People Ex Rel. Elizabeth A. Davis v. Foster

• Decision Date: 27 September 1882
• Citation: 104 Ill. 156,1882 WL 10392
• Parties: THE PEOPLE ex rel. Elizabeth A. Davisv.WILLIAM W. FOSTER.
• Court: Illinois Supreme Court

104 Ill. 156

1882 WL 10392 (Ill.)

THE PEOPLE ex rel. Elizabeth A. Davis

v.WILLIAM W. FOSTER.

Supreme Court of Illinois.

Filed at Ottawa Sept. 27, 1882.

OPINION TEXT STARTS HERE

This is an original application by the relator in this court to be discharged from imprisonment in the jail of Macon county. The grounds relied on for the discharge are sufficiently stated in the opinion.

Mr. D. HUTCHISON, and Mr. J. O. BUCKINGHAM, for the relator.

Mr. W. C. JOHNS, for the respondent.

Mr. JUSTICE MULKEY delivered the opinion of the Court:

This is a proceeding under the Habeas Corpus act. It appears from the papers before us, upon which the case is submitted for our determination, that at the December term, 1881, of the Macon county circuit court, the petitioner, Elizabeth A. Davis, was tried and convicted on three several indictments, for the respective offences of selling intoxicating liquors, maintaining a nuisance, and keeping a house of illfame; that on failure to pay the fines assessed by the court in these several cases, which amounted in the aggregate to about $2500, the petitioner. by order of the court, was committed to the county jail, there to remain until the fines and costs were paid; that several executions were sued out on these judgments, one of which was returned satisfied by sale of real estate belonging to petitioner, and the others were levied upon lands the title of which appears to be in third parties, but which lands, it is claimed, are in truth and in fact the property of the petitioner, and that they were conveyed by her to such third parties for the express purpose of preventing the collection of these judgments; that although the return day of said executions has long since passed, no return of the same has ever been made by the sheriff; that upon the levy of these executions a creditor's bill, on behalf of the People, was filed in the Macon county circuit court, for the purpose of subjecting the lands so levied upon to the payment of said judgments and costs, and that said bill is still pending and undetermined.

It further appears, that after the above proceedings had transpired, and before suing out the present writ, the petitioner made application to the circuit court of Macon county to be discharged from her imprisonment, under the 455th section of the Criminal Code. That section is as follows: “Whenever it shall be made satisfactorily to appear to the court, after all legal means have been exhausted, that any person who is confined in jail for any fine, or costs of prosecution, for any criminal offence, hath no estate wherewith to pay such fine and costs, or costs only, it shall be the duty of said court to discharge such person from further imprisonment for such fine and costs, which shall operate as a complete release of such fine and costs: Provided, that nothing herein shall authorize any person to be discharged from imprisonment before the expiration of the time for which he may be sentenced to be imprisoned as part of his punishment.”

Upon the hearing of the above application, the petitioner, as she alleges in her petition, “offered to show to said court that she had no estate wherewith to pay said fine and costs, or costs only; but because said sheriff had not returned said executions she was not permitted to make proof of...