APPEAL from the Circuit Court of Williamson County; the Hon.
ROBERT B. PORTER, Judge, presiding.
MR. PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, Junior Toler, was convicted of driving while intoxicated, for which he was fined $500 and sentenced to 2 years' probation, conditioned on his serving 90 days in the Illinois State Penal Institution at Vandalia. From his conviction and sentence defendant brings this appeal.
Defendant presents four issues for review, which we feel should be quoted in full rather than paraphrased or summarized by this court:
"(1) Whether unjustified post-arrest pre-trial confinement complained of in the trial court affects the punishment power.
(2) Whether prior to sentencing an accused individual is empowered, by himself or through his attorney of record, to enter a nolle prosequi of an irregular bail bond, recognizance or deposit of bail security.
(3) Whether the trial court loses jurisdiction of the person when there has been an attempt made to execute that Court's illegal sentence of the person.
(4) Whether there was reasonable doubt by reason of major discrepancies affecting the credibility of a witness essential to the strength of the State's case."
Four witnesses testified at the trial, all of whom were law enforcement officers testifying for the State. Michael Milam testified that he was a Federal game warden and special agent for the Crab Orchard Wildlife Refuge. During the early morning hours of May 11, 1974, he was in a truck parked about 150 feet off of Route 148 in the refuge on a "stakeout" for poachers. At approximately 1:49 a.m. he observed a car approaching on Route 148. About 1 2/10 of a mile before the car reached Milam's position, the car stopped and its lights went out. Officer Milam then drove his truck to Route 148 and proceeded to the place where the car was parked. He drove past the car, made a U-turn, and pulled up behind the car. It took approximately 1 minute and 40 seconds to get from the stakeout to the position behind the car. He observed that the car was a 1963 Chevrolet. With the headlights of his truck shining on the car he was able to see the license number of the car, which he radioed in to his radio operator.
Milam approached the car on foot and observed that it had been pulled to the side of the road. He looked into the car and saw someone lying in the back seat. After knocking on the window to arouse the person, he opened the car door and the dome light came on. The person, Junior Toler, climbed over the front seat and got out of the car from the driver's side door. Toler was staggering, his breath smelled of alcohol, and his speech was slurred. After getting Toler's license, Milam had Toler get back into the car, where Toler sat in the driver's seat. Milam then got into his truck and radioed for a State trooper. The trooper, Officer Clarence Ward, arrived 20 minutes later.
Milam stated that he did not see anyone approach the car, hang out of the car, or get in or out of the car from the time he first spotted the car until he himself approached the car. Milam also stated that during that time period he did not see the dome light of the car come on and that if anyone had gotten out of the car they would have had to run 50 or 60 yards from the road to the woods.
Clarence Ward testified that he arrived and, on the basis of his own observation and what Milam told him, arrested Toler for driving while intoxicated. Ward stated that Milam had told him that he had passed the car while he was proceeding in one direction on Route 148 and the oar was proceeding in the opposite direction and pulling off the road. Ward stated that when he got Toler out of the car he had to support Toler and he put him in the police car. Ward then got into Toler's car, a 1973 Chevrolet, and drove it off the road. The seat of Ward's pants became wet from the seat of Toler's car. Toler's pants were wet.
Ward stated that he took Toler to police headquarters where Toler was given several tests including the breathalizer. Ward also stated that he had not seen Toler drive the car and that Toler had told him that he had been parked on Route 148 for three hours.
The other two witnesses testified as to the results of the tests administered to Toler and as to the working condition of the breathalizer machine. The results of Toler's breathalysis were .17 and .18.
After the tests were administered the defendant was jailed overnight. The next day the defendant, after having posted $500 bail, was released ...