People v. Cohen
| Decision Date | 22 April 1933 |
| Docket Number | No. 21566.,21566. |
| Citation | 185 N.E. 608,352 Ill. 380 |
| Parties | PEOPLE v. COHEN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Error to Criminal Court, Cook County; Harry M. Fisher, Judge.
M. Cohen was convicted of receiving stolen property knowing it to have been stolen, and he brings error.
Reversed and remanded.Harold L. Levy and Edward M. Keating, both of Chicago, for plaintiff in error.
Otto Kerner, Atty. Gen., Thomas J. Courtney, State's Atty., of Chicago, and J. J. Neiger, of Springfield (Edward E. Wilson and Grenville Beardsley, both of Chicago, of counsel), for the People.
Plaintiff in error, M. Cohen, and Frank Nelson, were indicted by a grand jury in the criminal court of Cook county for larceny and for receiving stolen property knowing the same to have been stolen. The property described in the indictment as having been stolen and so received was 500 blankets of the value of $5 each and 124 pillows of the value of $1 each, the personal goods and property of the Pullman Company, a corporation. Cohen pleaded not guilty, and was tried by the court without a jury, a trial by jury having been waived. The court found him guilty of receiving stolen property in manner and form as charged, found the value of the property to be $1,000, and, after overruling his motions for new trial and in arrest of judgment, sentenced him to the penitentiary from one to ten years. He prosecutes this writ of error for a reversal of the judgment and sentence of the court.
A number of errors are assigned on the record, only one of which is argued by plaintiff in error, to wit, ‘that there is no evidence in the record to show that the Pullman Company is a corporation.’ The motions for a new trial and in arrest of judgment were both verbal. There was no requirement by the court or request by the state's attorney to have the motions, or either of them, reduced to writing or to have the grounds of the motions reduced to writing. The defendant excepted to the finding and judgment of the court. There is no evidence whatever that tended to prove that the Pullman Company was a corporation. The proof in the record is that the owner of the property in question was the Pullman Company. There was no proof of user of corporate powers and franchises, and there was no proof of any kind or any statement by any witness that the Pullman Company was, in fact, a corporation. In view of the foregoing facts, it will not be necessary for this court to make any further statement of the evidence.
Section 77 of the Practice Act (Smith-Hurd Rev. St. 1931, c. 110, § 77) directs the party moving for a new trial to file the points in writing, particularly specifying the grounds of his motion. This court has held that that section is directory and not mandatory, and that, if the party moving for a new trial makes either a written or verbal motion for a new trial without stating in writing the grounds therefor and without objection, the requirement of such statement is waived. If certain points in writing particularly specifying the grounds of a motion for a new trial have been filed, the party filing the same will be deemed to have waived all causes for a new trial not set forth in his written grounds, and in the Appellate Court will be confined to the reasons specified. If the motion has been submitted without specifying the grounds therefor in writing, the party may avail himself of any cause for a new trial which may appear in the record, whether it be the admission or rejection of evidence, the giving or refusing of instructions, the lack of sufficient evidence, or any other error occurring on the trial. The above holding by this court is applicable to both civil an criminal cases. Yarber v. Chicago & Alton Railway Co., 235 Ill. 589, 85 N. E. 928;Anderson v. Karstens, 297 Ill. 76, 130 N. E. 338;Bromley v. People, 150 Ill. 297, 37 N. E. 209. The foregoing rules applied to motions for new trial are also applied by this court to motions in arrest of judgment, and, when a motion in arrest of judgment does not specify the grounds therefor, it will he presumed, on appeal, that every proper ground for arrest of the judgment was presented to the court. People v. Goldberg, 287 Ill. 238, 122 N. E. 530.
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Donnelly v. Pennsylvania R. Co.
...in that motion no point was made that the trial court erred in permitting the amendment to the complaint. In People v. Cohen, 352 Ill. 380, 382, 185 N.E. 608, 609, 88 A.L.R. 481, the court '* * * If certain points in writing particularly specifying the grounds of a motion for a new trial ha......
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People v. Woodward
...of any cause for a new trial which may appear in the record" including the giving or refusing of instructions. (People v. Cohen, 352 Ill. 380, 382, 185 N.E. 608 (1933).) See, also, People v. Prohaska, 8 Ill.2d 579, 583, 134 N.E.2d 799 (1956); People v. Irwin, 32 Ill.2d 441, 444-45, 207 N.E.......
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People v. Walker
... ... The principal question presented is not, strictly speaking, one of variance but, instead, one going to the failure to prove a material and essential allegation of the indictment. People v. Cohen, 352 Ill. 380, 185 N.E. 608, 88 A.L.R. 481. The failure to prove a material allegation of an indictment beyond a reasonable doubt is fatal to a judgment of conviction, and the question may be raised for the first time upon review. People v. Cohen, 352 Ill. 380, 185 N.E. 608; People v. Feldstein, ... ...
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Weinrob v. Heintz
...is filed in writing specifying the grounds relied upon, then all other grounds will be deemed to have been waived. People v. Cohen, 352 Ill. 380, 185 N.E. 608, 88 A.L.R. 481; Pajak v. Mamsch, 338 Ill.App. 337, 343, 87 N.E.2d 147; In Voigt v. Anglo-American Provision Co., 202 Ill. 462, 66 N.......