People v. Evenow

• Decision Date: 23 February 1934
• Docket Number: No. 22218.,22218.
• Parties: PEOPLE v. EVENOW.
• Court: Illinois Supreme Court

355 Ill. 451

189 N.E. 368

PEOPLE

v.EVENOW.

No. 22218.

Supreme Court of Illinois.

Feb. 23, 1934.

Error to Criminal Court, Cook County; Charles A. Williams, Judge.

Walter Evenow was convicted of murder, and he brings error.

Affirmed.

James M. Burke, George M. Crane, Thomas E. Kluczynski, and David Hartigan, all of Chicago, for plaintiff in error.

Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson, Albert J. Woll, and Henry E. Seyfarth, all of Chicago, of counsel), for the People.

JONES, Justice.

Walter Evenow, called the defendant, was jointly indicted in Cook county with John Senew, Frank Mallen, and Michael Senew for the murder of William Rumbler. Mallen was not apprehended. Michael Senew was granted a severance. Evenow and John Senew were tried before a jury in the criminal court of Cook county. They were convicted and sentenced to sixty years' imprisonment in the penitentiary. Evenow has prosecuted a writ of error.

On the night of October 12, 1930, a man, who the evidence shows was Evenow, entered the soft drink parlor of James Purcelle, at 3174 Milwaukee avenue, Chicago. In the front room of Purcelle's place of business was a bar, a table, and a few chairs or stools. In the back room was a piano and a small amount of furniture. Purcelle was seated on a stool back of the bar, and Rumbler was seated on a stool immediately in front of the bar. Two itinerant negro musicians were in the back room. When Evenow entered the barroom, he asked Purcelle if Mickey Galvin was around. Shortly thereafter two other men, one of whom is said to have been John Senew and the other Frank Mallen, entered the barroom from the street, and some one said, ‘Stick them up!’ The men who came in last went toward the back room. Evenow started to walk around Rumbler, and, as he did so, Rumbler, who was a police officer, but off duty at the time, drew his gun and grappled with Evenow. Shooting started, and a number of shots were fired. Rumbler was killed, Evenow's leg was broken by a bullet, and John Senew received a superficial wound on the abdomen.

Evenow did not testify in his own behalf before the jury. Senew was a witness and denied participation in the crime. The evidence leaves no room to doubt plaintiff in error's guilt. There is no assignment of error that the verdict is against the weight of the evidence. The errors assigned are: The failure of the record to show that the defendant was arraigned or entered a plea; the admission of a confession alleged to have been made by defendant; misconduct of both the trial judge and the state's attorneyto the prejudice of the defendant; and the overruling of a motion for a new trial.

The record does not show that the defendant was ever arraigned, but it discloses that on May 11, 1931, he made a motion for a separate trial, which was overruled, and then the following entry appears: ‘May 11, 1931.—Motion State for separate trial as to Michael Senew. Sestained. Plea of not guilty heretofore entered as to the said defendants, John Senew and Walter Evenow, and issue being joined. Selection of jury.’ There is no other reference to a plea in the record. It is the contention of the defendant that the language, ‘Plea of not guilty heretofore entered as to the said defendants, John Senew and Walter Evenow,’ does not constitute a record entry of a plea—that it is simply a recital of a past event—and that the records shows an absence of any plea of not guilty ‘heretofore entered.’ Section 3 of division 13 of the Criminal Code (Smith-Hurd Rev. St. 1933, c. 38, § 731, Cahill's Rev. Stat. 1933, c. 38, par. 755), is as follows: ‘Upon the arraignment of a prisoner, it shall be sufficient, without complying with any other form, to declare orally, by himself or his counsel, that he is not guilty; which plea shall be immediately entered upon the minutes of the court by the clerk, and the mention of the arraignment and such plea shall constitute the issue between the people of the state and the prisoner. And if the clerk neglects to insert in the minutes the said arraignment and plea, it may and shall be done at any time by order of the court, and then the error or defect shall be cured.’ The provision for arraignment may be waived. One method of waiving it is by entering a plea and proceeding to trial. Fitzpatrick v. People, 98 Ill. 259. But the provision for the entry of a plea is mandatory, and since the decision in the case of Johnson v. People, 22 Ill. 314, this court has consistently observed the rule that, where the record does not affirmatively show the entry of a plea of not guilty, there is no issue, and there is nothing to be tried by a jury. The absenceof such affirmative showing is fatal to the record. Johnson v. People, supra; Yundt v. People, 65 Ill. 372;Hoskins v. People, 84 Ill. 87, 25 Am. Rep. 433;Parkinson v. People, 135 Ill. 401, 25 N. E. 764,10 L. R. A. 91;People v. Kennedy, 303 Ill. 423, 135 N. E. 762. Counsel for the state have cited authorities to the contrary from certain other jurisdictions, but we adhere to our own rule, not only because of the doctrine of stare decisis, but because in our judgment it better comports with the proper administration of justice.

[4] The word ‘mention,’ in the provision of the statute above quoted, does not have its ordinary meaning, but is used in the sense of ‘record.’ Webster's New Int. Dict. We therefore come to the question of whether or not the recital that a plea had been heretofore entered is sufficient to show that it had been actually entered. It is certain that, if ...