Appeal from the County Court of Macon county; the Hon. GUS T.
GREANIAS, Judge, presiding. Affirmed.
Rehearing denied December 2, 1960.
Plaintiff in error, hereinafter referred to as defendant, brings this case by writ of error from the County Court of Macon County to reverse his conviction of the crime of selling and delivering alcoholic liquors to a minor through his, the defendant's, agent or employee. An information consisting of four counts was filed against him on November 26, 1957. All counts of the information except Count 2 charging as above were dismissed. On July 8, 1958, trial was had by jury and a verdict finding the defendant guilty in the manner and form as charged in Count 2 of the information was returned by the jury and punishment fixed at 60 days in the county jail and a fine of $100.00, the maximum allowable under the law. The abstract notes, "Verdict of jury finding defendant guilty of selling alcoholic liquor to a minor in manner and form as charged in Count 2 of information and punishment fixed at 60 days in the county jail and a fine of $100.00." The defendant then moved for a new trial and was granted ten days in which to file his written motion, said motion being filed on July 18, 1958.
On February 16, 1959, the court denied the motion after the hearing of arguments on December 17, 1958. Hearing on the motion had previously been set and had been continued. On the 16th of February defendant moved for probation and probation was granted by the court on March 6, 1959. On May 26, 1959, a report of violation of probation was filed and the following day a rule to show cause why his probation should not be revoked was entered against the defendant. On July 29, 1959, defendant filed his motion asking for an order discharging him and to strike and expunge the cause from the records and for an order declaring proceedings on petition to revoke defendant's probation be vacated, stricken and dismissed, and that the defendant be discharged from custody and recognizance discharged on the grounds, first, that no judgment was entered upon the verdict and therefore the trial of the defendant and proceedings to revoke probation are null and void; second, that no judgment having been entered on the verdict of the jury, the court lacks jurisdiction over the person of the defendant and that further proceedings against the defendant are null and void; and, finally, that the court is without jurisdiction to revoke probation of defendant and is without jurisdiction to enter any sentence against the defendant by reason of the absence of any conviction of said defendant. Affidavits were filed by both of the attorneys for the defendant alleging their presence in court during the entire proceedings and alleged in substance that after the trial judge read aloud the verdict he laid the same aside, thanked the jury and dismissed them, and that at no time during the proceedings after the verdict did the trial judge enter judgment on the verdict of the jury.
On July 21, 1959, the lower court set aside the probation and entered judgment against the defendant, sentencing him to the county jail, and on July 27, 1959, defendant's motion to be discharged was denied. It appears from the record that the court prior to July 21, 1959, did not enter judgment on the verdict and took the attitude that the judgment need not be entered at the time probation was granted for the reason that the defendant, by accepting the terms of the probation and requesting the same, placed himself under the jurisdiction of the court and gave the court the right to enter judgment on the verdict any time thereafter.
Defendant brings this writ of error claiming the lower court erred in denying his motion for an order discharging him and further alleges the court erred in refusing his motion for a directed verdict at the end of people's case and finally that the prosecutor in his final arguments committed reversible error.
[1-4] At the outset it is clear that if defendant, by his motion for probation made after the court denied his motion for new trial, waived his right to appeal, then all other points raised by defendant are moot. The rule in the state is clear that where a defendant moves for release on probation which is granted, and affirmatively assents to the order granting probation and accepts the benefits of probation, his choice between the suspension and contesting the judgment of conviction should be final. He should not be permitted to reverse his stand and take advantage of the alternative he had theretofore rejected. People v. Collis, 344 Ill. App. 539, 101 N.E.2d 739; People v. Mangos, 306 Ill. App. 379, 28 N.E.2d 816. Defendant contends, however, that the lower court lost jurisdiction of the defendant to enter judgment on the verdict by reason of the undue delay. He contends that the trial at which he was found guilty and the proceedings to revoke probation are void by reason of this failure.
In People v. Mangos, supra, the defendant was found guilty by the court on August 9, 1939, and the following order was entered:
"The court finds the defendant guilty in the manner and form as charged in the information herein. Wherefore it is ordered that the same be entered of record herein."
No judgment was entered on the finding. Defendant requested probation and the request was granted. On the same day defendant moved to vacate the judgment. This motion was continued from time to time until October 11, 1939, when the court entered an order stating:
"Motion to vacate judgment sustained. New trial granted. Defendant discharged."
On October 27, 1939, the foregoing order was expunged on motion of the state and the hearing on defendant's motion to vacate the judgment was reset for October 31, 1939. On October 31, 1939, the court overruled defendant's motion to vacate the judgment and defendant again made application to be placed on probation. The court granted the motion and defendant was released on his own recognizance. He was subsequently brought back into court for a violation of his probation and on January 31, 1940, the court found defendant violated his probation and also entered judgment on the original finding that defendant was guilty of the offense charged. In that case the question of the right of the court to enter judgment on January 31, 1940, was not raised. The court stated:
"It is manifest, however, that the defendant recognized the propriety of the action of the court as he again made application to be placed on probation. The court granted his application and he was released on an individual recognizance."
We fail to discern the appreciable difference in the two cases. In each of them defendant was brought in for violation of probation and not until then was judgment entered on the verdict. The court commented on this occurrence, yet obviously ...