APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 10, 1977.
The defendant, Virgil Morgan, was found guilty of the offenses of burglary and arson at a jury trial. The defendant was sentenced to two consecutive terms of three years, four months to 20 years' imprisonment. Basically, the defendant was convicted on circumstantial evidence consisting of (1) an implied admission, and (2) a fingerprint on a piece of glass recovered at the scene of the crime. Defendant did not testify. His only defense consisted of the testimony of his mother, who stated that he had been home on the night of the fire in question.
On appeal the defendant attacks the trial court's admission of these two items of evidence. The defendant also attacks the sufficiency of the evidence to support the findings of guilty, the propriety of consecutive sentences, and finally whether the aggregate sentence of six years eight months to 40 years' imprisonment is excessive.
• 1 The first contention raised by the State is that defendant waived his objections to the implied admission because he failed to specify the error in his post-trial motion. The motion for a new trial fails to focus specifically on the error of admitting the testimony regarding the implied admission. Counsel for the defendant did raise a hearsay objection. However, the thrust of the argument in the motion to exclude the testimony seems to be over prior inconsistent statements, there being virtually no discussion of the hearsay issue at that time.
Generally, the failure to raise an issue in a written motion for a new trial constitutes a waiver of that issue and cannot be urged as a ground for reversal on appeal. (People v. Pickett, 54 Ill.2d 280, 296 N.E.2d 856.) The State also cites People v. Smalley, 10 Ill. App.3d 416, 294 N.E.2d 305, which involved the refusal of certain jury instructions, wherein the court stated:
"Furthermore, to preserve this issue for appeal, defendant should have specifically informed the trial court of its mistake * * *. The court would then have had an opportunity to rectify its oversight. Defendant's general contention in the motion for a new trial that the court erred in giving and refusing instructions was not sufficient to inform the court of its error. A defendant cannot assign error to that which he acquiesced in and gave the court no opportunity to correct." (Emphasis added.) 10 Ill. App.3d 416, 426, 294 N.E.2d 305, 312.
Hence, the object of the waiver rule, as set forth in Smalley, is to (1) inform the trial court of a possible mistake and give the court the opportunity to correct that mistake and (2) not allow defendant to object to that which he has acquiesced in throughout the course of the trial. With these considerations in mind, an examination of the record indicates that defendant did not waive this issue and it was properly preserved for the consideration of this court on appeal.
Defendant objected to the testimony in question as early as the opening statement. Defendant raised the hearsay objection in the motion to exclude testimony of Linda Harrison. When the motion was denied defendant raised a continuing objection to any and all questions of the witness. The defendant also objected to People's Instruction number 7 regarding the admission.
It is quite obvious from the above that the trial court was well informed of defendant's objection to the testimony of Linda Harrison. The court had ample opportunity to consider the objection a number of different times throughout the course of the trial. Also, it is apparent by the number of times defendant objected to this testimony that he never acquiesced in the court's acceptance of the testimony. Hence, the considerations for finding a waiver stated in Smalley simply are not present in this case.
The question of waiver in this case is a close one, but for several reasons waiver should not be applied in this case. First of all, the issue was raised by motion and objection in the trial court. Secondly, the issue centers around testimony which was very prejudicial to defendant if his claim is well founded. The second consideration should apply with more force where, as in a case like this, there is very little other, independent evidence put before the jury.
The next issue concerns the admissibility of the testimony of Linda Harrison which was as follows:
"The State: Now did you have occasion to have a conversation with him [the defendant] on November the 29th, 1974?
Linda Harrison: Yes, I did.
A. His brother Jim, Virgil and me.
Q. Alright, what if anything did you say to him in this conversation?
A. I asked him what his purpose was in setting the Cleaners afire.
Q. * * * You had testified you asked Virgil, there in that conversation why he set fire to Monroe's Cleaners. ...