People v. Lowe

• Court: Appellate Court of Illinois
• Writing for the Court: McCORMICK
• Citation: People v. Lowe, 210 N.E.2d 31, 61 Ill.App.2d 262 (Ill. App. 1965)
• Decision Date: 21 July 1965
• Docket Number: Gen. No. 49637
• Parties: PEOPLE of the State of Illinois, Appellee, v. Richard D. LOWE, Appellant.

Page 31

210 N.E.2d 31

61 Ill.App.2d 262

PEOPLE of the State of Illinois, Appellee, v. Richard D. LOWE, Appellant.

Gen. No. 49637.

Appellate Court of Illinois, First District, Fourth Division.

July 21, 1965.

Gerald W. Getty, Public Defender, Chicago, James J. Doherty, Frederick F. Cohn, Chicago, of counsel, for appellant.

Daniel P. Ward, State's Atty., Chicago, Elmer C. Kissane, William J. Nellis, Chicago, of counsel, for appellee.

McCORMICK, Presiding Justice.

The defendant, Richard D. Lowe, was tried before a court and jury on an indictment charging him with the crime of burglary. The jury found the defendant guilty and he was sentenced to the penitentiary for not less than two nor more than four years. No question is raised with reference to his guilt or innocence; the only question before us is whether or not the trial court erred in denying a petition filed by the defendant for his discharge. The petition is as follows:

Now comes RICHARD LOWE, by his counsel, GERALD W. GETTY, Public Defender of Cook County, Illinois, by JAMES J. DOHERTY, Assistant Public Defender, and petitions this Court to forth [sic] dismiss the above entitled cause with prejudice and discharge him pursuant to the provisions of the Sixth Amendment, U. S. Constitution, Article 2 Section 9, Illinois Constitution and any and all implementing statutes, in support whereof he says:

1. On June 4, 1962, he was arrested and charged with the within charge of burglary.

2. On June 11, 1962, he appeared before the Honorable Walter J. Kowalski, Judge of Narcotics Court branch of Municipal Court of Chicago, Illinois, on the within charge of burglary and an additional charge known as 'State Addict.'

3. He requested representation by counsel but said request was not granted.

4. After a hearing was held the Court said:

'THE COURT: At this time I will show no probable cause on the burglary, and I think that it requires further investigation. On the addict, there is a finding of guilty. Six months in the County Jail.'

(Which were all the proceedings had this date.)

5. Petitioner served the entire sentence, and thereafter left the jurisdiction.

6. In May 1963, the petitioner was extradited from New York and the within charges were returned in an Indictment No. 63-2343, on September 10, 1963.

7. Petitioner verily believes and therefore states the fact to be that his incarceration for six months in the County Jail on a 'State Addict' charge was a subterfuge and a nullity; that its true purpose was to permit the prosecuting authorities to further investigate the burglary charge.

8. He was held in custody in excess of 120 days from the time of his arrest on the within charge of burglary.

WHEREFORE, petitioner prays that he be set at liberty instanter.

The defendant in this court argues that the ruling of the court violated his constitutional rights. The constitutional provision relied on is Article II, Section 9, which provides 'In all criminal prosecutions the accused shall have the right to * * * a speedy public trial * * *.' It must be noted that that section of the Constitution commences with 'In all criminal prosecutions.'

In People v. Schmagien, 361 Ill. 371, 198 N.E. 142, the court states that the constitutional provision for a speedy trial is mandatory. Legislative enactments defining and giving force to the provision have always been upheld by the court. In People v. Kidd, 357 Ill. 133, 191 N.E. 244, the court said:

'When the cause upon the assault charge was stricken from the docket, no bail was required of the defendants. When it was redocketed, bail was fixed and a capias ordered to issue. The defendants were not in custody from the time they were acquitted of robbery until the capias on the assault charge was issued and served. In Guthmann v. People, 203 Ill. 260, 67 N.E. 821, we held that, in harmony with the constitutional provision for speedy trial, the statutory period fixed for discharge of a prisoner who has not been tried runs from the date of commitment by a magistrate and not from the date of the indictment. The decision in that case is based upon the doctrine that the evil intended to be prevented is wrongful incarceration rather than wrongful accusation. The right to a speedy trial means the right to have speedily heard the charge upon which the accused is detained, and that this constitutional provision is based on the right of an individual to be at liberty. People v. Klinger, 319 Ill. 275, 149 N.E. 799, 42 A.L.R. 581. Inasmuch as the defendants were not detained until the capias was issued, their right to a speedy trial was not invaded.'

Again, in People v. Utterback, 385 Ill. 239, 52 N.E.2d 775, the Supreme Court states that the General Assembly interpreted the requirement for a speedy trial by passing the 'Four Term Act.' In most jurisdictions where there are constitutional provisions similar to ours the State legislature has passed statutes explaining what is meant by constitutional provision for a speedy trial. Comments, 24 Illinois Bar Journal 195 (1936).

In this court the defendant also relies on Ill.Rev.Stat.1963, ch. 38, § 103-5(e), which provides as follows:

'While any person is incarcerated in this State on sentence for any offense, if there is pending against him in the same county in which he was convicted one or more additional charges of another offense he shall be tried on such charge or charges within 120 days from the date of his incarceration or such untried causes shall be barred for want of prosecution unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal; * * *.'

In both the constitutional provision and the statute explaining and implementing it, the crucial point is that there be a charge pending against the incarcerated defendant. In the case at bar this was not so. The defendant was charged with burglary and at the preliminary hearing the court stated that...