author: Mr. JUSTICE GOLDBERG

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Smith, Defendant-Appellant.
    (No. 58464;
    First District (1st Division)
    April 15, 1974.

      Robert L. Edwards, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

After a bench trial, Joseph Smith (defendant) was found guilty of murder (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 1) and robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 1). He was sentenced for 30 years to 50 years. He appeals.

In this court, he contends that the evidence of guilt was not sufficient beyond a reasonable doubt and that the court erred in curtailing defendant’s cross-examination of a rebuttal witness called by the State.

The evidence showed that defendant, together with Isaac Smith and Madeline Kennedy, visited several cocktail lounges. During the early morning hours, they met the deceased in a restaurant. Apparently all of these people were acquainted. The deceased offered to repair Isaac Smith’s shoes. The offer was accepted. All four then went to a shoe repair shop where the deceased was employed. He opened the door and all went inside. Deceased then repaired the shoes and unlocked the door so that the other three could leave. At this point there is a conflict in the testimony.

Madeline Kennedy testified that the deceased returned the repaired shoes to Isaac Smith and then unlocked the door to permit the others to leave. At that point, defendant struck the deceased who fell to the floor. Defendant went through the pockets of the fallen man and removed some money which he put in his pocket. At defendant’s request, Isaac Smith assisted him in dragging the deceased to an area behind the store. The witness remained in front of the store but heard a loud noise from the back. Defendant and Isaac Smith then came back and went to the cash register. The parties then left the shop, with the witness and Isaac Smith going in one direction and the defendant in another.

Some contradictions in the testimony of this witness were brought out by cross-examination. She testified on direct examination in some detail as to just where each of the persons present was positioned when deceased was unlocking the door. On cross-examination, she admitted that this was a guess. She also conceded on cross-examination that at the preliminary hearing she testified that she could see nothing because she was frightened and she then admitted that she did not see anyone go into the cash register.

Defendant testified in his own behalf. He stated that Isaac Smith told him that he should hit the deceased when the shoe repair was completed or else Isaac Smith would break his jaw. He testified that Isaac Smith had previously broken his jaw with a blow from his fist and that this, caused him great fear. Defendant testified that, accordingly, he struck the deceased in the chest and Isaac Smith then hit the deceased on the temple so that he fell. Defendant denied that he had gone through the pockets of the deceased. He also testified that Isaac Smith dragged the deceased behind the store and that Madeline Kennedy followed but that he remained in the front area. He heard a loud noise like a chair breaking. He looked into the back and saw Madeline Kennedy crying. He saw Isaac Smith stomping and beating the deceased. He remonstrated with Isaac Smith and told him that he wanted nothing to do with the matter. Defendant then left the shop alone.

He further testified that his jaw was broken by Isaac Smith in April of 1971 and that he was hospitalized at the Cook County Hospital as a result. The record also shows that after proper warnings were given to the defendant, he gave the police a written statement, received in evidence, which is generally consistent with his testimony at trial. On cross-examination, defendant reiterated that his jaw had been broken by a blow from Isaac Smith in April of 1971. He stated that he did not know the specific dates that he was in the hospital.

On rebuttal, the State called a clerk from Cook County Hospital. She testified that she was unable to locate medical records of Joseph Smith for April of 1971. On cross-examination of this rebuttal witness, the court sustained an objection to a question put to her as to whether she was able to locate any medical records on a Joseph Smith. The court sustained an objection to this on the ground that it was beyond the scope of direct examination of the witness, which was limited to the hospitalization of April of 1971. The court then sustained objections as to the contents of a record which the hospital clerk had brought to court. The merits of this incident on rebuttal will be considered in the later portion of this opinion.

The parties stipulated that post-mortem examination of the deceased by a qualified coroner’s physician revealed that death was caused by a traumatic cerebral laceration. Also the deceased had suffered five stab wounds in various areas of the face.

In our opinion, the evidence is ample to support the finding of guilt beyond reasonable doubt. It is true that issues of credibility were raised by cross-examination of the witness Madeline Kennedy and by variations between her testimony and that of defendant. Similarly, an issue of credibility was raised as regards defendant concerning whether or not he was hospitalized at the time he designated. Considering all of the evidence, the question to be determined by the trial judge was one of credibility and of weighing the testimony of both of the principal witnesses, including all of the other evidence in the record and defendant’s own statement. Determination of credibility and of the weight to be given to the testimony of these witnesses was the function of the trial judge. His findings should not be disturbed unless “the evidence is so unreasonable, improbable and unsatisfactory as to leave a reasonable doubt as to defendant’s guilt.” (People v. Catlett, 48 Ill.2d 56, 64, 268 N.E.2d 378.) Upon reviewing the entire record, we approve the finding of guilty by the trial court.

Defendant’s counsel argues strongly that rejection of his attempted cross-examination of the record clerk called as the State’s rebuttal witness was reversible error. In this regard, cases are cited to the proposition that the State was permitted to impeach defendant on collateral matters which the State had initially brought out in cross-examination so that it was error to refuse defendant’s counsel the right to rehabilitate the defendant by additional cross-examination of the rebuttal witness. (People v. Dennis, 47 Ill.2d 120, 133, 265 N.E.2d 385.) This argument is predicated upon the erroneous assumption that the alleged date of hospitalization of defendant was first brought out by the State on cross-examination. On the contrary, the record shows that defendant testified on direct examination that his jaw was broken by Isaac Smith in April of 1971 and that he was hospitalized as a result. Thus, there was no issue here of impeachment upon a collateral matter first brought up on cross-examination by the State. (Compare People v. Kirkwood, 17 Ill.2d 23, 30, 160 N.E.2d 766.) In this regard, the rebuttal evidence tendered by the State was competent and proper.

As regards attempted cross-examination by defendant of the State’s rebuttal witness, the scope thereof rested within the sound discretion of the trial court. (People ex rel. Walker v. Pate, 53 Ill.2d 485, 502, 292 N.E.2d 387.) We cannot say from all the circumstances that prevention of this cross-examination was an abuse of discretion.

It should be noted in this regard, that the trial court stated that even assuming that defendant had received a broken jaw as a result of a blow by Smith, the court would find that there were no compelling acts by Isaac Smith which forced defendant “either to proceed to or to remain in the premises of” the shoe repair shop in question. In this regard, the trial court was eminently correct. The Criminal Code of Illinois provides for the defense of compulsion where defendant performs criminal acts under threat or menace of “imminent infliction of death or great bodily harm.” (Ill. Rev. Stat. 1971, ch. 38, par. 7 — 11.) A serious doubt exists as to whether this defense is cognizable in a prosecution for murder. See Committee Comments, Smith-Hurd Ill. Annot. Stat., ch. 38, par. 7 — 11 at page 432.

The soundness and validity of the trial court’s remarks are also illustrated by application of the theory of accountability to this case (Ill. Rev. Stat. 1971, ch. 38, par. 5 — 2). Even if defendant’s testimony be completely accepted without qualification, he was properly found guilty. His efforts to disassociate himself from the crime fell far short of the legal requirements since defendant testified that he simply left the scene of the crime and did nothing further. (See People v. Hubbard, 55 Ill.2d 142, 150, 302 N.E.2d 609.) On the entire record we approve the finding of the trial court regarding sufficiency of all the evidence to prove guilt beyond a reasonable doubt. We find no error in this record and the judgment is accordingly affirmed.

Judgment affirmed.

EGAN, P. J., and HALLETT, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DIXON

license: Public Domain

text:
    Ayrshire Coal Company, Division of American Metal Climax, Inc., Plaintiff-Appellee, v. Property Tax Appeal Board et al., Defendants-Appellants.
    (No. 73-142;
    Third District
    April 17, 1974.

      Rehearing denied May 27, 1974.

    William J. Scott, Attorney General, of Chicago, and Robert Downs, State’s Attorney, of Lewistown (Michael B. Weinstein, Assistant Attorney General, of counsel), for appellants.
    Ralph Froehling, of Canton, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This action was brought under the Administrative Review Act. (Ill. Rev. Stat. 1969, ch. 110, sec. 264 et seq.) to review a decision of the Property Tax Appeal Board, an administrative agency of the Department of Local Government Affairs of the State of Illinois which approved the assessment classification of certain heavy machinery and equipment in the preparation plant located at the Sunspot Mine in Fulton County and owned by Ayrshire Coal Company. The Circuit Court of Fulton County reversed the decision of the Property Tax Appeal Board. It is from that judgment that this appeal is taken.

The Board of Review of Fulton County assessed the heavy machinery and equipment of the preparation plant as real property for the 1970 assessment. The Sunspot Mine, of which this preparation plant is a part, has been in existence since the early 1960 s. The heavy machinery and equipment from 1964 to 1969 had been assessed as personal property. Ayrshire appealed the 1970 assessment by the Board of Review to the Property Tax Appeal Board which upheld the assessment. Ayrshire then petitioned for administrative review.

The preparation facilities involved served two general purposes, they size the coal to meet customer specifications and they perform a cleaning operation. Raw coal is received from the mine via trucks and is dropped into a 250-ton hopper, from there it travels by conveyor belt to a rotary breaking unit, which reduces the size of the coal to 6 inches. It then travels to washing areas and there is screened into 3 sizes. The 2 larger sizes are distributed then via a drag conveyor to two identical but separate cleaning units which are simply big tanks in which a high specific gravity liquid (water and magnetite) allows coal to float while impurities such as slate, rock, etc., sink to the bottom. A conveyor skims off the surface. The finest-size coal is processed to a settling pond and from it pumped back to the top level of washing equipment where it passes through two cyclone cleaning units. Both the clean coal and rejects from all three factors travel over a series of rinsing screens in order to recover the magnetite which is expensive and also undesirable in the clean coal product. The magnetite material circulates to a unit where the magnetite settles out, clean water overflows and is recycled through rinsing. The magnetite is pumped to storage and reused.

The largest-size coal goes through a two-stage crusher. The intermediate size goes to another screening section or to a heat-drying unit. The smallest size goes to a centrifugal-drying unit where moisture is reduced and then to storage or heat drying. From storage all coal goes to a loading section by conveyor belt where it can be loaded on one or two railroad tracks for shipment. Then there is an oil-treating system for dust control as the freight cars are loaded.

The system described by the witness includes the 250-ton hopper (conceded to be part of the real estate) and 9 conveyors, the drag conveyors, 1 rotary breaking unit, 6 double-decked inclined fibrating screens, 10 centrifugal pumps, 2 dense-media baths, 2 cyclone-heating units, 1 heat-drying unit, 1 centrifugal drying unit, 3 roll crushers, 1 ring mill crusher, 1 hammermill crusher, 1 thickener unit, 5 collecting sumps, 3 storage bins, 3 automatic belt scale units, a 200-horsepower squirrel-cage exhaust fan added to the drying unit, pump for fire protection, and 1 oil-treating system. All of the equipment is attached, either by nuts and bolts or welded, to supporting piers or foundations which, in turn, are firmly attached to the realty to prevent vibration and movement. Other than some conveyors the equipment is sheeted from the weather (enclosed in). Land on which the structures set is, and at all times was, owned in fee by Aryshire. Photographs also show a shop, warehouse, garage and office complex which are conceded to be real estate. The concrete foundations to which equipment is bolted or otherwise attached are conceded to be real estate. The height of the main washing area plant is 65 feet, the height of the storage bins is 100 feet.

It is expected that the mine itself will run out of coal in 4 or 5 more years and the plant will then be moved to a new location. The plant can be moved but could take up to several years to do so. It would have to be dismantled to do so as it was not designed to be moved.

Exhibit 3 shows a 6-story building with windows at each level. This structure is claimed to be personal property.

Associated with the machinery is the necessary structural steel. The complex appears to cover hundreds of feet and overlaps two townships but the two separate assessments are consolidated in this case. The total assessed value of the items in question is $484,950.

At the time the complex was first erected some of the machinery came from other Aryshire locations but some was specially designed and built by McNally-Pittsburgh Company who then erected the complex under a conditional sales agreement which provided that no item furnished should be considered a fixture and that any part may be separated from such real estate for the purpose of repossession. (Emphasis supplied.)

By 1970, McNally-Pittsburgh had been paid in full and the agreement was no longer in force.

At the hearing before the Property Tax Appeal Board, Aryshire contended that the machinery, equipment and structural steel in the preparation plant remain personal property because:

1. Of the conditional sales agreement with McNally-Pittsburgh.

2. The plant, while physically annexed to the real estate by bolts to concrete piers and while some machinery and equipment is welded to T beams for stability purposes each individual item can be removed without damage to the real estate.

3. Some machines and equipment have been moved in and out.

4. Previous acceptance by the Board of Review of the plant as personal property from 1961 through 1969.

The opponent contended that:

1. The conditional sales agreement was only binding on the parties while it was in force.

2. The previous assessment was done by the assessor. The Board of Review has authority each year to classify property.

3. That the only real question is whether for the purposes of • taxation the property should be assessed as real estate and that based on Illinois Law and on the Illinois Property Appraisal Manual the property is properly assessed as real estate.

William Townsley, a valuation consultant for the Department of Local Government Affairs testified after a thorough and extended.inspection of the plant that he believed the property to be real estate. He testified that the machinery and equipment was in a building.

In its opinion the Appeal Board placed particular emphasis on the fact that Ayrshire owned the land and the plant and that the heavy machinery and equipment was indispensable to the operation of the preparation plant.

On review the trial court rejected the findings and opinion of the Appeal Board as being against the manifest weight of the evidence and not supported by competent or substantial evidence. The court, in its opinion, (1) rejected the testimony of Townsley, (2) found that the use was not permanent, (3) that the “housing” of the machinery were not “buildings”, (4) that prior action of assessing as personal property must be taken as some evidence that the property is personalty and that (5) the housing — the shelter is secondary in that the machinery and equipment is the plant and that the sheet metal is attached to the structural framework that supports the machinery as distinguished from the usual situation where machinery is attached to, or installed in, a building.

The principles of law applicable to the review of the findings and decision of an administrative agency are well settled and have been succinctly stated in Kelley v. Civil Service Com., 31 Ill.App.2d 115, 116-117. They need not be re-stated here.

Section 1 of the Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, sec. 482 (13) defines real property as follows:

“Not only the land itself, * * *, but also all buildings, structures and improvements, and other permanent fixtures, of whatsoever kind, thereon * * *.”

An examination of the Annotated Statutes (S.H.A. ch. 120, sec. 482(13)(1970)) discloses but three cases. The first states that, “Persons dealing with land and improvements thereon may consider a building thereon as personalty for their purposes, but such treatment, as between individuals, does not change essential characteristics of building as realty.” United States v. 19.86 Acres, 141 F.2d 344, 151 A.L.R. 1423. The second states, “Poles and towers and electrical wires thereon for power transmission * * * are, for purpose of taxation, real estate, within provision of this section, providing that the term ‘real estate’ shall include land and the structures and fixtures thereon.” (Sanitary District v. Young, 285 Ill. 423.) In that case some were ordinary wooden poles set in the ground, others were steel towers set in concrete bases, all on land owned by the District. The third case involved a tunnel and has no application here.

A structure has been defined in the broad sense as any construction or piece of work composed of parts joined together in some definite manner. Any form or arrangement of building or construction materials involving the necessity or precaution of providing proper support, bracing, tying, anchoring, or other protection against the pressure of the elements. (Ballantine Law Dictionary.) The term ordinarily carries with it the idea of size, weight, and strength * * * and has come to mean anything composed of parts capable of resisting heavy weights or strains, and artificially joined together for some special use. 83 C.J.S., Structure.

In a discussion as what structures may be regarded as permanent, it was said in Kankakee and Seneca R.R. Co. v. Horan, 131 Ill. 288, 301, “It can not be doubted that the road-bed, embankments, trenches, bridges, culverts and other appurtenances of a railroad constructed and maintained in pursuance of lawful authority, are to be regarded in law as permanent structures. This is not so' because it is certain that they will in fact continue to subsist in their present condition forever, or that they are not liable to be changed in many respects by the proprietors * * * whenever they may see fit, or by natural causes, but it is so because the railroad company has a legal right to maintain them peipetually. * * *.” Emphasis supplied.

“It is apparently a permanent structure although the defendant might change its location if it should see fit.” City of Centralia v. Wright, 156 Ill. 561.

Annexations, when made by the owner, must be presumed to be made with the design of their permanent enjoyment with the realty and accessory to it. Calumet Iron and Steel Co. v. Lathrop, 36 Ill.App. 249, 256.

A building has been defined as a fabric, structure, or edifice, such as a house, church, shop, or the like, designed for the habitation of men or animals or for the shelter of property. People v. Blair, 52 Ill.2d 371, 374.

Many authorities take the position that any and all machinery essential to the proper functioning of a plant, mill, or similar manufacturing is a fixture, or is at least so presumed to be, irrespective of the manner in which it is annexed to the realty and even though it is not attached thereto at all. This view is sometimes referred to as the “integrated industrial plant” doctrine and represents the modem trend of decisions. 35 Am. Jur. 2d Fixtures, secs. 10, 102; Joyner v. Mitchell, 267 Ill.App. 427; Re Theodore A. Kochs Co. (7th Cir.), 120 F.2d 603, 136 A.L.R. 1280; 19 I.L.P. Fixtures, sec. 4; Guardian Life Insurance Co. v. Swanson, 286 Ill.App. 278, 287.

84 C.J.S. Taxation, sec. 73, states, “Machinery used in a mining or manufacturing or other business establishment constituting a part of the plant and indispensable to its operation as such is commonly taxed with, and as a part of, the realty, and is not subject to taxation as personal property,” and “It has been declared that in matters relating to taxation, rules more nearly conforming to those used in determining what constitutes fixtures as between grantor and grantee, vendor and vendee, or mortgagor and mortgagee should apply rather than the rule used in what constitutes removable fixtures as between landlord and tenant.”

Where property is adapted to the use to which the realty is devoted the use thereof in such manner furnishes such strong evidence of intent to make it a part of the freehold as not to be overcome by bookkeeping practices. Guardian Life Insurance Co. v. Swanson, supra.

With the foregoing principles in mind we find that the items in dispute were annexed to the real estate in such manner as to become a part of it and that it was legally intended that they should be a part of the real estate. Accordingly, the judgment of the circuit court is reversed.

Reversed.

ALLOY and STOUDER, JJ., concur.


author: Mr. JUSTICE STOUDER

text:
    Richard Gene Wilson, Plaintiff, v. Illinois Bell Telephone Company et al., Defendants—(Illinois Bell Telephone Company, Counterplaintiff-Appellant, v. V. Jobst & Sons, Inc., Counterdefendant-Appellee.)
    (No. 73-241;
    Third District
    April 18, 1974.

      Rehearing denied May 22, 1974.

      Jerry T. Stafford and Edward Butts, both of Peoria, for appellant.
    Thomas Hayes, of Peoria, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff-appellant, Richard Wilson, brought this action in the circuit court of Peoria County against defendant, Illinois Bell Telephone Company, and defendant-appellant, V. Jobst & Sons, Inc., alleging negligence and violations of the Structural Work Act against each defendant. Illinois Bell Telephone Company filed a counterclaim against V. Jobst & Sons, Inc., seeking indemnity.

In 1969 Bell engaged Jobst to make certain alterations to Bell’s dial building, consisting of removal of the ceilings in the equipment areas along with associated electrical and mechanical work. Part of the job was to construct a box-type structure or platform around certain electronic switching equipment for the purpose of protecting such equipment during the construction and alteration work. Wilson was an employee of Western Electric Co., Inc., which company maintained and repaired certain electrical equipment belonging to and in the building of Bell. On the day in question, Wilson was in the area of the structure for the purpose of mining cable. From the top of the structure built by Jobst, Wilson stepped up about 18 inches onto a steel beam or superstructure, a permanent part of the building, and he began pulling cable from the cable rack. When the cable which he was pulling gave way, Wilson spun and fell off the beam onto the top of the box-like enclosure built by Jobst thereby sustaining personal injuries. Normally he worked on a rolling ladder; however, it was necessary to remove the ladder because of the alteration work.

The count in the complaint against Jobst charging violation of the Structural Work Act (Ill. Rev. Stat. 1971, ch. 48, pars. 60-69) alleged unsafe surface of the structure, improper placement of the structure, lack of safety rail or device and failure to properly clean' and maintain the structure. The court based on negligence stated allegations' similar to those in the statutory cause of action.

Jobst filed a motion for summary judgment attaching excerpts from Wilson’s deposition. Wilson filed an affidavit in opposition to the motion. On January 14, 1972 the trial court granted, defendant’s motion for summary judgment. On July 6, 1973 by stipulation of Wilson and Bell the counts alleging liability against Bell were dismissed'. A covenant not to sue was executed between them settling all issues concerning them and a payment of $21,000 was made to Wilson. It is this payment for which Bell seeks indemnity from Jobst. .

Appellant-counter-plaintiff, Illinois Bell Telephone Company alleges that the basis of its right to indemnity is the construction contract between it and Jobst pertaining to the construction of the enclosure onto which Wilson fell. According to the countercomplaint the contract provided that Jobst shall save Bell harmless from any liability based on the Structural Work Act. Jobst filed a motion for summary judgment alleging the enclosure had been completed prior to the incident causing injury to Wilson and therefore the cause of action did not arise out of the “doing, execution or completion of the work” as conditioned by the contract. The motion also stated that Bell was not to be relieved of liability due to its own negligence and that Wilson in his deposition, excerpts of which were made a part of the motion, stated the manner in which the. incident occurred. .The motion was supported, by affidavit. Bell filed a motion to strike the motion for summary judgment supported. by counter-affidavits. The trial court granted summary judgment on the counterclaim in favor of Jobst.

On this appeal our first consideration relates to the complaint filed by.Wilson against.Jobst and whether a genuine issue as to material fact exists, The purpose of a summary judgment procedure is to determine whether a genuine and material dispute of fact exists (Renieris v. Village of Skokie, 85 Ill.App.2d 418, 229 N.E.2d 345), and if no material factual issue exists, the motion is properly granted. (Ill. Rev. Stat. 1971, ch. 110, par. 57.) The . question of proximate cause under the Structural Work Act is ordinarily a question of fact for the jury and becomes a question of law only when facts are not disputed and where there can be no. difference in the judgment of reasonable men on the inferences to be drawn. (Oldham v. Kubinski, 37 Ill.App.2d 65, 185 N.E.2d 270, and Schultz v. The Henry Ericsson Co., 264 Ill. 156, 106 N.E. 236.) In general plaintiff complains that the trial court overlooked the significance of the facts concerning causation. We do not agree. The enclosure constructed by Jobst was not being used as a scaffold at the time of the incident. There is no causal relationship between Wilsons fall from the permanent steel beam and any activity related to the enclosure built by Jobst. Wilson stated in his deposition that there was nothing about the structure built by Jobst which caused his fall. It is our belief that there is no genuine issue of material fact and therefore summary judgment in favor of defendant Jobst was properly granted by the trial court.

The next matter to be, considered relates to the counterclaim filed by Bell against Jobst for indemnification of the $21,000 payment made to. Wilson in settlement of his rights. By upholding the summary judgment’ against Wilson, it has been determined that Jobst is not liable for negligence or for violation of the Structural Work Act. It is the contention of the appellant, Bell, that even though Jobst was not negligent or guilty of violating the Structural Work Act, a contractual provision requires Jobst to indemnify Bell. On the other hand, the appellee, Jobst, maintains that the language of the contract does not provide for indemnity due to acts of negligence or other wrongdoing committed by Bell. The indemnification provision of the contract states:

“If the Owner * * * is made party to any suit or proceeding because of any injury * * * to * * * any person * * * alleged to have arisen by reason of any of the things in this contract aforesaid, or to have resulted from operations under this contract * * * the Contractor shall, if the owner so requests, assume the defense * * * and shall in any event protect and save the Owner * * * harmless therefrom and from any and all costs, expenses, and reasonable attorneys’ fees incurred by, and any and all claims, demands, judgments, orders or decrees against the Owner * * * in and about and arising from said matters and things * * *”

Having reviewed the pleadings, deposition, and affidavits, it does not appear that the activities and the work being performed by the injured Wilson had any connection or relationship to the work performed by Jobst pursuant to the contract. The contract requires the injury to have arisen by reason of “any of the things” in the contract or “resulted from operations” under the contract. Wilson’s work was being performed under a separate contract which Bell had with Western Electric and although such work may have been for the purpose of repair or alteration, there is no showing that it was connected with the job of removing ceilings which was the subject of the contract between Jobst and Bell.

Bell has devoted a substantial part of its brief to arguing that by contract it may be indemnified against its own misconduct and indicating that the breadth or narrowness of the language of the agreement is the determining factor. We have no quarrel with this proposition or cases such as Northern States Co. v. A. Finkel & Sons Co., 8 Ill.App.2d 419, 132 N.E.2d 59, and Deel v. United States Steel Corp., 105 Ill.App.2d 170, 245 N.E.2d 109, cited by the appellant, but we believe that in the instant case the primary inquiry is whether the event and its consequences are within the terms of the contract regardless of whether a party is seeking a recovery for its own misconduct.

Although Wilson’s allegations against Jobst and Bell are the same, Wilson’s activities must be considered in light of his relationship as to each of them. After consideration of the affidavits and deposition, the relationship with Bell takes on a different significance. Mining cable was part of a contract which Bell had with Western Electric, Wilsons employer, and was not a part of the construction contract with Jobst. Bell assumed liability in its settlement with Wilson. We find no material issues of fact and believe Jobst is entitled to judgment as a matter of law. The facts as presented show no basis whereby Jobst has a duty to indemnify Bell. There was no error in granting summary judgment on the counterclaim in favor of Jobst.

Accordingly, the judgment of the circuit court of Peoria County is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE STOUDER.

text:
    The City of Joliet, Plaintiff-Appellant, v. Nicholas Marcos, Defendant-Appellee.
    (No. 73-236;
    Third District
    April 23, 1974.
    James M. P. D’Amico, Corporation Counsel, of Joliet, for appellant.
    Horwitz, Anesi, Ozman & Associates, Ltd., of Chicago, for appellee.
   Opinion by

Mr. JUSTICE STOUDER.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Rafael Araiza, Defendant-Appellee.
    (No. 73-273;
    Third District
    April 23, 1974.
    Michael M. Mihm, State’s Attorney, of Peoria (Arthur Inman, Assistant State’s Attorney, of counsel), for the People.
    James Geis, Deputy Defender, of Ottawa (Richard Steck, Assistant Appellate Defender, of counsel), for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is an interlocutory appeal by the People of the State of Illinois from an order of the circuit court of Peoria County suppressing confessions of Rafael Araiza, defendant, in a case charging the defendant with murder and aggravated battery. The first issue to be considered on this appeal is the defendant’s contention that the State has no right of appeal in a case such as this and accordingly the appeal should be dismissed. We do not agree with such contention and believe the appeal is properly before us.

The State urges that its appeal in this case is governed by and proper under Supreme Court Rule 604(a)(1) (Ill. Rev. Stat. 1971, ch. 110A, par. 604 (a)(1)) which provides:

“When State May Appeal. In criminal cases the State may appeal only from an order or judgment, the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.”

In particular the State argues the order suppressing the confessions of the defendant is “* * * suppressing evidence” within the meaning of the rule.

On the other hand the defendant insists that the order related only to admissions as distinguished from a confession and consequently under the authority of People v. Koch, 15 Ill.App.3d 386, 304 N.E.2d 482, an appeal by the State is inappropriate.

However the defendant both by the circumstances of the case and by his own conduct has precluded himself from coming within the rule of People v. Koch, 15 Ill.App.3d 386, 304 N.E.2d 482. From the record it appears the defendant filed a pretrial motion to suppress the evidence of his confessions in accord with and for the reasons set forth in section 114 — 11 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 11) and the trial court entered an order suppressing the confessions holding them to have been involuntarily made. Thus the defendant himself or at least his counsel assumed the statements to be confessions and the court acted on the belief that such statements were confessions without considering any facts or theory to the contrary. Such a procedure is in sharp contrast to that in the Koch case where according to the opinion, the defendant admitted and the trial court acknowledged that the statements were admissions and consequently all parties including the judge conceded that the provision of the statute relating to suppression of confessions was not involved. See also People v. Thady, 133 Ill.App.2d 795, 270 N.E.2d 861.

Although the defendant urges that substance should prevail over form and that consequently he should not be bound by the position he adopted in the trial court which was merely a matter of procedure, we believe the rule is and should be to the contrary. If the defendant sought to have his confessions suppressed and the court did so we believe the order suppressing the confessions is appealable by the State.

This brings us to the States principle assignment of error, namely, that it established the voluntary nature of the defendant’s confessions and consequently the trial court’s determination otherwise is erroneous. The gist of the suppression motion was that defendant’s confessions were not voluntary because he neither understood or waived his constitutional rights on account of intoxication and language difficulties. At the hearing on the motion two police officers and an interpreter testified in behalf of the State and the defendant testified in his own behalf.

A few facts will suffice to furnish the necessary background to consider the issues raised on this appeal. Defendant, Rafael Araiza, spent a substantial portion of the night of May 25, 1973, and the early morning hours of May 26, 1973, drinking beer with his uncle Raymundo Trevino. Trevino wanted to go to the apartment of Vega and Gomez, gave defendant a gun, and persuaded him to go with him. While they were there an argument started. Then Trevino jumped up and shot Gomez in the head, and Vega jumped on the back of Trevino. Defendant in an effort to protect his uncle, began shooting wildly, emptied the gun, and left when the wounded Vega told him to. Trevino was lying in the room also wounded or dead. He walked to 617 NE Monroe where he was shortly arrested. The shooting incident took place around 5 A.M. on May 26, 1973.

The Peoria police officer who responded to the call found Trevino dead and Vega wounded. Recognizing Trevino as a person involved in an altercation a week earlier at another address the officer went to the other address and arrested the defendant and three other persons. The three other persons were described as quite intoxicated. The defendant was taken to the Peoria police station and detained in a holding room until about 8:30 in the morning when other officers endeavored to interview the defendant. It was learned that the defendant was an illegal Mexican immigrant who could speak no English so an interpreter, Mrs. Evelyn Martinez, was called to aid in the questioning which took place later in the morning and again in the afternoon.

The two police officers who had participated with the interpreter in the questioning of the defendant, testified at the hearing on the suppression motion concerning their observations of the defendant, his normal appearance and the advice which they had given him through the interpreter of his constitutional rights. The interpreter also testified.

As indicated earlier, the defendant’s suppression motion was based on his failure to understand what was going on because of his beer drinking and language problems. Notwithstanding the testimony of the police officers and the interpreter to the contrary, the defendant insisted he was not advised of his constitutional rights and did not understanding^ waive them.

The usual rule applicable in such cases is that where the testimony is conflicting the decision of the trial court will not be disturbed on appeal. (People v. Myers, 35 Ill.2d 311, 220 N.E.2d 297, cert. denied, 385 U.S. 1019.) This rule has had its most frequent application in those cases where the trial court had determined the confession to be voluntary and hence admissible (People v. Jackson, 41 Ill.2d 102, 242 N.E.2d 160, and People v. Gold, 38 Ill.2d 510, 232 N.E.2d 702) but we believe the rule to be equally applicable when the court finds the confession involuntary and hence inadmissible. Recognizing that the rule justifying affirmation of a trial court’s order denying the suppression of a confession is equally applicable to the case where the order suppresses the confession, the State insists the testimony of the defendant is inherently improbable and unreasonable and thereby furnishes no support for the trial court’s order.

The purpose of advising an accused of his rights is to enable him to make an intelligent decision, and to understand the consequences of that decision. (People v. Turner, 56 Ill.2d 201, 306 N.E.2d 27.) In Turner the court quoted with approval from Johnson v. Zerbst, 304 U.S. 458, 82 L.Ed. 1461, 58 S.Ct. 1019, “ ‘A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’”

Without detailing the evidence at length, we believe there is ample evidence from which the trial court could have reasonably inferred both because of his diminished faculties and language problems that the defendant did not understand the rights to which he was entitled. Although it might well be that the beer drinking, lack of sleep and other impairment of faculties might not have justified the court’s order, when these factors are considered with defendant’s undisputed inability to speak English and his unfamiliarity with our system, lack of understanding is neither unreasonable nor improbable. The interpreter was not a professional interpreter, had never lived in Mexico and her familiarity with the Spanish language was acquired in this country. Although she concluded the defendant “understood” what she was relaying from the police officers, her testimony is subject to some doubt even though no claim is made that she did not try to do the best she could. In cross-examination she was unable to recall some of the details concerning her original contact with tire defendant and it is not clear from her testimony just what the defendant did or did not understand. Under these circumstances we find no reason for disturbing the judgment of the trial court.

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 SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mary Fay Bishop, Defendant-Appellant.
    (No. 72-292;
    Third District
    May 2, 1974.
    James Geis, Deputy Defender, of Ottawa, for appellant.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

The defendant, Mary Fay Bishop, pled guilty to an information filed in the circuit court of Kankakee County charging her with voluntary manslaughter. Thereafter she was sentenced to a term of not less than 5 nor more than 10 years in the penitentiary.

The first issue presented for review is whether the trial court complied with Supreme Court Rule 401 (Ill. Rev. Stat. 1971, ch. 110A, sec. 401) by determining that the defendant understood her rights before she waived her right to be charged by an indictment.

The record discloses that the defendant was represented by counsel of her choosing and not by the public defender. After the States Attorney presented for filing an information which charged the defendant with having committed the crime of voluntary manslaughter, the trial court gave a lengthy, detailed and comprehensive explanation to her concerning her right to a preliminary hearing and her right to be charged by an indictment should a grand jury desire to do so. The composition of a grand jury was explained to the defendant as well as the possible sentence which could be imposed for the crime of voluntary manslaughter. The following colloquy ensued between the court and the defendant:

“THE COURT: * * * You cannot be prosecuted under this information which has been presented to me unless you yourself voluntarily and intelligently decide that you are willing to waive —and that means to give up, your right to a preliminary hearing and to indictment by the Grand Jury.
You can say, “I don’t want to have this matter presented to the Grand Jury. I am willing to let the prosecution proceed by way of the information.” That is what I just read to you. Or you can say, “I want to have this presented to the Grand Jury.”
* * *
Now, do you understand what I have just said to you?
DEFENDANT: Not really.
THE COURT: What don’t you understand?
COUNSEL FOR THE DEFENDANT [to the defendant]: Remember I talked to you and we decided that you should — you said you would waive it?
DEFENDANT: I will waive it.
THE STATE: Might I add for the record — first may I state something — the witnesses are subpoenaed by the State and are ready this morning for preliminary hearing, and the Grand Jury will reconvene the 28th of March, so if there is any question of delay we will assure the defendant we are prepared to proceed with preliminary hearing and to indictment — it will be promptly made — or the matter will be presented to the Grand Jury promptly rather.
THE COURT: I am informed that the State has all their witnesses here and they are ready to proceed with the preliminary hearing, if that is what you want.
DEFENDANT: I will waive it.
THE COURT: Do you want to waive it?
DEFENDANT: Yes. Yes.
THE COURT: The other thing I want to explain to you is this. If the Grand Jury indicted you, you would have a right to a trial by jury. If you proceed by way of information, you still have a right to a trial by jury. You have a right to plead either guilty or not guilty. If you plead not guilty, you have a right to a jury, right to your lawyer, right to defend yourself against the charges —is that clear to you?
DEFENDANT: Yes.
THE COURT: You still want to waive?
COUNSEL FOR THE DEFENDANT: Yes.
DEFENDANT: Yes, sir, I do.”

Supreme Court Rule 401 (Ill. Rev. Stat. 1971, ch. 110A, sec. 401) provides:

“401. (Supreme Court Rule 401) Waiver of Counsel; Waiver of Indictment.
(a) * * *
(b) Waiver of Indictment. Any waiver of indictment shall be in open court. The court shall not permit a waiver of indictment by a person accused of a crime punishable by imprisonment in the penitentiary unless he is represented by counsel or has waived counsel as provided in paragraph (a) of this rule and unless the court, by addressing the defendant personally in open court, has informed him of and determined that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law, * * *; and
(3) that he can be prosecuted for the offense only after indictment by a grand jury unless he waives indictment.”

The issue raised by the defendant is not that the trial court failed to comply with Supreme Court Rule 401 but that the court failed to determine if the defendant did in fact understand her rights before waiving indictment. The defendant is relying upon that portion of the record where she responded to the court’s question in regard to her understanding as to what had been said to her and to which she replied, “Not really.” The defendant would have us to consider only her equivocal response and ignore the rest of the record. This we cannot do since it is well established that on review, the reviewing court shall consider the entire record. People v. Keene, 1 Ill.App.3d 720, 274 N.E.2d 130; People v. Grant, 1 Ill.App.3d 658, 274 N.E.2d 603.

Any uncertainty as to the defendant’s understanding as to her rights before waiving prosecution by indictment was in our opinion erased by admonitions of the court and replies made by the defendant subsequent to her equivocal answer which she now relies upon for reversal and remandment. It should be noted that the defendant raises no question as to the adequacy of the court’s admonitions nor does she contend that she did not understand the same or that her waiver was involuntary. Precisely, the defendant is attempting to direct this court’s entire attention to one response that she made to a query of the trial court and would further have us to find this one response to be of such import that it casts an aura of lack of understanding upon all the proceedings held pursuant to Supreme Court Rule 401. Our Supreme Court in determining an appeal from a conviction based upon a plea of guilty recently held that “ ‘the remarks and advice of the court must be read in a practical and realistic manner’ and that ‘[t]he essentials have been complied with if an ordinary person in the circumstances of the accused would understand them as conveying the information required by the rule.’” People v. Chatman, 56 Ill.2d 233, 236.

No useful purpose would be served by making a further examination and analysis of the record regarding the trial court’s admonitions and the defendant’s responses. We believe it suffice to say that it is clear that the essentials of Supreme Court Rule 401 were complied with and that the record amply reflects that the defendant understandingly made a waiver of her right to be prosecuted by indictment. The defendant would have us subscribe to a theory that even if she fully understood the proceedings in the trial court there should nevertheless be a reversal and remandment of this case since the record fails to disclose that the court did in fact “make a determination” that she had made such an understanding. We do not subscribe to such a theory for there is no requirement that the court make a specific finding or elicit a specific expression of understanding where the record in its entirety shows that the waiver of indictment was intelligently, understandingly and voluntarily. made. We have such a record in the instant case, and the judgment of conviction entered by the trial court should be affirmed.

We do, however, agree and further note that the State agrees with the defendant’s contention that the minimum sentence imposed upon her is in excess of that prescribed by the Illinois Unified Code of Corrections. The defendant was convicted of voluntary manslaughter, a Class 2 felony (Ill. Rev. Stat, ch. 38, sec. 9 — 2 (amendment affective Jan. 1, 1973)). The minimum term of imprisonment for such an offense shall not be greater than one-third of the maximum term set by the court. (Ill. Rev. Stat., ch. 38, sec. 1005 — 8—1(c)(3).) Since the defendant’s appeal was pending after January 1, 1973, she should be re-sentenced under the Unified Code of Corrections. (See People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.) Therefore, pursuant to the authority vested in this court pursuant to Supreme Court Rule 615 (Ill. Rev. Stat., ch. 110A, sec. 615) we reduce the minimum sentence of the trial court to a term of 3 years and 4 months with the maximum term of sentence, being 10 years, to remain unchanged.

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

Affirmed as modified.

ALLOY and DIXON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Todd B. Gorsuch, Defendant-Appellant.
    (No. 71-177;
    Third District
    May 2, 1974.

      James Geis, Deputy Defender, of Ottawa, for appellant.
    Michael M. Mihm, State’s Attorney, of Peoria (James Christy, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

After juvenile proceedings the defendant, Todd B. Gorsuch, was indicted for the minders of his sister, Theresa Gorsuch and her friend Rebecca Staley. A jury returned verdicts of guilty on both counts and on June 1, 1971, the defendant was sentenced by the Circuit Court of Peoria County to concurrent terms of not less than 25 nor more than 60 years. He appeals.

The contentions raised are:

1. That he was not proven guilty beyond a reasonable doubt.

2. That the trial court erred in not determining competency of an 11-year-old prosecution witness even though no objection was raised at trial.

3. That the trial court erred in denying defendant’s motion to suppress an exhibit.

4. That the former section of the Juvenile Court Act which allows a child to be prosecuted as an adult is unconstitutional.

5. That the sentences are excessive.

Around 3 P.M. on the afternoon of October 3, 1970, the defendant, then aged 14, left the Gorsuch home to go into a nearby woods. He was accompanied by his younger brother and sister, Tim and Theresa and two neighbor children, Ed and Rebecca Staley. The defendant was carrying a .410-gauge shotgun and ammunition for the weapon.'

The five children remained together until they arrived at a place in the woods called Suds Falls, a pond with a waterfall effect. The two girls and the defendant went on from there to pick up hickory nuts. Tim and Ed remained at the falls for 15 or 20 minutes and then went back to the Gorsuch home.

After they returned, the defendant came home without his sister, Theresa, or Rebecca Staley.

The two girls failed to return by early evening and so members of both families, a sheriffs group and volunteers formed a search party to look for them. The bodies of the two girls were found in the woods in the southeast corner of the Gorsuch property and, after an autopsy, were found to have been killed by shots to the heart from a .410-gauge shotgun.

On October 4, 1970, the sheriff of Peoria County asked to inspect the .410-gauge shotgun in the Gorsuch house, to have it shot and compared with markings on the shells found at the crime scene to eliminate any of the Gorsuch guns from the gun that may have murdered the girls. One of the sheriffs deputies, after inspecting the muzzle of the gun carried into the woods by defendant noticed a red substance inside the barrel which later testing proved to be human group B blood with fibers mixed in it. Theresa Gorsuch’s blood was group B. An expert gave opinion that the fibers were similar to fibers from Theresa’s T-shirt. The defendant was arrested for the murders of Theresa Gorsuch and Rebecca Staley.

A lengthy juvenile detention hearing was held and the judge found that probable cause existed that the defendant had committed the crime for which he was detained. On petition of the State’s Attorney the defendant was removed from the jurisdiction of the juvenile court to be prosecuted as an adult by indictments for two counts each of murder and involuntary manslaughter.

The defendant was tried before a jury on the indictments. Prior to trial, defendant moved to suppress the .410 shotgun basing his motion on an alleged and illegal seizure by the sheriff of this weapon. A hearing was had on the motion, and after hearing the evidence on both sides, the court denied the motion to suppress.

At the trial, Ed Staley, age 11, brother of Rebecca Staley, testified that Theresa Gorsuch, Tim Gorsuch, his sister and he left the Staley home to go to Suds Falls and in order to get there went first to the Gorsuch home where they met the defendant. At that time, the defendant had the .410-gauge Steven’s single shotgun, which was admitted into evidence as People’s Exhibit 9. The defendant was about to go with the other four children into the woods behind the Gorsuch home to. Suds Falls when Ed stated that he was forbidden by his parents to go with Todd if he had the shotgun. For this reason, Todd disassembled the .410-gauge shotgun and the five children left the Gorsuch home together. The children then proceeded, for the most part in each other’s company, until they reached a hill near Suds Falls which is on the property east of the Gorsuch property, belonging to a Mr. Kirkpatrick. At this point the children separated, Tim and Ed going to Suds Falls and the defendant, Theresa Gorsuch, and Rebecca Staley staying on the hill to rest. After playing at Suds Falls, Tim and Ed left and went tó the Gorsuch home. Ed testified the last time he saw the girls alive was ’ on the hill near Suds Falls in the company of the defendant, who still had the disassembled .410-gauge shotgun. Tim and Ed then proceeded to the Gorsuch house and played with their puppy. Ed testified that, when the pup relieved itself on the floor, Mrs. Gorsuch told Tim to clean up the mess, which he did, and the two of them then left the house where they saw the defendant for the first time since coming back from the woods. Ed Staley estimated that about 15 minutes had passed since he and Tim arrived at the house till the time they went out and saw Todd in the yard. This had been the first time that they had seen him since leaving him at the hill with Theresa Gorsuch and Rebecca Staley. Ed testified that when they saw Todd he was on the lawn ihower in the yard, but did not remember whether he was mowing at that time. He did not see People’s Exhibit 9 at that time. Ed further testified that he did riot remember hearing any shots until that time. In fact there is no record that Ed heard any shots the whole day, Tim spoke briefly to Todd when they saw him and then he and Ed left the Gorsuch house and went to the Staley’s.

The' People also called as a witness one Eugene Ely, who testified that he was combining in the field directly south of the Gorsuch property on October 3, 1970, from 10 A.M. to 5 P.M. Mr. Ely stated that he also did not hear any shots at any time during which he was there that day. His combine was quite loud when operating.

Eemard Kennedy, sheriff of Peoria County, testified that' he .arrived at the Gorsuch home that evening to direct the search for the two girls. Their bodies were found about midnight. Sheriff Kennedy went to the place where the bodies were found on the Gorsuch property and rioticed they were partially covered by some brush and appeared to háve been dragged to the place where "they were found. Sheriff Kennedy then - called Robert Dubois from the State Crime Laboratory and the Coroner before he left the Gorsuch property. The next time Sheriff Kennedy arrived at the Gorsuch property was about 10:30 A.M. on October 4, 1970. He briefly visited the place where the bodies were found and it was pointed out to him by certain sheriff’s deputies that three shotgun shells had been found. Sheriff Kennedy went then to the Gorsuch home and the defendant stated that those were his shells, that he had shot at a squirrel and missed. The Sheriff then returned to the Gorsuch home and told Ronald Gorsuch, the defendant’s father, that he would like to have the Gorsuch weapons to test fire them to see if there were any shells that had been found that were fired from a gun that was not one belonging to the Gorsuch family. After this, Ronald Gorsuch asked where the guns were, at which Ronald Gorsuch’s father and the defendant retrieved two shotguns from under the davenport in the living room of the Gorsuch house; one of them was People’s Exhibit 9. There was never an explanation as to how or why these guns were under the davenport. The guns were given to Deputy Conn of the sheriff’s office who took them to a squad car. Sheriff Kennedy then returned to the place where the bodies had been found and observed People’s Exhibit 9 being handed to Robert Dubois of the State Crime Laboratory, and. then he left the scene.

Dr. Donald Burhans, the coroner’s physician, test'fied that he performed an autopsy on the bodies of Rebecca Staley and Theresa Gorsuch. Dr. Burhans described the wound to Rebecca Staley as being a gunshot wound in the midline of the chest, slightly to the left at about the fourth rib and 2.2 inches in diameter. There was also a gunshot wound to the left scapula, which contained multiple-shot injuries and a piece of shotgun wadding. In his opinion the cause of death was due to a gunshot wound to the heart. Dr. Burhans then testified that he examined Theresa Gorsuch and found a gunshot wound with a portal of entry in the chest near the right breast, where there were also powder bums. He then found a second wound with a portal of entry in the midline of the lower abdomen. The cause of death in Dr. Burhans’ opinion was hemorrhage due to a gunshot wound to the heart. Shotgun shots were recovered from both of the wounds of Theresa Gorsuch. In Dr. Burhans’ opinion, both girls had been dead from 10 to 15 hours at the time of the autopsy. On cross-examination, Dr. Burhans stated that in his, opinion the chest wound to Theresa Gorsuch more than likely came first, the wound to the abdomen coming after this. Dr. Burhans testified that he formed this opinion as to which shot came first due to the amount of hemorrhaging which occurred at the second wound. However, Dr. Burhans went on to testify that had either of the girls undergone either., a physical or emotional shock at the time of the shooting, the blood pressure would have been lowered sufficiently that they would not have, hemorrhaged even if it had been the first shot. Another reason for Dr. Burhans’ uncertainty to the order of the shots to Theresa Gorsuch is the fact that, in the chest there will always be massive hemorrhaging unless, the body is completely exsanguinated from another wound. In the pelvic area where the other shot to Theresa Gorsuch occurred there are fewer and smaller blood vessels and bleeding is more controlled in that area. On redirect Dr. Burhans confirmed his earlier statement that he could not be absolutely certain as to which shot entered Theresa Gorsuch’s body first.

The next witness to testify on behalf of the People was Robert Dubois of the Bureau of Identification of the Illinois Department Law Enforcement. Mr. Dubois testified that he was a crime-scene technician and that he was called to the Gorsuch property early in the morning of October 4, 1970, and observed the bodies of the two girls. After examining the general area of where the bodies were found, he ordered the removal of the bodies to the Wilton Mortuary in Peoria, Illinois, where he removed the clothes from both bodies. He returned to the Gorsuch property about 11 A.M. He returned to the crime scene and while there Deputy Conn of the sheriff’s department delivered the .410-gauge shotgun, People’s Exhibit 9. While looking through the barrel of People’s Exhibit 9, he observed a red substance which appeared to him to be blood. He took People’s Exhibit 9 with all the other evidence gathered at the crime scene to the Springfield Crime Laboratory and gave them to Brent DeWitt and Michael Kreiser, laboratory technicians.

Brent DeWitt testified that he is crime laboratory technician for the Illinois Bureau of Identification and was qualified as an expert in serology, the science dealing with blood and blood groupings. DeWitt testified that he received vaginal swabs, blood samples, material found inside the muzzle of People’s Exhibit 9, People’s Exhibit 9 itself and the clothes removed from the bodies of the girls. He performed tests on all of these items. Microscopic and acid phosphate tests were performed on the vaginal swabs and the result of these tests were negative for the presence of male sperm. On the clothes of both girls he performed benzedine and precipitine tests to determine if the substance found on the clothing was human blood. Evidence of human blood was found on certain articles of clothing of both girls. DeWitt, through the use of the Latch Crust Test, determined that the blood on the clothing of Theresa Gorsuch was of group B and that on the clothing of Rebecca Staley group A. DeWitt also, through the use of the same tests, determined that the blood sample taken from Theresa Gorsuch by Dr. Burhans was group B and that of Rebecca Staley group A. He did the tests mentioned above on the outside of People’s Exhibit 9 to determine the presence of human blood, and found these tests to be negative. The tests were then performed on the inside of the muzzle of People’s Exhibit 9 before the material was taken out and the tests proved positive for the presence of human blood. The material from the muzzle was then removed and DeWitt performed additional tests on a portion of it and determined that the human blood that was present in the muzzle of People’s Exhibit 9 was group B. He also found certain fibers in the dry blood which came from the muzzle of People’s Exhibit 9. DeWitt examined these fibers microscopically and performed chemical tests to determine what type of material the fibers were. The tests showed that certain of the fibers were cotton and others man-made. Sample fibers from the multi-colored cotton T-shirt of Theresa Gorsuch were compared microscopically with the fibers found in the muzzle of People’s Exhibit 9 and there were found to be white, yellow, red and brown cotton fibers in the group B blood in the muzzle of People’s Exhibit 9, which were similar in type of fiber and color to the sample fibers taken from the T-shirt worn by Theresa Gorsuch.

Michael Kreiser, laboratory technician for the Bureau of Identification, was qualified as an expert in firearms and tool marks. Kreiser stated that he performed tests on the shot and wadding removed from the wounds of the girls and, in his opinion, they were fired from a .410-gauge shotgun shell. The shot which was examined was mutilated, but Kreiser was able to narrow down its size to either 7½, or 8 shot, either of which sizes can be fired from a .410-gauge shell. Kreiser also, through examinations of the existence of powder bums and the pattern of the shot, was of the opinion that the shot to Theresa Gorsuch’s chest was fired with the muzzle of the weapon in contact with the clothing and body of the victim. On the same basis he was of the opinion that the shot to Theresa Gorsuch’s abdomen was also in contact with her clothing and body when fired. Kreiser testified that the shot and wadding fired from a .410 shotgun would travel at the rate of 100 to 200 feet per second and would strike the body with such force that it would rip and tear into clothing, flesh and blood as the shot was expelled from the gun.

The defendant’s case was based mainly on the testimony of the members of the Gorsuch family, his father, mother and brother, and the defendant himself. Tim Gorsuch, the brother of the defendant, testified to essentially the same story as Ed Staley, that the five children went into the woods behind the Gorsuch home together. When they reached a hill near Suds Falls he and Ed left Todd and the girls and played at Suds Falls. After about 15 or 20 minutes, he and Ed left the area for the Gorsuch home. Todd was with the girls when he and Ed left; he still had his .410-gauge shotgun with him which was still in a disassembled condition. Neither he nor Ed heard any shots on the way back to the Gorsuch house. When they arrived they went into the house and Mrs. Gorsuch told them to take the pup out of the house, which they did and saw the defendant coming into the yard. Tim said they were in the house only about 5 minutes before going out and seeing him. They were in the yard a short period of time with the pup and then went back into the house with Todd. They then watched T.V. for awhile. During the time the two were watching, Tim claimed that he heard two faint shots, but he could not tell from what direction they came. He and Ed shortly thereafter left for the Staley home and the last time he saw Todd that afternoon he was mowing the lawn. On cross-examination, Tim testified that he had not seen anyone other than the four other children in the woods on October 3, 1970,

Ann Gorsuch, the mother of the defendant, stated that the children left the Gorsuch house about 1:30 to 2:30 P.M. on October 3, 1970. She saw Ed and Tim return later in the afternoon. They came into the house and immediately went out again into the yard. Mrs. Gorsuch testified that 5 minutes later Ed and Tim came back into the house accompanied by the defendant. Tim and Ed watched T.V. while Todd went outside to mow the lawn. She further stated that after a while Todd called her to the door and when she got to the door she heard two shots coming from the east, and Todd then told her about the long-haired hunter he claimed to have seen. These were the only two shots Mrs. Gorsuch testified to hearing. Finally, Mrs. Gorsuch testified that she observed her husband that evening after the girls’ bodies had been found and saw that he had two deep cuts on his face and one on his wrist and these were bleeding at the time. On cross-examination Mrs. Gorsuch stated that she had not heard any shots until the time she was called to the door by Todd.

Ronald Gorsuch, the defendant’s father, testified that he had worked the whole day on October 3, 1970, and returned home about 6:50 P.M. to find everyone there searching for the two girls. He went out to search with a neighbor on horseback and during the course of this search, his horse ran into some hedge trees and thorn bushes and he was knocked off. Mr. Gorsuch claimed that he sustained deep cuts on his face and both hands, which bled profusely. Mr. Gorsuch stated that the next morning the sheriff asked him to see the shotguns arid that People’s Exhibit 9 was retrieved from under the couch by his father' and the defendant. Mr. Gorsuch stated that he took the gun from Todd, opened it, and checked the barrel both ways, closed it and stood it on the floor and leaned on it until the sheriff asked to see it, at which time he handed it to the sheriff. The sheriff’s deputy then took People’s Exhibit 9 out of the room. Mr. Gorsuch testified that he has group B blood. ' Finally, the defendant took the stand and testified on his own behalf. His story was essentially the same as Tim and Ed, that he accompanied the four children into the woods behind the Gorsuch house carrying his .410-gauge shotgun, which was broken into three pieces. The defendant claimed to have only “two or three” shotgun shells with him at that time, one 7½ shot and one or two 6 shot shells. His story was similar to those of Ed and Tim as to the route taken to the woods, eventually ending at the hill near Suds Falls where they stopped and rested. After resting a while, Tim and Ed went to play at Suds Falls while he and the girls stayed to rest on the hill. The defendant testified that between 3 P.M. and 4 P.M. he and the girls went to Suds Falls and informed Tim and Ed that the three of them were going to pick hickory nuts. The last time he saw Tim and Ed was at Suds Falls. The defendant testified that he went with the girls to pick hickory nuts in the northeast comer of the Gorsuch property. After he picked hickory nuts for 5 minutes he claims that he left the girls to go home to mow the lawn. After traveling a ways along the fenceline between the Gorsuch property and Kirkpatrick property to the east, the defendant claims that he heard someone coming through the woods. He testified that he hid behind the bush and observed a long-haired hunter coming out of the woods. He said that this hunter was carrying a gun, he did not know what kind of a gun it was, but he recognized it to be smaller than a 12-gauge shotgun. The defendant testified that this hunter he claimed to have seen walked from the Gorsuch property to the Kirkpatrick property through the fence that separated the two. He did not see him again after that and did not know where he went. The defendant testified that he then made his way home and leaned his .410-gauge shotgun, which he had assembled as he approached the Gorsuch house, on the bam next to the house. He stated that he went into the house and then came out again to mow the lawn when he heard four or five shots which came from the East. He then called his mother to the door and told her the story about the long-haired hunter. The defendant denied having any arguments with either of the victims and denied having shot or killed either.

The defense then rested and the People called William A. Hill of the sheriffs department in rebuttal. Deputy Hill testified that he was at the Gorsuch property when the two girls were found in the early morning of October 4, 1970. He stated that when the girls were found to be dead Ronald Gorsuch became violent and tried to pull out a gun, so he and his partner had to restrain him by placing handcuffs on his wrists. During the course of placing these handcuffs on Ronald Gorsuch’s wrists, Deputy Hill observed his hands and noticed no cuts or bleeding, only faint scratches and redness.

This was the end of the evidence for both sides. The jury deliberated a total of 16 hours and returned verdicts of guilty on both murder counts.

After an extensive pre-sentence hearing, the defendant was sentenced to 25 to 60 years for each count of murder, which sentences were to be served concurrently. The defendant then took this appeal from the verdicts and sentences in this case.

The case against the defendant rests upon circumstantial evidence and it is a correct statement that where the only evidence is circumstantial evidence the guilt of the accused must be so thoroughly established as to exclude every other reasonable hypothesis. (People v. Lewellen, 43 Ill.2d 74, 78.) This, however, does not require that guilt be proved beyond any possibility of a doubt. (People v. Murdock, 48 III.2d 362.) It is well settled that the commission of an offense may be established entirely by circumstantial evidence it being necessary only that proof of circumstances must be of a conclusive nature and tendency, leading on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, when taken together, satisfies the jury beyond a reasonable doubt of the accused’s guilt. (People v. Bernette, 30 Ill.2d 359, 367.) There is no legal distinction between direct and circumstantial evidence as to the weight and effect thereof. (People v. Robinson, 14 Ill.2d 325, 331.) Applying these principles to the instant case leads to the conclusion that the guilt of the defendant has been proved beyond reasonable doubt.

The defendant was the last person to be seen with the two victims while they were alive. The defendant had a .410-gauge shotgun and some shells during the time he was alone with the girls. The girls were killed by shots to the heart from a .410; the shot to Theresa Gorsuch’s chest was a contact shot. The .410 last in possession of defendant was found to have a substance in the muzzle that proved to. be group B human blood with fibers in it. Theresa Gorsuch had group B blood and the fibers were similar in color and kind as those on the multiple-colored T-shirt worn by Theresa when she was shot. The facts clearly show that defendant had the opportunity and means.

The jury was justified to find the father’s testimony as to how blood and fibers got in the muzzle as. not believable. If his hand was bleeding why was blood nowhere but inside the barrel? The jury was justified in concluding that defendant’s hypothesis of innocence was not a reasonable one. It is the function of the jury to make a determination of the credibility of the witnesses and the weight to be given to the totality of the testimony. We cannot overturn the verdict of the jury simply because some evidence presented to it was conflicting. (People v. Brown, 52 Ill.2d 94, 105, 106.) When all the facts are considered together we must reach the conclusion that the verdicts of the jury are supported by strong evidence of guilt beyond a reasonable doubt and to a moral certainty. We cannot substitute our judgment for that of the trier of fact except in cases where the evidence is so improbable or unreasonable as to raise a reasonable doubt of defendant’s guilt. (People v. Glover, 49 Ill.2d 78.) We shall next consider the question of other errors raised by defendant.

Eleven-year-old Eddie Staley was allowed to testify at the trial without a preliminary examination by the Court. The governing rules concerning a child witness under 14 have been succinctly stated in People v. Sims, 113 Ill.App.2d 58, 61, and need not be restated. No objection was made to the competency of the witness. As was said in People v. Matthews, 17 Ill.2d 502, at page 506, “the defendant has the duty to raise an objection to the competency of a child as a witness at the time of trial, and the question cannot be raised for the first time on appeal.” See People v. Tappin, 28 Ill.2d 95, 98.

In People v. Bridgeforth, 51 Ill.2d 52, 56, and in People v. Montgomery, 51 Ill.2d 198, 204, the supreme court reaffirmed Matthews but in Bridgeforth stated, “However, because of the damaging effect of the testimony, and its obvious importance to the case, we elect to review defendants’ contentions.”

In the case at bar the intelligence of the witness was ascertained by his appearance and conduct in the presence of the court. Further, Eddie was called to testify on three separate occasions, twice at the detention hearing and once at trial. At the detention hearing there was conducted a thorough and complete preliminary examination by the court and by defense counsel concerning Eddie’s competency. There the judge found him to be competent to testify. This is obviously the reason the same defense counsel raised no objection at the trial. We have examined the trial testimony and find that Eddie was obviously competent to testify.

The trial court, after an extensive evidentiary hearing on a motion to suppress found that People’s Exhibit 9, the .410-gauge shotgun, was removed by the sheriff of Peoria County from the Gorsuch residence, “with the consent of those entitled to give consent, that consent was valid and not in violation of any constitutional rights * * Defendant contends that the record fails to show the requisite facts for such a finding.

The testimony of Sheriff Kennedy established that he had gone to the Gorsuch residence between 10:30 and 11 A.M. on October 4, 1970, the morning after the bodies of the two girls were found. He had by then learned that both girls died of shots from a .410-gauge shotgun. At the crime scene earlier that morning he found numerous spent .410-•gauge shells lying around so he went to the Gorsuch house to get any .410 guns there for comparison purposes, in order to see if any shells were there that were not from a Gorsuch gun. At that time Sheriff Kennedy did not know that the defendant had a .410-gauge shotgun in his possession when he was in the woods with the girls. At that time the sheriff suspected no one in the Gorsuch family. The suspect at that time was the ‘long-haired hunter” defendant claimed to have seen. The sheriff went to the house to ask for cooperation in his investigation. He was freely admitted to the house by Mrs. Gorsuch. He told Ronald Gorsuch, the father, that both girls had been shot twice and that he would like to have any .410 guns belonging to the Gorsuch family for comparison to find any alien shell that might have come from another weapon. The father determined where the weapons were, with help from defendant and Exhibit 9 and another gun were removed from under a davenport by Todd, given to his father who, in turn, gave them to a- deputy who was present with the sheriff.

Ronald Gorsuch testified that he specifically told the sheriff, “if you take these guns from this house it is under protest.” This statement was corroborated by William Herman, a friend of the family and by the defendant.

The question of whether consent has been given is a factual matter to be initially determined by the trial court, and where the evidence on the issue is in conflict the reviewing court will accept the finding below unless it is clearly unreasonable. Because a court of' review is not in a position to observe the witnesses as they testify, questions of credibility and the weight to be given their testimony must be left largely in the discretion of the trial court. It follows that we are bound to accept the testimony given by the sheriff because it cannot be said that it is clearly unreasonable. We are not similarly bound, however, to accept the trial court’s ruling on the motion if, as a matter of law based on the facts as established by that testimony, it cannot be said that a legally sufficient consent was given. (People v. Haskell, 41 Ill.2d 25, 30.) In other words the relative credibility of the witnesses is not the issue before this court. The real issue is whether the testimony of Sheriff Kennedy, taken at full value, meets the required standards for consent..

These standards have been defined in numerous instances. It is clear that consent must be proven by clear and positive testimony, and it must be established that there was no duress or coercion, actual or implied. The prosecution must show a consent that is unequivocal and specific, freely and intelligently given. Courts indulge every reasonable presumption against waiver of fundamental constitutional rights. While it is not required that the People show that the consenting party was advised of rights secured by the fourth amendment, the failure to do so is a factor bearing on the understanding nature of the consent. People v. Haskell, supra, page 31.

When measured by these standards we think the evidence in this case does establish a legally effective waiver of the right against unreasonable search and seizure. We believe the gun was freely given to the sheriff. After the deputy inadvertently discovered tire blood in the muzzle it became too late to withdraw consent. United States v. Ponder, 444 F.2d 816, cert. denied, 405 U.S. 918, 30 L.Ed.2d 788, 92 S.Ct. 944.

The contention that former section 702 — 7(3) of chapter 37 (Ill. Rev. Stat. 1969, ch. 37, par. 702 — 7(3)) is unconstitutional has recently been settled by our supreme court in People v. Sprinkle, 56 Ill.2d 257, 307 N.E.2d 161. Also, see People v. Bombacino, 51 Ill.2d 17, 19-20, and People v. Handley, 51 Ill.2d 229, 233. We conclude that the statute in question is valid and reject defendant’s contention.

The last contention of defendant is that 25-to-60-year concurrent sentences for a 14-year-old defendant with an exemplary background are excessive.

It is well-established law in Illinois that where it is claimed that the sentence imposed on a defendant is excessive, though within the limits prescribed by the legislature, that sentence should not be disturbed unless it is greatly at variance with the purpose and spirit of the law or manifestly in excess of the proscriptions of the Illinois Constitution. The trial court is normally in a better position during the trial and hearing in aggravation and mitigation to make a sound determination as to the punishment to be imposed than are courts of review. People v. Hampton, 44 Ill.2d 41.

We believe that these principles relative to sentencing have not been violated here. We find no reason to disturb the sentences.

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

Judgment affirmed.

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