text:
    Alfred Engineering, Inc., et al., Plaintiffs-Appellees, v. Illinois Fair Employment Practices Commission et al., Defendants-Appellants.
    (No. 12251;
    May 27, 1974.

      William J. Scott, Attorney General, of Chicago (Paul J. Bargiel, Assistant Attorney General, of counsel), for appellants.
    Winston & Strawn, of Chicago, and Robert E. Dehen, of Springfield, for appellee.
    John Hudson and Judith S. Bernstein, both of Chicago, for amici curiae The Chicago Council of Lawyers.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

This case is here upon an interlocutory appeal from an order of the circuit court of Sangamon County granting a preliminary injunction against the Illinois Fair Employment Practices Commission and its individual members, restraining the enforcement of certain rules and regulations of the Commission with reference to an affirmative action program relating to public contracts. We reverse and remand with directions to dismiss the complaint for want of equity.

A complaint in chancery and for declaratory judgment was filed in the circuit court on March 30, 1973, alleging that the Commission had promulgated certain rules and regulations, the substantive effect of which was to require bidders, contractors, and sub-contractors to undertake certain affirmative action programs with reference to minority employment in connection with contracts for State goods and services. The complaint purported to be filed on behalf of the listed plaintiffs and all other contractors similarly situated; in short, it purported to be a class action.

On the same day, a motion for a temporary restraining order was filed; the motion was allowed, and the court ordered an injunction to issue, without bond or notice, restraining the enforcement of the rules and regulations and setting a motion for a preliminary injunction for a hearing on April 10, 1973. On April 6, a motion was filed to vacate the temporary restraining order. Thereafter, on April 10, a preliminary injunction was issued of the same substantive effect as the original temporary restraining order. Upon appeal, this court entered an order staying the force and effect of the preliminary injunction. This interlocutory appeal follows.

Essentially, the complaint upon which the extraordinary injunctive relief was granted by the trial court sought a declaratory judgment and an injunction barring the enforcement of the rules and regulations which were alleged to be in excess of the statutory authority of the Commission, arbitrary, discriminatory, overly vague and oppressive; and an attempt to establish unlawful and unconstitutional procedure for bidding on State construction contracts, and, finally, an invasion of a federally preempted field. Plaintiffs and all of the class which they purport to represent are employers and contractors or subcontractors as defined in the attacked rules. Plaintiffs and the class they represent are described as ones who would seek construction contracts with the State and who have been awarded past construction contracts with the State upon State construction bids with a value in excess of $500 million.

The rales and regulations provide for affirmative action to eliminate discrimination in the construction industry and are purportedly promulgated pursuant to sections 4 and 4A of the Illinois Fair Employment Practices Act (Ill. Rev. Stat. 1973, ch. 48, ¶¶ 854, 854A):

“Public Contracts. Every contract to which the State, any of its political subdivisions or any municipal corporation is a party shall be conditioned upon the requirement that the supplier of materials or services or the contractor and Ms subcontractors, and all labor organizations furnishing skilled, unskilled, and craft union skilled labor, or who may perform any such labor or services, as the case may be, shall not commit an unfair employment practice in this State as defined in this Act. To the full extent to which the State may have authority with respect to such contracts, this Section shall be applicable.
Rules and regulations. The Commission shall have the authority to issue rules and regulations for the purposes of enforcement and admirastration of Section 4 of tins Act and rules and regulations adopted hereunder. All rules and regulations adopted under this Section shall be consistent with Section 4.
No contract shall be awarded by the State to any employer found by the Commission to have violated its rules and regulations until the Commission shall certify that the violation has ceased. For each violation that occurs there may be deducted from the amount payable to the contractor by the State of Illinois a penalty of $5 for each calendar day that the violation persists. Further, the State, any of its political subdivisions or any municipal corporation may avoid any such contract at its option and it may sue and shall recover the profits earned on such contract. Added by P.A. 77-1552, § 1, eff. Sept. 17, 1971.”

An allegation in the complaint is to the effect that the rules and regulations are beyond the authority of the Commission, it being the contention of the plaintiffs that the Commission is limited to rules and regulations with reference to specific statutorily defined unfair employment practices. Section 3 of the Act does provide that nothing in the Act shall preclude an employer from hiring or selecting between persons for any reason except for the unfair employment practices specifically prohibited by the Act. Thus, in substance, the plaintiffs contend that there is no statutory authority for the Commission to undertake affirmative action plans since discriminatory employment is an unfair employment practice by statute and under-utilization of minorities and women is not an unfair employment practice. The relevant rules and regulations are:

SECTION 2.8. The term “Contractor” means any person who bids or applies for, who is considered for, or who has been awarded a contract by a contracting agency either through a competitive bidding procedure or otherwise.

Section 2.9. The term “Responsible” describes any person who conforms to the Equal Employment Opportunity requirements of these Rules and Regulations and is therefore eligible to bid on or be awarded a contract or subcontract.

Section 2.13. The term “underutilization” means having fewer minorities or women in a particular job classification than would reasonably be expected by their availability.

Section 3.1. Each contracting agency shall insure that every contract to which it is a party shall contain the following clause:

EQUAL EMPLOYMENT OPPORTUNITY

In the event of the contractor’s noncompliance with any provision of this Equal Employment Opportunity Clause, the Illinois Fair Employment Practices Act or the Fair Employment Practices Commission’s Rules and Regulations for Public Contracts, the contractor may be declared nonresponsible and therefore ineligible for future contracts or subcontractors with the State of Illinois or any of its political subdivisions or municipal corporations, and the contract may be cancelled or avoided in whole or in part, and such other sanctions or penalties may be imposed or remedies invoked as provided by statute or regulation. During the performance of this contract, the contractor agrees as follows:

(1) That it will not discriminate * * * and that it will examine all job classifications to determine if minority persons or women are underutilized and will take appropriate affirmative action to rectify any such underutilization.

(2) That, if it hires additional employees in order to perform this contract or any portion hereof, it will determine the availability (in accordance with the Commission’s Rules and Regulations for Public Contracts) of minorities and women in the area(s) from which it may reasonably recruit and it will hire for each job classification for which employees are hired in' such a way that minorities and women are not underutilized.

(4) That it will send to each labor organization * * * with which it has or is bound by a collective bargaining or other agreement * * * a notice advising such labor organization * * * of the contractor’s obligation under the * * * Act and the Commission’s Rules * * *. If any such labor organization * * * refuses to cooperate with the contractor in its efforts to comply with such Act and Rules and Regulations, the contractor * * * will recruit employees from other sources * * *.

(7) * * * [N]o contractor will utilize any subcontractor declared by the Commission to be. nonresponsible * * *. Section 4.1 (b) Each contractor and subcontractor shall examine all its job classifications to determine if minority persons or women are underutilized in any such classifications (See section 4.2 hereof). If underutilization exists in any job classification, the contractor or subcontractor shall take appropriate affirmative action to rectify any such underutilization.

Section 4.2 (a) Underutilization of minorities means having fewer minority workers in a particular job classification than would reasonably be expected by their availability. The availability of minority workers for any job classification shall be determined by the minority population percentages of the area(s) from which the contractor or subcontractor may reasonably recruit and the unemployment rates of minorities as compared to unemployment rates of nonminorities in such area(s). In addition, the contractor or subcontractor shall consider in such recruitment area(s):

(i) the size of the minority unemployment force;

(ii) the numbers of minorities having requisite skills;

(iii) the promotable and transferable minorities within the contractor’s or subcontractor’s organization;

(iv) the existence of training institutions capable of training persons in the requisite skills; and

(v) the degree of training which the contractor or subcontractor is reasonably able to undertake as a means of making all job classifications available to minorities.

(b) [Identical to 4.2) (a) except “women” is substituted for “minorities”.]

Section 4.3 Affirmative Action Plans. When required pursuant to Sections 4.1, 5.1 or 5.2 hereof, contractors and subcontractors shall develop and implement written affirmative action plans, acceptable to the Commission, to overcome underutilization of minority persons and/or women. An acceptable affirmative action plan shall include:

(i) a description of the contractor’s or subcontractor’s workforce analysis made in accordance with Section 4.2 hereof; and

(ii) goals and timetables to which the contractor’s or subcontractor’s recruitment, hiring or promotion efforts shall be directed to correct any identified underutilization. * * *

Affirmative action plans developed pursuant to another governmental program may be accepted by the Commission. Contractors or subcontractors found by the Commission not to be under-utilizing minorities or women according to Section 4.2 hereof shall not be required to develop an affirmative action plan. Section 4.5. * * * If any labor organization with which such contractor or subcontractor has an exclusive hiring or referral arrangement fails or refuses to refer minority or female applicants to the contractor or subcontractor in numbers sufficient for it to meet its obligations under these Rules and Regulations and any affirmative action plan, the contractor or subcontractor shall solicit and employ minority or female applicants from other sources. It shall be no excuse that the labor organization with which the contractor or subcontractor has such an agreement failed to refer sufficient minority or female employees.

Section 5.1. (a) Beginning July 1, 1973, no person shall be eligible to bid on a contract subject to the competition bidding requirements of the Illinois Purchasing Act * * * unless such person at least ten days prior to bid opening:

(1) is prequalified by the Commission as to its equal employment opportunity responsibility; or

(2) is not subject to a current Order of Noncompliance and has pending before the Commission a current application for such prequalification, * * * which has not been denied by the Commission.

(b) The Commission will [malee a] determination as to whether the applicant shall be so prequalified to bid on contracts.

(c) If, in the course of a compliance review conducted pursuant to Section 5.3 hereof, the Commission finds that a prequalified bidder or applicant for prequalification is underutilizing minorities and/or women in any job classification * * * it shall require the prequalified bidder or applicant for prequalification to submit an acceptable affirmative action plan * * *. If such person fails or refuses to submit an acceptable affirmative action plan, the Commission shall issue and serve an Order of Noncompliance * * * suspending or revoking such prequalification. Section 5.2 (a) Beginning April 1, 1973, all bidders on construction contracts subject to the competitive bidding requirements of the Illinois Purchasing Act * # # shall complete and submit along with' and as part of their bids, a Bidders Employee Utilization Form — Construction * * * setting forth a projection and breakdown of the total workforce intended to be hired and/or allocated to such contract work by the bidder including a projection of minority and female employee utilization in all job classifications on the contract project.

(b) The contracting agency letting such a contract shall review the * * * projections * * * of the contract awardee to determine if such projections reflect an underutilization * * *. If it is determined that the contract awardee’s projections reflect an underutilization * * * it shall be advised in writing of the manner in which it is underutilizing and such awardee shall be considered to be in breach of the contract unless prior to commencement of work on the contract project, it submits an acceptable written affirmative action plan to correct such underutilization including a specific timetable geared to the completion stages of the contract.

Section 5.4. (a) If, pursuant to a compliance review, the Commission determines that a contractor, subcontractor, applicant for prequalification or prequalified bidder is not in compliance with the Act or these Rules and Regulations, the Commission shall issue and serve upon such person and any contracting agency a written Order of Noncompliance setting forth the manner in which it finds such person has violated these Rules and Regulations and imposing and/or requiring the imposition of appropriate legal sanctions, such as for example: (i) denying, suspending or revoking prequalification or declaring the contractor or subcontractor nonresponsible and ineligible for future contracts or subcontracts until such time as the contractor or subcontractor shall demonstrate to the Commission, in accordance with Section 5.8 hereof, that it is in compliance; (ii) withholding or delaying payment on the contract; (iii) suspending, avoiding or cancelling contract work; (iv) assessing the statutory monetary penalty.

(b) A person that has been found * * * to have violated the Act or these Rules and Regulations may appeal the Commission’s Order of Noncompliance by filing with the Commission, within ten (10) days after service of the Order upon it, a written request for a hearing. * * An Order of Noncompliance shall become an Order and Decision of the Commission if, upon expiration of the period during which any party may appeal therefrom, no such appeal shall have been taken.

ARTICLE VII — Judicial Review. Any person who desires to contest an Order and Decision of the Commission issued pursuant to these Rules and Regulations in a matter to which it was a party may apply for and obtain judicial review thereof as provided in Section 10 of the Act.

The temporary restraining order has expired, having been supplanted by the preliminaiy injunction. Both orders are appealable however by an interlocutory appeal under Supreme Court Rule 307. See Bohn Aluminum & Brass Co. v. Barker, 55 Ill.2d 177, 303 N.E. 2d 1.

In the trial court and in this court the defendants have contended that it was error to grant injunctive relief, asserting that the plaintiffs lacked standing to sue; that the rules and regulations are valid, and finally, that the issues presented upon this appeal are not ripe for judicial determination in that the plaintiffs have an adequate remedy at law.

Recently this court discussed circumstances under which injunctive relief was available without notice and without bond. That which we observed in Hill v. Village of Pawnee, 16 Ill.App.3d 208, 305 N.E.2d 740, is applicable here insofar as it relates to the temporary restraining order. The preliminary injunction was issued after notice but without bond.

Upon this interlocutory appeal we do not reach the merits of the case, the single justiciable issue being whether the trial court properly granted the preliminary injunctive relief. (Hill v. Village of Pawnee.) However, upon an interlocutory appeal, the appellant is permitted to ask - this court to determine not only whether the trial court had the discretionary right to issue the temporary or preliminary injunction but also to consider whether or not the complaint upon which the temporary injunction was issued was proper to sustain such injunction (Ware v. D.R.G., Inc., 17 Ill.App.3d 758, 307 N.E.2d 740) or to sustain a judgment.

The alleged irreparable injury to the plaintiffs is central to several issues upon this appeal. It relates to the issue of standing, justiciability, and the likelihood of the success upon the merits — all of which are relevant to, and in fact determinative of, plaintiffs’ right to temporary injunctive relief. An obvious and threshhold difficulty in the complaint relates to the allegation of injury. The basic injury alleged is that the plaintiffs will be impaired in their ability to bid competitively for State contracts. The fact that this suit is brought as a class action clearly indicates that no competitive injury could result to any of the plaintiffs. The class is composed of all contractors who intend to compete with each other in bids for State contracts. We fail to perceive how the allegedly invalid regulations can affect plaintiffs uniformly as a class and competitively at the same time. Indeed, such is not possible. There is no allegation that the attacked regulations are not applicable to every member of the class and there is no allegation that any member is less able to comply with the regulations than other members of the class, all of whom are described as prospective bidders. Thus, each plaintiff as a prospective bidder is on an equal footing with all others. Injury by reason of competitive disadvantage cannot exist.

Upon the issue of the plaintiffs’ standing to sue and ripeness for judicial determination, we consider three United States Supreme Court cases handed down on the same day in which the Court sought to distinguish between cases where pre-enforcement judicial determination of agency rules would be considered. The Court limited judicial preenforcement review in the Federal courts to administrative rules and regulations involving a straightforward legal issue and discussed the fitness of the issue for judicial decision and the hardship to the parties of withholding Court consideration. (Abbott Laboratories v. Gardner, 387 U.S. 136, 18 L.Ed.2d 681, 87 S.Ct. 1507; Toilet Goods Association, Inc. v. Gardner, 387 U.S. 158, 18 L.Ed.2d 697, 87 S.Ct. 1520; Gardner v. Toilet Goods Association, Inc., 387 U.S. 167, 18 L.Ed.2d 704, 87 S.Ct. 1526.) While this case does involve the issue of whether or not the regulations are authorized by statute, it also involves pre-enforcement adjudication upon a factual situation totally unlike that found in Toilet Goods Association, Inc. v. Gardner. Here, the alleged immediate severity of the regulations’ impact upon the plaintiffs in no way indicates preenforcement relief. The feared injury here is clearly prospective and it is neither severe nor immediate.

Furthermore, Illinois has indicated that there is a distinct difference between the Federal requirements of justiciability and those of this State. (Cusack v. Howlett, 44 Ill.2d 233, 254 N.E.2d 506.) It is clear however that the rationale of Perkins v. Lukens Steel Co., 310 U.S. 113, 84 L.Ed. 1108, 60 S.Ct. 869, insofar as it relates to governmental freedom of contract, is applicable in Illinois. Thus, in Bradley v. Casey, 415 Ill. 576, 114 N.E.2d 681, our supreme court quoted with approval language to the effect that a contractor is not allowed to do public work in any mode he may choose to adopt without regard to the wishes of the State. In this connection, we note that the contractors do not appear here, nor aHege themselves to be, nor assert their right to relief as taxpayers. Thus, the line of cases with reference to the right of a taxpayer to enjoin expenditures of public funds have no application.

The plaintiffs’ reliance upon Illinois State Employees, Association v. McCarter, 9 Ill.App.3d 764, 292 N.E.2d 901, is misplaced. There the individual plaintiffs and the associations had a direct, immediate and non-speculative interest in a straightforward legal issue that was ripe for determination. In this case, the burdens allegedly placed upon the plaintiffs are clearly prospective only and any injury, if one is even determined to exist, is speculative and wholly dependent upon a series of future contingencies. While the plaintiffs must prequalify they are really subject to the specificities of the rules complained of only if as bidders they succeed in being awarded a contract and then only if, as contractors, the rules and regulations are not waived, or only if they somehow become aggrieved by reason of the administration of the rules and regutions that after a hearing may result in an order of noncompliance.

Section 5.1 of the rules and regulations provides for prequalification of prospective bidders while section 2.6 defines “Contractor” to include any person who bids or applies for a contract or who has been awarded a contract. We note that section 3.1 requires that each contracting state agency shall insure that every contract shaH contain the Equal Employment Opportunity clause. That clause is limited in its application to “Contractor” used in the sense of a bidder that has been awarded a contract.

The rules further provide for intra-agency proceedings to determine compliance. Any finding of noncompliance by reason of the intra-agency proceedings is subject to an administrative hearing in accordance with the procedures detafied in the rules. After the administrative proceedings have been completed, any person who desires to contest any order that the Commission might enter has the right to apply for and obtain judicial review of such order, (See Ill. Rev. Stat. 1971, ch. 48, f 860.) In this case, therefore, administrative and judicial review are available to any person who can establish a grievance. The availability of this elaborate machinery to the plaintiffs and all members of the class which they purport to represent clearly shows that they have an adequate remedy at law. This appears from the complaint and its attachments.

We also note that the Fair Employment Practices Act has no provision for pre-enforcement review of rules and regulations of the Commission whereas the legislature has provided for pre-enforcement review of rules and regulations of another agency — the Pollution Control Board. Such provision is found in the Environmental Protection Act. Ill. Rev. Stat. 1971, ch. 111½, ¶ 1029.

We next consider the contention of the plaintiffs that the federal government has acted to establish affirmative action programs and that the action of the Federal government is applicable to construction in Illinois. It is urged that the Federal regulations are preemptive and that under the Supremacy Clause Illinois is lacking authority to issue such regulations. While we dispose of this case upon the issues hereinabove discussed, it is appropriate to note that the United States Court of Appeals (1st Cir.) considered like contentions in Associated General Contractors v. Altshuler, 490 F.2d 9, 15, cert. denied, 42 U.S. L.W. (U.S. April 22, 1974), and concluded:

“Nor is there any indication that the federal government has intended to preempt this field. Federal preemption should not be presumed, absent ‘a clear manifestation of intention to preempt the field. Schwartz v. Texas, 344 U.S. 199, 202-203 (1952); see also New York State Department of Social Service v. Dublino, 41 U.S.L.W. 5047 (U.S. June 21, 1973). The President’s Executive Order merely requires that contractors take some ‘affirmative action and directs the Secretary of Labor to ‘use his best efforts’ through ‘state and local agencies’ as well as federal agencies. The Secretary of Labor has stated, as amicus curiae, that the federal program is not meant to preempt state programs such as the Commonwealth’s § IB. And congressional policy in this area, as expressed in Title VII of the Civil Rights Act of 1964, the statute most closely analogous to the President’s Executive Order, is clearly one of encouraging state cooperation and initiative in remedying racial discrimination. Title VII, 42 U.S.C. § 2000h-4 expressly disclaims any intent to preempt state action. See also Voutsis v. Union Carbide, 452 F.2d 889 (2d Cir. 1971), cert. denied, 406 U.S. 918 (1971)."

We agree.

Accordingly, we hold that the action of the trial court in the issuance of the preliminary injunction was error. We further hold that the permanent relief sought cannot be obtained upon this complaint by these plaintiffs, thus remandment to the circuit court for further consideration is not warranted. The order of the circuit court of Sangamon County is reversed.

Reversed.

SMITH, P. J., and SIMKINS, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SCOTT Mr. JUSTICE STOUDER,

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dennis J. Minish, Defendant-Appellant.
    (No. 73-144;
    Third District
    May 20, 1974.

      STOUDER, J., dissenting.
    Robert Agostmelli, of Office of State Appellate Defender, of Ottawa, for appellant.
    C. Brett Bode, State’s Attorney, of Pekin (Jay H. Jansen, Assistant State’s Attorney, of counsel), for tire People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

After trial by jury in the circuit court of Tazewell County, Dennis Minish, the defendant, was found guilty of the crime of robbery and sentenced to a term of not less than 2 nor more than 6 years in the penitentiary.

The factual situation which resulted in the defendant’s conviction is as follows. On November 1, 1972, a William Durlacher was at his place of employment which was a Clark Service Station in Morton, Illinois. At 3 A.M. on this date the defendant and his companion, a Michael Peters, approached the station on foot and the defendant entered the building and inquired of the attendant Durlacher as to the location of the rest room. After receiving this information the defendant and Peters walked around the side of the building together. In approximately 2 or 3 minutes Peters entered the station, brandished a pistol (which was subsequently discovered to be a blank pistol) and announced a robbery. During this time the defendant was standing outside the door of the service station. Durlacher gave Peters $50 and some change. After receiving the money Peters left the station, said something to the defendant and pushed him in a westerly direction while he fled to the east.

Within minutes after the robbery both the defendant and Peters were apprehended by the police. At the time of their apprehension they were in a car being driven by Peters. At this time the police officer observed the defendant shuffling his feet in an effort to kick something under the car. An officer then found the gun used in the robbery under the car near the right front wheel. It was also at this time discovered that Peters had on his person $39 and some odd cents. The defendant had a $10 bill and a $1 bill.

During the course of the defendant’s trial Peters testified to the effect that he decided to rob the gas station while he was in the rest room and that the defendant did not know of his intention prior to the robbery. He further testified that it was not until they were being apprehended that he informed the defendant that he had committed the robbery. He further stated that he did not give the defendant any of the proceeds of the robbery but had given him $10 earlier in the night.

The defendant’s first contention is that his accountability for the robbery committed by Peters was not proven beyond a reasonable doubt.

A person is legally accountable for the conduct of another when, either before or during the commission of an offense and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees, or attempts to aid, such other person in the planning or commission of the offense. (People v. Jones, 12 Ill.App.3d 643, 299 N.E.2d 77.) The proof of such acts, which would show a common purpose between individuals to perpetrate a crime need not be supported by words of agreement but can be drawn from the circumstances surrounding the commission of the act. See People v. Bristow, 8 Ill.App.3d 805, 291 N.E.2d 189.

In the instant case we not only have no proof of words of agreement between the defendant and his companion Peters, but on the contrary have direct testimony from Peters to the effect that there was no common purpose to commit the robbery. In examining the evidence adduced during defendant’s trial we find (1) at 3 A.M. the defendant and Peters approached the station together, (2) tire defendant stood outside the door while Peters robbed the attendant, (3) tire defendant and Peters fled together, (4) they were apprehended together, (5) the defendant attempted to hide the gun used in the robbery, and (6) the defendant and Peters had between them the exact amount of money which was taken in the robbery.

When confronted with such evidence could the jury correctly conclude that the defendant had the intent to assist in promoting the crime and did in fact aid and abet in its commission. We believe that the jury could and did correctly reach such a conclusion. To prove guilt beyond a reasonable doubt does not mean that a jury must disregard inferences that flow normally from the evidence. (People v. Chamberlain, 5 Ill.App.3d 235, 282 N.E.2d 784.) We are of the opinion that the jury’s verdict is supported by the evidence notwithstanding the testimony of Peters which if believed would have exculpated the defendant. It is within the province of the jury to determine the credibility of all witnesses and the weight to be given their testimony, and a verdict will not be reversed unless the evidence is so unsatisfactory as to leave reasonable doubt of defendant’s guilt. People v. Willis, 126 Ill.App.2d 348, 261 N.E.2d 723.

The defendant next assigns as reversible error the trial court’s refusal to give Criminal Instruction 3.02 in its entirety.

The State tendered and the court gave a circumstantial evidence instruction which included only the first paragraph of I.P.I. Criminal Instruction 3.02. That given by the court is as follows:

“Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at a verdict.”

The defendant tendered I.P.I. 3.02 Criminal in its entirety which in addition to the first paragraph above set forth also contained the following additional paragraph:

“You should not find the defendant guilty unless tire facts and circumstances proved exclude every reasonable theory of innocence.”

The committee note contained in Illinois Pattern Jury Instructions— Criminal, regarding instruction 3.02, is that the second paragraph should be given only when the proof of guilt is entirely circumstantial. In the case before us the proof of guilt was not entirely circumstantial, for eyewitness testimony placed the defendant approaching and leaving the scene of the crime with Peters and also placed the defendant just outside the service station door while the robbery was occurring. The attendant who was robbed made an in-court identification of the defendant. We do not believe that such testimony constitutes circumstantial evidence and consequently hold that the second paragraph of I.P.I. Criminal Instruction 3.02 was properly refused.

Lastly the defendant contends that this case should be remanded to the trial court for a hearing to determine whether his appearance before the jury in jail coveralls resulted from a voluntary waiver.

We could well hold that this issue is not properly before this court since defendant made no objection to the wearing of jail coveralls during his trial nor did he assign this point as error in his motion for a new trial. (See People v. Lampson, 6 Ill.App.3d 1099, 286 N.E.2d 358.) We will not, however, dispose of the defendant’s contention on these grounds. The alleged error is one which we deem to be of sufficient import to affect the substantial rights of the defendant and therefore pursuant to Supreme Court Rule 615 (Ill. Rev. Stat, ch. 110A, sec. 615) this court will consider it.

We are mindful of the case of Xanthull v. Beto, 307 F.Supp. 903, in which the court stated that a jail uniform is not inherently prejudicial and the petitioner has the burden to establish the manner in which the uniform prejudiced his right to a fair trial. We are also not unmindful of the opinions of other courts which have adopted the view that an evidentiary hearing is necessary in order to determine whether a defendant’s right to a fair trial was prejudiced by going to trial in jail clothing. See Watt v. Page, 452 F.2d 1174.

A defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error. (Hernandez v. Beto, 443 F.2d 634.) We further note that in Hernandez the court stated “We do not paint with a broad brush these types of cases. Each case must be considered in its own factual context.” (Hernandez v. Beto, 443 F.2d 634.) We agree with this observation and consequently direct our attention to the particulars in the case before us.

As we have stated the defendant at no time objected to being tried in coveralls which is apparently the uniform provided to prisoners by Tazewell County. Instead of objecting to such attire it is clear from the record that defense counsel attempted to use such garb in an effort to elicit sympathy from the jury. In defense counsel’s closing argument to the jury he stated:

“It was not their choice [defendants Peters and Minish] that they had to be brought over in their uniforms. It was not their choice that they had to be paraded around in front of you in handcuffs. If they had the money to get out on bail like most people do, they would be sitting in the courtroom with suits on in a great role. So don’t consider the prejudice of being paraded in front of you out there outside with handcuffs on as another inference of guilt.”

The prosecution in reply stated:

“* * * I’m not interested in the length of Mr. Minish’s hair. I’m not interested in whether he was handcuffed when he was brought over here and I’m not interested in whether he is wearing a prison uniform and I don’t want you to bring back a verdict because of any of these things and I don’t think that you will because of those things. * * *”

We can only conclude after reflecting upon these statements and the record in its entirety that the wearing of coveralls by the defendant did not influence the jury to find him guilty, but instead he was convicted upon the evidence adduced during his trial. We fail to see how any useful purpose could be served by remanding this case to the trial court for an evidentiary hearing to determine whether or not the defendant’s appearance in court attired in jail coveralls was voluntary. It is obvious that he not only did not object to but instead attempted to utilize such attire to his benefit.

For the reasons set forth the judgment of the circuit court of Tazewell County and the sentence imposed thereon is affirmed.

Affirmed.

DIXON, J., concurs.

Mr. JUSTICE STOUDER,

dissenting:

I disagree with the majority and believe the case should be reversed or, at the least, reversed and remanded for new trial.

Treating the issue relating to the instruction on circumstantiál evidence first, it is my conclusion the trial court committed prejudicial error in refusing to give the full instruction. At the outset it should be noted that the theory of accountability which the prosecution used required proof beyond a reasonable doubt that: (1) defendant solicited, aided, abetted, agreed or attempted to aid another person in the planning or the commission of the offense; (2) this participation took place either before or during commission of the offense; and (3) it must be with a concurrent specific intent to promote or facilitate the commission of the offense. These elements are in accord with section 5 — 2(c) of the Illinois Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 5 — 2(c)). I mention these elements at this time in order to furnish a background in which to consider the nature of the evidence, since it would appear fundamental that evidence must be considered in light of what it is offered to prove.

According to the majority opinion the trial court correctly refused to give the full I.P.I. Criminal Instruction 3.02 because there was some direct evidence. Two problems concern me. What is direct evidence as distinguished from circumstantial evidence? Why should the second paragraph not be given merely because there is some evidence which may be regarded as direct evidence? There can be little doubt that the drafters of the pattern instructions did make a recommendation against use of the full instruction unless all of the evidence was circumstantial. On page 21 of I.P.I. Criminal appears:

“See, People v. Guido, 321 Ill. 397, 415-16, 152 N.E. 149, 156-57 (1926).
This instruction should not be given when all of the evidence is direct. People v. Gardner, 4 Ill.2d 232, 240-41, 122 N.E.2d 578, 582 (1954).
The second paragraph should be given only when the proof of guilty is entirely circumstantial.”

I believe it appropriate to consider some aspects of circumstantial evidence in order to establish some background or context against which the entire circumstantial evidence instruction can be reviewed. To the extent the term “circumstantial evidence” is used in contra-distinction to “direct evidence”, the precedents and legal texts are not nearly as definitive on this subject as might be initially supposed. In large measure the lack of much authority on the subject would indicate generally that the distinctions between direct and circumstantial evidence are seldom of critical importance. Circumstantial evidence is most frequently discussed not in contrast to direct evidence but in terms of sufficiency to support a verdict of guilty. In such terms it is considered legal evidence having no abstract legal limitations in so far as it may tend to prove issues in controversy and persuade triers of fact of the truth. Necessarily, when talking of sufficiency of evidence in a criminal case the standard of reasonable doubt is of primary importance. This adds to the confusion concerning definitions of circumstantial evidence and the application to individual cases because, as has often been said, to define reasonable doubt or its equivalent phrases involves factual arguments rather than legal concepts.

According to Card’s Illinois Evidence Manual, ch. 1, p. 19, r. 4:

“Direct evidence is that which is perceived by the senses and transmitted to the trier of the facts through the testimony of the witness, or which is demonstrated to the trier of the facts by proffering the thing itself in court for inspection. Circumstantial evidence is that from which it may be inferred in reason that other facts are true because of a logical relationship or association between the two.”

In a comment to this rule the author observes:

“Here again a thoroughly accurate definition is difficult. But to emphasize the distinction may be helpful in understanding the sense in which the terms ‘circumstance’ and ‘circumstantial evidence’ are used throughout this work.
Lawyers will have little trouble in recognizing the distinction between direct and circumstantial evidence.”

This latter observation seems somewhat anomalous because the distinction does not appear easily recognized either by courts or text writers.

As stated in 29 Am.Jur.2d Evidence § 264:

“The basic distinction between direct and circumstantial evidence is that in the former instance the witnesses testify directly of their own knowledge as to the main facts to be proved, while in the latter case proof is given of facts and circumstances' from which the jury may infer other connected facts which reasonably follow, according to the common experience of mankind. Circumstantial evidence tells the story of a past transaction by the similitude between the things shown to have been done and what in human experience has been found to be generally the cause or result of similar occurrences.”

In Callaghan’s Illinois Evidence, ch. 1, § 1.06, the following appears:

“Direct evidence is evidence which applies directly or immediately to the fact to be proved, without any intervening process. For example, testimony of a witness who saw an event occur or an offense committed is direct evidence as to the event or offense, and a writing is direct evidence of its existence and contents. On the other hand, circumstantial evidence in a civil case is evidence of circumstances or incidental facts from which the existence or nonexistence of a controverted fact may be inferred, and, in a criminal case, it is evidence of such facts and circumstances connected with or surrounding the commission of the crime charged as tend to show the guilt or innocence of the party charged.”

As authority for the definition of circumstantial evidence in a criminal case the author refers to People v. Shapiro, 371 Ill. 234, 20 N.E.2d 284. In the Shapiro case as well as in the earlier cases of People v. Gould, 345 Ill. 288, 178 N.E. 133, and Parsons v. People, 218 Ill. 386, 75 N.E. 993, the foregoing definition was included in an instruction approved by the court even though a review of the cases indicates an absence of any questions concerning the presence or absence of circumstantial evidence or distinctions between such types of evidence and direct evidence. Again, neither the cases nor the author have directed any critical attention to distinctions based on character of the evidence.

As stated in Illinois Law & Practice Criminal Law, ch. 24, § 433:

“Circumstantial evidence is indirect proof of the principal facts in a case, which principal facts can only be inferred from one or more circumstances directly established.” See also C.J.S. Criminal Lato, § 907.

In McCormick on Evidence (2d ed.), tit. 7, ch. 16, § 185, p. 435, the author observes:

“The characterization of evidence as ‘direct’ or ‘circumstantial’ points to the kind of inference which is sought to be drawn from the evidence to the truth of the proposition for which it is offered. If a witness testifies that he saw A stab B with a knife, and this testimony is offered to prove the stabbing, the inference sought is merely from the fact that the witness made the statement, and the assumption that witnesses are worthy of belief, to the truth of the asserted fact. This is direct evidence. When, however, the evidence is offered also for some further proposition based upon some inference other than merely the inference from assertion to the truth of the fact asserted, then the evidence is circumstantial evidence of this further fact-to-be-inferred. Thus in the case mentioned if the stabbing were proved and the culprit in doubt, testimony that A fled from the scene, offered to show his probable guilt, would be direct evidence of the flight but circumstantial evidence of his murderous act. Similarly, testimony of a witness that he recognized A as one present on the scene would be direct evidence of the facts asserted, but testimony that he saw someone who was disguised and masked, but had a voice and a limp like A’s, would be circumstantial evidence that the person seen was A.”

When it comes to applying the foregoing concepts and theories of circumstantial evidence there are several important conclusions which can be drawn that dispel some of the uncertainties associated with the general rules. When circumstantial evidence is discussed in contrast to direct evidence its most essential characteristic is that it is indirect evidence. Neither direct or indirect evidence nor direct or circumstantial evidence are discrete categories but rather, represent ways of viewing evidence in relation to its probative value, and more particularly, its relevance. Whether evidence is direct or indirect does not depend on the mode of its presentation during tire trial process. In either case the evidence is presented through the testimony of a witness reporting his perception of facts or incidents and it is the nature of the facts or incidents so reported which determines the character of tire evidence. When the facts so reported are variously described as the principal facts, the ultimate facts, the main facts or the facts constituting the offense, the evidence is said to be direct. If, however, deductions or intermediate inferences are required from facts which standing alone do not unequivocally support the charge, then the effect of such evidence is indirect. Motive, opportunity, design, consciousness of guilt or credibility may be deduced or inferred from facts not directly related to guilt and from such inferences and deductions the facts relating to guilt may be established. Facts considered to have indirect relevance to proof of other facts usually by themselves have multiple components, one tending to prove guilt or which is at least consistent with the theory of guilt, and another component consistent with innocence. For instance, if there is testimony that an accused was seen a block away from the scene of the criminal offense at about the time of its commission, it may be inferred from such fact the defendant had opportunity to commit the offense. At the same time, the accused’s presence would be consistent with a claim of innocence as for example, where he was at the location for the purpose of making a purchase. It is the combination of various bits of indirect evidence which tends to establish other facts depending on varying degrees of probability which produces the final or total persuasive effect. Even what is characterized as direct evidence is somewhat probabilistic. For instance, two witnesses may view the same incident or event and describe it differently thereby requiring the conflict to be resolved by some estimation based on probability. The principal difficulty in applying the general observations regarding direct and indirect testimony with the facts of a particular case is the underlying problem of deciding what are ultimate or principal facts or facts directly related to the offense charged. As the terms are generally described, they would apply to what has formerly been characterized as the res gestae. Illustrative of this conclusion is the observation of the court in People v. Bretagm, 298 N.Y. 323, 325, 83 N.E.2d 537, 538, wherein the court observes:

“In other words, direct or positive evidence, as the term is commonly used, means statements by witnesses, directly probative of one or more of the principal, or res gestae’ facts of the case, while circumstantial evidence puts before the tribunal facts which, alone or with others, are in some degree but indirectly, probative of one or more of those principal, or res gestae’ facts, and from which one or more of those principal facts may properly be inferred.”

In the foregoing case, the court concluded that an extrajudicial confession was not circumstantial evidence (although admissions would be so considered) and that consequently, defendant was not entitled to an instruction based on his assertion there was no direct positive evidence but only circumstantial evidence of guilt. To the same effect are People v. Costello, 320 Ill. 79, 150 N.E.712, and People v. Langdon, 133 Ill. 382, 24 N.E. 874, wherein an extrajudicial confession was declared to be direct evidence without discussion or citation of authority. As suggested in- 40 A.L.R. 571, extrajudicial confessions seem to be considered a higher order of evidence then either direct or circumstantial evidence. When direct evidence is related to res gestae it follows that it is subject to the same limitations that the theory of res gestae possesses. Limits of res gestae are not clear and most cases now generally suggest the term relates to the occurrence or transaction and that limiting the definition and application of the term usually serves no useful purpose. On the other hand, if direct evidence is related and limited by the transaction or occurrence test possible confusion arises because these terms also are employed rather broadly in civil cases. Occurrence witnesses, i.e., those persons who have seen some part of the occurrence, from a broad category and would include witnesses whose reported facts would be considered circumstantial or indirect evidence. Such ideas may explain the confusion in a case which I would like to discuss, which in my judgment, makes erroneous assertions concerning the character of evidence as direct or circumstantial. It is People v. Gardner, 4 I11.2d 232, 122 N.E. 2d 578, cited in the committee note to the circumstantial evidence instruction (I.P.I. 3.02, Criminal) for the proposition that where the evidence is all direct evidence an instruction on circumstantial evidence is prejudicially erroneous. The Gardner case after announcing this proposition finds without discussion that all of the evidence is direct evidence and hence, the circumstantial evidence instruction should not have been given. A review of the facts in the Gardner case indicates to me the difficulty of separating direct evidence from circumstantial evidence and confusion as to what direct evidence is. In Gardner, the defendants were charged with robbery and were identified by the victim in open court as the perpetrators of the crime. This testimony would seem to fall squarely within our definition of direct evidence both as to the fact of the criminal offense and as to the identity of the persons committing the offense. However, the State then proceeded to introduce the testimony of two police officers not present at the scene of the offense at the time it was committed who testified that the day after the offense the victim was unable to identify the defendants in a photo showup but 1 to 2 days later identified the defendants in a lineup. It appears to me that an out of court identification is not a principal issue or ultimate fact upon which a criminal charge is based but relates to the truthfulness of the witness, a collateral issue indirectly relevant to the issue of guilt or innocence. Also in the Gardner case, the defendants presented witnesses supporting the defense of alibi. Is not such alibi testimony circumstantial because it seeks to establish inferentially that the defendants had no opportunity to commit the offense because of their presence elsewhere? By implication, the court in Gardner suggests that so long as the evidence is presented by witnesses testifying in court, it is direct evidence and not drcumstantial evidence. The additional cases cited in Gardner in support of its conclusion likewise offer examples of cases where a circumstantial evidence instruction was held inappropriate because the evidence was wholly direct but like the Gardner case they do so without any analysis of the evidence presented. In fact, in each case there would appear to be some evidence which should have been regarded as circumstantial.

I have called attention to the Gardner case primarily for the purpose of illustrating that whatever differences there are in theory between direct and circumstantial evidence, they at best do not offer an adequate basis in many cases for determining whether all of the evidence is of one character or the other. See, e.g., People v. Christiansen, 118 Ill.App. 2d 51, 254 N.E.2d 156, where in a burglary case the court held the corpus delicti was proved by the direct evidence of the filling station lessee even though the lessee did not testify that he saw anyone break into the station, enter the station, or take any money, and when in fact the lessee was not near the station when the burglary occurred during the early morning hours while the station was closed.

In the instant case I believe there is direct evidence since the charge is robbery and the victim testified to the threats of force made by the codefendant and the taking of money by the codefendant as a result of the threats of force. Defendant was charged with robbery and the evidence of the offense and the conduct of the codefendant were essential elements of the charge against defendant. Beyond these facts, the other testimony of the victim, including defendant’s presence at or near the scene, is difficult to characterize in terms of direct or indirect evidence.

This brings me to my final observations on the circumstantial evidence instruction. My conclusion is that limiting the second paragraph of the instruction to only those cases in which all of the evidence is circumstantial is neither justified by the nature of circumstantial evidence nor by precedential authority. The circumstantial evidence instruction is not as clear a definition of the term as one might suppose would be understandable by a lay jury. It well may be that because direct and circumstantial evidence are complementary, no satisfactory definition can be proposed independent of what is considered to be direct evidence. The drafters of the pattern instruction have, in my judgment, substantially improved the instruction regarding circumstantial evidence which theretofore had usually been given and approved by courts of review although in fact, that instruction could hardly be considered a definition and it lacked the neutrality expected of instructions. See People v. Shapiro, 371 Ill. 234, 20 N.E.2d 284.

Initially, the question might be raised as to whether any instruction on circumstantial evidence is required or appropriate or alternatively, whether the issue should not be left to the arguments of counsel. No instruction on direct evidence is given and none seems required. Assuming that the instruction is given primarily for the purpose of advising the jury that evidence should not be disregarded merely because it is circumstantial, then such an instruction is appropriate. The second paragraph of the instruction recognizes that the determination as to the sufficiency of circumstantial evidence may be based on facts from which conflicting inferences may be reasonably drawn and that the persuasiveness of circumstantial evidence depends on its synergistic effect considered as a whole although the effect of individual bits of evidence cannot be ignored.

Commenting on the sufficiency of circumstantial evidence, the court in People v. Hansen, 5 Ill.2d 535, 126 N.E.2d 243, observed, “* * * such evidence must be of such a conclusive nature as to produce a reasonable and moral certainty of guilt which so thoroughly establishes the guilt of the accused that every reasonably hypothesis of innocence is excluded.” (See also People v. Bernette, 30 Ill.2d 359, 197 N.E.2d 436, and People v. Marino, 44 Ill.2d 562, 256 N.E.2d 770.) Although this rule has been stated and applied in cases where the evidence is entirely circumstantial (People v. Lewellen, 43 Ill.2d 74, 250 N.E.2d 651; People v. Willson, 401 Ill. 68, 81 N.E.2d 485, and People v. Campagna, 240 Ill. 378, 88 N.E. 797) and such fact was referred to by the court in its holding, the evidence was insufficient to sustain the conviction. There is no indication that the rule is inapplicable in cases where the evidence is only partly circumstantial. For instance, in People v. Hansen, 5 Ill.2d 535, 126 N.E.2d 243, the rule is applied where the police officers testified to seeing three persons in the jewelry store before a shoot-out took place. In People v. Susanec, 398 Ill. 507, 76 N.E.2d 33, where the charge was robbery, there was testimony by the victims as to the force and violence used upon them but there was only circumstantial evidence concerning whether any property was taken, i.e., a watch. Nevertheless, the court applied the usual rule applicable in discussions of circumstantial evidence, finding no facts consistent with a reasonable hypothesis of defendant’s innocence. See also People v. Robinson, 14 Ill.2d 325, 153 N.E.2d 65.

If there be sufficient evidence and reason to warrant giving the definition of circumstantial evidence then it seems the standard used in measuring and determining the sufficiency of the circumstantial evidence is just as appropriate when the evidence is partly circumstantial as when it is wholly circumstantial.

Since in the instant case the defendant’s conviction rests substantiaUy on circumstantial evidence, I believe not only that the trial court erred in refusing to give the entire instruction but also that such error was prejudicial and requires the defendant be granted a new trial.

Lastly, I believe that by applying the foregoing standards which are discussed in connection with cases involving significant circumstantial evidence, that the evidence in this case is consistent with a reasonable hypothesis of innocence and I would reverse the judgment. It seems to be the State’s position that the defendant was a lookout but the evidence in my judgment fails to demonstrate anything more than that this might have been the case. Since the defendant might not have been a lookout based on the same evidence, it seems to me that the State has failed to sustain its burden of proof in this case.


author: Mr. JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Patrick Brittain, Defendant-Appellant.
    (No. 73-74;
    Third District
    May 22, 1974.
    James Geis, of State Appellate Defender’s Office of Ottawa, for appellant.
    Robert E. Richardson, State’s Attorney, of Ottawa, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendant John Patrick Brittain appeals from an order of the Circuit Court of La Salle County denying his post-conviction petition. Defendant Brittain had pleaded guilty to armed robbery and escape, pursuant to a negotiated plea, and was sentenced to not less than 3 years nor more than 12 years for armed robbery and from 1 to 10 years for escape, with the sentences to be served concurrently. No direct appeal was taken in this case.

On appeal in this court, defendant asserts that the record failed to show that the trial court ascertained if defendant understood the nature of the charges to which he pleaded guilty. It is contended that this constituted a substantial denial of a constitutional right and, also, that this issue can be raised for the first time on appeal in a post-conviction proceeding.

From the record, it appears that on September 22, 1969, defendant Brittain entered into negotiated pleas of guilty as we have indicated, to the charges of armed robbery and escape. It appears that, in open court in presence of defendant, there was a detailing of" the indictments and charges contained in each of the indictments by the prosecutor and a statement was made by the defendant’s attorney that defendant desired to withdraw his not guilty pleas and to plead guilty. The court asked defendant his age and whether he was satisfied with his counsel and the advice given by his attorney. Defendant said he was and indicated that he discussed the change of plea with his attorney and was willing to accept the recommendation to plead guilty to Count I, armed robbery, in one indictment, and to Count II, escape, in the second indictment.

Other counts in the indictment were dismissed as agreed in the plea bargaining arrangement. In response to an inquiry by the court, the prosecutor stated that punishment for armed robbery could be an indeterminate term up to life and not less than 2 years, and that the penalty was 1 to 10 years for escape. The court inquired of defendant if he realized the sentences which could be imposed and defendant said he understood the punishments which could be imposed. The court then specifically inquired if defendant had anything further to say and defendant replied in the negative. The court also inquired of defendant if he understood, that if his plea of guilty was accepted he stood convicted of the offenses of armed robbery and escape, the court could impose punishment under the law. Defendant said he understood what the court was telling him. Defense counsel, also, in the presence of the court and defendant, stated that he explained to the defendant several times that defendant had the right to trial by jury and that defendant knowingly and freely entered the pleas of guilty. At the conclusion of the proceedings the court advised defendant of his right to file notice of appeal. Defendant states that the court did not instruct him of the time limitation for filing such notice of appeal. A notice of appeal was filed on December 2, 1969, but no direct appeal proceeding was ever pursued. Defendant Brittain filed a pro se post-conviction petition in the circuit court. Counsel was appointed, and an amended petition for post-conviction relief was filed. As previously indicated, such petition was denied by the trial court.

At the time of defendant’s plea of guilty to the charges, Supreme Court Rule 401 governed the acceptance of such guilty pleas and in section (b) of such Rule (Ill. Rev. Stat. 1969, ch. 110A, § 401(b)), it is provided that the court should not permit a plea of guilty unless the court finds from the proceedings had in open court that defendant “understands the nature of the charges against him.”

It is noted that the issue now before us was not raised in either the pro se or amended post-conviction petition, but is raised for the first time in this court, presumably on the premise that the record does not show affirmatively that the trial court admonished defendant as to the nature of the charges to which he entered the pleas of guilty. It is apparent from the record that defendant was told of the charges to which he was pleading guilty and that he selectively pleaded guilty to one charge of armed robbery and one of escape, and that other charges contained in the indictments were dismissed.

While we have discussed the actual record and believe that there was substantial compliance with Rule 401(b) by the trial court (People v. Mendoza, 48 Ill.2d 371), we must note specifically that the Supreme Court of this State has indicated that Supreme Court Rule 401(b) in force at the time of defendant’s plea of guilty, is described by our súpreme court as not constitutionally mandated. (People v. Nardi, 48 Ill.2d 111, 116.) A distinction is made between rights of a defendant which are conferred by statute and those which are predicated on constitutional doctrine. (People v. Orndoff, 39 Ill.2d 96, 99.) The issue is not properly raised in a post-conviction proceeding. It is obvious, therefore, that the trial court properly dismissed the post-conviction proceeding.

We should add also that there was compliance with Supreme Court Rule 605 (Ill. Rev. Stat. 1969, ch. 110A, §605). The trial court advised defendant of his right to appeal following his pleas of guilty. There is no requirement that the court specifically instruct defendant as to a time limitation for filing such notice of appeal, and the failure to do so does not raise a question of constitutional dimension which would support post-conviction relief. People v. Cox, 53 Ill.2d 101.

The order of the Circuit Court appealed from in this cause is affirmed.

Affirmed.

SCOTT, P. J., and STOUDER, J., concur.


author: Mr. PRESIDING JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gary W. Boswell, Defendant-Appellant.
    (No. 73-134;
    Third District
    May 23, 1974.
    Stephen Hurley, of State Appellate Defender’s Office, of Ottawa, for appellant.

      C. Brett Bode, State’s Attorney, of Pekin (Jay H. Janssen, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

Gary BosweU, the defendant, after bench trial in Tazewell County was found guüty of the offense of possession of cannabis in the amount of more than 10 grams but less than 30 grams. He was placed on probation for one year and fined $100 and ordered to pay court costs in the sum of $42.60. The defendant has perfected this appeal from the judgment finding him guilty and the sentence imposed thereon.

We note that no verbatim transcript of the proceedings in the trial court was made, however, the trial court certified an appellant’s statement of facts to be correct. The statement of facts discloses that in the late evening of October 30, 1972, or during the early morning hours of the following day an officer of the City of Morton police department received a radio communication that an automobile had eluded the pursuit of police officers in the City of Tremont after a high speed chase and that the vehicle was stiH being sought. Tremont is a neighboring city of Morton. Shortly after receiving this broadcast the police officer from Morton, while patrolling, came upon a vehicle traveling ahead of him in the same direction as he was traveling. The officer reduced the distance to about 30 feet between his vehicle and the one which he was foHowing, and then turned on the flashing red lights of his police car. The automobile which he was pursuing then proceeded to decrease its speed. The officer positioned his vehicle on the right shoulder of the roadway to such an extent that the right side (or side opposite the driver) of the pursued vehicle was clearly visible to him. While both vehicles were operating at a speed of approximately 5 miles per hour and approximately 30 feet apart the officer saw the right front door, being the passenger side of the pursued automobile, open and immediately thereafter a package was dropped from the open door. When both vehicles stopped the police officer ordered the occupants, four in number, out of the vehicle which he had been following. The defendant had been sitting in the right front or passenger side, being next to the door which had been opened. A short time later the officer found on the roadside a plastic bag wrapped around a metal pipe approximately 50 feet behind both vehicles. Prior to this discovery other police officers arrived on the scene and in their presence the defendant stated “that was stupid” or “that was a dumb thing to do”.

A11 four occupants of the vehicle in which the defendant was a passenger were taken to the Morton poJigg station but only the defendant was charged with possession of cannabis. An examination of the plastic bag disclosed that it contained cannabis in an amount in excess of 11 grams. Neither the bag nor the pipe was examined for fingerprints. This statement of facts all derived from the testimony of the arresting officer is sufficient for our consideration of the primary issue raised by the defendant in this appeal.

It is the defendant’s contention that he was not proven beyond a reasonable doubt to have knowingly possessed the bag, containing cannabis, which was found by the police officers.

In order to sustain the conviction of the defendant the record must reflect proof of two elements, to-wit (1) that he knowingly possessed and (2) a substance containing cannabis weighing more than 10 but less than 30 grams (Ill. Rev. Stat. 1971, ch. 56½, sec. 704(c)).

In examining the record we can only conclude that it is insufficient to support a finding that the requisite element of “possession” by the defendant was proven. To support conviction of unlawful possession of narcotics the People must establish knowledge on part of the defendant of the presence of narcotics and must also establish that the narcotics were in the immediate and exclusive control of the defendant. People v. Mosley, 131 Ill.App.2d 722, 265 N.E.2d 889.

It may be a reasonable assumption that the defendant had possession of the plastic bag containing the cannabis since it was dropped on the roadway from an open door of an automobile by which he was sitting. It is fundamental, however, that a conviction for a crime cannot be supported by assumption, conjecture or speculation. We have also held that suspicious behavior in the vicinity of narcotics will not suffice as proof of knowledge as to their presence. See People v. Ackerman, 2 Ill.App.3d 903, 274 N.E.2d 125.

In the instant case even after accepting the fact that the police officer directly observed the package being dropped from the vehicle from an open door next to the defendant there is no way of ruling out the possibility that the package could have been disposed of by another occupant of the vehicle. As we noted in the case of Mosley, exclusive possession does not rule out the fact that such possession may be joint for to hold otherwise would permit two or more persons to gain immunity from prosecution on a charge of unlawful possession of narcotics by proving joint possession and such a result would be contrary to reason and defeat the purpose of the Uniform Narcotic Drug Act. (See People v. Mosley, 131 Ill.App.2d 722, 265 N.E.2d 889.) In the case before us we are reluctant to disturb the determination of the trier of fact and certainly do not desire to defeat the purpose of the Cannabis Control Act, however, in examining the evidence we find nothing to support a finding that the defendant Boswell exercised control jointly or otherwise over the cannabis found in the plastic bag.

The People would have us interpret the remarks of the defendant to the effect “that was stupid” or “that was a dumb thing to do” as admissions of a bungling attempt on his part to dispose of marijuana. We do not find the remarks made by the defendant restricted to this narrow interpretation. They could just as well have been addressed to another occupant of the vehicle after the defendant had discovered what had transpired. The remarks of the defendant are ambiguous as to whom they were addressed and only present a question that can be answered by conjecture or speculation which has no place in sustaining a conviction for a crime.

Based upon an examination of the statement of proceedings prepared by counsel for the defendant and certified as correct by the trial judge we can only conclude that the judgment of guilty entered by the circuit court of Tazewell County and the sentence imposed thereon should be reversed. We accordingly need not consider the remaining issue raised by the defendant in this appeal.

Reversed.

ALLOY and STOUDER, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Arlanda Charles McClendon, Defendant-Appellant.
    (No. 11762;
    Fourth District
    May 27, 1974.

      Larry P. Cramer, of Urbana, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Robert James Steigman, Assistant State’s Attorney, and Dave Edwards, Senior Law Student, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The defendant was found guilty by a jury of armed robbery of a service station attendant and sentenced for a term of 5 to 15 years. His appeal from that verdict, judgment and sentence questions the sufficiency of the complaint for a search warrant which produced some of the evidence used against him in his trial. We conclude that there was probable cause for the issuance of the warrant and the search of the 1966 Ford automobile for a “sawed-off shotgun, US currency, a green beret or tam, a black jacket or shirt (man’s), pieces of wood from the stock of a shotgun, and any blood-stained articles not hereinabove mentioned.”

The affidavit for the search warrant states that the victim called the police department on September 15, 1971, stating that an unidentified individual, carrying a double-barreled shotgun, forced him to lie face down on the floor while he took money from the cash register and that the robber then hit the victim in the back of the head with the butt of the gun and fled. The victim was taken to the hospital and kept there for observation. On the same day, the victim gave the affiant and other members of the police department a physical description of the individual who robbed and hit him with a shotgun, including a description of his clothing and person, and from 40-45 photographs identified a photograph of Robert A. Plarris as the individual who robbed and struck him. Affiant then relayed information concerning the offense and the physical description to all local police agencies. One Robert A. Harris had been picked up on a curfew charge and his description appeared to be identical to that given to the police officer by the victim. Harris confessed to the police that he committed the robbery and implicated the defendant and another as his accomplices. Harris stated that after the robbery he changed clothes, and left the clothes he wore during the robbery, as well as the shotgun used in the robbery, in a white 1963 Dodge. That Dodge was being driven by one of the other defendants at the time of his arrest by police. The defendant and that other defendant were frequently seen in a 1966 Ford sedan and had been seen in it the night before. The officers began a search for that Ford and found it parked on a street in Urbana. In the front seat in plain view were a dark green tarn or beret, a black jacket or shirt, and what appeared to be slivers of wood- and on the trunk of said vehicle were seen prints as though the trunk had recently been opened. These facts were set out in the affidavit for the search warrant.

There seems to be little doubt but that Harris committed this robbery, that the defendant and another were with him, that the police were given a description by Harris of the clothes that he wore and the clothes he had changed and left with the other defendants in the 1963 Dodge, that the 1963 Dodge was being driven by another defendant at the time of his arrest, and that the 1966 Ford was frequently used by the defendant and his. companion. When the 1966 Ford was found, it is clear from the complaint for warrant that the clothes which Harris had described and a shotgun which he had described were in plain view in the Ford. In People v. Francisco, 44 Ill.2d 373, 376, 255 N.E.2d 413, our supreme court stated:

“Probable cause means simply that the facts and circumstances within the knowledge of the affiant, and of which he had reasonably trustworthy information, were sufficient in themselves to warrant a man of reasonable caution to believe that the law was being violated and that evidence of it was in the premises or vehicle or on the person to be searched.”

The guiding principle in determining probable cause is common sense. (People v. Johnson, 84 Ill.App.2d 143, 228 N.E.2d 457.) Affidavits for search warrants should be interpreted in a realistic manner. (People v. Peavy, 1 Ill.App.3d 478, 274 N.E.2d 892.) Within the meaning of the rule above stated, affidavits for the issuance of a search warrant should be construed in a realistic manner and not in a highly technical, legalistic manner. (United States v. Ventresca, 380 U.S. 102, 13 L.Ed.2d 684, 85 S.Ct.741.) We deem it pure sophistry to argue that the affidavits for the search warrant in this case do not meet such requirements. It was adequate to indicate probable cause for the issuance of a warrant for the search of the 1966 Ford.

Following submission of this case, defendant filed a motion for summary reversal based on our decision in People v. Ellis, 10 Ill.App.3d 216, 293 N.E.2d 189. Our supreme court reversed and remanded that case and held that our Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 702 — 7(1)) did not apply to a male over 17 years of age. (No. 45745, January Term, 1974.) (See also People v. Seets, No. 45950, March Term, 1974.) The defendant was born October 10, 1953. The crimes for which he was sentenced occurred on September 15, 1971, when he was more than 17 years of age. Accordingly, the motion for summary judgment is denied.

The judgment of the circuit court of Champaign County is affirmed.

Affirmed.

CRAVEN and TRAPP, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Wilson et al., Defendants-Appellants.
    (No. 11864;
    Fourth District
    May 27, 1974.

      Paul Bradley, of State Appellate Defender’s Office, of Chicago, for appellants.
    Everett L. Laury, State’s Attorney, of Danville, for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

This is an appeal by the defendants from sentences imposed by the trial court following a determination of guilt in a bench trial. Defendants Matthews and Reed were sentenced to a term of 5 to 12 years in the Illinois State Penitentiary for armed robbery and defendant Wilson was sentenced to a term of 7 to 15 years. In this court, it is contended (1) that the State failed to prove the defendant Reed guilty of armed robbery beyond a reasonable doubt, (2) that the prosecution of defendants Wilson and Matthews, each 17 years of age, as adults violated their constitutional rights and (3) the sentencing provisions of the Illinois statute concerning armed robbery are constitutionally excessive. The contentions made are without merit.

Wilson, Matthews, Reed and one Steven Westley went to a grocery store in Danville where they milled around until the customers left. Westley, who testified for the State, went outside and Matthews went to a door. Reed stood leaning against the counter between the grocery store clerk and Wilson. Matthews told the clerk to “put it all in the bag.” Wilson pulled out a gun and said, “Put the money in the bag.” Wilson then took the bag containing approximately $115. The boys ran out of the store, down the street, and thereafter divided the money. The evidence consists basically of the testimony of the clerk and the statements of the respective parties. Wilson’s statement said that he and Joe Reed walked up to the counter, that he, Wilson, pulled the gun on the guy at the cash register and told him to give me all the bills. Matthews yelled at him and told him to put it in a sack. The gun belonged to Wilson’s stepfather and was loaded at the time. Wilson also testified that the gun was at Reed’s house. It was recovered and identified by Wilson. Reed stated that he was involved in the armed robbery of the grocery store, that he was leaning up against the counter, and Randy Matthews told the guy behind the counter, “I got a trick for you, put it all in the bag. The guy behind the counter thought Randy meant some potato chips and some stuff we had on the counter and when he said something, Kenny Wilson pulled out his gun and said, ‘Put the money in the bag'. After the guy put the money in the bag, we all ran down Lake Street,” Reed also testified that the idea to hold up the store was Kenny Wilson’s, and he had suggested it at a previous time, but couldn’t get the gun until the day of the robbery. Sometime during that day, Wilson talked to the other defendants about going along on this because as Reed stated, “He [Wilson] came by my house and said that Randy and Steve wanted to come along, too.” Reed likewise testified that Wilson did the actual stickup, and that Westley went outside to alert Matthews when everything was clear.

It is urged that Reed did nothing more than stand at the counter and thus was a “silent” bystander. The circumstances above related, including the flight of all four together and the division of the money, may be taken as circumstances indicating that Westley was the lookout, Matthews was at the door, Wilson was the gunman and Reed was positioned to assist wherever was necessary. It is urged that since Reed did no affirmative act, he cannot be found guilty as a matter of law. This places a strained construction upon the facts of this case. It is quite true that mere presence at the scene of a crime is not in itself sufficient to sustain a conviction. (People v. Tillman, 130 Ill.App.2d 743, 265 N.E. 2d 904.) Presence at the scene of an offense and flight are circumstantial evidence which may tend to prove and establish the defendant’s guilt. (People v. Smith, 127 Ill.App.2d 199, 262 N.E.2d 165; People v. Manley, 1 Ill.App.3d 693 274 N.E.2d 373.) A defendant’s presence and flight are subject to explanation and in the light of all other circumstances their tendency to prove guilt may be diminished. (People v. Washington, 121 Ill.App.2d 174, 257 N.E.2d 190.) These cases as well as ours are readily distinguishable from Manley for the very cogent reason that in that case the defendant had a satisfactory explanation and was outside the building when the robbery was committed. There was no evidence of any prior knowledge that one was about to be committed. In Washington, the court recognized that a defendant’s flight may be considered with the other evidence as tending to prove guilt. In Washington, however, the identity of the particular defendant was doubtful, vague and uncertain, and tire complaining witness in that case was unable to make a positive identification. In People v. Harris, 105 Ill.App.2d 305, 245 N.E. 2d 80, the defendant offered an instruction which the court refused, requiring the State to prove beyond a reasonable doubt that the defendant actively assisted in the commission of the crime by aiding, abetting, or assisting in its commission. The court there held that it was not error to refuse the instruction and stated at page 315: “While mere presence or negative acquiescence is not sufficient to make a person a principal to a crime, one may aid and abet without actively participating in the offense; circumstances may show that there was a common design to commit an offense and if this is so one may be guilty of the offense without actively assisting in its commission. Also, a person who is present when a crime takes place and does not oppose it may be guilty even though he is not an active participant. His presence and lack of opposition may be considered together with other facts and circumstances in determining whether he approved the crime and abetted its commission.” It is abundantly clear in the case at bar that Reed knew of the plan to commit a robbery, met with the other boys for that purpose and that the gun used in the crime was recovered at his home. The circumstances just related together with the flight of the defendant Reed and his participation in the spoils of the robbery suggest beyond a reasonable doubt that he had knowledge of and was present in the grocery store to aid and abet the satisfactory completion of that crime.

Since Wilson and Matthews were over 17 but under 18 years of age, they contend that their conviction cannot stand because they were denied due process of law. This position was upheld in our opinion in People v. Ellis, 10 Ill.App.3d 216, 293 N.E.2d 189. Our Supreme Court reversed and remanded that case and held that the Juvenile Court Act does not apply to males over 17 years of age. (57 Ill.2d 127.) (See also People v. Seets, 57 Ill.2d 213.) Since both were more than 17 years of age, they were properly tried as adults.

The argument that the sentences here imposed violated the philosophy of the 1970 Constitution which provides that “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship” need not long detain us. Under the new Code of Criminal Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8—1) armed robbery is a Class I felony with a minimum term of 4 years, unless the court giving consideration to the nature and circumstances of the offense and the history and character of the defendant imposes a higher minimum term. Roth Wilson and Reed had prior criminal records. The sentences here imposed are well within the guidelines described by the legislature and do not appear to constitute a great departure from the fundamental law and its spirit and purpose, nor is the penalty imposed in excess of the philosophy prescribed by section 11, article I of the 1970 Constitution.

Accordingly, the judgment of the trial court should be and it is hereby affirmed.

Affirmed.

TRAPP and SIMKINS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Korell, Defendant-Appellant.
    (No. 11900;
    Fourth District
    May 27, 1974.
    Kenneth L. Gillis, of State’s Appellate Defender’s Office, of Chicago, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (James R. Coryell, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

This defendant was 17 years of age on July 2, 1971. He appeals from a sentence of 1 to 10 years in the penitentiary for a burglary committed on September 18, 1971. On November 23, 1971, a negotiated plea of guilty was entered with the State agreeing to concur in the recommendation of the probation officer and if probation was denied, the People would recommend 1 to 10 years. The sentence thus imposed on the defendant was in strict accordance with the negotiated plea. The defendant contends that the sentence imposed is excessive. This court raised the question of whether or not the provisions of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 701 — 1) applied to this defendant and additional briefs were filed. In that brief, the defendant takes the position that the trial court was without jurisdiction to impose the sentence without according the defendant the procedural provisions of the Juvenile Court Act. Neither position is well taken.

In November 1971, the defendant pleaded guilty to an indictment charging him with the crime of burglarizing the Johns Hill Junior High School in Decatur. The probation officer recommended probation and the court granted probation for 1 year. In February 1972, a petition to revoke probation was filed alleging that the defendant did on January 28, 1972, commit the offense of indecent liberties with a male child under the age of 16 years. At the hearing on this charge, the defendant confessed to the violation and the State recommended that the action be treated as a contempt of court and the defendant readmitted to probaion. Probation was extended. On February 28, 1972, another report stated that the defendant had absented himself from his place of residence from February 23 to February 25, and had left Cantrell Hall with his 16-year-old brother. On this second violation, the defendant testified that he lived at Cantrell Hall as a ward of the court. In October 1966, a juvenile petition was filed charging him and his brother as being “otherwise in need of supervision” in that they were beyond the control of their parents and had been habitually truant from school. They resided at Cantrell Hall until February, 1972. The defendant testified in mitigation on the probation violation that he left Cantrell Hall, a non-penal place under the supervision of the county and the State to protect his younger brother as they were quite close.

This record clearly shows that the court carefully considered all facets of this case and felt that the previous supervision in Cantrell Hall as well as two attempts at probation had failed. He therefore concluded that the sentence here imposed was necessary to accomplish rehabilitation. This record suggests no abuse of discretion. We therefore conclude that the sentence imposed was neither unnecessary nor excessive.

We need not consider the question of whether the sentence imposed on the revocation of probation is excessive. The Unified Code of Corrections (Ill. Rev. Stat. 1971, ch. 38, par. 1001 — 1—1 et seq.) effective January 1, 1973, became effective while this case was pending on appeal and had not reached a “final adjudication”. The Code itself as well as decisions of this court and the Supreme Court for the purpose of sentencing have held that a case pending on appeal has not been finally adjudicated and the punishment provided under the new Code applies. (See People v. Bailey, 1 Ill.App.3d 161, 272 N.E.2d 259; People v. Isom, 4 Ill.App.3d 407, 280 N.E.2d 485; People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1; People v. Mize, 9 Ill.App.3d 647, 292 N.E.2d 731.) Under the Code, burglary is a Class II felony and a sentence, if appropriate, shall be a minimum of 1 year and the maximum not to exceed 20 years. The sentence imposed is therefore within the limits of the applicable statute and in accordance with the negotiated plea. The defendant had the benefit of counsel throughout. It is stated in appellant’s brief that the defendant is now on parole. The defendant has been under needed supervision now for more than 6 years — since he was 12 years old.

The defendant’s position that our opinion in People v. Ellis, 10 Ill.App.3d 216, 293 N.E.2d 189, is controlling is not well taken. Our supreme court reversed and held that the Juvenile Court Act does not apply to males over 17 years of age. (People v. Ellis, No. 45745, January Term, 1974, and People v. Seets, No. 45590, March Term, 1974.) Defendant was more than 17 years old, both at the time of the sentence and at the time of the offense.

There was no appeal from the decision in 1966 to make the defendant a ward of the court. There was no appeal from the initial conviction for burglary. There was no appeal from the original revocation of probation. It is clear from this record that both the People, defense counsel and the court were seeking some method to rehabilitate the defendant. It is clear that for more than 5 years rehabilitation outside a penal institution succeeded — then came the devious sexual conduct charge. All parties concurred in probation and supervision again. That, too, failed. To hold that the sentence imposed is excessive or that some other form of sentence would accomplish what 6 years of nonpenal supervision has failed to do is to collide head-on with reality. Accordingly, the judgment is affirmed.

Affirmed.

TRAPP and SIMKINS, JJ., concur.