delivered the opinion of the court.
This is a writ of error by the defendant, Lee Roy Jensen, plaintiff in error, to review a judgment of conviction and sentence of October 16, 1958, of 180 days at the State Penal Farm at Vandalia entered in the County Court of Kankakee County, following a verdict of guilty by a jury at a trial upon an information charging the defendant with driving a motor vehicle upon a public highway in Kankakee, June 8, 1958, without having in his possession a valid operator’s license and at a time when his operator’s license had been revoked by the Secretary of State.
On September 25, 1958, the Court ordered a venire to issue by the Clerk for 18 men and women from the body of the County, returnable October 2, 1958, to serve as petit jurors, which was issued, and the veniremen summoned. On that date the case proceeded to trial, a jury panel of veniremen was sworn to answer questions, was examined by the State’s Attorney and attorneys for the defendant, and the jury was accepted and sworn to try the issues. At the conclusion it was stipulated by the attorneys for the defendant and the State’s Attorney, in open Court, that the jury might return a sealed verdict, to be opened by the County Judge, and any motions following the opening thereof to be made October 16,1958, before the County Judge of another County who had tried the case upon a change of venue requested by the defendant. On October 3, 1958, in open Court in the presence of the defendant and his attorneys and the State’s Attorney, the sealed verdict of the jury was opened, finding the defendant guilty, it being signed by all jurors, and below their signatures appeared the words “with recommendation for maximum leniency,” and the case was continued to October 16, 1958. At that time the defendant made an oral motion for new trial, and an oral motion for judgment notwithstanding the verdict, which motions were denied, a judgment of conviction was entered on the verdict, and the defendant’s then motion for probation was referred to the Probation Officer and the cause continued to November 6, 1958, for a hearing thereon and of any evidence in mitigation or aggravation. At that time, after a hearing, at which the defendant presented no evidence, probation was denied and the defendant sentenced.
The material evidence was substantially to the effect that the defendant had been driven by a friend in the defendant’s brother’s auto to the I. C. depot in Kankakee, about 11:30 p. m., June 8, 1958, to get the Sunday papers. The auto had been parked on the street in a space reserved for people having business at the depot. The papers not being in, they went across the street to a hotel to wait. While there the friend received a call from home and left. The Sunday papers were not ready until later. The defendant tried to find someone to drive the car off the street, but could not. About 3:00 a. m., he got into the car for the purpose, he says, of driving into a parking lot next to the depot about 100 feet down the street. He says lie had driven only about 60 steps (or, at another place, 60 feet) when he was arrested. He had no operator’s license at the time. It had previously been revoked pursuant to a prior conviction for driving a motor vehicle while under the influence of intoxicating liquor, and a restricted driving permit, applied for by the defendant, had been denied. The arresting officer, who had observed the defendant driving, said the defendant had driven about a half block before he was stopped, and did not ask to put the car in a parking lot, but said, instead, that he was only two blocks from home and wanted the officer to let him go home, which the officer refused.
The defendant urges here, in his “errors relied upon for reversal” that the Court erred in these respects: (1) in receiving the sealed verdict of the jury and opening it without the jury being present, thereby making it impossible for the defendant to poll the jury; (2) in not following the provisions of the statute in selecting the panel of jurors; (3) in admitting incompetent evidence at the hearing on aggravation and mitigation; (4) in refusing to give two instructions tendered by the defendant; (5) in imposing an excessive penalty, not proportionate to the nature of the offense; (6) in denying his motions for new trial, and in arrest of judgment, and for release on probation; and (7) he did not receive a fair and impartial trial.
The People urge, at the outset, that the defendant failed to present and file his bill of exceptions or report of proceedings at the trial in apt time, and that, hence, the cause is before this Court solely on the common law record. Under Appellate Court Rule 12, Ch. 110, Ill. Rev. Stats., 1957, par. 201.12, the provisions of the Civil Practice Act and the rules of this Court referring to appellant and appellee include, to the extent applicable, plaintiff in error and defendant in error in criminal cases. And under Appellate Court Rule 2, Ch. 110, Ill. Rev. Stats., 1959, par. 201.2, in all criminal cases in which writ of error is sought, the bill of exceptions, or report of proceedings at the trial, if it is to be incorporated in the record on review, shall be submitted by the plaintiff in error to the trial judge for his certificate of correctness, and be filed, duly certified, in the trial court within 100 days after judgment was entered, or within any extension thereof granted within the 100 days or any extensions thereof. January 24, 1959, was 100 days after October 16, 1958, the date judgment was apparently entered herein. On January 20, 1959, within that 100 days, upon motion of the defendant, an order was entered, according to the abstract, extending the time for filing the report of proceedings to February 14, 1959. According to the abstract the report of proceedings was submitted by the defendant to the trial judge for his certificate and was so certified February 16, 1959, and the Clerk’s certificate to the entire transcript of record is dated February 16, 1959. Accordingly, the report of proceedings was late and was not submitted by the defendant to the trial judge for his certificate of correctness and filed, duly certified, in the trial court within 100 days after judgment was entered or within the extension thereof granted within the 100 days. That the report of proceedings, according to the abstract, purports to bear a file mark of the Clerk of the trial court of February 10, 1959, is of no significance, because it was not submitted to the trial judge for his certificate until February 16, 1959, it could not legally effectively be filed until it had first been so duly certified, it was not an effective report of proceedings until so certified, and if it can properly be considered as ever officially filed in the trial court such apparently was as of February 16, 1959, the date of the Clerk’s certificate to the whole transcript of record. Nor is it of any significance that we have (as the defendant says in his reply brief) heretofore on May 7, 1959, granted the defendant, upon consent of the People, leave to withdraw a partial record filed by him in an earlier writ of error (which had been dismissed for the defendant’s not filing an abstract and brief) and to refile snch as part of the complete record in this present case based on a second writ of error; that prior partial record, as the defendant says, did not contain any report of proceedings; the only report of proceedings involved is the foregoing included in the record on his present second writ of error, which was late, as indicated; and our permitting the defendant to withdraw that prior partial record and refile it has, under the circumstances, nothing to do with the proper submission, certification, and filing in apt time in the trial court of a report of proceedings. Accordingly, this cause is before us solely on the common law record. Cf. Lukas v. Lukas (1942)
As to the defendant’s first contention that the Court erred in receiving the sealed verdict of the jury and opening it without the jury being present, thereby making it impossible for the defendant to poll the jury, the only references to that in the abstract are that at the trial October 2, 1958, “by agreement it was stipulated that the jury might return a sealed verdict which was to be opened by Judge Irwin C. Taylor on October 3, 1958,” the verdict of guilty was signed by all the jurors, and on October 3, 1958, “sealed verdict, duly signed, was opened by Irwin C. Taylor, County Judge, and read by the Court.” Under the applicable statute, Ch. 38, Ill. Rev. Stats., 1957, par. 745, in cases of misdemeanor only, if the prosecutor and the person on trial agree, the agreement to be entered on the minutes, that the jury, when they have agreed upon their verdict, may write and seal the same, and after delivering the same to the Clerk, may separate, it is lawful for the court to carry into effect any such agreement and receive any such verdict so delivered to the Clerk as the lawful verdict of the jury. The present case involves a misdemeanor only: Ch. 95½, Ill. Rev. Stats., 1957, pars. 6 — 303, 6 — 401; Ch. 38, Ill. Rev. Stats., 1957, pars. 585, 586. The minutes, as indicated in the abstract, reflect an agreement between the prosecutor and the defendant in substance of the type permitted by the statute, and it was lawful for the Court to carry into effect that agreement and receive such verdict as the lawful verdict of the jury. Further, it may be observed, the abstract does not specifically indicate the jury was not present when the verdict was opened, or that the defendant made any request to poll the jury, or that the Court, without the defendant’s acquiescence or agreement, did anything to make it impossible for the defendant to poll the jury. We will not search the record for claimed errors. The abstract prepared by the defendant will be presumed to be sufficient to present fully every error relied upon, and will be taken to be accurate and sufficient unless the opposite party files an additional abstract, which was done here, and then the abstract and additional abstract together will be taken to be accurate and sufficient: Appellate Court Rule 6, Ch. 110, Ill. Rev. Stats., 1957, par. 201.6. All of the cases cited by the defendant, Nomaque v. People (1825) Breese (1 Ill.) p. 145, Reins v. People (1863)
As to the defendant’s second contention that the Court erred in not following the provisions of the statute in selecting the panel of jurors, the only manner in which a petit jnry can be objected to is by filing a challenge to the array in the trial court, if it is desired to raise any question as to the legality of the petit jury and save such question for review; the abstract and record here fail to show that any challenge to the array of veniremen from whom was chosen the jury which tried the case was filed in the trial court and therefore no question in this respect is preserved for review: People v. Shipman (1953)
The defendant’s third and fourth contentions — that the Court erred in admitting incompetent evidence at the hearing on aggravation and mitigation, and in refusing to give two instructions tendered by the defendant — are matters in the report of proceedings, which is, for the reasons indicated, not properly a part of this record and those matters are, hence, not before ns for consideration.
As to the defendant’s fifth contention that the Court erred in imposing an excessive penalty, not proportionate to the nature of the offense, the sentence is for 180 days at the State Penal Farm at Vandalia. The statute, Ch. 95½, Ill. Rev. Stats., 1957, par. 6—303, provides, so far as material, that any person who drives a motor vehicle on any highway of this State at a time when his operator’s license is revoked shall be punished by imprisonment for not less than 7 days nor more than 1 year and there may be imposed in addition thereto a fine of not more than $1000. The sentence here is well within the statute. A punishment authorized by law cannot be said to be disproportionate to the nature of the offense unless the law itself under which the punishment is imposed is subject to the objection; where a sentence is imposed within the limits of the statute, as here, no constitutional question with respect to the punishment being disproportionate can be involved by merely assailing the sentence; it is necessary to attack the law itself and show it violates some specific provision of the constitution in order to raise the question, which the defendant here has not done: People v. Brickey (1947)
As to the defendant’s sixth contention that the Court erred in denying his motions for new trial, and in arrest of judgment, and for release on probation — his motion for new trial was oral, not written, we cannot ascertain from the abstract what the claimed grounds therefor may have been, but to the extent it may relate to matters in the report of proceedings such is not before us for consideration, and to the extent it may relate to matters in the common law record we see no basis therefor; there was no motion in arrest of judgment; and the motion for probation relates to matters in the report of proceedings which are not before us for consideration.
As to the defendant’s seventh and last contention that he did not receive a fair and impartial trial, there is no contention by the defendant that the trial judge, who presided on a change of venue allowed as requested by the defendant, was not fair and impartial, or that the jury, which the defendant accepted apparently without exhausting all his available challenges, was not fair and impartial. That the arresting officer, the chief prosecuting witness, was a prejudiced witness, if he was, as the defendant says, does not make the trial not fair and impartial where there is nothing to indicate the defendant was at all restrained from bringing any such relevant facts and circumstances to the jury’s and judge’s attention, or from having the jury properly instructed as to the credibility, bias, and prejudice, if any, of witnesses. Nor does the report of the probation officer on the defendant’s motion for probation, after the verdict, which report the defendant says was prejudicial, or the allegedly incompetent evidence at the hearing on aggravation and mitigation (where the defendant offered no evidence at all in mitigation) make the trial unfair and impartial. The Court then hearing those matters without a jury is presumed to have disregarded any incompetent proof or offers of proof, if there were any, in the absence of any showing to the contrary. And, certainly, the mere fact the sentence is greater than the defendant thinks appropriate does not mean the judge was not fair and impartial.
The judgment, accordingly, will be affirmed.
Affirmed.