People ex rel. Barrett v. Sbarbaro

• Decision Date: 11 May 1944
• Docket Number: Nos. 27614,27625.,s. 27614
• Citation: 54 N.E.2d 559,386 Ill. 581
• Parties: PEOPLE ex rel. BARRETT et al. v. SBARBARO, Judge, et al.
• Court: Illinois Supreme Court

386 Ill. 581

54 N.E.2d 559

PEOPLE ex rel. BARRETT et al.

v.SBARBARO, Judge, et al.

Nos. 27614, 27625.

Supreme Court of Illinois.

March 21, 1944.

Petition for Rehearing Stricken May 11, 1944.

Original proceeding by the People, on the relation of George F. Barrett and others, against John A. Sbarbaro, as Judge of the Criminal Court of Cook County, and another, for writs of mandamus to compel the respondents to expunge from records of Criminal Court of Cook County orders entered in two habeas corpus proceedings discharging William Mohlman and Orrin Luster.

Writs awarded.

GUNN, J., dissenting.George F. Barrett, Atty. Gen., and Thomas J. Courtney, State's Atty., of Chicago (William C. Wines, Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, James V. Cunningham, and George McMahon, all of Chicago, of counsel), for petitioners.

Richard H. Devine, of Chicago (Ode L. Rankin, of Chicago, of counsel), for respondents.

SMITH, Chief Justice.

In cause No. 27614, a petition for writ of mandamus was filed in this court, by the Attorney General and the State's Attorney of Cook county, as relators, against John A. Sbarbaro, as judge of the criminal court of Cook county, respondent. Thereafter, a like petition by the same relators and against the same respondent was filed in cause No. 27625. The case have been consolidated by an order of this court. The issues are presented on the pleadings, as questions of law.

From the record in cause No. 27614, it appears that on October 19, 1941, William Mohlman, upon a trial before the court without a jury in the criminal court of Cook county, was found guilty of the crime of larceny as charged in two separate indictments. At the same time he was found guilty of the crime of robbery, as charged in another indictment. The court entered a separate judgment in each case. Mohlman was sentenced to the penitentiary in each case, the sentences to run concurrently.

From the record in cause No. 27625, it appears that Orrin Luster, on December 2, 1941, on his pleas of guilty, was sentenced to the penitentiary for the crime of larceny, in five separate cases, by the criminal court of Cook county. It was specified in each of the judgments that the sentences were to run concurrently.

All of the judgments here involved were entered prior to the decision in People v. Montana, 380 Ill. 596, 44 N.E.2d 569, holding the 1941 amendment to the Parole Act invalid. Ill.Rev.Stat.1941, chap. 38, par. 801, et seq. No proceedings were taken by the defendants to review the judgments entered against them. They were delivered to the warden of the penitentiary in due course under mittimuses issued in accordance with the judgments. Thereafter, in May, 1943, a petition for a writ of habeas corpus was filed by Luster. A like petition was filed on behalf of Mohlman. The petitions were filed in the criminal court of Cook county. Upon a hearing, respondent Sbarbaro entered an order in each case, discharging the prisoner. The petitions in this case were thereafter filed in this court. The prayer of each petition is that a writ of mandamus issue to compel respondents Sbarbaro and the criminal court of Cook county to expunge said orders of discharge from the records of said court.

Relators here contend that, although the judgments each contained a recommendation of the maximum and minimum term to be served, in accordance with the invalid amendment of 1941, nevertheless the judgments were valid; that such judgments constituted lawful sentences under the indeterminate sentence provision of the Parole Act and were not affected by inserting therein the recommendation under said invalid amendment; that the recommendation, as to the maximum and minimum term of imprisonment, was void and ineffective; that such recommendation should be sholly disregarded and the judgments sustained as judgments under the Parole Act for the maximum term provided by law for the offenses of which the defendants were convicted. We held in the Montana case that the entire amendment of 1941 of the Parole Act was invalid, leaving that act in force as it existed prior to said amendment.

On the other hand, respondent contends first, the sections 2 and 3 of the Parole Act, as amended in 1941, are valid; that said sections were unaffected by the other sections of the amendment, which are conceded to have been properly held invalid in the Montana case. It is argued by respondent that the Montana case should be overruled in so far as it held sections 2 and 3 of the 1941 amendment invalid. It is said that if sections 2 and 3 of the 1941 amendment be held valid, then the recommendations contained in the judgments were also valid; that Luster and Mohlman were each sentenced to a maximum term of eighteen months' imprisonment; that the terms of imprisonment had expired and they were entitled to discharge, under section 22 of the Habeas Corpus Act. Ill.Rev.Stat.1943, chap. 65, par. 22.

Respondent's second contention is that even though the entire 1941 amendment was invalid, as held in the Montana case, still, there having been no proceedings to review said judgments, the recommendations are a part of the judgments; that even though the unauthorized recommendations as to the maximum and minimum term to be served, were included in the judgments under the authority of the invalid amendment, nevertheless the judgments were not questioned by anyone, and are lawful judgments and sentences for the maximum term of eighteen months; that this term had expired and the prisoners were entitled to be discharged.

Section 22 of the Habeas Corpus Act, Ill.Rev.Stat.1943, chap. 65, par. 22, prescribes the causes for which a court may discharge a prisoner on habeas corpus where, as in this case, the prisoner is held on the process of a court. That section provides that where the prisoner is in custody by virtue of process of any legally constituted court, he can be discharged only for the reasons enumerated in said section. Said causes are there set out in seven numbered subparagraphs. Subparagraph 1 authorizes such discharge where the court imposing the sentence has exceeded its jurisdiction. The power of the criminal court of Cook county to enter judgment sentencing a defendant convicted of a felony, to the penitentiary, is not here questioned. Subparagraph 2 authorizes the discharge where the original imprisonment was lawful but where some subsequent event has occurred which entitles the prisoner to discharge. The remaining causes there named are immaterial here. The last sentence of that section is as follows: ‘No court or judge, on the return of a habeas corpus, shall, in any other matter, inquire into the legality or justice of a judgment or decree of a court legally constituted.’ The legality of the original imprisonment not being challenged, the inquiry is limited to the question of whether the maximum term for which the defendants were sentenced has expired.

By the petition for the writ of habeas corpus in the Luster case he alleged that he was sentenced to the penitentiary for a maximum term of eighteen months, in five separate cases, for larceny. All of said sentences were to run concurrently. He further alleged that he had served the maximum term of eighteen months. The return of the warden shows that the criminal court in each case imposed a sentence ‘pursuant to the provisions of the statutes under which each of such indictments, respectively, were found, of imprisonment in the Illinois State Penitentiary for a period of not less than one nor more than ten years. In each of such judgments the court made and pronounced recommendation that the relator be imprisoned for not less than one year nor more than eighteen months.’ The return denied the allegation in the petition that the sentence had been served. No traverse or denial of any fact stated in the return was filed. The cause was submitted to respondent on the petition and return.

In the Mohlman case it was alleged in the petition for habeas corpus that the imprisonment of Mohlman was illegal and unlawful for the reason that he pleaded not guilty to the charges in the three indictments and waived trial by jury; that he was tried and found guilty by the court; that he was sentenced by the court to imprisonment, under two of said indictments, for terms of one to ten years, for the crime of larceny; that he was sentenced under the third indictment for a term of one to twenty years, for robbery. It is further alleged that, after hearing evidence in mitigation, the trial judge ‘did recommend in passing sentence, that Relator's imprisonment extend for not less than one year nor more than eighteen months, and such recommendation was spread upon the records of the court and incorporated in the writ of mittimus as the sentence under the purported authority of which Relator is now restrained of his liberty.’ It was then alleged that he had already served more than eighteen months and was entitled to be discharged. From the record in his case it appears that the judgments entered were as follows: ‘said Defendant William Mohlman be taken from the bar of the Court to the Common Jail of Cook County, and from thence by the Sheriff of Cook County to the Illinois State Penitentiary, and be delivered to the Department of Public Welfare and the said Department of Public Welfare is hereby required and commanded to take the body of the said Defendant William Mohlman and confine him in said Penitentiary according to law, from and after the delivery thereof, until discharged according to law, provided such term of imprisonment in said Penitentiary shall not be less than one year nor more than ten years, for the crime for which the said Defendant was convicted and sentenced. And the Court having heard evidence, Judge Julius H. Miner, hereby advises and recommends that the minimum limit or the duration of such imprisonment shall be one (1) year and that the maximum limit or duration of such imprisonment shall be eighteen (...