83 N.E.2d 276 | Ill. | 1948
This writ of error is prosecuted by the defendant, Felix Ostrowski, to reverse a judgment of the Appellate Court which affirmed a judgment of the municipal court of Chicago, adjudging the defendant guilty of the criminal offense of contributing to the delinquency of a child and sentencing him to serve a term of six months' imprisonment in the House of Correction.
The defendant was arrested and brought before the municipal court of Chicago on September 8, 1947, at which time a purported criminal information was filed against him. Said information was prepared on a court form entitled "Information by Individual" and reads as follows:
"STATE OF ILLINOIS, } COUNTY OF COOK, }ss. IN THE MUNICIPAL COURT OF CITY OF CHICAGO, } CHICAGO.
____________________, a resident of the City of Chicago, in the State aforesaid, in his own proper person, comes now here into Court, and in the name and by the authority of The People of the State of Illinois, gives the Court to be informed and understand that FELIX OSTROWSKI heretofore, to-wit, on the 6 day of SEPTEMBER A.D. 1947, at the City of Chicago, aforesaid, did unlawfully, *108 knowingly and wilfully encourage Mabel Joint a F person under the age of 18 years to-wit: 16 years of age to be or to become a delinquent child and did then and there unlawfully, knowingly and wilfully do acts which directly produced, promoted and contributed to conditions which tended to render said Mabel Joint to be or to become a delinquent child in that he, the said Felix Ostrowski did, ingage in indecent, obscene and lasvicious conversation with the said: In violation sec. 2; — Par. 104 Chap. 38 Illinois Revised Statutes, contrary to the form of the Statute in such case made and provided, and against the Peace and Dignity of the People of the State of Illinois.
X MABEL JOINT -------------------
STATE OF ILLINOIS, } COUNTY OF COOK, }ss. CITY OF CHICAGO, } MABEL JOINT -------------------
being first duly sworn, on ...... oath, deposes and says that .... he resides at ..........; that ...... he has read the foregoing information by ........ subscribed and that the same is true.
X MABEL JOINT -------------------
Subscribed and sworn to before me this 8 day of Sept., A.D. 1947.
JOSEPH L. GILL, ---------------------------------------- Clerk of the Municipal Court of Chicago. Gemler.
I have examined the above information and the person presenting the same and have heard evidence thereon, and am satisfied that there is probable cause for filing same. Leave is given to file said information and IT IS ORDERED that a capias issue against the accused.
Bail fixed at $_______ or cash deposit of $________
GIBSON E. GORMAN, ----------------------------------------- Judge of the Municipal Court of Chicago."
The defendant entered a plea of not guilty, waived a jury and the case was tried before the court. It appears that the defendant was represented by counsel who obtained for him a continuance of the cause until September 25, 1947, on which date a trial was had before the court and the defendant was found guilty of the offense charged. On *109 October 7 the defendant filed a motion in the nature of a writ of error coram nobis to correct errors in fact, in which motion it was contended that the information did not charge any offense nor the violation of any law, and that said information was insufficient to support the judgment of conviction, and that said trial and conviction was without due process of law. The State's Attorney on the same day filed a motion to dismiss the petition in which it was asserted that the alleged facts stated by the petitioner were known to him at the time of trial and through his own carelessness and negligence were not presented to the court. It does not appear from the record in this case that any order was ever entered by the court on this petition of the defendant and the motion to dismiss the same. Thereafter the defendant prosecuted a writ of error to the Appellate Court, in which court he contended that the information was fatally defective, the trial court had no jurisdiction and the judgment was, therefore, void because of the omission of the name of the informant from the body of the information. It was also contended that the acts of the defendant as set forth in the information did not show any criminal offense as having been committed. The Appellate Court affirmed the judgment of the municipal court.
The defendant has asserted fifteen errors in his brief which he contends entitles him to a reversal of the judgment. These assignments are repetitious and may be summarized as follows:
1. The defendant contends that the information was not a valid criminal pleading because it did not contain the name of any informant and, therefore, did not comply with section 33 of article VI of the Illinois constitution and the judgment of conviction was, therefore, void.
2. The defendant contends that there was no criminal offense of contributing to the delinquency of a child alleged in said information. *110
3. The defendant contends that he has been deprived due process of law and equal protection of the laws as guaranteed by the State and Federal constitutions.
Section 33 of article VI of the Illinois constitution provides, "All process shall run: In the name of the People of the State ofIllinois; and all prosecutions shall be carried on: In the nameand by the authority of the People of the State of Illinois; and conclude: Against the Peace and Dignity of the same." Counsel for the defendant cite several cases which they contend establish a rule of law that where the name of the person bringing the prosecution is not stated in the information the information is fatally defective and, therefore, a conviction thereon is void. Those cases do not establish such a rule of law. Parris v.People,
A review of the information in the case at bar indicates that the same was signed by Mable Joint and was sworn to by her before the clerk of the municipal court of Chicago. The fact that the information did not state that she was a resident of the city of Chicago does not render it fatally defective. The omission of her name from the first line of the information did not in any way affect the validity thereof since it appears that the information was signed and that it was sworn to under oath by Mable Joint who signed the same. The omission of her name from the body of the information could not render the same fatally defective. *112
It is next contended that the information, although stating the alleged crime in general terms, did not allege any facts which would indicate in what manner or by what method the defendant encouraged the female child to become delinquent. Defendant contends that the information is, therefore, void because it does not charge the commission of a crime. In support of this contention defendant cites People v. Ellis,
It is to be noted that the defendant did not prosecute a writ of error from this court prior to his writ of error from the Appellate Court, and, therefore, any constitutional questions were waived under the authority of People v. Rosenthal,
For the reasons stated in this opinion, the judgment of the Appellate Court, affirming the judgment of the municipal court of Chicago, is affirmed.
Judgment affirmed. *114