64 N.E.2d 529 | Ill. | 1945
An indictment returned in the criminal court of Cook county in March, 1918, charged plaintiff in error with the crime of murder. He selected his own counsel, was duly arraigned and entered a plea of not guilty. After a part of the jurors had been qualified for jury service, plaintiff in error made the necessary motions to permit him to withdraw his plea of not guilty and plead guilty. Evidence was heard and a judgment entered committing him to the penitentiary for life. At the March term, 1945, he sued a writ of error out of this court which brings the common-law record here for review. Plaintiff in error contends the record does not show that his rights were fully explained to him as required by section 4 of division XII of the Criminal Code. Ill. Rev. Stat. 1943, chap. 38, par. 732.
Defendant in error has filed a plea of limitation which will have to be sustained. The plea sets forth the fact, which appears upon the face of the record, that the writ of error was issued more than twenty years after the entry of the judgment. The writ of error was a common-law writ. The limitation of time for suing out such writ was twenty years. (People v. Murphy,
Plaintiff in error concedes the record shows a lapse of more than twenty years between the date of the judgment and the writ of error but contends the limitation plea should be rejected for the reason that it was filed in violation of rules of court, and that the facts he has *170 pleaded in his reply are sufficient to stop the running of the limitation.
Rule 70 of this court (
Plaintiff in error also contends that defendant in error failed to give notice of the filing of the plea within the time fixed by Rule 49. The proof of service on file shows notice was given by mailing a copy of the motion and plea to plaintiff in error's address at the penitentiary, and that *171 the same was mailed within the time fixed by the rule. Furthermore, it appears that plaintiff in error received the notice, prepared his reply to the plea and caused the same to be filed with the clerk of the court before the cause was reached on the call of the regular calendar.
The facts pleaded by plaintiff in error in reply to the plea and which he contends were sufficient to stop the running of the statute are as follows: It is alleged that from the time plaintiff in error entered the penitentiary in 1918 to January 8, 1943, the prison authorities where he was confined denied "any inmate right to prepare or file writs or legal papers of any kind in any court." The mere statement that there was such a rule which applied to inmates generally, is not sufficient to excuse plaintiff in error's lack of diligence in the prosecution of his action. The argument advanced in support of the allegation indicates that any rule the prison authorities adopted in such matters was limited to actions where the inmates attempted to file a petition pro se, or communicate directly with the officers of some court. It is not claimed, and we know it could not have been the rule, that an inmate could not procure the aid of counsel to file a proceeding pertaining to his incarceration. It does not appear that inmates of the prison were prevented from applying to courts for aid if the matter was handled through counsel or friends. Plaintiff in error cites United States exrel. Foley v. Ragen, (C.C.A. 7th)
For the reasons assigned, the plea of limitation will be sustained and the writ of error quashed.
Writ of error quashed. *172