Courtney v. Prystalski

• Decision Date: 05 December 1934
• Docket Number: No. 22292.,22292.
• Citation: 192 N.E. 908,358 Ill. 198
• Parties: PEOPLE et rel. COURTNEY, State's Atty., v. PRYSTALSKI, Circuit Judge.
• Court: Illinois Supreme Court

358 Ill. 198

192 N.E. 908

PEOPLE et rel. COURTNEY, State's Atty.,

v.PRYSTALSKI, Circuit Judge.

No. 22292.

Supreme Court of Illinois.

Oct. 17, 1934.

Rehearing Denied Dec. 5, 1934.

Original petition for mandamus by the People, on the relationship of Thomas J. Courtney, State's Attorney, against John Prystalski, Circuit Judge.

Writ awarded.Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson, James V. Cunningham, Walter L. McCoy, J. Albert Woll, and Henry E. Seyfarth, all of Chicago, of counsel), for petitioner.

John Owen, of Chicago, for respondent.

STONE, Justice.

This cause arises on an original petition for mandamus filed on leave of this court, seeking a writ commanding the respondent, as judge of the circuit court of Cook county and ex officio judge of the criminal court of that county, to expunge from the record of the criminal court a judgment order releasing one Hazel Renke on a writ of habeas corpus. A demurrer has been filed to the petition, and thus a question of law is presented.

The facts out of which this cause arises are as follows: On May 17, 1933, an information was filed in the municipal court of Chicago charging Hazel Renke with having unlawfully in her possession, for the purpose of administering a habit-forming drug, a certain hypodermic needle and syringe adapted for the use of habit-forming drugs by subcutaneous injection, contrary to the statute in such case made and provided. A hearing was had on this charge before the court without a jury, and she was found guilty and sentenced to the Reformatory for Women at Dwight for a term of six months. On July 18, 1933, proceedings for a writ of habeas corpus were instituted in the criminal court of Cook county before the respondent, who on hearing awarded the writ and discharged said Hazel Renke from custody. This is the judgment order sought to be expunged by the present proceeding.

Petitioner contends that the judgment discharging Hazel Renke was void because respondent was without authority or jurisdiction to enter such order, for the reason that the municipal court had jurisdiction of the subject-matter of the information against Hazel Renke, had jurisdiction of her person, and had power and jurisdiction to render the judgment entered against her. Respondent, on the other hand, contends, first, that this court has no jurisdiction of the subject-matter of the petition for mandamus because its jurisdiction in matters of habeas corpus is only concurrent with that of the criminal court, and it may not review habeas corpus by mandamus; second, because the criminal court had jurisdiction of the subject-matter and of the person of Hazel Renke, and likewise had jurisdiction to enter an order awarding the writ of habeas corpus and discharging her, and that the action of the criminal court is not reviewable by mandamus in this court. It is also argued that the petition does not show a clear and legal right to the writ.

That mandamus is the proper remedy to expunge void orders entered in habeas corpus proceedings where the court entering the order did not have jurisdiction to enter it has been definitely settled in this state. People v. Shurtleff, 355 Ill. 210, 189 N. E. 291;People v. Shurtleff, 353 Ill. 248, 187 N. E. 271;People v. Kelly, 352 Ill. 567, 186 N. E. 188;People v. La Buy, 305 Ill. 11, 136 N. E. 870. Likewise the rule was established by the cases above cited that mandamus may not be invoked except where the order sought to be expunged is void for want of jurisdiction either of the subject-matter, of the parties, or want of jurisdiction to enter the order complained of. The only question, therefore, arising in the case before us, is whether the criminal court had jurisdiction and power to enter the order. People v. Shurtleff, 355 Ill. 210, 189 N. E. 291;People v. Circuit Court, 347 Ill. 34, 179 N. E. 441;People v. Williams, 330 Ill. 150, 161 N. E. 312;People v. Siman, 284 Ill. 28, 119 N. E. 940;People v. Zimmer, 252 Ill. 9, 96 N. E. 529;People v. Superior Court, 234 Ill. 186, 84 N. E. 875,14 Ann. Cas. 753;People v. Jonas, 173 Ill. 316, 50 N. E. 1051.

The writ of habeas corpus is a high prerogative writ, and should never be exercised to discharge offenders who have been lawfully convicted and sentenced to imprisonment by other courts. People v. Eller, 323 Ill. 28, 153 N. E. 597, 49 A. L. R. 490. Jurisdiction of a court does not depend primarily upon facts alleged but on authority to determine the existence or nonexistence of such facts and to render judgment in accordance with such finding. People v. Superior Court, supra. If on the hearing of a writ of habeas corpus it develops that the court does not have jurisdiction in the particular case, any order except one dismissing the proceeding is void. People v. Shurtleff, 355 Ill. 210, 189 N. E. 291. In a habeas corpus proceeding, such as the one before us, the court hearing the petition for the writ has jurisdiction to award it only where the original judgment of conviction is void, or where something has happened since the rendition of the judgment to entitle the prisoner to a release. Respondent, as judge of the criminal court, had jurisdiction, in the first instance, to entertain the application for the writ, but, if on the hearing it appeared that the judgment of the municipal court was not void, the only order which the court had jurisdiction to make was to dismiss the petition. People v. Shurtleff, 355 Ill. 210, 189 N. E. 291.

Respondent argued that the information upon which the judgment of conviction was based failed to charge a crime under the laws of Illinois, and therefore the municipal court was without jurisdiction to enter the judgment against Hazel Renke. If the municipal court had no jurisdiction, its judgment was void, and habeas corpus is the proper remedy to obtain the discharge of the accused. People v. Whitman, 243 Ill. 471, 90 N. E. 924. This brings us to a consideration of the charge of the information and the statute under which it was laid.

Section 13 of an act entitled, ‘An act in relation to habit-forming drugs,’ etc., approved July 3, 1931 (Smith-Hurd Ann. St. c. 38, § 192m, p. 1028), provides: ‘No person except a manufacturer or a wholesale or retail dealer in surgical instruments, apothecary, physician, dentist, veterinarian, nurse or interne shall at any time have or possess a hypodermic syringe or needle or any instrument or implement adapted for the use of habit forming drugs by subcutaneous injections and which is possessed for the purpose of administering habit forming drugs unless such possession be authorized by the certificate of a physician issued within the period of one year prior thereto.’

The information charged that Hazel Renke ‘did then and there unlawfully have in her possession, for the purpose of administering a habit-forming drug, a certain hypodermic needle and syringe adapted to the use of habit-forming drugs by subcutaneous injection, contrary to the form of the statute in such case made and provided and against the peace and dignity of the people of the State of Illinois.’ Respondent contends that, to constitute the charge of an offense, it was incumbent upon the state to negative the exceptions set out in the statute. It is elementary that the offense charged must be accurately and clearly described, and it is the rule in this state that, where an act is made criminal, with exceptions embraced in the enacting clause creating the offense, so as to be descriptive of it, the people must allege and prove that the defendant is not within the exceptions so as to show that the precisecrime has been committed. In other words, where the exception is descriptive of the offense, it must be negatived in order to charge the defendant with the offense. On the other hand, if the exception, instead of being a part of the description of the offense, merely withdraws certain acts or certain persons from the operation of the statute, it need not be negatived, and its position in the act, whether in the same section or another part of the act, is of no consequence. People v. Saltis, 328 Ill. 494, 160 N. E. 86;People v. Callicott, 322 Ill. 390, 153 N....