People v. Benner ( 1922 )

Me. Presiding Justice Higbee

delivered the opinion of the court.

Plaintiff in error and one Tom Johnson were arrested on an information filed July 18, 1921, in the county court of Gallatin county. The information consisted of two counts. The first charged that the defendants named therein “did then and there unlawfully transport intoxicating liquor” and the, second count charged that the defendants ‘ ‘ did then and there unlawfully possess intoxicating liquor.” The defendants signed written waivers of their right to jury trial and entered pleas of guilty. On such pleas of guilty the following judgment was entered:

“And now on this day, July 18th, comes Tom Johnson and J. 0. Benner, defendants in the above entitled cause, into open court, sign jury waiver and enter a plea of guilty. * * * J. 0. Benner is fined $JOO and costs and 90 days in the county jail. Defendant is ordered to be committed to the county jail for 90 days and 'until fine and costs are paid or secured according to law. The sheriff is hereby ordered to empty all of said liquor, except one gallon, he is to safely keep as evidence against the other unknown parties, into the Ohio river. The court finds that the Gardner automobile license No. 206124 Ill. 1921, car No. 8390, and engine No. K-100,-328, owned by J. C. Benner in which said liquor was being transported is forfeited according to law. Also pump shot gun found in car, owner unknown. Cause continued for service upon August Zvara, stated to have a lien upon said ear, upon unknown owner of gun. Summons ordered to issue as provided hy law.”

Pursuant to that judgment plaintiff in error was committed to the Gallatin county jail and was confined therein when the writ of error was issued in this case. It is contended by attorney for plaintiff in error that this judgment must be reversed for the reason that the record does not show that the trial court explained to plaintiff in error the consequences of entering his plea of guilty, and that he persisted in pleading guilty after such explanation.

Paragraph 4 of division XIII of the Criminal Code (Cahill’s Ill. St. ch. 38, ¶ 756) provides: “In cases where the party pleads 'guilty,’ such plea shall not be entered until the court shall have fully explained to the accused the consequences of entering such plea; after which, if the party persists in pleading 'guilty,’ such plea shall be received and recorded, and the court shall proceed to render judgment and execution thereon, as if he had been found guilty by a jury. In all cases where the court possesses any discretion as to the extent of the punishment, it shall be the duty of the court to examine witnesses as to the aggravation and mitigation of the offense.” The record in this case does not show that the trial court warned plaintiff in error or admonished him of the consequences of his plea of guilty as provided by the above statute. If the provisions of that statute are mandatory and a compliance with the same must appear from the record, then the contention of plaintiff in error is well founded and this judgment must be reversed.' It has been held by the Supreme and Appellate Courts of this State that a plea of guilty in a criminal case can only be entered after the defendant has been fully advised by the court of his rights and the consequences of his plea of guilty. (Krolage v. People, 224 Ill. 456; People v. Glick, 200 Ill. App. 46.) It has also been held that this statute applies to misdemeanors as well as to felonies. (Pepple v. Sweetland, 210 Ill. App. 432.) It would also appear that the Supreme Court has held that a. court of review cannot presume that the trial court performed its duty under this statute in the absence of anything in the record to show a compliance with the statute, but that the record must affirmatively show that the trial court did explain to the defendant the consequences of a plea of guilty. In the case of People v. Petrie, 294 Ill. 366, the Supreme Court in an opinion by Justice Dunn said: “The record as originally made containing no reference to the explaining of the -consequences of his plea of guilty to the defendant was insufficient to sustain the judgment.” The Supreme Court again in the case of the People v. Harney, 276 Ill. 236, in an opinion by Justice Farmer held: 1‘ The record must show, as the statute requires, that the effect or consequence of. entering a plea of guilty was fully explained by the bourt to the defendant, but it is ■ not required that the language of the court in making the explanation shall be set out in the record.”

In this case, not only does the record not show the language used by the court, but it is entirely silent as to whether the court explained to plaintiff in error the consequences of his plea of guilty, and under the above authorities we must hold there was clearly reversible error in entering the judgment herein. The judgment in this ease seems also to attempt to confiscate the automobile in which the intoxicating liquor was being transported and certain property found therein under section 31 of the Illinois Prohibition Act (Session Laws 1921, page 696 [Cahill’s Ill. St. ch. 43, ¶ 32]). There does not appear, however, to have been any effort to comply with the requirements of that section concerning summons and other court procedure against the owner of and persons having liens against such property. In onr opinion it was error for the court to enter any judgment against or concerning this property without a compliance with that section of the statute. For the errors herein pointed out, the judgment should be reversed and the cause remanded for further proceedings in conformity with the views expressed in this opinion.

Reversed and remanded.