People v. Simpson

245 Ill. App. 145, 1924 Ill. App. LEXIS 4

• Court: Appellate Court of Illinois
• Decided: March 10, 1924
• Status: Published

Opinion

Mr. Presiding Justice Barry

delivered the opinion of the court.

Plaintiff in error was tried and convicted under an information in which it was charged in the first count that at and-within the county of Saline, on March 3, 1923, he “unlawfully did then and there possess intoxicating liquor in violation of the Illinois Prohibition Act, contrary to the Statute in such case made and provided,” etc. In the second count it was- charged that on March 3, 1923, he “unlawfully- did then and there transport upon the highway intoxicating liquor contrary to the Statute, ’ ’ etc. It is contended that the information does not charge a criminal offense; that inasmuch as the possession and transportation of intoxicating liquor may be lawful it was incumbent on the prosecutor to aver in his information such a state of facts as would negative a lawful possession on the part of the plaintiff in error. That it is not sufficient to aver that he unlawfully possessed and transported the liquor in violation of the act. In several cases decided at the present term of this court we have held that such an information meets the requirements of section 39 of the Prohibition Act, Cahill’s St. ch. 43, 1Í4Q. '

It is argued that the court erred in overruling a petition for change of venue at the February term of the trial court. The petition for a change of venue, and the affidavits in support thereof, are not a part of the record, and can only be made so by a bill of exceptions, and unless thus preserved they cannot be considered by this court, although the clerk may have copied them into the transcript. Bedee v. People, 73 Ill. 320; People v. Ellsivorth, 261 Ill. 275. A bill of exceptions must be taken at the term when the rulings are made, or within such time as the. court may at that term grant for the purpose. Finch & Co. v. Zenith Furnace Co., 245 Ill. 586. In the case at bar no bill of exceptions was taken at the February term nor was the court requested to fix a time for presentation of a bill. We are not permitted to review the ruling of the court on the petition.

It is argued that the court erred in refusing to grant a continuance, but from an examination of the affidavits filed in support thereof it is apparent that they were wholly insufficient. The court did not err in giving the People’s third instruction. People v. Murray, 307 Ill. 343-347. The first refused instruction was fully covered by the tenth, given on behalf of plaintiff in error. His third refused instruction was .properly refused because there was no evidence on which to base it. The fourth refused instruction was highly calculated to cause a disagreement of tile jury and was properly refused.

It is contended that plaintiff in error was not proven guilty beyond all reasonable doubt. Perhaps that would be true if there was no evidence other than that disclosed by his abstract, but from the additional abstract it appears there was ample, evidence to support the verdict. It is finally argued that the punishment is excessive. The court did not inflict a greater punishment than is fixed by the statute. Whatever we may think about that matter we are of the opinion that we have no authority to interfere for the reasons stated in our opinion in the case of People v. Smith, ante, p. 119, filed at the present term of this court.

As no reversible error has been pointed out the judgment is affirmed.

Affirmed.