People ex rel. Ross v. Becker

• Decision Date: 16 March 1943
• Docket Number: No. 26776.,26776.
• Citation: 382 Ill. 404,47 N.E.2d 475
• Parties: PEOPLE ex rel. ROSS v. BECKER, Warden.
• Court: Illinois Supreme Court

382 Ill. 404

47 N.E.2d 475

PEOPLE ex rel. ROSS

v.BECKER, Warden.

No. 26776.

Supreme Court of Illinois.

March 16, 1943.

Original proceeding by the People on the relation of James W. Ross against C. F. Becker, warden, for a writ of habeas corpus to obtain relator's discharge from the state penitentiary. Respondent made return to the writ and filed a motion to quash the writ and dismiss the petition and relator filed an answer and a motion to dismiss and deny respondent's motion. Submitted on the record thus made.

Relator remanded to custody of the warden.

See, also, 44 N.E.2d 862.

James W. Ross, pro se.

George F. Barrett, Atty. Gen., for respondent.

WILSON, Justice.

James W. Ross, by an original petition for a writ of habeas corpus filed in this court against C. F. Becker, warden of the Illinois State Penitentiary at Menard, sought to obtain his discharge from the penitentiary. The writ issued and the respondent made a return, together with a motion to quash the writ and dismiss the petition. Relator filed an answer and a motion to dismiss and deny respondent's motion. The cause was submitted upon the record thus made.

January 25, 1926, relator, upon his plea of guilty, was convicted of the crime of uttering a fictitious check. The judgment of the circuit court of St. Clair county directed the sheriff of the county to take relator ‘to the penitentiary of this State at Chester, Illinois, and be delivered to the warden or keeper of said penitentiary, and the said warden or keeper is hereby required and commanded to take the body of said defendant, James Ross alias James Morrisey alias D. L. Stewart and confine him in said penitentiary in safe and secure custody, from and after the delivery hereof until discharged by the Prison Board, as authorized and directed by law, * * *.’ The petition alleges that on January 6, 1931, relator was released on a banishment parole issued in pursuance of section 7a of the Sentence and Parole Act (Smith's Stat.1929, chap. 38, par. 808,) wherein he was commanded to leave the State of Illinois and go to the Commonwealth of Massachusetts to serve his parole under the supervision of the latter's Department of Welfare; that he went immediately to Massachusetts and reported to the proper officer of the Commonwealth; that he made monthly reports to the Department of Public Welfare of this State and that he kept faithfully the terms of his parole until September 10, 1931, when he was discharged from the parole by a court of Massachusetts, which ruled his parole void as of the date he departed from Illinois; that the original sentence, less the statutory allowance for good conduct expired April 24, 1937; that on October 3, 1941, a warrant was filed in the District of Columbia for his rearrest as a parole violator and a fugitive from justice because of an alleged violation of the banishment parole; that on November 7, 1941, an agent of this State brought him from the District of Columbia to Illinois on the requisition of the Governor of the State, as a fugitive, and that on November 10, 1941, he was confined in the Illinois State Penitentiary at Menard. Relator admits that on February 24, 1938, he was found guilty of misdemeanors against the United States by the United States Branch of the Police Court for the District of Columbia, fines were imposed for the offenses and, in default of payment of the fines, ordered to serve 1440 days in the District of Columbia jail. Relator charges that his confinement and restraint were illegal for the reasons, among others, that he had served more than the minimum sentence provided by law when banished on parole in compliance with the applicable statute; that he left this State pursuant to the terms of the parole and, conversely, did not ‘flee,’ within the meaning of section 2 of article 4 of the Federal constitution; that he was wrongfully removed from the District of Columbia and brought to this State November 7, 1941, in violation of his constitutional rights, and, further, that this State waived its claims against him on June 6, 1931, the effective day of his banishment parole.

Respondent's return avers that relator has not served or completed the indeterminate sentence of not less than one nor more than twenty years' imprisonment for the crime of forgery, and that he has not been discharged by the Division of Correction or proper State authorities, conformably to statutory provisions with respect to parole. Answering respondent's return, relator alleges that respondent transcended his statutory authority by causing relator's arrest in the District of Columbia and return to Illinois as a fugitive from justice because of an act committed outside respondent's legal jurisdiction, and that, consequently, the process by which he was arrested and returned to Illinois was void. We observe that relator's answer says: ‘The petitioner has not questioned or attacked the validity of his commitment to the Illinois State Penitentiary on January 25, 1926.’ Answering further, relator charges that the statutory provisions pertaining to banishment parole provide that the alleged violator may only be arrested or apprehended ‘should such prisoner or ward so violating said parole again at any time return to the State of Illinois.’

Although relator's pleadings expressly disclaim intent to assail the propriety of the judgment of the circuit court of St. Clair county, he argues that the judgment was insufficient for the reason that it did not definitely fix the place of imprisonment, as required by statute. Contending that the judgment was void and the sentence a nullity for the reason that the court lacked complete jurisdiction, relator argues that he was committed to a nonexistent penal institution, namely, ‘the penitentiary of this State at Chester, Illinois.’ The contention is not well taken. At the time of relator's conviction, the prison to which he was committed was commonly designated the Southern Illinois State Penitentiary at Chester. Smith's Stat.1925, chap. 108, pars. 65, 72; Cahill's Stat.1925, chap. 108, par. 77. This designation was repeated in the act consolidating the penitentiaries in force July 1, 1933. Smith-Hurd Stats. c. 108, § 105, Cahill's Stat.1933, chap. 108, par. 113. The precise issue was presented for decision in People v. Buckner, 281 Ill. 340, 117 N.E. 1023, 3 A.L.R. 1323. The defendant, Buckner, urged that the judgment of the circuit court of Wayne county sentencing him to the ‘penitentiary at Chester, Ill.,’ was erroneous, insisting that there was no penal institution at the place named. This court answered the contention. ‘This criticism of the form of the judgment is without merit. Section 75 of chapter 108 (Hurd's Stat.1916, p. 1975), refers to the Southern Illinois Penitentiary at Chester. The order granting plaintiff in error [Buckner] a supersedeas and permitting him to remain out on bail pending the decision of this court on the case was directed to ‘the penitentiary at Chester, Ill.’ It is manifest that public officials understand that there is a penitentiary at Chester.' In People v. Mikula, 357 Ill. 481, 192 N.E. 546, 547, the defendant was sentenced to ‘the penitentiary of this State at Joliet.’ The contention was made that the judgment was erroneous because it failed to designate the specific place of confinement in accordance with sections 1 and 2 of the Sentence and Parole Act, which provide that the sentence shall be to ‘the Illinois State Penitentiary.’ Disposing of the contention adversely to the defendant, Mikula, this court observed that sections 2 and 3 provide for indeterminate sentences for all crimes not enumerated in the first section, namely, treason, murder, rape, and kidnapping, and that section 2 provides every such sentence ‘shall be a general sentence of imprisonment.’ Section 3 requires that persons convicted of felony and other crime punishable by imprisonment in the penitentiary shall ‘be sentenced to the penitentiary.’ Neither section requires a specific place of confinement to be fixed. Section 1 of the act in relation to the Illinois State Penitentiary consolidated the institutions heretofore known as the Illinois State Reformatory at Pontiac, and the Illinois Asylum for Insane Criminals at Chester, into a single institution to be known as the Illinois State Penitentiary. Section 3 provides for commitments to be made ‘to the penitentiary generally.’ ‘This statute,’ the court observed, ‘not only makes no requirement that the judgment shall definitely name the particular penitentiary to which the convicted person shall be committed, but expressly provides that the sentence shall be to the penitentiary, generally. The Department of Public Welfare has the power to determine in which penitentiary he shall be confined.’ The error of the trial court in entering the judgment assailed was insufficient to cause a reversal, and the cause was remanded with directions, for the sole purpose of entering a proper sentence. Upon the authority of People v. Buckner, supra, and People v. Mikula, supra, the mittimus of January 25, 1926, was immune to attack under section 22 of the Habeas Corpus Act, Ill.Rev.Stat.1941, c. 65, § 22.

People v. Wood, 318 Ill. 388, 149 N.E. 273, 275, cannot avail relator. The judgment of conviction directed the sheriff of Pulaski county to deliver the defendant, Wood, to the warden or keeper of the penitentiary at Chester and commanded him to confine defendant in safe and secure custody. Defendant contended that the judgment was insufficient because it neither fixed the place nor the term of imprisonment. The judgment did not actually sentence defendant to imprisonment in the Southern Illinois Penitentiary or in any other penal institution in the State. This court said: ‘The judgment must definitely fix the place of imprisonment, and the place must be one fixed by law. The judgment not only fails to fix the place of imprisonment, but it does not in any manner fix the term of...