*1 (No. 43743. ILLINOIS,
THE PEOPLE OF THE STATE OF Appellee, AMERMAN, v. WALTER G. Appellant. Opinion 1971. November filed GOLDENHERSH, J., dissenting. MITCHELL, of
DONALD R. Murphysboro, Carbondale, BRANDON, of WILLIAM KENT appointed court, appellant. General, SCOTT, WILLIAM Attorney Spring J. General, of field, IMMEL, Assistant Attorney (THOMASJ. for the People. counsel,) of the delivered the WARD opinion
MR. JUSTICE court: fined Amerman, was G. defendant, Dr. Walter
The in the circuit in a bench he found after was $50 of having possessed on a charge County Jackson identifi owner’s a firearm obtained without having pistol Enforce of Law the Illinois card from Department cation Identification Firearm Owner’s in violation of the ment 83 — 1 et ch. seq. Act. Ill.Rev.Stat. par. Firearm Owner’s contends On appeal due as denying is unconstitutional Identification Act too, He the law. equal argues, process protection statute exercise police improper and here as it a revenue measure power, really subject violation of the constitution provision uniformity *2 of Illinois. of the on
Officers Murphysboro police department 30, 1970, observed the defendant May using pistol A after Dr. him was filed target practice. against complaint Amerman told the that he had the officers obtained from a German World War II and weapon prisonér during advised them that he did not have an identification card issued under the Firearm Owner’s Identification Act. At the trial defendant did not move to the or quash complaint make other motion. statement pretrial opening his told the court that the defendant’s attorney position was that “this law is unconstitutional” and if found totally the defendant intended to the conviction. appeal Thereafter there no was of the development question. There was no it, argument the ruling by on it and no for a The makes no request ruling. judgment reference to There were it. motions. The only post-trial mention of the in the record is in the question opening statement.
We cannot entertain
The
familiar
this
rule is
appeal.
that a
not been
nonjurisdictional
has
question
the
for
trial court
properly presented
preserved
Allen,
review will not be considered on
appeal. (People
17 Ill.2d
is,
course,
This rule
to
61.)
applicable
constitutional
“It
is fundamental
that
the
questions.
the
of a statute cannot be
question
raised for the
of review,
first time
a court
but
properly
have
must
been
and ruled
the trial court
upon
it,
must have
its
person challenging
validity
”
to such
preserved proper exceptions
ruling. [Citations.]
Brand,
329, 337;
see
also
Stout,
42 Ill. 2d
Van Meter v.
The appeal is dismissed. County Jackson dismissed. Appeal GOLDENHERSH, dissenting: MR. JUSTICE Brand, from Quoting on the dismisses ground majority appeal was of the statute of the constitutionality question trial court nor raised preserved properly adequately and the earlier of Brand An examination review. demonstrates which it is based opinions upon rests to state “fundamental” rule which purports relied The court defective foundation. R.R. 138; and Quincy Burlington
McCoy, Chicago, 207; Mechanics’ Traders’ Ottawa, 165 Ill. Co. City of *3 Accounts, Public ex rel. Auditor Ass’n v. People Savings of v. 129; Ill. 392. 211 People and v. 184 Ill. People, Cummings decided issue and was no constitutional involved McCoy without submissions that a of nil debet on the ground plea of law reviewable of no issue of law propositions preserved v. R.R. Co. and this court. Quincy by Chicago, Burlington was issue and no constitutional involved Ottawa City of court before the that in a case tried decided on the ground on are taken rulings a when no without jury, exceptions law are submitted of and no written evidence propositions for of law was either preserved by question party, ex v. Ass’n People review. Mechanics’ and Traders’ Savings all, Accounts, if relevant rel Public Auditor of that: “Where for authority only proposition civil in a in the trial court by is made party objection an unconstitutional of his by right case that is deprived In be raised here.” 135.) law it cannot (184 v. cites: Chiniquy of this statement opinion support court 570, 577, which the 78 Ill. ex rel. Swigert, People to review a that a of a refused contention school portion tax for the was “unconstitutional and void” reason “There see, so far as we can in this record nothing, Zehr, fact;” v. 125 Ill. which shows that which People whether, involved the of the issue question upon present court; ed, was in this or the jurisdiction properly appellate and Board v. Commissioners Supervisors Highways, 574, 575, which, 164 Ill. without citation of authority, holds that an attack on the of a statute certain authorizing construction appropriations bridge would not be reviewed of the trial because,“The court was not law, asked a matter of as upon question by refused, to be held or or in presenting proposition other manner.” v. trial court at the Cummings People request
of the defendant
held
valid,
a statute
and
appeal
defendant
the statute was unconstitutional
and
argued
void. This
Mechanics’ and Traders’
relies
opinion
upon
Ass’n v.
v.
Savings
and
People, People McCoy,
Chicago,
R.R. Co. v.
Burlington
Quincy
City
clearly
Ottawa—
not in point.
In the
v.
42 Ill.2d
People
Luckey,
majority opinion
115, also cited
relies
majority,
Hale,
200;
Orr,
95;
v.
31 Ill.2d
People
10 Ill.2d
People
97;
329;
Brand,
5 Ill.2d
Cosper,
Rohde,
41;
People Dwyer,
599. Hale relies
Orr turn relies
upon Cosper,
Rohde,
Brand and Rohde relies
Author
upon Housing
God,
v. Church
ity
401 Ill
Brickey,
Cosper Ill. Cosper (405 200 311, Reck, 392 Ill. and People
543), involved
“(8) ch. sec. Comments The Committee (S.H.A. state: “Subsection permits p. (a)(8) 123) 114 — does not state to dismiss where motion charge refers to III, with Article “charge” offense. In accordance a or information. Since charge indictment complaint, not defendant not an offense does which does state give will not tried, and the charge full notice why being therein, due an offense is stated unless support be attacked would be violated may process time.” in part:
Our Rule 615 Ill.2d R.615) provides (43 be may or defects substantial affecting rights “Plain errors to the attention were noticed they brought although of the trial court.” *5 Rule, the is to subsection
Adverting (a)(8), to or difficult how a indictment perceive complaint, invalid information can state an offense based statute, and it more is difficult to equally perceive right the “substantial” than to be convicted of an right offense under an unconstitutional statute. charged that there are to situations
Assuming, arguendo the here “fundamental” rule be the one should applied, is not one of them. the trial court Firstly, the were aware the fully that the defense to charge was that the statute and the was unconstitutional finding shows that the court decided clearly issue the defendant. the issue of against Secondly, assuming have should been raised written unconstitutionality by motion, the in Mr. Schaefer’s following language Justice dissent in Ill.2d at Luckey (42 page 118) the us, however, “In case before particularly apposite: useful is served the the doctrine purpose application of waiver. There which the course of way possible the trial if proceedings would have been altered had been present objection advanced the trial It is court. true we do not have the benefit of the views toas statute, judge, but that has not handicapped fully parties presenting this court pertinent authorities arguments what is issue.” purely legal
I dissent from respectfully majority opinion would decide the case on the merits.
(No. 43400. Refining Depart Company, Sinclair v. The Appellee, Revenue,
ment of Appellant. April Opinion Rehearing Jan. denied filed 1972. 1971.