People v. Connors

• Court: Illinois Supreme Court
• Writing for the Court: DAILY
• Citation: People v. Connors, 413 Ill. 386, 108 N.E.2d 774 (Ill. 1952)
• Decision Date: 20 November 1952
• Docket Number: No. 32422,32422
• Parties: PEOPLE v. CONNORS.

Page 774

108 N.E.2d 774

413 Ill. 386

PEOPLE v. CONNORS.

No. 32422.

Supreme Court of Illinois.

Nov. 20, 1952.

Earnest Connors, pro se.

Ivan A. Elliott, Atty. Gen., and John J. Bresee, State's Atty., Urbana (Harry L. Pate, Tuscola, of counsel), for the People.

DAILY, Justice.

Plaintiff in error, Earnest Connors, was convicted of the crime of burglary in the circuit court of Champaign County and sentenced to the penitentiary for an indeterminate term of fifteen years to life. Bringing only the common-law record, he comes to this court on writ of error seeking a reversal of the judgment of conviction on the grounds: (1) that the court erred in denying a motion for continuance; (2) that he was denied due process in that he was not given notice of the date of the hearing on a motion for new trial; and (3) that his constitutional rights were further violated when he was sentenced to the penitentiary at a time when he was not personally present in court.

The record discloses that plaintiff in error was indicted for burglary and larceny on June 16, 1948. The following day he appeared in court with counsel for arraignment and made a motion to quash the indictment. At the same time he was released on bond. Shortly thereafter the motion to quash was denied and plaintiff in error entered a plea of not guilty. When the cause came on for hearing on July 6, 1948, plaintiff in error appeared and, through his counsel, made a motion for a continuance. Its denial is here assigned as error.

The clerk who certified the common-law record to this court has included the motion for continuance, and the affidavit upon which it is based, as a part of such record. The rule is well settled that motions and affidavits are not a part of the common-law record and the only way they can be preserved is by incorporating them in a bill of exceptions. People v. Reese, 355 Ill. 562, 189 N.E. 876. The clerk of the court cannot make them a part of the common-law record by copying them into the record and certifying to them. People v. Hobbs, 352 Ill. 224, 185 N.E. 610. Consequently, the motion for continuance made in this cause is not a part of the common-law record, and in the absence of a bill of exceptions the ruling on the motion has not been preserved for review and is not open to inquiry by this court. People v. Barnes, 405 Ill. 30, 89 N.E.2d 791; People v. Weston, 236 Ill. 104, 86 N.E. 188. As a practical matter, we note that the reason advanced for a continuance was the absence of a witness by whom plaintiff in error alleged he would impeach a proposed witness for the People. It could only be through the agency of a bill of exceptions informing us if the People's witness testified at the trial, and the substance of his testimony, that this court could determine if the denial of the motion resulted in prejudice to plaintiff in error.

It is next contended that the court erred and that plaintiff in error was denied due process for reason that the record does not show that he was given notice of the hearing on his motion for a new trial. This assignment of error is in direct contradiction of the order entered at the hearing which recites that plaintiff in error was given notice. A defendant cannot be permitted by the mere filing of a brief and argument to dispute matters of record certified as being correct, as the common-law record certified by the clerk and filed on writ of error imports verity and cannot be contradicted except by other matters of record. People v. Sweeney, 409 Ill. 223, 99 N.E.2d 143; People v. Day, 404 Ill. 268, 88 N.E.2d 727. Though not conclusive, it is significant, too, that plaintiff in error's counsel was present at the hearing, thus lending support to the record's recital that notice...