Jurisdictional Statement — Leemon v. Illinois

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SUPREME COURT OF THE UNITED STATES

No. 75-5581

PAUL LEEMON, B8R..,

Appellant,

Vs.

PEOPLE OF THE STATE OF ILLINOIS,

Appellee.

JURISDICTIONAL STATEMENT

OF APPELLANT

PREE & PREE, ATTORNEYS

EDWARD G. PREE, and

MICHAEL W. HOGAN

904-5 Myers Bidg.

Springfield, Illinois 62701

Attorneys for Appellant

eg SCHNEPP & BARNES PRINTERS, INC., SPRINGFIELD, ILL.

JURISDICTIONAL STATEMENT

INDEX

Manuscript Cover

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Statement of Jurisdictional Grounds ..............

Questions Presented in this Appeal ...............

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Grounds for Plenary Jurisdiction in State Court

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Copy of Lower Court Opinions ...................

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Authorities Cited

(a) Cases

Dahnke-Walker Milling Co. v. Bondurant, 257

IEE oh th eka caneksde ne easess

Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct.

1713, 20 L. Ed. 2d 491 (1968) ..............

George v. Illinois, 167 Ill. 447, 47 N.E. 741

EE eaee eee hee alee i less eae bachda baltic o%

Johnson v. Florida, 391 U.S. 596, 88 S. Ct. 1713,

JS § Ff: eer re ror

People v. Hairston, 46 Ill. 2d 348, 263 N.E.

DD ee ehadeckin Vi tedeieedectinuntents

RS eRe ee Oe

Sealfon v. United States, 332 U.S. 575, 578, 68

S. Ct. 237, 92 L. Ed. 180 (1948) .............

i

INDEX

Page

Singer v. United States, 380 U.S. 24, 85 S. Ct.

783, 13 L. Ed. 2d 630 (1965) ................ 11

State v. Leemon, 28 Ill. App. 3d 541, 328 N.E.

EE as Re oe Re 1,9

State v. Leemon, #44719 (9/25/75) Ill. S. Ct... 1,29

Twining v. New Jersey, 211 U.S. 78, 99 8, Ct.

SEG Gs OO GUE ce ccnccscceveccossccs 11

United States v. Vastine, 363 F. 2d 853, 855

es EE os Gk vos onbes ob cenbesceeees 11

Williams v. Florida, 399 U.S. 78, 90 8. Ct.

1893, 26 L. Ed. 2d 446 (1970) ............... 2

Witherspoon v. Illinois, 391 U.S. 510, 88 8. Ct.

1770, 20 L. Ed. 2d 776 (1968) ................ 14

(b) Statutes Cited

United States Constitution

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pS eT er 3, 4

BOE, 66 0.0 006640000006 i ecedons 3, 4, 12

65 bck 0bsds vesdesdsadsdous 3, 4

Amendment Fourteenth .................55 3, 4, 13

United States Code, Title 28, Section 1257 (2) .. 14

Illinois Constitution

ED 6.6 bh b060s Gna betdesedaces 3, 4,15

Article I, Section 10 .............. err ery 3, 4, 15

Be NEED 6 bss tice dedcdecdiesecee 3, 4,15

Illinois Revised Statutes

Chapter 38, Section 8-2(a) ................. 3, 15

Chapter 38, Section 19-1(A)................ 3, 16

(c) Other Authorities

Comment, 60 Colum. L. Rev. 999, 1002-04 n. 18

SE 4ahue4nnegen bed odndeeedeevcesuniene 11

Page

Hall, Principles of Criminal Law 19, 59 (1947) .. 12

Note, 1961 Duke L.J. 133, 184-35 .............. 12

I Working Papers of Natl. Comm. on l.eform

Wy EE 66 50 6-00440 64.5060 650596466 12

Short Record

Index of Documents Transmitted ................. 24

Notice, affidavit and motion for enlargement of

time to file petition for leave to appeal ........... 25-28

Petition For Leave to Appeal ............0..ee0ee 24

Mandate of Supreme Court of State of Illinois ...... 28-29

Notice, motion of petitioner and Order staying

EE ee dae Cue Sed elke Vas 6 oe eKhRGkes 30-33

Notice of Appeal to Supreme Court of United States 33

Notice, motion and affidavit for enlargement of

time to file Notice of Appeal .................. 34

Order of January 16, 1976 denying motion to

enlarge time for Petitioner to file Notice of

| | PPP OTPTTIT TTT TTT TTT TT TTT TT TTT Tee 39-40

I oe cos ous cpamdiondatieeedearaawnee sone 25

Back Cover of Manuscript

SUPREME COURT OF THE UNITED STATES

No.

PAUL LEEMON, SR.,

Appellant,

vs.

PEOPLE OF THE STATE OF ILLINOIS,

| Appellee.

JURISDICTIONAL STATEMENT

OF APPELLANT

APPEAL FROM THE SUPREME COURT OF ILLINOIS

A.

This appeal arises from two decisions rendered in the

Appellate Courts of the State of Illinois, being entitled

‘*People of the State of Illinois v. Paul Leemon, Sr.,’’ first

heard and decided in the Illinois Appellate Court, Fourth

Judicial District, Springfield, Illinois, and appearing in

28 Il). App. 3d 541, 328 N.E. 2d 645 (Ill. App. 4th D. 1975),

and the second opinion being People v. Leemon, No. 47719,

Petition For Leave To Appeal, decided per curiam on Sep-

tember 25, 1975, denying said Petition For Leave To Appeal.

Thereafter, the mandate in said cause was stayed pending

perfection of this appeal, and so has not been officially

published. A copy of both opinions is appended hereto in

conformance with subparagraph (H).

2

B.

The jurisdiction of this cause is properly lodged in the

United States Supreme Court pursuant to Title 28, See-

tion 1257 (2), as Appellant, Paul Leemon, Sr., seeks direct

review of a criminal conviction in the Illinois Courts for

the crime of conspiracy to commit burglary, which convie

tion was affirmed by the Illinois Appellate Court, Fourth

Judicial District, Springfield, Illinois, on May 22, 1975, and

affirmed without opinion on September 25, 1975, by the

Illinois Supreme Court, and thereafter Notice of Appeal

filed on January 13, 1976.

No application for rehearing was filed with the Illinois

Supreme Court, and the Noticé of -Appeal to the United

States Supreme Court was filed with the Clerk of the Illi-

nois Supreme Court on January 13, 1976, and Notice of

Filing given to the States Attorney on the same date.

The statute conferring jurisdiction of the United States

Supreme Court over this cause is found in Title 28, Section

1257 (2) which reads as follows:

‘‘Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may be

reviewed by the Supreme Court as follows:

CED oo

(2) By appeal, where is drawn in question the validity

of a statute of any state on the ground of its being repug-

nant to the Constitution, treaties or laws of the United

States, and the decision is in favor of its validity.’’

The judicial support for a direct appeal of this cause is

found in Dahnke-Walker Milling Co. v. Bondurant, 257

U.S. 282 (1921); Johnson v. Florida, 391 U.S. 596, 88 S.Ct.

1713, 20 L. Ed.2d 838 (1968); Williams v. Florida, 399

U.S. 78 (1970); Dunean v. Louisiana, 391 U.S. 145, 88 8.Ct.

3

1444, 20 L.Ed2d 491 (1968) and George v. Illinois, 167 Ill.

447, 47 N.E. 741 (1897).

The State Constitution, Article I, Sections 2, 10 and 13

of 1970, and the Illinois Revised Statutes, Chapter 38, Sec-

tions 8-2(a) and 19-1(A) which are appended hereto under

the provisions of subparagraph (h) or appendix hereto,

were called into question based upon Appellant’s conten-

tions that the submission of the two counts of the indict-

ment, one for conspiracy to commit burglary and burglary,

and the subsequent conviction of conspiracy and acquittal

of burglary constituted a legal and logical inconsistency

which denied the Appellant his right to trial by jury, due

process and equal protection under the Fifth, Sixth, Ninth

and Fourteenth Amendments to the United States Con-

stitution.

A short record setting forth the proceedings in the IIli-

nois Supreme Court is likewise appended hereto and made

a part of the appendix filed herewith.

C.

QUESTIONS PRESENTED BY THE APPEAL

1. Is there a direct or implicit guarantee of continuity

and content to a state constitutional guarantee of trial by

jury promulgated in the language of the 5th, 6th, 9th and

14th amendments of the United States Constitution so as

to extend and preserve a state criminal defendant’s right

to trial by jury, burden of proof, presumption of innocence,

freedom from double jeopardy and a legally and logically

inconsistent criminal verdict?

2. Does the Illinois Statute on conspiracy require proof

of an overt act upon the part of the defendant so that ac-

quittal of the substantive offense of burglary also made

implicit a finding on the part of the jury that Appellant

4

did not commit an overt act connected with said offense,

and hence is being punished for status rather than proof

of criminality?

3. Does the Illinois Constitution, Article I, Sections 2,

10 and 13, guarantee to a criminal defendant the right to

a trial by jury which historically embodies a right to a

finding of guilty or not guilty which is neither logically or

legally inconsistent so as to protect the rights of Appel-

lant to proof beyond a reasonable doubt, and a continuing

presumption of innocence which cannot be suspended by

the judiciary or the legislature in view of the Illinois

Constitution?

4. Does the language of the Fifth, Sixth, Ninth and

Fourteenth Amendments to the United States Constitution

require the states to apply the provisions of their respective

state constitutions equally to all citizens in the trial of

criminal cases by jury so that fundamental rights cannot

be infringed upon by a judicial device of construction that

the prohibition against double jeopardy is satisfied by non-

imposition of sentence after submission of inconsistent

counts and the return of inconsistent verdicts by the jury

in trials involving inchoate and choate offenses arising

out of the same fact situation?

5. Did the Illinois revision of its criminal code defining

the crime of conspiracy operate to establish a separate,

substantive offense of conspiracy, or did the failure of said

revision to delineate the doctrine of merger cause the crime

of conspiracy to operate under the doctrine of common law

merger and thereby deny Appellant his historical right

to trial by jury under Illinois law?

D.

STATEMENT OF THE CASE

Sometime on the morning of July 1, 1973, the premises

5

of Mabel Kramer, located near Mason City, Illinois, were

burglarized. The evidence is not consistent, but tends to

indicate the burglary occurred about 10:00 or 10:15 a.m.

(R 8, A 24).

Two of the three alleged parties responsible for this

offense were apprehended »efore 12:00 noon, within a short

distance from the scene of the crime, having fled from the

house on discovery by the owner, Mabel Kramer, and her

husband, Theodore Kramer (R 11, A 25).

Mr. and Mrs. Kramer had returned home from Church,

to find the door and lock tampered with, and Mr. Kramer

had entered the house (R 8, A 24). On being surprised

during their search and burglary, Donald and Richard Mc-

Cloud, ran from the house into nearby fields (R 9, A 25).

The local police, aided by outside law enforcement person-

nel, airplane and tracking dogs, discovered the defendants,

arrested and took them to the Mason County jail (R 12-13,

23, A 26, 31).

A search for the third person and the vehicle by which

Donald McCloud and Richard McCloud had arrived at the

farm residence was undertaken, for approximately a cae

mile radius of the Kramer residence (R 20, A 30). No

tracks or evidence of a vehicle were found and no third per-

son apprehended on July 1, 1973.

On Monday, the two accused persons, Donald McCloud

and Richard McCloud were released on bail (R 40, A 39).

Sometime thereafter, apparently around July 25, 1973,

Donald McCloud confessed to the burglary and implicated

Richard McCloud and his uncle, the Defendant, Paul Lee-

mon, Sr. (C 22, 23, A 8). The testimony, which closely

tracked the statement of Donald McCloud, tended to estab-

lish a sequence of events linking the Defendant with plan-

ning the crime; planning the commission; physically driv-

6

ing the two accused men to the scene and his presence at

the premises, and leaving the two accused with instructions

for a rendezvous in 15 to 20 minutes up the road from the

Kramer residence (R 35-42; A 36-40).

Pretrial motions were filed by defense counsel attacking

the sufficiency of Count Two of the Indictment, on the

grounds that no crime had been alleged (C 13, A 7, 8);

and that under the provisions of Chapter 38, Section 8-2 (a)

on conspiracy anc Chapter 38, Section 19-1 (a) on burglary,

the inchoate offense of conspiracy merged into the com-

pleted crime and therefore Defendant, Paul Leemon, Sr.,

could not be charged with both offenses (C 10, 11, R 5-7).

At this point, defense counsel urged the possible violations

of the Fifth, Sixth and Fourteenth Amendments of the

United States Constitution as prohibitions to trial of the

two counts, and that it affected the defendant’s rights to

protection from double jeopardy, trom harassment by mul-

tiple prosecutions for one alleged crime arising out of a

single fact situation and that a trial without requirement

of an election by the State on which charge it chose to pro-

ceed upon would violate the Illinois Constitution of 1970,

Article I, Section 2 and 10.

These defense motions were duly heard and considered

by the Trial Judge and denied (C 27, AQ).

Trial commenced on November 13, 1973, before a jury of

twelve persons, and upon both counts of the Indictment

(C 179, A 23).

The State’s evidence was consistent with the earlier state-

ment of Donald McCloud, that a conspiracy to commit bur-

glary was framed by Defendant and Donald McCloud, prior

to July 1, 1973 (C 22, 23, A 8). The parties met at the

DeLuxe Cafe, in Peoria, Illinois, early on July 1, 1973,

(R 36, A 37), made the decision to execute their plans and

7

departed for Mason City, Illinois, in Donald McCloud’s

1973 Ford LTD (R 38, A 37, 38).

Donald McCloud testified that the three persons origin-

ally went to Mason City, to see if Church was out, and

then proceeded to the Kramer residence (R 38, 39, A 38).

He also stated that Leemon tried to open the front door

of the Kramer residence and finding no one home, left in

the auto to be met within 15 to 20 minutes north of the

house (R 38, 39, A 38). Richard McCloud testified that he

(Richard) knocked on the door of the Kramer residence,

and not his uncle, Paul Leemon. (R 31, A 33).

Richard McCloud also testified the car was driven straight

to the Kramer residence; that he tried the door and forced

it open, and informed the jury he had pleaded guilty to

burglary, had been sentenced prior to the instant trial

(R 30-32, A 33-34).

However, Richard McCloud denied the participation of

his uncle, the Defendant, Paul Leemon, Sr., in the planning

or commission of the crime. He denied knowledge of the

name of the third party (R 33-35, A 34-36).

The Defendant testified to his meeting with Donald

McCloud and Richard McCloud early on July 1, 1973, at

the Deluxe Cafe, by reason of taking Richard to meet

Donald (R 53, A 43).

Defendant testified he worked in Peoria on the morning

of July 1, 1973, (R 54, A 43), and that he was without

knowledge as to the location of the Kramer residence and

had not counselled or discussed the commission of the

crime with either Donald or Richard McCloud (R 69, A 48).

The evidence also disclosed that Richard MeCloud lived

at the residence of Defendant; that Donald McCloud had

been reared by Defendant (R 45, 58, 78, A 41, 51).

Defendant’s alibi was the assertion of his presence in

Peoria at or near 10:00 a.m., which was substantiated by

his other witnesses, but largely by one Charles Waller,

who remembered seeing the Defendant using the public

telephone at Western and Howlett (R 100-106, A 58-60).

This was close to the time of the burglary, near to 10:15

or 10:30 a.m.

Defendant’s story was further buttressed by the testi-

mony of Paul Leemon, Jr., (R 91, A 55) and Mrs. Gertrude

Leemon, (R 84, A 53), Defendant’s wife, with regard to

the work done on July 1, 1973, by Paul Leemon, Sr., and

the attempts of Paul Leemon, Sr., to awaken his son, Paul

Leemon, Jr., to assist him with his carpentry work (BR 89,

A 54).

It should be noted that no impeachment was made by the

State of Richard McCloud during his testimony or claim

of surprise by the State; no impeachment or contradiction

by way of rebuttal offered after the testimony of Charles

Waller, the last witness for the defense.

At the close of all the evidence, defense counsel moved

for a directed verdict of acquittal on both counts, and this

motion was denied by the Court (R 123, A 66).

The case was submitted to the jury by the Court on both

Counts of the Indictment, with alternate verdicts. A ver-

dict of guilty of conspiracy but not guilty of burglary was

found, returned, and verdict and judgment entered into

the record. (R 148-159, A 67).

After several continuances, the Court heard the Motion

of defendant to set aside the verdict, for acquittal and in

the alternative for a new trial and the Court overruled

the motion. (R 145-150, A 17-20). Defense counsel again

urged the grounds of merger, double jeopardy and the in-

9

consistency of the verdicts when the substantive crime of

burglary upon which the conspiracy was grounded had been

returned as ‘‘not guilty.’’ Defendant was thereafter given

a presentence hearing in mitigation and aggravation, and

sentenced to three to ten years in the State Penitentiary at

Joliet, Illinois (Cc 137, A 15; R 151-166, A 21).

Defendant filed his Notice of Appeal on January 14,

1974, (C 138, A 15-16), and said cause is now before this

Honorable Court based upon that Notice of Appeal and

the alleged errors committed by the Court during trial.

However, two irregularities occurred during trial. One

Lindsay was excused or did absent himself from the bal-

ance of the jury aud without being accompanied by the

bailiff and without consent on the part of either party.

(C 147, A 18).

The second irregularity occurred during cross-examina-

tion of Charles Waller. When the States Attorney asked

for a short recess, and apparently took the witness to the

Circuit Clerk’s office, and talked to Waller and caused the

witness to use the telephone and talk to some third person.

Waller was thereafter recalled to the stand and finished

his testimony (C 149, A 19).

The Defendant-Appellant, Paul Leemon, Sr., thereafter

raised the same federal constitutional issues as Point ‘‘D”’

of his appellate brief submitted and argued to the Illinois

Appellate Court, Fourth Judicial District, Springfield,

Illinois, specifically referring to the legal inconsistency of

such findings by ‘‘e jury in view, of the facts as developed

in the trial of the cause. (Appl. Brief p. 8, 15-27). These

contentions were disposed of adversely to defendant-appel-

lant in the court’s subsequent opinion, People v. Leemon,

28 Ill. App. 3d 541, 328 N.E. 2nd 645.

The defendant-appellant, Paul Leemon, Sr., again urged

10

the same grounds as Point II of his Petition for Leave to

Appeal before the Illinois Supreme Court, (See App. Brief

p. 14-18), and again these contentions about a subsisting

federal right which abrogated or negated the application

given the Illinois Constitution and Illinois Revised Stat-

utes was rejected sub silento by the Court’s refusal to

grant further proceedings or hearing to defendant-appellant

(See Order of Ill. S.Ct. dated 9/25/75).

Defendant-appellant is now free on $20,000 bond pending

the outcome of his appeal to the United States Supreme

Court.

E.

SUBSTANTIAL NATURE OF FEDERAL QUESTIONS

The issues presented by this appeal are substantial and

justify the exercise of plenary jurisdiction by the United

States Supreme Court based upon the Illinois Supreme

Court’s determination that inconsistent counts in a single

Indictment did not violate the appellant’s right to freedom

from double jeopardy, that the subjection of the defendant

to trial was not the test of double jeopardy, but the sub-

mission to punishment; that the merger of the inchoate

and substantive offense which arose by reason of the proof

at trial was not legally inconsistent necessitating reversal

and/or a new trial; that affirmance of the trial court ver-

dict of guilty of conspiracy but not guilty of burglary was

not a denial of defendant’s Constitutional and statutory

rights to a jury trial and to fundamental concepts of due

process and equal protection.

1. Inconsistent Verdicts

It hardly needs to be stated that the problem of incon-

sistent verdicts is and remains an unsolved problem in

both state and federal law. See People v. Murray, 340 N.E.

2d 186 (ist D. Ill. App. 1975) in which the intermediate

11

appellate court in Illinois finally made the Kierkegaardian

leap of faith to hold both logical and legal inconsistency as

not violative of a defendant’s rights. This opinion presents

the issues very sharply in respect to multiple crimes arising

from the same fact situation, but, of course, does not reach

the thorny issue of choate and inchoate offenses, the nature

of which create a factor of similitude in the estoppel

worked by the implicit findings of the jury by its verdict

of [Yes, you did have the intent and commit an overt act

in furtherance of the crime, and No, you are not guilty of

the substantive offense.] The United States Supreme Court

faced this issue in Duncan v. Louisiana, 391 U.S. 145, by its

discussion of selective incorporation, and this was an in-

apposite resolution of the issue. See Harlan, J., dissenting

on the same grounds as Harlan, J., his grandfather, had

done in Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14,

53 L.Ed 97 (1908), that the Court simply did not reach

fundamentals, and that is, what is the characterization or

guarantee under discussion, not simply by a broad verbali-

zation, but in fact or in its operational nature as both a

logical predicate and a consistent criminal regulation of

immoral, objective, punishable conduct.

If the court is going to use selective incorporation and

the ad hoc approach of Mr. Justice Harlan, then the issue

of Singer v. United States, 380 U.S. 24, is simply not

reached, for the historical content of a right to trial by

jury, or any other federally guaranteed right which bleeds

through the Fourteenth Amendment Due Process and Equal

Protection Clauses inte state law is not the same, and the

measurement of any minimiam standard would have to en-

vision the adoption of the state standard, if this were dif-

ferent from the federal standard historically. See United

States v. Vastine, 363 F.2d 853, 855 (3d Cir. 1966); Com-

ment, 60 Colum. L. Rev. 999, 1002-04 n. 18 (1960); Note,

12

1961 Duke L.J. 133, 134-35. The Singer Case would seem

to imply a cohesive and interrelated ‘‘right’’ to a pre-

characterized trial by jury subsists in Art. III, Section 2

and the Sixth Amendment venue provisions.

2. Double Jeopardy.

The problems in Illinois began with an older opinion,

People v. Hairston, 46 Ill. 2d 348, 263 N.K. 2d 840, in which

the Illinois Court chose to deal with the prohibition against

double jeopardy in situations of multiple crimes arising

from a single transaction by vacating the verdict in one

such offense, and thereby escaping the concept of double

punishment to the accused. This has been an unsatisfac-

tory device, except it provides the prosecution with a shot-

gun approach to prosecution of the criminally accused, and

in the view of defense counsel, a fundamental and signifi-

cant denial of fundamental fairness involved in due process

guarantees. It has an especially raw application in crimes

which approuch punishment for status or association rather

than for an overt act which can be used to predicate a find-

ing of criminality on the part of the accused. See I Work-

ing Papers of the National Commission on Reform of

Federal Criminal Laws, Comment on Basis of Criminal

Liability; Culpability; Causation: Chapter 3; Section 610,

at 105; Hall, Principles of Criminal Law 19, 59 (1947).

The complication of double jeopardy and collateral estop-

pel and their differing historical antecedents in Roman

and Germanic law has left the United States Supreme

Court statements with some ambivalence as to the scope

of the protection against former adjudication and freedom

from harassment, expense and emotional trauma of a

trial as embodied in the Fifth Amendment. The cloak of

immunity to impeach jury verdicts confuses the problem

in the generality of the criminal verdict and the absence

and adequacy of criminal pleadings to frame an issue. See

13

Sealfon v. United States, 332 U.S. 575, 578, 68 S.Ct. 237,

92 L. Ed. 180 (1948). The rationale which accords a sub-

stantive right in the prosecution by the election to charge

an accused by two counts of a single indictment rather than

two individual indictments and hence to avoid the res

judieata holding of the Sealfon Case need hardly be accen-

tuated as fundamentally unfair and a specious device of

a prosecution oriented judicial interpretation.

3. Presumption of Innocence & Burden of Proof.

However inartfully defense counsel may have phrased

his objection to the trial of defendant on the two counts,

one of burglary and the other conspiracy to commit bur-

glary, the proof of one being a lesser included offense, not

by any positive legalism, but the possibility which develops

from the proof at trial and the lack of adequate pleadings

in all criminal trials, the presumptions which beset a crim-

inal trial are unique to and a part of the system of criminal

justice. These arise, not by a label, but from the operational

and totally pragmatic nature of criminal trials, in which

the issue formulation is left to jury instructions. This

means that a defendant is or should be entitled to a full

and adequate guarantee of the right to trial by jury, which

cannot by its very nature, change without being a basic

change from any fixed, historical definition derived from a

study of early cases and constitutional provisions.

Defense counsel made his presentation of these issues to

the trial court and to both the intermediate and appellate

and supreme court of the State of Illinois. In affirming the

trial court judgment of conviction, the appellate courts have

had to construe the validity of state constitutional and

statutory provisions as against a claimed federal right,

which upheld the validity of the state laws by their appli-

cation to the facts, and so held the application not to be a

denial of a federally guaranteed right under the Fourteenth

14

Amendment. A close re-examination of Duncan v. Louisiana,

391 U.S. 145, 88 §.Ct. 1444, 20 L. Ed. 2d 491 (1968), and

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.

Ed2d 776 (1968), renders this a case properly within the

rulings and characterization formulated in Dahnke-Walker

Milling Co. v. Bondurant, 257 U.S. 282 (1921), whether we

discuss the denial of such rights under a broad guarantee

such as the right to trial by jury, or seek to invoke the

nominate, single issues of such traditional guarantees. |

In either case, the trial court and Illinois Appellate Courts

were specifically asked to rule on the claimed validity of

state statutes alleged to infringe upon the federal rights of

Appellant, and in so doing, the federal question was both

directly and by implication a part of their findings, and

Title 28, Section 1257 (2) affords the right of appeal to

these state court decisions.

Respectfully submitted,

PREE & PREE, ATTORNEYS

EDWARD G. PREE, and

MICHAEL W. HOGAN

904-5 Myers Bidg.

Springfield, Illinois 62701

Attorneys for Appellant

15

H.

APPENDIX

ILLINOIS CONSTITUTION OF 1970

Article 1, Section 2

Due Process and Equal Protection

No person shall be deprived of life, liberty or property

without due process of law nor be denied the equal protec-

tion of the laws.

Article 1, Section 10

Self-Incrimination and Double Jeopardy

No person shall be compelled in a criminal case to give

evidence against himself nor be twice put in jeopardy for

the same offense.

Article 1, Section 13

Trial by Jury

The right of trial by jury as heretofore enjoyed shall

remain inviolate.

ILLINOIS REVISED STATUTES

Chapter 38, Section 8-2 Conspiracy

(a) Elements of the offense.

A person commits conspiracy when, with intent that an

offense be committed, he agrees with another to the com-

mission of that offense. No person may be convicted of con-

spiracy to commit an offense unless an act in furtherance

of such agreement is alleged and proved to have been com-

mitted by him or by a co-conspirator.

16

(b) Co-conspirators.

It shall not be a defense to conspiracy that the person or

persons with whom the accused is alleged to have conspired:

(1) Has not been prosecuted or convicted, or

(2) Has been convicted of a different offense, or

(3) Is not amenable to justice, or

(4) Has been acquitted, or

(5) Lacked the capacity to commit an offense.

(c) Sentence

A person convicted of conspiracy may be fined or im-

prisoned or both not to exceed the maximum provided for

the offense which is the object of the conspiracy, except

that if the object is an offense prohibited by Sections 11-15,

11-16, 11-17, 11-19, 24-1(a) (1), 24-1(a) (7), 28-1, 28-3 and 28-4

of the ‘‘Criminal Code of 1961,’’ approved July 28, 1961,

as amended or prohibited by Sections 401, 402, 403, 404,

406(b) or 407 of the ‘‘Illinois Controlled Substances Act,’”

enacted by the 77th General Assembly, or an inchoate of-

fense related to any of the aforesaid principal offenses the

person convicted may be sentenced for a Class 3 felony

however, conspiracy to commit treason, murder, or aggra-

vated kidnaping shall not be sentenced in excess of a Class 2

felony, and conspiracy to commit any offense other than

those specified in this subsection shall not be sentenced in

excess of a Class 4 felony. Amended by P.A. 77-2638,

Section 1, eff. January 1, 1973; P.A. 78-255, Section 61, eff.

October 1, 1973.

Chapter 38, Section 19-1 Burglary

(a) A person commits burglary when without authority

he knowingly enters or without authority remains within

a building, honsetrailer, watercraft, aircraft, motor vehicle

as defined in the Illinois Vehicle Code, railroad car, or any

part thereof, with intent to commit therein a felony or theft.

i

17

This offense shall not include the offenses set out in Sec-

tion 4-102 of the Illinois Vehicle Code.

(b) Sentence

Burglary is a Class 2 felony.

Amended by P.A. 77-906, Section 1, eff. Aug. 17, 1971;

P.A. 77-2638, Section 1, eff. Jan. 1, 1973, P.A. 78-255, Seec-

tion 61, eff. Oct. 1, 1973.

18

STATE OF ILLINOIS

APPELLATE COURT

FOURTH DISTRICT

General No. 12562 Agenda No. 75-86

THE PEOPLE OF THE STATE )

OF ILLINOIS, Appeal from

Plaintiff-Appellee Cirenit Court

v. Mason County

PAUL LEEMON, SR., No. 73-CF-31

Defendant-Appellant |

Mr. JUSTICE GREEN delivered the opinion of the court:

Defendant Paul Leemon, Sr. was charged in the Circuit

Court of Mason County in a 2 count indictment with the

offenses of conspiracy to commit the burglary of, and the

burglary of, the Mabel Kramer residence in that county on

July 1, 1973. After a trial by jury he was found guilty of

the conspiracy charge and not guilty as to the burglary

charge and sentenced to 3-10 years imprisonment. He

appeals.

Defendant’s nephews Donald McCloud and Richard Me-

Cloud were apprehended in a field near the Kramer house

on July 1, 1973, and have each pleaded guilty to the bur-

glary. At the time of the trial, Richard had received a 3-5

year sentence, and Donald was awaiting sentencing. De-

fendant does not contest the sufficiency of the evidence to

prove that the burglary was committed but maintains that

the evidence was insufficient to prove beyond a reasonable

doubt that he was guilty of a conspiracy to commit the

burglary.

19

Donald McCloud was the principal witness for the People.

He testified that he, his brother Richard, and the defendant

met at the latter’s house in Peoria a few days prior to the

burglary, that they discussed information which they had

concerning the presence of money in the Kramer residence,

and that they decided to commit the burglary. He stated

that early in the morning of July 1, 1973, he met his brother

and the defendant at the Deluxe Cafe in Peoria and that

they rode from there to Mason County with the defendant

driving. This car belonged to Donald’s employer and Don-

ald had permission to use it. He further stated that upon

arrival at the Kramer residence defendant got out of the

car and knocked on the door. Since there was no one hoine,

he and his brother Richard entered the house, but the de-

fendant left with the understanding that the defendant

would pick them up in fifteen minutes two blocks away.

Donald’s testimony was somewhat corroborated by his wife

who testified, without objection, that at about 6 p.m. on

the date in question defendant’s son brought Donald’s car

back to her, handed her the keys, and stated that defendant

had told him to return the car.

Richard McCloud also testified for the state. His testi-

mony was that the car in question was a demonstrator bor-

rowed from the place where his brother worked, that he,

Donald, and a third person drove down to Mason County

from Peoria, but that he could not remember who the other

person was. On cross-examination he stated that he had

never seen the third person before and that the third person

could not have been the defendant because ‘‘I’ve never

stole with him.’’ None of the other evidence presented in

the People’s case in chief bore upon the involvement of the

defendant.

Defendant testified that on the morning in question he

took Richard to meet Donald at the Deluxe Cafe and had

20

coffee with them but returned home. He then woke his son,

Paul, Jr. and asked him to help complete some carpentry

work at the residence of some people named Nolanburg.

Defendant said that he left before his son arose. He said

that while at Nolanburg’s he had a conversation with Har-

riet Renigar and that he saw a Mr. Schaffer at his home

near the Nolanburg residence. He also said that while he

was in a phone booth near the Nolanburg residence, he

waved to Charles Waller who was driving by. Defendant

testified that he had had arguments with Donald McCloud

about money owed to defendant’s wife. Donald had denied

that such arguments occurred. Defendant admitted that

he had been convicted of burglary in Tazewell County

in 1966.

Defendant’s wife testified that defendant left home about

8 a.m. on July 1, 1973, and returned home at approximately

one o’clock for lunch. She further stated that he called her

twice during the period to awaken Paul, Jr. and that Paul,

Jr. finally left at about 11:00. Paul, Jr. testified that on

the morning in question he got up at 10:30 and went to help

his father at the Nolanburg residence. He stated that after

completing the job the two returned home at approximately

1:30 in the afternoon. He stated that he picked up Donald

McCloud’s car at 6:00 after receiving an anonymous call

and drove it to the McCloud residence.

Charles Waller testified that about 10:30 in the morning

of that day he saw defendant at a phone booth in Peoria

and honked at him. On cross-examination Waller admitted

that shortly before the trial he talked with the defendant,

that he had first reealled the time this oceurred in a con-

versation he had with the defendant shortly before the trial,

but that tte remembered the day because he was going to

his mother’s house to discuss plans for the 4th of July.

Helen Renigar was not called as a witness, and George

21

Schaffer testified that he was not at home on the day in

question.

The Criminal Code of 1961 provides in part:

‘*EKlements of the offense. A person commits conspir-

acy when, with intent that an offense be committed,

he agrees with another to the commission of that of-

fense. No person may be convicted of conspiracy to

commit an offense unless an act in furtherance of such

agreement is alleged and proved to have been com-

mitted by him or by a co-conspirator.’’ (Ill. Rev. Stat.

1973, ch. 38, par. 8-2(a)).

The only substantive evidence that defendant agreed to

the commission of the burglary is the testimony of Donald

McCloud, an accomplice. The uncorroborated testimony

of such a witness is received with caution but, if strong

enough, is sufficient to sustain a conviction (People v.

Mentola, 47 Ill. 2d 579, 268 N.E. 2d 8; People v. Burnett,

13 Ill. App. 3d 931, 301 N.E. 2d 600). This is true even

though his testimony is colored by either expectations of

leniency (People v. Nettles, 107 Ill. App. 2d 143, 246 N.E.

2d 29) or malice towards the accused (People v. Wollenberg,

37 Ill. 2d 480, 229 N.E. 2d 490).

Here, most evidence contrary to the testimony of the

accomplice is subject to infirmity. The defendant’s testi-

mony was contradicted by George Schaffer and weakened

by Charles Waller’s admission that he first had reason to

remember the day of the occurrence only shortly before

the trial. Richard McCloud’s testimony was rendered un-

certain by his inability to remember who the third person

was and by his failure to state when he and Donald left

the company of defendant who admitted he was with them

at the Deluxe Cafe in Peoria on the morning of the burglary.

The evidence was, therefore, sufficient for the jury to have

believed beyond a reasonable doubt that the defendant was

guilty.

Defendant next contends that the court should have

granted his pre-trial motions to dismiss the conspiracy

count. These motions were made on the theory that the

inchoate offense of conspiracy to commit burglary would

merge into the burglary if that offense was actually com-

mitted. There is no merit to this argument. Ill. Rev. Stat.

1973, ch. 38, par. 8-5 provides that:

‘*No person shall he convicted of both the inchoate and

the principal offense.’’

The committee comments to that section state:

‘*. . .. By virtue of the definition of ‘conviction,’

this means that prosecution may be had for both of-

fenses in the same trial (by separate counts) or sepa-

rately. But after proceeding finally to verdict of guilty

on one or both, the judgment of conviction and sentence

shall be entered on only one offense’’ (emphasis

added).

This rule has been followed in People v. Brouilette, 92 Ill.

App. 2d 168, 236 N.E. 2d 12 and People v. DeStefano, 85 Ill.

App. 2d 274, 229 N.E. 2d 325. This was also the rule prior

to the Criminal Code of 1961 (People v. Robertson, 284 Il.

620, 120 N.E. 539).

In the case under consideration the court did not give

the jury any opportunity to find defendant guilty of both

the burglary and the conspiracy. Without objection by

defendant or his tender of any forms of verdict, the court

submitted forms of verdicts to the jury that would allow

them to find defendant either not guilty of all charges,

guilty of burglary but not guilty of conspiracy, or guilty of

conspiracy but not guilty of burglary. Defendant contends,

nevertheless, that the conviction should be reversed because

verdicts finding him guilty of conspiracy but not guilty of

burglary were inconsistent. Defendant has waived this

issue, however, because of his failure to object to the forms

23

of verdict, People v. Jones, — Tl. 2d _., __ N.E. 2d — (Nos.

45631, 45633; filed March 24, 1975). Furthermore, since

the charge of conspiracy involved elements different from

those of burglary, the verdicts, although logically incon-

sistent under the proof, were not inconsistent at law and

would not give rise to reversal (People v. Hairston, 46 Ill.

2d 348, 263 N.E. 2d 840).

Defendant also complains of two alleged improprieties

which he raised for the first time in the post-trial motion.

These charges are not supported by affidavit. One is that

a juror was allowed to leave the courthouse during a recess.

The record does not indicate that the jury had been seques-

tered at that time. The other charge is that during a recess,

the state’s attorney had a conversation with a defense wit-

ness. Defense counsel admitted that he had no evidence

to support his allegation. Clearly no error was committed

with regard to these two allegations.

The judgment is affirmed.

AFFIRMED.

TRAPP, P. J., and CRAVEN, J., concur.

I.

No application for rehearing was made in either appel-

late court in Illinois, and the time for such has now expired.

24

J

SHORT RECORD APPENDED

FROM ILLINOIS SUPREME COURT

APPEAL FROM THE

SUPREME COURT OF ILLINOIS

No. 47719

THE PEOPLE OF THE STATE) Petition for

OF ILLINOIS, Leave to Appeal

Respondent | from Appellate Court

Vv. Fourth District

PAUL LEEMON, SR., 12562

Petitioner : 73-CF-31

INDEX OF DOCUMENTS TRANSMITTED TO THE

SUPREME COURT OF THE UNITED STATES

1. Notice, affidavit, motion by petitioner and order of

Chief Justice Robert C. Underwood filed July 22, 1975,

extending the time for filing petition for leave to appeal to

and including July 23, 1975.

2. Petition for leave to appeal filed July 22, 1975.

3. Mandate of the Supreme Court of the State of Illi-

nois denying petition for leave to appeal September 25,

1975.

4. Notice, motion by petitioner and order of Chief Jus-

tice Robert C. Underwood filed October 16, 1975, staying

the mandate of this Court pending disposition of petition-

er’s appeal to the Supreme Court of the United States.

5. Notice of Appeal to the Supreme Court of the United

States, together with proof of service, filed January 13,

1976.

ne te ee

a - —— —

6. Notice, affidavit and motion by petitioner filed Janu-

ary 13, 1976, for an extension of time to and including

March 14, 1976, for docketing this cause in the United

States Supreme Court.

7. Order entered January 16, 1976, denying the motion

by petitioner for an extension of time to and including

March 14, 1976, for docketing this cause in the United

States Supreme Court, without prejudice to the right of

petitioner to apply to that Court for an extension of time

and without prejudice to the order previously entered by

this Court staying the mandate.

8. Certification.

No. 47719

IN THE SUPREME COURT

STATE OF ILLINOIS

THE PEOPLE OF THE STATE

OF ILLINOIS, Petition for leave

to appeal

Plaintiff-A ppellee from Illinois

- - ~=Appellate Court,

Fourth District

N .

PAUL LEEMON, S8R., No. 12562

Defendant-Appellant |

ORDER

Now on this 16th day of July, 1975, Michael W. Hogan,

attorney for defendant-appellant, presents his motion, affi-

davit and proof of service for an extension of time in which

to file the Petition for Leave to File Appeal in said cause,

and the Court being fully advised in the premises, and

otherwise satisfied that adequate grounds exist for the al-

lowance of said extension of time,

26

IT IS HEREBY ORDERED that the time for defendant-

appellant, Paul Leemon, Sr., to file Petition for Leave to

Appeal, is hereby extended to and including the 23rd day

of July, 1975.

/s/ Robert C. Underwood

Justice, Illinois Supreme Court

Filed July 22, 1975, Clell L. Woods, Clerk

No. 47719

IN THE SUPREME COURT

STATE OF ILLINOIS

THE PEOPLE OF THE STATE |

OF ILLINOIS, ae a

Plaintiff-Appellee from Hlicoie

v. r Appellate Court,

r hha

PAUL LEEMON, SR., a

Defendant-Appellant | -

MOTION

Now comes defendant-appellant herein, by Pree & Pree,

attorneys, and moves that the time for filing appellant’s

petition in the above-entitled cause may be extended to the

23rd day of July, 1975, and in support of this motion,

7 A ee ete

27

appellant files herewith an affidavit by Attorney Michael

W. Hogan.

PAUL LEEMON, SR.,

Defendant-Appellant

BY: PREE & PREE

Attorneys for Defendant-Appellant

/8/ BY: Michael W. Hogan

PREE & PREE

Attorneys for Defendant-Appellant

904-5 Myers Building

Springfield, Illinois 62701

Telephones: 523-8913 & 544-9414

Filed July 22, 1975, Clell L. Woods, Clerk

No. 47719

STATE OF ILLINOIS Lgs

COUNTY OF SANGAMON

AFFIDAVIT

Michael W. Hogan, being first duly sworn, upon oath

deposes and says as follows: that he is associated with

the law firm of Pree & Pree with offices in the Myers Build-

ing, Springfield, Illinois; that he is in charge of the prepa-

ration of appellant’s brief herein; that because of court

commitments and trials, as well as other appeals to this

Honorable Court, and a heavy workload during the months

of June and July, 1975, he has been unable to complete the

preparation of appellant’s brief by July 17th, the due date;

that it will be necessary in order to prepare appellant’s

brief and have the same printed, that the time be extended;

that the brief is now with the printer and your affiant has

been duly informed that they cannot print the brief and

have it ready for filing before the 23rd day of July, 1975;

that affiant expects to be able to complete the preparation

28

of said brief and printing by July 23, 1975; that this motion

for extension of time is not made for the purpose of delay.

Further affiant sayeth not.

/s/ Michael W. Hogan

Subscribed and sworn to before me, a Notary Public, this

16th day of July, A.D. 1975.

/s/ Mary R. Martin

Notary Public

Filed July 22, 1975, Clell L. Woods, Clerk

No. 47719

CERTIFICATE OF SERVICE

Michael W. Hogan, one of the attorneys for the defendant-

appellant, does hereby certify that on the 16th day of July,

1975, he caused to be deposited in the United States Mail,

at Springfield, Illinois, in a sealed envelope, with sufficient

postage prepaid, a copy of the foregoing Motion and Affi-

davit, addressed to William H. Knuppel, 124 West Market,

Havana, Illinois 62644, and G. Michael Prall, 334 Unity

Building, Bloomington, Illinois 61701, Attorneys for Plain-

tiff-Appellee.

/s/ Michael W. Hogan

Filed July 22, 1975, Clell L. Woods, Clerk

UNITED STATES OF AMERICA

STATE OF ILLINOIS SS

SUPREME COURT ;

At a Term of the Supreme Court, begun and held in

Springfield, on Monday, the eighth day of September in

the year of our Lord, one thousand nine hundred and

seventy-five, within and for the State of Illinois.

Present: Robert C. Underwood, Chief Justice, Justice

29

Walter V. Schaefer, Justice Daniel P. Ward, Justice Joseph

H. Goldenhersh, Justice Thomas E. Kluezynski, Justice

Charles H. Davis, Justice Howard C. Ryan, William J.

Scott, Attorney General, William G. Lyons, Marshal. Attest:

Clell L. Woods, Clerk.

Be it remembered, that, to-wit: on the 25th day of Sep-

tember 1975, the same being one of the days of the term

of Court aforesaid, the following proceedings were, by said

court, had and entered of record, to-wit:

No. 47719

THE PEOPLE OF THE STATE ) Petition for Leave

OF ILLINOIS, to Appeal from

Respondent Appellate Court

Vv. rf Fourth District

PAUL LEEMON, SR., 12562

Petitioner | 73-CF-31

And now on this day the Court having duly considered

the Petition for Leave to Appeal herein and being now fully

advised of and concerning the premises, doth overrule the

prayer of the petition and denies Leave to Appeal herein.

I, Clell L. Woods, Clerk of the Supreme Court of the State

of Illinois and keeper of the records, files and seal thereof,

do hereby certify that the foregoing is a true copy of the

final order of the said Supreme Court in the above entitled

cause of record in my office.

In Witness Whereof, [ have hereunto subscribed my

name and affixed the Seal of said court this day of

, 19

Clerk, Supreme Court of the State of Illinois.

30

No. 47719

IN THE SUPREME COURT OF ILLINOIS

THE PEOPLE OF THE STATE |

OF ILLINOIS,

Plaintiff-Appellee

v.

PAUL LEEMON, SR.,

Defendant-Appellant |

ORDER

The motion of defendant that the mandate of this Court

be stayed pending disposition of defendant’s appeal to

the Supreme Court of the United States coming on to be

heard upon proof of notice and without objection,

IT IS ORDERED that said motion is allowed and the

mandate of this Court stayed pending disposition of defen-

dant’s appeal to the Supreme Court of the United States.

DATED: October 15, 1975.

Robert C. Underwood

Chief Justice,

Supreme Court of Illinois

Filed Oct. 16, 1975, Clell L. Woods, Clerk

a

31

STATE OF ILLINOIS

IN THE SUPREME COURT

SPRINGFIELD, ILLINOIS

THE PEOPLE OF THE STATE |

OF ILLINOIS,

Plaintiff-Appellee CASE NO.

v. f 47719

PAUL LEEMON, SR.,

Defendant-Appellant |

MOTION FOR

STAY OF MANDATE PENDING APPEAL

(Supreme Court Rule 368(c) )

Paul Leemon, Sr., through his attorneys, Michael W.

Hogan and Edward G. Pree, will file Notice of Appeal to

the Supreme Court of the United States appealing the final

judgment and decree of his cause entered on September

25, 1975. No Petition For Rehearing pursuant to Ch. 110A,

Section 367, Lilinois Revised Statutes is to be filed.

Therefore, the appellant moves that execution of said

mandate be stayed in all respects pending final disposition

of the appeal and that an order be made with respect to a

continuation of the bond for said stay of execution, pursu-

ant to Ch. 110A, Section 368(c), Illinois Revised Statutes.

Dated this 10th day of October, 1975.

Respectfully Submitted,

Michael W. Hogan and

Edward G. Pree,

Attorneys For Appellant

/s/ By Michael W. Hogan

904-5 Myers Building

Springfield, Illinois 62701

Filed Oct. 16, 1975, Clell L. Woods, Clerk

32

STATE OF ILLINOIS

IN THE SUPREME COURT

SPRINGFIELD, ILLINOIS

THE PEOPLE OF THE STATE )

OF ILLINOIS,

Plaintiff-Appellee CASE NO

v. f 47719

PAUL LEEMON, SR.,

Defendant-Appellant |

NOTICE OF FILING MOTION

TO: William H. Knuppel, State’s Attorney, Mason County,

124 West Market Street, Havana, Illinois 62644

G. Michael Prall, Principal Attorney,

Illinois State’s Attorneys Assoc.

Statewide Appellate Assistance Serv.

334 Unity Building, Bloomington, Illinois 61701

PLEASE TAKE NOTICE, that I, Michael W. Hogan,

one of the attorneys for the Defendant, Paul Leemon, Sr.,

did cause to have filed a Motion For Stay of Mandate

Pending Appeal, Order Staying Issuance of Mandate, and

this Notice of Filing Motion For Stay of Mandate, with

the Clerk of the Illinois Supreme Court, and I did, on the

same date mail a copy of said Motion, Order, and Notice

of Filing Motion to the above named persons, at the ad-

dresses listed beneath their names, addressed to their last

known address, with sufficient postage for the same to go

First Class Mail, and did deposit them in the United States

Mail, at Springfield, Illinois 62701, this 10th day of October,

1975.

/s/ Michael W. Hogan

Attorney For Defendant

Subseribed and sworn to before me, Mary R. Martin, a

ee

rr

33

Notary Public within and for the County of Sangamon,

State of Illinois, this 10th day of October, 1975.

Mary R. Martin, Notary Public

Filed Oct. 16,1975, C tL. Woods, Clerk

No. 47719

IN THE SUPREME COURT

STATE OF ILLINOIS

THE PEOPLE OF THE STATE )

OF ILLINOIS,

Plaintiff-Appellee

v.

PAUL LEEMON, SR.,

Defendant-Appellant |

NOTICE OF APPEAL

Now comes Defendant-Appellant, Paul Leemon, Sr., by

his undersigned counsel, Michael W. Hogan, and files his

Notice of Appeal from the Order of the Illinois Supreme

Court dated September 25, 1975, denying the Defendant’s

petition for leave to appeal in Cause No. 47719, entitled

People of the State of Illinois, Respondent vs. Paul Leemon,

Sr., Petitioner, being by its nature affirmance of the findings

and opinion of the [Illinois Court of Appeals, 4th District,

dated May 22, 1975, and

Said appeal is taken pursuant to Title 28, U.S.C. Section

1257(2).

/s/ Michael W. Hogan

Filed Jan. 13, 1976, Clell L. Woods, Clerk

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing

34

instrument was served upon the attorneys of record of all

parties to the above cause by enclosing the same in an

envelope addressed to such attorneys at their business ad-

dress as disclosed by the pleadings of record herein with

postage fully prepaid, and by depositing said envelope in

a U.S. Post Office Mail Box in Springfield, Illinois, on the

13 day of January, 1976.

/s/ Michael W. Hogan

No. 47719

IN THE SUPREME COURT

STATE OF ILLINOIS

THE PEOPLE OF THE STATE |

OF ILLINOIS,

Plaintiff-Appellee

v.

PAUL LEEMON, SR.,

Defendant-Appellant |

MOTION OF DEFENDANT FOR FNLARGEMENT

OF TIME FOR NOTICE OF APPEAL AND

DOCKETING SAID CAUSE WITH CLERK

OF UNITED STATES SUPREME COURT.

Now comes PAUL LEEMON, SR., Defendant-Appellant,

by his attorneys, Pree & Pree and Michael W. Hogan and

moves this Honorable Court, for enlargement of the time

filing his notice of appeal and docketing said cause with the

Clerk of the United States Supreme Court, pursuant to

Rule 368(c) of the Illinois Supreme Court, for a period of

sixty (60) days, on the grounds that counsel for Defendant-

Appellant, PAUL LEEMON, SR., have not been able to

research the law, write the jurisdictional statement and

er ee

eee aces tenants ree ee

8 6 eesti coe

FO Oe tan bee ee

PRO ety A ee

35

secure the publication of the jurisdictional statement within

the time allotted, and it will irreparably damage and preju-

dice the rights of the Defendant-Appellant if not allowed.

The original order staying the mandate of the Supreme

Court was made and entered in this cause on October 15,

1975, a copy of which is appended hereto, and the addi-

tional extension of time is asked from and including the

13th day of January, 1976 to and including the 14th day

of March, 1976.

PAUL LEEMON, SR., Defendant-Appellant

/s/ Michael W. Hogan

Pree & Pree & Michael W. Hogan

Attorneys for Defendant-Appellant

904-5 Myers Building, Springfield, Illinois 62701

Telephone: 523-8913 & 544-9414

No. 47719

IN THE SUPREME COURT

STATE OF ILLINOIS

THE PEOPLE OF THE STATE |

OF ILLINOIS,

Plaintiff-Appellee

v.

PAUL LEEMON, SR.,

Defendant-Appellant |

AFFIDAVIT

STATE OF ILLINOIS

COUNTY OF SANGAMON

Comes now MICHAEL W. HOGAN, one of the attorneys

t ss

36

for the Defendant-Appellant, PAUL LEEMON, SR., and

being of lawful age and first duly sworn, state to the Court

as follows:

1. That affiant is counsel for Defendant-Appellant, Paul

Leemon, Sr., in the above-entitled cause.

2. That this Court entered on October 15, 1975, its Order

Staying the Issuance of the Mandate of the Supreme Court

of Illinois, which affirmed the conviction of Defendant-

Appellant, for a period of 90 days which order expires on

January 13, 1976.

3. That attorneys for Defendant-Appellant have not

been able to properly research the law, prepare the juris-

dictional statement required and have it printed in proper

form within the time allotted, due to the press of other

business, the holiday season, and the efforts of affiant to

relocate his business and family in the Springfield com-

munity.

4. That to fail to enlarge the time for filing the notice

of appeal and docketing the cause with the United States

Supreme Court will terminate Defendant-Appellant’s right

to appeal, and irreparably prejudice and damage his right

to review before said Court.

5. That said circumstances are elements which are be-

yond the control of counsel, and this further enlargement

of time is not taken in bad faith, or in an effort to forestall

consideration of Defendant’s cause.

6. That these circumstances represent extraordinary

grounds for granting said enlargement of time for filing

the notice of appeal and docketing the cause in the United

States Supreme Court.

/s/ Michael W. Hogan, Affiant

37

STATE OF ILLINOIS Ss

COUNTY OF SANGAMON

Personally before me, a notary public within and for the

County and State aforesaid, came and appeared MICHAEL

W. HOGAN, known to me, being of lawful age and first

duly sworn, and stated upon his oath that he is the person

who executed the above and foregoin, -ffidavit, that he

read the same, and that it is true and correct in substance

and fact.

Subscribed and sworn to before me, a notary public,

within and for the County and State aforesaid, this 13th

day of January, 1976.

/s/ Vickie L. Rapps, Notary Public

My Commission Expires: May 12, 1979

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing

instrument was served upon the attorneys of record of all

parties to the above cause by enclosing the same in an

envelope addressed to such attorneys at their business ad-

dress as disclosed by the pleadings of record herein with

postage fully prepaid, and by depositing said envelope in

a U.S. Post Office Mail Box in Springfield, Illinois, on the

13 day of January, 1976.

/s/ Michael W. Hogan

38

No. 47719

IN THE SUPREME COURT

STATE OF ILLINOIS

THE PEOPLE OF THE STATE |

OF ILLINOIS,

Plaintiff-Appellee

v.

PAUL LEEMON, SR.,

Defendant-Appellant |

NOTICE OF MOTION FOR ENLARGEMENT

OF TIME TO FILE NOTICE OF APPEAL

TO: Hon. William H. Knuppel, State’s Attorney

Mason County Courthouse, Havana, Illinois

AND

Illinois State’s Attorneys Assn.

909 Myers Building, Springfield, Illinois 62701

PLEASE TAKE NOTICE that Defendant-Appellant,

PAUL LEEMON, SR., will appear before the Hon. Daniel

Ward, Chief Justice of the Illinois Supreme Court and

present his motion for enlargement of time to file his notice

of appeal and docket said cause in the United States

Supreme Court on January 13, 1976, at 2:00 p.m. in the

Supreme Court Building, Springfield, Illinois, in Chambers,

or such other room as shall be assigned for hearing said

motion, aud that you may appear at said hearing, if you

so choose.

‘s/ Michael W. Hogan

Attorney for Defendant-Appellant.

PREE & PREE & Michael W. Hogan

Attorneys for Defendant-Appellant

904-5 Myers Building, Springfield, Illinois 62701

Telephones: 523-8913 & 544-9414

39

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing

instrument was served upon the attorneys of record of all

parties to the above cause by enclosing the same in an

envelope addressed to such attorneys at their business ad-

dress as disclosed by the pleadings of record herein with

postage fully prepaid, and by depositing said envelope in

a U.S. Post Office Mail Box in Springfield, Illinois, on the

13th day of January, 1976.

/s/ Michael W. Hogan

UNITED STATES OF AMERICA

STATE OF ILLINOIS SS

SUPREME COURT '

At a Term of the Supreme Court, begun and held in

Springfield, on Monday, the twelfth day of January in the

year of our Lord, one thousand nine hundred and seventy-

six, within and for the State of Illinois.

Present: Daniel P. Ward, Chief Justice, Justice Walter

V. Schaefer, Justice Thomas E. Kluezynski, Justice Howard

C. Ryan, Justice Robert C. Underwood, Justice Joseph H.

Goldenhersh, Justice Caswell J. Crebs, William J. Scott,

Attorney General. Attest: Clell L. Woods, Clerk.

BE IT REMEMBERED, that, to-wit: on the 16th day

of January, A.D. 1976, the same being one of the days of

40

the term of Court aforesaid, the following proceedings were,

by said Court, had and entered of record, to-wit:

No. 47719

THE PEOPLE OF THE STATE) Petition for

OF ILLINOIS, Leave to Appeal

Respondent | ¢,om Appellate Court

v. Fourth District

PAUL LEEMON, SR., 12562

Petitioner | 73-CF-31

And now, on this day, the Court having duly considered

the motion by petitioner for an extension of time to and

including March 14, 1976, for docketing this cause in the

United States Supreme Court, and being fully advised of

and concerning the premises;

IT IS HEREBY ORDERED that the motion by peti-

tioner for an extension of time to and including March 14,

1976, for docketing this cause in the United States Supreme

Court be, and the same is, denied without prejudice to the

right of petitioner to apply to that Court for an extension

of time and without prejudice to the order previously en-

tered by this Court staying the mandate.

UNITED STATES OF AMERICA

STATE OF ILLINOIS Ss

SUPREME COURT P

I, Clell L. Woods, Clerk of the Supreme Court of the

State of Illinois, and keeper of the records, files and Seal

Pail isdiacien Leesa.

41

thereof, do hereby certify the foregoing to be a true copy

of the record of this Court in a certain cause entitled:

No. 47719

THE PEOPLE OF THE STATE)

OF ILLINOIS,

Respondent

v.

PAUL LEEMON, SR.,

Petitioner |

Petition for

Leave to Appeal

from Appellate Court

Fourth District

12562

73-CF-31

filed in this office on the 22nd day of July A.D. 1975.

In Witness Whereof, I have hereunto subscribed my name

and affixed the Seal of said court this 29th day of March

1976.

/s/ Clell L. Woods, Clerk,

Supreme Court of the State of Illinois