People v. Stewart

• Decision Date: 22 September 1961
• Docket Number: No. 36498,36498
• Citation: 23 Ill.2d 161,177 N.E.2d 237
• Parties: PEOPLE of the State of Illinois, Defendant in Error, v. Sherman Edward STEWART, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 237

177 N.E.2d 237

23 Ill.2d 161

PEOPLE of the State of Illinois, Defendant in Error, v. Sherman Edward STEWART, Plaintiff in Error.

No. 36498.

Supreme Court of Illinois.

Sept. 22, 1961.

John R. Snively, Rockford, for plaintiff in error.

William G. Clark, Atty. Gen., and Donald C. Woolsey, State's Atty., Galesburg (Fred

G. Leach, Asst. Atty. Gen., of counsel), for defendant in error.

SCHAEFER, Justice.

In November of 1955, a jury in the circuit court of Knox County found Sherman Edward Stewart and Eugene Bair guilty of burglary and larceny, and found also that Stewart had formerly been convicted of burglary. Stewart was sentenced to the penitentiary for life as an habitual criminal (Ill.Rev.Stat.1955, chap. 38, par. 602), and he brings this writ of error to review his conviction. Bair's case is not before us.

Stewart attacks his conviction on numerous grounds. One of them is well taken, and requires that the judgment be reversed and the cause remanded for a new trial. We shall discuss only that one, and such of the others as are likely to recur upon another trial.

To prove that Stewart was an habitual criminal, the People offered in evidence a certified copy of a judgment of the circuit court of Rock Island County, entered on January 25, 1945, convicting one 'Sherman Edward Stewart, alias Sherman Stewart,' of burglary, and sentencing him to the penitentiary for a term of not less than three nor more than ten years. No evidence at all was offered, however, to identify the defendant as the person who was so convicted. The People concede that the decision of this court in People v. Casey, 399 Ill. 374, 77 N.E.2d 812, 11 A.L.R.2d 865, 'stands for the proposition that there must be proof of identity of the person charged as an habitual criminal in addition to the identity of names appearing from a previous conviction or convictions.' They urge us, however, to reconsider that decision.

When this court was confronted with this issue in the Casey case, in 1948, it had already been before many of the courts of the country, with conflicting results. 36 Ill.Bar.J. 555; 26 Chicago-Kent L. R. 340; see cases collected, 11 A.L.R.2d 870. In a unanimous opinion, the court chose what it considered the sounder view. It said, 'We can perceive of no reason why the crucial fact of establishing the identity of the defendant with the former convictions should not be proved with the same certainty which the law requires as to the substantive offense. We are dealing with the degree of proof required to establish a fact which, if proved, inflicts a penalty of additional years upon a defendant. It would be contrary to the law of what is right and just in a criminal action to hold that the enhanced penalty could be inflicted in the face of an uncertainty as to whether defendant was the same person as the one described in the records offered to prove the former conviction. * * * It will be observed that the statute gives the authenticated copy of the record of conviction prima facie effect as evidence, but there is the further question as to the defendant being identified as the person previously convicted. Undoubtedly in civil cases the rule is that identity of names raises a presumption that the person named and the one referred to in the previous record is one and the same person. Clifford v. Pioneer Fire-Proofing Co., 232 Ill. 150, 83 N.E. 448; Filkins v. O'Sullivan, 79 Ill. 524. In the trial of a criminal case, the record of a prior conviction of an infamous crime may be introduced for impeachment purposes. In such case proof of such conviction need not be made beyond a reasonable doubt and the presumption arising from the identity of names will be sufficient. People v. Buford, 396 Ill. 158, 71 N.E.2d 340; People v. Lawson, 331 Ill. 380, 163 N.E. 149. In a prosecution under the Habitual Criminal Act, the defendant is clothed with the presumption of innocence and, as has been pointed out, this applies to the fact of his former conviction which, if proved, enhances the penalty. The mere proof of a record containing identity of name with that of the defendant on trial is not sufficient to overcome the presumption of innocence where the enhancement of the penalty depends upon the proof of such fact.' 399 Ill. at pages 378-380, 77 N.E.2d at page 815.

In 1957 the General Assembly enacted a comprehensive revision of the Habitual Criminal Act, but it made no attempt to alter the rule adopted in the Casey case (see Ill.Rev.Stat.1959, chap. 38, par. 603.3; Univ. of Chicago Law School, Law Revision Studies, No. 1, p. 20); and we see no reason to depart from the views there expressed.

The People suggest that if we adhere to our decision in the Casey case, the cause 'should be reversed and remanded for the imposition of a proper sentence without regard to the finding that the defendant was an habitual criminal.' That finding, they say, should be regarded as surplusage, because the defendant had 'a full and fair trial,' and it is therefore necessary only to remand the case for the imposition of sentence on the jury's finding that the defendant was guilty of burglary and larceny.

In support of this suggestion they cite People v. Berger, 396 Ill. 97, 71 N.E.2d 6. There the defendant had been sentenced as an habitual criminal upon a jury verdict that found him guilty of robbery but did not explicitly find that he had previously been convicted of a felony. The court reversed the judgment, and disposed of the case in these terms, 396 Ill. at page 101, 71 N.E.2d at page 8: 'The judgment of the criminal court is reversed and the cause remanded with directions to enter a judgment committing the plaintiff in error to the Illinois State Penitentiary in accordance with the penalty fixed by statute for robbery.' The same course was followed in People v. Atkinson, 376 Ill. 623, 35 N.E.2d 58, People v. Sarosiek, 375 Ill. 631, 32 N.E.2d 311, and People v. Crane, 356 Ill. 276, 190 N.E. 355.

Each of these cases in which the court reversed for a proper sentence, however, was before the court upon a common-law record only, and what the court was holding was that the defendant's claim that he was prejudiced by putting the former conviction before the judge or jury could not be reached upon such a record. On the other hand, in People v. Parker, 356 Ill. 301, 190 N.E. 358, People v. Smithka, 356 Ill. 624, 191 N.E. 211, and People v. Lund, 382 Ill. 213, 46 N.E.2d 929, where the court had before it bills of exceptions showing the proceedings at the trials, the judgments were reversed and the causes remanded for new trials. The point of distinction between the two lines of cases was clearly drawn in People v. Atkinson, 376 Ill. 623, at pages 626-627, 35 N.E.2d 58. It was that the contention that evidence of a former conviction was not competent or material, and that it prejudiced the defendant, would not be entertained in the absence of a bill of exceptions. 'An alleged prejudicial error claimed to have arisen by the admission of incompetent and immaterial evidence must be preserved and made a part of the record by a bill of exceptions.' 376 Ill. at pages 626, 627, 35 N.E.2d at page 59.

On the other hand, the underlying assumption that the defendant had had 'a full and fair trial' could not be accepted when the record before the court showed that the earlier conviction had been put before the trier of the fact. So in People v. Parker, 356 Ill. 301, 303, 190 N.E. 358, where the habitual count was quashed in this court, the court said: 'It is argued by the people that, if the judgment must be reversed, it should be only for the purpose of imposing a proper sentence, the guilt of the defendant being proved. This suggestion cannot be followed. Under a proper indictment, limited as herein indicated, this evidence, which would be prejudicial to the rights of the defendant, would not, except for the purpose of impeachment, be either competent or material. It is necessary that the judgment be reversed and the cause remanded to the criminal court of Cook county, with directions to quash that portion of the indictment referring to the previous offense, to require a plea to the indictment as partially quashed and for a new trial.' See, also, People v. Lund, 382 Ill. 213, 217-218, 46 N.E.2d 929; People v. Perkins, 395 Ill. 553, 559, 70 N.E.2d 622. In the present case, the jury that found that defendant guilty of burglary and larceny also had before it what purported to be his record of a prior conviction of burglary. In the absence of the habitual criminal charge, the record of the prior conviction would not have been admissible. Upon the authority of the cases cited, we conclude that there must be a new trial.

The defendant has attacked the sufficiency of the indictment upon several grounds, all but one of which are too frivolous to require discussion. The indictment charged that the defendant 'did then and there unlawfully, feloniously, burglariously, wilfully, maliciously and forcibly break and enter a certain building then and there occupied and in the possession of Golden Cream Dairy Inc., a Corporation, * * *.' The defendant contends that it is fatally defective because it did not allege the ownership of the building. It is true that many decisions of this court have asserted, in unequivocal terms, the proposition for which the defendant contends. 'Except in so far as the rule may be changed by...