People ex rel. Courtney v. Thompson

• Decision Date: 24 October 1934
• Docket Number: No. 22527.,22527.
• Citation: 358 Ill. 81,192 N.E. 693
• Parties: PEOPLE ex rel. COURTNEY, State's Atty., v. THOMPSON, Judge.
• Court: Illinois Supreme Court

358 Ill. 81

192 N.E. 693

PEOPLE ex rel. COURTNEY, State's Atty.,

v.THOMPSON, Judge.

No. 22527.

Supreme Court of Illinois.

Oct. 24, 1934.

Original petition for mandamus by the People, on the relation of Thomas J. Courtney, State's Attorney, against Clyde H. Thompson, Judge.

Writ awarded.

Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson, J. Albert Woll, Henry E. Seyfarth, James V. Cunningham, and Walter L. McCoy, all of Chicago, of counsel), for petitioner.

Hal M. Stone and Branson Wright, both of Bloomington, for respondent.

FARTHING, Justice.

An original petition for a writ of mandamus was filed by leave of this court in the name of the people, on relation of the Attorney General and the state's attorney of Cook county. A writ is sought commanding Clyde H. Thompson, one of the judges of the circuit court of the Eleventh judicial circuit, to expunge from the records of the circuit court of Livingston county an order entered in a habeas corpus proceeding discharging SpencerBrown from the custody of the warden of the penitentiary at Joliet.

The petition alleges that Brown was indicted, tried, and convicted in the criminal court of Cook county of receiving stolen property of the value of $24,500 for his own gain and to prevent the owner from again possessing the same. It also alleges that he obtained various stays of mittimus until he was granted a supersedeas by this court more than a year after his conviction; that during the stays of mittimus he was at large on bail for most of the time; that while he was at liberty he was indicted, tried, and convicted by the federal court for the Northern District of Illinois for the crime of erasing the cancellation on certain war savings stamps and possessing them for the purpose of using them again; that he was sentenced to the federal penitentiary at Fort Leavenworth, Kan., for a term of eight years; and that he served no part of his state prison sentence before he was imprisoned on the federal charge. After his sentence on the federal charge his conviction on the charge of receiving stolen property was affirmed by this court in People v. Brown, 321 Ill. 624, 152 N. E. 520. The petition further alleges that when Brown became a federal prisoner the mittimus from the criminal court of Cook county was lodged against him which the United States marshal in order that he might be again apprehended when he was discharged from the federal prison. On August 4, 1932, after he had served his sentence in the federal prison, he was arrested by the sheriff of Cook county. He then sued out a writ of habeas corpus in the criminal court, but his petition was dismissed and he was remanded to the custody of the sheriff, who later delivered him to the warden of the penitentiary at Joliet in accordance with his original sentence. He remained in custody, until he filed a petition for habeas corpus on January 17, 1934, in the circuit court of Livingston county. The petition for habeas corpus contains the claim that he was entitled to release because of the delay on the part of the sheriff of Cook county in delivering him to the warden of the Joliet prison. In it it is said that he was in the custody of the sheriff when the judgment and sentence were entered; that the punishmentfor his crime was one to ten years in the penitentiary; that if he had been promptly committed his term would long since have expired if good time were considered, but that the sheriff turned him over to the federal officers without any authority of law. He set up as a further ground for his discharge from the custody of the warden at Joliet, that after he was discharged from the federal prison on April 12, 1932, he was arrested on August 4, 1932, in Chicago on a certified copy of the original mittimus, but that this copy was issued by the clerk of the criminal court without any petition being filed and without any order of court directing the clerk to issue the copy, also without notice to Brown, and that no certified copy of the judgment was issued to the sheriff upon which to make the arrest, and that the warden at Joliet then had no copy of the judgment of conviction. The mandamus petition also contains the return of the warden to the habeas corpus writ in the circuit court of Livingston county. The warden denies that the sheriff had custody of Brown after the judgment and sentence were entered against him in the criminal court, but says that Brown was at all times out on bond, either on stays of mittimus or on a supersedeas from this court. The return also says that Brown was in custody of the federal authorities, and that it was impossible for the sheriff during that time to commit him to the state prison.

The evidence produced at the hearing before the respondent in included in the mandamus petition. Brown testified that he was in custody of a deputy sheriff at the time he was sentenced in the criminal court, May 2, 1924, but that he was out on bond from that day until he was surrendered by the sureties on his bail bond on September 12, 1924; that he then remained in the sheriff's custody about three weeks, until a new bond was furnished; that this court granted him a supersedeas on May 10, 1925, but that he was denied bail, and that six weeks later he was tried and convicted on the federal charge and served his sentence.

The mandamus petition alleges that nothing appeared in the habeas corpus petition, and that nothing was shown in the evidence at the hearing thereon, which would give the respondent jurisdiction to enter an order discharging Brown from custody.

The respondent's answer admits that he was a duly elected, qualified, and commissioned judge of the circuit court in and for the Eleventh judicial circuit of Illinois; that he presided over the January, 1934, term of the circuit court of Livingston county; that a petition for habeas corpus was filed in that court on behalf of Brown on January 17, 1934; that the respondent caused a writ of habeas corpus to be issued; and that the return of the warden was filed and is correctly set out in the mandamus petition. The answer also admits that a hearing was had and both partiesintroduced evidence on January 25, 1934. He then states that after the hearing he was of the opinion Brown was entitled to be released and that he ordered his discharge. He then denies that the petition for mandamus shows, or purports to show, all the evidence introduced in the habeas corpus proceeding. He denies that the records in the prosecution in the criminal court of Cook county were brought to his attention by the petition for habeas corpus, the return of the warden, or by the evidence produced at the hearing. The answer then says that there was no evidence that Brown was at liberty on bond during the time from the entry of judgment on his conviction until the affirmance of that judgment by this court, but that it appeared from the evidence before the respondent that Brown was in the custody of the sheriff of Cook county at the time the mittimus was issued, and there was no evidence before the respondent that there were any stays of mittimus granted by any court. He says that the only explanation for Brown being at large was the voluntary acts of the officials of Cook county.

In his answer the respondent objects to the form of the petition. He says, first, that it avers that Brown filed a petition for habeas corpus in the ‘circuit court of the Eleventh judicial district,’ but that there is no such court. The second objection is that the prayer of the petition is insufficient, since the date and place of entry of the order of discharge are not given with sufficient particularity. The third point is that the mandamus petition should contain a complete certified transcript of all the evidence heard by the respondent in the habeas corpus case; and the fourth, that Brown should have been made a party defendant in this case. The answer then sets out the facts which the respondent says he relied upon in deciding that he should enter the order discharging Brown, and says that although on August 10, 1932, an order was entered in the criminal court of Cook county directing the clerk to issue a duplicate copy of the mittimus of May 2, 1924, no notice of the application for this order or the hearing upon such application was given to Brown.

The respondent's contention that Brown should have been made a party defendant in this mandamus proceeding is not well taken. He relies upon Powell v. People, 214 Ill. 475, 73 N. E. 795,105 Am. St. Rep. 117,2 Ann. Cas. 551, to sustain this contention, but we held in People v. La Buy, 285 Ill. 141, 120 N. E. 537, where four cases were consolidated, each of which involved a defendant who had been convicted and sentenced, that the prisoners need not be made parties to the various petitions for writs of mandamus to set aside and expunge orders releasing them from custody. The holding in People v. Webb, 256 Ill. 364, 100 N. E. 224, announces the same principle.

There is no force in the complaint of lack of particularity, since the respondent's answer admits that he was one of...