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People v. Garner

FEBRUARY 9, 1968.




Appeal from the Circuit Court of Winnebago County, Seventeenth Judicial Circuit; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Judgment affirmed.


In this appeal, the defendant-appellant filed an abstract of record which included neither the indictment, the judgment appealed from, nor the post-trial motions filed in the case.

[1-3] Where the abstract fails to show the indictment or the rendition of any judgment, the appeal may be dismissed. The court will not examine the record to reverse the judgment where an insufficient abstract is filed. The rationale of this rule is that the abstract is the pleading of the appellant by which the cause of action established in the transcript of record is presented for review, and it must be sufficient to apprise the court of the errors relied upon for reversal, without the examination of the record itself. People v. Parker, 345 Ill. 181, 182, 177 N.E. 727 (1931). Also see: Harris v. Annunzio, 411 Ill. 124, 126, 103 N.E.2d 477 (1952); People v. Nelson, 398 Ill. 623, 626, 76 N.E.2d 441 (1948); People v. Bolds, 398 Ill. 626, 628, 76 N.E.2d 456 (1948); People v. Hill, 388 Ill. 247, 248, 57 N.E.2d 859 (1944). A further and pragmatic reason for this rule is that reviewing courts are multiple judge courts and only one transcript of the record is filed.

There exists a tendency on the part of appellants, in both criminal and civil cases, to flagrantly disregard Supreme Court Rule 342(e) (Ill Rev Stats 1967, c 110A, par 342(e)) — a derivation, in part, from former Supreme Court Rule 38 (Ill Rev Stats 1965, c 110, par 101.38) — which outlines the requisites of an abstract of record. We hereby call this dereliction to the attention of counsel and litigants and, without establishing a precedent for future observance, we will consider this case on its merits.

The defendant was indicted in April of 1963 on charges of armed robbery and robbery, in that, on March 26, 1963, he, by use of force or threat of use of force while armed with a gun, took certain money from Leonard Barber, at and within Winnebago County. He entered a plea of not guilty and counsel was appointed to represent him. Two eyewitnesses of the armed robbery — Barber, the owner and operator of a grocery store which was robbed, and Virginia Sullivan, a store clerk (whose testimony was not abstracted by the defendant) — each separately identified the defendant as the robber at a police lineup and at the trial.

The defense to the prosecution was alibi. Two witnesses — who admitted prior convictions of infamous crimes — testified for the defendant and stated that they were playing cards with him at an address on South Winnebago Street at the time of the robbery. These witnesses also said that two persons, other than the defendant, were playing cards with them at the time. The other persons were not called as witnesses.

The jury found the defendant guilty on both the charge of armed robbery and robbery. The court entered judgment on this verdict and sentenced the defendant to a term of not less than 5 nor more than 15 years in the State Penitentiary. It is from this judgment that the defendant has appealed.

The defendant has urged that the trial court erred in certain evidentiary rulings and in instructing the jury. He contends that the trial court erred in admitting the testimony of a police officer who testified on behalf of the People that while parked near the intersection of Winnebago and State Streets, he saw a blue car which answered the description of a car used in a holdup; and that Cleo Bud Garner and Harold Dwayne Smith got out of this car after it parked in the Chestnut Street parking lot.

At the trial, counsel for the defendant offered only a general objection to the testimony of the police officer and the reason — if any, he had for such objection — remained undisclosed. In fairness, the trial judge is entitled to be informed of the basis of the objection before he can be charged with error in his ruling on review. Before us, the defendant now contends that this evidence was hearsay and, therefore, inadmissible.

In People v. Trefonas, 9 Ill.2d 92, 136 N.E.2d 817 (1956), at page 98, the court stated:

"The function of an objection is, first to signify there is an issue of law, and, secondly, to give notice of the terms of the issue. . . . Objections to evidence should designate the particular testimony considered objectionable and point out the objectionable features complained of. . . . A party cannot sit by and permit evidence to be introduced without objection and upon appeal urge an objection which might have been obviated if made at the trial."

[5-7] Generally, objections to the admission of evidence must be specific enough to inform the court and the opponent of the ground or reason for the objection. A general objection to evidence, if overruled, cannot avail the objector on appeal. People v. Jennings, 298 Ill. 286, 288, 289, 131 N.E. 619 (1921); O'Donnell v. People, 224 Ill. 218, 223, 224, 79 N.E. 639 (1906); Wigmore on Evidence (Third Edition) Vol I, § 18, pp 332-336, inclusive. Thus, it is our conclusion that the defendant's general objection to the above question was not adequate to preserve any issue for this court to review. It did not affect any substantial right of the defendant or deprive him of a fair and impartial trial. Thus, we deem this an appropriate occasion to invoke the specific objection rule above set forth.

While section 121-9(a) of the Criminal Code was repealed September 9, 1967, its identical language now appears in Supreme Court Rule 615(a). (Ill Rev Stats 1967, c 110A, par 615(a).) Consequently, the question of the consideration to be given by the reviewing court with reference to substantial and insubstantial errors lingers on.

The People called Virginia Sullivan as a witness, and at the conclusion of her cross-examination counsel for the defendant said: "Now before testifying today, have you talked to anybody about this case?" She replied: "Naturally, it's something you talk about." The defendant's counsel then commented: "No further question." Thereupon, the court asked the following questions of the witness:

"THE COURT: Who did you talk to, the police and the ...

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