People v. Smith
| Decision Date | 27 September 1963 |
| Docket Number | No. 37135,37135 |
| Citation | 192 N.E.2d 880,28 Ill.2d 445 |
| Parties | The PEOPLE of the State of Illinois, Defendant in Error, v. William Lee SMITH, Plaintiff in Error. |
| Court | Illinois Supreme Court |
Harry S. Miller, Chicago, for plaintiff in error.
William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago , for defendant in error.
On February 11, 1959, the grand jury of the criminal court of Cook County indicted the defendant, William Lee Smith, for the crime of armed robbery. He was tried by jury and found guilty and the case was brought to this court by a writ of error. The Attorney General confessed error, the judgment of conviction was reversed, and the cause was remanded for a new trial. On February 23, 1961, the grand jury returned another indictment against the defendant charging him with the same crime. The only significant difference between the 1959 indictment and the 1961 indictment is that the earlier indictment charged that the defendant was armed with a gun and the 1961 indictment charged that the was armed with a knife at the time of the robbery. The defendant was tried by jury on the 1961 indictment, found guilty and sentenced to the peniteniary for a term of not less than 7 nor more than 8 years. The case is now before us on a writ of error to review the second judgment of conviction.
The only issue involved on this writ of error is whether the trial court erred in denying the defendant's petition for a change of venue. A determination of this question requires us to review the proceedings prior to the denial of the change of venue. The indictment was returned on February 23, 1961, and on March 1, the chief justice of the criminal court assigned the cause to judge Hasten and continued it until March 21. On that date it was continued to April 13 on motion by defendant's counsel. The defendant was not present on April 13 and a capias was issued for his arrest. On the State's motion the case was stricken with leave to reinstate. On May 12 the defendant appeared before the chief justice without counsel and the cause was reinstated on the motion of the State's Attorney. The chief justice appointed the public defender to represent the defendant and continued the cause to May 15. On that date it was continued by order of court to June 15 for trial and by express consent and agreement between the State's Attorney and counsel for the defendant on June 15 the cause was continued for trial until August 21. On that date the defendant filed his petition for a change of venue alleging that Judge Hasten and another judge were prejudiced against him and that knowledge of the prejudice first came to the defendant on August 16. The prosecutor objected to granting the change of venue and stated that the matter had been on Judge Hasten's call since December 5, 1960, and that there had been numerous continuances since then. The prosecutor told the court that the State's witnesses had been worn out coming back and forth to court and that they were having difficulty with their employment. The court asked one of the witnesses how many times he had come to court and the witness replied that he had been coming there since 1959 and that he had lost four jobs. The court then denied the petition for a change of venue.
The principles governing a defendant's right to a change of venue are well settled. The statutory provisions with respect to a change of venue should receive a liberal rather than a strict construction and should be construed to promote rather than to defeat an application for a change of venue, particularly where prejudice on the part of the judge is charged. (People v. Kostos, 21 Ill.2d 451, 173 N.E.2d 469.) The right to a change of venue on account of the alleged prejudice of the trial judge is absolute if the requirements of the statute are met. (People v. Wallenberg, 24 Ill.2d 355, 181 N.E.2d 146.) However, if it appears that the petition for a change of venue is for the purpose of delay, or is filed in an attempt to avoid any trial of the cause, the petition should be denied. (People v. Stewart, 20 Ill.2d 387, 169 N.E.2d 796.) The record of the proceedings under the 1961 indictment shows only one motion by the defendant for a continuance, all other continuances being either by order of court or by agreement between the State and the defendant. The petition was in proper form and alleged that the...
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People v. Walker
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...and on remand the case was assigned to him again. Also, the case was tried under the same indictment as before. (Cf. People v. Smith (1963), 28 Ill.2d 445, 192 N.E.2d 880 (defendant held entitled to automatic substitution on remand; new indictment obtained against him on remand).) This cour......
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...and the right of a defendant to change of judge is absolute, People v. McWilliams (1932), 350 Ill. 628, 183 N.E. 582; People v. Smith (1963), 28 Ill.2d 445, 192 N.E.2d 880. These cases found reversible error in the trial court's failure to grant a motion for change of The right of disqualif......