author: Mr. PRESIDING JUSTICE SEIDENFELD

text:
    William E. Cannell, Plaintiff-Appellee, v. State Farm Fire & Casualty Co., Defendant-Appellant.
    (No. 73-243;
    Second District (1st Division)
    February 14, 1975.

      Keegan & Gosdick, of Rockford, for appellant.
    Cook & Hellyer, of Loves Park, for appellee.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

The plaintiff recovered a judgment on a jury verdict in the amount of $4,760,70 for damage to corn crops alleged to have occurred as the result of a hailstorm within the policy of insurance issued by defendant. Defendant appeals, claiming that the verdict was contrary to the manifest weight of the evidence and that the damage award was not based on the evidence.

A policy of crop hail insurance covered plots of 122 acres, 80 acres and 53 acres, respectively. Plaintiff planted com on the three plots in the latter part of April and through the first week in May of 1971. Four well-known hybrid seeds were used, and the land was properly fertilized with nitrogen, phosphorous and potash. A severe hailstorm struck plaintiff’s farm as well as other areas in the vicinity on June 1, 1971. On June 2 or 3, defendant’s agents examined the 122-acre field and concluded that the corn was in the three-leaf stage and that it was too early to determine damage. On June 24, 1971, defendant’s agents examined a 15-acre area on the 53-acre plot and determined that there was a 7% loss. Plaintiff signed an agreement accepting $105 for the loss. The agreement had indicated that there was no loss on the other acreage, but plaintiff testified that this was not discussed and that he did not read the agreement.

Plaintiff testified that after he had picked 68 acres from the 122-acre plot he noticed something wrong. He said that the yield was not bad at first when he was getting about 60 bushels to an acre, but that it diminished to 30 bushels and less in other parts of the plot. He notified defendant, who sent agents who looked over the field and then returned with Dr. Rodney Fink, professor of Agronomy at Western Illinois University, who conducted a further examination. Dr. Fink concluded that there was no evidence of crop damage due to hail, and defendant refused further compensation.

At trial the plaintiff offered the testimony of the superintendent of a golf course located several blocks away from portions of plaintiff’s farms, who described the hailstorm as “devastating.” Photographs of the hail and very heavy damage to the golf course were admitted into evidence and depicted hail almost the size of golf balls.

The plaintiff, who had been a farmer for all but 5 of his 66 years, testified that he observed his farms after the storm and noted that everything was “chewed up,” that leaves were off trees and plants and that there were main breaks in the stems and the main stems of the leaves. There was testimony that at tire time of the storm the crop on the 122-acre plot was approximately 4 weeks old and about 8-12 inches high in most parts and not less than 6 inches in a few other parts. On the 53 acres the crop was about the same height. And on the 80 acres, which had been planted last, the corn was up about 3 or 4 inches at the time of the storm. During the process of cultivating, plaintiff observed differences in the appearance of the corn in the different areas. He testified that he observed that com on the 122-acre plot had not developed properly. Stalks had grown properly but did not get ears on them, only little nubs which did not develop into ears. He noticed a difference in yield between the 122-acre plot and the others. Ordinarily the average yield on the 53-acre plot should have been lower than on the 122-acre plot, but it was greater. There was testimony that the 122-acre plot (rated as 103 acres) had been classified by SAC of the Department of Agriculture as a 95-bushel-per-acre area while the 53 acres was rated as a 76-bushel-per-acre area.

Plaintiff testified that since the 53 acres and the 122 acres had been planted consecutively and with the same varieties of seed, and since the corn on both was about the same height when the hail struck, he ruled out farming error as the cause of the defective yield on the 122-acre plot. He noted that it was a good growing season and that there had been sufficient rainfall. He concluded, based on the weather conditions that year and his own observations, that the hailstorm of June 1, 1971, caused the defective growth, since he had eliminated everything else he could think of.

Russell Gayton, a neighboring farmer, testified that he saw plaintiff’s crop about 6 or 8 weeks after the hailstorm and observed that it was full grown but peculiar. He said that some stalks were struggling to make an ear and that some had two or three little ears coming out of the same shank on the stalk. Although he did not testify as to the cause of the defective growth, he appeared to rule out poor fertilization, blight or insects as causes based on his observations. He also testified that as to weather and heat stress, it was a fairly normal year and that there had been a good yield generally through the area that year.

Another neighboring farmer, Edward Strathman, testified that he was raising a com crop near plaintiff’s farm which was also about 8 or 9 inches high when the hailstorm hit. He testified that there was extreme stripping of leaves and indentations in the ground with pot marks as much as 2 inches deep affecting the crops on his farm; He testified that the com on his farm was planted with similar seed, fertilized in a similar fashion and grown on similar land as that of the plaintiff. At harvest time, the portion of his farm damaged by hail yielded approximately 30 bushels per acre less than the rest of his crop. He noted blank stalks without an ear and some with grotesque defective ears, giving a sort of three-finger appearance, similar to that observed on plaintiff’s farm. He also testified that there had been no real heat stress and that it had been a very good growing season as to heat and rainfall. Accordingly, it was his conclusion based on his many years of farming experience and the consideration of other matters which affect the growing of com that the ears of com on the affected portion of his farm land did not properly develop because of the hailstorm.

An agent for the defendant testified that he visited plaintiff’s farm immediately following the hailstorm and observed that tire corn was then in the three-leaf stage of growth development. On cross-examination, a University of Iowa work was referred to in which it was stated that after 2 weeks of growth corn is generally at the four-leaf stage and after 3 weeks of growth, the six-leaf stage. The cross-examination was in reference to the plaintiff’s testimony that his com had been growing for 4 or 5 weeks when it was examined.

The crop-hail supervisor for the defendant testified that he visited plaintiff’s farm during the harvest and observed that the field of com was poor with numerous small ears that were not filled out. It was his opinion that observable defects in the corn were possibly the result of weather conditions, but not hail. He further testified that until the corn plant is 18 inches in height, the growing point of the com is below the ground. On the assumption that plaintiff’s com at the time of the hailstorm was only in the three-leaf stage, he testified that the hail could not have been the cause of the defective condition noted at tire harvest since hail would have no effect on com at the three- or 4-leaf stage of development.

Dr. Fink, shown to be a well-qualified expert, testified that in October of 1971 he spent several hours examining the 122-acre plot and concluded that there was no indication of hail damage or bruises on the matured corn crop, part of which had been picked, although he conceded that bruising was difficult to detect at any point. He observed that the com did not develop and concluded that no pollination had taken place or that it had aborted. He examined the soil and testified that it was a sandy loam with low moisture holding capacity which could have caused as much as a 50% decrease in yield.

He testified that hail would not affect com plants in less than a six-leaf stage because the growing point is below the ground prior to that time and that after 5 or 6 weeks of growth, corn is only between the two and five-leaf stage. He gave his opinion that the hail did not account for the damage found on the 122-acre plot. He said:

“A. My conclusion is based on that there was no visual indication of hail damage. There was no defoliation. The stand was still adequate on the field and if there was any reduction it couldn’t have been a reduction due to the hail on that particular field, although, I guess it’s always possible. There was no injury from hail.”

In rebuttal for the plaintiff, Wallace Reynolds, an employee of the Boone County Extension Service and a graduate in general agriculture from tire University of Illinois, testified that an ear of corn will take form at about the eight-leaf stage after approximately 25-45 days of growth and that damage from hail could result at the six-leaf stage when the com is 15-18 inches in height. He also testified that when corn is 4 weeks old hail will provide a shock to the plant and, accordingly, the plant will not produce as efficiently as it possibly could have if there had been no stress or shock.

Further rebuttal testimony was offered to contradict Dr. Fink’s testimony that the ear and tassel of the com could not be found inside the stalk until at least the six-leaf stage of growth. A neighboring farmer testified that by cutting the corn plant with a razor blade as it emerges from the ground one would find the ear and tassel therein. He stated that hail striking any one of those tender areas, which he described as being similar to an embryo, would cause injury.

Defendant contends that the expert testimony of Dr. Fink to the effect that hail could not have produced the condition found on the 122-acre plot has not been contradicted either by positive testimony or circumstances. It argues that the contrary conclusion reached by the plaintiff was unscientific and not based on the evidence but on the premise that he could not ascribe the crop damage to anything other than the hail. Defendant further argues that none of plaintiff’s other witnesses established hail as a probable cause of the damage; one of the neighboring farmers who testified for the plaintiff merely stated that he had never seen anything like the condition he saw and concluded he did not know what produced it, while another, whose farm was 6 miles from Cannell’s, had not made an inspection of the Cannell farms, did not see any ears of com from them and was testifying to a different set of circumstances on his own property.

To prove a cause of action within the terms of the policy issued by defendant, it was essential for the plaintiff to prove that the hailstorm of June 1, 1971, was the cause of the damage to the com crops. We approach this issue, keeping in mind the rule that if a verdict is based on evidence we may not reverse it unless it is against the manifest weight of the evidence. For a verdict to be against the manifest weight of the evidence, it must be clearly and palpably against the weight of the evidence (Union Drainage District v. No. 1 v. Special Drainage District (1973), 10 Ill.App.3d 829, 835), or an opposite conclusion must be clearly evident (Karris v. Woodstock, Inc. (1974), 19 Ill.App.3d 1, 11-12; Rhodes v. Oliva (1973), 13 Ill.App.3d 849, 855-856).

The plaintiff, an experienced farmer, was permitted, without objection to his competency, to state his opinion that the hail caused the defective growth. A neighboring farmer of long experience, Russell Gayton, stated his opinion which ruled out fertilizers, heat stress, blight or insects as potential causes of damage, although he was unable to give his affirmative opinion that the damage was caused by hail. Farmer Strathman, who cultivated farms some miles away from plaintiff’s land, testified to crop damage on his own farm, which had similar and relevant growing conditions to that of plaintiff’s farm, and stated that, in his opinion, the cause of a 30% decrease in his corn crop was due to the hailstorm of June 1, 1971. If credible, the inference which the jury was permitted to draw from this opinion testimony was that if the hailstorm caused damage to Strathman’s farm, then it had probably been responsible for similar damage caused to plaintiffs farm. Plaintiff also offered proof through the manager of a neighboring golf course that the storm was severe enough to damage the course extensively. Additionally, plaintiff offered die testimony of an agricultural expert who partially contradicted the premises relied upon by defendant’s experts.

The opinion of an expert is permitted on the basis that the witness has peculiar knowledge or experience not common to tire world which renders his opinion based on such knowledge and experience an aid to the trier of facts in deciding the case. (Merchants National Bank v. Elgin J. & E. Ry. Co. (1971), 49 Ill.2d 118, 121.) The testimony of experts must be judged by the same rules of weight and credibility which are applied to other witnesses, and the weight and value of the testimony largely depends on the foundations of fact and reason upon which the opinions stand. Peet v. Dolese & Shepard Co. (1963), 41 &.App.2d 358, 369; People v. Burress (1971), 1 Ill.App.3d 17, 20; Lombard Park District v. Chicago Title & Trust Co. (1969), 105 Ill.App.2d 371, 375.

The knowledge required to qualify one as an expert may be obtained from study, experience or both (Norfolk & W. Ry. Co. v. Anderson (1966), 207 Va. 567, 151 S.E.2d 628, 631; Manhattan Oil Co. v. Mosby (8th Cir. 1934), 72 F.2d 840, 844-5), and farmers may be said to have peculiar knowledge of their particular calling in this regard. See 31 Am. Jur. 2d Expert and Opinion Evidence § 168, at 730 (1967); Rogers, The Law of Expert Testimony § 276, at 640 ( 3rd ed. 1940).

The witness whose knowledge is based on practical experience and the one who possesses particular academic or scientific knowledge are in the same general category as expert witnesses, and their respective effect on the triers of fact is one of degree only. (Dauksch v. Chamness (1973), 11 Ill.App.3d 346, 352.) There is insufficient basis for distinction between them, and accordingly, it is for the jury to determine the weight to be given to their testimony. Arnold v. Carpenter (1967), 83 Ill.App.2d 343, 346.

In the present case there is a substantial quantity of conflicting testimony and contradictory evidence. Although the defendant’s position finds substantial support in the record, we are unable to conclude that a verdict in its favor is clearly evident. Moreover, we cannot say that the plaintiff’s testimony and the evidence presented on his behalf lacks a factual basis. Compare St. Paul Fire & Marine Insurance Co. v. Michelin Tire Corp. (1973), 12 Ill.App.3d 165.

The jury has heard the evidence and observed the demeanor of the witnesses as well as their manner of testifying. Accordingly, in a situation where reasonable men could arrive at different results, we conclude that the jury was in the best position to determine the truth of the matter in controversy. In the absence of a showing that the jury’s verdict in this case was palpably erroneous, we hold that it must stand.

Defendant next contends that the money award was not based on the evidence and that the amount determined by the jury cannot be explained in any rational manner.

The plaintiff’s damage claim was based primarily on the damage to the 122-acre plot. His claim for damages on that plot was in the amount of $6,710, which represented a 55% claim loss on 122 acres at the $100-per-acre figure set in the insurance policy. He based this 55% estimate on the decreased yield at harvest which he noted during the combining process by visual observation and by the fact that the first 60 acres of the 122 which he had picked yielded on the average of 51 bushels per acre as it came off the scales. He testified that the yield was far below the 95-bushel-per-acre rating by the SAC of the Department of Agriculture.

Plaintiff’s estimate of the damage on the remainder of the 122 acres was not as precise. He said that it yielded in the “neighborhood” of 51 bushels per acre. However, it appeared from his testimony that after picking the first 60 acres of the 122 he had begun to pick from die 53- and the 80-acre plots and mixed the yield from these plots with the remaining acreage of 122 so that the precise weights of each could not be determined.

The amount of damages is ordinarily to be left to the jury, and we may not upset their award unless it appears motivated by passion or prejudice. (Larson v. Thomashow (1974), 17 Ill.App.3d 208, 218; Bloomfield v. Retail Credit Co. (1973), 14 Ill.App.3d 158, 170.) Although it is true that damages are not recoverable without some evidence as to amount (Stein v. Green (1955), 6 Ill.2d 234, 240; Falejczyk v. Meo (1961), 31 Ill.App.2d 372, 377), it is also true that where damages are not susceptible of exact computation they may be determined from the testimony of witnesses and opinions expressed by them, and such a judgment need not be reversed unless clearly the result of passion or prejudice. Collins v. Sanitary District (1915), 270 Ill. 108, 116; Goldstein v. Hertz Corp. (1973), 16 Ill.App.3d 89, 98.

The jury verdict was 14,760.7o. This figure is reasonably within the range of the evidence, and we find nothing in the record to indicate that the amount was determined as a result of passion or prejudice. We, therefore, affirm the judgment below.

Affirmed.

GUILD and HALLETT, JJ., concur.

       While there is no way to arithmetically prove the method of computation used by the jury, it is reasonably possible that they considered that the first 60 acres picked averaged approximately 51 bushels per acre, which was 44 bushels per acre less than the 95 SAC rating. Applying a 44/95 percentage against the $6,000 ($100 per acre) which would have been the total amount recoverable if there had been a complete loss on the 60 acres, the jury could have reached a figure of approximately $2,800 for the first 60 acres. It is possible that as to the balance of the 122 acres, which the plaintiff was not able to assess with precision, the jury may have considered the 30% loss of crop, to which the witness Strathman testified, rather than accepting plaintiff’s estimate of a higher loss. On 62 acres (30% of $6,200), the amount of loss would be $1,860. Adding the damage on the 60-acre plot to the estimated damage on the remaining 62 acres, the jury could arrive at a figure very close to the $4,760.70 which they reached.


source: Caselaw Access Project

author: Mr. JUSTICE GUILD

license: Public Domain

text:
    The Village of Gurnee, Plaintiff-Appellee, v. J. Russel Miller et al., Defendants-Appellants.
    (No. 73-155;
    Second District (1st Division)
    February 14, 1975.
    Paul S. Chervin, of Waukegan, for appellants.
    W. Howard Swanson and Donna R. Henderson, both of Waukegan, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This case involves the construction and application of section 11— 31 — 1 of the Illinois Municipal Code (Ill. Rev. Stat. 1969, ch. 24, par. 11 — 31—1), which statute provides for the demolition of unsafe buildings by a municipality.

Defendants herein are the owners of premises in the Village of Gurnee, Illinois, which were improved with two houses and a garage thereon. The buildings were located within 100 yards of the Gurnee school and had been vacant and unoccupied for a period of over 3 years prior to the filing of the instant suit. Under the provisions of the above quoted Municipal Code on October 7, 1968, defendants were served with a 15-day notice to repair or demolish the buildings in question. The complaint was filed for the demolition of the buildings on November 1, 1968. After several hearings, enumerable continuances and numerous orders, a final order was entered ordering the demolition of the house 4 years later, on October 2, 1972. The defendants have appealed from this order.

No useful purpose would be served in itemizing or listing the various orders entered, vacated at the request of the defendants, and reinstated which finally led to the final order of October 2, 1972. Needless to say, the defendants were given many continuances and several orders extending tire time for the repair of the premises. During this 4-year period the defendants themselves demolished the south building on the premises, and this appeal deals with what was the north residence located on the property in question. At the time of the entry of the final order of demolition in October, 1972, the premises had been unoccupied for over 7 years. The complaint for demolition under the statutory provision alleged that the buildings were in a dangerous and deteriorated condition. While it would appear from an examination of the record herein that the remaining building was, perhaps, in repairable condition, the record further indicates that the repairs were not done even after the many continuances granted to the defendants.

Application of the section of the Illinois Municipal Code dealing with the demolition of unsafe premises was discussed in detail by the Supreme Court of Illinois in City of Aurora v. Meyer (1967), 38 Ill.2d 131, 133, 230 N.E.2d 200, 202. The court there stated, in pertinent part, that:

“It thus appeai-s that before [a] city may step in and repair or demolish, it must be shown that the building is ‘dangerous and unsafe.’ ”

The court then went on to discuss the law relative to the destruction of private property where the same is found by the court to be a hazard to the public safety.

“The law is well settled that in cases of this nature courts do not go further than is necessary to protect the public interest. Property may be ordered destroyed under certain conditions but only if the danger cannot be abated in any other way. It is only in cases where an absolute necessity exists that courts adopt the drastic method of correction by ordering destruction of the property. [Citations.] In other words the remedy is limited to the necessities of the case. Where hazardous conditions may be remedied by repair without major reconstruction the building may not be destroyed. Albert v. City of Mountain Home, 81 Idaho, 74, 337 P.2d 377.” 38 Ill.2d 131, 136-37, 230 N.E.2d 200, 203-04.

The substance of the finding by the supreme court in the City of Aurora u. Meyer case is that if a building may be repaired demolition should not be ordered “without giving the owners a reasonable opportunity to make the repairs.” 38 Ill.2d 131, 137, 230 N.E.2d 200, 204.

In the case before us the owners were given more than a reasonable opportunity to make the repairs, to-wit, more than 4 years prior to the final order of demolition. It would thus appear that the Village of Gurnee extended every opportunity to the owners to repair the premises or make them habitable and thus remove the danger or hazard which might be incurred by the public.

The courts are reluctant, and should be most cautious, in the ordering of the destruction of private property as a hazard to the public, but from the facts of this case it appears that the defendants, with no excuse offered whatsoever, allowed the premises in question to remain vacant and unoccupied with the windows open and ready access to the premises for a period of 4 years after the filing of this suit, during which time the Village attempted to secure through court action an order for the removal of the building located on the premises in such a state of disrepair.

We do not find that the order of demolition was against the manifest weight of the evidence. Under the facts of this case, considering the proximity of the grade school and the generous opportunity afforded defendants to repair and rehabilitate the residence in question, we further find that the trial court was justified in ordering the demolition of the building as a matter of “absolute necessity” because of the “hazardous conditions” present. In this appeal the defendants have prayed that the order of the trial court be reversed and that the matter be remanded to the trial court with direction to order the repairs to the building in question. The judgment of the trial court is affirmed.

Affirmed.

SEIDENFELD, P. J., and HALLETT, J., concur.

       It is to be noted that the residence was in fact demolished in August, 1974, S years after the filing of the complaint herein.


author: Mr. PRESIDING JUSTICE RECHENMACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Norman Smeathers, Defendant-Appellant.
    (No. 73-162;
    Second District (2nd Division)
    February 14, 1975.
    Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    William Sisler, State’s Attorney, of Freeport (James W. Jerz, of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. PRESIDING JUSTICE RECHENMACHER

delivered the opinion of the court:

The defendant pleaded guilty to a charge of theft of property worth over $150 and was sentenced to a term of not less than 2 nor more than 6 years in the penitentiary. In this appeal, the defendant contends he was not adequately admonished by the trial court as to the nature of the charge before his plea of guilty was accepted, as required by Supreme Court Rule 402(a)(1).

The facts developed by the testimony at the hearing on the guilty plea established that the defendant and several companions were riding around in an old truck owned by the defendant, and, while doing so, they stopped at a farmhouse for the purpose, so the defendant said, of borrowing some tools to repair his ailing truck. The defendant and his companions had been drinking beer while driving around.

The defendant and his companions knocked at the door of the farmhouse but received no answer. Defendant’s companions admitted that they then proceeded to break the door open and to steal several articles of personal property from the house. The defendant never specifically admitted tire breaking and entering, but the State was prepared to establish by a fingerprint expert that defendant’s fingerprints were found on the bedroom dresser upstairs.

While the defendant and his companions were in the house, a neighbor noticed the truck and called the owner of the house who was visiting at a neighboring farm, asking her if she had given permission to anyone to come upon the premises. Upon receiving a negative answer the neighbor drove his tractor into the driveway and blocked the defendant’s egress. Shortly afterward the police arrived, and after the defendant protested his innocence and gave permission for the police to search the truck, the police made a search and found several articles in the truck which the owner identified as being property which belonged to her which had been removed from the house. The defendant contends he did not steal anything from the house, but several of his companions say he did. The defendant claims he does not remember stealing anything from the house.

At his arraignment, the defendant, after proper admonishment as to the nature of the charge, pleaded not guilty. Some 2 months later, after negotiations between his attorney and the assistant State’s attorney, the defendant offered to plead guilty to the charge of theft only but not to the charge of burglary. At the hearing on the guilty plea the trial court carefully explained to the defendant his right to a trial by jury, his right to remain silent, his right against self-incrimination, and the maximum and minimum sentences for theft of property over $150, and also inquired whether any threats or promises had been made to induce the defendant’s guilty plea. Before accepting the plea of guilty to the theft charge the judge then asked if the State’s attorney had any evidence against the defendant, whereupon the State’s attorney detailed the evidence indicating both burglary and theft had occurred.

The contention that the trial court did not make sine that the defendant understood the nature of the charge and knowingly pleaded guilty to such charge appears to be based on a part of the colloquy between the court and the defendant, as shown below, which occurred immediately before the State’s attorney described in detail what had occurred at the farmhouse:

“[By the Court] Q. Do you enter this plea of guilty to this charge because you did, in fact, do the things it is alleged that you did in Count II of this indictment?
[Defendant] A. No, your Honor.
[By Mr. Mahoney, privately employed Defense Counsel] May I address the Court on that?
[By the Court] You may.
[By Mr. Mahoney] Your Honor, Mr. Smeathers has at this' time no recollection of doing the acts ®f which he is charged in Count II. He has been — after I obtained discovery of the State’s Attorney’s evidence and have been confronted with the evidence, and I have gone over it with him, and he and I agree that the evidence is, in fact, insurmountable, and based upon our belief that the evidence has no defense to it, we are entering a guilty plea. That’s Mr. Smeathers’ understanding at this time, I believe.
[By the Court] Q. Is this correct, Mr. Smeathers?
[Defendant] A. Yes.
[By the Court] Q. Is it your understanding that you are aware of the evidence against you in this case, and that you feel that this evidence is insurmountable, and you have no recollection of the incident with which you are charged, is that correct?
[Defendant] A. Yes.
[By Mr. Mahoney] May I correct that slightly. He has some recollections of the incident. He does not remember doing the elements of the crime which is charged in Count II.
¡ [By the Court] Q. Now, when you say you have no recollection, I assume this means you don’t have any recollection of your not doing it. either, is that correct? In other words, there is a period of time here in which you have no recollection of what you did, is.that what you aré saying?
[Defendant] A. In a way, I guess.”

Immediately following this colloquy, the State’s attorney outlined the evidence against the defendant in considerable detail, including fingerprint evidence. Then, after asking the defendant if he was satisfied with his attorney and receiving an affirmative answer and again asking, the defendant if he still persisted in his plea of guilty, to which the reply was “Yes,” the court accepted defendant’s plea.

There is no question, of course, that the salutary provisions of Supreme Court Rule 402(a)(1) (Ill. Rev. Stat. 1971, ch. 110A, par. 402 (a)(1)), requiring an explanation of the nature of the charge, must be substantially complied with’ before the court accepts a guilty plea. When, after such explanation, the defendant’s reaction casts doubts on his understanding of the nature of the crime he is pleading to, the court should not accept the guilty plea, and if he does so it is grounds for reversal of the conviction. The point is well established by the case of People v. Farnsworth (1973), 10 Ill.App.3d 844, an opinion of this court, which the appellant cites in his brief. There the defendant pleaded guilty to the charge of attempted murder, but in the hearing on the guilty plea he persisted in denying the specific intent to commit murder, saying at last: “1 didn’t intend to kill anyone, but I did shoot him with intent to commit the robbery.’” (10 Ill.App.3d 844, 846.) This court held that even though the shooting occurred during the commission of a felony, it did not come under the rules of felony-murder which do not require a specific intent to kill but, since the victim did not die, came under the rule pertaining to attempted murder, and since that is a crime requiring a specific intent to kill, the defendant’s guilty plea was inconsistent with his rejection of such specific intent and therefore should not have been accepted as a proper guilty plea.

We consider the Farnsworth case an entirely proper decision, but it obviously turned on a technicality which is not present in the case before us, and the Farnsworth case is of no help to the defendant. It is true that the crime of theft requires a specific intent to deprive the owner permanently of the use and benefit of his property, but the defendant in this case did not deny that such was his intent; he merely alleged that he did not remember all that occurred (his counsel stated that he recalled something of the incident but not all of it) and he did not recall either committing the theft or not committing it, either one. He therefore did not deny either the act or the intent but stated that since his fingerprints were found on the dresser from which’ some of the articles were stolen he could not say he was not involved. This is far different from the Farnsworth case, where the defendant stated clearly what the state of his mind was and that it was not to do the act he was charged with attempting. The clear-cut inconsistency which impaired the guilty plea in the Farnsworth case is therefore lacking in the case before us.

On motion we allowed thé defendant to cite additional authority, and he has cited the recent cases of People v. Billops (1974), 16 Ill.App.3d 892, and People v. Hawkins (1974), 17 Ill.App.3d 863, both dealing with admonishments prior to a guilty plea.

We find Hawkins not to be apposite to the facts before us, inasmuch as there was no recital of the evidentiary facts in that case such as occurred in the present case, nor did the court advise the defendant that by pleading guilty he waived a jury trial nor have him sign a jury waiver. In the instant case the evidentiary facts were related by the State’s attorney in great detail, and the defendant was informed fully that he had an “absolute right” to a trial by jury, and after indicating that he wished to waive that right, he also signed a jury waiver. The cases are not similar.

As to Billops, that case relates to the nature of the charge and is therefore very similar not only to the present case but also to the case of People v. Krantz (1973), 12 Ill.App.3d 38, also cited in the defendant’s brief and dealing also with the admonishment under Supreme Court Rule 402 as to the nature of the charge. Due to the similarity of the Krantz and Billops cases, we believe our comment on Krantz will suffice to deal with both cases.

In Krantz, the appellate court held the inquiry made of the defendant as to his understanding of the nature of the charge was insufficient, reversed the trial court and remanded with directions allowing the defendant to plead anew. However, the State appealed this decision and the appellate court’s opinion was recently reversed by our supreme court in People v. Krantz (1974), 58 Ill.2d 187, 189-90, in an opinion which we feel governs the case before us. There the trial court did not explain the nature of the charge but merely asked the defendant: “Mr. Krantz, do you understand what you’re charged with in these indictments, forgery?”, to which the defendant answered, “yes”. The appellate court felt this was not sufficient admonishment, even though it conceded that the defendant had made certain observations that might tend to indicate he understood what he was charged with. (Specifically, the defendant stated he had forged the checks in a spirit of revenge against the victim, for “going with my mother.”) In reviewing the Krantz case on appeal, the supreme court said the intent and purpose of Rule 402(a)(1) as relates to the nature of the charge is simply to make sure that the defendant understands well enough what he is charged with to make an intelligent plea, whether of guilty or not guilty. Since the question is one of understanding, as the supreme court emphasizes, “die entire record may be considered in determining whether or not there was an understanding by the accused of the nature of the charge.” (58 Ill.2d 187, 192.) The supreme court pointed out diat the State’s attorney in the Krantz case had made a detailed statement of the prosecutive evidence in the presence of the defendant and his attorney which was not only not demurred to by either, but the defendant had explained his motive in committing the forgery, thus confirming his understanding of what he had done. The court noted that in the light of previous decisions (see People v. Mendoza, 48 Ill.2d 371, 373-374) there need be only substantial compliance, not literal compliance, with the provisions of Rule 402, and in view of the detailed recital of the facts made by the State’s attorney and assented to by the defendant’s silence and the comment of the defendant as to his motive, the rule was substantially complied with as indicating that the defendant understood the nature of the charge against him. In concluding, the supreme court quoted with approval the language of the court in People ü. Doyle, 20 Ill.2d 163, 166-67: “[T]he remarks and'advice of the court must be read in a practical and realistic manner. The essentials have been complied with if an ordinary person in the circumstances of the accused would understand them as conveying the information required by die rule.”

We believe the facts and circumstances of the case before us are sufficiently similar to thé Krantz case for that case to be considered as binding in the present appeal. Here, also, the State’s attorney presented the evidentiary facts in great detail in open court, showing that a burglary and theft had occurred and that the defendant was involved. The defendant could hardly have misunderstood that he was charged with theft, since he stated in open court that he wished to plead guilty to the theft charge but not to the burglary charge. Manifestly, by this remark, he indicated an understanding of tire nature of the theft charge. His qualification of his guilt in the colloquy quoted above is not a denial of his guilt nor does that claimed lack of recollection as to some of the details recited by the State’s attorney indicate anything as to the nature of tire crime, which is the point raised in this appeal. Pinned down by the judge as to his plea, he reiterated that he wished to plead guilty to tire charge of theft, and he did not dispute the State’s attorney’s recital of the facts except to say that he had no recollection of actually removing the articles in question from the house.

In North Carolina v. Alford, 400 U.S. 25, 31, 27 L.Ed.2d 162, 168, 91 S.Ct. 160, the Supreme Court dealt with a case wherein the defendant protested his innocence in the face of his own plea of guilty. In that case the court said:

“The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. [Citations.] That he would not have pleaded except for the opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice, especially where the defendant was represented by competent counsel whose advice was that the plea would be to tire defendant’s advantage.”

The case before us does not present a question of understanding but a question as to the ultimate fact itself, that is, as to whether defendant committed the crime, and on this point, faced with the evidence of his own fingerprints, he conceded that the evidence showed his guilty participation. Based solely on the question of understanding of what he was charged with, it appeal's to us the recital of the evidentiary facts in open court was sufficient to clearly establish the nature of the crime and the defendant’s own comments indicated his understanding of the charge arising from these facts. We therefore hold that there was substantial, compliance with Buie 402(a)(1) in this case.

The judgment of the circuit court of Stephenson County is therefore affirmed.

Judgment affirmed.

T. MORAN and DIXON, JJ., concur.


author: Mr. JUSTICE HALLETT

text:
    Lowell Witter d/b/a Aero Landscape Service, Plaintiff-Appellant, v. Tom Winter, Defendant-Appellee.
    (No. 73-427;
    Second District (1st Division)
    February 11, 1975.

      Thomas D. Chase and Robert D. Smith, of Elgin, for appellant.
    No brief or appearance filed for appellee.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The plaintiff sued the defendant for $418.27 allegedly due for landscaping, and the defendant counterclaimed for $375, contending that the job was poorly done and that he had to redo it himself. The trial court, after a bench trial in which both parties testified, entered a judgment for the defendant on the complaint and for the counterdefendant on the counterclaim, each party to pay his own costs. The plaintiff appeals.

The defendant has not seen fit to appeal- as appellee or to file a brief. Where, as here, an appellee has not filed a brief in the reviewing court, it may reverse without considering the merits of the case. However, reversal is not mandatoiy and the reviewing court may, if it chooses, consider and determine the case on its merits. (21.L.P. Appeal and Error § 560 (1953); Perez v. Janota (1969), 107 Ill.App.2d 90, 246 N.E.2d 42; Daley v. Jack’s Tivoli Liquor Lounge, Inc. (1969), 118 Ill.App.2d 264-275, 254 N.E.2d 814; Lynch v. Wolverine Insurance Co. (1970), 126 Ill.App.2d 192, 193, 261 N.E.2d 466; People v. Giannopoulos (1974), 20 Ill.App.3d 338, 314 N.E.2d 237; Daley v. Los Laureles, Inc. (1974), 22 Ill.App.3d 441, 318 N.E.2d 159.) We elect to follow the latter course.

Hie plaintiff here contends that the court’s finding against his claim is against the manifest weight of the evidence. After reviewing the evidence, we disagree and affirm the judgment.

The plaintiff testified that he and the defendant entered into an oral. contract whereby the plaintiff agreed to perform certain landscaping services, which included rototilling, removing debris, final grading, fertilizing, and laying sod, on the defendant’s property. The services were to be performed subject to the approval of the defendant. It is undisputed that the defendant expressed approval of the grading and leveling before the sod was laid. However, there is no evidence that the defendant approved of the landscaping after its completion.

The plaintiffs bid was $818.27 and the defendant had paid $400. At die trial, the testimony of the parties concerning the terms of payment of the balance conflicted. Plaintiff asserted that the defendant was to pay the balance prior to January 1, 1972. According to the defendant’s testimony, the plaintiff requested that one-half of tire contract price be paid before January 1, 1972, with the balance payable after that date, for tax purposes.

Subsequently, the defendant informed the plaintiff that water had accumulated and was not draining properly from his lawn. The testimony concerning the time when plaintiff was informed of this problem is conflicting. The defendant testified that the problem became apparent in January, 1972. On direct examination, plaintiff stated that he had received no complaints regarding his landscaping services until April or May, 1972, but on cross-examination he admitted that he had knowledge of and had viewed the defective situation in February, 1972. According to the plaintiff’s own testimony, he assured the defendant that measures would be taken to remedy the situation and did, in fact, have black dirt delivered for the purpose of leveling the lawn to the defendant’s satisfaction. At no time did the plaintiff deny responsibility for the lack of proper drainage. Rather, he assumed full responsibility for correcting what appeared to be a defect in the landscaping services performed.

The defective condition was never remedied by the plaintiff. Plaintiff testified that he never got around to correcting the defect because the weather was not favorable, and that finally, in November or December, 1972, he was denied access to the property by the defendant. It appears that during this interval, the defendant had remedied the situation himself by leveling the lawn and providing for proper drainage of water. The fact that the defendant was not prevented by unfavorable weather from performing this corrective measure certainly tends to rebut plaintiff’s proffered excuse for nonperformance within a reasonable time.

The sole issue presented for review is whether the finding of the trial court is against the manifest weight of the evidence.

In Kuperman v. Leak (1974), 20 Ill.App.3d 491, 314 N.E.2d 504, where a contractor, in a bench trial, contended that the finding for the defendant was against the manifest weight of the evidence, the court, at pages 497-498, said:

“The trial judge has the duty of sifting the evidence and choosing among conflicting inferences. As a finder of fact, he is authorized to draw reasonable inferences, and he may disbelieve testimony contradicting evidence from which such inferences are drawn. When the evidence is contradictory this court will not substitute its judgment as to the credibility of witnesses for that of the trial court which saw and heard them, and will not disturb the findings unless they are manifestly against the weight of the evidence. (Wynekoop v. Wynekoop, 407 Ill. 219, 226, 95 N.E.2d 457, 460.) Manifest means clearly evident, clear, plain, indisputable. (Schneiderman v. Interstate Transit Lines, Inc., 331 Ill.App. 143, 147, 72 N.E.2d 705, 706.) We will not reverse and remand unless an opposite conclusion is clearly apparent. In re Estate of Meade, 17 Ill.App.2d 286, 149 N.E.2d 792 (abstract opinion).”

It is our considered opinion, after a review of the evidence presented to the trial court, that the finding of the trial court against the plaintiff on his complaint is not against the manifest weight of the evidence.

We therefore affirm the judgment.

Affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David Barton Bassett et al., Defendants-Appellants.
    (Nos. 73-245 & 73-247 cons.;
    Second District (1st Division)
    February 14, 1975.

      Ralph Ruebner, o£ State Appellate Defenders Office, of Elgin, for appellants.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz, of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendants, David Barton Bassett and Dennis Earl Beebe, waived indictment and pled guilty to an information which charged them and three others with the offense of burglary and were each sentenced to a term of 2-6 years in the Illinois State Penitentiary. In their consolidated appeal the defendants contend (1) that the trial court erred in failing to advise the defendants of the nature of the charge and of their right of indictment in accordance with Supreme Court Rule 401(b) (Ill. Rev. Stat. 1971, ch. 110A, par. 401(b)) when defendants waived indictment; (2) that the trial court erred in failing to inform the defendants of the nature of the charge in accordance with Supreme Court Rule 402(a)(1) (Ill. Rev. Stat. 1971, ch. 110A, par. 402 (a)(1)) when the defendants pled guilty; and, (3) that the trial court erred in failing to vacate the guilty pleas and sua sponte order a competency hearing to determine the competency of the defendants to enter the pleas when the trial court was presented with the defendants’ presentence psychiatric reports.

The docket entries in the cases against both defendants state that at their arraignment on January 24, 1973, the nature of the charge of burglary was explained to each of them. On February 2, 1973, the public defender of Winnebago County, representing the defendants and the three codefendants, advised the court that the defendants “would like to waive prosecution by Indictment at this time.” The following colloquy ensued:

“THE COURT: If you don’t waive the Grand Jury then when the Grand Jury meets — it meets periodically — the State’s Attorney would present whatever evidence he has against you, and if the Grand Jury, or a majority of them, were of the opinion that there is probable cause to hold you for trial, they would return what is known as a true bill or Indictment and you would be arraigned and tried on the Indictment.
Where you waive the intervention of the Grand Jury, the State’s Attorney would file what is called an Information against you, which would charge that on the 22nd day of January, 1973, in the County of Winnebago and State of Illinois, David B. Bassett, Gary Lee Pounders, Gary Hall a/k/a. Gary Hull, Dennis Earl Beebe and Raymond Lee Gargani committed the offense of burglary, in that they, without authority, knowingly entered into tire building of Wayne H. Erickson, lessee, doing business as Wayne’s Western Auto, located at 3134 Eleventh Street, Rockford, Illinois, with intent to commit therein a theft or felony, in violation of Paragraph 19 — 1, Chapter 38 of the Illinois Revised Statutes.
Now burglary is an offense, under the new Criminal Code which went into effect January 1, 1973, which is called a Class II felony, and it provides that in case of conviction that you might be imprisoned in the penitentiary for a period of years not less than one year nor more than twenty years, or any indeterminate sentence between one and twenty years, any combination of years, not less than the minimum, plus three years parole or a fine not to exceed $10,000.00 or both fine and imprisonment.
After and if the Indictment would be returned or the Information filed, then the procedure is the same, whether it is by Indictment or Information.
Now, David Bassett, do you understand what I have just said?
DEFENDANT BASSETT: Yes.
THE COURT: Knowing that, you want to waive the Grand Jury.
DEFENDANT BASSETT: Yes.
# # #
THE COURT: Dennis Earl Beebe, do you understand what I have said.
DEFENDANT BEEBE: Yes, Your Honor.
THE COURT: And you want to waive the intervention of the Grand Jury.
DEFENDANT BEEBE: Yes.
# # #
THE COURT: Let the record show the defendants have been advised of their rights and die nature of the charge against them. They persist in their waiver of the Grand Jury. Leave given to file the Information.”

Almost immediately thereafter, the defendants and the three codefendants entered guilty pleas which, following admonitions by the court, were accepted.

In People v. Burdick (1969), 117 Ill.App.2d 314, 320, 254 N.E.2d 148, 151, this court considered a virtually identical admonition given prior to the acceptance of a waiver of indictment by the same trial judge as in this case. In Burdick we held:

“We find no merit in the defendant’s contention that his waiver of indictment was void. The trial court properly informed the defendant of his right to have the grand jury presented with the State’s evidence against him. He was also properly advised of the nature of the charge when the court expressly stated that, if he waived the intervention of the grand jury, ‘* * * you would be charged with aggravated incest * * * knowing that, do you wish to waive the intervention of the Grand Jury?’, to which the defendant replied, ‘Yes.’ [Citations.] In addition, the defendant was informed of the nature of the offense from a copy of the information proposed to be filed as well as an explanation of the charge when he appeared at the preliminary hearing. [Citation.]”

The defendants herein argue that the trial court did not refer to indictment as a right in his admonition. The court in People v. Bishop (1974), 19 Ill.App.3d 56, 59-60, 310 N.E.2d 891, 694, observed that:

“» « * there is no requirement that the court make a finding or elicit a specific expression of understanding where the record in its entirety shows that the waiver of indictment was intelligently, understandingly and voluntarily made.”

We note that the defendants herein, who were represented by counsel, do not argue that they were ignorant of their right to be indicted or that they were harmed or otherwise prejudiced by the failure of the court to expressly refer to indictment as a right. (See People v. Dudley (1974), 58 Ill.2d 57, 316 N.E.2d 773.) Accordingly, we find that the trial court satisfied the requirements of Supreme Court Rule 401 in informing the defendants of, and determining that they understood the nature of the charge and their right to indictment by a grand jury.

Once advised of the nature of the charge for purposes of waiver of indictment, the defendants cannot now complain that they were not specifically readvised of the nature of the charge in the immediately subsequent guilty plea proceedings. Such advice applies and carries over into the subsequent proceedings. (People v. Schyska (1973), 14 Ill.App. 3d 557, 302 N.E.2d 666.) Thus, we find that the requirements of Supreme Court Rule 402, as it relates to the nature of the charge, were substantially complied with herein. See also People v. Krantz (1974), 58 Ill.2d 187, 317 N.E.2d 559.

In addition, we note that the defendants entered a voluntary plea of guilty which, in Illinois, waives any nonjurisdictional defects in the prior proceedings against the defendants. By implication, if not explicitly, in People v. Loy (1972), 52 Ill.2d 126, 130, 284 N.E.2d 634, 635, this waiver doctrine was extended to defects in proceedings in which a defendant waives indictment. There, defendant filed a post-conviction petition alleging constitutional error in the proceeding during which he waived the right to have his case presented to a grand jury. In rejecting this claim, the supreme court stated:

“We note also that the defendant entered a plea of guilty to the two counts of the information. Constitutional rights, like any other right of an accused, may be waived, and a voluntary plea of guilty waives all errors or irregularities which are not jurisdictional.” (52 Ill.2d 126, 130.)

Thus, regardless of the sufficiency of the admonitions under Supreme Court Rule 401 at the phase of the proceedings in which both defendants waived the right to be indicted, their subsequent voluntary pleas of guilty to the offense of burglary waived any irregularities in the waiver of indictment phase of the proceedings of February 2, 1973.

Lastly, the defendants argue that when the trial court was presented with evidence of the defendant’s mental history as part of the presentence report, it should have vacated the pleas and ordered a competency hearing to determine the competency of the defendants to plead guilty. After accepting the defendants’ guilty pleas, defense counsel stated the following to the court:

“I do and I have two comments to make on the presentence; first of all, with regard to the defendants, we are not asking for either a mental or physical examination with respect to tire defendants. On Beebe and Bassett I request the Court to order a psychiatric examination as part of the presentencing investigation. Both of those two young men have a history of treatment at Singer. I know that Mr. Beebe has previously been at East Moline, and I know that Mr. Bassett has over a period of years had psychiatric problems. I will state that they never indicated to me any inability to cooperate in their defense or to understand what I have stated; therefore, I have not seen fit to file for competency, but I do feel psychiatric examination will help in the matter of sentence.”

The court then appointed Dr. J. G. Graybill, a psychiatrist, to examine both defendants. In his report to the court concerning the defendant Beebe, Dr. Graybill discussed the early history of the 20-year-old defendant, including the facts that his mother died in an auto accident when he was 2 years old and his father left him at that time. Since that time, he has lived with aunts and uncles and various relatives and has been in various institutions. The report discussed Beebe’s accounts of prior fits of depression and suicide attempts. His intellectual functioning was estimated as within that expected of an individual with a 10th-grade education, and there was no indication of memory loss, thought or perceptual disorder. The report concluded by observing that the defendant presented a picture of one who had suffered emotional deprivation throughout most of his life and who, in the opinion of Dr. Graybill, might be a good candidate for probation under certain conditions.

Dr. Graybill’s report regarding the 20-year-old defendant Bassett, which included information gathered from interviews with the defendant’s parents, revealed that “his diagnosis in various interviews and in various institutions where he has been placed involved those from mental retardation to those of schizophrenic reaction. Perhaps the most appropriate diagnosis at the present time is that of mental retardation, mild to moderate, with occasional psychotic episodes.” The report concluded by recommending placement within a clo,sed institution for this individual.

At the commencement of the hearing on defendants’ request for probation, defense counsel re-emphasized his position “* * * that I for one have not seen the necessity as his counsel for filing competency proceedings.” To this the court responded, “I think he is competent, all right, from what they say. The psychiatrists’ reports find him competent. But there are certain recommendations that they make.”

The probation hearing was then put over for one week at which time defense counsel suggested that a proper solution for both defendants would be a nonpenitentiary hospital setting. The State argued that a penitentiary sentence should be imposed with the Department of Corrections having the option to treat the defendants at facilities available to that department. The court acknowledged that “# * * it would be apparent to anybody at the penitentiary that they are in need of mental treatment.” The court then sentenced the defendants to a 2-6 year term.

In arguing that there were sufficient facts in this record to raise a bona fide doubt of defendants’ competency to plead guilty, defendants contend that the standard governing the competency of a defendant to plead guilty differs from the standard governing competency to stand trial. In support of this contention, defendants cite Sieling v. Eyman (9th Cir. 1973), 478 F.2d 211. In Sieling the court held that a determination of competency to stand trial is inadequate to determine competency to plead guilty because it does not measure the defendant’s capacity by a high enough standard. The court went on to accept the following as a standard governing competency of a defendant to plead guilty:

“ ‘A defendant is not competent to plead guilty if a mental illness has substantially impaired his ability to make a reasoned choice among the alternatives presented to him and to understand the nature of the consequences of his plea.’ ” 478 F.2d 211, 215.

In our view, however, the standard governing the competency of a defendant to plead guilty is the same as the standard governing the competency of a defendant to stand trial. (See People v. Heral, 25 Ill.App.3d 806, 323 N.E.2d 138.) That standard is set forth in section 5 — 2—1 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—1). As to the decision of the Ninth Circuit Court of Appeals in Selling, we note that the psychiatrists appointed to examine the defendant therein were in agreement that the defendant was insane at the time of the alleged offense but were in definite conflict as to the defendant’s competency to stand trial. Thus, a substantial question as to defendant’s mental capacity was presented which is not presented herein. Secondly, we note that the court in Seiling was construing a section of the Arizona Rules of Criminal Proceedure which has since been amended to provide the trial court with much greater information on the defendant’s competency than that provided under the law under construction in Seiling. Finally, we note that the view that a different standard exists for competency to plead guilty and competency to stand trial has been specifically rejected in both the Tenth and Fifth Circuit Courts of Appeal. In Malinauskas v. United States (5th Cir. 1974), 505 F.2d 649, 654, the court stated:

“We agree with the Tenth Circuit that the test of mental competency at the time of trial or the entering of a plea in a criminal case is the same * * * Wolf v. United States (10th Cir. 1970), 430 F.2d 443 * *

In rejecting the defendant’s contention that he was not competent to plead guilty, the Supreme Court of Illinois in Withers v. People (1961), 23 Ill.2d 131, 135, 177 N.E.2d 203, 206, noted that a defendant may be competent to plead guilty even though the defendant may have certain mental or emotional disturbances. The court therein stated:

“Tire test to be applied in determining whether a defendant has tire mental capacity to stand trial is whether he understands the nature and object of the charges against him and can, in co-operation with his counsel, conduct his defense in a rational and reasonable manner. [Citations.] If the defendant does understand the nature and object of the charges against him and can, in co-operation with his counsel, conduct his defense in a rational and reasonable manner, then he is mentally competent to stand trial although upon other subjects his mind may be unsound. [Citations.]”

Furthermore, in People v. Hammond (1970), 45 Ill.2d 269, 277, 259 N.E 2d 44, 47, tire court stated:

“While a defendant may possess a sociopathic personality and suffer from psychiatric and social disturbances, these circumstances, without more, are not sufficient to raise a bona fide doubt as to his competency.”

In the instant case, the record reveals that one defendant suffered a certain emotional disturbance and the other defendant suffered mild to moderate mental retardation. Considering this as well as the representations of the defense counsel, we do not find that there existed a bona fide doubt of defendants’ competency to plead guilty. Accordingly, the trial court did not err in failing to vacate the guilty pleas and order a competency hearing. For the foregoing reasons, the judgment of the trial court is hereby affirmed.

Affirmed.

SEIDENFELD, P. J., and HALLETT, J., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dennis Kneller, Defendant-Appellant.
    (No. 73-271;
    Second District (2nd Division)
    February 14, 1975.

      Ralph Ruebner and Richard Wilson, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Martin Moltz, both of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

Appellant, Dennis Kneller, was indicted by a Winnebago County grand jury on one count of burglary, and two counts of aggravated batteiy (one by using a deadly weapon and the other by causing great bodily harm). At a bench trial, appellant was found guilty of burglary and aggravated battery while using a deadly weapon. Appellant was sentenced to 3 to 9 years’ imprisonment on the burglary conviction and 1 to 5 years’ imprisonment on the aggravated battery conviction, both sentences to run concurrently. Appellant argues on appeal that he was denied his constitutional right to a jury trial, that he was not proven guilty of burglary beyond a reasonable doubt, and that he was improperly sentenced.

At approximately 12:45 A.M. on July 13, 1973, Richard and Carol Wedekind returned to the apartment building in Rockford which they lived in and managed. Upon noticing muddy footprints at the bottom of the stairs to the basement and because a tenant had previously reported some undergarments and a T-shirt missing from the basement, they investigated.

In the basement the Wedekinds found that the locked door from the boiler room to the tool room/storage room area had been taken off its hinges. They discovered the appellant in the tool room/storage room area dressed in a woman’s two-piece bathing suit. The Wedekinds asked the appellant who he was and what he was doing there, but got no response. They walked back into the boiler room and Mr. Wedekind attempted to hold the unhinged door shut to prevent the appellant from leaving while Mrs. Wedekind went to call the police.

The appellant managed to force his way through the door, and in doing so struck Mr. Wedekind on the head with a “screw type dog stake.” In the ensuing struggle, the appellant again struck Mr. Wedekind on the head with the stake and fled. Mr. Wedekind then went upstairs, and shortly after the police arrived, he was taken to a hospital, where he received four stitches in his head.

The police discovered a bankbook and billfold, both with the name Dennis Kneller therein, and a pair of men’s undeiwear outside the building. The Wedekinds identified the appellant in court as the man they had seen in the basement.

The issues on appeal appeal are:

I. Was appellant denied his constitutional right to a jury trial?

II. Was appellant proven guilty of burglary beyond a reasonable doubt?

III. Was appellant properly sentenced?

I.

On the day of trial, appellant made a motion for waiver of jury trial as to the burglary count only. The trial court denied the motion, and then appellant made a motion for waiver of jury trial as to all three counts of the indictment. The trial court granted this motion. Appellant contended in his motion for a new trial that the trial court erred in forcing him to elect either a jury trial or a bench trial as to all three counts. He argues that since he was forced to choose in this manner, he was denied his constitutional right to a jury trial as to the aggravated battery counts.

Appellant never made a motion for severance, even though the trial judge indicated that he would have granted such a motion. Under the Criminal Code, appellant could easily have made such a motion. (Ill. Rev. Stat. 1973, ch. 38, par. 114 — 8.) The three offenses here were properly joined, pursuant to section 111 — 4(a) of the Criminal Code, which states in pertinent part: “Two or more offenses may be charged in the same indictment * * * in a separate count for each offense if the offenses charged * * * are based on the same act or 2 or more s * * acts which are part of the same comprehensive transaction.” (Ill. Rev. Stat. 1973, ch. 38, par. 38, par. 111 — 4(a).) Severance of tire counts for trial is to be granted if it appears that prejudice will result otherwise. (Ill. Rev. Stat. 1973, ch. 38, par. 114 — 8.) Tire question is within the discretion of the judge. Simply because the trial judge indicated that he would have granted a motion to severance, had one been made, does not mean that the judge found prejudice in the joinder of these offenses for trial or that it would have been an abuse of discretion to deny the motion. Defense counsel simply argued, in his motion to waive a jury trial as to the burglary count alone, that testimony adduced regarding the burglary count would be prejudicial on the aggravated battery counts. This conclusionary statement would certainly not be enough for this court to find an abuse of discretion by the trial court in denying a motion for severance if one had been made. Therefore, appellant’s argument drat he was penalized for labeling his motion incorrectly (he called it a motion for waiver of jury trial) must fall.

The main thrust of appellant’s argument, though, is that he was denied his constitutional right to a jury trial. The existence of that right is beyond doubt, but there is no constitutional right to waive a jury trial. (Singer v. United States, 380 U.S. 24, 13 L.Ed.2d 630, 85 S.Ct. 783.) In Illinois, a defendant does have a statutory right to waive a jury trial. (Ill. Rev. Stat. 1973, ch. 38, pars. 115 — 1, 103-6; People v. Spegal, 5 Ill. 2d 211, 125 N.E.2d 468.) However, as stated above, the appellant does not have a right to have offenses validly joined in an indictment severed for trial if no prejudice is found from their joinder. Also, Spegal involved a waiver of jury trial where there was only one charge against the defendant. Since the appellant had no right to separate trials on tire charges here, and reading sections 111 — 4(a), 114 — 8, and 115 — 1 of the Criminal Code together (Ill. Rev. Stat. 1973, ch. 38, pars. 111 — 4(a), 114 — 8, 115 — 1), it is seen that the appellant had to either elect or waive a jury trial as to the three charges together. Appellant chose to waive a jury trial, and from the record it is clear that he did so knowingly and intelligently in open court. Appellant was not denied his constitutional right to a juiy trial.

II.

Appellant next argues that he was not proven guilty of burglary beyond a reasonable doubt in that intent to commit a theft was not proven. “A person commits burglary when without authority he knowingly enters or without authority remains within a building s * * with intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1973, ch. 38, par. 19 — 1(a).) Insofar as is relevant here, a person commits theft when he knowingly obtains or exacts unauthorized control over property of the owner intending to permanently deprive the owner of die use or benefit of the property. (Ill. Rev. Stat. 1973, ch. 38, par. 16 — 1.) Appellant was discovered in the basement of the building by the Wedekinds wearing a two-piece bathing suit which had been in the basement. No question is raised regarding the sufficiency of proof as to the unlawful entry element of the burglary charge, but only as to the intent to commit a theft.

“Intent must ordinarily be proved circumstantially, by inferences drawn from conduct appraised in its factual environment. We are of the opinion that in the absence of inconsistent circumstances, proof of unlawful breaking and entry into a building winch contains personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary. Like other inferences, this one is grounded in human experience, which justifies the assumption that the unlawful entry was not purposeless, and, in the absence of other proof, indicates theft as the most likely purpose.” (People v. Johnson, 28 Ill.2d 441, 443, 192 N.E.2d 864.) See also People v. Polansky, 6 Ill.App.3d 773, 287 N.E.2d 747.

Appellant concedes that the above quote is an accurate statement of the law, but argues that this case involves “inconsistent circumstances.” Appellant bases this argument on the fact that he was found simply wearing the two-piece bathing suit, and when questioned as to what he was doing he merely walked away Rom the Wedekinds. We fail to see how this situation indicates anything other than that appellant was in the course of exerting that permanent, unauthorized control over the property of another which constitutes theft, further buttressing the finding of his intent to commit a theft. The evidence clearly points to appellant having burglarized the building to get some of the women’s clothing contained therein.

There was testimony given at the trial that at some prior time, women’s underwear had been reported missing from the basement. Evidence of another theft is not competent proof of the instant offense, even if it is established that appellant committed that other theft, unless it tends to prove design, motive or knowledge or places the appellant in proximity to time and place, or aids in establishing identity. (People v. Cage, 34 Ill.2d 530, 216 N.E.2d 805.) There is no indication here that the appellant was in any way involved in a prior theft of women’s underwear from tins basement. Thus, any evidence as to such is inadmissible. However, this was a bench trial, and it is presumed that the trial court disregarded all incompetent and irrelevant evidence. People v. Grabowski, 12 Ill.2d 462, 147 N.E.2d 49.

Appellant cites several cases in support of Ms argument that intent was not proven here. (People v. Soznowski, 22 Ill.2d 540; People v. Perry, 133 Ill.App.2d 230; People v. McCombs, 94 Ill.App.2d 308.) It will suffice to say that these cases are readily distinguishable on the facts, all involving circumstances inconsistent with an intent to commit a theft, as mentioned in People v. Johnson, 28 Ill.2d 441. In People v. Polansky, 6 Ill.App.3d 773, cited by appellant, a defendant in a factual situation analogous in pertinent part to the factual situation here was found guilty of both burglary and aggravated battery. Appellant was proven guilty of burglary beyond a reasonable doubt.

III.

The final argument on appeal is that the trial court erred in imposing concurrent sentences of 3 to 9 years’ imprisonment on the burglary conviction and 1 to 5 years’ imprisonment on the aggravated battery conviction. Appellant contends that these two offenses arose from the same conduct and thus he cannot be sentenced for both of them, citing People v. Lerch, 52 Ill.2d 78, People v. Cox, 53 Ill.2d 101, and section 5 — 8—4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4(a)). Lerch is not in point, as it involved a single act wMch constituted multiple offenses. Cox is not in point, as it involved two of the same kind of acts occurring almost simultaneously. Section 5 — 8— 4(a) of the Code of Corrections is of no help to appellant, as it, insofar as is relevant here, may proMbit consecutive sentences. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4(a).) Also, in Polansky, cited above, a defendant similarly situated to appellant was given two longer concurrent sentences than appellant, both of which sentences were upheld.

The law is clear that one may properly be sentenced for two offenses where the crimes are distinct and do not result from the same conduct, though the unlawful acts are closely related in time and space. (People v. Moore, 51 Ill.2d 79; People v. Harper, 50 Ill.2d 296; People v. Johnson, 44 Ill.2d 463; People v. Quinn, 23 Ill.App.3d 476; People v. Sykes, 10 Ill. App.3d 657; People v. McKinney, 126 Ill.App.2d 196.) All of these cases indicate that the burglary and aggravated battery appellant was convicted of here were distinct crimes not resulting from the same conduct.

Also, directly in point is People v. Williams, No. 44031, January Term, 1974. There the supreme court held that a defendant could not be convicted of both burglary and armed robbery because an unauthorized entry with intent to commit a theft and the actual theft by way of armed robbery constituted two offenses arising out of the same conduct. In such a case, only the conviction for the most serious of the offenses, the armed robbery conviction, could stand. However, the defendant in Williams also shot to death one of the people in the house he had entered in the course of his activities. The court held that separate convictions for armed robbery and murder were not prohibited, though the activity constituting both offenses was a series of closely related acts. The court said, at page-:

“The purpose of the entry was robbery, not murder, and that objective changed to murder only, when the robbers were confronted by Mr. Calderone with a gun in his hand. Then, they chose to commit a separate act for the purpose of killing Mr. Calderone. That shooting can be viewed as a means of removing an obstacle to their original objective of robbery, but it is also evident that at least part of their reason for killing was to avoid injury or apprehension by Mr. Calderone.”

This situation is directly akin to the case at hand where the appellant battered Mr. Wedekind as a means of avoiding apprehension by him. Appellant’s objective changed when confronted by Mr. Wedekind, just as the defendant’s objective changed in Williams. Appellant was properly sentenced on both the burglary and aggravated battery convictions.

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

Affirmed.

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


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    Frank Vitale et al., Plaintiffs-Appellants, v. James J. Dorgan et al., Defendants-Appellees.—(Tom-Jim Corporation, a/k/a T-J Corporation, Intervening Defendant and Plaintiff-Appellee, v. Frank Vitale et al., Defendants-Appellants.)
    (No. 74-158;
    Second District
    February 14, 1975.

      Richard Husted, of Elgin, for appellants.
    Biskupic & Merrill, of Oak Brook, for appellees.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The proceedings in this appeal were commenced on September 18, 1973, when Frank and Theresa Vitale (plaintiffs) filed a complaint (73LM8303) under the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1973, ch. 57, § 1 et seq.). The complaint alleged that plaintiffs leased a restaurant to a corporation, subsequently dissolved, and that James J. Dorgan and Helene A: Dorgan (defendants) wére in unlawful possession of the restaurant.

On September 24, 1973, the Tom-Jim corporation (corporation) filed a complaint (73MR15219) for declaratory judgment against the plaintiffs alleging it had a right to possession of the restaurant based upon a lease; that the lease contained an option to renew for a period of 5 years; and that the corporation had renewed the lease. The complaint requested the court to determine the rights of the partiés and the validity of the renewal notice and to enjoin plaintiffs from interfering with the corporation’s possession of the premises. •

Defendants, represented by the same attorney as the corporation, raised an affirmative defense in their answer and counterclaimed by way of a declaratory judgment action. The defense and counterclaim raised the same issues as those raised in the corporations complaint.

On October 5, 1973, the corporation petitioned to intervene in plaintiffs action. This was allowed over plaintiff’s objection. The corporation’s answer included ah affirmative defense which was the same as defendants’. In granting leave to intervene, the court ordered the corporation’s declaratory action consolidated into plaintiffs action and further ordered both suits to proceed under the number assigned to the forcible entry and detainer suit.

After hearing, the court, on March 15, 1974, entered an order holding against the plaintiffs in favor of the defendants and the corporation in the forcible entry and detainer action. The same order held against the plaintiffs and in favor of the defendants and the corporation with regárd to their respective actions for declaratory judgment. On April 11, 1974, 27 days after entry of the order, plaintiffs filed a notice of appeal.

Pending appeal, the corporation moved this court to dismiss the appeal for plaintiff’s failure to file a notice of appeal within 5 days as required by section 19 of the Forcible Entry and Detainer Act. We dismissed the forcible entry and detainer action (73LM8303) but allowed the appeal to proceed under the declaratory judgment action (73MR15219). After a review of the record and the law, we now conclude that it was improper to allow the appeal to proceed.

There is no question that plaintiffs were subject to the 5-day limitation for filing a notice of appeal from the adverse ruling on then-complaint. A question arises as to the time limit for appeal, however, because of the corporation’s declaratory judgment action having been consolidated with plaintiff’s complaint. Resolution of the question requires a determination of whether the cases were consolidated for the purpose of trial or for disposition. If the latter, the procedure for perfecting an appeal is governed by the surviving cause (Garmisa v. Garmisa, 4 Ill.App.3d 231 (1972)), in this instance, plaintiffs’ suit for forcible detainer which lawfully requires notice of appeal to be filed within 5 days. Hamilton Corp. v. Alexander, 53 Ill.2d 175, 179-80 (1972).

A court may consolidate actions whenever such consolidation can be done without prejudice to a substantial right. (Ill. Rev. Stat. 1973, ch. 110, §51.) Consolidation may take one of three forms: (1) where several cases are pending involving substantially the same subject matter, the court may stay proceedings in all but one, the decision in the others being determined by that reached in one trial, thereby avoiding multiple trials on the same issue; (2) where several cases involve an inquiry into the same event in its general aspects, the cases may be tried together, but with separate docket entries, verdicts and judgments, the consolidation being limited to a joint trial; and (3) where several actions are pending which might have been the subject of a single proceeding, the eases, by consolidation, become merged into one in which the rights of the parties are determined. (Actions consolidated in the latter manner lose their independent identity and are disposed of as one suit.) See Black Hawk Motor Transit Co. v. Illinois Commerce Com., 383 Ill. 57, 67 (1943); Lumiansky v. Tessier 213 Mass. 182, 99 N.E. 1051, 1053-54 (1912).

To determine whether the consolidation was for disposition, the test is whether the two cases might have been the subject of a single proceeding or could have been brought as one action. (Black Hawk Motor Transit Co. v. Commerce Com.; 1 Am. Jur. 2d Actions § 161 (1962).) We believe that consolidation here was for the purpose of disposition. Each case consisted of the same single issue, that being the determination of the party entitled to possession.

This conclusion is buttressed by the legislative purpose embodied in the Forcible Entry and Detainer Act. The limited appeal time required under the Act prevents unjust holding of property and assures that the rights of the parties will be promptly determined in order that the one entitled to possession may enjoy its use. To expedite the purpose, section 5 of the Act states, “No matters not germane to the distinctive purpose of the proceeding shall be introduced by joinder, counterclaim or otherwise * * Here, the corporation would not have been allowed to proceed in plaintiffs’ action if it were not for the fact that its complaint was germane to the question of possession of the premises. Had the corporation not prevailed under its suit in the trial court, it would have been compelled to file a notice of appeal within 5 days. To hold otherwise would create a procedure that would not only subvert the legislative purpose but would establish precedent for circumventing the requirements of appeal established by the Act. The same rule must also hold true for the plaintiffs.

We find that by consolidation, the corporation s declaratory judgment action was merged into the plaintiffs’ cause of action for the purpose of disposition, subjecting the proceedings to the jurisdictional 5-day limitation for appeal. Plaintiffs’ failure to file a timely notice of appeal therefore requires that this appeal be dismissed. In reaching this conclusion, it becomes unnecessary to rule on the motion taken with the case. The order allowing plaintiffs to proceed in this appeal was imprudently entered and is hereby vacated.

Appeal dismissed.

GUILD and RECHENMACHER, JJ., concur.