author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James C. Austin, Defendant-Appellant.
    (No. 73-297;
    Second District
    November 21, 1974.
    . Frank Wesolowski, Jr., Public Defender, of Wheaton (Robert H. Heise, Deputy Public Defender, of counsel), for appellant.
    John J. Bowman, State’s Attorney, of Wheaton, (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

In a jury trial herein the defendant was found guilty of the unlawful delivery of cannabis, in violation of section 5(d) of the Cannabis Control Act (Ill. Rev. Stat. 1971, ch. 5672, par. 705(d) ) and was found guilty of the unlawful possession of cannabis, in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1971, ch. 5672, par. 704(d)). The defendant was sentenced to a term of 1-3 years, the sentence to be served concurrently with an unexpired Federal sentence previously imposed upon the defendant for conspiracy and unlawful possession of cannabis.

The first contention of the defendant is that he was not proven guilty beyond a reasonable doubt. Secondly, the defendant contends that he was denied due process of law because of the ineffective representation of his privately retained counsel. Thirdly, the defendant contends that the introduction of a hashish pipe into evidence was evidence of another crime and improper and that the court erred in allowing the introduction of the pipe. Lastly, the defendant contends that the court erred in entering judgment on both offenses, one being a lesser included offense, namely possession of cannabis.

On March 1, 1972 one James Thon, an informer, went to the police department of the Village of Addison and informed the police that an illegal sale of hashish was about to take place. A controlled buy was arranged by the police. Eight hundred dollars in marked currency was obtained by the police. After being strip-searched by the police, the informer Thon went to a hippie-type store called “Closer To Home” in Addison with the marked money for the alleged purpose of making the purchase of hashish. The store was staked out by the Addison police. When Thon exited the premises he was immediately arrested, handcuffed, and searched. On his person was found approximately 91 grams of hashish and $500 of the marked currency. The police entered the premises and arrested the five occupants of the store. The five occupants were searched and the defendant, James C. Austin, was found to have $295, of which $290 was the marked currency, on his person as well as a hashish pipe. Ten dollars of the marked currency was found in the cash register.

Steven Ciampi, one of the proprietors of the store “Closer To Home” testified on behalf of the State. He testified that James Thon, whom he identified by his voice on the telephone, called him and asked if he could purchase a pound of hashish. Ciampi told Thon that he would see what he could do and later advised Thon that he could only get one-quarter of a pound of hashish. Ciampi testified that on the day in question the defendant, James C. Austin, brought 91 grams of hashish to the store.

The hashish was taken to the washroom in the “Closer To Home” store where, after receiving the marked currency from Thon, Ciampi gave defendant, James C. Austin, $290 of the marked currency, together with an additional unmarked $5 bill, in exchange therefor. Ciampi retained $5 for his efforts, for which he had made change of the marked $10 bill found in the cash register to obtain two $5 bills. The defendant left the washroom and was in the store proper when the arrest was made. The informer, James Thon, did not testify. Both the State and defense counsel attempted to have him available to no avail.

The defendant’s first contention, that he was not proven guilty beyond a reasonable doubt, is based primarily on tire contention that the only evidence against the defendant was that of the alleged accomplice, Ciampi. Counsel overlooks the fact that the defendant, James C. Austin, was in possession of the marked currency at the time of his arrest.' We have examined the record carefully and we do not agree with defense counsel that the testimony of Ciampi was contradictory. While it is true that there were some inconsistent statements made, the basic contention of Ciampi, at the time of his apprehension, in his statement to tire police, in his testimony before the Grand Jury which was brought out by defense counsel, and in the testimony at trial, was substantially the same.

The defendant took the stand and testified in his own behalf. He testified that he was in need of money and that Steven Ciampi, an acquaintance whom he knew casually, agreed to loan him the money. He testified that he went to the “Closer To Home” store, that he and Ciampi went into the washroom where Ciampi gave him the $295 in what turned out to be marked currency and that the same was a loan. This explanation was presented to the jury and it was the province of the trier of fact to determine whom they wished to believe, to-wit, the defendant who allegedly borrowed the money or the police officers who gave the marked money to the informer who, in turn, gave it to Ciampi who, in turn, gave it to the defendant. The question being whether the jury believed the defendant who said he borrowed it of whether they believed that he obtained the money in exchange for the hashish. As the court stated in People v. Pagan (1972), 52 Ill.2d 525, 534, 288 N.E.2d 102, the judgment of the trier of fact will not be set aside on review unless the proof of guilt is so unsatisfactory as to create a reasonable doubt as to the defendant’s guilt. As in Pagan we do not find the proof so unsatisfactory as to require a reversal,' and we aré satisfied, from careful review of the record, that there was sufficiérit evidence of defendant’s guilt.

Defendant next complains of the alleged ineffective representation óf his privately retained counsel. Trial strategy at times may well be confused with alleged incompetence. In the case before us the testimony was quite clear that the defendant entered the premises in question, that an exchange of hashish took place in the premises and the defendant was apprehended shortly thereafter with the money on his person. It may well be that the strategy employed by trial counsel in this case may have been carefully thought out. Particularly is this true with regard to the admission of hearsay evidence which in no way prejudiced the defendant. Defendant also contends that an accomplice instruction should have been given to the jury and that it should have been brought out at the trial that Ciampi was, in fact, an accomplice. This, too, may have been trial strategy on the part of defense counsel. Ciampi had already been sentenced to 1 year’s probation for his part in tire proceedings and it may well be that counsel did not want this in evidence and for that reason did not want an instruction involving Ciampi as an accomplice to a crime allegedly committed by his client, which he denied.

The cases involving incompetence of counsel are legion in number. In People v. Georgev (1987), 38 Ill.2d 165, 169, 230 N.E.2d 851, 854, court appointed counsel failed to tender a cautionary instruction relative to accomplice testimony. Nonetheless, the supreme court affirmed, stated, quoting from People v. Cox (1961), 22 Ill.2d 534, 537-8, 177 N.E.2d 211, 213:

* * The question of whether a defendant was adequately represented by competent counsel must be answered solely from the circumstances of each particular case (People v. Francis, 356 Ill. 74); and in order to sustain his position the defendant must clearly establish actual incompetency of counsel and substantial prejudice resulting therefrom, without which the outcome would probably have been different. People v. Morris, 3 Ill.2d 437.’ ” (38 Ill.2d 165, 169.)

We agree with that holding and find that in the case before us the absence of the cautionary instruction relative to an accomplice would not, and did not, affect the verdict of the jury based upon the testimony adduced in this trial. Or, as the supreme court stated in People v. Redmond (1972), 50 Ill.2d 313, 314-15, 278 N.E.2d 766, 767, “An error in judgment or trial strategy will not establish incompetence.” The court then went on to cite the oft repeated statement that “ ‘where representation by counsel of defendant’s choice is of such low caliber as to amount to no representation at all, or reduces the court proceedings to a farce or a sham, defendant is denied the fair trial contemplated by the due process guaranties of the Federal and State constitutions. [Citations.]”’ (50 Ill.2d 313, 315.) In " Redmond, in fact, the court did find that the conduct of the trial counsel was such therein as to deprive the defendant of due process.

In People v. Somerville (1969), 42 Ill.2d 1, 245 N.E.2d 461, the defendants therein complained of the incompetency of their privately retained counsel. In considering this question, the court held that incompetency of privately retained counsel therein was not established because retained counsel failed to object to inadmissable evidence or failed to move to suppress certain evidence and made other errors of judgment or trial strategy. From the examination of the record as a whole herein we cannot say that defendant’s representation by his privately retained counsel was so inadequate as to violate the standards laid down for private counsel.

' Defendant next objects to the admission of the hashish pipe into evidence. At the time of trial defense counsel objected strenuously to the admission of this item, and the same was admitted. As counsel for the State points out, the defendant was charged with the possession of cannabis, and the hashish pipe, as stipulated to, bore evidence of having been used for the purpose of smoking hashish as cannabis resins were found thereon. The court properly admitted this as being in evidence of possession of cannabis or cannabis resins and as such was a part of the res gestae of possession of the same, to-wit, cannabis. We do not believe that the jury would consider this as a separate offense nor do we believe that it would be considered as evidence of a propensity towards tire use of cannabis on the part of the defendant. We find that the same was admissible.

It is to be expressly noted that the defendant was sentenced to 1-3 years, the sentence to be served concurrently with a Federal conviction of conspiracy and possession of narcotics imposed by the Federal court. However, the sentence on the possession of cannabis, being a lesser included offense of the offense of delivery of cannabis, is improper. The conviction and sentence for possession of cannabis is therefore vacated.

The conviction and sentence is affirmed as to the delivery of cannabis; the sentence as to the possession of cannabis is vacated.

Affirmed in part; vacated in part.

T. MORAN, P. J., and SEIDENFELD, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Francis Unger, Defendant-Appellant.
    (No. 73-119;
    Second District
    November 1, 1974.

      Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Richard L. Caldwell, State’s Attorney, of Oregon (Peter J. Woods, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

. Defendant herein, charged with the theft of a motor vehicle of a value of more than $150, waived indictment and pursuant to plea negotiations whereby another felony charge and five misdemeanor charges were dismissed, pleaded guilty and was sentenced to 1-3 years in the' Illinois State Penitentiary.

.The first contention of the defendant is that the court could not accept his plea of guilty under the negotiated plea agreement because' he had not validly waived indictment. The second contention of the defendant is that the trial court did not substantially comply with the provisions of Supreme Court Rule 402. Ill. Rev. Stat. 1969, ch. 110A, par. 402..

In substance, the first contention of the defendant is that the court failed to see that the waiver of indictment was understandingly and knowingly made by the defendant. Examination of the record indicátes that the court personally inquired of the defendant in the presence of his counsel whether or not it was his wish to waive his right to be indicted by a grand jury and to allow the State’s Attorney to proceed upon the information against him. To this inquiry the defendant replied in- the affirmative, and thereupon he and his attorney executed a written waiver of indictment.

On November 16, 1971, the defendant appeared before the trial court, having been served with copies of complaints charging him with possession of a motor vehicle known to have been stolen and theft of another motor vehicle. At this time the trial court explained in detail the right of the defendant to be indicted, and the court went on to explain the procedure by which a grand jury would and could indict the defendant. The court then went on to recite the misdemeanor charges against the defendant. Defendant thereupon pled not guilty' to the felony charges and the misdemeanor charges. On the 2nd of December, 1971, defendant appeared in court with his counsel who had been appointed approximately 1 week before. The State’s Attorney, thereupon advised the trial court in detail that the State had entered into a plea agreement with the defendant by and through his counsel whereby defendant would plead guilty to the theft of one motor vehicle, would waive indictment, and that the sentence agreed upon was 1-3 years, with the understanding that the other felony charge and the five misdemeanor charges would be dismissed. The court then inquired of the defendant as to whether the statement of the State’s Attorney was correct. The court then inquired if the defendant wished to waive his right to be indicted by a Grand Jury and, as indicated above, to both inquiries the defendant replied in the affirmative. The court thereupon accepted the plea of guilty to the information as to the one felony charge and sentenced the defendant to 1-3 years in the penitentiary.

In support of his contention that the defendant did not validly waive indictment counsel has cited People v. Culbert (1966), 69 Ill.App.2d 162, 215 N.E.2d 470. We do not find Culbert to be authority for the defendant’s contention. In Culbert the trial judge inquired of the defendant, who was without counsel, as to whether he wished to “waive intervention of the Grand Jury” and defendant replied “It’s up to you.” The court thereupon stated that it was up to the decision of the defendant as to whether he wished to waive the grand jury without explaining to the defendant the right to be indicted if he so chose. We further find that the other cases cited by the defendant in support of this contention, likewise, are not controlling.

In People v. Sailor (1969), 43 Ill.2d 256, 253 N.E.2d 397, the supreme court found that a waiver of jury trial by counsel in the presence of the defendant constituted a valid jury waiver by the defendant. The waiver of indictment, likewise, must be determined upon the facts and circumstances in each case as to whether the same is knowingly and intelligently made. In the case before us, unlike Sailor, the court inquired of the defendant personally in the presence of his attorney as to whether he waived indictment and a jury trial. We further see no distinction between the waiver of a jury trial under Supreme Court Rule 4Ó2 and waiver of indictment under Supreme Court Rule 401. We find that People v. Sailor is equally applicable to the waiver of an indictment by counsel in the presence of the defendant as it is to the waiver of jury trial by the defendant in the presence of his counsel. In People v. Wilson (1971), 132 Ill.App.2d 537, 270 N.E.2d 88, the appellate court considered a case remarkably similar to the one before us. In Wilson the defendant was charged with burglary and at the preliminary hearing the court advised the defendant as to his right to be indicted by a grand jury. The case was passed over and the court offered to continue the case for 1 week. Nonetheless, the defendant proceeded to persist in his plea of guilty and the court sentenced him to the penitentiary. Upon appeal counsel contended, in part, that the court accepted his waiver of indictment and plea of guilty without advising him of his rights under Supreme Court Rule 401. In considering section lll-2(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1967, ch. 38, par. lll-2(a) ) and Supreme Court Rule 401(b) (Ill. Rev. Stat. 1967, ch. 110A, par. 401(b) ) (waiver of indictment), the court observed that the advice pertaining to waiver of indictment and the entry of a guilty plea must be considered in a practical and realistic manner and in light of the circumstances surrounding the waiver. The court then held that the defendant therein understanding^ waived his right to have the cause presented to the grand jury for indictment.

In the instant case almost the exact situation is presented. The trial court at the preliminary hearing explained in detail to the defendant the right and the procedure followed in grand jury proceedings. Subsequent to this, counsel appeared with the defendant in negotiated plea proceedings and the trial court specifically asked the defendant in his attorney’s presence if he waived indictment, to which the defendant replied in the affirmative. Having found the defendant knowingly waived indictment, it obviously follows that the trial court had jurisdiction -to accept the negotiated plea of guilty.

Counsel for the defendant next contends that the trial court failed to substantially comply with the provisions of Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402). The first contention is that, the trial court failed to explain the nature of the charge against the defendant. In support of this contention the defendant has, cited People v. Hudson (1972), 7 Ill.App.3d 800, 288 N.E.2d 533. While some confusion may have existed relative to the differentiation between the provisions of Supreme Court Rule 402(a)(1) (the nature of the charge) and Supreme Court Rule 402(c) (determining factual basis for the plea), we do not find in the instant case that the defendant was not advised of the nature of the charge, nor do we find that the trial court failed to determine the factual basis for the plea. The State’s Attorney advised the court, in the presence of the defendant and his counsel, that the defendant was charged with the offense of a theft of a car from Whitney Buick, Inc., with a value in excess of $150. In People v. Bowers (1971), 47 Ill.2d 585, 586, 268 N.E.2d 13, 14, the assistant State’s Attorney stated the facts of the case, the public defender acquiesced in the recital of the anticipated testimony and the supreme court held, “there is a sufficient showing that there is a factual basis for the plea of guilty, and that petitioner understood the nature of the charge.” Likewise, in People v. Mims (1969), 42 Ill.2d 441, 444, 248 N.E.2d 92, 94, the Supreme Court stated:

“The recital of the anticipated testimony of the witnesses for the prosecution, in the presence of the defendant and his attorneys, without protest and indeed with acquiescence, demonstrates to our satisfaction that the defendant’s conduct falls within the charge to which he pleaded guilty.”

(Sée also People v. Witherspoon (1974), 17 Ill.App.3d 842, 308 N.E.2d 844.) In the most recent case of People v. Krantz (1974), 58 Ill.2d 187, 317 N.E.2d 559, the supreme court affirmed its ruling in Mims, quoting the above. We therefore find that in the instant case the defendant was adequately informed of the nature of the charge.

Insofar as the Supreme Court Rule 402(c) is concerned, People v. Hudson, supra, cited by the defendant states that “[a] factual basis [of the plea] may otherwise be demonstrated (1) by having the prosecuting attorney summarize the testimony he could present to show the defendant committed the crime.” (7 Ill.App.3d at 803, 288 N.E.2d at 536.) That is what happened in the instant case where, at the time of the negotiated plea statement, in the presence of defendant and his counsel, the prosecuting attorney stated that the defendant, in fact, committed the offense of theft in stealing the car of the value of more than $150 from Whitney Buick, Inc.

The next contention of the defendant is that the trial court erred in failing to admonish the defendant that by pleading guilty he waived his right to be confronted with the witnesses against him. This argument has been answered in People v. Mendoza (1971), 48 Ill.2d 371, 373, 270 N.E.2d 30, 32, where the supreme court said:

“It is argued, however, that since defendant was not similarly admonished, on the record, # * # including the privilege

against self-incrimination and the right to confront his accusers, the waiver of these rights was not voluntary and intelligent.” The court went on to hold the trial court’s admonition to the defendant was in substantial compfiance with Rule 402, notwithstanding the fact that the trial court did not advise the defendant of his right to be confronted with witnesses against him. See also People v. Williams (1973), 16 Ill.App.3d 199, 305 N.E.2d 544; People v. Anderson (1973), 10 Ill.App.3d 558, 294 N.E.2d 763.

Defendant also contends that the trial court did not mention the defendant’s right to plead not guilty or to persist in that plea if already made. Examination of the whole record does not indicate this to be correct. The court advised the defendant that he was innocent of the charge until proven guilty, that if he wished to have a trial it would be up to the state to prove him guilty beyond a reasonable doubt, and that he had a right to a jury trial if he wanted one, and that he didn’t have to testify against himself. To all of these statements by the court the defendant repfied that he understood. We therefore find that there was substantial compliance in advising the defendant of his right to plead not guilty. See Mendoza, supra, Anderson, supra, and Williams, supra.

In People v. Dudley (1974), 58 Ill.2d 57, 316 N.E.2d 773, unlike the case before us, the plea agreement was not stated in open court. The supreme court held, under Rule 402(b), that the plea agreement should, in fact, be stated in open court and that the trial judge should confirm the terms of the plea agreement. The court, however, went on to hold that failure to comply with these provisions of Rule 402(b) did not necessarily result in a reversal of a conviction. The court stated:

“There is no claim that the plea of the defendant, who was rep- . resented by counsel, was not voluntary. There is no other claim of harm or prejudice to the defendant.” (58 Ill.2d 57, 60.)

The court further stated, in quoting People v. Morehead (1970), 45 Ill.2d 326, 332, 259 N.E.2d 8, 11:

“‘It is not the policy of this court to reverse judgment of conviction merely because error was committed unless it appears that real justice has been denied * * (People v. Dudley (1974), 58 Ill.2d 57, 61, 316 N.E.2d 773.)

Likewise, in People v. Mendoza (1971), 48 Ill.2d 371, 374, 270 N.E.2d 30, 32, the court stated:

“In view of the absence of evidence in the record or by affidavit supporting defendant’s claim, that he did not understand the consequences of his plea, and the failure to explain such absence, we find the petition insufficient to require a hearing and its dismissal justified.”

While Mendoza was in fact a post-conviction petition, we find the same principle applicable as stated in Dudley. In the case before us the defendant does not state or allege that the waiver of the indictment or the failure of the trial court to admonish him in detail under Rule 402 did, in fact, result in any substantial injustice to him. It is obvious that the defendant, by a negotiated plea entered into voluntarily by him, resulted in the dismissal of one other felony charge against him and the dismissal of five misdemeanor charges. As in People v. Sisson (1973), 15 Ill.App.3d 808, 810, 304 N.E.2d 638, 639, we, too, find:

“The record leaves no doubt that defendant understood the effect of the waiver of indictment and no claim or prejudice is made here, or is otherwise suggested. People v. Evans, 45 Ill.2d 265, 259 N.E.2d 41.”

The supreme court in People v. Krantz, supra, has confirmed the ruling of this court with relation to substantial compliance with the provisions of Supreme Court Rule 402, viz:

“Rule 402 was designed to insure properly entered pleas of guilty, not to provide for merely an incantation or cermonial.” (58 Ill.2d 187, 194-195.)

-We find that the trial court substantially complied with the provisions of Supreme Comt Rule 402. We further find that the defendant knowingly and intelligently waived indictment. We therefore affirm.

Judgment affirmed.

T. MORAN, P. J., and SEIDENFELD, J., concur.


text:
    United States Fire Insurance Company, Plaintiff-Appellee, v. Lee Kendle et al., Defendants-Appellants—(General Casualty Company of Wisconsin et al., Intervening Petitioners-Appellees.)
    (No. 73-16;
    Second District
    November 1, 1974.

      Nettles, Mahoney & Mahoney and William Schirger, both of Freeport, for appellants.
    Bert P. Snow, of Freeport, and Gunner, Keller & Magdich and Luke R. Morin, both of Dixon, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This action for declaratory judgment was brought by the United States Fire Insurance Company (hereinafter referred to as U.S.F.I.) as plaintiff, and by General Casualty Company of Wisconsin (hereinafter referred to as General Casualty) and United States Fidelity and Guaranty Company (hereinafter referred to as U.S.F. & G.) as intervening petitioners, in the circuit court of Stephenson County under the provisions of section 57.1 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 57.1). The insurance companies sought to determine whether any or all insurance policies issued by these companies provided insurance coverage for the defendant, Lee Kendle, in connection with claims for personal injuries made against him by the defendant, Ann Godber. After a trial on the merits the trial court, sitting without a jury and relying upon the Illinois Supreme Court Decision in Hays v. Country Mutual Insurance Co. (1963), 28 Ill.2d 601, 192 N.E.2d 855, found that none of the insurance policies provided coverage for Lee Kendle. The defendants appeal from this decision and the order of the court denying the post-trial motions to set aside the declaratory judgment.

Subsequent to the trial court’s decision in this case and subsequent to the filing of the briefs on appeal, the Illinois Supreme Court issued its opinion in Maryland Casualty Co. v. Iowa National Mutual Insurance Co. (1973), 54 Ill.2d 333, 297 N.E.2d 163, which re-examined the Hays decision. Thus, the question before us now is whether, under the facts of this case, the Illinois Supreme Court decision in Maryland Casualty requires us to reverse the trial court’s decision.

On November 4, 1966, 15-year-old Lee Kendle, an unlicensed driver, drove a 1962 Chevy II Nova convertible into a utility pole, severely injuring a passenger, defendant Ann Godber. Fortunately for Ann, the car came to rest in the driveway of a hospital and she was thus able to survive the accident.

The car was owned by one William C. Abbott, who was enroute to Kentucky with his wife in his family’s other automobile at the time of the accident. Before William C. Abbott went on his trip he left the keys to the automobile in the possession of his 16-year-old son, Ronald. Ronald, who along with his mother was a primary driver of the car, had his father’s permission to drive the automobile. His father, however, expressly prohibited Ronald from allowing anyone else to drive the car.

While his parents were away on their trip, Ronald had a party at his parent’s house. His girl friend, Ann Godber, whom he later married, and his friend, Lee Kendle, attended the party. During the course of the party Ann had a quarrel with Ronald and wanted to go home. Unfortunately, Ronald was too drunk to drive her home. Lee Kendle, being a good friend, offered to take Ann home. Ronald was a little hesitant about this arrangement but somehow Lee obtained the keys from the inebriated Ronald. On his way home, Lee, who also was under the influence of intoxicating beverages, ran into the utility pole while attempting to squeal his tires as he accelerated from a stop sign.

Lee Kendle had no insurance coverage of his own. However, U.S.F.I. issued to William C. Abbott, as named insured, a policy of liability insurance which covered the 1962 Chevy II automobile. The policy contained the following omnibus clause:

“Persons Insured: Under the Liability and Medical Expense Coverages the following are insured:
(a) with respect to an owned automobile,
# 6 #
(2) any other person using such automobile, with the permission of the named insured, providing his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission * **

The policy specifically excluded Ronald Abbott. It contained the following clause:

“It is agreed that the insurance afforded by this policy shall not apply with respect to any claim arising from accidents which occur while any automobile is being operated by * * * Ronald N. Abbott.”

There was also in force a policy of liability insurance issued by General Casualty to Ray Kendle, the father of the defendant Lee Kendle, which contained the following provision:

“Persons Insured: Under the liability and medical expense coverage, the following are insureds:
# 4 «
(b) with respect to a non-owned automobile,
(1) the named insured,
(2) any relative, but only with respect to a private passenger automobile or trailer, provided his actual operation or (if he is not operating) the other actual use thereof is with the permission, or reasonably believed to be with the permission, of the owner and is within the scope of such permission * *

Finally, U.S.F. & G. issued a policy of liability insurance to Ronald Abbott as the only insured and scheduled no vehicles. The policy contained a “non owner policy” endorsement which provided in part:

“1. With respect to the insurance for Bodily Injury Liability 6 6 # the unqualified word Insured’ includes (a) such Named Insured and spouse, and (b) any other person or organization legally responsible for tbe use by such Named Insured or spouse of an automobile not owned or hired by such other person or organization. (2) This insurance does not apply:
(a) to any automobile owned by the Named Insured or a member of the same household other than a private chauffeur or domestic servant of the Named Insured or spouse * *

With respect to the insurance policies issued by U.S.F.I. and General Casualty, under the above-quoted clauses the companies would be obligated to provide insurance coverage to Lee Kendle only if he had permission to drive the Chevy II automobile from the insured owner, William Abbott, or from a permitted user of the automobile who has been delegated such power to grant permission by the owner. See Hays v. Country Mutual Insurance Co. (1963), 28 Ill.2d 601, 608, 192 N.E.2d 855, 859.

As Lee Kendle was not given direct permission to use the car by the owner, William Abbott, the central questions in the trial court were whether or not William Abbott had delegated his power to grant permission to his permitted user of his car, his son Ronald, and whether Ronald had then granted permission to Lee Kendle to use the automobile. Under the Hays decision the mere granting of permission by the insured owner to one user does not inherently carry with it a delegation of the power to grant permission to a third person to use the automobile. Only where there has been an express or implied delegation of such power may the original user grant permission to others to use the automobile. In resolving this case, the trial court assumed, without deciding, that Lee Kendle had permission from Ronald to drive the car. The trial court, however, found that William Abbott had neither expressly nor impliedly delegated power to grant permission to his son Ronald. Thus, applying the Hays doctrine, the court concluded that U.S.F.I. and General Casualty did not provide insurance coverage to Lee Kendle.

. Under Maryland Casualty, however, the granting of permission by the insured owner to another to use the car also conveys to that user the power to grant permission to others to use the car, even in the face of an express prohibition by the insured owner not to do so. The supreme court adopted this more liberal rule by applying “the initial permission rule” to situations where the original permittee had deviated from the insured owners authorization by allowing another person to use the car. Under the initial permission rule, if the insured owner has initially given permission to another to use the insured vehicle or automobile, a deviation from the authorized use does not serve to terminate the permission. Thus, the court abolished any distinction, which existed since Hays, between- a case where a first permittee exceeds the scope of permission in terms of time, place or purpose and a case where such initial permittee exceeds the scope of permission in terms of use of the automobile by another. As stated by the Illinois Supreme Court, “ ‘* * s once the initial permission has been given by the named insured, coverage is fixed, barring theft or the like.’ ” Maryland Casualty Co. v. Iowa National Mutual Insurance Co. (1973), 54 Ill.2d 333, 342, 297 N.E.2d 163, 168.

Therefore, as Ronald had permission to use the car from his father, under the rule of Maryland Casualty this case would appear to turn on whether or not the initial permittee, Ronald, gave permission to Lee Kendle to use the car, a question not decided by the trial court. Nevertheless, U.S.F.I. and General Casualty urge that, under Maryland Casualty, the facts in this case mandate this court to find no insurance coverage upon Lee Kendle even if he had Ronald’s permission to use the car. First, the companies contend that because Lee Kendle was an underage, unlicensed driver at the time of the accident, Ronald’s granting of permission to Lee was an ineffective act. They argue that the granting of permission and the driving of a car by an underaged, unlicensed driver are illegal and criminal acts. Thus, the companies argue that such illegal acts, or any illegal act, come within the supreme court’s exception to the general rule of Maryland Casualty, that acts constituting “theft and the like” reheve the companies of the obligation of providing coverage to a successive user (“‘Once the initial permission has been given by the named insured, coverage is fixed, barring theft or the like.’ ”) We disagree.

Acts which constitute “theft and the like” do not embrace all illegal or criminal activities. If any illegal or criminal act committed by a successive permittee would cut off the insurance companies’ duty to cover him, the companies would almost never be obligated to provide coverage in these situations because the negligent operation of an automobile resulting in injury almost always involves some violation of the Vehicle Code. (Cf. Odden v. Union Indemnity Co. (1930), 156 Wash. 10, 286 P. 59, 61.) Rather, “theft and the like” include only those situations where the successive user does not have permission from the insured owner or the initial permitted user.

Furthermore; the policies themselves do not prohibit the granting of permission to an unlicensed, unprivileged driver. Neither policy expressly excludes a permitted underaged or unlicensed person (in the case of U.S.F.I.) or a permitted underage or unlicensed relative (in the case of General Casualty) from insurance coverage. Therefore, we find that the insurance policies provide coverage to an underage, unlicensed person or relative who has permission to use the automobile.

Next, U.S.F.I. contends that its policy does not provide coverage for Lee Kendle because Ronald could not grant permission to use the car under the terms of the insurance policy. U.S.F.I. argues that Ronald did not have such power to grant permission because Ronald himself was expressly excluded from insurance coverage. Again, we disagree.

Although the policy expressly excludes Ronald from coverage, the policy does not expressly prohibit Ronald’s father from delegating his power of permission to his son. “Ambiguous provisions or equivocal expressions whereby an insurer seeks to limit its liability will be construed most strongly against the insurer and liberally in favor of the insured.” (Bell v. Continental Assurance Co. (1970), 123 Ill.App.2d 274, 278, 260 N.E.2d 114, 116.) Accordingly, we find that express prohibition of insurance coverage on Ronald is not an implied prohibition on Ronald’s granting permission to others to use the car. Therefore, while Ronald may not be covered under this policy even though he had his father’s permission to drive the car, other users who have gotten the insured father’s permission through Ronald will be covered.

Thus, we find that under the doctrine of Maryland Casualty the policies of U.S.F.I. and General Casualty provide insurance coverage for Lee Kendle if he had Ronald Abbott’s permission to use the car. Because the evidence on this question is conflicting and the trial court did not resolve this question, we remand the case for determination of this question of fact. If the trial court finds such permission had been granted, we direct the court to enter judgment in favor of the defendants and against the plaintiffs U.S.F.I. and General Casualty. On the other hand, if the trial court finds that no such permission had been granted, we direct the court to enter a judgment in favor of the plaintiffs U.S.F.I. and General Casualty and against the defendants.

The defendants, however, urge that with respect to U.S.F.I., we reverse outright. They contend that U.S.F.I. waived its policy defenses because it failed to promptly notify defendant of its intention to disclaim liability and because one of its attorneys represented Lee Kendle in the personal injury suit brought against Kendle by Ann Godber.

It is well settled that if the insurer wishes to disclaim liability under its policy, it must notify the insured without delay. (Krutsinger v. Illinois Casualty Co. (1957), 10 Ill.2d 518, 141 N.E.2d 16.) However, such duty to notify cannot arise until the insurance company is called upon to defend or pay any claim. Until that time the question of whether a claim will be made is speculative and, thus, there is no reason to disclaim liability. Cf. Gibraltar Insurance Co. v. Varkalis (1970), 46 Ill.2d 481, 263 N.E.2d 823.

In the case before us U.S.F.I. did not disclaim liability until it filed its declaratory júdgment suit, a year and- a half after the accident. The record, however, does not disclose when U.S.F.I. was first called upon to defend or pay the claim. Thus, we cannot say that U.S.F.I. waived its policy defenses because it failed to promptly notify the defendant of its intention to disclaim liability.

It is also well settled that assumption of the insured’s defense by the insurer’s attorney constitutes a waiver of all questions of policy coverage. (Gibraltar Insurance Co. v. Varkalis, supra.) We find, however, that U.S.F.I. did not waive its policy defenses when its attorney in the declaratory judgment suit represented the defendant in the personal injury suit. The attorney merely filed a motion for a continuance for defendant’s ailing counsel. The attorney did not participate in any action going to the merits of the personal injury suit.. Therefore, such action did not amount to insurer’s taking over Kendle’s defense. Compare Gibraltar Insurance Co. v. Varkalis, supra.

With respect to the insurance policy issued by U.S.F. & G. covering Ronald Abbott, the defendants contend that the facts in this case require us to reform this policy in such a way as to provide coverage for Lee Kendle. Defendants argue that because Ronald was not covered under his father’s policy, the contemplated purpose of the U.S.F. & G. policy was to provide insurance coverage for Ronald whenever he drives. Defendants note that as the policy is presently drafted Ronald Abbott is not insured under the policy whenever he drives his father’s Chevy. II, the car he primarily drives, because of the household exclusion clause quoted above. Thus, the defendant contends the parties made a mutual mistake requiring a reformation of the insurance policy. We find, however, that U.S.F. & G. would not be obligated to cover Lee Kendle even if the policy were reformed. The reformation needed to cure the mutual mistake of the parties would only encompass the striking of the household exclusion clause from the contract. By dropping the clause Ronald would then be covered whenever he drives the Chevy II, a household vehicle.

Thus, it would not be necessary to add an omnibus clause. Consequently,. Ronald would still be the only person insured and Ronald’s permittees would not be covered under this policy either as it is presently drafted or under defendants’ proposed reformation.

The plaintiffs also contend that Lee Kendle’s appeal should be dismissed because his post-trial motion was not filed within' 30 days of the entry of the declaratory judgment as required under Supreme Court Rulé 303 (Ill. Rev. Stat. 1971, ch. 110A, par. 303). Therefore, they argue,;that the 30-day time period for filing the notice of appeal was not stayed and, thus, Kendle’s subsequent notice of appeal was not timely filed. We disagree. The defendant, Ann Godber, filed a post-trial motion within 30 days of the entry of the declaratory judgment. We find that the filing of this motion stayed the running of the time period for filing the notice of appeal for all parties.

In a multiple-party action, a notice of appeal from a final judgment adjudicating the claims of less than all the parties need not be filed until 30 days after the. entry of a final judgment which adjudicates all claims of all parties where the trial court has not made an express written finding that there is no just reason for denying appeal. (See Defenbaugh v. Streator Canning Co. (1967), 80 Ill.App.2d 423, 224 N.E.2d 487; Ill. Rev. Stat. 1971, ch. 110A, par. 304.) When a post-trial motion has been timely filed by one party, the judgment as to that party does not become final until an order disposing of the motion has been entered. Accordingly, in a multiple-party action the filing of a timely post-trial motion by one party after a judgment adjudicating all the claims of all the parties stays the running of the 30-day time period for the filing of the notice of appeal for all parties involved until after the entry of an order disposing of the timely post-trial motion. As Lee Kendle filed his notice of appeal .within 30 days of the entry of the order disposing of Ann Godber’s timely post-trial motion his notice of appeal from the declaratory judgment was timely filed. Therefore, we will not dismiss his appeal.

For the foregoing reasons the judgment of the trial court with respect to U.S.F.I. and General Casualty is reversed and remanded and the trial court’s judgment with respect to United States Fidelity and Guaranty Company is affirmed.

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

T. MORAN, P. J., and SEIDENFELD, J., concur.


author: Mr. JUSTICE CLARK.

text:
    State Bank of Arthur, Plaintiff-Appellee, v. H. E. Kendall et al., Defendants-Appellants.
    (No. 12407;
    Fourth District
    November 6, 1974.
   Opinion by

Mr. JUSTICE CLARK.

Thomas J. Logue, of Glenn & Logue, of Mattoon, for appellants.

Willis P. Ryan and Dale A. Cini, both of Ryan & Cini, Ltd., of Mat-toon, for appellee.


author: Mr. JUSTICE TRAPP

text:
    First National Bank of Mattoon, as Trustee, Plaintiff-Appellant, v. Roland D. Spaniol et al., Defendants-Appellees.
    (No. 12159;
    Fourth District
    October 31, 1974.

      Muller & Komada,' of Charleston (S. John Muller, of counsel), for appellant.
    Richard F. Record, Jr. and Stephen L. Com, of Craig & Craig, of Mattoon (Jack E. Horsley, of counsel), for appellees.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff appeals from a judgment for the defendant entered upon its complaint seeking declaration of an easement upon defendants land arid for the injunction restraining defendant from interfering with plaintiffs ingress and egress. Defendant and, plaintiff own adjacent homes on a street in Charleston, Illinois, and this d'spute arose from defendant’s refusal to allow the plaintiff to utilize a driveway located between the two homes but situated entirely on defendant’s property.

, Plaintiff, argues on appeal, that it is entitled to a presumption, of an easement by grant, that the record shows its predecessors had satisfied •the requirements for an easement through adverse1 possession,, and that it would be fraudulent for defendants to deny it access in the driveway.

As to plaintiffs assertion that it is entitled to a presumption of an easement by . grant, we observe that the language of Petersen v. Corrubia, 21 Ill.2d 525, 531, 173 N.E.2d 499, 502, is controlling:

“There is, however, a rebuttable presumption of a grant or ad- • verse right present where a way has been used openly, uninterruptedly, continuously and exclusively for more than 20 years and the origin of such way is not shown. In the absence of evidence tending to show the use of the way to have arisen from a license or other special indulgence which is either revocable or terminable, the conclusion is that it has grown out of a grant by the owner of the land, and has been exercised under a title so derived. The facts to admit .of such presumption, however, are not presumed but must be established by the greater weight of the evidence. Rush v. Collins, 366 Ill. 307; Bontz v. Stear, 285 Ill. 599.”

Unlike Petersen, the record here provides evidence as to the origin, of a permissive license allowing the prior occupants of plaintiffs house to use the driveway in question. Petitioner’s own witness testified that the home, in which the defendants' now reside was erected by his parents in 1914 or 1915, and that his parents had entered into an,informal agreement with the prior, occupants', of plaintiffs home,. allowing them to utilize the driveway in question,. but riot to block or obstruct it. The witness added that he and his parents occupied the defendant’s premises up until approximately 1935, and that the predecessors of plaintiff were allowed by his parents to utilize the driveway permissively up until that time. Since the origin of this aEeged “easement” was estabhshed at trial by plaintiff’s own witness, the subsequent continued use of the driveway created no presumption of an easement by grant.

We also find nothing in the record showing that the use of the driveway by plaintiff’s predecessors in title was adverse or continuous under claim of right for the period of limitations necessary to sustain a claim by plaintiff to an easement by adverse possession. There is evidence that plaintiff’s predecessor, Mrs. Harwood, had no automobile and did not use the driveway, and that as to persons residing in her home and the guests of such persons, Mrs. Harwood would not permit the parking of automobiles in the drive. It appears that the only uses permitted were short intervals to unload personal belongings. Defendant, Roland Spaniol, testified that he had blocked the drive with a trailer for a year prior to the .time plaintiff purchased the property.

We note, moreover, that the complaint and the evidence show that the asserted use by plaintiff’s predecessors was upon vacant and unoccupied land and thus comes within the rule that the presumption of a grant from use does not arise. Rita Sales Corp. v. Bartlett, 129 Ill.App.2d 45, 263 N.E.2d 356.

Finally, it is urged by petitioner that it would work a fraud upon it to allow the defendant to continue denying access rights in the driveway. In support of this point, plaintiff relies on the case of Petersen v. Corrubia, 21 Ill.2d 525, 531, 173 N.E.2d 499, 502, insofar as it holds that one may not properly revoke a license which has not ripened into an easement if such revocation would operate as a fraud. Unlike Petersen, there is nothing here to suggest detrimental reliance on the part of plaintiff and this case is not analagous to Mercer v. Sturm, 10 Ill.App.3d 65, 293 N.E.2d 457, where the defendant had knowingly aEowed the plaintiff to make capital improvements on a driveway prior to asserting an interest. The beneficiary of the trust prosecuting this appeal testified that he acquired this property in 1971, and that prior to his purchase he had no conversation or dealings with the defendants. He further admitted that at the time of his purchase he had no personal knowledge of the fact that the previous owners had used the driveway on defendant’s property. Accordingly, we find plaintiffs issue as to fraud to be without merit.

Since there are no facts in the record upon which the court could have justifiably found that the plaintiff acquired an easement, either by grant or prescription, it is not necessary to discuss the admissibility of certain evidence introduced by the defendant.

The judgment of the trial court is affirmed.

Affirmed.

SMITH, P. J., and CRAVEN, J., concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Badgley, Defendant-Appellant.
    (No. 12682;
    Fourth District
    November 21, 1974.
    Richard J. Wilson and Thomas Nelson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Robert J. Bier, State’s Attorney, of Quincy (Michael Prall, of Statewide Appellate Assistance Service, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Robert Badgley, appeals from a judgment entered pursuant to a guilty plea for the offense of possession of a controlled substance and from a sentence imposed of 1 to 3. years. The sole issue raised on this appeal is whether the trial court erred in accepting defendant’s guilty plea without fully explaining to him the minimum sentence prescribed by law in violation of Supreme Court Rule 402(a)(2). Ill. Rev. Stat. 1973, ch. 110A, par. 402(a)(2).

Prior to accepting defendant’s guilty plea the trial judge stated to defendant:

“The Court: * * * You’re charged with a crime that is classified as a Class Three felony. A Class Three felony is a crime that is punishable by imprisonment in the penitentiary. Imprisonment in the penitentiary is for an indeterminate term. By indeterminate is meant that no definite period is fixed but rather the Court fixes a minimum amount of confinement, the least amount of time you could spend, and a maximum period of confinement, the greatest or most amount of time you could spend. The law provides that the indeterminate term for the crime with which you’re charged, or the crime of a Class Three felony, is one to ten years. This means that the minimum fixed by the Court could be no less than one year and it could be as many as ten years. This means that the maximum time fixed by the Court could be no less than one year and one day but could be for as long as ten years. Do you understand that?
Mr. Badgley: Yes sir.
# » *
The Court: In addition, the Court could in its discretion fine you an amount up to Ten Thousand Dollars. Do you understand that?
Mr. Badgley: Yes, sir.
The Court: In addition * * * there is a specified period of * 6 * parole. In the event that you’re sentenced to the peni-
tentiary, on your release from the penitentiary, you would be under an order of parole or the rules of parole. That parole period is fixed by statute as three years. Do you understand that?
Mr. Badgley: Yes, sir.
The Court: Do you understand * * * you would be subject to that penalties?
Mr. Badgley: Yes, sir, I do.”

Defendant contends that the court erred in failing to explain to defendant the complete minimum sentence prescribed by law under Rule 402(a)(2), i.e., probation, conditional discharge, and periodic imprisonment. We do not agree and find our decisions in People v. Butchek, 22 Ill.App.3d 391, 317 N.E.2d 148, and People v. Wills, 23 Ill.App.3d 25, 319 N.E.2d 269, to be dispositive. In Butchek we held that a trial judge need not inform a defendant of the possibility of periodic imprisonment to fully comply with Rule 402(a)(2). In Wills we held that under the rationale of Butchek a defendant likewise need not be informed of the possibility of probation and conditional discharge. (Also see People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559.) Our reading of the record here indicates that the trial judge fully complied with Rule 402(a) (2)-.in explaining to defendant the minimum sentence prescribed by law.

Accordingly, for the reasons stated above the judgment of the circuit court of Adams County is hereby affirmed.

Judgment affirmed.

TRAPP, P. J., and CRAVEN, J., concur.


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Eugene Reed, Defendant-Appellant.
    (No. 12661;
    Fourth District
    November 21, 1974.
    Moody, Venturelli & Diamond, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert I. Wrigley, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

■ After a jury trial, defendant was convicted of bigamy and was sentenced to probation for a period of one year. The sole issue raised on appeal concerns the trial court’s refusal to conduct a bench trial when defendant expressly waived a jury trial and the State objected to this waiver,', : - '

In People v. Spegal, 5 Ill.2d 211, 125 N.E.2d 468, the supreme póüft held that amendments to the Criminal Code in 1941, providing that when a defendant pleads guilty or waives a jury the cause shall be heard and determined by the court without a jury, gave a defendant an absolute right to be tried by the court, even over the objection of the People. (Ill. Rev. Stat. 1953, ch. 38, j[ 736.) The successors to the 1941 amendment to the Criminal Code, considered to be controlling in Spegal, are found as sections 103 — 6 and 115 — 1 of the present Code of Criminal Procedure:

“§ 103-6. Waiver of Jury Trial.) Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court.
# * *
§ 115-1. Method of Trial.) All prosecutions except on a plea of guilty shall be tried by the court and a jury or the court when a jury is waived by the defendant in open court.” Ill. Rev. Stat. 1973, ch. 38, 103-6,115-1. .

The prosecution argues the United States Supreme Court decision in Singer v. United States, 380 U.S. 24, 13 L.Ed.2d 630, 85 S.Ct. 783, indicates that although the United States Constitution grants a defendant a right to a jury trial, it does not give a defendant an unqualified right not to have a jury trial. The State further argues that Illinois law concerning the right to a jury trial should be interpreted in the same way.

We do not believe the Singer decision is dispositive. The Singer court not only interpreted the United States constitutional right to a jury trial, but also dealt with the constitutional validity of Rule 23(a) of the Federal Rules of Criminal Procedure, which specifically required a jury trial waiver to be with the approvál of the court and the consent of the government. In delivering the opinion of the court in Singer, Mr. Chief Justice Warren noted that several states had adopted a variety of procedures relating to jury trial waivers in State criminal cases. The Spegal case was specifically noted. Singer dealt solely with two points: first, the United States Constitution neither confers nor recognizes the right of criminal defendants to have their cases tried before a judge alone; second, the particular rule of criminal procedure for federal courts concerning jury trial waivers established a reasonable procedure for those waivers. The Singer decision has no bearing upon this matter of state criminal procedure. That Spegal has continued validity long after the decision in Singer was. handed down is demonstrated by the comment in People v. Brown, 43 Ill.2d 79, 82, 250 N.E.2d 647, by Mr. Justice House writing for the court, “that it would be reversible error for the trial court to deny a competent defendant’s jury waiver,” citing Spegal as authority.

Accordingly, it was reversible error here for the trial court not to accept defendant’s waiver of a jury trial even though the State objected to that waiver. The judgment of the circuit court of Macon County is reversed and the cause remanded for a new trial.

Reversed and remanded.

SMITH, P. J., and TRAPP, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Scott, Defendant-Appellant.
    (No. 12601;
    Fourth District
    November 21, 1974.
    Richard J. Wilson and Daniel D. Yuhas, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Richard J. Doyle, State’s Attorney, of Danville (Kai A. Wallis, of Circuit Attorneys Project, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Richard Scott, appeals from his conviction for the offense of indecent liberties with a child and from a sentence imposed of 10 to 30 years’ imprisonment. The only issue raised before this court is whether the trial court abused its discretion in imposing the minimum sentence.

On August 15, 1973, defendant was indicted for one count of aggravated incest and two counts of indecent liberties with a child. On October 19,1973, defendant entered a plea of guilty to all three counts. The factual basis for the plea presented by the State indicates that defendant entered the bedroom of Debra Scott, his 12-year-old daughter, placed her on the bed, removed her underpants, fondled her vagina, and inserted his penis into her vagina. Defendant admitted the offenses as charged. The trial court then entered judgments on all three counts. On December 13, 1973, a sentencing hearing was held. The 44-year-old defendant testified that he had been employed for 9 years. He further stated that he had learned his lesson, that he would not attempt to commit similar acts in the future, and that he would seek professional advice should it be so ordered by the court. Defendant admitted that in 1957 he was arrested (biit not convicted) for fondling a little girl and had to seek psychiatric help. He further admitted that for the last 4 years he had on numerous instances engaged in similar acts with his 12-year-old daughter. The State then recommended a sentence of 20 to 60 years. The presentence report indicates that defendant had no prior criminal record, had been honorably discharged from the Navy, had been active in his church, had completed high school, and had a successful prior employment record. The report also indicated that defendant had been married since 1954 and had 7 children, 6 of whom were placed in foster homes in 1973 for neglect. The trial court then sentenced defendant to 10 to 30 years on Count II of the indictment for the offense of indecent liberties.

It is contended that the trial court abused its discretion in imposing a 10-year minimum sentence. We do not agree. Under the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1 et seq.) indecent liberties with a child is a Class 1 felony with a 4-year minimum term “unless the court, having regard to the nature and circumstances of the offense and the history and character of tire defendant, sets a higher minimum term." (Par. 1005 — 8—1(c) (2).) The nature and circumstances of the present offenses are too heinous to warrant repeating. Obviously, the trial court considered these facts in imposing sentence. Furthermore, defendant admitted• at the sentencing hearing that he had engaged in similar acts with his 12-year-old daughter for a period of 4 years. Defendant also admitted fondling a little girl in 1957 and receiving psychiatric treatment for his problem. The professional treatment was clearly unsuccessful. We further note that the sentence imposed is within statutory limits.

The trial court that hears the evidence in aggravation and mitigation is generally in a better position to make a sound determination in regard to sentencing than is this court, and considerable caution should be exercised in disturbing a sentence upon appeal. (People, v. Caldwell, 39 Ill.2d 346, 236 N.E.2d 706; People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673.) We do not find that the trial court abused its discretion in the present case in imposing a 10-year minimum sentence, nor do we believe that penalty to be disproportionate to the seriousness of the offense.

Accordingly, for the reasons stated above the sentence imposed by the circuit court of Vermilion County is hereby affirmed.

Sentence affirmed.

SMITH, P. J., and TRAPP, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bryan Pelham et al., Defendants-Appellants.
    (No. 12544;
    Fourth District
    November 21, 1974.
    Richard J. Wilson and Thomas Nelson, both of State Appellate Defender’s Office, of Springfield, for appellants.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Robert J. Steigmann, Assistant State’s Attorney, and J. A. Schauer, Junior Law Student, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendants, Bryan Pelham and Thomas Foster, appeal from judgments entered pursuant to guilty pleas for the offense of battery and from sentences imposed of 6 months’ periodic imprisonment. Defendants raise two issues for resolution by this court: (1) Whether the trial court erred in accepting defendants’ guilty pleas without fully informing them of the minimum sentence prescribed by law, and (2) Whether the trial court erred in explaining to defendants the nature of the charge.

Prior to accepting the guilty pleas the trial judge stated to defendants:

“The Court: Do you gentlemen also understand that the offense of battery as classified under Illinois law is a Class “A” misdemeanor and that the Court upon a conviction can impose against you or either of you that might be convicted imprisonment in a place of incarceration other than the penitentiary for up to one year and for a fine not to exceed $1,000; do you understand that? Do you understand that, Mr. Pelham?
Mr. Pelham: Yes, sir. .....
The Court: And do you, Mr. Foster?
Mr. Foster: Yes, sir.”

It is contended that the trial court erred in accepting defendants’ pleas without fully explaining to them the minimum sentence prescribed by law, i.e., the possibility of periodic imprisonment, probation, and conditional discharge, as required by Supreme Court Rule 402(a)(2) (Ill. Rev. Stat. 1973, ch. 110A, par. 402(a)(2)). We do not agree and find our decisions in People v. Butchek, 22 Ill.App.3d 391, 317 N.E.2d 148, and People v. Wills, 23 Ill.App.3d 25, 319 N.E.2d 269, to be dispositive. In Butchek we held that a trial judge need not inform a defendant of the possibility of periodic imprisonment to fully comply with Rule 402(a) (2). In Wills we held that the rationale of Butchek was equally applicable to probation and conditional discharge, and that a trial judge need not inform a defendant of these sentencing alternatives to fully comply with Rule 402(a) (2). Also see People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559. In the instant case our reading of the record indicates that the trial judge fully complied with Rule 402(a)(2) in explaining to defendants the minimum sentence prescribed by law.

Prior to accepting defendants’ guilty pleas the trial judge also read to defendants the indictment charging.them with battery. The defendants then indicated that they understood the nature of the charge. A few minutes later the assistant State’s Attorney presented a factual basis for the plea. The defendants did not object to this presentation. It is contended that'because the trial judge did not specifically refer to or explain the relevant statutory provision prescribing the conduct in question, he did not adequately inform defendants of the nature of the charge as required by Supreme Court Rule 402(a)(1) (Ill. Rev. Stat. 1973, ch. 110A, par. 402(a)(1)). We do not agree. We find such a reference to be unnecessary in the context of the present case and hold that the trial judge adequately satisfied the requirements of Rule 402(a)(1). The trial judge here read to defendants the indictment, and defendants stated that they understood the nature of the charge. Furthermore, the State presented a factual basis for the plea, and defendants did not object to this presentation. See People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559.

Accordingly, for the reasons stated above the judgment of the circuit court of Champaign County is hereby affirmed.

Judgment affirmed.

SMITH, P. J., and CRAVEN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Ray James, Defendant-Appellant.
    (No. 12464;
    Fourth District
    November 21, 1974.

      John F. McNichols, J. Daniel Stewart, and John L. Swartz, all of State Appellate Defender’s Office, of Springfield, for appellant.
    Richard J. Doyle, State’s Attorney, of Danville (Frederick Underhill, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Thomas Ray James, appeals from his conviction pursuant to a guilty plea of the offense of burglary in violaton of section 19 — 1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 19 — 1) and from a sentence imposed of 2 to 6 years.

Defendant raises the following issues for resolution by this court:

(1) Whether defendant was properly admonished of the sentence prescribed by law because he was not informed that the term of imprisonment would be indeterminate.

(2) Whether defendant was properly admonished of the maximum sentence prescribed by law because he was not informed of the existence of a mandatory parole term.

(3) Whether defendant was properly admonished of the minimum sentence prescribed by law because he was not informed of the possibility of conditional discharge and periodic imprisonment.

Defendant was charged with the offense of burglary and on September 11, 1973, defendant appeared in court to enter a guilty plea to said charge. The court stated to defendant in regard to sentencing as follows:

“The Court: * * s The sentence under this is a Class 2 Felony which means you could be given a sentence of anything from one to twenty years, do you understand that?
Defendant James: Yes, sir.”

The court then explained to defendant the possibility of probation:

“The Court: Another thing the Court must explain to you and I assume there will be a motion for probation, that is strictly up to the Court — if probation is recommended that doesn’t mean the Court would have to give you probation — if it was recommended that probation be denied, it doesn’t mean the Court would have to deny it, do you understand that?
Defendant James: Yes.”

The trial judge subsequently entered judgment on the plea. On October 4, 1973, a sentencing hearing was held, defendant’s petition for probation was denied, and defendant was sentenced to 2 to 6 years in the penitentiary. Defendant then filed his notice of appeal.

Defendant first contends that he was not properly admonished of the sentence prescribed by law under Supreme Court Rule 402(a)(2) because he was not informed by the trial judge prior to acceptance of his guilty plea that the term of imprisonment would be indeterminate (as required by the Unified Code of Corrections, Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1). We find that argument, however, to be lacking in merit.

Defendant cites only People v. Medley, 122 Ill.App.2d 279, 258 N.E.2d 392 ( 4th Dist.) in support of his contention. In Medley this court held that the use of the phrase “an indeterminate term of years” to be an insufficient admonishment of the applicable maximum sentence. The Medley case is simply one of a long line of cases holding the term “indeterminate” insufficient to set the outer limits of a sentence or to adequately apprise defendant of the maximum possible sentence. (See People v. Terry, 44 Ill.2d 38, 253 N.E.2d 383; People v. Zboralski, 15 Ill.App.3d 343, 304 N.E.2d 484; People v. Fairchild, 133 Ill.App.2d 875, 272 N.E.2d 445; People v. Vecchio, 131 Ill.App.2d 1080, 267 N.E.2d 27; People v. McCracken, 3 Ill.App.3d 759, 279 N.E.2d 181; People v. Short, 4 Ill.App.3d 849, 281 N.E.2d 785; People v. Buck, 7 Ill.App.3d 758, 288 N.E.2d 548.) These cases are, however, not applicable to our present discussion because the word “indeterminate” was not used in the admonition here.

In People v. Williams, 16 Ill.App.3d 199, 200, 305 N.E.2d 544, the court upheld the admonition “ ‘The punishment could range anywhere from four years to infinity, which to me means the end of the world’” as sufficient because the minimum and maximum were given in terms ordinary people could readily understand. Likewise, the defendant here was admonished in regard to sentencing in terms that an ordinary person could readily understand, and defendant clearly was informed of the limits of his exposure to penitentiary punishment. Hence, the admonition here is sufficient even without a reference to the “indeterminacy” of the possible term, and such an admonition constitutes substantial compfiance with Supreme Court Rule 402(a)(2).

Defendant next contends that he was not informed of the maximum sentence prescribed by law under Supreme Court Rule 402(a)(2) in that he was not informed prior to acceptance of his guilty plea of the existence of a mandatory parole term written into every sentence under section 5 — 8—1(e)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(e)(2)). We find our decision in People v. Wills, 23 Ill.App.3d 25, 319 N.E.2d 269 to be dispositive of this issue, and hold that failure to admonish as to the mandatory parole term was not error. Also see People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559.

Defendant further contends that he was not informed by the trial judge prior to the acceptance of his guilty plea of the minimum sentence prescribed by law under Supreme Court Rule 402(a)(2) because he was not informed of the possibility of conditional discharge and periodic imprisonment. We find our decisions in People v. Butchek, 22 Ill.App.3d 391, 317 N.E.2d 148, and People v. Wills, 23 Ill.App.3d 25, 319 N.E.2d 269, to be dispositive of this issue. In Butchek we held that a trial judge need not inform a defendant of the possibility of periodic imprisonment to fully comply with Supreme Court Rule 402(a)(2). In Wills we held that the rationale of Butchek was equally applicable to conditional discharge, and a trial judge, likewise, need not inform a defendant of this sentencing alternative to fuUy comply with Supreme Court Rule 402(a) (2). See also People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559.

Accordingly, for the reasons stated above the judgment of the circuit court of Vermilion county is hereby affirmed.

Judgment affirmed.

SMITH, P. J., and TRAPP, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clarence Huckaba, Defendant-Appellant.
    (No. 12633;
    Fourth District
    November 6, 1974.

      John F. McNichols and Daniel D. Yuhas, both of State Appellate Defender’s Office, of Springfield, and Marc Towler, Senior Law Student, for appellant.
    Bobby F. Sanders, State’s Attorney, of Charleston (Kestutis P. Kemezys, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals the conviction entered upon his plea of guilty to an information charging burglary. (Ill. Rev. Stat. 1973, ch. 38, par. 19— 1(a).) Sentence of 2 to 6 years was imposed.

On appeal defendant urges that the information upon which the plea was entered failed to charge the offense of burglary, and was void for such reason.

The information alleged that defendants:

“Committed the offense of burglary, in that they did without authority knowingly enter Warehouse Sales, Inc., 317 North 17th Street, Mattoon, Coles County, Illinois, with the intent to commit therein a theft. * * *”

Defendant asserts that the information fails to aUege that defendant entered a “building” or other structure as provided in the statute. Examination of many cases from this State, fails to disclose any instance in which there was a failure to allege that there was entry of a “building” accompanied by the statutory state of mind.

In People v. Peck, 29 Ill.2d 480, 194 N.E.2d 245, it was stated that the burglary statute primarily proscribed unlawful entry of the building of another. In People v. Powell, 9 Ill.App.3d 54, 55-56, 291 N.E.2d 669, it was stated:

“Burglary was originally a crime against habitation, but it has been broadened, as in our statute, to include the unlawful entering of any building.”

The Comments of the Committee drafting the Criminal Code of 1961, includes the statement:

“Therefore, section 19 — 1 is merely a codification of the existing law in Illinois, combining the unlawful entry of various types of spaces * * (S.H.A., ch. 38, §19 — 1, Committee Comments (1970).)

The result of such codification makes the entry of a building or other structure identified in the statute an element of the offense.

The gist of burglary is the entering of a building with a statutory intent. (People v. Woodward, 7 Ill.App.3d 607, 288 N.E.2d 72.) In People v. Blair, 1 Ill.App.3d 6, 272 N.E.2d 404, a building is defined as a permanent structure for the shelter and protection of property. A building has been defined as any stationary structure affixed to land. Sanchez v. People (1960), 142 Colo. 58, 349 P.2d 561, 78 A.L.R.2d 775.

The authorities cited by respective counsel have been concerned with the sufficiency of the allegation of ownership or possession of the building rather than to the necessity of alleging entry of a building.

The identification of “Warehouse Sales, Inc.”, alleges a business entity showing ownership or possession, but fails to provide statutory allegation that there was an entry of a building within the context of the statute.

An indictment which fails to allege an essential element of the offense is void. Jurisdictional defects are not waived by a plea of guilty. People v. Wolf, 7 Ill.App.3d 739, 288 N.E.2d 688, and People v. Witcher, 121 Ill.App.2d 57, 257 N.E.2d 149.

The judgment is reversed.

Reversed.

SMITH, P. J., and CRAVEN, J., concur.

       (a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle.as defined in The Illinois Vehicle Code, * * * with intent to commit therein a felony * * *.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clarence E. Buckner, Defendant-Appellant.
    (No. 12625;
    Fourth District
    November 21, 1974.

      Richard J. Wilson and Bruce Stratton, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Robert J. Bier, State’s Attorney, of Quincy (Kai A. Wallis, of Circuit Attorneys Project, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Clarence E. Buckner, appeals from his conviction for the offense of burglary and from a sentence imposed of 2 to 6 years’ imprisonment. The sole issue before this court is whether the minimum sentence is excessive.

On January 10, 1974, defendant was found guilty following a bench trial. The evidence adduced at the trial established that defendant was unarmed and entered an unoccupied tavern in the early morning hours. Defendant was apprehended inside the tavern. A sentencing hearing was held on February 20, 1974. The presentence report indicated that this 23-year-old defendant had been convicted of burglary and theft in Missouri in 1971. The State recommended a 4-year minimum based on defendant’s prior burglary conviction. The trial court then imposed a 2- to 6-year term of imprisonment.

Defendant contends that the trial court abused its discretion in imposing a 2-year minimum. We do not agree. Under the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001-1-1 et seq.) burglary is a Class 2 felony with a 1-year minimum "unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term.” (Par. 1005— 8 — 1(c)(3).) The record here indicates that defendant had been convicted of burglary in 1971. Furthermore, the trial court heard the evidence adduced at the trial and at the hearing on aggravation and mitigation and is certainly in a better position to make a sound determination in regard to sentencing than is this court. (See People v. Caldwell, 39 Ill.2d 346, 236 N.E.2d 706; People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673.) We hold that the trial court clearly did not abuse its discretion in imposing the 2-year minimum sentence.

Accordingly, for the reasons stated above the sentence imposed by the circuit court of Adams County is hereby affirmed:

Judgment affirmed.

TRAPP, P. J, and CRAVEN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clarence Foster, Defendant-Appellant.
    (No. 12617;
    Fourth District
    November 21, 1974.
    John F. McNichols and John L. Swartz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Bobby F. Sanders, State’s Attorney, of Charleston, for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Clarence Foster, appeals from his conviction for the offense of burglary in violation of section 19 — 1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 19 — 1) and from a sentence imposed of 3 to 9 years. The only issue raised on this appeal is whether the court erred in giving a misleading instruction to the jury on the law regarding the defense of intoxication.

Defendant was indicted for the alleged burglary of the residence of the Fred Sampson family on April 22, 1973. An essential element of that offense is that defendant enter the building with the specific intent to commit a theft therein. Conflicting evidence was adduced at the trial regarding the degree of defendant’s intoxication. Fred Sampson, defendant’s employer, testified that upon his return from a fishing trip he discovered defendant in his kitchen. He testified that defendant stated to him, “Forgive me, Dad, I’m drunk.” He further stated that it appeared that defendant had been drinking but defendant did not stumble and spoke to him clearly. Margaret Sampson testified that she was with her husband when defendant was discovered in their house, and that defendant walked out of the house without weaving or stumbling. She testified that defendant had been drinking, and that she smelled liquor on his breath. Fred Sampson, Jr., testified that he observed defendant leave the house smoking a cigarette without staggering. Iva Freeman, defendant’s sister, testified to drinking with defendant on the day in question, and stated that when defendant left her house he was “feeling no pain.” She stated that upon his return he was “still pretty well loaded then” and staggering. Defendant testified that he was drinking heavily the entire day in question, and that he did not remember being at the Sampson residence.

At the jury instruction conference the State submitted People’s Instruction No. 3 which stated:

“An intoxicated person is criminally responsible for his conduct unless his intoxication renders him incapable of acting intentionally.
A voluntary condition of drunkenness is no excuse for the commission of a crime.”

Defendant’s counsel then objected to the instruction:

“Mr. Davis: Object because he says in the second paragraph he takes away what he says in the first paragraph, the defense is voluntary, defense of drunkenness. In other words, you can’t say that he could possibly excuse his drunkenness if it was to the extent that the voluntary condition of drunkenness is no excuse for the commission of a crime, that it is an excuse.
Mr. Sanders: Your Honor, both of these are in the spirit of the statute and that will be holding that it is proper to drunkenness is no excuse — it is the excessive that is to the defense that is stated in the first paragraph and the other spirit in the second paragraph. The Court: Instruction #3 is accepted. Given over the objection of the defendant.”

The jury then found defendant guilty of the offense as charged.

It is well established that a jury instruction may not be misleading or confusing and should fully and fairly inform the jury of the law applicable to the respective theories of the defense. (People v. Kolep, 29 Ill.2d 116, 119 N.E.2d 753; People v. Lewis, 112 Ill.App.2d 1, 250 N.E.2d 812; People v. Fort, 133 Ill.App.2d 473, 273 N.E.2d 439.) The instruction given was clearly erroneous.

The first sentence of the instruction is couched in the language of IPI— Criminal No. 24.02. This is a plain, concise accurate and comprehensible statement of the law. It was immediately and improperly contradicted by the addition of the second sentence which is not a part of the pattern instruction. When read as a whole the jury was, in effect, told that the defendant was not criminally responsible if he was so intoxicated that he could not act intentionally unless his intoxication was voluntary. This is an incorrect statement of the law which is set forth in section 6 — 3 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 6 — 3).

The jury was not properly instructed on the law applicable to the case. The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

SMITH, P. J., and TRAPP, J., concur.


author: Mr. JUSTICE DIXON Mr. JUSTICE BARR

text:
    George I. Wenban, Jr., et al., Plaintiffs-Appellees, v. Jerry R. Weiner, Defendant-Appellant.
    (No. 72-376;
    Second District
    November 25, 1974.

      BARR, J., dissenting.
    Jerry R. Weiner, of Beverly Hills, California, and Warren Lupel, of Chicago, for appellant.
    Semmelman and Fouts, of Lake Forest, for appellees.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Lake County, Illinois, in favor of the plaintiffs, George L. Wenban, Jr., and Evelyn N. Wenban, and against the defendant, Jerry R. Weiner, in the total amount of $12,670 and costs of suit. The issues are whether the trial court efred in denying the defendant a jury trial and whether it abused its discretion in refusing him a continuance.

The plaintiffs originally obtained a judgment by confession against the defendant on July 6, 1970, for unpaid rent under a written lease. On August 11, 1971, the defendant filed a verified petition in which he asked the court to vacate that judgment and grant him leave to file the verified answer attached. The petition was accompanied by affidavits and a proposed answer but not a jury demand. On August 30, 1971, the trial court entered an order which vacated the judgment by confession and provided that the plaintiffs might file an amended complaint within 21 days and the defendant should answer within 21 days of receipt of the amended complaint. Thereafter, on September 17, 1971, the plaintiffs filed an amended complaint; on October 18, 1971, the defendant filed an answer to the amended complaint, including an affirmative defense, and also a jury demand; and on January 11, 1972, the plaintiffs filed a reply to the affirmative defense and the case was at issue.

Subsequently, on July 21, 1972, the plaintiffs presented a motion for an early trial, the defendant made an oral motion for trial by jury, and the court denied the defendant’s motion and set the case for trial on August 23, 1972, on the non-jury call. On August 10, the defendant’s attorneys requested and were granted leave to withdraw from the case. On August 23 those attorneys filed a motion for leave to appear again for the defendant, and for a continuance of the trial because of the defendant’s having an inner-ear disturbance and being unable to travel for a period of 6 to 8 weeks according to the doctor whose letter was presented with the motion. The court granted leave to appear but denied a continuance, the case proceeded to trial, in the absence of the defendant, before the court without a jury, one of the plaintiffs testified, judgment was rendered for the plaintiffs, and this appeal by the defendant followed.

The record indicates that the judgment by confession was vacated by the trial court’s order of August 30, 1971, pursuant to authority given by section 72 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, § 72), rather than being opened up (see 46 Am. Jur. 2d Judgments § 680 (1969) ) under Supreme Court Rule 276. (Ill. Rev. Stat. 1973, ch. 110A, § 276.) The parties appear to agree that section 64 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, § 64) tells when a jury demand was due in this case, rather than Rule 276. Section 64 states: “A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his answer.” We believe it was not the defendant’s proposed answer filed with his motion on August 11, 1971, but his answer to amended complaint filed October 18, 1971, after the filing of the plaintiffs’ amended complaint pursuant to order of court (see Western Cold Storage Co. v. Keeshin, 252 Ill.App. 165, 167), which should be considered the answer contemplated by section 64 and which therefore had to be accompanied or preceded by a jury demand if a jury was not to be deemed waived under section 64. A demand for a jury having been filed with the answer to the amended complaint, we think the jury demand was timely.

If the jury demand in this case had not been filed within' the time required by statute, the proper procedure would have been for the plaintiffs to file a motion to strike the demand. (Stephens v. Kasten, 383 Ill. 127, 129, 135; Vail, Mills & Armstrong v. City of Paris, 344 Ill.App. 590, 598.) Furthermore, if the jury demand had not been-filed in time,' the court should nevertheless have allowed the- defendant a trial by jury, there being nothing in the record which shows in any way that the granting of a jury trial would have inconvenienced the court or parties litigant or prejudice any rights in any manner whatsoever (Hartsock v. Bress, 40 Ill.App.2d 66, 69; Dawson v. Maxwell, 13 Ill.App. 2d 228, 231-32), and there having been no delay in the filing of the demand beyond the court’s own time schedule for pleading.

In view of our disposition of the question of the defendant’s right to a jury trial, it is unnecessary for us to discuss the denial of a continu-uance. For the reasons herein given, the judgment of the Circuit Court of Lake County is reversed and the case is remanded for a trial by jury.

Reversed and remanded.

SCOTT, P. J., concurs.

Mr. JUSTICE BARR

dissenting:

I would affirm the decision of the trial court.

The brief and argument of defendant-appellant is predicated upon two grounds; that the trial court abused its discretion in denying defendant’s motion for continuance, and that the trial court erred in denying defendant the right to a jury trial when a jury demand was filed contemporaneously with the filing of the answer to the amended complaint.

In this case and others of like nature where the discretion of the trial judge is involved, the appellate tribunal will not ordinarily interfere with the trial judge’s discretion in the granting or denial of a motion for continuance unless there is a manifest abuse of the trial court’s discretion. Parker v. Newman, 10 Ill.App.3d 1019, citing Reecy v. Reecy, 132 Ill.App.2d 1024.

Here, on July 6, 1970, judgment was entered in favor of the original plaintiff, George I. Wenban, Jr., and against the defendant, Jerry R. Weiner, on the complaint and confession of judgment on a written lease in the sum of $13,000. Subsequently, on August 11, 1971, the defendant filed a petition to open the judgment by confession, attaching his affidavit in support of the petition and answer, including an affirmative defense, which appear in the official records in this cause but not in the excerpts of the record. No jury demand was filed therein. This judgment was vacated after appearance of counsel before the court and an order entered at that time permitting further pleadings.

Later, on October 18, 1971, an answer to the amended complaint was filed, which, in effect, admitted a breach of lease, the subject of the complaint, and also included the affirmative defense of plaintiffs’ failure to exercise reasonable diligence to mitigate damages for the defendant or to permit the defendant so to do. A jury demand was filed with the answer to the amended complaint on October 18, 1971.

On July 21, 1972, on written motion of the plaintiffs, by their attorneys, the Court set this cause for trial on the non jury call on August 23, 1972, at 9:30 A.M. The defendant’s oral motion for a jury trial made on that date was denied. Thereafter, on August 10, 1972, upon notice to defendant and opposite counsel, defendant’s counsel filed a motion to withdraw their representation of defendant stating as reasons therefor:

“1. The defendant has not communicated with his attorneys for at least six months, in spite of the fact that said attorneys have written him many letters and placed long distance telephone calls that have not been returned.
2. Defendant has not maintained his agreement concerning attorney fees for representation in these proceedings.”

Said attorneys were granted leave to withdraw as counsel for defendant, the order reciting that all other orders in the cause were to remain in full force and effect.

On August 23, 1972, the trial date, the same counsel for defendant, who had previously withdrawn with the consent of the court, requested leave to enter their appearance for the defendant and requested a continuance and a setting for the trial after October 18, 1972, and stated further, with the doctor’s letter attached thereto, that the defendant was too ill to travel for the trial scheduled August 23, 1972, because of an inner ear disturbance for which the doctor had been treating defendant since July, 1972. The defendant at that time resided in California. (Exhibit A to said motion.) On that day the judge hearing the motion allowed said attorneys to appear for the defendant but denied the motion for continuance. The trial was held, evidence presented by plaintiffs, and the judgment from which the defendant-appellant appeals was entered.

It is pointed out in appellees’ brief that Supreme Court Rule 231(a) (Ill. Rev. Stat., ch. 110A, par. 231(a) ), requires one seeking a continuance of a trial to provide an affidavit showing that, among other things, due diligence has been used. During the pendency of this cause there is no record of any effort made to depose any of the prospective witnesses, or, for that matter, to depose defendant prior to trial, particularly in reference to his affirmative defense of failure of plaintiffs to mitigate the damages, or to permit him so to do.

In Parker v. Newman, 10 Ill.App.3d 1019, and in Evergreen Savings & Loan Association v. Hirschman, 110 Ill.App.2d 242, the reviewing courts went considerably beyond the naked motion for continuance to determine whether or not adequate preparation for trial had been made or attempted to be made. The record in this case shows no attempt by counsel other than by interrogatories to plaintiff to discover or preserve any testimony in defense of this case. In addition, in the motion of defendant’s counsel to withdraw, filed August 10, 1972, it is revealed that defendant had not communicated with his attorneys for at least 6 months, and his failure so to do remains unexplained in the record.

As regards the denial of defendant’s right to a jury trial, the 1970 Illinois Constitution, article I, section 13, retains the provision that"“[t]he right of trial by jury as heretofore enjoyed shall remain inviolate.” However, this right is not unrestricted and the authority of the legislature to establish guidelines to obtain a jury trial was upheld over constitutional objections in Stephens v. Kasten, 383 Ill. 127, 133, where the court stated: “Of necessity, the need for a systematic order of procedure requires that there be regulation of the time when .the right to a jury trial be. requested.”

As regards the denial of defendant’s right to a jury trial, the applicable section of the Illinois Civil Practice Act, section 64, reads “(1) A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury, must file a demand therefor not later than the filing of his answer. Otherwise, the party waives a jury.” Ill. Rev. Stat., ch. 110, § 64.

True, section 59 of the Civil Practice Act does give the court discretion for good cause to grant additional time for the doing of any act or the taking of any step or proceeding prior to judgment, but, in the ruling of the trial or motion judge in this instance, apparently no good cause was shown. None appears in the record. Further, due to delay in obtaining a remedy for the breach of lease by the defendant in 1969, the inconvenience and damaging delay to plaintiffs are obvious.

It is noted that defendant-appellant does not claim error as to the court finding of a breach of contract, but only a late filing of the demand for same, are urged for reversal of this cause and as an abuse of discretion by the court. Obviously, the mere presence of 12 jurors in attendance to this trial, as judges of the facts, would have been of no avail to defendant-appellant for the reason that he failed to present any evidence for the jury’s consideration in opposition to the complaint, or in support of the affirmative defense of plaintiffs’ failure to use reasonable diligence to mitigate the damages for the defendant or to permit the defendant so to do. Here, upon a motion duly made by the plaintiff at the close of all the evidence, the trial court would have had the duty, had a jury been present, to direct the juiy to return a verdict in favor of the plaintiffs since plaintiffs had made a case and defendant offered no evidence to contradict it. L. O. Whybark Co. v. Haley, 37 Ill.App.2d 22 (abstract opinion).

In view of the above, I find no manifest abuse of discretion by the trial court in failing to grant a continuance to defendant-appellant, nor do I find error in denying the demand, and later oral motion, for jury trial.