Brewster v. People

• Court: Supreme Court of Illinois
• Writing for the Court: MAGRUDER
• Citation: 183 Ill. 143,55 N.E. 640
• Decision Date: 18 December 1899
• Parties: BREWSTER et al. v. PEOPLE.

183 Ill. 143
55 N.E. 640

BREWSTER et al.
v.
PEOPLE.

Supreme Court of Illinois.

Dec. 18, 1899.

Error to criminal court, Cook county; Joseph E. Garey, Judge.

Charles L. Brewster and others were convicted of false imprisonment, and bring error. Affirmed.

Plaintiffs in error were tried in the criminal court of Cook county at the July term, 1899, upon an indictment for false imprisonment, under section 95 of the Criminal Code. Each defendant pleaded not guilty, and executed in writing a formal waiver of jury trial. The court tried the issue, and found the defendants guilty. The judgment of the court was that each defendant should pay a fine of $250 and costs, and that, in case of failure to pay the same, he should work out said fine and costs in the house of correction. Plaintiffs in error moved for a new trial, which was overruled, and exceptions were taken to the ruling of the court. They then moved in arrest of judgment, which motion was also overruled, and exceptions were also taken to such ruling of the court. This writ of error is sued out for the purpose of reviewing the judgment so entered against the plaintiffs in error.

[183 Ill. 148]Jesse E. Roberts (Roscoe L. Roberts and Thomas H. Owens, of counsel), for plaintiffs in error.

Edward C. Akin, Atty. Gen. (Charles S. Deneen, State's Atty., and Albert C. Barnes, Asst. State's Atty., of counsel), for the People.

MAGRUDER, J.

Section 95 of the Criminal Code, under which the plaintiffs in error have been indicted for false imprisonment, is as follows: ‘False imprisonment is an unlawful violation of the personal liberty of another, and consists in confinement or detention without sufficient legal authority. Any person convicted of false imprisonment shall be fined in any sum not exceeding $500.00, or imprisoned not exceeding one year in the county jail.’ 1 Starr & C. Ann. St. (2d Ed.) p. 1278. By section 5 of division 2 of the Criminal Code, a felony is defined to be ‘an offense punishable with death or by imprisonment in the penitentiary.’ By section 6 of division 2 of the Criminal Code, it is provided that, ‘every other offense is a misdemeanor.’ 1 Starr & C. Ann. St. (2d Ed.) p. 1356. As, therefore, the punishment for the offense of false imprisonment is a fine not exceeding $500, or imprisonment not exceeding one year in the county jail, the offense charged against the plaintiffs in error is a misdemeanor.

When the issue was joined by the pleading of not guilty, each of the plaintiffs in error signed a written waiver, by the terms of which he waived jury trial, and submitted the cause to the court for hearing. The record recites that the court fully advised the plaintiffs in error of their right to a trial by jury, but that they adhered to their proposition to waive said right; and that thereupon, by agreement of the state's attorney and the plaintiffs in error and their counsel, the cause was submitted to the court for trial, and the intervention of a jury was waived.

The only question presented for our consideration is whether, in this state, the accused may waive the right to a trial by jury upon an indictment for a misdemeanor, where the judgment is the imposition of a fine alone and imprisonment on failure to pay the same. In Harris v. People, 128 Ill. 585, 21 N. E. 563, it was held that, in a prosecution for a felony, when the plea of not guilty is entered, the right to a jury trial cannot be waived by the accused, so as to confer upon the court jurisdiction

[55 N.E. 641]

to try, convict, and sentence the defendant without the intervention of a jury. In that case, however, the prohibition against the right to waive a jury trial was applied only to indictments for felony, and not to cases where the offense is a mere misdemeanor. So, again, in Morgan v. People, 136 Ill. 161, 26 N. E. 651, the case of Harris v. People, supra, was referred to with approval, and we there said: ‘The record affirmatively shows, as we think, that plaintiff in error was tried for and convicted of a felony, upon his plea of not guilty, by the judge sitting as a jury. Consent of the defendant in an indictment for a felony cannot confer jurisdiction upon the judge, or dispense with a finding of the fact of guilt by a jury.’ In several cases in this state the right of the accused to waive a jury in trials for misdemeanors has been recognized as a proper practice. In Zarresseller v. People, 17 Ill. 101, which was an indictment for a misdemeanor, we said: ‘The issue was tried by the court, by agreement of the parties in open court, and this is also assigned for error. We do not doubt the right of the defendant, in cases of misdemeanor, to waive a jury, and put himself upon the court for trial. He may waive his right in this respect, and, having done so, cannot assign for error that the court tried the issue. People v. Scates, 3 Scam. 351.’ Again, in Darst v. People, 51 Ill. 286, which was an indictment for a misdemeanor, tried before the court without a jury, we said: ‘It is urged that a jury could not be waived, but we know no reason why it may not be in trials for misdemeanors.’ The two cases above referred to arose under the constitution of 1848, and before the present constitution of 1870 was adopted.

It is contended, however, by counsel for plaintiffs in error, that a jury can no more be waived in a trial upon an indictment for a misdemeanor than in a trial upon an indictment for a felony. This contention is based mainly upon sections 5 and 9 of article 2 of the constitution of 1870. Section 5 of article 2 is as follows: ‘The right of trial by jury, as heretofore enjoyed,...