Brooks v. People of State
| Decision Date | 31 January 1878 |
| Citation | 1878 WL 9875,88 Ill. 327 |
| Parties | FRANKLIN BROOKS et al.v.THE PEOPLE OF THE STATE OF ILLINOIS. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Criminal Court of Cook county; the Hon. HENRY BOOTH, Judge, presiding.
Mr. JACOB NEWMAN, and Messrs. MUNN, INGHAM & POPE, for the plaintiffs in error.
Mr. JAMES K. EDSALL, Attorney General, for the People.
On the 14th day of March, 1877, Franklin Brooks and James Rosso were committed to the common jail of Cook county, under a mittimus issued by a justice of the peace, to await the action of the grand jury, charged with the commission of an abortion upon the body of one Carrie Raymond.
At the March term, 1877, of the Criminal Court of that county, an indictment was returned against them, consisting of four counts, of which three were quashed upon motion of the defendants, and to the fourth a nolle prosequi was entered by the State's attorney. A new indictment was thereafter found, and returned by the grand jury at the April term. Both indictments were based upon identically the same supposed criminal matter. Neither of the defendants had been admitted to bail, nor discharged from custody, nor tried, and the delay of a trial had not happened on their application. At the July term, on the 5th day of July, 1877, the defendants moved to be set at liberty. Upon the hearing of the motion, the above facts were admitted.
The same motion was repeated, with an admission of the same facts, when the case was called for trial, and before the jury was impaneled, at the same July term, on August 2, 1877. Both motions were overruled by the court. The defendants, upon trial had, commencing August 2, 1877, were, at the said July term, convicted, and sentenced to imprisonment in the penitentiary, one for the term of six, and the other for two years. Motions for a new trial, and in arrest of judgment, were made and overruled. Exception was duly taken to the overruling of each of the motions.
The defendants bring the record here by writ of error. The sole question presented upon the record is as to the right of the defendants to be set at liberty at the time of the making of the motions for that purpose, and their immunity from further prosecution under the indictment in this case.
The motions were based upon section 438 of the Criminal Code, Rev. Stat. 1874, p. 411, which provides:
There can be no question that the defendants were entitled to be set at liberty upon their motion, if the time of making their motion was at the fourth term. The words of the statute are unambiguous and imperative, that if not tried at or before the second term, the prisoner “shall be set at liberty,” unless, for cause shown, the court continue the cause to the third term. But, beyond the third term, the statute does not allow, under the circumstances here, the holding in imprisonment of one for trial upon a charge of crime. A question of construction might arise as to what is to be regarded as the first term in the computation, whether the term during which the commitment is made, and the indictment is found, is to be included or excluded in the computation. This indictment being found at the April term, if that term is to be excluded the July term would be but the third term, the terms of the Criminal Court of Cook county being monthly. But in the circumstances of the present case we can have no doubt that the April term must be viewed as, at least, the first term, and so making the July term the fourth term. The commitment and the return of the first indictment in the case were at the March term, and although that indictment was nol. pros'd, and a second indictment found at the April term, there was no discharge of defendants from their imprisonment, but they were held continuously in custody for this same supposed criminal offense from the time of their commitment for the same, on the 14th day of March, in the March term, to the time of the motions for their discharge and of their sentence; and, as affecting the present question, it must be regarded as if there had been no dismissal of the first indictment, or as if the present indictment had been found at the March term.
Any other construction would open a way for the complete evasion of the statute, as the prosecuting officer, upon the arrival of a second or third term, would have only to enter a nolle prosequi to the indictment, have the defendants held in custody until another indictment could be found, and thus nullify the provision of the statute.
The motion of the defendants, then, made at the July term, the fourth term, to be set at liberty, should have been granted, and had it been, the judgment in this case could not have been pronounced against the defendants, as they would not have been present in court. The punishment for the offense is imprisonment in the penitentiary, and, although the court may assess a fine, it can not award any corporal punishment against a defendant, unless he be actually present in the court. 1 Chitty's Crim. Law, 696, marg. 1; Bishop's Crim. Procedure, § 275; People v. Winchell, 7 Cow. 525; Son v. The People, 12 Wend. 344; State v. Able, 65 Mo.
The judgment is reversed and the cause remanded.
Judgment reversed.
It appears, from the admitted facts, defendants were indicted at the March term of court, 1877, with one Smith Whittier, for the crime of producing an abortion and miscarriage on the body of Carrie Raymond. That indictment, on motion of defendants, was adjudged to be insufficient, and all but one count were quashed, and as to that, a nolle prosequi was entered. At the succeeding April term of court, defendants were...
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