People v. Scholl

• Decision Date: 31 October 1949
• Docket Number: Gen. No. 9646.
• Parties: PEOPLE v. SCHOLL.
• Court: United States Appellate Court of Illinois

339 Ill.App. 7

88 N.E.2d 681

PEOPLE

v.SCHOLL.

Gen. No. 9646.

Appellate Court of Illinois, Third District.

Oct. 31, 1949.

Esther Scholl was convicted in the County Court of Jersey County, William F. Hanley, J., on a plea of guilty, of the offense of contributing to the dependency and neglect of her children, and she brought error.

The Appellate Court, O'Connor, J., reversed the judgment, holding that defendant could raise question of sufficiency of information for first time on writ of error, and that information was fatally defective.Manuel M. Wiseman, Alton, James O. Monroe, Jr., Collinsville, for plaintiff in error.

Alvin H. Petitt, State's Attorney, Jerseyville, for defendant in error.

O'CONNOR, Justice.

This writ of error is prosecuted by the defendant Esther Scholl to reverse a judgment of the County Court of Jersey County, adjudging the defendant guilty of the criminal offense of contributing to the dependency and neglect of children.

The defendant was brought before the County court on August 2, 1948 and at that time a purported criminal information was filed against her, reading as follows:

‘Comes now F. A. Reisner, State's Attorney in and for the County of Jersey and State of Illinois, in his own proper person, and in the name and by the authority of the People of the State of Illinois, and gives the Court to be informed and understand that on, to-wit: the 30th day of July, 1948, and since that time and up to the present time, in the County of Jersey and State of Illinois, the said Esther Scholl did unlawfully and without any lawful excuse, desert, neglect and refuse to provide for the support and maintenance of her children, Annie Scholl, age seven, and Betty Scholl, age six, said children being then and there under the age of eighteen years and being dependent and neglected in that they are without proper parental care or guardianship, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the People of the State of Illinois.

F. A. Reisner,

State's Attorney in and for the County of Jersey and State of Illinois.

‘State of Illinois,

County of Jersey, } ss

‘Marjorie McMahan, of lawful age, being first duly sworn, upon her oath deposed and says that she had read the foregoing information and that the same is true.

‘Marjorie McMahan.

‘Subscribed and sworn to by the above-named Marjorie McMahan before me, the undersigned County Clerk within and for the County of Jersey, in the State of Illinois, this 2nd day of August, A.D. 1948.

‘G. P. Pearce,

‘(Seal)

County Clerk.'

The defendant was not represented by counsel and entered a plea of guilty and the court entered an order of conviction of the crime of contributing to the dependency and neglect of children, and sentenced her to the Reformatory for Women at Dwight, Illinois, for a term of one year. Defendant has sued a writ of error out of this court to review the record of conviction. The cause is submitted on the common law record.

Defendant assigns nine errors, the most important of which is that the Information is insufficient and fatally defective in that it does not allege that the offense was done ‘knowingly or wilfully’, but merely states that the offense was committed ‘unlawfully and without lawful excuse’.

To this contention the defendant in error first urges that the insufficiency of the information cannot be raised after trial. There is ample authority in Illinois to support the contention of the defendant that the sufficiency of an indictment or an information can be urged after a plea of guilty and judgment of the court upon a writ of error. Klawanski v. People, 218 Ill. 481, 75 N.E. 1028, 1029. The court in that case said: ‘We see no good reason why advantage cannot be taken of a bad indictment upon writ of error after judgment of the court, the same as could advantage be taken of a bad declaration or faulty bill in equity’. The rule laid down in this case has been consistently followed and restated in the cases of People v. Shaver, 367 Ill. 339, 11 N.E.2d 400;People v. Green, 368 Ill. 242, 13 N.E.2d 278, 115 A.L.R. 348;People v. Fore, 384 Ill. 455, 51 N.E.2d 548; and the last expression of the Supreme Court on this subject is contained in People v. Taylor, 391 Ill. 11, at page 13, 62 N.E.2d 683, at page 685, where the court said:

‘Defendant first contends that his conviction was void because the indictment is defective in a substantial form. A plea of guilty confesses merely that an accused is guilty in manner and form as charged in the indictment, and where an indictment does not charge a criminal offense in the form prescribed by the common law or the statute, the plea does not waive the right to challenge the sufficiency of the indictment either by a motion in arrest of judgment or, as here, on a writ [of] error.’

The section of the Statute under which the information is filed provides in part:

‘Any parent, legal guardian or person having the custody of a male under the age of 17 years or of a female under the age of 18 years, who shall knowingly or wilfully cause, aid or encourage such person to be or to become a dependent and neglected child as defined in section 1, or who shall knowingly or wilfully do acts which directly tend to render any such child so dependent and neglected, or who shall knowingly or wilfully fail to do that which will directly tend to prevent such state of dependency and neglect shall be deemed guilty of the crime of contributing to the dependency and neglect of children and on conviction thereof shall be punished by a fine of not more than $200.00 or by imprisonment in the county jail, house of correction or workhouse for not more than one year or both by such fine and imprisonment.’ Ill.Rev.Stat.1949, c. 38, § 101.

The information as filed charges: ‘the said Esther Scholl did unlawfully and without lawful excuse, desert, neglect and refuse to provide for the support and maintenance of her children’.

Plaintiff in error contends that the absence of the allegation that the act complained of was done knowingly or wilfully renders the information void and that consequently it fails to...