68 N.E.2d 265 | Ill. | 1946
January 10, 1934, an indictment was returned in the circuit court of St. Clair county against the defendant, Elvis T. Watson, charging him with burglary and larceny. January 12, upon arraignment, the State's Attorney entered a nolle prosequi as to the burglary charge and defendant pleaded guilty to larceny. He was thereupon sentenced to imprisonment in the penitentiary for a term of from one to ten years. January 18, 1934, the defendant again appeared before the court and, by agreement of all parties, the orders entered January 12, 1934, were set aside and held for naught. On this same day, January 18, 1934, upon motion of the State's Attorney, the charge of larceny *179 was nollied and defendant pleaded guilty to the charge of burglary. After admonishing him as to the consequences of his plea, the court found defendant guilty of burglary, and sentenced him to imprisonment in the penitentiary for an indeterminate term of from one year to life. Defendant, appearing pro se, prosecutes this writ of error to review the judgment of conviction of burglary. No bill of exceptions is contained in the record.
Charging that his constitutional rights were violated and, in particular, that he was denied due process of law, defendant contends that the burglary charge having been nolle prossed upon the first hearing, and the larceny charge having been nollied upon the second hearing, there remained no charge upon which he could be sentenced. He argues, further, that after entry of thenolle prosequi the court was without power to reinstate the charge of burglary and that, consequently, he is being illegally detained on a void mittimus. The principal controversy thus presented is whether the trial court had jurisdiction to enter the orders of January 18, 1934, setting aside the previous orders and reinstating the burglary charge. The contention and argument of defendant are based upon a misconception of the effect of anolle prosequi. "A nolle prosequi is not a final disposition of the case, and will not bar another prosecution for the same offense. It is not an acquittal, but it is like a nonsuit or discontinuance in a civil suit, and leaves the matter in the same condition in which it was before the commencement of the prosecution." (10 Encyc. of Pleading and Practice, p. 558.) Again, it has been said that the ordinary effect of a nolleprosequi is to terminate the charge to which it is entered and to permit the defendant to go wherever he pleases, without entering into a recognizance to appear at any other time. If it is entered before jeopardy has attached, it does not operate as an acquittal, so as to prevent a subsequent prosecution for the same offense. (14 Am. Jur., Criminal Law, *180
sec. 295.) This court has held a plea of former jeopardy cannot be based upon the fact that a trial of the defendant had been previously begun under another indictment which was nolle prossed
by the State's Attorney after four jurors were selected and sworn. The trial and jeopardy begin when the accused has been arraigned and the jury impaneled and sworn. (O'Donnell v. People,
The orders of January 12 and 18, 1934, were entered during the January, 1934, term, which, according to statute (Smith's Stat. 1933, chap. 37, sec. 7, par. 72.7,) commenced on the second Monday of January (January 8, 1934,) and extended until the first day of the succeeding term, in April. (Smith's Stat. 1933, chap. 37, sec. 24, par. 72.24.) A court retains jurisdiction over a judgment during the term at which it is rendered and may for proper cause vacate the judgment during the term, but in a criminal case the judgment can be vacated or changed in material matters only while it remains unexecuted and not after the prisoner has begun serving his sentence. (People v. Hamel,
Although the precise question with respect to the power of the trial court to vacate a nolle prosequi does not appear to have been presented to this court for decision, courts of other jurisdictions have sustained it as a proper *181
exercise of judicial power. In State v. Lonon,
In United States v. Rossi,
The Supreme Court of Texas, in Parry v. State,
A similar conclusion was reached in Condos v. Superior Court,
From the foregoing, the following well-settled principles are deducible: Where, in a criminal proceeding, the prosecuting attorney causes the entrance of an unconditional nolle prosequi
or a dismissal of the indictment at one term of court, the proceeding is terminated, and the same indictment cannot be reinstated at a subsequent term and prosecution thereon resumed.(State v. Veterans of Foreign Wars,
Moreover, the record further discloses that on January 18, 1934, the order setting aside the previous judgment and reinstating the burglary charge was entered into "by agreement of the parties." It follows that, the court having jurisdiction of the parties and the subject matter, defendant was not denied due process. The constitutional guaranties with respect to the conduct of criminal trials can be waived and, when so waived, the consequences of the waiver are binding upon the accused. (People
v. Lawrence,
The judgment of the circuit court of St. Clair county is affirmed.
Judgment affirmed.