Appeal from the Circuit Court of Sangamon County; the Hon
SAMUEL O. SMITH, Judge, presiding. Reversed and remanded.
A five count indictment was returned in the Circuit Court of Sangamon County on February 20, 1963, charging the defendants, Merle Hornstein and Marvin Hornstein, with the commission of certain acts of gambling. The case was tried before a jury and the defendant, Marvin Hornstein, was found guilty on all five counts of the indictment, and defendant, Merle Hornstein, was found guilty under Counts I, II, III and V of the indictment. Thereafter, on June 21, 1963, a judgment was entered upon the verdicts of guilty imposing certain fines and sentences upon the defendants. Defendants appeal from this judgment.
The indictment arises out of one occurrence on February 1, 1963, in the City of Springfield, alleging that the defendants were guilty of certain acts of gambling in violation of Section 28-1 of the Criminal Code of the State of Illinois. The five counts of the indictment and the judgment imposed upon the finding of guilty under each is summarized as follows:
1. Count I charged both defendants with knowingly permitting certain premises, therein described, to be used as a place of gambling. The judgment of the trial court imposed a fine of $250 against both defendants under this count.
2. Count II charged the same offense as Count I and further charged both of the defendants with being second offenders, setting forth an alleged prior conviction of each of the defendants concerning violations of the gambling laws of this state. The defendants and each of them were sentenced to the Illinois State Penitentiary for a term of not less than one year nor more than one year and one day, under this count.
3. Count III charged both of the defendants with keeping, operating, owning, using and exhibiting certain gambling devices. The judgment of the trial court imposed a fine upon each defendant in the sum of $250 under this count.
4. Count IV charged the defendant, Marvin Hornstein, with keeping, operating, owning, using and exhibiting certain gambling devices and further set forth an alleged prior conviction of this defendant concerning the violation of the gambling laws of this state. The defendant, Marvin Hornstein, under this count, was sentenced to the Illinois State Penitentiary for a term of not less than one year nor more than one year and one day, to be served concurrently with the sentence imposed under Count II.
5. Count IV charged both of the defendants with engaging in certain conduct; namely, playing a game of chance, to wit, craps, for money or other things of value in violation of the Criminal Code of the State of Illinois, 1961, Section 28-1. Both defendants were fined the sum of $250 under this count.
The defendants contend that the trial court erred in entering five separate judgments based on the five verdicts of guilty. On this issue the People agree that one sentence for the most serious of the offenses contained in the indictment should have been imposed by the trial court and in the present case only one sentence should have been imposed, and that sentence should have been for the greater offense. People v. Duszkewycz, 27 Ill.2d 257, 189 N.E.2d 299; People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316; People v. Squires, 27 Ill.2d 518, 190 N.E.2d 361.
The defendants contend that the judgment of the trial court was erroneous in finding both defendants guilty under Count II of the indictment and finding the defendant, Marvin Hornstein, guilty under Count IV of the indictment, for the reason that sufficient proof was not made to identify either of the defendants as being the same persons previously convicted of a violation of the Illinois gambling laws.
On this issue, both the People and the defendants concede that the leading and controlling cases in this state are People v. Casey, 399 Ill. 374, 77 N.E.2d 812, and People v. Stewart, 23 Ill.2d 161, 177 N.E.2d 237. The People agree that, on principle, the proof of a prior offense under the circumstances here must be of the same degree as that proof required to prove a prior offense under an indictment brought under the old Habitual Criminal Act. It is conceded by them that under the authority of People v. Casey and People v. Stewart, supra, that mere introduction of a certified common law record of conviction containing identity of name is insufficient, in itself, to overcome the presumption of innocence. The People do not contend that the rule in these two cases could or should be overruled, but urge this court to recognize the limitations of the rule.
In People v. Casey, supra, the defendant was convicted of larceny of money and was found guilty under a habitual criminal count. The habitual criminal count was based upon alleged prior convictions of the defendant in Missouri and Kansas. The judgment under this count was reversed on the ground that the evidence was insufficient to prove beyond a reasonable doubt that the defendant was the same person as the one described in authenticated copies of the records of Missouri and Kansas courts, although the person referred to in those records bore the same name as the defendant.
In People v. Casey, supra, our supreme court stated:
"It will be observed that the statute gives the authenticated copy of the record of conviction prima facie effect as evidence, but there is the further question as to the defendant being identified as the person previously convicted. . . . In a prosecution under the Habitual Criminal Act, the defendant is clothed with the presumption of innocence and, as has been pointed out, this applies to the fact of his former conviction which, if proved, enhances the penalty. The mere proof of a record containing identity of name with that of the defendant on ...