Marzen v. People

• Court: Illinois Supreme Court
• Writing for the Court: BOGGS
• Citation: Marzen v. People, 190 Ill. 81, 60 N.E. 102 (Ill. 1901)
• Decision Date: 30 April 1901
• Parties: MARZEN v. PEOPLE.

190 Ill. 81

60 N.E. 102

MARZEN

v.PEOPLE.

Supreme Court of Illinois.

April, 1901.

Error to criminal court, Cook county; Frank Baker, Judge.

Nic Marzen was convicted of murder, and brings error. Affirmed.

William Vocke, James P. Harrold, J. R. Burres, and A. W. Marston, for plaintiff in error.

E. C. Akin, Atty. Gen. (Charles S. Deneen, State's Atty., and William M. McEwen, Asst. State's Atty., of counsel), for the People.

BOGGS, C. J.

At a former term of this court error was found in the record of the criminal court of Cook county, wherein the plaintiff in error was adjudged to be guilty of the crime of murder and sentenced to be hanged, and such judgment of conviction was reversed and the cause remanded for a new trial. Marzen v. People, 173 Ill. 43, 50 N. E. 249. The judgment of reversal was entered in this court on the 21st day of April, 1898. The mandate issued out of this court on the 16th day of August, 1898, on the application of the people, and on the 19th day of the same month the mandate was filed in said criminal court of Cook county. At the September term, 1898, of said criminal court (being the first term which convened after the filing of the mandate), the cause was reinstated on the docket of that court, and stood for trial at that term. Plaintiff in error entered his motion at said September term to be set at liberty under the provisions of section 623 of the Criminal Code. 1 Starr & C. Ann. St. 1896, p. 1406. The ground of the motion was that the plaintiff in error had not been placed on trial within the term of four months from the entry of the judgment of reversal in this court, one or more terms of said criminal court having intervened. The motion was overruled, and the plaintiff in error, upon a trial before the court and a jury, was adjudged guilty of the crime of murder and sentenced to be confined in the penitentiary for a period of 30 years. He prosecutes this writ of error to secure a reversal of said judgment of conviction.

It is first urged that the court erred in overruling the motion to set the plaintiff in error at liberty. When the first judgment of conviction was entered against plaintiff in error in the said criminal court, he was confined on this charge in the county jail of Cook county. A supersedeas was granted, and he was kept in the jail during the pendency of the writ of error in this court, and was so imprisoned when the judgment of reversal was entered, and so remained in imprisonment and was so in jail at the said September term of said criminal court, when his motion to be discharged was entered. At least three terms of said criminal court were held after the judgment of reversal in this court, and prior to the said September term of the criminal court. His insistence is that, within the meaning of said section 623 of the Criminal Code, it is to be regarded he was committed to said jail for said criminal offense on the 21st day of April, 1898, on which day the judgment of reversal was entered in this court, and that as he had not been placed on trial at some term of the criminal court commencing within four months after said date of April 21st, and had not himself, as he insisted, brought about the failure to bring his case to trial, nor had such failure resulted because of a continuance allowed to the people in order to procure evidence on the part of the prosecution, under the operation of the provisions of said section 623 he was entitled to be set at liberty, and it was error to refuse or deny his motion for that relief entered at the said September term of said court. The allowance of the writ of error to test the legality of the sentence of death pronounced against the plaintiff in error, the service of the writ, and the order making it operate as a supersedeas deprived the trial court of the power and authority to act or proceed further in the cause until the determination of the writ of error. Perteet v. People, 70 Ill. 171. The official mode of advising the trial court of the action of this court in the determination of the writ of error is the mandate to be issued out of this court for that purpose. The writ of error operated to stay all further action in the trial court,-to suspend the power of the trial court to force the plaintiff in error to trial, even after the judgment of reversal had been entered in this court, until the mandate from this court should be filed in the trial court. 13 Enc. Pl. & Prac. 837. The fact the court might lawfully have tried the plaintiff in error without a mandate if both the plaintiff in error and the people would have voluntarily submitted the cause for trial without this official evidence of the decision of this court, as we held in Perteet v. People, supra, might lawfully be done, need not be further adverted to than to say no such waiver occurred in this cause. The provisions of said section 623 could, therefore, have no application to the delay resulting from the pendency of the writ of error in this court. In the absence of the voluntary submission of the cause by the parties, the production of the mandate of this court in the trial court was necessary to authorize the trial court to proceed to a new trial of the cause. Either the plaintiff in error or the people could have procured the mandate to issue. 13 Enc. Pl. & Prac. 840. It was the act of the...