People v. Mosley

• Decision Date: 25 May 1962
• Docket Number: Nos. 36553-36557,s. 36553-36557
• Citation: 24 Ill.2d 565,182 N.E.2d 658
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. George MOSLEY et al., Plaintiffs in Error.
• Court: Illinois Supreme Court

Page 658

182 N.E.2d 658

24 Ill.2d 565

The PEOPLE of the State of Illinois, Defendant in Error, v. George MOSLEY et al., Plaintiffs in Error.

Nos. 36553-36557.

Supreme Court of Illinois.

May 25, 1962.

Miles N. Beermann and Herold L. Rifken, Chicago, for plaintiffs 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 John T. Gallagher and Elmer C. Kissane, Asst. State's Attys., of counsel), for defendant in error.

SOLFISBURG, Justice.

The defendants, George Mosley and Clinton Smith, were indicted for the crime of robbery. They both pleaded not guilty, waived a jury, and were each found guilty and sentences to the penitentiary for a minimum of 5 years and a maximum of 8 years. The defendants prosecute these consolidated writs of error.

It is the contention of the defendant George Mosley that the trial court erred in denying his petition for a change of venue based on the prejudice of the trial judge and in denying a continuance so that counsel of his choice would be afforded adequate time to prepare his defense. The defendant Clinton Smith also contends that the trial court erred in denying his petition for a change of venue.

In answer to defendants' contentions, the State asserts that the petitions for change of venue failed to comply with the express requirements of the change of venue statute (Ill.Rev.Stat.1961, chap. 146, par. 26), that no notice of said petitions for change of venue was given to the State's Attorney, and that said petitions were filed for the obvious purpose of delaying the trial. The State further argues that Mosley's motion for a continuance in order for him to be represented by a counsel of his choice was only for the purpose of avoiding a trial.

The record discloses that on December 14, 1960, both defendants were arraigned before the chief justice of the criminal court, entered pleas of not guilty, and requested the appointment of the public defendant. The public defender was appointed for both defendants and the case assigned to Judge David Canel. On the same date Judge Canel ordered the cases set for trial on January 30, 1961. The record does not indicate that either defendant appeared in court at any time between December 14, 1960, and January 30, 1961. On January 30, 1961, the case came up before the trial judge. When the case was called, the assistant public defender filed George Mosley's written petition and affidavit for a change of venue alleging, in the language of the statute, the prejudice of the trial judge and another judge of that court, and stating that such knowledge first came to the defendant Mosley on Friday, January 27, 1961. Although the State contends that written notice was not given to the State's Attorney and the codefendant Smith prior to the filing of the petition, as provided by the statute, the record reveals that the assistant public defender advised the trial judge that notice came to him of defendant Mosley's request after 5 P.M. on Friday, that he came down to his office on Saturday and prepared a petition and served notice on the State's Attorney and entered it in the motion book for Monday, January 30, 1961. The State's Attorney did not at that time, or at any time, deny that he had received such notice. Immediately thereafter the trial judge, upon stating that the trial was set for that morning, denied the motion. After the motion was denied, the defendant Mosley asked the court why it was denied and the judge stated that he did not have to explain. Then the assistant public defender stated that he would like to present a like petition for a change of venue on behalf of the defendant Clinton Smith on the same basis. He advised the trial judge that defendant Smith's desire for a change of venue had just come to his attention earlier that morning and that he had not had a chance to prepare a formal petition, and thereupon asked leave of the court to prepare and file it. In response to this, the trial judge said 'Yes, you may file it-same ruling-and we will go to trial.' Upon being advised that defendants wanted a jury trial, the case was continued to February 7, 1961. On that date, the assistant public defender asked leave to file the formal petition for change of venue that he had told the trial judge he would file. At that time the trial judge stated 'All right, let it be filed. It was considered at the time of the oral motion.' Whereupon the court entered the same ruling as he had on the oral motion.

We have examined the petition for change of venue of the defendant Mosley on the basis of the prejudice of the trial judge, and the supporting affidavit, and there is nothing to indicate that they fail to comply with the statutory provisions relative thereto. In the case People v. Shiffman, 350 Ill. 243, at page 246, 182 N.E. 760, at page 761, this court stated: 'The right to a change of venue from a judge in a criminal case on compliance with the statute is absolute. People v. Cohen, 268 Ill. 416, 109 N.E. 259; Cantwell v. People, 138 Ill. 602, 28 N.E. 964; People v. Rosenbaum, 299 Ill. 93, 132 N.E. 433 * * *. It is not for the judge to determine whether or not he entertains prejudice against the defendant. In a criminal case, when a detendant in apt time brings himself within the terms of the statute, the trial judge has no discretion as to whether or not a change of venue will be granted. He must allow it as a matter of right. He cannot question the truthfulness or the good faith of the charge of prejudice. When the statute has been complied with, the trial judge loses all power and authority over the case except to make the necessary orders to effectuate a change of venue. Cantwell v. People, supra.' We have previously indicated that the State's Attorney did not deny that he received notice of Mosley's petition. Although the trial judge stated he did not have to explain his ruling, there is a colloquy in the record, after the trial judge ruled on Mosley's change of venue, between Mosley and the trial judge in which Mosley accused the trial judge of being prejudiced against negroes and against persons who have a criminal record. Said colloquy also contains certain questioning of the defendant Mosley regarding the judge's prejudice, and answers thereto. The State has cited People v. Stewart, 20 Ill.2d 387, 169 N.E.2d 796, as authority for the proposition that 'the court may look to see if the defendant is really seeking to have his trial before a judge who is not prejudiced against him, or merely seeking to avoid a trial.' The Stewart case is unlike this case in that Stewart's apparent attempt to avoid any trial of the cause was indicated by his many delaying continuances and we therefore held that the court did not err in denying his motion at that late date.

We have previously noted that there were no requests for continuances made by the defendant Mosley prior to the filing of his petition for change of venue and the only continuance requested by Mosley was made after the trial judge had ruled adversely on his petition for change of venue. It is clear that the right to a change of venue from a judge on a basis of a judge's prejudice in a criminal case...