People v. Touhy, No. 29984.

CourtSupreme Court of Illinois
Writing for the CourtWILSON
Citation397 Ill. 19,72 N.E.2d 827
Docket NumberNo. 29984.
Decision Date19 May 1947
PartiesPEOPLE v. TOUHY.

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.


[72 N.E.2d 828]

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 punishment

[72 N.E.2d 829]

at 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

[72 N.E.2d 830]

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...

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49 practice notes
  • Price v. Philip Morris, Inc., No. 117687.
    • United States
    • Supreme Court of Illinois
    • November 4, 2015
    ...117783, ¶ 32, 392 Ill.Dec. 523, 32 N.E.3d 1099 (citing Ellman v. De Ruiter, 412 Ill. 285, 290, 106 N.E.2d 350 (1952), and People v. Touhy, 397 Ill. 19, 24, 72 N.E.2d 827 (1947) ). See also, e.g., Mitchell v. King, 187 Ill. 452, 457, 55 N.E. 637 (1899) ; Ill.Ann.Stat., ch. 110, ¶ 2–1401, His......
  • People v. Jayne, No. 59168
    • United States
    • United States Appellate Court of Illinois
    • September 2, 1977
    ...showing the perjury does not allege facts but merely the conclusions of the pleader based on hearsay matters. (People v. Touhy (1947), 397 Ill. 19, 72 N.E.2d 827.) The same is true where the petition is based on allegations of illegal wiretapping. In order to be legally sufficient a request......
  • People v. Stewart, No. 77-13
    • United States
    • United States Appellate Court of Illinois
    • October 17, 1978
    ...would have prevented its rendition. (People v. Hinton (1972), 52 Ill.2d 239, 243, 287 N.E.2d 657; see also People v. Touhy (1947), 397 Ill. 19, 24, 72 N.E.2d 827.) It must be a fact which influenced the court in its judgment but concerning which the court was in error. (Leighton, Post-Convi......
  • United States v. Walsh, No. 9635.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 20, 1949
    ...of trial, coram nobis does not lie. Jerome v. 5019-21 Quincy Street Building Corporation, 385 Ill. 524, 53 N.E.2d 444. In People v. Touhy, 397 Ill. 19, 72 N.E.2d 827, 830, the court said: "The purpose of the writ of error coram nobis at common law, and of the motion substituted for it ......
  • Request a trial to view additional results
49 cases
  • Price v. Philip Morris, Inc., No. 117687.
    • United States
    • Supreme Court of Illinois
    • November 4, 2015
    ...117783, ¶ 32, 392 Ill.Dec. 523, 32 N.E.3d 1099 (citing Ellman v. De Ruiter, 412 Ill. 285, 290, 106 N.E.2d 350 (1952), and People v. Touhy, 397 Ill. 19, 24, 72 N.E.2d 827 (1947) ). See also, e.g., Mitchell v. King, 187 Ill. 452, 457, 55 N.E. 637 (1899) ; Ill.Ann.Stat., ch. 110, ¶ 2–1401, His......
  • People v. Jayne, No. 59168
    • United States
    • United States Appellate Court of Illinois
    • September 2, 1977
    ...showing the perjury does not allege facts but merely the conclusions of the pleader based on hearsay matters. (People v. Touhy (1947), 397 Ill. 19, 72 N.E.2d 827.) The same is true where the petition is based on allegations of illegal wiretapping. In order to be legally sufficient a request......
  • People v. Stewart, No. 77-13
    • United States
    • United States Appellate Court of Illinois
    • October 17, 1978
    ...would have prevented its rendition. (People v. Hinton (1972), 52 Ill.2d 239, 243, 287 N.E.2d 657; see also People v. Touhy (1947), 397 Ill. 19, 24, 72 N.E.2d 827.) It must be a fact which influenced the court in its judgment but concerning which the court was in error. (Leighton, Post-Convi......
  • United States v. Walsh, No. 9635.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 20, 1949
    ...of trial, coram nobis does not lie. Jerome v. 5019-21 Quincy Street Building Corporation, 385 Ill. 524, 53 N.E.2d 444. In People v. Touhy, 397 Ill. 19, 72 N.E.2d 827, 830, the court said: "The purpose of the writ of error coram nobis at common law, and of the motion substituted for it by se......
  • Request a trial to view additional results

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