# People v. King > Illinois Supreme Court · November 18, 1953 · 1 Ill. 2d 496 URL: https://www.frixlaw.com/law-library/cases/9745420 ## Case - **Full name:** The People of the State of Illinois, Defendant in Error, vs. Percy King, Plaintiff in Error - **Court:** Illinois Supreme Court - **Decided:** November 18, 1953 - **Citations:** 1 Ill. 2d 496; 116 N.E.2d 623; 1953 Ill. LEXIS 444 - **Precedential status:** Published - **Opinion:** Concurrence by Maxwell - **Judges:** Maxwell, Per Curiam - **Cited by:** 17 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9745420 ## Opinion text Mr. Justice Maxwell, specially concurring: I concur in this opinion as to cause numbered 32754, and concur in the result reached in causes numbered 32868 and 32869 but cannot agree with the reason, or lack of reason, assigned for affirming the sentences in the two latter cases. In People v. Westbrook, 411 Ill. 301 , this court held a “life to life” sentence invalid because “the legislature intended by sections 1 and 2 of the Sentence and Parole Act to require that definite sentences be imposed for the four crimes specifically mentioned in section 1, and that indeterminate sentences be imposed for all other crimes. [Citation] That intention would be nullified by the construction advanced by the People, which would convert the sharply drawn legislative distinction between definite and indeterminate sentences into an empty formula of words.” The effect of this ruling is to make an indeterminate sentence in such cases mandatory, a sentence which is not indeterminate void, and creates in the prisoner a legal right to an indeterminate sentence which the courts will enforce. If a prisoner has a legal right to an indeterminate sentence I cannot agree with the court’s affirming the sentences in the instant case. The prisoner’s contention that a sentence of 199 years to life is equivalent to a life to life sentence is, to me, irrefutable. If “life to life” is void because not indeterminate, 199 years to life is void for the same reason. I can see neither justice nor reason in enforcing a legal right to an indeterminate sentence in one case and denying it in the other. In my opinion if the Westbrook case is the law of this State, King is denied equal protection of the law. In the Westbrook case the life to life sentence was void because it nullified the intention of the legislature to require indeterminate sentences. Can that intention be more effectively nullified than is done here by the court just refusing to consider whether the sentences are or are not indeterminate? The law in this State now is, as pronounced in the Westbrook and King cases, that a sentence of life to life, although it is within the literal wording of the statute, is void because it is not indeterminate; but a sentence of 199 years to life is valid because it is within the literal wording of the statute, and being within the wording of the statute, the court will not consider whether it is indeterminate or not. This creates an enigma which I cannot understand. I would affirm the sentences of 199 years to life in the instant case for the simple reason that, as so frequently stated by this court, a sentence under the Parole Act is a valid legal sentence for the maximum term, and so long as that maximum is within the limits fixed by law there is nothing about which the prisoner can complain. The Parole Act, prior to the Westbrook case, was always considered as an act of comity and grace, extended by the State at its discretion to promote good prison government and discipline, and not as an act which created a legal right in a prisoner to a sentence which would guarantee him an opportunity for parole. The legal sentence for armed robbery is contained in and is a part of the section of the Criminal Code which defines the crime. (Ill. Rev. Stat. 1953, chap. 38, par. 501; Jones Ann. Stat. 37 459.) The legislature there fixed the penalty at imprisonment in the penitentiary “for any term of years not less than one year or for life.” This legal sentence, regardless of the Parole Act, automatically attaches to every judgment of guilty of the offense and is read into every sentence which may be pronounced by the court. (People ex rel. Ewald v. Montgomery, 377 Ill. 241 ; People v. Brown, 389 Ill. 202 .) This court has always held that every sentence under the Parole Act is a valid legal sentence for the maximum term fixed by law for the offense involved (People v. Webster, 362 Ill. 226 ; People v. Connors, 291 Ill. 614 ,) and consequently every sentence for armed robbery is a valid sentence for life or, since the 1943 amendment of the Parole Act, for the maximum fixed by the court within the legal limit, if the court elects to fix such maximum. (People v. Brown, 389 Ill. 202 .) Any provisions of the Parole Act for termination of this sentence prior to service of the maximum term are concessions of comity and grace, granted at the discretion of the executive under authority conferred by the legislature, for the purpose of attaining good prison government and discipline. These clemency provisions of the Parole Act being discretionary, a prisoner has no legal right to such benefits which the courts will enforce. (People v. Thompson, 381 Ill. 71 .) Once sentence has been pronounced, so far as the courts are concerned, the prisoner has no legal right to enforce until he has served the maximum sentence. (People v. Connors, 291 Ill. 614 ; Uryga v. Ragen, 181 Fed. 2d 660.) The only right which is vested in a prisoner by the Parole Act is that right which is vested in every person in all our statutes, civil or criminal, that the benefits of a statute shall not be denied any person by the arbitrary action of an administrative official. People ex rel. Day v. Lewis, 376 Ill. 509 . In People v. Brown, 389 Ill. 202 , the prisoner, upon conviction of burglary and larceny, was sentenced for a term of one year to" life, the penalty fixed by the Criminal Code. The prisoner contended the court had no jurisdiction to impose such sentence as the Parole Act required the court to fix a minimum and maximum sentence. This court rejected that contention, holding that the Parole Act did not require the fixing of a minimum and maximum different from the penalty fixed by law, “though it may do so within the limitations provided in the act.” In People v. Burnett, 394 Ill. 420 , the 1943 amendment was attacked in that it amended the penalties fixed by law. We there stated that the court, in exercising its discretion in fixing the minimum and maximum time to be served, was engaged in a judicial act determining the appropriate measure of punishment, and that the law authorizing this pertained to the “manner of sentencing” and was not intended to amend the penalty which the legislature had prescribed. It appears therefore that the only change in the act made by the 1943 amendment is to give the courts the discretionary authority to fix a minimum and maximum time of service, within the statutory limitations, which is binding upon the executive authorities in granting parole. The legal sentence is still a valid sentence for the maximum provided by law or, if the trial court exercises its discretion, for the maximum fixed by the court. The fixing of any minimum sentence, so long as it is within the limitations fixed by law, does not change or alter the prisoner’s legal sentence in any manner but merely fixes the minimum time of service before the prisoner can be eligible for parole. This is not a part of his legal sentence, he has no legal right in the fixing of such minimum, and consequently cannot complain of the court’s failure to fix a minimum or the court fixing any minimum within the statutory limitations. The language of our statute is simple and clear. When this is true there is no need to go beyond the literal wording of the statute or to read into it something that is not there. The only limitation upon the fixing of a minimum sentence is that it shall not be less than the minimum fixed by law. Why should we read into this simple and clear provision the further requirement that such minimum shall be fixed at less than the maximum when the legislature did not so provide? The only excuse for doing so is the unfortunate use of the term ‘indeterminate’ in the statute and applying that term to the sentence rather than to the period of incarceration to which it actually applies. I do not believe the legislature intended by the use of that term to require all sentences under section 2 to be such that the prisoner is guaranteed or has a legal right to a sentence which will actually be indeterminate. To fix a minimum term which will actually be indeterminate is a practical impossibility. Any minimum may exceed the life of the prisoner. Or to fix the minimum at a term which would ordinarily be less than the life of the prisoner would involve the courts in a morass of speculative evidence as to each prisoner’s life expectancy and result in the fixing of a minimum penalty determined by the prisoner’s' ability to pay. Such criteria would be wholly foreign and repugnant to our constitutional guarantees and sense of justice. Obviously, the fixing of any minimum cannot create an indeterminate sentence. On the other hand our Parole Act as it is applied vests power in the executive authorities to make every sentence indeterminate. In my opinion the sentences in the Westbrook case and in the instant case are valid legal sentences for life imprisonment for the crime of armed robbery. Neither prisoner had a legal right to complain in regard to the fixing of the minimum in such sentences where there was no allegation that he had been arbitrarily denied the discretionary benefits of the Parole Act, and consequently neither had a cause of action. The writs of error in both cases should have been dismissed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9745420. Public record. Not legal advice.