People v. Johnson

• Decision Date: 26 November 1958
• Docket Number: No. 34785,34785
• Citation: 154 N.E.2d 274,15 Ill.2d 244
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. George JOHNSON, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 274

154 N.E.2d 274

15 Ill.2d 244

The PEOPLE of the State of Illinois, Defendant in Error, v. George JOHNSON, Plaintiff in Error.

No. 34785.

Supreme Court of Illinois.

Nov. 26, 1958.

George Johnson, pro se.

Latham Castle, Atty. Gen., and Benjamin S. Adamowski, State's Atty., Chicago, for the People.

DAVIS, Justice.

In 1939, George Johnson, defendant, was convicted of the crime of murder in the criminal court of Cook County, in a trial by the court without a jury, and was sentenced to the penitentiary for a term of 99 years. In 1957 he obtained a bill of exceptions under Rule 65-1 (Ill.Rev.Stat.1957, chap. 110, par. 101.65-1,) and pursuant thereto petitioned this court, pro se in forma pauperis, for a writ of error. The record before the court consisted of the common-law record and the bill of exceptions, but the errors assigned were based solely on questions predicated on the bill of exceptions. After full consideration of the errors assigned, we denied the petition in October, 1957. Defendant then, pro se, sued out a second writ of error from this court and filed therewith the common-law record and the bill of exceptions theretofore filed with the petition for writ of error and thereby sought a further review of the original judgment of conviction. The State filed a motion to dismiss the writ of error on the ground that our decision on the petition for writ of error under Rule 65-1 is res judicata. The motion to dismiss was taken with the case.

An understanding of the issues presented by the motion requires a consideration of the philosophy and purpose of Rule 65-1 and of the events leading to its adoption. In Illinois, review of criminal convictions is obtained through writ of error (Ill.Const. art. VI, secs. 8 and 11, S.H.A.; People v. Johnson, 285 Ill. 194, 120 N.E. 453) and it has long been provided by statute that a writ of error in a criminal case is a writ of right. Ill.Rev.Stat.1957, chap. 38, par. 769.1. The scope of review on a writ of error is determined by the nature of the record brought before the reviewing court. The record on review may consist solely of the common-law or mandatory record, which includes the indictment, arraignment, plea, verdict and judgment. If this is the sole record before the reviewing court the only errors which are considered are those appearing on the face of those documents, and errors in the admission and exclusion of evidence, questions relating to the sufficiency of the evidence, incompetency of counsel, prejudicial remarks or conduct by the prosecuting attorney or the trial judge, instructions, rulings on motions, and the like will not be considered. People v. Thompson, 413 Ill. 53, 107 N.E.2d 866; People v. Twitty, 405 Ill. 60, 89 N.E.2d 827; People v. Loftus, 400 Ill. 432, 81 N.E.2d 495; People v. Yetter, 386 Ill. 594, 54 N.E.2d 532. In order to obtain a review of alleged errors as to these matters, the record must contain a properly certified bill of exceptions or transcript of the proceedings at the trial, which consists of a transcript of the testimony, the rulings of the trial judge on all motions and any other matters upon which rulings were made, instructions given and refused, and any other proceedings before the trial court which defendant desires to bring before the reviewing court. People v. Loftus, 400 Ill. 432, 81 N.E.2d 495; People ex rel. Iasello v. McKinlay, 409 Ill. 120, 98 N.E.2d 728.

Rule 65 of this court provides that a bill of exceptions must be certified by the trial judge and filed in the trial court within 100 days following the judgment of conviction or within any extended period of time granted within the 100 days, or any extensions thereof. Ill.Rev.Stat.1957, chap. 110, par. 101.65. The common-law record and the bill of exceptions present a complete record of all that transpired at the trial, and on such record a complete review of the judgment of conviction is afforded. For many years it has been the practice in Illinois to furnish indigent defendants with the common-law record without cost. However, prior to the adoption of our Rule 65-1, no method was provided whereby such defendants, except in a capital case, could obtain a free bill of exceptions. The practical result was that an indigent defendant, in other than a capital case, who sought a review of his conviction, was limited on review to those matters appearing on the face of the common-law record. In many such cases these defendants sought to raise on the writ of error questions relating to the evidence, rulings on motions, and other matters dehors the common-law record, and we uniformly held, in the absence of a properly certified bill of exceptions, that these questions would not be considered. People v. Orr, 10 Ill.2d 95, 139 N.E.2d 212; People v. Sheppard, 415, Ill. 497, 114 N.E.2d 564; People v. O'Connell, 411 Ill. 591, 104 N.E.2d 825.

A series of decisions of the United States Supreme Court, the Federal district courts and Courts of Appeal, and the Supreme Court of Illinois, involving the adequacy and availability of existing post-trial remedies in Illinois in the light of the due-process requirements of the constitution of the United States, which culminated in Young v. Ragen, 337 U.S. 235, 69 S.Ct. 1073, 93 L.Ed. 1333, led to the indication by the United States Supreme Court in Young that each State must afford prisoners 'some clearly defined method by which they may raise claims of denial of federal rights.' This decision was preceded by Carter v. People of State of Illinois, 329 U.S. 173, 67 S.Ct. 216, 218, 91 L.Ed. 172, which had announced that prisoners must have 'the opportunity to open an inquiry into the intrinsic fairness of a criminal process even though it appears proper on the surface' so that 'questions of fundamental justice protected by the Due Process Clause may be raised * * * dehors the record.' See Commentary to Post-Conviction Hearing Act by Albert E. Jenner, Jr., Smith-Hurd Ill.Ann.Stat. preceding chap. 38, par. 826. In response to this pronouncement, the Illinois legislature in 1949 enacted the Post-Conviction Hearing Act which provided a remedy for persons confined in the penitentiary in violation of their constitutional rights. Ill.Rev.Stat.1957, chap. 38, pars. 826-832, incl.

Thereafter, Judson Griffin and James Crenshaw, prisoners, filed a petition under that act in which they alleged that at the time of their conviction they were indigent and unable to purchase a bill of exceptions; that they had made a timely motion for a free bill of exceptions which was denied; and that the failure of the State to provide them with a free bill of exceptions, without which a full appellate review could not be obtained, deprived them of their right to an effective appellate review and constituted a denial of due process and equal protection of the law. The trial court denied the post-conviction petition without a hearing, and we denied a writ of error, stating that no substantial constitutional question was presented. The United States Supreme Court granted certiorari and held that the petitioners had been deprived of equal protection of the law (and perhaps due process) by the failure of the State to provide some method whereby they could obtain a full review of the judgment of conviction. Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891. The cause was remanded to this court for further proceedings, and in compliance with the mandate of the United States Supreme Court we remanded the cause to the trial court with directions to provide the petitioners with a free transcript. People v. Griffin, 9 Ill.2d 164, 137 N.E.2d 485.

We recognized that the decision of the United States Supreme Court affected not only the petitioners, but all persons similarly situated, and adopted Rule 65-1 to provide a procedure for indigent defendants which would meet the standards of the due-process and equal-protection clauses of the 14th amendment. In substance, the rule provides that persons convicted after the date of the opinion of the United States Supreme Court in Griffin may obtain a free transcript of the proceedings at the trial or bill of exceptions by establishing that they are indigent and therefore unable to pay the court reporter for typing the transcript. As to such persons the 100-day limitation of Rule 65 is applicable and the bill of exceptions must be certified by the trial judge and filed in the trial court within 100 days after the judgment of conviction, or within an extended period allowed within the 100-day period, or any extensions thereof. If this requirement is met, such persons, as a matter of right, are entitled to prosecute a writ of error in this court and file therein a complete record, which includes both the common-law record and the bill of exceptions, and we can determine all assignments of error based thereon.

As to persons convicted prior to April 23, 1956, the date of the Griffin decision, it was obvious that they had failed to file their bill of exceptions within the required 100 days after their conviction, and under Rule 65 the trial court was therefore without authority to certify the bill of exceptions or extend the time for its subsequent filing. People v. Kidd, 401 Ill. 230, 81 N.E.2d 892. However, we provided in Rule 65-1(2) that such persons are entitled to a free transcript of the proceedings at the trial or bill of exceptions upon a proper showing of indigence on or before March 1, 1957, even though more than 100 days had elapsed since their conviction, but they are required to petition this court for a writ of error to review any alleged errors which occurred at the trial. This rule authorizes the State's Attorney to file an answer to the petition within 30 days, and we appoint counsel for the petitioner without cost, if he requests such assistance in the presentation of his petition. The petition, common-law record, and bill of exceptions, as well as the answer of the...