People v. Bridges
| Decision Date | 27 January 1966 |
| Docket Number | Gen. No. 50146 |
| Citation | 214 N.E.2d 539,67 Ill.App.2d 236 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clifton BRIDGES, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Gerald W. Getty, Marshall A. Patner, Frederick F. Cohn, James J. Doherty, Chicago, for appellant.
Daniel P. Ward, Elmer C. Kissane, Kenneth L. Gillis, Chicago, for appellee.
Clifton Bridges was indicted for illegal possession of narcotics in violation of the Uniform Narcotic Drug Act. He was tried without a jury, found guilty and sentenced to a term of two to five years in the penitentiary.
A police officer of the City of Chicago observed the defendant standing on a street corner talking to three men who the officer knew were narcotic addicts. He saw the defendant leave the men, walk to a vacant lot, search in the weeds and pick up a small brown bottle. As the officer approached him the defendant dropped the bottle to the ground. The officer picked it up and found 11 tinfoil packages inside which contained white powder. The defendant said the packages were for his own use. A subsequent laboratory analysis was made of the content of one of the packages. The test established that the powder was heroin.
The defendant testified that he went to the vacant lot to look for a roll of bogus money he had hidden there. He denied that the bottle was his and he denied telling the police officer that it was. He said that after his arrest the officer picked up a girl friend and gave the bottle to her.
The defendant contends (1) that he was denied a fair trial because the State and court failed to call the officer's girl friend who, it is argued, was the only known independent witness who might have corborated the defendant's testimony; (2) that his conviction should be reversed because he was not given a transcript of the testimony at his preliminary hearing which, it is argued, might have impeached the police officer's trial testimony; and (3) that the indictment was fatally defective in that (a) it did not state the time and place of the offense and (b) did not specify the statutory provision alleged to have been violated.
After the defendant was found guilty his attorney made oral post-trial motions. The court asked that the motions be filed in writing. Written motions were thereafter submitted for a new trial and in arrest of judgment. The motions were denied.
The written motion for a new trial contained two points, neither of which is one of the trial errors urged on appeal. The errors now urged as grounds for a new trial were waived by the failure to include them in the written post-trial motion. People v. Irwin, 32 Ill.2d 441, 207 N.E.2d 76 (1965); People v. Touhy, 31 Ill.2d 236, 201 N.E.2d 425 (1964); People v. Greer, 30 Ill.2d 415, 197 N.E.2d 22 (1964); People v. Gratton, 28 Ill.2d 450, 192 N.E.2d 903 (1963). We might add that these errors are not, as the defendant argues, plain errors affecting substantial rights which call for the exercise of our statutory power to consider them. Ill.Rev.Stat., 1963, ch. 38, sec. 121-9(a); People v. Fleming, 54 Ill.App.2d 457, 203 N.E.2d 716 (1964). There was no showing that the woman who joined the defendant and the arresting officer saw the defendant with the bottle or that her testimony was in any way material. No request for the transcript was made either before or during the trial; the transcript was first mentioned by the defendant after he was found guilty and it was then established by the defendant's attorney that no transcript was available because there had been no reporter at the preliminary hearing.
The defendant's written motion in arrest of judgment set forth two grounds: an alleged variation between the averments of the indictment and the proof, and the alleged error of the trial court in overruling the new trial motion. Neither of these grounds is one which, if substantiated, would require is one which, if substantiated, motion in arrest of judgment. Ill.Rev.Stat., ch. 38, secs. 116-2(b)(1) and (2) (1963). Hence, the trial court properly denied the motion.
The defendant urges upon appeal two points not included in his motion in arrest of judgment or his motion for a new trial: that the indictment did not specify the time and place of the offense and did not cite the statutory provision allegedly violated. He attempts to establish that these points are preserved for review by contending that his motion in arrest of judgment should be treated as a general oral motion because it was not argued in the trial court.
In People v. Flynn, 8 Ill.2d 116, 133 N.E.2d 257 (1956), the court held that if a motion for a new trial is made orally without objection by the State and without the trial court on its own motion directing that the new-trial motion be presented in writing, the requirement of the statute (Ill.Rev.Stat., 1963, ch. 38, sec. 116-1(b) that such a motion be written is waived, and on appeal a defendant can avail himself of any cause for a new trial which might appear in the record. In People v. Prohaska, 8 Ill.2d 579, 134 N.E.2d 799 (1956), this waiver was extended to motions in arrest of judgment which, according to the statute, must also be written. Ill.Rev.Stat., 1963, ch. 38, sec. 116-2(a). The court stated:
'[W]hen a motion in arrest of judgment does not specify the ground therefor, it will be presumed, on appeal, that every proper ground for arrest of judgment was presented to the trial court.'
The defendant's endeavor to come within the rule of the Prohaska case by equating his...
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