People v. Buffo
| Decision Date | 28 October 1925 |
| Docket Number | No. 16761.,16761. |
| Citation | 149 N.E. 271,318 Ill. 380 |
| Parties | PEOPLE v. BUFFO. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Circuit Court, Vermilion County; Walter Brewer, Judge.
Andy Buffo was convicted of a second violation of the Prohibition Act, and he brings error.
Reversed and remanded.
Graham & Dysert, of Danville (Walter V. Dysert, of Danville, of counsel), for plaintiff in error.
Oscar E. Carlstrom, Atty. Gen., Elmer O. Furrow, State's Atty., of Danville, and S. S. Du Hamel, of Tuscola (O. W. Longenecker, of Lawrenceville, of counsel), for the People.
Andy Buffo, plaintiff in error (hereinafter called defendant), was convicted of a second violation of the Illinois prohibition statute (Smith-Hurd Rev. St. 1923, c. 43, § 1 et seq.), in Vermilion county, and sentenced to imprisonment in the penitentiary and to pay a fine of $500 and costs of suit. There were four counts in the indictment. The second and third were nollied and no finding was made by the jury as to the fourth. The jury found defendant guilty of possessing intoxicating liquor in manner and form as charged in the first count and that he had been previously convicted of a violation of the prohibition statute in manner and form as charged in the first count of the indictment.
The assignment of errors alleges the evidence was not sufficient to sustain the verdict and judgment; that the indictment was bad; that the court erred in admitting and excluding evidence and in giving and refusing instructions; and that improper and prejudicial remarks were made during the trial by the court and the state's attorney.
The first count of the indictment, under which defendant was found guilty in this case, sets out in haec verba the indictment returned against defendant and under which he was convicted at a former trial of the Vermilion county circuit court. That indictment charged the defendant ‘unlawfully did then and there sell intoxicating liquor to one J. W. Bobbit in violation of a certain act entitled,’ setting out the title of the Prohibition Act of 1921. The first count alleged defendant was tried under said indictment by a jury, was convicted, sentenced to jail for 90 days and to pay a fine of $400 and costs and to stand committed until the fine and costs were paid. No objection was made to the sufficiency of the charge of the crime committed by the defendant in this case, but it is contended the indictment was insufficient to sustain a conviction for a second offense, as the former indictment shows on its face it did not charge defendant with any crime, and that the court had no jurisdiction to render the judgment and sentence in that case under that indictment. A motion was made by defendant, before plea entered, to quash the indictment under which defendant was tried and convicted in this case, but the motion was overruled. After verdict defendant made a motion in arrest and for a new trial, both of which motions were overruled.
When the former indictment and record of conviction were offered in evidence by the state, defendant objected because the indictment did not charge the defendant with a crime. The objection was overruled and the indictment and record of the conviction were admitted in evidence. It is contended by defendant the court erred in overruling the motion to quash, in admitting the former indictment and record of conviction in evidence, and in overruling the motion in arrest of judgment.
The former indictment was set out in haec verba, as we have stated, as part of the indictment in this case, and defendant insists the sufficiency of the indictment was directly attacked by the motion to quash; also that the record of the former indictment and conviction was subject to collateral attack because the former indictment showed on its face that the court had no jurisdiction to render the judgment. In People v. Martin, 314 Ill. 110, 145 N. E. 395,People v. Barnes, 314 Ill. 140, 145 N. E. 391, and People v. Berman, 316 Ill. 547, 147 N. E. 428, it was held an indictment or information, charging a defendant with unlawfully possessing or selling intoxicating liquor...
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