People v. Rave

• Decision Date: 23 January 1946
• Docket Number: No. 28947.,28947.
• Citation: People v. Rave, 392 Ill. 435, 65 N.E.2d 23 (Ill. 1946)
• Parties: PEOPLE v. RAVE.
• Court: Illinois Supreme Court

392 Ill. 435

65 N.E.2d 23

PEOPLE

v.RAVE.

No. 28947.

Supreme Court of Illinois.

Jan. 23, 1946.

Error to Criminal Court, Cook County; Harold G. Ward, Judge.

George Rave was convicted of robbery and filed a petition in the nature of a writ of error coram nobis seeking to review and set aside the judgment. The petition was denied, and he brings error.

Judgment affirmed.

Charles A. Bellows, of Chicago, for plaintiff in error.

George F. Barrett, Atty. Gen., and William J. Tuohy, State's Atty., of Chicago (Edward E. Wilson, John T. Gallagher, Melvin S. Rembe, and Joseph A. Pope, all of Chicago, of counsel), for the People.

FULTON, Justice.

Plaintiff in error, hereinafter referred to as defendant, filed in the criminal court of Cook county a motion in the nature of a writ of error coram nobis under section 72 of the Civil Practice Act, seeking to review and set aside a judgment entered against him on a verdict of guilty on trial of a charge of robbery. The petition was denied and plaintiff in error seeks review here. The original judgment of conviction was reviewed by this court and affirmed in People v. Rave, 364 Ill. 72, 3 N.E.2d 972.

The petition in substance alleged that the indictment against the defendant, which was returned by the grand jury of Cook county in October, 1934, charged the defendant with committing the offense of robbery with a pistol, and that the second count in the indictment was based on the Habitual Criminal Act and charged that the defendant had formerly been adjudged guilty and convicted of the crime of burglary on July 10, 1922. The petition further alleged that on July 10, 1922, he entered a plea of guilty to the indictment referred to in count two and that the court thereupon entered the following order: ‘The court orders said plea to be accepted and entered of record against the said defendant. And the court doth find that the said defendant, George Rave, is now about the age of seventeen years. Counsel for said defendant now here moves the court to release the said defendant on probation in this cause. And it is ordered by the court that said motion be and the same is hereby continued until July 21, 1922.’ The petition further alleged that on July 21, 1922, the court entered an order that said defendant be released on probation for a period of one year on his own recognizance of $500; that on September 3, 1923, the court entered an order that the said defendant, George Rave, having compliedwith the provisions of his probation, be discharged from further supervision. The petition alleged he was found guilty under the habitual-criminal count of the 1934 indictment and was accordingly sentenced on December 3, 1934, to the Illinois State Penitentiary for his natural life, and that he has been confined in the Illinois State Penitentiary ever since.

The petition further alleged that the judgment and sentence of life imprisonment was erroneous and a nullity, inasmuch as petitioner had not been lawfully convicted of the crime of burglary as charged in the first indictment; that if the trial court in the present case had known that petitioner had not been convicted of the crime of burglary he would not have been sentenced under the Habitual Criminal Act to a term of life imprisonment; that petitioner is not guilty of the crime upon which he was convicted and sentenced, and the petition concluded by praying that the defendant be brought before the court in order that he be present and testify.

The State's Attorney filed a written motion to dismiss said petition on the grounds, among other things, that the alleged facts stated by the petitioner were known to him at the time of the trial and through his own negligence and carelessness were not presented to the court at the time of the trial; that the defendant was not prevented from presenting the above alleged facts to the court at the time of the trial either by duress, fraud, excusable mistake or ignorance; that the alleged facts are insufficient to give the court jurisdiction in the above-entitled cause; that no action was taken within the statutory period of five years, and, therefore, the same is barred.

Plaintiff in error contends that the trial court erred in dismissing the petition for writ of error coram nobis without granting the plaintiff in error a hearing on the same.

The question presented for determination is whether, taking all the facts well pleaded in the motion, and admitted by the People's motion to dismiss, to be true, the plaintiff in error is entitled to the relief authorized by section 72 of the Civil Practice Act. That section, Ill.Rev.Stat. 1943, chap. 110, par. 196, provides: ‘The writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice.’ Under this section, which is the same as section 89 of the Practice Act of 1907, Smith-Hurd Stats. c. 110 Appendix, s 89, we have held that the errors which may be corrected by the court upon a motion of this kind are such errors in fact as could have been corrected by a writ of error coram nobis at common law. Marabia v. Mary Thompson Hospital, 309 Ill. 147, 140 N.E. 836. At common law this writ was allowed for the purpose of revoking a judgment for some error in point of fact and not in point of law, not appearing on the face of the record. Jacobson v. Ashkinaze, 337 Ill. 141, 168 N.E. 647.

The purpose of the writ of error coram nobis is to bring before the court rendering the judgment matters of fact not appearing of record which, if known at the time the judgment was rendered, would have prevented its rendition. People ex rel. O'Connell v. Noonan, 276 Ill. 430, 114 N.E. 928. Illustrations of such matters are the disability of the parties to sue or defend, the failure of the clerk to file a plea or answer, and the omission to interpose, through fraud, duress or excusable mistake and without negligence on the part of the defendant, a valid defense existing in the facts in the case.

In Jerome v. 5019-21 Quincy Street Building Corp., 385 Ill. 524, at page 527, 53 N.E.2d 444, 445, this court, in passing upon a motion for relief in the nature of a writ of error coram nobis, said: ‘The facts upon which the alleged error in this case was committed were a matter of record and before the court when the judgment was entered. The entering of the orders of default and judgment had the legal effect of a holding by the court that service had been obtained a sufficient length of time to meet the requirements of Rule 4 of this court * * * and to authorize the entering of an order of default and judgment without further delay. By the motion, defendant asked the court to review its former ruling in this regard and to hold the orders of default and judgment were prematurely entered. The question thus presented involved a question of law which required a construction of Rule 4 and its application to the admitted facts. Such matters are not within the field of inquiry allowable under a motion filed under section 72 (par. 196) of the Civil Practice Act. The rule is well established that such a motion is not available to review questions of fact which arise upon the pleadings or to correct errors of the court upon questions of law. People v. Crooks, 326 Ill. 266, 157 N.E. 218;Village of Downer's Grove v. Glos, 316 Ill. 563, 147 N.E. 390;Marabia v. Mary Thompson Hospital, 309 Ill. 147, 140 N.E. 836.’ See, also, Jacobson v. Ashkinaze, 337 Ill. 141, at page 146, 168 N.E. 647.

And in Chapman v. North American Life Ins. Co., 292 Ill. 179, 126 N.E. 732, 735, in considering a similar question raised by a motion filed under section 89 of the Practice Act of 1907, the court said: ‘the trial court cannot review itself or its own judgment and correct the same, either as to any question of fact found or decided by the court or as to any question of law decided by it after the term of court has ended.’

In the case at bar the defendant was asking the criminal court, but not the judge before whom the case was tried in the criminal court and by whom the judgment of conviction was entered, to review its former ruling as to defendant's former conviction of burglary and to hold that the judgment of that court finding the defendant was formerly convicted was erroneous. Under the Jerome case, 385 Ill. 524, 53 N.E.2d 444. This cannot be done by coram nobis.

Furthermore, the facts of the defendant having entered a plea of guilty and having applied for release on probation, as well as the order of court releasing the defendant on probation, were all matters of record in the criminal court of Cook county, and the court not only would take judicial notice of its own records but is presumed to know what its record shows. People v. Moran, 342 Ill. 478, at page 481, 174 N.E. 532. What fact, therefore, was unknown to the court from the record before it? The plaintiff in error has not pointed out any fact not of record other than his claim that if the criminal court had known that the judgment in the burglary case did not contain a final judgment or sentence, then the criminal court in the later case would not have imposed such a severe sentence.

The failure to interpose this defense was certainly negligence on the part of the defendant or his attorneys. It appears from the opinion of this court in the case of People v. Rave, 364 Ill. 72, 3 N.E.2d 972, 975, wherein this conviction was reviewed on writ of error to the...