People v. Utterback

• Decision Date: 18 January 1944
• Docket Number: No. 27286.,27286.
• Citation: 52 N.E.2d 775,385 Ill. 239
• Parties: PEOPLE v. UTTERBACK.
• Court: Illinois Supreme Court

385 Ill. 239

52 N.E.2d 775

PEOPLE

v.UTTERBACK.

No. 27286.

Supreme Court of Illinois.

Jan. 18, 1944.

Error to Circuit Court, Pike County; A. Clay Williams, Judge.

Lawrence Utterback was convicted of assault with intent to murder, and he brings error.

Affirmed.Arthur W. Peth and C. C. Dreman, both of Belleville, for plaintiff in error.

George F. Barrett, Atty. Gen., and Edwin Johnston, State's Atty., of Pittsfield, for the People.

MURPHY, Justice.

In December, 1940, the circut court of Pike county committed plaintiff in error to the penitentiary for the indeterminate term fixed by statute for the crime of assault with intent to murder. He has sued a writ of error out of this court to review that part of the record which pertains to a motion he filed asking to be discharged for failure to give him a speedy trial within the requirements of section 18 of division XIII of the Criminal Code. Ill.Rev.Stat.1943, chap. 38, par. 748.

On a preliminary hearing before a justice of the peace, plaintiff in error was held to await the action of the grand jury and bail was fixed, which bail he was unable to give. Thereupon he was ordered held in the county jail. This occurred June 15, 1940, and he remained there until he was committed to the penitentiary on December 14, 1940. The indictment charging the offense was returned in the early part of November and on November 13, 1940, he was before the court with counsel of his own selection and made a motion to quash. Two days later a written motion was filed in which the facts in reference to his confinement in jail were set forth. In the absence of a showing justifying the delay, the facts set forth in the motion should have entitled him to an order of discharge. However, no action was taken on the motion and on December 14, plaintiff in error was granted leave to withdraw the motion. He then entered a plea of guilty and was committed to the penitentiary.

It is not contended that this court, in performing the functions of a reviewing court, has the power to consider matters which have not been passed upon by the trial court, but it is urged that inasmuch as the motion to be discharged for want of prosecution was a part of the court file and in a sense before the court, it thereupon became the duty of the court to pass upon it before taking other action and that, while the motion was pending and undisposed of, the court was without jurisdiction to adjudge other matters. From these premises it is argued that the judgment of conviction and commitment was entered without jurisdiction and therefore void. This theory of attack raises a question as to the character of the constitutional right every one accused of crime has to a speedy trial. If it is a right which, when once accrued, cannot be waived by an accused, then, under the circumstances of this case, plaintiff in error should be discharged, for under the facts of the case it must be assumed that if action had been taken on plaintiff in error's motion, it would have been favorable to his discharge. It is apparent that a ruling on the motion was withheld because of plaintiff in error's conduct in withdrawing it and the entering of a plea of guilty.

Section 9, article II, of the constitution, Smith-Hurd Stats., guarantees a speedy trial to every person charged with a criminal offense. By section 18 of division XIII of the Criminal Code, the General Assembly interpreted the requirement for a speedy trial to mean that a person held without bail on a criminal offense for more than 120 days shall be discharged unless the delay shall have occurred 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 are reasonable grounds to believe that a further extension of time of not more than sixty days in needed to procure such evidence.

When the indictment was returned into the circuit court charging plaintiff in error with the crime of assault with intent to murder, the circuit court had jurisdiction of both the subject matter and the person and there can be no question but that the court retained jurisdiction unless jurisdiction of the person was lost by the court's failure to act upon the motion and in permitting plaintiff in error to withdraw the motion before it was acted upon.

The constitutional requirement that one held in custody for a criminal offense be given a speedy trial has always been considered as a guarantee only against arbitrary and oppressive delays. People v. Maniatis, 297 Ill. 72, 130 N.E. 323;Weyrich v. People, 89 Ill. 90. The General Assembly gave it a similar interpretation and in the enactment of section 18, division XIII, of the Criminal Code made the constitutional right to a speedy...