Graham v. People

4 N.E. 790, 115 Ill. 566, 1886 Ill. LEXIS 1034

• Court: Illinois Supreme Court
• Decided: January 25, 1886
• Status: Published

Opinion

Mr. Justice Tunnicliff

delivered the opinion of the Court:

The plaintiffs in error, Eobert Graham and Hugh McCue, were convicted, in the Criminal Court of Cook county, of the crime of robbing the prosecutor of his watch.

On the trial the following question was asked the prosecuting witness, viz: “Have you been approached by anybody in the interest of these defendants, and have you taken any money to settle this case?” to which he made the following answer: “Yes, sir; I took $25 from Mr. Hemingway, the uncle of Graham, in payment of my watch, as I supposed. The watch was not mine. It belongs to another man, who left it with me as security for a bill, and I was wearing it that night. He sent for me, and wanted to settle the case.” Counsel for plaintiffs in error urge that this evidence was incompetent, and calculated to prejudice their clients with the jury. In this wp fully agree with them, but an examination of the record discloses that there was no objection made or exception taken to its introduction. On the contrary, counsel cross-examined the witness concerning the same matter, and also introduced other testimony on behalf of plaintiffs in error, in regard thereto. But having failed to make any objection, and thereby obtain a ruling of the court as to the admissibility of the testimony, and take an exception to its decision, if adverse to them, we are precluded from examining the question.- Had objection been made, the court would have doubtless excluded it. As was said by this court in McKinney v. People, 2 Gilm. 556: “A prisoner on trial, under our laws, has no right to stand by and suffer irregular proceedings to take place, and then ask to have the proceedings reversed on error on account of such irregularities. The law, by furnishing him with counsel to defend him, has placed him on the same platform with all other defendants, and if he neglects in proper time to insist on his rights, he waives them.” To the same effect are Bulliner et al. v. People, 95 Ill. 394, and Perteet v. People, 70 id. 171.

The judgment is also asked to be reversed because, as is claimed, the jury found contrary to the evidence. We have examined the evidence carefully, and are unable to say that the jury were not authorized to find the verdict they did. The only question regarded the identity of the prisoners, the plaintiffs in error. The prosecuting witness had known one of them personally for eight or ten years, and the other all of the preceding winter. He swears positively to their being the persons who robbed him, and is confirmed by other testimony in the case. Against this, plaintiffs in error swear on their own behalf to their innocence, and offer evidence of their relatives and friends to prove an alibi. It was the peculiar province of the jury to weigh and consider the evidence, and judge from the appearance of the witnesses on the stand, their apparent honesty, intelligence and candor, or the want of it, what weight should be given to their testimony; and unless we can see that their finding is so contrary to the evidence as to impress the court with the belief that the verdict is the result of passion or prejudice, we ought not to disturb it.

But even if the verdict was not supported by the evidence, we could not reverse the judgment for that reason, because the bill of exceptions does not show that any motion was made in the court below for a new trial on that account. In fact it does not show that any motion for a new trial was made at all. The transcript shows an entry made by the clerk in his record, of a motion for a new trial by plaintiffs in error, and that it was overruled, and an exception taken; but it does not show on what the motion was based, and if it did, it would not be sufficient, as we have repeatedly held that motions of this kind, and the rulings of the court thereon, and the exceptions, if any are taken, must be preserved by bill of exceptions, and that a mere entry of the same by the clerk on the record will not answer the purpose. In Daniels v. Shields, 38 Ill. 197, the transcript showed, as a part of the entry of record in the court below, after the formal entry of judgment, the following: “Thereupon the said plaintiff, by Parks, his attorney, enters his motion for a new trial, which motion is overruled by the court, and to which ruling of the court in overruling his said motion for a new trial, and the judgment of the court aforesaid, the said plaintiff, by his said attorney, then and there excepted, ” etc. That entry is the same as in this case, and it was there held that it was insufficient, because not embodied in a bill of exceptions. See, also, Gill v. People, 42 Ill. 321, and James v. Dexter, 113 id. 654.

The judgment of the court below must be affirmed.

Judgment affirmed.