People v. Loftus

• Court: Illinois Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: People v. Loftus, 400 Ill. 432, 81 N.E.2d 495 (Ill. 1948)
• Decision Date: 21 September 1948
• Docket Number: No. 29620.,29620.
• Parties: PEOPLE v. LOFTUS.

400 Ill. 432

81 N.E.2d 495

PEOPLE

v.LOFTUS.

No. 29620.

Supreme Court of Illinois.

Sept. 21, 1948.

Donald Loftus was convicted on four indictments of armed robbery and burglary, convictions were affirmed by the Illinois Supreme Court, 395 Ill. 479, 70 N.E.2d 573, and defendant brought certiorari to the United States Supreme Court. The United States Supreme Court continued the cause to enable the court to be advised as to the ground on which the Illinois Supreme Court rested its judgment.

United States Supreme Court advised as to ground on which Illinois Supreme Court rested its judgment.Donald Loftus, in pro. per.

Don A. Wicks, State's Atty., of Woodstock, for the People.

PER CURIAM.

Donald Loftus, defendant, was convicted in the circuit court of McHenry County, Illinois, on four indictments, two for armed robbery, and two for burglary. On writ of error the judgments of conviction were affirmed in 395 Ill. 479, 70 N.E.2d 573. Defendant applied for certiorari to the Supreme Court of the United States, which was allowed, 68 S.Ct. 456, and on June 14, 1948, said court made an announcement in Cause No. 59 of the October term, 1947, of said court, 334 U.S. 804, 68 S.Ct. 1212, the purport of which amounts to an inquiry as to the correct Illinois practice as to the manner in which lack of due process of law under the fourteenth amendment may be raised in courts of appellate jurisdiction, reviewing a conviction shown only by the common-law record.

The particular lack of due process in the present case is claimed to arise from a failure of the trial court to appoint counsel to defend plaintiff in error. The inquiry of the court requires an expansion of the opinion originally rendered, and an examination of the general modes afforded by the Illinois law to test the validity of the conviction of a criminal offense.

In general three methods are provided: (1) review by writ of error, which is allowed in all felony cases, to the Supreme Court; (2) by a petition for writ of habeas corpus; and, (3) by the application for a writ of error coram nobis, or, as it is now designated, a motion under section 72 of the Civil Practice Act. And each of these methods has a distinct application, depending upon the circumstances of each particular case.

A writ of error is of ancient origin, and tests the record made in the case by the trial court. The record in the trial court may consist only of the mandatory record, viz., indictment, arraignment, plea, trial and judgment. Cullen v. Stevens, 389 Ill. 35, 58 N.E.2d 456. This appears in the clerk's record in every case, whether there is a plea of guilty or a trial. The record may include also a bill of exceptions, which consists of all of the motions and rulings of the trial court, evidence heard, instructions, and other matters which do not come directly within the clerk's mandatory record. This may be only a part of the record on review when a bill of exceptions is prayed and allowed, and certified by the court. When this is done the record consists of all proceedings in the case from the time of the convening of the court until the termination of the trial. In the instant case the record consists of the mandatory proceedings only.

The statute provides also that it is the duty of the court to appoint counsel for the accused when he states upon oath that he is unable to procure counsel. (Ill.Rev.Stat.1947, chap. 38, par. 730.) To this provision the exception is that in capital cases it is mandatory for the court to appoint counsel. Therefore, when the review is had upon the common-law record, the sole matter only that may be considered by the court is error appearing upon the face of the record, and matters may not be added by argument, affidavit, or otherwise, to supply or expand the record. The case must stand or fall upon the errors appearing in the record. Of course, where there is a bill of exceptions, which includes motions, evidence, rulings on evidence, instructions, and the like, and such bill of exceptions is made a part of the record, errors may be reached by the remedy of writ of error. No bill of exceptions was saved in the present case.

The second method for reviewing a conviction of a crime, where the prisoner is under confinement, is by application for writ of habeas corpus. A number of grounds for the issuance of such a writ may be found in chapter 65 of the Illinois Statutes, but the sole pertinent ground here would be confinement in the penitentiary under a judgment of conviction which is void. Such ground has been frequently upheld by Illinois law. (People ex rel. Georgetown v. Murphy, 202 Ill. 493, 67 N.E. 226;People ex rel. McGee v. Hill, 350 Ill. 129, 183 N.E. 17;People ex rel. Maglori v. Siman, 284 Ill. 28, 119 N.E. 940;People ex rel. Melton v. Whitman, 243 Ill. 471, 90 N.E. 924), and by the Supreme Court of the United States. House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739;Rice V. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367.

The petition for writ of habeas corpus may be filed originally in the Supreme Court. The usual procedure has been to form an issue of law by demurrer, or motion to strike the petition, or like action, directly to the return of the officer. In either event the demurrer admits the matter well pleaded, and thus, either the facts of the petition or the return being admitted, the question of law is presented. The issues of fact cannot be determined in the Supreme Court because the law does not afford a means for the court to take testimony, so recourse must be had to the appointment of a commissioner, although no method for compensation for such commissioner has been provided by law. This omission for hearing evidence on habeas corpus in the Supreme Court is compensated for partially by granting original jurisdiction to the circuit courts to hear habeas corpus cases upon petition, and to hear evidence, and the judgment of such circuit court is a final order, but is not appealable to the Supreme Court of the State, except in extradition cases. No habeas corpus can operate as a writ of error. People ex rel. Morris v. Hazard, 356 Ill. 448, 191 N.E. 54;People ex rel. Thompson v. Nierstheimer, Warden, 395 Ill. 572, 71 N.E.2d 343.

The third method of review is commonly designated as writ of error coram nobis, although now referred to as a motion, in section 72 of the Civil Practice Act. (Ill.Rev.Stat.1947, chap. 110, par. 196.) The procedure is an ancient one, and was a process at common law used for the purpose of correcting errors of fact occurring in the trial court, which facts, if known to the court, would have resulted in a different judgment. The errors sufficient for the issuance of such writ have been cited many times, and generally included death of one of the parties prior to the judgment, infancy, coverture, insanity, fraud in procuring jurisdiction, etc. People v. Gleitsman, 396...