People v. Russell

• Decision Date: 10 June 1910
• Citation: 245 Ill. 268,91 N.E. 1075
• Parties: PEOPLE v. RUSSELL.
• Court: Illinois Supreme Court

245 Ill. 268

91 N.E. 1075

PEOPLE

v.RUSSELL.

Supreme Court of Illinois.

April 21, 1910.

Rehearing Denied June 10, 1910.

Error to Municipal Court of Chicago; Henry C. Beitler, Judge.

Jennie Russell was convicted of petit larceny, and she brings error. Reversed.

Louis Greenberg, John F. Tyrrell, and Henry Eckhart, for plaintiff in error.

W. H. Stead, Atty. Gen., John E. W. Wayman, State's Atty., and June C. Smith (Charles V. Barrett, of counsel), for the People.

DUNN, J.

The plaintiff in error was convicted in the municipal court of Chicago on an information which charged her with petit larceny, and was sentenced to four months' imprisonmentin the House of Correction and to pay a fine of one dollar. She seeks to reverse the judgment, and insists that petit larceny can be prosecuted only by indictment, and the municipal court was therefore without jurisdiction to try her.

Section 8 of article 2 of the Constitution of this state provides that ‘no person shall be held to answer for a criminal offense, unless on indictment of a grand jury, except in cases in which the punishment is by fine, or imprisonment otherwise than in the penitentiary,’ etc. Section. 7 of division 2 of chapter 38 of the Revised Statutes provides that ‘every person convicted of the crime of murder, rape, kidnapping, willful and corrupt perjury or subornation of purjury, arson, burglary, robbery, sodomy or other crime against nature, incest, larceny, forgery, counterfeiting or bigamy, shall be deemed infamous, and shall forever thereafter be rendered incapable of holding any office of honor, trust or profit, or voting at any election, or serving as a juror, unless he is again restored to such rights by the terms of a pardon for the offense, or otherwise, according to the law: Provided, however, that the foregoing shall not apply to any person who has been heretofore convicted and sentenced, or who may be hereafter convicted and sentenced to the Illinois State Reformatory at Pontiac.’

It thus appears that the smallest part of the punishment provided for petit larceny is the fine and imprisonment imposed by the judgment of the court. There follows from the judgment a loss of civil rights, which practically deprives the convict of his citizenship unless restored thereto by a pardon. There remain to him after the judgment of the court is satisfied only his mere personal rights, by virtue of which his life, his liberty, and his property are protected from deprivation. He has become an alien in his own country, and worse, for he can be restored only as a matter of grace, while an alien may acquire citizenship as a matter of right. The plaintiff in error is a woman, and the rights she has lost are more restricted than those of a man; but they are all she had, and a man could lose no more.

The constitutional provision mentioned was under consideration in the case of People v. Glowacki, 236 Ill. 612, 86 N. E. 368, and it was held there that all violations of law could be prosecuted by information where the punishment was by fine alone, by imprisonment otherwise than in the penitentiary alone, or by either fine or such imprisonment or by both fine and such imprisonment. This enumeration includes all the cases in which prosecutions may be carried on by information. Cases in which the punishment consists of fine and imprisonment and some additional penalty can be prosecuted only by indictment. People v. Kipley, 171 Ill. 44, 49 N. E. 229,41 L. R. A. 775. The disqualification created by the section of the Criminal Code heretofore cited is not a mere incident of the punishment, as in the case of Ex parte Bollig, 31 Ill. 88, where the power of a justice of the peace to commit a defendant to prison until his fine was paid was sustained as an incidental means of collection and not a part of the punishment, and in the case of State v. Harris, 50 Minn. 128, 52 N. W. 387, 531, where the revocation of a license to sell intoxicating liquors, upon a conviction of a violation of a city ordinance in regard to their sale, was held not to be a part of the punishment, because it was a mere privilege to pursue a business peculiarly subject to police regulation and might legally be revoked without judicial proceedings of any character. The labor that may be required of the person convicted in the workhouse or on the streets may be regarded as incidental to the imprisonment and necessary to the proper employment of the prisoners and dicipline of the prison. Here, however, there is a deprivation of substantial civil rights as a penalty declared by law upon a conviction for crime, and it cannot be considered in any other light than as punishment for the crime. The deprivation of any civil right for past conduct is punishment for such conduct. Cummings v. Missouri, 4 Wall. 277, 18 L. Ed. 356.

It is conceded in the argument of the prosecution-and such concession accords with our view of the law-that, if petit larceny is an infamous crime under section 7 of division 2 of the Criminal Code the disqualifications imposed by that section constitute punishment additional to fine and imprisonment, and that the offense cannot be prosecuted by information. It is insisted, however, that, while petit larceny by a literal construction of the statute must be held to be an infamous crime, yet, construed in view of other statutes and with reference to the intention of the Legislature, it should be excluded from that class. In a general way it may be said that the line drawn by the constitution between cases in which prosecutions must be by indictment and cases in which prosecutions may be by information is the line between felonies and misdemeanors, and expressions supporting that proposition may be found in the decisions of this court, one of which is the case of Brewster v. People, 183 Ill. 143, 55 N. E. 640. When the Constitution of 1870 was adopted there was no definition of felony in this state different from that of the common law, which is, ‘an offense which occasions a total forfeiture of either lands or goods, or both, at the common law, and to which capital or other punishment may be superadded, according to the degree of guilt.’ 4 Blackstone's Com. 95. The statutory classification which defines a felony as an offense punishable with death or by imprisonment in the penitentiary and every other offense as a misdemeanor was contained first in the Revised Statutes of 1874 (sections 277, 278). Petit larceny at common law was the stealing of goods of the value of 12 pence or under (4 Blackstone's Com. 229), and it was a felony (Id. 95, 97).

Under the statute passed in 1827 there was no distinction between grand larceny and petit larceny. The law recognized but one offense, and the punishment was a fine of not less than half of the value of the thing stolen, whipping not to exceed 100 lashes, and imprisonment not exceeding 2 years. Laws 1827, p. 134. In 1833 larceny was made punishable by imprisonment in the penitentiary for a term of years from 1 to 10, and it was provided that, if the value of the property stolen did not exceed $5, the punishment should be a fine not to exceed $100 and imprisonment in the county jail not exceeding three months. Laws 1833, pp. 182, 183. On March 5, 1867 the value of the stolen property requiring confinement in the penitentiary was raised to $25. Laws 1867, p. 90. But at the special session in 1867 it was reduced to $15. Laws 1867, Sp. Sess. p. 37. During all this time no change was made in the status of larceny as a felony, and, without regard to the value of the property stolen, it was an infamous crime, subjecting one convicted of the offense to the deprivation of his civil rights. The section declaring what crimes shall be deemed infamous has been a part of the Criminal Code in substantially its present form since 1827, except that incest was not included until 1875 nor murder until 1874, and except that prior to 1874 it did not provide for a pardon and did not contain the proviso in regard to the state reformatory. Under this section it was declared, in 1860, that petit larceny was an infamous crime, and the pardon of the Governor did not restore one convicted thereof, to his right lost by reason of such conviction. Foreman v. Baldwin, 24 Ill. 299.

Whether or not a crime is infamous in this state depends, not upon the common law, but upon the statute. The Constitution does not define, or restrict the Legislature in defining, infamous crimes, and the power has always been exercised and recognized. After the amendment of the law in regard to larceny, in 1867, that crime could still be prosecuted only by indictment, whether the value of the property stolen was greater or less than $15, because the Constitution of 1848 (article 13, § 10) prohibited prosecutions for criminal offenses, unless on the indictment of a grand jury, except in cases of impeachment, or cases cognizableby justices of the peace, or arising in the army or navy, or in the militia when in actual service, and provided that justices of the peace should try no person, except as a court of inquiry for any offense punishable with imprisonment or death or fine above $1,000. The Constitution of 1870 did not, of itself, make any change in the law concerning larceny, the manner of its prosecution, or its status as an infamous crime. No authority existed for prosecuting it, or any other crime the punishment of which involved imprisonment otherwise than by indictment, until the Legislature should enact a law for that purpose. On April 5, 1872, a law was enacted, which went into force on July 1, 1872, which attempted to confer upon the county court exclusive jurisdiction in all criminal cases and misdemeanors, where the punishment was not imprisonment in the penitentiary or death. Laws 1871-72, p. 325. This act was repealed by the revision of 1874, and by section 7 of the county court act in that revision the county court was given concurrent jurisdiction with the circuit court...