WRIT OF ERROR to the Criminal Court of Cook County; the Hon.
WENDELL E. GREEN, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 19, 1957.
Talbot Jennings was convicted of armed robbery in 1949, and was sentenced to the penitentiary for a term of not less than 10 nor more than 25 years. He filed a petition under the Post-Conviction Hearing Act to review that judgment. His petition was dismissed without a hearing and this court denied his motion for a writ of error to review that ruling. The Supreme Court of the United States granted certiorari, vacated the judgment of this court, and remanded for further proceedings. (Jennings v. Illinois, 341 U.S. 947.) Thereafter this court remanded the case to the criminal court of Cook County. People v. Jennings, 411 Ill. 21.
After the case had been remanded an order was entered setting aside the judgment of conviction and awarding a new trial. The new trial resulted in another verdict of guilty, and the defendant was sentenced to the penitentiary for a term of not less than 3 nor more than 15 years. Thereafter he filed a petition under the Post-Conviction Hearing Act to review the second judgment of conviction. After an extended hearing the petition was denied and we have allowed a writ of error to review that judgment. The transcript of the proceedings at the second trial is before us as a part of the record in the post-conviction case, and at defendant's request we have considered the case as here upon a writ of error to review the second judgment of conviction as well as upon writ of error to review the post-conviction judgment.
The first ground upon which it is here urged that the judgment of conviction should be set aside is that the trial court was without jurisdiction when it entered the second judgment of conviction. The jurisdiction of the criminal court of Cook County to try the defendant the second time is attacked upon technical grounds. It is first said that the judge who set aside the original judgment of conviction and ordered the new trial was without jurisdiction to do so. It is then argued that all proceedings in connection with the new trial, including the judgment of conviction, were therefore void. We need not consider whether the defendant can raise this latter issue, after participating fully in a lengthy trial without at any time suggesting the technical objection now urged, for we are of the opinion that the judge who ordered the new trial was authorized to do so.
The jurisdictional objection is that the judge of the superior court of Cook County who set aside the original judgment and ordered a new trial was not properly assigned to the criminal court of Cook County when he did so. Section 26 of article VI of the constitution establishes the criminal court of Cook County and provides that the terms of said court "shall be held by one or more of the judges of the circuit or superior court of Cook county, as nearly as may be in alternation, as may be determined by said judges, or provided by law. Said judges shall be ex officio judges of said court."
Hon. Alan E. Ashcraft presided at the first trial. He is a judge of the superior court and was then sitting by assignment as a judge of the criminal court. When the first post-conviction petition was filed in the criminal court, his assignment to the criminal court had ended and he was then hearing civil cases in the superior court. By an order of the executive committee of the superior court, Judge Ashcraft was assigned to sit as a judge of the criminal court to conduct the hearing on Talbot Jennings' post-conviction petition, No. 61, "until the final disposition of that case."
It is the defendant's position that this assignment terminated when Judge Ashcraft ordered the petition dismissed, and that in the absence of a new assignment he was without jurisdiction of the case upon remand. We do not agree.
Of course the order dismissing the petition was a "final disposition" in the sense that it was subject to review. (Cf. People v. Joyce, 1 Ill.2d 225.) That does not mean, however, that it was the "final disposition" of the case contemplated by the order of assignment. It was not so interpreted by Judge Ashcraft, by the executive committee of the superior court who made no further assignment of any judge to hear the case, or indeed by the defendant who moved for a hearing before Judge Ashcraft after the case was remanded.
What is here involved is not a question of jurisdiction in the ordinary sense. The assignment of judges of the circuit and superior courts to sit as judges of the criminal court relates largely to the efficient and convenient administration of the business of the three courts. Defendant relies on People ex rel. Chicago Bar Association v. Feinberg, 348 Ill. 549, Patchen v. Patchen, 364 Ill. 178, and People v. Sullivan, 371 Ill. 264. The Patchen case sustained the authority of a judge of the superior court to hear a civil case while he was assigned to the criminal court. In the Feinberg and Sullivan cases there had been no order of the executive committee assigning the judges there involved to sit as judges of the criminal court. These cases do not bear upon the present problem which does not involve the absence of any assignment whatever, but rather the interpretation of an assignment duly made by the executive committee.
Defendant also argues that he was not personally present when the order setting aside the original judgment of conviction was entered, and that the court therefore lacked jurisdiction. The contention is without merit. While a defendant in a criminal case has a constitutional right to be present at his trial, (People v. Smith, 6 Ill.2d 414,) that right does not carry over to post-conviction proceedings. The Post-Conviction Hearing Act provides, "In its discretion the court may order the petitioner brought before the court for the hearing." (Ill. Rev. Stat. 1955, chap. 38, par. 831.) In this case defendant was represented by counsel when the order was entered, and his own presence was unnecessary.
We hold that Judge Ashcraft did not lack jurisdiction to set aside the original judgment of conviction.
Defendant's second ground for reversal is that a coerced confession was admitted in evidence against him, and that some police officers who had a part in procuring that confession were not called as witnesses.
About noon on May 24, 1948, two armed men robbed a jewelry store in Oak Park, owned by Sidney L. Barr. They took money from Barr and jewelry from the showcases and the safe. The robbers used a peculiarly painted taxicab, and a description of the car was given to the police. The taxicab was finally located in Chicago, and on June 5, 1948, Edgar Morgan's connection with the taxicab was established and he was arrested. He signed a typed confession implicating Talbot Jennings, who was arrested in Chicago about 5:00 o'clock the next morning. Barr positively identified Jennings at the Oak Park police station on June 6, first about 8:00 A.M., and again that evening. Jennings signed Morgan's statement in the Oak Park station a few hours after he was arrested. The prosecution did not offer this confession in evidence upon the trial because it was executed originally by Morgan alone, and "had nothing to do with Jennings other ...