194 N.E. 296 | Ill. | 1935
A jury in the criminal court of Cook county returned a verdict finding Tony Pamilio guilty of robbery with a gun. He had been indicted and tried with Victor Musso and William Burke for the robbery of George Pappas on July 19, 1933, in Chicago. The indictment contained a count charging Pamilio to be an habitual criminal. The jury found that he had been previously convicted of larceny, with a result that he was sentenced to prison for life. He brings the case here for review by writ of error.
It is claimed that the evidence afforded an insufficient foundation for the verdict. Pamilio cannot urge this on review, as his motion for a new trial is contained in the common law record and not in the bill of exceptions. (People v. Buckman,
The indictment is complained of on the ground that the second count, relating to the Habitual Criminal act, (Smith's Stat. 1933, chap. 38, pars. 602, 603,) sets forth conclusions of the pleader as to a prior judgment of conviction. It is urged that this count should have set forth in hæc verba the placita, showing what judge presided at the trial when the judgment was entered and that the court was in open session and legally constituted for the transaction of business. It appears, however, that Pamilio failed to attack the sufficiency of that count prior to trial by a motion to quash. This failure precludes him from raising that question by a *611
motion in arrest of judgment. A contrary expression has been cited to us in the case of People v. Goldberg,
It is further complained that Pamilio has been unduly prejudiced by the fact that he was tried with Burke and Musso. But this objection comes too late. The record shows that he went to trial without asking for a severance of his case from that of Musso and Burke. A motion for separate trial is addressed to the sound discretion of the trial court, and its denial will not be reviewed by this court unless there has been an abuse of that discretion. (People v. Hotchkiss,
The judgment is affirmed.
Judgment affirmed.