Before SPARKS, MAJOR, and KERNER, Circuit Judges.
In 1946, after thirty-nine years in the Illinois State penitentiary, petitioner filed a petition for writ of habeas corpus, alleging, inter alia, that his State remedies were exhausted, and that by failure of timely State prosecution he had been denied due process in violation of the Fourteenth Amendment. Upon a hearing in the District Court, petitioner was discharged. Respondent is appealing from the judgment.
From the record it appears that on the night of November 18 or the morning of November 19, 1906, a Chicago police officer, while on duty, was shot and killed. Petitioner was seized at the scene of the crime and was accused of the policeman's murder. November 23, 1906, he was held to the grand jury by a verdict of the coroner's jury. The grand jury, on December 29, 1906, indicted Hanson for murder. January 7, 1907, the accused was arraigned in open court and pleaded not guilty to the indictment. He was brought to trial on April 12, 1907, at which time his counsel moved that he be discharged for want of prosecution within the statutory period of four terms. The motion was argued and overruled on April 13. A motion for change of venue on the ground that the trial judge was prejudiced against petitioner was denied on April 16. Hanson went to trial on April 16, and on April 24 the jury returned a verdict of guilty. He was sentenced to life imprisonment. No appeal was taken, and there is evidence that petitioner instructed his counsel not to file an appeal. It further appears from the record that after conviction in the murder case, petitioner pleaded guilty to several further charges, namely, assault with intent to kill, grand larceny, and burglary. He was sentenced to the penitentiary on each of these additional charges.
The pertinent statute in force at the time of the criminal trial*fn1 provided that any person charged with an alleged crime and not admitted to bail and not tried at some term of the court having jurisdiction thereof commencing within four months of the date of commitment was to be discharged, unless (1) the delay should have been on the application of the prisoner, or (2) the court was satisfied that due exercise had been made on behalf of the prosecution to procure the evidence and there was reasonable grounds that such evidence could be procured.
Concededly, the right to a speedy trial is guaranteed by both the Constitution and the State constitution. U.S.Const. Amend. 6; Smith-Hurd Stats.Const. art. 2, § 9. Under federal case law the right to a speedy trial is relative and dependent upon surrounding circumstances. Beavers v. Haubert, 198 U.S. 77, 87, 25 S. Ct. 573, 49 L. Ed. 950. Further, if the petitioner's own action delays the trial, he is precluded from invoking this right. Daniels v. United States, 9 Cir., 17 F.2d 339. In Illinois this guaranty has been complemented by the discharge statute which defines what is a speedy trial. Petitioner argues that the statute*fn2 directing discharge for want of prosecution within a specified period is mandatory. People v. Stillwagon, 373 Ill. 211, 25 N.E.2d 795; People v. Stillman, 391 Ill. 227, 62 N.E.2d 698. If this is the law, it is clear from the language of the applicable statute and the cases cited that exceptions exist. One is that the accused by his own action may waive his right to trial within the statutory time. Another is that the trial may properly commence after the statutory period if the delay is due to the prosecution's reasonable efforts to secure evidence.
The function of the writ of habeas corpus is to inquire into jurisdictional defects amounting to want of legal authority for the detention of the person in whose ity for the detention of the person in whose behalf it is asked. The court examines only the power and authority of the court to act, not the correctness of its conclusions, Harlan v. McGourin, 218 U.S. 442, 448, 31 S. Ct. 44, 54 L. Ed. 1101, 21 Ann.Cas. 849, and the petition for the writ may not be used as a substitute for an appeal or a writ of error, nor can it be made to perform its functions. Matter of Gregory, 219 U.S. 210, 213, 31 S. Ct. 143, 55 L. Ed. 184; Bowen v. Johnston, 306 U.S. 19, 59 S. Ct. 442, 83 L. Ed. 455; Kaizo v. Henry, 211 U.S. 146, 148, 29 S. Ct. 41, 53 L. Ed. 125; People v. Williams, 330 Ill. 150, 154, 161 N.E. 312. In our case petitioner contends that respondent lacked legal authority to detain him because he had not been tried within the period of four terms after his commitment. He claims that the delay was not due to any action on his part, and that there is no showing that it was occasioned by the prosecution's diligent efforts to secure evidence. Indeed, there is hearsay testimony to the effect that the then state's attorney at the time the motion for discharge was filed confessed error privately to petitioner's counsel and offered a life sentence in return for a plea of guilty. The offer was refused. In the light of these facts, petitioner insists that the judgment of conviction in the State court was without jurisdiction and void, and that the federal question of the denial of his constitutional rights is squarely raised.
It is elementary that the function of habeas corpus is exhausted when it is ascertained that the court under whose order the petitioner is being held has jurisdiction to act. Klopp v. Overlade, 7 Cir., 162 F.2d 343. In this case it is not questioned but what the court had jurisdiction of petitioner's person and of the subject matter. The question before the Criminal Court of Cook County, Illinois, on April 12, 1907 was petitioner's motion that he be discharged for want of prosecution within the statutory period of four terms. At that time the court had jurisdiction of the subject matter and of the petitioner's person, and it possessed the power to pass upon the petitioner's motion. That court did pass upon the motion and rendered judgment against petitioner. Even if we assume that the judgment was erroneous, it was not void.
True, a court may lose its jurisdiction in the course of the proceedings through the violation of certain constitutional rights and its judgment may consequently be void. Such is the claim of petitioner, and in support thereof he cites People v. Szobor, 360 Ill. 233, 235, 195 N.E. 648.But as counsel is aware, the court's statement that a court loses jurisdiction after the lapse of the statutory period is expressly overruled by the subsequent case of People v. Utterback, 385 Ill. 239, 52 N.E.2d 775. In the latter case, the court held that a court having jurisdiction of the person and of the subject matter in a criminal case does not lose jurisdiction solely upon the expiration of the statutory term, and an accused desiring to be discharged under the statute must seek a ruling of the trial court on it as to his facts. If adverse, he may have such a ruling reviewed only by a writ of error. The court 385 Ill. at page 243, 52 N.E.2d at page 777 further added this definitive language that "a writ of habeas corpus could not be used, after a judgment of conviction, to perform the office of a writ of error."
In the Utterback case, supra, the accused by writ of error sought to review that portion of the record of the trial court pertaining to a motion that he be discharged because he had been confined in jail before trial for more than the statutory period. The trial court did not pass upon the motion, as the accused withdrew it before pleading guilty.The contention that the motion alleged facts creating a constitutional right which could not be waived was struck down.
Petitioner endeavors to distinguish this case by showing that he did not withdraw his motion, and, therefore, that he did not waive any of his constitutional rights. It is uncontradicted, however, that petitioner did not seek a review of his conviction or the denial of the motion to be discharged.
Both People v. Utterback, supra, and People v. Tait, 390 Ill. 272, 61 N.E.2d 166, clearly stand for the rule of law that an accused desiring to be discharged under the statute in question must seek his remedy through a writ of error to the State Supreme Court. People v. Tait, supra, exacts the additional task of the accused that he can only have such a contention reviewed if it has been preserved by a bill of exceptions or has been certified by the trial judge. While such procedure seems unduly burdensome to an accused, it is the law of Illinois. Moreover, the proposition remains that a writ of error is the only ordinary remedy available to an accused seeking his discharge under the statute.
Petitioner meets this by asserting that he has exhausted all the remedies available to him. In 1946 when he filed his petition for a writ of habeas corpus in the District Court, he had previously applied for a writ of habeas corpus to the Criminal Court of Cook County and to the United States Supreme Court. Both had been denied. He asserts that no other remedy is available to him, because the limitation period of more than twenty years after judgment for suing out a writ of error has elapsed. People v. Chapman, 392 Ill. 168, 64 N.E.2d 529. Moreover, the five year statutory time of the judgment for bringing a writ of error coram nobis has also elapsed. Ill.Rev.Stat. c. 110, § 196 (1947).Assuming arguendo, that the petitioner did pursue the only remedy open to him in 1946, we are unable to interpret his action at the time of his conviction as anything but a deliberate and affirmative waiver of his statutory rights. From the testimony of his counsel at the murder trial, who testified in behalf of and in the presence of the petitioner, it is clear that petitioner waived his rights under the statute, because he instructed counsel not to move for a new trial, not to file a bill of exceptions and not to file an appeal. This testimony was not denied by petitioner.
Marino v. Ragen, 68 S. Ct. 240, is cited as authority for the propriety here of the writ of habeas corpus. In that case, however, the State confessed error and conceded that the writ was the only proper remedy. The State makes no such concession here. For reasons best known to himself, the petitioner at the time of his conviction not only purposely ignored the rights of appeal as provided by the State, but instructed his counsel not to seek a review of his trial. We cannot say that ...