193 N.E.2d 806 (Ill. 1963), 37817, People v. Laws
| Date | 27 September 1963 |
| Citation | 193 N.E.2d 806,29 Ill.2d 221 |
| Docket Number | 37817. |
| Parties | The PEOPLE of the State of Illinois, Defendant in Error, v. Herbert LAWS, Plaintiff in Error. |
| Court | Illinois Supreme Court |
Page 806
Rehearing Denied Nov. 25, 1963.
Page 807
[29 Ill.2d 222] Bernard J. McDonnell and Bernard J. McDonnell, Jr., Chicago (Francis X. Riley, Chicago, of counsel), for plaintiff in error.
William G. Clark, Atty. Gen., Springfield and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach and E. Michael O'Brien, Asst. Attys. Gen., and Edward J. Hladis and Matthew J. Moran, Asst. State's Attys., of counsel), for defendant in error.
DAILY, Justice.
At the conclusion of a bench trial in the criminal court of Cook County, the defendant, Herbert Laws, was found guilty of the unlawful sale of narcotic drugs and was sentenced to the penitentiary for a term of not less than ten nor more than twelve years. He prosecutes this writ of error contending that the trial court erred, and deprived him of his constitutional rights, when it denied his motion for discharge on the ground of former jeopardy.
Pertinent facts show that defendant was indicted on November 10, 1960, and that he entered a plea of not guilty when arraigned. Subsequently, he was permitted [29 Ill.2d 223] to withdraw such plea and to file a motion to quash the indictment, but the motion was later denied. Although no further or new plea had been entered, trial was commenced on December 6, 1961, and after defendant had waived a jury the prosecution called its witnesses, presented its entire case and rested. At this stage defense counsel pointed out that the clerk's memorandum of an order entered at the start of trial incorrectly stated: 'Plea of not guilty heretofore entered,' and upon his motion, consented to by the prosecution, the record was corrected to show that no plea had been entered. Following this an assistant State's Attorney moved for a mistrial, stating 'there never was a trial at all in view of the fact no plea was entered,' and over defendant's objection a mistrial was declared. Defendant was then arraigned, his counsel agreed to accept the same list of witnesses to an oral confession, and the cause was continued.
At the time the mistrial was declared, we digress to state, it is patent that both the court and counsel were unaware of our decision in People v. Hill, 17 Ill.2d 112, 160 N.E.2d 779, filed in May, 1959, wherein we held that under circumstances comparable to those of the present case, the entry of a formal plea of not guilty was not essential to a valid judgment.
After various motions and extended hearings during which the prosecution, now fully aware of the Hill decision, unsuccessfully sought to vacate the order for a mistrial, a change of venue was granted to defendant and the case assigned to another judge. When a second trial was commenced in June, 1962, defendant filed a motion for discharge alleging that the second trial would subject him to double jeopardy and thus violate his constitutional rights, but such motion was denied, after which the trial continued to completion and resulted in conviction. The principal issue before us is the correctness of the court's ruling on the motion for discharge.
Page 808
[29 Ill.2d 224] Although advanced to us as an alternative proposition, our attention must necessarily be directed first to a contention of the People that the motion was properly denied because defendant was not in fact put in jeopardy upon the occasion of the first trial. The theory advanced is that issue must be joined before jeopardy can attach, and that issue had not been joined in the first proceeding since defendant's plea of not guilty had been withdrawn and not renewed when trial commenced....
To continue reading
Request your trial