People v. Laws

Decision Date27 September 1963
Docket NumberNo. 37817,37817
PartiesThe PEOPLE of the State of Illinois, Defendant in Error, v. Herbert LAWS, Plaintiff in Error.
CourtIllinois Supreme Court

Bernard J. McDonnell and Bernard J. McDonnell, Jr., Chicago (Francis X. Riley, Chicago, of counsel), for plaintiff in error.

William G. Clark, Atty. Gen., Springfield and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach and E. Michael O'Brien, Asst. Attys. Gen., and Edward J. Hladis and Matthew J. Moran, Asst. State's Attys., of counsel), for defendant in error.

DAILY, Justice.

At the conclusion of a bench trial in the criminal court of Cook County, the defendant, Herbert Laws, was found guilty of the unlawful sale of narcotic drugs and was sentenced to the penitentiary for a term of not less than ten nor more than twelve years. He prosecutes this writ of error contending that the trial court erred, and deprived him of his constitutional rights, when it denied his motion for discharge on the ground of former jeopardy.

Pertinent facts show that defendant was indicted on November 10, 1960, and that he entered a plea of not guilty when arraigned. Subsequently, he was permitted to withdraw such plea and to file a motion to quash the indictment, but the motion was later denied. Although no further or new plea had been entered, trial was commenced on December 6, 1961, and after defendant had waived a jury the prosecution called its witnesses, presented its entire case and rested. At this stage defense counsel pointed out that the clerk's memorandum of an order entered at the start of trial incorrectly stated: 'Plea of not guilty heretofore entered,' and upon his motion, consented to by the prosecution, the record was corrected to show that no plea had been entered. Following this an assistant State's Attorney moved for a mistrial, stating 'there never was a trial at all in view of the fact no plea was entered,' and over defendant's objection a mistrial was declared. Defendant was then arraigned, his counsel agreed to accept the same list of witnesses to an oral confession, and the cause was continued.

At the time the mistrial was declared, we digress to state, it is patent that both the court and counsel were unaware of our decision in People v. Hill, 17 Ill.2d 112, 160 N.E.2d 779, filed in May, 1959, wherein we held that under circumstances comparable to those of the present case, the entry of a formal plea of not guilty was not essential to a valid judgment.

After various motions and extended hearings during which the prosecution, now fully aware of the Hill decision, unsuccessfully sought to vacate the order for a mistrial, a change of venue was granted to defendant and the case assigned to another judge. When a second trial was commenced in June, 1962, defendant filed a motion for discharge alleging that the second trial would subject him to double jeopardy and thus violate his constitutional rights, but such motion was denied, after which the trial continued to completion and resulted in conviction. The principal issue before us is the correctness of the court's ruling on the motion for discharge.

Although advanced to us as an alternative proposition, our attention must necessarily be directed first to a contention of the People that the motion was properly denied because defendant was not in fact put in jeopardy upon the occasion of the first trial. The theory advanced is that issue must be joined before jeopardy can attach, and that issue had not been joined in the first proceeding since defendant's plea of not guilty had been withdrawn and not renewed when trial commenced. However, any validity of such a theory has vanished with our decision in People v. Hill, 17 Ill.2d 112, 160 N.E.2d 779, wherein we aligned ourselves with those jurisdictions which hold that the requirement of arraignment and plea in criminal trials is a mere formality, and inessential to a valid judgment of conviction in the absence of a showing that rights of the defendant were in some manner adversely affected by such omission. Under this rule arraignment and plea are not necessary for jeopardy to attach. (Clawans v. Rives, (D.C. cir.) 104 F.2d 240, 242; 22 C.J.S. Criminal Law, § 247.) But where, as here, a case is heard without a jury, jeopardy attaches when the accused is subjected to a charge and the court has begun to hear evidence. (Hunter v. Wade, (10th cir.) 169 F.2d 973, McCarthy v. Zerbst, (10th cir.) 85 F.2d 640. From what is shown in the record it is unquestionable that defendant had been placed in jeopardy upon the first trial.

Section 10 of article II of the Illinois constitution, S.H.A. provides that: 'No person shall * * * be twice put in jeopardy for the same offense.' The fifth amendment to the United States constitution, the commands of which are made binding on the States by the due-process clause of the fourteenth amendment, makes substantially the same provision. It is settled, however, that to be twice tried for the same offense is not necessarily to be twice put in jeopardy, and under a variety of circumstances, including instances where the first proceeding has ended in a mistrial, our courts have held that a second trial dodes not give rise to a claim of double jeopardy. See: People v. Friason, 22 Ill.2d 563, 177 N.E.2d 230; People v. Thomas, 15 Ill.2d 344, 155 N.E.2d 16; Himmelfarb v. United States, (9th cir.) 175 F.2d 924.

The question whether a subsequent trial, after an earlier trial has ended in a mistrial, constitutes double jeopardy usually depends on whether the court acted properly in declaring a mistrial. In deciding the latter issue we have consistently adhered to the elastic rule first laid down in United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165, viz., that a court has authority to discharge a jury or declare a mistrial, without...

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32 cases
  • Com. ex rel. Montgomery v. Myers
    • United States
    • Pennsylvania Supreme Court
    • 24 Junio 1966
    ...70 Dick.L.Rev. 377 (1966); Note, Double Jeopardy: The Reprosecution Problem, 77 Harv.L.Rev. 1272, 1286--1289 (1964); People v. Laws, 29 Ill.2d 221, 193 N.E.2d 806, 195 N.E.2d 393 (1963); cf. United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844, 849--856 (2d Cir. 1965). We find it unnecess......
  • People v. P.H.
    • United States
    • Illinois Supreme Court
    • 31 Octubre 1991
    ...guilt or innocence of the offense charged." People v. Chatman (1967), 38 Ill.2d 265, 270, 230 N.E.2d 879; see also People v. Laws (1963), 29 Ill.2d 221, 224, 193 N.E.2d The linchpin of defendant's argument is that the "gang-transfer" hearing is tantamount to an adjudicatory[145 Ill.2d 225] ......
  • Bland v. Supreme Court, New York County
    • United States
    • New York Court of Appeals Court of Appeals
    • 29 Noviembre 1967 applied to determine when jeopardy attaches to nonjury cases, and the rule is expressed as being thus limited (People v. Laws, 29 Ill.2d 221, 193 N.E.2d 806, 195 N.E.2d 393; State v. Blackwell, 65 Nev. 405, 198 P.2d 280, 200 P.2d 698; 22 C.J.S. Criminal Law § 241, pp. 639--640; 1 Wharton......
  • People v. Caban
    • United States
    • United States Appellate Court of Illinois
    • 12 Enero 2001
    ... ... Laws, 29 Ill.2d 221, 193 N.E.2d 806 (1963). In Laws, a bench trial had already begun and evidence had already been presented when it was learned that the defendant had never entered a plea. The Assistant State's Attorney, believing that a valid judgment of conviction could not be entered without a plea, ... ...
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