352 Ill. 318 | Ill. | 1933
Max Pulliam was convicted in the circuit court of Jackson county of the crime of burglary and sentenced to the penitentiary therefor. He brings the record to this court for review on writ of error.
The indictment consists of five counts, the first of which charged burglary of a dwelling house of Isaac Waggoner with intent to steal his personal property in the house. The second count charged the breaking and entry of the dwelling house of Waggoner with intent to commit robbery. The third count charged an assault upon Waggoner with a pistol with intent to rob Waggoner. The fourth count charged robbery of Waggoner, Pulliam being armed with a pistol. The fifth count charged Pulliam with an assault upon Waggoner with intent to commit robbery from his person. A motion to quash the indictment was made on the ground that its several counts attempted to charge separate and distinct offenses, and before the trial a motion *320 was made to require the State's attorney to elect upon which count of the indictment he would proceed. Both of these motions were overruled, and the action of the court in so doing is now assigned as error.
The rule has repeatedly been laid down in this State that if two or more offenses grow out of one transaction and are of such a nature that the defendant may be found guilty of each he may be charged with the offenses in separate counts of an indictment, and that the prosecutor will not be required to elect for which offense charged he will ask a conviction. An election will only be required where the offenses charged in the different counts are actually distinct from each other and do not arise out of the same transaction. (People v. Pelinski,
Upon a motion for a new trial Pulliam filed the affidavits of himself and several other persons to the effect that he had not been arraigned previous to the commencement of his trial, and the bill of exceptions shows some remarks of the trial judge in ruling upon a motion which would tend to show that Pulliam had not been arraigned. The affidavits were stricken from the files and a new trial refused. The action of the court in this regard is assigned as error. The additional abstract of record filed herein shows that prior to the calling of the cause for trial Pulliam was arraigned and pleaded not guilty. No motion was made in the circuit court to amend the record in this regard to make it speak the truth if it did not do so. Upon appeal to this court the transcript of the record of the trial court imports absolute verity and is the sole, conclusive *321
and unimpeachable evidence of proceedings in the lower court. (People v. Bouderioyni,
Counsel for plaintiff in error claims that the judgment of conviction should be reversed on account of misconduct of the State's attorney in making improper remarks in the examination of a juror, in his opening statement and in his closing argument, in which he referred to other burglaries alleged to have been committed by Pulliam at about the same time as the one for which he was on trial. A reference by the State's attorney to the commission of a crime by a defendant other than the crime for which he is on trial is not necessarily erroneous, as under certain circumstances evidence of the commission of other crimes is not improper, and the State's attorney has a right in his argument to refer to all matters properly shown by the evidence. The general rule on the subject of the admission of evidence of other offenses is correctly stated in People v. Swift,
Finding no reversible error in the record, the judgment of the circuit court is affirmed.
Judgment affirmed. *323
