87 N.E.2d 609 | Ill. | 1949
Plaintiff in error was indicted for the crime of murder at the March term, 1935, in the circuit court of Peoria County. He thereafter pleaded guilty and was sentenced to serve 150 years in the penitentiary. He has sued out this writ of error to review the record of his conviction. The only error assigned is an alleged failure of the court to advise him of his right to counsel, or to inquire of him whether he was able to employ counsel, or to appoint any counsel to represent him.
At the outset we are met with the contention of the People that the issue is res judicata by virtue of our decision on a former writ of error in People v. Bernovich,
Defendant insists that the former case was merely a review of proceedings to vacate the judgment of conviction under a motion in the nature of a writ of error coram nobis, and that as the record in such a suit is not the same as that in the criminal case itself the judgment of this court reviewing the same cannot be binding in this case. There can be no doubt as to the validity of this argument if its premise is correct, namely, that the previous review was confined to the record in the proceedings to vacate the judgment. Such a record does not present the same issues as does the common-law record of the conviction ordinarily presented in a writ of error, and a judgment thereon cannot be conclusive in a subsequent review based upon the common-law record. The fallacy in defendant's contention, however, lies in the fact that the decision in
Examination of the record in the former review made at the time of the hearing on the motion to vacate, before the same trial judge who pronounced sentence, further establishes the defendant had been advised of his right to counsel, not alone by the State's Attorney as claimed by the defendant, but also by the court and before the plea of guilty was persisted in; that the defendant was sui juris; and that he knowingly and understandingly waived his right to counsel. Under such circumstances, even in a capital case, no constitutional rights are violated. People v. Carter,
This case is distinguishable from People v. Williams,
The defendant has therefore had his day not only in the trial court but in this court as well, and is not entitled to a second review of the record herein.
The writ of error is, accordingly, dismissed.
Writ of error dismissed. *484