People v. Orr
| Decision Date | 26 November 1956 |
| Docket Number | No. 34040,34040 |
| Citation | 10 Ill.2d 95,139 N.E.2d 212 |
| Parties | The PEOPLE of the State of Illinois, Defendant in Error, v. Burley ORR, Plaintiff in Error. |
| Court | Illinois Supreme Court |
John R. Snively, Rockford, for plaintiff in error.
Latham Castle, Atty. Gen., and George P. Coutrakon, State's Atty., Springfield (Fred G. Leach, Decatur, and Edwin A. Strugala, Chicago, of counsel), for the People.
The defendant, Burley Orr, was indicted by the grand jury of Sangamon County for the crime of armed robbery and was charged with a prior conviction of burglary and larceny on October 11, 1920, for which he was sentenced to the Illinois State Reformatory at Pontiac, and with a further prior conviction of burglary and larceny on February 8, 1929, for which he was sentenced to the Southern Illinois Penitentiary at Chester.
The case comes before this court on writ of error to the circuit court of Sangamon County and on the common-law record, which recites that on February 17, 1947, the defendant appeared in court in person and by counsel, was furnished a copy of the indictment and a list of jurors and witnesses, waived arraignment, pleaded not guilty, was tried before a jury upon evidence introduced by the People, without offer of evidence by defendant, and thereon was found guilty of the crime of armed robbery as charged in hte indictment, and the jury further found from the evidence that said defendant had, prior to the time of committing said armed robbery, been convicted of the crime of burglary and larceny. The common-law record further shows that defendant waived motion for new trial and in arrest of judgment, and that upon the verdict of the jury, the court entered judgment that defendant was guilty of the crime of armed robbery as charged in the indictment and that he had theretofore been convicted of a felony of the nature which brought him within the terms of the Habitual Criminal Act, and the defendant was sentenced to the Illinois State Penitentiary for the term of his natural life.
The defendant has urged that the Habitual Criminal Act () is unconstitutional. However, this question was not raised or passed upon by the trial court and is not subject to review in this proceeding. People v. Cosper, 5 Ill.2d 97, 99, 125 N.E.2d 60; People v. Brand, 415 Ill. 329, 337, 114 N.E.2d 370; People v. Rohde, 403 Ill. 41, 42, 85 N.E.2d 24; certiorari denied 338 U.S. 833, 70 S.Ct. 43, 94 L.Ed. 508.
The defendant has further argued the the indictment in void in that the allegation of prior convictions of burglary and larceny in the circuit court of Sangamon County on certain dates does not set forth the convictions with the particularity and definiteness required to advise the defendant of hte charges he must be prepared to meet. However, the law is adverse to this contention. People v. Yarsitis, 406 Ill. 99, 101, 92 N.E.2d 161; People v. Miner, 379 Ill. 624, 625, 41 N.E.2d 748; People v. Vinci, 369 Ill. 563, 565, 17 N.E.2d 19. The defendant has likewise argued, from the decision of People v. Byrnes, 405 Ill. 103, 90 N.E.2d 217, that the indictment is insufficient in that the charge under the Habitual Criminal Act is founded upon the prior conviction and sentence of the defendant to the Illinois State Reformatory. In the Brynes case, the habitual criminal charge was based solely on the record of a former conviction of forgery in the State of Wisconsin under which Byrnes had been sentenced to confinement at hard labor in the House of Correction for Milwaukee County. This case stands as authority for the proposition that the habitual criminal charge of an indictment is void unless based on a conviction where the punishment is imprisonment in the penitentiary. However, in the case at bar, the habitual criminal charge of the indictment likewise alleged a further prior conviction for burglary and larceny on February 18, 1929, for which the defendant was sentenced to the Southern Illinois Penitentiary at Chester. This allegation is sufficient to support the habitual criminal charge. People v. Moore, 9 Ill.2d 224, 230, 137 N.E.2d 246.
This court condemns the practice of including in the habitual criminal charge of an indictment an allegation of a prior conviction for a felony and sentence to the Illinois State Reformatory. Yet under the facts of this case, and in reviewing the judgment of conviction herein, it is not our function to determine whether the record is perfect, but whether the defendant has had a fair trial and whether his conviction is based upon evidence establishing his guilt beyond a reasonable doubt. And where, as in this case, there is no evidence to indicate anything other than the defendant's guilt, we conclude that the result would not have been different had the error complained of not been committed, and the judgment and conviction will not be set aside because of such error. People v. Sleezer, 9 Ill.2d 57, 62, 136 N.E.2d 808; People v. Skelly, 409 Ill. 613, 628, 100 N.E.2d 915; People v. Davis, 406 Ill. 215, 223 and 224, 92 N.E.2d 649; People v. Cardinelli, 297 Ill. 116, 129, 130 N.E. 355.
The defendant has assigned as error that the indictment by the grand jury was made without any evidence of prior convictions. The argument is bottomed on the assumption that only the clerk of the circuit court of Sangamon County could have testified to prove prior convictions, and since his name was not listed as a witness on the indictment, no proof was made. We do not agree with the assumed major premise of this syllogism. However, under existing law the court will not inquire into proceedings before a grand jury in order to determine whether the evidence heard by that body was sufficient to support the indictment unless all of the witnesses were incompetent, or all the testimony upon which the indictment was found was incompetent. People v. Derrico, 409 Ill. 453, 457, 100 N.E.2d 607; People v. Price, 371 Ill. 137, 140, 20 N.E.2d 61; People v. Duncan, 261 Ill. 339, 343, 103 N.E. 1043. Such was not the fact in the case at bar.
The defendant has further urged that there was no arraignment. The common-law record recites: 'The said defendant waives arraignment and the defendant pleads not guilty.' A defendant may waive arraignment, and does waive it by entering a plea and proceeding to trial. People v. Evenow, 355 Ill. 451, 453, 189 N.E. 368. The defendant has also...
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