author: Mr. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Walter Garmon, Defendant-Appellant.
    (No. 58760;
    First District (3rd Division)
    April 18, 1974.

      Rehearing denied May 2, 1974.

      Paul Bradley, Deputy Defender, of Chicago (Edwin R. McCullough, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The defendant Walter Garmon was charged with the offense of aggravated assault with a deadly weapon (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 2(a)(1)). After waiving indictment he was tried by the court, found guilty and sentenced to 1 year of probation with the first 30 days to be served in the House of Correction.

Garmon presents three issues for review on appeal: the complaint upon which he was tried was fatally deficient, he was not proved guilty beyond a reasonable doubt and his sentence was improper under the 1973 Unified Code of Corrections.

The complaint stated:

“Joseph Brzana complainant * * * states that Walter Garmon has, on or about 19 Feb. 1972 at 14 S. Hoyne Ave., Chicago, Illinois committed the offense of Aggravated Assault in that he knowingly and unlawfully without legal justification and while using a deadly weapon a 38 Caliber S&W revolver 2" barrel, B/S6 Shot Serial #-J50016, thereby placing the Victim in fear of receiving a battery, pointed weapon at Victim and threatened him with bodily harm * * *.
/s/ Joe Brzana”

Joseph Brzana, a Chicago policeman, testified that on February 19, 1972, as he and his partner passed Hoyne Street while traveling east on Madison in an unmarked squad car, he believed he heard a shot. They made a U-turn and drove to the comer of Madison and Hoyne, where they were flagged down by Mary Louis, who told them there was a man in her apartment with a gun. He noticed no one else on the street. She directed them to an apartment in a building at 14 South Hoyne. The hallway they entered was unlighted; the only available light came from the interior of the apartment. When the two policemen knocked, Garmon opened the door and pointed a .38-caliber revolver at them from a distance of 2 or 3 feet. Brzana announced that they were Chicago policemen, but Garmon continued to point the gun in their direction, cursing' them and stating that he would not surrender the gun to anyone. Fearing for his safety, Brzana ducked around a corner, as did his fellow patrolman. Eventually they managed to subdue and disarm Garmon. The gun taken from him smelled like it had been recently fired, although the barrel was not warm.

Mary Louis, the common-law wife of Walter Garmon for 16 years, testified that on February 19 about 12:25 P.M., she was returning to her home when she noticed a group of boys in front of her building. The boys ran when they saw her; however, she feared something had happened, so she stopped the police officers, told them there was a disturbance at her dwelling and that she wished to get into her apartment. She denied hearing any gunshot and also denied telling the officers that there was a man in her apartment with a gun. She stated that as they reached the apartment, which was locked, Brzana’s partner said, “Open up.” When there was no response, he kicked the door open without saying another word. Garmon was standing in the center of the room holding a gun, but, she said, it was pointed to the floor. She added that after the policemen entered, Garmon realized they were law officers and surrendered the gun without a struggle. She remembered that she did not have her key with her at the time, but said she told the officer who broke into the apartment, “You don’t have to kick the lock off the door.”

Garmon testified that a gang frequently met in front of the building at 14 South Hoyne where they would fire guns and throw bricks and rocks at the window and door of his basement apartment. This, he said, was going on during the early afternoon of February 19, 1972. Subsequently, he heard the words “Open up.” He said before he had time to open the door, it was kicked in, “and there were two cops.” They took his gun and handcuffed him, although he did not struggle and had not pointed the gun at either officer.

The defendant first charges error because the complaint failed to identify the victim of the assault. He contends that the only reference to that person is the word “Victim,” which is not sufficiently specific to meet due process requirements of notice nor to establish a double jeopardy defense if at some future date he should face a second prosecution for the same offense. We do not perceive such dangers flowing from the form of this complaint. While a complaint must be sufficiently specific to inform the offender of the accusation against him so that he will be able to prepare his defense and avoid being placed in double jeopardy (People v. De Groot (1968), 108 Ill.App.2d 1, 247 N.E.2d 177), its specificity must be evaluated by a reading of the whole document, and there must be a showing of prejudice to the defendant from the claimed defect. (See People v. Williams (1967), 37 Ill.2d 521, 229 N.E. 2d 495.) The first line of the complaint identified the complainant and his signature appeared twice below the text of the document. When read as a whole, the document leaves no doubt that the complainant, Joseph Brzana, was also the alleged victim. If the defendant was genuinely confused, it was open to him to employ any of the whole panoply of discovery devices now available to criminal defendants. (People v. Jones (1973), 53 Ill.2d 460, 292 N.E.2d 361.) But the record shows that no such confusion existed. Garmon was neither misled nor prejudiced in the preparation of his defense. There is no possibility that he could be subsequently convicted for the same offense, since a report of the proceedings would be available to him for production in court if a double jeopardy defense became necessary. (People v. Jones.) Thus, we reject the claim that the complaint did not identify the victim of the offense with sufficient particularity.

We also reject the defendant’s contention that the evidence did not prove him guilty beyond a reasonable doubt. In criminal cases where a jury is waived, the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from it are reserved to the trial judge who saw and heard the witnesses testify. Because his firsthand observation provides him with a superior opportunity to assess the testimony, his judgment will not be disturbed upon review unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. (People v. Sims (1972), 5 Ill.App.3d 727, 283 N.E.2d 906.) The testimony of a single witness is sufficient to support a. conviction if it is positive and credible. (People v. Smith (1970), 121 Ill.App.2d 105, 257 N.E.2d 261.) When sitting ás trier of fact and presented with conflicting testimony, a judge may believe the complainant and disbelieve the defense witnesses. People v. Henry (1971), 3 Ill.App.3d 235, 278 N.E.2d 547.

The trial judge chose to believe Officer Brzana, and the choice is supported by the record. Contradictions appear in the testimony of the defendant and his witness. The tenor of their stories is that the police were called for help, but overresponded and exceeded their authority by making an unlawful entry into Garmon’s apartment, thus justifying his threatened use of force. (See Ill. Rev. Stat. 1971, ch. 38, par. 7 — 2(a).) The testimony, however, breaks down when examined in its several parts. The gang story appears contrived. The officers, after hearing a shot and being hailed by Miss Louis, did not notice any group dispersing and saw no one in front of the womans building. Her supposed fear of a gang outside the premises does not explain why she led the policemen into the premises and to her very door, nor why she had been locked out of her own apartment with no key. Finally, her reconciliation with the defendant and her interest in him as his common-law' wife of 16 years, cannot be ignored. Garmon attempted to bolster his contention that he justifiably used threats of force to protect his dwelling, by claiming that he believed two strangers were breaking into his apartment, and that the officers did not identify themselves. But he then, inconsistently, testified that when the door was opened, “there were two cops/* Since Officer Brzana and his partner were out of uniform at the time, Garmon could not have known they were policemen unless they had by some means identified themselves to him. Therefore, his claim that their entry was unlawful, particularly when viewed in light of the fact that they had been called by Miss Louis, who shared his home, is, at best, tenuous. It seems equally implausible that a person who believed his home was being violently invaded by strangers and who had taken the trouble to arm himself, would then hold the gun slackly, pointed to the floor, as the strangers broke down his door. The defendant was proved guilty beyond a reasonable doubt of the offense of aggravated assault, and his conviction will be affirmed.

Garmon was sentenced to one year of probation, upon condition that he serve the first 30 days in the House of Correction. Since this case has not yet reached the stage of final adjudication, the Unified Code of Corrections is applicable to its disposition. (People v. Chupich (1973), 53 M.2d 572, 295 N.E.2d 1; People v. Harvey (1973), 53 Ill.2d 585, 294 N.E.2d 269.) Under the pertinent provision of the code, imprisonment could not be made a condition of a sentence of probation. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 6—3(d).) Therefore, the order of probation is modified by vacating the condition that the defendant serve the first 30 days of his term in the House of Correction. As modified, the judgment is affirmed.

Judgment affirmed as modified.

McGLOON and MEJDA, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ADESKO

license: Public Domain

text:
    The People of the State of Illinois, Respondent-Appellee, v. William Mitchell, Petitioner-Appellant.
    (No. 58950;
    First District (4th Division)
    April 10, 1974.
    James J. Doherty, Public Defender, of Chicago (Thomas F. Finegan, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Sharon Hope Grossman, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

On January 3, 1968, William Mitchell, petitioner in the instant appeal, was found guilty of the offense of aggravated kidnapping following a bench trial before the Honorable Jacques Heilingoetter in the Circuit Court of Cook County. At this time petitioner pleaded guilty to two charges of indecent liberties and a charge of bail jumping. He was sentenced to serve concurrent sentences of from 15 to 30 years for aggravated kidnapping, 10 to 20 years for the first indecent liberties charge and 5 to 10 years for the second, and not less than 1 year nor more than 5 years for bail jumping.

On August 5, 1969, the petitioner filed a pro se petition for post-conviction relief. (Ill. Rev. Stat. 1969, par. 122 et seq.) At a hearing held on September 28, 1970, this petition was dismissed on motion of the State. This order was reversed by the Illinois Supreme Court, which remanded the cause for a new hearing so that an amended petition could be filed after a free transcript of the pre-trial sanity hearing and the trial itself had been provided. Counsel was appointed to assist petitioner and a “supplementary petition” was filed on January 29, 1973. This petition was dismissed on the State’s motion without an evidentiary hearing.

Petitioner appeals this order of dismissal, claiming that the trial judge had committed error when he directed that petitioner be found competent to stand trial despite the fact that the testimony in his regard had raised several questions which should have properly been submitted to the jury.

In a post-conviction proceeding the petitioner has the burden of proof to show that there has been a substantial deprivation of his constitutional rights. (People v. Watson, 50 Ill. 2d 234, 236, 278 N.E. 2d 79; People v. Smith, 45 Ill. 2d 399, 404, 259 N.E. 2d 247.) Further, an evidentiary hearing is not necessary where “the Circuit Court, upon a motion to dismiss a post-conviction petition, may render its decision on the basis of what is contained in the pleading to which the motion is directed, considered with the transcript of trial or other proceedings.” (People v. Morris, 43 Ill. 2d 124, 128, 251 N.E. 2d 202.) The question before this ¡court is, therefore, whether the petition and transcript of the hearing were sufficient to allow the court below to determine that petitioner had been competent to stand trial without holding an evidentiary hearing to determine this.

In the course of petitioner’s trial, a jury was impaneled and a hearing into petitioner’s competency to stand trial was held. The State called only one witness to testify, Dr. William H. Haines, the director of the Behavior Clinic of the Circuit Court of Cook County. He had conducted two examinations of petitioner, one 14 months before the trial and One 6 months before the trial. Based on these examinations and his observation of petitioner, Dr. Haines stated that in his opinion William Mitchell was able to cooperate with his counsel and understood the nature of the charges against him. On cross-examination, Dr. Haines stated the petitioner used alcohol and that there was a “possibility” that petitioner had neurotic tendencies and an unstable personality. Dr. Haines was further aware that petitioner had been admitted to Elgin State Hospital in 1949 and had been discharged from the Army for a “character disturbance.” The Army medical report found petitioned was “not motivated for treatment.” The date of this discharge was October 26, 1944. The defense presented no witnesses and the trial judge directed that the jury find defendant competent to stand trial.

In order to be considered competent to stand trial, a defendant must be able to understand the nature of the proceedings, the nature of the charge, and be able to cooperate with his counsel. (People v. Brown, 31 Ill. 2d 415, 421, 201 N.E. 2d 409.) The testimony presented at the hearing shows that by this test, petitioner was competent to stand trial. To meet his burden, as noted above, petitioner would have to show that some bona fide doubt as to his competence existed in the record before the court. In his brief, petitioner concedes that “no particular fact in petitioner’s psychiatric history by itself would raise a bona fide doubt about his competency, [n]either is there any one fact which alone would preclude the trial judge from directing a verdict of competency.” He urges, however, that the prior hospitalization at Elgin State, the nature of his discharge from the military, and the other factors taken as a whole raised sufficient questions to require that the issue of competency be submitted to the jury.

We disagree. The record of the proceedings at trial and the competency hearing and the petition itself disclosed nothing which would have raised a bona fide doubt as to petitioner’s competency to stand trial. In a proper case, where a defendant understands the nature of the charges and proceedings against him and where he is able to cooperate with his counsel, a verdict of competency may be directed. (People v. Reeves, 412 Ill. 555, 107 N.E. 2d 881.) The fact that petitioner had, some time previous to this trial, spent time in Elgin State Hospital or that he had been discharged from the military for “character trait disturbances” or the possibility of “neurotic tendencies” is not relevant to the question at issue — petitioner’s competency to stand trial at the time of trial. Prior mental problems or even prior commitment to a mental hospital do not raise a bona fide doubt as to a defendant’s competency. (People v. Zerba, 20 Ill. 2d 269, 170 N.E. 2d 97; People v. Richeson, 24 Ill. 2d 182, 181 N.E. 2d 170). In a case somewhat similar to the instant case (People v. Woods, 26 Ill. 2d 557, 188 N.E. 2d 1), Dr. Haines testified as the only witness regarding defendant’s competency to stand trial. Notwithstanding the fact that the defendant had been confined to a mental institution 8 years prior to the trial, the direction of a verdict of competency was sustained. The court held that where Dr. Haines had testified that defendant understood the nature of the charges against him and was able to cooperate with his counsel, he was competent to stand trial and the fact of prior confinement for mental problems did not raise a bona fide doubt as to his competency.

We are of the opinion that the direction of the verdict of competency was correct. We have read the entire record presented to us for review and find that it was not error for the trial court to dismiss the petition without an evidentiary hearing. “The only relevant factors in determining whether a defendant is competent to be placed on trial are that he understand the nature of the charges against him and that he be able to co-operate with counsel.” (People v. Brown, supra, at 421.) Dr. Haines’ testimony, on the record as presented, would then settle the inquiry into these factors and shows that petitioner was competent to stand trial.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is affirmed.

Judgment Affirmed.

BURMAN and DIERINGER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Tripp, Defendant-Appellant.
    (Nos. 57711, 57712 cons.;
    First District (3rd Division)
    April 18, 1974.

      Paul Bradley, Deputy Defender, of Chicago (Gordon Berry and Clint Batterton, Assistant Appellate Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (James S. Veldman and Larry A. Sultan, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court.

Willie Tripp was tried by the court and found guilty of battery and attempted theft. He was sentenced to serve 6 months for the former offense and 1 year for the latter, the sentences to run concurrently.

His first contention is that his guilt was not established beyond a reasonable doubt. Specifically, he attacks the identification evidence as insufficient to convict and asserts that, the prosecution failed to prove that he either demanded or attempted to remove money or property from the complainant.

The complainant, John Scrobacz, and two eyewitnesses to the occurrence, Felicitad Aroyo and Romunaldo Sanchez, testified at the trial. Scrobacz stated that while returning home around 8:30 on the evening of November 11, 1971, he was set upon by two men who punched and stabbed him repeatedly. He called for help and his cries were heard by Romunaldo Sanchez, who was in his home one door away from the place of attack. He looked out from a first-floor window and saw two men “stomping” a third. One assailant, whom Sanchez identified as Willie Tripp, held a knife and demanded Scrobacz’s money, while the victim shouted for help. Sanchez said he had a clear view of both men, but he was unable to describe the second one.

Felicitad Aroyo also saw the attack, which occurred beneath a street light approximately 30 feet away from her. She testified that she saw Tripp whom she recognized, having seen him about the neighborhood, stabbmg Scrobacz while another unidentified assailant was kicking him, and she screamed at them to leave him alone.

A scant 24 hours after the attack, Sanchez and Miss Aroyo saw the defendant at a social gathering in a neighborhood church. Aided by a large number of those present, they held him until the police arrived.

Tripp denied the battery and attempted theft. He testified that the first time he saw Scrobacz was in the hospital the day after the attack and that he was at home at the time it took place. His alibi was unsubstantiated.

Where the identification of an accused is at issue, the testimony of a single credible witness is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting positive identification. (People v. Reed (1968), 103 Ill. App.2d 342, 243 N.E.2d 628.) Here not one, but two eyewitnesses identified Tripp. Both saw him under a street light a short distance away; one had seen him before and recognized him, and both were able, independently, to single him out in a large crowd only a day after they witnessed the crime.

Scrobacz and Miss Aroyo experienced difficulty communicating their testimony because of language problems. Aroyo required an interpreter and, at the suggestion of the defendant’s counsel, an unnamed court bailiff was sworn to perform that function. Although the force of her testimony was somewhat blunted by her trouble in relating it, her identification was positive. Minor inconsistencies, arising from a language difficulty and not relating to the identification of a defendant, will not vitiate the value of such testimony. (People v. Brinkley (1965), 33 Ill.2d 403, 211 N.E.2d 730.) Sanchez had no language problem; his identification was also positive, and he further testified that the assault had been accompanied by demands for Scrobacz’s money.

Scrobacz could not describe the assailants nor could he recall hearing what they said. No money or property was taken from him. The fact that he could not identify Tripp does not cast serious doubts on the accuracy or veracity of those who could. His testimony indicates that he may have panicked when attacked and that he may have been assaulted from the rear. In view of his outcries and the screams of Miss Aroyo, it is not surprising that the assailants abandoned their attack before consummating the theft.

When a case is tried without a jury it is the function of the trial judge to evaluate conflicting evidence, and his determination will not be reversed unless the reviewing court finds that the evidence is so unreasonable, improbable or unsatisfactory that it raises a reasonable doubt of the defendant’s guilt. (People v. Vail (1966), 74 Ill.App.2d 308, 221 N.E.2d 165.) When witnesses labor under the handicap of language difficulties, an appellate court, which sees only the written record, should pay more than ordinary deference to the conclusions drawn by the trial judge, who observed demeanor and gestures of the witnesses and heard possibly important variables of inflection and emphasis. The finding of the judge that the defendant was guilty beyond a reasonable doubt was fully supported by the evidence.

The defendant urges that multiple trial errors, combined with ineffective representation of counsel, deprived him of due process of law and that trying him as an adult instead of as a juvenile denied him equal protection of the law.

The trial errors complained of are: (1) interruptions of unsworn, unidentified persons prompting or offering to explain and translate the testimony of witnesses; (2) the failure to exclude witnesses from the courtroom while others testified, and (3) the reliance placed by the court on an unsworn witness at the hearing in aggravation and mitigation.

Although it appears that the trial proceedings amounted to something less than a model of legal decorum, the defendant can show no prejudice resulting from the trial’s informal atmosphere. From the record, we surmise that all persons interested in the trial gathered around the bench. There were extrajudicial interjections but these were usually excited attempts to explain irrelevant facts, or mere offers to translate. Neither of the two alleged "prompting” incidents can properly be so characterized. One involved a spectator’s explanation of the direction in which Rockwell Street ran, information unrelated to the trial issues. In the other, a woman repeated part of the prosecutor’s question when a witness’ answer was unresponsive.

The exclusion of witnesses from the courtroom is an optional procedure requiring motion by counsel,, which motion does not appear in this record. Additionally, it is impossible to ascertain with certainty whether witnesses were or were not excluded prior to taking the stand. Arguing that they were not, the defendant relies only on a passage in the record in which the witness Sanchez, asked if the other State’s witness had been present at the scene of the crime, replied, “that woman.” Since “that woman” was obviously Miss Aroyo, who had testified earlier, her presence during Sanchez’ testimony could not have prejudiced the defendant.

After finding the defendant guilty as charged, the trial judge proceeded immediately into matters of aggravation and mitigation. He heard first from an unsworn witness, the victim’s wife, who testified about the medical bills incurred by him after the attack. This evidence did not prejudice the defendant, since there had been ample testimony to establish the viciousness of the assault.

Based upon the foregoing purported trial errors and other alleged mistakes and omissions of his counsel, the defendant charges that he was incompetently represented. Among the numerous alleged mistakes and omissions are the following: his counsel, although appointed just before the trial began, did not move for a continuance in order to adequately prepare; he did not participate in any pretrial conference; he withdrew, without explanation, a motion to suppress evidence; he permitted the defendant to waive a jury trial, which the defendant did unintelligently; he suggested that one of the court bailiffs be sworn to act as interpreter for a prosecution witness, without ascertaining the man’s qualifications or seeing that he was identified for the record; he failed to object when the interpreter did not ask questions or give responses in the proper form, and he failed to call a material witness, the defendant’s brother, whose testimony would have supported the defendant’s alibi.

Many of these allegations are founded on little more than conjecture. It is pure conjecture to claim that the defense attorney did not have enough time to prepare for trial and that he did not participate in a pretrial conference. The record suggests otherwise. The charges against Tripp were reduced from an attempt armed robbery to battery and attempted theft, and he then knowingly waived a jury to expedite the disposition of the lesser charges. The grounds for the motion to suppress do not appear in the record, hence the withdrawal of the motion cannot be summarily characterized as evidence of incompetence. Proposing a bailiff, an officer of the court, to act as interpreter, was not a dereliction of duty to the accused’s interests, without some reason to believe that such a person would harbor bias toward the accused. That the bailiff was not an experienced interpreter, is readily seen. Instead of repeating the exact words of the interrogator’s questions, he paraphrased them, and it seems that he also did this to the witness’ answers. Not insisting that the interpreter phrase the questions and answers in the proper form does not indicate the defense attorney’s incompetency, nor does the fact that he did not place the defendant’s brother on the stand. There could have been sound reasons for not calling him as a witness and speculation as to the real one would be useless.

Many of the asserted errors concerned matters of judgment, as to which trial counsel should be allowed generous leeway, since each decision may represent only a tactical maneuver in a more comprehensive strategy. Momentary advantage may be permitted to pass in order to achieve some other hoped-for benefit. An attorney’s performance should not be measured by what appellate counsel, with hindsight, might estimate to have been the better course. People v. Washington (1968), 41 Ill.2d 16, 241 N.E.2d 425.

But even if the acts and omissions alleged by the defendant’s appellate counsel were sufficient to establish his trial counsel’s incompetence, this alone would not warrant a reversal of his conviction. For the defendant would have to establish that he was so substantially prejudiced by the incompetence that the outcome of the case would probably have been different. (People v. Newell (1971), 48 Ill.2d 382, 268 N.E.2d 17; People v. Georgev (1967), 38 Ill.2d 165, 230 N.E.2d 851.) This the defendant has not done.

At the time these offenses were committed, Tripp was between 17 and 18 years of age. He was prosecuted as an adult and he contends that this denied him equal protection of the law, because a female of the same age would have been prosecuted under the Juvenile Court Act. (Ill.Rev.Stat. 1969, ch. 37, par. 702-7.) This same issue was made in People v. Pardo (1970), 47 Ill.2d 420, 265 N.E.2d 656, and it was there held that section 702-7 of the Act did not, by its differential classification of persons 17 years old according to sex, violate the equal protection clauses of the Federal and State constitutions. However, encouraged by the Illinois Constitution of 1970, affected defendants have resuscitated the issue and it has been urged anew in several recent appeals. But once again it has been laid to rest: People v. McCalvin (1973), 55 Ill.2d 161, 302 N.E.2d 342; People v. Ellis (1974), - Ill.2d -, - N.E.2d - (No. 45745).

The defendant’s final contention is that his convictions for battery and attempt theft rested on the same conduct and therefore the battery conviction must be reversed. Only one sentence can be imposed when different offenses arise from the same act. (People v. Smith (1972), 8 Ill.App.3d 270, 290 N.E.2d 261.) Whether an act or series of acts are part of the same conduct depends on the circumstances of each-case. The testimony showed that the defendant and his accomplice knocked their victim down, stabbed and pummeled him, and demanded his money. There was no clearly divisible conduct to separate the two offenses.

The judgment of conviction and the sentence for attempted theft are affirmed. The sentence for battery is vacated.

Affirmed in part; vacated in part.

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


author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alan Montgomery, Defendant-Appellant.
    (No. 57425;
    First District (2nd Division)
    April 16, 1974.

      Paul Bradley, Deputy Defender, of Chicago (Steven Clark, Assistant Appellate Defender, 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 STAMOS

delivered the opinion of the court:

Following a bench trial, defendant, Alan Montgomery, was found guilty of rape and deviate sexual assault and was sentenced concurrently to a term of 4 to 8 years on each conviction. On appeal, defendant contends that he was not proven guilty of the two offenses beyond a reasonable doubt; that he was denied the right to fully cross-examine a State’s witness; that hearsay testimony was erroneously admitted into evidence; and that the transfer statute which allowed defendant to be tried as an adult rather than a juvenile was unconstitutional.

The complaint testified that on June 20, 1970, she was 12 years old and living with her parents. At 10 P.M. she was sent by her mother to the store. On her way to the store, she saw defendant who began to follow and talk to her. She reached the store, purchased the items, but as she started home defendant began chasing her. Defendant caught her, placed a sharp object against her throat and demanded that she come with him. He made her cross the street where another young male, whom she identified as Johnny Wilson, was waiting. With the sharp object still at her throat, defendant took her to the basement of a nearby abandoned building where he forced complainant to remove her clothes. Defendant then raped her and subjected her to an act of oral intercourse. During these events, complainant felt a sharp object touch her, and at some point, defendant cut off a patch of her hair. Defendant threatened to kill her if she “hollered” and repeatedly told her that his friend had a gun. Johnny Wilson, who was waiting in the next room until defendant was finished, then forced her to engage in the same two sexual acts. Before leaving complainant alone in the abandoned basement, defendant blindfolded her with a sleeve cut from her sweater, and told her to remain there until he returned. After approximately 5 minutes, complainant, while crying and attempting to find her way out of the dark basement, heard her mother calling her.

On cross-examination the witness testified that although she felt a sharp object on several occasions, she never actually saw a knife or other weapon; that defendant had struck her in the face before the act of intercourse; that during the act of intercourse, she cried out and was made to kiss defendant; but that during the entire episode, she did not offer any physical resistance, and made no attempt to escape.

The mother of complainant testified that at 10:30 P.M. on June 20, 1970, she, concerned because her daughter had not returned from the store, went to look for her. While standing outside, she observed Johnny Wilson running past her house. She proceeded to call out her daughter’s name, and eventually found her daughter naked, screaming and crying in the basement of the abandoned building. In response to her question, “How did you get there?,” the girl cried out that she had been raped by two boys. After giving the girl a coat to cover herself, the mother directed her other daughter to call the police. The witness noticed that a portion of her daughter’s hair had been cut off. Subsequently, the witness obtained the girl’s clothing which had been left in the building; she noticed that a sleeve had been cut from her daughter’s sweater.

The two police officers, Robert Mason and Leo Dorrociak, who arrested the defendant a few hours after the alleged rape, testified that initially defendant denied raping anyone but that when he was confronted with the complaining witness he admitted having intercourse with her, but that it was with her consent.

Ghodratolla Javherr, a physician who examined complainant shortly after the incident, testified that a vaginal smear positively indicated the presence of sperm. A small vaginal bruise was observed, but there were no other bruises or marks on the girl’s body.

The final prosecution witness was Johnny Wilson, the defendant’s accomplice in the incident. He testified that as a result of his participation in the events of that night, he pled guilty in Juvenile Division to the charge of battery and served 8 months with the Illinois Youth Commission and was on parole at the time of the trial. He stated that on the evening in question he and defendant were walking around and defendant said he wanted to have sex. He told how defendant grabbed the girl and put a 10-inch butcher knife around her neck. AH three went to the basement of the abandoned building where, knife in hand, defendant demanded that she remove her clothes. Defendant cut the girl’s bra off with his knife and warned her that she “better act right.” Defendant had vaginal and oral intercourse with complainant. Wilson testified that during the act of intercourse, complainant was crying, but eventually put her arms around defendant, kissed him, and did not resist or fight back. After the witness then subjected the girl to the same acts, defendant blindfolded her with some kind of cloth. Upon leaving the building, the witness saw the victim’s mother.

On cross-examination, the witness testified that both he and defendant were members of the Black P. Stone Nation, a Chicago street gang; and that his brother, Dennis Wilson, had fought with defendant 2 years ago.

Alan Montgomery, called as a witness on his own behalf, testified that he was with three other friends on the night in question. Johnny Wilson was not among them. He stated that he knew complainant prior to the incident, having met her at the home of a mutual friend a few years ago. While walking down the street with his companions, complainant had initiated a conversation and offered to buy some liquor for him. She gave $5 to Alan who got a “winehead” to make the purchase. All five proceeded to the basement to drink it.

The witness stated that he and complainant drank a little and discussed their mutual friend. They were alone in one room and he started “sweet-talking” and kissing her. After asking her if she “was game” and receiving an affirmative answer, he had intercourse with her. According to the defendant, Johnny Wilson showed up while the intercourse was in progress. The witness stated that Wilson did not have sexual relations with the girl, and that he himself did not engage in oral intercourse with her. When he and complainant were done, he offered to walk her home, but she was afraid her mother would be looking for her so she left on her own. After she walked out, the witness discovered that she had left her bag so he sent Johnny. Wilson after her with it. Defendant denied having a knife on the night of June 20, 1970, or forcing complainant to have intercourse with him.

Ollie McGee, the defendant’s grandfather, testified that defendant came home before 10:30 on the night of June 20, 1970.

OPINION

We address ourselves first to defendant’s contention that the State failed to establish beyond a reasonable doubt that the acts of intercourse were forcible and against the will of the complaining witness. The gist of defendant’s argument is that there is an absence of resistance on the part of complainant to demonstrate that the act was clearly against her will. In support thereof, defendant points out that complainant did not cry out when forcibly taken from the street, did not attempt to escape from or physically resist defendant, and voluntarily removed her clothes.

In a conviction for rape, while the evidence must prove that the act was against the will of complainant, there is no definite standard for determining the amount of resistance required. Such a determination must be made from the facts and circumstances of each case. (People v. Strong, 120 Ill.App.2d 52, 256 N.E.2d 76.) Resistance and outcry are unnecessary, however, where the victim is restrained by fear of violence or where such acts would be futile and endanger the life of the female. People v. Pointer, 6 Ill.App.3d 113, 285 N.E.2d 171; People v. Sims, 5 Ill.App.3d 727, 283 N.E.2d 906.

Looking to the circumstances of the present case, the record reveals that upon encountering complainant, defendant placed a sharp object against her throat, which Johnny Wilson described as a ten-inch butcher knife. At various times throughout the incident, the 12-year-old victim felt the sharp object touch her person. She was threatened with her life and, at one point prior to the act of intercourse, was struck by defendant. Under these circumstances, we reject defendants notion that a 12-year-old girl who reasonably discerns a threat on her life is required to affirmatively resist her attacker, and conclude that the evidence, if credible, sufficiently supports the finding that the attack was forcible and against the will of complainant. People v. Walton, 6 Ill.App.3d 17, 784 N.E.2d 508.

The issue of whether the acts of intercourse were forcible or consensual is ultimately one of credibility. In this regard, 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 who heard the evidence presented and observed the demeanor of the witnesses (People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182.), and a reviewing court will not set aside a finding of guilty unless the evidence is so palpably contrary to the finding or so improbable or unsatisfactory as to cause a reasonable doubt as to the guilt of the accused. (People v. Sumner, 43 Ill.2d 228, 252 N.E.2d 534.) A careful examination of the record persuades us that complainant’s testimony was clear and convincing and was corroborated by the testimony of Johnny Wilson and the victim’s mother. We conclude, therefore, that the evidence was sufficient to support the convictions for rape and deviate sexual assault.

Defendant also contends that he was denied the right to fully cross-examine and impeach a key government witness in that he was improperly denied access to certain juvenile court records. The factual setting which gives rise to the contention began immediately prior to the resting of the defense. At that time, defense counsel stated:

“I would ask that for the State’s cooperation for certain documents involved in the case of John Wilson through the Juvenile Court. I wonder if they have any knowledge or have access to any of the records available in that case.”

The court asked defense counsel the object of his inquiry, suggesting that the State might stipulate to the expected findings. Defense counsel stated that he had no idea of what he was going to find and characterized his request as a “fishing expedition” for possible impeaching evidence. The court responded by stating, “I will certainly give you any opportunity you think would be helpful,” delayed the cause until the following day, and suggested that defense counsel inquire at the Juvenile Court. Upon resumption of the proceedings, the following colloquy occurred:

“THE COURT: Yesterday you requested that the matter be put over until this morning. Are you now ready to proceed?
DEFENSE COUNSEL: Yes, I am, Your Honor. I was informed by Mr. Dohr, who is in charge of the State’s Attorney’s office in Juvenile Court, that the matters involving James Wilson [sic], that I requested and attempted to obtain yesterday, are privileged, and that they are not obtainable at this point.
I have no further evidence at this point; the defense rests its case.”

For the first time on appeal, defendant assigns as error his denial of access to the Juvenile Court records of Johnny Wilson, relying upon People v. Norwood, 54 Ill.2d 253, 296 N.E.2d 852, which held that section 2 — 8 of the Juvenile Court Act (Ill. Rev. Stat. 1969, ch. 37, par. 702 — 8) does not bar access to records of juvenile delinquents when such records are sought to impeach the credibility of the juvenile as a witness.

We initially note that defense counsel did not seek a court order to obtain the records, and made no objection to his failure to gain access to them either at trial or in his post-trial motion. The law is well-settled that defense counsel’s inaction constitutes a waiver of any defect and does not present a reviewable issue. (People v. Delafosse, 36 Ill.2d 327, 223 N.E.2d 125; People v. Barbee, 35 Ill.2d 407, 220 N.E.2d 401; People v. Hunter, 23 Ill.2d 177, 177 N.E.2d 138.) Nor are we persuaded by defendant’s assertion that his right to a fair trial was substantially affected by the defect, which thereby constituted "plain error.” Ill. Rev. Stat. 1971, ch. 110A, par. 615.

In Norwood, the case relied upon by defendant, the bulwark of the State’s case against the accused consisted of the testimony of William Washington, a juvenile who was an accomplice in the commission of the crime. In the words of the Illinois Supreme Court, “the credibility of William Washington was critical, for if his testimony was not believed the defendant could not have been convicted.” (54 Ill.2d at 255.) Based upon section 2 — 8 of the Juvenile Court Act, the trial court sustained numerous objections, on cross-examination, relating to the police record of Washington. In reversing the conviction, the supreme court noted:

“‘The testimony of an accomplice is competent evidence, and, although uncorroborated, may be sufficient to sustain a conviction if it is of such a character as to prove guilt beyond a reasonable doubt. It is always, however, subject to grave suspicion and should be acted on with great caution. [Citations.]’ ” 54 Ill.2d at 256.

The court then concluded that the statute in question “is not to be construed as prohibiting access to the records of juvenile delinquents when those records are sought in order to impeach the credibility of the juvenile as a witness by showing a possible motive for testifying falsely.” 54 Ill.2d at 257.

An examination of the present record reveals that the trial court imposed no limitations on defense counsel’s inquiries into the witness’ juvenile record, his gang associations, or any other matters reflecting upon his credibility and bias. In addition, unlike Norwood, the conviction here did not rest entirely upon the testimony of the accomplice, but rather, was supported by the clear and convincing testimony of complainant which was corroborated by the testimony of her mother and the •examining physician. Under these circumstances, coupled with defendant’s failure to adequately present the issue to the trial court, we conclude that no plain error was committed.

Defendant next assigns as error the victim’s mother’s testimony that in response to the question “what happened?” her daughter stated that “she had been raped.” It is asserted that the statement was prejudicial hearsay not falling within the “spontaneous utterance” exception. Inasmuch as the statement was made in response to a question asked 5 minutes after the occurrence, defendant argues that it lacked the element of spontaneity. (People v. Taylor, 48 Ill.2d 91, 268 N.E.2d 865; People v. Stewart, 130 Ill.App.2d 623, 264 N.E.2d 557.) We deem it sufficient to say that .the cases cited by defendant are factuaUy distinguishable from the instant case.

In People v. Damen, 28 Ill.2d 464, 471, 193 N.E.2d 25, the Illinois Supreme Court set forth the requirements for the admissibility of spontaneous utterances:

“ Three factors are necessary to bring a statement within this exception to the hearsay rule: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence.’ ”

In Damen, the complaining- witness had made a statement to the police in response to the question, “What happened?” The court held that this single question was insufficient to destroy the spontaneity of the subset quent statement. We believe the factual posture of the present situation parallels that found in Damen and conclude that the statement of the complaining witness was properly admitted into evidence.

Finally, defendant contends that the statute under which he was transferred from Juvenile Court to Criminal Court is unconstitutionally vague and denied him due process of law. The statutory provision in effect at the time defendant was transferred provides as follows:

“If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this State, the State’s Attorney shall determine the court in which that minor is to be prosecuted; however, if the Juvenile Court Judge objects to the removal of a case from the jurisdiction of the Juvenile Court, the matter shall be referred to the chief judge of tire circuit for decision and disposition.”

The content of tire statute gives no indication of specific standards to be used in determining “the court in which [the] minor is to be prosecuted,” and leaves the initial decision in the hands of the State’s Attorney. This statutory scheme, defendant argues, constitutes an unconstitutionally vague delegation of authority from the legislature to a member of the executive branch of government. The identical issue was raised and adjudicated in People v. Handley, 51 Ill.2d 229,. 233, 282 N.E.2d 131, wherein the court stated:

“Historically, the office of the State’s Attorney has involved the exercise of a large measure of discretion in the many areas in which State’s' Attorneys must act in the performance of their duties in the administration of justice. We do not find it constitutionally objectionable that the legislature has seen fit to grant discretion to the State’s Attorney in removal matters under the Juvenile Court Act, particularly in view of the fact that the purposes of the Act as set forth in section 1 — 2 of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 701 — 2) and can be presumed to be considered by State’s Attorneys in making' determinations in these matters.”

Accordingly, we reject defendant’s contention. People v. Sprinkle, 4 Ill. App.3d 6, 280 N.E.2d 29; see also People v. Bombacino, 51 Ill.2d 17, 280 N.E.2d 697; People v. Hawkins, 53 Ill.2d 181, 290 N.E.2d 231.

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

Affirmed.

HAYES, P. J., and LEIGHTON, J., concur.

       Since, at the said time, he was under the age of 14, he could not have been charged with rape. Ill. Rev. Stat. 1969, ch. 38, par. 11 — 1(a).

       Section 2 — 8 of the Juvenile Court Act provides:
      “(3) The records of law enforcement officers concerning all boys .under 17 and all girls under 18 must be maintained separate from the records of arrests and may not be open to public inspection or their contents disclosed to the public except by order of the court or when the institution of criminal proceedings has been permitted under Section 2 — 7 or such a person has been convicted of a crime' and is the subject of pre-sentence investigation or proceedings on an application for probation.”

       Ill. Rev. Stat, 1969, ch. 37, par. 702 — 7(3).


author: Mr. JUSTICE MEJDA

text:
    Stephen B. Cohen, in behalf of himself and all other members of a class known as keyholders of Playboy Clubs International, Inc., Plaintiff-Appellant, v. Playboy Clubs International, Inc. et al., Defendants-Appellees.
    (No. 57581;
    First District (3rd Division)
    April 18, 1974.
    A. Bradley Eben and Edward W. Barrett, both of Chicago, for appellant.
    William J. Scott, Attorney General, of Chicago (Warren K. Smoot and Paul J. Bargiel, Assistant Attorneys General, of counsel), for appellee George E. Mahin.
    Neil H. Adelman, of Devoe, Sharur, Krupp, Miller, Adelman & Hamilton, of Chicago, for appellee Chicago Playboy Club, Inc.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

An action for declaratory judgment, accounting and injunctive relief was commenced in the circuit court of Cook County by plaintiff, individually as a keyholder, and on behalf of all keyholders similarly situated, against Playboy Clubs International, Inc., and the Playboy Club of Chicago, Inc. (hereinafter referred to as Playboy defendants). George E. Mahin, Director of Revenue, was named as a necessary defendant. The complaint challenged the validity of the collection and payment of the Illinois Use Tax and the Retailers’ Occupation Tax by the Playboy defendants to the State of Illinois on a separate 15% mandatory service charge which was added to customers’ bills for the purchase and consumption of food and beverages served in the Playboy Clubs. Playboy defendants filed answers and counterclaimed against the defendant Director of the Department of Revenue of Illinois. Plaintiff and the Playboy defendants each filed motions for summary judgment. The circuit court granted the motion of Playboy defendants and denied the motion of plaintiff, and held that the service charge was a part of the total selling price of food and beverages and was therefore subject to tax.

Plaintiff’s appeal from the above order of the circuit court was originally filed in the Appellate Court, First District. On April 20, 1971, the appeal was transferred to the Supreme Court of Illinois upon motion of defendant Mahin for the reason that this was a case involving “revenue” within the meaning of the then Supreme Court Rule 302(a). The appeal was subsequently transferred back to this court for disposition.

Although several sub-issues are raised on appeal, the central issue presented for review is whether the 15% mandatory service charge separately stated on a bill for food and beverages is properly taxable under either the Illinois Use Tax or the Retailers’ Occupation Tax Act.

The pertinent facts are not in dispute. Defendant Chicago Playboy Club, Inc., an Illinois corporation, is a restaurant and night club operated under a franchise from defendant Playboy Clubs International, Inc., a Delaware corporation. George E. Mahin, defendant, is the Director of the Department of Revenue of the State of Illinois.

Plaintiff and the class of keyholders he represents purchased tangible personal property (primarily food and beverages) at retail from the Playboy defendants from time to time since May 1, 1967. Since that date to the time of filing the instant complaint, a 15% mandatory service charge was separately stated on and added to all checks or bills of patrons who purchased food and beverages for on-the-premises consumption. The tax paid by Playboy defendants to the State of Illinois was computed upon the “total bill” which was comprised of the sub-total charges for food and drink, together with a separately stated “service charge 15% includes gratuities.” Food and beverages are served to the patrons exclusively by female employees called “bunnies.” All sums collected as and for Illinois State tax on these bills are remitted to the Department of Revenue less, when applicable, the 2% discount permitted by law.

Tipping is not prohibited by defendant Chicago Playboy Club. Prior to June 16, 1969, Chicago Playboy paid to each “bunny” as compensation, in addition to hourly wages, only a portion of the 15% service charge paid by her customers upon weekly gross sales in excess of $550. After June 16, 1969, Chicago Playboy paid compensation, in addition to an hourly wage, equal to at least the 15% service charges on her checks.

On March 2, 1967, in response to an inquiry by defendant Chicago-Playboy, the Illinois Department of Revenue issued a letter that * * the so-called service charge will be considered to constitute an increase in the taxable amount of the bill” if all of the following conditions are not met: “(1) Tipping is in fact prohibited; (2) the service charge is in fact stated separately on each bill; and (3) all of the proceeds of the service charge are in fact turned over to the employees who would normally have received tips had the service charge policy not been introduced.” On October 1, 1969, counsel for defendant Chicago Playboy received a letter from the Department of Revenue advising that the requirement that tipping be prohibited had been deleted as a requirement from the Department’s letter of March 2, 1967.

Prior to the trial, defendant Director answered certain interrogatories propounded to him by defendant Chicago Playboy as follows:

“The 15% service charge will not be subject to the tax if all of the following conditions are met: (1) the service charge is in fact stated separately on each bill; and (2) all of the proceeds of the service charge are in fact turned over to the employees who would normally have received tips had the service charge policy not been introduced.
If both of the above conditions are not met, then the so-called service charge will be considered to constitute an increase in the taxable amount of the bill.”

The Illinois Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 440 et seq.) and the Use Tax Act (Ill. Rev. Stat. 1971, ch. 120, par. 439 et seq.) are basically similar in their provisions with the exception that the former provides for the imposition of a tax upon persons engaged in the business of selling tangible personal property at retail (a tax upon the occupation of selling) and the latter imposes a tax upon the privilege of using in Illinois tangible personal property purchased at retail from a retailer (a tax upon the use of property). The tax is imposed at a fixed rate of either the gross receipts from sales of tangible personal property (Retailers’ Occupation Tax Act)- or the selling price of such property (Use Tax Act). Under the former Act “gross receipts” means the total selling price of the tangible personal property sold. Under both the Retailers’ Occupation Tax Act and the Use Tax Act, the “selling price” or the amount of sale means “the consideration for a sale valued in money * * * without any deduction on account of the cost of the property sold, the cost of materials used, labor or service cost or any other expense whatsoever * * *." (Ill. Rev. Stat. 1971, ch. 120, pars. 440 and 439.2.)

No tax is imposed under either of the above Acts upon the business of providing entertainment. Massell v. Daley (1949), 404 Ill. 479, 89 N.E. 2d 361.

Plaintiff maintains that the sendee charge is not a part of the selling price as defined above because (1) the service charge, as stated separately on each bill, constitutes a gratuity; or (2) the service charge as stated is a charge for entertainment which is not taxable.

In Snite v. Department of Revenue (1947), 398 Ill. 41, 74 N.E.2d 877, the taxpayer sought a refund of taxes paid pursuant to the Retailers’ Occupation Tax Act. The taxpayer was organized as a golf and country club. Members purchased food and drink which were served at the bar or in the restaurant on the premises. Taxpayer sought a refund of taxes paid on such sales, claiming that since he was primarily engaged in the business of furnishing services in the nature of conducting a social organization and furthering outdoor sports, the receipts from the sales of food and drink were non-taxable inasmuch as such sales were merely incidental to the business of furnishing the above service. The supreme court held otherwise, stating at page 46:

“If the article sold is the substance of the transaction and the service rendered is merely incidental to and an inseparable part of the transfer to the purchaser of the article sold, then the vendor is engaged in the business of selling at retail, and the tax which he pays for the privilege of engaging in such business is measured by the price which the purchaser pays for the article and the service incident thereto.”

The court specifically held that the taxpayer was engaged in the occupation of selling tangible personal property at retail and was consequently liable for the payment of taxes on such sales.

There is no doubt that the taxpayer in the case before us is engaged in the occupation of selling tangible personal property at retail. Plaintiff contends that the separately stated service charge constitutes a payment by the customer for entertainment. In the alternative, he contends that the Playboy defendants are engaged in the business of furnishing customers with the services of the “bunnies.” In his brief in this court plaintiff alleges that the “distinctively-dressed female employees” (the bunnies) who serve the food and beverages may furnish entertainment by their appearance alone. For the sake of argument, we may assume that the novel or distinctive appearance of these female employees affords some sort of entertainment. Nevertheless, the charge is designated a “service charge” and is presumably made for the services rendered rather than for the “entertainment” furnished by the appearance of the female employees. The charge is a percentage of the bill for food and drink. The female employees, regardless of their distinctive dress, serve the food and refreshment to the customers. No charge is made for the “entertainment” furnished by the appearance of these employees if the customer does not purchase food and drink.

Plaintiff cites Miller v. Department of Revenue (1958), 15 Ill.2d 323, 155 N.E.2d 12, for the proposition that a taxpayer who makes a separate charge for entertainment may deduct the amount of such charges from the gross receipts from sales of food and drink. The court did state that the charge was deductible if it was to be paid regardless of whether the customer ordered refreshments. In that case, however, the cost of entertainment was denied as a deduction from gross receipts. There the sole charge to the customer was the price of food and beverages. Plaintiffs were night-club owners who sold food and drink and provided entertainment. No separate charge for entertainment was made although the price of the food and beverages was inflated to cover such costs. The court, at page 325, made particular note that even though no separate charge for entertainment was made,

“They sell only food and beverages, and the customer pays nothing for the entertainment as such. He is entitled to enjoy it regardless of the amount he pays for food or drinks. That amount is governed entirely by the type and quantity of food and beverage ordered, and has no relationship to the entertainment he receives. Under such circumstances the plaintiffs’ cost of entertainment differs in no material respect from the expense of providing recorded music, television, a piano player, attractive decorations, or other inducements to patronage. Such items are simply part of the costs of conducting the business of selling food and beverages at retail, and the fact that their amount makes it necessary to charge seventy-five cents, rather than thirty-five cents, as the price of a drink is of no significance in determining the nature of the sales. * * * It is clear that the tax must be computed on plaintiffs’ entire gross receipts, without deduction for costs of entertainment. There were no sales of entertainment but only of food and beverages.”

In the instant case, the customer is charged and pays for the food and beverage and a separately stated service charge. This service charge is a fixed percentage of the total price of the food and beverage. The customer is entitled to enjoy the “entertainment” whether or not he purchases any food or drink. The service charge bears no relationship to the “entertainment” he receives but is determined. solely by the price of the food and beverages he purchases. If any portion of the service charge could be considered as payment for entertainment, such entertainment at most is supplied as an incident or inducement to patronage. The charge for entertainment, even though separately stated, must be directly related to the amount of entertainment furnished to and received by each customer. Where each customer pays a charge in proportion to the food and drink ordered and not in proportion to the entertainment received, whether or not the charge is separately stated, such a charge must be included in the gross receipts which are subject to the tax. See Miller v. Dept. of Revenue, supra, 327.

The court in Miller reiterated the proposition that if the thing sold is personal, professional or other service and not tangible property, the, receipts therefrom cannot be included in measuring the tax. In the ease before us the service rendered — the delivery of food and drink by “bunnies” — is “incidental to and an inseparable part of the transfer to the purchaser of the article sold, * * *." (Snite v. Department of Revenue, 398 Ill. 41, 46.) The substance of the transaction is clearly not the transfer of the article but the article itself. The cost of such transfer of tangible property, whether separately stated or included in the price of the item sold by way of a 15% mark-up, cannot be deducted .from, the' “selling price” of the article in computing the amount of tax due the State of Illinois.

Plaintiff also argues that the Playboy defendants’ segregation of the service charge from the price of food and drink is contrary to the public policy of the State of Illinois. He alleges that the inclusion of the service charge in the selling price,, although separately stated, constitutes deceptive practices by the Playboy defendants in violation of several Illinois statutes. We are not here concerned with the Playboy defendants’ potential liability for untrue, misleading or deceptive activities with respect to the separately stated service charge. Our concern is focused exclusively upon defendants’ tax liability for such charges.

Finally, plaintiff maintains that the separately stated service charge which specifically states “includes gratuities” is in effect a tip or gratuity. This argument is without merit. The service charge, although a fixed .percentage of the bill, is mandatory. The customer has no discretion as to the decision to pay or not to pay pr the amount of the payment. He may or may not leave an additional amount as a gratuity. If he does, that amount is within his personal discretion. However, the service charge is not in any sense gratuitous. See Beaman v. Westward Ho Hotel Co. (1960), 89 Ariz. 1, 4 — 5, 357 P.2d 327, 329.

In Youngstown Club v. Porterfield (1970), 21 Ohio St.2d 83, 255, N.E.2d 262, the Supreme Court of Ohio held that a mandatory 15% service charge imposed by a club on the price of food and drink was subject to Ohio sales tax. The court reasoned, at page 264:

“The fact that the service charge is somewhat segregated from the charge for food and drinks, and will eventually pass to the waiters, does not make that labor cost any different from the amount for fixed labor costs which are included in the price for food and drinks.”

In the case before us, during the period of time in question, the Playboy defendants were obligated, due to union contracts, to pay either a portion or all of the 15% service charge to the female employees who served customers. The fact that the cost to the Playboy defendants was not a predetermined or fixed cost, in the sense of a definite amount, but rather was determined as a percentage of the price of food and drink, does not render the service charge any less than a cost to the Playboy defendants. We note that 12 other jurisdictions, including California, District of Columbia, Iowa, Maryland, Michigan, Minnesota, North Carolina, Rhode Island, South Carolina, Virginia, Washington, and Wisconsin, have taken the same position, at least with respect to rules and regulations promulgated by those states.

For the above reasons, we hold that the mandatory service charge, as separately stated on the customers’ bills, is includible within and not deductible from the selling price of food and drink sold by the Playboy defendants. Such charges are therefore taxable under the Retailers’ Occupation Tax Act and the Use Tax Act. The judgment of the trial court is affirmed.

Affirmed.

McNAMARA, P. J., and DEMPSEY, J., concur.