delivered the opinion of the court:
At a former term of this court error was found in the record of the criminal court of Cook county, wherein the plaintiff in error was adjudged to be guilty of the crime of murder and sentenced to be hanged, and such judgment of conviction was reversed and the cause remanded for a new trial. (Marzen v. People, 173 Ill. 43.) The judgment of reversal was entered in this court on the 21st day of April, 1898. The mandate issued out of this court on the 16th day of August, 1898, on the application of the People, and on the 19th day of the same month the mandate was filed in said criminal court of Cook county. At the September term, 1898, of said criminal court (being the first term which convened after the filing of the mandate) the cause was re-instated on the docket of that court and stood for trial at that term. Plaintiff in error entered his motion at said September term to be set at liberty under the provisions of section 623 of the Criminal Code. (1 Starr & Cur. Stat. 1896, p. 1406.) The ground of the motion was that the plaintiff in error had not been placed on trial within the term of four months from the entry of the judgment of reversal in this court, one or more terms of said criminal court having intervened. The motion was overruled, and the plaintiff in error, upon a trial before the court and a jury, was adjudged guilty of the crime of murder and sentenced to be confined in the penitentiary for a period of thirty years. He prosecutes this writ of error to secure a reversal of said judgment of conviction.
It is first urged the court erred in overruling the motion to set the plaintiff in error at liberty. When the first judgment of conviction was entered against plaintiff in error in the said criminal court he was confined on this charge in the county jail of Cook county. A supersedeas was granted and he was kept in the jail during the pendency of the writ of error in this court, and was so imprisoned when the judgment of reversal was entered, and so remained in imprisonment and was so in jail at the said September term of said criminal court, when his motion to be discharged was entered. At least three terms of said criminal court were held after the judgment of reversal in this court and prior to the said September term of the criminal court. His insistence is, that within the meaning of said section 623 of the Criminal Code it is to be regarded he was committed to said jail for said criminal offense on the 21st day of April, 1898, on which day the judgment of reversal was entered in this court, and that as he had not been placed on trial at some term of the criminal court commencing within four months after said date of April 21, and had not himself, as he insisted, brought about the failure to bring his case to trial, nor had such failure resulted because of a continuance allowed to the People in order to procure evidence oh the part of the prosecution, under the operation of the provisions of said section 623 he was entitled to be set at liberty, and it was error to refuse or deny his motion for that relief, entered at the said September term of said court.
The allowance of the writof error to test the legality • of the sentence of death pronounced against the plaintiff in error, the service of the writ and the order making it operate as a supersedeas, deprived the trial court of the power and authority to act or proceed further in the cause until the determination of the writ of error. (Perteet v. People, 70 Ill. 171.) The official mode of advising the trial court of the action of this court in the determination of the writ of error is the mandate to be issued out of this court for that purpose. The writ of error operated to stay all further action in the trial court,—to suspend the power of the trial court to force the plaintiff in error to trial, even after the judgment of reversal had been entered in this court, until the mandate from this court should be filed in the trial court. (13 Ency. of Pl. & Pr. 837.) The fact the court might lawfully have tried the plaintiff in error without a mandate if both the plaintiff in error and the People would have voluntarily submitted the cause for trial without this official evidence of the decision of this court, as we held in Perteet v. People, supra, might lawfully be done, need not be further adverted to than to say no such waiver occurred in this cause. The provisions of said section 623 could, therefore, have no application to the delay resulting from the pendency of the writ of error in this court. In the absence of the voluntary submission of the cause by the parties, the production of the mandate of this court in the trial court was necessary to authorize the trial court to proceed to a new trial of the cause. Either the plaintiff in error or the-People could have procured the mandate to issue. (13 Ency. of Pl. & Pr. 840.) It was the act of the plaintiff in error in procuring the removal of the cause by writ of error which suspended the power and authority of the trial court to act in the cause, and if he desired that power and authority to be revived in order that the beneficial operation of the provisions of said section 623 should become effective in his behalf, he could have caused the trial court to be officially notified that the restraint on its power and authority had ceased,— that is, could have procured the mandate to be issued from this court upon the record which he had brought to this court and-had such mandate filed in the trial court. Until so officially notified the trial court was powerless to force the plaintiff in error to proceed to a trial of the cause, and the provisions of said section 623 remained likewise in. abeyance.
The provisions of section nine (9) of article two (2) of the constitution of 1870, which guarantees a person accused of crime a speedy public trial, has no reference to the delay caused by a writ of error prosecuted by such person out of the Supreme Court, but such guaranty relates to the prosecution of the cause in the trial court. The plaintiff in a writ of error in a criminal cause is prosecuting a suit to reverse a judgment by which he was convicted, and the constitutional provision guaranteeing a speedy trial has no application while the cause is pending on a writ of error in the Supreme Court. (Fielden v. People, 128 Ill. 595.) The plaintiff in error was not denied any right to which he was entitled under the constitution or by the provisions of said section 623. It was not error to overrule his motion to be set at liberty.
In the motion for a new trial it was alleged as one ground of the motion that the jury were allowed to separate without the consent of the defendant or his counsel. The general rule that on grounds of public policy a juror will not be heard to impeach his verdict, required the court should exclude from consideration the affidavits of the members of the panel, offered in support of this attack upon the verdict. (Sanitary District of Chicago v. Cullerton, 147 Ill. 385; 14 Ency. of PI. & Pr. 905.) Another affidavit—that of one of the counsel for the plaintiff in error—was presented. But this affiant could only speak on the point in question from information, and belief. Mere hearsay is not admissible. (14 Ency. of PI. & Pr. 904.) Moreover, the information of the affiant was but to the effect that during the course of the hearing of the cause, and before the submission thereof to the jury for decision, one member of the panel became ill and was left in a room occupied by the jury at a hotel while the other members of the panel were allowed, in charge of an officer, to walk about for exercise, and that the sick juror was visited and treated by physicians, and that his wife and a Mrs. Stock were permitted to see and talk with him. The affiant did not negative, even upon information or belief, that the juror was attended during all the time by a sworn officer, or assert or even suggest that anything improper or prejudicial to the cause of the plaintiff in error occurred, or that the plaintiff in error or his counsel did not know of all that of which they now complain, before the cause was submitted to the jury. For all that appeared from this affidavit, (or from any of the affidavits, for that matter,) the alleged irregularities in the care and custody of the jury were only such as were necessarily and properly resorted to in relieving the suffering of the juror, who was but temporarily ill. In the absence of any showing or just inference of prejudice to the defendant, the mere fact the jurors were not at all times kept together and that other persons were allowed to speak to them is not sufficient, within itself, to set aside a verdict otherwise clearly right. (Miller v. People, 39 Ill. 457; Adams v. People, 47 id. 376; 17 Am. & Eng. Ency. of Law,-2d ed.-pp. 1221, 1222.) There are no other errors assigned.
The judgment of the criminal court is affirmed.
Judgment affirmed.