People ex rel. Crowe v. Fisher
| Decision Date | 21 June 1922 |
| Docket Number | No. 14449.,14449. |
| Citation | 303 Ill. 430,135 N.E. 751 |
| Parties | PEOPLE ex rel. CROWE, State's Atty., v. FISHER, Circuit Judge. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Petition by the People, on the relation of Robert E. Crowe, State's Attorney, praying for the issuance of mandamus to compel Harry M. Fisher, one of the Judges of the Circuit Court of Cook county, to expunge from the records an order discharging Hyman De Vorken from the house of correction of the city of Chicago.
Writ awarded.Edward J. Brundage, Atty. Gen., and Robert E. Crowe, State's Atty., of Chicago (Edward E. Wilson, Clyde C. Fisher, James A. Scott, Charles C. Roe, and Alva S. Bates, all of Chicago, of counsel), for petitioner.
Henry A. Berger, of Chicago, for respondent.
An original petition was filed in this court in the name of the people, on the relation of the state's attorney of Cook county, praying for the issuance of a writ of mandamus to compel Harry M. Fisher, one of the judges of the circuit court of Cook county, to expunge from the records of said court an order releasing and discharging Hyman De Vorken from the house of correction of the city of Chicago. The respondent demurred to the petition. De Vorken was granted leave to intervene, and filed his answer to the petition, and the petitioner demurred to this answer. The cause has been argued and submitted for decision on the issue of law raised by these demurrers. The following facts are related in the petition:
April 22, 1921, the case of the people against Hyman De Vorken came on for hearing before Charles F. McKinley, one of the judges of the municipal court of Chicago, on an information charging that De Vorken ‘on the 19th day of April, A. D. 1921, at the city of Chicago, aforesaid, did then and there carry upon his person and concealed upon his person a deadly weapon, to wit, a loaded revolver, without a written license therefor, in violation of section 4 of the Sadler Law, in force and effect July 1, 1919, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the state of Illinois'; that De Vorken, having been duly advised by the court as to his right to a trial by jury, waived in writing a trial by jury; that he was duly arraigned and pleaded not guilty; that a trial was had by the court without a jury, and De Vorken was found guilty of the offense charged in the information; that he was thereupon sentenced to confinement at labor in the house of correction of the city of Chicago for the term of one year; that December 13, 1921, a petition for a writ of habeas corpus was presented to Harry M. Fisher, one of the judges of the circuit court of Cook county; that the petition was thereafter amended; that the amended petition alleged that De Vorken was detained and imprisoned in the house of correction unjustly and contrary to law: that the jury waiver which was signed by him, and upon which the court assumed to acquire jurisdiction of him, set out that it was a jury waiver in a case in which De Vorken was charged with violation of section 4 of the Sadler Law; that there is no law known as the Sadler Law, and that therefore De Vorken did not waive a jury in a case wherein he was charged with a violation of any section of the Criminal Code; that De Vorken was under the age of 21 years and of the age of 17 years at the time of the trial of said cause and could not legally sign a jury waiver; that the court had no authority to try the cause without the assistance of a jury, where no legal and binding jury waiver had been filed, and that the court was without jurisdiction to enter the judgment finding De Vorken guilty; that on the same day De Vorken was charged by information with having in his possession a burglar's jimmy, a pick lock and several skeleton keys, in violation of the ordinances of the city of Chicago; that he was likewise tried by the court without a jury for this offense; that he was found guilty and sentenced to pay a fine of $200 and costs, and was committed to the house of correction until the fine and costs were paid or worked out at the rate of 50 cents a day, provided the imprisonment should not exceed 6 months, and that he had been confined in the house of correction for 7 1/2 months. The petition concluded with the usual prayer for release from unlawful detention and imprisonment.
In his return to the writ of habeas corpus Joseph Siman, superintendent of the house of correction, stated that he was holding De Vorken by virtue of a warrant of commitment from the municipal court and attached a copy...
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...or parole in another department of the government and the judiciary have no right to usurp this power." People ex rel. Crowe v. Fisher, 303 Ill. 430, 434, 135 N.E. 751, 753 (1922). Our sister states agree. "It is well-settled law * * * that a court's authority to resentence a defendant depe......
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