People v. Moore

• Citation: 186 N.E.2d 328,26 Ill.2d 236
• Decision Date: 30 November 1962
• Docket Number: No. 36669,36669
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. Willie MOORE, Plaintiff in Error.
• Court: Supreme Court of Illinois

Page 328

186 N.E.2d 328

26 Ill.2d 236

The PEOPLE of the State of Illinois, Defendant in Error, v. Willie MOORE, Plaintiff in Error.

No. 36669.

Supreme Court of Illinois.

Nov. 30, 1962.

Gerald W. Getty, Public Defender, Chicago (Arthur H. Zimmerman and James J. Doherty, Asst. Public Defenders, 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 Rudolph L. Janega and William L. Carlin, Asst. State's Attys., of counsel), for defendant in error.

HERSHEY, Justice.

Defendant was charged by indictment with the unlawful sale of narcotic drugs. He was tried by the court without a jury, found guilty, and sentenced to the penitentiary for a term of not less than ten years nor more than eleven years. His sole contention on this writ of error is that the trial court erred in denying his petition for a change of venue.

The record shows that on February 17, 1961, defendant was arraigned and the public defender was appointed to represent him. Defendant pleaded not guilty and the case was assigned to Judge Canel. Both parties agree that the case was set for March 16, 1961, although this is not clearly shown by the record.

On March 16, 1961, when the case was called at a late hour, an assistant public defender advised the court that defendant had just asked him to prepare a change of venue. The court, stating that 'this case is on trial,' said, 'The change of venue is denied.' The court then asked if defendant wanted a jury or bench trial, and defendant requested a jury trial. Since there were no jurors left in the building, the court continued the case until the morning of the next day, March 17, 1961.

On March 17, 1961, defendant presented a petition for a change of venue. The court said, 'All right. It is denied yesterday. File it.' The court then asked if the defendant wanted a jury trial or a bench trial. Defendant waived trial by jury. The ensuing bench trial resulted in the conviction from which this writ of error is prosecuted.

The petition for change of venue which was presented to the trial court on March 17, 1961, was in compliance with the applicable statutory provisions. (Ill.Rev.Stat.1959, chap. 146, par. 18 et seq.) It was accompanied by defendant affidavit alleging that he believed the judge was prejudiced against him and that he would not receive a fair trial, and that knowledge of the judge's prejudice had first come to him on March 16, 1961.

We have held that the right to a change of venue on account of the alleged prejudice of the judge is absolute if the requirements of the statute are met. (People v. Wallenberg, 24 Ill.2d 355, 181 N.E.2d 146; People v. Kostos, 21 Ill.2d 451, 173 N.E.2d 469.) Defendant, relying upon these decisions, contends that the trial judge erred in denying his petition.

We do not understand the People to dispute the proposition that the right to a change of venue on account of alleged prejudice of the trial judge is absolute if the requirements of the statute are met. Rather, we understand the People's contention to be that the trial judge properly denied a change of venue on March 16 because no written petition in compliance with the statute was presented on that date, and that the trial judge in fact made no ruling on March 17, but simply stated he had already denied the change of venue the day before and...