People v. Stingley

• Decision Date: 23 March 1953
• Docket Number: No. 32574,32574
• Citation: 111 N.E.2d 548,414 Ill. 398
• Parties: PEOPLE v. STINGLEY.
• Court: Illinois Supreme Court

Page 548

111 N.E.2d 548

414 Ill. 398

PEOPLE v. STINGLEY.

No. 32574.

Supreme Court of Illinois.

March 23, 1953.

Writ of Certiorari Denied May 18, 1953.

See 73 S.Ct. 945.

Elijah Stingley, pro se.

Ivan A. Elliott, Atty. Gen., and John Gutknecht, State's Atty., of Chicago (John T. Gallagher, Rudolph L. Janega and Arthur F. Manning, all of Chicago, of counsel), for defendant in error.

CRAMPTON, Chief Justice.

The plaintiff in error, Elijah Stingley, brings a writ of error to the criminal court of Cook County, where a bench trial was had without the intervention of a jury, a jury having been waived, to review the legality of two consecutive sentences for terms of ten to fourteen years each in the Illinois State Penitentiary entered upon two separate counts of the same indictment, which charged in one count an assault with intent to rape, and, in another, an assault with intent to murder, both of which arose out of a single series of acts committed upon the same victim at the same time and place.

The single indictment bore general number 47-1740 and was returned August 26, 1947. A first count thereof charged an unlawful and felonious assault upon the victim with intent then and there feloniously and forcibly to ravish and carnally know the said prosecutrix. The second count charged that the plaintiff in error unlawfully, feloniously, wilfully and maliciously made an assault upon the same victim with felonious and malicious intent to kill and murder and that the assault was so made by then and there placing his hands and fingers upon, against and around the neck and throat of said victim and then and there pressing, squeezing, constricting and choking with said hands and fingers upon, against and around said neck and throat, and by then and there with the hands of said plaintiff in error taking hold of the head and body of said prosecutrix and forcibly and violently striking, knocking and pounding the head and body of said victim upon and against a certain sidewalk and ground. The court found the defendant guilty on both counts and sentenced said defendant on October 1, 1947, to a term of ten to fourteen years on each count and provided in the judgment order that the sentences were to be served cumulatively thereafter. Only the common-law record is before us.

The plaintiff in error contends the trial court was without authority to impose two consecutive sentences under a single indictment consisting of two counts naming offenses in the same transaction and that the same constitutes double jeopardy within the meaning of the constitution of the State of Illinois and the constitution of the United States and that the same violates the due-process clauses thereof.

The State admits the issue here is one of first impression in this State, insofar as it appertains to consecutive sentences upon separate convictions for independent felonies arising out of the same transgression and charged in the same indictment. It is true this court has affirmed the consecutive or successive sentences imposed in cases involving misdemeanor convictions arising upon charges in separate counts of an indictment or information. People v. Player, 377 Ill. 417, 36 N.E.2d 729; People v. Rettich, 332 Ill. 47, 163 N.E. 367; People v. Elliott, 272 Ill. 592, 112 N.E. 300. However, the Elliott case involved intoxicating liquors under the Local Option Law as it existed prior to the prohibition amendment and the Rettich case was decided under an interpretation of the Prohibition Act. These cases are of little value since we held in People v. Franklin, 341 Ill. 499, 173 N.E. 607, 609, that, 'Under section 39 of the Prohibition Act authority is specifically given to unite separate counts charging separate offenses, though of the same character, in the same information, and to try and punish all such offenses. This section of the statute had been held valid.' The Player case involved repeated offenses under the Occupational Tax Act. A similar rule prevails in the Federal jurisdiction. Where an act creates two separate offenses they may be joined in a single indictment and the sentences may be made consecutive. Thus, in Mercado v. United States, 1 Cir., 183 F.2d 486, and Rivera v. United States, 1 Cir., 151 F.2d 47, it was held that an indictment in two counts, in all material respects identical in the two cases, which charge separate offenses in each count, one for the transportation of a revolver, and the other the transportation of ammunition for it, at one and the same time, constituted two separate and distinct offenses. In those cases, as in the case of Crespo v. United States, 1 Cir., 151 F.2d 44, 46, the rule was laid down, 'as to whether there is a plurality of offenses, 'the test is whether, if what is set out in the second indictment had been proved under the first, there could have been a conviction; when there could, the second cannot be maintained; when there could not, it can be. " And it was there held that the second count there charged was equivalent to a second indictment.

The trial of criminal cases in this State proceeds according to the common law except where the mode and method are changed by statute. It is a cardinal principle of our criminal jurisprudence that a defendant cannot be tried for two separate and distinct felonies, which are wholly and totally unrelated, at the same time, and where an indictment charges two unrelated felonies raising two separate and distinct issues which are wholly unrelated, the People may be compelled, upon proper motion, to elect upon which of the two felonies charged by the indictment they will elect to prosecute. People v. Wolf, 358 Ill. 334, 193 N.E. 211. On the other hand, the rule has been repeatedly stated in this State that if two or more offenses grow out of one transaction and are of such a nature that the defendant may be found guilty of each, he may be charged with the offenses in separate counts of the same indictment, and that the prosecutor will not be required to elect for which offense he will ask a conviction. An election will only be required where the offenses charged in the different counts are actually distinct from each other and do not arise out of the same transaction. People v. Pulliam, 352 Ill. 318, 185 N.E. 599; People v. Bernstein, 250 Ill. 63, 95 N.E. 50. A defendant cannot insist that he shall not be put upon trial on an indictment...