DocketNumber: No. 28947. Judgment affirmed.
Judges: Fulton
Filed Date: 1/23/1946
Status: Precedential
Modified Date: 10/19/2024
Plaintiff in error, hereinafter referred to as defendant, filed in the criminal court of Cook county a motion in the nature of a writ of error coram nobis under section 72 of the Civil Practice Act, seeking to review and set aside a judgment entered against him on a verdict of guilty on trial of a charge of robbery. The petition was denied and plaintiff in error seeks review here. The original judgment of conviction was reviewed by this court and affirmed in People v. Rave,
The petition in substance alleged that the indictment against the defendant, which was returned by the grand jury of Cook county in October, 1934, charged the defendant with committing the offense of robbery with a pistol, and that the second count in the indictment was based on the Habitual Criminal Act and charged that the defendant had formerly been adjudged guilty and convicted of the crime of burglary on July 10, 1922. The petition further *Page 437 alleged that on July 10, 1922, he entered a plea of guilty to the indictment referred to in count two and that the court thereupon entered the following order: "The court orders said plea to be accepted and entered of record against the said defendant. And the court doth find that the said defendant, George Rave, is now about the age of seventeen years. Counsel for said defendant now here moves the court to release the said defendant on probation in this cause. And it is ordered by the court that said motion be and the same is hereby continued until July 21, 1922." The petition further alleged that on July 21, 1922, the court entered an order that said defendant be released on probation for a period of one year on his own recognizance of $500; that on September 3, 1923, the court entered an order that the said defendant, George Rave, having complied with the provisions of his probation, be discharged from further supervision. The petition alleged he was found guilty under the habitual-criminal count of the 1934 indictment and was accordingly sentenced on December 3, 1934, to the Illinois State Penitentiary for his natural life, and that he has been confined in the Illinois State Penitentiary ever since.
The petition further alleged that the judgment and sentence of life imprisonment was erroneous and a nullity, inasmuch as petitioner had not been lawfully convicted of the crime of burglary as charged in the first indictment; that if the trial court in the present case had known that petitioner had not been convicted of the crime of burglary he would not have been sentenced under the Habitual Criminal Act to a term of life imprisonment; that petitioner is not guilty of the crime upon which he was convicted and sentenced, and the petition concluded by praying that the defendant be brought before the court in order that he be present and testify.
The State's Attorney filed a written motion to dismiss said petition on the grounds, among other things, that the *Page 438 alleged facts stated by the petitioner were known to him at the time of the trial and through his own negligence and carelessness were not presented to the court at the time of the trial; that the defendant was not prevented from presenting the above alleged facts to the court at the time of the trial either by duress, fraud, excusable mistake or ignorance; that the alleged facts are insufficient to give the court jurisdiction in the above-entitled cause; that no action was taken within the statutory period of five years, and, therefore, the same is barred.
Plaintiff in error contends that the trial court erred in dismissing the petition for writ of error coram nobis without granting the plaintiff in error a hearing on the same.
The question presented for determination is whether, taking all the facts well pleaded in the motion, and admitted by the People's motion to dismiss, to be true, the plaintiff in error is entitled to the relief authorized by section 72 of the Civil Practice Act. That section (Ill. Rev. Stat. 1943, chap. 110, par. 196,) provides: "The writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice." Under this section, which is the same as section 89 of the Practice Act of 1907, we have held that the errors which may be corrected by the court upon a motion of this kind are such errors in fact as could have been corrected by a writ of error coram nobis at common law. (Marabia
v. Mary Thompson Hospital,
The purpose of the writ of error coram nobis is to bring before the court rendering the judgment matters of fact not appearing of record which, if known at the time the judgment was rendered, would have prevented its rendition. (People ex rel. O'Connell v.Noonan,
In Jerome v. Quincy Street Building Corp.
And in Chapman v. North American Life Ins. Co.
In the case at bar the defendant was asking the criminal court, but not the judge before whom the case was tried in the criminal court and by whom the judgment of conviction was entered, to review its former ruling as to defendant's former conviction of burglary and to hold that the judgment of that court finding the defendant was formerly convicted was erroneous. Under the Jeromecase,
Furthermore, the facts of the defendant having entered a plea of guilty and having applied for release on probation, as well as the order of court releasing the defendant on probation, were all matters of record in the criminal court of Cook county, and the court not only would take judicial notice of its own records but is presumed to know what its record shows. (People v. Moran,
The failure to interpose this defense was certainly negligence on the part of the defendant or his attorneys. It appears from the opinion of this court in the case of People v. Rave,
Counsel for plaintiff in error, in replying to the contention of the People that the question whether the defendant was previously convicted of the crime of burglary was adjudicated by this court in People v. Rave,
In the Andrae case, this court construed section 2 of the Probation Act which provides for release on probation "when nothing remains to be done by the court except to pronounce sentence," and said that the phrase "after entry of judgment" as used in section 2 means that period in the proceedings where the accused had taken all the steps he desired to take and where the court has decided finally to receive and enter the plea or verdict of guilty on the records of the court, and that a record showing that the defendant had previously been tried on a charge of burglary and found guilty by the jury is admissible as showing a former conviction, even though no sentence was pronounced, where such record also shows that, after his motion for new trial was denied, defendant filed a petition for release on probation and that an order releasing him *Page 443
on probation was entered. We further said in that case that a release on probation does not in any way set aside the conviction of the accused, nor preclude the admission of the record of his conviction in evidence for the purpose of affecting the credibility of his testimony in a subsequent trial, and we said: "When a prisoner enters his plea of guilty or where the prisoner is found guilty by the verdict of a jury, it is not necessary for the court to enter a judgment finding the prisoner guilty. When the court receives and enters the plea or verdict of guilty, it follows as a legal inference that the court finds the defendant guilty." (Hoch v. People,
A further reason why plaintiff in error was not entitled to a hearing on his petition for a writ of error coram nobis is that said proceeding was not brought by the defendant within the period of five years after the rendition of final judgment in the case, as provided by section 72 of the Civil Practice Act. Plaintiff in error was last convicted on December 3, 1934, and his conviction was affirmed by this court on June 17, 1936, and rehearing denied on October 7, 1936. The petition for a writ of error coram nobis was not filed in the criminal court until November 10, 1944.
This question was raised by the State's Attorney in his motion to dismiss the petition for a writ of error coram nobis.
Plaintiff in error says that the statutory period of five years does not apply to a person under duress and that one sentenced to life imprisonment certainly is not free to engage even in most necessary litigation and must be considered in duress. However, a reading of this section *Page 444
shows that the disability or the duress must exist at the time of passing judgment. The exact language taken from section 72 of the Civil Practice Act reads as follows: "When the person entitled to make such motion shall be an infant, non compos mentis, or under duress at the time of passing judgment, the time of such disability shall be excluded from the computation of said five years." The serving of the sentence by the defendant subsequent to the passing of the judgment would not stop the running of the statute provided the defendant was not under duress at the time of the passing of the judgment. It is a matter of common knowledge that writs of error and writs of habeas corpus are filed on behalf of persons who are serving life sentences in the penitentiary, and in People v. Crooks,
Counsel, in his reply brief, says that this five-year limitation "is to be found under the Civil Practice Act and that there is no limitation as to criminal cases." However, the language in the concluding sentence of section 72 contemplates a criminal proceeding, as well as civil, because the section excludes from the period of limitation such time as the person entitled to make the motion may be under disability or under duress, and said period of five years commences at the time "of passing judgment," and this language can have application only to a criminal case. Furthermore, the only statute providing for this proceeding by motion in the nature of a writ of error coram nobis
is to be found in the Civil Practice Act. This court, in People
v. Sprague,
A motion in the nature of a writ of error coram nobis is an appropriate remedy in criminal cases, as well as civil. People v.Dabbs,
Therefore, even if the plaintiff in error had a valid defense and was free from negligence in not presenting his defense before the rendition of the judgment in question, he is not entitled to relief in this proceeding, since the statute has run against him and he has no valid excuse for not commencing this proceeding earlier.
For the reasons indicated, the judgment of the criminal court of Cook county is affirmed.
Judgment affirmed.
People Ex Rel. Courtney v. Green ( 1934 )
Jacobson v. Ashkinaze ( 1929 )
Village of Downers Grove v. Glos ( 1925 )
The People v. Sprague ( 1939 )