People ex rel. Fensky v. Leinecke

• Decision Date: 17 December 1919
• Docket Number: No. 12847.,12847.
• Citation: 125 N.E. 513,290 Ill. 560
• Parties: PEOPLE ex rel. FENSKY v. LEINECKE, Sheriff.
• Court: Illinois Supreme Court

290 Ill. 560

125 N.E. 513

PEOPLE ex rel. FENSKY

v.LEINECKE, Sheriff.

No. 12847.

Supreme Court of Illinois.

Dec. 17, 1919.

Petition for habeas corpus by the People, on the relation of Max Fensky, against George F. Leinecke, sheriff.

Relator remanded to custody.

Erbstein & Selleck, of Chicago, for relator.

Charies W. Hadley, of Wheaton, for respondent.

CARTWRIGHT, J.

A writ of habeas corpus was awarded on petition of Max Fensky, who prayed to be relieved from imprisonment by George F. Leinecke, sheriff of Du Page county, on the grounds that the county court of that county in which he was convicted of selling intoxicating liquor without a license lost jurisdiction over him by delay in the execution of the sentence; that the judgment and process were amended after his imprisonment began, and that the information upon which he was convicted was verified by the state's attorney on information and belief. The cause was submitted for decision upon the petition, the return of the respondent, and the record.

The relator, Max Fensky, was found guilty in the county court of Du Page county, as charged in an information containing 12 counts, for selling intoxicating liquor in less quantities than one gallon without having a legal license. This was at the June term, 1918, of the court, and on September 23, 1918, a day of that term, he was sentenced to pay a fine of $100 and costs on each of the first five counts, and as to the remaining seven counts judgment was reserved to a future date. On November 27, 1918, being still of the June term, a mittimus was issued directing the respondent forthwith to take the body of the relator and him safely keep until he should pay a fine of $500 and costs. Upon receipt of the writ the respondent made efforts to serve the same, and continued such efforts without success until February 28, 1919, when he took the relator into custody under the writ. The mittimus did not accord with the judgment, but recited a judgment for a fine of $500 and costs, and commanded the respondent to keep the relator until he paid the said sum of $500 and $146.65 costs. At the January term, 1919, on March 14th, after the arrest of the relator, the judgment as entered by the clerk was amended, so that, instead of reading that the relator was adjudged to pay a fine of $100 on each of the first five counts of the information, and costs, the judgment was expanded so as to make a separate recital as to each of the first five counts, but the judgment was not changed or altered, in legal effect, in any way. An amended mittimus was issued in accordance with the judgment as amended, and the respondent claimed to hold the relator in custody by virtue of the amended mittimus.

The effective administration of the criminal law requires that one who pleads guilty or is convicted of a violation of the law shall be promptly and certainly punished, and no court has authority to suspend sentence indefinitely in such a case. It is the duty of the court to pronounce judgment at the term at which the conviction is had, unless upon a motion for a new trial, in arrest of judgment, or for other cause the case is continued for further adjudication, and the defendant, by recognizance or being held in custody, is still required to answer the charge. If sentence is indefinitely suspended the court loses jurisdiction, and a judgment subsequently entered is void. People v. Allen, 155 Ill. 61, 39 N. E. 568,41 L. R. A. 473;People v. Barrett, 202 Ill. 287, 67 N. E. 23,63 L. R. A. 82, 95 Am. St. Rep. 230. The court, by reserving judgment for an indefinite period as to the seven counts, lost jurisdiction as to them; but the mittimus was issued upon the judgment properly entered as to the first five counts, and the court did not lose jurisdiction by any postponement of sentence.

As a general rule a court retains jurisdiction over a judgment during the term at which it is rendered, and may for proper cause vacate the judgment during the term; but in a criminal cause it can only vacate or change the judgment while it remains unexecuted, and is without jurisdiction to vacate or change the judgment after the prisoner has begun serving his...