People v. Cohen
| Decision Date | 21 February 1923 |
| Docket Number | No. 15040.,15040. |
| Citation | 138 N.E. 294,307 Ill. 87 |
| Parties | PEOPLE v. COHEN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; Anton T. Zeman, Judge.
George Cohen was convicted of robbery, and he brings error.
Affirmed.
Lester E. Williams and Charles P. R. Macaulay, both of Chicago, for plaintiff in error.
Edward J. Brundage, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and Edward C. Fitch, of Springfield (Edward E. Wilson and Clyde C. Fisher, both of Chicago, of counsel), for the People.
Plaintiff in error, George Cohen, impleaded with four other persons, was indicted in the criminal court of Cook county. The indictment contained two counts. The first count charged robbery, and contained a further allegation of aggravation in these words:
‘And the grand jurors aforesaid, upon their oaths aforesaid, do further present that the said Isadore Goldberg, the said Meyer Cohen, the said George Cohen, the said Ben Liebermann, and the said Benjamin Malichefsky then and there were armed with a certain dangerous weapon, to wit, a certain revolver, with the unlawful and felonious intent then and there, if resisted, then and there to kill and maim the said Sam Greenfield in the said robbery,’
and concluding in the usual form employed in such indictments. The second count is the ordinary count for receiving stolen property knowing it to be stolen, etc. When the case came on for hearing the state's attorney made a motion ‘to waive the gun count.’ The court then entered the order that on motion of the state's attorney the ‘gun count in the indictment in this cause be, and the same is hereby, waived.’ The record then recites that the defendant George Cohen, ‘by leave of court, now here withdraws his plea of not guilty heretofore rendered to the indictment in this cause, and for a plea thereto says that he is guilty of plain robbery in manner and form as charged.’ The record further shows that the defendant was admonished by the court, ‘and he being fully advised by the court of the effects in rendering said plea, he still persisting therein, the court orders said plea to be accepted and entered of record against the said defendant George Cohen.’ The usual sentence then followed, finding the age of the defendant to be 20 years, and by the judgment and sentence he was committed in the usual form to the state reformatory for an indeterminate sentence. The plea of guilty and sentence was entered April 27, 1920. More than two years thereafter this writ of error was sued out of this court to review the judgment.
The grounds upon which it is claimed that the judgment should be reversed are: First, that the gun count was waived, and, as that count was waived, the first count of the indictment was waived, and there could be no conviction or sentence thereunder for robbery, or under the second and only remaining count, which does not support the judgment and sentence; and, second, the Parole Law, which provides for indeterminate sentences, is void because it violates the provisions of the state Constitution.
The condition of this record is another reminder of the well-demonstrated truth that a clear understanding of the law and of the procedure applicable to any case before proceeding to the trial or disposition thereof is essential to the avoidance of embarrassing complications, and many times of fatal errors. Courts of review are often furnished, as we are in this case, with strong and able briefs and well-reasoned arguments for sustaining the judgment to be reviewed, which would have been unnecessary if more time had been employed in the first instance in ascertaining the true procedure and the law applicable to the case before diving into a trial thereof without a proper knowledge of the fundamental law and the proper procedure governing the case. In this case there were only two counts in the indictment, which have already been stated. There is no gun count in the case at all. The first count is simply a count for robbery with a gun. In other words, it does not constitute two charges or two counts against the defendant. People v. Boer, 262 Ill. 152, 104 N. E. 162.
The claim in this case is that the count for robbery was ‘waived’ by the state's attorney. The showing in the record is that the gun count was waived, and there is no such a count in the indictment. Waivers usually come about by agreement, either express or implied, entered into by the parties to the record or their attorneys, and the claim of plaintiffin error is that, by the statement of the state's attorney, and by his motion that he waived the gun count,...
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