APPEAL from the Circuit Court of Cook County; the Hon.
LAWRENCE GENESEN, Judge, presiding.
MR. PRESIDING JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:
Driving a vehicle while under the influence of intoxicating liquor. Ill. Rev. Stat. 1967, ch. 95 1/2, par. 144(a).
After a bench trial, defendant was found guilty, he was fined $100, and his driver's license was revoked.
CONTENTIONS RAISED ON APPEAL
1. The trial court erred in basing its decision on defendant's post-trial motion on matters outside the record.
2. Defendant was not proven guilty beyond a reasonable doubt.
3. Defendant was denied his right to due process of law because he was required to give evidence against himself in the form of physical performance tests at the police station prior to his arrest.
4. Defendant was prejudiced by the introduction into evidence of statements made by him prior to his arrest.
5. The complaint upon which defendant was tried was defective in that it described the violation as "driving a vehicle while under the influence of intoxicating liquor or narcotic drugs," and was not amended to delete the words "or narcotic drugs" until after the end of the trial.
Defendant was tried and found guilty on October 13, 1967. The guilty finding was based on the testimony of the arresting officer who stated that there was an odor of alcohol on defendant's breath when his car was stopped, and that he appeared unfit to drive, the effects of the alcohol being extreme. The officer also testified that defendant was wobbling, swaying and unsure of himself during various physical performance tests administered at the police station to which he had been taken. Defendant called three witnesses, two of whom had been with him for a period of two hours ending shortly prior to his being stopped by the police. They testified that defendant had drunk two or three beers during that time and did not appear intoxicated when he left their presence. Defendant denied wobbling or swaying during the performance tests. Two of his witnesses also testified to his good reputation for truth and veracity.
Defendant filed a post-trial motion asking that the judgment be vacated, or, in the alternative, for arrest of judgment or a new trial. The first paragraph of that motion alleged that the trial judge may have been prejudiced because of his having learned, outside the evidence, that defendant had previously been arrested (though not convicted) on a similar charge. This motion was continued, with a stay of mittimus, until December 21, 1967.
The motion was argued and denied on December 21. The stipulated report of proceedings which is a part of the record under Supreme Court Rule 323(d) (Ill. Rev. Stat. 1967, ch. 110A, par. 323(d)), shows that the trial judge, on that date, stated he "had done some independent checking and investigation into the character and background of the defendant," and, based on that inquiry, he was denying the motion. The court then extended the stay of mittimus until ...