People v. Franklin

Decision Date24 September 1953
Docket NumberNo. 32768,32768
PartiesPEOPLE v. FRANKLIN.
CourtIllinois Supreme Court

E. Harold Wineland, Flora, for plaintiff in error.

Latham Castle, Atty. Gen., and H. Carroll Baylor, State's Atty., Louisville (Fred G. Leach, Decatur, and Harry L. Pate, Tuscola, of counsel), for the People.

DAILY, Justice.

Woodrow Franklin, to whom we shall refer as defendant, was indicted and convicted in the circuit court of Clay County for the larceny of three notes having a total value of $2500. He was sentenced to the penitentiary for a term of two to five years and prosecutes this writ of error to review the record of his conviction.

The indictment against defendant was returned on September 8, 1952. He was arraigned on September 15, 1952, at which time he appeared with an attorney of his own choice, entered a plea of not guilty and demanded a jury trial. The court set the cause for hearing on October 27, 1952. When that day arrived the case was not reached but it was called for hearing the following morning at 11:00 A.M., at which time the court was first confronted with a motion which was then filed by defendant's counsel for leave to withdraw. No grounds for withdrawal were stated. The court questioned defendant relative to the motion and was informed that he had contacted an attorney in another city by telephone, but the latter had stated that he could not be present in court on that day. Under the circumstances, the court denied the motion and the trial proceeded without objection or further motion by anyone.

The first contention made by defendant is that the court erred in denying him his right to substitute counsel. The contention made ignores the fact that the record is barren of any showing that defendant sought or was ever denied his right to substitute counsel. Insofar as the attorney's motion is concerned, it has been the rule in this jurisdiction that an attorney may not, in the absence of his client's consent, withdrawal from a case without justifiable cause, and then only after proper notice to his client and leave of court, where his name has been entered as attorney of record. Jacobson v. Ashkinaze, 337 Ill. 141, 168 N.E. 647; Hollan v. Kepner, 297 Ill. 332, 130 N.E. 699. The record here shows no cause upon which we might base a finding that the court abused its discretion in denying the motion. Even if defendant's acquiescence in his counsel's motion can be termed an effort on defendant's part to effect a substitution of counsel, and we think it is not, we cannot say that the court erred in ruling as it did. The right of a client to discharge his attorney at any time or to substitute attorneys at any stage of a proceeding either with, or without cause, is well established. See: 7 C.J.S., Attorney and Client, § 119. It is not, however, a right so absolute that its exercise may not be denied where it will unduly prejudice the other party or interfere with the administration of justice. To hold otherwise would enable a defendant in a criminal proceeding such as this, to delay his trial until he had exhausted his capabilities of hiring different counsel and to thus harass and delay the effective prosecution of crime.

When questions of this nature arise in the conduct of a trial, we have held that the manner in which the trial shall proceed is largely within the discretion of the nisi prius court and this court will not interfere unless it appears from the record that the party complaining was prejudiced. Vincendeau v. People, 219 Ill. 474, 76 N.E. 675. Defendant argues that he was prejudiced in that he was forced to trial with counsel in whom he had no confidence and with whom he had had a disagreement over the conduct of the trial. Insofar as the record is concerned, these are entirely self-serving statements made for the first time in this court. While it does appear that defendant contacted another attorney by telephone, he made no further effort at substitution; he acquiesced in the court's ruling on his counsel's motion and accepted the latter's services without objection. Such a passive attitude can be said to have been a waiver of any objection to his counsel. Cf. People v. Ephraim, 411 Ill. 118, 103 N.E.2d 363. In addition, our examination of the record indicates that the counsel conducted a full and complete defense in a manner which demonstrated his familiarity with criminal matters. We therefore find no prejudice to defendant in that sense. Considering these matters in the light of the facts which show that defendant employed his counsel some six weeks before his cause was set for hearing, that no effort was made to substitute or withdraw until the jury panel had been assembled and the cause called for hearing, and that no grounds or justification were offered for the withdrawal, we must conclude that the court did not, in this instance, abuse its discretion in denying the counsel's motion and continuing with the trial.

The next errors assigned by defendant relate to the sufficiency of certain elements of proof and require some discussion of the facts. It is undisputed that Belle Tolliver loaned the sum of $2500 to members of defendant's family and received from them two notes for $1200 and one for $100. The first of the larger notes was dated April 11, 1950, and was signed by defendant and his parents; the second was dated February 1, 1951, and was signed by defendant, his mother and wife. The $100 note was signed only by defendant's mother and was dated June 2, 1951. All of the notes recited that they were payable to the order of Belle Tolliver and payable at Sailor Springs, Illinois, to W. O. Bunn, a merchant who handled business matters for Belle Tolliver and who was given possession of the notes.

Bunn testified that defendant came to his store on August 18, 1952, asked to see the notes and was permitted to do so. When defendant completed his examination he left the store but returned in a few minutes with his mother who also wished to see the notes. After she had looked at them, Bunn returned them to an envelope and placed it behind a scales on a counter of his store. The mother then stated that she wished to buy a can of paint and went with Bunn to a back room to procure it, leaving defendant alone in the front part of the store. After the Franklins left, Bunn looked for the notes and when he found the envelope and notes missing, immediately swore...

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26 cases
  • Ruskin v. Rodgers
    • United States
    • United States Appellate Court of Illinois
    • 17 December 1979
    ...in refusing to allow such substitution should be upheld unless there is an abuse of such discretion." See also, People v. Franklin (1953), 415 Ill. 514, 516-17, 114 N.E.2d 661. In the case before us, defendant attempted to discharge his attorney during the course of the trial. The attorney ......
  • Zieger v. Manhattan Coffee Co.
    • United States
    • United States Appellate Court of Illinois
    • 4 February 1983
    ...and this court will not interfere unless the record demonstrates that the complaining party was prejudiced. (People v. Franklin (1953), 415 Ill. 514, 517, 114 N.E.2d 661, 663.) We conclude that defendants have failed to demonstrate prejudice in this case. While defendants urge that their ex......
  • State v. Cope
    • United States
    • North Carolina Supreme Court
    • 5 May 1954
    ...371, 260 P.2d 1; Grimes v. State, 204 Ga. 854, 51 S.E.2d 797; Parker v. State, 228 Ind. 1, 88 N.E.2d 556, 89 N.E.2d 442; People v. Franklin, 415 Ill. 514, 114 N.E.2d 661; Vanderheiden v. State, 156 Neb. 735, 57 N.W.2d 761; State v. Gambetta, 66 Nev. 317, 208 P.2d 1059; State v. Carleton, Me......
  • Marriage of Milovich, In re
    • United States
    • United States Appellate Court of Illinois
    • 31 March 1982
    ...be denied where it will unduly prejudice the other party or interfere with the administration of justice." (People v. Franklin (1953), 415 Ill. 514, 516-17, 114 N.E.2d 661, 663.) The trial court has discretion to deny a motion for substitution of attorneys but should consider whether the pa......
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