APPEAL from the Circuit Court of Franklin County; the Hon.
JOHN D. DAILY, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant Harry Riddle was found guilty by a jury of theft of property valued at over $150 in the Circuit Court of Franklin County. Defendant presents two questions for review: whether the trial court erred in failing to dismiss the jury or return it for further deliberations when two jurors expressed their assent to the verdict in an unorthodox manner, and whether the trial court's sentence requiring defendant to serve 52 consecutive weekends in jail and to pay a $3000 fine as conditions of his probation was harsh and out of proportion to the nature of the offense.
During the trial of this case the State introduced evidence that three other individuals, who were county deputy sheriffs, and defendant took without authority three rolls of hog fencing wire from Three Reasons, Inc., at 3 a.m. on September 9, 1974. The value of the wire was in excess of $150. Defendant does not question the sufficiency of the State's evidence.
It is necessary to consider at the outset the State's contention that defendant waived any errors relating to the unanimity of the verdict by failing to object in the trial court when the alleged error occurred. The State cites People v. Herron, 30 Ill. App.3d 788, 332 N.E.2d 623 (1st Dist. 1975), for the proposition that a party seeking to attack the unanimity of a verdict because of a juror's response during the poll of a jury must make a timely objection or motion before the trial court. It is true that no specific objection was made. However, after the polling of the jury by the court, the following exchange took place between the court and defense counsel:
"THE COURT: * * * Before the jury is discharged do you have any motion you want to make?
MR. HICKMAN: Yes, if you will note our intention of filing a motion for a new trial or in the alternative or motion
THE COURT: I think you will have a reasonable length of time to do that.
MR. HICKMAN: We appreciate that, thank you."
• 1 Defendant contends that it was error for the court to interrupt when defense counsel was about to make the necessary motion or objection to preserve the issue for appeal. On the other hand, the State maintains that when defense counsel was interrupted by the court he was merely announcing his "intention" to file written post-trial motions. However, we find it unnecessary to pass on the question whether defendant's attorney was attempting to file a motion or merely announcing his intention to do so. It is enough that we are dealing with a substantial right, that of the defendant to poll the jury. (People v. Herron; People v. Townsend, 5 Ill. App.3d 924, 284 N.E.2d 414 (5th Dist. 1972).) Accordingly, we elect to review defendant's contention. Ill. Rev. Stat. 1975, ch. 110A, par. 615.
In this case the jury was composed of 11 people after both parties agreed to excuse the 12th juror who was unable to continue because of ill health. Responses of all but two jurors, Mr. Gunter and Mrs. Christian, were routine and are not in issue. The exchanges between the court and the two jurors which defendant claims casts a reasonable doubt on the unanimity of the verdict are set out below:
"COURT: Mr. Gunter, is this your verdict?
Q. Are you satisfied with it?
A. In a way I was and in a way ...