People v. Berkowski

• Decision Date: 20 January 1944
• Docket Number: No. 27626.,27626.
• Citation: 385 Ill. 392,52 N.E.2d 710
• Parties: PEOPLE v. BERKOWSKI.
• Court: Illinois Supreme Court

385 Ill. 392

52 N.E.2d 710

PEOPLE

v.BERKOWSKI.

No. 27626.

Supreme Court of Illinois.

Jan. 20, 1944.

Error to Criminal Court, Cook County; George Fred Rush, Judge.

Sigmund Berkowski was convicted of burglary, and he brings error.

Affirmed.Jay J. McCarthy, of Chicago, for plaintiff in error.

George F. Barrett, Atty. Gen., and Thomas J. Courtney, State's Atty., of Chicago (Edward E. Wilson, John T. Gallagher, and Melvin S. Rembe, all of Chicago, of counsel) for the People.

THOMPSON, Justice.

Plaintiff in error was indicted in Cook county for the crime of burglary. He was tried by the court without a jury, found guilty, and thereafter, on January 29, 1932, judgment and sentence were entered against him for said crime. He now, after a period of more than eleven years, brings the case here by writ of error for a review of the common-law record.

It is first argued that the record fails to affirmatively show that plaintiff in error was represented by counsel; that the language appearing in the final judgment and other orders of the court that counsel appeared for him at the trial and throughout the proceedings are mere recitals or conclusions of the clerk for which the record shows no substantial basis. The record of the court proceedings on December 4, 1931, when plaintiff in error was arraigned and entered a plea of not guilty; that of January 20, 1932, when the trial was had; and of January 29, 1932, when motion of plaintiff in error for probation was argued and denied and judgment entered, recites, in each instance, that plaintiff appeared in court in his own proper person and also by counsel. Plaintiff in error now seeks to impeach this showing by his own affidavit and that of his mother, which were filed in the office of the clerk oif the trial court on September 3, 1943, and by the clerk, on that day, included in and certified as a part of the common-law record. These affidavits have no place in the record and cannot be made a part thereof by the fact that the clerk has incorporated them therein. People v. Tielke, 259 Ill. 88, 102 N.E. 229;People v. Reese, 355 Ill. 562, 189 N.E. 876. The claim of plaintiff in error that he was not represented by counsel is not available to him here. The record shows that he was so represented and there is nothing in the record to indicate that he was not. The record is our only available source of information of what actually happened in the court below. Upon appeal to this court it imports absolute verity and is the sole, conclusive, and unimpeachable evidence of proceedings in the lower court. People v. Pulliam, 352 Ill. 318, 185 N.E. 599;People v. Kuhn, 291 Ill. 154, 125 N.E. 882. It must be accepted as it was made and cannot be impeached or contradicted by affidavits. People v. Forsyth, 339 Ill. 381, 171 N.E. 561;People v. Pulliam, 352 Ill. 318, 185 N.E. 599;People v. Archambault, 295 Ill. 266, 129 N.E. 111. One who seeks a reversal of a judgment of conviction has the burden of showing that the proceedings of the trial court were illegal, as every reasonable intendment not negatived by the record will be indulged in support of the judgment. People v. Pulliam, 352 Ill. 318, 185 N.E. 599;People v. Pecho, 362 Ill. 568, 200 N.E. 860;People v. Throop, 359 Ill. 354, 194 N.E. 553.

Plaintiff in error's contention that a jury was not properly waived because the record does not show that he signed a written jury waiver cannot be sustained. He cites no statute or other authority and we know of none requiring the waiver of a jury trial to be in writing.

The court, after hearing the evidence, found plaintiff in error ‘guilty of burglary as charged in the indictment.’ Plaintiff in error contends that as the indictment specifically charges him with the crime of ‘burglary with the intent to commit larceny’ and as the gist of said crime is the intent to commit larceny, this was a finding that he was guilty of only one element of the crime, and the judgment based thereon is void because not responsive to the charge in the indictment. This same contention was recently presented in the case of People v. Hoffman, 381 Ill. 460, 45 N.E.2d 874, 876, and there held by us to have no merit. In that case, as in this, ...