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People Ex Rel. Byrd v. Twomey

ILLINOIS APPELLATE COURT — THIRD DISTRICT


JANUARY 5, 1972.

THE PEOPLE EX REL. MELVIN L. BYRD, PETITIONER-APPELLANT,

v.

JOHN J. TWOMEY, WARDEN, ILLINOIS STATE PENITENTIARY, RESPONDENT-APPELLEE.

APPEAL from the Circuit Court of Will County; the Hon. MICHAEL A. ORENIC, Judge, presiding.

PER CURIAM:

This cause is before us on motion to withdraw filed by Bruce Stratton, District Defender of Illinois Defender Project, who was appointed as counsel for Melvin L. Byrd in the above cause. It appears from such motion that petitioner filed a pro se petition for Writ of Habeas Corpus which was dismissed for failure to allege facts entitling defendant to relief by the Circuit Court of Will County. Counsel on appeal asserts that after careful examination of the record in the case counsel has concluded that an appeal could not possibly be successful and would be wholly frivolous in this cause. Accordingly, we have examined the record in this cause, as well as the documents filed by counsel for appellant.

It appears that the defendant-appellant Melvin L. Byrd filed his pro se petition for Writ of Habeas Corpus which petition was dismissed on April 21, 1971, for failure to state any allegations upon which relief could be granted. The procedure was under the Habeas Corpus Act (Ill. Rev. Stat. 1969, ch. 65 par. 22.) Defendant in his petition indicated that he was in custody pursuant to the process of the court resulting from a conviction of voluntary manslaughter in Cook County.

• 1, 2 The only allegation made by defendant was that his custody was "unlawful" based on the failure of the foreman of the Grand Jury to sign the indictment in accordance with section 111-3 of chapter 38 of Illinois Revised Statutes. Since the office of Habeas Corpus was to secure release of a prisoner detained by order of a court which is absolutely void by reason of lack of jurisdiction or of the person or subject matter or where something has happened since incarceration which would entitle defendant to his release (People ex rel. Lewis v. Frye, 42 Ill.2d 311), the petition filed by defendant-appellant was inadequate to justify action under the Habeas Corpus Act. 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 by the Supreme Court of this State, dismissal of a pro se petition for Habeas Corpus was proper where the petition failed to suggest anything which would affect the court's jurisdiction over defendant-appellant or contain any suggestion of subsequent events entitling defendant-appellant to release. People ex rel. Kalec v. Pate, 38 Ill.2d 350.

• 3 On the specific issue raised by defendant-appellant, the Illinois Supreme Court in People ex rel. Merrill v. Hazard, 361 Ill. 60, 63, 196 N.E. 827, 827, had occasion to consider the validity of an indictment which did not bear the signature of the foreman. The court indicated that the signature of the foreman is required only as a matter of direction to the clerk and for information of the court and that its presence or absence does not materially affect the substantial right of defendant, since it neither assures him nor prevents him from having a fair trial.

Defendant was properly indicted by the Grand Jury and the failure to have the foreman sign the indictment did not invalidate the indictment so as to deprive the court of jurisdiction to enter judgment. In view of the fact that defendant's petition did not allege anything which would warrant the court's issuance of the Writ of Habeas Corpus, a dismissal of such petition was proper.

Upon complete examination of the record, therefore, we find that the order of the Circuit Court of Will County should be affirmed and that there has been adequate compliance with Anders v. California, 386 U.S. 738. The judgment of the Circuit Court of Will County is, therefore, affirmed.

We have previously entered an order in this cause authorizing withdrawal of counsel pursuant to the motion to withdraw.

Judgment affirmed.

19720105

© 2002 VersusLaw Inc.



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