People v. Lieber

• Citation: 357 Ill. 423,192 N.E. 331
• Decision Date: 03 October 1934
• Docket Number: No. 22086.,22086.
• Parties: PEOPLE v. LIEBER.
• Court: Illinois Supreme Court

357 Ill. 423
192 N.E. 331

PEOPLE
v.
LIEBER.

No. 22086.

Supreme Court of Illinois.

June 20, 1934.
As Modified on Denial of Rehearing Oct. 3, 1934.

Error to Criminal Court, Cook County; D. J. Normoyle, Judge.

Jack Lieber was convicted of robbery with a gun, and he brings error.

Affirmed.

JONES, C. J., and FARTHING and SHAW, JJ., dissenting in part.

[357 Ill. 424]

[192 N.E. 332]

Barratt O'Hara and Thomas Lindskog, both of Chicago, for plaintiff in error.

Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson, Grenville Beardsley, J. Albert Woll, and Henry E. Seyfarth, all of Chicago, of counsel), for the People.

John D. Black, Willard L. King, Richard Yates Hoffman, Ernest S. Ballard, and J. F. Dammann, all of Chicago (Robert W. Millar, of Chicago, of counsel), for Chicago Bar Ass'n, amicus curiae.

[357 Ill. 425]William McKinley and Paul E. Price, both of Chicago, also amici curiae.

ORR, Justice.

Jack Lieber was indicted, tried, and convicted in the criminal court of Cook county for robbery with a gun and sentenced to the penitentiary. By this writ of error he seeks a review and reversal of that judgment.

An opinion was adopted at the last February term of this court reversing the judgment, but at the April term a rehearing was allowed in order that the case might receive our further consideration upon additional briefs then requested to be filed. No question is raised as to Lieber's guilt or innocence or as to the admissibility of evidence or the instructions of the trial court. The sole issue

[192 N.E. 333]

is whether the trial judge erred in refusing to quash the indictment, because, as alleged, it was found by a grand jury not legally constituted.

After his arraignment Lieber pleaded not guilty, but on his motion leave was granted to withdraw this plea and to file a written motion to quash the indictment. On the hearing of this motion to quash, Lieber produced oral and documentary evidence and identified the records of the criminal court with reference to the selection of the grand jury. Several certified exhibits were introduced: (1) A copy of the order directing the clerk to repair to the jury commissioners' office and draw sixty names of persons to appear as grand jurors for the July term, 1933; (2) a copy of the jury commissioners' sheets containing the sixty names and certificate of the commissioners; (3) a copy of the venire directed to the sheriff commanding him to summon the sixty persons so drawn; (4) a photostatic copy of the original return of the sheriff showing purported service by mailing to fifty-six persons and that three were not found and one was dead.

[357 Ill. 426]The notations ‘Accepted,’ ‘Excused,’ and ‘Not found’ were affixed to the original return by the clerk. Twenty-five of the fifty-six summoned jurors were excused before the beginning of the term. When or by whom they were excused is not disclosed, but in any event they do not appear to have been excused by lot or in open court. During the interrogation of the thirty-one remaining grand jurors present six more were excused by the chief justice, who then ordered the first twenty-three persons who had not asked to be excused to take their places in the jury box. He next directed the clerk to place cards containing their names in a hat and add the name of one of the remaining jurors who had not been excused. Out of these twenty-four cards in the hat twenty-three were drawn containing names of those accepted and sworn as grand jurors for the term. This, in substance, is the evidence upon which the trial court based its ruling in refusing to quash the indictment.

The first Constitution of this state, adopted in 1818, did not mention the grand jury specifically but did recognize its existence by providing in section 10 of article 8 that no person should for any indictable offense be proceeded against criminally by information, with certain exceptions. The Constitution of 1848 mentioned the grand jury by name but made no substantial change in the constitutional provision, and by section 10 of article 13 provided that no person should be held to answer for a criminal offense unless on the presentment or indictment of a grand jury, with certain exceptions not material here. In the Constitution of 1870 we find the corresponding provision in section 8 of the Bill of Rights (article 2) providing: ‘No person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary: * * * Provided, that the grand jury may be abolished by law in all cases.’ Neither the [357 Ill. 427]Constitution of 1848 nor 1870 defined the grand jury, but it was an institution well known to the common law of England. There, with few exceptions, at least twelve but not more than twenty-three men were sworn for duty, although more than twenty-three were frequently summoned for grand jury service. 4 Blackstone's Com. 302; 1 Chitty on Crim. Law, 310. Outside of its historical interest, however, the common law grand jury no longer has any legal significance in this State, as the legislature has passed certain statutes governing the subject matter and changing the common law rule.

In the exercise of authority delegated to it by the Constitution of 1870 the Legislature of this state has enacted two separate statutes relating to grand juries. These two statutes-the Jurors Act of 1874 and the Jury Commissioners Act of 1897, with their amendments in force prior to July 1, 1933-are both involved in this case (Smith-Hurd Rev. St. 1933, c. 78, § 1 et seq.; c. 78, § 24 et seq.). Prior to the enactment of the Jury Commissioners Act the Jurors Act governed the selection of grand and petit juries throughout the state. The Jury Commissioners Act relates only to the manner of preparing, drawing and certifying lists of petit and grand jurors in counties of over 250,000 population-which at present means only Cook county. But, as its provisions disclose, the Jury Commissioners Act (Smith-Hurd Rev. St. 1933, c. 78, § 24 et seq.), while not amendatory of the Jurors Act (Smith-Hurd Rev. St. 1933, c. 78, § 1 et seq.), must be regarded simply as supplemental legislation in no wise affecting the many general provisions of the Jurors Act. The necessary interrelation of these two statutes as to Cook county grand juries selected between July 1, 1897, and January 1, 1934, must be kept in mind to avoid the false inference that the Jury Commissioners Act was itself of such wide import as to entirely supersede the provisions of the Jurors Act in Cook county. The Jury Commissioners Act has no such broad scope, as an examination of its ten unrepealed sections

[192 N.E. 334]

will clearly disclose. On the other hand, the Jurors Act is comprehensive, in that its twenty-five sections provide [357 Ill. 428]complete legislation as to the number, duties, powers, qualifications, and manner of selection of grand jurors throughout the state. Its provisions, except as to the manner of preparing jury lists and drawing and certifying the same, apply equally and essentially to the courts in all of the counties of this state, including Cook county. For example, section 2 of the Jurors Act (Smith-Hurd Rev. St. 1933, c. 78, § 2) prescribes certain legal qualifications for ‘jurors in all counties in Illinois'; section 4 of the act (chapter 78, § 4) names certain persons who ‘shall be exempt from serving as jurors'; section 15 (chapter 78, § 15) provides a fine against any person failing to attend when lawfully summoned as a grand or petit juror; section 17 (chapter 78, § 17) provides for the appointment of a grand jury foreman and permits twelve grand jurors to return a true bill; section 18 (chapter 78, § 18) contains the oaths to be taken by the foreman and other members of the grand jury, and section 19 (chapter 78, § 19) prescribes the manner of making presentments and authorizes the issuance of a special venire for a grand jury. In addition to these important provisions it is also significant that in three separate sections of the Jurors Act (sections 9, 16, and 19 [chapter 78, §§ 9, 16, 19]) the Legislature has designated twenty-three as the full panel or maximum number of persons who shall be selected, certified, and summoned to constitute a grand jury. These sections are hereafter commented upon and are only mentioned here, in connection with the other above-described sections of the Jurors Act, to show which of its numerous provisions must be resorted to in Cook county for a complete administration of the law relating to the selection of grand jurors, because no similar or contrary directions are to be found anywhere in the Jury Commissioners Act. It is therefore obvious that the Legislature intended the Jurors Act to control the number of grand jurors, together with their qualifications, powers, duties, exemptions, penalties for failure to appear, appointment of foreman, oaths, number required to return indictment, presentment of evidence, and manner of ordering special venires, all of which provisions apply [357 Ill. 429]equally to Cook county and every other county in this state. If the Legislature had intended that the requirements for grand jurors in these respects should be different in Cook county from the remainder of the state, it would have been a simple matter for it to have made such provision in the Jury Commissioners Act.

It is argued by the people that the question of the number to be summoned for grand jury service is shrouded in doubt and therefore left to the discretion of the chief justice of the criminal court, since the statute does not expressly prohibit the drawing and summoning of more than twenty-three grand jurors. They seek, also, to justify the practice of summoning more than twenty-three for grand jury service on the theory of contemporaneous construction, because that practice has existed in Cook county for at...