Kelley v. People.

• Decision Date: 25 January 1886
• Citation: 115 Ill. 583,4 N.E. 644,56 Am.Rep. 184
• Parties: KELLEYv.PEOPLE.
• Court: Illinois Supreme Court

115 Ill. 583

4 N.E. 644

56 Am.Rep. 184

KELLEY

v.PEOPLE.

Supreme Court of Illinois.

Filed January 25, 1886.

Error to criminal court, Cook county.

J. M. Longnecker, for plaintiff in error.

J. S. Grinnell, Prosecuting Atty., and Ges. Hunt, Atty. Gen., for the people.

SHELDON, J.

Joseph Kelley, at the January term, 1884, was tried by a jury in the criminal court of Cook county for burglary; the indictment containing a count setting forth a former conviction, at the July term, 1882, of said Kelley for robbery. He was found guilty of burglary, and the jury, under the instruction of the court, fixed his punishment at 14 years' imprisonment in the penitentiary. The court sentenced him accordingly.

Several questions are raised with respect to the act respecting conviction upon second and third offenses, approved June 23, 1883. Laws 1883, p. 76. That act in its first section is as follows:

‘That whenever any person, having been convicted of either of the crimes of burglary, grand larceny, horse-stealing, robbery, forgery, or counterfeiting, shall thereafter be convicted of any one of such crimes committed after such first conviction, the punishment shall be imprisonment in the penitentiary for the full term provided by law for such crime at the time of such last conviction therefor; and, whenever any such person having been so convicted the second time, as above provided, shall be again convicted of any of said crimes, committed after said second conviction, the punishment shall be imprisonment in the penitentiary for a period of not less than fifteen years: provided, that such former conviction or convictions and judgment or judgments shall be set forth in apt words in the in dictment.’

It is objected that the act is unconstitutional in that it violates the provision ‘that all penalties shall be proportional to the nature of the offense;’ but it is because of a former conviction, for which the person charged has paid the penalty. Similar statutes have been adopted in many of the states, and they are upon the principle that it is just that an old offender should be punished more severely for a second offense; that repetition of the offense aggravates guilt. 1 Bish. Crim. Law, 959; 1 Whart. Crimes, § 13. It would be entirely competent for the legislature, in the absence of this act, to affix, as a punishment for the first commission of any one of the crimes named, the highest punishment that is authorized by the act, and it would not be for the court to say the penalty was not proportioned to the nature of the offense.

It is urged that under this act it is putting the accused in jeopardy twice for the same offense in violation of section 10, art. 2, of the constitution. There is no trial twice for the same offense, but twice for two crimes committed at different times. The constitutional objections are without force.

It is next insisted that, under this act, the second conviction must be for the same crime the former conviction was for. We do not so read the statute. The language is most plain: that, whenever any person, having been convicted of either of the several enumerated crimes, shall thereafter be convicted of any one of such crimes, etc. It seems quite clear that the second conviction is not to be of a particular one of the crimes,-the one for which the former conviction was had,-but of any one of the crimes named. The record introduced to show a former conviction for robbery shows that the accused was indicted for robbery at the July term of court, 1882, and that he pleaded not guilty; that he waived the intervention of a jury, and was tried by the court without a jury, and found guilty by the court in manner and form as charged in the indictment,-that is to say, of robbery,-and was sentenced to the penitentiary for one year.

It is insisted that this did not show a legal conviction of robbery; that the accused in a criminal case of felony cannot waive a trial by jury and be tried, by consent, by the court, and upon a finding of guilty on such a trial be legally sentenced thereon. Conceding this to be so, and that a judgment upon such a finding would be irregular and erroneous, it does not follow that such conviction was void,-an absolute nullity,-and not to be taken here as a former conviction. There is a distinction between ‘void’ and ‘erroneous;’ and the general rule is undoubted, that where the court has jurisdiction of the subject-matter and of the person, its judgment in the case will not be void, although it may be erroneous, and that in a collateral proceeding the validity of the judgment cannot be called in question.

In the application of the rule to the precise kind of case which is here presented, what of authority we have met with is not entirely harmonious. Thus in Windsor v. McVeigh, 93 U. S. 274, in the opinion by a divided court, by way of illustration of the argument that a judgment may be void notwithstanding general jurisdiction of the subject, in citation of instances it is said: ‘So a departure from established rules of procedure will often render the judgment void; thus the sentence of a person charged with felony, upon conviction by the court without the intervention of a jury, would be invalid for any purpose;’ no authority being cited. In Com. v. Dailey, 12 Cush. 84, in substance a verdict of guilty...