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People v. Vysther

MAY 20, 1964.




Writ of error to the Municipal Court of Chicago; the Hon. FRANCIS McCURRIE, Judge, presiding. Affirmed.


Defendant seeks reversal of a judgment entered after trial on an information without a jury. He was convicted of falsely representing himself to be a police officer, and was placed on probation.

The contention is that the information failed to allege that defendant had falsely stated that he was a police officer; that omission of the word "falsely" from the information rendered it void; and that all proceedings based thereon were, therefore, a nullity. The information, which was filed December 18, 1962, charged the defendant as follows:

Peter Sbalchiero . . . gives the court to be informed and understand that Anthony S. Vysther, heretofore, to wit: on 17th day of December A.D., 1962, at the City of Chicago aforesaid committed the offense of False Impersonation of Police Officer in that: Anthony S. Vysther did on the 17th day of December, 1962 at about 8:45 p.m. stop car driven by Raymond Ackerman at 36 E. 108th St. and stated he was a police officer and asked to see Ackerman's driver's license, Vysther then stopped the following on street at 36 E. 108th St., and told them he was a police officer: David Degani, 10302 Normal Ave., Marie Munarin, 10625 Calumet Ave., Gene Syastak, 10802 Wentworth Ave. Vysther then went to 2nd floor apartment at 36 E. 108th St., pounded on door and demanded entrance, stating he was a police officer, Mrs. Linda Estes occupant refused him entrance and he then proceeded to curse her, in violation of Chapter 38, Section 32-5, Illinois Revised Statutes, 1961, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the People of the State of Illinois.

The statute which defendant was specifically alleged to have violated reads:

A person who falsely represents himself to be an attorney authorized to practice law or a public officer or a public employee shall be fined not to exceed $500 or imprisoned in a penal institution other than the penitentiary not to exceed 6 months, or both. (Ill Rev Stats 1961, c 38 § 32-5.)

We have taken with the case a motion by the State to dismiss the writ of error on the ground that a defendant who requests and accepts probation is deemed to have admitted the regularity of the proceeding and waived all right to a review of his conviction, citing People v. Dowd, 27 Ill. App.2d 429, 170 N.E.2d 179; People v. Mayfield, 414 Ill. 146, 111 N.E.2d 164; People v. Martin, 350 Ill. App. 196, 112 N.E.2d 526; and People v. Collis, 344 Ill. App. 539, 101 N.E.2d 739.

We question the efficacy of this rule to cure a defect or supply an otherwise fatal omission in the basic charging document involving the very jurisdiction of the trial court. People v. Fore, 384 Ill. 455, 458, 51 N.E.2d 548; People v. Edge, 406 Ill. 490, 494, 94 N.E.2d 359; People v. Harris, 394 Ill. 325, 327, 68 N.E.2d 728; People v. Nickols, 391 Ill. 565, 570, 63 N.E.2d 759.

In any event, the motion to dismiss must be denied because of statutory changes which we believe are controlling in this case. The Code of Criminal Procedure of 1963 became effective January 1, 1964. Ill. Rev Stats 1963, c 38, § 125-4. An important procedural change was accomplished by section 117-1(d) of that statute which provides:

The judgment of guilty entered prior to the admission of defendant to probation shall be a final judgment subject to review under Article 121 of this Code.

In opposing the State's motion to dismiss, defendant is entitled to the benefit of this provision even though he was found guilty prior to the effective date of the Code because the savings provisions in section 125-3 of the Code include the following:

(b) In any case pending on or after the effective date of this Code involving an offense committed prior to such date the procedural provisions of this Code shall govern insofar as they are justly applicable and their application does not introduce confusion or delay.

(c) Provisions of this Code according a defense or mitigation shall apply with the consent of the defendant.

(d) Provisions of this Code governing the treatment, eligibility, release or discharge of prisoners, probationers and parolees shall apply to persons under sentence for offenses committed prior to the effective date of this Code except that the minimum or maximum ...

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