Baits v. People
Decision Date | 20 January 1888 |
Citation | 16 N.E. 483,123 Ill. 428 |
Parties | BAITS v. PEOPLE. |
Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to the circuit court, Fayette county; J. J. PHILLIPS, Judge.
F. M. Guinn, for plaintiff in error.
J. M. Albert, for defendant in error.
This was an indictment under paragraphs 73, 74, § 46, Crim. Code, (Starr & C. St. 769.) The punishment provided for a violation of paragraph 73 is imprisonment in the penitentiary not exceeding three years, or a fine not exceeding $1,000. Under paragraph 74 the punishment provided when a person is convicted is a fine of not less than $100, and not more than $5,000, and imprisonment either in the penitentiary or county jail for a period not exceeding two years. Sections 5, 6, c. 38, Crim. Code, (Starr & C. St. 829,) provide: ‘A felony is an offense punishable with death or by imprisonment in the penitentiary.’ ‘Every other offense is a misdemeanor.’ This statute was before us in Lamkin v. People, 94 Ill. 501, and we there held that when the offense may be punished by imprisonment in the penitentiary or by fine only, in the discretion of the court or jury, it is only a misdemeanor. Here the plaintiff in error sued out the writ of error directly from this court to the circuit court, and the defendant having been convicted of a misdemeanor, the question is raised whether this court has jurisdiction. Section 88 of the practice act is conclusive of the question. That act declares appeals from and writs of error to circuit courts, the superior court of Cook county, the criminal court of Cook county, county courts and city courts, in all criminal cases below the grade of felony, shall be taken directly to the appellate court. The offense charged in the indictment, of which the defendant was convicted,being a misdemeanor, he could not sue but a writ of error in this court, but, under the plain reading of the statute, he was bound to go to the appellate court. The writ of error will be dismissed. Leave will be given plaintiff in error to withdraw record, abstracts, and briefs, to be used in appellate court, if he desires.
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...penalty of imprisonment other than in the penitentiary rendered the offense a misdemeanor. (Lamkin v. People, 94 Ill. 501; Baits v. People, 123 Ill. 428, 16 N.E. 483; People v. Stavrakas, 335 Ill. 570, 582, 167 N.E. 852.) Since no substantial difference exists between the definition of 'fel......
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