People v. Atkinson

• Citation: 376 Ill. 623,35 N.E.2d 58
• Decision Date: 13 June 1941
• Docket Number: No. 26054.,26054.
• Parties: PEOPLE v. ATKINSON.
• Court: Supreme Court of Illinois

376 Ill. 623

35 N.E.2d 58

PEOPLE

v.ATKINSON.

No. 26054.

Supreme Court of Illinois.

June 13, 1941.

Error to Criminal Court, Cook County; Michael Feinberg, Judge.

George Atkinson was convicted of larceny of an automobile, and he brings error.

Reversed and remanded with directions.

George Atkinson, pro se.

George F. Barrett, Atty. Gen., and Thomas J. Courtney, State's Atty., of Chicago (Edward E. Wilson, John T. Gallagher, and Melvin S. Rembe, all of Chicago, of counsel), for defendant in error.

MURPHY, Justice.

Plaintiff in error, George Atkinson, was tried in the criminal court of Cook county by the court without a jury on two indictments and found guilty in each case on a count which charged larceny of an automobile and a prior conviction of robbery. He was sentenced in each case under the provisions of the Habitual Criminal act (Ill.Rev.Stat.1939, chap. 38, par. 602) for a period of twenty years, the sentences to run concurrently. After serving more than eight years of the sentences, plaintiff in error brings the common law record of each case here for review. He contends the judgments are void.

The People concede that under the holdings of this court in People v. Crane, 356 Ill. 276, 190 N.E. 355; People v. Parker, 356 Ill. 301, 190 N.E. 358;People v. Smithka, 356 Ill. 624, 191 N.E. 211; and People v. Sarosiek, 375 Ill. 631, 32 N.E.2d 311, the judgments entered were erroneous, but contend that plaintiff in error is not entitled to an absolute reversal, as prayed, but submit that the judgments should be reversed and the causes remanded with directions that plaintiff in error be resentenced in each case for the term fixed by statute for larceny of an automobile,-i. e., one to twenty years.

The Habitual Criminal act does not create a new or independent crime. It merely prescribes circumstances wherein one found guilty of a specific crime may be more severely penalized because of a previous conviction. The punishment is for the new crime only, but the penalty is made heavier by statute because the defendant is an habitual criminal. The prior conviction is no ingredient of the main offense charged but is merely a matter of aggravation going solely to the punishment to be imposed. Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917;McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 390, 45 L.Ed. 542;Goodman v. Kunkle, 7 Cir., 72 F.2d 334; Ex Parte Bailey, 60 Okl.Cr. 278, 64 P.2d 278; Ex parte Kuwitzky, 135 Neb. 466, 282 N.W. 396.

The counts upon which plaintiff in error was tried charged larceny of an automobile and, as a matter of aggravation and for the purpose of inflicting a greater penalty, it was alleged that he had been previously convicted of robbery. He was duly convicted of larceny of an automobile. Since the matters in aggravation were not an element of the offense of larceny of an automobile, they may be rejected as surplusage. This principle was recognized and adopted in People v. Boer, 262 Ill. 152, 104 N.E. 162. In that case the indictment contained one count which charged the defendant with robbery and undertook to charge that while committing the robbery he was armed with a dangerous weapon with the intent to kill and main the victim of the robbery. The indictment was good as to the charge of robbery but was defective as to the part pleaded in aggravation. The jury found him guilty of robbery and that at the time of the commission of the robbery he was armed with a dangerous weapon with intent to kill. The sentence imposed was the one provided by statute for the aggravated offense. After a full review of the authorities it was held that the part of the indictment and verdict which referred to matters in aggravation should be treated as surplusage and that the judgment was not void but erroneous. The judgment was reversed and the cause was remanded with directions for the entry of a proper judgment for robbery. The conclusion and reasoning in that case are controlling here.

Where a conviction is valid and only the sentence or judgment invalid, the judgment will not be reversed absolutely nor will it be reversed and remanded for a new trial. The rule in such case is that the judgment will be reversed and cause remanded to the trial court for the rendition of a proper judgment. People v. Wood, 318 Ill. 388, 149 N.E. 273; People v. Boer, supra; Wallace v. People, 159 Ill. 446, 42 N.E. 771. The rule is not changed even though the...