author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Shannon Stephens, Defendant-Appellant.
    (No. 57222;
    First District (2nd Division)
    April 2, 1974.

      James J. Doherty, Public Defender, of Chicago (William C. North and John T. Moran, Jr., Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and William K. Hedrick, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

After a jury trial, defendant was found guilty of rape and deviate sexual assault and sentenced concurrently to a term of 25 to 50 years on each conviction. Defendant appeals and alleges he was denied a fair trial in that (1) the prosecution was permitted to impeach defendant by the use of an oral statement not referred to in response to a discovery motion; (2) that prejudicial testimony, indicating that the victim's family moved because of fear of defendant, was admitted into evidence; (3) that the prosecution improperly suggested that the defendant committed crimes unrelated to the one at bar; (4) that evidence was erroneously adduced to establish the prior virginity of the victim; and (5) that during closing argument, the prosecutor improperly argued the absence of alibi witnesses, accused defense counsel of “chicanery,” and attacked defendant with an inflammatory characterization. Alternatively, defendant raises contentions regarding the imposition of an excessive sentence and that the punishment for deviate sexual assault exceeded the statutory maximum.

The evidence reveals that at 7 A.M. on October 6, 1970, the complaining witness, a 16-year-old student, left her 16th-floor apartment in a Chicago Housing Authority project to attend high school. While alighting from the elevator on the first floor, she encountered the defendant, Shannon Stephens, who forcibly shoved her back into the elevator, and, by pushing the stop button, caused the elevator to be immobilized between floors. The assailant then told the victim to disrobe. While removing her footwear, the victim found an opportunity to hit defendant on the head with the heel of her shoe. The assailant grabbed and threatened complainant, and then forcibly raped her and subjected her to an act of anal intercourse.

After the attack, which lasted for approximately 30 minutes under two bright overhead lights, the assailant returned the elevator to the first floor where he departed. The victim made her way back to her apartment and told her mother of the attack. She appeared in disarray, dirty, crying, and her undergarments were saturated with blood. After a douche, she was examined at Michael Reese Hospital where it was determined that she suffered lacerations of the hymen and perineum.

Five days later complainant picked defendant from a group of photographs, an arrest warrant was issued, and within a few days defendant was apprehended and identified. At the time of arrest, it was observed that defendant was suffering from a recent laceration on the head.

Defendant, his mother, and his sister interposed an alibi defense.

Defendant’s initial contention is that the court erroneously permitted the prosecution to impeach defendant by an oral statement not referred to in the State’s answer to defendant’s discovery motion. In response to defendant’s discovery request for “[a] list of witnesses to any oral statement that the defendant may have made,” the State answered “[n]o statements.” At trial, during tibe State’s case in chief, the victim testified that she hit her assailant on the head with a shoe; Officers Jones and McCall also testified that they observed a fresh cranial wound on defendant at the time of arrest. Defendant testified and on cross-examination denied having a head injury at the time in question and further denied ever relating to police the circumstances of such injury. In rebuttal, Officer McCall testified that in response to a question asked at the time of arrest, defendant stated his head wound had been caused by a bottle thrown from the upper floor of the “project.”

This rebuttal testimony, defendant contends, was inadmissible owing to the failure of the State to include it in the discovery answer. In support of this contention, defendant relies on People v. Mwathery, 103 Ill.App.2d 114, 243 N.E.2d 429, wherein the court stated it was error for the State to fail to honor an agreement not to comment on a statement made by a co-defendant.

We initially note that at the time the State filed its answer to the discovery motion, January 22, 1971, it was under no obligation to furnish defendant with information regarding admissions or statements. (See People v. Hall, 83 Ill.App.2d 402, 227 N.E.2d 773; Ill. Rev. Stat. 1969, ch. 38, par. 114—10.) Furthermore, the Mwathery case is inapposite in that the present record reveals the absence of any agreement to withhold statements. Therefore, no error was committed by the introduction of the impeaching statement.

We also reject defendant’s alternative argument that the trial court’s refusal on the day of trial, November 30, 1971, to grant a continuance to enable defendant to file a new discovery motion under Supreme Court Rule 412(a) (ii) (effective October 1, 1971) was prejudicial. Although defendant had 2 months in which to file an amended or supplementary motion to produce under the new Supreme Court Rule, he failed to avail himself of the opportunity. Additionally, the trial judge assured defense counsel that a continuance would be granted after voir dire examination if defendant requested the same to study discovery matters; again, defendant failed to avail himself of the opportunity. Under these circumstances, we conclude that not only was the trial judge acting within his discretional authority in the first instance (People v. Davis, 45 Ill.2d 514, 261 N.E.2d 314), but that defendant waived any objection by his failure to take advantage of the offered mid-trial continuance.

Defendant next contends that the trial court erred in admitting certain testimony. First, defendant complains of the following colloquy between Mrs. Reynolds, the mother of complainant, and the prosecutor on redirect examination:

“PROSECUTOR: One question, Mrs. Reynolds. Did you move from that building since that time?
MRS. REYNOLDS: Yes, I have.
DEFENSE COUNSEL: Objection.
MRS. REYNOLDS: I had to, because she was afraid.
PROSECUTOR: Nothing further."

Citing People v. Herbert, 361 Ill. 64, 196 N.E. 821, defendant argues that the inference to be drawn from the above colloquy is that the complaining witness was in fear for her safety by reason of her activity in prosecuting the defendant. In Herbert, the court held it prejudicial error to admit testimony that a police guard was placed around the house of the prosecuting witness just prior to trial in that it tended to create in the mind of the jury the impression that the witness was intimidated with threats of violence by the defendant. In the present case, aside from the consideration that the witness’ answer was non-responsive and defense counsel failed to obtain a ruling on his objection, we think the testimony of Mrs. Reynolds sustains multiple inferences unrelated to a specific fear of defendant. Complainant’s emotional reaction could emanate from an apprehensiveness of the neighborhood in general, or more particularly, from a fear of residing in a building where the use of elevators is a necessity. Therefore, the Herbert case is not controlling and we hold defendant’s contention to be without merit.

Defendant next assigns as error the following testimony of Officer Jones elicited on redirect examination which, defendant argues, suggests that he committed other crimes unrelated to the one for which he was tried:

“PROSECUTOR: Relative to this case, the case only, did any person view the line-up held on the 13th of October?
OFFICER JONES: Repeat that please?
Q: Be sure you understand this question. As to this case, this case only, this being the charge of Shannon Stephens for sexual assault on Miss Reynolds, did any person from this case, right here as we are talking about, view the line-up that was held on the 13th of October?
DEFENSE COUNSEL: Object.
THE COURT: Overruled.
Q.: Do you understand the question?
A.: No. I don’t.
Q.: You were asked by Mr. Murphy on cross examination, whether or not a line-up was held—
A.: Um-hum.
Q.: (Continuing)—on the 13th of October, which Shannon Stephens stood in, is that right? And you said * * * [com-
plainant] did not view that line-up.
A.: That’s correct.
Q.: Did anybody, for the purpose of identification, anybody involved in this case, view that line-up?
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
Q.: Do you understand that question?
A.: Other than the investigation officers?
Q.: No witnesses?
A.: No witnesses.”

To avoid misreading the purpose or the prosecutorial questioning, it is appropriate to note the context in which they were asked. Prior to trial, during defendant’s motion to suppress, it was revealed that the victim, after having made a photographic identification of the defendant, was requested to come down to the police station for purposes of viewing a lineup. Upon arriving at the police station, complainant inadvertently walked into the wrong room, saw defendant with several police officers, and stated: “That’s him. That’s him.” Because of this contrefemp, the intended lineup was cancelled. However, defendant did participate in one or more lineups which were viewed by the victims of two other rapes. The trial judge, in sustaining defendant’s motion to suppress the police station identification, ruled that the police station confrontation between the victim and defendant would not be allowed to “be brought into the trial unless it is brought in by the defense.” The trial court’s ruling proved prophetic. At trial, during the cross-examination of Officer Jones, defense counsel brought out the inadvertent confrontation and elicited that defendant had participated in a lineup, but that complainant did not view it. The prosecutor then requested a side-bar conference, and inquired if he might explain away the unfavorable inference—that other potential witnesses in this case had viewed defendant but could not identify him. The complained-of testimony, above-quoted, was then elicited and was followed by testimony indicating that it would have been a futile act to have complainant view the lineup.

Placed in context, it is clear that defense counsel, apparently for tactical reasons, initiated the question of prior lineups. If a defendant procures, invites or acquiesces in the admission of evidence, even though it be improper, he cannot complain. (People v. Burage, 23 Ill.2d 280, 178 N.E.2d 389.) It was therefore proper for the State to rebut the unfavorable inference arising from testimony elicited by defense counsel. Moreover, viewing the complained-of testimony in a vacuum, we are not persuaded that it falls within the purview of the rule prohibiting the admission of evidence concerning the commission of other crimes by the accused. See People v. Coleman, 17 Ill.App.3d 421; 308 N.E.2d 364; People v. Jackson, 103 Ill.App.2d 209, 243 N.E.2d 551.

It is also contended by defendant that testimony indicating that complainant was a virgin before she was raped was prejudicial and improperly admitted. The examining physician, Dr. Streeter, in response to a question concerning the medical history of the complaining witness, stated: “The patient denied any previous sexual exposure.” Defendant refers us to People v. Gabler, 111 Ill.App.2d 121, 249 N.E.2d 340, where the court, after stating the general rule that reputation for chastity in a rape case is only material where the defense is consent, held that the factual posture of that case precluded any question of consent, and affirmed the ruling of the trial court denying the admission of defense testimony relative to the complainant’s reputation for chastity. As applied to the present case, defendant reasons that since the defense was mistaken identity rather than consent, testimony regarding complainant’s lack of previous sexual exposure” is necessarily immaterial. We disagree.

Want of consent on the part of the prosecutrix is of the essence of the crime of forcible rape and must be proved by the prosecution beyond a reasonable doubt before there can be a legal conviction of that crime. (People v. Fryman, 4 Ill.2d 224, 122 N.E.2d, 573.) Inasmuch as want of consent is a substantive issue in the State’s case, the prior chastity of the complaining witness is both material (Stevens v. People, 158 Ill. 111, 41 N.E. 856) and relevant. Card, Illinois Evidence Manual (1963), Rule 94(c) and cases cited thereunder.

Nor are we of the opinion, as defendant argues, that evidence of prior chastity, elicited during the State’s case in chief, becomes immaterial when the defense is not consent but mistaken identification. It is true that prior chastity becomes immaterial when defendant, in its case, interposes the defense of mistaken identity; however, the State is not obligated to anticipate the avenue of defense and limit its proofs accordingly, even though defendant admits or stipulates to the existence of certain facts. (People v. Botulinski, 392 Ill. 212, 64 N.E.2d 486.) As stated in People v. Scheck, 356 Ill. 56, 62, 190 N.E. 108:

“It has never been held that the State is barred from proving a fact because the defendant offers to admit it, but, on the contrary, the rule is that when a trial is upon a plea of not guilty the State is permitted to go ahead and introduce its full proof of the crime charged in the indictment. [Citation.]

Given the materiality and relevancy of prior chastity to want of consent in a rape prosecution, we also recognize that, under the statute, it is not necessary for the State to offer any evidence on that subject, and, moreover, that the complaining witness is presumed, in law, to be of chaste character. It is, however, not error to enter proofs in accordance with the legal presumption of chastity. (People v. Eccarius, 305 Ill. 62, 136 N.E. 651; People v. Nieglos, 306 Ill. 53, 137 N.E. 400.) We further recognize that absent an attack on the character of the complaining witness, the introduction into evidence of prior chastity may, under various circumstances, be unduly inflammatory and prejudicial. Therefore, its admissibility should be viewed with considerable caution and circumspection.

In the present case, we note that prior chastity of complainant was elicited only in a medical context, that complainant was not questioned about prior sexual contact, that the language used was not such as to exploit the sensibilities of the jury, and that the subject matter was not unduly dwelt upon. We note further that, in view of the doctor’s testimony as to lacerations of the hymen, the statement in the medical history could be regarded as merely cumulative. Under these circumstances, we think its use was neither unreasonable nor prejudicial. People v. Eccarius, supra; People v. Nieglos, supra; State v. Aveen, 284 Minn. 194, 169 N.W.2d 749; Annot., 35 A.L.R.3d 1447.

Defendant next contends that the prosecutor’s closing argument was, in three particulars, prejudicial. Defendant first assigns as error the following comment concerning defendant’s failure to call an alibi witness:

“The most interesting thing about the witnesses for the defense are those that were not called. First, we have Ronald, the boy friend of the mother. He was not called. He is in New York. So what? This is a rape case. If he could add anything, you get him in from New York.”

The general rule is that it is improper for the prosecution to comment on defendant’s failure to present witnesses when such witnesses are equally accessible to both parties. (People v. Rubin, 366 Ill. 195, 7 N.E.2d 890, People v. Munday, 280 Ill. 32, 117 N.E. 286.) However, where the defendant injects into the case his activities with potential witnesses during a particular period of time ostensibly for the purpose of establishing an alibi for the time of the commission of the crime charged, his failure to produce such witnesses is a proper subject of comment on the part of the State. (People v. Swift, 319 Ill. 359, 150 N.E. 263.) Within the exception to the general rule, the prosecutor’s comment must be legitimate in scope (see People v. Williams, 40 Ill.2d 522, 240 N.E.2d 645), and not misleading (see People v. Munday, supra) or unfair (see People v. Smith, 105 Ill.App.2d 8, 245 N.E.2d 23.)

In the instant case, defendant, his mother, and his sister testified that at the time of the assault, they were at the apartment of defendant’s mother with Ronald. Therefore, not only did defendant interject the additional alibi witness into the case, but we are also of the opinion that the prosecutorial allusion to Ronald was neither misleading or unfair. The prosecutor’s comment was proper and its subject matter was a circumstance entitled to some weight in the minds of the jury. People v. Arnold, 12 Ill.App.3d 826, 299 N.E.2d 446; People v. Tolefree, 14 Ill.App.3d 754, 303 N.E.2d 555; see also People v. Nilsson, 44 Ill.2d 244, 255 N.E.2d 432.

Next we are referred to the foHowing passage in which the prosecutor aUudes to the “chicanery” of defense counsel:

“For him [defendant’s lawyer] to suggest he is some young, inexperienced fellow isn’t true. You can see during the course of his closing argument he used everything known to any Defense lawyer to, by chicanery, tried to get his defendant off.”

InitiaHy, we note that the reference made to defense counsel’s tactics was not entirely unprovoked. During argument defense counsel apparently sought to court the jury by projecting a self-deprecating image, explicitly contrasting his own youth that still had a “hopeful future” with the excellent professional skills of the two prosecutors. Considered in this context, the prosecutor’s remark, although inappropriate and better left unsaid, was not entirely unwarranted. Moreover, defendant’s attorney failed to object when the comment in question was made. Where there is no objection, errors stemming from, the prosecutor’s remark to the jury are deemed waived unless they are so prejudicial that the reviewing court must consider whether they affected the outcome of the case. (People v. Hampton, 44 Ill.2d 41, 253 N.E.2d 385.) Viewing the alleged error in context, we do not feel that it was of a nature so substantial as to require this court to assess its possible effect despite the absence of objection. People v. Pearson, 52 Ill.2d 260, 287 N.E.2d 715.

It is lastly argued that the prosecutor’s reference to defendant as an “animal” constituted reversible error. We note that an objection to this reference was sustained, the prosecutor promptly apologized, and the jury was informed, by general instruction, to disregard the comments of the attorneys not based on the evidence. Under these circumstances, although the unrepeated reference undoubtedly skirted the bounds of propriety in legal argument, it did not constitute reversible error. (People v. Mackey, 30 Ill.2d 190, 195 N.E.2d 636; People v. Nickelson, 105 Ill.App.2d 138, 245 N.E.2d 79.) In conclusion, we believe that the alleged errors, either individually or collectively, did not deny defendant a fair trial.

Defendant finally contends that his concurrent sentences of 25 to; 50 years for rape- and deviate sexual assault were excessive. In support thereof, defendant argues that the prosecutor’s improper conduct contributed to the sentences imposed by the trial judge; that in light of defendant’s youth (21 years old at the time of trial) and the absence of any prior convictions, the sentences imposed discourage any hopes of rehabilitation; and that defendant’s sentence for deviate sexual assault was in excess of the statutory maximum at the time of sentencing. (Ill. Rev. Stat. 1971, ch. 38, par. 11—3.) The State agrees with defendant’s last point and requests this court to reduce the 25 to 50 years sentence for deviate sexual assault to a term of not less than 4 nor more than 14 years in accordance with Ill. Rev. Stat. 1971, ch. 38, par. 11—3. Accordingly, the sentence for deviate sexual assault is so modified.

In light of the modified sentence for deviate sexual assault and the 25 to 50 year sentence for rape, we turn next to defendant’s assertion that the following comment made by the prosecutor to the judge during a side-bar conference was inflammatory and necessarily contributed to the excessive sentence: “I would indicate at this time that Shannon Stephens was viewed by the victims of two other rapes, and both of them identified the defendant. These are separate cases. One has refused to testify.” As earlier mentioned, the statement was made át a time when the defense had interjected into the case the notion that defendant had participated in a lineup but that the complaining witness did not view it. In support of its position, defendant cites People v. Brown, 3 Ill.App.3d 1022, 279 N.E.2d 765, and People v. Riley, 376 Ill. 364, 33 N.E.2d 872. In Brown, the court reversed the judgment of conviction for murder when the prosecutor, during closing argument before a jury, linked the defendant to an unrelated crime of robbery. Brown is inapposite here in that the present statement was made outside the presence of the jury, and therefore, in no way contributed to defendant’s judgment of conviction.

In Riley, after defendants had pleaded guilty to murder, the prosecutor, at the pre-sentencing hearing, read into the record defendant’s previous arrests which were not followed by convictions. Defendant refers us to pages 367-68 where the Illinois Supreme Court, in admonishing the prosecutor’s misconduct, stated:

“It was unnecessary and unfair on the part of the prosecutor to include these immaterial matters and an error on his part which might very easily bring about a reversal of the judgment in some cases. On a hearing of this kind the prosecutor is under both a legal and moral duty not to offer anything for the consideration of the trial judge which may be of doubtful competency and materiality.”

However, as not pointed out by defendant, the court stated that the true inquiry was whether the defendants had been prejudiced by the error, and in affirming the sentence, stated that “[i]t would be a reflection on the fairness and judgment of the trial court to assume * * * [that the evidence of inadmissible prior arrests] could have tipped the scales against these defendants or seriously impaired their standing before him.” (376 Ill. at 373.) The proposition for which defendant’s case stands is that absent an affirmative showing to the contrary, the trial judge is presumed to disregard any incompetent evidence when determining the degree of punishment. People v. Fuca, 43 Ill.2d 182, 251 N.E.2d 239; People v. Drewniak, 105 Ill.App.2d 37, 245 N.E.2d 102.

As applied to the present case, the record reveals that the prosecutor made no reference to the other lineup identifications during the hearing on aggravation and mitigation, nor did the trial judge make any statement from which it could be inferred that tire sentence was influenced by the unrelated lineup identifications. Under these circumstances, defendant’s assertion is mere conjecture finding no support in the record and, therefore, fails to overcome tire presumption.

Based upon defendant’s youth and lack of prior conviction, defendant questions the severity of tire sentence, arguing that the 25 to 50 year sentence clearly discourages any hopes of rehabilitation. Where it is contended that the punishment imposed in a particular case is excessive, though within the limits prescribed by the legislature, a reviewing court should not disturb the sentence unless it clearly appears that the penalty constitutes a great departure from the fundamental spirit and purpose of the law. (People v. Smtih, 14 Ill.2d 95, 150 N.E.2d 815.) Although reviewing courts have the power to reduce sentences imposed by trial courts where circumstances warrant, such authority should be applied with considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals. (People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673.) Except as previously modified, the nature and the circumstances of the crimes perpetrated upon this innocent young school girl demonstrate to this court that no useful purpose would be served by disturbing the sentences imposed by the trial court. People v. Heard, 48 Ill.2d 356, 270 N.E.2d 18; People v. Johnson, 8 Ill.App.3d 457, 289 N.E.2d 722.

Accordingly, the judgments of conviction are affirmed; the sentence for rape is affirmed; and the sentence for deviate sexual assault is modified.

Judgments affirmed as modified.

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

       Ill. Rev. Stat. 1971, ch. 110A, par. 412 provides:
      “412. (Supreme Conurt Rule 412). Disclosure to Accused:
      (a) Except as is otherwise provided in these rules as to matters not subject to disclosure and protective orders, the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
      (ii) any written or recorded statements and the substance of any oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgement of such statements; * *

       The testimony was elicited from an investigating officer by defense counsel. The witness and counsel were admonished by the court to confine the testimony to the present case.

         In fact, when the assistant State’s Attorney made the remark at the side-bar conference, the trial court reprimanded him and the court manifested its dismay,


source: Caselaw Access Project

license: Public Domain

text:
    George Lavin, Plaintiff-Appellee, v. The Civil Service Commission et al., Defendants-Appellants.
    (No. 57584;
    First District (2nd Division)
    April 2, 1974.

      William J. Scott, Attorney General, of Chicago (Paul J. Bargiel, Assistant Attorney General, of counsel), for appellants.
    Richard F. McPartlin, of Chicago, for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

This action was brought under the Administrative Review Act to review an order of the Civil Service Commission approving the discharge of plaintiff as a safety inspector for the Division of Safety Inspection & Education, Department of Labor (hereafter the Department). The Circuit Court of Cook County reversed the order of the Commission, and defendants have taken this appeal. The issues presented for review are: (1) whether plaintiff received a fair hearing before the Commission; (2) whether the finding of the Commission, that plaintiff failed to leave inspection forms at five Chicago factories and thereby violated Department procedures, was against the manifest weight of the evidence; and (3) whether the trial judge reversed the order of the Commission without affording defendants an opportunity to be heard in argument.

On April 8, 1971, the Department initiated a discharge proceeding against plaintiff, charging him with failure to comply with the procedure of the Department by not submitting his inspection forms to the individual companies after his inspections, and with falsifying his reports concerning those inspections. Violations with regard to inspections at 10 companies were listed, and the last charge stated that plaintiff had been suspended for 29 days in August of 1967 for the same reasons.

At the hearing on June 10, 1971, the Department amended the charges by striking violations concerning four of the companies, and the hearing officer, on plaintiff’s motion, struck the charge relating to the 1967 suspension, but granted the Department leave to introduce into evidence the record of the suspension as a consideration regarding the action that would be taken in the event plaintiff was found guilty of the charges. Plaintiff agreed to the foregoing.

The Department then immediately called plaintiff as an adverse witness. Plaintiff’s counsel objected on the grounds that the Commission had not authorized the implementation of a rule similar to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 60), and that plaintiff had a right not to testify against himself. The hearing officer reserved his ruling on the objections raised and required plaintiff to testify. Plaintiff then testified that the last time he visited any of the plants named in the charges for the purpose of inspection was at least a month before the hearing. Counsel for defendants, an assistant Attorney General, was sworn in as a rebuttal witness over plaintiffs objection, and testified that he saw plaintiff at Acme Frozen Food Co., one of the plants mentioned in the charges, the day before the hearing.

Walter Kiltz, the chief state factory inspector, testified that he is plaintiff’s supervisor. He stated that the duties of a factory inspector are to go into factories, make inspections and note any violations of the Health & Safety Act. The general procedure is for the inspector to contact a person at the plant, have that person or someone else accompany him during the inspection, discuss the violations noted on the inspection form, and ask for compliance before the violation form is signed. The inspector should then leave the original violation form at the factory and forward two copies to the Department. There is no written rule or regulation requiring the signatures of persons from the factories, but the obtaining of such signatures has been a policy and practice of the Department, and inspectors are informed that the violation form should be so signed. This general procedure was discussed at a monthly meeting of all inspectors, and plaintiff was present at the meeting. Kiltz also testified that plaintiff had been suspended for 29 days in 1967 for failing to submit violation forms to the factories inspected, and for falsifying his reports to the Department. A record of this disciplinary action, and copies of violation forms for the six companies mentioned in the current charges were introduced into evidence.

Evidence was presented as to the charges concerning each of the six companies. Plaintiff then testified as to his visit to each company. For the purpose of clarity, we will recite the evidence as to each charge. Testimony regarding falsification will be omitted since the hearing officer found plaintiff not guilty of falsification, and this finding is not before us for review. In addition, the hearing officer found that the charge with regard to one of the companies, Acme Frozen Food Co., was not supported by the evidence.

Henry Traum of Traum’s Auto Body Shop & Repairs testified that he recognized his signature on a copy of a violation form. He stated that plaintiff was at his shop on February 23, 1971, but that he did not accompany plaintiff on the inspection, and that he signed a blank violation form before any violations were noted. Plaintiff did not leave the violation form with him, and he did not have a copy at his office. He employed only two full-time employees and one part-time employee other than himself. He did not think to look for the violation form after plaintiff departed and did not see it.

Plaintiff testified that following his inspection he placed the form on Traum’s desk in Traum’s office. The factory is small, and the office was located only 35 to 50 feet from where Traum was standing at that time. Plaintiff waved to Traum who was about 35 to 50 feet away and advised him that he was leaving the form on his desk and then departed.

Vincent Cherry, superintendent of Vischer Products, identified his signature on the violation form shown to him. He testified that he accompanied plaintiff on the inspection tour of the factory on March 5, 1971, and, when the inspection was completed, he signed the violation form. He accompanied plaintiff to the office and then reentered the plant. Plaintiff did not leave the form with him; but he did not look around the office to see whether the form was left there. To his knowledge, he never saw a violation form in the office.

Plaintiff testified that Cherry signed a blank form and accompanied him for part of the inspection, and then was called away. The company was moving equipment, and the factory was in disarray at the time of the inspection. He completed the form while at the plant, and left it on the left hand ledge of a work bench located near the entrance of the factory.

John Hahn, owner of the Usako Motor Service Co., testified that his signature appears on the factory inspection form shown to him, and that he recognized plaintiff as the person who inspected his plant on February 23, 1971. He accompanied plaintiff through his plant, and signed the violation form. The form was not left with him at the time of the inspection. However, on June 6, 1971, someone put a copy of the form on his desk. Hahn testified that he was sure the form was not put on his desk before June 6. On cross-examination Hahn testified that he rented one-half of the building space to a transmission repair company; he employed three other workers; and he was busy with customers at the time of the inspection.

Plaintiff testified that the factory was “messy” when he made his inspection, and that he did not know that two different companies did business there. He began the inspection with Hahn, but before it was completed, Hahn got in a car and drove away. The plant had two offices with two desks in each office and the offices were very “messy.” Plaintiff completed the violation form and left it with an elderly Japanese person.

Alex Wolf, general manager of the building in which Hertzberg & Sons was located, identified his signature on the inspection form. On February 24, 1971, he and plaintiff began the inspection, and, approximately halfway through the tour, plaintiff asked Wolf to sign the form. Plaintiff told him that he would either leave the sheet in the office or mail it to him. Wolf never received the violation form. Wolf testified that other men from the Department of Labor had inspected his premises, and that the usual procedure was that the inspectors would complete the form and leave it or mail it to him.

Plaintiff testified that Wolf signed the form before they began the inspection. Wolf remained with him throughout the inspection, but left before plaintiff completed the form. Plaintiff then left it with a receptionist in the office, and told her he was leaving it for Wolf. There were three girls in the office, but plaintiff did not know the name of the receptionist.

Nola Smith, personnel manager of Alto Manufacturing Co., testified that plaintiff was in her office on September 14, 1970, but made no inspection. Plaintiff asked questions and advised her that there were no violations. She then signed a blank violation form. The form was not left with her, and she never received it. Her office was near the door, and plaintiff came in that door, never entered the plant and left by the same door. A maintenance man was standing near the door at the time of plaintiffs visit. The hearing officer permitted her to testify that plaintiff and a companion visited her again approximately 2 weeks before the hearing, and requested her to testify that the violation form might have been left with someone else at the plant, and that it could have been left with the maintenance man. She stated to plaintiff that she was sure the form was not left with anyone.

Plaintiff testified that he inspected the Alto Manufacturing Co. on September 14, 1970. He did not make the inspection tour with Smith, but with a “big, Polish fellow.” Plaintiff stated that Smith was in error in testifying that he never left the office. Plaintiff left the violation form with the man who took him through the plant.

In his testimony plaintiff further stated that in his 14 years with the Department he “never heard them instructions” that one of the Department’s policies was that an inspector was to be accompanied on his inspection tour by someone from the factory. Plaintiff acknowledged on cross-examination that he was aware that he had been suspended in 1967 for failing to leave violation forms at the plants he inspected.

A character witness for plaintiff, Louis Cohen, testified that he was acquainted with plaintiff’s reputation in the community for truth and veracity, and that plaintiff’s reputation was good.

At the close of the evidence, the hearing officer allowed into evidence plaintiff’s earlier testimony as an adverse witness in rebuttal to plaintiff’s reputation witness.

On July 9, 1971, the hearing officer submitted his findings to the Commission. Initially he found that the Department’s policy governing factory inspection forms was “not entirely clear.” However, at the very least, the procedure to be followed was that the form was to be left with someone at the factory.

With regard to the five charges involving Traum Auto Body, Vischer Products Co., Usako Auto Body, E. Hertzberg & Sons, and Alto Manufacturing Co., the hearing officer found that all of the witnesses, who were employed by the companies in positions of authority, testified that they did not receive copies of the inspection reports. The inspections of four of the five companies had been made within a period of 2 days to 2 weeks. The hearing officer found it incredible that “all of these firms, within such a relatively short period of time * * # could have misplaced a document which cites them for violations of public law.” The hearing officer particularly cited the case of Alto Manufacturing Co. where the witness Smith testified that plaintiff never entered the factory. Plaintiff’s version with respect to the five inspections was found “to be incredible.” Accordingly, the hearing officer found that plaintiff failed to leave copies of his inspection reports with the five companies in violation of the Department’s procedures.

The hearing officer also concluded that the evidence supported a finding that plaintiff and a companion had confronted witnesses and advised them that they need not respond to the Commission’s subpoenas. He stated that “this is an extremely abhorrant [sic] practice * * *. Be-

sides being in violation of the law, this practice can only have the effect of making Commission hearings ineffective in discovering tire truth.”

Finally, the hearing officer recommended discharge as the appropriate action on the basis of the evidence supporting a finding that plaintiff had failed to submit violation forms to the companies, and on the basis of the prior suspension which indicated the “seriousness the Department places upon the rule” and plaintiff’s knowledge of that rule.

On August 11, 1971, the Commission adopted the findings and recommendation of the hearing officer. On May 29, 1972, plaintiff appeared in the Circuit Court in an administrative review proceeding. The trial judge stated that he had read “the file and the action,” and that plaintiff had not been afforded a fair and impartial trial. The following colloquy ensued:

“Court: You called him as an adverse witness and the first thing you do, in order to prejudice the case, you ask him about some case where he was suspended for 29 days after 18 years of service * * *. Then he went out and talked to witnesses and then you show that this man—there is nothing wrong that this man went out and talked to witnesses. * * *. You started out by calling him as an adverse witness. * * *
You asked him everything but the pertinent things about the case and then you went along trying to prove it in a negative way # # *
I mean, they’re all negative. He testified he told you'what he did. * * * All right. It is reversed. * * *
Counsel for defendant: Is your honor denying me the right to make at least an argument before you make your judgment?
Court: In reading the record the argument is made. I think it was unfair, it was prejudice. You didn’t give him a fair and impartial hearing. * * * I will reverse it. * * *”

It is well established that a hearing before an administrative agency should be an investigatory proceeding instituted for the purpose of ascertaining and making findings of fact. (Rutledge v. Department of Registration and Education, 77 Ill.App.2d 103, 222 N.E.2d 195.) The hearing should reasonably adhere to procedures ordinarily followed in controverted matters. (Gigger v. Board of Fire and Police Commissioners, 23 Ill.App.2d 433, 163 N.E.2d 541.) Due process requires a definite, charge, adequate notice and a full, fair and impartial hearing. (Smith v. Department of Registration and Education, 412 Ill. 332, 106 N.E.2d 722.) The record must show an impartial inquiry into the facts, and it should never appear that the proceedings were aimed at proving the guilt of plaintiff. Rutledge v. Department of Registration and Education, supra.

The findings of the administrative agency on questions of fact are prima facie correct (Ill. Rev, Stat. 1971, ch. 110, par. 274); they may be reviewed only to determine if they are supported by the evidence. (Smith v. Department of Registration and Education, supra; Zinser v. Board of Fire and Police Commissioners, 28 Ill.App.2d 435, 172 N.E.2d 33.) It is immaterial that a trial court or this court would reach a different conclusion based upon the evidence. Bruno v. Civil Service Com., 38 Ill.App.2d 100, 186 N.E.2d 108.

Initially, we will consider defendant’s contention that plaintiff was afforded a full, fair and • impartial hearing. The record indicates that plaintiff was adequately notified of the charges. The comments of the trial judge, however, indicate that plaintiff was prejudiced because evidence was introduced concerning: (1) plaintiff’s prior suspension; (2) plaintiff’s conversations with witnesses prior to the hearing; and (3) the testimony of plaintiff as an adverse witness when the hearing commenced.

It is clear from the hearing officer’s action striking the charge based upon plaintiff’s suspension, from the hearing officer’s comments during the course of the hearing, and from the findings, that the 1967 suspension was not a basis for determining plaintiff’s guilt as to the charge of failing to leave inspection forms at the factories. The suspension was introduced into evidence to show plaintiffs knowledge of the Department’s policy and to support the recommendation as to the appropriate action to be taken. We do not find that plaintiff was unduly prejudiced by evidence of the prior suspension.

Two witnesses who testified at the hearing related conversations with plaintiff which occurred after the charges were filed. One witness testified that plaintiff fold him that he need not appear at the hearing. The other witness, Nola Smith, testified that plaintiff and a companion told the witness that she need not appear at the hearing and that she could testify that the form might have been left with another person at the factory, perhaps the maintenance man. The said testimony of the former witness was stricken from the record. We recognize that the said testimony of the latter witness (Nola Smith) was irrelevant to the substance of the charges against plaintiff. However, it was relevant to the issue of plaintiffs credibility in his testimony as to those charges. Therefore, this testimony regarding plaintiff’s action prior to the hearing, even though it may also have been proof of a violation of a criminal statute, was competent and admissible evidence which could properly be considered by the Commission in determining plaintiffs credibility. In any event, the findings of the hearing officer merely refer to plaintiffs action as an “abhorrant [sic] practice.”

Plaintiff contended in his complaint for administrative review that his discharge was based upon the bearing officer’s conclusion that he had violated a criminal statute by contacting witnesses. Plaintiff contends that he was denied a fair hearing because he was not informed of this charge prior to the hearing. The record does not reflect that the findings and recommendation of the Commission were based upon plaintiffs conduct after the charges were filed against him. A memorandum to the Commission from the hearing officer dated July 27, 1971, reinforces our conclusion:

'If the Commission decides to take action in this matter there are, I believe two alternatives. The first course of action is that the Commission may turn the record over to the Cook County State’s Attorney for criminal prosecution. * * * The second course of action is that the Commissioin may request the Department of Labor and the Department of Personnel to bring further charges against the individual, based upon his conduct as shown in his record. The second course of action would necessitate another hearing * ®

The cases cited by plaintiff, Cartan v. Gregory, 329 Ill.App. 307, 68 N.E.2d 193, and In re Buffalo, 390 U.S. 544, are totally inapposite to the situation in the case at bar.

Finally, we must consider the procedure of calling plaintiff as an adverse witness prior to the introduction of any other evidence. The testimony of plaintiff regarding his last visit to any of the companies, and the testimony of the assistant Attorney General “in rebuttal” were designed to “shed important light on the nature of the proceedings.” Plaintiff’s counsel objected on the grounds that the hearing officer had no authority to implement a rule similar to section 60 of the Civil Practice Act.

The Civil Service Commission is empowered to provide rules to carry out its powers and duties. (Ill. Rev, Stat. 1971, ch. 127, par. 63bll0 (11).) Defendant contends that the calling of a party as an adverse witness is a practice which has always been discretionary with the hearing officer. However, nowhere in its brief does defendant support this contention. We are of the opinion that an administrative agency must act within the rules and regulations which it has enacted.

Defendant argues that, in any event, the error in calling plaintiff to testify did not result in substantial injustice. Defendant’s attempt to “shed important light on the nature of the proceedings” must be interpreted as an attempt to impeach the credibility of plaintiff before any testimony was taken. After all the evidence was heard, the hearing officer allowed this testimony into evidence as rebuttal to plaintiff’s reputation witness— a much more limited purpose. The operative findings in this case, on the other hand, are based upon the credibility of testimony regarding plaintiffs leaving inspection forms at each of the factories. Therefore, we are constrained to agree that the procedure did not prejudice plaintiff. (Ill. Rev. Stat. 1971, ch. 110, par. 275(2).) Although we conclude that plaintiff was afforded a fair hearing, we condemn the conduct of the Assistant Attorney General. While acting as counsel for the Department of Labor, a public body, he abandoned his role as advocate and became a witness for the party he was representing without withdrawing from the case. This practice of acting as both advocate and witness has been consistently frowned upon and discouraged by the legal profession. (See Code of Professional Responsibility and Cannons of Ethics, American Bar Association, Cannon 5, E-C 9; Jonas v. Meyers, 410 Ill. 213, 101 N.E.2d 509; Cannella v. Cannella, 132 Ill.App.2d 889, 270 N.E.2d 114.) In the instant case, this conduct was totally unnecessary and inexcusable.

Based upon the trial court’s comments that the Department endeavored to prove its case by negative testimony, and upon the court’s reversal of the cause, we assume that the trial court found the findings of the Commission to be contrary to the manifest weight of the evidence. We therefore must also review the findings upon which plaintiff’s discharge was based.

The question of fact before the hearing officer was whether plaintiff had left inspection forms with the companies he visited. The persons at the companies who signed the forms testified that plaintiff did not leave the forms with them, nor had they seen the forms in their offices. (1) Traum testified that he did not think to look for the form, but did not see it in his office. Traum did not testify that plaintiff waved to him that he was leaving the form in Traum’s office. (2) Cherry testified that he, too, did not search the office, but to his knowledge he never saw the form. (3) Hahn testified that the form was not left on his desk after the inspection or before June 6, 1971. (4) Wolf testified that plaintiff told him he would leave the form in the office or mail it to him. (5) Smith testified that plaintiff remained in the office with her during his entire visit, and did not leave the form with her.

Plaintiff, on the other hand, testified that he left the forms (1) on a desk; (2) on a work bench; (3) with' an elderly Japanese; (4) with a receptionist; and (5) with a “big, Polish fellow.”

On the basis of this conflicting evidence, the hearing officer found plaintiff’s testimony to be incredible, especially in light of the fact that four of the five inspections were made within a period of 2 days to 2 weeks. We cannot conclude that this finding is contrary to the manifest weight of the evidence. We do not agree with the trial court’s comment that the Department proved its case by negative testimony; we also do not agree with the trial courts intimation that plaintiffs testimony was positive and. credible. The charge of failure to leave the forms at the companies inspected could only be proved by testimony that the forms were not received by persons at the companies. We are aware that two of the witnesses testified that they did not search for the forms, but we cannot say that the evidence does not support the findings in this case. We note that plaintiffs testimony is hardly positive and certain.

The cases relied upon by plaintiff are inapposite. In Deal v. Police Board, 3 Ill.App.3d 622, 279 N.E.2d 492, plaintiff was charged with leaving her apartment after calling in sick. The only incriminating evidence adduced at the hearing was the testimony of a police officer who went to plaintiffs apartment, rang the doorbell and received no answer. Thereafter, during a period of 3 hours, he attempted to telephone her and received no answer. On administrative review the court decided that that negative evidence alone did not warrant a finding that plaintiff was not at home. However, the fact that plaintiff had called in sick corroborated her uncontradicted testimony that she had been under heavy sedation and did not hear the doorbell or the telephone.

The case at bar is easily distinguishable from Deal. Here, a number of witnesses testified that no forms were left at any of the companies within a short period of time. In addition, plaintiffs version of his visits is uncorroborated by the record. Compare Drezner v. Civil Service Com., 398 Ill. 219, 75 N.E.2d 303; Jordan v. Civil Service Com., 4 Ill.App.3d 741, 281 N.E.2d 687.

Finally, we must comment upon the failure of the trial court to allow defendant to argue at the hearing on administrative review. In Drezner v. Civil Service Com., supra, the trial court perfunctorily affirmed the decision of the Commission without allowing plaintiff an opportunity to argue. The court stated that reversible error is committed by not reviewing the record thoroughly prior to making a decision. (Accord, Lion Specialty & Properties, Inc. v. City of Chicago Zoning Board of Appeals, 107 Ill.App.2d 354, 247 N.E.2d 30.) In Drezner and Lion, as in the present case, the trial courts had read the records; however, the decisions indicate that a trial court has not satisfied its duties in administrative review actions by merely reading the record. We believe that defendants in administrative review actions, as well as plaintiffs, are entitled to full, fair and independent administrative review hearings. We agree with the court in Lion that “the duty of a trial court to conduct a full and fair hearing is independent of the persuasive burden necessary to sustain the action of the administrative agency.” 107 Ill.App.2d 354, 362.

For the reasons stated herein the judgment of the trial court reversing the decision of the Civil Service Commission is reversed, and thus the Order of the Civil Service Commission is reinstated.

Reversed.

HAYES, P. J., and DOWNING, J., concur.

       Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.

       Subsequent to the hearing in this case, the Civil Service Commission enacted a rule permitting the examination of an adverse party.

      The Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 274) provides: “Every action to review any final administrative decision shall be heard and determined by the court with all convenient speed.”


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Peter Johnson, Defendant-Appellant.
    (No. 58897;
    First District (2nd Division)
    April 2, 1974.
    LEIGHTON, J., took no part.
    James J. Doherty, Public Defender, of Chicago (Leonard V. Solomon, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Opinion by Mr. JUSTICE DOWNING.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alexander Bland, Defendant-Appellant.
    (No. 59200;
    First District (2nd Division)
    April 2, 1974.
    James J. Doherty, Public Defender, of Chicago (Thomas F. Finegan and John M. Kalnins, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by Mr. JUSTICE DOWNING.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leroy Whitley et al., Defendants-Appellants.
    (No. 58228;
    First District (2nd Division)
    April 9, 1974.

      James J. Doherty, Public Defender, of Chicago (Suzanne M. Xinos, Assistant Public Defender, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick Driscoll and Dennis O’Hara, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Leroy Whitley and Edward Thompson were indicted for attempt murder, armed robbery and two counts of aggravated battery. After a jury trial, they were acquitted of the attempt murder charge, but convicted of armed robbery and two counts of aggravated battery. Each defendant received concurrent sentences of 15 to 30 years for armed robbery, 4 to 5 years for one count of aggravated battery employing the use of a deadly weapon, and 8 to 10 years for the second count of aggravated battery causing great bodily harm. The State confesses error in defendants’ convictions on one count of aggravated battery. Accordingly, the convictions and sentences for aggravated battery employing the use of a deadly weapon are reversed. Defendants, in their appeals, raise the Mowing alternative contentions: that the evidence failed to sustain the convictions for armed robbery; that the multiple convictions of armed robbery and aggravated battery were improper in that both convictions arose from a single transaction; that they were denied a fair trial by the introduction into evidence of unrelated crimes; and that the minimum sentences imposed should be reduced in conformity with the Unified Code of Corrections. The facts follow.

On February 5, 1972, at approximately 10 P.M., Mr. Eddie Kojimoto, the complaining witness, arrived at his apartment at 5510 N. Winthrop in Chicago. After entering his apartment, complainant undressed and hung his pants, containing a wallet and $65, on his bathroom door. He fell asleep while watching television and for a period of approximately 27 hours, although awaking periodically, remained in bed. On February 7,1972, at approximately 1:30 A.M., complainant was aroused by repeated knocking on his front door. Glancing toward the door of his apartment, he observed one of the defendants peering into the apartment through an opening in the door made possible by the defendant’s removal of a ventilator cover. One of the defendants stated to complainant that either he open the door or they would “break in.” Mr. Kojimoto, who normally would not respond to knocking on his door, became frightened at the sight of defendants at his door, arose from his bed and allowed the defendants to gain entrance. As they entered the apartment one of the defendants went into the washroom where complainant had previously hung his pants, while the other kept complainant under surveillance.

After a short stay in the washroom one of the defendants re-emerged and both defendants then began making demands for money. Subsequent to informing defendants that the only money he had in his possession was located in the pants hanging on the bathroom door, complainant retrieved his wallet to obtain the $65 he had placed in it prior to going to bed. The wallet was found to be empty of cash. One of the defendants, apparently realizing that Mr. Kojimoto was not fluent in the English language, removed from his own pocket a dollar bill and stated: “I want the green stuff like this.” Although complainant then searched his apartment for money to give to defendants, he found none, and offered in its stead a money order. Defendants took the money order and then realizing that they would be unable to cash it without proper identification, tore it into small pieces and threw it on the floor. At this point defendants attacked complainant, repeatedly stabbing him with a knife they had brought with them and also with a steak knife they had obtained from complainant’s kitchen. Finally, defendants bound complainant hand and foot and beat him to unconsciousness using a hammer and their fists. The defendants had been in the apartment for about an hour. After regaining consciousness, complainant rolled off the bed and worked his way down the hall to a neighbor’s apartment, kicking the door until Albert Tillman answered.

Albeit Tillman and Susan Berkery, who reside in the apartment next to Mr. Kojimoto, testified that at approximately 1:30 A.M. on the night in question, they observed defendants through the open doorway of their apartment and questioned their presence. One defendant asked him if a particular girl lived there while the other knocked at Mr. Kojimoto’s door. Both witnesses then went to sleep until approximately 3 A.M. when they were awakened by Mr. Kojimoto’s banging at their door with his bound feet.

At approximately 12:30 A.M. on the night in question, Richard Tobin, a pizza delivery man, was delivering a pizza to Albert Tillman’s apartment. While waiting in the lobby of the apartment building for Susan Berkery to pick up the order, he noticed the two defendants. After the pizza was delivered, the defendants put a knife to this throat, and took from him $35 in bills and change. One defendant told the other to cut Mr. Tobin, but finally allowed him to leave after admonishing him “not to turn around.”

On February 7, 1972, at 3:25 P.M. after Susan Berkery and Albert Tillman had made photographic identifications of Whitley and Thompson, the Chicago Police Department arrested the defendants at Leland and Winthrop Streets. A search of Whitley yielded $59, including numerous dollar bills.

Photographic and in-court identifications of the defendants were made by Mr. Kojimoto, Albert Tillman, Susan Berkery and Richard Tobin. Susan Berkery and Richard Tobin also made a lineup identification of defendants within approximately 12 hours after the incident.

Both defendants testified and denied participation in the offenses committed against Mr. Kojimoto and Mr. Tobin and further denied having been in the building on the night in question.

Defendant’s initial contention is that the evidence fails to sustain a conviction for armed robbery in that the State’s case did not prove, as charged in the indictment, a taking of currency from complainant. We disagree.

It is well-settled that circumstantial evidence may justify a conviction when considered with all the evidence in arriving at a verdict. (People v. Schullo, 360 Ill. 580, 196 N.E. 723; People v. De Mario, 112 Ill.App.2d 175, 251 N.E.2d 267.) The fact that the circumstantial evidence relied upon must not give rise to any reasonable hypothesis under which the defendants could be innocent of the crime charged, does not mean that the trier of fact is required to search out a series of potential explanations compatible with innocence, and elevate them to the status of reasonable doubt. People v. Huff, 29 Ill.2d 315, 194 N.E.2d 230.

In the instant case, complainant testified that prior to the entrance by the defendants into his apartment, he had $65 in a billfold in a pair of pants hung on his washroom door. One of the defendants entered the bathroom, and after his exit, complainant discovered that the $65 was missing. No testimony was elicited offering an explanation for the disappearance of the $65. Absent a credible accounting for the missing money, the reasonable inference drawn from the above circumstances supports the jury’s conclusion that the defendants had taken the money.

Defendants alternatively contend that the evidence fails to show that the taking was done with force or intimidation as required by statute. (Ill. Rev. Stat. 1971, ch. 38, pars. 18—1, 18—2.) Again, we are not so persuaded.

The requirement that the taking must be “by the use of force or threatening the imminent use of force” is satisfied if the fear of the alleged victim was of such nature as in reason and common experience is likely to induce a person to part with his property for the sake of his person. (Steward v. People, 224 Ill. 434, 79 N.E. 636; People v. Carpenter, 71 Ill.App.2d 137, 217 N.E.2d 337.) The cause which gives rise to the fear must, of cotuse, precede or be contemporaneous with the taking. (People v. Jones, 290 Ill. 603, 125 N.E. 256; see People v. Chambliss, 69 Ill.App.2d 459, 217 N.E.2d 422.) Here, defendants had already removed a portion of the door when they demanded that either complainant open the door or they would “break in.” Apart from the victim’s testimony that he was “scared,” the fact that complainant complied with the assailants’ demands is itself indicative of fear when coupled with the words used by the assailants which were obviously calculated to effect that result. Under these facts, the verbal threat made by defendants was sufficient to sustain a finding that the free exercise of complainant’s will had been suspended.

Defendants next maintain that the court erred in imposing sentences for both armed robbery and aggravated battery since they arose from the same conduct. If the offenses charged resulted from the same conduct, only one sentence may be imposed. (Ill. Rev. Stat. 1971, ch. 38, par. 1—7(m); Committee Comments, S.H.A. (1972), ,ch. 38, par. 1— 7(m).) The term “conduct” is defined as “an act or a series of acts and the accompanying mental state.” (Ill. Rev. Stat. 1971, ch. 38, par. 2—4.) In resolving defendants’ complaint of multiple sentences for armed robbery and aggravated battery, we are guided by the language in People v. Ashford, 17 Ill.App.3d 592, 308 N.E.2d 271.

“If a battery takes place in the course of a robbery the question arises whether this use of force was part of the robbery or separate from it. Often, the distinction is not easily made. If the battery immediately precedes the robbery it is normally held to be a component of the robbery (e.g. People v. Randolph (1972), 4 Ill.App.3d 277, 280 N.E.2d 774); if it follows the robbery it is usually regarded as a separate offense (e.g. People v. Baker (1969), 114 Ill.App.2d 450, 252 N.E.2d 693).” 17 Ill.App.3d at 597.

Looking to the present case, we conclude that defendants’ conduct constituted armed robbery and one separate and distinct offense of aggravated battery. Defendants had completed the offense of armed robbery when, armed with a dangerous weapon, they threatened the imminent use of force followed by the taking of the $65. It was only subsequent to the completion of this offense, and at a time when defendants had ascertained that complainant had no further cash on his person or in his apartment, that the merciless beating and stabbing occurred. Indeed, defendants concede that their ensuing behavior, not being contemporaneous with the taking, could not exemplify the element of force in the armed robbery charge. This subsequent use of force, being independently motivated, was accompanied by a different mental state from the initial threat of force, and consequently, did not constitute the same “conduct” within the purview of section 2—4 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 2—4).

Defendants next assign as error the admission into evidence of an unrelated crime. Specifically, they object to the testimony of Richard Tobin which revealed that the witness had been robbed at knifepoint, in the same building as the complainant, approximately an hour before the robbery of Mr. Kojimoto.

The general rule is that evidence of other crimes committed by a defendant is inadmissible when independent of or disconnected from the crime with which he is charged. (People v. Cage, 34 Ill.2d 530, 216 N.E.2d 805.) But a corollary of the rule is that evidence, relevant to the main issue, which serves to place a defendant in proximity to the time and place, aids or establishes identity, and tends to prove design, motive or knowledge, is admissible. (People v. Botulinski, 392 Ill. 212, 64 N.E.2d 486.) Resolution of the conflict between the rule and corollary depends on whether the evidence of other crimes is so closely connected with the main issue that it tends to prove the accused guUty of the crime for which he is being tried. People v. Tranouoski, 20 Ill.2d 11,169 N.E.2d 347.

The present case faUs within the corollary rule. The testimony of Richard Tobin tends not only to show defendants’ close proximity of time and place to the scene of the crime, but also tends to show the simüarity in the perpetration of the crimes. People v. Armstrong, 41 Ill.2d 390, 243 N.E.2d 825; People v. Tranowski, supra; see also, People v. Blakely, 8 Ill.App.3d 78, 289 N.E,2d 273.

Defendants urge that our decision be guided by People v. Fuerback, 66 Ill.App.2d 452, 214 N.E.2d 330, and People v. Butler, 133 Ill.App.2d 299, 273 N.E.2d 37. However, both cases are distinguishable in that evidence of other crimes was introduced in rebuttal of defendant’s alibi and not as direct proof to establish proximity, identity, intent, motive, or a common scheme or design. (People v. Norfleet, 4 Ill.App.3d 758, 281 N.E.2d 761.) In the instant case the evidence was properly admitted as a corollary to the general exclusionary rule.

Defendants lastly contend that their sentences should be reduced in accordance with the provisions of the Unified Code of Corrections. (People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.) Defendants were sentenced to a term of 15 to 30 years on the charge of armed robbery, Armed robbery is a Class 1 felony (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 18—2(b)) which requires a minimum term of 4 years unless the court “having regard to the nature and character of the defendant, sets a higher minimum term.” (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005— 8—1(c) (2)). The minimum term imposed was' thus allowable under the Code, and in light of the circumstances of the robbery, the severe injuries suffered by complainant, and the prior criminal records of both defendants, we decline disturbing the sentences imposed by the trial court.

We have, as previously noted, reversed the convictions for aggravated battery employing the use of a deadly weapon. The remaining sentences for aggravated battery causing great bodily harm, a Class 3 felony (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 12—4(d), must be reduced in accordance with section 5—8—1(c) (4) of the Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—8—1(c)(4)). Accordingly, the minimum term of 8 years is reduced to one-third of 10 years or 3 years and 4 months.

For the foregoing reasons the judgments of conviction and sentences for armed robbery are affirmed; the judgments for aggravated battery causing great bodily harm are affirmed with the sentences modified; and the judgments of conviction for aggravated battery employing the use of a deadly weapon are reversed.

Affirmed in part; modified in part; reversed in part.

LEIGHTON and DOWNING, JJ., concur.

       In its brief, the State has incorrectly attributed the sentences of 4 to 5 years to the convictions for aggravated battery causing great bodily harm, resulting in the State requesting both the vacature of convictions and the modification of sentences of the same count. A reading of the State’s argument indicates that its intendment was to request a vacature of the lesser-sentenced offenses. We act accordingly.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ebb Spriggs, Jr., Defendant-Appellant.
    (No. 59179;
    First District (2nd Division)
    April 9, 1974.

      DOWNING, J., took no part.
    James J. Doherty, Public Defender, of Chicago (William Lebovitz and Bernard L. Schwartz, Assistant Public Defenders, 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.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Juan Martinez, Defendant-Appellant.
    (No. 56651;
    First District (5th Division)
    April 11, 1974.

      BARRETT, J., took no part.
    David R Landau, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Dennis J. O’Hara, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Opinion by Mr. JUSTICE GOLDBERG.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Earl Hawkins et al., Defendants-Appellants.
    (No. 57047;
    First District (1st Division)
    April 15, 1974.

      EGAN, P. J., concurring in part and dissenting in part.
    James J. Doherty, Public Defender, of Chicago (Suzanne M. Kohut, Assistant Public Defender, of counsel) for appellant Earl Hawkins.
    Edward M. Genson, of Chicago, for appellant Kenneth Birdsong.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by Mr. JUSTICE GOLDBERG.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Ulyssis Floyd, a/k/a Ulysses Floyd, Defendant-Appellee.
    (No. 57808;
    First District (1st Division)
    April 15, 1974.
    BURKE, J., took no part.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Lee T. Hettinger, Assistant State’s Attorneys, of counsel), for the People.
    Charles I. Schwartz, of Chicago, for appellee.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie J. Kelley, Defendant-Appellant.
    (No. 58348;
    First District (1st Division)
    April 15, 1974.
    BURKE, J., took no part.
    Cornelius E. Toole, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State’s Attorney, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jimmy Spencer, a/k/a James Ford, Defendant-Appellant.
    (No. 59154;
    First District (1st Division)
    April 15, 1974.

      James J. Doherty, Public Defender, of Chicago (John M. Kalnins and Thomas F. Finegan, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr. and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by Mr. JUSTICE GOLDBERG.


author: Opinion by Mr. PRESIDING JUSTICE EGAN.

text:
      In re Petition of Charles W. Nixon—(The People of the State of Illinois, Plaintiff-Appellee, v. Milton Golden (Impleaded), Defendant-Appellant. )
    (No. 59256;
    First District (1st Division)
    April 15, 1974.
    Charles W. Nixon, pro se.

    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by Mr. PRESIDING JUSTICE EGAN.


author:
      Mr. JUSTICE RECHENMACHER
      Mr. PRESIDING JUSTICE T. MORAN,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Calvin McKinnie, Defendant-Appellant.
    (No. 72-194;
    Second District
    April 30, 1974.
    T. MORAN, P. J., specially concurring.
    Ralph Ruebner, Deputy Defender, of Elgin (Richard Wilson, Assistant Appellate Defender, of counsel), for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Edward Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

The defendant was convicted of voluntary manslaughter and sentenced to a term in the penitentiary of not less than 8 nor more than 20 years. From this conviction and sentence he appeals on several grounds, which we will consider separately.

The defendant first challenges his conviction on the ground that his defense counsel was incompetent in that he failed to move, prior to or at the trial, for the suppression of a certain statement which the defendant made to the police and which the State used later to impair his credibility.

The circumstances giving rise to this contention are as follows: The defendant was wounded in an incident in which the other person was killed. He was taken to the hospital immediately after the incident for treatment of his wound and during such treatment the doctor administered 75 milligrams of Demerol, a narcotic, and 25 milligrams of Phemergen, a tranquilizer. The doctor testified they were administered simply as a pain killer; further, that the effect of these drugs might last as long as 3 to 4 hours and might have the effect (although it would not necessarily do so) of making the patient sleepy or less alert. Within an hour or two after being treated at the hospital the defendant was taken to the police station where, after the proper Miranda warnings, he gave a statement in writing to the effect that he did not shoot the deceased and, in fact, did not have a gun that night at all. The next day about noon (according to the police testimony) the defendant stated he wanted to clear up some points in connection with his statement of the night before. At that time the defendant made and signed a second statement (again after being warned as to his rights) in which he stated he had, indeed, shot the deceased, but that he had done so in self-defense.

At the trial, the defendant took the stand in his own behalf and after his testimony the State introduced the two inconsistent statements for the purpose of impeaching the defendant’s testimony.

The defendant now contends his attorney should have moved to suppress the first statement as having been made under the influence of drugs' and that his failure to do so amounted to such incompetency as to have deprived defendant of proper representation, thus justifying reversal of his conviction and a new trial.

On this point we note that just prior to trial defendant told the court, in the presence of his attorney and the State’s Attorney, that he had given both statements freely and voluntarily and after being advised of his rights. Also implicit in defendant’s contention that his trial counsel was incompetent in not moving to suppress the first statement is the assumption that, if timely made, the motion to suppress would have been granted. From a review of the record we are of the opinion that the statement was not subject to being suppressed as an involuntary or coerced statement.

A statement or confession, whatever the intended use, is not automatically subject to suppression on the sole ground that a drug has been administered to the defendant making the statement. In order for the confession to be suppressed as being involuntary it must appear by the evidence that the defendant’s “will was overborne”. Reck v. Pate (1961), 367 U.S. 433, 6 L.Ed.2d 948, 81 S.Ct. 1541.

On the basis of testimony of the administering doctor, which is all of the medical testimony available from the record, there is certainly no showing that the drugs administered to the defendant so affected his mental processes as to make his first statement to the police involuntary. Also, based on the testimony of the defendant, the two officers who took the statements, and the doctor, the record reflects that the defendant was reacting and responding in a normal manner just prior to and at the time he made the first statement. Inasmuch as the statement objected to was given after defendant was advised of his rights under Miranda, and was in no way shown to be involuntary, the statement was properly used to impeach his later testimony.

In view of the above, the question of trial counsel’s incompetency is not well taken and we will not pursue it further, except to note (in fairness to defense counsel) that the trial judge in summing up at the end of the trial said, “This case was very well tried, in my opinion, by both sides of the case.”

For the second main point of his brief, the defendant contends that “because defendant acted in self-defense he was not properly proved guilty of voluntary manslaughter beyond a reasonable doubt.” Whether or not the defendant acted in self-defense is a matter for the jury. In People v. Smith (1972), 7 Ill.App.3d 912, 915, the court said:

“The court in People v. Johnson, 108 Ill.App.2d 150, 247 N.E.2d 10, at page 156 said:

‘It is not our function to substitute our judgment for that of the jury since whether a killing was justified under the law of self-defense is a question of fact for the jury [citations] and when, as here the evidence is conflicting, it is the function of the trier of fact to resolve the conflict and determine the credibility of the witnesses. [Citation.]”’

The jury did not find the defendant had acted in self-defense but found him guilty of voluntary manslaughter as charged in the indictment. There is substantial evidence in the record to support the verdict, therefore, we do not agree with defendant’s claim in this regard. We find the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.

The defendant’s next contention is that the trial court erred in allowing non-expert testimony as to the caliber of the gun which fired the shots heard by the testifying witnesses. Under the facts of this case we do not feel the court erred in allowing this testimony to be admitted. The several cases cited by the defendant to support his contention are not apposite. Two of them, People v. Berkman (1923), 307 Ill. 492, 139 N.E. 91, and People v. Fiorita (1930), 339 Ill. 78, 170 N.E. 690, were early ballistics cases where the court felt a proper foundation had not been laid for the expert’s opinion. People v. Parr (1971), 133 Ill.App.2d 82, 272 N.E.2d 712, was an automobile case and was decided on its own particular facts. It has no bearing on the case before us.

The determination of whether a witness is qualified to testify as an expert lies within the discretion of the trial judge. People v. Speck (1968), 41 Ill.2d 177, 242 N.E.2d 208; Phillips v. Shell Oil Co. (1973), 13 Ill.App. 3d 512, 300 N.E,2d 771; Hagerman v. National Food Stores, Inc. (1972), 5 Ill.App.3d 439, 283 N.E.2d 321.

In the case before us, each of the two witnesses whose testimony is objected to on this appeal had considerable practical experience in the military service with various kinds of firearms, including revolvers. Terry Lee Berg had been in the Navy for 4 years and during 3 of those years about once a month had fired a .38 revolver. He also owned and fired his own .38 revolver. He testified he had owned a .22-caliber gun since he was 13 years old and had bought, sold and traded in guns, including .22’s and .38’s and “had been around guns all his life.”

Jack Housewart testified that he had been a Second Class Petty Officer in the Navy during 1955 and 1956 and that he had been classified as an expert on .22 pistols, having fired a .22 in B.OTC about once a week for 3 years and that he was a hunter and had owned and used .22-caliber weapons frequently.

No hypothetical questions were asked of these witnesses. Mr. Berg was asked whether he had an opinion as to whether the shots he heard were from a .38-caliber weapon, to which he replied that he did, because a .22-caliber pistol had a sound similar to a cap pistol, “a real light short sound”, and that a .38-caliber sounded different, and the sound of all five shots he heard were similar to a cap pistol. Mr. Housewart was asked if the shots he heard were, in his opinion, from a .22-caliber weapon and upon this being objected to, was asked, ‘In your opinion, sir, were the shots that you heard of a small caliber or a large caliber?”, to which he replied, “small caliber”.

In view of the practical experience of these two witnesses, it does not appear to have been an abuse of the trial court’s discretion to have allowed the answers to the questions indicated. The experience of both men was considerably above that of the average person in the field of firearms and the opinions given in response to the indicated questions seem to be well within their competence based on their related experiences. We, therefore, cannot agree with the defendant’s contention in this regard.

A further point is made by the defendant with regard to the list of witnesses, containing 67 names, furnished to him by the State, which it is contended was “cumbersome and meaningless”. There is no doubt that failure to provide the names and addresses of State’s witnesses (People v. Glover (1971), 49 Ill.2d 78, 273 N.E.2d 367) or the omission of a number of witnesses not listed at all (People v. Barfield (1965), 65 Ill. App.2d 54, 213 N.E.2d 24) are grounds for reversal but we have not found any case where the listing of all the State’s potential witnesses, even though they were not all called, was held to be ground for reversal. The cases cited by defendant do not so hold, but only indicate the defendant has a right to be informed of the names and addresses of the State’s witnesses and that it is error to allow “surprise” witnesses to testify whose names had been withheld by the State prior to trial. We cannot accept the defendant’s argument that because the list of witnesses contained 67 names that this is tantamount to not furnishing a list at all.

Finally, the defendant contends his sentence is excessive in that he was sentenced to not less than 8 years nor more than 20 years in the penitentiary. Under the Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, sec. 1005—8—1) since the maximum term for voluntary manslaughter is 20 years and the minimum should not be more than one-third of the maximum, he contends the sentence should be 1 to 3 years. The defendant is misreading or misconstruing the statute. It does not provide that the maximum shall not be more than three times the minimum, but that the minimum shall not exceed one-third of the maximum. Since the case had not been finally adjudicated as of January 1, 1973, the minimum sentence should be set at 6 years 8 months. People v. Harvey (1973), 53 Ill.2d 585; People v. Chupich (1973), 53 Ill.2d 572; People v. Smith (1973), 10 Ill.App.3d 501.

For the reasons given above, the conviction is affirmed, the sentence is vacated, and the cause remanded for sentencing pursuant to the provisions of the Unified Code of Corrections.

Judgment affirmed, sentence vacated, cause remanded.

GUILD, J., concurs.

Mr. PRESIDING JUSTICE T. MORAN,

specially concurring:

While I concur in the court’s determination on the first issue, I do not agree with all the rationale supporting that conclusion.

Just prior to opening statements to the jury, this colloquy took place between the court, defendant and his counsel, in the presence of the assistant state’s attorney:

“Mr. Schirger [defendant’s counsel]: Your Honor, I have also filed a motion in this case for the production of two confessions and oral statements.
Mr. McKinnie, the statements which you gave to the police were given as a voluntary act on your part; you were not forced or compelled to give these statements, were you?
Mr. McKinnie: No, I wasn’t.
Mr. Schirger: And you were advised prior to giving these statements of your rights to an attorney?
Mr. McKinnie: Yes.
Mr. Schirger: And you gave these statements to the police?
Mr. McKinnie: Yes, I did.
Mr. Schirger: As a voluntary act on your part?
Mr. McKinnie: Yes, I did.
The Court: I note there has been no motion made or hearing held on the question of suppressing these statements. I take it then that is the reason why you have not done so?
Mr. Schirger: That’s right, your Honor. I have determined not to suppress the confessions and oral- statements because that would frivolous, and under those circumstances I am ready to proceed to trial.”

The substance of this narrative was sufficient to dispose of the issue.

This court’s further rationale in effect states that even if trial counsel had moved to suppress the statements or. had he objected to their admission, it would have been for naught. This conclusion is based, not upon evidence adduced from a motion to suppress (there was none), but from some evidence produced at trial by one side, the State. The voluntariness of the statements was not then in issue. Thus, by extending the rationale, this court is acting in the capacity of a trial court, determining from an inadequate record that the statements were voluntary when the issue properly before us is whether trial counsel was incompetent in not moving to suppress the statements. This, in my opinion, establishes bad precedent.


author: Mr. JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Raymond Darrah et al., Defendants-Appellants.
    (No. 72-199;
    Second District
    April 30, 1974.

      Albert M. Sheppard and Sam Adam, both of Chicago, for appellants.
    William V. Hopf, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant. State’s Attorney, of counsel), for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A bench trial resulted in defendants being found guilty of burglary, possession of burglary tools and theft under $150. On appeal it is contended that the court erred in denying a motion to suppress evidence and that the evidence failed to prove the defendants guilty.

At the hearing on the motion to suppress, one Drew (a tenant of a four-flat apartment building) testified that at approximately 9 P.M., on March 23, 1971, he drove into the parking lot at the rear of his residence. As he stepped from his car, he heard the back door of the building slam, looked up and, from a distance of approximately 60 feet, saw two men exiting. The doorway and parking lot were both lighted. According to Drew’s description, the men were both about 6 feet tall and 25 to 30 years of age; one had his hands in the slash pockets of his gold/yellow windbreaker; the other had dark hair. Standing near his car, the tenant watched the two men walk toward their car (described as a 1969 or 1970 Oldsmobile Toronado with black top and silver/gray bottom), which was backed into a parking space of the residents’ lot of a nearby building. They pulled out of the lot, drove a distance of 300 to 400 feet without headlights, signalled right, then turned on their lights and proceeded down the road. Drew entered the building and, upon looking into the laundry room, noticed that the coin boxes were missing from the coin-operated washer and dryer. He went to his apartment and called the police to report the coin boxes stolen; he gave a description of the two men and the vehicle he had observed. (It was stipulated that at 9:16 P.M. the call and information was received at police headquarters. ) Drew was not asked to identify the defendants at the hearing.

It was stipulated that Officer Smith and another officer received the information and description which Drew reported to the police. By radio, Smith, who was on routine patrol, was advised that the reported vehicle had been sighted headed in his direction. He subsequently sighted a vehicle (which he described as a black-over-gray or black-over-silver, two-door Toronado, an approximate. 1968 modél). and pursued it. The driver of the vehicle responded immediately to Smith’s signal and, at 9:25 P.M., the car was stopped at a location 7/10 of a mile from the scene of the alleged burglary. Immediately upon stopping, the driver left his vehicle, hurried back to the squad car and asked the officer if he was speeding. Without responding to the question, Smith requested the driver to return to his car. The request complied with, Smith approached the vehicle and asked the driver for his license. The license produced bore the name William R. Darrah. (In court, however, Smith identified Palmer as the one whom he referred to as the driver of the vehicle and as the person who handed him the license.) In answer to Smith’s question, the driver stated that they were coming from a pancake house down the road. While standing on the passenger’s side of the vehicle, Smith noticed a number of coins (found to be quarters and dimes) on the floor of that side of the car and saw part of a sock extending from beneath the passenger’s seat. He asked the passenger (whom he identified as Darrah) to step from the car. Smith pulled the sock from, under the seat, found it was adult-sized and filled with quarters and dimes. A further search disclosed a Colt tear-gas pen gun, a pocket knife, two additional socks which contained silver coins, a canvas bag marked U.S. Mint— Denver, two plastic trays for counting and rolling coins and a quantity of coin wrappers for dimes and quarters.

A search of. the car interior conducted approximately 15 minutes later at the police station additionally revealed a Phillips screwdriver, another sock containing coins, a lock cylinder, a pocket knife, a Colt teargas cartridge and another Colt tear-gas pen. Defendant Palmer was found to be carrying three keys suitable for opening the type of lock commonly used on coin-operated washers and dryers.

Three days later, a search, conducted with the benefit of a warrant, revealed 3 small files, 3 screw drivers, 1 pair of long-nosed pliers, 1 %" and 1 ½" drive socket, 10 quarters and 1 dime. Defendants did not give consent to any of the searches.

Forty-one-year-old Darrah testified that he was the owner of the 1968 Toronado (black over Nordic blue), that he had been driving when they were stopped by Smith, that he did not remember what Palmer was wearing at that time nor what he himself was wearing but that he neither wore nor owned a yellow or gold jacket or sweater. Palmer testified that he was a passenger of the vehicle and that he did not recall what he was wearing on that evening.

Based upon the foregoing, the trial court denied the motion to suppress evidence.

When the case came on for trial, the parties stipulated that, except for the testimony of the defendants, the evidence taken at the hearing on the motion to suppress would stand as evidence in the trial. It was further stipulated that one Warden owned the building, the washer and dryer; that coins were missing from the appliances; that the coins found in defendant’s auto had a value of more than $1 but less than $150; that Drew, after calling the police, telephoned the landlord and returned to the laundry room where he noticed the coin boxes had been replaced.

Defendants attack the order denying their motion to suppress on the basis that no probable cause existed for their arrest. A peace officer may arrest without a warrant if he has reasonable grounds to believe the person arrested has committed a crime. (Ill. Rev. Stat. 1969, ch. 38, par. 107—2(c).) The belief may be founded upon hearsay evidence. (People v. Brooks, 13 Ill.App.3d 1003,1006 (1973), appeal denied.) Here, Smith stopped the aforementioned vehicle within 7/10 of a mile from the scene of a crime, 9 minutes after the crime was reported. He knew at that time that coin boxes had been stolen, that two men (as previously described) were reported to be involved and that they were driving an Oldsmobile Toronado (also previously described). The car and its occupants generally fit the descriptions. These circumstances were supplemented by the fact that Smith, from outside the car, observed coins in plain view on the floor of the vehicle. In our opinion, the totality of the facts known to Smith at the time gave him sufficient probable cause to arrest the defendants. People v. Belousek, 110 Ill.App.2d 442, 449 (1969), cert. denied, 397 U.S. 1038, 25 L.Ed.2d 648, 90 S.Ct. 1356.

The remainder of defendants’ argument on this issue pertains to the subsequent search and seizure of articles found in the vehicle both at the scene of the arrest and 15 minutes later at police headquarters. The argument is premised upon a claimed invalid arrest. Having found the arrest to be valid, we additionally find that the two searches were also valid. People v. Canaday, 49 Ill.2d 416, 420-22 (1971).

Defendants contend that the State failed to prove them guilty of the offenses charged in that: (1) the defendants were not identified as the persons seen at the rear of the building; (2) there was no evidence to show that property in their possession at the time of arrest was actuaUy stolen property; (3) there was no evidence that the alleged burglary tools found in defendants’ possession were intended to be used to commit an offense; and (4) evidence failed to ascertain that the building owner had not given permission or consent to the entry.

Defendants are correct in stating that, at trial, they were not identified as the persons whom Drew saw at the scene of the crime. They also correctly point out that the law requires the State to prove beyond a reasonable doubt the identity of the accused as the one who committed the crime charged. (People v. Dante, 35 Ill.2d 538, 540 (1966).) It is well settled, however, that the identity of the accused may be established by circumstantial evidence. (People v. Canaday, 49 Ill.2d 416, 430 (1971); People v. Johnson, 88 Ill.App.2d 265 (1967), appeal denied; People v. Belousek, 110 Ill.App.2d 442 (1969).) In the instant case, the radioed descriptions, the time and place at which defendants were apprehended and the product of the searches, provided substantial circumstantial evidence. Defendants stress that they were found only 7/10 of a mile from the scene of the burglary as late as 25 minutes after Drew saw the two men leave the premises and 9 minutes after the report was received at police headquarters. This, they assert, is inconsistent with the concept of guilty men fleeing from the scene. The situation can be explained, however, by the fact that shortly after Drew reported the coin boxes missing, he discovered that they had been put back into the machines.

As to there being no evidence to show that the coins in defendants’ possession were in fact stolen, the law does not require that, in a burglary prosecution, there be a precise identification of the property taken when the character of that property makes such exact identification difficult. People v. Sellers, 30 Ill.2d 221, 224 (1964); People v. Tolefree, 9 Ill.App.3d 475, 480 (1972); People v. Griffin, 48 Ill.App.2d 148 (1964).

There is no merit to defendants’ claim that there was no evidence to show that any property in their possession was intended to be used to commit a theft. Palmer’s possession of keys for the locks of coin-operated washers and dryers, and proximity to the scene of the just-committed burglary of such appliances, was sufficient to prove specific intent. See, People v. Johnson, 88 Ill.App.2d 265, 280, 283-284.

We also find untenable defendants’ argument that there was no evidence to show that the owner of the building had not given permission or consent to the entry of his building. The elements of unauthorized entry and intent may be proven by inference from the facts. (People v. Patterson, 1 Ill.App.3d 724 (1971).) Here, the owner of the building (and the washer and dryer therein) stipulated that coins were missing from, the machines and it can therefore be inferred that he had not given defendants permission to enter the building for the purpose of committing a theft.

For the foregoing reasons, we affirm the judgment of the trial court.

Judgment affirmed.

GUILD, P. J., and SEIDENFELD, J., concur.