Kanorowski v. People

113 Ill. App. 468, 1904 Ill. App. LEXIS 583

Opinion

Mr. Justice. Windes

delivered the opinion of the court.

Plaintiff in error being charged with bastardy by the prosecuting witness, Minnie Sobaeke, was' bound over to the Criminal Court by a justice of the peace and tried upon his plea of not guiltybefore that court by agreement of all parties made in open court, the record reciting such agreement, and that “ this cause is submitted to court for trial, the intervention of a jury being waived,” and found guilty. The record also contains, after the finding of guilty, and as a part of the same order, the following, to wit:

“ By agreement of all parties now here made in open court, it is considered by the court that the said plaintiff have judgment herein, and that Frank Kanorowski, the defendant, be adjudged to pay for the support, maintenance and education of said bastard child the sum of four hundred dollars ($400), to be paid as follows: Fifty dollars ($50) at once (and paid) and fifty dollars ($50) every sixty (60) days thereafter until said judgment is satisfied, and'that the" defendant will pay all the costs of this suit. Said sums of money to be paid to the clerk of this court. It is further ordered by the court that the said defendant be and he is hereby required to furnish bond with good and sufficient security,"to be approved by the court, to secure the payment of the sums of money aforesaid, and in case said defendant shall refuse or neglect to give security, as required by this order, then, in that case, it is ordered that the said defendant be committed to the jail of this county, there to remain until he shall comply with this order, or until otherwise discharged by due course of law7.”

This order was entered June 5, 1902. Plaintiff in error gave the bond provided for in the order and paid the first installment of -$50 provided thereby, but when the first installment to be paid under the bond became due, he failed to pay the same, whereupon proceedings were instituted in the Criminal Court under a petition of the prosecuting witness for a citation against him and bis surety upon the bond to show cause why execution should not issue against them for the installment due. An order was entered October 1, 1902, requiring plaintiff in error and his surety to appear and show cause why judgment should not be entered against each of them for failure to comply with the terms of said bond, which was served upon them, together with a notice requiring them to appear before the court November 3, 1902, and show cause as required by the previous order; and on November 3, 1902, an order was entered that a rule issue against plaintiff in error to show cause why he should not be attached for failure to comply with the previous order of the court entered at the June term, 1902; but when service of this last order was made does not appear, though it was served personally by reading to plaintiff in error and giving him a copy on or before November 6,1902. Plaintiff in error was arrested under a writ ■of attachment issued by the court November 6, 1902, and appeared before the court on the latter date in custody, but specially limited his appearance for the purpose of objecting to the jurisdiction of the court, and of his motion to quash the writ of attachment. On the same day he entered into a recognizance to appear before the Criminal Court on the following November 8 to answer the charge of contempt of court. On November 8, 1902, plaintiff in error’s motion to quash the attachment w7as overruled, and he having failed to show any cause why he should not be held in contempt for failure to comply with the order of November 3, 19.02, the court ordered that plaintiff in error be taken into the custody of the sheriff of Cook County, in compliance with the order theretofore issued in the cause. A mittimus was issued, which recites the previous orders of the court, and that plaintiff in error “ failed anci refused to appear in open court and failed to show cause as in said order commanded ” (referring to the order pf November 3, 1902). It then proceeds as follows: “It was ordered that said Frank Kanorowsld be committed to the common jail- of Cook county, Illinois, there to remain charged with contempt for failure to pay a certain installment of money due on a certain bond heretofore executed in this cause, which said sum so due and unpaid is the .sum of fifty dollars ($50) due on the 2nd day of August, A. D. 1902, there to remain until purged of said contempt, or unless sooner released and discharged from imprisonment by due process of law, said imprisonment not to exceed six months, and that a warrant for that purpose issue.” The writ then proceeds to direct that plaintiff in error be taken and confined in the county jail in the usual form- of such writs. Whether plaintiff in error was taken into custody under this mittimus does not appear.

It is first claimed that the trial of the issue in bastardy-being by the court, without a jury, and because the record fails to show that there was any formal waiver in writing of a jury, the judgment of June 5, 1902, cannot be enforced by imprisonment (citing the case of Swan v. Mulherin, 67 Ill. App. 77). The record in the Swan case shows only that “th¿ parties submitted the cause to the court for trial without a jury,” which the court held was not a substantial compliance with the statute of June 17, 1893, relied upon by plaintiff in error. This statute provides that “ no person shall be imprisoned for non-payment of a fine or a judgment in any civil, criminal, quasi-criminal or qui tarn action, except upon conviction by jury. Provided, that the defendant or defendants in any- such action may waive a jury trial by executing a formal waiver in writing; and provided, further, that this provision shall not be construed to apply to fines inflicted for contempt of court; and provided, further, that when such waiver of jury is made, imprisonment may follow judgment of court without conviction by a jury.” The record here, as quoted above, expressly states in addition to what ivas stated in the Swan case, that the intervention of a jury was waived. The Criminal Court of Cook county, being a court of general jurisdiction in criminal or quasi-criminal matters, it will be presumed that it proceeded regularly, and that the waiver of the jury was in writing. Schirmer v. People, 33 Ill. 276-84; Swearengen v. Gulick, 67 Ill. 208-12; Turner v. Jenkins, 79 Ill. 231; Boyles v. Chytraus, 175 Ill. 370-3; and cases cited. The order and judgment of the Criminal Court is not now subject to collateral attack, as is here sought by this writ of error on this point. Kelly v. The People, 115 Ill. 583-9, and cases cited. Among the cases cited is Garnett v. Williams, 20 Wall. 250, in which the court said: “ The jurisdiction having attached in-the case, every thing done within the power of that- jurisdiction, when collaterally questioned, is held conclusive of the rights of the parties, unless impeached for fraud.” There is no question, as will be shown later, but that the Criminal Court had jurisdiction to try the case and render judgment, nor is there any claim of fraud. In this connection the claim is only that the court could not enforce its judgment by imprisonment. In the Kelly case the Supreme Court say : “ The court had power to proceed to hear and determine. The judgment was not such an one as the court had no power, under any circumstances, or upon any state of facts, to pronounce in such a case, but it was one within the power of the jurisdiction which had attached;” and held that the error, if there was one, in the judgment of the court in question, was in the exercise of jurisdiction, and not for want of jurisdiction— was merely erroneous, and not subject to collateral attack as being void for want of jurisdiction.

It is next claimed for plaintiff in error that a proceeding in bastardy is special and statutory, must be strictly pursued, and it was beyond the power of the court to try-plaintiff in error without a jury—that the statute provides a tribunal composed of the court and a jury—that consent of the parties could not give the Criminal Court the power to try the bastardy issue without a jury. It is true that the Bastardy Act (Rev. Stat., ch. 17, sec. 4,) directs that the Criminal Court “ shall cause an issue to be made up whether the person charged, as aforesaid, is the real father of the child or not, which issue shall be tried by a jury.” It has also been held by numerous decisions of the Supreme Court, among others, Pease v. Hubbard, 37 Ill. 257; People v. Noxon, 40 Ill. 30; McFarland v. People, 72 Ill. 368, and Rawlings v. People, 102 Ill. 475, and cases cited, that prosecutions under the Bastardy Act are civil and not criminal proceedings, although criminal in form. The same rule should therefore appH to this proceeding as in a civil case. The Statute of Wills (Rev. Stat., ch. 148, sec. 7,) provides that in the case of a will contest in chancery, that “ an issue at law shall be made up, whether the writing produced be the will of the testator or testatrix or not, which shall be tried by a jury in the Circuit Court.” It has been held that this provision of the statute may be waived. Whipple v. Eddy, 161 Ill. 114-18. A court of chancery has no jurisdiction to try a will contest, except by virtue of the statute. Luther v. Luther, 122 Ill. 558-66; Wheeler v. Wheeler, 134 Ill. 522-5.

It follows, as we think, from these decisions, that as a bastardy proceeding is a civil proceeding, the same rule should apply with regard to waiver of a jury in such a proceeding as is applied under the statute in regard to will contests. Both statutes require that the issue “ shall be tried by a jury,” but as held in the Whipple case, “ shall,” as here used, has no greater force than the word “ may.” Although the proceeding is statutory, we are of opinion that the Criminal Court of Cook county had jurisdiction to try the issue without the intervention' of a jury, by reason of the agreement of the parties that the case should so be tried. There is nothing in the cases of Harris v. People, 128 Ill. 591, Brewster v. People, 183 Ill. 143, and Paulsen v. People, 195 Ill. 507-19, especially relied upon by plaintiff in error, which conflicts with this view. They are criminal cases, and that fact is sufficient to distinguish them from the case at bar.

It is also claimed that section 8 of the Bastardy Act ivas wholly disregarded in this proceeding in requiring, as the judgment of June 5, 1902, does, that plaintiff in error pay $50 instanter and the costs, besides the further sum of $350 in installments of $50 each every sixty days. It is "true that the section referred to provides that when a defendant is found guilty or admits the truth of the charge, he shall be required by the judgment of the court to pay the costs of the prosecution and not exceeding $100 for the first year after the birth of the child, and a sum not exceeding $50 yearty for nine years succeeding said first, year for the support, maintenance and education of the child, and that he shall also be required by the court to give bond with sufficient security for the payment of the money ordered to be paid, and when required by such order. Section 18 of the same act provides, among other things, as follows: “ Such father may compromise all his legal liability on account of such bastard child, with the mother thereof, without the written consent of the county judge, by paying to her any sum not less than $400.” All the different provisions of a statute should be construed together. When so construed we are of opinion that the judgment rendered herein, it, being by agreement of all parties, cannot be said to be in contravention of the statute. We think it can make no difference that the Criminal Court of Cook county is not mentioned in the eighteenth section of the statute," since by the third, fourth and eleventh sections it is apparent that the same jurisdiction and powers are intended to be and are' given to the Criminal Court of Cook county as to the County Court in other counties of the state outside of Cook county.

It is also said that the bond required in this case transcends the statute, and is therefore void. We think that the bond is in substantial compliance with the statute, for the same reasons above stated with regard to the judgment. Further claims are made, that the proceedings hereinabove recited, which resulted in plaintiff in error’s commitment, were irregular and erroneous, because they did not conform strictly to the provisions of the statute relating to bastardy, which provides for the course of procedure when the defendant fails to comply with the judgment of the court. All such claims have been considered, and we are of opinion that the provisions of the statute were substantially complied with in the several respects as to which the proceedings are questioned.

It is also said that the complaint and judgment were not sufficient to show jurisdiction of the Criminal Court. It is true that the complaint is somewhat informal, but in our opinion it is sufficient to give notice to plaintiff in error of the specific charge made against him, and in substance conforms to the statute. The record fails to show that plaintiff in error made any objection thereto, and any informality in that regard, not affecting the merits of the case, is waived by his going to trial without objection. The judgment, the substance of which has been heretofore stated, is, in our opinion, in substantial compliance with the statute, and states all necessary jurisdictional facts, which it is unnecessary to specifically point out.

Being of opinion that the record presents no reversible error, the judgment of the Criminal Court is affirmed.

Affirmed.