People v. Munson

• Decision Date: 04 February 1926
• Docket Number: No. 16934.,16934.
• Parties: PEOPLE v. MUNSON.
• Court: Illinois Supreme Court

319 Ill. 596

150 N.E. 280

PEOPLE

v.MUNSON.

No. 16934.

Supreme Court of Illinois.

Dec. 16, 1925.

Rehearing Denied with Modification Feb. 4, 1926.

Error to Circuit Court, Moultrie County; George A. Sentel, Judge.

Edwin Ray Munson was convicted of robbery, conspiracy to rob, and larceny in connection with robbery, and he brings error.

Reversed.

Thompson, Farmer, and Duncan, JJ., dissenting.

Emery Andrews and Raymond G. Real, both of Mattoon, for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., A. A. Brown, State's Atty., and Merrill F. Wehmhoff, of Decatur (McLaughlin & Billman, of Sullivan, of counsel), for the People.

STONE, J.

Plaintiff in error was indicted by the grand jury of Moultrie county under three indictments, one charging robbery, another conspiracy to rob, and the third larceny in connection with the robbery of the Farmers' State Bank at Gays, Ill. A motion was made to quash the indictments for robbery on which he was tried. The motion was overruled, and plaintiff in error was convicted on the trial.

The evidence of identification and alibi, which was the only contested point in the case, shows it to have been sharply contradictory. Five or six witnesses, residents of Mattoon, were offered as character witnesses, each of whom testified to the good character of plaintiff in error as a law-abiding citizen.

Numerous errors are assigned in the cause. We are met on the threshold of the case, however, with the contention that, owing to the fact that A. A. Brown, the state's attorneyof Moultrie county, was not a licensed attorney, the indictment returned by the grand jury was void and should have been quashed on motion. Other counsel appeared in the trial of the cause and assisted therein, but the record shows that Brown conducted the examination of the witnesses before the grand jury, secured the attendance thereof by the issuance of subpoenas, aided in the drawing of the indictments, and signed the same as state's attorney of Moultrie county. A motion was made to quash the indictment and to dismiss the proceeding on this and other grounds.

The question concerning the effect of participation in the securing of an indictment by one elected as state's attorney but not licensed to practice law has never been considered by this court. Section 22 of article 6 of our Constitution provides as follows:

‘At the election for members of the General Assembly in the year of our Lord 1872, and every four years thereafter, there shall be elected a state's attorney in and for each county in lieu of the state's attorneys now provided by law, whose term of office shall be four years.’

Section 5 of chapter 14 of our statutes (Smith-Hurd Rev. St. 1925, p. 168), specifies the duties of a state's attorney as follows:

‘To commence and prosecute all actions, suits, indictments and prosecutions, civil and criminal, in any court of record in his county, in which the people of the state or county may be concerned.’

By section 1 of the act relating to attorneys and counselors (Smith's St. 1925, p. 164), it is provided that no one shall be permitted to practice as an attorney in this state, or to commence, conduct, or defend any action, suit, or plaint in which he is not a party concerned, in the county or probate court or any court of record, either by using or subscribing his name or the name of any other person, without having previously obtained a license to practice.

It is contended on behalf of the people that, as the Constitution, which creates the office of state's attorney, and the statute providing for the election of that officer, do not require that the incumbent shall be licensed to practice law in this state, therefore want of license to practice law is not a bar to eligibility to that office, and that since he may act as state's attorney he may attend a grand jury, subpoena witnesses and examine them, and draw and sign indictments. Counsel cite People v. McCormick, 261 Ill. 413, 103 N. E. 1053, Ann. Cas. 1915A, 388, as authority for that proposition. That case had to do with the title of McCormick to the office of commissioner of the county of Cook. It was contended that in order to be eligible he must have been a resident of the county for five years preceding the election. It was held in that case that such five-year provision did not apply to a county commissioner, and in the opinion it is said that all persons are equally eligible to office who are not excluded by some constitutional or legal disqualification, and that eligibility does not depend upon the right of suffrage, as persons not electors may be appointed or elected to various offices. The language used is general. There was nothing in the statutes of this state limiting or affecting the eligibility of those who sought to discharge the duties of the office of commissioner.

[1] By section 1 of the statute relating to attorneys and counselors (Smith-Hurd Rev. St. 1925, c. 13), as we have seen, ‘no person shall be permitted to practice as an attorney or counselor at law, or to commence, conduct, or defend any action, suit or plaint, * * * without having previously obtained a license for that purpose,’ etc., and if the discharge of the duties of state's attorney is practicing law within the meaning of said section, the requirement as to eligibility must be held to apply to a state's attorney. A prosecuting attorney at common law was regarded as one of the judicial officers of the state, and the rule has been that within their respective districts or counties prosecuting attorneys are such officers though not officers of the state at large. People v. Williams, 232 Ill. 519, 83 N. E. 1047. In some jurisdictions it has been held that, unless expressly required by the Constitution or statute, a license to practice law is not necessary in order to render one eligible to the office of state's attorney or district attorney. People v. Dorsey, 32 Cal. 296;State v. Swan, 60 Kan. 461, 56 P. 750. It has, however, been held in other jurisdictions that in order to be eligible to fill the office of state's attorney it is necessary that the incumbent be a licensed attorney. In State v. Russell, 83 Wis. 330, 53 N. W. 441, W. E. Erwin, a resident of the city of St. Paul, Minn., was appointed as counsel to assist the district prosecuting attorney in the trial of the case. Objection was entered on the ground that Erwin was not a resident of the state of Wisconsin, and was not licensed to practice law in that state, and that, as Erwin had participated in the trial of the cause and had taken a leading part therein, controlling the management thereof, this was reversible error. Erwin was an attorney at law, licensed to practice in the state of Minnesota. It was held that one who is appointed to assist the state or prosecuting attorney must be licensed to practice law in that state. To the same effect are People v. May, 3 Mich. 598, and People v. Hallett, 1 Colo. 352. This we believe to be the better rule.

[2] Under the schedule of duties laid down by the statute, the state's attorney is to commence and prosecute all actions, suits, indictments, and proceedingson behalf of the people in any court in the county. The statute also provides that prosecutions of criminal cases of the grade of felony shall be commenced by an indictment secured and returned as provided by law. There is no statute specifically requiring the state's attorney to be admitted to practice law, nor does the Constitution require it, but it is inherent in the duties of the office itself, as those duties are prescribed by the statute. One not a lawyer under the laws of this state cannot commence or prosecute suits in its courts of record. People v. Hubbard, 313 Ill. 346, 145 N. E. 93;People v. Schreiber, 250 Ill. 345, 95 N. E. 189; Robb v. Smith, 3 Scam. (Ill.) 46.

[3][4] Attorneys are divided into two general classes: Attorneys at law and attorneys in fact. It cannot be said that in the presentation of cases before the grand jury and in drawing indictments and assisting in the prosecution thereof, a state's attorney acts as an attorney in fact, yet by the statute he is required to do not only these things, but to appear in court and commence and prosecute therein cases on behalf of the people. The right to perform such duties is specifically denied by statute to one who is not a licensed attorney. The state's attorney is the attorney for the state and for the county in which he is elected. He is intrusted with broad official discretion. He is given power to file informations, sign indictments, and to sue out writs of subpoena and summons, thereby, in a measure, exercising the power of the court in representing the people in their cases. Both logic and the weight of authority require that one who discharges those duties have the qualifications of such an officer. Commonwealth v. Gibbs, 4 Gray (Mass.) 146;Sneed v. People, 38 Mich. 248; State v. Russell, supra. In People v. May, supra, the question was squarely presented, and it was there held that no person not previously admitted to the bar is eligible to the office of prosecuting attorney without a special statute to that effect, for the reason that his office and the duties involved necessarily imply that, if he be an attorney for the people, he must be qualified to represent his client at law.

This court has had occasion to pass upon a similar question regarding the office of city attorney. In Baxter v. City of Venice, 271 Ill. 233, 111 N. E. 111, Baxter had been elected city attorney of the city of Venice, and brought suit to recover his salary for a period of six months. He was not licensed to practice law, and the suit was defended on that ground. It was there held that while the statute provides no qualifications or duties for city attorney except that he shall be a qualified elector of the city and shall have resided there at least a year before his election, the qualification that he be an attorney at law arose by implication. This...