author: Mr. JUSTICE GOLDBERG

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David Dietschweiler, Defendant-Appellant.
    (Nos. 56944, 57821 cons.;
    First District (1st Division)
    July 15, 1974.

      Tully and Roddy, of Chicago (Joseph V. Roddy, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

David Dietschweiler (defendant) was indicted for involuntary manslaughter. (Ill. Rev. Stat. 1969, ch. 38, par. 9 — 3.) After a bench trial, he was found guilty but was admitted to probation for 5 years on condition that the first year be spent in the House of Correction under the Work Release Program. (Ill. Rev. Stat. 1971, ch. 38, par. 123 — 7.) He appeals.

In this court, defendant contends that the trial court erred in rejecting the testimony of two reconstruction experts and in permitting introduction of evidence regarding a prior suspension of defendant’s driver’s license for lack of “financial responsibility insurance.” He also urges that he “is entitled to an acquittal because of the trial judge’s erroneous finding of guilty on the charge of involuntary manslaughter”; the trial judge erred in allowing evidence of defendant’s refusal to take a breathalyzer test and defendant did not intelligently and effectively waive his right to a jury trial. In addition, an issue regarding constitutionality of the statute under which defendant was indicted is raised in his reply brief.

The State responds that the expert testimony was properly excluded because seven eyewitnesses testified to the speed of defendant’s car so that the expert testimony was unnecessary and impermissively speculative; evidence of the prior suspension of defendant’s license was properly received for purposes of impeachment; the trial court correctly found defendant guilty of involuntary manslaughter since the indictment properly charged that offense; admission of evidence of defendant’s refusal to take a breathalyzer test was harmless error and the waiver of jury trial by defendant was understanding and effective.

It is unnecessary to state the testimony of each and all of the witnesses seriatim. A clear and sufficient understanding of the facts can be obtained from a description of the location involved and a summary of the basic evidence. On May 6, 1971, about 11:30 P.M., defendant was driving his automobile, alone, south on Harlem Avenue, in Chicago. In that area, Harlem Avenue has three lanes of traffic for travel in each direction with a median strip. At the block in question, 5600 south, the street narrows to two lanes in each direction. At that time, the street was being repaired. The construction zone was marked with barricades and flashing yellow lights. That morning the street had been oiled for repaving. The speed limit posted on Harlem Avenue was 35 miles per hour.

The Candlelight Theater is on the west side of Harlem Avenue in this 5600 block. Immediately north is a parking lot and next north a gasoline station. There is a large parking lot on the east side of the street. At the time in question, approximately 200 to 300 people were leaving the theater. Some were crossing Harlem Avenue to the parking facility on the east side. Some 50 to 75 people were on tire sidewalk to the west in the area of the parking lot and the gasoline station. Defendant testified that at this time there were no pedestrians on the street or on tire median strip and that he saw only a couple of people on the sidewalk. He did see the barricades and yellow flashing lights as he approached the scene of the occurrence.

Including police officers, the State called nine witnesses. Steve and Carol Fagiano had left the performance and entered their automobile. They were driving from the gasoline station in an easterly direction, intending to make a right turn to go south on Harlem Avenue. They both testified that there was another automobile ahead of defendant’s car proceeding at a speed of about 20 miles per hour. This car had slowed to permit pedestrians to cross the street to the east parking lot. Defendant cut around this automobile to pass it on the right. However, he failed to correct his direction and struck the left front of their automobile with the right front of his own. At this time, the Fagiano car was either backing up to avoid the impact or was standing still. Also, there is varying testimony as to whether it was partly on the street or entirely within the gas station driveway at impact. There is testimony that after the collision, defendant’s car veered sharply to the left toward the median for several feet, then back to the right, jumped the curb, knocked down and injured two pedestrians, pinned a third against a nearby building and stopped. The third pedestrian was killed.

An investigating officer testified that he saw no skid marks from defendant’s car before the impact with the Fagiano car. He measured skid marks extending 56 feet from the point of collision to the curb and 10 feet of skid marks on the sidewalk. The distance from impact to the building against which deceased had been pinned was 118 feet. The officer found no indication that defendant’s car had gone left toward the median and then right. Two other witnesses for the prosecution testified, however, that defendant’s car had first veered to the left toward the median. This officer testified that in his opinion the minimum distance that defendant’s car could have traveled, assuming that it darted left toward the median after impact, was 118 feet. In his opinion, the impact occurred in the curb lane of Harlem Avenue.

Another police officer testified that he interviewed the defendant in the station shortly after midnight. He found it extremely difficult to get answers. Defendant staggered when he walked, swayed when he turned and his breath smelled strongly of alcohol. In the opinion of the officer, defendant was then under the influence of alcohol. He told the officer that he had been drinking and that he had consumed four bottles of beer. He refused to take a breathalyzer test, a finger to nose test and a coin test. Two officers testified that defendant gave them different versions of the occurrence: that he was going south in the left lane when the Fagiano car pulled out and struck him; he was in the center lane when the car pulled out of the driveway and he could not stop in time; and also that he struck the left front of the other car with the left front of his car.

As regards the evidence of speed, Mrs. Fagiano estimated the speed of the defendant’s car at 60 to 70 miles an hour. She had observed the vehicle for 4 to 5 seconds before the collision. Mr. Fagiano estimated the speed at 55 to 70 miles per hour after an observation of 4 to 7 seconds. He also told two police officers that defendant was driving at 60 miles per hour. Father Mens, one of the pedestrians, estimated defendant’s speed at 60 miles an hour. He stated that it took 1 second from the impact until the car pinned the deceased against the building. Kathleen Kumiega testified that defendant was going too fast because people were crossing Harlem Avenue. Carmen Domingo described the speed as “very fast.” Dorothy Kapsa, another pedestrian, testified that the speed was 40 to 45 miles per hour after impact as defendant’s car approached her and that it took about 5 seconds for the car to stop thereafter. At the coroner’s inquest, she had fixed the speed as at least 35 miles per hour.

Defendant testified that his speed was not over 20 miles per hour. He made this same statement to a police officer at the scene. He also testified that he looked at his speedometer immediately before collision with the Fagiano automobile and that he was then driving 30 miles per hour. A police officer testified that he had retraced defendant’s path for 600 feet on Harlem Avenue and that in his opinion it would be possible for an automobile to reach a speed of 70 miles per hour from the point of entry on Harlem Avenue to the collision.

On the issue of intoxication, the police officer who arrived at the scene testified that he saw defendant leaning and swaying against a large flower pot in front of the theater and then watched him walk. Defendant had an odor of alcohol on his breath. In the opinion of this officer, he was under the influence of alcohol. Defendant testified that he went to a tavern after work on the daté in question and drank four beers in the period of about 5 hours prior to 10 P.M. This statement is corroborated by a friend of defendant named James Klein. Their testimony is that each of them ate four hot dog sandwiches during this period of time. Defendant’s witness expressed the opinion that defendant was not under the influence of alcohol when they separated at 10:15 P.M. He testified that defendant had a good reputation for truth, veracity and sobriety.

Another officer testified that defendant told him that he had a few beers at a friend’s home. Defendant explained this with a statement that, since he had been in an accident, he thought it would sound better if he told police he was at a friend’s home. Defendant also testified that, after he left Klein, he" went to a parking lot where he spoke to a friend of his, made another stop for a short time, and then drove south on Harlem Avenue toward the theater.

Defendant’s employer testified that defendant had an excellent reputation and that he had never seen him under the influence of alcohol. He employs defendant as a driver and defendant drives approximately 30,000 miles a year in performing his duties. Defendant testified that he was not under the influence of alcohol at the time of the accident. He testified that he saw no traffic to the right and thereupon changed lanes to pass the other car. At that time, he was going approximately 30 miles per hour. A car came out of the gas station and he could not stop in time. He jammed on the brakes and lost control. As a result of the accident, defendant was somewhat stunned and had a small cut on the top of his nose. He refused medical attention suggested to him by the police.

In our opinion, examination of this record discloses that there is ample evidence to support the finding of guilt of involuntary manslaughter. The scene presented is one in which it would be incumbent upon a person driving at that time and location to exercise extra care to avoid people crossing the street and automobiles which might be driving out from the gasoline station and parking area. Also, the flashing lights in connection with road repair should have warned any reasonable driver to use a great degree of caution. The necessary conclusion is that defendant was driving recklessly at an unreasonable rate of speed; that he was somewhat under the influence of alcohol; and that he executed a reckless maneuver in passing the other automobile to the right. This is established by the testimony of the witnesses as well as by undisputed physical facts.

Defendant seeks primarily to challenge the prosecution as regards speed but even his own evidence showed that he did drive recklessly in swerving to pass another automobile on its right at a speed of 30 miles an hour in a hazardous area, crowded with pedestrians and other vehicles. At most, the evidence adduced by defendant raises an issue of credibility as to some phases of the case which it was the duty of the trial court to decide. We are not permitted to encroach upon the function of the trier of fact or to * * set aside a finding of guilty unless the evidence is so palpably contrary to the finding or so unreasonable, improbable or unsatisfactory as to cause reasonable doubt as to the guilt of the accused.” (People v. Reese, 54 Ill.2d 51, 57, 58, 294 N.E.2d 288.) This record leaves us without any reasonable doubt of guilt. We are in accord with the finding of guilty of involuntary manslaughter.

Defendant’s first contention revolves about expert testimony excluded by the court upon objection by the State. The court permitted counsel for defendant to make extensive offers of proof consisting of questions to each of the witnesses and their answers. A brief summary of this testimony is pertinent here.

John Clark was employed as an insurance adjuster for 20 years. He did not examine either of the automobiles. Based upon his examination of photographs received in evidence, which show both cars in the same condition as they were immediately after the occurrence, this witness expressed an opinion which went primarily to the issue of damage to the vehicles and an estimate of the cost of repairs. His testimony was properly excluded. The witness was not a reconstruction expert with sufficient knowledge of any pertinent subject matter. His background mishap. See also People v. Sanchez, 1.1 Ill.App.3d 1079, 1083, 1084, 297 N.E.2d 230, and cases therein cited; also Sheldon Livestock Co. v. Western Engine Co., 13 Ill.App.3d 993, 998, 301 N.E.2d 485.

The courts of Illinois have had occasion to consider the propriety of expert testimony by reconstruction experts in automobile cases. One of the most recent expressions by the supreme court is McGrath v. Rohde, 53 Ill.2d 56, 289 N.E.2d 619. This case affirms the decision of the appellate court written by Mr. Justice Davis. (130 Ill.App.2d 596, 265 N.E.2d 511.) In McGrath, the supreme court quoted its previous language from Plank v. Holman, 46 Ill.2d 465, 471, 264 N.E.2d 12. One of the most recent expressions of the appellate court upon this subject is Dauksch v. Chamness, 11 Ill.App.3d 346, 296 N.E.2d 592.

There is no need to cite and review the remaining decisions in this particular field because the pertinent principle is authoritatively stated in the McGrath opinions as well as in Plank and Dauksch. The proper legal rule is that in automobile cases the opinions of reconstruction experts may not be used as a substitute for eyewitness testimony where such is available. They may be used in addition to eyewitness testimony when it becomes necessary to rely on specialized knowledge or scientific principles beyond the range of understanding of the average juror. In cases where eyewitness testimony is available, the use of the experts is left to the discretion of the court within the guiding principle that “* * * the use of such testimony should be the exception and not the rule. Abramson v. Levinson (1969), 112 Ill.App.2d 42, 50.” McGrath v. Rohde, 130 Ill.App.2d 596, 599.

Applying this principle to the case at bar, the narrow issue to be determined by the trier of fact in this phase of the case was the speed at which defendant was operating his automobile prior to or at impact and thereafter. Seven eyewitnesses testified upon this subject. The opinions of four of them were: speed of 60 miles per hour; 40 to 45 miles per hour; one testified “very fast”; and another “too fast for conditions.” All of these estimates were of speed after the collision between defendant’s car and that driven by Fagiano. Defendant testified that his speed was 30 miles per hour immediately prior to impact. An estimate of speed of a motor vehicle generally is considered a matter of common observation within the knowledge of any person of ordinary intelligence. (Conway v. Tamborini, 68 Ill.App.2d 190, 194, 215 N.E.2d 303. Also Birnbaum v. Kirchner, 337 Ill.App. 25, 85 N.E.2d 191, and cases therein cited.) There was no need for the court to use or to depend upon expert testimony. The mere fact that the testimony of the other witnesses was in conflict or conflicted with the testimony of defendant did not in itself justify or require the use of expert testimony any more than would conflict upon and expertise were limited to the cost of repairing the vehicles, which was far from the issue before the court. See Gibson v. Healy Brothers & Co., 109 Ill.App.2d 342, 352, 353, 248 N.E.2d 771.

Willard Alroth was a qualified and experienced traffic engineer. He also examined only the photographs of both automobiles. He had never seen either vehicle or the scene of the occurrence. He estimated that at impact defendant’s automobile was being driven from 20 to 40 miles per hour. He also testified that defendant’s vehicle was “traveling initially” about 35 miles per hour. He also stated that the “pre-impact speed”, apparently having reference to speed an instant before impact, would be from 25 to 32 miles per hour.

John Ellis is admittedly qualified in automobile matters from a technical point of view. He examined the photographs in question. In addition, on November 24, 1971, more than 6 months after the occurrence, he examined defendant’s automobile and also the scene of the occurrence. He testified that the car had a broken tie rod which would make steering virtually impossible. He expressed the opinion that the speed of defendant’s automobile at the time of impact was from 20 to 35 miles per hour.

In our opinion, the trial court acted properly in excluding the testimony of these witnesses on objection by the State. These rulings are supported by a number of reasons each sufficient in itself to justify the result.

The witness Alroth never viewed the scene of the occurrence and never examined the automobiles. Mere study of the photographs is not in itself a sufficient foundation upon which to predicate an opinion of speed. He must necessarily have obtained much of the basis for his opinion from facts stated to him by other people concerning which he had, at best, only the questionable personal knowledge that comes from examination of pictures. His opinion, based upon matters reported privately to him, would be valueless. People v. Black, 367 Ill. 209, 10 N.E.2d 801.

As regards the testimony of the expert Ellis, he visited the scene and examined defendant’s car more than 6 months after the occurrence. He did not examine the other vehicle. There was no evidence that the defendant’s vehicle, the wall it struck, or any other thing or object which he saw at the scene, and which may have affected his opinion, were in the same condition as on the night of the collision. In People v. Parr, 133 Ill.App.2d 82, 272 N.E.2d 712, this court held that there was no proper foundation for the testimony of a reconstruction expert where he examined both vehicles 8 days after the occurrence and there was no evidence that they were in the same condition as at the time of the any other factual issue. (See Wolpert v. Heidbreder, 21 Ill.App.2d 486, 495, 158 N.E.2d 421.) “There is no place for the opinion of a reconstruction expert if the determinative facts are otherwise established by credible, physical or eyewitness evidence.” Abramson v. Levinson, 112 Ill. App.2d 42, 50, 250 N.E.2d 796.

Defendant relies upon Fannon v. Morton, 228 Ill.App. 415. There, an expert was permitted to testify as to the speed of an automobile which dragged its tires on the pavement for 35 to 40 feet with the brakes set. The court held that the hypothetical question used to bring out this testimony was proper. The court did not consider the basic issue as to the propriety of expert testimony. The present law of Illinois upon this subject was not developed at the time. Fannon was decided in 1923, years prior to the decisions cited above. Fannon was the subject of comment in a later decision by this court in People v. Everist, 52 Ill.App.2d 73, 79, 80, 201 N.E.2d 655. In Everist, an involuntary manslaughter case, the State used the testimony of a reconstruction expert concerning speed. The court held that since defendant made no objection to the hypothetical questions by means of which the expert stated his opinion, the right to object had been waived. (52 Ill.App.2d at 80.) Neither of these cases supports defendant’s contention.

One more thought requires expression. The court permitted counsel for defendant to make extensive offers of proof by means of questioning each of the witnesses when on the stand. Defendant testified that he was driving 30 miles an hour. He saw the other automobile at the gas station driveway and jammed on his brakes. He testified that he “hit the brakes.” If this were true, his speed at impact with the other automobile was necessarily less than 30 miles an hour. The opinions of the experts were thus indecisive. They could not specify the speed as accurately as defendant did since he testified that he had looked at his speedometer at the time. Alroth gave a range of speed at impact from 20 to 40 miles per hour and Ellis from 20 to 35 miles per hour.

Furthermore, speed in itself is only one aspect of the issues in defining the type of reckless misconduct in driving an automobile which constitutes guilt of involuntary manslaughter. Other issues presented by this record are the degree of intoxication of the driver and all of the many remaining conditions surrounding the occurrence. Reckless performance of acts likely to cause death or great bodily harm is the gravamen of involuntary manslaughter. (Ill. Rev. Stat. 1971, ch. 38, par. 9—3.) “Recklessness” is defined by the Criminal Code as a conscious disregard of “a substantial and unjustifiable risk” which “constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” (Ill. Rev. Stat. 1971, ch. 38, par. 4—6. See People v. Maldonado, 3 Ill.App.3d 216, 225, 278 N.E.2d 225.) The rulings of the trial court in rejecting the tendered opinions of the experts were completely proper.

Defendant testified on direct examination that the only driving accident he ever had that "sticks” in his memory was about 10 years ago. This involved only property damage caused by a truck being driven into the rear of his vehicle. He had no speeding violations in the last 2Yz years. On cross-examination, he testified that his driver s license had been suspended in 1957 but he did not think this was because of an accident resulting from an incident in which he drove another persons car which was uninsured. He did not recall that his license was again suspended in 1958 for lack of financial responsibility. He thought that he was found guilty of speeding on March 10, 1967, but did not remember being found guilty of speeding again on September 11, 1968. No objections were made to these matters brought out on cross-examination other than a general objection regarding suspension of the driver’s license in 1957.

The parties then stipulated by their attorneys that defendant’s driver’s license was revoked in 1957 and also in 1958 for lack of financial responsibility after motor vehicle accidents; that defendant was found guilty of speeding in April of 1967 and also in September of 1968. Defendant urges that the above constituted reversible error. We will consider this issue even though there is a serious question of waiver because of failure to object in the trial court. People v. McAdrian, 52 Ill.2d 250, 253, 287 N.E.2d 688; People v. Morris, 6 Ill.App.3d 136, 139, 285 N.E.2d 247.

Defendant depends primarily upon People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695. There, defendant testified generally on direct examination regarding the offense for which he was on trial. He did not testify on the subject of his freedom from previous convictions. Defendant’s previous conviction of an infamous felony was shown by the State for impeachment as a general attack upon his credibility. In the case before us, quite to the contrary, defendant went further and testified specifically on direct examination regarding his freedom from motor vehicle accidents and from convictions for speeding. It was entirely proper for the State to impeach him by contradiction of his own testimony given on direct examination. The State was entitled to correct the false impression given by defendant’s direct examination regarding his alleged lack of previous accidents and speeding violations.

In People v. Nastasio, 30 Ill.2d 51, 195 N.E.2d 144, the defendant testified on direct examination to his prior conviction of infamous and other crimes and also that he had not been convicted of any additional crimes not mentioned. The supreme court held that the State properly cross-examined him concerning other convictions. (30 Ill.2d 51, 58.) Note also People v. Bey, 42 Ill.2d 139, 246 N.E.2d 287, applying the same principle to a situation where a defendant voluntarily testified to a previous conviction but did not affirmatively state that this had been his only conviction. Other decisions approving this type of cross-examination by the State are: People v. Sevastos, 117 Ill.App.2d 104, 252 N.E.2d 745; People v. Longstreet, 2 Ill.App.3d 556, 559, 276 N.E.2d 825; and People v. Scott, 82 Ill.App.2d 109, 117, 118, 227 N.E.2d 72.

Defendant’s next contention is actually concerned with the form of the indictment. He takes the position that he was charged only with reckless homicide and not with involuntary manslaughter so that the finding of the court that he was guilty of the greater offense of involuntary manslaughter was improper. The pertinent statute (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 3) refers to two separate offenses. Section 9 — 3(a) defines involuntary manslaughter as lawful or unlawful acts recklessly performed which are likely to cause death or great bodily injury. It includes all acts of such nature which cause death. This offense is a Class 3 felony under the Illinois Unified Code of Corrections. Section 9 — 3(b) is a lesser included offense called reckless homicide. It was added to the statutory framework of Illinois criminal law in 1949. It pertains only to situations in which the acts that caused the death consist of driving a motor vehicle. It is designated a Class 4 felony under the Unified Code of Corrections. These matters are carefully brought out in the committee comments to section 9 — 3. (Smith Hurd Ill. Ann. Stat., ch. 38, par. 9 — 3 at p. 246.) The same distinction is expressed and analyzed in People v. Garman, 411 Ill. 279, 285, 103 N.E.2d 636.

The indictment in this case clearly charges defendant with involuntary manslaughter but it erroneously designates the section of the statute violated as “Section 9 — 3(b).” It has been decided, however, that the requirement for inclusion of the statutory provision in the indictment is a mere formality. If defendant had aptly raised this apparent defect by motion to dismiss, it could readily have been corrected by amendment. (People ex rel. Goznelli v. Brantley, 49 Ill.2d 383, 384, 385, 275 N.E.2d 396.) This error is formal, nonjurisdictional and inconsequential. We note also that an indictment for involuntary manslaughter referring to section 9 — 3(b) was held legally adequate by this court. (People v. Adams, 113 Ill.App.2d 276, 280, 281, 282, 252 N.E.2d 65.) Similarly, in a case involving a complaint for reckless driving, this court held an erroneous citation of the statute did not void the complaint. People v. Parr, 130 Ill. App.2d 212, 219, 220, 264 N.E.2d 850, and cases therein cited.

A review of this record convinces that all parties understood and that defendant was on trial for involuntary manslaughter and they acted accordingly. The original complaint against defendant charged him with that crime; the indictment alleged the crime by proper name; the indictment was accordingly endorsed; the court clearly announced a finding of guilty for involuntary manslaughter and referred to the penalty that could be imposed as a penitentiary sentence of from 1 to 10 years; the finding of guilty and judgment in the common law record are in accord as are the order granting probation, the bond signed by defendant for admission to probation, the report on disposition made to the Secretary of State and even defendant’s notice of appeal to this court. Defendant’s argument that he was charged with reckless homicide is refused by the record.

Defendant seizes eagerly upon one insignificant statement by the trial court in which he referred to section 9 — 3 of the statute and expressed the opinion that he was interested only in paragraph (b) thereof. When the entire page of this portion of the record is read, it amply appears that this reference of the court was actually to the effect that the State could prosecute for reckless homicide or for involuntary manslaughter, as it desired. The trial court was entirely correct in that statement. It was the responsibility of the State’s Attorney of Cook County to consider the evidence and to determine for which of the two crimes defendant should be tried. People v. Rhodes, 38 Ill.2d 389, 231 N.E.2d 400. See also People v. Keegan, 52 Ill.2d 147, 286 N.E.2d 345, which is, in turn, cited in People v. Chambers, 15 Ill.App.3d 23, 303 N.E.2d 24, and in People v. Williams, 15 Ill.App.3d 294, 304 N.E.2d 150, which cites People v. Morrissey, 52 Ill.2d 418, 288 N.E.2d 397.

In his reply brief, defendant for the first time attacks the constitutionality of the statute upon which the prosecution was based. This contention was based upon People v. McCollough, 8 Ill.App.3d 963, 291 N.E.2d 505, which concluded that the Act was unconstitutional because it vested discretion in the State’s Attorney to choose whether he would prosecute for a felony or a misdemeanor and thus violated the equal protection guarantees of the constitution of Illinois. This contention has been disposed of by reversal by the Supreme Court of Illinois in People v. McCullough, 57 Ill.2d 440, which rejected this argument and held the statute constitutional. This opinion was filed while this court had the within appeal under advisement after oral argument had been heard.

Defendant’s next contention involves evidence given by a police officer called by the State who testified, over objection by defendant, that defendant told him that he had been drinking. He asked defendant if he wished to take a breathalyzer test. Defendant responded that he did not. This occurred after defendant had received Miranda warnings. Defendant urges that this evidence was inadmissible and prejudicial.

It is true that the applicable statute provides that evidence of a refusal to submit to a chemical test of alcoholic content in the blood is inadmissible in any civil action or in any criminal action under that portion of the Illinois Vehicle Code which provides penalties for drivng a vehicle while under the influence of intoxicating liquor. (See Ill. Rev. Stat. 1973, ch. 95%, par. 11 — 501(h).) However, the statute by its terms does not apply to a prosecution for manslaughter of which defendant was found guilty. Defendant was also charged under the Illinois Vehicle Code for driving under the influence of intoxicating liquor. The court found him not guilty upon this count of the indictment. This finding cogently demonstrates lack of any prejudice to the defendant from this testimony by the police officer. As above shown, there was ample evidence to support the finding of the court upon other grounds.

Furthermore, in this situation we are required to presume that the trial judge as the trier of fact “considered only admissible evidence and disregarded inadmissible evidence in reaching his conclusion.” (People v. Clarke, 50 Ill.2d 104, 108, 277 N.E.2d 866.) This principle operates effectively to dispose of several points argued in behalf of defendant.

Defendant’s final contention is directed to the effectiveness of his jury waiver. The record indicates that there had been a conference by the court and counsel for both sides prior to trial. When the case was called for trial, the judge advised defendant that he had the right to be tried by a jury. He then asked if defendant wished to waive that right and be tried by the court. The defendant stated that he would rather have a jury trial. The court responded that the jury would be called for 2 P.M. that day and that “everything we talked about in there goes out the window * * Counsel for defendant requested that the case be passed.

That afternoon counsel for defendant advised the trial judge in open court that the jury would be waived and there would be trial by the court. The court then again advised the defendant that he' was entitled to a trial by jury to see if they would render a verdict of guilty or innocent. The court asked defendant if he understood that and defendant responded affirmatively. He then asked defendant if he wished to waive that right and be tried by the court. Defendant again responded affirmatively. At the court’s request, defendant then signed a jury waiver which appears in the record. Counsel for defendant then again stated that the jury would be waived and there would be trial by the court. Upon this record defendant urges that his waiver of a jury trial was not voluntary.

The Illinois Code of Criminal Procedure provides that “Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court.” (Ill. Rev. Stat. 1971, ch. 38, par. 103 — 6.) In construing this enactment, the courts of Illinois have “repeatedly held that whether or not the waiver of trial by jury has been understandingly’ made rests on the peculiar facts of each case and cannot be governed by any precise formula.” (People v. Gay, 4 Ill.App. 3d 652, 654, 281 N.E.2d 738, and cases therein cited.) Defendant was 33 years old at the time of trial and appears from his testimony to be a person of intelligence. In this case, he was advised by an able attorney of his own choice. The attorney advised the court on more than one occasion that defendant wished to waive a jury trial and to be tried by the court. Under circumstances of this kind, the Supreme Court of Illinois has held that the waiver of jury made by counsel in open court in the presence of his client who made no objection was sufficient to indicate that the jury waiver was understandingly made. (People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397.) This record shows that there was ample time for consultation between defendant and his counsel. This decision to waive the jury was not reached at a hurried off-the-record conference but was reached after a conference with the court and after several hours had elapsed. This element completely differentiates the case at bar from situations such as those involved in People v. Baker, 126 Ill.App. 2d 1, 262 N.E.2d 7.

In addition, we find no indication of any degree of coercion by the court. The remark by the court, after defendant first stated in the morning session that he did not wish to waive the jury, cannot be construed as indicating coercion by the court or even displeasure. The case before us contrasts sharply with People v. Rivera, 34 Ill.2d 575, 216 N.E. 2d 786, cited by defendant. There, the supreme court noted that the remarks of the trial judge were intemperate and resulted in a jury waiver that was not voluntary. It further appears from this record that the court admonished the defendant on two occasions of his right to trial by jury. In this regard the admonitions by the court were complete and proper.

This record presents a situation completely different from People v. Bell, 104 Ill.App.2d 479, 244 N.E.2d 321, also refied upon by defendant, where there was actually no statement by defendant’s attorney that defendant desired to waive a jury and no admonition by the court advising defendant that he was entitled to a trial by jury. The supreme court has approved a jury waiver signed by a defendant after virtually an identical colloquy between the court and the defendant. (People v. Alexander, 45 Ill.2d 53, 256 N.E.2d 785.) We conclude that waiver of jury by defendant in this case was with his complete understanding. We wiU add here that defendant’s general claims of prejudice against him by the trial judge find no support in the record. Having considered all contentions advanced by defendant, we conclude that the judgment of conviction should be affirmed.

The sentence pronounced by the court, consisting of probation for 5 years combined with detention under tire Work Release Program for 1 year, was proper when imposed. (Ill. Rev. Stat. 1971, ch. 38, par. 123 — 7.) However, as has been frequently and properly held, tire provisions of the Illinois Unified Code of Corrections are applicable to this sentence. (People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.) As the Unified Code existed on its effective date of January 1, 1973, the trial court could not require imprisonment as a condition of probation except periodic imprisonment under article 7 of the Code. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6 — 3(b).) The former Work Release Program has now been replaced by sentence of periodic imprisonment under the Unified Code. Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 7 — 1 to 8.

In view of all of the circumstances regarding defendant disclosed by this record, we think it best to affirm the sentence insofar as it admits defendant to probation for 5 years and to remand the cause for consideration of the wisdom and justice of requiring a year of periodic imprisonment as a condition to the probation already granted. If the trial court sees fit to require defendant to spend some time on periodic imprisonment, it will be necessary for that court to fix the conditions of this part of the sentence under the Unified Code above cited. On the other hand, we should also point out that if defendant had been sentenced to 1 year of imprisonment we would have vacated this portion of the sentence under established authority. See People v. Licata, 15 Ill.App.3d 652, 655, 305 N.E.2d 6; People v. Claudio, 13 Ill.App.3d 537, 300 N.E.2d 791; People v. Davis, 12 Ill.App.3d 1014, 299 N.E.2d 342; People v. Adkisson, 12 Ill.App.3d 1015, 299 N.E.2d 145; and People v. Rhinehart, 11 Ill.App.3d 859, 296 N.E.2d 781.

Accordingly, the judgment of conviction and imposition of probation for 5 years is affirmed. The cause is remanded with directions to consider whether or not defendant shall be required to spend time on periodic imprisonment; and, if so, the extent and conditions thereof.

Judgment affirmed, cause remanded with directions,

BURKE and HALLETT, JJ., concur,


source: Caselaw Access Project

author: Mr. JUSTICE BURKE

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wilfred A. Amado, Defendant-Appellant.
    (No. 58271;
    First District (1st Division)
    July 15, 1974.

      James P. Hilliard, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

The defendant, Wilfred A. Amado, was originally charged by indictment with the crime of murder in violation of section 9 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 1). Following pretrial negotiations, he entered a plea of guilty to the lesser included offense of voluntary manslaughter. (Ill. Rev. Stat. 1971, ch. 38, par. 9—2). The trial court accepted defendant’s plea and after a hearing in aggravation and mitigation, defendant was sentenced to a term of 5 to 13 years in the Illinois State Penitentiary. Defendant appeals.

Defendant contends on appeal that the trial court did not properly admonish him concerning his guilty plea, pursuant to Supreme Court Rule 402. (Ill. Rev. Stat. 1973, ch. 110A, par. 402.) In support of this contention, defendant argues that the lack of adherence to Supreme Court Rule 402 is demonstrated by the court’s failure to state the terms of the plea agreement in open court.

The relevant portion of Supreme Court Rule 402 is:

“In hearings on pleas of guilty, there must be substantial compliance with the following:
(a) Admonitions to Defendant. The court shall not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, # # #
(3) that the defendant has the right to plead not guilty, or to persist in that plea if it has already been made, or to plead guilty; and
(4) that if he pleads guilty there will not be a trial of any kind, so that by pleading guilty he waives the right to a trial by jury and the right to be confronted with the witnesses against him.
(b) Determining Whether the Plea is Voluntary. The Court shall not accept a plea of guilty without first determining that the plea is voluntary. If the tendered plea is the result of a plea agreement, the agreement shall be stated in open court. The court, by questioning the defendant personally in open court, shaU confirm the terms of the plea agreement, or that there is no agreement, and shall determine whether any force or threats or any promises, apart from a plea agreement, were used to obtain the plea.”

We find no merit in the defendant’s contention that Supreme Court Rule 402 was not compfied with because the court failed to state the terms of the plea agreement in open court. As we stated recently in People v. Battle, 19 Ill.App.3d 806, 313 N.E.2d 203,

“The overriding concern is that a guilty plea represent a voluntary and intelfigent choice among the alternative courses of action open to the defendant. (North Carolina v. Alford, 400 U.S. 25, 27 L. Ed.2d 162, 91 S. Ct. 160.) Supreme Court Rule 402 is not a rigid formula, which must be fiteraHy foUowed by the trial judge. Substantial compliance with its requirements is all that is necessary to protect the rights of the accused. (People v. Shepard, 10 Ill.App.3d 739, 295 N.E.2d 310.)”

In the instant case the defendant’s privately retained counsel in open court informed the trial court that he had talked to the defendant and that the defendant wished to withdraw his plea of not guilty and enter a plea of guilty to manslaughter. The trial court informed the defendant and stated in open court that there had been a conference between the defendant’s attorney, the Assistant State’s Attorney, and the trial court. The court further stated that the defendant’s attorney had made a recommendation, the State made a certain recommendation and the trial court had agreed “to what the case was worth.” Prior to accepting the defendant’s plea, the trial court stated one of the terms of the plea agreement, namely that the State had agreed to reduce the charge to the lesser included offense of manslaughter. The trial court however did not, prior to accepting defendant’s plea, state the specific sentence he had agreed to impose. The court’s statement imposing the sentence for a period of not less than 5 years nor more than 13 years occurred after the acceptance of the defendant’s plea.

As this court stated in People v. Talbot, 9 Ill.App.3d 688, 690, 292 N.E.2d 561, 563:

“If the procedure undertaken by a trial judge in accepting a plea of guilty operates to the disadvantage of defendant, then, it is clear, a court of review may reverse. But, if the error complained of is harmless and is based upon a technical contention relating only to the order in which the court has made a record as to plea negotiations, then certainly there is no basis for reversal.”

In view of the record in this case, we are of the opinion that there was substantial compliance with Rule 402(b) and the manner in which the trial court accepted the plea did not operate to defendant’s disadvantage or prejudice.

Defendant also contends that the trial court failed to advise him as to the nature of the offense in violation of Supreme Court Rule 402(a) (1) (Ill. Rev. Stat. 1973, ch. 110A, par. 402(a) (1)). Defendant’s counsel on appeal states that the transcript of the change of plea proceedings demonstrates that the trial court admonished the defendant using the term “manslaughter” but did not qualify the term as voluntary manslaughter under section 9 — 2 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 2) or involuntary manslaughter under section 9 — 3 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 3). Defendant’s counsel further maintains that voluntary manslaughter is a Class 2 felony and has a minimum term of 1 year and a maximum of 20 years imprisonment (Ill. Rev. Stat. 1973, ch. 38, pars. 9 — 2(c) and 1005 — 8 — 1 (b)(3)) whereas involuntary manslaughter is a Class 3 felony and has a minimum term of 1 year and a maximum term of 10 years. (Ill. Rev. Stat. 1973, ch. 38, pars. 9 — 3(c)(1) and 1005 — 8 — 1(b)(4).) Defendant’s counsel intimates that there may have been some confusion in the defendant’s mind as to which variety of manslaughter he was pleading guilty to and therefore the cause should be remanded and defendant given the opportunity to plea anew or in the alternative this court should reduce the degree of the offense to involuntary manslaughter pursuant to the discretion vested in it by Supreme Court Rule 615(b)(3). Ill. Rev. Stat. 1973, ch. 110A, par. 615(b)(3).

As this court stated in People v. Wright, 2 Ill.App.3d 304, 306, 275 N.E.2d 735, 736:

“This court has held that the rule does not require the court to recite all the facts which constitute an offense. What is required is that the court state to the accused, the essence or general character of the offense. (People v. Harden, 78 Ill.App.2d 431, affd 38 Ill.2d 559.) In People v. Carter, 107 Ill.App.2d 474, it was held that the defendant was advised of the nature of the charge by the court’s statement that the plea was to aggravated kidnapping.
Although the requirements of the rule relating to the acceptance of guilty pleas must be carefully complied with, the remarks and advice of the court must be read in a practical manner. (People v. Domico, 15 Ill.2d 590.) Furthermore, when determining whether a defendant understands the nature of the charge, it is proper for the court to consider the entire record. People v. Doyle, 20 Ill.2d 163, People v. Harden, supra.”

The record in the present case reveals that defendant intelligently responded to the trial court’s inquiry regarding his knowledge of the nature of the offense. While a defendant might not understand a charge couched in technical terms, the charge here was presented to the defendant in the simplest terms possible. Moreover, the record affirmatively indicates that the defendant was aware that the trial court intended to sentence him for the offense of voluntary manslaughter:

“THE COURT: You also know on a finding of guilty to the lesser included manslaughter charge, you can be sentenced to the penitentiary from one up to 20 years, 19 to 20 years, 18 to 20 years or one to 20 years, any number of years like that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you understand that?
THE DEFENDANT: Yes, your Honor.”

The record also reveals that when the trial court accepted the defendant’s plea of guilty, the court stated that, “there will be a finding of guilty of voluntary manslaughter” and that at the conclusion of the hearing the defendant said “Thank you” to the trial judge.

We are of the opinion that there was substantial compliance with Supreme Court Rule 402(a)(1). The inadvertent failure of the trial judge to specify the offense of “voluntary” manslaughter prior to his acceptance of the plea is, in our opinion, harmless error. The record indicates that defendant was charged with a serious crime and the evidence against him was of a compelling nature. Defendant, after consulting with his privately retained and highly experienced trial attorney, chose the alternative which he deemed to be in his best interest, namely pleading guilty to the lesser included offense of voluntary manslaughter. The record indicates that defendant was fully aware of the nature of the offense and the resultant ramifications prior to the time his plea of guilty was accepted by the trial judge. We do not believe that this omission by the trial court is, under the circumstances of this case, error of sufficient magnitude as to require reversal. (People v. Walsh, 3 Ill.App.3d 1042, 279 N.E.2d 739.) Moreover, we can perceive no reason which would justify the exercise of our discretion pursuant to Supreme Court Rule 615(b)(3) (Ill. Rev. Stat. 1973, ch. 110A, par. 615(b)(3)) to reduce the degree of the offense in this case.

Defendant contends that the offense of voluntary manslaughter is a Class 2 felony under the Unified Code of Corrections. (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 2(c).) He further contends the minimum term of imprisonment for a Class 2 felony cannot exceed one-third of the maximum term imposed, and that the maximum term imposed in the present cause was 13 years and therefore the minimum must be reduced to 4 years and 4 months. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8 — 1(c) (3).) The People concur in this contention. We are of the opinion that since the instant case has not yet reached final adjudication, the minimum term imposed must be modified to a term of 4 years and 4 months. People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269; People v. Peeler, 12 Ill. App.3d 940,299 N.E.2d 382.

For these reasons, the sentence imposed upon defendant is modified to a minimum term of 4 years and 4 months and a maximum term of 13 years, and the judgment as so modified is affirmed.

Judgment affirmed as modified.

EGAN, P. J., and GOLDBERG, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gerald Cox et al., Defendants-Appellants.
    (No. 59269;
    First District (1st Division)
    July 15, 1974.

      James J. Doherty, Public Defender, of Chicago (Judith A. Stewart and Ira Churgin, Assistant Public Defenders, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr. and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

Larry G. Johnson and Gerald Cox (defendants) were found guilty after a bench trial of the armed robbery of Gus Siller and Grace Siller, in violation of section 18 — 2 of the Criminal Code, and were sentenced to terms of 4 years to 12 years. (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2.) On appeal they contend that the trial court admitted into evidence identifications of the defendants which were tainted by improper pretrial confrontations and which had no basis independent of those improper confrontations; that they were not proved guilty beyond a reasonable doubt; and that the sentences imposed were excessive.

At a hearing on defendants’ pretrial motions to quash the arrest, to suppress evidence and to suppress identifications by the complaining witnesses, evidence was adduced that the complaining witnesses, brother and sister, were waiting for a bus at the Chicago Transit Authority elevated train terminal in the 2100 block of South Pulaski Road in Chicago about 9:20 P.M. on April 17, 1972, when they were robbed at gunpoint by two men identified as the defendants. The robbery was reported to the police and a description of the suspects was broadcast over the police vehicle radio, after which the complaining witnesses were transported to 14th Street and Pulaski Road and then to the 10th District Police Station. At the police station, complaining witness Grace Siller was told by the police that they were holding two suspects in a room and that she should walk by the room to see if she could identify them as the robbers. Miss Siller, alone, observed defendant Johnson in the room, whom she recognized from his face and from his clothing, but did not see another man in the room at that time; she thereafter refused to sign a complaint in the matter for fear of the reaction of her parents, whereupon the police in attendance became angry, stating that the defendants probably had a record, that a case could be made against them and that if charges were not made in this matter, the defendants would simply go out and rob again. Miss Siller described the wearing apparel of the two assailants in detail, stated that she had gotten a “good look” at them for a period of 5 minutes in the lighted CTA station and stated that she had no difficulty recognizing Johnson in the police station as one of those assailants; she did not see a second man in the room at the police station, she “was too scared”; she had testified at the grand jury hearing that she identified two men in the room at the police station.

It was also developed at the hearing on the motions that the defendants were arrested between 9:20 and 9:30 P.M. at 14th Street and Pulaski Road by a police officer who had, 2 to 3 minutes prior to the arrest, received a “flash message” over his car radio that a robbery had been committed at the CTA station immediately before that time; the defendants matched the description of the men wanted for the robbery and were observed walking northerly along Pulaski Road prior to the arrest. A search of the defendants upon arrest, for the officers own protection, disclosed an airgun. The trial court thereupon denied defendants’ motions to quash the arrest and to suppress the gun as evidence, but withheld a ruling on the motion to suppress the identifications pending a hearing of the case on its merits to determine whether the complaining witnesses had an independent basis for their identifications of the defendants.

At the trial of the case, the State’s evidence disclosed that the defendants entered the CTA station, stood behind the complaining witnesses, and with a gun drawn by defendant Cox, announced a hold-up. No other persons were in the station at the time. The complaining witnesses were ordered to stand facing windows overlooking the outside of the station and the defendant Johnson took money from Gus Siller; the evidence conflicts as to whether Johnson took the money from Siller’s pocket or whether Siller gave it to Johnson. An unidentified person entered the station, acknowledgments were exchanged between that person and the defendants after Cox had lowered the gun to his side and that person continued up the stairs to the elevated train platform. The complaining witnesses were then ordered behind the CTA clerk’s booth, where defendant Johnson took Grace Siller’s wallet and removed money therefrom. After the robbery, the defendants ordered the complaining witnesses up the stairs to the elevated train platform; the latter ascended several stairs; they observed a bus approaching on the street, and they left the station and boarded the bus; they did not see the defendants after they were ordered to ascend the station stairway. The complaining witnesses rode the bus to about 26th Street and Pulaski Road, where they hailed a police car and reported the incident. The officers radioed a report and shortly thereafter they were informed that suspects had been apprehended at 14th Street and Pulaski Road. After the complaining witnesses were transported to the police station, Miss Siller alone viewed defendant Johnson seated in a room; she later identified both defendants at a preliminary hearing, as did her brother, at which hearing the defendants’ names were called and they stepped forward and stood while being identified. It was further brought out by the State’s evidence that the CTA station was lighted well enough for the complaining witnesses to observe their assailants; that both witnesses observed the faces and the clothing of the assailants by turning and looking at them on several occasions during the robbery, albeit the witnesses had been ordered by the defendants to turn away; that the gun introduced into evidence was the same gun used in the robbery and was the same gun seized from defendant Johnson by the arresting officer; and that the complaining witnesses had no doubt that the defendants were the men who robbed them on April 17, 1972. At the time of the arrest, the defendants told the arresting officer that they knew nothing of the robbery in question and that they were proceeding to get a drink at a tavern at the corner of 14th Street and Pulaski Road; and the defendants were walking in a normal manner when arrested and were not breathing heavily.

It was brought out for the defense that defendant Johnson had been at his home in Argo, Illinois, on the evening in question; that he boarded an eastbound 63d Street bus near 7500 West, shortly after 9 P.M. to go into Chicago; that he transferred buses at Pulaski Road and boarded a northbound Pulaski bus which he rode until he reached 15th Street; and that he alighted from that bus and walked to Karlov Avenue where he met defendant Cox. Defendant Cox, in the meanwhile, had been in the company of a friend throughout that afternoon and evening, and sometime during that evening (he was uncertain of the exact time), he met Johnson at 15th and Karlov. As Johnson and Cox were proceeding to 14th and Pulaski for a drink, they were arrested and searched. A pellet gun belonging to Johnson’s brother was confiscated from Johnson’s belt; Johnson had earlier fixed that gun and was returning it to his brother that evening. Both men admitted that they were dressed in clothing when arrested which had earlier been described by the complaining witnesses to the police as similar to that worn by the robbers. The defendants testified that they did not commit the robbery in question.

During the course of the State’s case, the court interposed that it was denying the defendants’ pending motion to suppress the identification testimony of the complaining witnesses, on the ground that the identification had a basis independent of any tainted, pretrial confrontation between the complaining witnesses and the defendants. At the conclusion of the evidence, the trial court commented that in spite of several minor inconsistencies in the testimony of the complaining witnesses, he was impressed with their testimony and with the speed with which they had reported the incident and with which the suspects were arrested. The defendants were found guilty as charged in the indictment, and in imposing sentence the trial court noted that it was bound to impose a minimum term of 4 years as prescribed by statute and that he would follow the American Bar Association’s standard and impose three times the minimum, or 12 years as a maximum term.

The initial contentions raised by defendants relate to the propriety of the trial court’s admission of the in-court identification testimony as evidence. They argue that that testimony was tainted by the pretrial confrontation at the police station between Miss Siller and defendant Johnson and by the pretrial confrontation at the preliminary hearing where both defendants were identified by both complaining witnesses after the former were called and stood alone during that hearing; they further argue that the in-court identification testimony was not supported by a basis independent from those tainted pretrial confrontations.

Defendants argue at length and cite a number of cases for the proposition that an identification which is the product of an improper confrontation cannot be admitted into evidence. (See e.g., Stovall v. Demo, 388 U.S. 293; People v. Nelson, 40 Ill.2d 146, 238 N.E.2d 378; People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152.) That principle is well established, but has no application where, as here, the in-court identification has a basis independent and apart from the allegedly tainted pretrial confrontations and was not affected by those latter confrontations. People v. Fox, 48 Ill.2d 239, 269 N.E.2d 720.

The evidence adduced below reveals that the Sillers had 5 minutes to observe their assailants in an adequately lighted area. Although they were told to face away from the robbers, the Sillers continued to turn and observe them; the description given to the police conformed in almost every detail with the physical characteristics and wearing apparel of the defendants when arrested. That description, buttressed by the complaining witnesses’ testimony that the defendants were in fact the men who robbed them, was positive, consistent and unshaken on cross-examination. Apart from the question of whether the pretrial confrontations were proper, it is evident that the State adduced sufficient, and clear and convincing evidence that the Sillers’ in-court identification of the defendants as the robbers was based upon the confrontation which had occurred during the robbery itself. The trial court was not in error in admitting that testimony into evidence.

Defendants further contend that the State’s evidence failed to prove their guilt beyond a reasonable doubt, in that the complaining witnesses had only “limited opportunity” to observe their assailants during the robbery.

As the foregoing summary of the evidence demonstrates, sufficient evidence was adduced by the State upon which to have based the convictions for armed robbery. The question of whether the Sillers had ample opportunity to observe their assailants during the holdup was a matter for the trier of fact, as were the questions raised by defendants which relate to the alleged inconsistencies in the testimony of the complaining witnesses. It is to be noted that the trial court expressly commented that he was impressed with their testimony, although there existed some minor inconsistencies. Upon consideration of the overall circumstances presented by the State, tire immediate complaint and description of the assailants (which almost exactly matched that of the defendants, who were stopped a short distance away from the scene of the robbery), and the identification of the defendants as the assailants and of the gun as that employed in the robbery, the evidence was sufficient to sustain the convictions. (People v. Hampton, 44 Ill.2d 41, 253 N.E.2d 385.) The fact that the defendants raised the defense of alibi does not entitled them to acquittal ipso facto, but raised a question of credibility for resolution by the trier of fact. People v. Mack, 25 Ill.2d 416, 185 N.E.2d 154.

The final point urged by defendants is that the maximum sentence imposed upon them is excessive. They argue that the trial court erred in construing the sentencing statute as requiring the imposition of a maximum term of years which was three times the minimum term imposed and that the court failed to take into account that neither defendant had a criminal record.

The statute under which defendants were charged provided that the minimum term for armed robbery be set at no less than 5 years. (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2.) Defendants were properly sentenced under the Unified Code of Corrections to a minimum term of 4 years. (Ill. Rev. Stat. 1973, ch. 38, pars. 18 — 2, 1005 — 8 — 1; People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.) However, upon consideration of the reasoning of the trial court in the imposition of the maximum term of 12 years, it is apparent that the court did not, as contended by defendants, conclude that the one-to-three ratio required in lesser offenses by the Code was also required in the instant situation. Rather, the trial court expressly stated that it was the court’s custom to follow tire standard for sentencing set by the American Bar Association, that the maximum term be three times the minimum term imposed.

Further, the maximum term of 12 years imposed is not, of itself, excessive. Two offenses were here committed at gunpoint. Although there is evidence that the weapon used was a “BB” gun, there is also evidence that it was a “CO-2” gun which could have caused serious injury to the victims. The term of 12 years permits adequate leeway for the Parole and Pardon Board to determine whether, upon completion of their respective minimum terms, the defendants are sufficiently rehabilitated to re-enter society. No error was committed in the imposition of the sentences,

For the foregoing reasons, the judgments are affirmed.

Judgments affirmed.

GOLDBERG and HALLETT, JJ., concur.


author: Mr. JUSTICE MEJDA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Walter E. Abrams, Defendant-Appellant.
    (Nos. 57724-6 cons.;
    First District (3rd Division)
    July 18, 1974.

      Rehearing denied August 27, 1974.

      Val R. Klink, of Chicago (William D. Klink, of counsel), for appellant.
    Bernard Carey, State’s Attorney, and Richard L. Curry, Corporation Counsel, both of Chicago (Kenneth L. Gillis and Roger L. Horwitz, Assistant State’s Attorneys, and William R. Quinlan and Lee J. Schwartz, Assistant Corporation Counsel, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

This is a consolidated appeal from Judgments entered by the circuit court of Cook County following a bench trial finding defendant Walter E. Abrams guilty of the offenses of unlawful use of a weapon (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a)(4)), failure to register for a State firearm owner’s identification card (DI. Rev. Stat. 1971, ch. 38, par. 83 — 2), and failure to register a deadly weapon with the city of Chicago (Municipal Code of Chicago, ch. 11.1, § 7). Defendant was sentenced to 6 months in the House of Correction for unlawful use of weapons and was fined $45.00 for each charge of failure to register. Defendant contends:

1) The complaint charging the unlawful use of a weapon is void for failure to allege the requisite mental state of knowledge.
2) The complaint charging the failure to register for a State firearm owner’s identification card is void from uncertainty created by the use of disjunctive language to state the charge.
3) The evidence was insufficient to prove beyond a reasonable doubt that defendant had possession of the firearm in question, or had concealed such weapon on or about his person.
4) Comments of the trial judge concerning the credibility of a defense witness, evidenced a prejudice requiring reversal.
5) No competent evidence was presented that defendant had not registered both himself and the weapon in accordance with the applicable State statute and city ordinance.

The facts follow.

At trial the only witness who appeared on behalf of the State was Officer Nelson, a patrolman with the Chicago Police Department. On December 23, 1971, he and his partner went to 101 South California Avenue in Chicago to investigate a reported disturbance. Arriving at the address, which was a gas station next to an apartment building, Nelson observed defendant striking Mary Hanna, who was lying on the ground near an automobile. When Nelson attempted to intercede, defendant struck him, and Nelson informed defendant that he was under arrest. There was a struggle during the attempt to handcuff the defendant, in the course of which a revolver fell to the ground from defendant’s waist. Defendant was then asked to produce a State firearm owner’s identification card and a city registration card for the gun. He produced neither card. In court, Nelson identified a revolver as the one he had seen fall from defendant’s person.

On cross-examination Nelson testified that when he first approached him the defendant looked up at him, and at that time they were face-to-face with each other and there were no other people in the immediate area where the incident occurred. He admitted that the revolver was not checked for fingerprints. In rebuttal, Nelson testified that the gun was not loaded.

Lee Clark testified for the defense that at about 10:00 P.M. on the day in question he had gone to the gas station at 101 South California Avenue to purchase cigarettes. He saw defendant straddling a woman who was lying on the ground next to an automobile. Clark testified that he was standing 20 to 25 feet from defendant and saw another man standing near defendant slide a revolver under the automobile next to defendant. The police then arrived. Clark identified the revolver, which had previously been identified by Officer Nelson, as the same weapon he had seen the man slide under the automobile. He stated that he had not known defendant prior to the incident.

Mary Hanna testified for the defense. She and defendant had been together for some 8 hours on the evening in question, and she had not seen a revolver in his possession during that time. They were riding in defendant’s automobile near 101 South California Avenue when she told defendant she felt sick and was on the verge of convulsing. He said he would try to get some help. She stated that she recalled falling to the ground and defendant holding her as she convulsed, but could recall nothing else until she arrived at tire hospital. She stated that she and defendant had not been arguing and that he was trying to help her.

Defendant testified in his own behalf. As he and Mary Hanna were driving near 101 South California Avenue she told him she did not feel well and he pulled into the gas station and asked her what was wrong. Just at that time the door on her side opened and Mary Hanna fell to the ground. Defendant enlisted the aid of a passerby to carry the girl into the apartment building next to the station but they could not move her. He then asked the passerby to call the police or an ambulance. Defendant said Mary Hanna could not speak and was foaming at the mouth, and he got on top of her in an effort to hold her down. Some time later, while he was still lying on top of her, a policeman appeared in front of him. Someone else had come up behind defendant and pulled him off the girl and threw him against the building wall. Defendant denied that he had resisted the police and further denied that he had a weapon in his possession. He testified that the first time he saw the revolver in question was later at the police station. On cross-examination he stated that at the scene of the incident another man was standing there but he did not know who it was and did not see the man in possession of a weapon.

At the conclusion of closing arguments the trial judge stated, in reference to the testimony of Lee Clark: “The mystery man to me is just unbelievable. Totally and completely ridiculously suggestive to the mystery man." After pronouncing the findings of guilty the judge responded to the assertion of defense counsel that Clark’s testimony was indeed believable, by saying, “I thought it was preposterous. * * * I stated for the record that I didn’t believe him."

I.

Defendant’s first contention is that the complaint charging the unlawful use of a weapon is void under the provisions of section 111 — 3 (a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 111 — 3(a)(3)), in that it fails to allege the requisite mental state of knowledge which is an essential element of the crime charged. The complaint charged defendant as follows:

“OFF. L. NELSON complainant, now appears before The Circuit Court of Cook County and in the name and by the authority of the People of the State of Illinois states that WALTER ABRAMS has on or about 23 Dec 71 at 101 S. California committed the offense of UNLAWFUL USE OF A WEAPON in that he carried on or about his person concealed a S&W .32 cal revolver Ser # 32368 in violation of Chapter 38 Section 24 1 a 4 ILLINOIS REVISED STATUTE AND AGAINST THE PEACE AND DIGNITY OF THE PEOPLE OF THE STATE OF ILLINOIS.”

The applicable statute (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a)(4)) provides in pertinent part:

“a. A person commits the offense of unlawful use of weapons when he knowingly:
(4) Carries concealed in any vehicle or concealed on or about his person except when on his land or in his own abode or fixed place of business any pistol, revolver or other firearm.” (Emphasis supplied.)

Defendant’s argument is predicated upon the requirement of section 111 — 3(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. Ill — 3(a)(3)) that a criminal charge must set forth the nature and elements of the crime charged. Although defendant made no objection at trial to the instant complaint, a criminal charge which does not state an offense may be attacked at any time. Ill. Rev. Stat. 1971, ch. 38, par. 114 — 1(b).

Defendant’s contention is analogous to that raised in People t>. Tucker (1973), 15 Ill.App.3d 1003, 305 N.E.2d 676. There the defendant challenged the validity of a complaint charging the crime of aggravated battery in that the complaint did not allege that the offense had been committed with either intent or knowledge. The court held that by the use of the technical term “battery” within the charge of “aggravated battery,” the definition of that term as set forth in section 12 — 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 3), was necessarily incorporated into the complaint. Further, the court held that not only was the defendant chargeable with notice of the implicitly alleged mental state by the use of the technical term in the complaint, but such complaint was legally sufficient to both inform the defendant of the offense alleged and enable him to plead a judgment in bar to subsequent prosecution. See also People v. Mills (1968), 40 Ill.2d 4, 237 N.E.2d 697.

The complaint herein alleged that defendant had committed the offense of unlawful use of a weapon and as such charged an offense of a technical nature similar to that presented in Tucker. The complaint itself does not contain any allegation that the act which constituted the offense of unlawful use of a weapon was committed with knowledge. However, under the authority of the Tucker case, defendant is chargeable with notice that implicit within the means by which it was alleged that he committed the offense, “carried on or about his person concealed a S&W .32 cal revolver,” was the allegation that the act was committed with knowledge. Also, the specific statutory provision alleged to have been violated is cited within the body of the complaint. The complaint herein was legally sufficient to inform defendant of the specific charge alleged and to enable him to plead a judgment in bar to subsequent prosecution.

The State was sought leave to this court to amend the instant complaint to include the word “knowingly” (Ill. Rev. Stat. 1971, ch. 38, par. Ill — 5). Inasmuch as we have held the complaint legally sufficient it is not necessary to consider the State’s motion to amend.

II.

Defendant’s second contention is that the complaint charging the failure to register for a State firearm owner’s identification card is defectively uncertain as a result of the disjunctive language used therein to state the offense. Because of such uncertainty, defendant asserts that the complaint is violative of section 111 — 3(a)(3) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 111 — 3(a)(3)) and the due process requirements of the United States Constitution and the Illinois Constitution. This complaint charged defendant as follows:

“OFF. L. NELSON complainant, now appears before The Circuit Court of Cook County and in the name and by the authority of the People of the State of Illinois states that WALTER ABRAMS has, on or about 23 Dec 71 at 101 S. California committed the offense of FAIL TO REGISTER FOR STATE FIREARM CARD, in that he knowingly acquired or possessed any firearm or firearm ammunition without having in his possession a FIREARMS OWNERS IDENTIFICATION CARD previously issued to his name by the DEPARTMENT OF LAW ENFORCEMENT in violation of Chapter 38 Section 83 — 2 ILLINOIS REVISED STATUTE AND AGAINST THE PEACE AND DIGNITY OF THE PEOPLE OF THE STATE OF ILLINOIS.”

The applicable statute (Ill. Rev. Stat. 1971, ch. 38, par. 83 — 1 et seq.) provides in pertinent part:

“§2.(a) No person may acquire or possess any firearm or any firearm ammunition within this State without having in his possession a Firearm Owner’s Identification Card previously issued in his name by the Department of Law Enforcement under the provisions of this Act.” (Ill. Rev. Stat. 1971, ch. 38, par. 83 — 2.)

(Section 1.1 of the statute (Ill. Rev. Stat. 1971, ch. 38, par. 83 — 1.1) defines the terms “firearm” and “firearm ammunition” in such a manner as to be mutually exclusive. The defendant argues that the use of the disjunctive language “acquired or possessed any firearm or firearm ammunition” renders the instant complaint uncertain in that such language charges disparate and alternative acts, any one of which constitutes the offense.

A complaint is legally sufficient to allege an offense in the language of a criminal statute if its language so far particularizes the offense that by it alone a defendant is informed with reasonable certainty of the precise offense of which he is charged. (People v. Lee (1971), 48 Ill.2d 272, 269 N.E.2d 488.) The fact that two or more words which are intimately associated in their meaning are used disjunctively in a complaint does not render that complaint uncertain. (People v. Rosenfeld (1962), 25 Ill.2d 473, 185 N.E.2d 236; People v. Smith (1973), 14 Ill.App.3d 281, 302 N.E.2d 376.) However, where a statute names disparate and alternative acts, any one of which will constitute the offense, a charge which incorporates the statutory language defining the offense and which employs the disjunctive “or” is insufficient due to the uncertainty which arises from the use of the disjunctive. People v. Heard (1970), 47 Ill.2d 501, 266 N.E.2d 340; People v. Lewis (1973), 14 Ill.App.3d 237, 302 N.E.2d 157; People v. Williams (1973), 13 Ill.App.3d 951, 301 N.E.2d 326.

The first use of the disjunctive “or” in the instant complaint is in the phrase “acquired or possessed.” In the context of the statutory language, acquisition and possession are virtually synonymous. One who has acquired a firearm or firearm ammunition must necessarily have also possessed such objects at the time acquisition was made. Likewise, it is difficult to perceive how one could have possession of a firearm or firearm ammunition without ever having acquired that possession in the first instance from some source, whether by purchase or otherwise. These words as employed in the instant complaint are so intimately associated in meaning that no uncertainty arises from their use in the disjunctive. People v. Rosenfeld, supra.

The second use of the disjunctive “or” in the instant complaint is in the phrase “firearm or firearm ammunition.” The complaint makes no specification concerning the nature of the object or objects in question; that is, whether defendant was being charged in connection with a firearm or firearm ammunition or both. Unlike the previously discussed phrase “acquired or possessed,” the use of the disjunctive in this phrase does not involve two words which are intimately associated in their meaning. The very statute under which defendant was charged defines the terms “firearm” and “firearm ammunition” as separate and distinct elements. Ill. Rev. Stat. 1971, ch. 38, par. 83 — 1.1.

The State argues that there are no disparate and alternative acts charged by the phrase “firearm or firearm ammunition,” but that the complaint charges only one offense — the failure to register for a State firearm owner’s identification card. While it is true that only the single offense of failing to register is charged in the instant complaint, the use of the disjunctive “firearm or firearm ammunition” alleges two disparate and alternative elements, the acquisition or possession of either, when coupled with the nonpossession of the identification card, will constitute the offense. Because of the use of such disjunctive, the instant complaint lacked the necessary certainty to charge an offense and is therefore void. (People v. Heard, supra; People v. Williams, supra.) Accordingly, we reverse the conviction for failure to register for a State firearm card and need not reach the issue that this complaint is also constitutionally defective.

III.

Defendant’s third contention is that the evidence on the charge of unlawful use of a weapon was insufficient to prove beyond a reasonable doubt that he possessed the revolver in question or that he had concealed such weapon on or about his person. We disagree.

The issue of defendant’s possession of the revolver raises essentially a question of credibility with the police officer relating one version of the events and the defense witnesses another. Officer Nelson identified the weapon in court and testified that he actually saw it fall from defendant’s waist area to the ground. Mary Hanna testified that she did not see a weapon in defendant’s possession that evening. However, she stated that she could not recall any of the events at the gas station other than defendant holding her as she convulsed. Lee Clark testified that he saw another man slide the revolver under an automobile which was next to defendant. Clark did not testify as to anything that occurred after the police arrived. Defendant testified that he did not have a weapon in his possession that evening and that the first time he saw the revolver in question was when it was shown to him at the police station. Although he testified that he did see another man standing nearby at the gas station he never saw the person in possession of a weapon.

The testimony of even one witness, if positive and credible, is sufficient to convict in a criminal prosecution. (People v. Novotny (1968), 41 Ill.2d 401, 244 N.E.2d 182.) It is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the weight of disputed evidence or the credibility of witnesses for that of the trier of fact, and a conviction resting upon such determinations will not be reversed unless the evidence is so unsatisfactory as to leave a reasonable doubt of a defendant’s guilt. (People v. Mills (1968), 40 Ill.2d 4, 237 N.E.2d 697; People v. Wooden (1972), 9 Ill.App.3d 310, 292 N.E.2d 236.) Here, the testimony of Officer Nelson, if believed, was sufficient to prove beyond a reasonable doubt that defendant had possession of the revolver.

Defendant argues that this court should take cognizance of the fact that no fingerprint check was made by the police on the revolver. People v. Nelson (I960), 18 Ill.2d 298, 164 N.E.2d 21, and People v. Jackson (1961), 23 Ill.2d 360, 178 N.E.2d 320, are cited by defendant as cases where the lack of a fingerprint test has influenced the court’s determinations. These cases are distinguishable. In Nelson, the court made no reference to fingerprint testing. In Jackson, the absence of fingerprint evidence was mentioned by the court in pointing out that there was a lack of evidence of any nature which tied the defendant to narcotics which were found in a common refuse area of an apartment building. In the instant case there is direct evidence of defendant’s possession of the revolver in that Office Nelson testified that he actually saw the weapon fall from defendant’s person. Moreover, the lack of fingerprint evidence only affected the weight that the testimony of Officer Nelson should be given, and that determination was for the trier of fact.

As to the issue of concealment, defendant does not challenge the credibility of Office Nelson; instead, he asserts that the record is devoid of evidence proving that the revolver was carried by defendant in a concealed manner. Defendant argues that there is no testimony concerning the clothing he was wearing at the time, or what the lighting conditions were at the gas station, and that Nelson did not testify that he actually saw the weapon on defendant’s person. It is further urged by defendant that because it was nighttime and because defendant was bending over Mary Hanna, Nelson could not have had a good view of defendant. This argument overlooks essential portions of Nelson’s testimony. During direct examination, Nelson testified that in the struggle to handcuff defendant “a weapon fell from his person, somewhere from his waist area.” On cross-examination, Nelson and defendant’s attorney engaged in the following colloquy:

“Q. When you came upon the defendant, where was he in relation to you as you approached him?
A. As he looked up, he was looking right at me. So we were face to face, standing over the young lady.
Q. Now, your testimony was that the gun fell from the defendant. Do you know where it fell from him?
A. From the waist area, I think.
Q. You think; you are not sure?
A. That area of his body.”

On redirect examination Nelson testified that he actually saw the weapon fall from defendant’s person.

Section 21 — 1(a)(4) of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a)(4)) prohibits the carrying in a concealed manner on or about the person any pistol, revolver or other firearm. To establish a violation it is not necessary to prove that the weapon was carried in a manner to give absolutely no notice of its presence, but only that it was concealed from ordinary observation. (People v. Colson (1973), 14 Ill.App.3d 375, 302 N.E.2d 409; People v. Zazzetti (1972), 6 Ill.App.3d 858, 286 N.E.2d 745.) Concealment may be proved by either direct or circumstantial evidence. (People v. Ostrand (1966), 35 Ill.2d 520, 221 N.E.2d 499; People v. Gokey (1973), 9 Ill.App.3d 675, 292 N.E.2d 734.) In the instant case, Officer Nelson testified that after he approached defendant they were- standing face-to-face over Mary Hanna, but did not testify that he saw a revolver in defendant’s possession at that point. However, he did testify that later, in the struggle to handcuff defendant, he actuaHy saw the weapon fall from an area around the defendant’s waist. This testimony, if judged to be credible by the trier of fact, was sufficient to support a conclusion that the revolver was on defendant’s person and concealed from ordinary observation.

IV.

Defendant next contends that the comments of the trial judge concerning the credibHity of defense witness Lee Clark evidenced a prejudice by the judge against defendant and an abandonment of his role as impartial trier of fact. It is argued by defendant that these comments indicate both a refusal to weigh the testimony of Lee Clark and a preconceived adverse opinion as to defendant’s cause. The comments by the judge came in part at the conclusion of the closing arguments and in part after the pronouncement of his findings. When a trial judge sits as the trier of fact, his comment as to the credibility of the witnesses after all the evidence has been presented does not reveal a prejudice or bias requiring reversal; instead, it amounts only to an explicit statement of that which would have been imphcit in a finding of gmlty. (People v. Squair (1971), 133 Ill.App.2d 507, 273 N.E.2d 522.) The defendant’s contention is without merit.

V.

Defendant finally contends that no competent evidence was presented at trial to establish that he had not registered both himself and the weapon in accordance with the apphcable State statute and city ordinance. As we hold the complaint which charged defendant with failure to register for a State firearm owner’s identification card to be invalid, we need consider the present contention only as it relates to the complaint charging the failure to register the weapon with the city of Chicago.

The Municipal Code of the city of Chicago (Chapter 11.1, section 7) requires the registration of a firearm with the city within 10 days of its purchase or acquisition from other than a licensed firearms dealer. Thereafter, a registration certificate for the weapon is issued to its possessor within 30 days. The complaint charged defendant as follows:

“OFF. L. NELSON complainant, now appears before the Circuit Court of Cook County and states that WALTER ABRAMS has, on or about 23 Dec 71 at 101 S. California committed the offense of Fail to register a Deadly Weapon in that he Failed to register a Deadly Weapon with the City of Chicago, City Collector’s Office, a firearm, to wit: S&W .38 cal B/S Revolver Serial #32368, within 10 days of its purchase, as required by law. In violation of Chapter 11 Section 1.7 of the Municipal Code of The City of Chicago.”

The only evidence presented at trial concerning the allegation of defendant’s nonregistration of the weapon with the city was the testimony of Officer Nelson on direct examination. The pertinent testimony follows.

“Q. Officer, I show you now what is marked People Exhibit 1 for Identification, is this the weapon that dropped from the defendant’s person?
A. Yes, it is.
Q. And did you inventory it, officer?
A. Yes.
Q. When is the next time you saw it?
A. Just now when I took it out [of] the envelope.
Q. And is it in substantially the same condition now as it was when you inventoried it?
A. Yes.
Q. Did you place the defendant under arrest?
A. Yes, I did, yes.
Q. Okay, officer, after placing him under arrest, did you ask him to produce a State Firearm’s Identification Card?
A. I did, yes.
Q. Did he produce one?
A. No, he did not.
Q. Did you ask him to produce a City Identification Card?
A. Yes, I did.
Q. Did he produce one of those?
A. No, he did not.” (Emphasis added.)

The defendant argues that the above testimony was improperly introduced into evidence in violation of his constitutional right to remain silent because it in effect utilized his silence after arrest as evidence of guilt, and that in the absence of this testimony there is a failure of proof that the weapon was not registered with the city.

We agree that insufficient evidence was introduced to establish that the defendant did not register the weapon with the city, but we need not reach the issue of the constitutional propriety of Officer Nelson’s testimony. The complaint charged defendant with failing to register a deadly weapon with the city, yet there is no evidence of record, including the testimony of Officer Nelson, that the revolver was in fact not registered. Proof that the defendant did not produce a registration certificate for the weapon at the time of its recovery by the police does not prove that the weapon had not been registered with the city within 10 days of its purchase or acquisition.

In its brief the city of Chicago argues that chapter 11.1 section 8, of the Municipal Code of Chicago requires that a registration certificate be carried simultaneously with a registered firearm and must be exhibited to any police officer demanding its inspection. However, the complaint did not charge defendant with failure to possess a registration certificate at the time he was found in possession of a firearm, but did charge him with failure to register the revolver. Chapter 11.1, section 17, of the Municipal Code of Chicago imposes penalties upon any person who violates any section of the chapter dealing with the registration of firearms. The instant complaint presents a situation wherein one specific charge is alleged and the evidence in its support establishes an entirely separate and distinct violation. If the trial court had found defendant guilty of failure to possess a registration certificate a fatal variance would have resulted between the complaint and the finding. The evidence simply does not support the charge alleged in the complaint.

The two cases cited by the city of Chicago are not in point. In City of Chicago v. Dowdell (1970), 126 Ill.App.2d 58, 261 N.E.2d 499, and also in City of Chicago v. Franklin (1970), 126 Ill.App.2d 43, 261 N.E.2d 506, evidence was introduced that the defendant had in fact not registered his weapon with the city. No such evidence was introduced in the instant case. The judgment as to the offense of failure to register a deadly weapon is reversed.

For the foregoing reasons the judgment in 57724 as to the unlawful use of a weapon is affirmed; the judgments and convictions in 57725 for failure to register for State firearm owner’s identification card, and in 57726 for failure to register a deadly weapon with the city are reversed.

57724 affirmed; 57725 and 57726 reversed.

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