Glenn v. People

• Decision Date: 25 September 1956
• Docket Number: No. 34025,34025
• Parties: Herbert GLENN, Appellant, v. The PEOPLE of the State of Illinois, Appellee.
• Court: Illinois Supreme Court

Page 336

137 N.E.2d 336

9 Ill.2d 335

Herbert GLENN, Appellant, v. The PEOPLE of the State of Illinois, Appellee.

No. 34025.

Supreme Court of Illinois.

Sept. 25, 1956.

Moore, Ming & Leighton, Chicago (George N. Leighton, Chicago, of counsel), for appellant.

Latham Castle, Atty. Gen., and John Gutknecht, State's Atty., Chicago (Fred G. Leach, Decatur, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, William L. Carlin, and David C. Lee, Chicago, of counsel), for the People.

DAVIS, Justice.

On November 20, 1952, Herbert Glenn, hereinafter called appellant, was found guilty in the criminal court of Cook County under an indictment charging him with the crime against nature, and was sentenced to serve a term of five to twenty years in the Illinois State Penitentiary. The court appointed counsel on his behalf and he waived jury trial, entered a plea of not guilty, and was tried before the court. On January 27, 1956, he filed, in the original criminal case, a motion in the nature of a writ of error coram nobis under section 72 of the Civil Practice Act (Ill.Rev.Stat.1955, chap. 110, par. 72) asking that the judgment of conviction be vacated on the ground that he was insane at the time of the commission of the alleged offense and therefore incapable of committing any crime against the laws of the State of Illinois. (Ill.Rev.Stat.1955, chap. 38, par. 592.) The People moved to dismiss the motion upon the grounds hereinafter considered. The motion to dismiss was sustained by order of the court entered on January 27, 1956. On February 3, 1956, appellant filed a motion to vacate the order of January 27 on the ground that the court, in entering that order, had misinterpreted and misapplied the applicable provisions of the Criminal Code, and that the effect of the order was to deny full faith and credit to the judgment of a sister State, contrary to the provisions of the constitutions of the United States and the State of Illinois. The question of the competency of court appointed counsel is not raised in this proceeding.

On February 15, 1956, the court, after hearing, entered an order denying the motion to vacate. Appellant appealed directly to this court from both orders, on the ground that a constitutional question is involved. People v. Humphreys, 353 Ill. 340, 187 N.E. 446; People v. McGurn, 341 Ill. 632, 173 N.E. 754. He further contended that under the decisions of this court, his motion, filed in the criminal action involving a crime above the grade of a misdemeanor, which under our former practice was in the nature of a writ of error, continued the identity of the cause as a criminal case, and that the orders entered therein are directly reviewable. We are in accord with appellant's contention in this respect. People v. Quidd, 409 Ill. 137, 98 N.E.2d 752; Schroers v. People, 399 Ill. 428, 78 N.E.2d 219. However, we must observe that the proceedings under the petition or motion are not a continuation of the original proceeding. Ill.Rev.Stat.1955, chap. 110, par. 72(2).

The record here presented for our consideration, consisting of the common-law record in the original criminal proceeding motions filed, and orders entered in the later proceeding under section 72 of the Civil Practice Act, is inadequate in many respects.

The motion to vacate the judgment of conviction alleged that appellant was arrested in the city of Chicago on September 30, 1951, and later indicted for the crime against nature allegedly committed on that date upon the person of Cecil Powell, a member of the male sex; that the complaining witness was the mother of Cecil Powell; that on October 31, 1951, the Public Defender was appointed to represent appellant and a Behavior Clinic examination was ordered; that on November 9, 1951, a jury found appellant insane and an order was entered committing the appellant to the Illinois Security Hospital, which provided among other things that upon a future finding of sanity appellant was to be returned to Cook County to stand trial under the indictment which was then stricken with leave to reinstate; that appellant was brought back for trial, and on September 30, 1952, the criminal case was reinstated and a Behavior Clinic report again ordered; that the cause was thereafter continued, and that on November 20, 1952, a jury was empaneled to determine the sanity of appellant; that the jury returned a verdict finding appellant to be sane, after which, on the same date, appellant was arraigned, entered a plea of not guilty and waived jury trial; that a trial was then held before the court resulting in the finding of guilty and sentence; that on and prior to September 30, 1951 (the date of the alleged offense), and at all times during the proceedings in the criminal cause, appellant was insane; that appellant had been adjudicated and determined to be insane by order of the superior court of the county of Spokane in the State of Washington, a court of competent jurisdiction, on October 1, 1948, as evidenced by a certified copy of the order of his commitment by that court to the Eastern State Hospital, Medical Lake, Washington, attached to the motion; that on October 5, 1950, appellant was transferred to the Veterans Administration Hospital, American Lake, Washington, from which he left about February 1, 1951; that there had been no subsequent adjudication or determination that appellant was sane up to and including the date of the alleged offense; that appellant's legal incompetency to commit a crime on September 30, 1951, was not properly brought before the court; that because of appellant's insanity the court lacked jurisdiction to enter the judgment of conviction; and that had his insanity at the time of the alleged crime been brought to the attention of the court, the court would not have entered the judgment of conviction against him.

The People urged the dismissal of the motion to vacate on the grounds that (1) appellant's motion showed on its face that it had not been filed within the time limited by section 72 of the Civil Practice Act; (2) that the matters presented by the motion were res judicata, as appellant had raised the identical issues in the criminal court under Post-Conviction Act proceedings on which he was given a full hearing on November 6, 1953; and (3) that the motion did not state a cause of action in that it showed on its face that appellant was adjudicated sane on November 20, 1952, prior to his trial, and therefore was then capable of asserting the defense of his insanity at the time of the commission of the crime, and that his failure to do so was due to his own negligence, no facts being alleged to show that he was in any way prevented from making that defense. Though the People have presented and argued the matter of the timeliness of the motion in their brief, this question was voluntarily abandoned in oral argument before the court and need not be considered. The question of res judicata apparently was not considered by the court below, formed no basis for its decision, and was not mentioned in the briefs or arguments for either party. The record is without reference to the hearing under the Post-Conviction Act, except that the People's motion contained the bare allegation that such a hearing was held. Therefore that issue is not presented here. Attention will be given only to the third contention of the People.

The purpose of a petition or motion under section 72 of the Civil Practice Act is to bring before the court rendering the judgment matters of fact not appearing in the record, which, if known to the court at the time the judgment was entered, would have prevented its rendition. People v. Quidd, 409 Ill. 137, 98 N.E.2d 752. The error of fact which the writ may be employed to correct includes such matters as the death of one of the parties pending the suit and before judgment; infancy where the party was not properly represented by a guardian; coverture, where the common law disability still exists; insanity at the time of the trial; and a valid defense which existed in the facts of the case but which, without negligence on the part of the defendant, was not made, having been prevented through duress, fraud or by excusable mistake. People v. Quidd, 409 Ill. 137, at page 140, 98 N.E.2d 752; Schroers v. People, 399 Ill. 428, at pages 434 and 435, 78 N.E.2d 219. Though section 72 of the Civil Practice Act was amended in 1955, it is not suggested that the scope or purpose of its provisions was altered so far as a petition or motion in the nature of a writ of error coram nobis is concerned. Proceedings under the present section are governed by the rules and principles heretofore announced by this court subject to statutory provisions to the contrary. The petition or motion under the statute is the filing of a new action, civil in nature, and it is necessary, as in any civil case, that the petitioner allege and prove a right to the relief sought. People v. Samman, 408 Ill. 549, 97 N.E.2d 778. Where the motion fails to state a cause of action or shows on its face that the petitioner is not entitled to the relief sought, it is subject to a motion to dismiss. Thompson v. People, 398 Ill. 366, 75 N.E.2d 767. A motion to dismiss a motion in the nature of a writ of error coram nobis admits the facts well pleaded just as in any civil case. Schroers v. People, 399 Ill. 428, 78 N.E.2d 219.

The admitted facts are that appellant was adjudged insane by order of the superior court of Spokane County in the State of Washington on October 1, 1948, and committed to a mental institution in that State; that there had been no subsequent adjudication of his sanity up to and including the date of the alleged offense on September 30, 1951; that on November 9, 1951, a hearing was had before a jury on the question of his sanity and the jury found he was then insane, after which he was committed to the Illinois Security Hospital; that on November 20, 1952, after his...