Writ of error to the Criminal Court of Cook County; the Hon.
CHARLES S. DOUGHERTY, Judge, presiding. Affirmed.
MR. PRESIDING JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
The defendant, Ronald Valentine, was indicted for rape, tried without a jury, found guilty and sentenced to life imprisonment.
The prosecutrix, an 11-year-old girl, was grabbed from behind by a group of five youths as she was walking alone a half block from her home about 6:30 p.m. on February 4, 1958. One of the boys was the defendant Ronald Valentine. They dragged her into an alley and down some steps onto a concrete areaway at the entrance to a basement. Her clothes were ripped off and James Clay, the oldest and the largest of the youths, attempted to rape her. He had difficulty entering her and he brutally tore her vulva and vagina with his fingers to enlarge them. Clay then raped her while Valentine, who was the next oldest, held her mouth and acted as a lookout. He also slapped her face when she screamed. After Clay finished another boy replaced him. The prosecutrix testified that this was Valentine but he denied it; another member of the gang, in a statement made to the police, admitted he was the second boy. Clay had started a second attack when one of the boys shouted that somebody was coming and they all ran down the alley. The little girl put on her shoes and coat and, carrying her blood-stained garments, returned home to her mother. She was taken to a hospital that evening. The lacerations in her vagina and perineum required surgery and she was in the hospital six days.
The defendant prosecutes this writ of error to reverse his conviction and contends (1) that his conviction was unconstitutional because he was convicted and sentenced not only for rape but for a crime for which he was not indicted: accessory after the fact to rape; (2) that if guilty at all he was guilty only as an accessory before the fact, and the failure of the indictment to charge him as such violated his constitutional right to be informed of the nature and cause of the accusation against him, and (3) that the evidence was insufficient to sustain his conviction either as a principal or as an accessory before the fact. He also contends that his punishment is excessive and that if his conviction is not reversed his sentence should be reduced.
The defendant's application for a writ or error was directed to the Supreme Court. Briefs were filed and oral argument was heard in that court and the constitutional questions raised in points (1) and (2) were fully presented. The court then transferred the cause here. The transfer order stated that the court had examined the briefs, the argument and the record and found that it had no jurisdiction of the case on direct appeal.
The constitutional arguments have been repeated here and an issue has arisen between the parties as to this court's power to adjudicate constitutional questions. The defendant takes the position that since January 1, 1964, the effective date of the new Judicial Article, the Appellate Court has complete authority to determine constitutional questions. He points to section 1 of article VI of our State constitution which states: "The judicial power is vested in a Supreme Court, an Appellate Court and Circuit Courts" and maintains that under this provision all three courts have jurisdiction to hear and determine all matters cognizable in Illinois jurisprudence and that there is no limitation on the power given the Appellate Court. The argument proceeds that although the constitutional questions raised in this case were fully presented to the Supreme Court in the briefs and by oral argument, the court did not rule on the merits of the questions, and that if this court does not do so it would be an effective denial of appellate review and a denial of due process.
The position of the State is that the order of the Supreme Court, entered from the bench after the court had reviewed the briefs and heard oral argument, indicates plainly that there is no constitutional, or substantial constitutional question present in the instant case. The State further argues that under the present posture of the law the Appellate Court does not have appellate jurisdiction of constitutional questions in any case.
This court has only such jurisdiction as is conferred upon it by law and it is provided that the Appellate Court shall have jurisdiction of all cases other than those appealable directly to the Supreme Court. Constitution of Illinois, art VI, sec 7. A direct appeal to the Supreme Court shall be as a matter of right only, among others, in cases involving a question arising under the Constitution of the United States or of this state. Constitution of Illinois, art VI, sec 5(b). It is provided that the taking of an appeal either to the Supreme or the Appellate Court shall not be deemed a waiver of the right to present any issue in the appropriate court and that a matter decided by either court shall not be subject to collateral attack on the ground that it should have been decided by the other. Supreme Court rule 28-1D. Further, an appeal taken to either the Supreme or Appellate Court, if wrongly appealed, may be transferred to the proper court. Supreme Court rule 47; Ill. Rev Stats, 1963, c 110, sec 86.
The jurisdictional dispute between the parties has been engendered by the transfer to this court of cases which heretofore have been retained by the Supreme Court, cases in which constitutional questions are basic to the appeal. Zoning cases, where the fundamental issues are always whether there has been a violation of due process and whether a property owner is being unlawfully deprived of his constitutional right to use his property as he sees fit, and criminal cases, where the only issue is the constitutional right of a citizen to be immune from an unreasonable search of his person and seizure of his property, are being transferred to this court. First Nat. Bank & Trust Co. v. City of Evanston, 30 Ill.2d 479, 197 N.E.2d 705; Colvin v. Village of Skokie, 54 Ill. App.2d 22, 203 N.E.2d 457; Maywood Proviso State Bank v. Village of Berkeley, 55 Ill. App.2d 84, 204 N.E.2d 144; People v. DeFilippis, 54 Ill. App.2d 137, 203 N.E.2d 627; People v. Tadlock, 59 Ill. App.2d 481, 208 N.E.2d 100; People v. Lafin, 59 Ill. App.2d 489, 208 N.E.2d 105. Previously in cases of this kind, the Supreme Court has held that the constitutional issues warranted direct appeal and required the retention of jurisdiction. LaSalle Nat. Bank of Chicago v. County of Cook, 12 Ill.2d 40, 145 N.E.2d 65; People v. Watkins, 19 Ill.2d 11, 166 N.E.2d 433; People v. Williams, 27 Ill.2d 542, 190 N.E.2d 303.
One result of these transfers is that not only zoning cases and criminal cases involving the issue of search and seizure, but cases involving other constitutional issues such as coerced confessions, the denial of due process, obscene literature and the right of free speech are now being appealed directly to the Appellate Court. By selecting this court as the appropriate constitutional forum the appellants are bypassing section 5(b) of article VI of our State constitution, and Supreme Court rule 28-1A which states that "Appeals from the final judgments of circuit courts shall be taken directly to the Supreme Court: . . . (b) in cases involving a question arising under the constitution of the United States or of this State. . . ." The explanation given by appellants for these appeals is that they are perplexed by the Supreme Court's findings that it has no jurisdiction on direct appeal of cases which rule 28-1A says must be appealed to that court, and that they are puzzled by the abrupt transmutation of substantial constitutional issues into unsubstantial ones.
[2-5] Although the Supreme Court found in the present case that it did not have jurisdiction on direct appeal, it cannot be assumed that the court denied the constitutional right of direct appeal in a case where the right was appropriately invoked. Furthermore, it cannot be assumed that by transferring the present case here the court denied the defendant a forum in which to have heard his claim that his constitutional rights have been infringed. On the other hand, it cannot be assumed because the Supreme Court has transferred cases involving certain constitutional questions to this court that it is also conferring upon this court the power to decide all constitutional questions. Rather, the present policy of the Supreme Court is an extension into new fields of established principles, principles firmly imbedded in our law through a long line of cases. The Supreme Court has repeatedly held that it will not consider or determine constitutional questions which are not essential to a decision of the case. Rittenhouse & Embree Co. v. F.E. Brown & Co., 254 Ill. 549, 98 NE 971; People v. Adams, 351 Ill. 79, 183 N.E. 810; People v. Jarecki, 372 Ill. 208, 23 N.E.2d 60; Durkin v. Hey, 376 Ill. 292, 33 N.E.2d 463; People v. Metcoff, 392 Ill. 418, 64 N.E.2d 867; that it will not entertain an appeal on the ground that a constitutional question is involved unless it appears from the record that a fairly debatable constitutional question was urged in the trial court, was decided by that court, was preserved in the record and is assigned as error, People v. Williams, 3 Ill.2d 79, 119 N.E.2d 731; Liberty Nat. Bank of Chicago v. Metrick, 410 Ill. 429, 102 N.E.2d 308; People v. Rohde, 403 Ill. 41, 85 N.E.2d 24, cert denied 70 S Ct 43, 338 U.S. 833, 94 L Ed 508, rehearing denied 70 S Ct 338, 338 U.S. 940, 94 L Ed 580; and, importantly, that it will not entertain an appeal or writ of error for the purpose of passing on constitutional questions long settled, White v. Youngblood, 367 Ill. 632, 12 N.E.2d 650; People v. Blenz, 317 Ill. 639, 148 N.E. 249. It does not follow that the constitutional issues are genuine or substantial because an attorney on appeal may base his case on a constitutional framework and clothe it with constitutional raiment. People v. Turner, 31 Ill.2d 197, 201 N.E.2d 415; People v. Arbuckle, 31 Ill.2d 163, 201 N.E.2d 102; People v. Estep, 409 Ill. 125, 97 N.E.2d 823, cert denied, 345 U.S. 970, rehearing denied 346 U.S. 842; Mandrake v. Schlaeger, 393 Ill. 610, 66 N.E.2d 858; City of Watseka v. Blatt, 381 Ill. 276, 46 N.E.2d 374.
When the Supreme Court, which has sole jurisdiction of questions arising under the Federal and State constitutions and which has by rule provided that appeals involving such questions shall be taken directly to that court, declares that it has no jurisdiction of a particular case, we must conclude that the court determined either (a) that there are no constitutional questions in the case because they were not raised, passed upon or preserved in the trial court, or, (b) that the questions are spurious or (c) that they are not material to the ultimate disposition of the appeal, or (d) that they are neither fairly debatable nor substantial. By the latter determination we understand that in the court's opinion the questions, insofar as they and the constitutional provisions invoked relate to the facts of the particular case, have been resolved so definitely that the court believes it is needless to do so again. Sometimes, however, there may be room for a difference of opinion as to what are well-settled questions. Witness, for example, the non-routine search and seizure problem in the transferred case of People v. DeFilippis, 54 Ill. App.2d 137, 203 N.E.2d 627.
We have no desire to enlarge our jurisdiction. However, because of the transferred cases and because of the resulting direct appeals to our court on like questions (which would be futile to transfer to the Supreme Court when in all probability they would be returned to us), we are, perforce, either to a degree or wholly, compelled to pass upon constitutional questions. This necessitates a modification of a prior rule, which was that if a case in which constitutional questions were raised was transferred to this court, it was presumed that the Supreme Court had determined that the constitutional questions were not genuine or that the questions were not material to the disposition of the appeal. City of Chicago v. Berg, 48 Ill. App.2d 251, 199 N.E.2d 49; City of Chicago v. Campbell, 27 Ill. App.2d 456, 170 N.E.2d 19; Schyman v. Department of Registration & Education, 9 Ill. App.2d 504, 133 N.E.2d 551, cert denied, 352 U.S. 1001. There now must be an extension of this rule because of the possible alternative presumption that the constitutional questions are deemed well settled by the prior decisions of the court.
We agree with the defendant that we must now review the entire transferred case including the constitutional issues. We also agree that the Supreme Court's finding in this case (that it had no jurisdiction on direct appeal) did not mean that there were no constitutional issues in the case nor that all of them were not pertinent to the appeal. However, we disagree with the defendant that there is no limitation on the power of this court to hear and determine constitutional questions; and we disagree with the State that under the present posture of the law this court does not have appellate jurisdiction over any constitutional question, no matter how such question is raised or brought to our attention. ...