People v. Tamborski, 32650

• Decision Date: 24 September 1953
• Docket Number: No. 32650,32650
• Citation: 415 Ill. 466,114 N.E.2d 649
• Parties: PEOPLE v. TAMBORSKI.
• Court: Illinois Supreme Court

Page 649

114 N.E.2d 649

415 Ill. 466

PEOPLE v. TAMBORSKI.

No. 32650.

Supreme Court of Illinois.

Sept. 24, 1953.

Emmet F. Byrne, of Chicago (Ode L. Rankin, of counsel), for plaintiff in error.

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

BRISTOW, Justice.

Richard Tamborski was indicted for the crime of murder in the criminal court of Cook County. He was tried by jury, found guilty and sentenced to imprisonment in the penitentiary for a term of seventeen years. To review the judgment of conviction, he prosecutes the present writ of error.

The only error assigned is that the trial court erred in failing to discharge defendant for want of prosecution pursuant to section 18 of division XIII of the Criminal Code (Ill.Rev.Stat.1951, chap. 38, par. 748,) which provides as follows: 'Any person committed for a criminal or supposed criminal offense, and not admitted to bail, and not tried by the court having jurisdiction of the offense, within four months of the date of commitment, shall be set at liberty by the court, unless the delay shall happen on the application of the prisoner, or unless the court is satisfied that due exertion has been made to procure the evidence on the part of the People, and that there is reasonable grounds to believe that such evidence may be procured at a later day in which case the court may continue the cause for not more than sixty (60) days. If any such person shall have been admitted to bail for an alleged offense, other than a capital offense, he shall be entitled, on demand, to be tried within four months after such demand: Provided, that if the court shall be satisfied that due exertion has been made to procure the evidence on behalf of the People and that there is reasonable ground to believe such evidence may be procured at a later day the court may continue the cause for not more than sixty (60) days.'

Three separate motions for discharge were made by defendant in the trial court, each of which was denied. A proper understanding of the issues involved in these motions will be aided by a complete statement of the material facts, which are as follows:

June 25, 1949-Armed robbery of Brink's truck resulting in killing of Joseph Kozoil and Joseph Den.

August 19, 1949-Defendant surrendered to Federal Bureau of Investigation in Alaska and was returned to Chicago.

September 2, 1949-Defendant committed to county jail without bail by municipal court on charge of murder of Joseph Den.

September 16, 1949-Three indictments returned. No. 49-1746 charged defendant jointly with Joseph Jakalski, James Hoyland, and David Edgerly with the murder of Joseph Den. No. 49-1747 charged defendant jointly with the same persons with murder of Joseph Kozoil. No. 49-1748 charged defendant jointly with the same persons with robbery.

September 21, 1949-Municipal court complaint dismissed.

September 23, 1949-Defendant arraigned and pleaded not guilty to all indictments.

October 20, 1949-Defendant filed motion for severance. Jakalski filed motion for severance.

October 24, 1949-Tamborski and Jakalski granted severance from other defendants, but denied severance from each other.

November 25, 1949-Tamborski moved for severance from Jakalski on No. 49-1746. Motion denied. Counsel for Jakalski moved for a continuance. Hearing on this motion continued until November 28. State's Attorney stated to court that he was having trouble locating a witness and that therefore he was agreeable to continuance. The court remarked, 'If it goes over, it will have to go over until after the first of the year,' to which the State's Attorney replied, 'That is what I would have to ask for, too.'

November 28, 1949-Defendant demanded trial. The motion of counsel for Jakalski for a continuance was allowed and the cause as to each defendant was continued to January 9, 1950.

January 9, 1950-First motion by defendant for discharge under section 748 of Criminal Code, commonly referred to as the 'four-month statute.' (Judge Klarkowski presiding.) Defendant alleged confinement on charge of murder of Joseph Den since September 2, 1949, the date on which he was committed by municipal court, and further alleged that at no time did he seek to delay trial. The motion was denied upon the grounds that the continuance of November 28 was to enable the State to procure evidence, and since the continuance was for less than sixty days, it was within the proviso of the statute.

January 11, 1950-February 10, 1950-Defendant and Jakalski were tried under indictment 49-1747 for Kozoil murder and found not guilty.

February 14, 1950-On motion of defendant, cause continued until March 20, 1950.

March 20, 1950-By agreement, cause No. 49-1746 continued until May 8, 1950.

May 3, 1950-Defendant granted severance from Jakalski.

May 8, 1950-Defendant demanded trial.

May 8, 1950-May 18, 1950-Jakalski tried by jury and found not guilty.

May 22, 1950-On motion of State, cause continued until June 14, 1950.

June 14, 1950-By order of court, cause continued to June 19, 1950.

June 19, 1950-By order of court, cause held on call.

June 29, 1950-On motion of defendant, cause continued until July 6, 1950.

July 6, 1950-Defendant demanded trial. By order of court, cause continued.

August 10, 1950-Defendant demanded trial. On motion of State cause stricken, with leave to reinstate. Defendant taken into custody by U. S. Marshal.

September 16, 1950-Defendant demanded trial.

October 3, 1950-Defendant demanded trial.

November 6, 1950-Indictment No. 49-1746 nolle prossed. Defendant demanded trial.

June 16, 1951-Defendant tried in U. S. District Court for aggravated bank robbery arising out of same facts as indictment 49-1746 and found not guilty. He was immediately taken in custody by sheriff on municipal court warrant charging murder of Joseph Den (same charge as 49-1746).

July 18, 1951-Indictment 51-1384 returned charging murder of Den.

July 25, 1951-Second motion for discharge under section 748 of Criminal Code. (Judge Padden presiding.) This motion alleged the same facts as the motion before Judge Klarkowski. The hearing on the motion was continued until August 1, 1951.

August 1, 1951-Hearing on motion. Continued until August 10, 1951.

August 10, 1951-Motion for discharge denied. Defendant pleaded not guilty. Case continued until September 17 by order of court.

September 17, 1951-Defendant demands trial. State asked for continuance to October 22, 1951. Order entered continuing case for trial to October 22, 1951.

October 22, 1951-Third motion for discharge under Section 748 of Criminal Code alleging continuous confinement since June 16, 1951, more than four months prior to motion. This motion was denied by Judge Crowley, on the basis that defendant caused delay of trial by moving for discharge on July 25, 1951, and that four months did not start until August 10, 1951, when that motion was denied.

October 22, 1951-October 31, 1951-Defendant tried by jury, convicted and sentenced to seventeen years, from which judgment he prosecutes the present writ of error.

The ruling of Judge Klarkowski on the first motion was not a final order and could not be reviewed by writ of error. Healy v. People, 193 Ill. 370, 61 N.E. 1051. Hence, this ruling was not binding upon Judge Padden in the second proceedings and it was therefore proper for him to consider the motion for discharge, even though a substantially similar motion had been denied by Judge Klarkowski. The ruling of Judge Klarkowski is not actually before us, except to the extent that the bill of exceptions at the hearing before him was introduced in evidence at the hearing of the second motion before Judge Padden. However, the record of the proceedings on the second motion has been preserved by a properly certified bill of exceptions and the ruling of Judge Padden thereon is subject to review by this writ of error. People v. White, 405 Ill. 152, 89 N.E.2d 813. From a careful examination of the record of these proceedings, we are of the opinion that the court properly denied the second motion. The date upon which the four months commenced to run was September 2, 1949, the date upon which he was confined on the warrant charging him with the murder of Joseph Den. Guthmann v. People, 203 Ill. 260, 67 N.E. 821. It is conceded that the defendant made no application for delay and, in fact, demanded immediate trial. The four-month period therefore expired January 2, 1950, and in the absence of further evidence, defendant was entitled to discharge on January 9. However, on November 25, 1949, the State explained to the court that they were unable to have a key witness present and requested that the case be continued until after the first of the year. It is the State's contention that this continuance, being for less than sixty days, came within the proviso of the statute and that defendant was therefore not entitled to discharge. It is true that the State made no formal motion for a continuance, while such a motion was made by defendant's codefendant, Jakalski. The statute does not require such a motion. It provides that if the court shall be satisfied that due exertion has been made to procure the evidence on behalf of the People and that there is reasonable ground to believe such evidence may be procured at a later day the court may continue the cause for not more than sixty days. The continuance ordered by the court after the showing made by the State was squarely within the meaning of the above quoted language. The ruling of the court on the second motion was therefore correct.

An entirely different set of facts is involved in the third motion. In that motion defendant alleged that he was confined on the charge of...