People v. Neal

WOOD, J.

I cannot agree that the trial judge committed prejudicial error in ordering that the sentences for attempted murder run consecutively.

Immediately after the arguments in the case the trial judge proceeded to make comments preliminary to announcing his decision. Among other things, he said: “This is the most fiendish, the most brutal, the most vicious crime that has ever come to the attention of this Court, and as a result of the acts of this man Mrs. Raymond is going to be a helpless cripple the rest of her life.” Then the judge stated that he found the defendant guilty on each of the three counts. The defendant waived time for pronouncing sentence. The deputy district attorney requested permission to address the court upon the subject of concurrent and consecutive sentences. The judge replied, “Very well.” Then he sentenced the defendant on each count to imprisonment in the penitentiary for the term prescribed by law. Then the deputy made the remarks stated in the above opinion. No objection was made by defendant to the statement of the deputy, and no motion was made to strike out any part of the statement. At the time of ordering that the sentences run consecutively the judge made no statement indicating that his order was based upon anything the deputy had said. In 15 American Jurisprudence 168 it was said: “It is presumed that the court in inquiring as to circumstances of aggravation or mitigation disregards all incompetent evidence. ’ ’ In The People v. Popescue, 345 Ill. 142, it was said at pages 155-156 [177 N.E. 739, 77 A.L.R. 1199] : “In the case at bar the written order of the judge sentencing the two defendants to die in the electric chair made no reference to any crime other than the crime, charged. . . . The order therefore fails to show that the judge abused his discretion in any regard. In such case the presumption of regularity must obtain. Even if it should be assumed that the evidence of the murder committed by these defendants three hours before they murdered Merrill was incompetent, this was a hearing before the court without a jury, and the court is supposed, as in chancery cases, to disregard all evidence heard except that which is competent and relevant to the issue. ’ ’

In view of the fact that, prior to the statement of the deputy, the judge had said that the crime was the most fiendish, the most brutal, and the most vicious one which had ever come to his attention and that the defendant had crippled Mrs. Raymond for life, and in view of the fact that it was shown during the trial that defendant had been convicted twice previously, it is practically certain that, irrespective of the statements of the deputy, the judge would have ordered that the sentences run consecutively. Concurrent sentences were not indicated by the evidence. Defendant designedly planned to murder two persons by fiery torture. He maimed and tortured them mercilessly. It is clear there was no miscarriage of justice. In my opinion the error of the deputy district attorney was not prejudicial and the judgments should be affirmed.