author: Mr. JUSTICE DRUCKER

text:
    Eleanor Edelman et al., Plaintiffs-Appellants, v. Lee Optical Company, Inc., et al., Defendants-Appellees.
    (No. 59998;
    First District (5th Division)
    November 22, 1974.

      Edward A. Berman, of Chicago (Schlifkin and Berman, of counsel), for appellants.
    Hoffman & Davis, of Chicago (Maurice L. Davis and Alvin L. Kruse, of counsel), for appellees.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiffs, individually and as class representatives, filed an amended complaint alleging essentially the use of misleading merchandising techniques by defendants. Defendants moved to strike and dismiss. The court below found that the suit was “not properly maintainable as a class action” and struck the amended complaint, granting leave “to the five named plaintiffs to file an amended complaint stating their individual claims for relief against defendants.” This plaintiffs failed to do, electing to stand on their class claim, and the suit was dismissed.

On appeal plaintiffs raise three contentions: (1) defendants’ motion to strike and dismiss was not in conformance with section 45 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 45); (2) even if defendants’ motion was in conformance with section 45, the suit is properly maintainable as a class action; and (3) they had standing to sue under both the common law and statute.

The amended complaint alleged that the named plaintiffs purchased single-vision lenses and eyeglass frames from defendants for prices ranging from $15.90 to $32 during 1972. Defendants are engaged in the retail optical business in Illinois. Since 1967 defendants have been advertising that a purchaser could obtain single-vision glasses for one low price. Their newspaper advertisements appearing in 1972 stated:

“OUR ONE LOW PRICE INCLUDES: single vision clear or tinted lenses; your choice of any frame in our entire selection of modern frame styles and colors: carrying case.”

Similar representations appeared in their shop windows and showrooms. It was further alleged that advertising in this manner was part of defendants’ “modus operandi for doing business with plaintiffs and the class they represent” and that plaintiffs relied upon defendants’ published representations of “one low price” for single-vision glasses.

Plaintiffs brought this action on behalf of themselves and all those who bought or will buy single-vision glasses from defendants for prices in excess of $8.95 or one to be set by the court. In seeking injunctive relief and refunds for the amounts charged by defendants over $8.95 or a court-determined price, plaintiffs alleged that defendants had employed false and deceptive advertising practices and misrepresented material facts with the intent that they and members of their class rely on such misrepresentations and that these activities constitute common-law fraud and violations of the fraudulent sales provisions of the Sales Act (see Ill. Rev. Stat. 1971, ch. 12U/2, par. 157.1 et seq.), the Consumer Fraud Act (Ill. Rev. Stat. 1971, ch. 121Y2, par. 261, et seq.) and the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1971, ch. I2F/2, par. 311, et seq.).

Opinion

Plaintiffs contend that defendants’ motion to strike and dismiss their amended complaint should have been denied because it did not conform to the requirements of section 45 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 45). Basically they argue that no reasons appear in the motion to support its conclusions and therefore it is insufficient. We believe plaintiffs’ contention to be without merit. Defendants’ motion stated:

“Now comes the Defendant, LEE OPTICAL COMPANY, INC., an Illinois Corporation, and TERMINAL-HUDSON OF ILLINOIS, INC., an Illinois Corporation, doing business as KING OPTICAL, by their attorney, and pursuant to Section 45 of the Illinois Civil Practice Act, move this Honorable Court to strike and dismiss the Amended Complaint in the above entitled cause for failure to state a cause of action and for lack of the requisite common question of fact necessary to establish a class as a matter of law, and in support of said Motion submit the attached Memorandum of Law.”

The memorandum, physically attached as part of the motion, fully explained the grounds on which it was based. Both the court and plaintiffs were thus apprised of the basis of the motion and consequently the requirements of section 45 were met.

Plaintiffs next contend that the court below erred in ruling that the action is not maintainable as a class action.

It is well established that an action may not be maintained as a class action if the claims of the individual members of the class are based on separate and distinct questions of fact. (Peoples Store of Roseland v. McKibbin, 379 Ill. 148, 39 N.E.2d 995; Newberry Library v. Board of Education, 387 Ill. 85, 55 N.E.2d 147; Hagerty v. General Motors, 59 Ill.2d 52; Rice v. Snarlin, Inc., 131 Ill.App.2d 434, 266 N.E.2d 183; Highsmith v. Allstate Insurance Co., 17 Ill.App.3d 615, 308 N.E.2d 204, 308.) Thus it is required “that the claims of the purported members of a class action arise from the same transaction and from transactions so similar that they are tantamount to the same transaction.” Highsmith, at 617.

This principle was illustrated in Rice in which a complaint was filed by a model and her mother alleging a violation of the Consumer Fraud Act by defendant in that it misrepresented and omitted or concealed material facts in its contract to place the model’s name, address and telephone number in a directory listing to be sent to 500 companies. The plaintiffs sought damages and injunctive relief on behalf of themselves and, as class representatives, all those who had contracted with defendant. In affirming the dismissal of the class action we held that the claim of each member of the class was dependent upon the facts surrounding the solicitation and negotiation of her individual contract and, therefore, since the nature of the defendant’s representations may well have varied, the “plaintiffs and the members of the class they seek to represent fail to share the requisite common question of fact.” Rice, at 443.

In the instant case, as in Rice, plaintiffs and the members of the class they seek to represent failed to share a requisite common question of fact. Specifically, each count of their complaint is dependent upon proof of reliance by purchasers of single-vision glasses on defendants’ alleged misrepresentations. The claim of each member of the class is dependent upon a demonstration that he had knowledge of defendants’ advertisements and was led into believing he could purchase any style of single-vision glasses for one low price. Clearly, where plaintiffs’ class claims are essentially predicated on an allegation of false and misleading advertising, reliance is an essential element of their case, yet the class they seek to represent includes persons who may not have relied upon, or even seen, defendants’ advertisements. We believe that a determinative question of fact is not common to the class and therefore this action is not properly maintainable as a class action.

Finally, plaintiffs contend that under both the common law and statute they have standing to bring this action. Although this issue was raised in defendants’ motion to strike and dismiss, the court below, in entering its order, did not address itself to it. Rather, the trial court’s decision was based solely on a finding that the action is not properly maintainable as a class action. Since issues not decided below are not properly before the appellate court, we do not have jurisdiction over this matter. Goodrich v. Sprague, 376 Ill. 80, 32 N.E.2d 897; see also Lind v. Spannuth, 9 Ill.2d 311, 137 N.E.2d 360; In re Estate of Green, 16 Ill.2d 598, 158 N.E.2d 610.

For the foregoing reasons the judgment entered below is affirmed.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.

       $8.95 was apparently the lowest price at which single-vision glasses could be purchased from defendants.


source: Caselaw Access Project

author: Mr. JUSTICE DEMPSEY

license: Public Domain

text:
    James O. Cox, Plaintiff-Appellant, v. Anthony C. Abbington, Defendant-Appellee.
    (No. 59307;
    First District (3rd Division)
    November 21, 1974.
    Allen J. Sucherman, of Chicago, for appellant.
    Gates W. Clancy and James S. Mills, both of Chicago, for appellee.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

Mildred Cox was a passenger in a bus which was brought to a stop because of an accident which had occurred on the highway. The defendant, Anthony Abbington, drove his vehicle into the stopped bus and Mrs. Cox was injured. Her husband, the plaintiff, James Cox, filed a complaint against Abbington for the medical expenses he had paid on behalf of his wife and for the loss of her consortium.

Mrs. Cox was injured on May 14, 1969, and her husband’s complaint was filed in January 1973. Abbington moved to dismiss the complaint for the reason that it had not been filed within 2 years of her injury. The trial court sustained the motion. Cox appeals and contends that a 5-year, rather than a 2-year, period of limitation is applicable to his cause of action.

Abbington relies on section 14 of “An Act in regard to limitations” (Ill. Rev. Stat. 1971, ch. 83, par. 15) and on Kolar v. City of Chicago, 12 Ill.App.3d 887, 299 N.E.2d 479. Cox relies on section 15 of the Act and on Mitchell v. White Motor Co., 13 Ill.App.3d 872, 301 N.E.2d 166. Section 14 provides for a 2-year period of limitation in personal injury actions. Section 15 states that there shall be a 5-year period of limitation in certain enumerated actions and for all other civil actions not expressly governed by other statutes. Abbington argues that Cox’s action arose as a consequence of his wife’s personal injuries. Cox responds that his claims come within the ambit of section 15 because their limitation period is not specifically covered by another statute.

Kolar, decided in June 1973, held that the 2-year statute of limitations barred a husband’s suit for loss of consortium and medical expenses incurred by him as a result of his wife’s injuries, which occurred more than 2 years but less than 5 years before his suit was filed. The opinion in Mitchell, which was filed in August 1973, held the opposite. The Mitchell court was unaware of the Kolar decision and stated that no State court in Illinois had ever passed upon the issue.

The issue has now been resolved. The Supreme Court overruled Kolar and affirmed Mitchell. (Mitchell v. White Motor Co. (1974), 58 Ill.2d 159, 317 N.E.2d 505.) The dismissal of Cox’s complaint must, therefore, be vacated.

Reversed and remanded.

McNAMARA, P. J., and McGLOON, J., concur.


author: Mr. JUSTICE SEIDENFELD.

text:
    Richard E. DeBoer, Plaintiff-Appellee, v. Peter A. DeBoer, d/b/a Towns & Country Real Estate, Defendant-Appellant.
    (No. 73-158;
    Second District
    December 17, 1974.
   Opinion by

Mr. JUSTICE SEIDENFELD.

No appearance for appellant.

John R. Rogers, of Elgin, for appellee.


author: Mr. JUSTICE DIXON

text:
    Ann E. King, Plaintiff-Appellee, v. Myron E. King, Defendant-Appellant.
    (No. 74-1;
    Second District (2nd Division)
    December 16, 1974.
    Gail L. Erschen, of Tyler, Peskind & Solomon, of Aurora, for appellant.
    Roy S. Lasswell, of Ratavia, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The plaintiff, Ann E. King, filed a petition to vacate a decree of divorce, pursuant to section 72 of the Civil Practice Act, on the grounds of fraud. After a hearing in the Circuit Court of Kane County, the trial judge granted the prayer of the petition, vacating the prior divorce decree, and the defendant, Myron E. King, appeals from that judgment.

The issue on appeal relates to whether the petition under section 72 of the Civil Practice Act alleged, and did plaintiff prove, that the entry of the divorce decree was induced by fraud.

The apjpellee has not filed any briefs in accordance with Supreme Court Rule 341 (Ill. Rev. Stat., ch. 110A, par. 341). This court may determine the case on its merits or may reverse because of the failure of the appellee to comply with the Supreme Court Rule in its sound discretion (Shinn v. County Board of School Trustees, 130 Ill.App.2d 908; People v. Spinelli, 83 Ill.App.2d 391; Timmerman v. Wilson, 74 Ill.App. 2d 224). Inasmuch as the appellee has abandoned her case we see no reason to go into the merits. We have therefore decided to reverse pro forma.

The judgment of the Circuit Court of Kane County is reversed.

Reversed.

RECHENMACHER, P. J., and T. MORAN, J., concur.


author: Mr. JUSTICE GUILD

text:
    The Village of Mundelein, Plaintiff-Appellee, v. Harry Turk, Defendant-Appellant.
    (No. 73-197;
    Second District (1st Division)
    December 20, 1974.
    Charles Ullrich, of Mundelein, for appellant.
    Raymond Carlson, of Waukegan, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendant herein appeals from an order of the trial court denying his motion, made within 30 days, to vacate a default judgment.

The complaint herein charges the defendant with allowing occupancy of a building in the Village of Mundelein without first obtaining a certifieate of compliance from the building inspector in violation of the ordinance of the Village of Mundelein. The complaint was set for hearing on Wednesday, January 3, 1973. At 2 o’clock in the afternoon of January 2 defendant’s attorney called the attorney for the Village and requested that the matter be continued from January 3, as defendant’s attorney had a criminal jury trial scheduled for that date. At 10 minutes to 5 the attorney for the Village called defendant’s attorney, who had left for the day. The Village attorney advised the defendant’s attorney’s secretary that he would not continue the matter. The next morning defendant’s attorney was advised of this and he immediately called the trial court about 10 o’clock in the morning. He was then advised that the Village attorney had entered a default judgment against his client. A motion was filed in the trial court to set aside the default, accompanied by an affidavit setting forth the above facts and alleging a good and meritorious defense and the exercise of due diligence, and was heard on January 19. The affidavit further stated the defendant did not allow occupancy of the premises as alleged in the complaint. The trial court denied the motion to set aside the default on the basis that the attorney for the defendant was not diligent. This appeal followed.

The precise question presented herein was ruled upon by this court in Knight v. Kenilworth Insurance Co. (1971), 2 Ill.App.3d 493, 275 N.E.2d 470. Unlike the instant case, however, the defendant in Knight did not appear or contact the attorney for the plaintiff. Default judgment was entered on January 19, 1971, and 3 days later defendant’s attorney filed a motion to set aside the default, accompanied by an affidavit. In the instant case the attorney for the defendant did, in fact, contact the attorney for the Village, who refused to grant the continuance requested.

We do not deem it necessary to cite in detail from the Knight case, except to state * * trial court should be liberal in setting aside default orders within term time when it appears that justice will be promoted.” (2 Ill.App.3d 493, 495.) There appears to be considerable confusion about the setting aside of default orders within term time and motion to set aside a default order entered after term time. Under the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 50(5)) it is no longer necessary, as we have previously stated, that a meritorious defense or due diligence be shown in order to effectuate the vacation of the default order. The test appears to be whether or not substantial justice will be served by the setting aside of the default when the motion therefor is made within term time. While it is true that a meritorious defense and due diligence are highly desirable as a part of the test, the real determination to be made is whether or not substantial justice will be done. The Supreme Court of Illinois recognized this in People ex rel. Reid v. Adkins (1971), 48 Ill.2d 402, 406, 270 N.E.2d 841, where that court stated, in referring to the pertinent provision here involved of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 50(5)):

“Under this section, it is no longer necessary that such relief be sought on the precise grounds that there is a meritorious defense and a reasonable excuse for not having timely asserted such defense. The overriding consideration now is whether or not substantial justice is being done between the litigants and whether it is reasonable, under the circumstances, to compel the other party to go to trial on the merits.”

In the case before us the affidavit, not denied by the Village, states that the defendant did not allow occupancy of the premises in violation of the Village ordinance. We fail to see how the Village as plaintiff would be prejudiced in any manner by a hearing upon the merits of the complaint herein. While it is true that under this statutory provision the vacation of a default judgment is within the sound discretion of the trial court, we believe that the trial court did, in fact, abuse that discretion under the factual situation herein presented to us. The order denying the vacation of the default judgment is, therefore, reversed and the matter is remanded for trial on the merits.

Reversed and remanded.

SEIDENFELD, P. J, and HALLETT, J., concur.


author: Mr. JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas H. Drish, Defendant-Appellant.
    (No. 12372;
    Fourth District
    December 17, 1974.

      John E. Gambill, of Rantoul, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Thomas L. Knight, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

The defendant was indicted for the violation of sections 33 — 1 and 33 — 3 of the Illinois Criminal Code (Ill. Rev. Stat. 1971, ch. 38, pars. 33 — 1 and 33 — 3). The first of these sections deals with official bribery, and the second deals with official misconduct. The thrust of the indictment was that defendant accepted money with intent to be influenced in his official capacity as a member of the Champaign Planning Commission to vote on the rezoning proposal for a building known as “Century 21.” It is also alleged that he solicited a bribe to bring to a vote in the Planning Commission the question of whether to recommend the. rezoning on the property on which the building was located. The jury found the defendant guilty, and he was sentenced to 1 year in an institution other than a penitentiary.

The facts at trial reveal that the defendant was a member of the Planning Commission in June 1972. The members of this commission are appointed by the mayor and approved by the city council and do not take an oath or sign any bond. This commission serves as an advisory body to the city council on zoning matters.

The Architectural Mechanical Systems, Inc. (AMS), was responsible for . the construction of a building called “Century 21” in Champaign, Illinois. AMS officials were informed that they could not carry on certain proposed uses of the property under existing zoning, and a petition for rezoning was filed to change the zoning. Several meetings were held on this rezoning and a final hearing was set for June 20, 1972. On June 19, 1972, the defendant agreed with AMS officials that for $5,000 he would recommend to the .other members that they rezone the area to permit the desired use. The facts also show that he took a portion of this money to bring the matter to a vote on June 20, 1972. To prove its case the State introduced a recorded telephone conversation of June 19, 1972, in which one of the AMS officials recorded an incriminating conversation without the permission of the defendant. The AMS official knew that the conversation was being recorded, and the State’s Attorney’s permission had been secured for the recording.

The State also introduced evidence of another conversation which was recorded on June 20, 1972, via an eavesdropping device and was listened to by various law-enforcement officials. Various witnesses testified as to what was said in this conversation from hearing it via the eavesdropping device. The recording itself was not introduced as it was too garbled.

It is contended that there were four errors committed during the course of this trial: (1) failure to dismiss the charges for the reason that the defendant was not a public official, (2) denial of the motion to suppress the wiretap and eavesdropping evidence, (3) limitation of cross-examination, and (4) denial of the defendant’s motion for probation.

As to the first point, it is provided in section 33 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 33 — 1) that a person commits bribery when:

“(d) He receives, retains or agrees to accept any property or personal advantage which he is not authorized by law to accept knowing that such property or personal advantage was promised or tendered with intent to cause him to influence the performance of any act related to the employment or function of any public officer, public employee or juror; or
(e) He solicits any property or personal advantage which he is not authorized by law to accept pursuant to an understanding that he shall influence the performance of any act related to the employment or function of any public officer, public employee or juror.”

Official misconduct is defined in section 33 — 3 as an offense when a public officer commits the following acts:

“(d) Solicits or knowingly accepts for performance of any act a fee or reward which he knows is not authorized by law.”

For the crime of official misconduct and of bribery to be proven against the defendant, the State must prove that the defendant is a public officer. The defendant argues that the Illinois- Constitution of 1970 (Ill. Const. (1970), art. XIII, § 3) requires a prospective holder of a state office of other state positions to take an oath. Section 5 — 3—8 of the Illinois Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 5 — 3—8) also requires city officers to subscribe to an oath, and under section 5 — 3—9 these officers are required to execute a bond. The city code of Champaign also provides that every officer of the city is required to take an oath and also to file a bond. Furthermore, there are retirement provisions in this code which require all officers and employees to retire upon reaching the age of 68. There are no such provisions or requirements for the members of the Planning Commission. It is therefore urged that the members of the Planning Commission are not public officers.

The evidence also revealed that the Planning Commission was an advisory body only. It is noted in Mechem, A Treatise on the Law of Public Offices and Officers § 4, at 5 (1890), that the most important characteristic distinguishing public employees from others was that the creation of the office involves a delegation of some of the sovereign functions of government and some portion of the sovereignty of the governmental entity. It was also said in People v. Brady, 223 Ill.App. 95, aff’d, 302 Ill. 576, 135 N.E.2d 87, at page 98 as follows:

" ‘One of the most important criteria of a public office is that the incumbent is invested with some of the functions pertinent to sovereignty, for it has been frequently decided that in Order to be in office the position must be one to which a portion of the sovereignty of the State, either legislative, executive or judicial, attaches for the time being. * *

See also People v. Kramer, 328 Ill. 512, 519,160 N.E. 60.

The State contends that there is little point in discussing the cases which predate the Criminal Code of 1961, as the definition of public officer was created by the legislature in that. year. Section 2 — 18 (Ill. Rev. Stat. 1971, ch. 38, par. 2 — 18) defines public officer:

“ ‘Public officer’ means a person who is elected to office pursuant to statute, or who is appointed to an office which is established, and the qualifications and duties of which are prescribed, by statute, to discharge a public duty for the State or any of its political subdivisions.”

As this is a criminal prosecution under the Criminal Code the definition of public officer set forth therein is controlling. None of the cases cited by the defendant interpret any statutory definition, nor do they depend on a statutory definition. By the definition in the statute there are only two issues that must be met — whether the Commission discharged a public duty and secondly, whether the Commission was and the qualifications and duties of its members were established by statute.

As to the first of these issues, the Commission was clearly designed to serve public interest. The powers as set forth in section 11 — 12—5 of the Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 11 — 12—5) are to prepare and recommend to the corporate authorities a comprehensive plan for the development of the municipality; to recommend changes; to prepare and recommend for specific improvement; to give aid to the municipal officials charged with the direction of the projects and to exercise such other powers as are inherent to the powers granted by that section. It seems irrelevant that the recommendations of the Commission are advisory only as it is a delegation of power, albeit advisory, to the Commission.

The qualifications of the members of the Planning Commission are prescribed by section 11 — 12—4 (Ill. Rev. Stat. 1971, ch. 24, par. 11— 12 — 4). These members have to be appointed by the mayor or president and are subject to confirmation; they must reside in the city or a contiguous area. Nor can it be argued effectively that this commission was not established by statute. Section 11 — 12—4 et seq. provide that this commission may be established by the city. It was in fact established by the city pursuant to this statutory grant. We see no merit in the contention that as the statute creates the discretionary authority to establish this planning commission, the Commission is not established by statute. Once the city exercised its discretion in establishing the Commission pursuant to the statute, it was established by and pursuant to that statute.

The next issue raised was whether the trial court properly denied the motion to suppress evidence obtained by electronic surveillance. It is urged that under article I, section 6, of the 1970 Illinois Constitution, this eavesdropping information should not have been admitted. This article provides as follows:

“The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of' communications by eavesdropping devices or other means. * *

Defendant notes that there is a long line of cases which express a distaste by the courts for evidence derived from eavesdropping. See People v. Kurth, 34 Ill.2d 387, 216 N.E.2d 154, and subsequent cases.

The State contends that the eavesdropping information was obtained pursuant to section 14 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 14 — 1 et seq.). It is noted also that the Kurth decision was under the prior statute and construed the statutory phrase “without the consent of any party thereto” as being the party against whom the evidence is used. Subsequently, it is noted that the Illinois legislature adopted section 14 — 2 of the Code where the eavesdropping is prescribed “unless he does so with the consent of any one party to such conversation and at the request of the State’s attorney.” The Kurth decision therefore is not controlling as it was a judicial interpretation of a legislative intent, which legislation has been changed since that decision.

The constitutional prohibition is against unreasonable interceptions of communications by eavesdropping devices or other means. The fourth amendment to the United States Constitution again provides a prohibition against unreasonable searches and seizures. In United States v. White, 401 U.S. 745, 28 L.Ed.2d 453, 91 S.Ct. 1122, the United States Supreme Court affirmed the use of eavesdropping devices against fourth amendment attack. This decision was a five-to-four split with separate concurrences. In arriving at its decision, the court stated as follows at page 749:

“No warrant to search and seize’ is required in such circumstances, nor is it when the Government sends to defendant’s home a secret agent who conceals his identity and makes a purchase of narcotics from the accused, * * * or when the same agent, unbeknown to the defendant, carries electronic equipment to record the defendant’s words and the evidence so gathered is later offered in evidence.”

On page 752, the court continues:

“If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case.”

Furthermore two appellate courts of Illinois have affirmed the use of eavesdrop or wiretap evidence. In People v. Nahas, 9 Ill.App.3d 570, 292 N.E.2d 466, tape recordings received by radio in a police radio were held admissible. Similarly in People v. Holliman, 22 Ill.App.3d 95, 316 N.E.2d 812, eavesdrop evidence obtained pursuant to the statute was held admissible. In both of these cases similar- arguments were made about the constitutionality of use of the evidence obtained, and both courts rejected said arguments. It is noted and we note that the Illinois Constitutional Convention discussed extensively the problem before us. In the record of proceedings of the sixth Blinois Constitutional Convention at page 30, volume VI, the Committee noted that originally the proposed constitutional provision prohibited all “interception of and communications by eavesdropping devices or other means’.” This provision was changed to prohibit “unreasonable interceptions” as it would provide inore flexibility in the administration of justice.

The circumstances here do not indicate any unreasonable action on behalf of the officers involved. The eavesdropping was approved by the party to whom the solicitation had been made; the officers advised him of what to do and followed strictly the provisions of the statute. There was no fishing expedition, and there was no extended wiretap or eavesdropping. The circumstances under which the information was gathered was not only reasonable but within the statutory provisions.

It is also asserted that there was error in the court’s refusal to allow cross-examination of State witnesses who refused to waive immunity testifying before the grand jury. An offer of proof was made as to what these witnesses would testify to. This indicates that the witnesses refused to made a blanket waiver of immunity when called to testify and refused to sign a written waiver of immunity for the reason that their attorney had so advised them. There is no evidence that any witness refused to answer any inquiry based upon his right against self-incrimination. The witnesses did, in fact, testify before the grand jury. There is no evidence that the witnesses were granted immunity or refused to answer any questions.

It is of necessity that the trial court have wide discretion in restricting the scope of cross-examination. Considerable latitude is allowed and it is largely in the discretion of the trial court. (See People v. Anderson, 48 Ill.2d 488, 272 N.E.2d 18, at pages 494-95.) It does not appear to this court that the limitations imposed upon the cross-examination were such an abuse of discretion or so severely prejudiced tire defendant’s rights as to require a new trial. In fact, the offer of proof would tend to show that the line of cross-exmaination would be irrelevant.

It is further urged that the trial court abused its discretion in denying probation to tire defendant. It is pointed out that the defendant had never been engaged in other criminal activity and that the chance of the defendant ever engaging in other criminal conduct is highly unlikely. The foregoing may be true; however, as is noted in People ex rel. Ward v. Moran, 54 Ill.2d 552, 301 N.E.2d 300, probation is a discretionary matter in the trial court and review is traditionally limited. The issue before a reviewing court is not what it would have done but whether the trial court acted arbitrarily.

Section 117 — 1 (Ill. Rev. Stat. 1971, ch. 38, par. 117 — 1) provides that probation may be granted when the “public interest does not require that tiie defendant receive the penalty provided for the offense”. The corresponding provision of the 1973 statute is section 5 — 6—1 of the Unified Code of Correction (Ill, Rev, Stat. 1973, ch. 38, par. 1005 — 6—1), which provides that probation should be denied if it would “deprecate seriousness of the offenders conduct and would be inconsistent with the ends of justice.” We cannot say the trial court abused its discretion where a public officer treats tire exercise of his public duties as merchandise to be sold over the counter at a price.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

SIMKINS, P. J., and TRAPP, J., concur.


author: Mr. JUSTICE RECHENMACHER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. W. R. L. Sales Company, Defendant-Appellant.
    (No. 72-358;
    Second District
    December 18, 1974.
    Edward H. Rawles and Donald M. Reno, Jr., both of Reno, O’Bryne & Kepley, of Champaign, for appellant.
    James M. Cai;r, State’s Attorney, of Sycamore (James Marshall, Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. JUSTICE RECHENMACHER.


author: Mr. JUSTICE YONTZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Franklin Austin, Defendant-Appellant.
    (No. 73-225;
    Second District
    December 11, 1974.
    George Pease, Public Defender, of Waukegan (Michael J. Boyd, Assistant Public Defender, of counsel), for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, and James W. Jerz and Edward Morris, both of Model District State’s Attorneys Project, of Elgin, for the People.
   Mr. JUSTICE YONTZ

delivered the opinion of the court:

This case arises under the provisions of the Illinois Sexually Dangerous Persons Act (Ill. Rev. Stat. 1971, ch. 38, par. 105 — 1.01 et seq.). On March 20, 1972, William F. Austin, a high-school gym teacher, was in-dieted on three counts of indecent liberties with a child and one count of contributing to the sexual delinquency of a child. On June 2, 1972, pursuant to the provisions of the Illinois Sexually Dangerous Persons Act, the State petitioned the Circuit Court of the 19th Judicial Circuit, Lake County, Illinois, to declare Austin to be a "sexually dangerous person” and to appoint two qualified psychiatrists to examine him and to file written reports pursuant to sections 3 and 4 óf the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1971, ch. 38, pars. 105 — 3 and 105- — 4).

On February 20, 1973, a hearing before a jury was held to determine whether Austin was a “sexually dangerous person” and the jury returned a verdict finding Austin to be a “sexually dangerous person.” The Director of the Department of Corrections was appointed Austin’s guardian and Austin was committed to his custody pursuant to section 8 of the Act (Ill. Rev. Stat. 1971, ch., 38, par-. 105 — 8). Austin now brings this appeal seeking a reversal of the Jury’s finding that he is a “sexually dangerous person” and further seeking a termination of the commitment order.

The defendant Austin has presented to this court by brief three assignments of error.

This court will first address itself to the defendant’s second assignment of error that the trial court erred in permitting Dr. Baron to testify about an examination of the defendant and findings which were not a part of, or reflected in, his written report.

One of the two psychiatrists appointed by the trial court to examine the defendant Austin to determine whether defendant Austin was “sexually dangerous” was a Dr. Ronald Baron.

Under the provisions of section 4 of the Act, the court-appointed psychiatrist examining a respondent must file a written report with the court, and a copy of this written report must be delivered to the respondent. Dr. Baron examined Austin twice: once on July 24, 1972, and again on October 14, 1972. However, Dr. Baron filed his written report, dated October 5, 1972, after the initial examination but before the second examination. Austin and his attorney received a copy of the written report, dated October 5, 1972 (received prior to trial). However, Dr. Baron did not file a written report with the court after his second examination of Austin was conducted on October 14, 1972.

At the trial Dr. Baron testified that at the initial examination (July 24, 1972) Austin had stated that he had been accused of having sexual involvement with three youngsters, but that he had denied such accusation. Austin also had admitted that he had been on probation * s for fooling around” with a 16-year-old male in Chicago. However, at the initial interview Austin “took the Fifth Amendment” and refused to talk about the circumstances of the current charges and in general was evasive. Apparently at the initial interview Austin informed Dr. Baron about his “involvement in Minnesota.”

Based upon the initial interview of July 24, 1972, Dr. Baron did not arrive at a definite conclusion that Austin was “sexually dangerous.” Instead, Dr. Baron arrived at a “conditional kind of conclusion” that Austin was “sexually dangerous” conditioned upon a verification and substantiation of certain matters relating to sexual offenses which Austin had told him about at the initial examination.

In his written report dated October 5, 1972, Dr. Baron stated that certain “items” were finally verified after the initial examination — that is, items relating to sexual relations with certain youngsters and the fact of serving time for sexual offenses with people under age. Dr. Baron then changed his “conditional conclusion” regarding Austin to an “unconditional” conclusion based upon receiving such verification and substantiation by securing certain information (after the initial interview, but before the second interview) from the State’s Attorney’s office relating to previous offenses and convictions.

Austin’s counsel vigorously objected to any reference to the second examination of Austin by Baron, on the grounds that: (1) Austin had not been furnished with a copy of a written report from Baron regarding the second examination (no written report was made); (2) Baron could not have drawn a conclusion in his written report dated October 5, 1972, based upon his examination of October 14, 1972; (3) Baron should not be entitled to “embellish” his opinion of October 5 based on his examination of Austin of October 14, 1972; and (4) Baron had completed the office of his appointment by reason of filing the written report of October 5, 1972, and therefore was acting outside the scope of such appointment in examining Austin on October 14, 1972. The trial court overruled these objections and permitted Dr. Baron to testify with regard to the second examination conducted on October 14, 1972, even though no written report had been prepared after the second examination.

As noted previously, section 4 of the Act provides the procedure by which the trial court appoints two qualified psychiatrists to examine one against whom a petition to declare “sexually dangerous” has been filed. This statute also specifically determines what the court-appointed psychiatrists shall do:

“# » * and the psychiatrists shall file with the court a report in writing of the result of their examination, a copy of which shall be delivered to the respondent.”
Ill. Rev. Stat. 1971, ch. 38, par. 105 — 4.

The Illinois Sexually Dangerous Persons Act must be strictly construed. (People v. Pygott, 64 Ill.App.2d 284, 211 N.E.2d 382.) While proceedings under the Act are considered to be civil (not criminal) in nature (Ill. Rev. Stat. 1971, ch. 38, par. 105 — 3.01), nevertheless it is widely recognized that the effect of such proceeedings may be to deprive a person of liberty and accordingly such proceedings resemble a criminal prosecution in many critical respects. People v. Abney, 90 Ill.App.2d 235, 232 N.E.2d 784.

In the present case, Dr. Ronald Baron, appointed by the trial court, filed his written report (pursuant to section 4) subsequent to his first examination of Austin (July 24, 1972), but prior to his second examination of Austin (October 14, 1972). No other written report was filed foHowing Baron’s second examination of Austin. Over the objection of Austin’s counsel, the trial court permitted Dr. Baron to testify with regard to the second examination of Austin (on October 14, 1972). Clearly this was a prejudicial error.

The purpose of providing the defendant with a copy of the psychiatrist’s written report before the hearing is manifest: to give the defendant an opportunity to know the psychiatrist’s findings and the basis of such findings — to give the defendant an opportunity to cross-examine the psychiatrist in an intelligent fashion and without surprise. Such manifest purpose was thwarted by permitting Dr. Baron to testify about the second examination. While the statute does not preclude a “subsequent” examination after the psychiatrist files his written report, nevertheless due process of law dictates that the psychiatrist not testify outside the scope of his written report. At a minimum, Dr. Baron should have filed a supplementary written report covering the second examination (with a copy to Austin prior to trial) prior to testifying about the second examination. Obviously the lack of a written report covering the “results” of the second examination prejudiced Austin in that he could not know prior to trial that Baron would testify that the “conditional” conclusion was “confirmed” by Austin’s more-responsive statements made at the second examination. Austin was denied the right to confront Baron under the procedures provided for by this statute.

Therefore, this court finds that the trial court did err in permitting Dr. Baron to testify with regard to his second examination of defendant Austin. For it is clear that Dr. Baron failed to file a written report with regard to his second examination, and obviously the defendant Austin could not receive a copy of what did not exist.

In view of the substantial basis for reversal on this ground alone, this court will not resolve the defendant’s other two assignments of error.

This case is reversed and remanded.

G. MORAN and CARTER, JJ., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roy M. Watson, Defendant-Appellant.
    (No. 73-176;
    Second District
    December 18, 1974.

      Frank Wesolowski, Jr., Public Defender, of Wheaton (Robert H. Heise, Assistant Public Defender, of counsel), for appellant.
    John J. Bowman, State’s Attorney, of Wheaton (Ralph J. Gust, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A jury convicted defendant of possession of burglary tools. (Ill. Rev. Stat. 1971, ch. 38, §19 — 2.) He appeals contending: (1) he was not proven guilty beyond a reasonable doubt; (2) the court erred in refusing to instruct the jury that they should not find defendant guilty unless the facts and circumstances proved excluded every reasonable theory of innocence; (3) the court erred in denying defendant’s motion to suppress evidence obtained from his automobile; and (4) he was denied his right to a fair trial by discrepancies in the testimony of the state’s primary witness as given at the motion to suppress and at the trial.

Illinois State Trooper DeDiemar testified at trial that at about 1:30 A.M. on November 23, 1972, he observed a vehicle, its lights off, parked approximately 5 feet from the office door of a closed auto service station. In the light of his car’s headlamps, the trooper observed two persons in the parked vehicle. Within thirty seconds, the vehicle, squealing its tires, sped from the service station and traveled approximately 100' before turning on its fights. The trooper followed, attaining a speed up to 85 mph, and after roughly a mile and a half, overtook and curbed the vehicle. As he did so, he saw, in the beam of his spotlight, a third person sit up in the back seat of the curbed auto. The trooper approached the auto, shone his flashlight into the back seat and observed the third occupant crouched on the back seat with an ax between his legs; a lug wrench protruded from under the front passenger’s seat and was partially covered by a floor mat. The trooper retrieved the ax and radioed a passing sheriff’s patrol car for assistance. With the sheriff present, the defendant (identified as the driver) and his passengers were ordered out of the car and searched. Upon finding a pair of surgical gloves in the pocket of one passenger, the entire car was searched. Found in its interior, in addition to the lug wrench and ax earlier mentioned, were two pair of pliers, a small pry bar, a rubber-coated flashlight, and a small spatula. A small bolt cutter, wire cutter, tin snips, small screwdriver, and a pocket pen-flashlight were found in the glove compartment; a second lug wrench and a ballpeen hammer were found in the trunk. Defendant and the two passengers were arrested. During defendant’s trial for possession of burglary tools, items found in the search were introduced into evidence.

The defendant maintains he was not proven guilty beyond a reasonable doubt. In order to sustain a conviction for possession of burglary tools, the State must prove that the defendant possessed tools adapted and designed for breaking and entering and that they were possessed with knowledge of their character and with the intent to commit a felony or theft. The required intent must ordinarily be shown by circumstantial evidence in the absence of a confession. People v. Faginkrantz, 21 Ill.2d 75, 79-80 (1960); Ill. Rev. Stat. 1971, ch. 38, § 19 — 2.

The defendant contends that the circumstantial evidence presented by the State failed to establish beyond a reasonable doubt the requisite intent to commit a felony because there was no evidence that a burglary had in fact been committed. This proposition is not supported by law. In cases where no burglary had been committed, the necessary intent for possession of burglary tools has been found in the total factual circumstances. (People v. Faginkrantz, supra; People v. Ray, 3 Ill.App.3d 517 (1972), reversed on other grounds, 54 Ill.2d 377 (1973); People v. Esposito, 18 Ill.2d 104 (1959).) In affirming the conviction for possession of burglary tools, the court in Faginkrantz found the necessary criminal intent from the facts that the defendant was illegally parked in an alley behind a plumbing supply firm at 4:30 A.M. with his motor and lights off, that he was far from home, that his being there was unsubstantiated, and that he had in his possession tools adapted to breaking and entering. In Ray, the defendant was arrested at 10:15 P.M. in an alley behind a photography studio, wearing gloves, carrying a pry bar and a flashlight. Gouge marks were found outside two windows of the building, but tests failed to prove defendant’s pry bar made the remarks. Despite there having been no burglary committed, the court held there was sufficient evidence of the requisite criminal intent for possession of burglary tools. The necessary intent in Esposito was based upon tire facts that the defendant was an unemployed laborer and had no apparent use (in his lawful employment) for the equipment found in his car. He was stopped by police, late at night, many miles from his home, driving in the company of a person who fled when the car was stopped. His statements concerning the tools were contradictory.

The facts in the instant case establish sufficient evidence upon which to base a finding that the defendant had the requisite intent: he was parked at a closed gas station at 1:25 A.M., departed at a high speed with his headlights off, the passenger in the back seat behaved in a furtive manner, and the car contained many instruments suitable for breaking and entering.

Defendant next contends that the trial court erred in refusing to give defendant’s instruction which included both paragraphs of IPI— Criminal No. 3.02. The proof of the defendant’s possession of the tools question, one of the elements of the offense, was by means of direct evidence based upon the eye witness observations of the arresting officers. Since both direct and circumstantial evidence were utilized in establishing defendant’s guilt, the court properly refused the defendant’s requested instruction. People v. Christiansen, 118 Ill.App.2d 51, 56-57 (1969).

The defendant next contends that the court erred in denying his motion to suppress evidence obtained as a result of the search of the car. While repetitious in some respects, we deem it necessary to relate the evidence presented at the hearing on the motion. Trooper DeDiemar testified that at 1:25 A.M. he saw a car with its lights off, parked at a closed gas station; that he pulled into the gas station across the street and subsequently saw defendant’s car exit from the gas station, without lights, at a “high rate” of speed; that he followed the car for IV2 miles traveling at a speed between 65 and 70 mph and eventually curbed the vehicle; that in shining his flashlight into the back seat of the car he saw a heavily-taped ax between the legs of one of the occupants and a lug wrench protruding from the right side of the front seat; that he ordered the occupants out of the car and radioed a passing sheriff’s police squad car to assist him; that on arrival, the sheriff told the trooper that all three of the occupants of the car were known burglars in the Du Page County area; that the car was then searched; that he did not have a search warrant, and that at the time of the search none of the occupants of the car had been arrested. Trooper DeDiemar also testified that he did not issue a traffic citation, nor did he observe the occupants of the car commit any crime.

The threshhold question is whether the investigatory stopping of the car was reasonable within the limitations imposed by the fourth amendment. Without deciding whether the defendant was under “arrest” at the time of the search, we hold that in these circumstances the investigatory stop was justified under the authority of People v. Tassone, 41 Ill.2d 7 (1968), cert. denied, 394 U.S. 965 (1969). In Tassone, two police officers observed an unoccupied semi-trailer truck, keys in the ignition, parked behind a motel. The truck was placed under surveillance. After a 3-hour period an automobile drove up and one of the occupants, the defendant, left the car, entered the truck and drove it away. The officers followed the truck a short distance before curbing it. The defendant produced his driver’s license but refused to answer any questions pertaining to the possession of the truck. He was placed under arrest and the truck was taken by the police. The trial court denied the defendant’s motion to suppress. The supreme court sustained the denial of the motion stating that there was no need to determine whether the search and seizure of the defendant and the truck were incident to an arrest. Rather, the validity of the search was determined by whether the “facts available to the officer at the moment of the seizure or the search warrant a man of reasonable caution to believe that the action taken was appropriate.” (People v. Tassone, 41 Ill.2d 7, 10.) In holding that the stopping of the truck was proper and reasonable, the court applied guidelines set forth by the United States Supreme Court in Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968). Under these guidelines, the fact that the policemen had a legitimate interest in effectively discovering and preventing crime justified their approaching the defendant to investigate the suspicious circumstances surrounding his driving away with the truck..

The circumstances of the instant case similarly justified the trooper’s stopping of the car, and the subsequent seizure of the lug wrench and ax was also justified under the plain view doctrine, both items having been in open view to the trooper. People v. Joyner, 50 Ill.2d 302, 310 (1972).

The further search of the car and the seizure of additional burglary tools were reasonable and did not violate the fourth amendment’s proscriptions against unreasonable searches and seizures. It is a well established principle of law that where there is probable cause to believe that the contents of a car offend against the law, a warrantless search may be reasonable. (Carroll v. United States, 267 U.S. 132, 69 L.Ed. 543, 45 S.Ct. 280 (1925); Chambers v. Maroney, 399 U.S. 42, 26 L.Ed.2d 419, 90 S.Ct. 1975 (1970); People v. Joyner, 50 Ill.2d 302 (1972).) Probable cause was established in the instant case by the suspicious conduct of the auto’s occupants and by the plain view presence of the ax and lug wrench. The trial court correctly denied defendant’s motion to suppress evidence.

Defendant last argues that he was deprived of his right to a fair trial and bases his claim on discrepancies in the testimony of the arresting officer at the motion to suppress evidence and at trial. We have reviewed the claimed discrepancies and find them to be minor, lacking in substance and unrelated to matters essential in proving the elements of the crime charged. Further, any discrepancies should have been brought to the jury’s attention during cross-examination of this witness at trial; this was not done. By failing to raise such conflicts in testimony at the trial court, in order that the trier of fact might fully evaluate the credibility of this witness, defendant waived his right to object on appeal to those discrepancies.

For these reasons, the judgment is affirmed.

Judgment affirmed.

GUILD and RECHENMACHER, JJ., concur.


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    Marie Phillips, Admr’x of the Estate of Calvin Phillips, Plaintiff-Appellee, v. The Board of Fire and Police Commissioners of East St. Louis, Defendant-Appellant.
    (No. 73-233;
    Fifth District
    December 2, 1974.
    Richard G, Younge, of East St. Louis, for appellant.
    Apoian & Ross, of East St. Louis (Dale M. Funk, of counsel), for appellee.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

The Board of Fire and Police Commissioners of the City of East St. Louis (Board) appeal a decision of the circuit court of St. Clair County, reversing a decision of the Board discharging Patrolman Calvin C. Phillips (Phillips) from the East St. Louis Police Department. After the filing of the complaint for administrative review in this case, the trial court entered, an order substituting Marie Phillips as Administratrix of the Estate of Calvin C. Phillips, deceased, for Phillips, who died during the pendency of this proceeding.

A hearing was held before the Board on three complaints filed against Phillips. The three complaints were consolidated and presented to the Board in one hearing over the protest of Phillips, The president, vice president, and an attorney member of the Board participated in the hearing with the attorney acting as chairman of the hearing. There was sufficient evidence to sustain the Board’s discharge of Phillips had no reversible error been committed. However, it is undisputed that the Board conducted the prosecution and then decided the case adversely to Phillips. In other words, the Board acted as both prosecutor and judge in this case.

“A proceeding held before an administrative body which is quasi-judicial in nature is not a partisan proceeding but it is, instead, an administrative investigation instituted for the purpose of ascertaining and making findings of fact, and in such a proceeding the administrative agency cannot be said to represent one party against another or to be arrayed on one side against a party thereto.” Ill. L. & Pr. Administrative Law and Procedure § 25, at 461 (1953).

In Gigger v. Board of Fire & Police Com'rs, 23 Ill.App.2d 433, this court, speaking through Justice Hoffman, said at page 439:

“It is imperative that the record of an administrative hearing show that an impartial inquiry into the facts was conducted. It should never appear, as it does in this case, that the procedure was aimed primarily at proving the guilt of the plaintiff.”

In Inter-State Water Co. v. City of Danville, 379 Ill. 41, our supreme court held that the Commerce Commission is an administrative board, quasi-judicial only in its nature, and while it may, pursuant to statute, institute proceedings on its own motion and may make independent investigations, its decisions must be judicial and it cannot be said to represent one party as against another.

In Gardner v. Repasky (1969), 434 Pa. 126, 130, 252 A.2d 704, 706, a case involving the discharge of a policeman, the Supreme Court of Pennsylvania said:

“We held in Schlesinger Appeal, 404 Pa. 584, 172 A,2d 835 (1961), that where a prosecutor and judge were combined in one body, the accused was denied a fair hearing to which due process of law entitled him.”

See also Donnon v. Civil Service Com. (1971), 3 Pa. Cmwlth 366, 283 A.2d 82. The gist of all of this authority is that never, ever, can there be a merger of the prosecutorial and judicial functions in a court or in an administrative body exercising quasi-judicial functions.

After reviewing the decision of the Board in this case, the circuit court found the issues in favor of the plaintiff and ordered that she recover the back wages of the deceased Patrolman Phillips from the date of his suspension or discharge to the date of his death. The question arises whether outright reversal was proper or whether the case should have been remanded to the Board for a new hearing. Since Patrolman Phillips was killed before the circuit court heard his appeal for review, his administratrix would be severely handicapped if there were a retrial of this case, because Phillips would not be available to testify. This would be unfair to the party who did not create the error.

We therefore find that the order of the circuit court, which in effect reversed the decision of the Board, was proper.

Judgment affirmed.

EBERSPACHER and CARTER, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Conway (Impleaded), Defendant-Appellant.
    (Nos. 58961-2 cons.;
    First District (2nd Division)
    December 3, 1974.

      Elliott T. Price, of Chicago (Charles I. Weitzman, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Barry Rand Elden, and Alan L. Fulkerson, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnny Bailey, Defendant-Appellant.
    (No. 73-188;
    Second District
    December 18, 1974.
   Opinion by

Mr. JUSTICE RECHENMACHER.

William N. Twohey, of Ottawa, for appellant.

Patrick Ward, State’s Attorney, of Dixon, and James W. Jerz and Charles D. Sheehy, both of Illinois State’s Attorney Ass’n, of Elgin, for the People.


author: Mr. PRESIDING JUSTICE T. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Gecias, a/k/a Robert Haywood, Defendant-Appellant.
    (No. 73-383;
    Second District
    December 12, 1974.
    Ralph Ruebner and Richard J. Wilson, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, for the People.
   Opinion by

Mr. PRESIDING JUSTICE T. MORAN.


author: Mr. JUSTICE RECHENMACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Sparks, Defendant-Appellant.
    (No. 73-72;
    Second District
    December 13, 1974.
    Elmer Gertz, and Wayne B. Giampietro, both of Chicago, Ronald M. Lieberman and Thomas DeMik, both of Freeport, and Alan B. Andrews, of Las Vegas, Nevada, for appellant.
    Victor V. Sprengelmeyer, State’s Attorney, of Galena (James W. Jerz and Martin Moltz, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

After a bench trial defendant was convicted of exhibiting an allegedly obscene film “Diary of My Secret Life” in violation of section 11 — 20 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 11 — 20) and was fined $500. That film (with another) was seized and the defendant was arrested without any warrant by the chief deputy sheriff and the State’s Attorney of Joe Daviess County at a commercial theatre in East Dubuque after the officials had viewed both films. Defendant’s motion to suppress the film, as having been illegally seized, was denied by the court. At the trial the film was admitted in evidence over defendant’s objections.

While defendant raises several questions on appeal, we need only consider whether the seizure of an allegedly obscene film under these circumstances may be accomplished without a warrant. One of the cases on which the State relies on appeal is Roaden v. Commonwealth (Ky. 1971), 473 S.W.2d 814 (which was at that time pending in the United States Supreme Court on certiorari.) The facts in that case were almost identical to those in the instant case, except that there it was conceded in closing argument to the jury that the film seized was obscene. The Court of Appeals of Kentucky, after emphasizing the latter fact, held that the film was properly seized incident to a lawful arrest. In June of 1973 the United States Supreme Court handed down its decision (Roaden v. Kentucky, 413 U.S. 496, 37 L.Ed.2d 757, 93 S.Ct. 2796) holding that the seizure without a warrant of a film being exhibited to the general public at a commercial theatre with regularly scheduled performances was unreasonable and required reversal of defendant’s conviction in that case. In condemning such a seizure without a warrant the court said: “The seizure is unreasonable, not simply because it would have been easy to secure a warrant, but rather because prior restraint of the right of expression, whether by books or films, calls for a higher hurdle in the evaluation of reasonableness.” (413 U.S. 496, 504, 37 L.Ed. 2d 757, 764.) The Supreme Court distinguished the seizure of a film in these circumstances from the situations in which contraband is changing hands or robbery or assault is being perpetrated, when police action must be “now or never” and in which “it is reasonable to permit action without prior judicial evaluation,” but that “the seizure of the film * * * presented no such how or never’ circumstances.” 413 U.S. 496, 506, 37 L.Ed.2d 757, 765.

In view of this United States Supreme Court decision we now hold that the evidence in the instant case was unlawfully seized and should have been suppressed. Its admission in evidence requires reversal of the conviction.

The order of the circuit court of Jo Daviess County is reversed and the cause is remanded.

Reversed and remanded.

T. MORAN, P. J., and GUILD, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ignatius B. Faulisi, Defendant-Appellant.
    (No. 73-50;
    Second District
    December 12, 1974.
    Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    William J. Cowlin, State’s Attorney, of Woodstock (Daniel A. Mengeling, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The defendant appeals from the dismissal of his amended post-conviction petition claiming that the trial court committed reversible error in dismissing without a full evidentiary hearing.

Plaintiff was arrested on November 19, 1969, and charged by indictment with the offense of unlawful possession of explosives. Represented by two privately retained attorneys, defendant, on March 23, 1970, withdrew his plea of not guilty, entered a plea of guilty and was sentenced to a term of 2 to 5 years’ imprisonment. He instituted a direct appeal from his plea of guilty, claiming, in relevant part, that his trial attorneys were incompetent and his plea of guilty involuntary. Pending appeal, defendant’s present counsel filed a motion to withdraw alleging the appeal to be frivolous. On March 29, 1971, this court found the appeal’s contentions without merit, granted defense counsel’s motion and affirmed defendant’s conviction. People v. Faulisi, 132 Ill.App.2d 208 (abstract opinion 1971).

During pendency of his direct appeal, defendant, on June 4, 1970, filed a pro se petition for post-conviction relief which was dismissed with leave to refile. On June 16, 1970, defendant was arraigned in Federal court on unspecified Federal charges. He pled guilty on January 4, 1971, and thereupon received a sentence of 5 years’ imprisonment.

Subsequent to this court’s affirmance on direct appeal, defendant filed a new petition for post-conviction relief, and counsel was appointed. Thereafter, an amended post-conviction petition was filed, accompanied by defendant’s sworn affidavit. The State filed a motion to dismiss. After arguments, the trial court granted the State’s motion and dismissed defendant’s amended post-conviction petition without an evidentiary hearing.

Defendant claims reversible error, contending that the following pertinent portions of his amended petition and sworn affidavit are sufficient to entitle him to an evidentiary hearing:

“13. * * * [defendant] was deprived of his, constitutional rights under the provisions of the Sixth and Fourteenth Amendments to the United States Constitution and Illinois Constitution, Article II, paragraph 9 in this [sic] that: * * *
3. * # 6 his change of plea from ‘not guilty’ to ‘guilty’ was obtained by fraud, duress, undue influence and improper representations of his attorneys in the trial court, relative to his availability for parole after the service of part of his sentence and that the service of his sentence would be concurrent with his sentence for another crime imposed by the United States District Court. # # *
[Affidavit]
5. * * * his attorneys in the trial court advised him on and prior to March 23,1971 [sic: 1970]:
# # #
b. That the fact that he had a previous conviction in the United States District Court and had been sentenced to serve five (5) years in confinement would not effect his parole here;
c. That both sentences would be served concurrently so that at the worst he would serve five (5) years;
d. That parole has been denied him in this proceeding because of the Federal Court Sentence still to be served;
e. That he is presently required, upon the completion of his present term of confinement, to serve the Federal Court Sentence of five (5) years;
f. That he relied on these representations of his attorneys when he changed bis plea to ‘Guilty’.”

The defendant cites People v. Williams, 47 Ill.2d 1 (1970); People v. Wegner, 40 Ill.2d 28 (1968), and People v. Washington, 38 Ill.2d 446 (1967), for the proposition that where a post-conviction petition alleges that a guilty plea is the result of unfulfilled promises of a lighter sentence or induced by a misrepresentation of a lighter sentence, the petitioner is entitled to a hearing to determine the truth' or falsity of his allegations. In People v. Gaines, 48 Ill.2d 191, 194 (1971), the court reviewed the same cases and stated, “In those cases we held that petitioners were entitled to hearings because their allegations of unfulfilled promises were uncontradicted.” Gaines affirmed the trial court’s dismissal of a post-conviction petition without an evidentiary hearing. The court found from a review of the entire record that defendant’s previous testimony and conduct contradicted the allegations contained in his petition for post-conviction relief. After concluding that the record itself left no doubt that defendant was not induced to enter a plea of guilty by any unfulfilled promise (or otherwise), the court, at page 195, paraphrasing the language of People v. Smith, 42 Ill.2d 547 (1969), went on to say, “[I]t would seem incredible that any fact-finder would believe defendant if he now testified in support of his allegations, and his testimony would be of little, if any, value at an evidentiary hearing.” Such is the case before us.

Defendant’s affidavit alleges that at the time he entered his plea of guilty, he was advised by his trial attorneys that (1) his previous Federal conviction and sentence of 5 years would not effect Iris parole in the instant case, and (2) that his Federal and State sentences would be served concurrently. The record contradicts these allegations. The facts show that when defendant entered his plea of guilty he had not yet been arraigned on the Federal charges. Over 9 months elapsed before he even knew that a 5-year sentence was to be imposed by the Federal Court. Under these circumstances, it would seem incredible, if not impossible, for defendant’s attorneys to have made the alleged statements to defendant.

We conclude that the contradictions within the record clearly indicate that defendant was not induced to enter his plea of guilty by misrepresentations on the part of his attorneys.

For the reasons stated, the trial court’s order is affirmed.

Affirmed.

RECHENMACHER and GUILD, JJ., concur.

       It should be noted that in People v. Wegner, supra, a direct factual dispute was raised by the affidavit and counter-affidavit with nothing in the record to positively rebut defendant’s allegations. In People v. Williams, supra, the “meager” record revealed only the State’s denial of defendant’s factual allegation.


author: Mr. PRESIDING JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Limuel Dabbs, Defendant-Petitioner-Appellant.—(Nellie Dabbs, Petitioner-Appellant.)
    (No. 12475;
    Fourth District
    December 17, 1974.
    Maurice W. Kepner, of Roberts and Kepner, of Springfield, for appellant.
    William E. Lowry, State’s Attorney, of Pittsfield, for the People.
   Mr. PRESIDING JUSTICE SIMKINS

delivered the opinion of the court:

Limuel Dabbs and his mother, Nellie Dabbs, filed a petition seeking the return to Nellie Dabbs of the balance of a $10,000 bail bond deposited by her for her son — he having fulfilled the conditions of the bail bond. The trial court denied the petition and ordered the funds paid to Pike County to be applied on a preexisting judgment against Limuel Dabbs on the forfeiture of a prior bail bond.

Limuel was charged with burglary and theft by an information filed on June 11, 1971, with bail set at $10,000. Limuel deposited $1000 on June 14, 1971, and an order was entered permitting him to leave the state to return to Missouri where he lived and worked. On August 26, 1971, an indictment was returned charging Limuel with burglary and theft, and bail was continued at $10,000. Limuel failed to appear for arraignment on September 7, 1971, and on September 13, 1971, the court granted the State’s motion for forfeiture of the bail for failure to appear. On October 22, 1971, a judgment was entered in favor of the State against the defendant for $10,000 on the bond, and an execution was issued the same day, but with no service on the defendant and no levy on the judgment.

Oh December 21, 1971, an information for violation of the bail bond was filed against Limuel, and bail set on it in the amount of $25,000. On April 7, 1972, the bail on the burglary charge was increased to $75,000. Also on that date, a second execution was issued on the $10,000 judgment with service made on the defendant, but no levy against his assets. Limuel pleaded not guilty to both the burglary and bail bond violation charges on April 12,1972, at which time he was first represented by counsel. On May 3, 1972, petitioner Nellie Dabbs, defendant’s mother, came to Pike County and retained counsel for the defendant, who tried unsuccessfully to get the bail bonds reduced. Nellie Dabbs then determined to try to post the $10,000 necessary for the $100,000 bond, but was concerned about that deposit being used by the State to satisfy the judgment on the previous forfeiture by her son. Both Nellie Dabbs and defendant’s counsel contacted the State’s Attorney in an attempt to either get a legal opinion as to the deposit for the second bond being used to satisfy the earlier judgment, or at least a gentleman’s agreement that the State’s Attorney would not attempt to have the second bond applied to the former judgment. Petitioner and her attorney testified that an understanding was reached with the State’s Attorney that if Nellie put up the $10,000 for her son, there would be no attempt to use it to satisfy the judgment against Limuel. The State’s Attorney testified that he did not commit himself either to petitioner’s counsel over the telephone nor to the petitioner in person, but that he told the attorney that it was an interesting question and that when petitioner visited him personally he advised her to take the advice of her counsel. In any event, Nellie gathered $10,000 cash and on May 5, 1972, accompanied by counsel, went to the clerk’s office where receipts were issued to her for the $10,000, being 10% of both the $75,000 bond and $25,000 bond. Limuel executed assignments to Nellie of both the $7500 and the $2500 deposits which were both filed with the clerk.

On August 2, 1972, Limuel pleaded guilty to both charges, was sentenced, and a mittimus issued. Her son having fulfilled the bail bond requirements, Nellie filed, on August 4, 1972, a motion for the return of 90S of the sum she had deposited as the surety of Limuel Dabbs. The attached affidavit of Nellie stated that all of the money posted for Limuel by her belonged to her and an affidavit of Limuel’s wife asserted that she had accompanied Nellie to the clerk’s office and that the money was deposited as surety for Limuel. When the motion was presented, Nellie’s attorney stated that there had been an understanding with the State’s Attorney’s office before the security deposit was made that if Nellie put up the money, there would be no attempt to use it to satisfy the earlier judgment against Limuel, but that it would be returned if the defendant complied with the conditions of the bond. The court took the motion under advisement and requested briefs.

Also on August 4, 1972, a citation to discover assets was issued against Limuel on the petition of the State’s Attorney regarding the $10,000 judgment against him. That petition was heard on August 10, 1972, and Limuel testified that he had no assets and that he did not own any part of the $10,000 security deposit posted on May 5, 1972, but that it all belonged to his mother. At the close of that hearing, the court stated that an order would be entered finding that the defendant had no assets but that ruling would be reserved on the deposit until briefs were filed on the motion of Nellie Dabbs.

Nellie Dabbs’ attorney was granted leave to withdraw in February 1973; new counsel appeared on March 29, 1973, and was given leave to file further pleadings. On June 21, 1973, the new counsel filed a petition on behalf of both Limuel and Nellie Dabbs for refund of the bail bond security deposited May 5, 1972. This petition was heard on September 14, 1973, at which time leave was granted without objection to add Nellie as an additional party. At the close of the hearing, the court stated that it was clear from the evidence that the money came from Nellie Dabbs but denied the motion and ordered the clerk to apply the proceeds of the security deposit of May 5, 1972, in satisfaction of the judgment against Limuel but to invest the funds pending appeal.

Section 110 — 7(g) of the Code of Criminal Procedure dictates that as to the first bail bond executed by Limuel on June 14, 1971, which was forfeited by his nonappearance, the State was entitled to the $1000 he deposited and a judgment for the balance which “may be enforced and collected in the same manner as a judgment entered in a civil action.” (111. Rev. Stat. 1973, ch. 38, par. 110 — 7(g).) Pike County became a judgment creditor of Limuel Dabbs on October 22, 1971, for the forfeiture of the $10,000 bond executed by Limuel on June 14, 1971. The State thereby was entitled not only to the $1000 deposited by Limuel, but also was a judgment creditor to the extent of $9000 for which an execution was issued on October 22, 1971, and again on April 7, 1972, with no levy being made on either execution.

The subsequent and separate bail bond of May 5, 1972, was posted by Nellie Dabbs with Limuel contemporaneously giving her an assignment of any rights he had to those funds. The terms of that bail bond were satisfied. Section 110 — 7(f) of the Code of Criminal Procedure gives the clerk the right to keep 10% as cost and section 110 — 7(h) gives the clerk the right to retain any judgment that is entered for fines and court costs. (Ill. Rev. Stat. 1973, ch. 38, pars. 110 — 7(f), 110 — 7(h).) There is no statutory procedure for the assignment of a bail bond deposit, but, as petitioner notes, it is common practice, and most counties furnish printed forms such as were used here and recorded by the clerk. Section 110 — 7(f) states that upon performance of the bail bond, the balance shall be returned to the defendant “unless the court orders otherwise.” In this case, the court ordered the balance of the deposits to be used to satisfy Limuel’s obligation rather than returned to Nellie even though the court did not find that the filing of the second bail bond by Nellie or the assignment of it to her by Limuel was a subterfuge to protect Limuel’s assets, had found, in fact, at the citation proceedings that Limuel had no assets, and, at the hearing on this petition, commented that the funds were apparently raised by the mother.

The State has a judgment against Limuel Dabbs who was found to have no assets. The bail bond posted in May 1972 was concededly provided by Nellie Dabbs and an assignment made to her by Limuel Dabbs. The terms of that bail bond were satisfied in August 1972, thereby entitling Nellie Dabbs to the balance of the deposit with interest after the 10% costs are deducted.

Reversed and remanded.

SMITH and TRAPP, JJ., concur.


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Ray Hobbs, Defendant-Appellant.
    (No. 12432;
    Fourth District
    December 5, 1974.
    John F. McNichols and Daniel D. Yuhas, both of State Appellant Defender’s Office, of Springfield, for appellant.
    Robert J. Rier, State’s Attorney, of Quincy, for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

The defendant was charged with the offenses of aggravated kidnapning and rape. Some 60 days subsequent to his arraignment, he withdrew his pleas of not guilty and entered pleas of guilty to both offenses. After admonishing the defendant as to his rights, the trial court accepted the defendant’s pleas of guilty and sentenced the defendant to a term of not less than 7 nor more than 21 years for the offense of aggravated kidnapping and a like sentence for the offense of rape, the terms of imprisonment to be served concurrently. This appeal follows.

Upon appeal, defendant contends that there was not substantial compliance with the requirements of Supreme Court Rule 402 in that the defendant was not adequately informed of the nature of the charges; that the trial court erred in entering two convictions because the offenses were not separately motivated; that the factual basis for the plea did not establish the element of great bodily harm required for the offense of aggravated kidnapping; that all of the sentence possibilities were not explained to the defendant; and, finally, that the sentences imposed are excessive.

The State confesses error and concedes that the People did not furnish the court an adequate factual basis to establish the element of great bodily harm required for the offense of aggravated kidnapping as charged in the indictment. That confession of error by the People is approved.

The opinion of the Illinois supreme court in People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559, is dispositive of the 402 issue presented in this case. We see no necessity for a recitation here of the substance of the procedure followed by the circuit court. It is clear from this record, however, that within the guidelines of Krantz, there was substantial compliance with all of the requirements imposed upon the trial court by Rule 402 as a condition precedent to the acceptance of the plea of guilty to the offense of rape.

We have examined the record with reference to the issue of ex-cessiveness of sentence. It is apparent that the trial court carefully reviewed the background of this defendant, the evidence of other substantial criminal and anti-social behavior by the defendant, and that the sentence imposed is not such that this court should interfere under the authority vested in this court by reason of the provision of Supreme Court Rule 615 and the guidelines for use of that authority as set forth in People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673.

Accordingly, the conviction entered upon the plea of guilty and the sentence imposed for the offense of rape is affirmed. The conviction for aggravated kidnapping is reversed and this cause is remanded to the circuit court of Adams county for the issuance of an amended mittimus.

Affirmed in part; reversed in part; remanded with directions.

TRAPP, P. J., and SMITH, J., concur.


author: Mr. JUSTICE SMITH.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Truman Burge, Defendant-Appellant.
    (No. 12141;
    Fourth District
    December 5, 1974.

      Michael J. Costello, of Springfield, for appellant.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (Jeanne E. Scott, of counsel), for the People.
   Opinion by

Mr. JUSTICE SMITH.


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leonel Gonzalez, Defendant-Appellant.
    (No. 73-202;
    Second District
    December 5, 1974.

      James Cutrone and Sam Adam, both of Chicago, for appellant.
    Gerry L. Dondanville, State’s Attorney, of Geneva (Clarence Wittenstrom, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Defendant was convicted in a jury trial of the offenses of possession and delivery of a controlled substance (Ill. Rev. Stat. 1973, ch. SQVz, pars. 1401, 1402) and sentenced to 2-6 years for each offense, to be served concurrently.

On appeal, defendant contends that it was reversible error to refuse his tendered instruction on the issue of entrapment, to admit a quantity of heroin seized from defendant’s home without a warrant and to admit into evidence marked bills taken pursuant to an allegedly defective search warrant. He also claims that the prosecutor’s closing argument was improper and deprived him of a fair trial.

The principal witness for the prosecution was James Walton, an informer, who, on July 18,1972, made a controlled purchase of heroin from the defendant. He testified that on the day in question he was strip-searched by Aurora police officers and provided with $35 in marked U.S. currency. He was then taken in an unmarked police car to the immediate vicinity of the defendant’s home. He exited the vehicle, walked to the defendant’s house, knocked on the door and was invited in. He told the defendant that he wanted to purchase heroin and handed the defendant the $35 in marked money. He then observed the defendant go to a coloring book on the stairway leading to the second floor and remove an aluminum-foil packet containing heroin. Walton testified that he took the packet and returned to the police car. There, he told the police officers what had taken place and handed them the foil packet he had purchased from the defendant. He was again searched.

Officers Such and Beatus testified that they then proceeded to the front door of defendant’s home. The inner door was open although the screen door was closed. The officers walked into the entranceway which led into the living room and observed defendant coming from the dining room area toward the living room. Officer Beatus announced that he was a police officer and told the defendant he was under arrest. The defendant then started walking away toward the couch in the living room but was told to wait and was then handcuffed. Officer Such who had been told by Walton that the heroin was taken from a coloring book with the upper righthand corner tom off looked at the staircase upon entering and observed the coloring book on the stairway which was about 4 feet from the front door. He picked up the book and went through the pages, observing the presence of four more foil packets.

The defendant denied knowledge of the transaction or of the whereabouts of the prerecorded funds.

Officers Such and Beatus then contacted Sergeant Genslinger of the Aurora Police Department and provided him with sufficient information to obtain a search warrant. Thereafter, the defendant’s home was searched and the prerecorded bills were recovered from the bathroom area of the house. The heroin and currency were admitted into evidence over defendant’s objection.

The defendant testified that on July 17,1972, Walton came to his home, showed him a gold bracelet in a jewelry box and offered to sell it. When defendant refused to buy, Walton requested a $35 loan instead. The defendant agreed to make the loan and the bracelet was used for security. The following day Walton returned and repaid the loan, whereupon defendant retained the box containing the bracelet. At that point the telephone rang and defendant testified that he left the living room to answer it, thus leaving Walton alone for a short period of time. While the defendant was on the phone he was unable to see Walton. As defendant re-entered the living room Walton, who was standing by the front door, said good-bye and left. Defendant said he was arrested a few minutes later.

Walton testified on rebuttal that he went to defendant’s home on July 17 but that he did so in order to purchase more heroin. He denied making a loan from defendant and leaving the bracelet as security.

On this record we find no error in the refusal of the trial court to give the tendered instruction on entrapment. It is clear that a defendant is entitled to an instruction explaining any theory of his defense which the jury might legitimately find to have been proven by the evidence. (People v. Kalpak (1957), 10 Ill.2d 411, 424.) Here, the theory of the defense as established by defendant’s testimony was that the informer, in the guise of leaving security for a loan, had “planted” the contraband which defendant innocently returned to him upon repayment of the loan. If this were true, defendant acted without “guilty knowledge,” an essential element of the offense charged, and the required mental state for the crime was therefore lacking.

The defendant’s theory was obviously before the jury and they had been properly instructed on the elements of the offense as well as the State’s burden of proof. If the jury had believed that the defendant’s testimony was more credible than that of the informer, they could easily have rendered a not guilty verdict within the confines of the instructions that were given. In addition, the defendant denied at all times that he possessed or sold any heroin, and it is clear that the defense of entrapment may not be raised when a defendant denies the facts constituting the offense. (People v. Calcaterra (1965), 33 Ill.2d 541, 546; People v. Realmo (1963), 28 Ill.2d 510, 512; People v. Outten (1958), 13 Ill.2d 21, 23.) Here, despite the possibility raised by defendant’s testimony that the heroin had been “planted,” there is no evidence of entrapment and thus no basis for the giving of an instruction relating to the specific defense. Accordingly, and in view of the fact that this is not a case where the proof was so unsatisfactory as to justify entertainment of a reasonable doubt of guilt, we find no error in refusing the ins traction. People v. Fleming (1971), 50 Ill.2d 141, 144; see People v. Glass (1959), 16 Ill.2d 595, 597; compare People v. Strong (1961), 21 Ill.2d 320, 325; People v. Dollen (1972), 53 Ill.2d 280, 284-85.

The defendant next claims that the warrantless search of his home which resulted in the additional heroin being found in the coloring book on the interior stairway was constitutionally impermissible and that the subsequent admission of the evidence over objection was reversible error. We do not agree. Based upon the information received from Walton when he returned to the unmarked police car, Officers Such and Beatus had probable cause to enter the defendant’s residence (see Ill. Rev. Stat. 1973, ch. 38, par. 107 — 5(d)), and to malee the subsequent arrest. (People v. Barbee (1966), 35 Ill.2d 407, 411; People v. Carter (1971), 132 Ill.App.2d 572, 576-77.) Once in the house, the coloring book, the very object Walton had described as the repository of the heroin, was in plain view and was therefore properly seized without the necessity of a search warrant. See People v. Joyner (1972), 50 Ill.2d 302, 310-11; People v. Wright (1968), 41 Ill.2d 170, 174-75; People v. Barbee, 35 Ill.2d 407, 412; People v. Scott (1973), 13 Ill.App.3d 620, 625.

Shortly after the coloring book was seized defendant’s home was searched pursuant to a warrant issued by a judicial officer and the marked currency described in the warrant was found in the defendant’s bathroom. Defendant claims, however, that the search warrant was not valid. He argues that the warrant was applied for, issued and executed on July 18, 1972, but that it recited facts relied upon to show probable cause occurring with the arrest of defendant on “June 18th, 1972.” There is no evidence in the record, however, indicating any prior sale of heroin on June 18; rather, the proof conclusively shows that the sale in question was made on July 18, the date of the supporting affidavit and the date of the issuance and execution of the search warrant. It is thus apparent from the record that the affidavit contained a clerical error.

The question then becomes whether a clerical error on the face of a supporting affidavit which would tend to show facts too remote to constitute probable cause on the date of the search (see Sgro v. United States (1932), 287 U.S. 206; People v. Montgomery (1963), 27 Ill.2d 404, 405) invalidates a search warrant based upon such an affidavit. Defendant contends that the facts related in an affidavit supporting a search warrant cannot be controverted, citing People v. Bak (1970), 45 Ill.2d 140, and People v. Mitchell (1970), 45 Ill.2d 148. The holding that there is no right to controvert matters declared under oath which occasion the finding of probable cause and the issuance of a search warrant by a judicial officer does not, in our view, preclude a showing of what is clearly a clerical error. The weight of authority supports this view. (See Annot., 100 A.L.R.2d 525, 543; Lyons v. State (Tex. Crim. App. 1973), 503 S.W.2d 254, 255-56; State v. Cain (Fla. App. 1972), 272 So.2d 548, 549; Flinn v. State (1953), 97 Okla. Crim. 28, 257 P.2d 324, 325; Hendricks v. State (1926), 144 Miss. 87, 109 So. 263, 264; Pera v. United States (9th Cir. 1926), 11 F.2d 772, 773; Baker v. Commonwealth (1924), 204 Ky. 536, 264 S.W. 1091, 1092.) Here the evidence and circumstances clearly indicate the existence of probable cause. Accordingly we hold that the search warrant was properly issued and that the trial court correctly denied the motion to suppress the evidence obtained pursuant to that warrant.

Defendant has also complained that the prosecutor’s final argument deprived him of a fair trial. The defendant characterizes the argument as containing repeated and inflammatory expressions of the prosecutor’s personal opinion as to the guilt of the defendant and prejudicial reference to matters outside the record as to which defendant’s objections were repeatedly overruled.

It is permissible for a prosecutor to express his opinion of the guilt of the accused if his argument is based on the proof or legitimate inferences therefrom (People v. Prim (1972), 53 Ill.2d 62, 77; People v. Hairston (1970), 46 Ill.2d 348, 375). Here the prosecutor’s statement expressing his opinion of the guilt of the accused were substantially based on the evidence. And, the remarks of the prosecutor which reflected unfavorably on the accused and urged fearless administration of the law were not beyond proper bounds. See People v. Stock (1974), 56 Ill.2d 461, 467; People v. Benedik (1974), 56 Ill.2d 306, 311; People v. Hampton (1962), 24 Ill.2d 558, 561.

Furthermore, the portion of the prosecutor’s argument which referred to the appearance in court of the defendant’s pregnant wife and his children as being a plea for sympathy and a “dirty trick” did not create reversible error on the whole record. (See People v. Weaver (1972), 7 Ill.App.3d 1104,1107.) It is only the prosecutor’s statement that there was no way to get fingerprints off an aluminum foil packet that we consider improper. Although the remark was made in response to defense counsel’s comment regarding an absence of fingerprint analyses on the foil packets, it was not based on an evidentiary foundation and was therefore improper. Nevertheless, the mere occurrence of improper remarks by a prosecutor does not by itself constitute reversible error. For such remarks to constitute error it must appear that they were a material factor in the conviction, or that they resulted in substantial prejudice to the accused such that without the remarks the verdict would probably have been different. (People v. McCorry (1972), 51 Ill.2d 343, 350-51.) The challenged remarks in this record are not of that magnitude.

For the reasons stated we therefore affirm the judgment below.

Affirmed,

T. MORAN and REGHENMACHER, JJ., concur.