People v. Dieckman
| Decision Date | 21 November 1949 |
| Docket Number | No. 31064.,31064. |
| Citation | 404 Ill. 161,88 N.E.2d 433 |
| Parties | PEOPLE v. DIECKMAN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
William J. Dieckman was convicted of robbery and assault with intent to commit rape in the Criminal Court, Cook County, Julius Hoffman, J., and he brought error.
The Supreme Court, Crampton, J., reversed the judgment holding that trial court's refusal to permit the defendant to file an amended or new petition for change of venue alleging prejudice of trial judge in order to comply with venue statute, constituted reversible error.Thaddeus C. Toudor, and Zoe Kuta, both of Chicago, for plaintiff in error.
Ivan A. Elliott, Atty. Gen., and John S. Boyle, State's Atty., of Chicago (John T. Gallagher, W. S. Miroslawski, Rudolph L. Janega, Edmund H. Grant, and Irving Lang, all of Chicago, of counsel,) for the People.
By two indictments returned in the criminal court of Cook County, plaintiff in error was charged respectively with robbery and assault with attempt to commit rape. At his arraignment on January 14, 1948, a plea of not guilty was entered as to each indictment, and the right to a trial by jury was waived. By stipulation of counsel the two cases were tried at the same time. At the conclusion of the testimony defendant was found guilty of each offense and sentenced to the penitentiary on each charge for a term of not less than thirteen years nor more than fourteen years, the sentences to run concurrently. A writ of error has been issued out of this court to review the proceedings.
Several errors have been assigned. It is unnecessary, however, to discuss all of them, as we conclude that a failure of the court to afford defendant an adequate opportunity to obtain a change of venue requires a reversal.
The record discloses that on February 27, 1948, the cause was assigned to the present judge, and was reached for trial on March 2. On that day the defendant presented a petition for change of venue, alleging his belief that the trial judge was prejudiced against him. The petition was not accompanied by a supporting affidavit of his attorney, and was accordingly denied.Defendant's contention that the court misconstrued the statute in this respect is without merit, as it explicitly requires that ‘When the cause for a change of venue is the prejudice of the judge or any two of them against the defendant or his attorney, the petition shall be accompanied by the affidavits of the defendant and his attorney, stating that they believe the judge, or any two of them, as the case may be, are so prejudiced against the applicant or his attorney, that he cannot have a fair and impartial trial, * * *.’ (Ill.Rev.Stat. 1947, chap. 146, par. 21.) As the right to a change of venue is statutory, the applicant must bring himself within the statutory requirements. While not affecting the determination of the issue herein, this section in its present form now requires only the affidavit of the defendant or that of his attorney, the amendment having been adopted at the last session of the General Assembly.
Defendant further maintains, however, that the court erred in denying him leave to file an additional petition complying with the prescribed requirements. After defendant's petition had been denied, his attorney moved the court for permission to withdraw it and substitute a new petition. This motion was denied. A further motion for a continuance to the following day to amend the petition by filing a proper...
To continue reading
Request your trial
-
People v. Walker
...v. Smith (1963), 28 Ill.2d 445, 447, 192 N.E.2d 880; People v. Mosley (1962), 24 Ill.2d 565, 570, 182 N.E.2d 658; People v. Dieckman (1949), 404 Ill. 161, 164, 88 N.E.2d 433. The issue in this appeal is whether section 114-5(a) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1985, c......
-
People v. Tate
..., 28 Ill. 2d 445, 447, 192 N.E.2d 880 (1963) ; People v. Kostos , 21 Ill. 2d 451, 454–55, 173 N.E.2d 469 (1961) ; People v. Dieckman , 404 Ill. 161, 164, 88 N.E.2d 433 (1949) ; People v. Scott , 326 Ill. 327, 341, 157 N.E. 247 (1927) ; People v. Harston , 23 Ill. App. 3d 279, 281, 319 N.E.2......
-
In re Estate of Wilson
...question is in accord with the spirit of the law, which demands that every case be fairly and impartially tried. People v. Dieckman, 404 Ill. 161, 164, 88 N.E.2d 433, 434 (1949). Although there was some authority for what the judge did in this case, we do not agree with decisions which allo......
-
People v. Tate
...denied. See, e.g., People v. Smith, 28 Ill. 2d 445, 447 (1963); People v. Kostos, 21 Ill. 2d 451, 454-55 (1961); People v. Dieckman, 404 Ill. 161, 164 (1949); People v. Scott, 326 Ill. 327, 341 (1927); People v. Harston, 23 Ill. App. 3d 279, 281 (1974); People v. Pace, 225 Ill. App. 3d 415,......