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People v. Wexler

NOVEMBER 12, 1969.




Appeal from the Circuit Court of Cook County; the Hon. MAURICE W. LEE, Judge, presiding. Affirmed.


A complaint was filed in the First Municipal District of the Circuit Court of Cook County, charging defendant Sal Wexler with the offense of gambling in violation of Ill Rev Stats 1967, c 38, § 28-1(a) (5). Defense counsel moved to suppress the results of a search of defendant's person, but the motion was denied. Defendant waived a jury trial. Evidence was introduced by the State and defendant rested his case without offering any evidence. He was found guilty and fined $50.

In this court defendant alleges that the magistrate who heard the case did not have jurisdiction to try or sentence him; that the arrest and search was illegal and violated defendant's constitutional rights; and that he did not understandingly waive his right to a trial by jury.

From the record it appears that on July 11, 1968, Officer Rohan of the Vice Control Division of the Chicago Police Department, watched defendant from across the street at 159 North Wabash Avenue, Chicago. Within a 20-minute period five people approached the defendant and handed him slips of paper with money which the defendant placed in his pocket. Officer Rohan, who had previously made about thirty arrests for gambling, arrested the defendant on that charge, believing he was accepting wagers, and a search of defendant's person revealed seven slips of paper with $101 in currency. The slips represented wagers placed on various horses at several racetracks.

At the hearing on a pretrial motion to suppress the evidence of the slips and money, Officer Rohan testified he had arrested defendant because he suspected him of taking bets. The magistrate denied the motion and admitted the evidence. The privately retained counsel for defendant then waived a jury trial, stating, "We have already entered a plea of not guilty and waived the jury. I am ready for trial."

The Judicial Article now provides that the Circuit Court has unlimited original jurisdiction with one exception; section 8 of Article VI of the Illinois Constitution provides in part: "The General Assembly shall limit or define the matters to be assigned to magistrates." Ill Rev Stats 1965, c 37, § 624, limits those cases that should be assigned to magistrates in the criminal and quasi-criminal area, as follows:

(a) misdemeanor and quasi-criminal actions in which the maximum punishment authorized by law does not exceed a fine of $1,000 or imprisonment for one year in the county jail or municipal house of correction, or both;

. . .

(d) proceedings for the preliminary examination to determine probable cause, . . . .

Under that section it appears that the instant case should not have been assigned to a magistrate since the maximum penalty for the offense charged exceeds that which magistrates are entitled to hear. The question remains, however, whether the magistrate was without power to proceed, or whether the improper assignment was a matter of venue, and therefore an error that could be waived. We must determine whether section 624 is a jurisdictional limitation and whether a judgment entered in technical violation of the section is void.

Ill Rev Stats 1967, c 37, § 628, provides:

All objections to the propriety of an assignment to a magistrate are waived unless made before the trial or hearing begins. No order or judgment is void or subject to collateral attack merely because rendered pursuant to improper assignment to a magistrate.

It is undisputed that no objection was made to the assignment before the trial began, and the State has cited several civil cases which support the proposition that a magistrate, as a full judicial officer, has the power to hear cases which are improperly assigned to him, and that the assignment is a matter of venue and not authority. Coleman v. Scott, 76 Ill. App.2d 417, 421, 222 N.E.2d 5, affd 38 Ill.2d 387, 231 N.E.2d 408; People for Use of Cullerton v. Crawford, 80 Ill. App.2d 237, 243, 225 N.E.2d 80.

The defendant argues that the waiver rule was not intended to apply to criminal matters, and he cites People v. Chatman, 38 Ill.2d 265, 230 N.E.2d 879, in support of this contention. In that case the defendant, who was indicted for the crime of gambling, as in the instant case, was arrested pursuant to a warrant, and after a hearing before a magistrate was held over to the Grand Jury which indicted her. At the trial she argued that she had already been in jeopardy before a magistrate who had authority to convict her, and therefore she could not be put to trial again without violation of her constitutional rights. The Illinois Supreme Court pointed out two things; that the magistrate had no "authority to dispose of her cause" since the offense ...

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