People v. Brickey

• Decision Date: 22 January 1947
• Docket Number: No. 29847.,29847.
• Citation: 71 N.E.2d 157,396 Ill. 140
• Parties: PEOPLE v. BRICKEY.
• Court: Illinois Supreme Court

396 Ill. 140

71 N.E.2d 157

PEOPLE

v.BRICKEY.

No. 29847.

Supreme Court of Illinois.

Jan. 22, 1947.

Error to McLean County Court; Dewey Montgomery, Judge.

Robert E. Brickey was convicted of operating a common gaming house after prior conviction of same offense, and he brings error.

Cause transferred to the Appellate Court.

Homer English and Chester Thomson, both of Bloomington, for plaintiff in error.

George F. Barrett, Atty. Gen., and Clifford N. Coolidge, State's Atty., of Bloomington (Joseph W. DePew, of Bloomington, of counsel), for the People

WILSON, Justice.

An information in the county court of McLean county charged the defendant, Robert E. Brickey, with the offense of operating a common gaming house. The information also charged that, in 1944, defendant had pleaded guilty to keeping and operating a gaming house, and that judgment for $200 and costs was rendered against him. A jury found defendant guilty, as charged, and fixed his fine at $1,000 and his term of incarceration at 18 months and one day in the county jail. Motions for a new trial and in arrest of judgment were overruled, and judgment was rendered on the verdict. Defendant prosecutes this writ of error upon the theory that a constitutional question is involved, within the contemplation of section 75 of the Civil Practice Act. Ill.Rev.Stat.1945, chap. 110, par. 199.

Section 127 of division I of the Criminal Code (Ill.Rev.Stat.1945, chap. 38, par. 325,) ordains: ‘Whoever keeps a common gaminghouse, or in any building, booth, yard, garden, boat or float, by him or his agent used and occupied, procures or permits any persons to frequent or to come together to play for money or other valuable thing, at any game, or keeps or suffers to be kept any tables or other apparatus, for the purpose of playing at any game or sport, for money or any other valuable thing, or knowingly rents any such place for such purposes, shall, upon conviction, for the first offense be fined not less than $100, and for the second offense be fined not less than $500, and be confined in the county jail not less than six months, and for the third offense shall be fined not less than $500, and be imprisoned in the penitentiary not less than two years, nor more than five years.’

Defendant was charged with a second offense of keeping a common gaming house in violation of the quoted statutory provisions. Among the errors relied upon for reversal are (1) that the statute which forms the basis for the information is unconstitutional; (2) that the punishment sought to be inflicted is unconstitutional in that it is excessive and out of proportion to the offense alleged to have been committed, and (3) that the judgment entered on the verdict is in violation of the State and Federal constitutions and, also, the statutes of this State.

Before this court assumes jurisdiction of an appeal or a writ of error on the ground that a constitutional question is involved, it must appear from the record that a fairly debatable constitutional question was urged in the trial court, the ruling on it must be preserved in the record for review, and error must be assigned upon it here. Jenisek v. Riggs, 381 Ill. 290, 44 N.E.2d 902;People v. Moe, 381 Ill. 235, 44 N.E.2d 864;Foreman-State Nat. Bank v. Sistek, 358 Ill. 525, 193 N.E. 513. The validity of a statute is involved so as to confer jurisdiction by direct appeal only where its constitutionality was the primary inquiry in the trial court. Northwestern Institute of Foot Surgery and Chiropody v. Thompson, 386 Ill. 615, 55 N.E.2d 61;Hawthorne Kennel Club v. Swanson, 339 Ill. 220, 171 N.E. 140. A mere assertion that a constitutional question is involved or a constitutional right invaded is not in itself sufficient to confer jurisdiction. People v. Moe, 381 Ill. 235, 44 N.E.2d 864;Economy Dairy Co. v. Kerner, 371 Ill. 261, 20 N.E.2d 568;People v. Calkins, 291 Ill. 317, 126 N.E. 200. In particular, the mere statement that a constitutional question is involved will not give this court jurisdiction to review a conviction of a misdemeanor, as we do not search the constitution to discover some basis upon which jurisdiction to entertain the proceedings can be sustained. People v. Davies, 350 Ill. 48, 183 N.E. 11. Nor does the mere allegation in a pleading or an assignment of error that a statute is unconstitutional authorize a direct review by the Supreme Court. As pertinently observed in People v. Jiras, 340 Ill. 208, 172 N.E. 47, 48: ‘The supposed constitutional questions referred to in the assignment of errors are frivolous. It is not enough to authorize a direct appeal to this court from a trial court merely to assign as error that a statute is unconstitutional, but the actual existence of a question in regard to the construction of the Constitution which is fairly debatable is necessary to justify a direct appeal.’ Again, in People v. Calkins, 291 Ill. 317, 126 N.E. 200: ‘While it is said that this statute (Laws of 1915, p. 369) is manifestly contrary to the Constitution, contrary to the law of the land, and contrary to due process of law, no attempt has been made to show us wherein the inconsistency consists, and our unaided efforts have not enabled us to discover the inconsistency.’

Recourse to the motion for a new trial discloses only the general statement as the thirteenth and last ground urged by defendant that the section of the statute under which the verdict was rendered against him is unconstitutional. The same statement appears as defendant's first error relied upon for a reversal. The grounds relevant to a constitutional question advanced in the motion in arrest of judgment are equally vague and general. Among the 19 reasons assigned were that the statute forming the basis of the information is void and in contravention of the Federal and State constitutions; that the verdict sought to be enforced is excessive and in violation of the Federal and State constitutions; that on account of...