People v. Blumenfeld

• Decision Date: 21 June 1928
• Docket Number: No. 18683.,18683.
• Citation: 161 N.E. 857,330 Ill. 474
• Parties: PEOPLE v. BLUMENFELD.
• Court: Illinois Supreme Court

330 Ill. 474

161 N.E. 857

PEOPLE

v.BLUMENFELD.

No. 18683.

Supreme Court of Illinois.

April 21, 1928.

Rehearing Denied June 21, 1928.

Error to Circuit Court, McLean County; Edward Barry, Judge.

David Blumenfeld was convicted of robbery, and he brings error.

Reversed and remanded.

Farmer, J., dissenting.

Costigan & Wollrab, of Bloomington, and George F. Barrett and Charles V. Barrett, both of Chicago (William C. Wermuth and Edward L. Hoyer, both of Chicago, of counsel), for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., James A. Light, State's Atty., of Bloomington, Edward C. Fitch, of Springfield, and Jesse R. Willis, of Bloomington, for the People.

HEARD, C. J.

Plaintiff in error, David Blumenfeld, was convicted in the circuit court of McLean county of the crime of robbery and brings the record of his conviction here for review upon writ of error.

The crime for which plaintiff in error was convicted was the robbery of the Farmers' Bank of Chenoa on January 13, 1925, and is the same crime for which Harry Funk was convicted, the record of which conviction was reviewed by this court and an opinion filed therein, which is reported as People v. Funk, 325 Ill. 57, 155 N. E. 838. It is the contention of the prosecution in this case that plaintiff in error is the person who is called McAndrews in People v. Funk.

It is contended by plaintiff in error that the court erred in overruling his motion to quash the indictment, on the ground that the body which returned the indictment into court was an illegal body. By statute four terms are provided for the circuit court of McLean county, viz. on the second Monday of September, first Monday of November, first Monday of February, and fourth Monday of April of each year. The Circuit Court Act (Smith-Hurd Rev. St. 1927, c. 37, § 127 et seq.) provides that some of the circuit courts are excused from calling grand juries as to certain specified terms. McLean county is not so excused. The indictment against plaintiff in error was returned at the April, 1927, term of the circuit court of McLean county. No grand jury for that term was provided by the board of supervisors of the county and no order was entered by the judges of the court dispensing with the grand jury for that term on the ground that it was not necessary for the speedy administration of justice to summon such grand jury. On April 25, 1927, the state's attorney filed a petition in the circuit court asking for a special grand jury on the ground that ‘the ends of justice demand that a special grand jury be called at the present term of the circuit court of said county, for the reason that there are several persons in the county jail of the county aforesaid unable to furnish bail and entitled under the law to a trial at a term of court beginning not later than 4 months from the several dates of their commitments.’ Plaintiff in error had not then been arrested and was not then in the county jail. Acting on the petition of the state's attorney the court entered an order calling a special grand jury to meet April 27, 1927, which special grand jury met on that day and returned 19 indictments. Plaintiff in error was not among the persons indicted. After returning these indictments into court this special grand jury dispersed, but no order was entered of record adjourning it. Thereafter, on May 17, 1927, the state's attorney petitioned the circuit court of McLean county that the ‘special grand jury which has been heretofore summoned, reconvened, and, excused by this court, subject to this court,’ be reconvened on the ground that there was a person confined in the county jail of the county charged with a felony who would be entitled to a trial at the April term of the court or thereby discharged by operation of law unless he was so tried and his case disposed of at that term, and that there was several matters of unfinished business which can now be discharged by the special grand jury. Plaintiff in error was not then confined in the county jail of McLean county and no proceedings had been commenced against him in McLean county, so that his case did not come under the head of unfinished business. The court entered an order for the reconvening of the special grand jury on May 19, 1927, at which time they met and without being resworn returned the indictment upon which plaintiff in error was convicted. The original venire issued April 25, 1927, by the clerk of the circuit court to the sheriff as it appears in the abstract, containsthe names of the 23 persons to be summoned by the sheriff as such special grand jury, so that it would appear that these 23 persons had been selected by some person prior to the issuing of the venire to the sheriff instead of by the sheriff, as required by law. No point is made with reference to this irregularity and so it will not be considered.

It is contended by plaintiff in error that no regular grand jury having been summoned for the April term the court was without power to order a special grand jury. The Legislature has wisely provided that a grand jury should be selected in counties like McLean by the board of supervisors, an impartial body, from the various towns in the county, rather than by the sheriff, who in many instances is largely interested in procuring the indictment of persons whose cases are submitted to the grand jury for investigation. The dereliction of duty of boards of supervisors can not be allowed, however, to block the administration of justice or to permit persons guilty of crime to escape just punishment in this state, as the circuit court has cognizance of felonies, and therefore has, independently of statute, an inherent right, as at common law, to summon a grand jury or a special grand jury whenever the ends of justice require it to do so. Stone v. People, 2 Scam. 326;People v. McCauley, 256 Ill. 504, 100 N. E. 182;People v. Brautigan, 310 Ill. 472, 142 N. E. 208;People v. Cochrane, 307 Ill. 126, 138 N. E. 291;Brewer v. State, 137 Ark. 243, 208 S. W. 290;Green v. State, 60 Fla. 22, 53 So. 610;Cannon v. State, 62 Fla. 20, 57 So. 240;Bird v. State, 142 Ga. 596, 83 S. E. 238, Ann. Cas. 1916C, 205. It is likewise contended by plaintiff in error that the special grand jury having performed the duties for which it was called became functus officio and could not be reconvened, as the statute only provides for the reconvening of regular grand jurors and not special grand jurors, and that a special grand jury and a reconvened grand jury can only act upon the matters specified in the order for their summoning or reconvening. A special grand jury, when legally organized, is in law a valid grand jury for every purpose, and in this state the circuit court has inherent power, independently of statute, of reconvening a special grand jury. People v. McCauley, supra. A special grand jury is not restricted to the investigation of offenses committed after the regular grand jury has adjourned, but may inquire into and presentment make of any offense committed within the jurisdiction of the court not barred by the statute of limitations. State v. Overstreet, 128 Mo. 470, 31 S. W. 35;Dawson v. State, 121 Ark. 211, 180 S. W. 761;People v. McDonell, 47 Cal. 134. While it was the duty of the board of supervisors to have provided a grand jury for the April term of court, its failure to perform that duty would not render the indictment in this case invalid, and the court did not err in refusing to quash it.

The crime for which plaintiff in error was convicted was committed January 13, 1925. Plaintiff in error was first arrested therefor on May 14, 1927, about 10 o'clock at night, after he closed his store at 4568 Broadway, Chicago. He was then taken to a police station in Chicago, where he was confined until Tuesday morning, May 17, at 10 o'clock, and then taken before a judge of the circuit court of Cook county on a writ of habeas corpus.

The hearing was continued until May 23 to give the state's attorney of McLean county time to bring witnesses to Chicago to identify plaintiff in error, and in the meantime plaintiff in error was released after giving bond in the sum of $20,000 for his appearance on May 23 in the habeas corpus proceeding. On Friday night, May 20, notwithstanding their knowledge of the pendency of the habeas corpus proceedings, McLean county officials attempted to take plaintiff in error out of the jurisdiction of the Cook county court. He was taken to the Town Hall police station by police officers and from there to the detective bureau, where he was held until Saturday morning, May 21, when he was again before the circuit court and released until May 23, at which time the habeas corpus proceeding was continued until June [330 Ill. 480]10, at which time he was turned over to the McLean county authorities, who first took him on that day to Chenoa and after remaining there about 40 minutes took him to the McLean county jail, where he was confined until the time of the trial.

On the 8th of July plaintiff in error made a motion in the circuit court for a continuance until the next term of court, supported by his own affidavit and that of Fred W. Wollrab, on the ground of absent witnesses and inability of his counsel to prepare for the trial of his case. The affidavit of Wollrab was to the effect that he was one of the members of the firm of Costigan & Wollrab; that Costigan, of that firm, while on a vacation, was sought by plaintiff in error about the 10th of June, 1927, whereupon the affiant advised him that Costigan was out of the city for about 9 days; that thereupon plaintiff in error sought to know whether his case would be tried at the April term of court and whether he could afford to await such return; that at the suggestion of plaintiff in error affiant attempted to learn from the state's attorney if the case was to be tried at the April term of court; that he called at the office of the state's attorney on 4 occasions within the period of 3 days...