People v. Pulliam

• Decision Date: 22 April 1933
• Docket Number: No. 21362.,21362.
• Citation: 352 Ill. 318,185 N.E. 599
• Parties: PEOPLE v. PULLIAM.
• Court: Illinois Supreme Court

352 Ill. 318

185 N.E. 599

PEOPLE

v.PULLIAM.

No. 21362.

Supreme Court of Illinois.

April 22, 1933.

Error to Circuit Court, Jackson County; A. L. Spiller, Judge.

Max Pulliam was convicted of burglary, and the brings error.

Affirmed.

O. C. Smith, of Benton, for plaintiff in error.

Otto Kerner, Atty. Gen., C. Edgar White, State's Atty., of Murphysboro, J. J. Neiger, of Springfield, and Orwin H. Pugh, of Johnston City, for the People.

HEARD, Chief Justice.

Max Pulliam was convicted in the circuit court of Jackson county of the crime of burglary and sentenced to the penitentiary therefor. He brings the record to this court for review on writ of error.

The indictment consists of five counts, the first of which charged burglary of a dwelling house of Isaac Waggoner with intent to steal his personal property in the house. The second count charged the breaking and entry of the dwelling house of Waggoner with intent to commit robbery. The third count charged an assault upon Waggoner with a pistol with intent to rob Waggoner. The fourth count charged robbery of Waggoner; Pulliam being armed with a pistol. The fifth count charged Pulliam with an assault upon Waggoner with intent to commit robbery from his person. A motion to quash the indictment was made on the ground that its several counts attempted to charge separate and distinct offenses, and before the trial a motion was made to require the state's attorney to elect upon which count of the indictment he would proceed. Both of these motions were overruled, and the action of the court in so doing is now assigned as error.

The rule has repeatedly been laid down in this state that, if two or more offenses grow out of one transaction and are of such a nature that the defendant may be found guilty of each, he may be charged with the offenses in separate counts of an indictment, and that the prosecutor will not be required to elect for which offense charged he will ask a conviction. An election will only be required where the offenses charged in the different counts are actually distinct from each other and do not arise out of the same transaction. People v. Pelinski, 293 Ill. 382, 127 N. E. 678;People v. Warfield, 261 Ill. 293, 103 N. E. 979;People v. Bernstein, 250 Ill. 63, 95 N. E. 50;People v. Weil, 243 Ill. 208, 90 N. E. 731,134 Am. St. Rep. 357;West v. People, 137 Ill. 189, 27 N. E. 34,34 N. E. 254;Andrews v. People, 117 Ill. 195, 7 N. E. 265;Goodhue v. People, 94 Ill. 37. There is nothing in this record which shows that the offenses charged were not all a part of the same transaction, and, so far as the record in this case shows, it does not appear that the court erred in these rulings.

Upon a motion for a new trial, Pulliam filed the affidavits of himself and several other persons to the effect that he had not been arraigned previous to the commencement of his trial, and the bill of exceptions shows some remarks of the trial judge in ruling upon a motion which would tend to show that Pulliam had not been arraigned. The affidavits were stricken from the files, and a new trial refused. The action of the court in this regard is assigned as error. The additional abstract of record filed herein shows that prior to the calling of the cause for trial Pulliam was arraigned and pleaded not guilty. No motion was made in the circuit court to amend the record in this regard to make it speak the truth if it did not do so. Upon appeal to this court, the transcript of the record of the trial court imports absolute verity and is the sole, conclusive,and unimpeachable evidence of proceedings in the lower court. People v. Bouderioyni, 299 Ill. 96, 132 N. E. 501;People v. Kuhn, 291 Ill. 154, 125 N. E. 882;Nicholson v. Loeff, 253 Ill. 526, 97 N. E. 1060;Wolf v. Hope, 210 Ill. 50, 70 N. E. 1082;Keller v. Brickey, 63 Ill. 496. Entries in the record of a criminal case which state that the defendant was formally arraigned and pleaded not guilty to the indictment must prevail over affidavits to the contrary filed in support of a motion for a new trial or in arrest of judgment. People v. Archambault, 295 Ill. 266, 129 N. E. 111;Gillespie v. People, 176 Ill. 238, 52 N. E. 250. The court did not err in striking the affidavits from the files and refusing to grant a new trial on the ground that Pulliam had not been arraigned.

Counsel for plaintiff in error claims that the judgment of conviction should be reversed on account of misconduct of the state's attorney in making improper remarks in the examination of a juror, in his opening statement and in his closing argument, in which he referred to other burglaries alleged to have been committed by Pulliam at about the same time as the one for which he was on trial. A reference by the state's attorney to the commission of a crime by a defendant other than the crime for which he is on trial is not necessarily erroneous, as under certain circumstances evidence of the commission of other crimes is not improper, and the state's attorney has a right in his argument to refer to all matters properly shown by the evidence. The general rule on the subject of the admission of evidence of other offenses is correctly stated in People v. Swift, 319 Ill. 359, ...