Kerner v. Circuit Court of Sangamon Cnty.

• Decision Date: 22 December 1933
• Docket Number: No. 22061.,22061.
• Citation: 188 N.E. 408,354 Ill. 363
• Parties: PEOPLE ex rel. KERNER, Atty. Gen., v. CIRCUIT COURT OF SANGAMON COUNTY et al.
• Court: Illinois Supreme Court

354 Ill. 363

188 N.E. 408

PEOPLE ex rel. KERNER, Atty. Gen.,

v.CIRCUIT COURT OF SANGAMON COUNTY et al.

No. 22061.

Supreme Court of Illinois.

Dec. 22, 1933.

Original petition by the People, on the relation of Otto Kerner, Attorney General, for a writ of mandamus to be directed to the Circuit Court of Sangamon County and others.

Writ awarded.

Otto Kerner, Atty. Gen., and J. J. Neiger, of Springfield, for petitioner.

Herbert S. Anderson, of Charleston (Carl H. Preihs, of Pana, of counsel), for respondents.

FARTHING, Justice.

By leave granted, an original petition was filed in this court in the name of the people, on the relation of the Attorney General, for a writ of mandamus commanding Herbert S. Anderson, as presiding judge of the circuit court of Sangamon county, to expunge from the records of said court an order releasing and discharging James Michaels from the penitentiary. Judge Anderson (hereinafter called the respondent), in his official capacity and on behalf of the circuit court of Sangamon county, has filed his answer herein. The petitioner has filed a demurrer to the answer, and the cause is submitted on the questions of law raised by the demurrer.

It appears from the mandamus petition that on September 28, 1928, James Michaels was found guilty by a jury in the circuit court of Randolph county of the crime of robbery while armed with a gun, in manner and form as charged in the indictment, and that his age was found to be twenty-four years. On January 7, 1929, his motion for new trial was overruled and he was sentenced to the Southern Illinois Penitentiary, at Menard. After the conviction and sentence, he sued out a writ of error to this court, and the judgment of conviction was affirmed in People v. Michaels, 335 Ill. 590, 167 N. E. 857. The petition for the writ of habeas corpus filed by Michaels contained a copy of the mandate of this court issued when it affirmed the judgment of the circuit court of Randolph county. The respondent therefore knew that the questionsraised in the habeas corpus proceeding as to the sufficiency and validity of the judgment of the circuit court of Randolph county might have been presented to and passed upon by this court had Michaels seen fit to invoke the judgment of this court with reference thereto.

The answer filed by the respondent in this cause, to which a demurrer has been interposed, admits the filing of the petition for habeas corpus by Michaels on October 27, 1932, in the circuit court of Sangamon county, and states that reference to the opinion of this court was made by counsel and that the opinion of this court was examined and considered in passing upon the petition for habeas corpus, and that the respondent concluded that the circuit court had jurisdiction and power to pass upon matters not brought to the attention of this court by the assignment of errors in People v. Michaels, supra.

The respondent says that no transcript of the proceedings in the habeas corpus hearing was preserved and presented here and complains as to this not having been done by the relator. He also says that Michaels, according to the respondent's recollection of what then transpired, was permitted to orally traverse the return to the writ; that witnesses were sworn and that facts were brought out in their testimony which showed a ‘want of jurisdiction of the subject matter by the circuit court of Randolph county.’ In addition to this, the respondent insists that Michaels was held under an imperfect and insufficient mittimus by the warden of the Southern Illinois Penitentiary, and that by reason of these matters and things the respondent had before him matters for consideration which were not before this court when the case of People v. Michaels, supra, was here for decision.

Although the respondent says in his answer that the petition for mandamus is not correct in that it fails to mention the oral traverse, he himself omits any reference to such leave having been granted where he recites the following, which purport to be the minutes he entered at the hearing on the habeas corpus petition: ‘November 1, 1932; return filed; cause called for hearing; evidence heard: cause argued; prisoner discharged.’ Also, the order entered by the respondent as judge of the circuit court of Sangamon county is in part as follows: ‘And now this cause coming on to be heard upon the petition and return, and the court having heard the arguments of counsel and being now fully advised, grants the prayer of the petition.’

On motion of Michaels a change of venue was allowed from the circuit court of St. Clair county to the circuit court of Randolph county, and numerous errors are urged in the record made in transferring the cause.

It appeared in the proceedings in this case, in the petition for habeas corpus, and in the return, that Michaels was held by the warden under an order of commitment upon a judgment of conviction of the crime of robbery while armed, etc.; and that the judgment of conviction had been affirmed by this court. A copy of the mandate, duly certified by the clerk of this court, is shown to have been delivered to the warden, and, further, it is shown that the warden had a certified copy of the judgment of conviction in the trial court. We held in People v. Murphy, 188 Ill. 144, at page 149, 58 N. E. 984, 985: ‘The only mittimus required by the statute was a certified copy of the judgment.’ And again, in People v. Green, 281 Ill. 52, at page 61, 117 N. E. 764, 767: ‘As a matter of fact, there is no special requirement in our statute that a sheriff or other officer must be supplied with a mittimus after an order and judgment of conviction and sentence to jail have been entered by the court. * * * There is authority, at any rate, for the proposition that a prisoner who has been legally and properly sentenced to prison cannot be released from prison merely because of an imperfection in the warrant for commitment, and if the prisoner is safely in the proper custody there is no office for a mittimus to perform.’ Therefore the order of commitment was sufficient authority and justification for the detention and custody of Michaels, and the respondent did not obtain jurisdiction in the habeas corpus proceeding by any insufficiency in the mittimus.

This court has repeatedly held that where it has reviewed the record in a criminal case in the exercise of its appellate jurisdiction, whether or not the particular error sought to be made the basis of a petition for habeas corpus was assigned and considered, all questions that might have been raised are forever settled by its judgment. We have held that there is no jurisdiction in any court thereafter to entertain and pass upon such petition for the writ of habeas corpus upon any error in the record reviewed, whether error was assigned thereon or not. Unless subsequent facts and circumstances have been made the basis of the petition, when it is brought to the attention of any judge that this court has reviewed the record of conviction and has affirmed it,...