{ "id": 5294709, "name": "People of the State of Illinois, Appellee, v. Sam DeStefano, Appellant", "name_abbreviation": "People v. DeStefano", "decision_date": "1965-11-08", "docket_number": "Gen. No. 50,162", "first_page": "389", "last_page": "409", "citations": [ { "type": "official", "cite": "64 Ill. App. 2d 389" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "49 ALR2d 619", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "203 NE2d 716", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "54 Ill App2d 457", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5282393 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-2d/54/0457-01" ] }, { "cite": "198 NE2d 809", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "30 Ill2d 597", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2827163 ], "year": 1964, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0597-01" ] }, { "cite": "201 NE2d 425", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "31 Ill2d 236", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2834223 ], "year": 1964, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/31/0236-01" ] }, { "cite": "1 Ill (Breese) 145", "category": "reporters:state", "reporter": "Breese", "case_ids": [ 435704 ], "year": 1825, "opinion_index": 0, "case_paths": [ "/ill/1/0145-01" ] }, { "cite": "29 P 776", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "221 P2d 117", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "opinion_index": 0 }, { "cite": "99 Cal App2d 178", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2281419 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/cal-app-2d/99/0178-01" ] }, { "cite": "199 NE2d 652", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "49 Ill App2d 320", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5273457 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ill-app-2d/49/0320-01" ] }, { "cite": "204 NE2d 305", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "55 Ill App2d 146", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5283806 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-app-2d/55/0146-01" ] }, { "cite": "128 NE2d 908", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "6 Ill2d 391", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2707603 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/ill-2d/6/0391-01" ] }, { "cite": "190 NE2d 289", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "27 Ill2d 493", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360118 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-2d/27/0493-01" ] }, { "cite": "192 NE 908", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1934, "opinion_index": 0 }, { "cite": "358 Ill 198", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5279945 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/ill/358/0198-01" ] }, { "cite": "20 Ill App2d 312", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5194616 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/20/0312-01" ] }, { "cite": "415 Ill 434", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2682955 ], "opinion_index": 0, "case_paths": [ "/ill/415/0434-01" ] }, { "cite": "179 Ill App 446", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2817614 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/ill-app/179/0446-01" ] }, { "cite": "137 NE2d 389", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "9 Ill2d 175", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5320387 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/ill-2d/9/0175-01" ] }, { "cite": "188 NE2d 42", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "27 Ill2d 82", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5357588 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/ill-2d/27/0082-01" ] }, { "cite": "333 US 875", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6190213, 6190639, 6190384, 6189821, 6190014 ], "opinion_index": 0, "case_paths": [ "/us/333/0875-03", "/us/333/0875-05", "/us/333/0875-04", "/us/333/0875-01", "/us/333/0875-02" ] }, { "cite": "165 F2d 387", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1204970 ], "opinion_index": 0, "case_paths": [ "/f2d/165/0387-01" ] }, { "cite": "133 US 333", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1129252 ], "pin_cites": [ { "page": "345-347" } ], "opinion_index": 0, "case_paths": [ "/us/133/0333-01" ] }, { "cite": "360 US 45", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9009 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/us/360/0045-01" ] }, { "cite": "5 So 420", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": 0 }, { "cite": "86 Ala 20", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3388771 ], "opinion_index": 0, "case_paths": [ "/ala/86/0020-01" ] }, { "cite": "9 SW 486", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "355 US 225", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164227 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/us/355/0225-01" ] } ], "analysis": { "cardinality": 1167, "char_count": 31031, "ocr_confidence": 0.573, "pagerank": { "raw": 4.1180117468114683e-07, "percentile": 0.9103214125611184 }, "sha256": "b0b687fa3bf73cf51a2e9a3a44d895c7626bc68b07c64b361a13bc9f754cc80f", "simhash": "1:a3a27e96341baf5f", "word_count": 5315 }, "last_updated": "2023-07-14T21:35:57.055657+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BURMAN, P. J. and KLUCZYNSKI, J\u201e concur." ], "parties": [ "People of the State of Illinois, Appellee, v. Sam DeStefano, Appellant." ], "opinions": [ { "text": "MR. JUSTICE MURPHY\ndelivered the opinion of the court.\nDefendant appeals from a judgment on a jury verdict, finding defendant guilty \u201cof illegally offering to vote in manner and form as charged in the indictment.\u201d Defendant was sentenced to the penitentiary for a term of one to three years.\nDefendant was tried on a two-count indictment. Count 1 charged that on April 2, 1963, defendant \u201ccommitted the offense of illegal voting in that he knowingly offered to vote at the municipal election held in the City of Chicago, Cook County, Illinois, and in precinct 64 of Ward 36 of the City of Chicago when the said Sam DeStefano had been convicted of the offense of rape in indictment No. 45013 in the Criminal Court of Cook County, in the State of Illinois on December 23, 1927, and when the said Sam DeStefano thereafter had never received a certificate restoring his rights of citizenship from the governor or court entitled to grant such certificate, in violation of chapter 46, section 29-26 Ill Rev Stats 1961.\u201d Count 2 charged that on the same day the defendant \u201ccommitted the offense of illegal voting in that he knowingly voted. ...\u201d\nSection 29-26 of. chapter 46 \u2014 Elections (Ill Rev Stats 1961) provides:\n\u201cIf any person who shall have been convicted of bribery, felony or other infamous crime under the laws of any state, and who has never received a certificate restoring his rights of citizenship from the Governor or court entitled to grant such certificate, shall thereafter vote or offer to vote at any election or primary, he shall upon conviction thereof be adjudged guilty of a felony, and, for each and every offense shall be punished by imprisonment in the penitentiary for not less than two nor more than five years.\u201d\nAlthough defendant had counsel of his own choosing, he acted pro se during the entire trial.\nAt the conclusion of an 11-day trial from November 16, 1964, to November 27, 1964, the case was given to the jury for its consideration and verdict. After deliberating for some time, the foreman of the jury informed the court, in open court and with the jury in the jury box, that the jury was unable to reach a verdict. Thereupon the court ordered that a juror be withdrawn from the jury box, and the court declared a mistrial and excused the jury. Shortly thereafter, the court reconvened the jury, reopened the case, and received a verdict of guilty on Count 1. Judgment was entered on the verdict, and defendant was sentenced to the penitentiary. It is from this conviction defendant appeals.\nDefendant\u2019s contentions are: (1) The court having declared a mistrial because of the announced inability of the jury to agree on a verdict, the subsequent order of court reopening the case and receiving a verdict as to one count was a nullity. (A) The prosecutor\u2019s communications with the jurors before the return of the so-called verdict contaminated the jury\u2019s findings. (2) The court erred in refusing to poll the jury upon demand by the defendant. (3) The Act under which defendant was indicted is unconstitutional as applied to the defendant. (4) The Act under which defendant was indicted was repealed without a saving clause before defendant was indicted. (5) There was insufficient evidence to justify the verdict. (A) No proof that defendant knowingly violated the law or that he had the requisite criminal intent. (1) The judge refused to instruct that knowledge was essential. (B) No proof that he \u201coffered to vote.\u201d (C) No proof that a court did not restore defendant\u2019s rights. (6) Defendant was entitled to his discharge under the Four Term Act. (7) The court erred in failing to inquire about the prejudice of a juror who announced to another juror that \u201cit will be all over in five minutes.\u201d\nInitially, as defendant seeks reversal without remandment, we consider those contentions which, if considered valid, are sufficiently basic to require final judgment here.\nThe first considered of these contentions is, \u201cThe Act under which defendant was indicted [or convicted] is unconstitutional as applied to the defendant.\u201d Defendant asserts that \u201cknowledge of the disability to vote was essential to the proof of the State\u2019s case.\u201d Defendant maintains that Lambert v. California, 355 US 225 (1957), is controlling on this point. In that case, a Los Angeles Municipal Code provided that any person who had been convicted of a felony was required to register with the police if he remained in the city for more than five days, and that failing to do so constituted a crime. The evidence shows that a Miss Lambert had previously been convicted of forgery and failed to register. Upon such proof, defendant was convicted and sentenced. During the course of her trial she attempted to prove she had no actual knowledge of the requirement that she register. Such offer was refused by the trial court. The United States Supreme Court held the ordinance to be unconstitutional as it applied to the defendant and stated (p 228):\n\u201cEngrained in our concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has the chance to defend charges.\u201d\nAlso, \u201c. . . [A] ctual knowledge of the duty to register or proof of the probability of such knowledge and subsequent failure to comply are necessary before a conviction under the ordinance can stand. . . . Where a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process.\u201d (pp 229, 230.)\nThe State notes that in Lambert v. California, it was also said (p 228):\n\u201cBut we deal here with conduct that is wholly passive \u2014 mere failure to register. It is unlike the commission of acts .... The rule that \u2018ignorance of the law will not excuse\u2019 ... is deep in our law, as is the principle that of all the powers of local government, the police power is \u2018one of the least limitable.\u2019 \u201d\nFrom this the State argues the Lambert case was concerned with punishing passive conduct, and since the complained of actions of defendant were positive, the Lambert case does not apply here. We agree.\nPronouncements made in Thompson v. State, 9 SW 486 (Texas) (1888), are pertinent here:\n\u201cUpon the trial the court gave an instruction as follows: Tf the defendant had been convicted of an assault with the intent to murder, as alleged in the indictment in this cause, and if he knew at the time he so voted that he had been so convicted, such knowledge of his conviction would be equivalent in law to knowing himself not to be a qualified voter.\u2019 It is contended by counsel for defendant that said instruction is erroneous in principle, and that it is also upon the weight of evidence. We believe the instruction to be correct and unobjectionable. Ignorance of the law is no excuse for a violation of the law, . . . and no mistake of law excuses one committing an offense. . . . Everyone is conclusively presumed to know the law, both as to civil and criminal transactions. The law is administered upon the principle that everyone must be taken conclusively to know it, without proof that he does know it. . . . As the defendant knew the fact that he had been convicted of the offense of assault with intent to murder, it must be conclusively presumed that he knew the legal consequences of such conviction; That he knew that the law declared that offense to be a felony; and that the constitution and the law made one of the consequences of the conviction his disqualification to vote. He cannot be heard to deny such knowledge; and it was not necessary that it should be proved that he had such knowledge, because the presumption of law supplied and dispensed with such proof. ... It seems to us that if we were to hold the law to be that the State must prove that the defendant knew that the offense of which he had been convicted was a felony, and that such conviction disqualified him to vote, the effect would be that a conviction for illegal voting by persons convicted of felony could rarely be obtained, because it would be an exceptional case in which such proof could be made. Such a holding would not accord with our understanding of the spirit and reason of the law, and is not supported by any precedent to which we have been cited, or which we have been able to find.\u201d (pp 486-487.)\nSee, also, Gandy v. State, 86 Ala 20, 5 So 420, to the same effect.\nDefendant also quotes the Fifteenth Amendment to the Federal Constitution:\n\u201cSection 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.\u201d\nFrom this, defendant argues, \u201ca convicted felon is no less a citizen of the United States. And although the Fifteenth Amendment was adopted after the Civil War primarily to insure the right to Negroes to vote in southern states, the plain language of the Amendment applies to the defendant here. His \u2018previous condition of servitude\u2019 in a penitentiary is held to bar his voting; but that is a condition prohibited by the Amendment.\u201d\nDefendant further asserts, \u201cThe 13th Amendment provides, \u2018Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.\u2019 Accordingly involuntary servitude relates to penal confinement. And the 15th Amendment forbids any State to deny the right to vote on account of a person\u2019s \u2018previous condition of servitude/ . . . Nor is there any case that has decided squarely that it is not an unconstitutional abridgement of a citizen\u2019s right to vote to legislate against a felon from so doing.\u201d\nIn reply to this contention, the State cites Lassiter v. Northampton County Board of Elections, 360 US 45 (1959), where it is said:\n\u201cWe do not suggest that any standards which a states desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record (Davis v. Beason, 133 US 333, 345-347) are obvious examples indicating factors which a state may take into consideration in determining the qualifications of voters.\u201d (p 51.)\nAlso, Rice v. Elmore, 165 F2d 387, cert denied, 333 US 875, where the court said:\n\u201cThe Fourteenth and Fifteenth Amendments were written into the Constitution to insure to the Negro, who had recently been liberated from slavery, the equal protection of the laws and the right to full participation in the process of government.\u201d (p 392.)\nWe believe the foregoing authorities indicate that defendant\u2019s contention that section 29-26, chapter 46, Ill Rev Stats 1961, the basis for the instant indictment, \u201cis unconstitutional as applied to the defendant,\u201d is without merit.\nNext considered is defendant\u2019s contention, \u201cThe Act under which defendant was indicted was repealed without a savings clause before defendant was indicted.\u201d Therefore, defendant asserts, \u201cNo law existed thereafter which made it a crime to \u2018offer to vote.\u2019 \u201d Defendant was indicted in May, 1964, for an alleged offense committed April 2, 1963. The indictment charged a violation of section 29-26 of the Election Code (Ill Rev Stats 1961, c 46). Article 29 of said Act was repealed without a saving clause on August 7,1963, by Laws of 1963, p 2569, \u00a7 2.\nThe State argues the prosecution is valid under the general saving clause of the Construction of Statutes Act (Ill Rev Stats 1963, c 131, \u00a7 4). Defendant argues that People v. Tanner, 27 Ill2d 82, 188 NE2d 42 (1963), requires an \u201cexplicit saving clause\u201d incorporating by reference section 4 of the Construction of Statutes Act, and \u201caccordingly, it is clear that the statute under which defendant was indicted and convicted was repealed without a savings clause.\u201d We do not agree. In People v. Bilderback, 9 Ill2d 175, 137 NE2d 389 (1956), our Supreme Court considered the application of section 4 of the Construction of Statutes Act, and said (p 181):\n\u201cNowhere in the combination of circumstances out of which this problem arose is there a suggestion that the legislature was expressing its purpose that conduct which took place before the statutory change should no longer be criminal. No thought of a general pardon for those who had committed the offense here involved can be distilled from the circumstances of this legislative change. The case falls squarely within the terms of the Statutory Construction Act, and the judgment was correct.\u201d\nWe consider this statement applies here, notwithstanding the law under which defendant was indicted was repealed without replacement.\nDefendant next contends \u201cthere was insufficient evidence to justify the verdict.\u201d Defendant again argues, \u201cThe State failed to prove the defendant had knowledge that he could not \u2018offer to vote.\u2019 No means existed by which a person convicted of a felony could avail himself of such knowledge, unless that fact were brought to his attention. Lambert v. California, 355 US 225.\u201d Defendant asserts the court refused defendant\u2019s instructions, which \u201crelated to the requirement that before the jury could find the defendant guilty, it had to find that the defendant\u2019s act was done with conscious intent to violate the law and that further \u2018knowledge of a material fact includes awareness of the substantial probability that such fact exists.\u2019 \u201d He also states the court \u201crefused to permit the defendant to prove through the wardens of the Illinois Penitentiary that no prisoner was ever told that he could not vote upon his release.\u201d\nWe find no merit in any of the foregoing points. As defendant knew he had been convicted of the offense of rape, it must be conclusively presumed that he knew the legal consequences of such conviction. The rule that ignorance of the law is no excuse applies here. In People v. Becker, 179 Ill App 446 (1913), the court said (pp 451, 453):\n\u201c[T]he rule that ignorance of the law excuses no man applies with all its force to cases of the violation of the election laws; that if the voter is aware of a state of facts which disqualify him under the law and is ignorant of the law, he may be convicted of the crime of illegal voting. . . . We do not perceive any substantial difference between the question of intent, mistake of law, ignorance of law, and mistake of fact involved in this and in other criminal cases.\u201d\nThe record shows that the State established proof that defendant was convicted of a felony in 1927; that defendant on September 15, 1961, registered to vote by filling out an application and swearing \u201che was fully qualified to vote\u201d; that on April 2, 1963, he signed an application for ballot and entered a voting booth on election day. The State also asserts, \u201cThe State did prove through a certified copy that a search of the certificate of Kestoration records of the Secretary of State\u2019s Office failed to reveal that Sam DeStefano\u2019s rights were restored by any Governor of the State of Illinois from the year of his conviction to the present. This is a proper method of proof. People v. Dolgin, 415 Ill 434.\u201d The State argues, \u201cIn the clearest sense of the word, the defendant \u2018offered to vote.\u2019 He took substantial steps toward the act of actually voting. He did everything required of a person in order to vote (except of course, receive restoration of his voting rights). An offer is a proposal to do a thing. Smith v. Illinois Valley Ice Cream Co., 20 Ill App2d 312.\u201d\nDefendant argues, \u201cThe State failed to prove that the defendant \u2018offered to vote\u2019 as charged in Count 1. It proved, if it proved anything, that defendant \u2018voted\u2019 as charged in Count 2. But as to that count, the jury could not agree upon a verdict.\u201d Defendant further argues, \u201cBut even assuming that the State presented proper and sufficient evidence that the defendant was not restored by any governor, the record is entirely silent that defendant was not restored by any \u2018court entitled to grant such certificate\u2019 (of restoration). This is proof affirmative which the State was required to make under the language of the section under which defendant was indicted.\u201d\nThe proof made by the State was sufficient to present the issues to the jury. It was not necessary for the State to prove \u201cthat defendant was not restored by any \u2018court entitled to grant such certificate.\u2019 \u201d If defendant\u2019s \u201crights of citizenship\u201d had been restored by any court, that fact was peculiarly within defendant\u2019s knowledge, and the averment that no court restored him is taken as true unless disproved by the defendant. People v. Prystalski, 358 Ill 198, 192 NE 908 (1934).\nDefendant also contends that he was entitled to his discharge under the Four Term Act. The statute provides that \u201cevery person on bail or recognizance shall be tried by the court having jurisdiction within 120 days from the date defendant demands trial unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.\u201d Ill Rev Stats, c 38, \u00a7 108-5 (b), Code of Criminal Procedure 1963, effective January 1, 1964.\nDefendant states he \u201cwas arrested on April 30, 1964, and appeared in court May 4, 1964 and continuously demanded trial on May 11, June 10, June 19, July 2, August 27. He should have been discharged in accordance with see 103-5, chap 38, Ill Rev Stats 1963. He moved for a discharge on September 23, September 30, October 7, and on October 8. He was not put to trial until November 17, 1964.\u201d\nThe State replies, \u201cThe record clearly shows delays occasioned by the defendant.\u201d On May 25, 1964, defendant filed a motion for change of place of trial. This was denied on June 10, 1964. On July 2, 1964, defendant filed motions to dismiss the indictment, which were denied on August 27, 1964, and on September 23, 1964, defendant again moved to take the case out of Cook County, which motion was again denied. On September 30.1964, a hearing was had on a motion of defendant for substitution of judges. This was denied. On October 7, 1964, defendant renewed his motions to dismiss the indictment and asked the court to consider the motions overnight and decide them on October 8, 1964, which request was granted. The trial commenced on November 17.1964.\nThe foregoing motions made by defendant show that the failure to try defendant within 120 days was because of delays occasioned by the defendant, and therefore his \u201cFour Term Act\u201d contention is without merit. In People v. Hamby, 27 Ill2d 493, 190 NE2d 289 (1963), the court said (p 495):\n\u201cWhere, however, the accused has sought and obtained a continuance, or agrees to a continuance, or in any manner causes delay in trial by his own action, the four-months period is renewed and starts to run again from the date the delay occurred, or to which the cause was continued. . . . The motions to test the validity of the indictments in this case and the delay occasioned thereby were correctly charged to the defendant.\u201d\nFinally, we reach defendant\u2019s determinative contentions that every act subsequent to the declaration of a mistrial was a nullity, and that it was error not to poll the jury on his request.\nThe record shows that the following occurred prior to the reception by the court of the guilty verdict.\n\u201cWhereupon at 10:45 P. M. the following proceedings were had:\n\u2018The Court: Mr. Foreman, have you reached a verdict?\nThe Foreman: No, your Honor, we haven\u2019t.\nThe Court: Does it look like you can come to a unanimous decision ?\nThe Foreman: No, sir, it doesn\u2019t.\nThe Court: All right. Mr. Clerk, will you call the name of one juror.\nThe Clerk: Robert G. Arnold, will you step out of the jury box.\nThe Court: This Court declares a mistrial. You are all excused. You may go home.\nMr. Tuite: We are not objecting to their deliberating further.\nThe Court: He says they can\u2019t come to a unanimous verdict.\nMr. Tuite: I think the Foreman wants to say something.\nMr. McDonnell: Thank you, your Honor.\nMr. DeStefano: I thank all of you.\nThe Court: You are discharged.\nMr. DeStefano: May I speak ?\nMr. Tuite: Let the record show the State objects to the mistrial.\nMr. DeStefano: Counsel for the Defense objects to the mistrial. We object to the mistrial.\n(Whereupon, the following proceedings were had outside the presence and hearing of the jury:)\nThe Court: There is one more matter we have to take care of. One matter we have to dispose of is your contempt. I am citing you, again, for your conduct today during the course of the trial and your closing argument.\nA Bailiff: The jury told me they\u2019ve come to a verdict on one of the charges.\nMr. Tuite: The jury informed us they reached a verdict on one count and misunderstood the Court. They have told me.\nThe Court: Bring the jury back. Bring the jury back.\nMr. McDonnell: Objection to re-opening the case after a mistrial has been declared.\n(Whereupon, the following proceedings were had in open court, within the presence and hearing of the jury:)\nThe Court: The jury has made a request to come back, and the case will be re-opened. Is that true, Mr. Foreman ?\nThe Foreman: Yes, sir.\nThe Court: For what purpose ?\nThe Foreman: We found the defendant guilty on one count.\nThe Court: Well, you failed to state that to me before.\nThe Foreman: You didn\u2019t ask me, sir.\nThe Court: I asked you if you reached a unanimous verdict. That meant either count.\nThe Foreman: I am sorry. I misinterpreted.\nThe Court: You mis-informed me? All right, give the verdict that you have arrived at to the Clerk. The Bailiff will pick it up. Please sit down over there where you belong.\nMr. DeStefano: They were near the jurors.\nThe Court: Did you reach this verdict before you came out the first time?\nThe Foreman: Yes, sir.\nThe Court: You were ready to deliver it to the Court, but you misunderstood me? Is that true?\nThe Foreman: Yes, sir.\nMr. McDonnell: Judge, please, your Honor\u2014\nThe Court: Then, pass your verdict up to the Clerk.\nThe Bailiff: Your Honor, I left it on the desk in the jury room. Should I get it ?\nThe Court: Go with the Bailiff and bring it in. It is obvious there has been a mistake here. I am correcting it.\nMr. DeStefano: When the jury was out here, the State\u2019s Attorney and other people were near them, your Honor. The jury is supposed to deliberate in a closed room. After they left the court room and other people got near them, and so forth, then they come back, sir. A mistrial was declared, sir.\nThe Court: All right, Mr. Foreman, will you deliver your verdict to the Clerk ?\nMr. Clerk, see if the verdict is in order.\nThe Clerk: Yes, Judge, the verdict is in order.\nThe Court: All right. Read the verdict.\nThe Clerk: \u201cWe, the jury, find the defendant, Sam DeStefano, guilty of illegally offering to vote, in manner and form as charged in the indictment. We, the jury, further find that the defendant is now fifty-five years of age.\u201d Signed by the Foreman and the eleven other jurors.\nThe Court: How about the other count? On the other count you are unable to reach a unanimous verdict ?\nThe Foreman: Y es, your Honor.\nMr. McDonnell: You have declared a mistrial. It is not only illegal\u2014\nThe Court: Make your argument after we have dismissed the jury.\nMr. DeStefano: I wish to poll the jury.\nThe Court: Are you able to come to a unanimous decision on the second count?\nThe Foreman: No, your Honor.\nThe Court: The jury is excused, then.\nMr. DeStefano: I thank you, anyway.\u2019 \u201d\nObviously, the foregoing presented an unusual situation. Defendant argues the trial judge followed the procedure prescribed in Illinois for the declaration of a mistrial (People v. Noel, 6 Ill2d 391, 128 NE2d 908 (1955); People v. Miller, 55 Ill App2d 146, 204 NE2d 305 (1965)), and thereafter the jurors could not render a valid verdict.\nThe State argues the court properly corrected a mistake, and the trial judge had \u201ca duty to vacate an order entered if changed facts or circumstances make the prior order unjust.\u201d (Richichi v. City of Chicago, 49 Ill App2d 320, 199 NE2d 652 (1964).) The State also cites People v. Powell, 99 Cal App2d 178, 221 P2d 117, where, after a mistrial, the trial court learned of a mistake and vacated his order declaring a mistrial and received a guilty verdict on one count. On review, it was held that the trial judge acted properly in vacating the mistrial and correcting the error.\nThe defendant points out that in People v. Powell, 99 Cal App2d 178, 221 P2d 117, all of the proceedings attending the reception of the guilty verdict occurred with the jury still in the box and, further, \u201cat the defendant\u2019s request, \u2018the jury was polled and it appeared that the verdict was unanimous.\u2019 \u201d Defendant further notes that in the Powell case it was argued the verdict was void because it was received after the jury had been discharged, and People v. Chong, 29 P 776, was cited in support. The reviewing court in the Powell case, in noting the cases differed factually, said (p 119):\n\u201cFor instance, in the Chong case the jury had left the box, had separated, had engaged in conversation with various persons, deeming they had been discharged and might therefore discuss the case, and it was held under such circumstances reversible error had been committed in thereafter re-assembling them and proceeding to receive and record a verdict. While it is true here that the court, laboring under the belief that the jury had not agreed on any verdict as to appellant, preliminarily announced its intention to discharge them, nevertheless the error was discovered before they had been permitted to leave the box and the court was therefore fully justified in rectifying, and, indeed, in the performance of its duties was required to rectify, the misunderstanding and receive the verdict which the jury had unanimously agreed upon. It often happens, due to the reluctance of jury members to speak out, that such misunderstanding as existed here will arise, and a trial court would be remiss in its duties if, before it lost control of a jury, it discovered that such a situation had developed and did not correct it.\u201d\nIn the instant case, the misunderstanding by the foreman was most unfortunate, particularly after a lengthy and turbulent trial. However, the jury had left the box and returned to the jury room, they had engaged in conversations with a bailiff and an Assistant State\u2019s Attorney, deeming that they had been discharged and might therefore discuss the case, and the court in effect had \u201clost control\u201d of the jury before the court discovered that a misunderstanding had occurred which caused the discharge of the jury. The integrity of a jury verdict and its receipt and recordation in any jury trial must be above question, especially in a criminal case, where the interests of both the defendant and the public are involved. There are situations in which a trial court is fully justified in rectifying a misunderstanding by the jury and receiving a verdict which the jury had unanimously agreed upon, but we do not believe the circumstances portrayed here justified the receipt of the instant verdict.\nWe now consider defendant\u2019s contention that \u201cfor failure of the court to poll the jury upon demand, the judgment should be reversed.\u201d It affirmatively appears from the record that when the court received the verdict, defendant stated, \u201cI wish to poll the jury.\u201d The record does not disclose any ruling by the court on this request of defendant, and it is not disputed by the State that the jury was not polled after the verdict was received. Defendant argues, \u201cThe law in'Illinois requires the polling of the jury upon demand of the defendant. This procedure was established early in the judicial history of Illinois.\u201d Cases cited include Nomaque v. The People, 1 Ill (Breese) 145 (1825), where the court said, \u201cThe prisoner had a right to have the jurors polled.\u201d\nThe State argues that \u201cIllinois has no Constitutional or statutory provision giving the defendant the right to poll the jury. The right, if any, which exists respecting the polling of a jury is from the common law,\u201d and \u201cthe Illinois eases cited in Appellant\u2019s brief all deal with sealed verdicts where it is sound to have the jury polled to ascertain whether the verdict read is the verdict signed and sealed earlier by the jury. ... In the case of an open verdict, where the jury hears the verdict read in open court as in this case and can dissent if the verdict read is not the verdict reached during deliberation, it would seem that no substantial right of the defendant is violated when the court does not poll the jury.\u201d\nThe state further argues that as this point was not included in defendant\u2019s written motion for a new trial, \u201cit is deemed to have been waived and therefore not subject to review.\u201d (People v. Touhy, 31 Ill2d 236, 240, 201 NE2d 425 (1964).) This is the general rule, but we think defendant\u2019s contention comes within the recognized exceptions which call for the use of this court\u2019s discretionary power to \u201cconsider errors that have not been properly preserved for review.\u201d See People v. Bradley, 30 Ill2d 597, 601, 198 NE2d 809 (1964); People v. Fleming, 54 Ill App2d 457, 203 NE2d 716 (1965); and the Code of Criminal Procedure (Ill Rev Stats 1963, c 38, \u00a7 121-9 (a)), which provides:\n\u201c(a) Insubstantial and Substantial Errors on Appeal.\nAny error, defect irregularity or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.\u201d\nAs to the right to poll the jury in general, an annotation in 49 ALR2d 619, divides the states into three categories: those where the right is absolute, those where it is forbidden, and those where it is viewed as discretionary. On the basis of the language in the case of Nomaque v. The People, ALR views Illinois in the first category. An extended discussion of the various authorities pro and con is unnecessary here. The circumstances attending the receipt of the instant guilty verdict demonstrate the importance of the polling of a jury. Even if the verdict had been properly returned, we consider the failure to poll the jury, after an affirmative request so to do, to be reversible error.\nOther contentions of defendant have not been considered because we believe that on a new trial the events upon which these contentions are based will not reoccur.\nBecause of the reversible errors which occurred in the receipt of the verdict and in the failure to poll the jury, the judgment of the Criminal Division of the Circuit Court of Cook County is reversed and the cause remanded to that court for further proceedings in accordance with this opinion.\nReversed and remanded.\nBURMAN, P. J. and KLUCZYNSKI, J\u201e concur.", "type": "majority", "author": "MR. JUSTICE MURPHY" } ], "attorneys": [ "Julius Lucius Echeles, of Chicago, for appellant.", "Daniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick A. Tuite, Assistant State\u2019s Attorneys, of counsel), for appellee." ], "corrections": "", "head_matter": "People of the State of Illinois, Appellee, v. Sam DeStefano, Appellant.\nGen. No. 50,162.\nFirst District, First Division.\nNovember 8, 1965.\nRehearing denied November 26,1965.\nJulius Lucius Echeles, of Chicago, for appellant.\nDaniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick A. Tuite, Assistant State\u2019s Attorneys, of counsel), for appellee." }, "file_name": "0389-01", "first_page_order": 401, "last_page_order": 421 }