Village of Midlothian v. Walling

• Court: Appellate Court of Illinois
• Writing for the Court: ENGLISH; DRUCKER, P.J., and STAMOS
• Citation: Village of Midlothian v. Walling, 255 N.E.2d 23, 118 Ill.App.2d 358 (Ill. App. 1969)
• Decision Date: 31 December 1969
• Docket Number: Gen. No. 52698
• Parties: VILLAGE OF MIDLOTHIAN, Plaintiff-Appellee, v. Loren WALLING, Defendant-Appellant.

Page 23

255 N.E.2d 23

118 Ill.App.2d 358

VILLAGE OF MIDLOTHIAN, Plaintiff-Appellee, v. Loren WALLING, Defendant-Appellant.

Gen. No. 52698.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 31, 1969.

Henry A. Gentile, Blue Island, for appellant.

John R. Sullivan, Chicago, for appellee.

ENGLISH, Justice.

Defendant's notice of appeal declares that he is appealing from two orders of the Circuit Court entered July 24, 1967, following a bench trial, wherein the court 'denied the motion of the defendant to dismiss' and found defendant 'guilty of driving under the influence of alcoholic liquor' in violation of a village ordinance; and from action of the court on August 22, 1967, denying a 'hearing to correct the record' and denying a 'hearing on a motion in arrest of judgment.'

The facts which form the basis of the charges are not at issue on this appeal, so we will refer to them only briefly. A witness, injured in the occurrence, testified at trial that she was in a car stopped at a railroad crossing in Midlothian at approximately 3:50 A.M., on February 5, 1967. She saw defendant approaching her at a high rate of speed, cross over the center line of the road, smash through the railroad crossing gates, which were down with lights flashing and bells ringing, and crash head on into the front of her car. Defendant was charged with five traffic ordinance violations.

The first hearing was set for February 24, 1967. Plaintiff was granted a continuance at that time to March 31. On that date, the record shows that 'on motion of the defendant' the cause was postponed to May 26. After another continuance, the case was called for trial on June 23, at which time defendant requested a jury, so the case was transferred to jury court for trial on July 24. On that date, defendant waived the jury he had requested at the previous session, and filed a written motion to dismiss the complaints on the ground that 'the alleged offense took place on February 5, 1967, which is a date more than 120 days prior to this date and the delay was not occasioned by the defendant,' in violation of Ill.Rev.Stat.1965, ch. 38, § 103--5. The motion was denied.

After trial without jury, defendant was found guilty of violation of the ordinance prohibiting driving while under the influence of alcohol, and was fined $200 and costs.

On August 14, 1967, defendant presented a written motion to amend the portion of the record showing that on March 31, 1967, defendant had requested a continuance. Defendant asked the court to enter an order nune pro tune as of March 31, 1967, to show that the continuance had been granted at the request of the plaintiff. The court denied the motion on August 22, 1967. After several continuances, an oral motion by defendant for a new trial was denied on September 8, 1967.

Defendant first contends that the trial court erroneously failed to hear a written 'motion in arrest of judgment' on August 22, 1967. The record includes a report of proceedings before the court on that day, and on that day only. It reflects that the only motion argued by defendants attorney was the one to 'correct the record.' Nor does the common law record indicate that any such written motion in arrest of judgment was ever filed. We must rely upon the record 'which imports verity and is unimpeachable evidence of the proceedings in the lower court.' People v. Clark, 30 Ill.2d 67, 73, 195 N.E.2d 157, 160. See, also, People v. Day, 404 Ill. 268, 271, 88 N.E.2d 727; and People v. Berkowski, 385 Ill. 392, 393--394, 52 N.E.2d 710.

Defendant's next contention is that the 'trial court lacked jurisdiction to hear the matter because the ordinance upon which the conviction was based is invalid.' Defendant raises this issue for the first time on appeal. Nowhere in the record is there any indication that the validity of the ordinance was challenged. The validity of a statute or ordinance cannot be raised for the first time on appeal and be considered by the reviewing court. People ex rel. White v. Busenhart, 29 Ill.2d 156, 163, 193 N.E.2d 850; City of Kewanee v. Puskar, 308 Ill. 167, 139 N.E. 60.

Defendant also contends that since more than 120 days had elapsed from the time he was taken into custody until the date of trial, he should be discharged from prosecution pursuant to the pertinent section of the Code of Criminal Procedure. Ill.Rev.Stat.1965, ch. 38, § 103--5. There is no question but that 120 days had elapsed, but defendant's contention is wholly without merit when the statute is applied to the facts of the instant case. The applicable portions of the statute provide as follows:

(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.

(b) Every person on bail or recognizance shall be tried by the court having jurisdiction within 120 days from the date defendant demands trial unless delay is occasioned by the defendant, by a competency hearing, or by an interlocutory appeal.

(c) If the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to...