dissenting:
The argument of counsel for the relator in this case is based on the holding of the court in People v. Zimmer, 252 Ill. 9, in which it was held that when it appears from the petition and return of the writ in habeas corpus proceedings that the court, in entering the judgment upon which the process under which the petitioner for habeas corpus is held, had jurisdiction of the person and the subject matter, then the court to which the petition is addressed has no jurisdiction to enter an order of discharge. That, however, does not apply to this case. The petition for habeas corpus un-. der consideration in this case was, in effect, based on paragraphs 2 and 3 of section 22 of the Habeas Corpus act, (Hurd’s Stat. 1916, p. 1430,) which provide that if it appears that the prisoner is in custody by virtue of process from any court legally constituted he can be discharged for certain causes, among them, where the original imprisonment was lawful yet by some act, omission or event which has subsequently taken place he has become entitled to his discharge, or where the process is defective in some substantial form required by law. People v. Zimmer, supra, was distinguished in Eisen v. Zimmer, 254 Ill. 43, in which the opinion was filed shortly afterward, and in which it was held that the rule that no court upon a writ of habeas corpus can review or overturn the judgment of another court which had jurisdiction of the parties and the subject matter does not preclude an inquiry on habeas corpus into the question whether the judgment of another court has been paid or has otherwise ceased to be operative. In that case an original petition for mandamus was filed in this court to compel the sheriff of Cook county to apprehend Jacob Rubenfeld and confine him in the county jail of Cook county in accordance with the command of a certain execution against the body of said Rubenfeld, notwithstanding that he had been released and discharged on the hearing of a petition for writ of habeas corpus presented in his behalf to one of the judges of the circuit court of Cook county. It was also averred in the petition for mandamus that the judge who had ordered that Rubenfeld be discharged in the habeas corpus proceeding was without jurisdiction to make such order and that the order for his release and discharge was unlawful. Rubenfeld had been imprisoned on an execution issued on a judgment against him and one Kornreich, and it was alleged in the answer to the petition for mandamus, and the court had found on the habeas corpus hearing, that Kornreich had paid the judgment, and that, the judgment being paid, Rubenfeld was properly discharged and released from imprisonment on the petition for habeas corpus. It was held that the circuit judge to whom the petition for writ of habeas corpus was presented had jurisdiction to determine whether Rubenfeld was entitled to be discharged from imprisonment under and by virtue of the writ of execution against his body, under section 22 of the Habeas Corpus act. It was further held that such judge had the undoubted right to hear and determine the question whether the judgment upon which the writ by virtue of which Rubenfeld was being held had been, subsequent to its rendition, paid and satisfied, and if he found it had been paid and satisfied to order the discharge of Rubenfeld, and that the latter could obtain his release, under such circumstances, by the writ of habeas corpus. It was claimed in the petition for mandamus that the judgment against Rubenfeld and Kornreich, as a matter of fact, had not been paid, but this court held that such fact was one which did not affect the question here, the record showing that the circuit judge had jurisdiction to determine that question in the habeas corpus case, and that he had determined it against the relator in the mandamus proceeding and discharged the prisoner.
The decision of this court in the above case is applicable to the facts in the present case. The claim of the petitioner in the habeas corpus proceeding was, and such fact is admitted by the demurrers to the answers of the respondents, that there was pending against him in the county court of Champaign county three separate indictments and an information, all for selling intoxicating liquor in anti-saloon territory ; that it was stipulated and agreed that said cases be consolidated and tried as one case, and said cases were consolidated and tried as one case, and that by reason of such consolidation and such trial as one case there should have been one verdict and one judgment, and that the court having entered one judgment for a fine and imprisonment, which had been satisfied by payment of the fine and serving the prison sentence, the entry of judgment in each of the other cases was void. The case of Kitter v. People, 25 Ill. 27, does not hold that when several indictments are consolidated for trial as one case there should be separate judgments entered. The court held in that case that when several indictments, each of which was a separate case, were merely tried together, the jury should be sworn tO' try each case and should render a verdict in each case and that there should be a separate judgment in each case. If the indict-merits in the case at bar were tried as separate cases, under the holding in Kitter v. People the jury should have been sworn in each case, so there was error either way. In the case under consideration the order consolidating the cases was as follows: “By agreement of the parties hereto this case (No. 2813) is consolidated with cases Nos. 2814, 2815 and 2856.” A like order-was entered in each of the cases referred to in the order. Where several indictments are consolidated for the purpose of trial they are to be considered as one indictment containing several counts, provided the sentence does not exceed the punishment which could be imposed on such indictment. One verdict and one judgment are proper in each case. (Porter v. United States, 91 Fed. Rep. 494; Lucas v. State, (Ala.) 39 So. Rep. 821.) Can there be any question, then, that the respondent Judge Green had full jurisdiction to hear the petition for habeas corpus and decide the matters presented by the petition? If on a petition for habeas corpus it is proper for the court to whom the petition is addressed to decide a question of fact whether or not a judgment has been paid, and such decision will not be interfered with by this court by mandamus, as was held in the case of Eisen v. Zimmer, supra, then it would be equally proper for a court to whom such a petition was addressed to take under consideration and decide, as a matter of law and as provided by the statute, whether by some act, omission or event which had taken place subsequent to the entry of the judgment which had been satisfied the party had become entitled to his discharge, or whether the process was defective in some substantial form required by law. Where a judge has taken such action it is not proper for this court to issue a writ of mandamus to compel him, as a judge, to change his decision, any more than it would be proper, by mandamus, to order a circuit judge to change his decision in any case in which his judgment is final.
Nor has the relator, in my opinion, shown a clear legal right to the relief sought. The foregoing opinion does not hold that the judgments and sentences of imprisonment imposed under the information and the indictments, other than the first, were legal, but holds that even if the judgments and sentences of imprisonment are so indefinite, vague and uncertain as to be void, the judgments entered for the fines and costs of prosecution and the several orders in said judgments committing the defendant named therein to jail until the fines and costs were fully paid, are all valid orders and judgments and binding upon the defendant. This, however, is not correct. It was the opinion of the judge in determining the habeas corpus case, as set up by him in his answer, and for the reasons above stated, that said judgments were void, and also that each of said so-called judgments was so vague and uncertain that it could not be determined when any one of the respective terms of imprisonment began. If the judgments, except in the first case, (No. 2813 so called,) were void they were void for all purposes, including the imposition of fines. If the county court had no jurisdiction or authority to enter the judgments of imprisonment except in one case, (No. 2813,) it had no jurisdiction or authority to enter the judgments for fines in the other cases. Even if the court could properly enter more than one judgment, and if it was the intention of the court to make the sentence under each indictment or count cumulative, the proper manner of entering such a judgment was pointed out by this court in the case of People v. Elliott, 272 Ill. 592, and judgment in the case at bap was not entered in that manner. It cannot be ascertained from the judgments when any term of imprisonment, except that entered in case No. 2813, would begin and end. The sheriff had no mittimus or copy of the judgment which would justify him in holding the petitioner in the habeas corpus proceedings, and does not claim to have been personally present at the judgment of conviction or to have received any directions from the court to. commit the petitioner. In the absence of an express provision in the judgment that the sentence in each case should begin at the expiration of the sentence of imprisonment in the previous case and the description of such case in apt terms, it could not be ascertained from such judgments, at any time after the expiration of the sentence of imprisonment imposed in case No. 2813, whether the period of such sentence was running or not or if it had terminated.
The only ground upon which the writ of mandamus is issued, according to the foregoing opinion, is that the fines and costs were imposed in each case, with a further order that the defendant be imprisoned until such fines and costs were paid. That point was not raised or argued in the briefs of counsel, nor was it raised, so far as is disclosed by this record, in the habeas corpus proceedings. In the recent case of People v. Shattuck, 274 Ill. 491, it was pointed out that under the statute when the court enters a judgment against a defendant in a criminal case for a fine, he may or may not provide, as a part of said judgment, that the defendant be imprisoned until such fine and costs are paid. It was further pointed out in that opinion, and the different sections of the statute applicable thereto are cited, that if a judgment for fine and costs can be collected by execution or payment enforced by imprisonment of the judgment debtor in a criminal case it should be done promptly or not at all. It does not appear that any effort had been made to collect the fines and costs imposed by the county court, and if the officers charged with such matters had done their duty it would have been ascertained by the means provided by statute, prior to the hearing of the petition for habeas corpus, whether such fines and costs could be collected or not. In such cases, where the defendant has no property out of which such fine and costs can be made and such facts are satisfactorily made to appear to the court, after all legal means have been exhausted, it is the duty of the court to discharge him from further imprisonment, according to the provisions of section 17 of division 14 of the Criminal Code, and such discharge operates as a release of such fine and costs. Furthermore, if that question had -been raised in the habeas corpus proceedings it could have been determined there whether the petitioner had any property with which to pay the fines against him, and he could either have paid the fines or could have shown that he was unable to pay them, and that question could have been eliminated had it been raised. I do not think it will be contended that if a defendant in a criminal case imprisoned for non-payment of a fine were to show to the court that imposed the imprisonment that he had no estate or property with which to pay such fine and could not pay it, and if upon a proper showing the court refused to discharge him, a writ of habeas corpus would not lie and he could obtain his discharge where such facts were made to appear.
It seems too plain for argument that in any habeas corpus proceeding where one seeks a discharge under the provisions of section 22 of the Habeas Corpus act, questions of law as well as fact will necessarily arise, and unless in such proceeding the judge to whom the petition is addressed has the power to pass on such questions the object and purpose of the entire Habeas Corpus act will be thwarted. If a judge is powerless to decide whether the petitioner is entitled to discharge for any of the riiatters mentioned in said section 22 then such section is a nullity, and, no matter what judgment has been entered, such judgment must be enforced according to the construction placed thereon by the officer having the prisoner in his custody, and a circuit judge on a petition for habeas corpus cannot interfere. In my opinion such is not the law, and such a construction is entirely contrary to the plain meaning and intent of the Habeas Corpus act.
For the reasons given I think, in any view that is taken of the case, that the action of Judge Green' was entirely right and according to law; that he had jurisdiction of the petition for habeas corpus and exercised such jurisdiction properly. The petitioner in habeas corpus was being held under judgments that were clearly void and he was therefore properly discharged. The writ of mandamus should be denied.