delivered the opinion of the court:
Plaintiff in error was indjcted at the October term, 1912, of the circuit court of Wayne county for the crime of rape. He entered a plea of guilty to the charge and was sentenced to imprisonment in the penitentiary for the term of two years. He has sued' out a writ -of error from this court to obtain a review of the judgment based upon his plea of guilty.
No bill of. exceptions was preserved, and the only errors that are open for consideration" relate to certain alleged defects which appear in the record. Plaintiff in error contends that the record is insufficient and defective in the following particulars: (1) That the defendant was not furnished with' a copy of the indictment, a list of jurors and witnesses and was not arraigned; (2) that the court did not fully explain to the defendant the consequences of entering a plea of guilty before the plea was received and entered of record; and (3) that the record does not show that the court heard evidence touching the degree of plaintiff in error’s guilt.
The record in this case is as follows: “And now, on this 27th day ■ of October, being the seventh day of the present term of this court, comes the People, by the State’s attorney, and also comes the defendant, attended by his counsel, Boggs, Boggs & Heidinger, as well as in his own proper person, and having filed his written waiver to the right to trial by a jury enters his plea of guilty to the charge of the indictment herein, and having been duly admonished by the court persists therein. The court, being fully advised in the premises, doth therefore order that the said defendant, Elmer Pennington, be taken from this bar to the county jail and from thence to the penitentiary at Chester, Illinois, there to remain for the space of two1 years, and that he pay the costs of this proceeding and execution issue therefor.”
The requirement of the statute that every person charged with treason, murder or other felonious crime shall be furnished, previous to his arraignment, with a cop}' of the indictment and a list of the jurors and witnesses has been held by this court to be directory, and that in order to make the omission to comply with this statute available on error it is incumbent upon the accused to demand a copy of the indictment and a list of the witnesses and to preserve the evidence of .such demand in a bill of exceptions. (Kelly v. People,
The next error complained of is that the record fails to show that the court fully explained to plaintiff in error the consequences of entering his plea of guilty before the same was received and recorded. The record shows that the plaintiff in error had been “duly admonished by the court” and that he persisted in his plea of guilty thereafter. The words “duly, admonished” have a well defined meaning when used in this connection. The word “duly” has acquired a fixed legal meaning, and when used before any word implying action it means that the act was done properly, regularly and according to law. (O’Donnell v. People,
In People v. Ellsworth, supra, it was also contended, as here; that the court erred in not examining witnesses a's to the mitigation or aggravation of the offense. The record in the Ellsworth case was silent as to whether witnesses had been examined, and it was there held that it was not necessary that the record should show, affirmatively, that the court examined witnesses as to matters in mitigation or aggravation of the offense but that such matters must be presented by a bill of exceptions. In passing upon this question we there said: “The burden is on the plaintiff in error to show, that the proceedings of the trial court were illegal. Those proceedings will be presumed to be regular and free from error until error is shown by the record. Every reasonable intendment not negatived by the record will be indulged in support of the judgment below. (Bonardo v. People,
That part of section 4 of division 13 of the Criminal Code making it the duty of the court to examine witnesses as to the aggravation and mitigation of the offense in cases where the party pleads guilty is mandatory, and it is necessary for the court to make such examination when requested or desired either on the part of the People or of the defendant. This is a privilege which may be waived by the parties and some other method of -supplying the court with the necessary information be substituted in its stead. Should the court fail to perform-its duty in this-regard, or should it be claimed that the punishment was more severe than the circumstances shown would warrant, such matters must be presented for review by a bill of exceptions.
The record of the circuit court being regular in every respect, the judgment is affirmed.
T Judgment affirmed.