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People v. Millner

FEBRUARY 23, 1968.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

CLYDE MILLNER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County, Criminal Division; the Hon. NATHAN M. COHEN, Judge, presiding. Judgment affirmed.

MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.

Defendant was indicted for murder. A jury found him guilty of involuntary manslaughter and he was sentenced by the court to serve a term of not less than 7 years nor more than 10 years in the Illinois State Penitentiary.

On appeal the defendant contends that the court erred in giving instructions numbers 3 and 5, which were tendered by the State, and in refusing instructions 4, 5, 7, 8, 9 and 10, which were tendered by the defendant. Defendant also contends that the trial judge demonstrated, by his remarks immediately prior to passing the sentence, that he was prejudiced against the defendant.

The defense does not contend on this appeal that he was not proven guilty beyond a reasonable doubt.

As to the defendant's complaint concerning the giving of two State instructions and the refusal to give six instructions tendered by the defendant, the issue is not properly before this court. The defendant has abstracted only State's instructions numbers 3 and 5, given to the jury, and defendant's instructions 4, 5, 8, 9 and 10 which the court refused to give to the jury. None of the other instructions, either given or refused, have been abstracted by the defendant.

It has been consistently held that where the abstract of record includes only the instructions complained of without regard to the other instructions, both given and refused, error cannot be predicated upon the giving, refusal or modification of those instructions, since the court is not bound to search the record itself to supply abstract deficiencies. People v. Robinson, 27 Ill.2d 289, 189 N.E.2d 243; see also People v. Todaro, 14 Ill.2d 594, 153 N.E.2d 563; People v. Allen, 17 Ill.2d 55, 160 N.E.2d 818.

Another reason why the point relative to the giving of and refusal to give certain instructions by the court has not been preserved is the failure of the defendant to include in his written motion for new trial the giving of or refusal to give the specific instructions complained of. (People v. Riggins, 13 Ill.2d 134, 148 N.E.2d 450.) Where a defendant has filed a written motion for a new trial and has not assigned as error in the written motion the specific instructions complained of, he is deemed to have waived error as to those instructions. (People v. Neukom, 16 Ill.2d 340, 158 N.E.2d 53.) We will therefore not inquire whether the trial court erred in this respect.

The defendant in his second point argues that the court was prejudiced against him in making the following remarks which immediately preceded the sentencing of the defendant from 7 to 10 years in the penitentiary:

"THE COURT: Well, the Defendant here brought home with him a degenerate and the defendant, by his own testimony, is himself a degenerate.

"THE COURT: I don't believe you. And I feel that I know what I'm saying. Your son has proved to be the only decent citizen, male member of your family that I know. You had a good job and why you got yourself involved in this sort of thing, I don't know. Maybe you'll understand why not, but there is something wrong with you, that's obvious.

"You testified here under oath you took this man home for a degenerate sex act.

"THE COURT: I heard your testimony and I'm judging you by your own testimony. You admitted you went home for this purpose.

"THE COURT: I don't know what's wrong with you, but there's something wrong with you. Why you killed this man, I don't know. I'm satisfied you killed him and you intended to kill him.

"THE COURT: I'm certain you did. No one could fire the gun in that trajectory unless he was on his knees in front of you, ...


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