Appeal from the Circuit Court of Cook County, First Municipal
District; the Hon. FRANK LOVERDE, Judge, presiding. Reversed and
remanded with directions. Appeal dismissed.
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 27, 1969.
In a non-jury trial the defendant was found guilty of driving a motor vehicle while under the influence of intoxicating liquor. He was sentenced to ten days in jail, fined $300 and his driver's license was revoked for one year.
On appeal the defendant contends that he was not proven guilty beyond a reasonable doubt, that he was convicted and sentenced on a void complaint and that he was prejudiced by the filing of a second complaint which included the allegation that he had been previously convicted of drunken driving.
At approximately 12:30 a.m. on July 2, 1966, as the defendant was proceeding northwest on Milwaukee Avenue in the city of Chicago, his auto suddenly veered halfway across the center line. A police car was behind him at the time and the officer signaled him to stop and gave him two tickets one for changing traffic lanes and the other for violating "section 47 U.A.R.T. State of Illinois." (Section 47 of the Uniform Act Regulating Traffic: driving a vehicle while under the influence of intoxicating liquor or narcotic drugs; Ill Rev Stats 1965, c 95 1/2, par 144.) At the trial the officer testified that the defendant's breath smelled of alcohol, that he appeared sleepy, that he staggered and swayed as he walked, that his speech was "mush-mouth" and that his clothes were in a state of disarray. He stated that in his opinion the defendant was under the influence of alcohol. On cross-examination he said that the defendant was not speeding, that he stopped immediately when signaled, that he was polite and appeared tired and relaxed.
The defendant testified that he had an allergy and was required to take antihistamine pills. He related that, at about 4:30 p.m. on the afternoon of July 1, 1966, he had taken two of these pills and had napped from about 8:00 to 11:00 p.m. that evening. He then went for a walk and stopped at a tavern where he drank a glass of wine. He returned home, got his car and drove a friend home. He was returning to his own home when he was arrested. He denied being under the influence of intoxicating liquor and attributed his condition to the pills he had consumed.
[1-4] It was for the trial court to determine both the credibility of the witnesses and the weight to be given their testimony. A court of review will not disturb the finding of the trial court unless the evidence is so improbable or unsatisfactory as to leave a reasonable doubt of the defendant's guilt. People v. Pendleton, 75 Ill. App.2d 314, 221 N.E.2d 112 (1966); People v. Cooper, 69 Ill. App.2d 18, 216 N.E.2d 168 (1966). The evidence in this case is not of such caliber. The defendant did not contradict the testimony of the police officer but instead assigned another reason for his physical condition: that two antihistamine pills produced the condition described by the officer some eight hours after their consumption. The trial court was under no obligation to believe his unsupported assertion and the evidence was sufficient to prove his guilt beyond a reasonable doubt.
The defendant contends that he was sentenced under a void complaint and that his conviction must be reversed under the authority of People v. Stringfield, 37 Ill. App.2d 344, 185 N.E.2d 381 (1962). The traffic ticket issued to the defendant was the form used by the Chicago Police Department and constituted both a complaint and a summons. It contained personal facts about the defendant, his car and its license numbers, and pertinent information concerning the time and place of the offense, the weather and traffic conditions and the name and star number of the officer who made the arrest. It stated the charge against the defendant and informed him of the court where, and the date and hour when, he had to appear.
The officer gave a copy of the ticket to the defendant and retained the original. The copy charged that the defendant, ". . . did then and there violate section 47 U.A.R.T. State of Illinois." Citing the statute alleged to have been violated without naming the offense in a manner that could be clearly understood by the accused was inadequate in law. A complaint must be sufficiently specific to inform the offender of the accusation against him so that he will be able to prepare his defense and avoid being placed in double jeopardy. People v. Griffin, 36 Ill.2d 430, 223 N.E.2d 158 (1967). It would be an uncommon motorist who would realize what was meant by "section 47 U.A.R.T." If, perchance, he did know the provisions of the statute he would still not know whether he was being charged with driving while under the influence of narcotic drugs or intoxicating liquor.
However, the ticket retained by the officer was the one upon which the defendant was tried. This ticket-complaint was amended before trial through the addition, by means of a rubber stamp, of the words: "Driving a motor vehicle while under the influence of intoxicating liquor." The complaint, as amended, shows upon its face that it was subscribed and sworn to by the arresting officer before the clerk of the court. The amended complaint was sufficient to advise the defendant of the precise offense with which he was charged. The other portions of the complaint informed him of the date, time, place and circumstances of the offense, and if he needed further information he could have requested a bill of particulars. But the defendant did not ask for further information; he claimed no surprise and did not request a continuance.
In People v. Stringfield, the charge on the traffic ticket was also insufficient. It was altered to supply the deficiency but the record did not indicate when the amendment was added and it could have been after the trial. In the present case, the amendment was made before trial and was known to the defendant. The complaint upon which the defendant was tried was valid.
At the trial the prosecution was permitted to file an additional complaint one which is customarily referred to in the traffic court as a "long-form" complaint. This complaint repeated the charge that the defendant drove his auto while under the influence of intoxicating liquor on July 2, 1966, and alleged that he had been convicted of a similar offense in August of 1964. The additional complaint was read to the trial judge. The defendant objected to the inclusion of the prior conviction in the complaint on the ground that it was prejudicial. The court overruled the objection.
The State's purpose in alleging the prior conviction was to obtain a more severe punishment for the defendant in the event he was found guilty. The penalty for operating a motor vehicle while under the influence of intoxicating liquor is set forth in subsection (c) of section 47:
"(c) Every person who is convicted of a violation of this section shall be punished by imprisonment for not less than 2 days nor more than 1 year, or by a fine of not less than $100 nor more than $1,000 or by both such fine and imprisonment. On a second or subsequent conviction for an offense committed within 5 years after the commission of the first offense he shall be punished by imprisonment for not less than 90 days nor more than 1 ...