delivered the opinion of the court:
Defendant was convicted of two charges of forgery and was given concurrent sentences of from one to three years. Before trial, he filed a motion for discharge on the ground that he had not been tried within the time required by law. After a hearing, the court denied the motion. Defendant brings this writ of error, contending that the trial court erred in not discharging him.
Defendant was arrested on January 9, 1959, by police officers of Riverside and Chicago. His verified motion alleges that he was arrested on the instant charges. At the hearing on his motion for discharge, however, he stated that he was never actually arrested on the charges contained in the two forgery indictments, but was arrested on another charge. Defendant’s verified motion alleged that he was held in the Cook County jail from January 12, 1959. However, his testimony to this effect was objected to and stricken.
On January 29, 1959, defendant was sentenced for a year and a day by the Federal district court sitting in Chicago. The nature of the Federal charge is not disclosed by the record. Apparently defendant remained in the Cook County jail and was not removed to a Federal penitentiary until March 20, 1959.
The two forgery indictments upon which the present proceedings were based were returned by the grand jury on February 20, 1959. On February 27, 1959, defendant was sentenced to the county jail for one year on a charge of receiving money under false pretenses. On March 6, 1959, on motion of the State’s Attorney, the two forgery indictments were stricken with leave to reinstate. On March 20, 1959, defendant was removed from the county jail to the Federal penitentiary at Milan, Michigan, to serve the Federal sentence of a year and a day that had been imposed on January 29, 1959.
The two forgery charges were reinstated upon the trial docket on December 28, 1959, apparently after defendant’s release from the Federal penitentiary. On February 15, 1960, defendant filed his motion for discharge on the ground that he had not been tried within four months as required by law.
Section 18 of division XIII of the Criminal Code (Ill. Rev. Stat. 1959, chap. 38, par. 748) provides: “Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, * # * 9*
Under this statutory provision, this court has held "that a defendant sentenced on one charge, who had a second charge pending against him, had no right to compel the State to proceed on the second charge until after he had been released from custody on the first charge. (People v. Franzone,
This rule was modified by the enactment in 1957 of “An Act to bar certain actions for want of prosecution.” That statute, as amended in 1959, reads as follows (Ill. Rev. Stat. 1959, chap. 38, par. 633.1) : “Whenever any person has entered upon a term of imprisonment in any penitentiary of this State, and whenever during the continuance of the term of imprisonment there is pending in the county in which he was sentenced any other indictment or information against the prisoner, whether such untried cause existed before or after the effective date of this Act, such untried cause shall be barred for want of prosecution if the prisoner is not brought to trial within 4 months after the date of incarceration for the prior conviction or, as to an information, within 4 months after the effective date of this amendatory Act of 1959, whichever is later, unless the delay occurs upon the application of the prisoner; except, if the court is satisfied that due diligence has been exerted to procure the evidence on behalf of the People and that there is reasonable ground to believe such evidence may be procured at a later date, the court may, upon motion of the' State’s Attorney, continue the cause for not more than 30 days.”
Defendant contends that both the county jail and the Federal penitentiary are included in the. phrase “any penitentiary of this State” as used in the above-quoted statute, and that since defendant was not tried within four months of the date of his incarceration in either institution, he was entitled to his discharge. We know of no principle of construction under which a Federal penitentiary in Michigan could be held to come within the phrase “any penitentiary of this State.” Such a construction would be directly contrary to the express language of the statute.
On the other hand, whether a person sentenced to the county jail on a misdemeanor charge has “entered upon a term of imprisonment in any penitentiary of this State” is a question not so easily disposed of. Where imprisonment is prescribed as punishment for a criminal offense, whether the defendant is incarcerated in the Illinois State Penitentiary or in a county jail depends upon the severity of the crime. The People maintain that People v. Allen,
We think that this statute was clearly intended to afford prisoners the right to a speedy trial and to overcome our previous decisions in People v. Franzone,
While the defendant was not imprisoned in any penal or correctional institution of this State for four months prior to the commencement of the trial involved in this appeal, we do not consider that factor controlling. The record discloses that the Federal authorities had consented to the State’s retention of custody over the defendant and that they would not remove him to the Federal penitentiary until the State had terminated their actions against him. I11 such a case, the State cannot evade the statute by refusing to prosecute the defendant and by voluntarily relinquishing control of him to the Federal authorities.
The judgment of the criminal court of Cook County is reversed.
Judgment reversed.