author: Mr. JUSTICE CRAVEN Mr. JUSTICE SMITH,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Danny R. Dawson, Defendant-Appellant.
    (No. 11981;
    Fourth District
    May 2, 1974.

      SMITH, J., dissenting.
    Michael J. Costello, of Springfield, for appellant.
    Edwin R. Parkinson, State’s Attorney, of Jacksonville, for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant was found guilty by a jury in the circuit court of Morgan County of the offense of armed robbery but not guilty of the alleged murder arising out of the same armed robbery. Judgment of conviction was entered on the verdict. Defendant was sentenced to an indeterminate term of 15 to 40 years and appeals.

While several issues are urged on appeal, we need discuss only the one which is dispositive. Defendant avers that the verdicts were legally inconsistent. We agree.

Defendant and his accomplice, David L. Hawkins, were apprehended by the Morgan County authorities for the armed robbery of a Wareco Station located in Jacksonville, Illinois, and the murder of one Charles Duane McKinney, the service station attendant. On December 15, 1971, defendant and Hawkins were indicted in a three-count indictment: Count I charged defendant with murder in that “he did without lawful justification, intend to kill or do great bodily harm to Charles Duane McKinney, and did by the use of a gun shoot and kill the said Charles Duane McKinney,” in violation of section-9 — 1(a)(1) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, 9 — 1(a)(1)); Count II charged dedant with murder in that “he did without lawful justfication, [sic] shoot and kill with a gun, Charles Duane McKinney, while committing a forcible felony, to-wit: an armed robbery,” in violation of section 9 — 1(a)(3) of the Code; Count III charged defendant with the offense of armed robbery in that “he did take property from the person or presence of another, to-wit: Charles Duane McKinney, at the Wareco service station at 602 N. Main St, Jacksonville, Illinois, while armed with a dangerous weapon, # * ” Hawkins plead guilty of the charge of murder and was sentenced to an indeterminate term of 35 to 95 years in the Illinois State Penitentiary. See People v. Hawkins, 14 Ill.App.3d 549, 302 N.E.2d 128.

Defendant’s trial commenced on March 17, 1972. David L. Hawkins was called to testify for the State. He testified that he was serving a sentence of 35 to 95 years for the murder of Charles McKinney. He. positively identified the defendant as being the same individual that had been with him on the night of the incident in question. He stated that he had known the defendant for 5 or 6 years.

Hawkins testified that he and defendant had been drinking beer in Winchester until approximately 1 A.M. on November 16, 1971. Thereafter they went to Jacksonville to spend the night at defendant’s sister’s residence. On the way to Jacksonville he and defendant had a conversation in which defendant allegedly stated that they needed more money to purchase beer and that defendant knew of a gas station that would be easy to rob.

■ They arrived at the gas station around 1:45'A.M., entered and bought a pack of cigarettes. Thereafter they left and drove around the block. On the way back to the station, defendant allegedly handed Hawkins a pistol and said, “If the dude gives you any trouble, just shoot him.”

At this point in Hawkins’ testimony, he identified People’s Exhibit No. 6A — a .22-calibre pistol — as the weapon used in the incident. Hawkins stated that the pistol was owned by defendant and that it was normally kept in the glove compartment of defendant’s, automobile.

The witness stated that after they had circled the block, defendant let him out. Hawkins proceeded to the Wareco Service Station where he shot and robbed the victim. When asked by the State’s Attorney where the defendant was during this time, the witness stated: “He stayed out.” Hawkins took the coin changer and an undetermined sum of cash from the deceased. Once in the automobile, he stated he dumped' the contents of the coin changer, and all the bills onto the seat of the car. The defendant then drove into the country on the “Poor Farm' Road”. Defendant stopped his car on a bridge over a creek where they split the proceeds of the robbery. Defendant threw the gun and coin changer into the creek. He then proceeded to his sister’s residence in order to establish an alibi. The witness contended that Dawson suggested that they needed an alibi.

On cross-examination, defense counsel questioned Hawkins concerning the nature of his relationship with defendant. Hawkins conceded that defendant was not an intimate friend, but rather a casual acquaintance. He also admitted he was high on drugs the night of the incident; and that he was jobless at that time and dependent upon his mother and uncle for support; and that he had experimented with several types of drugs — angel dust in particular. This drug is a combination of cocaine, heroin and morphine. Under further cross-examination, the witness ' admitted he really did not know how many times he shot the attendent and that he could not clearly remember the defendant telling him that he should shoot the gas station attendant if the latter gave him any trouble. His lapse of memory was due to the fact that he had taken some heroin that evening, but he was positive that defendant had suggested that they needed an alibi. Cross-examination ended with a discussion of the condition of defendant’s automobile on the evening of the incident.

When defendant took the stand, his testimony was completely at odds with that given by Hawkins. The defendant admitted that the murder weapon was his and presented a valid registration for the gun. He also admitted that he kept the pistol in the glove compartment of his car. He contended that the pistol was never loaded while it was in his glove compartment.

Concerning the night of the incident, the defendant testified that he met Hawkins around 9:30 or 10 P.M. on the evening of November 15. He and Hawkins eventually decided to go to Jacksonville where they intended to “find some girls.” They stopped at tire Wareco Station in Jacksonville around 1:30 A.M. in order to purchase some cigarettes. Defendant admitted that he and Hawkins had been drinking before they went to Jacksonville. He denied that he ever suggested to Hawkins that they should rob the Wareco Station or that Hawkins should kill the attendant. After leaving the filling station, he and Hawkins drove away, in his automobile. The car eventually died and he told Hawkins to go back, to the Wareco Station to- seek assistance. After Hawkins left, defendant got out of his automobile, opened up the hood and attempted to ascertain the nature of his trouble. He found a battery post was loose. He tightened the battery post and the car started. Hawkins had not yet returned so defendant backed up and turned onto a side street. Just at that moment, Hawkins came around the corner and got into the car. Defendant then drove off. According to defendant, Hawkins did- not say anything concerning the robbery and the shooting. He did not notice anything in Hawkins’ hand when he entered the car. After defendant had driven three or four blocks, Hawkins stated he had just killed the gas station attendant. At first defendant thought Hawkins was joking, so he kept on driving. He drove out to the edge of town in order to permit Hawkins to relieve himself and stopped as soon as he came to the “Poor Farm Road”. It was at this time the defendant noticed the money changer and the gun lying on the floorboard of the car. He realized that Hawkins was not joking. Defendant stated he grabbed the gun and threw it, for he was afraid that Hawkins might try to shoot him. Defendant contended that at no time did he intend or plan with David Hawkins to rob the. Wareco Station, nor did he instruct Hawkins to kill the attendant.

On cross-examination, the defendant denied that he had suggested to Hawkins that they should go to his sister’s in order to establish an alibi. However, he admitted that he split the proceeds of the robbery with Hawkins.

The jury found defendant guilty of Count III of the indictment— armed robbery; and not guilty of Count I — murder, and not guilty of Count II — murder committed in the course of the armed robbery.

Defendant contends that the jury rendered an inconsistent verdict when it returned the verdict of not guilty of Count II, murder committed in the course of the armed robbery, and guilty of Count III, armed robbery, and he should be discharged. He argues that armed robbery, being a forcible felony, is an essential element of felony murder; therefore, an acquittal on the charge of felony murder meant that the defendant had to be innocent of armed robbery. The State argues that the verdicts are not inconsistent because the jury could have found that the State failed to prove beyond a reasonable doubt the additional element of causing the death of the victim that is not present in the crime of armed robbery.

Both parties submit that People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840, is controlling. In Hairston, the supreme court said:

“* * * But where, as here, the verdicts inconsistently acquit and convict of separate crimes arising from the same act, our courts have followed the view that logical consistency in verdicts in such instances is not necessary, so long as the verdicts are not legally inconsistent. [Citations.] * * * [W]e follow the view that: ‘In law there is no inconsistency in verdicts of acquittal and conviction upon charges of crimes composed of different elements, but arising out of the same state of facts.’ ” (46 Ill.2d 348, 361 — 362.)

In determining whether verdicts are legally inconsistent, one must examine the elements of the crimes involved. If the crimes that the verdicts of acquittal and conviction are rendered on are composed of different elements, then different verdicts can stand. If the elements of the crimes are the same, then the verdicts must be the same. The test is whether the elements in the count wherein the accused is acquitted are identical to, or must be found in order to support a guilty verdict upon the count which resulted in a conviction. If so, the verdicts must be identical. (People v. Joyner, 50 Ill.2d 302, 278 N.E.2d 756.) A verdict which acquits the accused of a crime which includes acts necessary for the commission of another crime for which he is found guilty is inconsistent.

In this jurisdiction, the rule is that when a murder is committed during a robbery, all participants in the robbery are deemed equally guilty of the murder, and it is immaterial who fired the fatal shot. The defendant need not have been actually present at the killing in order to be guilty under the felony-murder doctrine. People v. Johnson, 55 Ill.2d 62, 302 N.E.2d 20.

The elements of felony murder are found in section 9 — 1 of the Criminal Code (Ill. Rev. Stat. 1971), ch. 38, par. 9 — 1, which provides in part:

“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
* * *
(3) He is attempting or committing a forcible felony other than voluntary manslaughter.”

Under section 5 — 2 of the Code (Ill. Rev. Stat. 1971, ch. 38, par. 5 — 2), any individual who aids or abets the planning or commission of a crime is legally accountable for the conduct of the principal. Section 5 — 2 would make an accomplice liable for the felony murder committed by his principal. People v. Morris, 1 Ill.App.3d 566, 274 N.E.2d 898.

The jury was given instructions on accountability, armed robbery and murder which included a paragraph on felony murder. These instructions state in part as follows:

“A person is responsible for the conduct of another person when either before or during the commission of a crime, and with the intent to promote or facilitate the commission of a crime, he knowingly solicits, aids, abets, agrees or attempts to aid the other person in the planning or commission of the crime.
A person commits the crime of armed robbery who, while armed with a dangerous weapon, takes property from the person or presence of another by the use of force or by threatening the imminent use of force.
To sustain the charge of armed robbery, the State must prove the following propositions:
FIRST; That the defendant took money from the person or presence of Charles Duane McKinney; and
SECOND; That the defendant did so by the use of force or by threatening the imminent use of force; and
THIRD; That the defendant was armed with a dangerous weapon.
If you believe from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find- from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.
To sustain the charge of murder, the State must prove the following propositions:
First: That tire defendant performed the acts which caused tire death of Charles Duane McKinney,
Second: That when the defendant did so,
(1) he intended to kill or do great bodily harm to Charles Duane McKinney, or
(2) he knew that his act would cause death or great bodily harm to Charles Duane McKinney, or
(3) he knew that his acts created a strong probability of death or great bodily harm to Charles Duane McKinney, or
(4) he was attempting to commit or was commiting the crime of armed robbery.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.
A person commits the crime of murder who kills' an individual if, in performing the acts which cause the death,
he intends to kill or do great bodily harm to that individual; or
he knows that such acts will cause death to that individual; or
he knows that such acts create a strong probability of death or great bodily harm to that individual; or
he is attempting to commit or is committing the crime of armed robbery."

They found defendant not guilty of murder as charged under section 9 — 1(a)(1) and 9 — 1(a)(3) of the Criminal Code, but guilty of armed robbery. It is clear from the above cited, authority that the jury’s verdicts were legally inconsistent as well as logically inconsistent.

This court is aware of the line of authority which holds that each count is an indictment, when charging separate offenses, are separate and distinct as a matter of law, no matter how closely they may be related in fact, and that consistency in a verdict is not necessary. Dunn v. United States, 284 U.S. 390, 76 L.Ed. 356, 52 S.Ct. 189.

In People v. Taylor, 56 Ill.App.2d 170, 205 N.E.2d 807, the court stated the above cited rule and discussed People v. Raddatz, 403 Ill. 48, 85 N.E.2d 32. The court noted that in Raddatz the appellant was found guilty of contributing to the delinquency of a minor, but innocent of the charge of indecent liberties. The evidence was the same for both charges and it was clear that the appellant was guilty or innocent of both charges; however, the appellate court noted that the supreme court found the jury could return a logically inconsistent verdict as long as the verdicts were not legally inconsistent.

In People v. Garnett, 113 Ill.App.2d 159, 251 N.E.2d 761, the court therein applied the rule found in Taylor. It held that the verdicts of guilty of attempted armed robbery and not guilty of murder were not inconsistent. The court predicated its holding upon the reasoning that the verdicts need not be treated as logically inconsistent since the jury could have believed beyond a reasonable doubt that the defendant participated in the armed robbery attempt, but had reservations about his actually stabbing the deceased.

In People v. Sanders, 6 Ill.App.3d 820, 286 N.E.2d 785, it was held that a guilty verdict in the charge of armed robbery and an acquittal on the charge of murder was not legally inconsistent notwithstanding the apparent logical inconsistencies of the verdicts. The court noted that the crimes charged in the indictment were composed of different elements, even though they arose out of the same set of facts. The court relied on the rule found in Hairston.

We find, these cases to be inapposite to the case at bar. This case presents a unique problem of apparent first impression. Here the court is confronted, with an indictment that in Count I charges defendant-with murder under section 9 — 1(a)(1) and in- Count II, murder committed in the course of a forcible felony under section 9 — 1(a) (3), and in Count III with armed robbery. The latter two offenses, while being separately charged, are in law a single offense if the armed robbery resulted in a death. For where two or more defendants have common design to commit an unlawful act, any act done by any of them in furtherance of the common design is the act of all, and all are generally guilty of whatever crime is committed. If the defendant was guilty of armed robbery that was accomplished by Hawkins (the principal), then he is liable for all of the acts of Hawkins, including the murder. When the jury found defendant not guilty of murder under sections 9 — 1(a)(1) and 9 — 1(a)(3) of the Criminal Code, they actually acquitted him of any participation in the only unlawful act giving rise to the murder — ■ the armed robbery. The verdict of guilty of armed robbery was inconsistent for it found that defendant had participated in the crime that resulted in the felony murder of the gas station attendant. To say that defendant was not guilty of murder under section 9 — 1(a)(3), the jury had to find that defendant was not guilty of armed robbery.

This case does not present a set of facts like those found in Garnett where the jury could have believed that the accused participated in armed robbery, but did not actually murder the deceased. The fact that defendant was found guilty of armed robbery meant he is liable under the theory accountability propounded by the State for the felony murder of the deceased. The defendant herein, as opposed to those in the Garnett and Sanders cases, was indicted for felony murder (ch. 38, par. 9 — 1(a)(3) as well as murder (oh. 38, par. 9 — 1(a)(1)) and armed robbery.

The instructions given to the jury concerning the two murder charges were inartfully drawn in that two offenses were joined together in the same instruction. Also, in the body of the instruction disjunctive language was used, yet the last sentence of the instruction required the jury to view the instruction in the conjunctive. The result being that the instruction made it difficult for the jury to find the defendant guilty of murder under any theory.

We now turn to defendant’s contention that he be discharged. In Hairston, the court stated that for a double jeopardy claim to be viable, defendant must establish that the two offenses charged are in law and in fact the same offense. The court went on to note it is the identity of the offense and not of the act which is referred to in the constitutional guarantee against double jeopardy. Furthermore, the court noted that double jeopardy bar has not application where two separate and distinct crimes are committed by one and the same act. The court stated:

"'* * * The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’ ” 46 Ill.2d 348, 358, 263 N.E.2d 840, 847.

The defendant has been acquitted of felony murder. Such amounts to an acquittal on the charge of armed robbery since under the facts and law of this case the two offenses are in law the same offense.

Accordingly, the judgment of conviction for armed robbery is reversed.

Reversed.

TRAPP, J., concurs.

Mr. JUSTICE SMITH,

dissenting:

I would affirm the conviction for armed robbery. The majority would acquit and discharge the defendant by concluding that the verdict of not guilty of murder and the verdict of guilty of armed robbery are legally inconsistent. This they do, as we shall see, by evading or avoiding the result in Hairston while on the surface approving its principles. In Hairston, as here, the liability of the defendant was grounded upon our accountability statute. There the defendant was indicted for murder, attempted murder and solicitation to commit murder. There the defendant argued that a verdict of guilty of solicitation is inconsistent with a verdict of not guilty of murder and attempted murder, and thus his discharge was required. The supreme court rejected this argument and affirmed the conviction for solicitation. When the supreme court there affirmed, why the majority here would acquit escapes me.

If these verdicts are so legally inconsistent that a guilty verdict of armed robbery cannot survive, then the same legal inconsistency which destroys that verdict destroys the not guilty verdict on murder also. The court in Hairston stated at page 361, “* * * It was aptly stated by a Missouri court in State v. Akers, 213 S.W. 424: ‘If the verdict * * * was too inconsistent to support a judgment of conviction, it was likewise too inconsistent to support a judgment of acquittal. As has often been said, “It is a poor rule which does not work both ways” ’.” Our court stated unequivocably that where inconsistent verdicts of guilty were returned on separate indictments or separate counts of a single indictment, a reversal and a new trial must follow, and quoted with approval at page 362 from State v. Baird, 93 P.2d 409, 412, as follows: “‘In law there is no inconsistency in verdicts of acquittal and conviction upon charges of crimes composed of different elements, arising out of the same set of facts.’” Our supreme court then concluded that the verdicts there were legally consistent if not logically so, and the defendant’s claim of a right to discharge must be denied. In People v. Sanders, 6 Ill.App.3d 820, 286 N.E.2d 785, the defendant was charged with murder, attempted murder and armed robbery. He was acquitted on the first two charges and convicted on the armed robbery charge. The court in Sanders specifically held that the verdict was legally consistent although not logically so. The crimes charged in the indictment were composed of different elements although they arose out of the same set of facts and cited Hairston with approval. It seems clear that we have an identical situation here. If the jury in this case had found the defendant not guilty of armed robbery and guilty on the felony murder count, a conviction on that count could not stand for the very simple reason that a felony murder conviction cannot be sustained if no felony was committed. In such instance, you have truly legally inconsistent verdicts. What the majority overlooks is that there were three counts in this indictment. The two murder counts were submitted under the same instruction and a single verdict returned. When one reviews the evidence, it seems quite clear that there is a rational basis upon which the jury predicated their single not guilty verdict on murder and their single guilty verdict on armed robbery. If they believed the testimony of Dawson that his car broke down and he sent Hawkins back to the filling station for help rather than the testimony of Hawkins, then there is a factual basis for distinguishing between the culpable criminality of Hawldns and the culpable criminality of Dawson. Hawkins by his own testimony had committed the actual robbery and murder. He testified that the defendant told him to rob the service station, handed him a loaded revolver and stated, “If the dude gives you any trouble, just shoot him”. Hawkins “shot him, robbed him, come back out.” Dawson denied this testimony of Hawkins and said he had sent Hawkins to the service station because his car had stopped on him. However, he did divide the proceeds of the robbery. On the theory of accountability, the majority seems to feel that the jury should have returned a verdict of guilty as to murder. Perhaps they should have, but I know of no rule of law that required them to do so. They did find him guilty of armed robbery.

To hold that this defendant is legally unaccountable on this three-count indictment on a theory of inconsistent verdicts and judicially hold that he is accountable for nothing strikes me as far more inconsistent than the jury’s verdicts, either legally, logically, or factually.

Accordingly, it seems to me that in reliance on a purely legalistic theory, the majority uses our accountability statute to discharge a guilty defendant instead of using that' statute as it was intended, that is, to authorize convictions on the principle of accountability, although there was no active actual participation or presence at the scene by the persons charged. It seems to me that if Hairston is to be followed at all, it should result in an affirmance of the defendant’s conviction. That is what they did in Hairston; that is what we should do here. Cases collected in 18 A.L.R.3d 259, 274, suggest that this is by far the practical, prevailing view.


source: Caselaw Access Project

author: Mr. JUSTICE CRAVEN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steven Miller et al., Defendants-Appellants.
    (No. 12064;
    Fourth District
    May 2, 1974.

      Paul Bradley, Deputy Defender, of Chicago (Robert E. Davison, Assistant Appellate Defender, of counsel), for appellants.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

The defendants were found guilty by a jury of burglary and theft of property valued in excess of $150. Judgment was entered on both verdicts. The defendants were sentenced to an indeterminate term of 2 to 4 years for burglary and 1 to 3 years for theft, both sentences running concurrently. The defendants appeal.

Several issues are presented for review. However, we need only discuss those issues which are dispositive. Defendants submit the trial court failed to suppress evidence that was the fruit of an unlawful search and seizure. The State contends defendants lack standing to contest the validity of the search and seizure. We find defendants had standing and the trial court erroneously failed to exclude the contested evidence.

This issue arises out of a warrantless search of a rented locker located in the Greyhound Bus Station, Springfield, Illinois. Deputy Workman of the Sangamon County sheriff’s department received a phone call on March 24, 1972, from an unidentified informant who implicated the defendants in a burglary that occurred on March 23, 1972. The substance of the phone conversation was that certain stolen articles could be found in a locker located at the Greyhound Bus Station in Springfield. Workman believed that the unnamed informant was one Ray Action whom he characterized as an unreliable individual. Under the test of Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509, and Spinelli v. United States, 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584, because of his characterization Workman could not have obtained the search warrant based upon the information acquired from the informant.

Workman checked the Springfield city police reports and determined that a burglary had taken place on March 23, 1972, at the residence of Otto Stolleis. He then proceeded to the bus station and contacted Mr. Edward Allen, the assistant manager of the bus depot. Workman asked Allen if he had any way that the contents of the lockers could be checked. At this time, Workman did not have a search warrant. Allen got a master key and proceeded to open the locked lockers in order to gain access to the contents thereof. According to Workman, Allen opened approximately 25 to 30 lockers before they found the locker that contained the items taken from the Stolleis residence. Mr. Allen stated that he only opened four or five lockers before they found the locker that the authorities were interested in. None of the items found in the locker were seized or removed by either Mr. Allen or Deputy Workman. Immediately thereafter, surveillance of the locker was commenced.

Deputy Sheriff Dan Hoffman was on surveillance duty in the Greyhound Bus Station around 6 P.M. on March 24, 1972, when he observed the defendants approach the locker. One of the defendants put a key in the locker, opened it and removed a transistor radio. Hoffman approached the two individuals and informed them they were under arrest. The defendants began to resist Hoffman but they were subdued. Shortly after the apprehension of defendants, Hoffman returned with another deputy to secure the remainder of the contents of the locker.

The defendants were subsequently indicted for burglary and theft of property valued in excess of $150.

The defendants filed a motion to quash their arrest and suppress the evidence secured as a result of the search and seizure in question. On August 14, 1972, hearing was held on the motion to suppress. At the hearing on the motion, certain facts in addition to those above mentioned were brought out and are as follows. Defendant McGuire testified that the key he used to open the locker was given to him by Ray Acton, and that the key was given to him approximately %-hour before he and Miller went to the bus station. McGuire stated that he and Miller went to the locker only as a favor to Acton.

Mr. Allen testified that the locker the merchandise was found in was locked, thereby indicating that it had been leased to someone. Allen stated that any individual can rent a locker for 24 hours by paying 25 cents. The only written agreement that exists between the lessee and lessor of the locker is contained on a sticker which is placed on the face of the locker. The sticker tells a potential lessee how to use the locker and if items put therein remain for over 24 hours there will be a storage charge. If it is determined that an individual has left items in the locker over 24 hours, an agent of the lessor will remove the lock cylinder from the locker door and put a red tag thereon which states: “See Agent”, at which time the lessee would pay their storage fee.

Allen stated that the locker in question had not been used for more than 24 hours and therefore not subject to a storage charge.

On cross-examination by the State’s Attorney, Mr. Allen testified that the bus terminal reserves the right to enter the lockers under certain circumstances even when they are leased to someone. The relevant portion of his testimony on this matter is as follows:

“MR. LANTER: Q. So then it’s a policy, you represent the bus lines or the person — .
A. Union Bus Terminal.
Q. I see.
And, upon these — renting these lockers out, do you as manager reserve the right to look into the lockers?
A. Yes, sir.
MR. CASPER: Objections, your Honor. I think that calls for a conclusion. If he can testify as to what terms they are rented on that’s fine. As to whether or not he has a right to enter those lockers is a legal conclusion which I don’t this gentleman can testify to [sic].
THE COURT: Mr. Lanter?
MR. LANTER: Your Honor, as to when a person rents his property out to someone else, I think that as owner of the property or in this instance representative of the owner, they can reserve certain rights to that property.
MR. CASPER: This is true, your Honor. I will grant that and now if he can testify as to what the terms are, whether it is oral or written, that’s fine, but as to whether or not if one of the terms would be — stated that on the face of the locker if that term is stated on the face of the locker that they reserve the right to enter, that’s another question.
THE COURT: I think that’s for the court to determine. I’ll permit you to ask the question and on cross examination if it’s not proper I will not consider it.
MR. LANTER: Thank you, your Honor.
Q. As the manager and representative of the owner of the locker, do you reserve the right to enter those lockers?
A. Yes, sir.
Q. Even though it may be during the twenty-four hour period?
A. Yes, sir.
Q. And, what is the reason for that?
A. Well, about four years ago in Chicago, Illinois the locker companies used to have a plug that you would put in the keyhole, you wouldn’t open the locker, you just put it in the keyhole and nobody could use it, and they found a baby that had been stored for about a week and they decided that that wasn’t too good a procedure, so every day when I open the lockers or if we have an odor at that end I’ll go up and open lockers and either push something or if there is a suitcase I’ll push the sides and on occasion I have found merchandise in there that shouldn’t have been. We found some sausage that was about a week old, thought we had a finger there.”

On redirect examination by Mr. Casper, defendant’s counsel, the following was elicited:

“Q. In relation to your testimony concerning a reservation of your right to go into the lockers, this is understandable. Now, as you testified earlier pertaining to a certain placard or some written stuff on the face of the lockers — .
A. Yes, sir.
Q. —is there anything stated on that writing on the face of the lockers wherein you indicate that you reserve the right to gain entrance to those, lockers?
A. I don’t remember the exact wording, but I know it puts them to it there that if it’s not picked up in so many days it would be destroyed, so we would have to get into the lockers.
MR. CASPER: You have answered the question. Thank you.”

The defendants’ motion to quash arrest and suppress the evidence was denied by the court. In issuing its order, the trial court failed to make findings of facts and conclusions of law as required by section 114 — 12 (2)(3) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 12(c). The statute states:

“The order or judgment granting or denying the motion shall state the findings of facts and conclusions of law upon which the order or judgment is based.”

On August 16, 1972, a jury trial was commenced. Deputy Workman and Deputy Hoffman reiterated their testimony that was given at the hearing on the motion to suppress. Mr. Otto Stolleis testified for the State that his home had been broken into at around 3 P.M. on March 23, 1972. Mr. Allen also testified. His testimony was substantially the same as he gave at the pretrial motion hearing.

The defendants called several alibi witnesses to testify in their behalf. Defendant McGuire took the stand and attempted to corroborate the alibi testimony. On August 17, 1972, the jury found defendants guilty of both charges. Defendants filed a motion for a new trial on September 5, 1972, which was denied. Defendants filed their notice of appeal in this cause on September 11, 1972.

The defendants submit that the warrantless search and seizure of items found in the rented locker was unlawful and the fruit of the search should have been suppressed. Consequently, defendants’ conviction should be reversed and the cause remanded for a new trial. The State argues that notwithstanding any legal constitutional infirmities attending the search and seizure, defendants lack standing to urge suppression of the evidence in question. The State cites People v. McNeil, 53 Ill.2d 187, 290 N.E.2d 602, and People v. Pohlmann, 13 Ill.App.3d 779, 300 N.E.2d 302.

With regard to the issue of standing, we are mindful that in Pohlmann we held that defendant lacked standing to urge suppression of certain evidence because the facts of the case clearly revealed that he could not have had a reasonable expectation of privacy in the trunk of the car searched. We noted in Pohlmann that the court in McNeil, when discussing the parameter of the defendant’s standing to suppress evidence, stated standing to suppress evidence unlawfully secured “exists only when one can show that his constitutional rights were violated by the search and seizure, and not by those who are aggrieved solely by the introduction of damaging evidence.’” 13 Ill.App.3d 779, 781 — 2.

The State argues that defendants’ defense throughout the case was that the key to the locker was given to defendants by Ray Acton. The State surmises that defendants’ theory of the case is that Acton would be the lessee of the locker and that defendants had no interest in the locker whatsoever. Therefore, since defendants had no interest in the locker, they lack standing.

In Pohlmann, we stated that questions of consent, agency and property interest were secondary to the ultimate issue of whether an individual had a reasonable expectation of privacy. The State would have us reverse our previous position and subscribe to a rule that is totally contrary to the above statement. A proprietary interest in a place searched is not a dispositive factor in and of itself but rather one of constituents that must be considered in examining the facts upon which defendants’ reasonable expectation of privacy is predicated. (People v. Nunn, 55 Ill.2d 344, 304 N.E.2d 81.) It is clear from the record that defendants were in lawful possession of the key to the locker that was searched. Also, notwithstanding the fact defendants did not allege a possessory interest in the locker, they clearly allege that they had a right to access to the locker; thus defendants would then have had a reasonable expectation of privacy during the period of time which they had possession of the key to the locker.

The facts of this case are clearly distinguishable from the ones found in Pohlmann. The defendant in Pohlmann did not have any right of access to the automobile trunk that was searched by the authorities. The automobile was located in a community over 100 miles from the defendant’s residence. The contraband was placed in the trunk of an automobile owned by someone other than defendant. The question of who had a proprietary interest in the automobile was relevant to show that individuals other than defendant could have gained access to the trunk thereof, thus vitiating defendant’s purported reasonable expectation to privacy therein. In this case, the facts are totally dissimilar. Defendants lived in the same community wherein the locker was located; they had in their possession the only key that could gain admittance to the locker other than the two keys the bus station authorities retained. We find that during that period of time which defendants had exclusive possession of the key to the locker, they had a reasonable expectation of privacy, and therefore had standing to urge suppression of the evidence.

Defendants contend that when an individual rents a locker, closes the door, and locks it, there is a reasonable expectation that the items placed therein would remain private. Defendants submit that according to the instruction on the locker door the lessee was entitled to occupy the locker for 24 hours upon payment of twenty-five cents; and that the locker in which the alleged contraband was found had not been in use for more than 24 hours. Defendant cites Chapman v. United States, 365 U.S. 610, 5 L.Ed.2d 828, 81 S.Ct. 776, and Stoner v. California, 376 U.S. 483, 11 L.Ed.2d 856, 84 S.Ct. 889, for the proposition that neither a landlord or a hotel clerk may validly consent to the search of a rented area.

Essentially, the issue herein is: did the rental agent have the authority to consent to the search of the locker; that is, did the agent have equal rights of possession with defendants in the locker so as to vitiate defenants’ reasonable expectation of privacy therein?

In Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022, when the court was discussing warrantless search and seizures, it stated:

“* * * 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ The exceptions are 'jealously and carefully drawn,’ and there must be a 'a showing by those who seek exemption * * * that the exigencies of the situation made that course imperative.’ ‘[T]he burden is on those seeking the exemption to show the need for it.’” (403 U.S. 443, 454, 29 L.Ed.2d 564, 576.)

Generally a search of a protected area requires the issuance of a search warrant in order to become reasonable. When the authorities act without a warrant, the burden is upon them to demonstrate that their conduct was justified. They must demonstrate that their warrantless search and seizure came within one of the “well-delineated exceptions” such as a search incident to a valid arrest or consent given by a suspect or by a third party with the authority to consent.

In Illinois, the rule is that an equal or greater right to the use or occupancy of property gives the holder of these rights the "authority to consent to a search of the property and that evidence found as a consequence of such search is admissible against a non-consenting co-occupant. (People v. Nunn.) The rule is not based upon a theory of waiver, but rather the co-occupant’s equal rights in the property which permits that individual to consent to a search. An individual who possesses common authority over the premises or effects sought to be inspected, that individual can consent to the search notwithstanding the defendant’s interest therein. United States v. Matlock, - U.S. -, 39 L.Ed.2d 242, 94 S.Ct. 988.

Since Katz v. United States, 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507, when dealing with fourth amendment issues, the critical question has been: What was defendant’s reasonable expectation of privacy? In a situation of co-use or co-occupancy, both parties’ expectation of privacy is reciprocal. A co-user’s right of privacy in a place or thing used in common is constantly subject to intervention by the third party’s coequal rights. This would include the third party’s consent to a police search of the item shared in common. Frazier v Cupp, 394 U.S. 731, 22 L.Ed.2d 684, 89 S.Ct. 1420.

In Frazier, the Supreme Court found that defendant did not have a valid search and seizure claim with regard to clothing seized by authorities upon the search of his duffle bag. The record established that defendant’s cousin was a joint user of the bag and that he gave the authorities permission to search the duffle bag. The Court found that as a joint user, he had the authority to consent to a search upon his arrest and the evidence found by the officers against defendant in the course of the lawful search was admissible against him.

In Chapman v. United States, Georgia law enforcement agents with the consent of defendant’s landlord gained access to defendant’s leasehold through an unlocked window. As a result of this entrance, the authorities seized an unregistered distillery and several gallons of mash. Defendant attempted to suppress the fruit of the alleged unconstitutional search but his motion was denied. On appeal, the Supreme Court reversed. The Court found that the landlord and the authorities forced open the window in order to gain access to the premises; that their purpose in entering was not to view waste — the only reason the landlord could legitimately gain access to the demised premises — but to engage in a search for distilling equipment; and that to uphold such an intrusion without a warrant would nullify the fourth amendment and leave lessee’s “home secure only in the discretion” of a landlord. (365 U.S. 610, 616, 5 L.Ed.2d. 828, 833.) The Supreme Court pointed out that the landlord’s right to enter was limited and not all encompassing, as would be the rights of a co-equal user of the property.

In Stoner v. California, defendant’s hotel room was searched without a warrant but with the consent of the hotel clerk, who provided the authorities with the key. On appeal, the Supreme Court unanimously held that the search was unlawful and that the hotel clerk did not have authority to consent to such a search. The Court stated:

“Our decisions make clear that the rights protected by the Fourth Amendment are not to be eroded by strained applications of the law of agency or by unrealistic doctrines of ‘apparent authority.’ ” (376 U.S. 483, 448, 11 L.Ed.2d 856, 860.)

The Court observed that when an individual rents a motel room, he extends implied or perhaps express permission to certain individuals— such as maids, janitors, repairmen, and the like — to enter his room and perform their particular duties. However, the permission to enter is limited by expressed terms or through custom and usage, the scope of which is clearly understood. The Court cited Chapman and reiterated the rationale applied therein that the lessor’s actual authority to enter which was drawn upon by the authorities could not be expanded to include rights which the lessor himself did not have.

The consent search is constitutional only when the consenting party has rights of possession and control of the premises or items shared jointly at least equal to those of defendant; for in such an instance the third person has an interest sufficient to constrain and render unreasonable defendant’s expectation that the third party will not consent to an intervention by authorities of defendant’s privacy. To put it more succinctly, where two persons have equal rights to the use or occupancy of premises or items, either may consent to a search. (People v. Marino, 5 Ill.App.3d 778, 284 N.E.2d 54). See State v. Fassler, 108 Ariz. 586, 503 P.2d 807, wherein the court upheld a consent search by a common carrier of defendant’s trunk on the grounds that the carrier had a statutory right to inspect items in its possession when it believed the items contained contraband. The defendant’s expectation of privacy was rendered unreasonable by the third-party statutory right to inspect items in its possession. Also, see People v. Overton, 24 N.Y.2d 522, 301 N.Y.S.2d 479, 249 N.E.2d 366, where the court of appeals of New York upheld the warrantless consent search of a student’s locker by authorities — on the grounds that the consent given the authorities by the vice principal of the school, that defendant attended, was a valid consent in that the board of education through the vice principal retained dominion over the use of the locker and in turn had rights in the locker equal to that of defendant, thus enabling it to consent to a search without a warrant. The power of the vice principal to consent to the search flows from the affirmative obligation of school authorities to supervise the children entrusted to their care.

As noted before, in United States v. Matlock, the constitutionality of a consensual search of defendant’s bedroom and closet was upheld. The authorities in that case received the consent to search the premises from defendant’s paramour who jointly occupied, with defendant, the area searched. In the course of the search the officers found money that had been taken from a federally insured bank that defendant purportedly robbed. The Supreme Court reviewed the guidelines set down by the district court which were used to determine the validity or invalidity of the consent given to the law enforcement officials prior to their search. The two-prong test is as follows: the government must (1) prove that it reasonably appeared to the searching officer prior to the search that facts existed which will render the consentor’s consent binding on the defendant; and (2) that prior to the search facts “do exist” which render the consentor’s consent binding on the defendant. In the case at bar, the record reveals that the State failed to establish the latter element.

At the hearing on the motion to suppress, Mr. Allen, the agent for the lessor, testified that the sticker on the face of the locker constituted the only form of agreement between the lessor and the lessee of the locker. The sticker apprised the lessee of how to use the locker and that a storage charge would be levied against the lessee for items left in the locker for over 24 hours. Allen stated that his right to open the lockers —under company policy — was limited to instances when the property remained in the lockers over 24 hours or noxious odors were emitted from the locker. His right to open the locker was clearly limited. Mr. Allens testimony points out that his right of access to the locker was not co-equal with defendants. Thus, there is no evidence that renders the defendants’ expectation of privacy unreasonable.

The record establishes that the defendants were in lawful possession of the key to the locker in question. The items that were in the locker had not been there for a period greater than 24 hours. Therefore, it is clear that defendants had a reasonable expectation of privacy invested in the locker which could not be vitiated through the consent given the authorities by Mr. Allen. (See Annot: Search and Seizure— Consent, 31 A.L.R.2d 1078, and the Later Case Service Supplement thereto.) In light of the rationale found in the Chapman and Stoner cases, as well as Frazier, we find that the search and seizure involved in this case violated the defendants’ fourth amendment rights.

Accordingly, the order of the circuit court of Sangamon County denying defendants’ motion to suppress the evidence in question was erroneous. The judgment is reversed and this cause is remanded for a new trial.

Reversed and remanded.

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


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jose Mangual, Defendant-Appellant.
    (No. 59080;
    First District (3rd Division)
    April 4, 1974.
    Paul Bradley, Deputy Defender, of Chicago (Charles I. Weitzman, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

DEMPSEY, J., took no part.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Douglas Clinkscales, Defendant-Appellant.
    (No. 57633;
    First District (4th Division)
    April 10, 1974.
    Howard T. Savage, of Chicago (Howard O. Edmonds, of counsel), for appellant.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, William K. Hedrick, and Daniel F. Murray, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Defendant was indicted for the offenses of aggravated battery, mob action and resisting a peace officer. He was found not guilty by a jury of the aggravated battery and mob action charges, but guilty of resisting arrest. After a hearing of defendant’s application for probation and in aggravation and mitigation, defendant was sentenced to a term of 9 months to be served in the County Jail. On appeal defendant claims that the trial court erred in refusing defendant’s instruction No. 5 (defense of compulsion), which refusal amounted to deprivation of his constitutional right to due process of law; that defendant had not been proven to have resisted arrest beyond a reasonable doubt; and that defendant should have been admitted to probation. Instruction No. 5 to which the State objected reads as follows:

“It is the defense to the charge made against the defendant that he acted under compulsion of threat or great bodily harm or presence of the imminent infliction of death or great bodily harm if he reasonably believed death or great bodily harm would be inflicted upon him if he did not perform the conduct with which he is charged.”

Section 7 — 11 of the Criminal Code pertaining to use of force in defense of person provides:

“(a) A person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of death or great bodily harm, if he reasonably believes death or great bodily harm will be inflicted upon him if he does not perform such conduct.” Ill. Rev. Stat. 1969, ch. 38, par. 7 — 11.

The purpose of the statute is to avoid depriving a person who was attacked by a police officer or who was about to have suffered harm at the officer’s hand during the course of arrest, whether right or wrong or in case of a wrongful arrest, to defend himself. This is exactly what defendant claimed he was doing at the time the officer grabbed him and struck him with a stick.

In its brief, the State claims that under no circumstances was there a possibility that the defense of compulsion was an issue and that the defendant did not present any evidence that he was compelled to resist the arrest. The State ignores the record where we read the following:

“As the officer came out of the bushes, he came directly at me, that is north of me. At that point the officer said, ‘I got you, nigger/, and he raised the object in his hand and proceeded to swing it. That is the same object that I described as being two inches in diameter and being a piece of wood about 24 to 28 inches long. He was swinging at once and hit me on my head to the left and to the rear. He hit me with his club. At that point, I was shocked and reflex led to reach out for him.”

The record shows that defendant presented testimony which places his behavior within the scope of the defense of compulsion as set out in the Statute. The officer accosted defendant with a police club in hand, insulted his group saying, “I got you nigger”, and then struck him on the head causing an injury that necessitated medical treatment, consisting of 6 stitches, an injection of 1,200,000 units of penicillin, and an X-ray to check for possible fractured skull. Considering the confrontation and the medical treatment which the defendant received on the following day, the defendant was subjected to great bodily harm, and resisted to prevent greater bodily harm and for reasons of self preservation. Defendant’s instruction No. 5 should have been given.

Defendant maintains further that the trial court also erred by refusing defendant’s instruction No. 6. It described three elements of the offenses of resisting arrest and included a fourth element that the defendant did not act under compulsion. It is our opinion that instruction No. 6 should have been given.

The giving of the State’s instruction No. 12 that set out the elements of the offense of resisting arrest without requiring the negation of compulsion was error. State’s instruction No. 13 was also objected to by the defendant. Said instruction advised the jury that a person is not authorized to resist arrest by a peace officer even if he believes that the arrest is unlawful and the arrest is in fact unlawful.

The refusal of defendant’s proposed instructions Nos. 5 and 6 and giving State’s instructions Nos. 12 and 13 amounts to a deprivation of his constitutional right to due process of law to have a crucial question of fact (his guilt or innocence) decided by the jury. This action of the trial court did in fact deny defendant his constitutional right to be tried by the jury. The trial court thus usurped the jury’s function to decide whether he was guilty or innocent of resisting arrest as that offense is defined in Illinois law including the defense of compulsion statute.

Defendant further claims that he has not been proven guilty of resisting arrest beyond a reasonable doubt. We find several discrepancies in the State’s case. Officer Walsh testified that defendant perpetrated a battery upon the officer by striking him with a board. Another officer corroborated Walsh. Yet the jury acquitted defendant of the charge of battery. Both police officers said defendant was uninjured. Dr. Carter’s testimony, stipulated to by both parties to the litigation, indicated that defendant suffered a severe head wound and had been bleeding. On direct examination, Officer Walsh sard that defendant struck him with the board on the shoulder. According to the police physician, Walsh sustained contusions of his left elbow and right chest posterior. We conclude, after a careful examination of the record, that there is no satisfactory evidence that defendant resisted arrest.

Having agreed with the defendant’s first three appeal contentions, it is not necessary for us to consider this fourth contention that defendant should have been admitted to probation.

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

Judgment reversed.

BURMAN and DIERINGER, JJ., concur.


author: Mr. JUSTICE McGLOON

text:
    June H. Borowitz, n/k/a June R. Howell, Plaintiff-Appellant, v. David Borowitz, Defendant-Appellee.
    (No. 58655;
    First District (3rd Division)
    April 18, 1974.

      Davis, Jones & Baer, of Chicago, for appellant.
    Bentley, Campbell, DuCanto & Silvestri, of Chicago, for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is a post-divorce decree proceeding. The plaintiff-wife appeals from a judgment of the trial court terminating her award of monthly alimony from the defendant-husband that was established under the terms of the 1962 decree of divorce.

In this appeal the plaintiff demands reversal of the order of termination because: (1) the termination impaired the settlement contract entered into by the parties at the time of their divorce and is therefore in violation of Federal and State constitutional provisions forbidding the impairment of contracts; (2) the trial court committed error in receiving evidence as to facts occurring prior to the date of the decree of divorce; and (3) the trial court abused its discretion in terminating the alimony. The defendant responds that there was no violation of constitutional provisions in the trial court’s termination of alimony, that the trial court considered only proper and relevant evidence in reaching its decision, and that there was no abuse of discretion by the trial court as there was a material change in circumstances of the parties justifying the termination.

We reverse and remand.

The relevant facts adduced in the trial court are as follows: Plaintiff and defendant were, married on August 7, 1959, at which time she was 49 years of age and he was 53. This was a second marriage for both parties as the plaintiff’s prior marriage of 26 years had ended in divorce and the defendant was widowed. Both parties have adult children as a result of their prior unions and no children were born or adopted during their marriage to each other:

After approximately years of marriage, the parties were divorced. On January 2, 1962, a decree of divorce was entered which also incorporated a marital settlement agreement which provided that the defendant was. to pay alimony to the plaintiff in the amount of $1,333.33 a month, and further that he was to create a certain trust to provide reduced monthly payments to the plaintiff in the event the defendant should predecease the plaintiff.

For some 10 years the defendant carried out his obligation under the decree, and by-January 26, 1972, the plaintiff had received a total of $160,000 in alimony payments. On that date the defendant, then 66

years old and remarried, filed a petition seeking a reduction, and later complete termination, of the required amount of alimony due the plaintiff. The plaintiff answered and counter-petitioned alleging her need for an increased amount of support from the defendant by reason of the substantial increase in the cost of living since the original proceedings in 1962.

There followed extensive hearings on the petitions, during which substantial testimony and documentary evidence were introduced. In support of his petition, and over the objections of the plaintiff, the defendant introduced evidence as to the plaintiffs financial condition that included items of value that she had received from- him prior to and during their, marriage, in addition to the evidence of alimony paid since the entry of the decree. Over the plaintiff’s objections that this evidence was not relevant or material to a post-decree modification proceeding, the defendant showed that he had given her certain valuable gifts including a promissory note in the amount of $30,000 which he fully paid after their marriage, that during their marriage he had given her jewelry and furs in the amount of $30,000, and 100 shares of stock valued at approximately $18,500, all of which she kept upon their divorce. In addition the defendant testified that he. spent in excess of $100,000 in renovation of an apartment for their use as their home during the marriage. All of this was in addition to the $160,000 in alimony the defendant had paid since the divorce.

Through the testimony of the plaintiff and the introduction of certain of her tax returns it was disclosed that in 1971 she possessed approximately $100,000 in stocks and bonds, received approximately $4,500 in dividends and $1,100 in interest for the year, had approximately $20,000 in cash deposits in various banks, and equity in two homes she owned in Florida. On the basis of all of this evidence the trial court concluded that the plaintiffs net worth was then $120,000 to $140,000.

The evidence as to the defendant’s financial condition was as follows. His chief asset was 80% ownership of a closely held family enterprise, Bradley Manufacturing Company. The net worth of this company declined from 1962 to 1971, but showed a projected increase for 1972 to an amount of $261,584. The defendant’s salary as president of the company was $85,000 per year for the years 1963-69, $75,000 for the year 1970, and $65,000 for the year 1971. The defendant’s 1971 income was increased by $35,000 which was income from a partnership that held title to certain real estate. There was further evidence adduced that indicated the defendant was a wealthy man who travelled extensively for business purposes and maintained memberships in exclusive private clubs.

The plaintiff also introduced defendant’s income tax returns which showed that in 1961 the defendant’s total taxable income was approximately $106,730, and in 1971 the total was $105,410. This, the plaintiff contended, indicated that there = had been no change in circumstances which warranted a reduction or termination of alimony.

In support of her counter-petition for an increase in alimony the plaintiff testified that due to the increased cost of living her needs were then $2,340 per month. This was supported by a detailed monthly budget that, she testified, reflected her current needs.

Following the hearings the trial judge entered a lengthy judgment order in which he made extensive findings of fact and concluded that due to the substantial sums paid by defendant to plaintiff, the passage of 11 years since the entry of the original decree, the fact of the defendant’s age, consideration of the net worth of the parties and all the other evidence. adduced, there had been sufficient change in circumstances to warrant a termination of alimony to the plaintiff. The judgment ordered the.defendant to phase out the payments over a 6-month period of lessened payments and then cease payments altogether. The judgment order also eliminated the requirement that the defendant maintain the trust that was provided for in the original decree.

In this appeal the plaintiff first contends that the order of the trial court eliminating alimony violated article I, section 10 of the United States Constitution, and article I, section 16 of the Illinois Constitution, providing that no law impairing the obligation of contracts shall be passed. The plaintiff argues that the marital settlement agreement providing for the payment of alimony entered into by the parties on December 8, 1961, and later incorporated into a decree of divorce, was a contract. And further, because the trial court was not empowered to terminate alimony until 1969 when section 18 of the Divorce Act (Ill. Rev. Stat. ch. 40, par. 19) was amended to provide such relief, the reliance on the 1969 amendment to modify a contract entered into in 1961 impaired the pre-existing contract obligation and therefore violated the above constitutional provisions.

We need only say in regard to this issue that in view of our holding that the complete termination of alimony in the instant case was unjustified on other substantive grounds, there will be no need to pass upon the constitutional issue raised by tire plaintiff.

The plaintiff next argues that the trial court violated the principle of res judicata when it admitted and relied upon evidence of the plaintiff’s financial condition prior to and during her marriage to the defendant. The plaintiff contends that in an application for modification or termination of support the only inquiry should be whether sufficient cause has intervened since the entry of the decree to authorize the court to change the allowance. We agree with the plaintiff that this is a correct statement of the law (Cole v. Cole (1892), 142 Ill. 19, 31 N.E. 109; Marriott v. Marriott (1952), 347 Ill.App. 372, 106 N.E.2d 876); however, we do not agree with the plaintiff’s suggestion that the use of this evidence in the instant case requires a reversal.

The evidence objected to by the plaintiff (financial transactions between the parties prior to and during the marriage), when considered in the context of the entire case was admitted by the trial court in its effort to do justice in the case by attempting to accurately determine the situation of the parties at the time the decree was entered. We must also agree with the defendant that when a court is to determine whether there has been a change in circumstances since the entry of decree it must have reasonable latitude in inquiring into the income, assets and standard of living of the parties at the time of and immediately prior to the entry of the original decree. Since the marriage in the instant case was of such short duration it was not unreasonable for the court to examine the financial condition of the- parties for a period of time before the decree.

We are not unmindful of the fact that the trial court not only admitted, but also relied on some of this predecree evidence of financial condition in arriving at its decision. However, this evidence, some of which is recited as findings of fact in the judgment order, when read in the context of the entire judgment order, were not the significant findings upon which the court made its decision. The final numbered paragraph of findings (par. 26) in the judgment order recites four facts occurring since the entry of the decree to justify the court’s order of termination. That paragraph recites that the substantial sums already paid by the defendant to plaintiff, the passage of 11 years since the decree, coupled with the age of the defendant and the net worth of the parties, constitutes a sufficient change in circumstances to justify termination. Under the law in Illinois these factors are clearly valid considerations to be taken into account by a court in a modification proceeding. Herrick v. Herrick (1925). 319 Ill. 146, 153, 149 N.E. 820; Warren v. Warren (1963), 40 Ill.App.2d 286, 189 N.E.2d 401.

The plaintiff next argues that the facts of the instant case do not justify the ordered termination and therefore the trial court has abused its discretion. Conversely, the defendant argues that the facts do justify the termination. Our study of the facts and circumstances causes us to agree with the plaintiff that a complete termination of support was improper; however, we find that the facts present a case where a modification of the alimony requirements was clearly in order.

We would initially point out that there was no significant evidence here as to any change in circumstances as to the defendant’s ability to continue paying the support called for in the decree. The evidence indicated that the defendant’s income in 1971 was approximately the same as it was at the time the decree of divorce was entered. However, the husband’s continuing ability to pay the decreed alimony is not the only factor that courts consider in determining whether a change in circumstances has occurred which justifies a modification of the original award.

One factor considered by the courts on petitions for modification is the age of both of the parties. (Byerly v. Byerly (1936), 363 Ill. 517, 525, 2 N.E.2d 898.) At the time the trial court entered the order terminating alimony in this case the plaintiff was 62 years old and the defendant was 66. The court found that the defendant desired to retire from active employment and he enjoyed neither an employment contract nor pension plan.

Another factor taken into consideration as effecting a material change in circumstances of the parties is the amount already paid to plaintiff from defendant since the decree was entered. (Tan v. Tan (1972), 3 Ill.App.3d 671, 675, 279 N.E.2d 486.) In the instant case the trial court found that the monthly payments made by defendant over a period of 10 years amounted to a total paid to the plaintiff of approximately $160,-000.

Another important consideration in the instant case is the brevity of the parties’ marriage. Obviously, the longer a woman has lived with a man and performed the functions which one normally expects from a wife, the greater is her claim to support. (Ferguson v. Ferguson (1955), 125 Ind. App. 596, 125 N.E.2d 816; Thompson v. Thompson (1960), 222 Or. 505, 353 P.2d 241; Tan v. Tan, supra.) The length of a marriage is an important consideration in a number of respects. In the instant case both parties had past, lengthy marriages in which they raised their respective children to maturity. The parties married long after the defendant had established himself in business and the fact that the plaintiff did not contribute significantly to the defendant’s wealth or earning potential is a factor to be taken into consideration. (Volid v. Volid, (1972), 6 Ill.App.3d 386, 391, 286 N.E.2d 42.) The fact that this was a middle-aged, second marriage of short duration for both parties distinguished the instant case from such cases as Johnston v. Johnston (1972), 9 Ill.App.3d 247, 292 N.E.2d 39, wherein the parties were married some 29 years before divorce, leaving minor children in the custody of the middle-aged wife. The facts presented in the instant case and the facts in Johnston and similar cases, are different in almost every respect. The fact that the wife has acquired a substantial amount of property, or that her property has increased in value, has also been held to be an important consideration in determining whether and to what extent the decree should be modified. (Loeb v. Loeb (1972), 6 Ill.App.3d 892, 894, 286 N.E.2d 790; Bunde v. Bunde (1955), 270 Wis. 226, 70 N.W.2d 624; Bissell v. Bissell (1971), 291 Minn. 348, 191 N.W.2d 425; Douglas v. Douglas (1968), 109 N.H. 41, 242 A.2d 78.) Where both the husband and wife are in receipt of income or possess valuable property, the wealth of the wife as well as the husband should be taken into consideration. (Cahill v. Cahill (1942), 316 Ill.App. 324, 336, 45 N.E.2d 69; Byerly v. Byerly, supra.) In the instant case this fact is perhaps the most important one weighing in favor of a modification of the original award. After an extensive hearing the trial court found that the net worth of the plaintiff was a substantial sum, consisting of cash, stocks and securities, and equity in real estate.

We, also, take notice of the recent emancipation of women socially and economically. We note that this fact has recently led courts to criticize the general rule that a husband is responsible for maintaining his wife at a standard of living to which she became accustomed during marriage. In Volid v. Volid, supra, the court commented:

‘When the rules regarding the husband’s duty of support were first enunciated, the roles of a husband and wife were more rigid and defined. The husband worked and brought income into the family while the wife maintained and managed the household. The woman generally did not seek outside employment partly, because Tier place was in the home’, and partly because few opportunities for meaningful employment were available. Married women nowadays are increasingly developing career skills and successfully entering the employment market. Where a woman is trained, healthy, and employable, and where a woman’s efforts have not contributed to her husband’s wealth or earning potential, the necessity for an alimony award upon breakup of the marriage is not great.” (6 Ill.App.3d at 391.)

We are aware that these comments do not fit perfectly the situation presented in the instant case; however, there are other cases embodying a similar point of view that also articulate exceptions to the general rule that a wife should be supported at the same standard of living she Was accustomed to during her marriage. Vanderbilt v. Vanderbilt (1955), 207 Misc. 291, 138 N.Y.S.2d 222, aff'd, 147 N.Y.S.2d 125, aff'd, 1 N.Y.2d 342, affd, 354 U.S. 416, is a divorce case similar to the instant case, in that there was evidence that the parties, while married, had travelled and entertained extensively, becoming accustomed to a lavish standard bf living. In determining the amount of alimony to be awarded to the wife the court stated that although the wife would not be limited to only such sum as would prevent her from becoming a public charge, she was, on the other hand, no longer privileged or required, as she had been while married to her husband, to accompany him on his extensive trips and voyages and in his lavish entertainment and mode of living, all of which necessitated large expenditures for her clothes, travel and hotels. The court concluded that she was not entitled to continue to be maintained in the standard of luxurious life and travel which she enjoyed during the marriage.

Contrasted with these considerations are the facts that the plaintiff here is in excess of 62 years of age and untrained for any employment. Reviewing all of the factors in this case, we are inclined to believe that although a complete termination of alimony to the plaintiff was an abuse of the trial court’s discretion, the continued payment of $16,000 a year to a woman of the plaintiff’s means, after her brief marriage to the defendant, is not justified. The purpose of alimony is to furnish support to the wife or to contribute to her partial support, and not to visit punitive damages on the husband for any supposed misconduct. Buehler v. Buehler (1940), 373 Ill. 626, 632, 27 N.E.2d 466; Hudspeth v. Hudspeth (1970), 122 Ill.App.2d 341, 258 N.E.2d 584.

For these reasons we reverse and remand the cause to the circuit court with directions to vacate and set aside said order. It is further ordered that after any further proceedings that the court may determine necessary, it enter an order of modification not inconsistent with this opinion, such order to be retroactive to the date of the judgment order herein reversed.

Judgment reversed and remanded.

DEMPSEY and MEJDA, JJ., concur.


text:
    Jesus Valdivia, Plaintiff-Appellee, v. Emil Bertolozzi et al., Defendants-Appellants.
    (No. 58420;
    First District (3rd Division)
    April 4, 1974.
    Melvin Saul Cahan, of Lurie, Orth and Cahan, Ltd., of Chicago, for appellants.
    No appearance for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is an appeal from an action in which the plaintiff alleged that the defendants, adjoining property owners, had damaged the plaintiff’s wooden fence which separated the plaintiff’s and defendants’ property. After a bench trial there was a finding for the plaintiff and damages were assessed at $150.

In this appeal the defendants argue that the plaintiff did not prove that they violated any duty owed to the plaintiff and, therefore, the judgment should be reversed. The plaintiff has failed to appear or plead in this court.

We reverse.

In view of the plaintiffs failure to appear before this court, it is within our power to grant a pro forma reversal. (Gibraltar Corp. v. Flobudd Antiques, Inc. (1971), 131 Ill.App.2d 545, 269 N.E.2d 515.) However, we feel the better rule in the instant case is to decide the case on the merits. Lunch v. Wolverine Insurance Co. (1970), 126 Ill.App.2d 192, 261 N.E.2d 466.

Plaintiff and defendants own adjoining property in the city of Chicago. Along plaintiffs south lot line, where his property joins the defendants’, there was a wooden fence. On December 3, 1971 the plaintiff sued the defendants, alleging that numerous cars pulling out of a self-service car wash located on the defendants’ property struck the plaintiffs fence causing damage in the amount of $582.68. The plaintiff further alleged that the defendants had failed to provide adequate safeguards to protect the plaintiff’s property and demanded judgment against the defendants.

At trial the defendant, Emil Bertolozzi, testified that he owned a self-service car wash on the property next to the plaintiffs building. Since the car wash was self-service he had no employees and only the car wash customers drove their cars around the defendants’ property. Sometimes the car-wash customers would park near the plaintiff’s fence in order to dry their cars. However, the defendant also testified that he never saw anyone drive a car into the plaintiffs fence, and did not know whether plaintiffs own tenants, who also used the lot to park their cars, or car wash customers caused damage to the fence. The defendant further testified that on December 30, 1971, he had installed a chain-link type fence along the north edge of his property. This fence cost the defendant approximately $900 to install. Shortly thereafter the plaintiff removed his wooden fence and at the time of trial all that separated the two lots was the new chain-link fence.

The plaintiff testified that although he did not know who was driving the cars on specific occasions, at various times collisions caused his fence to be damaged. The plaintiff admitted that his own building tenants sometimes parked their cars on defendants’ lot near the fence, but nevertheless he believed the car wash customers were the ones causing damage to his fence.

After the introduction of an estimate of repairs in the amount of $582.68 obtained by the plaintiff, the trial court found for the plaintiff in the amount of $150.

In this appeal the defendants urge a number of reasons for reversal, the most important of which is that the plaintiff failed to meet his burden of proving the defendants negligent in not protecting plaintiff’s fence. It is certainly a well-established principle of law that the possessor of real estate may not unreasonably interfere with the use and enjoyment of another’s real estate or the fixtures and chattels thereon. (Hicks v. Silliman (1879), 93 Ill. 255, 264.) Stated in another way, the possessor of real estate must exercise ordinary prudence and care in the use of his property so as not to damage the property of his neighbor. Although it is true that ordinary care varies with the circumstances of each particular case (Sims v. C.T.A. (1954), 4 Ill.2d 60, 122 N.E.2d 221), it can be stated as a general rule that the law does not require an absolute or perfect knowledge of all dangers that may arise to others from a particular use of property, for the possessor is not an insurer to all the world against injury in any contingency, but only that a possessor of real estate exercise the same intelligence, prudence and care, in regard to his property for the security of others, that prudent men would do for their own. Schwartz v. Gilmore (1867), 45 Ill. 455, 459.

The evidence in the instant case does not demonstrate any breach of the duty of ordinary care by the defendants. The uncontradicted testimony of the defendant, supported by photographic exhibits, showed that at a point approximately 4 feet south of plaintiff’s lot line the defendants had installed concrete bumpers, which were bolted to the pavement, far enough away from plaintiff’s fence so that 50-gallon oil drums could be placed between the bumpers and the fence. The record also contains the plaintiff’s testimony that he did not know who hit his fence on various occasions, but believed they were car wash customers. Neither this evidence specifically, nor any of the other evidence adduced at the trial shows any breach of duty on the part of the defendants.

Our finding that there was no proof of defendants’ breach of duty owed to the plaintiff, along with the fact that the damages awarded by the trial court bear no relation to the evidence of the amount of damage allegedly proved by the plaintiff, require this case to be reversed.

Judgment reversed.

McNAMARA, P. J., and MEJDA, J., concur.


author: Mr. JUSTICE MEJDA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Winfred McIntosh, Defendant-Appellant.
    (No. 57953;
    First District (3rd Division)
    April 18, 1974.
    James J. Doherty, Public Defender, of Chicago (Saul H. Brauner, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Albert R. Rosendahl, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Defendant was indicted on two counts of murder. After a jury trial he was found guilty and sentenced to a term of 14 to 30 years. Defendant appeals. His sole contention on review is that the evidence did not establish his guilt beyond a reasonable doubt.

Willie Jones, brother of the deceased, testified that on the evening of March 3, 1970, he went to a poolroom at 5738 South Prairie Avenue, Chicago. Later in the evening he and the defendant became engaged in a fist fight while shooting dice. The deceased separated the two combatants and told his brother to go home. Defendant ran across the street, and the deceased went into the poolroom. About 10 minutes later defendant entered the poolroom and saw the deceased sitting on a bench with his head bent forward in his hands. The defendant picked up a cue stick and hit the deceased on the head seven or .eight times. The stick broke and the defendant ran out of the poolroom. The witness further testified that at no time did he see anything in the deceased’s hand, nor did the deceased hit the defendant. He testified that while striking the deceased the defendant said, “I promised you that I was going to get you.”

Defendant, testifying in his own behalf, stated that at the time he was kicking the deceased’s brother during their fight, the deceased kicked him in the back. When the fighters separated, the defendant went into the poolroom a few minutes after the deceased had entered. He testified that when he went into the poolroom he walked behind the deceased who had his hands between his legs and his head down; he asked the deceased why he kicked him; the deceased muttered some profanities and put his hand in his pocket; the defendant grabbed a pool cue and hit the deceased two or three times before the stick broke. Defendant further testified that he saw a bulge in the deceased’s pocket but did not know what it was. He stated that he had seen the deceased with a. gun twice before.

No weapon was found on the deceased or in the poolroom. The coroner’s pathologist testified that death was the result of cerebral laceration and resulting skull fracture.

In a written statement which was admitted and read into evidence the defendant stated that in the poolroom he asked the deceased why he kicked him; that the deceased mumbled some profanity and put his hand in his pocket; that by the time the deceased mumbled the profanity, the defendant hit him with the big end of the cue stick; that he never saw any weapon in the deceased’s hand; and that the deceased remained seated during the blows.

Defendant maintains that although an instruction on manslaughter was submitted to the jury, the evidence did not warrant a murder conviction, but did warrant a manslaughter conviction. We do not agree.

Contradictory evidence creates an issue of the credibility of the witnesses. (People v. McVet, 7 Ill.App.3d 381, 287 N.E.2d 479; People v. Jordan, 5 Ill.App.3d 7, 282 N.E.2d 530.) The credibility of the witness and the weight to be given his testimony were questions for the jury. (People v. Elmore (1971), 50 Ill.2d 10, 276 N.E.2d 325; People v. Day, 2 Ill.App.3d 811, 277 N.E.2d 745.) Upon examination of the evidence we cannot find that the verdict of the jury is so unreasonable, improbable or unsatisfactory, as to justify entertaining any reasonable doubt as to defendant’s guilt of the-crime of murder. See People v. Price, 7 Ill.App. 3d 110, 286 N.E.2d 530.

The judgment of the trial court is therefore affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE GOLDBERG

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Talach (Impleaded), Defendant-Appellant.
    (No. 58952;
    First District (1st Division)
    April 15, 1974.
    James J. Doherty, Public Defender, of Chicago (Thomas F. Finegan and John M. Kalnins, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court: .

Richard Talach (defendant) pleaded guilty to armed robbery (Ill. Rev. Stat. 1969, ch. 38, par. 18 — 2). On February 4, 1971, he was admitted to probation for 5 years. On August 23, 1972, he was convicted of rape (Ill. Rev. Stat. 1971, ch. 38, par. 11 — 1) and burglary (Ill. Rev. Stat. 1971, ch. 38, par. 19 — 1) and was sentenced to a term of 20 to 40 years. Accordingly, on October 23, 1972, defendant’s probation was revoked and he was sentenced to 10 to 20 years to run consecutively to the prior term of 20 to 40 years.

On defendant’s appeal to this court, his brief initially urged only that the consecutive sentence imposed upon him should be reduced and also modified to run concurrently. The State urged that the sentence was not clearly disproportionate and should not be disturbed. We have carefully considered this matter and we have concluded that the minimum and maximum limits of the sentence imposed should not be disturbed by this court (People v. Eubank, 46 Ill.2d 383, 394, 263 N.E.2d 869; People v. Fox, 48 Ill.2d 239, 251, 252, 269 N.E.2d 720.) However, at the request of this court, made during oral argument, both sides submitted statements concerning the effect of the Unified Code of Corrections upon the sentence.

As enlarged by this supplemental material, the additional contentions by defendant are that, under the Unified Code, imposition of the consecutive sentence was improper and defendant is entitled to credit upon the sentence for time spent on probation. The State responds that the Unified Code is not applicable here because its provisions are not. less harsh than those existing at the time of commencement of the prosecution; even if the Code is applicable the consecutive sentence should not be modified; and, finally, the trial judge should have an opportunity to exercise his discretion regarding credit granted pursuant to the Code.

We will first consider applicability of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1 and following). The State urges that when defendant was indicted and when he pleaded guilty to armed robbery, the crime was probationable (Ill. Rev. Stat. 1969, ch. 38, par. 117 — 1) and the minimum penitentiary sentence was 2 years (Ill. Rev. Stat. 1969, ch. 38, par. 18 — 2(b)). When the sentence here appealed from was imposed, armed robbery was not probationable and the minimum penitentiary sentence was 5 years. Under the Unified Code, the crime was not probationable and the statutory minimum term was 4 years but could be higher with due regard to the nature and circumstances of the offense- and the history and character of the defendant. Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(2).

The State contends that, by the specific terms of the Unified Code, it is not applicable except in situations where the sentence imposed under the Act would be “less than under the prior law upon which -the prosecution was commenced.” (Ill. Rev. Stat. 1973, ch. 38, par. 1008 — 2—4). In this regard, the State cites People v. Killebrew, 55 Ill.2d 337, 303 N.E.2d 377. This case stands for the proposition that the Unified Code applies for sentencing, as specified therein, only when the sentence thereunder is less harsh than that provided under the prior law upon which the prosecution was commenced. (See also People v. Lilly (Gen. No. 45788, filed March, 1974), 56 Ill.2d 493, 309 N.E.2d 1.) Under these authorities, the Unified Code is not applicable .to the minimum term actually imposed. Furthermore, quite aside from application of the Unified Code to the minimum and maximum aspect of the sentence, this record fails to convince us that we should- modify the periods of imprisonment designated in the sentence as imposed. We will not modify the minimum or maximum of the sentence imposed.

Defendant also, contends, however, that other sentencing provisions of the Unified Code, pertaining to imposition and extent of consecutive sentences and also to possible credit for time spent on probation, are ameliorative and less harsh than former law and are, therefore, applicable here. We are in accord with this contention and consequently we believe that the Unified Code should be applied as regards these matters upon the general principle that the sentence appealed from has not yet been finally adjudicated. People v. Chupich, 53 Ill.2d 572, 584, 295 N.E. 2d 1, and People v. Harvey, 53 Ill.2d 585, 589, 590, 294 N.E.2d 269.

After careful consideration of the effect of the Unified Code upon imposition and extent of consecutive sentences (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4(b) and (c)) and its effect upon credit by reason of time spent on probation (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—4 (h)) we have concluded that the judgment for revocation of probation should be affirmed but that the cause should be remanded for additional consideration and decision on these points by the scholarly and able trial judge.

As regards the consecutive sentence, the Unified Code provides for such punishment only in cases where the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, is of the opinion that a consecutive term is required to protect the public from further criminal conduct by the defendant. The basis for this opinion may be set forth by the court in imposing the sentence. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4(b).) The trial court is far better equipped than this court to make such a determination. Furthermore, under the Code, determination as to whether a consecutive term is required should be the subject of an initial decision by the trial judge. In this regard, we hgve carefully considered the recent opinion of this court in People v. Reno (1974), 17 Ill.App.3d 348, 308 N.E.2d 3. Reno held that a consecutive sentence should be made to run concurrently so “that the ends of justice will better be served.” From the information before us, we cannot say whether or not the “ends of justice” require a consecutive sentence in the case at bar. Also, if a consecutive .sentence is to be imposed, the trial court should consider and apply section 5 — 8—4(c) of the Code. Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4(c).

As regards credit for time served on probation, essential factual matters will undoubtedly receive attention by the trial court. See People v. Burton, 14 Ill.App.3d 1096, 303 N.E.2d 16, which provides that such credit is to be computed from the date that defendant was placed on probation to the date that a bench warrant issued for his arrest. In addition, it will be necessary to make a computation “to determine the quantum of time, spent on probation." People v. Johnson, 13 Ill.App.3d 1020, 1026, 304 N.E.2d 681.

The judgment for revocation of probation is accordingly affirmed and the cause is remanded for resentencing of the defendant in accordance with the views above expressed.

Judgment affirmed and cause remanded for resentencing.

BURKE and HALLETT, JJ., concur.