People ex rel. Carlstrom v. Eller

• Citation: 153 N.E. 597,323 Ill. 28
• Decision Date: 28 October 1926
• Docket Number: No. 17538.,17538.
• Parties: PEOPLE ex rel. CARLSTROM, Atty. Gen., v. ELLER, Judge.
• Court: Supreme Court of Illinois

323 Ill. 28

153 N.E. 597

PEOPLE ex rel. CARLSTROM, Atty. Gen.,

v.ELLER, Judge.

No. 17538.

Supreme Court of Illinois.

Oct. 28, 1926.

Original petition for writ of mandamus by the People, on the relation of Oscar E. Carlstrom, Attorney General, against Emanuel Eller, Judge.

Writ denied.Oscar E. Carlstrom, Atty. Gen. (Allan T. Gilbert, of Chicago, of counsel), for petitioner.

Urion, Drucker, Reichmann & Boutell and John G. Riordan, all of Chicago, for intervening petitioner.

Schuyler, Ettelson & Weinfeld, of Chicago, for respondent.

HEARD, J.

Upon leave of this court first had and obtained, an original petition was filed herein in the name of the people of the state of Illinois, on the relation of Oscar E. Carlstrom, Attorney General of the state, praying for the issuance of a writ of mandamus to compel Emanuel Eller, one of the judges of the superior court of Cook county and ex officio one of the judges of the criminal court of that county, to expunge from the records of the criminal court an order releasing and discharging Arthur Lorenz from the house of correction of the city of Chicago. The respondent demurred to the petition, and the cause has been argued and submitted on the issue of law raised by the demurrer.

The material facts stated in the petition and admitted by the demurrer to be true are that Arthur Lorenz was indicted, tried, and convicted in the criminal court of Cook county of the crime of libel and sentenced to six months at labor in the house of correction of the city of Chicago and to pay a fine of one dollar and costs. By successive writs of error this judgment of conviction was reviewed by the Appellate Court for the First District and by this court and affirmed in People v. Spielman, 318 Ill. 482, 149 N. E. 466, and thereafter Lorenz's petition for a rehearing was denied by this court. The mandate of this court affirming the judgment was duly filed in the criminal court of Cook county. Thereafter Lorenz paid the fine and costs, and having been taken into custody by the sheriff of Cook county upon a warrant of commitment upon the judgment of conviction, Lorenz presented a petition for a writ of habeas corpus to the respondent, who after a hearing entered an order discharging Lorenz from the judgment of imprisonment, which order is the one which we are now asked to expunge.

Where a judge of the circuit or criminal court has entered a void order setting aside a judgment of conviction, or has declared void a judgment which is legal, and released a petitioner from custody in a habeas corpus proceeding, mandamus to compel the court to expunge the void order is the proper remedy. People v. Green, 281 Ill. 52, 117 N. E. 764;People v. Fisher, 303 Ill. 430, 135 N. E. 751.

Circuit and superior courts, and the judges thereof, have concurrent jurisdiction with this court in habeas corpus proceedings. When, however, this court, in the exercise of its appellate jurisdiction, has determined a question, either of law or of fact, the matter is ended so far as the circuit or superior court, and the judge thereof, is concerned, and such court may not, by reason of its concurrent jurisdiction in habeas corpus, overrule or review such decision of this court. When a judgment is affirmed by this court all questions raised by the assignments of error, and all questions that might have been so raised, are to be regarded as finally adjudicated against the appellant or plaintiff in error, and the judgment must be regarded as free from all error. Gould v. Sternberg, 128 Ill. 510, 21 N. E. 628,15 Am. St. Rep. 138;Trustees of Schools v. Hoyt, 318 Ill. 60, 148 N. E. 867. When this court affirmed the judgment of the criminal court convicting Lorenz of the crime of libel, this was an adjudication that the judgment of conviction was valid, even though such question was not raised by the assignments of error, and the record contained defects not discovered by him until after the judgment had been affirmed, and his petition for rehearing denied. People v. Superior Court, 234 Ill. 186, 84 N. E. 875,14 Ann. Cas. 753.

A writ of habeas corpus does not operate as a writ of error, and cannot be used to review a judgment entered by a court which had jurisdiction of the person and subject-matter of the suit wherein the judgment was rendered. In People v. Zimmer, 252 Ill. 9, 96 N. E. 529, this court said:

‘The writ of habeas corpus is a high prerogative writ, and when properly issued supersedes all other writs, and by reason of that fact it should be confined to its legitimate office; otherwise, an ignorant, reckless, or partisan judge, by usurpation, may through the writ work a great wrong to society and the state, by discharging offenders who have been lawfully convicted and sentenced to imprisonment by other courts while legally exercising co-ordinate jurisdiction with the court granting such discharge. It has never been the office of the writ of habeas corpus to operate as a writ of review, and we take it that no well-considered case can be found where it has been held that the writ may properly be used to review the judgment of a court, where the judgment sought to be reviewed had been rendered by a court which had jurisdiction of the person and subject-matter of the suit in which the judgment had been rendered.’

The criminal court, which pronounced the sentence in question, had jurisdiction of the person of Lorenz and of the subject-matter of the suit, and while the statutory penalty for the crime of libel is fine or imprisonment, and not both, and it was error to inflict both punishments, yet the judgment was not void, but was a valid judgment of conviction for the crime of libel, and respo...