Error to Circuit Court of Winnebago County; the Hon. WILLIAM
R. DUSHER, Judge, presiding. Judgment affirmed.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
Rehearing denied January 21, 1966.
Defendant, whom a Winnebago County jury found guilty of the murder of his brother, Donald Edward Triplett, sued out a writ of error in the Supreme Court to review the original judgment of conviction whereunder he was sentenced to life imprisonment. He had abandoned a prior writ of error in that court, apparently in favor of a post-conviction proceeding in the trial court. Defendant's 1961 petition under the Post-Conviction Hearing Act (Ill Rev Stats 1961, c 38, pars 826-832) was dismissed by the Circuit Court as insufficient to require a hearing, and the Supreme Court denied a writ of error to review that judgment (People v. Triplett, Memorandum Order 3307). See 33 Ill.2d 155, 210 N.E.2d 522.
In considering the effect of the denial of said writ of error and in transferring the cause to this court, the Supreme Court stated at page 156:
". . . As a consequence, all constitutional questions sought to be posed here are barred (People v. Lewis, 2 Ill.2d 328, 330; followed in Merkie v. People, 15 Ill.2d 539; People v. Byrd, 21 Ill.2d 114, 115; People v. Powers, 22 Ill.2d 174, 175; People v. Dampher, 28 Ill.2d 136, 137), and no basis exists warranting initial review by this court.
"We are mindful that an earlier motion by the State to transfer the cause was denied, but further examination of the jurisdictional situation compels the conclusion that this disposition of the motion was improvident. Accordingly, and for the foregoing reasons, the cause is transferred to the Appellate Court for the Second District for a determination of the remaining non-constitutional questions."
Subsequently, in the case of The People v. Holland, 33 Ill.2d 246, 211 N.E.2d 265, in discussing the effect of the dismissal of 1952 and 1956 Post-Conviction Hearing Act petitions, the court stated at page 248:
"The petition was dismissed without an evidentiary hearing and defendant did not seek to review the judgment of dismissal. In 1956, represented by counsel of his choice, he filed a similar petition, incorporating by reference all of the allegations of the 1952 petition. This petition was likewise dismissed and again the defendant did not petition this court for a review of the judgment of dimissal.
"The prior denials of the post-conviction petitions are res judicata of all claims raised therein and of all constitutional claims which could have been raised and the constitutional claim now advanced cannot be considered on this writ of error, (People v. Dampher, 28 Ill.2d 136). There is therefore no basis for direct review by this court and the cause is transferred to the Appellate Court for the Second District for consideration of the remaining issue. See People v. Triplett, No. 38752, decided this term."
It is apparent from the Triplett and Holland cases, that the Supreme Court regarded all constitutional questions posed in the Triplett case as barred, and left for our consideration the remaining non-constitutional points raised in the review of the judgment of conviction.
These points are: (1) that the results of a polygraph or "lie detector" test are inadmissible in evidence and when brought to the attention of the jury, are prejudicial and constitute reversible error; (2) that the exclusion of competent material evidence is reversible error where the verdict might have been different if such evidence had been admitted; and (3) that the accused may, and should be permitted to introduce evidence in rebuttal of that introduced by the prosecution. A consideration of these points does not require full reference to the facts in connection with this charge of murder. For brevity, only the essential facts pertaining to the alleged errors will be recited.
The defendant filed a motion for new trial and a motion in arrest of judgment, but failed to assign in such post-trial motions any error with reference to his taking a polygraphic examination or the disclosure of the results thereof. Such failure constituted a waiver of this point. Where the grounds for a motion for new trial are stated in writing, as in the case at bar, a reviewing court is limited to a consideration of the errors alleged in the written motion and all others are deemed to have been waived. The People v. Baker, 8 Ill.2d 522, 524, 134 N.E.2d 786 (1956).
The basic reasons underlying such rule are succinctly stated in The People v. Brand, 415 Ill. 329, 114 N.E.2d 370 (1953) at page 337:
"It is a rule of universal application that the reversal of a judgment cannot be urged upon a ground not submitted to the trial court and upon which it did not and was not asked to decide. Cummings v. People, 211 Ill. 392."
The remaining errors charged by the defendant pertain to the exclusion of evidence which the defendant contends was competent. During the trial of this case, Deputies Ferona and Iasparro, while testifying in rebuttal for the prosecution were asked in cross-examination whether they told the defendant that he was too drunk to remember what had happened on the morning of September 7. Particularly, they were asked whether these statements were made to the defendant in the interrogation room in the County Jail and ...