People v. Schraeberg

• Decision Date: 25 October 1930
• Docket Number: No. 20255.,20255.
• Citation: People v. Schraeberg, 340 Ill. 620, 173 N.E. 148 (Ill. 1930)
• Court: Illinois Supreme Court
• Parties: PEOPLE v. SCHRAEBERG.

340 Ill. 620

173 N.E. 148

PEOPLE

v.SCHRAEBERG.

No. 20255.

Supreme Court of Illinois.

Oct. 25, 1930.

Error to Circuit Court, Rock Island County; Nels A. Larson, Judge.

Criminal prosecution by the People against Irving Schraeberg.To review a judgment overruling defendant's motion to amend the record to make it speak the truth and to allow him to withdraw his plea of guilty and renew his plea of not guilty, defendant brings error.

Reversed and remanded, with directions.Louis N. Blumenthal, of Chicago (Clyde C. Fisher, of Chicago, of counsel), for plaintiff in error.

Oscar E. Carlstrom, Atty. Gen., Benjamin S. Bell, State's Atty., of Rock Island, and Joel C. Fitch, of Albion (Dan H. McNeal and Francis J. Coyle, both of Rock Island, of counsel), for the People.

HEARD, J.

On November 17, 1927, the grand jury of Rock Island county indicted Max Shapiro and Irving Schraeberg, alias Irving Stone, for burning a store building on October 7, 1927.On December 4, 1929, the defendants entered pleas of not guilty to the indictment.Shapiro was represented by Peter R. Ingelson, and nominally, for the purpose of keeping the record during the trial of the case, he was represented by Thomas P. Sinnett.Schraeberg was represented by Thomas P. Sinnett, and likewise Ingelson was Schraeberg's nominal attorney of record.A jury was selected and sworn to try the issue.A number of witnesses testified for the state, and several testified for the defense.Schraeberg testified in his own behalf.Two days were consumed in selecting the jury, and eleven days were used in producing evidence before the case was submitted to the jury to deliberate upon a verdict.The jurors were unable to agree, and they were discharged.On January 6, 1930, the case was again set for trial on January 13, 1930.On January 11the defendants presented a motion for a continuance.The motion was allowed and the case set for trial on February 24, 1930.On February 8, 1930, after notice to Schraeberg, Sinnett moved the court for leave to withdraw his appearance, and on February 13, 1930, the trial court granted Sinnett's motion.On February 21, 1930, Shapiro died.His death was suggested by Ingelson on February 24, at which time he withdrew his appearance in the case.Between the 21st and 24th of February Schraeberg, hereinafter referred to as the defendant, came before the court and asked for a continuance on the ground that he had no lawyer and no proper funds.The court advised the defendant that he would appoint a lawyer for him, but the defendant stated that he would wait until Monday the 24th, and that he would get an attorney of his own.On Monday morning February 24, 1930, the defendant appeared in court in person and asked for a change of venue.The court told him to get a lawyer and present the motion in written form.The defendant employed attorneys Schriver & Schriver chiefly to get a continuance.He requested his attorneys to prepare a petition for a change of venue.They entered a limited appearance for the purpose of presenting the petition for a change of venue from the presiding judge of the court.The petition was drawn under the provisions of the statute existing prior to July1, 1929-i. e., supported by the affidavits of two witnesses, not by the affidavit of the defendant's attorney in accordance with the requirements of the statute since the amendment of July 1, 1929.The court denied the motion.Schriver & Schriver entered their general appearance, and were given until 4 o'clock p. m. to prepare a motion for a continuance.The motion for continuance was presented to the court, and it too was denied.The court announced that the case would go to trial the next morning, Tuesday, February 25, 1930, at 9 o'clock.The record discloses that on the morning of February 25, 1930, a plea of guilty was entered by the defendant.The order of the court as transcribed by the clerk recited that on this day came the defendant, Irving Schraeberg, in his own proper person, as well as by Thomas P. Sinnett, his counsel; that on motion of the defendant leave of court was granted to withdraw his plea of not guilty heretofore entered and the defendant tendered his plea of guilty of arson in manner and form as charged in the indictment, and filed his waiver of trial by jury in writing; that thereupon the defendant was advised by the court that he was entitled to a trial by jury and had the right to have witnesses confront him; that the court further explained to the defendant the consequence and penalty of his plea, and an opportunity was given him to retract his said plea, but he persisted therein, and it was so entered by the court.Thereupon the court found him guilty of arson in manner and form as charged in the indictment and further found his age to be 29 years, and sentence was deferred until April 16, 1930.On April 16, 1930, being one of the days of the January term of said court and the same term that the plea of guilty was interposed, counsel now of record appeared and presented a withdrawal of the appearanceof Schriver & Schriver for the defendant and entered their appearance for the defendant.Counsel thereupon presented a motion to make the record speak the truth of expunging those parts of the order of February 25, 1930, wherein it was stated that the defendant‘was represented by Thomas Sinnett, his counsel,’ and wherein it was further stated ‘that the defendant was advised by the court that he was entitled to a trial by jury and that he had the right to have witnesses confront him and to be sworn and to testify both on behalf of the State and the defense,’ and wherein it was further stated ‘that the court further explained to the defendant the consequences and penalty of his said plea.’An immediate hearing was requested on this motion, and, should the court grant the same, the defendant asked leave of court to withdraw his plea of guilty and interpose a plea of not guilty.An immediate hearing was had on said motion.

The first witness called by the defendant was George W. Gamble, the clerk of the court.He testified that there were two indictments pending against the defendant, one the instant case, No. 7255, for arson, and the other, an indictment for conspiracy to commit arson, being indictment No. 7343, returned on September 21, 1928; that nothing had been done in the conspiracy case except to arraign the defendant.The indictment for conspiracy charged the defendant and Max Shapiro with a conspiracy to commit the offense charged in the indictment in this case.

Thomas P. Sinnett testified that at one time he was attorney of record for both defendants, and withdrew his appearance on February 13, 1930.On February 25, 1930, he accompanied the defendant to court.The assistant state's attorney, McNeal, got a jury waiver and filled it out.He further testified: ‘Schraeberg beckoned to me to come over and said, ‘Is that a jury waiver?’I said, ‘Yes.’He further asked, ‘Is it all right to sign that?’I said, ‘I am not your lawyer; that is your business,’ and I walked back.The court asked how old he was.He said he was twenty-nine years of age.Schraeberg said he wanted to go from Chicago to Joliet on April 16 and did not want to be here, and Mr. McNeal or Mr. Coyle (I don't remember which) said it would be necessary for him to be here.The court then said: ‘All right; I will now make this entry: ‘Judgment deferred until April 16th.”’The witness was then asked if he had related everything that transpired on that morning in the courtroom, and he answered that he did not recall there was anything else said.He did not recall the court stating anything to the defendant on that occasion advising him that on a plea of guilty he was subject to imprisonment in the penitentiary, nor did he recollect the court informing him as to the duration of his sentence on a plea of guilty.He was not appearing as attorney for the defendant that morning, and did not see any other counsel before the bar of the court representing or appearing for the defendant.On cross-examination, the assistant state's attorney was permitted to question the witness regarding various conversations on the morning of February 25, 1930, before court convened, wherein the defendant, the defendant's brother, and the assistant state's attorney discussed the question of a plea and the deferring of sentence thereon.Objections interposed to these questions and motions to strike the testimony were overruled by the court.

Harry M. Schriver testified that he saw the defendant for the first time during the noon hour on February 24, 1930.The witness entered a special appearance and presented a petition for a change of venue, which was denied about 2 o'clock p. m. He then entered a general appearance and presented the motion for a continuance and affidavit hereinabove set forth.He testified that the allegations in the affidavit were true.The court denied the motion for a continuance and announced that the case would go to trial the next morning at 9 o'clock.He was not in court with the defendant the next morning, and did not know whether he had any other counsel or not.He did not perform any services for the defendant at any time after the afternoon of February 24.On cross-examination, the witness, over objection of counsel for the defendant, was permitted to relate a conversation between the defendant, the defendant's brother, and the assistant state's attorney in the office of the latter after court adjourned, out of the presence of the court.

Norman H. Schraeberg, a brother of the defendant, testified that he was in court on the morning of February 25 and heard everything that took place between the court and his brother; that the assistant state's attorney asked the defendant to sign a paper; that the defendant looked around for somebody, saw Sinnett, and called him over and asked him whether to sign; that after that he heard the defendant say something about going...