People v. Emblen
| Decision Date | 19 December 1935 |
| Docket Number | No. 23247.,23247. |
| Citation | 199 N.E. 281,362 Ill. 142 |
| Parties | PEOPLE v. EMBLEN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; Grover C. Niemeyer, Judge.
Arthur Emblen was convicted of assault with intent to murder, and he brings error.
Judgment reversed, and defendant discharged.
Wm. Scott Stewart, of Chicago, for plaintiff in error.
Otto Kerner, Atty. Gen., Thomas, J. Courtney, State's Atty., of Chicago, and A. B. Dennis, of Danville (Edward E. Wilson, John T. Gallagher, and Richard H. Devine, all of Chicago, of counsel), for the People.
The defendant, Arthur Emblen, was in the criminal court of Cook county, on a trial before a jury, found guilty of an assault with intent to murder Eli J. Daiches, and sentenced to the penitentiary. In response to a writ of error sued out of this court by the defendant, the record is here for review.
Numerous errors are assigned and argued, but in the view we take of the case the decision of the error charged on the denial of the defendant's petition for discharge obviate the consideration of the other supposed errors.
The defendant was arrested October 19, 1934, at Gary, Ind., and on the same day was returned to Cook county, Ill. On some subsequent date not disclosed by the meager record on that subject he was indicted for conspiracy and process issued thereon, although neither the indictment, the process, nor the service of process, if such process was ever served on the defendant, is in the record. Apparently the defendant, after the expiration of more than four months following his arrest, filed his petition for discharge on the indictment for conspiracy under the provisions of section 18 of division 13, as amended, of the Criminal Code. Smith-Hurd Ann.St. c. 38, § 748, Ill. State Bar Stat. 1935, c. 38, par. 771, p. 1256. On the hearing of that petition the people, in order to sustain their contention that the defendant was not and had not been detained nor restrained of his liberty under the conspiracy charge, offered in evidence the affidavit of Otto Erlanson, lieutenant of police of Chicago, which stated, in substance, that he had ordered the arrest of the defendant, at that time living in Gary, Ind.; that Emblen was arrested there October 19, 1934; that Lieutenant Erlanson talked to him; that defendant then and there expressed a willingness to return to Chicago and tell of his participation in the beating of Daiches; and that Emblen waived extradition. The state's attorney stated here that the conspiracy indictment was subsequently stricken. The indictment in the case now before us was returned June 5, 1935.
The record shows that prior to his trial on the charge in the latter indictment the defendant filed his verified petition for discharge under the provisions of section 18 of division 13 of the Criminal Code on the ground that he was not brought to trial within four months from the date of his commitment. To sustain the allegations of the petition and authorize the discharge, it was incumbent on the defendant to show, in substance, that he was committed for the criminal offense of assault with intent to kill, had not been admitted to bail, had not been tried by the court having jurisdiction of the offense within four months of the date of his commitment, and that the delay had not happened on his application. The evidence shows the defendant had not been admitted to bail and that the delay in bringing him to trial had not happened on his application, nor had he been tried on the charge of assault to kill within four months of October 19, 1934. While there is some conflict in the evidence as to some of the details of the manner of the defendant's restraint, there is no substantial controversy but that the defendant was returned from Gary to Chicago in the custody of a police officer, at the time aforesaid, on the charge of assaulting Daiches, but was not indicted on the present charge until more than seven months after his arrest on that charge. Further, that from the day of his arrest until his transfer to the jail proper, as hereinafter stated, the defendant was held on the fifth floor of the Administration building in charge of police officers 24 hours a day, and while he was kept there in a room, and not in a cell, as that term is commonly used and understood, he was never permitted his liberty; that when he went to the second floor for his meals he was always in the custody of an officer; that later, apparently the latter part of February, 1935, he was transferredto and held in the county jail, which is located in the same Administration building.
The people contend that the defendant was not in custody nor committed, but was of his own volition staying in the Administration building as a witness for the people in a case pending against other defendants charged with the murder of Daiches. In order to refute such contention, and also to...
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United States v. Ragen
...constitutional rights. A long line of Illinois decisions has so held. Newlin v. People, 221 Ill. 166, 175, 77 N.E. 529; People v. Emblen, 362 Ill. 142, 199 N.E. 281; People v. Stillwagon, 373 Ill. 211, 25 N.E.2d 795; People v. Stillman, 391 Ill. 227, 228, 62 N.E.2d As the court stated in th......
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People v. Williams
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People v. Gray
...that the statute could not be evaded by refusing to prosecute through turning the accused over to Federal authorities. In People v. Emblen, 362 Ill. 142, 199 N.E. 281, the defendant was arrested without a warrant. He was subsequently indicted but no warrant was ever served by reason of the ......
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