Newlin v. People

• Decision Date: 17 April 1906
• Citation: 77 N.E. 529,221 Ill. 166
• Parties: NEWLIN v. PEOPLE.
• Court: Illinois Supreme Court

221 Ill. 166

77 N.E. 529

NEWLIN

v.PEOPLE.

Supreme Court of Illinois.

April 17, 1906.

Error to Circuit Court, Iroquois County; Frank L. Hooper, Judge.

Samuel Newlin was convicted of larceny, and he brings error. Reversed.O. H. Wylie, for plaintiff in error.

W. H. Stead, Atty. Gen., and Charles E. Woodward (John P. Pallissard, State's Atty., of counsel), for the People.

Samuel Newlin, the plaintiff in error, was on March 2, 1905, arrested and taken before a justice of the peace of Iroquois county to answer to the charge of burglary preferred against him. The hearing was continued to March 7, 1905, and Newlin, failing to give bail, was committed by said justice to the county jail of Iroquois county. On March 7, the hearing was again postponed to the following day, and Newlin was recommitted to the county jail. No further proceedings were had before the justice, but on March 7, 1905, the grand jury impaneled at the March term, 1905, of the circuit court of Iroquois county, found and returned into court an indictment against Newlin charging him with burglary and larceny. He was incarcerated in the county jail, to which he had been committed by the justice of the peace, without trial, until the November term, 1905, which commenced on November 14, 1905. In the meantime, the regular June term, 1905, of the circuit court of that county had been held.

On November 21st of the same year, another indictment was returned into court by the grand jury charging Newlin with the same offenses for which he had been indicted at the March term. On November 25th the state's attorney entered a nolle prosequi to the earlier indictment, and Newlin, after the appointment of an attorney by the court to conduct his defense, was arraigned upon the indictment last found against him. His plea was not guilty. Thereafter, on December 1, 1905, by his attorney, he made a motion to be discharged from custody for want of prosecution within the time required by law. A hearing on this motion was had before the court without a jury. Evidence was introduced which established the facts above set out, and, in addition thereto, that two of the judges of the twelfth judicial circuit, in which Iroquois county is located, were seriously ill at the opening of the March term, 1905, of said circuit court, and neither was ever thereafter able to perform official duties, and both departed this life shortly thereafter-one the Hon. Charles B. Garnsey, on March 31, 1905, and the other the Hon. Robert W. Hilscher, on June 28, 1905; that the remaining judge of said judicial circuit was the sole judge in said circuit from the last-mentioned date until July 1, 1905, when a successor was elected to fill the vacancy cause by the death of Judge Garnsey, and said remaining judge was also during the March and June terms, 1905, of said circuit court, one of the judges of the Appellate Court for the Second District; that the March term, 1905, of said circuit court was on March 7, 1905, opened by one of the judges of the fifth judicial circuit, and said March 7, and March 10, 1905, were the only days on which court was in sessionat the March term; that on the latter date an adjournment was taken to March 20th, when, no judge appearing, the term lapsed; that in vacation, after the March term, 1905, of said circuit court, an order was made by one of the judges of said court, and entered of record, dispensing with a grand jury and petit jury at the June term, 1905, of court, and the record of the last-mentioned term shows that on a number of days of that term, while the newly elected judge in the twelfth judicial circuit was presiding, court met and adjourned without transacting any business whatever. The court denied Newlin's motion to be set at liberty. A trial was had before a jury, and a verdict returned finding Newlin guilty of larceny, and fixing the value of the goods taken at $24.75. After overruling a motion for a new trial, the court rendered judgment upon the verdict, and sentenced Newlin to confinement in the penitentiary at Joliet. He has sued out a writ of error from this court to review the record of the circuit court, and assigns as error the action of the court in denying his motion to be set at liberty. Plaintiff in error contends that on account of the failure of the state to bring the case to trial at the March term, 1905, or June term 1905, his motion should have been allowed at the November term, 1905, while defendant in error urges that the incapacity of two of the judges of the twelfth judicial circuit to conduct the March term, 1905, of the circuit court of Iroquois county, and the official engagements of the third judge of that circuit which prevented his holding that term, were sufficient excuses for a failure to try Newlin at that term, and that the fact that no petit jury was summoned at the June term, 1905, was sufficient excuse for passing the case at that term.

SCOTT, J. (after stating the facts).

Section 438 of chapter 38, Hurd's Rev. St. 1903, provides: ‘Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried at some term of the court having jurisdiction of the offense commencing within four months of the date of commitment, or if there is no term commencing within that time, then at or before the first term commencing after said four months, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, or unless the court is satisfied that due exertion has been made to procure the evidence on the part of the people, and that there is reasonable grounds to believe that such evidence may be procured at the next term in which case the court may continue the case to the next term. If any such person shall have been admitted to bail for an alleged offense other than a capital offense, he...