People v. Wilson

• Decision Date: 18 March 1948
• Docket Number: No. 30257.,30257.
• Citation: 399 Ill. 437,78 N.E.2d 514
• Parties: PEOPLE v. WILSON.
• Court: Illinois Supreme Court

399 Ill. 437

78 N.E.2d 514

PEOPLE

v.WILSON.

No. 30257.

Supreme Court of Illinois.

March 18, 1948.

Error to Circuit Court, Madison County; Alfred D. Reiss, judge.

Henry L. Wilson was convicted of grand larceny, and he brings error.

Judgment affirmed.

Conners, Eckert & Limperis, of Chicago, for plaintiff in error.

George F. Barrett, Atty. Gen., and C. W. Burton, State's Atty., of Edwardsville (A. Austin Lewis, of Granite City, and Kenneth F. Kelly, of Alton, of counsel), for the people.

MURPHY, Chief Justice.

On June 16, 1943, plaintiff in error pleaded guilty in the circuit court of Madison County to an indictment charging grand larceny. He was sentenced to the penitentiary for the statutory indeterminate term for such offense of one to ten years. Ill.Rev.Stat.1947, chap. 38, par. 387. He has sued a writ of error out of this court to have the record of his conviction reviewed. The record presented is limited to the placita, indictment, order fixing bail, recital of facts showing arraignment, and the judgment. The grounds urged for reversal are, that (1) in a criminal prosecution the court has a duty to inform the accused of his right to assistance of counsel, and (2) the failure of the court to advise the accused of his right to assistance of counsel deprives him of his liberty without due process of law.

The record shows the indictment was returned May 28, 1943, that it charged plaintiff in error and his codefendant, Alberta Louise Wilson, with having stolen various items of merchandise of a total value of $23.80. On June 16, 1943, both defendants were before the court and each was furnished with a copy of the indictment and lists of witnesses and jurors. Following the recital of such preliminaries in the record, there appears the following: ‘Defendant Henry Wilson is duly arraigned, says he pleads guilty and defendant Alberta Louise Wilson, by leave of court withdraws plea of not guilty and pleads guilty of said charge. Court fully advises defendants as to their respective rights and consequences, yet defendants so advised, persist in entering pleas of guilty and same so recorded by court and entered on such pleas, court finds said defendants Henry L. Wilson and Alberta Louise Wilson guilty of the crime of larceny in manner and form as charged in the indictment and the age of defendant Henry L. Wison to be thirty-six years and the defendant Alberta Louise Wilson to be thirty-three years and the value of the property stolen by them to be $23.80.’ This review is limited to the rights and interest of Henry L. Wilson.

Throughout the history of this court the fundamental law has made provision for the right of every accused to have assistance of counsel. The provisions of section 9 of article VIII of the constitution of 1818, and of section 9 of article XIII of the constitution of 1848 were indentical. They were: ‘That in all criminal prosecutions, the accused hath a right to be heard by himself and counsel.’ Section 9 of article II of the constitution of 1870, Smith-Hurd Stats., is: ‘In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel.’ It will be noted that the provision of the present constitution differs slightly in language from the two preceding constitutions, but it is the same right that was intended to be protected in each instance. It assures to every accused the right to have the assistance of counsel to advise him as to the nature of the charge perferred, of the plea to enter, and if a plea of not guilty is entered to have counsel prepare and present his defense on the trial.

The first part of section 2 of division XIII of the Criminal Code (Ill. Rev. Stat. 1947, chap. 38, par. 730) was adopted in its present form in 1874 and has been in force continuously since that date. It provides: ‘Every person charged with crime shall be allowed counsel, and when he shall state upon oath that he is unable to procure counsel, the court shall assign him competent counsel, who shall conduct his defense. In all cases counsel shall have access to persons confined, and shall have the right to see and consult such persons in private.’ In 1929, the second paragraph of the section was added. Laws of 1929, p. 344. Since it deals exclusively with the appointment of counsel for indigent defendants indicted for a capital offense, its provisions need not be set forth in this case.

In the one hundred thirty years that have passed since the first constitutional provision was adopted, a large number of cases have been before this court involving questions as to whether the accused's right to counsel has been transgressed upon. It is impossible within the reasonable confines of an opinion to analyze and discuss any considerable number of those cases, but, to demonstrate the care and caution with which an accused's right to counsel has been safeguarded, reference will be made to a few.

White v. People, 90 Ill. 117, 32 Am. Rep. 12, decided in 1878, was a case where the trial court had restricted the time for oral argument to the jury. It was contended the limitation had deprived the defendant of having his case fully and fairly presented. It was said: ‘The plaintiffs in error had an undoubted right, under the very bill of rights itself, and by the law of the land, to defend by counsel, and to insist such counsel should have reasonable opportunity to discuss before the jury both the facts and the law of the case. This was a constitutional and substantial right of which no court could properly deprive them.’ Also, see Meredeth v. People, 84 Ill. 479.

In North v. People, 139 Ill. 81, 28 N.E. 966, 970, referring to the part of the Criminal Code above quoted (par. 730), it was said: ‘We are not to assume that this (statute) was intended to be a mere empty formality, and that the counsel thus appointed should be compelled to act without being allowed reasonable time within which to understand the case and prepare the defense.’ See, also, Feinberg v. People, 174 Ill. 609, 51 N.E. 798;People v. Bopp, 279 Ill. 184, 116 N.E. 679;People v. Brislane, 295 Ill. 241, 129 N.E. 185.People v. Blumenfeld, 330 Ill. 474, 161 N.E. 857;People v. Celmars, 332 Ill. 113, 163 N.E. 421.

In People v. Kurant, 331 Ill. 470, 163 N.E. 411, 415, it was said: ‘A privilege most important to a person accused of crime, connected with his trial, is to be defended by counsel. (Citation.) If an accused person is to have counsel he should be in a position to make a complete defense.’ In appointing counsel for an indigent accused, it is the duty of the court to appoint counsel that has sufficient ability and experience to fairly represent the defendant, present his defense and protect him from oppression. People v. Blevins, 251 Ill. 381, 96 N.E. 214, Ann.Cas. 1912C, 451; Compare People v. Laures, 289 Ill. 490, 124 N.E. 585;People v. Nitti, 312 Ill. 73, 143 N.E. 448. That an accused may be shown to be guilty does not justify the court's action in denying him an opportunity to present his defense through counsel. People v. Long, 346 Ill. 646, 178 N.E. 918.

Akin to the requirement that an accused shall have the right to counsel is that part of section 4 of division XIII of the Criminal Code (Ill. Rev. Stat. 1947 chap. 38, par. 732) which provides that ‘In cases where the party pleads ‘guilty,’ such plea shall not be entered until the court shall have fully explained to the accused the consequences of entering such plea; after which, if the party persists in pleading ‘guilty,’ such plea shall be received and recorded, and the court shall proceed to render judgment and execution thereon, as if he had been found guilty by a jury.' In People v. Kurant, 331 Ill. 470, 163 N.E. 411, it was held, that, where an accused had tendered a plea of guilty under a misapprehension as to the consequences of his plea, and immediately after he had obtained the advice of counsel asked leave to change his plea, under such circumstances the request should be granted.

In People v. Kawoleski, 310 Ill. 498, 142 N.E. 169, defendant pleaded guilty to a violation of the Illinois Prohibition Act. He signed a jury waiver and was sentenced to jail on his plea of guilty. About twenty days thereafter, he moved to vacate the judgment and for a new trial. By affidavit filed in support of the motion, he stated that he did not understand the English language ‘well,’ that he had no counsel to represent him and was ignorant of the proceedings. The motion was denied by the trial court and on writ of error was affirmed. The substance of the holding was that defendant had not met the burden of proving that by reason of certain particular circumstances, he had not had a fair trial.

In People v. Lavendowski, 326 Ill. 173, 157 N.E. 193, 194, defendant tendered a plea of guilty to violation of the liquor law. The plea was entered without the aid of counsel and, after counsel had been employed to represent the defendant, a motion was made for leave to withdraw the plea of guilty and in support thereof defendant showed that he did not understand the English language, that he did not know the effect of his plea of guilty, that he did not have counsel, and that the consequences of his plea had not been explained to him. The motion was overruled and defendant was sentenced to jail. On review in this court, it was claimed that the defendant had been deprived of his constitutional right to counsel. In discussing the right of an accused to counsel, and in referring to the constitutional provision and the statutory enactment, it was said that those provisions did ‘not place upon the court the duty to proffer the services of counsel, but, where there has been a motion for leave to withdraw a plea of guilty, the fact that the defendant did not have counsel and was not informed that he could have such assistance, if such is a fact, is a matter which, with all the facts surrounding the case, is to be considered in determining whether it was an abuse of...