People v. Iasello

• Decision Date: 27 November 1951
• Docket Number: No. 31675,31675
• Citation: 410 Ill. 252,102 N.E.2d 138
• Parties: PEOPLE v. IASELLO.
• Court: Illinois Supreme Court

Page 138

102 N.E.2d 138

410 Ill. 252

PEOPLE v. IASELLO.

No. 31675.

Supreme Court of Illinois.

Nov. 27, 1951.

Julian C. Ryer, of Chicago, for plaintiff in error.

Ivan A. Elliott, Atty. Gen., and John S. Boyle, State's Atty., of Chicago, (John T. Gallagher, Rudolph L. Janega, Arthur F. Manning, and William J. McGah, Jr., all of Chicago, of counsel, for the People.

DAILY, Chief Justice.

Plaintiff in error, Chris Iasello, and others not here involved, were indicted jointly in the criminal court of Cook County for the crime of murder. Iasello pleaded not guilty when arraigned but later changed his plea to one of guilty and was sentenced to the penitentiary for a term of fourteen years. He has sued out this writ of error seeking to reverse the judgment of conviction and to secure his discharge from the penitentiary, on the sole ground that the court was without jurisdiction when the judgment was entered, inasmuch as he had not been admitted to bail nor brought to trial within four months from the date he was committed to the county jail for the offense charged, as provided in section 18 of division XIII of the Criminal Code. (Ill.Rev.Stat.1949, chap. 38, par. 748.) The cause is here on the common-law record with no bill of exceptions.

The record contains no information as to the date plaintiff in error was placed in confinement but his brief and argument fixes the date as being October 20, 1949. It is affirmatively shown, however, that plaintiff in error was indicted June 6, 1949, that he entered a plea of not guilty October 24, 1949, and that the cause was then assigned to Judge Klarkowski for trial. On November 7, 1949, plaintiff in error made a motion for separate trial which was granted, and the cause was returned to the chief justice of the criminal court for reassignment. It was then assigned to Judge Reid November 16, 1949. The record shows that the cause was continued, apparently on the court's own volition, from November 9 to 16; then to December 14; then to January 16, 1950, and again to January 31. At the time of each continuance plaintiff in error demanded trial at the term of court then in progress. On January 31 plaintiff in error filed a petition for a change of venue from 'Judge Reid and Judge Minor.' When the petition was granted the cause was again returned to the chief justice who reassigned it to Judge McKinlay. The latter, on the same date of January 31, continued the cause to February 23. When the last-mentioned date was reached plaintiff in error made an oral motion for discharge for want of prosecution within the time required by law and again demanded trial at the current term. The court, however, continued the cause to March 6, 1950, on which date plaintiff in error presented a written motion for discharge for want of prosecution. In his brief here he points out that on March 6, four months and sixteen days had elapsed since he was confined to the county jail. On March 31, the court overruled the motion, whereupon plaintiff in error withdrew his plea of not guilty and entered a plea of guilty. He was then found guilty of murder as charged in the indictment and sentenced to the penitentiary.

In cases of this nature we have repeatedly held that where a defendant makes application for discharge to the court where the indictment is pending, he must, in case of unfavorable action, preserve in the record, by bill of exceptions, the proceedings had upon such application, which then may be reviewed on writ of error. People v. Sweeney, 409 Ill. 223, 99 N.E.2d 143; People v. Farley, 408 Ill. 194, 96 N.E.2d 452; People v. Economac, 243 Ill. 107, 90 N.E. 302. There is no bill of exceptions before us in the present case and, without it, this court is left to determine the facts relating to the date of confinement from conjecture and from matters de hors the record. In order to...