People v. Sheppard, 31179

• Decision Date: 18 January 1950
• Docket Number: No. 31179,31179
• Parties: PEOPLE v. SHEPPARD.
• Court: Illinois Supreme Court

Page 78

90 N.E.2d 78

405 Ill. 79

PEOPLE v. SHEPPARD.

No. 31179.

Supreme Court of Illinois.

Jan. 18, 1950.

Julian C. Ryer, of Chicago (Elmer N. Holmgren, Chicago, and Ralph W. Pack, Marion, Ind., of counsel), for appellant.

Ivan A. Elliott, Attorney General and John S. Boyle, State's Attorney, of Chicago (John T. Gallagher, Rudolph L. Janega, and Alexander Napoli, all of Chicago, of counsel, for appellee.

WILSON, Justice.

September 17, 1947, James R. Sheppard was indicted in the criminal court of Cook County for the crime of assault with a deadly weapon, with intent to murder Frederick Draheim. On April 12, 1948, Sheppard was indicted in the same court for the crime of assault with intent to kill and murder William Leahy. Both causes were tried by the court without a jury. Defendant was found guilty of the two crimes and, for each offense, was sentenced to imprisonment in the penitentiary for a term of not less than three nor more than five years. Sheppard prosecuted two writs of error from this court to the criminal court. On January 19, 1949, the judgment in the Leahy case was reversed without remandment. People v. Sheppard, 402 Ill. 347, 83 N.E.2d 587. On the same day, the judgment in the Draheim case was affirmed, People v. Sheppard, 402 Ill. 411, 84 N.E.2d 377, and a rehearing denied on March 15, 1949. Thereafter, on April 12, 1949, Sheppard filed in the criminal court of Cook County a motion in the nature of a motion for a writ of error coram nobis seeking a new trial. The cause was assigned to Hon. Daniel A. Roberts who presided at the trials resulting in judgments of conviction of both the Leahy and Draheim cases. Defendant sought a change of venue. His petition was denied. The People then interposed a motion to dismiss, averring that defendant's motion does not state facts, within the contemplation of the applicable statute, but merely conclusions; that defendant sought a review of evidence adduced upon his trial in the criminal court and, also, a review of certain incidents which happened during the course of the trial, and that the allegations did not constitute allegations of fact not known to the court or which, if reviewed, would result in a different judgment. The proceedings in this court are also recounted in the People's motion. The motion to dismiss was sustained, judgment entered against Sheppard, and his motion dismissed. This appeal followed.

Initial consideration will be given to the complaint that the trial judge erroneously denied Sheppard's petition for a change of venue. The petition alleged that, because the trial judge was prejudiced against Sheppard, he could not expect a fair trial and hearing. Section 18 of the Venue Act (Ill.Rev.Stat.1949, chap. 146, par. 18,) provides, so far as relevant, that when any defendant in an indictment or information in any court in this State shall fear he will not receive a fair and impartial trial in the court in which the case is pending, because the judge of the court is prejudiced against him, the court shall award a change of venue upon the application of the defendant. Section 1 of the same statute provides that a change of venue in any civil suit or proceeding in law or equity may be had where either party shall fear that he will not receive a fair trial in the court in which the suit or proceeding is pending, because the judge is prejudiced against him.

Defendant's point is that a mandatory duty rested upon the trial judge to grant a change of venue for either of two reasons, first, because section 18 of the Venue Act is applicable if the coram nobis proceeding be deemed a criminal case and, secondly, section 1 controls if the proceeding be deemed civil in its nature. The form of the petition was proper and it was presented in apt time. It does not follow, however, that a defendant's right to a change of venue in a coram nobis action is absolute. From the very nature of coram nobis proceedings, the errors sought to be corrected are errors of fact. The trial judge who heard the cause in the first instance presumably would know whether the facts sought to be presented in the supplementary proceeding are facts which were unknown to the court at the time judgment was entered and which, if known, would have precluded the entry of judgment. A reasonable construction of section 72 of the Civil Practice Act, Ill.Rev.Stat.1949, c. 110, § 196, to the extent it provides that all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by the writ of error coram nobis, 'may be corrected by the court in which the error was committed,' is that the motion in the nature of a writ of error coram nobis should be presented to the same judge who rendered the original judgment. As observed in McGrath & Swanson Construction Co. v. Chicago Railways Co., 252 Ill.App. 476, 479, 'That the errors to be corrected under the writ were errors of fact would seem to require that the writ should be brought before the same judge who rendered the original judgment, for he only would know whether or not be was ignorant of the fact which if known would have prevented the judgment.' In Chapman v. North American Life Ins. Co., 292 Ill. 179, 126 N.E. 732, 734, this court said: 'At common law the writ of error coram nobis could be sued out of the same court when a judgment at law was rendered to reverse the judgment, and before the same judge who rendered the judgment, for an error of fact that might be brought to the knowledge of the court that would be sufficient of itself, to defeat the judgment.' See: 1 Holdsworth's History of English Law, p. 224; 1 Black on Judgments, sec. 300; 49 C.J.S., Judgments, § 316. The reasons which required the old common-law writ to be presented to the same judge who rendered the original judgment obtain with like force under section 72 of the Civil Practice Act. Accordingly, neither section 1 nor 18 of the Venue Act is applicable to coram nobis proceedings. Defendant's petition for a change of venue was properly denied.

In passing upon a similar question, the court, in Gilman v. Donovan, 59 Iowa 76, 12 N.E. 779, 780, observed, 'The proceeding is not in the nature of a new or independent action, but is supplementary and intended to correct errors committed in the trial of a cause and the rendition of the judgment. It is of the same character as all proceeding for new trials, the correction of records, etc., wherein the court committing the errors corrects them. In this proceeding the law requires the very court rendering judgment to review its decision; the case cannot, therefore, be transferred to another court for that purpose.' In State ex rel. Emmert v. Gentry, 223 Ind. 535, 62 N.E.2d 860, 862, 161 A.L.R. 532, the court said, 'The judge who tried the original action is by experience and knowledge of the proceedings in the original action peculiarly fitted to try any issues which may be raised concerning the judgment which he has entered. He was accepted as an impartial judge either by failure to take a change, by failure to show a sufficient reason for a change, or because of a change having been granted. In any event his position is that of an impartial judge and when h...