People ex rel. Crews v. Toman

• Decision Date: 15 October 1937
• Docket Number: No. 24173.,24173.
• Citation: 367 Ill. 163,10 N.E.2d 657
• Parties: PEOPLE ex rel. CREWS v. TOMAN, Sheriff.
• Court: Illinois Supreme Court

367 Ill. 163

10 N.E.2d 657

PEOPLE ex rel. CREWS

v.TOMAN, Sheriff.

No. 24173.

Supreme Court of Illinois.

Oct. 15, 1937.

Original application by the People, on the relation of Halbert O. Crews, administrator, for a writ of mandamus to compel John Toman, Sheriff of Cook County, to take into custody Julius P. Waitches and others under mittimus issued by the probate court of Cook county, wherein Julius P. Waitches and another intervened by leave of court.

Writ awarded.Levinson, Becker, Peebles & Swiren, of Chicago (Don M. Peebles, of Chicago, of counsel), for relator.

Ode L. Rankin, of Chicago, for interveners.

JONES, Justice.

An original application to this court has been made for a writ of mandamus to compel the sheriff of Cook county to take into custody Julius P. Waitches, Bela Butman, John J. Bagdonas, and Nicholas Radis, under mittimus issued by the probate court of Cook county.

The persons named, and others not here concerned, were adjudged guilty by the probate court of contempt of court, and on March 7, 1935, they were sentenced to imprisonment in the county jail for a period of one year from the date of the order. That order directed the sheriff to take them into custody and commit them to the county jail, ‘there to remain for the period of one year from the 7th day of March A. D. 1935.’ After being taken into custody during that month, they were released on supersedeas bonds in the following April and May, respectively. Each of them sued out a writ of error to the Appellate Court for the First District, where their convictions were affirmed. On further review in the cases of Waitches and Radis, we affirmed the judgments of the Appellate Court. In re Estate of Kelly, 365 Ill. 174, 6 N.E.(2d) 113. No writ of error to review the judgment of the Appellate Court was prosecuted in either of the other cases, and the judgment of the probate court now stands as final. In each case the final order, on review, was entered after the time fixed by the original order for the completion of the sentences. That fact was not called to the attention of either reviewing court, and no question was raised as to the right of the probate court to fix the time of commencement and completion of the imprisonment. As a consequence, the order was affirmed in each case without considering those questions, or giving any direction to resentence. Thereafter, mandates were filed in the probate court and a mittimus was issued for each of the defendants. The sheriff refused to take them into custody, and thereupon the petition in this case was filed.

Respondent, and Waitches and Radis, who intervene by leave of court, contend that the sheriff could only execute the order of the court as it is entered; that, since the date fixed by the order for the completion of the imprisonment had expired before the mandates were filed, and no direction to resentence the contemnors was made, it is now impossible to enforce the sentence.

A committing court has the undoubted right to fix, within the range prescribed by law, the kind and extent of penalty imposed for transgressions against it. The right of the probate court to fix the penalty in this case at one year's imprisonment in the county jail is not challenged. It is apparent that, when an order fixes the time of commencement or completion of imprisonment, delay incident to review, as in this case, or other contingencies, may render it impossible to carry the order into effect within the time prescribed by it.

It is a general rule that courts are without authority to fix precise dates for the commencement or completion of a sentence of imprisonment. The term of imprisonment may be definitely fixed, in certain cases, but it is improper to fix the date in the future when incarceration shall begin, because it would conflict with the right usually accorded the prisoner to suspend the execution of his sentence by a supersedeas during review. Consecutive sentences may not be ordered to begin on certain dates, but the proper practice is for the second sentence to commence when the first ends, and so on, to the last.

Such a situation is similarly treated in most jurisdictions. The Supreme Court of Florida, and the Appellate Court of Alabama, hold that the portion of the order which fixes the time when incarceration shall begin may be regarded as surplusage. Brooke v. State, 99 Fla. 1275, 128 So. 814, 69 A.L.R. 1173;Lake v. McClelland, 101 Fla. 536, 134 So. 522;Chaney v. State, 9 Ala.App. 45, 63 So. 693. The time fixed for the execution of a sentence is generally regarded as no part of the judgment. The direction as to the time of carrying the sentence into effect is in the nature of an award of execution, so that, where the penalty is imprisonment, the sentence may be satisfied only by the actual suffering of the imprisonment...