People ex rel. Cassidy v. McKinley

• Decision Date: 13 October 1939
• Docket Number: No. 25298.,25298.
• Citation: 23 N.E.2d 50,372 Ill. 247
• Parties: PEOPLE ex rel. CASSIDY, Atty. Gen., v. McKINLEY, Judge.
• Court: Illinois Supreme Court

372 Ill. 247

23 N.E.2d 50

PEOPLE ex rel. CASSIDY, Atty. Gen.,

v.McKINLEY, Judge.

No. 25298.

Supreme Court of Illinois.

Oct. 13, 1939.

Original mandamus proceeding by the People, on the relation of John E. Cassidy, Attorney General, against M. L. McKinley, Judge.

Writ awarded.John E. Cassidy, Atty. Gen., and A. B. Dennis, Asst. Atty. Gen., for petitioner.

Walter Bachrach, of Chicago (Arthur Magid, of Chicago, of counsel), for respondent.

STONE, Justice.

This is an original petition for mandamus to compel the respondent to expunge a certain order entered in a habeas corpus proceeding before him, releasing one Alan Goldstein from incarceration in the Pontiac reformatory. The cause is identical as to general facts, with People ex rel. Kerner v. McKinley, 371 Ill. 190, 20 N.E.2d 498, where the facts are stated in full and need not be repeated here, the important difference between the two cases being that in the present case Goldstein was returned to the Pontiac reformatory prior to the filing of the petition for habeas corpus here, whereas Scott, in the former case, was in the custody of Joseph L. Ragen, warden of the Illinois State Penitentiary at Joliet.

Goldstein and Scott were convicted of robbery in the same proceeding in April, 1929, and sentenced to the reformatory. The following October both were returned to Cook county at the request of the State's attorney, to secure testimony, and while there were convicted of murder and sentencedto the penitentiary at Joliet for a term of fourteen years. The penitentiary sentences of both expired in June, 1938, and in September, following, a petition for a writ of habeas corpus was filed in each case before the respondent and the Scott case was heard.

In February, 1939, after the opinion in the Scott case was filed, the Goldstein petition for habeas corpus was amended showing that Goldstein had been returned to the Pontiac institution. It was held in the Scott case that because he was in the custody of Warden Ragen of the State penitentiary at Joliet, it was not error to discharge him under the provisions of the Habeas Corpus Act (Ill.Rev.Stat.1937, c. 65), as he was being held by a person not empowered by law to detain him. It was also there held that, so far as appeared from the record, Scott remains liable to complete his sentence in the penal institution at Pontiac. It was also pointed out that the people of the entire State have an interest in the detention and punishment of those convicted of crime, and such interest cannot be made subservient to illegal acts of officers, and that, had Scott been returned to the reformatory upon his completion of the sentence on the murder charge, he would not be entitled to discharge on habeas corpus. That was not done in Scott's case but it was done in Goldstein's case, the one before us. That is the only marked difference, and this court has definitely held in the former case that where such is done the defendant is not entitled to discharge on habeas corpus. It follows that unless there exists some other controlling feature, of law or fact, the respondent was without authority or power to discharge Goldstein on habeas corpus.

The argument is made, however, that the act of 1933 known as the ‘Penitentiary Act’ (Ill.Rev.Stat.1937, c. 108, § 105 et seq.), declares that all of the penal institutions of the State should be known as a part of the ‘Penitentiary System;’ that the General Assembly thus did away with the reformatory, as such, and made it a penitentiary, and, under the holdings of this court, the punishment of Goldstein was increased and he was therefore illegally detained. While, as argued by respondent, section 1 of the Penitentiary Act declares that the Pontiac reformatory shall be hereafter known as a branch of the penitentiary, to hold that the act put out of existence, as such, the reformatory, would be to hold that the State is...