People ex rel. Carlstrom v. Shurtleff

• Decision Date: 14 February 1934
• Docket Number: No. 21708.,21708.
• Citation: 355 Ill. 210,189 N.E. 291
• Parties: PEOPLE ex rel. CARLSTROM, Atty. Gen., et al. v. SHURTLEFF.
• Court: Illinois Supreme Court

355 Ill. 210

189 N.E. 291

PEOPLE ex rel. CARLSTROM, Atty. Gen., et al.

v.SHURTLEFF.

No. 21708.

Supreme Court of Illinois.

Dec. 22, 1933.

As Modified on Denial of Rehearing Feb. 14, 1934.

Original proceeding in mandamus by the People, on the relation of Oscar E. Carlstrom, Attorney General, and another, for a writ of mandamus prayed to be directed to Edward D. Shurtleff, Judge of the Circuit Court of McHenry county.

Writ of mandamus awarded.Oscar E. Carlstrom, Atty. Gen., John A. Swanson, State's Atty., and Euclid L. Taylor, both of Chicago (Merrill F. Wehmhoff, John P. Madden, and J. J. Neiger, all of Springfield, of counsel), for petitioners.

Edward D. Shurtleff, of Chicago (David R. Joslyn, Sr., of Woodstock, and William W. Smith, of Chicago, of counsel), pro se.

FARTHING, Justice.

This was an original proceeding in mandamus. By leave of court a petition was filed in the name of the people, upon the relation of the Attorney General and the state's attorney of Cook county, for a writ of mandamus commanding the respondent, Edward D. Shurtleff, judge of the circuit court of McHenry county, to expunge from the records of that court an order entered by him on July 16, 1932, releasing and discharging James Sammons from the penitentiary at Joliet. This order was entered by the respondent pursuant to a petition for the writ of habeas corpus filed in the McHenry county circuit court on June 24, 1932. The respondent filed an answer in the mandamus proceeding, to which a replication was filed. The parties have filed their briefs and arguments and have submitted the cause on the questions of law raised by the pleadings.

By the verdict of a jury in the criminal court of Cook county on February 8, 1904, James Sammons was found guilty of robbery while armed with a deadly weapon, with intent to kill or maim if resisted. He was sentenced by the court to serve an indeterminate term of from one year to life in the penitentiary for that crime, on February 13, 1904. On February 25, 1904, in the same court, a jury found Sammons guilty of murder and fixed his punishment at death. Judgment was entered on this verdict, but the Governor commuted the death sentence to life imprisonment in the penitentiary. On June 18, 1904, Sammons was imprisoned in the penitentiary on the Governor's order of commutation of the sentence for murder and also on the mittimus issued upon his conviction of the aggravated crime of robbery. On June 20, 1923, by a further order, the Governor commuted the punishment upon the conviction for murder from life imprisonment to a term of fifty years. On July 23, 1923, the division of pardons and paroles of the department of public welfare entered an order for the temporary and conditional parole of Sammons from the penitentiary, and on January 28, 1926, ordered his final discharge ‘for and on account of his conviction’ of murder, by and with the consent of the Governor. Neither of these orders made any mention of the robbery charge. Sammons was given his liberty. On November 26, 1930, an order was entered by the division of pardons and paroles vacating and expunging from its records its order of July 23, 1923, granting Sammons a temporary and conditional parole and also its order of January 28, 1926, granting him a final discharge. By the order of November 26, 1930, the warden of the penitentiary was directed to issue a warrant for Sammons' arrest and return to the penitentiary. Such warrant was issued and served, and Sammons on November 27, 1930, was returned to the penitentiary.

Leave was granted and an original petition for the writ of habeas corpus was filed in this court at the February term, 1931, on behalf of Sammons. The writ issued, directed to the warden and general superintendent of the penitentiary. A return to the writ and an answer and traverse to the return were filed and the cause was submitted to this court for decision. We held that the sentence of Sammons for aggravated robbery was governed by the provision of the Parole Act then in effect; that its duration was for the maximum term of imprisonment, viz., a life sentence, and that there had been no action by exercise of the executive power paroling, releasing, or discharging Sammons from that sentence. A rehearing was denied in that case on October 8, 1931, and Sammons was remanded to the penitentiary. Reference is made to the opinion in that case (People v. Hill, 345 Ill. 103, 177 N. E. 723) for a more detailed statement of the facts leading up to the filing of the petition for a writ of habeas corpus in this court. As stated at the outset, on June 24, 1932, a petition for writ of habeas corpus was filed on behalf of Sammons in the circuit court of McHenry county. The writ was issued directed to the warden and deputy warden of the Illinois state penitentiary at Joliet. The respondents filed their return to the writ, in which they set forth, among other things, the proceedings and judgment of this court in the Hill Case. It was stated in the return that Sammons was held and imprisoned by virtue of his conviction for robbery and the mittimus issued on that conviction and by virtue of the Governor's order of commutation reducing the term of imprisonment of Sammons on his conviction for murder to fifty years. It was alleged in the return that the decision of this court in the Hill Case was conclusive of the question of Sammons' right to be discharged from the penitentiary, and that the circuit court had no jurisdiction and should quash the writ of habeas corpus. An answer and traverse were filed to the return and a demurrer was filed to the answer and traverse. A hearing was had before the respondent in this case at which evidence was taken, and, after the hearing, respondent overruled the demurrer to the answer and traverse and ordered that Sammons be discharged and released from imprisonment.

Attached to the petition for writ of mandamus filed in this court are copies of the petition, return, answer, and traverse and of a bill of exceptions in the habeas corpus case before the respondent. It is alleged in the mandamus petition that the respondent did not have jurisdiction in the habeas corpus case, and that the order that Sammons be discharged and released from imprisonment is void. The prayer of the petition is for a writ of mandamus commanding respondent to expunge the order of discharge from the records of the circuit court of McHenry county.

The relators contend that the respondent was bound by the decision of this court in People v. Hill, supra. In addition they say that the Parole Act does not apply to a prisoner who is in custody under a commutation of a death sentence issued by the Governor and that no action ever was taken by the board of pardons and paroles as to the sentence for robbery. They ask that we hold that the Parole Act only applies to a prisoner who has either entered a plea of guilty or been convicted and committed by a judgment of a court. They insist that for both reasons the respondent was without jurisdiction, and therefore his order discharging Sammons was void and should be expunged.

The respondent insists that he was not bound by the decision of this court in the Hill Case, because circuit courts have concurrent jurisdiction with this court in habeas corpus proceedings; that until the prisoner in custody obtains an order of discharge, successive petitions for the writ of habeas corpus may be filed so long as he can find a court or judge to whom he may present his petition; that on the issues made before him in the habeas corpus case questions not decided by this court in the previous habeas corpus proceedings were presented for decision; that he had facts presented to him which had not been presented to this court which showed that Sammons was entitled to his discharge; and lastly, that the Parole Act (see Smith-Hurd Rev. St. 1933, c. 38, § 801 et seq.) governs the case of prisoners committed either upon a plea of guilty or a judgment of conviction and an order of commitment by a court, or by commutation of sentence by the Governor.

A review of the precedents established in cases where it was sought by the writ of mandamus to expunge orders of discharge in habeas corpus proceedings and those cases where a review was sought through the exercise of appellate jurisdiction shows that the following rules are well established in the law of this state:

Mandamus is the proper remedy to expunge void orders entered in habeas corpus proceedings where the court which entered such an order did so without jurisdiction. People v. Wells, 255 Ill. 450, 99 N. E. 606;People v. Petit, 266 Ill. 628, 107 N. E. 830;People v. Smith, 275 Ill. 210, 113 N. E. 891, L. R. A. 1917B, 1075;Swager v. Gillham, 278 Ill. 295, 116 N. E. 71;People v. LaBuy, 305 Ill. 11, 136 N. E. 870;People v. Shurtleff, 353 Ill. 248, 187 N. E. 271;People v. Kelly, 352 Ill. 567, 186 N. E. 188.

The writ of mandamus is not a writ of right. People v. Ketchum, 72 Ill. 212;People v. Adams County, 185 Ill. 288, 56 N. E. 1044;People v. City of Rock Island, 215 Ill. 488, 74 N. E. 437,106 Am. St. Rep. 179;Michigan-Grand Building Corp. v. Barrett, 350 Ill. 291, 183 N. E. 205.

This remedy cannot and does not apply to an order in habeas corpus proceedings except where the court's order is void for want of jurisdiction. Eisen v. Zimmer, 254 Ill. 43, 98 N. E. 285, Ann. Cas. 1913B, 876; People v. Petit, supra; People v. Smith, supra; Swager v. Gillham, supra; People v. Shurtleff, supra.

Mandamus proceedings cannot be made to perform the office of a writ of error or of certiorari or an appeal. Eisen v. Zimmer, supra; People v. Petit, supra; People v. Smith, supra; People v. LaBuy, supra; People v. Holmes, 312 Ill. 284, 143 N. E. 835; People v. Shurtleff, supra.

[5] Except in cases involving the custody of children, which are held to be private suits, in which the order determining the custody of the child or children is held to be a final order and therefore...