People v. Watson

• Decision Date: 28 October 1946
• Docket Number: No. 29392.,29392.
• Citation: 394 Ill. 177,68 N.E.2d 265
• Parties: PEOPLE v. WATSON.
• Court: Illinois Supreme Court

394 Ill. 177

68 N.E.2d 265

PEOPLE

v.WATSON.

No. 29392.

Supreme Court of Illinois.

May 21, 1946.

Writ of Certiorari Denied Oct. 28, 1946.

See 67 S.Ct. 130.

Error to Circuit Court, St. Clair County; Maurice V. Joyce, judge.

Elvis T. Watson was convicted of burglary on his plea of guilty, and he brings error.

Affirmed.

Elvis T. Watson, pro se.

George F. Barrett, Atty. Gen., and Louis P. Zerweck, State's Atty., of Belleville (Edward Wolfe, of Springfield, of counsel), for the People.

WILSON, Justice.

January 10, 1934, an indictment was returned in the circuit court of St. Clair county against the defendant, Elvis T. Watson, charging him with burglary and larceny. January 12, upon arraignment, the State's Attorney entered a nolle prosequias to the burglary charge and defendant pleaded guilty to larceny. He was thereupon sentenced to imprisonment in the penitentiary for a term of from one to ten years. January 18, 1934, the defendant again appeared before the court and, by agreement of all parties, the orders entered January 12, 1934, were set aside and held for naught. On this same day, January 18, 1934, upon motion of the State's Attorney, the charge of larceny was nollied and defendant pleaded guilty to the charge of burglary. After admonishing him as to the consequences of his plea, the court found defendant guilty of burglary, and sentenced him to imprisonment in the penitentiary for an indeterminate term of from one year to life. Defendant, appearing pro se, prosecutes this writ of error to review the judgment of conviction of burglary. No bill of exceptions is contained in the record.

Charging that his constitutional rights were violated and, in particular, that he was denied due process of law, defendant contends that the purglary charge having been nolle prossed upon the first hearing, and the larceny charge having been nollied upon the second hearing, there remained no charge upon which he could be sentenced. He argues, further, that after entry of the nolle prosequi the court was without power to reinstate the charge of burglary and that, consequently, aside and defendant tried on the old information mittimus. The principal controversy thus presented is whether the trial court had jurisdiction to enter the orders of January 18, 1934, setting aside the previous orders and reinstating the burglary charge. The contention and argument of defendant are based upon a misconception of the effect of a nolle prosequi. ‘A nolle prosequi is not a final disposition of the case, and will not bar another prosecution for the same offense. It is not an acquittal, but it is like a nonsuit or discontinuance in a civil suit, and leaves the matter in the same condition in which it was before the commencement of the prosecution.’ 10 Encyc. of Pleading and Practice, p. 558. Again, it has been said that the ordinary effect of a nolle prosequi is to terminate the charge to which it is entered and to permit the defendant to go wherever he pleases, without entering into a recognizance to appear at any other time. If it is entered before jeopardy has attached, it does not operate as an acquittal, so as to prevent a subsequent prosecution for the same offense. 14 Am.Jur., Criminal Law, sec. 295. This court has held a plea of former jeopardy cannot be based upon the fact that a trial of the defendant had been previously begun under another indictment which was nolle prossed by the State's Attorney after four jurors were selected and sworn. The trial and jeopardy begin when the accused has been arraigned and the jury impaneled and sworn. O'Donnell v. People, 224 Ill. 218, 79 N.E. 639,8 Ann.Cas. 123. In the present case, the nolle prosequi as to the burglary charge was entered before jeopardy attached and, hence, did not operate as an acquittal. See People v. Glenn, 294 Ill. 333, 128 N.E. 532;People v. McGinnis, 234 Ill. 68, 84 N.E. 687,123 Am.St.Rep. 73.

The orders of January 12 and 18, 1934, were entered during the January, 1934, term, which, according to statute (Smith's Stat.1933, chap. 37, sec. 7, par. 72.7), commenced on the second Monday of January (January 8, 1934), and extended until the first day of the succeeding term, in April. (Smith's Stat.1933, chap. 37, sec. 24, par. 72.24) A court retains jurisdiction over a judgment during the term at which it is rendered and may for proper cause vacate the judgment during the term, but in a criminal case the judgment can be vacated or changed in material matters only while it remains unexecuted and not after the prisoner has begun serving his sentence. People v. Hamel, 392 Ill. 415, 64 N.E.2d 865;People ex rel. Ewald v. Montgomery, 377 Ill. 241, 36 N.E.2d 343;People ex rel. Fensky v. Leinecke, 290 Ill. 560, 125 N.E. 513;People ex rel. Huber v. Whitman, 277 Ill. 408, 115 N.E. 531;People ex rel. Lucey v. Turney, 273 Ill. 546, 113 N.E. 105. Here, it is conceded by defendant that, on January 18, 1934, he was still in the county jail, awaiting delivery to the penitentiary. Clearly, therefore, the orders havingbeen entered during term time, the court was still vested with the power and jurisdiction requisite to their entry.

Although the precise question with respect to the power of the trial court to vacate a nolle prosequi does not appear to have been presented to this court for decision, courts of other jurisdictions have sustained it as a proper exercise of judicial power. In State v. Lonon, 331 Mo. 591, 56 S.W.2d 378, 380, the court observed: ‘Courts of general jurisdiction have inherent authority, during the term, to vacate any judgment or order that may have been made at that term. This was the rule at common law and prevails in most jurisdictions. (Citations.) Considering then that a court has the inherent power to set aside judgments and orders made during the term, can any sound argument be advanced why a court has not the power to set aside a dismissal of an indictment or information and reinstate the case...