Opinion
Gen. No. 43,764.
Opinion filed February 5, 1947. Released for publication February 21, 1947.
1. CRIMINAL PROCEDURE, § 709 — general rule as to person at whose instance writ of error coram nobis will issue. General rule seems to be that writ of error coram nobis will issue only at instance of party to record or of one in privity with him, or of one injured by judgment.
See Callaghan's Illinois Digest, same topic and section number.
2. CRIMINAL PROCEDURE, § 709fn_ — propriety of presentation by defendant's sister of petition in proceeding in nature of writ of error coram nobis. Where defendant was convicted of robbery while armed and sentenced to prison, and sister of defendant, in effort to have judgment set aside on ground that defendant at time of trial was feebleminded, filed petition in proceeding in nature of writ of error coram nobis in name of defendant by his "sister and next friend," and State contended that sister was not proper person to present petition, held that on appeal from ruling, sustaining State's motion to dismiss, Appellate Court had to assume that defendant was feeble-minded; that defendant having no guardian, trial court had discretion in appointing sister or some other person to represent defendant in presenting his petition, and that it would be abuse of discretion to dismiss proceeding because it was presented by defendant's sister.
3. CRIMINAL PROCEDURE, § 709fn_ — where petition in proceeding in nature of writ of error coram nobis alleged that defendant was feeble-minded. Petition in proceeding in nature of writ of error coram nobis, to set aside judgment of conviction, held to sufficiently allege that at time of trial defendant was feeble-minded.
4. INSANE PERSONS, § 2fn_ — jurisdiction of municipal court to declare person feeble-minded. On petition for determination of defendant's mental condition, where two physicians reported that defendant was feeble-minded, municipal court of Chicago had jurisdiction to enter decree that defendant was feeble-minded (Ill. Rev. Stat. 1945, ch. 23, par. 348; Jones Ill. Stats. Ann. 77.077).
5. INSANE PERSONS, § 2fn_ — conclusiveness of municipal court's decree as to feeble-mindedness. Decree of municipal court of Chicago that defendant was feeble-minded was as conclusive and binding as that of any other court.
6. INSANE PERSONS, § 1fn_ — similarity of feeble-mindedness and insanity. Allowing due advantage to defendant under State's motion that petition in proceeding in nature of writ of error coram-nobis be dismissed, Appellate Court took feeble-mindedness of defendant to be of character defined by statute which is only slightly different from insanity.
7. CRIMINAL PROCEDURE, § 924fn_ — presumption of existence of feeble-mindedness at time of trial. Where defendant, three years prior to his conviction of robbery, was adjudged to be feeble-minded, Appellate Court presumed that at time of robbery-trial feeble-mindedness of defendant existed.
8. CRIMINAL PROCEDURE, 709fn_ — when petition in proceeding in nature of writ of error coram nobis makes out prima facie case. In proceeding in nature of writ of error coram nobis to set aside judgment, sentencing defendant to penitentiary, on ground that he was feebleminded at time of trial, held that defendant's petition made out prima facie case for relief prayed.
9. CRIMES AND PUNISHMENT, § 20fn_ — mental condition as matter of defense. Where, on petition of defendant to have judgment of conviction set aside on ground of feeble-mindedness of defendant at time of trial, State contended that defendant was negligent at such time in not raising question of his mental condition, held that this was a matter of defense.
10. CRIMINAL PROCEDURE, § 709fn_ — tolling of limitations against petition. Five-year statute of limitations did not run against defendant whose continuing mental disability prevented him from filing petition to have conviction set aside within time prescribed by law (Ill. Rev. Stat. 1945, ch. 110, par. 196; Jones Ill. Stats. Ann. 104.072).
Appeal by plaintiff from the Criminal Court of Cook county; the Hon. HAROLD G. WARD, Judge, presiding. Heard in the third division of this court for the first district at the June term, 1946. Reversed and remanded with directions. Opinion filed February 5, 1947. Released for publication February 21, 1947.
PAUL E. THURLOW, of Chicago, for appellant.
WILLIAM J. TUOHY, State's Attorney, for appellee; EDWARD E. WILSON, JOHN T. GALLAGHER, MELVIN S. REMBE, JOSEPH A. POPE, and C.D. PEMBERTON, Assistant State's Attorneys, of counsel.
This proceeding is in the nature of a writ of error coram nobis (Sec. 72 C. P. A.) to set aside the conviction of plaintiff of robbery with a gun. The States Attorney made a motion to dismiss, which was sustained by the trial court. Plaintiff has appealed.
The petition of Casimer Jablonski, whom we shall call defendant, was filed February 13, 1946. It was presented by Sophie Jablonski, his "sister and next friend." It appears from the petition that defendant is imprisoned in the State Penetentiary at Joliet; that on December 7, 1928 the Municipal Court of Chicago on petition for determination of his mental condition, caused defendant to be examined by two physicians; that the physicians reported that he was feeble minded and the court so decreed; that defendant was committed to a Colony for Feeble Minded persons by order of the court and that on December 14, 1928 he was admitted to the Colony; that on June 15, 1929 he escaped and that on December 28, 1931 was arrested and thereafter indicted and tried for robbery while armed; that at the time he had not, and has never, been judicially restored to reason; that when he pleaded to the indictment he was incapable mentally of doing so; that his disability was not called to the attention of the court; and that at the time Sophie Jablonski was but 7 years of age and could not bring the matter to the attention of the court. The petition prayed that the judgment sentencing defendant to the penetentiary be recalled, annulled and set aside. The petition was verified by Sophie Jablonski.
The proceeding was proper for the purpose. People v. Ogbin, 368 Ill. 173. The material issues made by the State's motion are, whether Sophie. Jablonski is a proper person to present the petition; whether the motion states sufficient facts from which we can infer a prima facie right as to the relief prayed; and whether the motion is timely.
The general rule seems to be that the writ of error coram nobis will issue only at the instance of a party to the record or of one in privity with him, or of one injured by the judgment. 2 R. C. L. p. 309. We have found no cases stating this rule in which feeble-minded persons were nominal petitioners. People v. Nakielay, 279 Ill. App. 387, cited by the State is not such a case. There the accused was not feeble minded or insane and the petition was in the name of a relative who was held by the court to be a stranger to the proceeding. The instant petition is in the name of the defendant by his "sister and next friend". Under the State's motion we must assume defendant is a feeble-minded, person incapable of managing his affairs. People v. Varecha, 353 Ill. 52. Having been adjudged feeble minded and no guardian having been appointed, as he was committed to a State Hospital (Chap. 23, Par. 354, Ill. Rev. Stats. [Jones Ill. Stats. Ann. 77.083]), the petition would of necessity have to be presented by someone appointed to represent him as his next friend. Isle v. Cranby, 199 Ill. 39; 28 Am. Jur. 748. The trial court had discretion to appoint Sophie Jablonski to represent defendant in presenting his petition, or to appoint another person for that purpose. In this case we think it would be an abuse of discretion if the petition were dismissed on the ground that Sophie Jablonski was not a proper party to present it.
We believe the petition sufficiently alleged that defendant was feeble minded at the time of the trial. The Municipal Court of Chicago had jurisdiction to enter the decree. Chap. 23, Par. 348, Ill. Rev. Stats. [Jones Ill. Stats. Ann. 77.077]. Its decree was as conclusive and binding as that of any other court. People v. Varecha. Allowing due advantage to the defendant under the State's motion, we take the feeblemindedness to be of the character defined by the Statute which is only slightly different from insanity. People v. Varecha. We presume also that the feeblemindedness existed at the time of the trial, ( People v. Varecha) which was about 3 years after the decree. Because we infer that the feeble-mindedness of defendant was of the character that rendered him incapable of managing himself and his affairs, (Chap. 23, Par. 346, Ill. Rev. Stats. [Jones Ill. Stats. Ann. 77.075]), the same general rules, applicable to an insane person, apply to him. People v. Varecha. We must accordingly assume that had the fact appeared at the trial, it would have precluded the defendant's conviction. Chap. 38, Par. 592, Ill. Rev. Stats. [Jones Ill. Stats. Ann. 37.553]. This brings us to the conclusion that the petition made out a prima facie case for the relief prayed.
The points raised by the State bearing upon the negligence of the defendant in not raising the question of his feeble-mindedness at the time of the trial, to which point the State cited People v. Hart, 333 Ill. 169, is a matter of defense. So, also, is the question whether someone other than Sophie Jablonski could have brought the matter to the court's attention. The same is true of the degree of defendant's mental incompetency at the time of trial.
On the question of the timeliness of the petition, we believe the law which authorizes the proceeding answers the State's contention. The petition was not presented until nearly sixteen years after the judgment. Defendant's continuing disability, however, prevented the running of the five year limitation within which the petition is required to be presented. Section 72, Civil Practice Act [Ill. Rev. Stat. 1945, ch. 110, par. 196; Jones Ill. Stats. Ann. 104.072].
For the reasons given the judgment of the Criminal Court is reversed and the cause is remanded with directions to that court to deny the State's motion and order it to plead; and to proceed to a hearing upon the issues made by the pleadings. Puterbaugh's Common Law Pleading and Practice, 10 Ed. Chap. 24, Secs. 845 and 846.
Reversed and remanded with directions.
LEWE, P.J., and BURKE, J., concur.