People ex rel. Swanson v. Kelly

• Decision Date: 07 June 1933
• Docket Number: No. 21554.,21554.
• Citation: People ex rel. Swanson v. Kelly, 352 Ill. 567, 186 N.E. 188 (Ill. 1933)
• Parties: PEOPLE ex rel. SWANSON v. KELLY, Judge.
• Court: Illinois Supreme Court

352 Ill. 567

186 N.E. 188

PEOPLE ex rel. SWANSON

v.KELLY, Judge.

No. 21554.

Supreme Court of Illinois.

April 22, 1933.

As Modified on Denial of Rehearing June 7, 1933.

Original mandamus proceeding by the People, on the relation of John A. Swanson and another, against James J. Kelly, a Judge of the Superior Court of Cook County, and ex officio Judge of the Criminal Court of that County.

Writ awarded.

Oscar E. Carlstrom, Atty. Gen., and John A. Swanson, State's Atty., and Euclid L. Taylor, both of Chicago (J. J. Neiger, of Springfield, of counsel), for petitioner.

James J. Kelly, of Chicago (W. W. Smith, of Chicago, of counsel), for respondent.

JONES, Justice.

Pursuant to leave granted by this court, an original petition for a writ of mandamus was filed herein in the name of the people of the state of Illinois, on the relation of Oscar E. Carlstrom, then Attorney General, and John A. Swanson, then state's attorney of Cook county. The petition prays for a writ commanding James J. Kelly, one of the judges of the superior court of Cook county and ex officio judge of the criminal court of that county to expunge from the records of the criminal court an order entered in a habeas corpus proceeding discharging Oliver A. Berg and Hymie Dickholtz from the penitentiary at Joliet, to which prison they had been transferred from the Southern Illinois Penitentiary.

The petition alleges that Berg and Dickholtz were indicted by a grand jury of Champaign county, Ill., for the crime of robbery while armed with a dangerous weapon, and that on December 13, 1926, they pleaded guilty to the indictment and were sentenced upon said plea to the Southern Illinois Penitentiary. The judgment sentencing the defendants is set out in haec verba. The part of it material to the issues in this cause is, that each defendant be confined ‘for the term of his natural life and until he is otherwise discharged therefrom as authorized and directed by law, one day in each year of said term to be in solitary confinement and the residue thereof at hard labor.’ The petition further shows that, while Berg and Dickholtz were imprisoned in the penitentiary, a writ of habeas corpus was issued by the respondent to effect their release; that the warden of the penitentiary produced them in the criminal court of Cook county and made a return to the writ showing he held them by virtue of a mittimus issued by the circuit court of Champaign county on December 13, 1926; that upon the hearing in the habeas corpus proceeding respondent entered an order discharging Berg and Dickholtz, for the alleged reason that the circuit court of Champaign county was without jurisdiction to enter the particular order therein.

Respondent's answer to the petition admits the indictment, trial, conviction, and sentence of Berg and Dickholtz as alleged in the petition. It also admits the allegations as to the habeas corpus proceeding and the discharge of Berg and Dickholtz from the judgment and sentence. It alleges that under the law applicable to the punishment for the crime of which they were convicted the committing court had authority only to impose a general sentence of imprisonment, and could not fix the limit or duration thereof; that the judgment of the committing court was therefore void, and not merely erroneous, and that respondent had jurisdiction in the habeas corpus proceeding. The petitioner filed a general demurrer to respondent's answer, and the question presented by the pleadings is whether or not respondent, as judge of the criminal court of Cook county, had jurisdiction to enter the order discharging the prisonersfrom their conviction in the circuit court of Champaign county. This also involves the question of whether or not the judgment and sentence of the prisoners were void.

The penalty provided by statute for the offense of which Berg and Dickholtz were convicted-i. e., robbery while armed with a dangerous weapon-is imprisonment in the penitentiary for ‘any term of years not less than one year or for life.’ Smith-Hurd Rev. Stat. 1931, c. 38, § 501. Section 2 of the act relating to indeterminate sentences and paroles (Id. § 802) provides that for all offenses, except misprision of treason, murder, rape, or kidnapping, the sentence shall be a general sentence of imprisonment, and the court imposing the sentence shall not fix the limit or duration of such imprisonment. The next section of the statute provides that the term of such imprisonment shall be not less than the minimum berm nor shall it exceed the maximum term provided by law for the offense.

The real question involved in this case is whether or not the judgment and sentence of the circuit court of Champaign county were void. There is a distinction between the effect of void judgments and those which, though erroneous, yet are valid. People v. Siman, 284 Ill. 28, 119 N. E. 940;People v. Eller, 323 Ill. 28, 153 N. E. 597, 49 A. L. R. 490. If the judgment of the committing court was void, respondent had jurisdiction in the habeas corpus proceeding. If, however, it is not void but merely erroneous, its sufficiency cannot be tested by habeas corpus. People v. Barrett, 203 Ill. 99, 67 N. E. 742,96 Am. St. Rep. 296. That writ is not a substitute for a writ of error, and cannot be made to perform its functions....