*1 сan dis- be classified “Farming” requirements All of in are nonconforming tricts. the uses that territory indefinitely. uses and are liable to remain that condition do not The means board county zoning employed real to the to have substantial relation appear public un- or and are health, comfort, safety welfare, arbitrary, and void as reasonable applied appellees’ property. County The decree of the circuit court of Du Pagе ,, r, affirmed. Decree affirmed. (No. Nos. 3275 4 People Illinois, Defendant Er the State Percy
ror, vs. Plaintiff King, Error. Opinion 18, November denied Jan. Rehearing filed 1953— specially concurring. J., Maxwell, *2 (George Leighton, of Chicago, Wimbish & Moore, N. of for error. Leighton, plaintiff counsel,) and Attorney General, Springfield, Castle, Latham of Chicago, (John GutknEcht, Attorney, State’s John Rudolph Arthur F. T. and Gallagher, Janega, L. all for the Manning, of counsel,) People. Chicago, Per Percy twenty- Curiam : Plaintiff in Error, King, three and Arthur years two age, codefendants, Murphy in the and Theodis were convicted on Hester, pleas criminal court of on two one County, indictments, Cook murder and one armed both charging robbery, charging out At the same of the same occurrence. charges growing time and Hester and were convicted and King pleaded guilty sentenced on a third indictment for a and distinct separate armed robbery Defendant was sentenced to charge. King death on the murder and tо confinement the charge on each penitentiary of the armed robbery charges term not less than more than life, nor such sen- tences to run alone here concurrently. by writs of King error to review all three which have been convictions, con- solidated in this court.
In the hours of early Sunday, October morning 13, armed with a King, 410-gauge shotgun, entered the lobby Bellereve accompanied Murphy, Hotel located on south side. The Chicago’s clerk, night Birney, was behind the desk. Joseph ordered King Birney vaulted put up hands, over counter and demanded He money. took some from drawer money and com- behind the safe in office Birney manded open the safe could be opened When told that counter. times ordered struck several and Inc., he Brinks, Birney the room of lobby, him to into room off the go opening Mrs. her Plelen Benson and husband Eugene. deceased when defendant, Birney Benson alone the roоm Ben- demanded from Mrs. money entered. Murphy King her entered the and she ran from the room, husband son, room followed and when screaming. King Murphy she reached the walk in front building shotgun Benson received discharged, Mrs. charge left side her died face and thereafter. shortly King ran their car Hester had where waited for Murphy them and to their All three homes. were subse- escaped quently written statements admit- signed apprehended all The defendant, the facts. in his written statement ting and in his at the trial police testimony stated that *3 he over an obstruction he was tripped from the running hotel and the was accidentally gun discharged.
All three were indicted for the murder and for armed robbery. Upon on the murder arraignment indictment coun- sel for and advised King Murphy the court that their clients were wanted remorseful, to tell the truth and wanted to Defendant plead guilty. Hester was granted trial separate on his of not plea guilty.
On July 21, court, after thеm of advising their and legal rights them of admonishing the conse- quences, accepted to pleas guilty the murder indict- ment by King Murphy. Immediately thereafter court defendant accepted King’s plea guilty to both the armed robbery one indictments, of which was an occur- rence and distinct separate from the occurrence which resulted in the murder indictment. Murphy also pleaded to the armed guilty robbery associated with the murder. He anot defendant in the separate robbery indictment. The court continued the thereupon hearing aggravation of King Murphy, and the sentencing and mitigation the murder Hester on for the trial of jury and called a indictment. his of not Hester withdrew day plea
On following indictment, the murder entered a to guilty, plea juror which was was withdrawn accepted and the Hester then jury discharged. pleaded guilty the court announced both armed robbery indictments, of that the cause would be continuеd to 2 :oo P.M. at which time he hear evidence in day, aggravation heard, murder case. mitigation Evidence at the conclusion of which the court sentenced defend- ant to death and and Hester King Murphy Counsel for imprisonment. immediately King stated to the court that he wanted make a motion to vacate the and for a new trial. The trial judge then announced that he would enter the formal orders on day, hear the following motions and sentence the de- fendants on the armed robbery pleas.
At noon on the following day, Wednesday, July 23, 1952, counsel for moved for a King continuance following Tuesday, July This motion was denied and counsel was required to with proceed on the argument motion. Defendants and Hester Murphy filed sim- having ilar motions, the court heard arguments counsel all the defendants and also heard evidence on said motions. The motions of and Hester Murphy were granted, Murphy’s sentence of yeаrs was reduced to life imprisonment, and Hester’s sentence was reduced to years. King’s motion was denied and an order was entered imposing death sentence.
Defendant’s serious objections raised here are that the trial court erred in his denying motion because his plea was entered in reliance State’s Attorney’s promise of leniency; that the State’s Attorney misled his counsel to believe a plea of guilty save his client’s life; that him and the
his аdvised mistakenly guilty counsel plead the court the death would waive Attorney penalty; State’s of on the body erred evidence knife wounds hearing was that defendant of the deceased when there no evidence had inflicted as to other them and in evidence hearing erred defendant; unrelated crimes that court as to crimes other of from accepting pleas guilty defend- case; before sentence in the murder that passing ant’s sentеnce the other defendants’ disproportionate was dis- unfair; that whole proceeding lacked the char- defense counsel and orderly, misguided by orderly acteristics of a fair and trial as guaranteed constitution.
It is well established that an accused who enters a plea to a offense, criminal should guilty hopeful leniency, not be withdraw because he permitted merely plea is dissatisfied Mor with (People v. imposed. reale, People Hancasky, v. Ill. 528; 148.) After a stands before the plea guilty court as a convicted criminal, and of innocence presumptions which the law on a indulges no exist. not-guilty plea longer He bemay leniency but he is hoping entitled justice. (People Riley, v. But, ll. where one 364.) I 376 is sentenced on a plea withdrawal of such plea after sentence is a matter with the trial discretionary a discretion which should be exercised liberally, especially in favor сapital cases, liberty. The law favors a trial on the merits and all doubt should be resolved in favor of such a trial. (People v. Schraeberg, Ill. 620; C.J.S., 641.) vol. have held that We a defendant p. should to withdraw permitted when the record plea it shows was entered through facts misapprehension or the law, where the defendant has any defense worthy consideration or in jury, case where it appears justice the ends of will be best served by submitting the case to the jury. (People Throop, Ill. 354.)
501 trial at the found guilty be may fact that him the opportunity reason to deny sufficient is not Carzoli, have. v. (People such defense as he may present The statutes Ill. Kurant, People 470.) v. 587; Ill. may murder that the crime of of this State provide to any a sentence life sentence or by death, punishable the charge number If accused has defense to years. any con he that defense for should have present v. sideration jury (Peoрle fixing punishment. is im Jameson, the death sentence Ill. Where 367.) all embodies posed upon justice, plea guilty, humane demands that the record be clear considerations, taint any lack of mis misunderstanding, knowledge, information or inducement mis leading advice, or improper conduct leading prosecuting attorney, anyone authority over the or considered an prisoner, anyone officer or in of, any manner connected im with, court which that If poses sentence. doubt any exists that the prisoner’s free plea from such completely influences de justice mands that such doubt be removed. Trobiani, People
A serious doubt that defendant’s plea completely free from such influences exists in this case. Immediately upon pronouncement trial judge defense counsel moved to vacate the and sentence on the that he ground had been misled assistant State’s into Attorney that thе death believing penalty not be imposed, and, on this relying had belief, advised his client to to the plead guilty crime of an act murder, which resulted in the forfeiture of his life. At the hearing on this motion defense counsel stated to the court that at least a week before the trial the assistant State’s Attorney who the case prosecuted “solicited me . . . promised me if I would these plead defendants he guilty would waive the chair and recommend lenienсy, and based statement, statement alone, Howard R. attor- Williams, Percy defendants Arthur King, ney Murphy Defense then called the assistant State’s pleaded guilty.” of his Attorney testimony stand. substance defense a denial of made to coun- leniency promise but the witness did admit that he did have conversa- sel, tion with defense counsel about the defendants pleading he had admitted that advised defense counsel *6 that in his that chance to evade was counsel’s only opinion the death counsel for and Mur- Williams, penalty. King direct defend- examination phy, upon by Huff, attorney ant then testified he Hester, Huff, that had talked with advised him that he was pleading King Murphy on the State’s and that he Attorney’s leniency promise advised both his (Williams) Huff and client Hester them plead guilty, that would the same assuring they get leniency from the He further testified Attorney. State’s cross-examination upon by that he Attorney State’s Huff told if Hester stood trial King Murphy take the stаnd and testify against him. These conversations between Williams and Huff and Williams and Hester are not denied.
Without whether Williams’ determining belief was jus- his conduct, both before tified, and at the trial, characterized his by to throw eagerness his clients’ fate mercy of the court and his to induce Hester to attempt plead guilty, unmistakably demonstrates the sincerity of his be- lief and his conviction that his clients would thereby avoid the death The admission penalty. of the assistant State’s Attоrney that he did talk with defense counsel in the cor- ridor of the courthouse about the and the pleas penalty, contradictory evidence as to what this was, conversation counsel’s eagerness his plead clients his guilty, entreaties to defendant Hester and his counsel, and, significantly, failure of the State’s to make Attorney any recommenda- tion to the form a set of circumstances which this court cannot say clearly free from doubt that рlaintiff misled his coun- by in error’s result of being plea misled the assistant in turn was either State’s who sel, his own or or Attorney stupidity incompetence.
At the mitigation hearing aggravation he testified that as he ran from King building tripped and the The existence accidentally gun discharged. and location of the obstruction which defendant stated had him was out the assistant clearly tripped brought Attorney’s State’s There is cross-examination. nothing the record to contradict this vеrsion of the While killing. this of the may not be a defense explanation killing murder it is an of the charge, explanation killing consider eliminated the jury heinous might character of and the abandonment of heart killing necessary justify of the extreme imposition penalty.
We believe that the circumstances this case in place of cases where justice category may best be served by all doubt as to the removing propriety sentence and that the sentence should be vacated and a trial new granted. errors assigned to the regard armed rob
bery convictions, consolidated are herewith, that such/sen with a tences, minimum term of years, a of period 199 time than the greater ordinary of span life, and a maxi mum term of life in are, effect, “life to life” sentences, violative the of and provisions the intent and of purpose the indeterminate sentence statutes, (Ill. Rev. Stat. 1951, chap. 38, pars. 501, and 802,) сondemned by this court in People Westbrook, v. Ill. 411 This invites argument us to speculate the life ex- of pectancy those convicted of crime in the determining of the propriety sentences which have been imposed upon That them. we decline to do. In the case of any prisoner sentenced to the penitentiary there is always the possi- bility incarceration will continue until his death. That likelihood in may one great case and small in anоther.
504 diminished the be enhanced or In case, may possibility health the to the and the factors relating age prisoner. the relat- not doubt that consideration of factors We do life would show that sentences many ing expectancy result actually for terms of years specified imposed the That in for balance of life. incarceration prisoner’s convert an has not heretofore been thought possibility sentence for a term an unаuthorized authorized into years for their here im- face, the sentences life. Upon with statute which authorizes comply posed imposi- a minimum term tion of sentence of not less “any than and a maximum year” one sentence of life imprison- and we see no reason measure the of years term ment, against imposed expectancy prisoner. criminal court of Cook County number is cause reversed and the cause re- 32754 for a manded new triаl. same court in judgments causes numbered and are affirmed. remanded; reversed and
No. 32754 Nos. and 32867 affirmed. Mr. specially concurring: Maxwell, Justice I concur this opinion to cause numbered 32754, concur the result reached in causes numbered 32868 but cannot with or lack agree reason, for reason, assigned the sentences in the two latter affirming cases. People
In Westbrook, this court held a 301, “life to life” sentence invalid because “the in legislature tеnded by sections 1 2 of Parole Act Sentence require definite sentences be four imposed crimes specifically mentioned in section and that indeter minate sentences be for all other imposed crimes. [Citation] *8 That intention would be nullified construction ad vanced by the which would convert the People, sharply indeter- definite distinction between drawn legislative The words.” formula into an sentences empty minate sentence indeterminatе make an is to of this ruling effect indeter- is not which sentence a mandatory, in such cases an to a right legal in the and creates prisoner minate void, enforce. the courts will indeterminate sentence sen- an indeterminate to If has a legal sentences affirming the court’s tence I cannot with agree sen- that a contention in the instant case. prisoner’s life a life to to life is equivalent to years tence is void If “life to life” irrefutable. me, sеntence to is, life is void for indeterminate, years because not in en- reason neither nor justice can see same reason. I in one an indeterminate forcing legal right if the In my it in the other. opinion case and denying denied is State, case is the law of this King Westbrook case the of the In Westbrook law. equal protection the inten- it nullified life life sentence was void because sentences. indeterminate tion of the to require legislature nullified thаn is done be more effectively Can that intention whether to consider just here the court refusing are or are not indeterminate? sentences in this is, law now pronounced State cases, life, that a sentence of life to Westbrook and King is statute, it is the literal wording within although it but a sentence of indeterminate; void because is not valid because it is within the literal is years within statute, wording being wording whether it is in- the court will not consider statute, or not. creates an whiсh I cannot determinate This enigma understand. the sentences of to life
I would affirm for the reason as so that, frequently instant case simple this a sentence under the Parole Act is a stated by the maximum valid sentence for so term, long legal limits fixed as that maximum within the law there is *9 506 Parole about which the can The prisoner complain.
nothing considered as case, to the Westbrook Act, always prior an of the at its comity by act and extended grace, State and dis- discretion to good prison government promоte and act in a not an which created a legal cipline, right him to a sentence which an prisoner guarantee oppor- for tunity parole. sentence for armed is contained legal robbery
and a of the section of the Criminal Code which part the defines crime. (Ill. Rev. 38, 501; Stat. 1953, chap. par. there fixed the Ann. Stat. 37 459.) legislature Jones at “for term penalty penitentiary imprisonment of not one less than or for life.” This sen year legal the tence, Parole attaches regardless Act, automatically the every guilty of offense and is read into every sentence which the may by court. pronounced ex (People Ill. Montgomery, 241; People rel. Ewald v. 377 Brown, v. Ill. This has 202.) always court held that 389 under every sentence the Act a Parole is valid sentence legal for the maximum term fixed lawby for the offense involved Webster, v. (People Connors, 226; People Ill. v. 362 291 Ill. 614,) consequently every for armed rob ais valid sentence bery for or, since the amend 1943 ment of the Parole Act, for the maximum fixed the by court the within the court limit, elects to such legal if fix (People Brown, maximum. v. Ill. 202.) Any pro 389 visions of the Parole Act for termination of this sentence prior to service the maximum term are concessions of comity at the discretion grace, granted executive under conferred authority by legislature, pur pose attaining good prison government discipline. These clemency Parole provisions Act discre being tionary, has no prisoner to such legal right benefits which the courts will enforce. (People Thompson, v. Ill. 71.) Once sentence has been so far as the pronounced, courts are concerned, has no prisoner legal enforce right v. sentence. (People maximum has served the until he 2d 660.) 181 Fed. Ragen, v. Connors, 614; Uryga Ill. the Parole in a which is vested The only right in all our in every is vested person Act is that statutе shall of a that the benefits criminal, civil or statutes, of an action arbitrary not be denied any person Lewis, ex People Day administrative official. rel. v. Ill. 509. Brown,
In People prisoner, was sentenced for larceny, conviction of burglary term fixed of one to" Criminal year life, penalty *10 The the had no jurisdiction Code. contended court prisoner such sentence as the Act the Parole impose required court fix a minimum and maximum sentence. This court that that the rejected Parole Act contention, holding did not of a minimum and maximum require fixing different from fixed it do penalty by law, may “though so within the limitations in the act.” In People provided Burnett, amendment was attacked in that it amended the fixed law. We there penalties by stated that the its discretion in exercising fixing the minimum and maximum time to be en served, was in a judicial act gaged measure determining appropriate punishment, that the law this authorizing pertained to thе “manner of and was not sentencing” intended to amend the which the penalty had legislature prescribed.
It therefore appears the only in the act change made by the amendment is to the courts the give dis- cretionary fix authority to a minimum and maximum time within service, the statutory limitations, is bind- the executive ing upon authorities in The granting parole. sentence is still legal a valid sentence for the maximum pro- vided if by law or, trial court exercises its discretion, for the maximum fixed by the court. The fixing any minimum sentence, so as it is within long the limitations fixed or does not law, change alter legal prisoner’s time but fixes the minimum manner merely
sentence can be eligible parole. of service before prisoner sentence, of his he has no This is not a part legal legal of such can- minimum, consequently in the fixing of the court’s failure to fix a minimum or the not complain any minimum within the limitations. statutory court fixing our statute is When clear. language simрle this is true there is no need the literal word- beyond to go or it of the statute to read into that is not ing something there. The limitation only of minimum fixing is that it not sentence shall be less than the minimum fixed read law. should we into this and clear Why simple pro- vision the further requirement that such minimum shall be fixed at less than the maximum when the did legislature not so provide? excuse for is the so unfortunate use doing
of the term ‘indeterminate’ in the statute and applying term the rather than to the of incarcera- period it tion to which do actually I not believe the applies. legis- lature intended term use of that all sen- require tences under section 2 to be such that the guar- anteed or has to a sentence which will legal right actually be indeterminate. To fix a minimum term which will actu- ally be indeterminate is a practical Any impossibility. *11 minimum may exceed the life of the Or to fix prisoner. the minimum at a term which would ordinarily less than the life would involve the courts in a morass of evidence as to each speculative life prisoner’s and result expectancy in the of a minimum fixing penalty determined prisoner’s' ability criteria pay. Such would be wholly our foreign repugnant constitutional guarantees and sense of justice.
Obviously, any minimum cannot create an fixing indeterminate sentence. On the other hand our Parole Act as it is vests in the applied executive power authorities to make sentence indeterminаte. every case and Westbrook the sentences In my opinion im- sentences case are valid in the instant legal Neither robbery. pris- of armed for the crime prisonment to the fixing in regard had a legal complain oner was no where there minimum in such sentences the discre- he denied arbitrarily had been allegation neither of the Parole and consequently benefits tionary Act, had a cause of action. been
The writs of error in both cases should have dismissed.
(No. 32728 . Mississippi Corporation et al., vs. Appellees, River Fuel Commission, Appellant.
Illinois Commerce Opinion November filed