People ex rel. Stead v. Superior Court of Cook Cnty.

• Court: Supreme Court of Illinois
• Writing for the Court: SCOTT
• Citation: 234 Ill. 186,84 N.E. 875
• Decision Date: 05 June 1908
• Parties: PEOPLE ex rel. STEAD, Atty. Gen., v. SUPERIOR COURT OF COOK COUNTY et al.

234 Ill. 186
84 N.E. 875

PEOPLE ex rel. STEAD, Atty. Gen.,
v.
SUPERIOR COURT OF COOK COUNTY et al.

Supreme Court of Illinois.

April 23, 1908.
Rehearing Denied June 5, 1908.

Certiorari by the people, on the relation of W. H. Stead, Attorney General, against the superior court of Cook county and Willard M. McEwen, judge, to review the granting of a writ of habeas corpus. Record in the habeas corpus proceedings quashed.

[234 Ill. 187]

[84 N.E. 876]

W. H. Stead, Atty. Gen., and John J. Healy, State's Atty. (Charles F. Mansfield and James J. Barbour, of counsel), for petitioner.

234 Ill. 189]Joseph W. Moses, for respondent.
[234 Ill. 192]Joseph B. David, for Ralph Lipsey.

[234 Ill. 193]SCOTT, J.

Ralph Lipsey was convicted at the February term, 1906, of the criminal court of Cook county, of receiving stolen property, in violation of section 239 of chapter 38 of Hurd's Revised Statutes of 1905, and the value of the goods was fixed at $210. He was sentenced to the penitentiary. Thereafter he sued out of this court a writ of error to review the record. On April 18, 1907, the judgment was affirmed, and he filed a petition for rehearing, which was denied on June 5, 1907. The mandate of this court issued, and he was taken to the penitentiary at Joliet to undergo imprisonment in accordance with the judgment of the criminal court. Thereafter, and on January 30, 1908, a petition was filed for and on behalf of Lipsey in the superior court of Cook county for a writ of habeas corpus, asking that such writ issue and be directed to the warden of the penitentiary. This petition was addressed to the Honorable Willard M. McEwen,[234 Ill. 194]one of the judges of the superior court, and was duly presented to him. He made an order on the back of the petition directing the writ to issue, and providing that it should be returnable before him on February 8, 1908. Thereupon, and in accordance with that order, a writ of habeas corpus issued and was served upon the warden of the penitentiary on the 6th day of February, 1908, and on the same day he made return that he had complied with the writ by delivering the body of Lipsey into the custody of the sheriff of Cook county. It appears from the petition for the writ of habeas corpus that the theory upon which relief was sought by Lipsey was that the judgment of conviction was void, for the reason that the verdict was insufficient to warrant a judgment of conviction, and amounted, in law, to a verdict of not guilty. At the February term, 1908, of this court, and on February 7, 1908, the people of the state, at the relation of the Attorney General and of the state's attorney of the county of Cook, obtained leave to file a petition for a writ of certiorari, and the petition was filed on that day. It is averred by that petition that the superior court of Cook county and Judge McEwen were without jurisdiction of the subject-matter of the petition for a writ of habeas corpus, and a writ of certiorari requiring the court and judge to send up the record was sought on that ground alone. The purpose of the relators was to obtain a judgment of this court quashing the proceedings in habeas corpus. The writ of certiorari was issued on February 7, 1908, and was served on February 8, 1908. After its issuance, and before its service, Judge McEwen, in the superior court, entered an order continuing the habeas corpus proceeding for a period of two weeks. Upon the service of the writ the judge, by counsel, appeared in this court, on behalf of himself and the said superior court, and moved to vacate the order granting leave to file the petition for writ of certiorari and to quash that writ. Thereupon, by agreement of parties and pursuant to an order of this court, he filed, on [234 Ill. 195]behalf of himself and the superior court, a return to the writ of certiorari, setting forth the habeas corpus proceedings as above outlined. It was provided by the order of this court pursuant to which that return was filed that the filing thereof should not prejudice the motion theretofore made by the respondent.

The first question for determination is

[84 N.E. 877

whether or not the superior court, or any judge thereof, had jurisdiction to order the issuance of this particular writ of habeas corpus. It appears from the petition for that writ that Lipsey had sued out of this court a writ of error to review the proceedings of the criminal court, and that the judgment of that court had been by this court affirmed. It also appears that the question of the sufficiency of the verdict returned by the jury in the case in the criminal court was not raised by assignment of error in this court when the case was brought here, and it is stated by that petition that neither Lipsey nor his attorney discovered the alleged insufficiency of the verdict until after the petition for rehearing which was filed in this court had been denied. It is urged in the brief filed in the present proceeding on behalf of Lipsey that, ‘if the judgment of the criminal court is void, and the Supreme Court of Illinois did not decide that such judgment was valid, habeas corpus lies.’ It is true that the question as to the sufficiency of the verdict, and the validity of the judgment based thereon, was not specifically presented when the case was brought here by writ of error. It is also true that this question might then have been presented to and passed upon by this court had Lipsey seen fit to invoke the judgment of the court in reference thereto. The general rule is, when a judgment is affirmed by this court, all questions raised by the assignments of error, and all questions that might have been so raised, are to be regarded as finally adjudicated against the appellant or plaintiff in error. A judgment or decree having been affirmed by this court must be regarded as free from all error. Gould v. Sternberg, 128 Ill. 510, 21 N. E. 628,15 Am. St. Rep. 138.

[234 Ill. 196]Counsel for Lipsey concedes this to be the general rule, but insists that in criminal cases there is an exception, and that a question which goes to the validity of the judgment itself is not to be regarded as adjudicated against the prisoner unless that question was presented by an assignment of error. No authority is cited which expressly so holds. Counsel refers in this connection to the cases of Griffin v. Eaves, 114 Ga. 65, 39 S. E. 913, and In re Patswald, 5 Okl. 789, 50 Pac. 139. In the first of these cases the prisoner, Eaves, had been convicted of selling intoxicating liquors in Bartow county in violation of a general statute of the state, and the judgment of conviction had been affirmed by the Supreme Court of the state. In that court he had contended that the general statute had been rendered inoperative in Bartow county by a special act of the Legislature. The Supreme Court refused to consider that question because it had not been properly raised in the nisi prius court. After the affirmance of the judgment by the Supreme Court the prisoner was discharged on habeas corpus by the superior court of Bartow county on the ground that the general statute had been so rendered inoperative. Thereupon the sheriff, against whom the writ of habeas corpus ran, sued out of the Supreme Court, as he lawfully might in that state, a writ of error to review the judgment in the habeas corpus case, and that court then held that if the general statute had, in fact, been rendered inoperative in that county by the later special act, the prisoner could be rightfully discharged in habeas corpus, but reached the conclusion that the special act did not have that effect and reversed the judgment of discharge. That case is not in point, as the court held in the earlier case that the question of the effect of the special act could not be raised upon the record of the nisi prius court then presented to the Supreme Court. There is, however, language in the opinion in the later case...