People v. Gerke

• Decision Date: 20 December 1928
• Docket Number: No. 19043.,19043.
• Citation: People v. Gerke, 332 Ill. 583, 164 N.E. 185 (Ill. 1928)
• Parties: PEOPLE v. GERKE.
• Court: Illinois Supreme Court

332 Ill. 583

164 N.E. 185

PEOPLE

v.GERKE.

No. 19043.

Supreme Court of Illinois.

Dec. 20, 1928.

Error to Criminal Court, Cook County; William N. Gemmill, Judge.

Leo Gerke was convicted of robbery, and he brings error.

Affirmed.

Lester E. Williams, of Chicago, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Robert E. Crowe, State's Atty., of Chicago, and Roy D. Johnson, of Springfield (Edward E. Wilson and John Holman, both of Chicago, of counsel), for the People.

HEARD, J.

Plaintiff in error, Leo Gerke, on January 28, 1927, was indicted in the criminal court of Cook county for robbery with a dangerous weapon, and on February 4, 1927, he entereda plea of not guilty to this indictment. On July 12, 1927, by leave of court he withdrew his plea of not guilty, and, the state's attorney having waived the ‘gun count,’ entered his plea of guilty to ‘robbery without a gun, in manner and form as charged in the indictment.’ Judgment was entered on the plea of guilty, and plaintiff in error sentenced to an indefinite term of imprisonment in the State Reformatory at Pontiac. To review this judgment and sentence, plaintiff in error has sued out a writ of error from this court.

Paragraph 732 of the Criminal Code of this state (Smith-Hurd Rev. St. 1923, c. 38) provides as follows: ‘In cases where the party pleads ‘guilty,’ such plea shall not be entered until the court shall have fully explained to the accused the consequences of entering such plea; after which, if the party persists in pleading ‘guilty,’ such plea shall be received and recorded, and the court shall proceed to enter judgment and execution thereon, as if he had been found guilty by a jury. In all cases where the court possesses any discretion as to the extent of the punishment, it shall be the duty of the court to examine witnesses as to the aggravation and mitigation of the offense.'

It is contended by plaintiff in error that the paragraph of the Criminal Code above quoted is mandatory, and that, as a condition precedent to the rendition of a valid judgment, in all cases where the punishment varies, it is the duty of the court to examine witnesses as to the aggravation and mitigation of the offense before pronouncing judgment, and that a compliance therewith must affirmatively appear from the face of the judgment. One who seeks to reverse a judgment of conviction has the burden of showing that the proceedings of the trial court were illegal, as every reasonable intendment, not negatived by the record, will be indulged in support of the judgment. People v. Ellsworth, 261 Ill. 275, 103 N. E. 1005.

It is not necessary to determine whether the above paragraph of the Criminal Code applies to the instant case. Where the record shows that a defendant, before pleading guilty, was admonished by the court as to the effect of such plea and the punishment...