People v. Francis

• Decision Date: 10 April 1934
• Docket Number: No. 22213.,22213.
• Citation: 190 N.E. 106,356 Ill. 74
• Parties: PEOPLE v. FRANCIS.
• Court: Illinois Supreme Court

356 Ill. 74

190 N.E. 106

PEOPLE

v.FRANCIS.

No. 22213.

Supreme Court of Illinois.

Feb. 23, 1934.

Rehearing Denied April 10, 1934.

Error to Criminal Court, Cook County; Donald S. McKinley, Judge.

Joseph Francis was convicted of murder, and he brings error.

Affirmed.

Thaddeus C. Toudor and I. E. Yelowcin, both 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, J. Albert Woll, and Henry E. Seyfarth, all of Chicago, of counsel), for the People.

ORR, Chief Justice.

On August 2, 1933, Joseph Hartel was shot to death while delivering milk in Chicago.Joseph Francis, aged thirty-five, a negro, was indicted for the crime, tried before a jury, found guilty of murder, and sentenced to death by the criminal court of Cook county.A writ of error brings the case here.

The undisputed evidence shows that Hartel, an employee of the Bowman Dairy Company, was accosted by Francis (hereafter called defendant) at about 6 a. m. near Forestville avenue and Fiftieth street.Defendant, whose motive was robbery, saw Hartel put some bottles in wire trays and leave his milk wagon.Upon his return, defendant walked up to him, stuck a gun against him and said: ‘Stick them up!’Hartel turned and ran, pursued by his assailant, who finally overtook him, fired a shot into his body at close range, and fled.Hartel died the next day as a result of the bullet wound.Three persons close to the scene witnessed the shooting, positively identified defendant and testified without contradiction at his trial.Defendant also testified, admitting the crime, but saying it was unintentional and due to the accidental discharge of the gun.

The defendant argues that the judgment is void ab initio, in that it does not show the presence of the judge and other necessary court officers, and does not contain a recital that the court was open and in session.This does not amount to a denial that the court was properly organized-it is only a claim that the judgment does not contain recitals of that fact.The defendant is in error.The record shows the legal organization of the court on September 21, 1933, the day judgment was rendered.The record need only show that the court was in session on the day in question.Yates v. People, 38 Ill. 527;Lamb v. People, 219 Ill. 399, 76 N. E. 576.It is clearly disclosed that the court was in session and constituted according to law on September[356 Ill. 76]18, 1933.This was the day of the trial.On this same day argument on the motion for a new trial was continued to September 21, 1933.The record shows that the argument was not made on that day, but was, in fact, made on September 22, when motions for a new trial and in arrest of judgment were denied.The people were represented by the state's attorney, and defendant was present in person and represented by counsel, Bachrach and Power, when the court entered judgment.The judgment was a proper one, for it correctly named the defendant, found him guilty of the specific crime charged in the indictment, and ordered him to be executed according to the applicable statute(Smith-HurdRev. St. 1933, c. 38, § 360).Lamb v. People, supra;Hoch v. People, 219 Ill. 265, 76 N. E. 356,109 Am. St. Rep. 327;People v. Secco, 303 Ill. 546, 135 N. E. 884.It is claimed that the judgment here was a separate document, full and complete within itself, and not dependent upon any other document, but the record decisively negatives this claim.

We must also disagree with defendant that the corpus delicti was not proved.The evidence clearly establishes, beyond a reasonable doubt, that the Hartel named in the indictment was the one who was killed.A brother of the deceased testified to his brother being hale and hearty before the shooting, of seeing him in the hospital after the shooting and operation, and of seeing his remains in the undertaker's parior.Furthermore, the doctor who performed the autopsy testified that Hartel's body was pointed out to him and identified by the undertaker.That this was hearsay was not objected to at the trial, and cannot be saved for review here.People v. Cassidy, 283 Ill. 398, 119 N. E. 279.

It is principally urged that a motion to vacate the judgment and sentence should have been allowed because of the alleged neglect of counsel assigned by the court from the public defender's office to properly interview defendant and prepare his case for trial.In a supporting affidavit defendant says that prior to his trial he had only one five-minute conference with an attorney named Ferlic, from the public defender's office, and later only a short perfunctory conference on the morning of his trial with the lawyer Power, who represented him in court.He specifically charges an invasion or disregard of those constitutional rights guaranteed by the state and Federal Constitutions which protect one against deprivation of life without due process of law.It was stipulated that only one interview was held at the county jail between defendant and an attorney from the public defender's office, but counter affidavits signed by Benjamin C. Bachrach, the public defender, and by Frank J. Ferlic and Joseph P. Power, his assistants, disclosed that much additional preparation and attention had been given the case.A full abstract was secured of all the evidence adduced at the coroner's inquest over the cause of Hartel's death.Ferlic's affidavit also revealed that he had secured from defendant a detailed story of his life prior to August 2, 1933, in addition to information as to all the facts in the case, and had conferred at length with Bachrach and Power concerning the matter after reading the testimony given at the inquest; and further that, in addition to his conference with Power, he had turned over to him a written memorandum of his interview with defendant and an abstract of the inquest testimony.The affidavit of Power recited that he had various interviews with defendant and was familiar with all the information...