the decisions in those cases, which are adverse to the plaintiff in error’s contention.
It is also contended that the Parole law violates section 19 of the bill of rights, which provides that “every person ought to find a certain -remedy in the laws for all injuries and wrongs which he may receive in his person, property or reputation; he ought to obtain, by law, right and justice freely, and without being obliged to purchase it, completely and without denial, promptly, and without delay.” The plaintiff in error in this case received his sentence by his own act of pleading guilty, knowing just what sentence he would receive under his plea. We are at a loss to understand how it can be claimed that any of his constitutional rights have been violated that have been enumerated in said section. The only matter offered by plaintiff in error that is applicable to said section is the statement that the statute does not grant the right to obtain by law complete justice.
■ The judgment and sentence of the court are affirmed.
Judgment affirmed.
