People v. Clavey
| Decision Date | 23 February 1934 |
| Docket Number | No. 21939.,21939. |
| Citation | 355 Ill. 358,189 N.E. 364 |
| Parties | PEOPLE v. CLAVEY. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; John Prystalski, Judge.
Robert Clavey was indicted for willfully and maliciously burning a church and was adjudged guilty of arson, and he brings error.
Reversed.
Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson, J. Albert Woll, and Henry T. Seyfarth, all of Chicago, of counsel), for the People.
On October 31, 1930, the plaintiff in error (hereinafter referred to as the defendant) was jointly indicted with one Diettrich, in the criminal court of Cook county, on the charge that he ‘unlawfully, feloniously, willfully and maliciously did burn a certain church, towit, a certain frame building situated at and commonly known as No. 338 East Washington avenue, in the village of Glencoe, in the county of Cook and State of Illinois aforesaid, then and there the property of St. Paul African Methodist Episcopal Church Society, a corporation, contrary to the statute,’ etc. The indictment was indorsed, ‘indictment for arson.’
The record shows that the cause, which was eventually tried before the court without a jury, was continued on thirty-five different occasions, and that there were four different hearings on which evidence was taken. The defendant Diettrich moved for a separate trial, which was allowed on Jund 15, 1931. The order granting it was vacated on January 6, 1932, and again entered on January 19, 1932. The hearing on defendant's case began on June 2, 1932, on plea of not guilty, and continued on June 3, 1932, when defendant Clavey entered a plea of guilty. After the cause had been continued, by agreement, first to June 6, 1932, then to June 10, 1932, and then to June 23, 1932, Diettrich withdrew his plea of not guilty and pleaded guilty. Thereafter the cause was continued six different times until the 16th of September, 1932, when a motion was made by the plaintiff in error for permission to withdraw his plea of guilty and to file a plea of not guilty. On the state of the record, at the time this motion was made, the people had failed to prove the ownership of the property as laid in the indictment. The indictment alleged the building to be the property of the ‘St. Paul African Methodist Episcopal Church Society, a corporation,’ whereas the deed offered in evidence showed ownership of the property to be in the ‘African Methodist Episcopal Church of Glencoe, a religious corporation.’ There was no proof of incorporation, and such proof as had been attempted on the point indicated that the church was not a corporation. Proper objections were made on these points.
The affidavits in support of the motion for leave to withdraw the plea of guilty and substitute a plea of not guilty, and the record of the case, show that during the long period of time when the case was being continued, the defendant, his attorney, the state's attorney, the assistant state's attorney, the fire marshal, and the court were all seeking for some proper and suitable means of disposing of the matter. It appears that on numerous occasions the presiding judge stated that this was not a proper case in which to commit the defendant to the penitentiary; that the evidence showed the defendant was drunk, and the court instructed the state's attorney to procure a malicious mischief indictment; that after the court had indicated his views of disposition of the case, the defendant, on advice of his counsel, who had informed him that the court would not sentence him to the penitentiary, did on June 3, 1932, withdraw his plea of not guilty and enter a plea of guilty. The affidavits show that a deputy fire marshal of the state of Illinois had requested the attorney for the defendant to assist the state in prosecuting the codefendant, Diettrich, and that he had made definite promises of recommendation of immediate probation, and assurance that the same would be granted by the court if the defendant would be a ‘good witness'; that the defendant withdrew his plea of not guilty and entered a plea of guilty in reliance upon the various representations which were made to him by his own attorney, and through said attorney, by the fire marshal and assistant state's attorney, and that as a direct result of changing his plea Diettrich also pleaded guilty; that the presiding judge attempted to carry out this arrangement and announced his decision that a penitentiary sentence should not be entered and directed the state's attorney to bring in a malicious mischief count; that the assistant state's attorney stated to the court that if the court would increase the bond and hold the man in jail for ninety days, probation thereafter would be agreeable to the state's attorney; that the state fire marshal acquiesced in the court's proposed disposition of the case, and the court stated that several directors of the church had likewise acquiesced. The affidavits further state that the defense had matters worthy of the consideration of a jury; that the prosecution was relying upon an alleged confession of the defendant wherein it was recited that he was intoxicated at the time of the alleged commission of the offense, and that grave doubt worthy of the consideration of a jury existed as to whether or not the defendant had the capacity to commit the offense and form the necessary specific intent by reason of his condition of intoxication at the time of the fire. The affidavit of the attorney for the defendant, and of the defendant himself, stated that the attorney had communicated the promises and inducements offered by the state fire marshal to the defendant, and that he changed his plea in reliance upon those representations. At the close of all of the evidence, and after overruling the motion for leave to withdraw the plea of guilty, the court entered an order finding ‘the said defendant, Robert F. Clavey, guilty of arson in manner and form as charged,’ and ordered ‘the said defendant, Robert F. Clavey, to be, and he hereby is, sentenced to the penitentiary of this State at Joliet for the crime of arson whereof he stands convicted, for a term of years not to exceed the maximum term fixed by statute for the crime whereof he stands convicted and * * * until discharged according to law, provided said term of imprisonment in said penitentiary shall not exceed the maximum term for the crime for which the said defendant was convicted and sentenced.’
It appears that this case was tried by the court and all of the parties upon a theory that the indictment charged arson. The crime of arson, at common law, is a willful and malicious burning of a dwelling house, or outhouse within the curtilage of a dwelling house of another person. People v. Covitz, 262 Ill. 514, 104 N. E. 887. This common-law crime no longer exists in Illinois, and we have in place thereof five different statutory provisions covering the intentional burning of property, only one of which is denominated by the term ‘arson.’ Section 13 of the Criminal Code of 1874, as amended in 1929 (Smith-Hurd Rev. St. 1933, c. 38, § 48, Cahill's Rev. St. 1933, c. 38, par. 25, p. 990), provides that any one who willfully and maliciously sets fire to or burns certain buildings, including dwelling houses, etc., shall be guilty of arson and shall be punished by a term in the penitentiary of from one to twenty years. Section 14 (Smith-Hurd Rev. St. 1933, c. 38, § 49) provides a penalty of one to five years against any person who willfully and maliciously burns property for the purpose of defrauding an insurance company. This is not called arson in the definition of the crime in the statute. Section 16 (Smith-Hurd Rev. St. 1933, c. 38, § 51), under which this indictment was drawn, provides a penalty of not less than one nor more than ten years for any one who willfully and maliciously sets fire to or burns certain named buildings, including churches. This is not described in the statute as being arson, and we have held that the crimes defined...
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