People v. Pilewski

• Court: Illinois Supreme Court
• Writing for the Court: THOMPSON
• Citation: People v. Pilewski, 295 Ill. 58, 128 N.E. 801 (Ill. 1920)
• Decision Date: 10 December 1920
• Docket Number: No. 13394.,13394.
• Parties: PEOPLE v. PILEWSKI.

295 Ill. 58

128 N.E. 801

PEOPLE

v.PILEWSKI.

No. 13394.

Supreme Court of Illinois.

Oct. 23, 1920.

Rehearing Denied Dec. 10, 1920.

Error to Criminal Court, Cook County; George Kersten, Judge.

George Pilewski was convicted of manslaughter, and he brings error.

Affirmed.

Rush B. Johnson, Elwyn E. Long, and Charles P. R. Macaulay, all of Chicago, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Maclay Hoyne, State's Atty., of Chicago, and George C. Dixon, of Dixon (Edward E. Wilson and George C. Bliss, both of Chicago, of counsel), for the People.

THOMPSON, J.

April 16, 1919, plaintiff in error was found guilty of manslaughter in the criminal court of Cook county, under an indictment charging him with the murder of William Tiemlling, and February 16, 1920, he was sentenced to the penitentiary. This writ of error is prosecuted to reverse the judgment for the following reasons: (1) There is a fatal variance between the indictment and the proof; (2) the prosecuting attorney was guilty of prejudicial misconduct; (3) there was error in the instructions given the jury on behalf of the people; and (4) the court lost jurisdiction by delaying sentence.

When the case was called for trial the assistant state's attorney, who was conducting the prosecution, called to the attention of the court and the counsel for the defense an error in the spelling of the name of deceased. The correct spelling of the name of deceased was T-r-e-m-e-l-l-i-n-g, and in the indictment the name was spelled T-i-e-m-l-l-i-n-g. After some discussion it was agreed between the parties that ‘Tiemlling’ meant ‘Tremelling,’ and that the plaintiff in error would take no advantage of the error in the spelling of the name of the deceased; in other words, it was admitted by plaintiff in error that the party named in the indictment as the party killed was, in fact, the party killed.

Plaintiff in error contends that under the decision in People v. Smith, 258 Ill. 502, 101 N. E. 957, the variance between the indictment and the proof was fatal. It is contended that the stipulation amounted to an amendment of the indictment, and many authorities are cited to sustain the contention than an indictment cannot be amended, by consent or otherwise. It is true that the absence of an accusation in the form prescribed by the Constitution or statute cannot be cured so as to confer jurisdiction and validate a conviction by consent, waiver, or estoppel on the part of the accused or by stipulation on the part of his counsel. 22 Cyc. 173. We do not agree, however, with counsel's contention that this stipulation amounted to an amendment of the indictment. The indictment was sufficient and would have supported a judgment on a plea of guilty. The only question presented is: Does the proof conform to the charge? If Does the proof conform to the charge? If party named in the indictment, there is no variance. Shepherd v. People, 72 Ill. 480;Little v. People, 157 Ill. 153, 42 N. E. 389; Bonardo v. People, 182 Ill. 411, 55 N. E. 519;People v. Reilly, 257 Ill. 538, 101 N. E. 54, Ann. Cas. 1914A, 1112. It is true the testimony of witnesses showed that the name of the deceased was ‘Tremelling’ and the indictment alleged deceased to be ‘Tiemlling,’ but plaintiff in error admitted that the two names referred to one and the same person, and that the party killed was the party named in the indictment. The law is now well established in this state that, since the accused can expressly admit away his whole case by pleading guilty, he can admit away any part of it. People v. Scates, 3 Scam. 351;Perteet v. People, 70 Ill. 171;People v. Schultz-Knighten, 277 Ill. 238, 115 N. E. 140.

This killing occurred about midnight of November 11, 1918, as the result of a drunken brawl growing out of an unwise celebration of the signing of the armistice. During the course of the trial the prosecuting attorney was guilty of misconduct by persisting in attempting to show that deceased raised a flag at his home at 3 o'clock in the morning, which was several hours before the alleged killing. The prosecuting attorney also persisted, after the court had sustained objections of plaintiff in error, in attempting to show that deceased was married and the father of a child, and that the accused had become intoxicated and had been involved in other saloon fights earlier in the evening. The conduct of the prosecuting attorney was improper, and, if it appeared from an examination of the whole record that it might have influenced the verdict of the jury, such misconduct would be reversible error. In this case, however, the guilt of plaintiff in error is established by two eyewitnesses to the assault and by convincing corroborative...