People v. Barber

• Decision Date: 20 April 1932
• Docket Number: No. 21130.,21130.
• Citation: 348 Ill. 40,180 N.E. 633
• Parties: PEOPLE v. BARBER.
• Court: Illinois Supreme Court

348 Ill. 40

180 N.E. 633

PEOPLE

v.BARBER.

No. 21130.

Supreme Court of Illinois.

Feb. 19, 1932.

As Modified on Denial of Rehearing April 20, 1932.

Error to Criminal Court, Cook County; Walter Stanton, Judge.

Walter Barber was indicted for bigamy, and, the indictment having been quashed, the People bring error.

Writ of error dismissed.

Oscar E. Carlstrom, Atty. Gen., John A. Swanson, 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.

Benjamin C. Bachrach, of Chicago, for defendant in error.

ORR, J.

This writ of error is sued out by the people to reverse a judgment of the criminal court of Cook county quashing an indictment for bigamy against the defendant in error. In quashing the indictment the trial judge held that it had failed to describe the parties or subject-matter with sufficient certainty. It is not contended that the defendant had been placed in jeopardy before the entry of the judgment quashing the indictment. The sole question presented is whether the state has the right in a criminal case to sue out a writ of error to reverse a judgment quashing an indictment, in view of statutory provisions to the contrary.

In 1845 the Legislature passed a statute prohibiting the issuance of a writ of error on behalf of the people in a criminal case. If we are to now hold that such a writ will lie, we must necessarily hold that this statute is unconstitutional. This statute (Smith-Hurd Rev. St. 1931, c. 38, § 747) is as follows: ‘Exceptions may be taken in criminal cases, and bills of exceptions shall be signed and sealed by the judge, and entered of record, and error may be assigned thereon by the defendant, the same as in civil cases: Provided, that in no criminal case shall the people be allowed an appeal, writ of error or new trial.’ This statute expressly gives the defendant the right to assign errors upon exceptions, but no provision is made for exceptions or assignments of error on the part of the people, and it explicitly denies to the people any appeal, writ of error, or new trial in a criminal case.

It is contended by the people that sections 2 and 11 of article 6 of the Constitution of 1870 contain provisions which should be construed so that this court has the power to review the judgment of a trial court quashing an indictment. The pertinent language of these sections is:

‘§ 2. The supreme court shall consist of seven judges, and shall have original jurisdiction in cases relating to the revenue, in mandamus and habeas corpus, and appellate jurisdiction in all other cases,’ etc.

‘§ 11. After the year of our Lord 1874, inferior appellate courts, of uniform organization and jurisdiction, may be created in districts formed for that purpose, to which such appeals and writs of error as the general assembly may provide may be prosecuted from circuit and other courts, and from which appeals and writs of error shall lie to the supreme court, in all criminal cases, and cases in which a franchise or freehold or the validity of a statute is involved, and in such other cases as may be provided by law,’ etc.

The people contend that the words ‘appellate jurisdiction in all other cases,’ used in section 2 above, and the words ‘and from which appeals and writs of error shall lie to the supreme court, in all criminal cases,’ used in section 11, mean what those terms meant at the common law. Even if we could determine with any certainty just what the English common law was upon this subject-a task which has puzzled eminent jurists and commentators-we would still be confronted with our own statute. This statute has stood unchallenged as the existing law of this state for nearly a century. Its provisions are certain and have not been misunderstood.

Before considering our own statute and Constitution, it is of moment to note the diversity of views which prevail concerning the common law on this subject. Thus, in State of Florida v. Burns, 18 Fla. 185 (decided in 1881) it was held that the state was not entitled to a writ of error to reverse the judgment of the circuit court quashing an indictment. There, after holding that New York, Arkansas, and Maryland were the only states which had granted the people the right in a criminal case to sue out a writ of error after judgment, the court said: ‘In all other States the right of the State to the writ is denied. The weight of authority is overwhelming, not only in this country but in England, that the writ will not lie at the instance of the State, and it is evident from the character of the legislation on the subject in this State that it has never been contemplated that the State could further pursue parties who had obtained judgment in their favor in prosecutions by indictment,whether by the judgment of the court or verdict of a jury.’

It is the consensus of judicial opinion that the sole function of a writ of error at common law was to bring up for review errors appearing on the face of the record. In Rex v. Wilkes, 4 Burr. 2550, Lord Mansfield inter alia said: ‘Till the third of Queen Anne a writ of error in any criminal case was held to be merely ex gratia. * * * But in the third of Queen Anne ten judges were of the opinion that in all cases under treason and felony a writ of error was not merely of grace but ought to be granted. It cannot issue now without a fiat from the Attorney General, who always examines whether it be sought merely for delay or upon a probable error. * * * In a misdemeanor, if there be a probable cause, it ought not to be denied. This court would order the Attorney General to grant his fiat. But, be the error ever so manifest in treason or felony, the king's pleasure to deny the writ is conclusive.’ The headnote to the case In re Pigott, 11 Cox's Crim. Cas. 311 (decided in 1868) reads: ‘The granting of a writ of error is part of the prerogative of the crown. If, therefore, the Attorney General of England or the Lord Lieutenant of Ireland refuse to grant it, the Lord Chancellor has no jurisdiction to review that decision.’

It seems that the writ was never granted except when the king, from justice when there really was error or from favor where there was no error, was willing that the judgment should be reversed. The Attorney General never made any opposition after the writ of error was granted, either because he had certified there was error and could not argue against his own certificate, or the crown meant to show favor, and then he had orders not to oppose. The king, who had the absolute power of pardon, having thus expressed his willingness that the judgment should be reversed, the court reversed it upon very slight and trivial objections which could not have prevailed if any opposition had been made or if the precedent had been of any consequence. 1 Bishop on Crim. Proc. (2d Ed.) par. 1191. Thus it will be seen that, under the English practice, a writ of error did not issue as a matter of course upon the application of a convicted defendant, but that the writ was resorted to by the crown to show favor to a convicted person and to bring about a reversal of the judgment against him. And it does not appear that the writ was ever used by the Attorney General in England to reverse a judgment of acquittal until 1841, in the case of Regina v. Houston, 2 Craw. & Dix. 191. Prior to that time we have been unable to find a single reported case in England, and none has been cited to us, where the king has brought error after a judgment of acquittal. Prior to 1841 all reported cases examined by us where the king has brought error after a judgment have been those cases wherein the judgment was against, and not in favor of, the defendant. In Regina v. Millis, 10 Cl. & F. 534 (decided in 1843) and Regina v. Chadwick, 11 Q. B. (N. S.) 205 (decided in 1846), the right of the crown to sue out a writ of error to reverse a judgment of acquittal was affirmed. Prior to these decisions, however, such right, if it existed in England, must be assumed merely from inferences and dicta. There is a saying of Lord Coke (3 Inst. 214) from which an inference may be drawn in favor of the right of the crown to bring error in a criminal case, and there are several passages in an opinion of Lord Hale (2 P. C. 247, 248, 394, 395), from which like inferences may be drawn, but nothing is directly affirmed on the subject by either of these learned commentators. An examination of Regina v. Houston, Regina v. Millis and Regina v. Chadwick shows that in none of these cases was the question raised as to the right of the Attorney General to sue out the writ. Because of this failure it is argued by the people that it must be an accepted fact that the right of the crown to take the writ in case of an acquittal was indisputable. To a similar contention made in the celebrated case of People v. Corning, 2 N. Y. 9, 49 Am. Dec. 364 (decided in 1848) dealing with this same question before the Legislature of New York had passed a statute (1852, c. 82) specifically authorizing the state to sue out writs of error in such cases, the court held: ‘The weight of authority seems to be against the right of the government to bring error in a criminal case. The absence of any precedent for it, either here or in England, until within a very recent period, fully counterbalances, if it does not outweigh the fact, that the right has lately been exercised in a few instances without objection. And in three of the four states where the question has been made, the courts have decided that the right does not exist.’ Archbold, speaking in 1844 of cases wherein a writ of error will lie in England, says judgment must have been given on an indictment and it must be a judgment against the defendant, for there is no instance of error being brought upon a judgment for a defendant after an acquittal. 1 Archbold on Crim. Pl. & Pr. (8th Ed.) p. 623.

In this country it is almost uniformly held that the writ will...