People v. Carman
| Decision Date | 19 November 1943 |
| Docket Number | No. 27521.,27521. |
| Parties | PEOPLE v. CARMAN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; Donald S. McKinlay, Judge.
James Carman was convicted of armed robbery, and he brings error.
Affirmed.James M. Burke, of Chicago, for plaintiff in error.
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 the People.
This is a writ of error to review a judgment of the criminal court of Cook county. Plaintiff in error, upon a trial before a jury, was found guilty of the crime of armed robbery. He was sentenced to the penitentiary for the term of one year to life.
The sole question involved in the case relates to the statute of limitations. There being no dispute as to the facts upon which the question is raised, it is presented purely as a question of law, dependent upon the construction of the applicable provision of the statute.
The offense was alleged to have been committed on October 12, 1939. The indictment was returned December 16, 1942 -three years, two months, and four days after the offense was committed. It was alleged in the indictment that from November 21, 1939, to December 8, 1942, the defendant ‘was not usually and publicly resident within’ the State of Illinois. This was a material averment. It raised a question of fact which the People were bound to prove. People v. Stajduhar, 335 Ill. 412, 167 N.E. 29. Without such averment, the indictment would have been quashed on motion, because it showed on its face that it was not found within the limitation imposed by law. Without proof of such averment, the defendant was entitled to invoke the bar of the statute in defense of the action. By a motion for a directed verdict, at the close of the evidence, plaintiff in error raised the question that the proof was insufficient to show that he was not usually and publicly resident within this State, as alleged in the indictment.
Section 3 of division IV of the Criminal Code provides that indictments for felonies of the character here charged, ‘must be found within three years next after the commission of the crime.’ Ill.Rev.Stat. 1941, chap. 38, par. 630. Section 5 of division IV provides: ‘No period during which the party charged was not usually and publicly resident within this state shall be included in the time of limitation.’ Ill. Rev.Stat.1941, chap. 38, par. 632.
It was stipulated in the record on the trial below that if plaintiff in error was placed on the witness stand he would testify, ‘that he lived, and his legal residence was 5131 north Winthrop Avenue, Chicago, Cook County, Illinois; that on or about the 25th of November, A. D. 1939, he visited his father in Mayfield, State of Kentucky, for the purpose of having Thanksgiving dinner with him; that while on such visit he was arrested by the police officers of the State of Kentucky and later extradited to the State of Missouri where he was on the 20th day of March, 1940, convicted of the crime of robbery, and from thence onward up to, on or about the 8th of December, A. D. 1942, incarcerated in the Missouri State Penitentiary, Jefferson City, Missouri.’ It was further stipulated ‘that it was the intention of the said James Carman to immediately return from Mayfield, Kentucky, to his legal residence.’
The question raised by the above facts is whether plaintiff in error was ‘usually and publicly resident within this State’ during the time that he was incarcerated in the penitentiary in the State of Missouri. He argues with great confidence, that involuntary confinement in a penitentiary or other prison, would not operate to change his residence; that during all the time intervening between the date on which the offense was alleged to have been committed, and the date on which the indictment was returned, he was a resident of the State of Illinois; that his involuntary absence did not change his place of residence, and that such absence cannot be made the basis for tolling the limitation under section 5 of division IV of the Criminal Code.
In support of his position he cites many cases which hold that an involuntary removal does not operate to change a person's legal residence from the jurisdiction in which he had an established residence at the time of such removal. That this is the settled rule of law, no one will deny. The cases cited and relied upon are of no value here. They are not in point on the question here involved. The question in this case is not concerned with the legal residence of plaintiff in error. Hence, any reference to the cases cited would be wholly immaterial. All will agree with the rule which they announce, in a case where that rule is applicable. The question here is, whether he was usually and publicly resident within this State during the time that he was confined in the penitentiary in Missouri, and during which time he was, at no time, within the State of Illinois. The mere statement of the question suggests the answer. In order to take the case out of the words of the statute, tolling the limitation, it is not sufficient that he might at all times have maintained an established and fixed legal residence within the State. It must appear further that he was usually and publicly resident within the State.
In this connection, an analysis of the words of the statute and a brief reference to...
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