People v. Sims

• Decision Date: 24 June 1965
• Docket Number: No. 37872,37872
• Citation: 32 Ill.2d 591,208 N.E.2d 569
• Parties: The PEOPLE of the State of Illinois, Defendant in Error, v. Kenneth R. SIMS, Plaintiff in Error.
• Court: Illinois Supreme Court

Page 569

208 N.E.2d 569

32 Ill.2d 591

The PEOPLE of the State of Illinois, Defendant in Error, v. Kenneth R. SIMS, Plaintiff in Error.

No. 37872.

Supreme Court of Illinois.

June 24, 1965.

C. Lee Cook, Jr., Chadwell, Keck, Kayser, Ruggles & McLaren, Chicago, for plaintiff in error.

William G. Clark, Atty. Gen., Springfield, and Daniel P. Ward, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Elmer C. Kissance and Thomas A. Hett, Asst. State's Attys., of counsel), for defendant in error.

HOUSE, Justice.

Kenneth R. Sims was convicted in the criminal court of Cook County on April 19, 1960, of having unlawful possession of narcotic drugs, and upon his application was admitted to probation for five years, Subsequently, on March 15, 1962, his probation was revoked. Defendant prosecutes this writ of error to review the original conviction and the order revoking probation.

The first question is whether defendant is entitled to a review of his conviction. Under newly enacted section 117-1(d) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1963, chap. 38, par. 117-1(d),) effective January 1, 1964, review of a conviction may be obtained although probation has been granted. Defendant urges the applicability of the foregoing section because the saving clause (section 125-3(b)) provides that, 'In any case pending on or after the effective date of this Code involving an offense committed prior to such date the procedural provisions of this Code shall govern * * *.' This case, however, was not pending on the effective date of the Code. Defendant was convicted on April 19, 1960, granted probation on May 3, 1960, and his probation was revoked on March 15, 1962. Therefore, this cause ceased to be pending within the meaning of the saving clause.

We therefore consider the law in effect prior to the adoption of the Code. The State contends that defendant waived his right to review the conviction when he accepted probation. We disagree. Although, historically, the attitude was that a defendant who accepted probation waived his right to appeal, (See e. g., People v. Dowd, 27 Ill.App.2d 429, 170 N.E.2d 179; People v. Collis, 344 Ill.App. 539, 101 N.E.2d 739; People v. Mangos, 306 Ill.App. 379, 28 N.E.2d 816; United States v. Lecato, 2 Cir., 29 F.2d 694,) we have never directly passed on this point. In view of the policy expressed in the Code in allowing a defendant to appeal after being admitted to probation, and the persuasive reasoning of the Supreme Court in Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124, 87 L.Ed. 1497, where it was said that a 'judgment is final for the purpose of appeal 'when it terminates the litigation * * * on the merits' and 'leaves nothing to be done but to enforce by execution what has been determined," (citing Berman v. United States, 302 U.S. 211, 212, 213, 58 S.Ct. 164, 166, 82 L.Ed. 204, 205) we hold that the defendant is not precluded from appealing his conviction because he was admitted to probation.

The record supporting the conviction shows that on December 29, 1959, the defendant was arrested in the apartment of a girl friend, Doris Smith, and charged with possession of narcotics. He waived his right to a trial by jury, and on April 19, 1960, the court found him guilty. At the trial Harrison Harvick, the arresting officer, was the State's only witness. He testified that he and Burton Kann, another officer, armed with a search warrant, knocked on the door of the apartment, and after being denied access, kicked the door open when they heard the toilet flush within the apartment. He said the defendant was standing in the room about 10 feet from the bathroom and Doris Smith and her child were on the bed. Officer Harvick found several packets containing narcotics floating on top of the water in the toilet. When asked what conversation he had with the defendant, the officer testified that he asked the defendant whether the 'contraband' was his and defendant replied that it was. At no time did defendant or his counsel object to any of this testimony, nor was there any motion to suppress. The defendant stipulated that if a chemist would testify, he would say that the packets found in the bathroom contained narcotics.

Defendant now contends that the confession was improperly admitted because (1) the State failed to furnish a complete list of witnesses to the oral confession as required by Ill.Rev.Stat.1959, chap. 38, par. 729 in effect at the time of this trial, and, (2) the State failed to call all material witnesses to the confession as required when there is evidence of improper conduct in obtaining the confession.

We have consistently held that one who fails to object to the introduction of an oral confession waives his right to complain of the admission of that evidence. (People v. Williams, 28 Ill.2d 114, 190 N.E.2d 809; People v. Seno, 23 Ill.2d 206, 177 N.E.2d 843; People v. Villalobos, 20 Ill.2d 315, 169 N.E.2d 745.) These cases cannot be distinguished. In Williams, a police officer testified, without objection, that defendant admitted taking part in the crime. At the close of the State's case, defendant moved for a mistrial on the ground that testimony concerning his admission to the officer deprived him of a fair trial. The motion was denied and we affirmed for the reason that defendant, by failing to object to or moving to suppress the testimony, had waived his right to complain. (28 Ill.2d 114, 116, 190 N.E.2d 809.) In Seno and Villalobos testimony concerning oral confessions was admitted without an objection even though the State had similarly failed to comply with the statutory requirement of supplying defendant...