93 Ill. App. 553 | Ill. App. Ct. | 1901
delivered the opinion of the court.
This was an information against plaintiff in error for keeping a nuisance, as defined in section 7 of the dram-shop act. It contained, four counts. The first and fourth were amended by the state’s attorney under leave of court, and the second was quashed. The trial before a jury was upon the first and fourth amended counts and the third original count, and a plea of not guilty. There was a verdict of guilty. Defendant was sentenced to confinement in the county jail for thirty days, and was fined $75, and an order was entered that the place be shut up and abated till plaintiff in error should give bond in the penal sum of $1,000 with security to be approved by the court, conditioned that he would not sell intoxicating liquors therein, contrary to the law of the State of Illinois.
1. The court did not err in permitting the state’s attorney to amend the information. The reasons are stated in Truitt v. The People, 88 Ill. 518, and Long v. The People, 135 Ill. 435. The motion for leave to amend the first count was made immediately after an order quashing that count. An information was treated at the common law as a declaration in the King’s suit; and it is common practice to permit a declaration to be amended after demurrer thereto sustained.
2. It is argued the information does not sufficiently describe the place. The first count described it as “ at and within Green township in said,county of Mercer in the State of Illinois aforesaid, at and near a small village or collection of houses commonly known as Wanlock, a more particular description of which said place is to the said state’s attorney aforesaid unknown.” The third count described it as a house, room, and place of public resort, “ at and near a place known and commonly called Wanlock.” The fourth count described the place substantially as in the first and added, “ and at or near divers public roads, being common highways, and also near the occupied dwelling houses of divers citizens of said county.” The proof showed there was a small village called Wanlock in said county, and that defendant kept a place a few rods therefrom "where he sold intoxicating liquors. It was not claimed by defendant that he kept more than one such place at or near Wanlock. There was nothing in the proof to indicate that the description did not sufficiently locate the place. We think the description sufficient in this case.
3. Defendant, upon the cross-examination of Burns, a witness for the people, asked, “Were you ever in the Reform School in the State of Iowa?” The court sustained an objection to the question and the defendant excepted. It is only conviction of an infamous crime which can be shown for the purpose of affecting the credibility of a witness, and on the trial of a criminal case such conviction can only be shown by the record. (Burke v. Stewart, 81 Ill. App. 506.) The objection was properly sustained.
4. Defendant claims the court denied a motion by defendant to keep the jury together during an adjournment of the court. It is discretionary with the court to permit a jury to separate in criminal cases, not capital, unless some sufficient cause is shown why they should be kept together. (Sutton v. The People, 145 Ill. 279.) The bill of exceptions does not show any such motion, nor what showing, if any, was made in support thereof,, nor that the court denied the motion, nor an exception thereto. The record, therefore, does not show any error in that respect.
5. It is argued that the state’s attorney in his closing address to the jury improperly alluded to the fact defendant had not testified. In a supposed written motion for a new trial which the clerk has copied into the record, such a statement is made, but the mere allegation is not proof. The bill of exceptions does not show (nor does the record anywhere) that such language'was used by the state’s attorney. The condition of this record on this subject is almost identical with that presented in Crown Coal and Tow Co. v. Taylor, 184 Ill. 250, and what is there said is decisive that this record does not disclose any such error as is now alleged.
6. The court instructed the jury that if they found defendant guilty the form of their verdict should be, “ We, the jury, find the defendant guilty in manner and form as charged in the information.” It is urged this permitted a verdict of guilty under the second count, which had been quashed. When the second count was quashed, and the state’s attorney did not ask leave to amend it, it was no longer a part of the information for the purposes of the trial. The trial was only upon the counts held good. There is nothing in the record to show that the second count was before the jury at all. The instruction and verdict must be held to relate to the counts to which the plea of not guilty was interposed, and on which the trial was had. If defendant feared.the jury might suppose the trial was upon the second count he should have asked an instruction upon the subject. Where there is any danger of misapprehension by the jury in such a matter, a defendant can not complain if he does not ask to have it prevented by an instruction. (Dunn v. The People, 109 Ill. 635; McDonnall v. The People, 168 Ill. 93.) Besides, but one offense is charged in the different counts, to wit, keeping a place where intoxicating liquors were sold in violation of the dram-shop act, and which was therefore a public nuisance; and a single good count is sufficient to support a general verdict of guilty. (Mayes v. The People, 106 Ill. 306.)
7. The court did not err in the other rulings upon the instructions which have been argued here. Unlawful acts by defendant were proved; and whether he intended to violate the law was immaterial in this case. (Mullinix v. The People, 76 Ill. 211; Gallagher v. The People, 29 Ill. App. 401.) Defendant’s acts were intended by him, and he was bound to know whether they were violations of the law. The court gave to the jury instruction number 14, but failed to write the word “ Given ” upon it. This is not sufficient ground for reversal. (Tobin v. The People, 101 Ill. 121.) Moreover, the instruction was offered by the people, and if the omission harmed any one it was the prosecution. The proof justified a conviction, and was not contradicted, except by an attempt to impeach one witness who had testified for the people.
8. The judgment required that the bond to be given by defendant before he should be allowed to keep that place again should be conditioned “ that he will not sell intoxicating liquors therein, contrary to the law of the State of Illinois,” etc. It is argued it should have been “ contrary to the dram-shop act.” This provision in the court’s order is in conformity with section 7 of the dram-shop act, under which defendant is here prosecuted, which reads, “conditioned that he will not sell intoxicating liquors contrary to the laws of this State.”
9. The bill of exceptions does not contain a motion for a new trial, nor any points in support thereof, nor the action of the court upon the motion, nor any exception thereto, nor an exception to the judgment. The clerk undertook to supply this omission in the record kept by him, but was powerless to certify what was done before the court on these matters. (East St. Louis Electric R. R. Co. v. Cauley, 148 Ill. 490.)
The judgment is affirmed.
