People ex rel. Iasello v. McKinlay
| Decision Date | 22 March 1951 |
| Docket Number | No. 31722,31722 |
| Citation | 409 Ill. 120,98 N.E.2d 728 |
| Parties | PEOPLE ex rel. IASELLO v. McKINLAY, Judge. |
| Court | Illinois Supreme Court |
Julian C. Ryer, of Chicago, for petitioner.
John S. Boyle, State's Atty., Chicago, Donald S. McKinlay, pro se (John T. Gallagher, Chicago, of counsel), for respondent.
The People of the State on the relation of Chris Iasello applied to this court for leave to file an original petition for a writ of mandamus seeking to compel the respondent, Donald S. McKinlay, a judge of the superior court of Cook County and ex-officio judge of the criminal court, to sign, seal and file a bill of exceptions duly tendered to him on behalf of the petitioner in a cause lately pending in the Cook County criminal court wherein the People of the State of Illinois was plaintiff and the petitioner the defendant. Petitioner was granted leave to file his petition for a writ of mandamus and respondent has filed his amended answer and return to such petition. The issues are made upon these pleadings. The verified petition alleges that petitioner has heretofore filed in this court a transcript of the common-law record in a cause lately pending in the criminal court of Cook County, in which he seeks by writ of error to review a judgment of conviction entered by that court on March 31, 1950, wherein the respondent was the judge presiding. Such writ of error is now pending in this court as general number 31675.
It is the position of the petitioner that in order to have a proper review of the trial in the criminal court, it is necessary that he have a bill of exceptions duly signed and filed in the cause. It is his contention that the questions he desires to raise can only be raised upon a bill of exceptions because, under the decisions of this court, motions, petitions and the rulings of the judge presiding do not save themselves and are not properly a part of the common-law record. People v. Yetter, 386 Ill. 594, 54 N.E.2d 532; People v. Levin, 318 Ill. 227, 149 N.E. 230. The petition further shows that the petitioner presented a prepared bill of exceptions and properly presented the same to the respondent for signature and that the respondent refused to sign the same. By his petition and by the affidavits of his attorneys, it is contended that the question of the petitioner's right to discharge is the failure of the prosecution to try him within the statutory time required by law and that question is relied upon primarily for a reversal of defendant's conviction.
It is alleged in the petition and represented by the said affidavits that petitioner was committed for the criminal offense charged in the indictment on October 20, 1949; that after that date relator continuously demanded trial; that he was never admitted to bail and has been continuously in the county jail of Cook County; that on at least six or seven dates when his case had been set for trial between November 9, 1949, and March 6, 1950, petitioner not only demanded a trial but entered a specific protest against the continuance of the cause; that each and every continuance was applied for and secured by the State over his objection; that on February 23, 1950, petitioner called the court's attention to the fact that more than four months had elapsed since he was committed for the criminal offense charged in the indictment and that he should be discharged under the provisions of section 18 of division XIII of the Criminal Code. (Ill.Rev.Stat.1949, chap. 38, par. 748.) All of these matters were included in a proposed bill of exceptions, which petitioner moved to have signed, approved and filed. This motion was heard by the respondent on the 24th day of April, 1950, and by him overruled and denied, supplemented by his refusal to sign said bill of exceptions.
Petitioner insists that because of such refusal he has been improperly deprived of his constitutional right to a fair and impartial trial.
The respondent, Donald S. McKinlay, judge of the superior court of Cook County and ex-officio judge of the criminal court, filed an answer and return to the petition of relator, in which it is affirmatively stated that he refused to sign the proffered bill of exceptions because it was incomplete. In support of his decision he sets forth that on April 12, 1950, the petitioner tendered his bill of exceptions on said motion for discharge, and that same was marked 'Presented' by the respondent; that on April 24, 1950, petitioner's motion for approval of the bill of exceptions and for respondent's certificate of correctness came on for argument, and after a full hearing said motion was denied because the bill of exceptions was incomplete, in that it contained only the petition...
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Griffin v. People of the State of Illinois
...evidence heard, instructions and other matters which do not come within the clerk's mandatory record.' People ex rel. Iasello v. McKinlay, 409 Ill. 120, 124—125, 98 N.E.2d 728, 730. 4. In oral argument counsel for Illinois stated: 'With respect to the so-called bystanders' bill of exception......
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...----; South Chicago Community Hospital v. Industrial Com. (1969), 44 Ill.2d 119, 122, 254 N.E.2d 448; People ex rel. Iasello v. McKinlay (1951), 409 Ill. 120, 124, 98 N.E.2d 728. Also, an original action for a writ of mandamus in this court will not lie where it appears that an unresolved q......
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People v. Johnson
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