Error to the Municipal Court of Chicago; the Hon. HAROLD P.
O'CONNELL, Judge, presiding. Heard in the second division of this
court for the first district at the December term, 1949. Judgment
reversed and cause remanded with directions. Opinion filed March
14, 1950. Released for publication April 3, 1950.
MR. PRESIDING JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT.
Harold Markley sued out a writ of error to the Supreme Court of Illinois to review an order of the municipal court striking his petition in the nature of a writ of error coram nobis for want of jurisdiction. Pending the appeal in the Supreme Court, he made a motion for supersedeas and bail. In an order entered on November 22, 1949, it was adjudged that the cause had been wrongfully appealed to that court, and accordingly the motion for supersedeas and bail was denied, and the cause, together with the motions made, was transferred to the Appellate Court, without opinion. On December 22, 1949, we ordered that the writ of error be made a supersedeas, and fixed bail.
The case was originally tried in the municipal court upon an information charging plaintiff in error with violation of ch. 134, par. 15a, Ill. Rev. Stat. 1947 [Jones Ill. Stats. Ann. 130.19]. He was found guilty, sentenced to the House of Correction for one year and fined $300. The order entered at the conclusion of the hearing recites that he had waived trial by jury and submitted the cause to the court. He was not represented by counsel, and the record does not contain a transcript of the evidence adduced upon trial.
On April 12, 1949, plaintiff in error filed a motion to correct errors in fact in the municipal court before the trial judge who had heard the cause, alleging that his arrest by the police officers of the City of Chicago was illegal; that they connived and conspired with the police officers of the City of Gary, Indiana, to transport him to Chicago for the sole purpose of delivering him to the Chicago police, without the proper procedure for arrest and extradition, as required by the statutes of Illinois and Indiana; and that at the time of his arrest there was no complaint or warrant pending before any court in this jurisdiction; that plaintiff in error, upon his arrest on March 11, 1949, was not charged with any crime or violation of any Illinois statute, and that he was not afforded an opportunity to secure counsel for the protection of his rights; that it was not until three days thereafter, during which he was held in custody of the Chicago Police Department, that charges were preferred against him; and that after being apprised of the charge set forth in the information, he was given no opportunity to employ counsel or adequately prepare his defense. His motion further sets forth that it was improper to admit in evidence at the hearing certain articles of personal property belonging to him, which were unlawfully and illegally secured by the police officers without a search warrant, and it is alleged that the articles would have been excluded had he been afforded an opportunity to retain counsel, who would have moved for their exclusion; that the findings of the court were contrary to the evidence, in that the only testimony, other than purported admissions of plaintiff in error, which were subsequently denied by him, was that of several police officers; and he asked that the findings of the court be vacated and set aside, and that he be granted a new trial wherein he could be represented by counsel and properly present his defense.
The court granted him leave to file the petition on the day of its presentation, and the state's attorney was ordered to plead, answer or demur thereto instanter. A motion to dismiss the petition was thereupon filed, and the matter was continued to April 13 for hearing on the petition and motion. After numerous further postponements the petition, supported by affidavit, was heard July 7, 1949, plaintiff in error in the meantime having obtained counsel, who appeared and participated in the hearing.
The state's attorney assigned the following reasons in support of the motion to dismiss the petition: (1) that the motion or petition under section 72, chapter 110 (Civil Practice Act), Smith-Hurd Illinois Statutes 1935, in the nature of a writ of error coram nobis, was not filed as a new civil suit with a new docket number; (2) that it did not state facts, but mere conclusions; (3) that the alleged facts stated by the petitioner were known to him at the time of the trial, and through his own negligence and carelessness were not presented to the court; (4) that petitioner was not prevented, either by duress, fraud, excusable mistake or ignorance, from presenting to the court the facts alleged in his motion at the time of the trial; (5) that alleged newly discovered evidence was not ground for relief under sec. 72 of the Civil Practice Act; (6) that petitioner did not even aver that the testimony of the new witnesses was not known to him at the time of the trial, or that he had not had full opportunity to present such testimony, or that the testimony of the new witnesses would show that he was not guilty of the charge in the information filed; (7) that petitioner did not request counsel, and if he had done so the court would have appointed an attorney; and (8) that the facts alleged in petitioner's motion were not sufficient to give the court jurisdiction.
At the hearing on July 7, 1949, plaintiff in error presented an affidavit in support of his original motion to correct errors. The court allowed him to file the affidavit, but denied his motion. The affidavit reads as follows:
"HAROLD MARTLEY, also known as Harold Markley, being first duly sworn on oath, deposes and says that he is the defendant in the above entitled case, and that he is a tuck pointer by occupation, residing at 354 Van Buren Street, in the City of Gary, State of Indiana.
"1. Affiant states that on the 11th day of March, A.D. 1949, he was arrested by Gary police officers who questioned him on the subject of telephone coin boxes being broken into, though no charge of such or any other nature had at that time been placed against him; that the said police officers later ordered him to drive across the Indiana State Line into the State of Illinois, to a point on Indianapolis Boulevard, in Chicago, Illinois, where three Chicago Police officers curbed his automobile, and that the two Gary police officers stepped out of his automobile and into a Gary police car that had been following them, and their places were taken in his automobile by the Chicago police officers; that he was ordered to drive to the Central Police Station, at 11th and State Street, in the City of Chicago; and that all of said mentioned proceedings on the part of said officers were without proper procedure of arrest and extradition as provided for in the Statutes of the State of Indiana, and Illinois, and contrary to the law of the land.
"2. Affiant further states that on March 11, A.D. 1949, at 10:00 A.M., Gary police Officers without warrant came to his home, told him that he was under arrest and wanted at the police station: that he was taken to the police station and there questioned on the subject of breaking into telephone coin boxes; that without a search warrant said officers had searched his automobile and removed therefrom, a safety pin attached to a blanket in said car; that at the station a representative of the Illinois Bell Telephone Company was present who accused this affiant of being in Chicago, Illinois, on March 10, and participating in the opening of telephone coin boxes in the said City of Chicago, that thereupon two Gary Police officers entered his car one in the front seat, and one in the rear seat and ordered him to drive to Chicago, though at no time had he been legally charged with any crime or offense.
"3. Affiant further states that after they had crossed the Indiana State line into Illinois, there he was ordered to proceed along and upon Indianapolis Boulevard in the City of Chicago, and that he was followed by a Gary police car; that while progressing upon said Indianapolis Boulevard in the City of Chicago, a squad car in which were riding three Chicago police officers, they ordered him to stop his car and thereupon the Gary police officers left his car, and the Chicago police officers took him into custody and removed him to police headquarters, at 1121 South State, Chicago, where he was held incommunicado not being allowed to talk to anyone or to call up his friends for assistance.
"4. Affiant further states that he was grilled and questioned on the night of March 11, A.D. 1949, and accused of breaking into telephone coin boxes denying the charge at all times; that he was hung up by his wrists and forced into admissions, and finally in desperation and with a desire to escape further punishment agreed to try to open a telephone box at the La Salle Street station, in Chicago; that he tried to open three boxes and could not open any of them.
"5. Affiant further states that he demanded the right to get a lawyer and a bondsman, but he was told by the police that no lawyer could do him any good, and that if he did not `shut up' he would get some more of the treatment he got Friday night; that on Monday morning, March 14, A.D. 1949, he was brought before Judge HAROLD O'CONNELL, in Branch 27 of the Municipal Court of the City of Chicago, and there legally charged for the first time; that he had no lawyer, but that when the clerk asked him if he was `guilty' or `not guilty,' he answered `not guilty'; that the Clerk of the Court read the complaint of charge to him, but at no time was he furnished with a copy of said complaint or information as required by Law.
"6. Affiant further states that thereupon a police officer testified that he, this affiant, did open a telephone coin box in the La Salle Street Station, and offered a wrench and a safety pin as evidence; that the wrench had been received from the Gary police and had never been in the possession of this affiant; and that the safety pin was alleged to have been found in the glove compartment of affiant's automobile; that ...