168 N.E. 323 | Ill. | 1929
Elmer Schuedter was indicted in the criminal court of Cook county on July 13, 1916, for the murder of Gottlieb Dupper, and on October 4, 1916, pleaded guilty. After being fully advised by the court of the consequences of entering such plea he persisted in it. Thereupon his plea was received and he was sentenced to imprisonment in the penitentiary at Joliet for life. On March 29, 1929, he filed his written motion and petition to vacate the judgment for errors of fact not appearing of record. The court proceeded to a hearing upon evidence produced on behalf of Schuedter, the motion was overruled, and Schuedter has sued out a writ of error.
No bill of exceptions was taken on the original trial in 1916 but the evidence on the motion is included in a bill of exceptions. The only assignment of errors which questions the sufficiency of the common law record of the original trial to support the judgment is the fifth: "The record prepared by the clerk fails to show that evidence was heard by the court, as required by the statute, and in the absence thereof the plea of guilty was good for only a fourteen-year sentence." While the statute requiring the court to examine witnesses in such a case is mandatory, a failure to perform this duty is a matter to be presented by bill of exceptions. *246
(People v. Pennington,
The term of court at which sentence was pronounced having passed and the plaintiff in error having been delivered to the prison authorities and having commenced to serve his sentence, the court had no power to vacate or set aside its judgment. (People v. Perlmutter,
The plaintiff in error and his mother testified in support of the motion, and letters written by the trial judge and assistant State's attorney were also produced, the former dated December 17, 1921, and the latter dated January 5, 1922, both addressed to the State Board of Pardons. From the testimony of the plaintiff in error it appears that the trial judge agreed that if the plaintiff in error would plead guilty the trial judge would impose a sentence of fourteen years in the penitentiary, and after sentence was imposed the plaintiff in error sought to withdraw his plea and have a jury trial, but the judge denied his motion. From the letters of the judge and assistant State's attorney it appeared that the assistant State's attorney agreed that if the plaintiff in error would plead guilty he would recommend that a sentence of fourteen years be imposed; that the agreement was made known to the judge, who heard evidence and reached the conclusion that the ends of justice and public safety would not be served by so limiting the period of confinement; and that the judge then informed the defendant's counsel that he would not be bound by the recommendation and if they chose to withdraw the plea of guilty they could do so, but they declined to change the plea. The evidence thus showed that if error was committed it concerned facts known to the court and with reference to which the court acted at the time of the trial. If he committed error his action was subject to review upon writ of error.
The order of the criminal court denying the motion will be affirmed.
Order affirmed. *248