People v. Simos

• Decision Date: 23 October 1931
• Docket Number: No. 20623.,20623.
• Citation: 178 N.E. 188,345 Ill. 226
• Parties: PEOPLE v. SIMOS et al.
• Court: Illinois Supreme Court

345 Ill. 226

178 N.E. 188

PEOPLE

v.SIMOS et al.

No. 20623.

Supreme Court of Illinois.

Oct. 23, 1931.

Error to First Branch Appellate Court, First District, on Error to Criminal Court, Cook County; John J. Sullivan, Judge.

Mike Simos and others were convicted of conspiracy to suborn perjury, which judgment was affirmed by the Appellate Court (259 Ill. App. 253), and defendants bring error.

Affirmed.Wm. Scott Stewart, of Chicago, for plaintiffs in error.

Oscar E. Carlstrom, Atty. Gen., John A. Swanson, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson, Henry T. Chace, Jr., Otho S. Fasig, and Charles A. Bellows, all of Chicago, of counsel), for the People.

STONE, C. J.

Plaintiffs in error were convicted in the criminal court of Cook county on a charge of conspiracy to suborn perjury by causing one Dorothy Fletcher to testify falsely to a material issue in a personal injury suit instituted by plaintiff in error Mike Simos against the Chicago Rapid Transit Company in the circuit court of Cook county. The jury fixed the punishment of Anthony Anton at imprisonment in the county jail for a term of one year, that of Mike Simos at imprisonment in the county jail for a term of nine months, and that of Caloedas at imprisonment in the penitentiary. Judgment was entered on these verdicts and was affirmed by the Appellate Court. The cause is here on writ of error.

Three errors are assigned in this court: (1) The court erred in refusing to permit proof concerning former jeopardy of plaintiffs in error; (2) crimes other than those charged in the indictment were proved or insinuated; (3) insufficiency of the evidence to support the verdict.

A trial was first begun before Hon. Thomas Taylor, Judge of the criminal court of Cook county, on March 4, 1929. After the jury was selected and sworn and some evidence taken, the court, by reason of matters occurring in the courtroom at that time, withdrew a juror and declared a mistrial. The jury was discharged and the case was later transferred to Hon. John J. Sullivan, judge of the criminal court of Cook county, and the trial was had on November 18 and 19, 1929, resulting in the conviction of plaintiffs in error. After the jury had been chosen and sworn and some testimony taken, counsel for plaintiffs in error sought to make proof of what occurred on the hearing before Judge Taylor at the time a mistrial was declared. On objection by the state's attorney, the court excused the jury, and counsel for plaintiffs in error stated that they offered to prove that the defendants in this case were placed on trial on the same indictment; that a jury was selected and sworn to try the issues and the state examined several witnesses; and that during the cross-examination of one of them the court, without fault of any of the defendants, on motion of the state's attorney, withdrew a juror and discharged the jury from further consideration of the case. The state's attorney thereupon stated that he wished the record to show that during the trial before Judge Taylor one of the jurors was asked if he knew any one connected with the state's attorney's office, and that he said he knew George Carmichael; that after the jury was sworn and impaneled, and during the course of the trial, said George Carmichael, formerly an assistant state's attorney, entered the courtroom, approached Pericles Caloedas, one of the defendants, slapped him on the back, shook hands with him, and turned and looked at this juror and waved at him; that the court was at that time fully cognizant of what had occurred and was of the opinion that an injustice would be done to the state if the trial continued; that counsel were asked if they had any objections to a new trial and a juror being withdrawn and new trial recorded; and that counsel for defendants said he was willing to allow that. Counsel for plaintiffs in error's reply to this offer of the state's attorney declared that counsel for defendants did not consent to the withdrawal of a juror. The court ruled that as what actually occurred before Judge Taylor would be disclosed by the transcript, and if the case went up for review that matter could be reviewed at the same time, it sustained objection to the proof. Counsel for plaintiffs in error here says that the only question arising on the claim of former jeopardy is whether Judge Sullivan erred in refusing to permit proof of what happened before Judge Taylor, so that the jury might decide whether there had been former jeopardy.

It appears from the record that subsequent to the time of the hearing before Judge Taylor the cause came on again on March 27, 1929, before Hon. Otto Kerner on a plea of former jeopardy filed by each of the plaintiffs in error, to which pleas a replication was filed by the state's attorney setting out what occurred in the courtroom before Judge Taylor, and attached to that replication as an exhibit is a transcript of the proceedings before Judge Taylor, which sets out his statement that he saw George Carmichael, a lawyer and former assistant state's attorney, come into the courtroom to speak to defendant Caloedas, tap him on the shoulder and greet him, and then looked at the juror Kadaldi, who had stated he knew Carmichael, said something to him, made a salutation or motion of recognition with a touch of a smile on his face, and that the court was therefore required to withdraw a juror. No denial of this replication was filed by counsel for plaintiffs in error on the hearing before Judge Kerner on plea of former jeopardy and a motion to discharge the defendants. The motion was overruled and the plea was not sustained. Exceptions were noted and a bill of exceptions requested. Ninety days were given to prepare and file the same, but it apparently was not filed.

Counsel for plaintiffs in error here, who was not counsel in the court below, objects that the proceedings before Judge Taylor and Judge Kerner are not properly a part of the record in this case, and that he included them in the bill of exceptions and abstract only because the state's attorney refused to sign the bill of exceptions without them. The indictment and the parties in the proceedings before Judge Taylor were the same as are here and those proceedings are a part of the proceedings in this case. The rule in this state is that pleas of former jeopardy are not now proper, since under our statute the defense of former jeopardy may be made under a plea of not guilty (Hankins v. People, 106 Ill. 628), and the plea before Judge Kerner has no proper place in the record.

Counsel for plaintiffs in error argues that since a defendant is not required to file a plea of former jeopardy, but may make proof of such former jeopardy under a plea of not guilty, it was competent to prove what occurred before Judge Taylor, so that the jury before Judge Sullivan might decide whether there had been former jeopardy. Under the condition of this record former jeopardy was purely a question of law. Under the defenses of autrefois acquit, autrefois convict, and former jeopardy, where a question of identity of the crime or identity of the defendant exists it is proper to submit to the jury such questions as matters of fact. Hankins v. People, supra; People v. Corbishly, 327 Ill. 312, 158 N. E. 732;People v. Hawkinson, 324 Ill. 285, 155 N. E. 318;People v. Brady, 272 Ill. 401, 112 N. E. 126, Ann. Cas. 1918C, 540. Here, however, there is no question of the identity of the crime or of the parties. Whether the proceedings before Judge Taylor showed former jeopardy is a question of law. No question of fact is involved. Questions of law in criminal cases are for the court and not for the jury. People v. Bruner, 343 Ill. 146, 175 N. E. 400. There was therefore in this case no question of former jeopardy to go to the jury.

Counsel for plaintiffs in error argues that where a record shows that the defendant was put upon trial and the jury was sworn to try the cause, the subsequent discharge of the jury before verdict entitles the defendant to be discharged unless the record also shows a lawful reason for such discharge of the jury. This is not the rule. It has long been recognized by this court and elsewhere that a court of justice is invested with the authority to discharge a jury from giving any verdict whenever in the court's opinion there is manifest necessity for such act or the ends of public justice would otherwise be defeated, and that such is within the discretion of the trial court and is not subject to review in the absence of abuse of discretion. People v. Peplos, 340 Ill. 27, 172 N. E. 54;Dreyer v. People, 188 Ill. 40, 58 N. E. 620,59 N. E. 424,58 L. R. A. 869;United States v. Perez, 9 Wheat. 579, 6 L. Ed. 165;Simmons v. United States, 142 U. S. 148, 12 S. Ct. 171, 35 L. Ed. 968;State v. Bell, 81 N. C. 591;People v. Diamond, 231 Mich. 484, 204 N. W. 105; 8 R. C. L. p. 156. The fact that a juror was withdrawn and a mistrial declared is not of itself sufficient to indicate jeopardy, since a court of review will not presume an abuse of discretion on the part of the trial court. Therefore the proof offered by plaintiffs in error before Judge Sullivan was not sufficient to show former jeopardy had such proof been made, and for that further reason it was not error to deny the offer.

It seems equally clear that had plaintif...