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The People v. Diaz

SEPTEMBER 28, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

EDWIN DIAZ, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. SULSKI, Judge, presiding.

MR. PRESIDING JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:

After a non-jury trial, defendants Edwin Diaz and Joseph Luke were convicted of attempt theft of a cash register. Diaz was sentenced to serve six months. Luke was admitted to probation for one year. Urging four contentions, they appeal to this court.

• 1 First, defendants contend that on two occasions the trial judge refused to consider competent and material evidence. It is claimed that in one instance, during the testimony of a prosecution witness, the trial judge refused to consider finger and palm print evidence. We are satisfied, however, that, as was his prerogative, the trial judge, in the exercise of judicial discretion, limited the scope and extent of direct and cross-examination of a witness. Mac-Aire Aviation Corp. v. Corporate Air, Inc. (1970), 6 Conn. Cir. 238, 270 A.2d 849; People v. Jones, 343 Ill. 291, 175 N.E. 414; People v. Wilder, 119 Ill. App.2d 422, 256 N.E.2d 103.

• 2 It is claimed that the other instance occurred when Diaz testified and his lawyer asked him to describe his mental state at the time of the offense. In answer, Diaz said, "Like numb. Quiet sensation." Then the assistant state's attorney objected. The objection was sustained. No motion was made to strike the answer. It is well known that "[w]here objection to testimony is sustained, but no motion to strike is made, the answer becomes part of the record." (State v. Abbey (1970), 13 Ariz. App. 55, 474 P.2d 62. See People v. Carson, 341 Ill. 11, 173 N.E. 97; State v. Shimon (Iowa 1970), 182 N.W.2d 113; 1 Wigmore on Evidence (3d ed. 1940), § 18.) Therefore, since Diaz's answer was not stricken, it was in the record for whatever materiality it possessed. It follows that in neither occasion did the trial judge refuse to consider competent and material evidence.

• 3 Second, defendants contend that Luke was not proven guilty of the crime charged. We have examined the record and find there was evidence, including testimony of the two defendants, which if believed, proved Luke guilty beyond a reasonable doubt. See People v. Rossolille, 38 Ill.2d 316, 231 N.E.2d 585; People v. Bullock, 123 Ill. App.2d 30, 259 N.E.2d 641; People v. Turner, 121 Ill. App.2d 205, 257 N.E.2d 186.

Third, defendants contend that improper evidence was received during the aggravation and mitigation hearing. Defendants argue that the State was allowed to prove a 1969 burglary charge reduced to theft for which Diaz, then a minor, was given one year supervision and ordered to pay $50 restitution. It is argued that supervision is not conviction; therefore, defendants insist, Diaz was only arrested. City People v. Jackson, 95 Ill. App.2d 193, 238 N.E.2d 196, defendants argue that Diaz was prejudiced when the trial judge, in aggravation of the offense, considered a charge in which he was only arrested and not convicted.

• 4-6 Supervision, as practiced in cases dealing with minors, is a judicial mechanism which is used after evidence shows a defendant guilty of the offense charged. Entry of the finding is delayed with the defendant's consent and he is placed on supervision for a specific period of time. People v. Parr, (Ill. App.2d), 264 N.E.2d 850. Therefore, the 1969 case involved more than an arrest. In any event, the trial judge was entitled to the fullest information possible relevant to the sentence to be imposed. People v. O'Laughlin, 122 Ill. App.2d 218, 258 N.E.2d 154.

Fourth, defendants contend that they were denied a fair trial and deprived of due process of law when on three occasions, before all the evidence was presented to him, the trial judge pronounced them guilty. The first occasion occurred when defendants' counsel completed cross-examination of the State's second witness.

"Mr. Stang: That is all.

The Court: Finding of guilty.

Mr. Stang: We would like to put on our defense.

The Court: Alright. I will reserve my ruling."

The second occasion was after the State rested its case and cross-examination of ...


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