People v. Kawoleski
| Decision Date | 07 February 1924 |
| Docket Number | No. 15624.,15624. |
| Parties | PEOPLE v. KAWOLESKI. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Kankakee County Court; Henry F. Ruel, Judge.
Frank Kawoleski was found guilty of violating the Illinois Prohibition Act, and brings error to review the judgment overruling motions to vacate and set aside the judgment and for new trial, and in arrest.
Affirmed.
Frank J. Burns, of Kankakee, for plaintiff in error.
Edward J. Brundage, Atty. Gen., Anker C. Jensen, State's Atty., of Kankakee, and George C. Dixon, of Dixon, for the People.
An information sworn to by M. N. Hextell was filed by the state's attorney June 21, 1923, in the county court of Kankakee county, charging Frank Kawoleski with violatingthe Illinois Prohibition Act (Smith-Hurd Rev. St. 1923, c. 43, §§ 1-50). The information contained 13 counts. The first 11 counts charged him with unlawfully selling intoxicating liquor, the twelfth count charged him with unlawfully possessing intoxicating liquor for the purpose of sale, and the thirteenth count charged him with unlawfully keeping intoxicating liquor for sale in prohibition territory. On the same day the information was filed a warrant was issued, and Kawoleski was arrested, and brought before the court on the charges. He signed a jury waiver, and, the record states, in his own proper person he pleaded guilty after being duly warned and fully advised as to the consequences of his plea; that he persisted in the plea, and the court found him guilty as charged, sentenced him to jail for 90 days, and to pay a fine of $400 and costs of prosecution, and to stand committed to jail until the fine and costs were paid. Defendant was at once placed in jail. July 11, he, by counsel, filed a motion to vacate and set aside the judgment, also a motion for new trial and in arrest. All of said motions were overruled. Defendant filed a motion to tax costs, and the court taxed $150 state's attorney's fees ($15 under each of 10 counts), $5 clerk's fees, and $1.55 sheriff's fees, to all of which rulings of the court defendant excepted. He sued a writ of error out of this court to review the judgment, on the ground constitutional questions are involved.
Counsel claims (1) the Illinois Prohibition Act is unconstitutional; (2) the prosecution should have been by indictment instead of information; (3) the law under which the state's attorney's fees were taxed is invalid; (4) defendant was denied his constitutional rights when his plea was entered; and (5) the information was insufficient, in that the charges were not specifically stated, without the aid of a bill of particulars, and no bill of particulars was furnished defendant.
The information did not allege the defendant had been previously convicted of violating the Prohibition Law. The statute (section 34) provides that for the first offense the offender shall be fined not less than $100 nor more than $1,000, ‘or be imprisoned not less than sixty days nor more than six months.’ For any subsequent offense the offender shall be fined not less than $500 nor more than $1,500, ‘and be imprisoned in the state penitentiary not less than one nor more than two years.’ Defendant contends that, as the statute does not say where the offender is to be imprisoned for the first offense, and for the second offense he is required to be imprisoned in the penitentiary, the first offender may be imprisoned in the penitentiary; that to say, the imprisonment for the first offense is to be in jail renders the statute incomplete and ambiguous, and for that reason invalid. We held in People v. Chepanio, 306 Ill. 35, 137 N. E. 393, that the words ‘or be imprisoned,’ applying to the first offense, could not be construed to mean imprisonment in the peniteniary, but should be construed to mean a local place of detention. That this is so clearly appears from the provision as to punishment for the second offense, which requires the imposition of a largely increased...
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