71 N.E.2d 157 | Ill. | 1947
An information in the county court of McLean county charged the defendant, Robert E. Brickey, with the offense of operating a common gaming house. The information also charged that, in 1944, defendant had pleaded guilty to keeping and operating a gaming house, and that judgment for $200 and costs was rendered against him. A jury found defendant guilty, as charged, and fixed his fine at $1000 and his term of incarceration at eighteen months and one day in the county jail. Motions for a new trial and in arrest of judgment were overruled, and judgment was rendered on the verdict. Defendant prosecutes this writ of error upon the theory that a constitutional question is involved, within the contemplation of section 75 of the Civil Practice Act. Ill. Rev. Stat. 1945, chap. 110, par. 199.
Section 127 of division I of the Criminal Code (Ill. Rev. Stat. 1945, chap. 38, par. 325,) ordains: "Whoever keeps a common gaming house, or in any building, booth, yard, garden, boat or float, by him or his agent used and occupied, procures or permits any persons to frequent or to come together to play for money or other valuable thing, at any game, or keeps or suffers to be kept any tables or other apparatus, for the purpose of playing at any game or sport, for money or any other valuable thing, or knowingly rents any such place for such purposes, shall, upon *142 conviction, for the first offense be fined not less than $100, and for the second offense be fined not less than $500, and be confined in the county jail not less than six months, and for the third offense shall be fined not less than $500, and be imprisoned in the penitentiary not less than two years, nor more than five years."
Defendant was charged with a second offense of keeping a common gaming house in violation of the quoted statutory provisions. Among the errors relied upon for reversal are (1) that the statute which forms the basis for the information is unconstitutional; (2) that the punishment sought to be inflicted is unconstitutional in that it is excessive and out of proportion to the offense alleged to have been committed, and (3) that the judgment entered on the verdict is in violation of the State and Federal constitutions and, also, the statutes of this State.
Before this court assumes jurisdiction of an appeal or a writ of error on the ground that a constitutional question is involved, it must appear from the record that a fairly debatable constitutional question was urged in the trial court, the ruling on it must be preserved in the record for review, and error must be assigned upon it here. (Jenisek v. Riggs,
Recourse to the motion for a new trial discloses only the general statement as the thirteenth and last ground urged by defendant that the section of the statute under which the verdict was rendered against him is unconstitutional. The same statement appears as defendant's first error relied upon for a reversal. The grounds relevant to a constitutional question advanced in the motion in arrest of judgment are equally vague and general. Among the nineteen reasons assigned were that the statute forming the basis of the information is void and in contravention of the Federal and State constitutions; that the verdict sought to be enforced is excessive and in violation of the Federal and State constitutions; that on account of all the matters referred to in the motion, defendant was denied the equal protection of the laws and due process of law and a fair trial in contravention of section 2 of article II *144
of the constitution of this State and section 1 of the fourteenth amendment to the Federal constitution, and, finally, that the verdict and judgment transcend section 20 of division II of the Criminal Code. (Ill. Rev. Stat. 1945, chap. 38, par. 600.) The statement that the verdict sought to be enforced is unconstitutional, because excessive, is followed by a parenthetical reference to section 11 of article II of our constitution. Similar statements appear in the second and seventh errors relied upon for reversal, both to the effect that the punishment inflicted is unconstitutional in that it is excessive and disproportionate to the offense charged to have been perpetrated and that, consequently, the judgment rendered on the verdict violates State and Federal constitutional guaranties. The punishment meted out to defendant by the jury is specifically authorized by the applicable provision of the Criminal Code. Accordingly, the contention that the verdict and judgment are excessive does not raise a constitutional question but, instead, questions of statutory construction. A punishment authorized by law cannot be said to be disproportionate to the nature of the offense unless the law under which the punishment is imposed is subject to the objection. (People v. Cary,
It cannot be said that the seventeenth reason assigned in support of the motion in arrest of judgment properly presented a constitutional question in the trial court. The statement that, on account of all the matters referred to in the preceding sixteen paragraphs, defendant was denied *145
the equal protection of the laws, due process of law, and a fair trial, presents merely a question of the correctness of the judgment and not a constitutional question. (Economy Dairy Co. v.Kerner,
It is true that, in a memorandum opinion disposing of the motion for a new trial, the trial judge stated that the first question presented was the constitutionality of the statute, as applied in this case. The question of the application of a statute does not present a constitutional question, however, but merely a construction of the statute. Another question stated to have been presented was whether the verdict rendered was legal. To sustain the conclusion that the verdict rendered was legal, the trial court relied upon and quoted at length from Hankins v.People,
Construing the motion for a new trial, the motion in arrest of judgment, and the errors relied upon for a reversal *146
most favorably to defendant, the questions presented go to the validity of the judgment, and do not present constitutional questions, within the meaning of the statute authorizing direct appeals to, or writs of error from, this court. Chapralis v. Cityof Chicago,
The cause is transferred to the Appellate Court for the Third District.
Cause transferred.