author: Mr. PRESIDING JUSTICE JONES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alfonso “Sonny” Hall, Defendant-Appellant.
    (No. 73-395;
    Fifth District
    February 11, 1975.

      Jeffrey H. Haas, of Chicago (Sandra Fogel, Holly Hill, and Ralph Hurvitz, of counsel), for appellant.
    Howard L. Hood, State’s Attorney, of Murphysboro, for the People.
   Mr. PRESIDING JUSTICE JONES

delivered the opinion of the court:

After a jury trial in the Circuit Court of Jackson County the defendant was convicted of the crime of murder (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 1) and sentenced to a term of imprisonment of not less than 14 nor more than 15 years.

The conviction appealed followed the second trial on the charge of murder, the first trial having ended in a hung jury. Defendant’s initial contention is that the second trial on the charge of murder was barred by article I, section 10, of the Constitution of the State of Illinois and by the fifth and fourteenth amendments to the Constitution of the United States, which provide that a person cannot be put twice in jeopardy for the same offense. The double-jeopardy issue was raised by defendant’s motion filed prior to commencement of the second trial and preserved in his post-trial motion. Attached to his motion were the affidavits of two jurors which stated “drat after twelve horns of deliberation, I along with the other jurors were deadlocked with eleven votes of guilty of manslaughter and one vote not guilty.” The motion recites that the three verdict forms given the jury in the first case were “guilty of murder,” “guilty of manslaughter” and "not guilty.” The defendant now argues that 11 jurors voted to find him guilty of voluntary manslaughter and one juror voted to find him not guilty, ergo, the jury at the first trial were in agreement that the defendant did not have the requisite state of mind to be guilty of murder, and thus defendants rights against double jeopardy were violated when he was placed on trial the second time for the murder. Defendant’s argument is novel, if not ingenious. Had defendant been convicted of voluntary manslaughter at the first trial, the verdict would have constituted an acquittal of the charge of murder. (Ill. Rev. Stat, ch. 38, par. 3 — 4(a); People v. Newman, 360 Ill. 226, 195 N.E. 645; People v. Dugan, 15 Ill.App.3d 1071, 305 N.E.2d 308.) The defendant asserts that a '“hung jury,” with no jurors voting to find the defendant guilty of murder, should also constitute an acquittal of the murder charge, but since the jury was not given a verdict form for “not guilty of murder,” the jury was unable to express its alleged conclusion. But it is also weH settled that a mistrial, declared because a jury could not reach a verdict, does not constitute an acquittal and does not bar a subsequent prosecution. (People v. Hudson, 46 Ill.2d 177, 263 N.E.2d 473; People v. Nilsson, 44 Ill.2d 244, 255 N.E.2d 432.) We are unable to find any sanction for tire novel argument and procedure defendant advances, and it cannot be approved in this case. We cannot inquire into the minds of the jurors who sat in the first case to determine their mental attitude or reasoning process, and the affidavits of two of the jurors are clearly insufficient to furnish any foundation for establishing what transpired. Neither the defendant nor the court can use the affidavits as a passage into the jury room, the deliberations of the jurors or their several mental attitudes. Even superficial consideration of the suggested procedure shows it to be an invitation to the purest form of speculation. At its best it would constitute an intrusion into the province of the jury. The only manner in which the conclusion of a jury on a verdict may be recognized is by a formal return of its verdict to the court.

Argumentively speaking, it is very possible that several of the jurors did believe that the defendant was guilty of murder but they agreed to find the defendant guilty of the lesser offense of voluntary manslaughter in a spirit of compromise to reach a verdict. Although not cited by either party, People v. Griffin (1967), 66 Cal.2d 459, 426 P.2d 507, 58 Cal. Rptr. 107, is in point. In Griffin the defendant was charged with first-degree murder. He was convicted of that offense, but the conviction was reversed by the United States Supreme Court. A second trial was held, but the jury was discharged after failing to reach a unanimous verdict, and a mistrial was declared. After the jury was discharged, the foreman disclosed in open court that 10 jurors had voted for the acquittal and two jurors had voted to find the defendant guilty of second-degree murder. The defendant was subsequently convicted of first-degree murder at a third trial. The California Supreme Court affirmed the conviction and stated:

“We may not infer from the foreman s statement that the jury had unanimously agreed to acquit of first degree murder. There is no reliable basis in fact for such an implication, for the jurors had not completed their deliberations and those voting for second degree murder may have been temporarily compromising in an effort to reach unanimity.” (66 Cal.2d 459, 464, 426 P.2d 507, 510.)

In another case where the same argument was made the Supreme Court of Arkansas reached a similar result in Walters v. State (1974), 255 Ark. 904, 503 S.W.2d 895. Also see Magee v. Superior Court of Santa Clara County (1973), 34 Cal.App.3d 201, 109 Cal. Rptr. 758.

We find the trial court properly denied defendant’s motion for dismissal of the murder charge for alleged double jeopardy.

Aside from the double-jeopardy question, the defendant urges on this appeal that (1) he was not proven guilty beyond a reasonable doubt, and (2) the court erred in failing to instruct the jury as to the offense of voluntary manslaughter.

A review of the evidence is necessary. The State presented three occurrence witnesses. The first was Wayman Abbage. His testimony was that he was a cook at Intrigue’s Kitchen, Carbondale, and was' working there during the incident in question. The defendant and several companions came in and sat at a table and were drinking. Robert Shoffner (the victim) came in a short time later and sat at the same table. The witness was seated at the table when die defendant jumped up and said to Shoffner, “You don’t never call my sister no M.F.,” pulled his gun and started shooting. The first shot by defendant hit Shoffner in the back, and Shoffner was sitting down when the shooting started. The only gun the witness saw was the one possessed by defendant, and he did not hear Shoffner threaten or say anything to defendant. On cross-examination the witness altered his testimony somewhat. He said tíiat he left the table and went into the kitchen before the shooting, and when he came back to the table the defendant was kneeling between his (defendant’s) sister and Shoffner and defendant talked to Shoffner for 5 or 6 minutes. The defendant then jumped up, got behind Shoffner, yelled, “You don’t call my sister no M.F.,” and began shooting. After Shoffner was shot, he fell while turning very slowly to his left. Shoffner had his back to defendant and did not turn around before he was shot.

The next witness called by the State was Norvell Haynes. He testified that he was present at Intrigue’s Kitchen during the incident in question, thát there was some type of argument between Shoffner and defendant, that tire defendant was standing near Shoffner’s chaff at the time and that he heard the defendant tell Shoffner, “You don’t cuss my sister.” Shoffner then got up to leave and walked toward the door. At that time the defendant shot Shoffner from behind. When he was shot Shoffner put his hands on his head and then fell to the floor, and after he fell the defendant kept firing into Shoffner.

The testimony of Haynes relative to the occurrence was at such wide variance from all other testimony on both sides of the case that it was rejected by the trial judge in passing on defendant’s motion for a directed verdict and discounted by the State.

The next occurrence witness to testify for the State was Lucinda Vincent, whose testimony was very similar to that of Abbage. She stated that Shoffner sat next to Florence Sample, defendant’s sister. Sample began talking to Shoffner in a loud voice and she told her brother, the defendant, that “Shoffner called me a M.F.” The defendant tifien walked around the table and began talking to Shoffner. The witness heard defendant tell Shoffner, “Man it is just like this, you don’t call my sister or no other woman a M.F. just like that.” The witness then left the table to go to the jukebox and did not hear the entire conversation. While she was at the jukebox the defendant jumped up, screamed, "Don’t call my sister no M.F.,” backed away from the table and shot Shoffner. The witness did not see the first shot fired but turned around immediately after hearing it. Shoffner was still sitting at the table on the edge of his chair when the witness turned around, and after tifie first shot was fired Shoffner began to move as if he were going to get up from his chair. The witness than saw defendant fire four more shots at Shoffner. The witness further testified that she did not hear Florence Sample, defendant’s sister, yell anything to the defendant just before the first shot nor did she hear Shoffner make any threats to the defendant. She had no reason to believe that Shoffner had a gun on his person.

The Jackson County Coroner testified that he was present when an autopsy was performed on the body of Shoffner. There were seven bullet wounds on Shoffner’s body, one on the side of his head, two in his left arm, two in the abdomen and two in his back. The cause of death was described as shock due to hemorrhage due to multiple gunshot wounds. The coroner did not describe the wounds on the body of deceased as either entry or exit wounds. However, a chart was introduced into evidence which showed the locations of Shoffner’s wounds. It reveals that there are two wounds on his back and only one on the front of his body. This suggests that at least one of the wounds on his back was caused by the entry of a bullet.

The defendant testified and admitted that he shot the deceased but claims that his actions were in defense of himself and of his sister Florence Sample. He stated that he went to Intrigue’s Kitchen in Carbon-dale with his sister and several friends on the evening of January 27, 1973. At that time he possessed a handgun. He had allegedly purchased the gun earlier in the evening to give to another sister, Frances, for her protection. The defendant testified that while he and his friends were seated at a table in Intrigue’s Kitchen, Shoffner entered the building and sat down at the same table. Shoffner sat next to the defendant’s sister and at the opposite end of the table from the defendant. The defendant testified that he knew Shoffner, that he was a “big bully that liked to put up more than he could take,” that he always carried a gun and that the defendant had seen Shoffner with a gun on three or four occasions.

After Shoffner joined the defendant’s group in Intrigue’s Kitchen, the defendant took two shells from his gun to get Shoffner’s opinion of them. Shoffner allegedly inspected the shells and said, “What I had wasn’t shit, and the type of gun he named I think was Super Eight I think, he said that it would blow that little shit away.” The defendant interpreted that statement to mean that the gun Shoffner had was superior to the defendant’s gun. Shoffner gave the shells back to the defendant, and the defendant put the shells back in his gun. After his conversation with Shoffner had ceased, he heard a loud noise at the other end of the table and then heard his sister say, “Would you tell Shoffner to leave me alone.” The defendant stated that he then heard Shoffner call his sister a name. The defendant claimed that he walked to the other side of the table, knelt between Shoffner and his sister and tried to quiet them down. The defendant stated that he asked Shoffner to stop calling his sister names and that Shoffner said, “Nigger, I do what I want to do,” and that he would “blow me and the bitch away if I just didn’t shut up my damn self.” When asked what he thought the latter statement meant, the defendant said, "That means going to try to kill you * * When the defendant told Shoffner that “it just ain’t going to be like that,” Shoffner allegedly said, “Nigger, with this Super Eight I got I will shoot you and go through you and kill your sister both.” The defendant testified that he then tried to leave but that Shoffner grabbed his arm and pulled him back down to the table. The defendant then hit Shoffner with the back of his free hand and started to walk toward the door. He testified that he heard his sister say, “Look out, Sonny, he’s got a gun.” He further testified that he turned around, took his gun out of his pocket, saw Shoffner starting to get out of his chair, and he, the defendant, feed one or two shots. Shoffner then went back down in his chair but stood up again. The defendant stated that it looked to him as though Shoffner had a handle of a gun in his hand and was “trying to get it out.” He then fired some more shots and left the building. The defendant further testified that, when Shoffner was getting up from his chair for the first time before any shots had been fired, he could not see Shoffner’s right hand and that it looked as though the right hand was in the location where the defendant knew that Shoffner always caried his gun. The defendant stated that, when he saw Shoffner getting out of his chair, he thought that Shoffner had intended to kill him and his sister. He based this belief on the knowledge that Shoffner had just told him that “he would blow me and the bitch away.”

On cross-examination the defendant admitted that he did not see Shoffner’s gun before the shooting and that Shoffner was not yet out of his chair when the defendant shot.

Florence Sample, the defendant’s sister, corroborated the defendant’s testimony. She testified that, after Shoffner entered Intrigue’s Kitchen on the date in question, he sat between her, the witness, and Mattie Nevels. Shoffner began “playing” with Mattie Nevels, that Nevels asked Shoffner to leave her alone and that Shoffner refused to stop. Sample stated that she then asked Shoffner to leave Mattie Nevels alone and that Shoffner started calling her, the witness, names. She further testified that when the defendant asked Shoffner to stop calling his sister names, Shoffner said, “I will blow you and the bitch away.” Sample stated that the defendant then got up to leave, that Shoffner had hit the defendant on the arm and that the defendant pushed Shoffner’s arm away, that the defendant started walking to the door, that she saw Shoffner getting up with his hand on his side and that she saw the handle of a gun. Shoffner allegedly put his hand on the handle of his gun when he was getting up, and Sample yelled to the defendant, “Watch out, Sonny, he has got a gun.” Sample stated that she then heard a shot and closed her eyes and that when she opened her eyes Shoffner was on the floor, and she and the defendant then left.

Mattie Nevels testified for the defendant. She was at the table with the defendant and his companions on the date in question. She stated that Shoffner entered the building, sat down next to her at the table and began “meddling” with her. Nevels testified that Florence Sample told Shoffner to leave her, Nevels, alone. Shoffner then began calling Sample names. Nevels stated that the defendant then walked over to Shoffner and squatted down beside him, but Nevels did not hear what was said or pay any attention to what was happening. She stated that the next thing she remembered was hearing a shot. She said that she did not see who fired the shot and that the next thing she saw was the defendant and his sister going out the door.

Donald Green also testified for the defendant. He knew nothing about the shooting in question. Green testified about an incident in the summer of 1971 in which Shoffner allegedly pulled a gun on the defendant. The testimony was offered merely as proof the defendant knew Shoffner carried a gun.

Two other witnesses were called by defendant who testified that Shoffner had a reputation as a bully, difficult to get along with, and he carried a gun.

The defendant was charged with murder in that he, “without lawful justification and with the intent to kill or do great bodily harm to Robert Shoffner, a male person, did shoot Robert Shoffner with a pistol, thereby causing the death of Robert Shoffner.”

The defendant argues that he was not proven guilty beyond a reasonable doubt of either murder or voluntary manslaughter, because his actions constituted a justifiable use of force.

Section 7 — 1 of the Criminal Code (Ill. Rev. Stat, ch. 38, par. 7 — 1) provides:

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

The defendant cites People v. Halley, 13 Ill.App.3d 719, 300 N.E.2d 645, for the proposition that, once the affirmative defense of self-defense is interposed, the burden of proving guilt beyond a reasonable doubt as to that issue is on the State. (See also People v. Brown, 19 Ill.App.3d 757, 312 N.E.2d 789.) However, the issue of self-defense presents a question of fact. (People v. Washington, 27 Ill.2d 104, 187 N.E.2d 739; People v. Brown; People v. Dillard, 5 Ill.App.3d 896, 284 N.E.2d 490.) In People v. Halley, this court stated:

“The issue of self-defense is a question of fact for a jury under proper instructions, and a jury’s decision on that issue will not be disturbed unless the evidence is so unreasonable, improbable or unsatisfactory as to suggest a reasonable doubt.” (13 Ill.App.3d 719, 722-23.)

In the instant case, the testimony of the State’s eyewitnesses and of those called by the defense is in sharp contrast. In such a case, it is the jury’s province to determine the credibility of the witnesses and the weight to be given to the testimony. (People v. Zuniga, 53 Ill.2d 550, 293 N.E.2d 595.) In the case at bar, there was sufficient evidence from which the jury could have determined beyond a reasonable doubt that the defendant was not justified in shooting Shoffner.

The only evidence supporting the defendant’s theory of self-defense is the testimony of the defendant and of his sister, Florence Sample. Both of these witnesses must be considered “interested parties,” and doubtless the jury considered that fact in determining the weight to be given their testimony. The testimony of the defendant and his sister that is relevant to the defense of self-defense is contradicted by other evidence. According to the defendant and Sample, Sample yelled, “Look out Sonny, he’s got a gun,” as the defendant was walking away from the table. None of the four occurrence witnesses, however, testified that they heard Sample yell to the defendant. Abbage and Vincent testified that the defendant did not turn his back on Shoffner but that he moved behind Shoffner and then shot him. Also, the defendant’s theory of self-defense is weakened by the fact that there was no testimony that a weapon was ever found on Shoffner’s person or in the vicinity of where he fell.

People’s Exhibit No. 1, the chart prepared by Dr. Rossiter which showed the locations of Shoffner’s wounds, may also be deemed contradictory of the defendant’s theory of self-defense. The chart suggests that at least one of Shoffner’s wounds was caused by a bullet entering the back.

After a review of all the evidence bearing upon the defense of self-defense, we must conclude that it is not so unreasonable, improbable or unsatisfactory as to suggest a reasonable doubt, and we will not disturb the jury’s verdict on that issue.

The defendant’s final contention is that the court erred in failing to instruct the jury as to the offense of involuntary manslaughter as defined in section 9 — 2(a) of the Criminal Code (Ill. Rev. Stat., ch. 38, par. 9 — 2 (a) ) (provocation).

The court did accept People’s Instruction No. 8 (IPI— Criminal No. 7.05) which defined the offense of voluntary manslaughter as set out in section 9 — 2(b) of the Criminal Code (Ill. Rev. Stat., ch. 38, par. 9 — 2 (b) ) (belief of justification). The defendant did not object to that instruction concerning voluntary manslaughter as defined in section 9 — 2(a). The appropriate instruction would have been IPI — Criminal No. 7.03. The defendant claims that the court should have given the instruction even though it was not tendered. The defendant cites People v. Taylor, 36 Ill.2d 483, 224 N.E.2d 266, for the proposition that * * if there is any evidence in the record which, if believed by the jury, would reduce a charge of murder to manslaughter, an instruction defining that crime should be given, [citations.]’

A reviewing court will not weigh the evidénce upon a question of whether an instruction is proper on a certain theory, and veiy slight evidence upon a certain theory of the case will justify the giving of an instruction. (People v. Kalpak, 10 Ill.2d 411, 140 N.E.2d 726; People v. Kucala, 7 Ill.App.3d 1029, 288 N.E.2d 622; People v. Hyde, 97 Ill.App.2d 43, 239 N.E.2d 466.) There was some testimony in the case at bar suggesting that Shoffner may have provoked the defendant. Thus, IPI— Criminal No. 7.03 should have been given if it was tendered.

The defendant has cited a few cases from other jurisdictions for the proposition that the court has a duty to give a manslaughter instruction sua sponte if a finding of that crime could be made. When the evidence in a murder case would support a verdict of manslaughter and the defendant does not request a manslaughter instruction, the giving of such an instruction is committed to the discretion of the trial judge. (People v. Taylor; People v. Mitchell, 12 Ill.App.3d 960, 299 N.E.2d 472; People v. Meeks, 11 Ill.App.3d 973, 297 N.E.2d 705.) It is well established in Illinois, however, that the trial court is under no duty to give instructions not requested by counsel. People v. Springs, 51 Ill.2d 418, 283 N.E.2d 225; People v. Smith, 20 Ill.App.3d 756, 314 N.E.2d 543; People v. Barber, 20 Ill.App.3d 977, 313 N.E.2d 491.

The defendant relies upon People v. Joyner, 50 Ill.2d 302, 278 N.E.2d 756, for the proposition that, under certain circumstances, the court must give a manslaughter instruction sua sponte. In Joyner the evidence was sufficient to justify the giving of a voluntary manslaughter instruction. The defendant did tender such an instruction, but it was refused because it was not in conformance with IPI — Criminal No. 7.05. No instruction on voluntary manslaughter was given. The supreme court reversed the murder conviction because the evidence established a very close case as to whether the defendant was guilty of murder, guilty of voluntary manslaughter or not guilty, and it was therefore crucial that the jury be fuUy and properly instructed. The defendant alleges that the instant case is simfiar to Joyner because, just as the defendant in Joyner had expressed a desire to have the jury instructed on voluntary manslaughter, the defendant in the case at bar expressed a desire to have IPI — Criminal No. 7.03 given by tendering that instruction in the first trial. The defendant argues that, since No. 7.03 was tendered and refused at the first trial, his failure to tender it at the second trial should not be deemed to have waived the issue on appeal. The defendant’s contention is without merit, however, since the record does not establish that IPI — Criminal No. 7.03 (manslaughter-provocation) was refused at the first trial. The defendant’s contention is also without merit because this court does not know what evidence was introduced at the first trial. Perhaps there was no evidence warranting IPI — Criminal No. 7.03. Under such circumstances, a refusal by the trial court of No. 7.03 at the first trial would not justify defense counsel’s belief that tendering the instruction at the second trial would be useless.

The issue raised on the Joyner case is also without merit because the evidence, while it may justify the giving of a manslaughter-provocation instruction, does not present a close question on manslaughter-provocation. Generally, no words or gestures, however provoking or insulting, can amount to considerable provocation which will reduce the crime to manslaughter. (People v. Washington; People v. Thompson, 11 Ill.App.3d 752, 297 N.E.2d 592.) In the case at bar, there is little evidence other than the words allegedly spoken by Shoffner that is relevant to the issue of provocation.

In People v. Mitchell, 12 Ill.App.3d 960, 299 N.E.2d 472, the court held that Joyner did not overrule the holding in People v. Taylor and that a trial court need not give a voluntary manslaughter instruction sua sponte. Joyner was interpreted so as to apply only in a case which is a “close case factually.” (See also People v. Meeks, 11 Ill.App.3d 973, 297 N.E.2d 705.) In People v. Rooney, 16 Ill.App.3d 901, 307 N.E.2d 216, this court affirmed a murder conviction. In rejecting an argument that the trial court should have instructed the jury on the offense of voluntary manslaughter sua sponte, this court stated:

“Tt may be that more accurate results would be obtained if the trial judge was required to instinct as to both the greater and the lesser offenses whenever the evidence would sustain either verdict, and in some jurisdictions such a requirement has been imposed by statute or by decision. * * * But we are not sufficiently persuaded that we are willing to eliminate by judicial decision an established procedure that has long been considered to operate for the benefit of those accused of crime. We therefore adhere to our present procedure and hold that the trial judge did not err in failing to give a manslaughter instruction on his own initiative.’ ” 16 Ill.App.3d 901, 905, 906.

For the foregoing reasons the judgment of the trial court is affirmed.

Affirmed.

G. MORAN and KARNS, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE KARNS

license: Public Domain

text:
      In re Estate of Edward John Buehnemann, Deceased—(Velma Buehnemann, Petitioner-Appellee, v. Alice L. Rhodes et al., Administrators-Appellants.)
    (No. 74-163;
    Fifth District
    February 19, 1975.

      Earl L. Vuagniaux, of Edwardsville, for appellants.
    Gerald J. McGivem, of Wiseman, Shaikewitz, McGivern, Bacus & Wahl, of Alton, for appellee.
   Mr. JUSTICE KARNS

delivered the opinion of the court:

This is an appeal from the judgment of the Circuit Court of Madison County awarding petitioner-appellee, Velma Buehnemann, $5,000 as the surviving spouse of Edward John Buehnemann, pursuant to the Probate Act (Ill. Rev. Stat. 1973, ch. 3, par. 178).

Alice Rhodes and Albert Buehnemann, appellants in this cause, were appointed co-administrators of his estate. Appellee filed her petition for a surviving spouse’s award. Appellants served notice of taking of petitioner’s deposition. Petitioner filed a motion to strike the notice or, in the alternative, for a protective order on the grounds that the circumstances of the death of John Buehnemann were under investigation by Madison County law enforcement agencies and invoked her rights under the fifth and fourteenth amendments to the Constitution of the United States. Petitioner alleged that she sought only the minimum award of $5,000. Appellants filed a motion to dismiss the petition for surviving-spouse award-for failure to comply with the notice of deposition and filed affirmative defenses to the petition, namely that petitioner “maliciously and feloniously stabbed the decedent, Edward John Buehnemann, thereby causing his death,” and that the matter would be presented to the Madison County Grand Jury.

A hearing was held on all pending motions on February 14, 1974, before the Honorable Merlin G. Hiscott. Arguments of counsel were heard, but no evidence was taken. Petitioner stated of record that she would honor the deposition notice but would refuse to answer questions. On that basis, the court found it unnecessary to rule on the motion to strike or for a protective order. The court further ruled that absent conviction for murder or voluntary manslaughter, petitioner was entitled to the statutory minimum' award of $5,000, thus negating the need for evidence. The motion to dismiss was denied, and the award was granted. The court asked that a written order be submitted, and the docket entries show “agreed order to be submitted.” Appellants now reject the “agreed order” which stated concisely that which had been decided at the hearing, but which contained a provision for the disposition of real and personal property stating that petitioner relinquished possession of the property “consistent with the homestead rights in said property.”

At the outset, it should be noted that there is no evidence before this court of any wrongdoing on the part of petitioner in the circumstances surrounding the death of her husband. Counsel for appellants admitted at oral argument that the ease had never been submitted to the grand jury. Thus, petitioner has never been charged with murder, let alone convicted. Section 178 of the Probate Act (Ill. Rev. Stat. 1973, ch. 3, par. 178) makes the minimum surviving spouse’s award automatic. The right to the award is qualified by sections 182 and 15(a). Section 182 provides that a provision in a testator’s will specifying that the will is in lieu of the award extinguishes it where the spouse does not renounce the will. Section 15(a) states that one “convicted of the murder” of the decedent cannot acquire any interest in the estate. The spouse may, of course, waive her right to the award. The case at bar involves only section 15(a).

Some explanation of the history of section 15(a) appears in order. In 1914, the supreme court, in Wall v. Pfanschmidt, 265 Ill. 180, 106 N.E. 785, held that the Probate Act superseded the common law. The statute did not contain a “murdered ancestor” provision. The court held that in the absence of a statute forbidding such inheritance, no restriction could be read into the statute from common-law principles. The statute was amended in 1939 to include a precursor of the present section 15(a) (Ill. Rev. Stat. 1939, ch. 3, par. 167.) This amendment did not codify or revive all common-law equity principles affecting inheritances, but specifically added a bar for those convicted of murder. (Bradley v. Fox, 7 Ill.2d 106, 129 N.E.2d 699 (1955); Seipel v. State Employees’ Retirement System, 8 Ill.App.3d 182, 289 N.E.2d 288 (1972); Wilson v. Board of Trustees, 108 Ill.App.2d 210, 246 N.E.2d 701 (1969).) Appellants place unfounded reliance on Illinois Bankers Life Association v. Collins, 341 Ill. 548, 173 N.E. 465 (1930). There, the question was to whom should be paid benefits of an insurance policy on the life of a woman “murdered” by her husband, who “shortly thereafter” took his own life. Appellants cite this case as authority that inheritance may be barred even without conviction. The court held that the life insurance policy, as with all contracts, included in its terms all requirements of existing law and public policy, including the maxim that a wrongdoer should not profit by his transgression. The court, however, specifically distinguished the Probate Act, which at that time was unamended and interpreted by the Wall decision as allowing murderers to inherit. The subsequent amendment to the Probate Act renders the distinction no less compelling. We will not enlarge upon the terms of the statute where they are clear and unambiguous. Droste v. Kerner, 34 Ill.2d 495, 217 N.E.2d 73 (1966); Carnahan v. McKinley, 80 Ill.App.2d 318, 224 N.E.2d 297 (1967).

Appellants ask us to apply tire “clean hands” doctrine, to hold that one under suspicion of foul play should be forced to litigate his innocence or guilt in the probate court. This we cannot do. The statute is specific. The only requirements placed on the widow are that she be surviving and a spouse. This was uncontroverted by appellants.

Appellants’ lengthy arguments about the force of the common law and public policy that “no man may profit by his own wrongdoing” miscomprehend the basic tenet of criminal law that a person is presumed innocent until proven guilty in a court of law pursuant to constitutional and statutory process. Civil “murder” does not exist and did not exist under common law. “Murder” under the law is both a term of art and a legal conclusion. Were die statute to read “no murderer” shall inherit, the situation would be the same. But the legislature left no doubt as to its intention. Only the conviction of murder (and perhaps, without deciding, voluntary manslaughter) would deprive the widow of her award. Appellants seem to imply that were they allowed to put on evidence in the trial court, they could have proved that murder was committed. But even assuming that irrefutable evidence existed, appellants could not, in the circuit court in a probate matter, have met the statutory requirement for deprivation of the award. To allow the attachment of the label “murderer” to a citizen in an equitable action devoid of established criminal process, even without tire resulting imposition of criminal penalties, would be a gross deviation from our heritage. If petitioner be a wrongdoer, the responsibility of citizens with evidence of such transgression is to set the process of criminal prosecution in motion, not to subvert it. Even were the Probate Act ambiguous, we could not countenance a policy of civil trials of such serious charges. As we have noted, however, the Act is not unclear.

Appellants also contend that tire reference to homestead rights in the order of the trial court was error. That question is not before us. The court said nothing which is not both logical and the law. It did not set forth what homestead rights rested in the petitioner or when or how they could be enforced. Nothing with regard to the widow’s homestead rights has been decided.

Since, as we have noted, the minimum award under the Probate Act is automatic and nondiscretionary, the court was not required to hear evidence. Appellants’ claim that the court should have dismissed the petition for failure to honor the notice of deposition is untenable. The only facts necessary or admissible here were those required to prove that petitioner was a surviving spouse. These facts were admitted by appellants. No other facts were relevant. While petitioner’s refusal to submit to questioning might have bearing on some other action, it has none here. Petitioner was not required to furnish information for a suit not yet filed.

For the foregoing reasons, the judgment of the Circuit Court of Madison County is affirmed.

Affirmed.

EBERSPACHER and G. MORAN, JJ., concur.


author: Mr. JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thadeus C. Davis, Defendant-Appellant.
    (No. 73-391;
    Fifth District
    February 19, 1975.

      Robert Farrell, of Mt. Vernon, and James Streicker, of Chicago, both of State Appellate Defender’s Office, for appellant.
    William J. Scott, Attorney General, of Springfield, and Walter E. Moehle, State’s Attorney, of Nashville (James B. Zagel and Roger L. Longtin, Assistant Attorneys General, of counsel), for the People.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

On September 25, 1973, appellant Davis pled guilty before the Washington County Circuit Court to aggravated kidnapping and armed robbery as charged in one indictment, to the same two offenses as charged in a second indictment, and to kidnapping as charged in a third indictment. He was sentenced to not less than 6% nor more than 19% years on each charge of aggravated kidnapping, not less than 6% nor more than 19% years on each charge of armed robbery, and not less than 3 nor more than 9 years for kidnapping, the sentences to run concurrently.

Appellant raises three issues for review:

... 1. Whether the trial court erred in accepting the appellant’s guilty pleas when, the appellant previously had been found unfit to stand trial and no subsequent judicial determination was ever . made that appellant had become fit to stand trial.prior to entering such pleas.
1 2. Whether the trial court failed to comply with Supreme Court ' Rule 402(a)(1) (111. Rev. Stat., ch. 110A, par. 402(a)(1)) by failing to address appeHant in open court to inform him of and to determine if he understood the nature of the charges brought against him prior to accepting the appeHant’s pleas of guilty.
3. Whether the convictions for armed robbery must be vacated on the ground that appeUant’s convictions for aggravated kidnapping and armed robbery arose from the same conduct.

In view of our holding with regard to the first issue, we need not consider the second and third issues presented by the appeHant.

On May 1, 1973, appellant appeared with counsel for arraignment. Prior to and subsequent to the arraignment, but before September 25, 1973, when the appellant entered his pleas of guilty, he was examined by two psychiatrists, one chosen by the appeHant’s counsel and one chosen by the State’s attorney. The psychiatrist examining the appellant at the appellant’s attorney’s request recommended that the appellant be committed to a mental institution for a period of observation in order to prevent a serious miscarriage of justice. The psychiatrist examining the appellant at the State’s Attorney’s request found the appeHant to be mentaHy fit to stand trial. As a result of such conflicting reports by the psychiatrists, the trial court on May 21, 1973, conducted a competency hearing pursuant to sections 5 — 2—1 and 5 — 2—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch, 38, pars. 1005 — 2—1, 1005 — 2—2). The two psychiatrists’ reports were admitted as evidence, and the trail court found the appellant unfit to stand trial. It is instructive to note the trial court’s specific order in this regard:

“* * * That defendant is in fact presently unfit to stand trial. Defendant is remanded to Illinois Security Hospital at Menard, Illinois.
It is further ordered that hearing be conducted in accordance with and within the time period provided in the Mental Health Code of 1967 and that upon discharge the said defendant be returned to the custody of the Sheriff of Washington County, Illinois, for further proceedings.”

On arrival at the Illinois Security Hospital, the appellant was examined by a staff psychiatrist who found the appellant not to be in need of hospitalization or treatment and “fit to stand trial.” His report of May 23, 1973, states the following conclusion:

“IMPRESSIONS AND RECOMMENDATIONS:
It is my professional judgment that this person is not in need of hospitalization or treatment. He understands the nature of the charge and he can cooperate with counsel. This person is fit to stand trial.”

He recommended that the appellant “be returned to the Washington County authorities as soon as possible to stand trial on his charges.”

The record before us shows that appellant was not “returned” to the Washington County Circuit Court from the Illinois Security Hospital. Instead, it appears that he was “released” to the U. S. Marshal, East St. Louis,' Illinois, with regard to Federal charges unrelated to this case. At this point, the record before us becomes somewhat clouded.

A civil commitment hearing was conducted on June 6, 1973, before the Randolph County Circuit Court with regard to appellant- Davis, pursuant to a petition for hospitalization filed by the assistant superintendent of the Illinois Security Hospital. At such hearing it appears that the staff psychiatrist’s report of May 23, 1973, was introduced in evidence. Two other psychiatrists reported to the Randolph County Circuit Court that they had personally examined the appellant and “found him not in need of mental treatment.” They further recommended that the appellant not be hospitalized, but be “returned to court for trial * * * [as] # * * provided by the statute.” On June 6, 1973, on the basis of the three psychiatric reports, the Randolph County Circuit Court found that appellant was not in need of mental treatment and further found that “the patient is legally competent.”

On September 25, 1973, the defendant again appeared before the Washington County Circuit Court and entered his pleas of guilty to the charges upon which the convictions were based. The record indicates that at no time did the trial court make reference to its earlier determination on May 21, 1973, that the appellant was unfit to stand trial, nor was there any hearing before the Washington County Circuit Court between May 21, 1973, and September 25, 1973, to determine whether the appellant had become fit to stand trial since May 21, 1973. In other words, while the appellant’s unfitness to stand trial had been judicially determined by the trial court on May 21, 1973, the same trial court did not judicially determine that the appellant was fit to stand trial on September 25, 1973, or to enter his pleas of guilty on that date.

The problems in this case focus upon sections 5 — 2—1(a) and 5 — 2— 1(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch, 38, pars. 1005 — 2—1(a), 1005 — 2—1(c)). Section 5 — 2—1(a) states specifically:

“» # * [a] defendant is unfit to stand trial or be sentenced if, because of a mental or physical condition, he is unable:
(1) to understand the nature and purpose of the proceedings against him; or
(2) to assist in his defense.”

Section 5 — 2—1(c) states:

“When a bona fide doubt of the defendant’s fitness to stand trial or be sentenced is raised, the court shall order that a determination of that question be made before further proceedings.”

It is clear in this case that the trial court below, after arraignment, believed that there was a bona fide doubt of the appellant’s fitness to stand trial or be sentenced, and accordingly did order a fitness hearing on May 21, 1973. Indeed, the trial court below found that the defendant was on May 21, 1973, unfit to stánd trial.

Once a court finds a defendant unfit to stand trial or be sentenced, certain specific procedures come into immediate effect. Section 5 — 2—2 (a) (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—2(a)) states:

“If the defendant is found unfit to stand trial or be sentenced, the court shall remand the defendant to a hospital, as defined by the Mental Health Code of 1967, and shall order that a hearing be conducted in accordance with the procedures, and within tire time periods, specified in such Act. The disposition of defendant pursuant to such hearing, and the admission, detention, care, treatment and discharge of any such defendant found to be in need of mental treatment, shall be determined in accordance with such Act. If the defendant is not ordered hospitalized in such hearing, the Department of Mental Health shall petition the trial court to release the defendant on bail or recognizance, under such conditions as the court finds appropriate, which may include, but need not be limited to requiring the defendant to submit to or to secure treatment for his mental condition.”

We note at the outset that section 5 — 2—2(a) is the only provision covering a situation in which (1) a defendant is judicially found to be unfit to stand trial or be sentenced, (2) the trial court making the determination of unfitness has remanded the defendant to a hospital and a civil commitment hearing is ordered pursuant to the Mental Health Code of 1967, and (3) at such civil commitment hearing, it is determined that the defendant is not in need of mental treatment and is not ordered to be hospitalized. The express language of section 5 — 2—2(a) states merely that the consequence of such a situation or sequence of events is simply that the Department of Mental Health shall petition the trial court to release the defendant on bail or recognizance under conditions as the court finds appropriate, and such conditions may include requiring the defendant to submit to or secure treatment for his mental condition. The implication of the express language of section 5 — 2—2(a) is, of course, that under such circumstances or sequence, the defendant will be brought to trial; otherwise the Department of Mental Health would not be required to petition the trial court to release the defendant on bail or recognizance.

The appellant argues, in essence, that since he was judicially determined to be unfit to gtand trial or be sentenced on May 21, 1973, he could not stand trial or be sentenced (enter his plea) on September 25, 1973, because he had never been judicially determined to be fit to stand trial or be sentenced after May 23, 1973. We agree.

A fundamental principle of our law is that a defendant in a criminal case must be fit to stand trial or be sentenced; otherwise, he shall not stand trial or be sentenced. Illinois law has expressed this principle by statute since 1827:

“A person that becomes lunatic or insane after the commission of a crime or misdemeanor, ought not to be tried for the offence during the continuance of the lunacy or insanity. If after verdict of guilty and before judgment pronounced, such person become lunatic or insane, then no judgment shall be given while such lunacy or insanity shall continue. And if after judgment, and before the execution of the sentence, such person become lunatic or insane, then in case the punishment be capital, the execution thereof shall be stayed until the recovery of said person from the insanity or lunacy. In all these cases, it shall be the duty of the court to empannel a jury to try the question whether the accused . be, at .the time of such empannelling, insane or lunatic.” (Revised Code of Laws of Illinois 1827, Criminal Code § 12, at 125-26.)

The evolution of our law has caused a change in terminology. The 1827 statute quoted above employed the words “lunacy” and “insanity” in describing the mental condition of a defendant which would prohibit the defendant from standing trial, being sentenced, or even being executed. Over the years, the word “lunacy” grew unfashionable; arid the word “insanity” took on a complex medical as well as legal connotation. By 1963, the words “lunacy” and “insanity” were replaced with the word “incompetency”, to describe that condition of a defendant, mental of physical, which, if judicially determined, would prohibit the defendant from standing trial or being sentenced. (Ill. Rev. Stat. 1963, ch. 38, par. 104 — 2.) The-word “incompetency” was believed to be a better word than “insanity” for expressing the condition, mental or physical, which caused the defendant to be unable to understand the nature and purpose of the proceedings against him or to be able to assist in his defense. Moreover, the word “incompetency” was substituted in the 1963 statute to avoid confusion with “insanity,” a term more readily associated and applied to the time an offense was committed.

By 1973, however, the legislature again made a substitution, and in sections 5 — 2—1 and 5 — 2—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, pars. 1005 — 2—1 and 1005 — 2—2) substituted the word “fitness” for the earlier word “competence.” According to the Council Commentary to section 5 — 2—1, the change in terminology from “competence” to “fitness” to stand trial was based upon a concern “to avoid confusion as prompted the earlier change from ‘insanity’ to ‘competence of stand trial.’” Moreover, the Council Commentary states:

“Fitness speaks only to a person’s ability to function within the context of a trial, whereas the term ‘competence’ is a mental health term dealing with whether an individual should be committed to an institution or not, and excludes consideration of physical fitness.” Ill. Ann. Stat. ch. 38, § 1005 — 2—1, Council Commentary, at 220 (Smith-Hurd 1973).

Regardless of whether the terminology is “lunacy,” “insanity,” “incompetency,” or “unfitness,” the fact remains that if the trial court determines that the defendant, because of a mental or physical condition, is unable to (1) understand the nature and purpose of the proceedings against him, or (2) assist in his defense, the defendant cannot stand trial or be sentenced. These conditions, once judicially determined, are not undetermined by the passage of approximately 4 months (May 23, 1973, to September 25, 1973), nor can such a judicial determination be overruled by a psychiatrist’s report or finding in a civil commitment hearing that the defendant does not need mental treatment or hospitalization.

In People v. Johnson, 15 Ill.App.3d 680, 304 N.E.2d 688, the court considered the question of whether a defendant, judicially determined to be an incompetent under section 104 — 1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 104 — 1) could 5 months later “waive” a jury trial. The court held that he could not. In tire Johnson case, the court cited People v. Santoro, 13 Ill.App.3d 426, 301 N.E.2d 175, for the proposition that the question of “competency to stand trial” is a jurisdictional issue and cannot be waived.

The transcript of the sentencing proceeding of September 25, 1973, reveals that die trial court did not hold a new hearing to determine whether the appellant was fit to stand trial or be sentenced prior to accepting his pleas of guilty and sentencing him on that date. It is not clear from the record whether the trial court on September 25, 1973, had considered the Illinois Security Hospital psychiatrist’s report finding the appellant “fit for trial,” or whether the trial court considered the order of the Circuit Court of Randolph County in the civil commitment hearing with regard to finding that the appellant did not need mental treatment or hospitalization and was “competent.” The purpose of the civil commitment hearing under the Mental Health Code of 1967 is not to determine whether the respondent is fit to stand trial or be sentenced, but to determine whether he requires mental treatment or hospitalization. Indeed, under section 5 — 2—2(b), a defendant found unfit to stand trial or be sentenced, and who does not require hospitalization, during the period of his unfitness, be released on bail or recognizance:

"(b) * * * If the court finds that defendant continues to be unfit to stand trial or be sentenced but that he no longer requires hospitalization, the defendant shall be released under paragraph (a) of this Section on bail or recognizance. * * *” Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—2(b).

Once there is a judicial determination that a defendant in a criminal case is unfit to stand trial or be sentenced, such determination cannot be reversed without another judicial determination that the defendant is fit to stand trial or be sentenced. It is the trial court or a jury (in the event tire question of fitness is raised prior to the commencement of the trial) that makes this determination after a hearing:

"(d) When the question of the defendant’s fitness to stand trial is raised prior to the commencement of trial, the question shall be determined by the court, or by a jury. The defendant or the State may request a jury or the judge may on his own motion order a jury. When the question is raised after commencement of the trial, the question shall be determined by the court.” (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—1(d).)

Obviously, there is a presumption that the defendant is fit to stand trial or be sentenced unless the question is raised by the defendant himself, by the State, or by the court. However, we note that once the question is raised, the court or jury, as the case may be, can make a determination either that the defendant is fit or unfit to stand trial or be sentenced. It should be emphasized also that such a determination is made after a hearing which is subject to the rules of evidence, and the burden of proof of unfitness rests upon the defendant, if the defendant has raised the question, and upon the State if the State or court has raised the question. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 2—1(e) through (j).) It would be absurd to impose formal evidentiary and procedural requirements and safeguards upon the initial judicial determination that a defendant is or is not fit to stand trial or be sentenced, and then (assuming the defendant has been found to be unfit at such a formal proceeding) permit an informal determination that the defendant has been "restored” to fitness to stand trial or be sentenced. Section 5 — 2—-2(b) contemplates a new hearing on the question of the defendant’s restoration to fitness:

"(b) * * * If the court finds that defendant continues to be unfit to stand trial or be sentenced but that he no longer requires hospitalization, the defendant shaU be released under paragraph (a) of this Section on bail or recognizance. Either the State or the defendant may at any time petition the court for review of the defendant’s fitness.” (Emphasis added.)

Under the Council Commentary it is stated:

“Subparagraph b [section 5 — 2—2(b)] provides for a review of the issue of continued commitment in open court at stated intervals, with the power in the State’s Attorney or defendant to petition at other times. This expands and clarifies former law which required a review only when reasonable grounds exist to believe that an incompetent is now competent.’” (Ill. Ann. Stat. ch. 38, § 1005 — 2—2, Council Commentary, at 258 (Smith-Hurd 1973).)

Section 5 — 2—2(b) and the Council Commentary thereon certainly imply that the court may entertain a petition to determine whether the defendant, having been judiciaHy determined by the court previously to be unfit, has now been restored to fitness to stand trial or be sentenced.

We note that the appellant also assigned error on the ground that the trial court failed to comply with Supreme Court Rule 402(a)(1) (Ill. Rev. Stat., ch. 110A, par. 402(a)(1)) in accepting his pleas of guilty without first addressing him personally in open court and informing him of and determining that he understands the nature of the charges brought against him. As set forth above, in view of our determination that it was a fundamental error to accept the appeHant’s guilty pleas when the appellant had been found unfit to stand trial and no subsequent determination was ever made that the appellant had become fit to stand trial prior to his entering such pleas, we believe there is no necessity to make a ruling on the question of substantial compliance with Supreme Court Rule 402(a)(1). However, we note in passing how very relevant Supreme Court Rule 402(a)(1) becomes in a situation like the instant case. Under section 5 — 2—1, unfitness to stand trial or be sentenced, whether occasioned by a mental or physical condition, is defined as the defendant being unable to understand the nature and the purpose of the proceedings against him or to assist in his defense. Supreme Court Rule 402(a) (1) mandates that the trial court determine (in a case where defendant’s fitness to stand trial or be sentenced has not been raised) that the defendant understands the nature of the charges against him In this case there could be no substantial compliance with Rule 402(a)(1) in any event, regardless of the admonishments to the appellant with regard to the nature of the charge, unless and until the trial court judidaily determined that the appellant, having previously been judidally determined to be unfit to stand trial or be sentenced, had subsequently been restored to fitness to stand trial or be sentenced.

For the foregoing reasons, the judgment of the trial court is reversed, and this cause is remanded for proceedings consistent with this opinion.

Reversed and remanded.

EBERSPACHER and CARTER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James F. Vaughn, Defendant-Appellant.
    (No. 73-97;
    Fifth District
    February 20, 1975.

      Stephen P. Hurley and Michael J. Rosborough, both of State Appellate Defenders Office, of Mt. Vernon, for appellant.
    John H. Ward, State’s Attorney, of Taylorville (Bruce D. Irish and Raymond F. Buckley, Jr., both of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. JUSTICE KARNS

delivered the opinion of the court:

James F. Vaughn was convicted of murder after a jury trial in the Circuit Court of Christian County and was sentenced to the penitentiary for a term of 40 to 80 years. Two other defendants, John D. Enippenberg and John M. Burton, indicted with defendant for the same offense, were in separate trials convicted and sentenced, respectively, to terms of 30 to 60 and 22 to 50 years. On this appeal, defendant contends that he was not proven guilty beyond a reasonable doubt because of weak identification evidence and that the trial court erred in failing to sequester the jury. In addition, he contends that his sentence was excessive in view of the lesser sentences given to his two codefendants.

The offense occurred in Taylorville on April 22, 1972, at about 9:35 A.M. In an attempted robbery of a jewelry store the owner was shot and killed. Two men were seen leaving the store, running to a nearby parking lot where a third man picked them up in a car and sped away. The State presented four eye-witnesses who positively identified the defendant as one of the two men who left the store immediately after the shooting.

A mailman who had just delivered mail to the store saw the two men enter. He heard a “pop” while they were in the store and saw them leave. The mailman described the men to police and positively identified the defendant at trial as one of the two. A second witness was in a barber shop across the street. He also saw the two men enter. When they left, the owner of the store stumbled out, bleeding and holding his stomach. The witness chased the men, saw them enter a car, and noted the color and license number of the car. He also identified the defendant. Two other occurrence witnesses identified the defendant and gave police an accurate description of the car and its license number.

Two witnesses from an auto dealership testified that defendant had rented the car used in the robbery and identified by the eyewitnesses.

Friends of the three suspects, Gene Beaty and Beaty’s wife, testified that they had loaned defendant the clothes identified by the witnesses and had provided defendant with false identification papers after the robbery. Beaty testified that defendants Burton and Knippenberg had discussed the robbery with him and that defendant had admitted shooting the store owner.

Marilyn Miller, Burton’s girl friend, testified that she drove defendant and Burton to Cedar Rapids, Iowa, and gave them money. Burton later disposed of the weapon but left shell casings in the car. Defendant went to California where he was arrested.

A ballistics expert testified that he could not positively connect the slug recovered from the store with the shell casings found in Marilyn Miller’s car but stated that the slug could have been fired from a .357 magnum. The evidence of other witnesses showed that Burton possessed and had carried a .357 magnum.

Defendant testified that he had been with Knippenberg and Burton for two days prior to the attempted robbery, but denied taking any part in the crime. He stated that he had rented the green Ford to look for work and had driven to Peoria where he met his two friends. Beaty, a friend of Knippenberg, provided them with a room in a motel. On Thursday, defendant and Burton tried to steal some boat motors but were unsuccessful. On Friday, Knippenberg and Beaty committed a burglary of an antique store. A robbery was discussed, but defendant declined to take part because the car was rented in his name. He last saw Knippenberg at 1 A.M. the morning of tire day of the crime. Defendant and Burton went back to the motel, where Beaty asked to borrow the Ford to drive to Springfield. Defendant gave him the keys, and Beaty and Burton left together after arrangements were made for defendant to meet them before noon at a bar in Springfield to return the car to the rental agency. Defendant stated that he spent the next few hours in various bars, that he met a girl, a complete stranger, and convinced her to drive him to Springfield about 11 or 11:30 A.M. He found the Ford parked in the lot next to the designated bar and found Burton, who looked nervous and shaky. Defendant drove the Ford to a friend’s house and first heard about the armed robbery and the death of the store owner on the car radio. He became frightened because his rental car had been identified and because he was on parole. Knippenberg promised to dispose of the car and defendant, and Burton returned in another car to Marilyn Millers trailer in Peoria. Beaty arrived, and the morning’s events were discussed. Defendant said that Knippenberg, Burton and Beaty admitted having tried to rob the store and that Beaty said he had shot the owner. It was decided that Knippenberg and defendant would go to Cedar Rapids to seek help from Beaty’s friend, and that the two of them would then go to California. Defendant described his trip to California and his subsequent arrest, stating that the reason he fled was that he was afraid the police would connect the automobile to him and attempt to have his parole revoked.

Defendant first contends that though most of the evidence presented by the State was not disputed, the evidence linking him with the offense charged was so unsatisfactory, in light of his denial of involvement, that a reasonable doubt of his guilt exists. He attacks the identification testimony as weak and unbelievable, and accuses Beaty of being an accomplice who served his own purposes by attributing the crime to defendant in the hope of obtaining exoneration or leniency. Defendant continues to maintain that his flight was motivated solely by his desire to avoid parole revocation. In effect, defendant is contesting the weight of the evidence and asserting the credibility of his testimony as superior to that of the other witnesses. It has long been established in Illinois that such matters are the prerogative of the jury and that a court of review cannot substitute its judgment for that of the jury. (People v. Stringer, 52 Ill.2d 564, 289 N.E.2d 631 (1972); People v. Mills, 40 Ill.2d 4, 237 N.E.2d 697 (1968); People v. Nicholls, 44 Ill.2d 533, 256 N.E.2d 818 (1970).) It is equally well established that the testimony of one witness is sufficient to convict, even if contradicted by the accused, provided the witness is credible and the accused was viewed under such circumstances as to permit positive identification. (People v. Brinkley, 33 Ill.2d 403, 211 N.E.2d 730 (1965); People v. Washington, 26 Ill.2d 207, 186 N.E.2d 259 (1962); People v. Williams, 96 Ill.App.2d 64, 237 N.E.2d 750 (1968).) Even if Beaty were to be considered an accomplice, die rule is that the testimony of an accomplice, though received with caution, is sufficient to sustain a guilty verdict where the jury is convinced of its credibility. (People v. Wallenberg, 37 Ill.2d 480, 229 N.E.2d 490 (1967).) Here defendant was observed in broad daylight by four witnesses who described him and his clothing, were able to pick his picture out of a group of police photographs, and who positively identified him at trial. The credibility of the observations of the witnesses as well as Beaty’s background and involvement in this affair were forcefully argued before the jury. Presumably the jury took these factors into consideration during their deliberations and chose to believe the State’s witnesses and reject the testimony of defendant. We agree. The evidence against defendant was overwhelming to establish his guilt.

Next defendant contends that the court erred in refusing to sequester the jury. Defendant filed a motion for change of venue and for sequestration of the jury and attached to the motion a series of newspaper articles recounting the events of the previous trials of the other defem dants. He does not argue here that it was improper to deny the change of venue nor that the news articles were spectacular or inflammatory. Rather he contends that they suggested defendant’s guilt by association and, as such, demonstrated the probability that prejudice to defendant would occur in his trial unless the juiy were sequestered.

Section 115 — 4(m) of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 115 — 4(m)) permits the separation of jurors from each other during trial * * except that no such separation shall be permitted in any trial after the court, upon motion by the defendant or the State or upon its own motion, finds a probability that prejudice to the defendant or to the State will result from such separation.”

We agree that it is wise and preferable to sequester a jury in a murder case. However, failure to do so in a particular case does not constitute reversible error unless the record as a whole demonstrates that defendant did not receive a fair trial before an impartial jury. As stated in People v. Yonder, 44 Ill.2d 376, 256 N.E.2d 321 (1969), the decision to sequester a jury is within the sound discretion of the trial court, and if adequate warnings are given by the court and actual prejudice is not demonstrated by the defendant, the failure to sequester is not reversible error. Here the record shows that repeatedly throughout the trial the court Cautioned the jury not to discuss the case among themselves or with anyone else, not to read any newspaper accounts or listen to television reports about tire trial and that they were to determine the case solely from what was heard in the courtroom. Defendant has not demonstrated, nor does he argue, that the juiy actually read any newspajpér accounts or listened to any radio or television reports that may have influenced them to his prejudice. Rather, his argument is based solely upon conjecture and the possibility that the jury may have done so and may have been prejudiced. Such argument has been specifically held insufficient to require reversal of a conviction. (People v. Cesarz, 44 Ill.2d 180, 255 N.E.2d 1 (1989); People v. Endress, 5 Ill.App.3d 821, 284 N.E.2d 725 (1972).) In People v. Cox, 74 Ill.App.2d 342, 220 N.E.2d 7 .(1966), cited by defendant in support "of his contention, the court héld that it was reversible error for the trial court to deny the motion of the defenddant to interrogate a nonsequestered jury as to whether they had read a particular newspaper article prejudicial to him. In effect, the court stated that the defendant had the right to demonstrate the probability of prejudice, and that by denying him that right no way existed to determine what effect the published matter may have had on defendant’s trial. Such is not the case here; we. find nothing in the record that suggests that defendant did not receive a fair trial. We conclude that no error resulted from the trial court’s refusal to sequester the jury.

Finally, defendant contends that his sentence is excessive in view of the lesser sentences given to each of his co defendants for the same offense. He admits that a disparity of sentences by itself does not warrant a reduction of the greater sentence, (People v. Thompson, 36 Ill.2d 478, 224 N.E.2d 264 (1967); People v. Dandridge, 9 Ill.App.3d 174, 292 N.E.2d 51 (1973); People v. Stapelton, 5 Ill.App.3d 219, 283 N.E.2d 117 (1972)), but contends that the record as a whole does not warrant such disparity here. In support of his contention he cites People v. Jones, 118 Ill.App.2d 189, 254 N.E.2d 843 (1969), wherein a sentence of 10 to 12 years for burglary was reduced to 6 to 12 years to conform to a sentence imposed on a codefendant. In that case the court found that since both defendants had participated equally in the burglary and had similar prior records, the only reasonable inference to be drawn was that one defendant was penalized for exercising his constitutional right to a trial. Under these circumstances the court held that fundamental fairness required a reduction of the greater sentence. We do not believe the same situation is present in the case before us. All of the defendants in this case were convicted after jury trials. In imposing sentence on Vaughn, the trial court took note of the disparity between the sentence imposed here and those given the other defendants. He considered defendant’s lengthy criminal record, the fact that he was presently on parole and that the evidence indicated that Vaughn had actually fired the gun. Under such circumstances we find no reason to reduce the sentence imposed.

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

Affirmed.

EBERSPACHER and G. MORAN, JJ., concur.


author: Mr. JUSTICE CRAVEN.

text:
    McLean County Truck Co., Plaintiff-Appellee, v. Main Cob Co., Inc., Defendant-Appellant.
    (No. 12329;
    Fourth District
    February 27, 1975.
    Jerome Mirza and Associates, Ltd., of Bloomington, for appellant.
    Hayes & Flynn, of Bloomington (George R. Flynn, of counsel), for appellee.
   Opinion by

Mr. JUSTICE CRAVEN.


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert H. Carlisle, Defendant-Appellant.
    (No. 12256;
    Fourth District
    February 27, 1975.

      John F. McNichols and John L. Swartz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    John G. Satter, Jr., State’s Attorney, of Pontiac (Michael Prall, of Circuit Attorneys Project, of counsel), for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

The defendant was convicted of the offense of misconduct by an inmate upon his plea of guilty. The sentence of not less than 1 nor more than 3 years in the Illinois State Penitentiary consecutive to the sentence he was then serving was imposed. Upon this direct appeal, the defendant contends that the trial court erred in accepting his plea of guilty without first establishing a factual basis for the plea as required by Supreme Court Rule 402(c) (Ill. Rev. Stat. 1973, ch. 110A, f 402(c)), and without ascertaining that the plea was voluntary as required by Supreme Court Rule 402(b) (Ill. Rev. Stat. 1973, ch. 110A, ¶ 402(b)). We affirm.

Initially, the defendant was indicted for attempted escape and misconduct by an inmate as those offenses are defined in section 17 of the Illinois State Penitentiary Act (Ill. Rev. Stat. 1971, ch. 108, jf 121). The latter offense, being Count II of the indictment, charged that the defendant:

“8 8 8 committed the offense of MISCONDUCT BY INMATE in that he, being a prisoner in the Pontiac Branch ,of the Illinois State Penitentiary, Pontiac, Illinois, intentionally and knowingly held or participated in the holding of Alfred E. Kreiter as a hostage by force, threat or violence, said defendant, Robert Carlisle, being at said time, duly and lawfully imprisoned in the Pontiac Branch of the Illinois State Penitentiaiy on a commitment from the Circuit Court of Cook County, Illinois, in which. Court he was duly convicted of the offense of armed robbery and was sentenced by said Court to the Illinois State Penitentiary for a period , of not less than three (3) years nor more than seven (7) years, said defendant, not having completed said sentence and said judgment of said Court'being, at said time, in full force and effect, in violation of section 121 of chapter 108 of the Illinois Revised Statutes, and contrary to the. form of the Statute in such case made and provided, and against the peace and dignity of tire same People of the State of Illinois.”

The record in this case indicates that the defendant was an inmate of the Illinois State Penitentiary at Pontiac, serving a term of 3 to 7 years for the offense of armed robbery. Upon the happening of the events leading to the present charge, certain institutional or administrative disciplinary actions were taken against the defendant, and he sought initially to have the charge dismissed upon a theory of double jeopardy. As this case proceeded in the circuit court, from the date of the indictment in September 1972 to the ultimate entry of the plea of guilty in April 1973, there is a clear indication that the trial court was entirely familiar with the case, with the defendant’s allegations as to institutional problems, and alleged harassment, alleged inaccessibility to his counsel, and inadequate opportunity to communicate with counsel. Ultimately, pursuant to agreement, Count I was dismissed, and a plea of guilty was entered on Count II.

With reference to the allegation that the court did not ascertain chat the plea was voluntary, the recent opinions of the Illinois Supreme Court of People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559, together with People v. Ellis, 59 Ill.2d 255, 320 N.E.2d 15, make it clear that substantial, not literal, compliance with Rule 402(b ) is all that is required. In the last cited case, tire court indicated that failure to explicitly comply with the requirements of the Rule does not require reversal. Rather, upon review, the entire record is to be examined to determine whether or not the terms of a plea agreement were voluntary, and, if so, any error with reference to failure to strictly comply with 402(b) is regarded as harmless. Hie court inquired of the defendant with reference to the voluntariness of the plea and whether there was any force or threat of force coercing the defendant to plead guilty to which the defendant responded as follows:

“Well, this is what I would like to say to the Court at this time. I have not been threatened into pleading guilty for these instant charges before the Court or promised any bargains or deals or anything of the sort, but I am pleading guilty to these charges due to the fact I have no further contest with these charges. I feel as though this Court is well aware that these charges have been pending since August 20, and I have been in custody and I have been through a lot of harassment and lot of segregation time and down at Menard and back to Pontiac and to Joliet and back to Menard, and I am pleading with a repugnent [sic] type of attitude. It is a really distasteful thing to take but I don’t feel after examining the circumstances of what has happened from August 20th, that I could possibly receive a fair trial if I was to take this before a Jury, before my peers, and have them determine my guilt or innocence since my guilt or innocence has been decided in the Penitentiary before a Disciplinary Proceeding. I was wrapped with a cloth of innocence, which the Constitution mandates. I don’t believe I can present my defense under these conditions. It is a dilemma. I am jumping from the frying pan into the fire. I don’t like to plead for any time in the Penitentiary. I feel as though my actions of August 21st, were motivated under a manifest — my mental health and welfare were in jeopardy in the Institution at Pontiac. I feel as though what happened was justified, but I don’t feel as though I can present the facts before a Jury.
MR. HINDS: You have a right to waive trial before a Jury and be tried before the Court.
MR. CARLISLE: No, I am pleading guilty.
MR. HINDS: Let’s plead guilty and get it over with or if you want to be tried before the Court, the Judge would be happy to hear it.
THE COURT: The point here, Mr. Carlisle, is not really your motives for deciding that it is your best advantage to plead guilty but the question is whether the plea is voluntary.
* # *
MR. CARLISLE: Yes. I fear nothing from the States Attorney. Like I said—
THE COURT: You have considered the matter and it is your decision that it is in your best interest to plead guilty in this matter, according to the Plea Agreement, is that correct?
MR. CARLISLE: Yes, I feel it is in my best interest to plead guilty.
THE COURT: And you understand what you are doing?
MR. CARLISLE: I understand.
THE COURT: All right.”

We conclude under the authority stated that the plea was voluntary and that there was compliance with the requirements of Rule 402(b).

The purpose and requirements of Rule 402(c) requiring a factual basis as a condition precedent to the acceptance of a plea is thoroughly discussed in People v. Hudson, 7 Ill.App.3d 800, 288 N.E.2d 533, People v. Price, 9 Ill.App.3d 693, 292 N.E.2d 752, and People v. Abel, 10 Ill. App.3d 210, 291 N.E.2d 841. From this discussion, it is clear that the court is only required to ascertain the existence of a factual basis prior to entry of final judgment and that substantial compliance again is all that is required. In this case, the indictment charged the offense in the language of the statute and with considerable specificity. The quoted portion of the record clearly indicates to us that the defendant understood the nature of the charge and the facts giving rise to the charge. In stating a factual basis for die plea, the prosecutor merely indicated that he was prepared to introduce evidence by way of testimony, including testimony from Alfred Kreiter, as to the offense as defined in the indictment and specified in the statute. This, of course, is wanting in some specificity, but in view of the entire record we conclude that there was substantial compliance with 402(c).

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

Judgment affirmed.

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


author: Mr. JUSTICE STENGEL

text:
      In re Annexation to the Village of Plainfield.—(The Village of Plainfield, Petitioner-Appellant, v. American National Bank and Trust Company, Trustee, et al., Objectors-Appellees.)
    (No. 74-49;
    Third District
    February 19, 1975.

      McKeown, Fitzgerald, Zollner, Buck, Sangmeister & Hutchison, of Joliet (Douglas Hutchison, of counsel), for appellant.
    Siegel & Stonesifer, Ltd., of Chicago (Jack M. Siegel, of counsel), for appellees.
   Mr. JUSTICE STENGEL

dehvered the opinion of the court:

The Village of Plainfield, plaintiff, appeals an order of the circuit court dismissing an annexation proceeding instituted under provisions of section 7 — 1—2 of the Municipal Code (Ill. Rev. Stat. 197.1, ch. 24, par. 7— 1 — 2 (1971)).

An ordinance to annex certain territory was adopted by the Village and filed in circuit court. At the conclusion of the hearing on the objections, the court sustained eight of the objections and dismissed the ordinance after denying plaintiff’s motion to amend the ordinance by deleting certain parcels.

The first issues presented for review is the propriety of sustaining an objection that the State of Illinois was an owner of property included in the ordinance and that plaintiff had failed to obtain the required written consent of the Governor.

Section 7 — 1—2 of the Municipal Code (Ill. Rev. Stat. 1971, ch. 24, par. 7 — 1—2) provides in part as follows:

“Where real estate owned by the State of Illinois, or any board, agency or commission thereof, is situated in unincorporated territory adjacent to a municipality, the corporate authorities of such municipality may annex any part or all of such real estate only with the written consent of the Governor of the State of Illinois or the governing authority of such board, agency or commission, without any such petition or proceedings required by this Article by resolution of such corporate authorities.”

Failure to obtain consent for annexation from State authorities was held to be a fatal defect where a park owned by the State of Illinois was situated within a greater territory sought to be annexed by an ordinance proceeding in City of East St. Louis v. Touchette, 14 Ill.2d 243, 150 N.E.2d 178 (1958).

The property in question in the case at bar included part of the right-of-way for public highways within Route 30 and Route 1-55. Use and occupancy by the State are not disputed. The plats of dedication for the parcels constituting the right-of-way provide that the grantors “hereby grant, convey and dedicate to the People of the State of Illinois for the purpose of a public highway * * Plaintiff contends that a dedication of a right-of-way for highway purposes is a grant of a determinable fee to the State, with the grantor retaining the underlying fee, and that such interest as the State acquires is not ownership within the meaning of the statute requiring the Governor’s consent for annexation. Defendants argue that the decisions of Illinois courts which construe the term “owner” to include the holder of an easement, under the disconnection statute, are controlling here, so that the Governor’s consent is required under the annexation statute. The consent provision of section 7 — 1—2 has not previously been construed by any court.

The disconnection statute (Ill. Rev. Stat. 1971, ch. 24, par. 7 — 3—6) provides that “[t]he owner or owners o£ record of any area of land consisting of one or more tracts, lying within the corporate limits of any municipality * * may disconnect from the municipality if certain conditions are met.

In Woodward Governor Co. v. City of Loves Park, 335 Ill.App. 528, 82 N.E.2d 387 (2d Dist. 1948), the court held that a railroad with an easement to so much of the land in question as it found necessary to use was an “owner” within the meaning of the disconnection statute and could properly be the only signer representing that property on the petition to disconnect. The court said:

“In light of our analysis of the numerous cases, defining the word ‘owner when used in statutory enactment, we are of the opinion that section 7 — 42 of the Cities and Villages Act of 1941 should be construed liberally; that it was enacted for the purpose of granting relief to taxpayers; that the class of persons entitled to its benefits, namely owners, are not necessarily persons owning a fee simple title; that in determining who are its owners, it is necessary to consider the purposes of the acts and all the surrounding circumstances. Applying those conclusions to our problem before us, we are clearly of the opinion that the Chicago & Northwestern Railway Company held such title in the premises involved that they were ‘owners’ and were entitled to the relief sought under the foregoing statute * * 335 Ill.App. 528, 540-41, 82 N.E.2d 387, 393.

In an earlier case construing the word "owner” in the same disconnection statute, the court stated the general rale to be:

“The word ‘owner,’ when applied to real estate, is not confined to the holder of a fee simple title, and, unless there is something in the act to the contrary, the legislature will be understood as using the word in its popular sense.” (Vance v. Rankin, 95 Ill.App. 562, 565 (3d Dist. 1900), rev’d on other grounds, 194 Ill. 625, 62 N.E. 807 (1902).)

In Vance, two railroads with right-of-way interests were held to be “owners.”

More recently a disconnection petition involving land previously conveyed to Northern Illinois Gas Co., subject to a perpetual easement for access and with reservation to the grantor of the right to farm the tract, was ruled to require the signature of both the gas company, who owned the fee, and the grantor who retained an access easement and the right to farm. Nicholson v. Village of Schaumburg Center, 33 Ill.App.2d 197, 178 N.E.2d 680 (1st Dist. 1961) .

We find only one case involving public highway ownership under the disconnection statute. In American Community Builders, Inc. v. City of Chicago Heights, 337 Ill.App. 263, 85 N.E.2d 837 (1st Dist. 1948), the municipality attempted to prevent a disconnection on the grounds that some of the land consisted of city streets and that the city was, therefore, a necessary party to the petition. The court rejected the theory that the city was an “owner” of the streets by virtue of an easement for public highway purposes. The court said that to permit the city to defeat the disconnection would destroy the purpose of the statute in all cases where the limits of the city are city streets and held that the signature of tire owner of the underlying fee was sufficient. There was no evidence in that case of a specific grant of right-of-way or easement to the city, and the streets in question were in fact maintained by the County Highway Department. Thus, that case is clearly distinguishable on its facts from the Plainfield annexation.

Plaintiff cites sections 7 — 1—10 and 7 — 1—13 of the Municipal Code as statutory recognition of distinctions between right-of-way dedication and fee simple title to State highways. We agree with defendant that these sections concern alternate methods of annexation for factual situations at variance with those applicable here and are unrelated to proceedings brought under section 7 — 1—2 of the Code.

Whether the property interest of the State in the highways sought to be annexed is a fee simple absolute or a determinable fee, that interest is of sufficient importance to come within the protection afforded by section 7 — 1—2. Thus we hold that “real estate owned by the State of Illinois, or any board, agency or commission thereof,” in section 7 — 1—2, includes the land dedicated to the State for public highway purposes whether the State owns the underlying fee or not. The trial court correctly sustained the objection to inclusion of State highway property without the Governor’s prior written consent.

The second question before us is whether the trial court erred in ruling that the territory described in the ordinance was not contiguous to the Village. The unincorporated territory sought to be annexed included several subdivisions and was extensive and irregular in shape, and at one point is intersected by Interstate Route 55; the parcels on either side of 1-55 are connected only by a 60-foot-wide strip of highway (Route 30), constituting a connecting corridor approximately one-half mile in length, which passes under 1-55 and through a cloverleaf exchange.

The trial court sustained defendant’s objection that the territory to be annexed was not contiguous to the village, and also sustained objections that the territory was not a contiguous parcel in that it consisted of two or more separate parcels and that it contained strips and corridors connecting separate parcels.

Section 7 — 1—1 of the annexation statute provides:

“Any territory which is not within the corporate limits of any municipality but which is contiguous to a municipality, may be annexed thereto as provided in this Article.”

In interpreting this statute, it has been held that use of the word “territory” does not permit the annexation of two separate tracts by a single petition. Krupp v. Taylor, 20 Ill.App.2d 282, 156 N.E.2d 13 (4th Dist. 1959). Statutory requirements of contiguity mean contiguous in the sense of adjacent and parallel to existing municipal boundaries. (People ex rel. Adamowski v. Village of Streamwood, 15 Ill.2d 595, 155 N.E.2d 635 (1959); In re Annexation Territory to City of Springfield, 85 Ill.App. 2d 191, 228 N.E.2d 755 ( 4th Dist. 1967); People ex rel. Coojar Realty Corp. v. Village of Burr Ridge, 81 Ill.App.2d 203, 225 N.E.2d 39 (2d Dist. 1967).) Reasonably substantial physical touching is required to achieve contiguity. (In re Village of Buffalo Grove, 128 Ill.App.2d 261, 261 N.E.2d 746 (2d Dist. 1970).) The trial court’s findings as to contiguity or lack of it will not be disturbed on appeal unless it is manifestly against the weight of the evidence. In re Village of Buffalo Grove; La Salle National Bank v. Village of Burr Ridge, 81 Ill.App.2d 209, 225 N.E.2d 33 (2nd Dist. 1967).

We agree with defendants that the judgment of the circuit court here was clearly supported by the evidence and may not be disturbed on appeal. Several separate instances of noncontiguity were cited by defendants in their objections.

The most obvious breach of contiguity occurs where one small parcel (Number 12) included in the ordinance is completely separated from the remaining territory to be annexed by a distance of 3700 ft., although it is adjacent to the municipal boundaiy. Inclusion of this separate parcel clearly falls within the prohibition of the Krupp case, supra.

At another location along Route 30, one triangular parcel joins the angle of an irregular polygon-shaped parcel only at the point of one angle of the triangle. Characterized as a “Euclidian point” by the trial court, this juncture has no measurable width and occurs in the center of the highway with no part of the municipality touching it on either side. The effect is a “V” shaped notch in the boundary of the territory to be annexed. A similar attempt to annex two tracts whose juncture was at the points of two right angle comers so that one could not travel from one tract to the other without leaving the municipality was condemned in Wild v. People ex rel. Stephens, 227 Ill. 556, 81 N.E. 707 (1907).

Defendants also attack the attempt to connect two large portions of territory by means of the highway corridor (Route 30) 60 ft. wide extending for one-half mile through the 1-55 and Route 30 interchange and touching no part of the municipality on either side for the %-mile length. In view of our holding above that this highway cannot be annexed without prior written consent from the State of Illinois, the contiguity of the corridor and of the parcels it attempts to connect becomes hypothetical and not necessary to this decision. Without the corridor, the parcels east of 1-55 are totally separated from the remaining territory to be annexed, and contiguity is totally lacking.

' Because the absence of contiguity is so evident in the above instances, it is unnecessary to examine the other alleged exámples of “strip” or “corridor” annexations.

Plaintiffs urge that the irregular shape of the territory to be annexed is justified because the Village sought to annex only those areas which are subdivided and resided upon and which would require municipal services. Plaintiff cites People ex rel. Village of South Barrington v. Village of Hoffman Estates, 30 Ill.2d 385, 198 N.E.2d 97 (1964), where annexation of a parcel connected to the municipality only by a bridge across a tollway was permitted. In the majority opinion the court noted that a “unity of purpose and facilities” existed between the Village and the territory to be annexed. We agree with the view adopted in In re Village of Buffalo Grove, supra, that “unity of purpose and facilities” is merely one aspect of contiguity, and not an additional requirement. Nothing in the Hoffman Estates case suggests that separáte and noncontiguous parcels may be joined in one annexation petition merely; because there exists some unity of purpose and facilities between them. We reject plaintiff’s attempt to create an exception to the requirement of physical contiguity.

At the close of the hearing on defendants’ objections, plaintiff sought by motion to amend the annexation ordinance by deleting various parcels' of land, the inclusion of which was objected to by defendants; The court denied the motion to amend and also denied an oral motion for a continuance to allow the municipal authorities time to consider an amendment to the ordinance. The court then dismissed the ordinance seeking annexation.

Plaintiff asserts that all of the defects in the annexation ordinance would have been eliminated by the amendment offered, and that the court should have allowed the motion under section 46 of the Civil Practice Act. Plaintiff argues that the Civil Practice Act applies where the specific statute does not control procedure, and relies on In re Annexation of Territory in County of Kankakee, 30 Ill.App.2d 391, 174 N.E.2d 710 (2d Dist. 1961). In the Kankakee case the trial court permitted deletion of certain perimeter land already within the boundaries of another city by amendment to the annexation petition. The court held that inclusion of such prohibited land in the petition was not a jurisdictional defect if it is excluded by amendment before the hearing on the validity of the petition, and pointed to the statutory provision for exclusion of such perimeter land under sections 7 — 1—3(4) and 7 — 1—4 of the Municipal Code (Ill. Rev. Stat. 1971, ch. 24, pars. 7 — 1—3(4) and 7— 1 — 4). We think the Kankakee case is clearly distinguishable from the case before us, because here the amendment to delete part of the territory to be annexed was offered at the close of the hearing on the validity of the petition, and did not purport to involve perimeter land.

Courts have repeatedly required strict adherence to statutory procedures in annexation proceedings. (See Crocher v. Abel, 348 Ill. 269, 180 N.E. 852 (1932); People ex rel. Universal Oil Products Co. v. Village of Lyons, 400 Ill. 82, 79 N.E.2d 33 (1948); In rel Village of Green Oaks, 1 Ill.App.3d 773, 275 N.E.2d 462 ( 2nd Dist. 1971).) Under the circumstances of this case, the court did not abuse its discretion in refusing to allow amendments at the close of the hearing.

The judgment of the circuit court is affirmed.

Affirmed.

ALLOY, P. J., and BARRY, J., concur.


author: Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Keith Wiggins, Defendant-Appellant.
    (No. 72-320;
    Third District
    February 20, 1975.
    James Geis and Robert Agostinelli, both of State Appellate Defender’s Office, of Ottawa, for appellant.

      Michael Mihm, State’s Attorney, of Peoria (James O. Christy, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Petitioner, Keith Wiggins, entered a plea of not guilty to a two-count indictment for burglary and theft filed on October 14,1971. On December 13, 1971, he withdrew his plea and pleaded guilty to a single count of burglary, and in conformity with a plea agreement was sentenced to a term of .not less than 2 nor more than 5 years in the Illinois Department of Corrections. No direct appeal was pursued. Defendant filed petition for post-conviction relief. An attorney was appointed for him, and an amended petition was filed. This appeal is from the dismissal by the circuit court of Peoria County of petitioners petition for post-conviction relief as amended.

Petitioner contends that he was substantially deprived of due process by the trial court’s acceptance of his guilty plea without establishing any factual basis for the plea, contrary to the requirements of Supreme Court Rule 402(c) (Ill. Rev. Stat. 1971, ch. 110A, par. 402(c)).

Due to the view we take of this case, the only issue we need deal with on appeal relates to the People’s contention that petitioner cannot raise on appeal an issue which was not raised at the trial level. The People state that the trial court’s failure to determine a factual basis for the guilty plea was not raised in either petitioner’s original petition or in his petition as amended. Petitioner does not dispute this contention, and accordingly, we agree with the People’s argument that the issue cannot be raised for the first time on appeal. People v. Brown, 41 Ill.2d 230, 242 N.E.2d 242.

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

Affirmed.

DIXON and SCOTT, JJ., concur.