People v. Childers

• Decision Date: 21 March 1944
• Docket Number: No. 27617.,27617.
• Citation: People v. Childers, 386 Ill. 312, 53 N.E.2d 878 (Ill. 1944)
• Parties: PEOPLE v. CHILDERS.
• Court: Illinois Supreme Court

386 Ill. 312

53 N.E.2d 878

PEOPLE

v.CHILDERS.

No. 27617.

Supreme Court of Illinois.

March 21, 1944.

Error to Circuit Court, Montgomery County; Thomas M. Jett, Judge.

Ralph Childers was convicted of burglary and larceny, and he brings error.

Judgment affirmed.

Ralph Childers, pro se.

George F. Barrett, Atty. Gen., and Alan S. Windels, State's Atty., of Hillsboro, for the People.

FULTON, Justice.

In the circuit court of Montgomery county, the plaintiff in error, Ralph Childers, on April 8, 1935, pleaded guilty to the offense of burglary and larceny and was sentenced by that court to the Southern Illinois Penitentiary at Chester to be imprisoned until discharged by due process of law. He has sued out a writ of error from this court to obtain a review of the judgment based upon his plea of guilty. No bill of exceptions was preserved, but claim is made that there are defects shown in the common-law record from the circuit court of Montgomery county. The errors assigned by plaintiff in error will be discussed in the order presented in his brief.

The plaintiff in error filed in this court what purports to be an abstract of record, which contains only a certified copy of the penitentiary mittimus issued by the Montgomery county circuit court on April 10, 1935. The People then filed a full and complete copy of the proceedings had in the circuit court of Montgomery county with reference to the above-entitled cause duly certified by the clerk of the circuit court of Montgomery county and a certificate of the now presiding judge of said court and the successor in office to the late Honorable Thomas M. Jett who presided at the trial of the plaintiff in error in said court.

It is first urged by plaintiff in error that the court erred in accepting a plea of guilty without defendant having counsel. The plaintiff in error was indicted, together with one Walter Voyles, for the crime of burglary, larceny and receiving stolen property which consisted of the theft of chickens belonging to one Albert Law. The record shows that on April 8, 1935, the plaintiff in error, together with the said Walter Voyles, signed a written waiver of trial by jury and asked the court for a trial without the intervention of a jury. This written waiver of jury was duly filed in the office of the circuit clerk of said county.

Section 9 of article II of the constitution of 1870, Smith-Hurd Stats., provides that ‘In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel,’ and there does not appear in the said constitution any mandatory requirement that counsel be assigned to a defendant in a criminal prosecution, except in capital cases. Section 2 of division XIII of the Criminal Code, Ill.Rev.Stat.1943, c. 38, § 730, provides: ‘Every person charged with crime shall be allowed counsel, and when he shall state upon oath that he is unable to procure counsel, the court shall assign him competent counsel, who shall conduct his defense.’

Under the circumstances shown by the record in this case, there was no duty upon the court to appoint counsel for the plaintiff in error. This exact question has been passed upon by this court in the case of People v. Kawoleski, 310 Ill. 498, 142 N.E. 169, 170. In that case a defendant was charged with unlawfully possessing and selling intoxicating liquors contrary to the provisions of the Prohibition Act then in force. After arrest, the defendant, Kawoleski, signed a jury waiver and in his own proper person pleaded guilty. He was then sentenced to the county jail and confined for the offense of which he was found guilty. It was contended by the defendant that he was deprived of his constitutional rights at the time he entered his plea. He filed an affidavit in supoort of his motion for a new trial in which he stated that he had no attorney at the time of entering the plea of guilty and further claimed that he did not understand the English language nor did he read or write English fluently. In passing upon the question, this court said: ‘He does not say he did not know what he was arrested for or that he did not know he was taken before the court on a charge of the violation of the Prohibition Law. He does not say he wanted an attorney or that he asked permission to consult one, and he does not say he had any defense to the charge, if he had secured an attorney and been given time to prepare for trial. It would be a dangerous precedent to reverse the judgment for the reasons set forth in the affidavit.’ This ruling was approved in the case of People v. Lavendowski, 326 Ill. 173, 157 N.E. 193.

The plaintiff in error next complains that he was not fully advised of the consequences of his plea of guilty. However, the certified record filed in this cause by the People shows that on April 8, 1935, at the time the plaintiff in error in his own proper person appeared in court and pleaded guilty to the indictment, the following entry was duly made of the proceedings in the circuit court on that date: ‘Whereupon the said defendant, Ralph Childers, is by the court fully informed and admonished as to the effect and consequences of a plea of guilty herein, and after having been informed and admonished, the said defendant persists in pleading guilty to the offense of burglary and larceny in manner and form as is charged in the indictment herein.’ The sufficiency of similar admonishment by the court as being in conformity with the statutes of the State of Illinois has many times been approved by this court. ‘When the record, as here, recites that the defendant was admonished as to the consequences of the plea, it will be presumed, in support of such recital, that the court discharged its duty.’ People v. Denning, 372 Ill. 549, 25 N.E.2d 6, 9;People v. De Rosa, 362 Ill. 161, 199 N.E. 267;People v. Throop, 359 Ill. 354,194 N.E. 533;People v. Williams, 383 Ill. 348, 50 N.E.2d 450.

It is further suggested without argument...