APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY
J. BOSCO, Judge, presiding.
MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
After a bench trial in the Circuit Court of Cook County on February 28, 1975, the defendant, S.T. Remon, was found guilty of unlawful use of weapons and failing to possess a State Firearm Owner's Identification Card. He was sentenced to concurrent terms of two years' probation with the first five months to be spent in the House of Corrections.
The issues on appeal are whether the court erred in conducting a bench trial after holding a hearing in aggravation and mitigation when the defendant expressly elected to continue to trial before the same judge, whether intoxication is a defense to an offense which requires a general intent, whether the defendant was properly found guilty of failing to possess a State Firearm Owner's Identification Card, whether there was a valid waiver of the presentence hearing, and whether the sentence was excessive.
Prior to trial a pretrial conference was held by Judge Bosco, including aggravation and mitigation. He then offered to remove himself from the case and assign a new judge to hear the matter if the defendant desired. The defendant's counsel responded that his client wished to have Judge Bosco hear the case, and the case proceeded to trial.
Officer Rooney of the Chicago Police Department testified he investigated an accident at 454 West 39th Street in the City of Chicago involving two cars and a panel truck driven by the defendant. When Officer Rooney asked for his driver's license, he saw the defendant pull back his coat thus revealing an automatic pistol in his pants. Upon inspection the weapon was found to be loaded. The defendant produced a State Firearm Owner's Identification Card but did not have a city identification card. Officer Rooney testified the defendant appeared to be intoxicated and issued a citation for driving under the influence of alcohol.
The court found the defendant guilty of unlawful use of weapons and failure to possess a State Firearm Owner's Identification Card. The trial judge then alluded to the pretrial hearing, which had been held off the record, and indicated he would conduct another hearing for the purpose of preserving the record. Counsel for the defendant agreed to stipulate to the matters discussed at the earlier hearing.
1 The defendant first contends he was denied due process of law when the trial judge failed to excuse himself from hearing the case on the merits after conducting a hearing in the nature of a hearing in aggravation and mitigation. The defendant cites cases holding a trial judge may not determine guilt on a private investigation of the facts (People v. Staples (1969), 105 Ill. App.2d 111; People v. McMiller (1951), 410 Ill. 338; People v. Nelson (1974), 58 Ill.2d 61; People v. Burress (1972), 3 Ill. App.3d 408), but here there was no allegation that the finding of guilt was based on information determined outside the record. The record does show the finding of guilt was based on the positive and consistent testimony of Officer Rooney, who saw the defendant carrying a loaded automatic weapon. The evidence of the defendant's guilt is clear on the record. There was no allegation of a particular prejudice and we can find none in the record.
In a bench trial it will generally be presumed the trial judge considered only the proper evidence and disregarded that which was inadmissible in forming conclusions. People v. Harris (1974), 57 Ill.2d 228; People v. Wallenberg (1962), 24 Ill.2d 350.
2 It is also clear on the record the defendant chose to waive his right to have another judge hear his case on the merits after a hearing in aggravation and mitigation was held. At the beginning of the trial the defendant's counsel stated:
"MR. MUSLIN: Mr. Remon, I'm tendering to you a copy of the original waiver of jury. By signing this, you're waiving your right to have a jury hear the case and you're submitting the case before Judge Bosco to hear the case."
"THE COURT: If he prefers another judge, I have another judge standing by. Give him his choice. I have another judge, fresh, that doesn't know anything about your case; and if you want, I'll have him hear the case."
As a general proposition the defendant cannot assign error to that which he acquiesced in and gave the court no opportunity to correct. (People v. Jones (1968), 107 Ill. App.2d 1; People v. Sotos (1962), 26 Ill.2d 460.) There was no suggestion this court invoke the doctrine of plain error, and we do not believe it would be appropriate to do so.
The defendant next contends the State established a prima facie defense of intoxication, which it failed to rebut, when Officer Rooney testified he ticketed the defendant for driving under the influence of alcohol. Voluntary intoxication may be an affirmative defense only if it negates the existence of a specific mental state which is an element of the ...