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People v. Davis

OPINION FILED NOVEMBER 15, 1976.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

WILLIE DAVIS, APPELLEE.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Chester J. Strzalka, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Defendant, Willie Davis, pleaded guilty in the Cook County circuit court on July 30, 1973, to the theft of an automobile and was released on 4 years' probation. On December 10 a petition to revoke defendant's probation was filed alleging that on September 26 defendant was arrested for, and on September 27 was found guilty of, criminal trespass to a motor vehicle and sentenced to 30 days' imprisonment. A rule to show cause why the probation should not be terminated was issued. At the subsequent hearing on that rule the following colloquy occurred:

"Mr. Cooley [Ass't State's Attorney]: If the Court please, the defendant, Willie Davis, has two cases up today. The cases that are up today is a preliminary hearing and the violation of probation. The case on violation of probation will be heard first.

MR. BASTIANONI [Ass't Public Defender]: On the violation of probation, the defendant at this time is making a motion for a continuance on the grounds that I believe the second offense of September 27th, when the defendant was found guilty of attempted theft, I believe there was a plea and I already ordered a transcript from January 18th to see whether or not the defendant's plea of guilty was knowingly a plea of guilty and if he was properly admonished as to the effect of that plea.

MR. COOLEY: The State would object. This case has been continued on Mr. Davis' motion and the Court's record will reflect that. In fact, it was heard in this court while the defendant was in fact on probation. If counsel does have a defect in the second plea, it would be proper for a motion for appeal. Your Honor, I am sure you recall that you were in fact the judge who took that plea from Mr. Davis and we qualified in making a very good record of that.

THE COURT: I am going to deny the motion for a continuance.

MR. COOLEY: Your Honor, the purpose of this hearing is to show cause why the defendant's probation should not be terminated. I would ask that your Honor take judicial notice of the fact that on July 30, 1973, in the Circuit Court of Cook County, Branch 64, it was your Honor who placed the defendant, Willie Davis, on four-years probation for an offense of grand theft.

I would also ask your Honor to take judicial notice of the fact that in the Circuit Court of Cook County in Branch 64 and in the same courtroom, once again, a case was brought before your Honor alleging that on September 27, 1973, Willie Davis committed the offense of criminal trespass to a motor vehicle. The offense alleges that Mr. Willie Davis did in fact, without lawful authority from Joseph Wright, enter a motor vehicle belonging to Joseph Wright. He entered that motor vehicle knowingly on the 27th of September, 1973.

Your Honor, the defendant was brought in on that charge on that date and your Honor in fact accepted a plea of guilty from Mr. Willie Davis to that offense, specifically, Chapter 38, Section 21-2. Your Honor sentenced Mr. Willie Davis to a term not to exceed 30 days in the House of Corrections.

I have, for your Honor's inspection, a copy of the court's own records of the proceedings which occurred on October [sic] 27, 1973, and signed by your Honor which would indicate that on line 2, sheet 8 of the court files that on the 27th of September, 1973, there was an indication [sic] of Willie Davis for violation of Chapter 38, Section 21-2 did plead guilty and was found guilty and was sentenced to 30 days in the House of Correction. A copy of that official court record is signed by your Honor.

THE COURT: Yes, that is true. The sheet is signed by me, too."

The court overruled defendant's objections to the method of proving the September conviction, found defendant to have violated his probation, heard a statement detailing defendant's extensive record of arrests, convictions and sentences and ordered a presentence investigation. The common law record indicates defendant was subsequently sentenced to 1 to 4 years' imprisonment, although no transcript of those proceedings is included in the record before us.

Defendant appealed, the Appellate Court for the First Judicial District reversed, holding the trial court erred in taking judicial notice of the September conviction (32 Ill. App.3d 760), and we allowed the State's petition for leave to appeal.

The single issue presented is the propriety of the trial court's action in taking judicial notice of the September conviction. Traditionally, courts have been cautious in expanding the scope of judicial notice. (9 Wigmore, Evidence, sec. 2583 (3d ed. 1940); McCormick, Evidence, sec. 328 (2d ed. 1972); 1 Jones, Evidence, sec. 2.2 (6th ed. 1972).) In McCormick on Evidence, section 330, at 766 (2d ed. 1972), it is said to be "settled, of course, that the courts, trial and appellate, take notice of their own respective records in the present litigation, both as to matters occurring in the immediate trial, and in previous trials or hearings. The principle seemingly is equally applicable to matters of record in the proceedings in other cases in the same court, and some decisions have recognized this, but many courts still adhere to the needless requirement of formal proof, rather than informal presentation, of recorded proceedings in other suits in the same court." (Emphasis added.) Taking judicial notice of matters of record in other cases in the same court is simply an application of the increasingly recognized principle that matters susceptible of judicial notice include facts "capable of immediate and ...


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