WRIT OF ERROR to and APPEAL from the Criminal Court of Cook
County; the Hon. Daniel A. Covelli, Judge, presiding.
MR. JUSTICE HERSHEY DELIVERED THE OPINION OF THE COURT:
Two cases, No. 33093 and No. 33204, have been consolidated on appeal. In each case a review is sought of a collateral proceeding in the criminal court of Cook County seeking to set aside two judgments of conviction entered in said court against Edmund R. Morris, who is hereinafter referred to as defendant. The first, No. 33093, is a writ of error to said court, which denied the petition of the defendant for relief under the Post-Conviction Hearing Act. (Ill. Rev. Stat. 1953, chap. 38, pars. 826-832.) The second, No. 33204, is an appeal from said court which granted the defendant a new trial on his petition in the nature of a writ of error coram nobis.
The defendant was arrested and taken into the custody of the sheriff of Cook County on May 11, 1951. On September 13, 1951, he was jointly indicted with Donald Wright for two offenses, assault to commit robbery and assault to commit murder. He was arraigned on September 20, 1951, at which time the court appointed the public defender of Cook County to defend him. A plea of not guilty was made to each indictment.
On October 2, 1951, the defendant, appearing with his court-appointed counsel, waived a jury trial on the assault to commit robbery indictment, and a trial was had before the court. The court found him guilty and sentenced him to a term of not less than ten years nor more than fourteen years in the penitentiary. On the same day the defendant withdrew his plea of not guilty and pleaded guilty on the assault to commit murder indictment. Whereupon, the court sentenced him to a term of not less than ten years nor more than fourteen years in the penitentiary. It was adjudged that the two sentences were to run concurrently.
On February 21, 1952, the defendant filed a petition under the Post-Conviction Hearing Act, alleging that the judgments of conviction were null and void because entered in proceedings which infringed his rights under the Federal and the Illinois constitutions. He contended: (1) the representation of counsel accorded him was of such a low caliber as to amount to no representation and hence not satisfy the requirements of due process of law, and (2) he had a constitutional right to be discharged because he was not given a trial within four months from the time of his commitment. After a hearing, the court denied his petition. We allowed a writ of error to review this decision.
On October 27, 1953, the defendant filed a petition for a writ of error coram nobis, seeking to correct said judgments of conviction. He alleged that he had been held in continuous custody for more than four months before trial; that he was not at liberty on bail, nor did he cause a delay in the proceeding; that he was eligible for discharge for want of prosecution pursuant to section 18 of division XIII of the Criminal Code, (Ill. Rev. Stat. 1951, chap. 38, par. 748;) that his failure to make a motion for discharge left this highly important fact unknown to the court at the time of trial, and it was a fact of substantial judicial substance so as to have prevented the judgment of record; that his failure to demand a discharge at the time of trial was not due to his willful negligence, inasmuch as he was not familiar with the Illinois penal code and did not know that such an act as the four-month prosecution statute existed; that he was arrested May 11, 1951, and was not arraigned until September 27 or 29, 1951, at which time the four-month statute had run; that during this time he had not been represented by counsel, nor had he consulted with same, as he was unable to procure private counsel; that counsel appointed to represent him did not make a motion for discharge, as said counsel had not examined the record to determine the length of continuous confinement; that the attorney was appointed on the day of trial and had not consulted with or seen the petitioner at any time prior to that time; and that he could not ignorantly or unknowingly waive his right to discharge, and the appointment and representation by counsel requiring no more than a perfunctory appearance in court does not permit counsel to waive those rights by his apathy or through his negligence, because it is his duty to protect his client from unlawful conviction due to ignorance. He prayed the writ issue and that he be allowed to make his motion for discharge for want of prosecution.
The State's Attorney filed a motion to dismiss the petition, alleging that the alleged facts stated by the defendant were known to him at the time of the trial and through his own negligence and carelessness were not presented to the court at the time of the trial; that the defendant was not prevented from presenting the alleged facts to the court at the time of trial either by duress, fraud, excusable mistake or ignorance; that since the defendant was not convicted by fraud, duress, excusable mistake or ignorance, he lost no right guaranteed by the constitution; that the alleged facts are insufficient to give the court jurisdiction; and that the allegations of the petition do not set forth facts upon which the court can take jurisdiction since the matters alleged do not come within the purview of coram nobis.
The court overruled the motion, sustained the petition and granted the defendant a new trial on both indictments. The State perfected an appeal to this court, as the defendant was convicted of a felony. Schroers v. People, 399 Ill. 428, 433, 434.
We shall consider first the questions raised in the Post-Conviction Hearing Act proceeding.
First, was the failure to release the defendant under the four-month statute (Ill. Rev. Stat. 1953, chap. 38, par. 748,) a denial of his constitutionally guaranteed right to a speedy trial?
It is conceded by the State that more than four months elapsed between the defendant's arrest and commitment (May 11, 1951,) and the trial (October 2, 1951). Likewise conceded is the fact that he was not admitted to bail during said period, nor did he request a continuance. However, he did not at any time before conviction move to be discharged under the four-month statute.
Section 9 of the Bill of Rights of the Illinois constitution provides that in all criminal prosecutions the accused shall have the right to a speedy trial. This constitutional requirement has been considered a guarantee against arbitrary and oppressive delays. People v. Hartman, 408 Ill. 133; People v. Utterback, 385 Ill. 239; People v. Maniatis, 297 Ill. 72; Weyrich v. People, 89 Ill. 90.
No time limit is stated in the constitution, but by statute it is provided that any person committed for a criminal or a supposed criminal offense, and not admitted to bail, and not tried by a court having jurisdiction of the offense within four months of the date of commitment, shall be set at liberty by the court unless the delay shall be on the application of the prisoner.
The nature of the right accorded the accused by this statute has been considered by this court on numerous occasions. It has been held that the right is not absolute in the sense that mere lapse of time operates to oust the court of jurisdiction and thus make a release of the accused mandatory. (People v. Utterback, 385 Ill. 239.) Moreover, the right can be waived, and is waived where there is a failure to raise the question prior to conviction, or where the question is so raised but the accused withdraws his motion and pleads guilty to the offense charged. (People v. Lantz, 387 Ill. 72.) The right is also waived where the defendant seeks and obtains a continuance to a period beyond the four-month period within which he would otherwise be required to be tried, (People v. Hartman, 408 Ill. 133; People v. Stillman, 391 Ill. 227; People v. Meisenhelter, 381 Ill. 378; People v. Maniatis, ...