People v. Touhy

• Decision Date: 19 May 1947
• Docket Number: No. 29984.,29984.
• Citation: 397 Ill. 19,72 N.E.2d 827
• Parties: PEOPLE v. TOUHY.
• Court: Illinois Supreme Court

397 Ill. 19

72 N.E.2d 827

PEOPLE

v.TOUHY.

No. 29984.

Supreme Court of Illinois.

March 19, 1947.

Rehearing Denied May 19, 1947.

Appeal from Criminal Court, Cook County; Harold G. Ward, Judge.

Petition by Roger Touhy against the People of the State of Illinois for writ of error coram nobis seeking a new trial after being convicted of kidnapping for ransom. From judgment dismissing petition, petitioner appeals.

Affirmed.

Charles P. Megan, of Chicago, for appellant.

George F. Barrett, Atty. Gen., and William J. Tuohy, of Chicago (Edward E. Wilson, John T. Gallagher, Melvin S. Rembe and Rudolph L. Janega, all of Chicago, of counsel), for appellee.

WILSON, Justice.

February 24, 1934, a jury in the criminal court of Cook county found Roger Touhy guilty of the crime of kidnapping John Factor for ransom and fixed his punishmentat ninety-nine years' imprisonment in the penitentiary. Judgment was rendered on the verdict. Touhy prosecuted a writ of error from this court to the criminal court. On June 14, 1935, the judgment was affirmed and, on October 2, 1935, a petition for rehearing was denied. People v. Touhy, 361 Ill. 332, 197 N.E. 849. Thereafter, on February 15, 1938, Touhy presented his petition for a writ of habeas corpus to this court. People ex rel. Touhy v. Ragen, No. 24616. The petition was denied on February 18, 1938. The United States Supreme Court, on March 28, 1938, denied his petition for a writ of certiorari to this court. Touhy v. Ragen, Warden, 303 U.S. 657, 58 S.Ct. 760, 82 L.Ed. 1116 On August 10, 1946, Roger Touhy filed in the criminal court of Cook county a petition for writ of error coram nobis seeking a new trial. The People interposed a plea in bar setting up the five years' limitation period and, also, a demurrer. The plea and the demurrer were both sustained, and Touhy's petition dismissed. This appeal followed.

We deem unnecessary a narration of all the detailed facts alleged in the petition. Our opinion in People v. Touhy, 361 Ill. 332, 197 N.E. 849, contains an exhaustive review of the evidence adduced upon the trial. John Factor identified Roger Touhy as one of the kidnappers. The latter's conviction rested, in large measure, upon the testimony of Factor, Isaac Costner and Walter Henrichsen. The principal ground urged by Touhy in his petition for a writ or error coram nobis is that the testimony of Factor, Costner and Henrichsen was false. In particular, the petition alleges that, in October, 1934, Factor told Thomas C. McConnell, a Chicago lawyer, he had not been able to see anyone during the holding for ransom on account of a bandage over his eyes but, nevertheless, swore to the identification of Touhy. This alleged statement is consistently referred to in the petition and in Touhy's briefs as a confession. Additional allegations are that Factor's statement to McConnell did not come to the knowledge of Touhy's counsel until October, 1945, and to the knowledge of Touhy himself still later. Touhy also alleges that Costner's testimony upon the trial was false. Henrichsen is now deceased, and statements are made in Touhy's brief that ‘his evidence was unimportant’ and ‘The false testimony of Henrichsen was not of great significance.’

The gist of the principal contentions made by Touhy's petition is that his conviction rests upon Factor's false identification of him as one of the perpetrators of the kidnapping and the supporting testimony of Costner, also charged to be false, and upon the asserted arbitrary action of the trial judge in refusing to allow a reasonable time for Touhy's counsel to prepare for the argument of his motion for a new trial. As stated in Touhy's brief, ‘This confession of perjury by the principal witness (Factor) is the central point of the case. The newly discovered evidence is ‘of such character as completely to undermine the entire case on which the prosecution was based’.'

An examination of the petition for habeas corpus filed in this court, more than eight years before instituting the present action, discloses that Touhy alleged Factor's testimony in the trial upon the indictment for kidnapping was false, and, also, that Costner committed perjury upon the trial. He averred that knowledge of the facts alleged first came to him immediately preceding February 14, 1938. The petition for habeas corpus was supported by eleven affidavits. The present petition for a writ of error coram nobis is not supported by a single affidavit.

As recounted, the People filed a plea in bar placing reliance upon section 72 of the Civil Practice Act and, also, a demurrer averring that the allegations of the petition, to the effect that Touhy's conviction resulted from the contrivances of the prosecuting witness, John Factor, and the false testimony of Factor and Costner are not matters or grounds for relief in the present action; that allegations on rulings with respect to the evidence, the time for considering the motion for a new trial and that new evidence has been discovered are not matters relievable by an action in the nature of a writ of error coram nobis and, further, that allegations as to violations of Touhy's rights in the criminal trial are not within the purview of the matter for which the writ lies.

Although petitioner captions his pleading a ‘Petition for Writ of Error Coram Nobis,’ we treat it as a motion in the nature of a writ of error coram nobis. Eighty years ago, in 1867, this court, in McKindley v. Buck, 43 Ill. 488, speaking through Mr. Justice Breese, observed: ‘This old writ (writ of error coram nobis) has never been in use in this State, and it has fallen into desuetude even in England. Its place is most effectually supplied by the more summary proceedings, by motion in the court where the error in fact occurred.’ Shortly after this decision was rendered, the General Assembly expressly abolished the common-law writ of error coram nobis. Laws of 1871-72, p. 348. Its abolition appeared as section 66 in an act entitled, ‘An Act in regard to practice in courts of record.’ The Practice Act of 1907, as did earlier statutes, declared ‘The writ of error coram nobis is hereby abolished.’ (Smith-Hurd Stat. 1933, chap. 110, par. 89), and section 72 of the Civil Practice Act, now in force (Ill.Rev.Stat.1945, chap. 110, par. 196), provides: ‘The writ of error coram nobis is hereby abolished, and all errors in fact, committed in the proceedings of any court of record, and which, by the common law, could have been corrected by said writ, may be corrected by the court in which the error was committed, upon motion in writing, made at any time within five years after the rendition of final judgment in the case, upon reasonable notice. When the person entitled to make such motion shall be an infant, non compos mentis or under duress, at the time of passing judgment, the time of such disability shall be excluded from the computation of said five years.’ The power of the legislature to abolish the common-law writ of error coram nobis is not open to question. ‘An Act to revise the law in relation to the common law,’ approved March 5, 1874, ordains that the common law of England, so far as applicable and of a general nature, and all statutes or acts of the British parliament made in aid of, and to supply defects of the common law, prior to the fourth year of James the First (with certain exceptions not material here), and which are of a general nature and not local to that kingdom, ‘shall be the rule of decision, and shall be considered as of full force until repealed by legislative authority.’ Ill.Rev.Stat.1945, chap. 28. The legislative authority to abolish the common-law writ of error coram nobis has been repeatedly exercised.

Touhy contends that the five years' limitation period in section 72 of the Civil Practice Act is inapplicable to criminal cases. This contention and the supporting argument are based upon the fallacious premise that proceedings upon motions in the nature of a writ of error coram nobis are criminal proceedings when the motions are sequels to judgments rendered in criminal cases. Touhy does not make the contention that section 72 of the Civil Practice Act is unconstitutional but urges that an interpretation applying the statute to petitions or motions in the nature of a writ of error coram nobis in criminal cases would render the section unconstitutional. The precise point advanced is that if section 72 applies to criminal proceedings, it would violate section 13 of article IV of our constitution, Smith-Hurd Stats., providing that no act shall embrace more than one subject and that it shall be expressed in the title.

The purpose of the writ of error coram nobis at common law, and of the motion substituted for it by section 72, is to bring before the court rendering the judgment matters of fact not appearing of record, which, if known at the time the judgment was rendered, would have prevented its rendition. Linehan v. Travelers Ins. Co., 370 Ill. 157, 18 N.E.2d 178;Chapman v. North American Life Ins. Co., 292 Ill. 179, 126 N.E. 732;Cramer v. Illinois Commercial Men's Ass'n, 260 Ill. 516, 103 N.E. 459. Illustrative of such matters are the disability of the parties to sue or defend, namely, death of one or more of the parties, death of a joint party, infancy, coverture and insanity, the failure of the clerk to file a plea or answer, and the omission to interpose, through fraud, duress or...