People ex rel. Ferrill v. Graydon

• Decision Date: 08 February 1929
• Docket Number: No. 19317.,19317.
• Citation: People ex rel. Ferrill v. Graydon, 333 Ill. 429, 164 N.E. 832 (Ill. 1929)
• Parties: PEOPLE et rel. FERRILL v. GRAYDON, Sheriff.
• Court: Illinois Supreme Court

333 Ill. 429

164 N.E. 832

PEOPLE et rel. FERRILL

v.GRAYDON, Sheriff.

No. 19317.

Supreme Court of Illinois.

Dec. 20, 1928.

Rehearing Denied Feb. 8, 1929.

Petition for habeas corpus by the People, on the relation of Charles Ferrill, against Charles E. Graydon, Sheriff.

Relator remanded.

Duncan, J., dissenting.

Thomas D. Nash and Michael J. Ahern, both of Chicago, for petitioner.

Oscar E. Carlstrom, Atty. Gen., and Frank J. Loesch and David D. Stansbury, both of Chicago (Edwin J. Raber, of Chicago, of counsel), for respondent.

DUNN, J.

At the last term a writ of habeas corpus was issued on the petition of Charles Ferrill, requiring Charles E. Graydon to bring before the court the body of the relator, who was alleged to be unlawfully detained, together with the time and cause of such imprisonment and detention.The respondent made return to the writ that he had before the court the body of the relator, who was in his custody as sheriff of the county of Cook by virtue of a capias issued out of the criminal court of Cook county, commanding him to take the body of the relator and safely keep him to answer to an indictment for conspiracy preferred against him by the grand jury, a copy of the writ being attached to the return.The relator entered a motion for his discharge, and the respondent a motion for the remandment of the relator to the custody of the respondent.Briefs were filed; the cause was argued orally and submitted at the October term.

The record shows that the writ by virtue of which the relator is held by the sheriff was issued upon an indictment purporting to have been returned by the grand jury of Cook county on September 29, 1928, at the September term of that court.It is the contention of the relator that the body of men purporting to return the indictment was not a grand jury, but was composed of mere intruders, usurping the powers of the actual grand jury, which was impaneled at the September term of the court, on September 4, and was engaged in the exercise of its powers and the performance of its duties on each day of the term until and including September 30.On August 6, 1928, in accordance with the provisions of the law, a venire was issued for a grand jury for the September term of the court, and on September 4, pursuant to such venire, the grand jury was impaneled, entered upon the discharge of its duties, and continued in such performance daily until and including September 30.No question exists of the legality of its impaneling or action.

[1] On September 3, being the first day of the September term, the court ordered a special venire to be issued for a grand jury to be impaneled on September 10, and pursuant to this venire another grand jury was impaneled by the court, and it was this body which returned the indictment by virtue of which the sheriff holds the relator in his custody.If this body was a grand jury, the detention of the relator is legal; otherwise, it is without authority of law, and its acts are without jurisdiction.People v. Brautigan, 310 Ill. 472, 142 N. E. 208.An indictment returned by such a body without jurisdiction, and the process issued on it, would be void, and a person held in custody by reason of such process would be entitled to be discharged on a writ of habeas corpus.People v. Whitman, 243 Ill. 471, 90 N. E. 924.

Jurisdiction over and title to the territory which now constitutes the state of Illinois was ceded to the United States on the 1st day of March, 1784, by the deed of Thomas Jefferson, Samuel Hardy, Arthur Lee, and James Monroe, delegates of the commonwealth of Virginia in the Congress of the United States, executed by virtue of authority conferred on them by an act of the Legislature of Virginia passed on December 20, 1783.Congress passed on enabling act in 1818, authorizing the people of Illinois to form a Constitution and state government and providing for the admission of the state into the Union.In that same year the first Constitution of the state was adopted, and the state was admitted into the Union upon the same footing with the original states.This Constitution did not mention the grand jury directly, but it did recognize its existence by providing in section 10 of article 8 that no person should for any indictable offense be proceeded against criminally by information, except in cases arising in the land or naval forces, or the militia when in actual service in time of war or public danger, by leave of the courts, for oppression of misdemeanor in office.

The Constitution of 1848 did mention the grand jury by name, but made no substantial change in the constitutional provision which by section 10 of article 13 provided that no person should be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury, except in cases of impeachment, or in cases cognizable by justice of the peace, or arising in the army or navy, or in the militia when in actual service in time of war or public danger.The corresponding provision in the Constitution of 1870, in section 8 of article 2, is that no person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army and navy, or in the militia when in actual service in time of war or public danger, provided that the grand jury may be abolished by law in all cases.Neither Constitution defines the grand jury.No act of the Legislature has ever attempted to define the grand jury.It had its origin in the common law and has existed for many hundred years.Its Constitution organization, jurisdiction, and method of proceeding were all well-known features of the common law before the organization of the state of Illinois, and have been recognized and adopted in all our Constitutions and in legislation as it existed at the organization of the state.

One of the earliest acts of the first Legislature of the state was the Act of February 4, 1819(Laws of 1819, p. 3), which declared that the common law of England, all statutes or acts of the British Parliament made in aid of the common law prior to the fourth year of King James the First, excepting the second section of the sixth chapter of 43 Elizabeth, the eighth chapter of 13 Elizabeth, and ninth chapter of 37 Henry the Eighth, and which are of a general nature and not local to that kingdom, shall be the rule of decision and shall be considered as of full force until repealed by legislative authority.The conclusion follows that the state from its origin gas provided for the prosecution of violations of the criminal law by means of indictment of a grand jury, and that the grand jury is that which existed in the common law of England prior to the fourth year of King James the First, which began on March 24, 1606.No other grand jury was known to the law.No definition of it was attempted, but it was...