{ "id": 3339041, "name": "The People of the State of Illinois, Defendant in Error, v. Cecil R. Lull, Plaintiff in Error", "name_abbreviation": "People v. Lull", "decision_date": "1927-09-24", "docket_number": "Gen. No. 7,750", "first_page": "53", "last_page": "60", "citations": [ { "type": "official", "cite": "246 Ill. App. 53" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "195 Ill. 507", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5585613 ], "opinion_index": 0, "case_paths": [ "/ill/195/0507-01" ] }, { "cite": "303 Ill. 430", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5006908 ], "opinion_index": 0, "case_paths": [ "/ill/303/0430-01" ] }, { "cite": "287 Ill. 606", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4945553 ], "opinion_index": 0, "case_paths": [ "/ill/287/0606-01" ] }, { "cite": "283 Ill. 438", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2416982 ], "opinion_index": 0, "case_paths": [ "/ill/283/0438-01" ] }, { "cite": "280 Ill. 160", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4890358 ], "opinion_index": 0, "case_paths": [ "/ill/280/0160-01" ] }, { "cite": "215 Ill. App. 452", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5443451 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app/215/0452-01" ] }, { "cite": "281 Ill. 295", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4902528 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill/281/0295-01" ] }, { "cite": "322 Ill. 384", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5171637 ], "opinion_index": 0, "case_paths": [ "/ill/322/0384-01" ] }, { "cite": "322 Ill. 353", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5174302 ], "opinion_index": 0, "case_paths": [ "/ill/322/0353-01" ] }, { "cite": "243 Ill. App. 146", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3372092 ], "opinion_index": 0, "case_paths": [ "/ill-app/243/0146-01" ] }, { "cite": "144 Minn. 342", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 136439 ], "opinion_index": 0, "case_paths": [ "/minn/144/0342-01" ] }, { "cite": "186 N. W. 946", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "151 Minn. 340", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 132859 ], "opinion_index": 0, "case_paths": [ "/minn/151/0340-01" ] } ], "analysis": { "cardinality": 523, "char_count": 11927, "ocr_confidence": 0.519, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.09368306800898431 }, "sha256": "7b46a9cc5cdba8320948b29fa928c7cf1bf63c8d0069ae0c08d34c07fa6bd636", "simhash": "1:db71c4151bd774b5", "word_count": 2112 }, "last_updated": "2023-07-14T21:56:12.897381+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Defendant in Error, v. Cecil R. Lull, Plaintiff in Error." ], "opinions": [ { "text": "Mr. Presiding Justice Jett\ndelivered the opinion of the court.\nThe State\u2019s attorney of Kendall county filed an information, consisting of three counts, against Cecil E. Lull, plaintiff in error. The first count charged that the plaintiff in error, on the 10th of October, 1926, did unlawfully sell intoxicating liquor containing in excess of one-half of one per cent by volume of alcohol, and being then and there fit for beverage purposes, without having a permit so to do. The second charged that the plaintiff in error did, on the same date as alleged in the first count, possess intoxicating liquor containing in excess of one-half of one per cent by volume of alcohol and being then and there fit for beverage purposes, without having a permit so to do. The third count charged that the plaintiff in error did, on the date as alleged in the first count, unlawfully fail to make a record of a certain sale of intoxicating liquor containing in excess of one-half of one per cent by volume of alcohol and then and there being fit for use for beverage purposes, by him then and there made to one Edward Fanning.\nA motion to quash the information and each count thereof was made and overruled. Subsequently, the second and third counts in the information were nolled by the State\u2019s attorney. A jury trial was had and the plaintiff in error was found guilty of selling intoxicating liquor in manner and form as charged in the first count of the information. A motion to set aside the verdict and for a new trial was made by plaintiff in error which was denied. Motion in arrest of judgment was made and denied, and the plaintiff in error was thereafter sentenced by the court to pay a fine of $250 and costs, and to be confined in the county jail of Kendall county for 60 days, from which judgment and sentence plaintiff in error prosecutes this writ of error.\nThe plaintiff in error urges a reversal because (1) he was employed in a bona fide drug store and there is no proof that the liquor was sold without a doctor\u2019s prescription; (2) that there is no proof that the liquor sold was fit for beverage purposes; (3) that there is no proof that the purchase and sale were not made for medicinal purposes; (4) that there is no proper identification of the liquor attempted to be used in evidence; (5) there is no proof that the plaintiff in error was the same person mentioned in the information and charged with the crime. We will consider the reasons in the order as stated herein by the plaintiff in error.\nWhile the record discloses that the plaintiff in error was employed in a bona fide drug store, the Prohibition Act requires a druggist to have a permit for the sale of whisky. Although plaintiff in error was employed in a drug store, yet if he seeks to justify his act in the sale of intoxicating liquor, it was incumbent upon him to make proof of the fact that he, or the proprietor for whom he worked and for whom he was clerking, was authorized by a permit to sell intoxicating liquor.\nIt is urged, next, that there is no proof that the liquor sold was fit for beverage purposes. It will be observed that the indictment uses the term \u201cintoxicating liquor\u201d in the first count, and such liquor includes brandy, whisky, rum, gin, beer, ale and wine, and in addition thereto, any spirituous, vinous, malt or fermented liquor, liquids and compounds, whether medicated, proprietary or patented, and by whatever name called, containing one-half of one per cent or more of alcohol by volume, which are fit for use for beverage purposes, as defined in section 2 of the act. (Cahill\u2019s St. ch. 43, \u00b6 2.) Under such a definition, when a liquor is designated as \u201cintoxicating liquor\u201d that designation signifies that it is \u201cpotable as a beverage,\u201d or \u201cfit for beverage purposes.\u201d State v. Brown, 151 Minn. 340, 186 N. W. 946, a decision of the Supreme Court of Minnesota. The case of State v. Brown, supra, finds support in State v. Hosmer, 144 Minn. 342, holding in substance that when a liquor is described as \u201cintoxicating liquor\u201d that designation of it signifies that it is potable as a beverage or fit for beverage purposes, as a liquor can intoxicate only when used as a beverage. To the same effect see People v. San Filippo, 243 Ill. App. 146-148-149. A count in an indictment charging unlawful possession of intoxicating liquor for the purpose of sale need not allege that the liquor was fit for beverage purposes, as the term \u201cintoxicating liquor\u201d signifies that it is potable or fit for beverage purposes. People v. Cioppi, 322 Ill. 353. Furthermore, a charge of a violation of the Prohibition Act in the possession and sale of intoxicating liquor need not specify the kind of liquor sold nor allege that it was fit for use as a beverage, as the statute has defined the term \u201cintoxicating liquor\u201d and a defendant so charged with the violation of the statute is sufficiently informed of the nature of the charge. People v. Alfano, 322 Ill. 384.\nIt is next urged that the information does not charge that the plaintiff in error knowingly sold the liquor for beverage purposes. We are of the opinion that such an averment is unnecessary except where it is charged in the information that the intoxicating liquors are proprietary or patented articles, such as are mentioned in section 4 of the Prohibition Act, Cahill\u2019s St. ch. 43, 4. It is no offense to sell patented medicines, lemon extracts and the like without a permit or a doctor\u2019s prescription, but if the druggist knows, or under the circumstances ought to know, that such articles are being sold for beverage purposes, he then becomes liable, under the law, but his knowledge must be both averred and proven.\nIt is next contended that there was no proper identification of the liquor attempted to be used in evidence. The record discloses that the People\u2019s Exhibits \u201c1\u201d and \u201c2\u201d and \u201c1A\u201d and \u201cIB\u201d were identified and throughout the trial of the cause were treated as though they had been offered, but the record fails to disclose that the offer was actually made. It is not pointed out by the plaintiff in error wherein any injury was occasioned to him on the trial of the case by reason of this circumstance of which he complains. In other words, there was nothing in this circumstance which worked any injury to the plaintiff in error. The record also shows that counsel for the plaintiff in error, during the cross-examination of a witness, put this question: \u201cIn the Exhibits offered here who put the memo\u201d taken from the auto of Ed Fanning \u201cand other wording on the bottles?\u201d We therefore conclude that there is nothing under the fourth reason assigned for a reversal that caused an injury to the rights of the plaintiff in error.\nLastly, it is urged that there is no proof that plaintiff in error is the same person as mentioned in the information and charged with the offense of selling intoxicating liquor. The information was filed against the plaintiff in error under the name of Eobert Lull. The record discloses that when he took the stand and was examined by his counsel on direct examination, he stated that his name was Cecil Eobert Lull. He was then asked by his counsel this question: \u201cYou go by the name of Eobert or Bob Lull?\u201d and his answer was: \u201cYes, sir.\u201d Throughout the trial the plaintiff in error was called Bob Lull- The only information we have been able to find, after a careful examination of the record, ran against Eobert Lull and it was properly verified by Eichard 0. Leitch. The information was filed by Eichard 0. Leitch, State\u2019s attorney. The plaintiff in error was arrested by the name of Eobert Lull.\nThe record fails to disclose that anything was said relative to the information in the motion for a new trial, nor was the question raised in so far as the record discloses, by the motion in arrest of judgment.\nWe think the record fully discloses that the plaintiff in error is the same person as mentioned in the information and charged with the violation of the Prohibition Act therein.\nIt is finally argued in the reply brief of the plaintiff in error, although it does not seem-to have been raised in the trial court, that there was no verification of the information. This, evidently, is based upon a misapprehension of the facts. In his reply brief, plaintiff in error claims that the information was amended and, as amended, was not verified. We have already stated that there is only one information in the record' and' that runs against the defendant by the name of Robert Lull, and he was arrested by that name and it was to this information that he entered a plea of not guilty and entered upon a trial without raising any question of any kind or character relative to the name by which he was charged. If one is charged with a misdemeanor in an information and he enters upon the trial without raising any objection as to the verification, he waives his constitutional right. In People v. Honaker, 281 Ill. 295-299, it was said:\n\u201cWithout doubt a defendant may waive the benefit of the constitutional provision and would waive it by failing to make any objection.\u201d\nBy bringing the cause to the Appellate Court for review, one found guilty of an assault and battery waives the objection that the information on which he was arrested and tried was verified by the State\u2019s attorney upon information and belief only, notwithstanding the question was preserved by proper motions in the court below. People v. Vaughn, 215 Ill. App. 452. In a discussion of the case of People v. Vaughn, supra, at page 453 the court, among other things, said:\n\u201cThe information on which he was arrested and tried was verified by the State\u2019s attorney upon information and belief only. Vaughn argues that this was a violation of his constitutional rights, under People v. Clark, 280 Ill. 160, and People v. Honaker, 281 Ill. 295. He preserved this question by proper motions in the court below, which the court denied. But by bringing the cause to the Appellate Court he has waived the defect, if any. People v. Powers, 283 Ill. 438; People v. Reed, 287 Ill. 606.\u201d\nSince the plaintiff in error proceeded to trial upon the information in which he was charged, under the name of Bobert Lull, and raised no question as to the verification, he waived his constitutional right and cannot now be heard, even though his position was true, that he assumes at this time.\nThe bill of rights provides for a trial by a jury, yet one accused of crime may waive the right to a trial by jury; also one who is charged with a misdemeanor, as is done in the case at bar, may waive his constitutional right to a trial by jury. A jury may be waived in a case involving a misdemeanor and such waiver may be oral or in writing and no particular form is necessary. People v. Fisher, 303 Ill. 430. The misdemeanors.in which a trial by jury may be waived are such as may be prosecuted otherwise than by an indictment. Paulsen v. People, 195 Ill. 507. The selling of intoxicating liquor is a misdemeanor that can be prosecuted by the filing of an information. Whatever may be the contention of the plaintiff in error, the fact remains that the record discloses but one information and that was the one in which the plaintiff in error was charged with the selling of intoxicating liquor under the name of Robert Lull. It is the one to which he interposed a plea of not guilty and entered upon the trial, and it is the one under which he was convicted and sentenced.\nWe conclude, therefore, that there are no reversible errors disclosed in the record, and that the judgment of the county court of Kendall county should be affirmed, which is accordingly done.\nJudgment affirmed.", "type": "majority", "author": "Mr. Presiding Justice Jett" } ], "attorneys": [ "William C. Mooney, for plaintiff in error.", "R. O. Leitch, State\u2019s Attorney, for defendant in error." ], "corrections": "", "head_matter": "The People of the State of Illinois, Defendant in Error, v. Cecil R. Lull, Plaintiff in Error.\nGen. No. 7,750.\nH eard in this court at the April term, 1927.\nOpinion filed September 24, 1927.\nWilliam C. Mooney, for plaintiff in error.\nR. O. Leitch, State\u2019s Attorney, for defendant in error." }, "file_name": "0053-01", "first_page_order": 113, "last_page_order": 120 }