People v. Shambley

• Decision Date: 25 October 1954
• Docket Number: No. 33232,33232
• Citation: People v. Shambley, 4 Ill.2d 38, 122 N.E.2d 172 (Ill. 1954)
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. George SHAMBLEY, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 172

122 N.E.2d 172

4 Ill.2d 38

The PEOPLE of the State of Illinois, Defendant in Error, v. George SHAMBLEY, Plaintiff in Error.

No. 33232.

Supreme Court of Illinois.

Oct. 25, 1954.

Thaddeus B. Rowe and Willie E. Washington, Chicago, for plaintiff in error.

Latham Castle, Atty. Gen., and John Gutknecht, State's Atty., Chicago (Fred G. Leach, Decatur, George W. Schwaner, Jr., Springfield, John T. Gallagher, Rudolph L. Janega, and Arthur Manning, Chicago, of counsel), for the People.

DAILY, Justice.

Defendant, George Shambley, was tried by a jury in the municipal court of Chicago on an information charging him with assaulting his wife with a deadly weapon. He was found guilty and assessed a fine of $200, which he paid. Defendant now sues out this writ of error to review the conviction and, although only a misdemeanor is involved, the presence of a fairly debatable constitutional question, which was raised and passed on in the trial court and properly preserved for review, gives us jurisdiction of the cause.

Before looking to the constitutional issue raised, our attention is first attracted to a contention of the People that the questions presented by the writ were rendered moot when defendant paid the fine assessed against him. Stated differently, the contention raises the question of whether a defendant in a criminal cause, after paying a fine properly assessed, may sue out a writ of error and obtain a review of the proceedings. We do not find that this court has ever passed upon the question and it appears that conflicting results have been reached at Appellate Court level in Lambert v. People, 43 Ill.App. 223; People v. Donahoe, 223 Ill.App. 277; People v. Bandy, 239 Ill.App. 273; and People v. Lee, 334 Ill.App. 158, 78 N.E.2d 822. The latter case held that payment of a fine did not constitute a waiver of the right while the other cases cited appear to hold that, under the circumstances presented in each, such a waiver was effected.

Examination of authorities, many of which are cited in the recent case of Village of Avon v. Popa, 96 Ohio App. 147, 121 N.E.2d 254, also discloses conflicting results in other jurisdictions, with the majority view being that the right to review is waived where a fine is voluntarily paid. It is our conclusion, however, that the contrary view is the more just and reasonable, such a conclusion being supported in principle by the statement of Mr. Justice Holmes in Commonwealth v. Fleckner, 167 Mass. 13, 44 N.E. 1053, wherein he said: 'We should be slow to suppose that the legislature meant to take away the right to undo the disgrace and legal discredit of a conviction * * * merely because a wrongly convicted person has paid his fine or served his term.'

Such a conclusion is also consistent with the view this court has expressed in civil actions in such cases as Lott v. Davis, 262 Ill. 148, 104 N.E. 199, and Page v. People ex rel. Weber, 99 Ill. 418, both of which hold that payment of a judgment before or after execution does not operate as a release of errors. In each case it was reasoned that it was immaterial whether or not the defendant could recover the money paid since the erroneous judgment was of itself an injury from which the law will presume damage. We agree with the court in People v. Lee, 334 Ill.App. 158, 78 N.E.2d 822, that the latter observation is even more pertinent in the case of an erroneous conviction for a criminal offense for, as stated in the Popa case (96 Ohio App. 147, 121 N.E.2d 256): 'Certainly an erroneous judgment of conviction of a criminal offense against a man is an injury per se, 'from which the law will intend he is or will be damnified by its continuing against him unreversed.' (Citations.)' Based upon these decisions and upon a consideration of the practical aspects of the situation, we think it only just and reasonable that the defendant be given an opportunity to clear his name of the charge he has steadfastly denied and, in view of his timely appeal, will not construe the payment of the fine as constituting a waiver of his right of review.

The facts necessary to a consideration of the errors assigned by defendant show that he and his wife became engaged in a family quarrel at their home. The wife testified, and the defendant denied it, that he drew a gun and threatened her with it. In any event, the wife left the home, called the police from a nearby store, then waited in front of the home for their arrival. When the officers came they entered the house with the wife, placed defendant under arrest, though he denied having done anything wrong, and removed him to their squad car. While one officer remained in the car with defendant, the other returned to the house and inquired of the wife if she knew the whereabouts of the gun. She indicated she did not but told the officer he could search the premises for it and, as a result of his search, the gun was found in the family garage. It also appears from the record that defendant and his wife were joint owners of the premises.

Defendant made a timely motion to suppress the gun as evidence but the motion was overruled, as was his objection when the gun was offered and received in evidence. In both instances, and in this court, it has been defendant's contention that the gun was obtained by an unlawful and unreasonable search in violation of the rights guaranteed to him by section 6 of article II of the Illinois constitution. The People, for their part, insist that the search made with the consent of the wife, a joint owner and occupant of the home, was neither unreasonable nor unlawful.

The...