The People v. Kidd , 401 Ill. 230 ( 1948 )

I concur in the result reached by the court because I think the evidence shows beyond a reasonable doubt that the defendants are guilty. I do not agree with the majority opinion that the bill of exceptions in the case was properly stricken by the Appellate Court, and for such reason the conviction affirmed.

I think under the rule as followed by this court for over a hundred years, and especially in view of the recent amendments to the Practice Act, that the bill of exceptions was properly before this court for consideration.

Among other things, section 74 of the Civil Practice Act (Ill. Rev. Stat. 1947, chap. 110, par. 198,) provides: "All matters in the trial court record actually before the court on appeal may be considered by the court for all purposes, but if not properly authenticated the court may order such further authentication as it may deem advisable." In this case the bill of exceptions was before the court. It was filed within the period of time fixed by the court; it was signed by the judge who tried the case. The only thing not strictly according to the rule was the failure of the trial court to indicate that its signature related back to the date of the filing, and such failure could be easily cured by requiring a further authentication, as indicated by this section. Otherwise the bill of exceptions was properly before the court under a long line of decisions of this court.

In People v. Rosenwald, 266 Ill. 548, we said: "The rule has long been settled in this jurisdiction that a party who presents his bill of exceptions to the judge who tried the cause, within the time prescribed for filing the same, having thus done all he can, will not be prejudiced by the neglect or refusal of the judge to sign the bill of exceptions until after the time fixed for that purpose has expired." In case the bill of exceptions is not signed by the judge within the period fixed by law or by rule, the practice has been to present the bill to the judge and if he marks upon it "presented" without signing it, and later signs it, the same may be filed nunc pro tunc as of the date of the presentation. This practice has been announced many times.Underwood v. Hossack, 40 Ill. 98; Hawes v. People ex rel. Pulver,129 Ill. 123; Olds v. North Chicago Street Railroad Co., 165 Ill. 472; Hill Co. v. United States Fidelity and Guaranty Co. 250 Ill. 242; City of East St. Louis v. Vogel, 276 Ill. 490; People exrel. Oelsner v. Andrus, 299 Ill. 50; Zbinden v. DeMoulin,328 Ill. 156.

In the instant case the bill of exceptions was prepared within the proper time; was presented at the court in which the case was tried; the judge who presided in the case was not in that county; his associate judge in the same county ordered the bill of exceptions filed, and the same was filed within the time fixed by law, and later the judge before whom the case was tried signed the bill of exceptions. It is true he said he was not absent from the circuit, but that circuit consists of five large counties, and it is perfectly obvious that he adopted the act of his associate judge in ordering it filed, and signed the bill of exceptions.

The opinion relies upon People v. Kobley, 390 Ill. 565, which announced the rule that nothing short of actual filing of the bill of exceptions complies with the statute, and that it does not become a part of the record by merely presenting it to the trial judge. In that case the only thing done was to have the bill of exceptions marked presented, and then do nothing more for four years. No application for extension or any other action was taken within the statutory time, and the bill of exceptions was not filed until four years after the presentation, with no act justifying such lapse of time shown by the record. In the instant case the bill of exceptions was filed within the time, and the judge later signed his name. Rule 8 (5) of the Supreme Court, among other things, provides "The judge, for good cause shown on special motion after notice to the opposite party, may extend the time for putting in any pleading or the doing of any act which is required by the rules to be done, within a limited time, either before or after the expiration of the time."

It is Supreme Court rule 70A which fixes the period for presenting and filing bills of exceptions in criminal cases, and therefore subdivision 5 of Rule 8 certainly could justify a waiver of strict compliance with any other rule of this court.

The Civil Practice Act is supposed to be remedial, and section 4 thereof not only provides for its liberal construction, but also directs that controversies shall be determined according to the substantive rights of the parties, and provides that the rule that statutes in derogation of the common law must be strictly construed shall not apply to the Civil Practice Act or to the rules made pursuant thereto.

I believe that the fact that the evidence clearly shows the guilt of the accused has somewhat deflected the views of the majority of the court as to when a bill of exceptions may be considered, when filed but not signed within the time fixed by the court for its filing. Of course, the law provides that the guilty shall have the same advantage of the law as the innocent, and there cannot be one method of proceeding for the one and a different method for the other. The rule announced in the present opinion if applied in all cases might result in great injustice by the application of technical rules, contrary to the purpose and intent of the revised practice.

Mr. JUSTICE CRAMPTON joins in the foregoing special concurrence.