text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George Robbins, Defendant-Appellant.
    (No. 72-248;
    Third District
    July 31, 1974.

      C. Don Weston, of Macomb, for appellant.
    Henry D. Sintzenich, II, State’s Attorney, of Macomb, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

George Robbins was indicted on a charge of burglary. He was arrested in connection with the offense on January 24, 1972, and was held in custody continuously until the date of his trial. He was found guilty by a jury and was sentenced by the Circuit Court of McDonough County to a term of not less than 4 years nor more than 9 years.

On the day before trial was to begin defendant filed a motion requesting discharge under the provisions of section 103 — 5(a) (d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, § 103 — 5(a) (d)) alleging that he had been in custody for 121 days. The motion was denied by the trial court. Defendant contends on appeal that this was in error.

The defendant first appeared in court on March 29, 1972, for arraignment. On that date he asked for and was granted a continuance to April 12, 1972, in order to prepare motions. The State objected, asking for immediate arraignment, but was overruled. The factual situation in this case is similar to that in People v. Gulick, 7 Ill.App.3d 427. It is obvious that a legal impediment to trial existed from March 29, 1972, to April 12, 1972. The prosecution was in no position to demand trial during that period and the period of time contemplated by the 120-day rule then began to run from April 12, 1972. Trial was held well within the 120 days, and the trial court was correct in its ruling. A continuance granted at the request of the defendant is a delay “occasioned by the defendant.” People v. Young, 46 Ill.2d 82, 85.

After laying a foundation for the admission of exhibits the State rested its case without having moved for the introduction of the exhibits into evidence. Immediately thereafter the State moved for their admission. The motion was allowed over objection by the defendant, who now contends this to be reversible error.

Whether either party may introduce evidence that he should have introduced at an earlier stage of trial rests largely in the discretion of the court (People v. Kelly, 378 Ill. 273), and this discretion will not be interfered with except where clear abuse or prejudice to the defendant is shown. (People v. Franceshini, 20 Ill.2d 126.) Defendant has cited People v. Cross, 40 Ill.2d 85. Cross allowed the State to re-open to make proof of ownership of a building in a burglary case after defendant had made a motion for a directed verdict pointing out that the State had failed to make such proof. Here the motion to admit the exhibits was a formal matter and as in Cross could not have taken the defendant by surprise. We find no prejudicial error in the ruling of the trial court.

Defendant further objected to the admission of certain physical exhibits contending that the proof failed to connect the exhibits with the defendant or with the crime and, further, he contends that the. evidence was insufficient to establish guilt beyond a reasonable doubt.

Jack Guarin testified that he was a garage owner and did business under the name of Guarin Standard Service and Cafe. On January 22, 1972, George Robbins, the defendant, came into the garage at about 5:30 or 6:00 P.M. complaining about a car which defendant had purchased from an employee of the witness. The witness identified exhibits 1, 2, 3, 4 and 5 as tools belonging to him and being in his garage on January 22 when he locked the doors and went home. He also identified a Eram filter box (exhibit 7) and a catalog (exhibit 8) as having been on the grinder in the building at that time at specific locations. On Tuesday or Wednesday, January 22, 1972, Mr. Guarin first met Mr. Robbins when he had sold him three tires and a wheel. They had then had a conversation about the garage doors being wired to a burglar alarm.

Early Sunday, January 23, 1972, a window was discovered broken out of the garage and at about 8 o’clock the witness went down to see what was missing and found the safe open, the money gone. The tools (exhibits 1 through 5) were missing. The Fram filter box and the catalog had been moved to the floor but were still in the building. These two exhibits were delivered to the sheriff. There was a foot print on the Fram filter box which was not that of the witness.

A few days later the witness went with the sheriff and deputies to a residence at 215 E. Walker St., in Macomb, Illinois, where he identified the tools (exhibits 1 thru 5) found in the basement as his.

The sheriff, John Bliven, identified the tools as first seen by him at defendant’s house and testified that he put them in his evidence locker after tagging each tool. Exhibit 6 was identified as a box returned from the FBI Laboratory and it had contained various exhibits which had been sent to the FBI for examination. Exhibits 9 and 10 were the boots removed from defendant when he was arrested. Exhibit 11 was the registered mail receipt received when the package was mailed to the FBI Laboratory. Exhibits 12 and 13 were two boots found on a shelf on a stairway going to the basement of defendant’s home.

The next witness to testify was Thomas A. Delaney, an agent of the Federal Bureau of Investigation, who since 1953 specialized in examination of shoe prints, a technique similar to fingerprint identification. He had compared two sets of boots with the full print on the Fram box and the- partial print on the catalog. He made a positive identification as to the source of the shoe print on the box stating that he was of the opinion that the print was from a pair of boots marked exhibits 9 and 10 (the boots defendant was wearing at the time of his arrest). He could not make a positive identification of the partial print on the catalog due to lack of clarity in the print. He had received the exhibits by registered mail from the sheriff in exhibit 6 (box). Exhibit 16 was an inked impression of the heel of exhibit 10, and exhibit 17 was the inked impression of the sole of exhibit 9. The impressions were made by Mr. Delaney.

Stanley Carman, a deputy sheriff, next testified that permission was given by defendant to search his house and that exhibits 1-5 (the tools) were found there in the basement. That an a.w.o.I. soldier, Robert Mandel, and a girl, Julie, were in the house.

Jack Thurman, another deputy, testified that exhibits 9 and 10 were the boots defendant was wearing when arrested and that exhibits 12 and 13 were another pair of boots found in the basement of defendant’s home.

Howard Barry, another deputy, testified that he and the sheriff went to the garage the morning of the break-in, saw the window broken and found various footprints, including those on exhibits 7 and 8, that later at the defendants house Guarin immediately said “those are my tools” and the deputy further identified exhibits 9 and 10 as the boots the defendant took off in his presence.

Defendant contends that the trial court erred in admitting exhibits 1,2, 3,4, 5 (the tools), 7 (the Fram filter box with a footprint on it), 8 (the catalog with a partial print on it), 9 and 10 (defendant’s boots), and 16 and 17 (the impressions made by Mr. Delaney).

People’s exhibits 1 through 5 were identified by the owner as the fruits of the burglary. The defendant contends that since Robert Mandel lived in his house, that an a.w.o.l. soldier was there and a girl, Julie, was there that there could be no exclusive possession by defendant and therefore the evidence relating to them was inadmissible as having no probative force in connecting defendant with the crime. If this was the only evidence in the case we would agree. In the cases cited by defendant there was no evidence which placed the accused at the scene of the crime as here.

We are not here dealing with the rule permitting an inference or presumption of guilt from “exclusive” possession of recently stolen property. (Annot, 51 A.L.R. 3d 727 (1973).) We are concerned with admissibility of evidence. No instruction upon the inference arising from exclusive possession of recently stolen property was given in the instant case.

On a trial for burglary, evidence of the fact that defendant had the opportunity to place the stolen articles where they were found shortly after the burglary is a circumstance, which, taken in connection with other circumstances in proof, tends to establish his guilt, and the fact that other persons had like opportunity only weakens the force of such circumstance but does not render it incompetent as criminating evidence. (Padfield v. People, 146 Ill. 660.) If the place where the stolen goods were found was accessible to others capable of stealing, an inference of guilt cannot be drawn, though the fact is entitled to consideration in connection with other facts in the case. (Watts v. People, 204 Ill. 233, 246.) Evidence that accused was in possession of the stolen property at any time after the larceny is admissible even though possession is not sufficiently recent or exclusive to raise the presumption that accused was the thief. 52A C.J.S. Larceny § 126 (1968).

Where the evidence is circumstantial and there is no evidence connecting the accused with the crime charged, exhibits found in the neighborhood of the home of the accused are not admissible in evidence, but where the circumstances have some tendency to connect the evidence to the crime in question it is admissible. (People v. Smith, 63 Ill.App.2d 369, 378.) We believe that the circumstances of this case sufficiently connected the tools with both the defendant and the crime to render them relevant and admissible.

Defendant further contends that evidence of the boot prints was admitted in error first because there was not a positive identification as to the source of the print on exhibit 8; second, because no witness was able to testify that defendant was wearing the boots at the time of the burglary and that there was no testimony that would give rise to the inference that defendant owned the boots.

The correspondence of footprints found at the place of commission of, or in connection with, a crime, with the shoe of one accused of the crime is admissible in evidence to identify the accused as the guilty person. A witness may testify in a criminal prosecution as to human tracks found at the place of the crime and as to their size, location, or any peculiarity that he may have observed about them. Similarly, the description and measurement of tracks at the scene of the crime, which correspond with the shoes worn by the accused and have been introduced' in evidence, are competent. Evidence of prints at the scene of the crime has been held admissible apart from any comparison with those of or connected with the accused for the purpose of describing the scene of the crime. 29 Am. Jur. 2d Tracks and Footprints §377 (1967); Annot., 31 A.L.R. 204 (1924), 35 A.L.R.2d 856 (1954); 5 Am. Jur. Proof of Facts 217, Footprints, Proof No. 1 (1960); 22A C.J.S. Criminal Law § 616(3) (1961); People v. Hanson, 31 Ill.2d 31, 40; People v. Kozlowski, 95 Ill. App.2d 464, 472.

Although the expert refused to make a positive identification as to the source of the print on exhibit 8 he did testify that the patterns in exhibit 8 corresponded with the patterns in the sole and heel of defendant’s boot, and that the impression of exhibit 8 conformed in size and design with the pattern in the shoe. He further testified that he couldn’t eliminate the possibility that the print could have been made by one of the boots. In order to be admissible in evidence, identification need not be positive. Any uncertainty of identifying evidence, and the method of identification, go to the weight of the evidence, rather than to its admissibility. The trial judge having determined that the evidence had some probative value, it became a question for the jury to determine its weight. People v. Scott, 29 Ill.2d 97, 113.

The argument that no witness was able to testify that he knew that defendant wore the boots at the time of the crime again goes to the: weight of the evidence and not to its admissibility. The argument of defendant confuses the distinction between the admissibility of evidence: and its probative value. People v. Scott, supra.

The argument that there was no testimony that would give rise to an inference that defendant owned the boots overlooks the undisputed fact that defendant was wearing the boots when arrested.

We find no error in the admission of the exhibits by the trial court.

Defendant finally contends that he was not proved guilty beyond a reasonable doubt in that the evidence does not exclude every reasonable hypothesis of innocence. A conviction may be based on circumstantial evidence. The fact that the circumstantial evidence relied upon must not give rise to any reasonable hypothesis under which the defendant 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; 14A Ill.L. &Pr. Criminal Law § 433 (1968).) We are of the opinion that there was sufficient evidence to establish defendant’s guilt beyond a reasnable doubt.

The judgment of the Circuit Court of McDonough County is affirmed.

Affirmed.

STOUDER and ALLOY, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE STOUDER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Archie Shallenberger, Respondent-Appellant.
    (No. 73-20;
    Third District
    July 31, 1974.
    James R. Brodie, of Pekin, for appellant.
    Jay H. Janssen, Assistant State’s Attorney, of Pekin, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Respondent-appellant, Archie Shallenberger, was charged with the violation of probation alleging commission of three offenses of criminal damage to property. The circuit court of Tazewell County after a hearing found the respondent had violated his probation by committing the offenses charged, and as a consequence thereof his probation was extended for a period of 2 years and additional conditions were attached thereto.

This is a related case to that of People v. Grashoff, 21 Ill.App.3d 282 in that the respondent in the instant case like the defendant in the Grashoff case was one of the passengers in a motor vehicle stopped by police officers on April 24, 1972, and the occupants arrested and charged with criminal damage to property. This case was tried separately and. because of its nature was heard by the court without a jury. The evidence adduced was substantially the same as that presented in the Grashoff case, and the same errors are urged on this appeal as those considered in the Grashoff case. The description of the occurrence, the nature of the evidence, the errors urged on appeal and our consideration thereof are adequately set forth in the Grashoff opinion and need not be repeated.

For the reasons stated in the Grashoff case which are équally applicable to the errors urged in this case, we hold the court erred in admitting exhibits. Further we hold the evidence is insufficient to support the judgment of the court on the theory of accountability, the basis of the charges against the respondent in the instant case.

For the foregoing reasons the judgment of the circuit court of Tazewell County revoking respondent’s probation and granting him an extended term of probation under different terms and conditions is reversed.

Judgment reversed.

SCOTT, P. J., and DIXON, J., concur.


author: Mr. PRESIDING JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Doris R. Jackson, Defendant-Appellant.
    (No. 72-307;
    Third District
    July 31, 1974.
    Elliot Samuels, of Chicago, and James Geis, of the State Appellate Dof-fenders Office, of Ottawa, for appellant.
    James O. Christy, Assistant State’s Attorney, of Peoria, for the People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Doris R. Jackson, after a bench trial in the circuit court of Peoria County, was found guilty of unlawful possession of a controlled substance in violation of Section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56Yz, § 1402(b)). Following a hearing in aggravation and mitigation the defendant was sentenced to a term of not less than 1 nor more than 3 years in the penitentiary.

The evidence adduced during the defendant’s trial discloses that she was arrested on January 28, 1972, by several Peoria police officers who were executing a search warrant of a residence located at 1318 West Martin in the city of Peoria. During the search the officers recovered 6.8 grams of heroin from a lady’s purse which also contained some of her personal effects and identification papers.

A search warrant in the instant case was issued by a judge upon the sworn complaint of a Sgt. Krueger of the Peoria Police Department. The complaint was premised upon information that Sgt. Krueger had allegedly received from a “confidential informant.” The complaint alleged, inter alia, that the person to be searched was a “black female,” first name Dora, or Doris, who resided at 1318 West Martin, that the contraband that was the object of the search was heroin, and that the complainant (Sgt. Krueger) received this information from a confidential informant who had on two separate occasions informed the complainant within the past 2Yz months that he could purchase certain narcotics, and did make controlled purchases of narcotics which turned out to be amphetamines and marijuana. It was further alleged that the informant had occasion to be present inside the premises to be searched and while there observed a white powdery substance which the aforementioned Dora or Doris had represented to him to be heroin.

Prior to trial the defendant moved to quash the search warrant and to suppress the evidence seized under its purported authority. At the conclusion of a hearing on this motion it was denied by the trial court. It is the defendant’s contention that reversible error was committed by the trial court when it denied the motion to quash the search warrant and suppress the evidence procured as a result of the search.

In support of this assignment of error the defendant first argues that the complaint for the search warrant failed to establish probable cause as required by the test set forth in the case of Aguilar v. Texas, 378 U.S. 108, 114, 12 L.Ed.2d 723, 84 S.Ct. 1509, when the United States Supreme Court stated:

“[T]he magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed [citation], was ‘credible’ or his information reliable.’ ”

It is the defendant’s reasoning that the informer referred to in the complaint for the search warrant based his conclusion that heroin was present at 1318 West Martin, Peoria, Illinois, not upon what he saw or recognized but instead upon what he was told by a third person whose reliability was never established. The defendant refers to the complaint as a “multiple hearsay affidavit” which fails to meet the requirements set forth in Aguilar v. Texas, 378 U.S. 108.

It is well established that probable cause for a search warrant may be based on evidence which would not be competent evidence at a trial, i.e., hearsay evidence. See United States v. Ventresca, 380 U.S. 102, 13 L.Ed.2d 684, 85 S.Ct. 741. The defendant does not dispute this rule of law but claims that in the instant case “probable cause” for the issuance of a search warrant was never established since we have a situation where the informant provided hearsay information based upon hearsay information received from another individual. In support of her contention that a “multiple hearsay” situation existed which prevented the establishment of the requisite “probable cause” upon which the issuance of a search warrant must be based the defendant cites the case of United States v. Roth, 391 F.2d 507 ( 7th Cir. 1967). While it is true that a “double or multiple hearsay” situation existed in the case of Roth which resulted in a search warrant being held invalid, we find that the facts in Roth are clearly distinguishable from those in the instant case. We have before us a situation where the informant based his conclusions upon information which was supplied to him by the person who was to be searched and who ultimately became the convicted defendant in this suit. It has long been the rule in evidentiary cases that an exception to the hearsay rule is admissions made by a party defendant. In the Roth case there were present hearsay statements based upon hearsay statements of a completely unconnected third party. As we have stated, such was not the situation in the instant case. It has been held that probable cause means simply that the facts and circumstances within the knowledge of the affiant and of which he has reasonably trustworthy information were sufficient to warrant a man of reasonable caution to believe that the law was being violated and that evidence of it was in the premises. (People v. Francisco, 44 Ill.2d 373, 255 N.E.2d 413.) We believe that such test was met in the instant case and that the complaint for search warrant stated sufficient facts in a competent manner to establish the requisite probable cause.

The defendant next urges as error that the complaint for search warrant failed to establish that the confidential informer was rehable or that his information was credible. Specifically the defendant quarrels with that portion of the complaint which alleged that the confidential informant had given information within the preceding 2% months- which led to a controlled purchase of marijuana on one occasion and a controlled purchase of amphetamine on another occasion. It is defendant’s contention that there should have been present allegations to the effect that the informant had supplied information which led to arrests, convictions or the prosecution of drug offenders. We know of no law, statutory or in the form of precedents set forth in case law, that mandates such a stringent requirement. We believe that the determinative question is, “Considering all the allegations in a complaint for a search warrant is there sufficient basis for a judge to conclude that narcotics were probably present in the premises?” This appears to be the rule set forth in Jones v. United States, 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725. We note that in Jones it was merely alleged that the informant had previously given accurate information, yet the United States Supreme Court, with Justice Douglas dissenting, held that there was established probable cause for the issuance of a search warrant. We do not agree with the defendant that in the instant case the complaint failed to establish the reliability of the informant or that his information lacked credibility.

Lastly the defendant claims that the trial court abused its discretion in imposing a penitentiary sentence upon her instead of granting probation. In considering this contention we immediately recognize that this court is not empowered to grant probation after the trial court has imposed a penitentiary sentence. (People ex rel. Ward v. Moran, 54 Ill.2d 552, 301 N.E.2d 300.) We are, however, cognizant of the rule which permits a reviewing court to reduce the punishment imposed by a trial court. (50 Ill.2d R. 615(b) (5).) In examining the record in this cause we find that tire defendant was charged with the possession of a controlled substance in violation of section 402(b) of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56V2, § 1402(b)), on January 28, 1972, and that the prescribed penalty for such offense at this time was imprisonment in a penal institution other (italics supplied) than the penitentiary for not more than 1 year or in the penitentiary from 1 to 8 years. The defendant is entitled to the benefits of such statutory provisions since they were in effect when she was indicted, tried and found guilty. The Unified Code of Corrections effective January 1, 1973, provides that the sentencing provisions of a prior law shall apply if a case has not been finally adjudicated and if the sentence under the prior law is less than that prescribed by the Unified Code of Corrections. (See Ill. Rev. Stat. 1973, ch. 38, § 1008 — 2 — 4.) The sentence under the new Code is clearly more severe than that mandated under the prior law. See Ill. Rev. Stat. 1973, ch. 56%, § 1402(b).

The record discloses that the defendant was a user of drugs for a 7-month period but at the time of sentencing was free from all drug usage. There is ample evidence that with the exception of this 7-month period she was a good citizen and a concerned mother of seven children. Further we cannot but be impressed that during the hearing in aggravation and mitigation the prosecution joined with defense counsel in a plea for leniency. This court was further advised during oral argument of this appeal that the defendant, while now at liberty, has served in penal institutions from 5 to 7 months of the sentence imposed upon her. We believe that the authority granted to reviewing courts by Supreme Court Rule 615(b)(5) was so granted in order that the same could be exercised in cases such as the one we are now considering and therefore, pursuant to such authority, we reduce the sentence imposed upon the defendant to that period of time which she has been incarcerated in the Peoria County jail and any other penal institution prior to, during and subsequent to her trial in this cause, said incarceration being related to her arrest and conviction in this case.

For the reasons set forth the judgment of the Circuit Court of Peoria County and the sentence imposed thereon as modified by this court is affirmed.

Affirmed with sentence modified.

ALLOY and DIXON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry L. Butler, Defendant-Appellant.
    (No. 72-179;
    Third District
    July 31, 1974.
    Steven Hurley, of the State Appellate Defender’s Office, of Ottawa, for appellant.
    James Christy, Assistant State’s Attorney, of Peoria, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

After a jury found defendant, Henry Butler, guilty of aggravated battery, the circuit court of Peoria County, on January 21, 1972, sentenced him for a term of from 2 to 8 years to the Department of Corrections.

On this appeal defendant argues: one, section 12 — 4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, § 12 — 4(a)) is an improper delegation of the legislative authority and stands in violation of the equal protection clause; two, the defendant was not proved guilty beyond a reasonable doubt; three, the prosecutor’s closing argument went beyond nd misstated the evidence, and the defendant was prejudiced by the argument and four, the defendant’s sentence is excessive and should be reduced.

During the early morning hours of September 4, 1971, Officers Samuel Means and Daniel Richmond were ordered to the area of Sixth and Sheridan in Peoria to investigate shots being fired. Upon their arrival they saw a group of people scatter, and the defendant run away carrying a gun. Means followed the deféndant, who had run into an alley. Richmond circled to go behind the buildings, and when he was one-half way around he heard a shot. Means had been shot. He was taken to the hospital where he received emergency treatment but the wounds were not serious.

Searches of the area turned up a .410 shotgun which was identified as belonging to Lonnie Butler, defendant’s father.

At trial, Officer Means identified the defendant as his assailant. Officer Richmond testified that he met the defendant moments after the shooting, and that Butler did not have a gun.

Butler denied shooting Means, and testified that after running through the alley he shoved the gun under an abandoned car and walked to the corner where he met Richmond. Butler further testified that after Officer Richmond ran to the aid of his partner he retrieved the gun, hid it again further away, and was arrested nearby. At the time of his arrest, and as a search of his person was commenced, the defendant threw two objects: to the ground which were retrieved by the arresting officer and thereafter were identified as two spent .410 shotgun shells.

The first issue raised by the defendant concerning the unconstitutionality of the statute (Ill. Rev. Stat. 1969, ch. 38, § 12 — 4(a)) under which he was charged requires no particular discussion in this case since both' parties concede this issue was previously determined adversely to the position of the defendant in People v. Chambers, 15 Ill.App.3d 23, 303: N.E.2d 24.

This brings us to the principal issue raised on this appeal, namely, the sufficiency of the evidence to support the verdict of the jury. After reviewing the record and the arguments of the parties it is our opinion the jury’s verdict is supported by sufficient evidence.

Ordinarily the verdict of a jury in a criminal case will not be disturbed unless the supporting evidence is improbable, unconvincing, or contrary to human experience. (People v. Stevenson, 25 Ill.2d 361, 185 N.E.2d 199, and People v. Stringer, 52 Ill.2d 564, 289 N.E.2d 631.) There is no disagreement concerning the foregoing rule but only its application to the facts of this case.

In questioning the sufficiency of the evidence the defendant has directed our attention to three areas of the evidence. The first relates to the identification by Officer Means of the defendant as the one firing the shot. At the trial Officer Means unequivocally identified defendant as one of the group who was at the street comer when the police officers arrived, that he was the one with the gun and that he was the one who fired the shot around the comer at him. It is also shown by the evidence as pointed out by the defendant that defendant was previously known to the police officer but was not identified as the assailant either by Means when he first described the offender at the scene or even later at the hospital. Defendant also argues that there is some improbability in the testimony of Means regarding his view of the assailant just prior to the discharge of the gun. While we believe that there were some adverse factors affecting the credibility of the testimony of Officer Means nevertheless these are matters affecting credibility and are properly areas to be resolved by the jmy. We do not find Mean’s testimony inherently improbable or unbelievable. The second area of argument discussed by the defendant relates to the testimony regarding the gun, its bullets, the nature of the wounds and the defendant’s conclusion that the evidence conclusively demonstrates the .410-gauge shotgun could not have caused the wounds sustained by Means. In this connection it should be noted that the State made no effort to prove by physical evidence that the wounds were in fact caused by the .410-gauge shotgun but from the nature of the testimony was content to show the wounds could have been so caused. The defendant called as his witness Dr. Kim, the physician who initially treated Means in the emergency room at the hospital, and another witness, Dr. Kenney. These witnesses were questioned with the apparent intention of showing that the bullet or bullets which caused Means wounds could not have been fired from the .410-gauge shotgun, thereby demonstrating that the defendant could not have been the assailant. In his brief the defendant points to some of the testimony of Dr. Kim and also that of Michael Kreiser, a ballistics expert who testified on behalf of the State. However, our examination of the testimony of these witnesses reveals, first, that none of the witnesses were able to say whether the wounds were caused by one bullet, more than one bullet, one pellet or more than one pellet, and none of the witnesses were able to say that the wounds could not have been caused by bullets discharged from the .410-gauge shotgun. If the purpose of the testimony was to show that the wounds could have only been caused by some gun other than the .410-gauge shotgun it fails to do so, and on the contrary the evidence is such that the jury could conclude a shot was fired by the .410-gauge shotgun.

This brings us to the third area of the evidence discussed by the defendant which is his claim that with relation to times and distances he could not have been the person shooting Means. By this defendant insists that he could not have fired the shot at the time and place testified by Means, disposed of the gun and then walked passed Richmond at the outlet of the alley. Again we do not believe the evidence supports the conclusive improbabfiity asserted by the defendant but on the contrary represents estimates of times, distances and judgments which are subject to variation precluding any arithmetic or logistic precision.

The next assignment of error raised by defendant is his contention that reversible error was committed by the State’s Attorney because of remarks made during final argument.

According to defendant assumptions and statements of fact not based on evidence in the case may not properly be argued to the jury, citing, People v. Beier, 29 Ill.2d 511, 194 N.E.2d 280. It is equally well settled that statements of counsel in closing arguments based on facts and circumstances proved, or upon legitimate inference therefrom, do not exceed the bounds of propriety. People v. Miller, 13 Ill.2d 84, 148 N.E.2d 455.

Defendant complains of three statements made by the State’s Attorney during his closing argument. We believe it unnecessary to discuss the statements in detail and believe it sufficient to say that after reviewing the statements in the context of the evidence it is our conclusion that the statements represented arguable inferences from the evidence and, further, the statements did not go beyond the bounds of legitimate argument even if defendant believed that other inferences were more reasonable.

Finally, defendant argues that his sentence of from 2 to 8 years incarceration is excessive. Defendant’s argument in this regard is twofold. First, since Section 5 — 8 — 1(c)(4) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, § 1005 — 8 — 1(c)(4)) provides, “(4) for a Class 3 felony, the minimum shaU be one year unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant sets a higher minimum term, which shall not be greater than one-third of the maximum term set in that case by the court, * * *” defendant argues the sentence must be reduced to the present minimum sentence or the case remanded for further consideration by the trial court. Second, the sentence fails to take into account the primary purpose of sentencing, namely, the rehabilitation of defendant and in fact the sentence imposed is contrary to such purpose.

The trial court imposed the sentence on the defendant in this case on April 11, 1972. Although the present Unified Code of Corrections did not become effective until January 1, 1973, the Code is applicable to those cases not finally adjudicated on the effective date of the act (People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269), although there is some dicta in People v. Ike, 10 Ill.App.3d 933, 295 N.E.2d 250, suggesting that before the court may impose a minimum sentence in excess of that provided by statute a special finding is required. However, it is our opinion, at least with regard to sentences imposed before the effective date of the act, that it is sufficient if the record shows the court duly considered the factors mentioned in the statute and no special finding need be required. If such factors were actually considered, and in this case we believe they were, it is hard to envision why the trial court upon a remandment or reconsideration would not merely redetermine that its previous sentence was appropriate, which procedure could be of no significant benefit to the defendant.

As has been pointed out in defendant’s brief there are many factors which might suggest the appropriateness of a lesser sentence but a review of the record fails to demonstrate that these factors were not considered by the trial court or that the sentence imposed is beyond the range of sentence possibilities which the court could impose in the exercise of its discretion.

For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.

Judgment affirmed.

SCOTT, P. J., and DIXON, J., concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Finley, Defendant-Appellant.
    (No. 73-311;
    Third District
    July 31, 1974.

      Stanley Tucker, of Hartzell, Glidden & Tucker, of Carthage, for appellant.
    Patrick J. Corcoran, Assistant State’s Attorney, of Carthage, for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

An interlocutory appeal was filed by defendant William Finley pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1973, ch. 110A, § 308). A review was sought of the order of the Circuit Court of Hancock County which struck defendant’s jury demand together with defendant’s subpoena for discovery deposition and interrogatories which were filed prior to an implied consent hearing under section 11 — 501.1(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95%, § 11 — 501.1(d)).

The issue before this court on appeal is whether a jury trial is required at an “implied consent” hearing under the Illinois Vehicle Code and whether expansive pretrial civil discovery was properly denied by the trial court. We note that under the provisions of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95%, § 11 — 501.1(a)) an individual who is arrested and charged with the offense of driving while under the influence of intoxicating liquor “impliedly consents” to take and complete a test or chemical analysis of his breath to determine the alcoholic content of his breath. If the arrested individual fails to submit to a breath test, further procedure is under the terms of section 11 — 501.1(d) of the act, which reads as follows:

“The Clerk shall thereupon notify such person in writing that his privilege to operate a motor vehicle will be suspended unless, within 28 days from the date of mailing of the notice, he shall request in writing a hearing thereon. If such person fails to request a hearing within such 28 day period, the Clerk shall so notify the Secretary of State who shall automatically suspend such person’s driver’s license, the privilege of driving a motor vehicle on highways of this State given to a nonresident, or the privilege which an unlicensed person might have to obtain a license under the Driver’s License Act, as provided in Paragraph (a) of this Section.
If such person desires a hearing, he shall petition the Circuit Court for and in the county in which he was arrested for such hearing. Such hearing shall proceed in the Court in the same manner as other civil proceedings, except that the scope of such proceedings shall cover only the issues of whether the person was placed under arrest for an offense as defined in Section 11 — 501 of this Act or a similar provision of a municipal ordinance, whether the arresting officer had reasonable grounds to believe that such person was driving while under the influence of intoxicating liquor, whether the person was informed orally and in writing as provided in paragraph (a) that his privilege to operate a motor vehicle would be suspended if he refused to submit to and complete the test and whether, after being so advised, he refused to submit to and complete the test upon request of the officer.
Immediately upon the termination of the Court proceedings, the Clerk shall notify the Secretary of State of the Court’s decision. The Secretary of State shall thereupon suspend the driver’s license * * * if that be the decision of the Court * # (Emphasis added.)

In the cause before us, the defendant was arrested for driving under the influence of intoxicating liquor on October 10, 1973. On October 11, 1973, the circuit clerk of Hancock County issued a written notice to him as prescribed by the act. Defendant filed a petition for an implied consent hearing under the act and, also, made a jury demand. Defendant likewise filed a subpoena for a deposition directed to the arresting officer and further filed written interrogatories directed to the State to be answered under oath. The People filed a motion to strike defendant’s jury demand and such motion was granted. A motion was also filed by the People to strike the written interrogatories and to quash the subpoena for the deposition of the arresting officer. The court entered an order striking defendant’s subpoena for discovery deposition and the interrogatories filed by the defendant.

On appeal to this court, defendant contends that an “implied consent hearing” is a civil proceeding in which a person is entitled, as a matter of right, to a jury trial, and also to the benefit of pretrial discovery under the terms of the Illinois Civil Practice Act. Both parries agree that the language of the statute is clear and unambiguous. In section 11 — 501.1 (d) of the act in pertinent part it is provided:

“If such person desires a hearing * * * [sjuch hearing shall proceed in the Court * *
Immediately upon the termination of the Court proceedings, the Clerk shall notify the Secretary of State of the Court’s decision.

Defendant claims on appeal that the words “in the Court” should be interpreted to mean that a jury trial was thereby authorized by the act. The State contends that the language of the statute unequivocally means a hearing conducted and determined by a judge. It is pointed out that under Section 5 — 1 — 6 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, § 1005 — 1 — 6), where "court” is defined, it is stated to mean a circuit court of Illinois and includes a judge thereof.

It is pointed out by the State that under the Constitution of the State of Illinois in both the 1870 Constitution (art. II, sec. 5) and in the 1970 Constitution (art. I, sec. 13) the right to trial by jury is secured in all tribunals, “as heretofore enjoyed.” ’It is asserted that it was not intended in the constitutional provisions to confer the right in any class of cases where a right to jury trial had not previously existed. The conclusion of the State is that a trial by jury is not, therefore, guaranteed in a special statutory proceeding unknown to common law. (People v. Hill, 163 Ill. 186, 46 N.E. 796 (1896); Maynard v. Richards, 166 Ill. 466, 46 N.E. 1138 (1897); Keith v. Henkleman, 173 Ill. 137, 50 N.E. 692 (1898); Moody v. Found, 208 Ill. 78, 69 N.E. 831 (1904); Research Hospital v. Continental Illinois National Rank and Trust Co., 352 Ill. 510, 186 N.E. 170 (1933); People v. Niesman, 356 Ill. 322, 190 N.E. 668 (1934); People ex rel. Keith v. Keith, 38 Ill.2d 405, 231 N.E.2d 387, 389 (1967); Ford v. Environmental Protection Agency, 9 Ill.App.3d 711, 292 N.E.2d 540, 545 (3rd Dist. 1973).)

The section of the Illinois Vehicle Code under consideration is a statutory proceeding of recent origin and was unknown at common law. It would, therefore, logically follow that a trial by jury of the implied-consent issues is not guaranteed in such proceeding by the Illinois Constitution and the question arises as to whether it is guaranteed by statutory provision. It is clear that the statute in question does not specifically prescribe the right to a jury trial. Defendant claims, however, that since a trial by jury is guaranteed for a simple traffic violation it should likewise be mandated in an “implied consent” hearing. We do not believe that this is a sound contention. People v. Woerly, 50 Ill.2d 327, 278 N.E.2d 787 (1972), and People v. Manion, 3 Ill.App.3d 621, 278 N.E.2d 175 (1972), cited by defendant as authority for such argument, are distinguishable on their facts from the instant case. In both Woerly and Manion, the defendants were charged with simple traffic violations. The trial court in each case denied the defendant’s timely demand for a jury trial. On appeal, both cases were reversed. Section 103 — 6 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, § 103 — 6) provides, in pertinent part, that “Every person accused of an offense shall have the right to a trial by jury * * .” Section 102 — 15 of the Code of Criminal Procedure of 1963 provides that an “offense” is a violation of any penal statute of this State. Section 16 — 104 of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95%, § 16 — 104) provides that it is a misdemeanor for any person to violate any provision of the act. It is, therefore, apparent tliat the statutes prescribe a right to trial by jury to a person charged with violating a penal statute.

The question, therefore, arises as to whether the implied-consent statute in question before us is a penal statute. A suspension of a driver’s license is a purely administrative function of the Secretary of State and is not penal in nature. (See People v. Quinn, 17 Ill.App.3d 1058, 309 N.E.2d 249 ( 4th District. 1974).) People v. Kobylak, 383 Ill. 432, 435, 50 N.E.2d 465, 467 (1943), indicates that the Illinois Supreme Court determined that a revocation of a driver’s license for a conviction of driving under the influence of intoxicating liquor was not part of the punishment for that offense, but merely a regulatory measure. In People v. Jenkins, 128 Ill.App.2d 351, 354-355, 262 N.E.2d 105, 107 (1970), the appellate court in citing People v. Kobylak, said that a revocation of a driver’s license for 1 year by the Secretary of State is part of a regulatory measure under the police power of the State governing traffic upon the highways but is not part of any punishment imposed by the court and does not constitute the loss of any property or civil rights. (See also People v. Smith, 7 Ill.App.3d 143, 287 N.E.2d 174 (1972).)

In the “implied consent” hearing, the court does not suspend the driver’s license. The function of suspending a driver’s license is vested solely with the Secretary of State. The purpose of the court proceeding is merely to comply with the due process clause to provide defendant with a forum and to afford him a meaningful hearing to determine if he refused to consent to a breath test after being lawfully arrested for driving while under the influence of intoxicating liquor. (Cf. Bell v. Burson, 402 U.S. 535, 29 L.Ed.2d 90, 91 S.Ct. 1586 (1971), and Goldberg v. Kelly, 397 U.S. 254, 25 L.Ed.2d 287, 90 S.Ct. 1011 (1970).) In the implied-consent hearing, it is sought to determine (1) whether the driver was placed under arrest for driving under the influence of intoxicating liquor; (2) whether the arresting officer had reasonable grounds to believe that the driver was under the influence of intoxicating liquor; (3) whether the individual was admonished orally and in writing that his operator’s license would be súspended if he failed to consent to take the breath test, and (4) whether defendant refused to submit to the test. Whether the defendant was arrested for driving under the influence of intoxicating liquor and whether the officer had reasonable ground to believe that the driver was under the influence of intoxicating liquor clearly dealt with the concept of arrest and probable cause to arrest and involved questions of law for the court to determine along with the other, factual issues referred to.

It is apparent from a reading of the Illinois Vehicle Code, and precedents referred to, that a jury trial is not required for the reason that neither constitutional nor statutory authority specifically provides for a jury trial in such hearing, and from a practical consideration of the statute and the objectives of the statute, it is clear that the intent of the legislature was not to confer a right to jury trial to the defendant at the implied consent hearing. The hearing is limited in scope principally to the resolution of questions of law although involving applicable questions of fact. The finding of the court is not a final order but is an initial step in the administrative process of regulating a drivers license for refusal to submit to a breath test. The statute is not penal and a person may not be fined or institutionalized for failure to comply with its proscriptions.

The remaining issue which is principally urged is that the court erred in denying expansive pretrial civil discovery. As indicated, the act itself provides that “[s]uch hearing shall proceed in the Court in the same manner as other civil proceedings.” (Ill. Rev. Stat. 1973, ch. 95%, § 11 — 501.1(d).) Certainly the rules of evidence and burden of proof at the implied consent hearing would be governed by rules of civil procedure. In People v. Schmidt, 56 Ill.2d 572, 309 N.E.2d 557 (1974), the Illinois Supreme Court considered the question of ■ applying discovery rules to misdemeanor cases by extending the application of Supreme Court Rule 411 (Ill. Rev. Stat. 1973, ch. 110A, § 411). Defendant Schmidt was charged with the offense of driving while under the infience of intoxicating liquor. The supreme court, in refusing to apply Rule 411 to misdemeanor violations, stated that among the factors motivating its decision to restrict application of Rule 411 to felony cases was (1) the court’s awareness of the very substantial volume of less serious cases and the impact upon the expeditious disposition of such cases if expanded discovery was required and (2) a desire to eliminate substantial variance in the scope of discovery permitted in courts of this State. The court concluded in that case that discovery in a misdemeanor case was limited to (1) a list of witnesses, (2) any confessions of defendant, and (3) evidence negating defendant’s guilt.

It is argued by the State that to sanction a rule permitting more expansive discovery in pretrial implied consent proceedings than is permitted prior to the actual criminal trial would be illogical. It is. contended that the person who complies with the implied consent statute would be limited to discovery' as set forth in the Schmidt case. ■ It is further argued that the person who refused to take the test would, in effect, be rewarded for such refusal by allowing him additional discovery. It is also contended that if due process is satisfied by permitting only limited discovery in a criminal trial, for a person charged with a misdemeanor and subjected to possible criminal sanctions upon conviction, it would be unreasonable to allow unlimited and additional discovery in a hearing which is but one step in an administrative proceeding to regulate a privilege. The State also asserts that expansive discovery under the Civil Practice Act would cause unnecessary and untold delay due to the filing and gathering of “pre-hearing” discovery by both parties to the proceeding.

In our review of the issue, we have concluded that it is wise to provide for discovery by a defendant of the character outlined in the Schmidt case and that pretrial civil discovery should be available without making application to the court in matters concerning an implied consent hearing to the extent that such matters involve (1) a list of witnesses, (2) any confessions by defendant, and (3) evidence negating defendant’s guilt. We have also given consideration to People ex rel. Hanrahan v. Felt, 48 Ill.2d 171, 269 N.E.2d 1 (1971), and City of Danville v. Hartshorn, 53 Ill.2d 399, 292 N.E.2d 382 (1973), in which the Illinois Supreme Court concluded that a defendant is not unqualifiedly entitled to civil practice procedures in all cases. As stated by the court in City of Danville v. Hartshorn, 53 Ill.2d 399, 404, 292 N.E.2d 382, 385:

'We believe that whether discovery provisions of the Civil Practice Act may be invoked should be within the discretion of the trial court. [Emphasis added.]
Our holding that the automatic application of provisions in the Civil Practice Act for discovery is not always appropriate is not novel. In People ex rel. Hanrahan v. Felt, 48 Ill.2d 171, we considered a petition for mandamus which sought to compel the trial court to vacate a pretrial discovery order which had been entered in a juvenile delinquency proceeding. We noted that a delinquency proceeding differed from a typical civil action in its potential consequences to the juvenile and to the community, and held 'that although a delinquency proceeding is civil in nature, it is sufficiently distinct from other civil actions to make inappropriate the automatic application of discovery provisions applicable to civil cases’ [citation].”

The Hartshorn case involved a trial for violation of a municipal ordinance which was civil in nature. We, therefore, conclude that further discovery procedure should be within the discretion of the trial court, other than in the limited area heretofore outlined by analogy to the Schmidt case hereinabove referred to. By such conclusion we do not deem that the trial court would be in any manner limited in authorizing further discovery if the trial court is convinced that such discovery is reasonably required in the “implied consent” hearing. If the court determines that such discovery is not reasonably required in such hearing, then, in the discretion of the trial court, such further discovery may be denied.

For the reasons stated in the course of this opinion, we, therefore, conclude that a jury trial is not required in an implied consent hearing of the character before us and the court properly ordered defendant’s demand for jury trial stricken. We believe, however, that the court erred in striking the subpoena for discovery and interrogatories in this cause. Limited discovery of the character outlined in this opinion analogous to the Schmidt case should be aUowed upon demand, and the allowance of any further discovery is within the discretion of the trial court.

This cause is, therefore, affirmed as to the order of the trial court striking the jury demand but is reversed as to the order of the circuit court striking the subpoena for discovery deposition and interrogatories. As to the issue of discovery and interrogatories, the trial court shall proceed in accordance with the views expressed in this opinion.

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

STOUDER and DIXON, JJ., concur.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Robinson, Defendant-Appellant.
    (No. 57570;
    First District (3rd Division)
    July 3, 1974.

      James J. Doherty, Public Defender, of Chicago (Harold A. Cowen, Assistant Public Defender, of counsel), for appellant.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jonathan B. Gilbert, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Charles Robinson, was charged with the murder of Charles Tolbert. After a jury trial, he was found guilty of that crime and was sentenced to a term of 14 to 30 years. On appeal defendant contends that the trial court improperly permitted a rebuttal witness to be called as a court’s witness and to testify to a collateral matter outside the scope of proper rebuttal; that certain instructions given to the jury were erroneous; and that the prosecutor’s closing argument was improper, requiring reversal. Defendant’s underlying contention in all three arguments is that certain testimony of a rebuttal witness erroneously introduced an improper inference of an unrelated crime. After oral argument, defendant was given leave to file a supplemental brief adding another contention. In the supplemental brief, he argues that comments made by the trial judge during the selection of the jury were improper. He further maintains that the error resulting from the judge’s comments was compounded by the failure of the court to submit a certain instruction to the jury.

The State produced three eyewitnesses to various aspects of the crime. Vera Brooks testified that on May 9, 1970, she observed three men on the sidewalk across the street from her home in the City of Chicago: the defendant, the deceased, and James Brown. The three men appeared to have been arguing. Vera Brooks further testified that she saw defendant shoot Brown. Defendant then said something, and turned and shot the deceased who was standing at arm’s distance against the wall. The deceased stooped over, and defendant shot him again. Brown and defendant then ran away.

Marie Smith and her stepdaughter, Rene Smith, testified that the incident occurred on the sidewalk in front of their home. After defendant shot Brown, both witnesses heard the defendant say to the deceased: “You made me shoot my partner, now I’m going to shoot you.” Defendant was the only one of the three men who displayed a gun. After Brown was shot, Marie Smith ran into her home momentarily and then returned outside. Rene Smith came outside after the first shot. They did not see any struggle.

Officer John Martin of the Chicago Police Department testified that he found the deceased lying on the ground with two bullet wounds in the neck. The deceased’s wallet, along with an empty money clip and identification papers, were also found at the scene. Defendant told both the arresting officer and Rosemary Barnett, in whose apartment defendant was arrested after the occurrence, that Brown was shot by an unknown stranger as Brown and defendant stood on a corner.

Defendant testified that he shot the deceased accidentally while trying to take the deceased’s gun away from him. The deceased was seeking to get even because he once lost a fight to defendant. Defendant stated that he first struck the gun held by the deceased, causing it to go off, wounding defendant’s friend Brown. Defendant denied telling the deceased he was going to shoot him.

Lettie Sims testified for the defense that she heard three shots, went outside, and saw two men struggling for a gun. Officer Ronald Goscenski of the Chicago Police Department testified for the defense that he interviewed Marie Smith and Vera Brooks after the occurrence. Both witnesses told the officer that they were asleep when they heard the first shot. They then went to then front windows to. watch what happened.

After the defense rested, James Brown, over objection, testified as a court’s witness on rebuttal that the deceased and defendant had argued, that defendant had ordered the deceased to empty his pockets, and that a struggle had resulted in which the witness and the deceased were shot by defendant. Brown also testified that, when ordered by defendant to empty his pockets, the deceased took out his wallet and papers. Brown did not see the deceased with a gun.

Defendant’s initial contention is that the trial court committed reversible eiTOr in permitting Brown to be called as a court’s witness and to testify to a collateral matter outside the scope of proper rebuttal.

The requisite foundation which must be laid for the calling of a witness as a court’s witness consists of the giving of reasons as to why the party desiring the witness so called cannot vouch for his veracity, and a showing that the testimony of the witness will relate to direct issues and is necessary to prevent a miscarriage of justice. (People v. Dennis (1970), 47 Ill.2d 120, 265 N.E.2d 385, cert. denied (1971), 403 U.S. 907.) The calling of a witness as a court’s witness is a matter within the discretion of the trial court, and unless such discretion is clearly abused, it will not be disturbed on review. People v. Banks (1955), 7 Ill.2d 119, 129 N.E.2d 759, cert, denied (1956), 351 U.S. 915.

At the time the State requested the court to call Brown as a court’s witness, the prosecutor offered to show either at a factual hearing or by oral representation that he could not vouch for Brown’s veracity because of prior inconsistent statements he had made to police officers and prosecutors. The trial court stated that the prosecutor’s oral representation would be sufficient, and defense counsel made no objection to this procedure. We hold, therefore, that the State laid a sufficient foundation to show that it could not vouch for Brown’s veracity. It also seems evident that Brown’s testimony was necessary to prevent a miscarriage of justice. Although the State offered three eyewitnesses to parts of the occurrence, Brown admittedly was present and viewed the entire incident. His testimony was essential.

Defendant further argues that Brown was permitted to testify on a collateral issue which was beyond the scope of proper rebuttal, rather than on a direct issue. In making this contention, defendant refers to Brown’s testimony that defendant ordered the deceased to empty his pockets and that Brown saw the deceased take his wallet and papers out of his pocket. Defendant maintains that his testimony introduced an improper inference of another crime, robbery, into the evidence. In our view, Brown’s testimony on this point related to a direct issue. It was directly contradictory to defendant’s testimony that he acted in self-defense. The testimony in question indicated that the deceased had emptied his pockets and that he did not have a gun in his possession. Moreover, the argument overlooks the fact that during the State’s casein-chief one of the police officers testified that he had found the deceased’s wallet and papers on the sidewalk at the scene. And even if part of Brown’s testimony could be considered to have been on a collateral issue, we do not believe that the testimony could be sufficiently prejudicial to warrant reversal. (See People v. Dennis, supra.) We conclude that the court did not err in permitting Brown to be called in rebuttal as a court’s witness, and we also hold that the scope of his examination was proper.

Defendant next contends that the trial court committed reversible error in the giving of certain instructions to the jury. He argues that the instructions were prejudicial and misleading because they arose from an improper inference contained in Brown’s testimony about a robbery attempt. The instructions complained of were as follows:

“A person is not justified in the use of force if he is attempting to commit a forcible felony.”

And:

“When I use the words ‘forcible felony,’ I mean a felony which involves the use of threat of physical force or violence against any individual.”

Instructions should fully and fairly set out the law applicable to the theories of the respective parties. (People v. Jackson (1969), 116 Ill.App. 2d 304, 253 N.E.2d 527.) The foregoing instructions were submitted by the State in response to defendant’s self-defense instruction given to the jury in which there was language that deadly force was justifiable if a person believed that such force was necessary to prevent imminent death or great bodily harm to himself. We believe, therefore, that the instructions given were proper and necessary to a fair presentation of the issues. They were based on evidence properly introduced at trial. We again observe that it was one of the police officers who first testified that he found the deceased’s empty wallet and identification papers alongside his body. We also note that at the request of defense counsel the words “forcible felony” were substituted for the word “robbery” in the instructions given. Moreover, instructions will be considered as a series and a reviewing court will not reverse merely because one or more instructions are superfluous or misleading. (People v. Hyde (1971), 1 Ill.App.3d 831, 275 N.E.2d 239; People v. June (1969), 106 Ill.App.2d 421, 245 N.E.2d 293.) Even if the references to “forcible felony” were erroneous, our examination of the entire set of instructions reveals that they were fair to defendant. See People v. Marsh (1949), 403 Ill. 81, 85 N.E.2d 715, cert.l denied (1949), 338 U.S. 837.

Defendant’s next contention is that the prosecutor’s closing argument was improper, requiring reversal. Expanding his earlier argument, defendant first complains that the prosecutor, relying on Brown’s testimony, improperly commented that a possible robbery attempt caused the crime. In view of our holding that Brown’s testimony was proper, we find that the comment was warranted by the evidence introduced, and, in any event, we do not consider the remark to have constituted a material factor in the conviction requiring reversal. See People v. Weaver (1972), 8 Ill.App.3d 299, 290 N.E.2d 691.

Defendant also complains generaUy of the prosecutor’s entire closing argument and specifically that the prosecutor improperly referred to him as “Blasting Charley” and as “Smiling Charley.” The record, however, reveals that defendant did not object to his characterization as “blasting,” thereby waiving any possible error. The trial judge sustained defendant’s .objection to the reference to him as “smiling,” and thus cured any prejudice. We have carefully reviewed the record, and the balance of the prosecutor’s closing argument, taken as a whole, appears within the fair comment allowed the State.

Defendant’s final contention, advanced for the first time in a supplemental brief filed by leave of court after oral argument, is that certain comments made by the trial judge during the selection of the jury were erroneous, and that the error was compounded by the failure of the court sua sponte to submit a certain instruction to the jury.

During defense counsel’s argument on his oral motion for a new trial, he raised for the first time in the trial court the issue that during the voir dire the trial judge had attempted to clarify the term reasonable doubt for the jury by use of an example, and that the example given turned out to be factually similar to the present case, thereby prejudicing defendant. By agreement of the parties, no court reporter was present during the voir dire proceedings, and the record reveals that the judge and both attorneys were hazy as to what the judge actually had said. All parties agree, however, that the example given referred to Senator Robert Kennedy’s assassination. Defense counsel recalled that the example was to the effect that if the bullet in a deceased’s body matched a gun found on a defendant, and a witness testified that a defendant fired the shot, this would raise no reasonable doubt. The judge’s recollection was that he said something to the effect that should the State fail to tie a defendant to the gun or to place a defendant at the scene of the crime, reasonable doubt of defendant’s guilt would be created. The trial judge, in denying the motion for a new trial, observed that defendant had made no objection to the comments and that defendant had amply presented his self-defense theory to the jury. Defendant urges that, even accepting the judge’s recollection, the comment was improper because it omitted any reference to justification, the heart of defendant’s defense. (Supreme Court Rule 234 provides that jurors shall not be examined at voir dire on matters of law and instructions, but defendant apparently concedes that no violation of that Rule occurred.)

Our supreme court has stated that reasonable doubt is a term which needs no elaboration and which is futile to attempt to define. Consequently, the court has directed that attempts to define the term be discontinued. (People v. Malmenato (1958), 14 Ill.2d 52, 150 N.E.2d 806, cert, denied (1958), 358 U.S. 899.) Courts should also refrain from attempting clarification of the term by use of examples. Nevertheless, we do not believe that defendant was prejudiced by the court’s comments at voir dire. It is difficult to discern how the example relating to Senator Kennedy’s assassination, given by the trial judge to prospective jurors, could be considered by them to be factually close to the evidence subsequently presented at trial, or how it could have predisposed the jury to find defendant guilty. Defendant presented his self-defense testimony and argument in detail at trial. It is significant also that defendant made no objection to the court’s comment, and did not raise the issue until presentation of the post-trial motion. Indeed, even in this court, defendant concedes that the effect of the error in the court’s remark at voir dire was “clearly tentative” and, standing alone, might be held harmless.

Defendant contends, however that the trial court’s error in commenting about the term reasonable doubt was compounded by the failure of the court sua sponte to submit a certain instruction to the jury.

At the conclusion of the evidence the State submitted IPI — Criminal Instruction Nos. 7.01 and 7.02 defining the crime of murder. As we earlier noted, defendant submitted IPI — Criminal No. 24.06, defining self-defense. The court gave both sets of instructions without any objections having been made. IPI provides, however, that when the issue of self-defense is raised, IPI — 25.05 superimposed on IPI — 7.02 should be given, thus adding the words: “That the defendant was not justified in using the force which he used.” Defendant maintains that the jury was not properly informed that the State must prove beyond a reasonable doubt that defendant’s use of force was not justified.

Ordinarily, failure to object to proposed instructions operates as a waiver of any objections. (People v. Mallett (1970), 45 Ill.2d 388, 259 N.E.2d 241.) However, Supreme Court Rule 451 provides that substantial defects are not waived by a failure to make timely objections if the interests of justice so require. Also see People v. Davis (1966), 74 Ill. App.2d 450, 221 N.E.2d 63.

While the perfect instruction, IPI 25.05 superimposed on IPI 7.02, was not given, we do not find in the instructions given any substantial defect which in the interests of justice would prevent the operation of waiver under Rule 451. The State, without objection, submitted IPI 7.02 defining murder, and defendant himself tendered IPI 24.06 dealing with self-defense and justification. The latter instruction reads as follows:

“A person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force.
However, a person is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.”

In addition, the jury was instructed on the presumption of innocence and burden of proof generally. In light of all the instructions given, defendant was not prejudiced by the fact that an instruction superimposing 25.05 on 7.02 was not given sua sponte by the trial judge.

For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

DEMPSEY and MEJDA, JJ., concur.


author: Mr. PRESIDING JUSTICE T. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry Lee Keister, Defendant-Appellant.
    (No. 73-65;
    Second District
    August 6, 1974.
    Ralph Ruebner and Adam Lutynski, both of the State Appellate Defender’s Office, of Elgin, for appellant.
    F. Lawrence Lenz, State’s Attorney, of Freeport (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Opinion by

Mr. PRESIDING JUSTICE T. MORAN.


author: Mr. JUSTICE SEIDENFELD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Arthur J. Funder, Defendant-Appellant.
    (No. 72-342;
    Second District
    August 6, 1974.

      David E. Braun, of Elmhurst, for appellánt.
    John J. Bowman, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jesse Rodriquez, Defendant-Appellant.
    (Nos. 73-338-41 cons.;
    Second District
    August 6, 1974.

      Ronald Wade, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Morris John, Jr., Defendant-Appellant.
    (No. 72-278;
    Second Division
    August 6, 1974.

      Ralph Ruebner and Richard J. Wilson, both of the State Appellate Defenders Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz and Edward Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Opinion by

Mr. PRESIDING JUSTICE T. MORAN.


author: Mr. JUSTICE CLARK.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mel Eddie Edwards, Defendant-Appellant.
    (No. 12204;
    Fourth District
    July 31, 1974.

      John F. McNichols, J. Daniel Stewart, and Daniel D. Yuhas, all of the State Appellate Defender’s Office, of Springfield, for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (John W. Folts, of Circuit Attorney Project, of counsel), for the People.
   Opinion by

Mr. JUSTICE CLARK.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Drake, Defendant-Appellant.
    (No. 73-205;
    Third District
    August 6, 1974.
    James Geis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Martin Rudman, State’s Attorney, of Joliet, for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Floyd DeBenedetti, Defendant-Appellant.
    (No. 74-193;
    Third District
    August 5, 1974.
    James Geis, of State AppeHate Defender’s Office, of Ottawa, for appeUant.
    Martin Rudman, State’s Attorney, of JoHet, for the People.
   PER CURIAM.


author: Mr. JUSTICE GEORGE J. MORAN

text:
    The City of Cairo, Plaintiff-Appellee and Cross-Appellant, v. Fair Employment Practices Commission et al.—(Julius V. Oats, Sr., Defendant-Appellant and Cross-Appellee.)
    (No. 72-262;
    Fifth District
    May 13, 1974.
    JONES, J., dissenting.

      R R. McMahan, of Lord, Bissell & Brook, of Chicago (Michael P. Seng and Margaret Stapleton, both of Land of Lincoln Legal Assistance Foundation, Inc., of counsel), for Julius V. Oats, Sr.
    William J. Scott, Attorney General, of Chicago (Paul J. Bargiel, Assistant Attorney General, of counsel), for Fair Employment Practices Commission.
    John G. Holland and George J. Kiriakos, both of Cairo, for City of Cairo.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

The Fan Employment Practices Commission, hereinafter referred to as FEPC, on the petition of Julius Oats, Sr., found the City of Cairo’s policy of excluding persons with arrest records from employment on the City’s police force to be a racially discriminatory hiring practice forbidden by section 3(a) of the Illinois Fair Employment Practices Act (Ill. Rev. Stat. 1967, ch. 48, par. 853(a)). The circuit court of Alexander County reversed the FEPC. Oats and the FEPC appeal from the judgment of the circuit court. On cross-appeal the City of Cairo argues that the FEPC lacked jurisdiction to entertain Oats’s petition.

In May of 1969, the appellant, Julius Oats, Sr., filed an application to the Board of Police and Fire Commissioners of the City of Cairo for employment on its police force. After written and oral examinations his name was placed on the list of persons eligible to be employed as a policeman. On August 13, 1969, the Board sent him a letter indicating that it had withdrawn his name from the eligibility list as a result of his arrest record which had been obtained from his state and federal “rap sheets”. The F.B.I. document contained an entry which indicated that Oats had been arrested for army desertion in 1964 by the police of St. Joseph, Michigan, and that he had been charged with disorderly conduct in Chicago in 1968. The Illinois “rap sheet” showed only the Chicago charge. Neither sheet indicated the disposition of these charges.

Subsequently, Oats met with the Board on a number of occasions in an attempt to persuade them to change their minds. Having failed to effect a reversal of their previous decision, Oats filed a charge of unfair employment practice with the FEPG, claiming thát he had been dropped from the eligibility list because of his race. A hearing before an FEPG Hearing Examiner was held on July 2, 1970.

The hearing examiner concluded that Oats was removed, in good faith, because of his arrest record, as indicated by the desertion and disorderly conduct charges. He recommended that the FEPG dismiss' the complaint as there was no evidence of discriminatory intent.

Over 1 year later, on October 29, 1971, the Commission, itself handed down its ruling and, in reversing its own hearing examiner, stated:

“The Commission therefore concludes that the denial by the Board of Fire and Police Commissioners of the City of Cairo of employment to Mr. Julius Oats, Sr., after he had successfully passed both the written and oral examinations, based solely upon his arrest record was discriminatory to Mr. Oats because of his race. Consistent with the Supreme Court’s decision in the Griggs v. Duke Power Co. case, the Commission further finds that the good intent or absence of discriminatory intent upon the part of the Board of Fire and Police Commissioners does not overcome the discriminatory employment procedure.”

On December 3, 1971, the above ruling was appealed to the Circuit Court of Alexander County pursuant to the provisions of the Administrative Review Act (Ill. Rev. Stat., ch. 110, par. 264 et seq.). The court reversed tire Commission’s order and found inter alia:

1. That the Fair Employment Practices Commission did have jurisdiction in the case.
2. That the findings of fact of the Hearing Examiner were supported by a preponderance of the evidence.
3. That as a matter of law of the State of Illinois, the Cairo Board of Fire and Police Commissioners had the authority to determine in 1969 whether to hire a policeman based on his arrest records, and the conclusion by the Fair Employment Practices Commissioners that it was against the law of the State of Illinois and the Constitution to drop police candidate, Julius Oats, from the police eligibility list on the basis of arrest records was in error.
4. That there was no showing on this record that the Cairo Police and Fire Board applied any different standard for a black man •than a white man in removing police candidates from the police eligibility list because of arrest records.

We deal with the following issues:

I. Whether the FEPG had jurisdiction in this matter.
II. Whether appellant Oats was removed from the eligibility list solely on the basis of his arrest record.
III. Whether the City of Cairo’s hiring policy in 1969 of excluding persons from employment because they had arrest records was inherently racially discriminatory regardless of lack of motive or intent to discriminate or evenness of application of the policy.

I.

We first consider the city’s contention on cross-appeal that the FEPC lacked jurisdiction to entertain Oats’s petition.

The city argues that the FEPC lacked jurisdiction to entertain Julius Qats’s charge that the city had committed an unfair employment practice when its Board of Police and Fire Commissioners removed his name from the list of eligible candidates for employment as a police officer. The city contends that the above decision of the Board was a “final administrative decision” and, as such, subject to the provisions of the Administrative Review Act (Ill. Rev. Stat., ch. 110, par. 265); that the Administrative Review Act was Mr. Oats’s exclusive remedy from the adverse decision of the Board; that the appellant failed to file for review within 35 days thereafter, pursuant to section 267 of the Administrative Review Act; and that as the result of the failure to appeal in accordance with the provisions of section 267, Mr. Oats is jurisdictionally barred from having the matter considered by way of an alternate remedy.

We reject the city’s contention in this regard for two reasons. First, the Administrative Review Act itself (Ill. Rev. Stat. 1967, ch. 110, par. 265) provides:

“This Act shall apply to and govern every action to review judicially a final decision of any administrative agency * * *. In all such cases, any other statutory, equitable or common law mode of review of decisions of administrative agencies heretofore available shall not be employed after the effective date hereof.” (Emphasis added.)

Although the Administrative Review Act thus governs actions to review judicially final decisions of administrative agencies subject to its provisions, this court is of the opinion that filing a petition with the FEPC simply cannot be construed as an action to review judicially a decision of an administrative agency. Furthermore, the Administrative Review Act expressly prohibits modes of review of administrative agencies “heretofore available” but makes no mention of subsequent remedial alternatives. The Fair Employment Practices Act was enacted in 1961, 16 years subsequent to the enactment of the Administrative Review Act. In enacting the Fair Employment Practices Act, the General Assembly created a new substantive cause of action. The statute was specifically made applicable to municipal corporations such as the City of Cairo (Ill. Rev. Stat. 1971, ch. 48, par. 852(d)(ii)). To enforce the new substantive rights created by the Act, the General Assembly created the FEPC and vested it with jurisdiction to adjudicate disputes arising under the Act. The interpretation of the law governing administrative review which is urged by the City of Cairo would frustrate the legislative intent by barring access to that remedy in any case where a governmental administrative body has committed an unfair employment practice. Jurisdictional issues have been resolved in analogous situations, in favor of effectuating the individual’s civü rights (Evans v. Local Union 2127, 313 F.Supp. 1354; United States v. Georgia Power Co., 301 F.Supp. 538). We agree with and affirm the order of the circuit court wherein it found that the FEPC had jurisdiction in this matter.

II.

We next consider whether Jufius Oats was dropped from the police eligibffity fist solely on the basis of his arrest record. The hearing examiner, the fuH FEPC and the circuit court aH viewed the case in this context. The city has attempted to confuse the issue on appeal by interjecting a number of factors which were not considered by the Board of Pofice and Fire Commissioners at the time they made the decision to drop Oats from the eligibffity list. A careful review of the record clearly shows that Julius Oats was removed from the police eligibility fist solely on the basis of his arrest record.

III.

We now consider the central issue in this case of whether the City of Cairo’s hiring policy in 1969 of excluding persons from employment because they had arrest records was inherently racially discriminatory, regardless of lack of motive of intent to discriminate or evenness of application of this policy so as to constitute an unfair employment practice within the meaning of the Illinois Fair Employment Practices Act.

The racial discrimination provisions of Federal and Illinois law are substantially identical (compare the Federal Civil Rights Act of 1964, 42 U.S.C. 2000a et seq., and the Illinois Fair Employment Practices Act, Ill. Rev. Stat., ch. 48, par. 853). Thus, in the absence of Illinois cases dealing with this issue, the Federal decisions regarding racial discrimination in employment, while not controlling, are relevant and helpful precedents.

We observe that the hearing examiner, the FEPC, and the circuit court apparently agreed upon the facts but disagreed as to the legal implications of those facts. The conclusions of law reached by the examiner and the circuit court strongly suggest that both felt that a finding of a racially discriminatory employment practice must be predicated upon a finding of a racially discriminatory motive on the part of the employer. The circuit court apparently relied heavily on the fact that the policy was applied uniformly to black and white applicants in concluding that the policy was not racially discriminatory. However, the Commission apparently felt that since the policy operated to exclude Negroes, neither the employers motive nor the evenness of application of the policy was as important as the consequences of the policy. This court feels that the issue of motive is controlled by the following case:

In Griggs v. Duke Power Co. (1971), 401 U.S. 424, the United States Supreme Court decided a case involving an employer who required that job applicants either possess a high school diploma, or pass a general intelligence test. It was held that these requirements had the effect of excluding disproportionate number of black persons from employment and that therefore the requirements were an unfair employment practice under the 1964 Civil Rights Act. The Court said:

“* * * [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capabilities.
» # #
Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation. More than that, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question.” 401 U.S. at 432. Emphasis added.

This court agrees with Griggs that the consequences of a policy can cause it to be an unfair employment practice regardless of the intent or motive of the employer. There is nothing in the Illinois Act which suggests that the legislature intended for the statute to apply only to cases of racially motivated employment discrimination, rather than to all cases where an employment practice operates to discriminate racially as a matter of fact.

In Gregory v. Litton Systems, Inc. (C.D. Calif. 1970), 316 F.Supp. 401, the court found an employers “no-arrest” hiring policy was racially discriminatory in effect. In Gregory a worker was discharged when he revealed to his employer that he had a record of 13 arrests. It was stipulated that Litton had a policy of not employing persons with a record of arrests and that Gregory had been discharged for that reason alone, as is found in the present case. In Gregory the court held:

“Negroes are arrested substantially more frequently than whites in proportion to their numbers. The evidence on this question was overwhelming and utterly convincing. For example, Negroes nationally comprise some 11% of the population and account for 27% of reported arrests and 45% of arrests reported as ‘suspicion arrests’. Thus, any policy that disqualifies prospective employees because of having been arrested once, or more than once, discriminates in fact against Negro applicants. This discrimination exists even though such a policy is objectively and fairly applied as between applicants of various races. A substantial and disproportionately large number of Negroes are excluded from employment opportunities by Defendant’s policy.
# # #
If Litton is permitted to continue obtaining information concerning tire prior arrests of applicants for employment which did not result in convictions, the possible use of such information as an illegally discriminatory basis for rejection is so great and so likely, that, in order to effectuate the policies of the Civil Rights Act, Litton should be restrained from obtaining such information. However, Litton should be permitted to obtain and inspect information which is on the public record concerning the prosecution and trial of any prospective employee, even if the proceeding eventually resulted in an acquittal. Records of arrests which do not result in formal prosecution or trial, are not matters of public record.
# # #
The policy * * * is unlawful because it has the foreseeable effect of denying black applicants an equal opportunity for employment. It is unlawful even if it appears, on its face, to be racially neutral and, in its implementation, has not been applied discriminatorily or unfairly as between applicants of different races.” (316 F.Supp. 401 at 403.) Gregory was affirmed (472 F.2d 631 (9th Cir, 1972)) on the authority of Griggs.

The case of Carter v. Gallagher (1971), 452 F.2d 315, which affirmed an order of the lower court that the Minneapolis, Minnesota Civil Service Commission delete any reference to applicant’s arrest records from applications for employment with the Minneapolis Fire Department is also in accord with Gregory.

The Federal Equal Employment Opportunities Commission, following the district court opinion in Gregory v. Litton has found in a number of cases that employers’ “no-arrest” hiring policies are racially discriminatory in effect, and not job-related. (See, e.g., EEOC Decision No. 72-1497, CCH Employment Practices Guide, par. 6352; EEOC Decision No. 72-1460, CCH Empl. Prac. Guide, par. 6341; EEOC Decision No. 72-0996, CCH Empl. Prac. Guide, par. 6333; EEOC Decision No. 71-2089, CCH Empl. Prac. Guide, par. 6253; EEOC Decision No. 72-0427, CCH Empl. Prac. Guide, par. 6312; EEOC Decision No. 71-2682, CCH Empl. Prac. Guide, par. 6288.) In the vast majority of these cases, the EEOC merely relied on the nationwide arrest statistics of the FBI’s annual “Uniform Crime Reports” for the years 1968, 1969 or 1970 as evidence that arrest record hiring criteria have an inherently discriminatory impact upon black job applicants.

The above cases and decisions of the EEOC persuade this court that the action of the Cairo Board of Fire and Police Commissioners was discriminatory in fact, and in violation of the Illinois Fair Employment Practices Act.

For the foregoing reasons, the judgment of the circuit court of Alexander County is reversed and the order of the Illinois Fair Employment Practices Commission is reinstated.

Judgment reversed.

CREBS, J., concurs.

JONES, J., dissents.

       It was subsequently learned that the Army desertion charge was changed to a charge of “Absent Without Leave” and Oats was discharged from the Army “Under Honorable Conditions”. The Chicago disorderly conduct complaint charged the defendant with collecting in a crowd for unlawful purposes. However, the presiding judge refused to issue a warrant.

       In 1971 the General Assembly amended chapter 48, paragraph 853 by P.A. 77-1552, paragraph 1, making it an unfair employment practice: “* ° * (e) For any employer, employment agency or labor organization to inquire on a written application whether a job applicant has ever been arrested; * * This became effective September 17, 1971, and thus has no application to the 1969 action of the City of Cairo.

       See footnote 2, swpra.