People v. Bain

• Decision Date: 05 December 1934
• Docket Number: No. 22060.,22060.
• Citation: 193 N.E. 137,358 Ill. 177
• Parties: PEOPLE v. BAIN et al.
• Court: Illinois Supreme Court

358 Ill. 177

193 N.E. 137

PEOPLE

v.BAIN et al.

No. 22060.

Supreme Court of Illinois.

Oct. 24, 1934.

As Modified on Denial of Rehearing Dec. 5, 1934.

Error to Criminal Court, Cook County; James F. Fardy, Judge.

John Bain and others were convicted of receiving a deposit in a bank, of which they were officers, with knowledge of its insolvency, and they bring error.

Reversed and remanded with directions.Harry Olson, Sanford Olson, and John H. Rogers, all of Chicago, for plaintiffs in error.

Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson and Grenville Beardsley, both of Chicago, of counsel), for the People.

HERRICK, Justice.

The plaintiffs in error (hereinafter called the defendants) were indicted by the grand jury for the September term, 1932, of the criminal court of Cook county. The indictment charged the defendants severally, as officers of the West Englewood Trust & Savings Bank, on June 9, 1931, with receiving a deposit of $33 then and there knowing that such bank was then, and for a long time prior thereto had been, insolvent, and that because of such insolvency such deposit so made was lost to the depositor. (Smith-Hurd Ann. St., c. 38, § 61, Cahill's Rev. St. 1933, c. 38, par. 38, p. 991.) The defendants were found guilty and sentenced to pay a fine of $66 and to be imprisoned in the penitentiary for not less than one nor more than three years. A constitutional question being involved, a writ of error was sued out direct from this court.

Numerous errors are assigned upon the record, but they may be grouped under three divisions: (1) The proceedings upon which the indictment, conviction, and sentence were had took place in the criminal court building of Cook county located in the town of West Town of such county, and not at the county seat of Cook county, and not being the place provided by law for the holding of any such proceedings, all such proceedings were void; (2) the grand jury which returned the indictment against the defendants was an illegal grand jury for the reasons (a) the act under which it was ordered, drawn, and impaneledwas unconstitutional, (b) more than twenty-three names were drawn from the grand jury box, and (c) the grand jury was not drawn by lot and by chance; (3) the court erred in overruling the plea in bar interposed by the defendants, in finding them guilty, and in imposing the judgment of conviction.

In support of their first assignment of error the defendants urge that the criminal court building, located at Twenty-sixth street and California avenue, in the city of Chicago, is not within the corporate limits of the original town of Chicago. By section 1 of ‘An act to create and organize the counties therein named,’ in force January, 1831 (Laws of 1831, p. 54), the county seat of Cook county is declared to be permanently established at the town of Chicago. Section 10 of the same act provides that ‘the public buildings at Chicago shall be erected on the public square, as laid off by the canal commissioners, on the south side of the Chicago river.’

The defendants trace is a very entertaining and instructive manner the historical chronology of the several legislative acts from 1831 dealing with the location of county seats in this state. The facts show that the criminal court building of Cook county is situated approximately six miles from the county building, which latter place is located within the corporate limits of the original town of Chicago. It is conceded that the criminal court building is erred outside of the corporate limits of the original town of Chicago, but within the present corporate boundaries of the present city of Chicago.

The Legislature passed an act approved July 2, 1925, by which it was provided that in counties of 500,000 inhabitants or over, where the county seat is located entirely within the corporate limits of a city of village, the limits of such county seat shall be coextensive with the boundaries of such city or village as the same then existed or may thereafter be constituted. (Smith-Hurd Ann. St., c. 34, § 111a, Cahill's Rev. St. 1933, c. 34, par. 118(1), p. 860). The people rely upon the authority of the statute of 1925 as finally setting any question as to whether such county building is located at the county seat. The defendants contend that that statute neither applied to nor cures the situation presented; that if the statute does apply, it is unconstitutional and is violative of section 4 of article 10 of the Constitution; that to give the statute the construction claimed by the people is to permit the removal of the county seat without a vote of the people, as required by such section 4. The people further urge that there is no requirement of the Constitution creating the criminal court which requires it to sit at the county seat, and that if the act of 1925 is violative of the Constitution, nevertheless the criminal court, by virtue of such statute, is located and functions at the de facto county seat, and the question of whether the criminal court legally acted within the criminal court building is not open for investigation or decision in this proceeding. The cases cited by the defendants in support of this branch of the case are not in point.

There are several states in which the courts of last resort have held that where the nisi prius court has been conducted at a place fixed by statute, even though such statute be invalid, the action of the authorities so locating the courthouse may not be questioned collaterally and that the place where the court was held was a de facto county seat. Territory v. Clark, 15 N. M. 35, 99 P. 697;In re Allison, 13 Colo. 525, 22 P. 820,10 L. R. A. 790, 16 Am. St. Rep. 224;Sevier v. Teal, 16 Tex. 371;Watts v. State, 22 Tex. App. 572, 3 S. W. 769;Board of Com'rs of Day County v. Kansas, 19 Okl. 375, 91 P. 699.

In Robinson v. Moore, 25 Ill. 118, the error, and apparently the only error, assigned on the record was that the judgment of the circuit court of Saline county sought to be reviewed in that case was rendered at Harrisburg instead of at Raleigh, the county seat. The opinion of the court states: ‘So far as we can judge from the manner in which this case has been presented, we suppose it is the purpose of the appellants to try, in this mode, as to where the legal county seat of Saline county is. * * * But beyond all this, we cannot try the question sought to be raised, in this collateral way. Whenever we settle that question, it must be on a direct proceeding for that purpose. This may be a question of great doubt, depending upon controverted facts; and it would be monstrous indeed to hold, that if the circuit judge was mistaken in his conclusions, as to which place was the legal county seat, all his judgments were therefore void, and all his proceedings mere nullities. Such is not the law, and the judgment is affirmed.’

The issue decided in the Robinson Case is based upon just and sound legal principles. That decision has stood as the law of this state for almost three-quarters of a century, and we are not disposed to depart from it nor question the soundness and correctness of its holding. This proceeding is not a direct proceeding attacking the validity of the act of 1925, nor is the question open as to the legal right of the criminal court to exercise its judicial functions at a point without the boundaries of the original town of Chicago.

The alleged insufficiencies and defects of the indictment go to the legality of the body returning it and not to the sufficiency of the indictment as a pleading. A written motion to quash the indictment was made by the defendants, severally. This motion set out fully and in detail the reasons urged against the validity of the indictment as grouped under divisions (1) and (2), supra.

On behalf of the people it is asserted that the grounds urged against the legality of the indictment cannot be reached or reviewed on motion to quash; that a motion to quash reaches only defects appearing within the four corners of the indictment, as a paper pleading or some defect shown on the record at the time of the making of the motion. Their position in this respect is not tenable. Early in the history of this state this court recognized the rule that an attack on the validity of an indictment because returned by a body not legally assembled could be reached by a motion to quash the indictment. Bell v. People, 1 Scam. 397;Stone v. People, 2 Scam. 326. The practice in that respect so approved by those decisions has been adhered to by many subsequent decisions of this court. The legality of the Constitution of the grand jury may be reached by a motion to quash, and the court may hear evidence upon the hearing of such motion. Marsh v. People, 226 Ill. 464, 80 N. E. 1006;People v. Green, 329 Ill. 576, 161

The legality of the grand jury returning the indictment in this case is challenged on several different grounds by the defendants. It is urged that the Jury Commissioners Act, as amended by act approved July 2, 1931 (Smith-Hurd Ann. St., c. 78, § 24 et seq., Cahill's Rev. St. 1933, c. 78, par. 26 et seq., p. 1725 et seq.), is unconstitutional, in that it is a local or special law regulating the practice of courts of justice and providing for the summoning and impaneling of grand and petit juries contrary to the provisions of section 22 of article 4 of our state Constitution, and also violative of section 29 of article 6, which requires that all laws relating to courts shall be general and of uniform operation, and that all laws regulating the organization, powers, proceedings, and practice of all courts of the same class shall be uniform; that the act is unconstitutional in attempting to delegate powers to the judges of the courts of record of Cook county to promulgate rules governing the manner in which the act shall to executed, and because the act does not prescribe the number of...