APPEAL from the Circuit Court of Will County; the Hon. MICHAEL
A. ORENIC, Judge, presiding.
This cause comes before the Court this time upon motion of Bruce Stratton, District Defender for the Third Judicial District of the Illinois Defender Project, who was appointed to represent the appellant Michael Miller in the above entitled cause. The District Defender in his motion requests permission to withdraw as counsel for appellant and in support thereof states that after careful examination of the record in the case at bar, said counsel has concluded that an appeal would be wholly frivolous and could not be successful in such cause.
We have consequently examined the record in the cause and find that defendant-appellant Michael Miller filed his pro se Petition for Writ of Habeas Corpus on April 21, 1971. The Petition was dismissed on May 12, 1971, for failure to state any factual allegations upon which relief could be granted.
Defendant is in custody pursuant to process of court (specifically being the conviction of murder in Cook County in Case No. 70-641 in November, 1970). He filed his Petition for Writ of Habeas Corpus in the Circuit Court of Will County, since he is presently incarcerated in a penal institution in such county.
• 1-3 Defendant appellant alleges in his petition only that his alleged "unlawful" custody is based upon failure of the Indictment to allege that the victim, one "James E. O'Conner" was an "individual" as required by Section 9-1(a) of Chapter 38, 1969 Illinois Revised Statutes. Under the terms of the Habeas Corpus Act (Section 5) it is provided that unless it appears from the petition itself or from documents thereto annexed, that the party can neither be discharged, admitted to bail, or otherwise relieved, the court or judge shall forthwith award a Writ of Habeas Corpus. The purpose of Habeas Corpus is to secure the release of a prisoner detained by an order of court which is absolutely void by reason of lack of jurisdiction over the person of the defendant, or the subject matter, or where something has occurred since the incarceration of the prisoner which would entitle that person to his release. (People ex rel Lewis v. Frye, 42 Ill.2d 311.) It has been clearly established that Habeas Corpus does not lie to raise errors of a non-jurisdictional nature. (People ex rel Totten v. Frye, 39 Ill.2d 549.) As indicated in People ex rel Kalec v. Pate, 38 Ill.2d 350, dismissal of a pro se petition for Habeas Corpus was proper where the petition failed to suggest anything which would affect the trial court's jurisdiction over the appellant or any suggestion of subsequent events entitling defendant-appellant to release.
We have noted that in the Habeas Corpus Act (Ill. Rev. Stat. 1969, ch. 65, par. 22), where reasons are specified for which a prisoner may be discharged when in custody on process of court, the petition filed by defendant must set forth sufficient allegations of fact to show that his case comes within the purview of said Section 22. We have also noted in Kirkham v. People, 170 Ill. 9, that where an indictment for murder gives the name of the person killed, it imports that the deceased was a human being and no such allegation is necessary. We have also noted the Committee Comments following Section 9-1 of Chapter 38 (Ill. Rev. Stat. 1969), ch. 38, par. 9-1, Committee Comments), the statement there is to the effect that "Individual" is used to designate the victim, to distinguish him from the "person" who is the offender. It is stated to have the same meaning as "Human Being" used in the present statute, but seems easier to use.
• 4, 5 Since an indictment failing to allege that the deceased was an "individual" or "human being" is not defective because the allegation was unnecessary, the failure to so allege certainly does not render it void and, therefore, does not present an issue which is available for implementation of the Habeas Corpus Act.
We, therefore, find that the dismissal of defendant-appellant's petition by the Will County Circuit Court was proper in view of the fact that the petition did not allege any basis upon which he could be discharged even if a Writ were to issue.
We have heretofore entered an order allowing the motion of counsel in the above case to withdraw.
From our complete examination of the record, therefore, we find that defendant-appellant was not entitled to the relief prayed pursuant to his Petition for Writ of Habeas Corpus and that an appeal from the order dismissing it would in fact be wholly frivolous within the meaning of Anders v. California, 386 U.S. 738. The order of the Circuit Court of Will County will, therefore, be affirmed.