text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Stanley Rance et al., Defendants-Appellants.
    (Nos. 58666-7 cons.;
    First District (4th Division)
    June 26, 1974.

      James J. Doherty, Public Defender, of Chicago (James M. Sammons, Assistant Public Defender, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendants, Stanley Ranee and David Byrd, were convicted of two counts of theft after a joint bench trial, and each was given concurrent sentences of 1 year probation with the first 60 days in the House of Correction.

The issue for review is whether the defendants were deprived of due process of law when the State presented evidence of a felony under a charge of a misdemeanor.

Allen Kilpatrick and Willie Harris each testified they were robbed at gunpoint on August 25, 1972, about 5 P.M. They had just cashed their checks at a currency exchange and were walking down the street when three men, who had been sitting on a car, approached them. Harris testified that David Byrd held a gun on them, and each was forced to hand over his money. Harris and Kilpatrick handed over $113 and $186, respectively. A third companion bolted from the scene before his money could be taken. Kilpatrick testified similarly except that he stated the gun was held by a third person, who had not been identified.

After being robbed the two men called police and rode around the area in a squad car, searching for the thieves. They were unable to find them, but when Kilpatrick and Harris returned to a neighborhood tavern, they saw two of the three hold-up men. The police were called again, and the defendants, Stanley Ranee and David Byrd, were arrested. No money or weapons were found.

At the trial on October 31, 1972, the State moved to nolle prosequi the felony charges which had been filed and elected to proceed to trial on two counts of theft. When asked if he had an objection, the Public Defender replied in the negative.

The defendants argue they were deprived of due process of law because the reduction of the charge from armed robbery to theft circumvented the defendants’ right to indictment and its attendant safeguards. The defendants state they do not challenge the discretion of a prosecutor to reduce a charge where the evidence is lacking on one or more elements of an offense or where the reduction is made as part of a negotiated plea of guilty to a lesser charge.

It is argued the defendants are prejudiced because the issue of identification is heard without the benefit of a pretrial motion to suppress and no list of witnesses or physical evidence is filed.

The Illinois Supreme Court addressed itself to this issue and determined that once the possibility of a penitentiary sentence is eliminated, a misdemeanor can be charged by information or complaint. People v. Morrissey (1972), 52 Ill.2d 418; People v. Coleman (1971), 45 Ill.2d 466.

The law is well settled that objections not raised at trial cannot be raised on appeal. A defendant may not sit idly by and allow alleged irregular proceedings to occur without objection and afterward seek to reverse his conviction by reason of those same irregularities. (People v. Mirmelli (1970), 130 Ill.App.2d 1; People v. Mays (1962), 23 Ill.2d 520.) In this case not only was there no objection, but the defense counsel twice replied in the negative when asked if he wished to object. Defense counsel obviously made a choice based on trial strategy and cannot now complain.

The defendants also contend the State failed to comply with section 111 — 2 of the Illinois Criminal Code (Ill. Rev. Stat. 1971, Ch. 38, § 111— 2):

“(a) All prosecution of felonies shall be by indictment unless waived understandingly by the accused in open court, and unless the State expressly concurs in such waiver in open court.”

This section does not apply because the prosecution was for a misdemeanor and not a felony. See People v. Morrissey (1972), 52 Ill.2d 418, and People v. Coleman (1971), 45 Ill.2d 466.

Finally, the defendants argue the State should be forced to disclose the reason for dropping the felony charges. They apparently speculate the State had knowledge which would result in the dismissal of all charges. This argument ignores the fact the defendants had a full trial on the charges after pleading not guilty. The court determined the State proved its case beyond a reasonable doubt, and any speculation as to the reasons for dropping the felony charges is not a valid issue on appeal.

On January 1, 1973, the Unified Code of Corrections became applicable to these defendants’ appeals. (People v. Harvey (1973), 53 Ill.2d 585.) The split sentence given in this appeal is now illegal under recent Illinois Supreme Court decisions. (People ex rel. Weaver v. Longo (1974), 57 Ill.2d 67; People v. Grant, 57 Ill.2d 264; People v. Mahle, 57 Ill.2d 279.) Therefore, the 60-day imprisonment term imposed on each defendant must be reversed and stricken from the record.

For the reason stated the judgment of the Circuit Court of Cook County is affirmed as modified.

Affirmed as modified.

BURMAN and JOHNSON, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ADESKO

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Floyd Perry, Defendant-Appellant.
    (No. 59263;
    First District (4th Division)
    June 26, 1974.
    James J. Doherty, Public Defender, of Chicago (Thomas F. Finegan and John M. Kalnins, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

deHvered the opinion of the court:

The defendant-appellant was indicted for armed robbery and in a bench trial he was found guilty of the lesser included offense of robbery. The defendant was sentenced to serve a term of 2 to 6 years in the Illinois State Penitentiary. The sole contention of the defendant in this appeal is that he was not proven guüty beyond a reasonable doubt. We do not agree.

The complaining witness, Benjamin Simmons, testified that on July 3, 1971, at approximately 12:30 A.M., he and his fiancee, Tina Harris, were accosted by two men carrying sawed-off shot guns. Simmons stated that when the men came up behind him and Miss Harris, he was in the vestibule of his apartment building and in the process of unlocking the second door. The vestibule was Hghted and one of the men stood behind Miss Harris while the other positioned himself in front of Simmons. Simmons stated that the man in front of him was no more than a foot away and that he did observe the man’s face. He described the man as wearing brown bell-bottom trousers and brown shoes. Simmons stated that the individual in front of him was short and dark skinned and that the other man was tall, fight and had kind of sandy hair. Simmons testified that the man in front of him was approximately 5 feet 9 inches taU and that he told Simmons, “This is a stick up, give it up.” Simmons stated he was then told to go outside and that he and his assailant then stood between Simmons’ apartment building and an adjacent budding. According to Simmons, the vestibule fight was showing through and he was able to observe the man. Simmons stated that at this time the man was approximately 3 feet away from him and that he was stiH pointing the shotgun at him. As Simmons was being confronted by one of the men, the other individual was holding a shotgun on Miss Harris and Simmons stated they were about 2 feet away. Simmons testified the entire incident took between 10 and 12 minutes and that $200, some change, a Timex watch and several other articles were taken from him. During his testimony Simmons identified the defendant as the individual who had confronted him and robbed him on July 3, 1971.

Simmons also testified that he saw the defendant again on the foUow-ing day in front of Harold’s Chicken Shack on 47th Street. Simmons stated that he was with a friend and that he observed the defendant get out of a 1962 blue Pontiac. Simmons directed his friend to call the police and Simmons took down the license number of the automobüe. When the police arrived, Simmons told them the car had puUed away and he gave them a description of the vehicle and its license number. Simmons followed the police as they searched for the vehicle. The police subsequently found the subject vehicle and Simmons stated there were three or four people in the automobile. He stated he pointed out the defendant as the individual who had robbed him. Simmons testified that at the time he identified the defendant for the police, the defendant had on the same brown bell-bottom pants and brown shoes as on the previous night.

Simmons also testified that about a month after a hearing had been held at 26th and California, he saw the defendant again and had a conversation with him. Simmons stated the defendant told him he was not the man who robbed him and offered Simmons $200 to drop the case. About a week later, Simmons stated that he saw the defendant again and that the defendant said to Simmons, “You know, I’m not the man that held you up.” Simmons also stated that Tina was afraid of what would happen to her and that Tina’s mother had sent her to California.

At one point during cross-examination Simmons stated that he was 6 feet tall and that the individual who had been standing in front of him was about 4 inches shorter than himself. At another point Simmons stated the man in front of him was about 5Vz feet tall. He also stated that he thought he had told the police that the shorter of the two men weighed approximately 165 pounds. During cross-examination Simmons testified that at no time had he told the police that the man who robbed him had a prominent enlargement of the forehead. The defendant’s attorney asked Simmons to look at the defendant and he asked Simmons, who was approximately 25 feet away from the defendant, if he noticed anything concerning the defendant’s forehead. Simmons responded that it appeared that the defendant had a knot in the center of his forehead. The defendant moved within arms length of Simmons and Simmons stated that what appeared to have been a knot on the defendant’s forehead was a scar. Simmons was also asked if there was a scar over the defendant’s right eye and he responded affirmatively. He stated he did not remember observing any scars on the defendant’s forehead at the time of the robbery.

Simmons was also asked during cross-examination if he observed sideburns on the defendant and he answered “yes.” He was then asked it the man who robbed him on July 3, 1971, had sideburns and he stated that he could not remember. Simmons also stated that part of the money that had been taken from him belonged to the company where he was then employed. He stated he reported the loss to the company and that they fired him because of negligence. It was also brought out during cross-examination that Simmons had not previously discussed with the State’s Attorney the $200 that he said the defendant offered him to drop the case. However, Simmons did state that he thought he told Officer Phillip Dore of the Chicago Police Department about the $200 offer from the defendant.

The next witness called on behalf of the State was Officer Phillip Dore of the Chicago Police Department. Officer Dore stated that on July 3, 1971, at approximately 8 or 8:15 P.M., he received a call to proceed to 47th and Greenwood. When Officer Dore arrived at that location, he spoke with Benjamin Simmons who informed Officer Dore that he had seen two individuals who had robbed him that morning. Officer Dore stated that Simmons described the vehicle the individuals were in as a 1961 bluish-green Pontiac. After receiving the description, Officer Dore gave a flash message over his radio and then proceeded to tour the area. Officer Dore stated that Simmons followed as he and his partner toured the area. At 4500 South Greenwood, the police observed the subject vehicle and Officer Dore stated that at this time he placed the defendant under arrest. The defendant, according to Officer Dore, was standing in a group of approximately 15 black individuals. Officer Dore testified that the defendant was wearing brown pants, brown shoes and a black shirt and that this was the description of the clothing that Simmons had given him.

During cross-examination Officer Dore stated that at the time of the arrest the defendant’s weight was in the area of 190 pounds. He also stated that Simmons had told him two of the men who had robbed him were in the vehicle. However, Officer Dore stated that he did not observe a tall, young, light-complected Negro with reddish hair. Officerr Dore stated that Simmons did not describe a tall, light-complected Negro and that he only described the defendant. However, Dore also stated that he did not give Simmons any time to go into detail about the other individual. Officer Dore testified that the defendant did not have any weapons in his possession at the time of his arrest nor did he have $200 or a Timex watch in his possession.

The defendant called three alibi witnesses to testify on his behalf. Two of the witnesses stated that they were at the defendant’s home from 8 P.M. on July 2, 1971, until 8 A.M. on July 3, 1971. They testified that they were playing cards and drinking in the defendant’s home and that the defendant was present and did not leave their presence during the entire evening. The other witness stated he arrived at the defendant’s home sometime before midnight on July 2, 1971, and that he remained there until 8 A.M. on July 3. This witness also stated the defendant did not leave his home at any time during the evening.

The defendant testified in this own behalf and stated that he was at his home on the evening of July 2, 1971, with his friends. He stated that they remained there until 8 A.M. the following morning and that he did not leave his home during this period of time. The defendant denied knowing any taH, young, light-complected Negro and stated that he was not in the company of such person in the early morning of July 3, 1971. The defendant also denied owning a sawed-off shotgun. He testified that he had a scar on his forehead since 1965 and that on July 2, and 3 of 1971 he had a growth of hair under his chin and over his upper lip. The defendant also stated that his weight at the time of the robbery was approximately 200 pounds and that he was 5 feet 9% inches tall. He denied committing the offense and of offering Mr. Simmons $200 to drop the charges. The defendant also stated that neither a sawed-off shotgun nor any of Mrs. Simmons’ possessions were ever found in his home.

At the conclusion of all the evidence the trial court found the defendant guilty of robbery. The court in rendering its finding expressed the opinion that while the complainant might be mistaken as to the defendant’s identity, he was not mistaken as to the bribe that had been offered to him by the defendant. The trial court stated that this was corroborative evidence of guilt and the evidence that tipped the scale against the defendant. As stated previously, the defendant was sentenced to serve a term of from 2 to 6 years.

The defendant’s basic contention is that the complainant’s testimony was weak and vague and therefore, insufficient to support his conviction. This contention is premised on the fact that the complainant did not describe any of his assailant’s facial characteristics. The defendant specificaUy refers to Mr. Simmons’ failure to describe the scar on the defendant’s forehead, the sideburns, and the growth of hair under his chin and over his upper lip that the defendant testified he had on July 3, 1971. While it is true that the complainant did not mention these physical characteristics of the defendant to the police, the failure to remember physical characteristics does not render an identification unworthy of belief. When an identification is positive, precise accuracy in description is not necessary. (People v. Jackson, 95 Ill.App.2d 28, 237 N.E.2d 858 (1968); People v. Camp, 9 Ill.App.3d 445, 292 N.E.2d 242 (1972).) Mr. Simmons was positive and unequivocal in his identification of the defendant on the evening after the robbery and again in court. As stated by our supreme court in People v. Miller, 30 Ill.2d 110, 113, 195 N.E.2d 694, 697 (1964):

“We have often held that the testimony of one witness alone, if positive and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused. (People v. Solomon, 24 Ill.2d 586; People v. Pride, 16 Ill.2d 82; People v. Renallo, 410 Ill. 372.)”

It has also been held that:

“In Illinois it is established that where an identification is positive, precise accuracy in describing facial characteristics is unnecessary. Further, the failure of a witness to notice the presence or absence of a mustache, or of other facial features, has been held to be a minor discrepancy. The failure to report the mustache to the police in the case at bar did not destroy the credibility of the witness, but was solely a question of the weight to be afforded her identification. See People v. Catlett, 48 Ill.2d 56, 268 N.E.2d 378; People v. Mitchell, 2 Ill.App.3d 1081, 278 N.E.2d 169.” (People v. Camp, supra, at 446.)

In the instant controversy the complainant was positive in his identification of the defendant and his failure to notice or mention the defendant’s physical characteristics only went to the weight to be afforded the identification. The trial court specifically found the complainant to be completely credible and this determination was not so unreasonable as to raise a reasonable doubt of the defendant’s guilt.

There was testimony in the case at bar that the defendant offered a bribe to the complainant in order to have him drop the charges. The defendant contends that this evidence was inherently improbable because there was no documentation that the complainant ever reported the two encounters with the defendant to any law enforcement officials. Defendant also maintains that this evidence by itself would not be sufficient to establish his guilt beyond a reasonable doubt. The law regarding a bribery attempt is that such evidence allows an inference of guilty knowledge to be made. (People v. Gambony, 402 Ill. 74, 83 N.E.2d 321 (1948); accord, People v. Young, 82 Ill.App.2d 461, 226 N.E.2d 417 (1967).) It should be noted that the complainant did testify that he thought he had told Officer Dore of the $200 offer from the defendant. The trial court in finding the defendant guilty did not rely solely on the evidence of the bribery attempt. According to the trial court, it was this evidence that tipped the scale against the defendant. The trial court was entirely correct in making an inference of guilty knowledge from this evidence together with the other testimony of the complainant was sufficient to convict the defendant.

The defendant also contends that he presented an unimpeached and uncontradicted alibi defense. As previously stated, there were three witnesses who did testify that they were at the defendant’s home on the date in question and that the defendant was in their presence and did not leave. However, a trial court is under no duty to accept and believe an alibi witness. As stated in People v. Setzke, 22 Ill.2d 582, 586, 177 N.E.2d 168, 170 (1961):

“There is no obligation on a trial court to believe alibi testimony over positive identification of the accused, even though the alibi testimony may be given by a greater number of witnesses. People v. Lamphear, 6 Ill.2d 346; People v. Wheeler, 5 Ill.2d 474.”

We are of the opinion that the defendant was convicted beyond a reasonable doubt and therefore, the decision of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN and JOHNSON, JJ., concur.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Barry Wintersmith, Defendant-Appellant.
    (No. 59624;
    First District (4th Division)
    June 26, 1974.
    James J. Doherty, Public Defender, of Chicago (Terrence McQuigg, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The petitioner, Barry Wintersmith, was convicted of voluntary manslaughter and was sentenced to a term of 8 to 15 years in the Illinois State Penitentiary after a trial in the Circuit Court of Cook County. The conviction was affirmed in People v. Wintersmith (1972), 9 Ill.App.3d 327, and the minimum sentence was reduced to 5 years by the Illinois Supreme Court.

The petitioner filed a pro se Habeas Corpus petition which was dismissed without a hearing on June 12,1973. The petitioner chose to appeal and the Public Defender was appointed to represent him. Now the Public Defender seeks to withdraw and has filed a brief in support of his motion pursuant to the case of Anders v. California, 386 U.S. 738, asserting there is no merit to the appeal and the case is moot.

Barry Wintersmith filed a pro se Habeas Corpus petition seeking a transfer from the Psychiatric Division of the State Penitentiary at Menard to the general population of Joliet. The petitioner alleged he was not "crazy” and did not need psychiatric care.

The Public Defender filed a brief stating that Habeas Corpus is a remedy limited to claims of a jurisdictional nature, and a petitioner seeking Habeas Corpus must allege the trial court lacked power to incarcerate him originally or that subsequent events have rendered further incarceration illegal. People ex rel. Shelley v. Frye (1969), 42 Ill.2d 263; People ex rel. Ross v. Ragen (1946), 392 Ill. 465. There is no claim the petitioner was illegally imprisoned, and the Director of the Department of Corrections is specifically empowered to assign prisoners to psychiatric facilities within the prison system. Ill. Rev. Stat. 1973, ch. 38, § 1003 — 8 — 5.

Subsequently, the petitioner was transferred to the general prison population at Joliet, and the Public Defender filed a supplemental petition to withdraw asserting the only issue raised by the Habeas Corpus petition had been rendered moot.

The defendant was sent copies of the Public Defender’s motions and was given an opportunity to file any authorities he might wish in support of his appeal. The petitioner replied and requested the appointment of other counsel, alleging he should be discharged because his transfer from the Psychiatric Division to the general population was not accomplished as speedily as possible. However, he did not support his request with legal arguments or authorities, and we do not deem his reasons to be sufficient to warrant the appointment of other counsel.

After reviewing the record we conclude the Public Defender is correct — there is no merit to the appeal and it has been rendered moot. The motion of the Public Defender to withdraw is allowed, and the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADESICO, P. J., and BURMAN, J., concur.


author: Mr. PRESIDING JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Carey Hooker, a/k/a Undra Hooker, Defendant-Appellant.
    (No. 73-337;
    Third District
    June 28, 1974.
    Richard Steck of the State Appellate Defender’s Office, of Ottawa, for appellant.
    Jose Nunes, Assistant State’s Attorney, of Joliet, for the People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from the circuit corut of Will County. The defendant, Carey Hooker, hereinafter referred to as defendant, was indicted for burglary. At a jury trial he was found guilty of burglary and sentenced to not less than 2 nor more than 6 years.

The only issue raised in this appeal is whether the trial court erred by denying defendant’s motion to suppress evidence.

The facts pertinent to this decision are as follows: On October 27, 1972, officers of the Joliet police department went to a residence in Joliet to investigate a report of a burglary in progress. The house was in disarray and a rear basement window was discovered broken out. An automobile parked in front of the house aroused the interest of the police and a registration check indicated the car belonged to defendant.

Thereafter defendant appeared at the Joliet police station and indicated he wished to report a stolen car. Two of the officers present at the above mentioned burglary investigation escorted defendant to an interview room where a stolen car report was made. When the report had been completed one of the officers asked to see the defendant’s arms.

The defendant took off his jacket and lifted his sleeves. He then lifted his shirt and the officers observed two fresh jagged cuts on his back.

The defendant was next placed under arrest. After being informed as to his rights, the officers took blood samples, photographed the cuts, and fingerprinted the defendant.

The defendant moved to suppress this evidence at the trial, alleging the evidence resulted from an illegal consent search. This motion was denied and this appeal results. The defendant’s position in this appeal is that he was in custody, in a coercive atmosphere, and before valid consent for a search could be given he should have been informed of his right to refuse such consent.

The State’s position is that the defendant was not in custody and therefore the holding of the United States Supreme Court in Schneckloth v. Bustamante, 412 U.S. 218, 36 L.Ed.2d 854, 93 S.Ct. 2041 (1973) applies. In the Schneckloth case tibe Supreme Court held that valid consent to a search could be given without informing the defendant of his right to refuse consent, and in so holding they used the following language:

“Consequently we cannot accept the position of the Court of Appeals in this case that proof of knowledge of the right to refuse consent is a necessary prerequisite to demonstrating a voluntary consent. Rather it is only by analyzing all the circumstances of an individual consent that it can be ascertained whether in fact it was voluntary or coerced.” 412 U.S. at 232-233, 36 L.Ed.2d at 866.

In the instant case the defendant voluntarily went to the police station to report a stolen car, he was taken to an interview room to complete this report, and after doing so he was asked to display his arms. He then removed his jacket and rolled up his sleeves to display his arms and then voluntarily lifted his shirt which revealed the fresh cuts which precipitated his arrest.

The trial court at the hearing on the motion to suppress, specifically found “that the defendant voluntarily lifted his sleeves and his shirt s * * does not find the defendant to have been in custody at the time * # * »

We find that from the facts presented the defendant was not in custody, and that the holding of the United States Supreme Court in Schneckloth v. Bustamonte is controlling in this case and further find from the facts presented the defendant voluntarily waived his consent to the search and that a search authorized by consent is fully valid (Schneckloth v. Bustamonte, 412 U.S. 218, 36 L.Ed,2d 854, 93 S.Ct. 2041) and therefore the trial court did not err in denying Hooker’s motion to suppress the evidence.

Affirmed.

ALLOY and DIXON, JJ., concur.


author: Mr. JUSTICE CARTER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael B. Hooper, Defendant-Appellant.
    (No. 73-396;
    Fifth District
    July 11, 1974.
    Robert E. Farrell and Martin Carlson, both of the State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Herbert J. Lantz, Jr., State’s Attorney, of Chester, for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

On November 22, 1972, an information was filed in the Circuit Court of Randolph County charging the defendant with two counts of escape (Ill. Rev. Stat. 1971, ch. 108, par. 121). On August 13, 1973, an amended information was filed charging the defendant with a violation of section 3 — 6 — 4 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1003 — 6 — 4).

On September 11, 1973, an indictment was returned alleging that the defendant committed the offense of escape:

“* * * in that he, being a prisoner in the Illinois State Penitentiary, Menard Branch, did intentionally and knowingly escape from said penitentiary in violation of Paragraph 1003 — 6 — 4(a), Chapter 38, Ill. Rev, Statutes.”

An arraignment was conducted on September 26, 1973, and the defendant was present with counsel. He pled guilty to the offense of escape and was sentenced, pursuant to a plea agreement, to serve 1 to 2 years in the penitentiary.

The defendant contends that his conviction must be reversed because he was prosecuted under a statute which was not in effect at the time the offense was committed, and that the trial court failed to comply with Supreme Court Rules 402(c) and 402(a) (1).

Section 8 — 2 — 2 of the Code of Criminal Procedure (Ill. Rev. Stat., ch. 38, sec. 1008 — 2 — 2) provides:

“The provisions of this Code insofar as they are same or substantially the same as those of any prior statute, shall be construed as a continuation of such prior statute and not as a new enactment.”

It cannot be said that section 3 — 6 — 4(a) is “substantially the same” as old paragraph 121 of chapter 108, and consequently is deemed to be a continuation of prior law rather than a new enactment. Under paragraph 121 of chapter 108, the words “Illinois State Penitentiary” are used while section 3 — 6 — 4(a) states an “institution or facility of the Adult Division”. Section 3 — 6 — 4(a) adds another offense (formerly included in paragraph 134 of chapter 108, “failure to return from furlough”) and makes this a Class 3 felony (1 to 10 years). The sentence under paragraph 121 of chapter 108 was not less than 1 nor more than 10 years, to commence after the expiration of his present term. The sentence under section 3 — 6 — 4(a) is for a Class 2 felony, which is 1 to 20 years, and may ran concurrently if the court so desires.

The offense of the defendant was “failing to return after being released on furlough”. Under the old law a “willful failure to return” was necessary. Under section 3 — 6 — 4(a) the offense is committed if he simply “fails to return * # *.” Under the old law willfullness must be proved; under the new law, it need not be. The defendant could have gone to sleep and overstayed his time or he could have been injured and unable to return. Under the old law he could not have been convicted because there would have been no willfullness, whereas under the current law he could be convicted of failure to return. This, it can be seen that these changes take the new statute out of the law allowing a prosecution if the new statute is a continuation of a prior statute and not a new enactment.

The Unified Code of Corrections did not become effective until January 1, 1973, and by its own provision does not apply to violations of the law occurring prior to its effective date. While the sentencing provision of the Code may thus be applicable to a violation of law occurring prior to the effective date of the Code, a person cannot be prosecuted for a violation of a penal provision of the Code itself where the alleged violation occurred before January 1, 1973, but can be prosecuted only under the law in effect prior to that date.

The cases cited by the State, People ex rel. Goznelli v. Brantly, 49 Ill.2d 383, and People v. Hill, 68 Ill.App.2d 369, involved the inadvertent omission or mis citation of the applicable statute and did not involve a situation where the State intended to prosecute the defendant under a statute which was not in effect on the date the offense was alleged to have been committed. In the instant case, the record clearly establishes that the State specifically intended to prosecute the defendant under section 3 — 6 — 4(a) of the Unified Code of Corrections. Therefore, we do not have the inadvertent failure to cite the correct statutory provision in effect at the time of commission of the offense, but we do have the deliberate prosecution of the defendant under a statute which by its own terms could not be applied to him. For the above reasons, the conviction of the defendant must be reversed, and therefore it is not necessary to consider whether or not the record establishes that there was a factual basis for the plea.

Judgment reversed.

G. MORAN, P. J., and EBERSPACHER, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mitchell White (Impleaded), Defendant-Appellant.
    (No. 59832;
    First District (3rd Division)
    July 3, 1974.
    Paul Bradley and Steven Clark, both of the State Appellate Defenders Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State’s Attorney, of counsel), for the People.
   PER CURIAM.

MEJDA, J., took no part.


author: Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Jean La Fette, a/k/a Donald Eugene Klemmer, Defendant-Appellant.
    (No. 73-121;
    Third District
    June 28, 1974.

      Marshall Douglas, of Jackson, Douglas & DePorter, of East Moline, for appellant.
    Clarke C. Barnes, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Defendant, Donald Jean LaFette, a/k/a Donald Eugene Klemmer, was charged with the offenses of indecent liberties and aggravated battery in the circuit court of Rock Island County. Pursuant to plea negotiations which did not include a sentence recommendation the defendant pleaded guilty to the charge of aggravated battery and the other charge was dismissed. Defendant was sentenced to a term of from 1 year 8 months to 5 years in the penitentiary.

On this appeal defendant argues his plea of guilty was improperly accepted by the Mai court and further that his sentence was improper.

The charge of aggravated battery grew out of an altercation between defendant and bis common law wife which resulted in her stabbing. At the hearing concerning the defendant’s plea of guilty he was represented by counsel and the court extensively explained defendant’s rights to him in accord with Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402). For the purposes of this appeal it is unnecessary to repeat the colloquy between court and defendant because the issue raised by defendant does not depend on the adequacy of the court’s explanation but rather upon the defendant’s assertion that he did not really know what happened. In responding to the court’s advice concerning the nature of the offense and defendant’s understanding of the charge the record demonstrates clearly that the court’s advice was understood by the defendant and that he was aware of the facts underlying the charge because, as we indicated, the facts had been represented to him even though he had no recollection of the incident.

Tire principal thrust of defendant’s argument on this appeal is that because defendant had no personal knowledge of the fact and could neither affirm or disaffirm the facts surrounding the incident, it followed there could be no valid factual basis of the offense presented supporting the conclusion that the defendant voluntarily and understandably pleaded guilty. As we understand defendant’s argument, once the defendant indicates that he has no knowledge concerning the factual basis of the charge the court is required to reject any guilty plea, set the matter for hearing as if the defendant pleaded not guilty and hold a full trial requiring the State to present evidence of defendant’s guilt beyond a reasonable doubt. In this connection it should be observed that the court was advised of the facts surrounding the altercation, the nature of the incident and the nature of the proof which could be offered. In other words, there were adequate facts presented to the trial court from which it could be ascertained that a factual basis for the offense existed unless this rule is dependent on the defendant’s having knowledge of the incident. If the defendant, having had the opportunity to discuss the case with his lawyer, review the prospective testimony of the State’s witnesses and consider such other evidence available, determines that he is, in fact, guilty of an aggravated battery, he is then entitled to make an independent, intelligent choice based on the alternatives open to him and to plead guilty or not guilty. (People v. Griffin, 16 Ill.App.3d 351, 306 N.E. 2d 63.) An accused may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even though he is unwilling to admit participation in the acts constituting the crime, or even if his guilty plea contains a protestation of innocence, when he intelligently concludes that his interests require a guilty plea and tire record strongly evidences guilt. (North Carolina v. Alford, 400 U.S. 25, 27 L.Ed.2d 162, 91 S. Ct. 160.) Where, as in the instant case, the defendant was adequately advised of the alternatives of which he could avail himself, the fact that defendant may evaluate the case against him without personal knowledge of all the facts does not vitiate his election of a course of conduct voluntarily and understandably arrived at.

Passing to the next issue, the claim that his sentence was improper, it is our conclusion that defendant’s objections are not well taken. After his arrest defendant requested examination by a doctor in order that the question of his competency at the time of the offense could be ascertained. The examination took place and the doctor furnished his opinion to the defendant but the doctor’s opinion offered no support for any claim of incompetence. Later at the defendant’s hearing on his request for probation the doctor testified that the defendant might have been under the influence of LSD at the time of the offense, that this would explain his inability to recall the incident and finally the doctor recommended noncustodial treatment as appropriate to the defendant’s condition. The trial court rejected the doctor’s recommendation and denied defendant’s request for probation. It appears undisputed in the record that defendant has several prior felony convictions, had served previous sentences in the penitentiary and had also been convicted of misdemeanors. In view of the defendant’s prior history we find no reason for disturbing the sentence of the court.

For the foregoing reasons, the judgment of the circuit court of Rock Island County is affirmed.

Judgment affirmed.

SCOTT, P. J., and ALLOY, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Danny D. Davis, Defendant-Appellant.
    (No. 73-135;
    Third District
    June 28, 1974.

      James Geis, of the State Appellate Defender’s Office, of Ottawa, for appellant.
    Fred R. Odendahl, State’s Attorney, of Monmouth, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Pursuant to his nonnegotiated plea of guilty to the offense of burglary the circuit court of Warren County after hearing denied the request of defendant, Danny Davis, for probation and sentenced him to a term of from 2 to 6 years in the penitentiary. On this appeal the only issue raised is defendant’s claim that his sentence is excessive.

The court conducted a combined hearing on defendant’s request for probation and in aggravation and mitigation of the sentence to be imposed. At such hearing the court considered the testimony of numerous character witnesses called by the defendant, the pre-sentence probation report and defendant’s prior record. It would serve no useful purpose to discuss the evidence at length since the gist of defendant’s argument seems to be that the court by relying primarily on the probation report and defendant’s prior record abused its discretion in meting out the sentence imposed.

In our view of the record we find no reason for disturbing the determination of the trial court. While it is true there was evidence presented by the defendant from which it could be inferred that probation or a lesser sentence might be appropriate it is also true that there is evidence contrary to the foregoing inferences supporting the action of the trial court. According to the evidence of defendant’s prior record he had been convicted of numerous misdemeanors most of them growing out of automobile offenses, liquor offenses and breach of the peace offenses. However, on one of the misdemeanor charges defendant had been sentenced to 9 months in prison. It also appears from the record a previous effort at probation had been unsuccessful. Under these circumstances it is peculiarly the function of the trial court to weigh the conflicting inferences and the fact that he may have referred to defendant’s prior record as of great significance in support of the sentence imposed does not mean that the court has abused its discretion in imposing sentence.

Finally, defendant argues the court erred in failing to consider periodic imprisonment as provided by the Corrections Act which went into effect January 1, 1973. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 7 — 1.) However, we find no support for such contention in the record and in particular we find no support for any claim that the court failed to consider any of the sentencing alternatives available.

For the foregoing reasons, the judgment of the circuit court of Warren County is affirmed.

Judgment affirmed.

ALLOY and DIXON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eugene Joel Cather, Defendant-Appellant.
    (No. 73-233;
    Third District
    June 28, 1974.
    Walter D. Braud, of Rock Island, for appellant.
    Clarke C. Barnes, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Defendant, Eugene Joel Gather, pleaded guilty in the circuit court of Rock Island County to the offense of the unlawful sale of a controlled substance (Cocaine) and was sentenced to a term of from 1 to 3 years in the penitentiary. On this appeal the only issue raised is that the court erred in sentencing the defendant to the penitentiary rather than granting him probation. In September, 1972, defendant was arrested and indicted for three drug offenses occurring in April and June of 1972 including the sale of cocaine to which offense he pleaded guilty in March, 1973. The plea was the result of negotiations whereby the State agreed to drop the other two charges. No recommendation on sentence was included in the plea bargain and the defendant was advised that the State would oppose his request for probation.

Defendant did apply for probation after his guilty plea was accepted and after a hearing on his application for probation and in aggravation and mitigation probation was denied and the sentence of from 1 to 3 years in the penitentiary was imposed. No questions are raised concerning tire propriety of any of the proceedings culminating in the court’s acceptance of defendant’s guilty plea.

Several witnesses testified in defendant’s behalf concerning his war record, his effort at rehabilitation which to date were deemed successful and his future prospects. The court, although recognizing defendant’s progress in eliminating his drug addiction, nevertheless concluded that because of the nature of the offense, i.e., sale of a hard narcotic, incarceration was appropriate.

On this appeal defendant argues that the penitentiary sentence was inconsistent and not required for his rehabilitation as a drug addict and that the court erred in imposing the penitentiary sentence because the trial court believed probation should not be granted where the sale of hard drugs is involved.

© 1,2 We believe it unnecessary to discuss the facts presented at the probation and sentence hearing at any length. Since People ex rel. Ward v. Moran, 54 II1.2d 552, 301 N.E.2d 300, the decision of whether probation should or should not be granted has been committed to the discretion of the trial court. Where this determination involves the alternatives of rehabilitation pursuant to probation or incarceration because of the seriousness of the offense the trial court is vested with the discretion to determine that the nature of the offense requires incarceration. Where the incarceration imposed is a minimum sentence this court is not in a position to review the discretion exercised by the trial court.

For the foregoing reasons, the judgment of the circuit court of Rock Island County is affirmed.

Judgment affirmed.

SCOTT, P. J., and ALLOY, J. concur.


author: Mr. JUSTICE SIMKINS

text:
    Russell G. Masinelli, Plaintiff-Appellant, v. John S. Hofferkamp, Director, State Board of Elections, et al., Defendants-Appellees.
    (No. 12728;
    Fourth District
    July 26, 1974.
    Phelps, Russell, Carmody & Hasten, of Carlinville (Carl E. Hasten, of counsel), for appellant.
    Joseph P. Koval, State’s Attorney, of Carlinville, for appellees County Clerks of Macoupin, Green, and Jersey Counties.
    Thomas F. Londrigan, of Londrigan, Potter & Billington, of Springfield, for appellee Vincent T. Demuzio.
    Thomas Price, Assistant Attorney General, of Springfield, for appellee John S. Hofferkamp.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

This case was heard on an accelerated basis. Our ruling was announced shortly following the conclusion of oral argument, with the written opinion of the court to issue within a short day.

On March 19, 1974, the primary election in the 49th Legislative District was held. Plaintiff-appellant, Russell G. Masinelli, and defendant-appellee, Vincent T. Demuzio, were on the Democratic ballot, both seeking to become the candidate for the office of State senator. The canvass of the ballots by the State Board of Elections was concluded on or about April 12, 1974. The Board proclaimed Demuzio to be the candidate of the Democratic Party by a margin of 330 votes. He received a total of 11,428 votes, and Masinelli received 11,098 votes.

The issue presented by this appeal is a narrow one. Plaintiff asserts that he is entitled to a discovery recount of some 12 precincts in the 49th legislative district by reason of the provisions of section 22 — 9.1 of the Election Code. (Ill. Rev. Stat. 1973, ch. 46, par. 22 — 9.1.) The trial court held that the statute in question did not afford discovery in primary elections, granted defendants motion for summary judgment and dismissed plaintiffs complaint for writ of mandamus, declaratory judgment and injunctive relief. We affirm.

The pertinent portions of the statute provide as follows:

‘Within 5 days after proclamation of the results of any canvass declaring persons elected to any office, any candidate, who * * * received votes equal in number to at least 95% of the number of votes cast for any successful candidate # * may file * * * a petition for purposes of discovery only, * * * asking that ballots be examined and counted in specified election districts * # « ” (Emphasis added.) Ill. Rev. Stat. 1973, ch. 46, par. 22 — 9.1.

In urging that section 22 — 9.1 applies to primaries, as well as general elections, plaintiff argues that the use of the word “candidates” rather than “nominees,” together with the use of the term “election” in the statute, is significant and impels the conclusion that primary elections are within the purview of the statute. Section 1 — 3 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 1 — 3(1)) provides:

“ ‘Election includes the submission of all questions of public policy, propositions, and all measures submitted to popular vote, and includes primary elections when so indicated by the context.” (Emphasis added.) Ill. Rev. Stat. 1973, ch. 46, par. 1 — 3(1).

Primary elections are not within the context of section 22 — 9.1. The statute expressly, plainly, and without ambiguity provides for discovery after proclamation of the results of a canvass “* * * declaring persons elected to any office * # In the election in question no one was elected to office. The winner became his party’s candidate to be elected to office. The statute is to be construed so as to give each word and sentence its ordinary and accepted meaning. (Vaught v. Industrial Com., 52 Ill.2d 158, 165, 287 N.E.2d 701.) We therefore hold that section 22 — 9.1 does not afford discovery in primary elections. We also note that section 7 — 63 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 7 — 63) explicitly provides a procedure for contest of the results of a primary election.

Plaintiff also urges that construction of section 22 — 9.1 to deny him discovery constitutes a denial of equal protection of the law, in contravention of the fourteenth amendment to the Federal Constitution and article I, section 2, of the Constitution of Illinois (1970). We have examined the cases cited by plaintiff in support of this contention and find no persuasive authority. Evans v. Cornman, 398 U.S. 419, 26 L.Ed.2d 370, 90 S.Ct. 1752, dealt with the problem of denying the right to vote to those who pay no real estate taxes. Reynolds v. Sims, 377 U.S. 533, 12 L.Ed.2d 506, 84 S.Ct. 1362, held that a State may not dilute a person’s vote to weight other interests. Williams v. Rhodes, 393 U.S. 23, 21 L.Ed. 2d 24, 89 S.Ct. 5, stands for the proposition that placement of candidates of a political party on the ballot cannot constitutionally be rendered impossible by State electoral machinery. Other cited cases are concerned with poll taxes, literacy standards, denial of right to vote to convicted misdemeanants, etc. None of these cases is relevant. There is no contention here that any citizen in the 49th legislative district was improperly prevented from casting his ballot, there is no contention that any citizen’s vote was “diluted.” The cases simply do not support the argument.

The legislature has chosen to make section 22 — 9.1 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 22 — 9.1) applicable only to general elections, and it has chosen to provide in section 7 — 63 of the Election Code a different procedure by means of which the results of primary elections may be tested.

We see no denial of equal protection in this classification. Section 22 — 9.1 applies equally to all candidates in all instances where one is elected to office, and section 7 — 63 applies equally to all candidates seeking party nomination to office in a primary. There is a presumption of the validity of legislative classifications. (People v. Sherman, 57 Ill.2d 1, 309 N.E.2d 562.) Unless the classification constitutes an infringement of a constitutionally protected interest or is inherently suspect, all that is required to sustain it is that it have some rational and reasonable basis. (People v. McCabe, 49 Ill.2d 338, 275 N.E.2d 407; Sherman.) We hold that the legislative decision to provide different procedures for testing the results of primary elections, as contrasted to those in which a candidate is elected to office, is not constitutionally infirm. The judgment is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE CLYDESDALE

text:
    The City of Danville, Plaintiff-Appellee, v. Evelyn O. Reffett, Defendant-Appellant.
    (No. 12561;
    Fourth District
    June 27, 1974.

      Rehearing denied August 21, 1974.

    Whitney D. Hardey, of Land of Lincoln Legal Assistance Foundation, Inc., of Danville (Daniel K. Mumme, Senior Law Student, of counsel), for appellant.
    No appearance for appellee.
   Mr. JUSTICE CLYDESDALE

delivered the opinion of the court:

This is an appeal by Evelyn O. Reffett, defendant, who was found guilty by the court of restricting and obstructing a police officer in violation of a city ordinance of the City of Danville. The court assessed a fine against the defendant in the sum of $10 and costs in the sum of $5.

Prior to trial, defendant filed an application to sue or defend as a poor person and requested the appointment of counsel. Both requests were denied by the court without hearing.

On appeal, the defendant raised the following issues: (1) Should an indigent defendant, as a matter of right, be advised of the right to a jury trial in a municipal ordinance violation case; (2) should an indigent have a right to the appointment of counsel in a municipal ordinance violation case; and (3) does the appropriation of bond money to satisfy a fine and costs amount to an unconstitutional taking of property where defendant claims the bond money was welfare money received by her for aid to her dependent children?

The City did not file a responsive brief on appeal and the only oral argument before this court was by the appellant-defendant.

Although substantial issues have been raised by the defendant, we do not propose to serve in the dual role of advocate and judge. This is a position termed “abhorrent” by the court in People v. Spinelli, 83 Ill.App.2d 391, 227 N.E.2d 779.

The City’s failure to file a brief leaves the judgment of the trial court without the support of brief and argument to which it is justly entitled. Since the City has abandoned its case on appeal, we see no reason to go into the merits. We have decided to reverse the judgment pro forma. Spinelli; People ex rel. Pullman Bank & Trust Co. v. Fitzgerald, 14 Ill.App.3d 247, 302 N.E.2d 429; Shinn v. County Board of School Trustees, 130 Ill.App.2d 908, 266 N.E.2d 123.

The judgment of the circuit court of Vermifion County is reversed and the clerk of the circuit court is directed to return the sum of $15 to the appeHant.

Reversed and remanded with directions.

TRAPP, P. J., and SIMKINS, J., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    Robert E. Baker et al., Plaintiffs-Appellees, v. Loves Park Savings and Loan Association, Defendant-Appellant.
    (No. 73-21;
    Second District
    July 24, 1974.

      Guyer & Enichen, of Rockford, for appellant.
    Maynard & Brassfield, of Rockford, for appellees.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Plaintiffs, after filing a declaratory judgment action to construe certain provisions of a note and mortgage, were granted a summary judgment from which defendant appeals. The issue presented is whether the provisions constituted an unlawful restraint on alienation of property.

On May 5, 1967, plaintiffs purchased a home in Rockford, Illinois, for $20,700. To complete the purchase, they borrowed $15,700 with interest at the rate of 6% per annum from the defendant.

The note, in addition to providing that all of the “terms and conditions” of the mortgage securing the indebtedness were to be incorporated, also provided:

‘We further agree that upon any default upon this obligation, or the instrument securing it, interest at the rate of 1 percent (1%) per annum above the original rate provided herein on the unpaid balance of this indebtedness may be charged for the period of such default. Upon any default under this obligation, or the instrument securing it, at the option of the holder of this note, the unpaid balance of this note, and any advances made under it, or the instrument securing it, together with interest, shall become due and payable * *

That portion of the mortgage which is here relevant stated:

“A. THE MORTGAGOR COVENANTS DURING THE TERM OF THIS MORTGAGE:
(8) Not to suffer or permit without the written permission or consent of the Mortgagee being first had and obtained * * *
(d) A sale, assignment or transfer of any right, title, or interest in and to said property or any portion thereof * *

On March 14, 1970, without obtaining defendant’s consent, plaintiffs sold their house on contract to a third party for $23,000. On March 26, 1970, after learning of the sale, defendant notified the plaintiffs that it would not consent to the sale, that the note was therefore in default, and that an additional interest of 1% per annum above the original rate would be charged until the default was cured.

The trial court, in its order granting the summary judgment, found that the quoted portion of the mortgage constituted an unlawful restraint on alienation, that it was therefore unenforceable and of no legal effect. It further found that the quoted portion of the note was unenforceable “to the extent that said provision is invoked pursuant to Section A(8) (d) of the mortgage.”

A restraint on alienation is usually applied to real property. Ordinarily, under the common law, the restraint was accomplished by means of a deed or will wherein the grantor or testator restricted conveyance. A mortgage does not transfer title or possession but acts as a lien. Under strict interpretation, it cannot be considered a restraint on alienation of property as between the mortgagor and the mortgagee. A mortgage is, however, in the nature of a restraint on alienation of property in that the effect of the mortgage clause here involved is to restrict the mortgagor’s right to freely transfer his property. In other jurisdictions, the “consent to sale” clause found in the mortgage limits the conveyance of the property and thereby becomes a restraint on the alienation of the property. See Coast Bank v. Minderhout, 61 Cal. 2d 311, 314-315, 392 P. 2d 265, 267-68, 38 Cal. Rptr. 505, 507 (1964); Baltimore Life Insurance Co. v. Ham, 15 Ariz. App. 78, 81, 486 P.2d 190, 193 (1971); Tucker v. Pulaski Federal Savings & Loan Association, 252 Ark. 849, 854, 481 S.W. 2d 725, 728 (1972).

Defendant does not deny that the clause is a restraint but argues that the restraint, being reasonable, is lawful, whereas plaintiffs claim the clause is unlawful per se. Their contrary positions create the issue before us.

In Illinois, a person has a right to convey his property, and any restraint on alienation of property, as a general rule, is void as against public policy. This rule has been followed even though the restraints are limited in time (McFadden v. McFadden, 302 Ill. 504, 506-07 (1922)), as to mode (Noth v. Noth, 292 Ill. 536, 543 (1920)), or as to the type of estate (McNamara v. McNamara, 293 Ill. 54, 59 (1920); Randolph v. Wilkinson, 294 Ill. 508, 518 (1920); Tolley v. Wilson, 371 Ill. 124, 132 (1939)). The policy is based on the fact that restraints on alienation tend to keep property out of commerce, concentrate wealth, and deter improvement of the property; they may also prevent creditors from satisfying their claims. Against these disadvantages, the only benefit seems to be the satisfying of the conveyor’s whims. Consequently, only where a restraint in alienation is reasonably designed to attain or encourage accepted social or economic goals will it be sustained. Thus:

“* * * [T]he crucial inquiry should be directed at the utility of the restraint as compared with the injurious consequences that will flow from its enforcement. If accepted social and economic considerations dictate that a partial restraint is reasonably necessary for their fulfillment, such a restraint should be sustained.” Gale v. York Center Community Cooperative, Inc., 21 Ill.2d 86, 92 (1960).

The question of whether the “consent to sale” clause should become an exception to the general rule against alienation is one of first impression. Other jurisdictions, under varying rationale, have held that it was reasonable for a lender to condition continued extension of credit upon the basis that the borrower retain his interest in the property securing the debt. See Malouff v. Midland Federal Savings & Loan Ass’n, 509 P.2d 1240, 1243 (Colo. 1973); People’s Savings Ass’n v. Standard Industries, Inc., 22 Ohio App.2d 35, 257 N.E.2d 406, 407-08 (1970); Walker Bank & Trust Co. v. Neilson, 26 Utah 2d 383, 385, 490 P.2d 328, 329 (1971); Baltimore Life Insurance Co. v. Harn, 15 Ariz. App. 78, 486 P.2d 190 (1971); Gunther v. White, 489 S.W.2d 529 (Tenn. 1973); Tucker v. Pulaski Federal Savings (? Loan Association, 252 Ark. 849, 481 S.W.2d 725 (1972); Stith v. Hudson City Savings Institution, 63 Misc. 2d 863, 313 N.Y.S.2d 804, 808 (Sup. Ct. 1970); Mutual Federal Savings & Loan Association v. Wisconsin Wire Works, 58 Wis. 2d 99, 105-111, 205 N.W. 2d 762, 766-69 (1973).

Before a mortgage is let, the lender must consider not only the value of the security and the forecasted fluctuations of interest rates but the borrower’s ability to keep the premises in repair, his integrity, reliability and degree of responsibility. The evaluation of these personal factors weighs heavily in the lender’s determination. Thus the mortgage is issued to the person as well as on the property. In obtaining the mortgage, the borrower must suffer the injurious consequence of being prohibited from passing his lower-than-prevailing interest rate to another buyer without having first received the lender’s consent. We are of the opinion that the utility of the restraint outweighs the injurious consequences that flow from its enforcement.

We therefore hold that the “consent to sale” clause is not per se unlawful as against public policy but, rather, that it may be found to be a reasonable restraint upon alienation of property depending upon the underlying circumstances of the case. (Gale v. York Center Community Cooperative, Inc., supra.) In the case at bar, the trial court did not consider the underlying circumstances to determine whether the restraint herein was reasonable. The summary judgment is reversed and the cause remanded for such determination.

Judgment reversed and cause remanded.

SEIDENFELD and RECHENMACHER, JJ., concur.


text:
    Mattyas Mattyasovszky, Adm'r of the Estate of Matty as Mattyasovszky, Jr., Deceased, Plaintiff-Appellee, v. West Towns Bus Company, Defendant-Appellant.
    (No. 72-217;
    Second District
    July 2, 1974.

      Rehearing denied July 25, 1974.

      Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellant.
    Corrigan, Mackay, Quetsch & O’Reilly, of Wheaton, for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A wrongful death action, charging ordinary negligence and wilful and wanton misconduct, was brought by plaintiff against defendant and its driver, Posey. Plaintiff sought both pecuniary and punitive damages arising from the death of the deceased. At the close of the case-in-chief, Posey was dismissed from the case. The jury’s verdict found defendant guilty of wilful and wanton misconduct, awarded plaintiff $75,000 pecuniary damages and $50,000 punitive damages, and found, by way of a special interrogatory, that the decedent was not guilty of contributory negligence.

Three months after trial, plaintiff was permitted to amend the complaint to include two additional counts, one stating a cause of action under the survival statute, the other stating a cause of action under the common law for wilful and wanton misconduct.

Defendant appeals contending, as a matter of law, that it was free from wilful and wanton misconduct and that the deceased was guilty of contributory negligence; that the jury’s findings on these two issues were against the manifest weight of the evidence; that the award of punitive damages was not proper when the injuries resulted in the decedent’s death; and that the award for pecuniary damages was excessive.

On February 12, 1970, the deceased, aged 12, was a passenger on defendant’s bus. He, along with other passengers, alighted through the rear exit. Realizing that he was at a wrong stop, he attempted to re-enter the bus via the rear door and, as the doors closed on his wrist and foot, he became trapped on the outside of the bus. The conveyance started to move, passengers within shouted for the driver to stop and people outside pounded on the bus. The bus slowed, the driver turned his head, but the bus continued forward. Decedent freed himself from the door but was kiHed under the rear wheels of the bus.

It is contended that the defendant is not guüty of wilful and wanton misconduct as a matter of law because there is no evidence to support this finding; that the evidence presented concerning this charge so overwhelmingly favors the defendant that it is entitled to a judgment n.o.v. or, in the alternative, that the finding of wilful and wanton misconduct was against the manifest weight of the evidence.

Wilful and wanton misconduct was defined for the jury as “an utter indifference to or a conscious disregard for the safety of others.” (IPI2d — Civil § 14.01.) This definition is in accord with Illinois case law. (See Myers v. Krajefska, 8 IU.2d 322, 328-29 (1956); Klatt v. Commonwealth Edison Co., 33 Ill.2d 481, 487-88 (1965).) In determining whether the defendant was guüty of wilful and wanton misconduct as a matter of law, we may not consider conflicts in the evidence, credibility of the witnesses or the weight or preponderance of the evidence, but must take the evidence most favorable to the plaintiff as true. Hering v. Hilton, 12 Ill.2d 559, 562-63 (1958); Kubajak v. VerBrugge, 59 Ill.App.2d 344, 348-49 (1965).

Regarding judgments notwithstanding the verdict, the applicable rule of law is that a court should direct a judgment n.o.v. “only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict # # # could ever stand.” (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510 (1967).) Where there is sufficient evidence to submit the charge to the jury, the issue becomes a question of fact for the jury's determination. (Schneiderman v. Interstate Transit Lines, Inc., 331 Ill.App. 143, 147 (1947), affd, 401 Ill. 172 (1948).) The jury is the judge of the credibility of the witnesses. (Chicago City Ry. Co. v. O’Donnell, 109 Ill.App. 616, 623 (1903), affd 207 Ill. 478 (1904).) “Where the trial court has heard the testimony and observed the witnesses we are not at liberty to disturb its judgment unless we can say that such judgment is manifestly against the weight of the evidence.” (Myers v. Krajefska, supra, at page 328.) For a verdict to be against the manifest weight of the evidence, an opposite conclusion must be clearly evident. Green v. Keenan, 10 Ill.App.2d 53, 59 (1956).

In addition to the facts already related, evidence revealed that the defendant’s bus lacked an outside, right rear-view mirror; that the bus’ rear door safety device was inoperable due to the corrosion of the contact points in the bell housing; that the driver was not required to check the rear door safety device prior to each run although such check required only a matter of minutes; that the driver had turned off the stop-signal bell; and that the driver was not calling out the stops. Defendant presented evidence that the driver did not hear the shouts of the passengers or the pounding of others upon the outside of the bus. Such evidence is contradicted by evidence showing that the driver slowed the bus and turned his head. In Moore v. Jewel Tea Co., 116 Ill.App.2d 109, 136 (1969), aff’d, 46 Ill.2d 288 (1970), the court points out that “[vjalid jury questions of wilful and wanton conduct have been presented by as little as misjudging the distance of an approaching automobile, * * * and failing to look before making a left turn * *

We hold that, contrary to defendant’s position, there was evidence of wilful and wanton misconduct. We further hold that this evidence was sufficient to deny defendant a judgment n.o.v.

Evidence that the defendant permitted the bus to carry passengers without an inspection of the rear door safety device and without the installation of an outside right rear-view mirror, and that the bus was moved forward without regard to the shouts of the passengers and the pounding of those outside, was sufficient basis for the jury’s conclusion that defendant acted with an utter indifference to or a conscious disregard for the safety of the decedent. An opposite conclusion is not clearly evident. The verdict, finding defendant guilty of wilful and wanton misconduct, was not, therefore, against the manifest weight of the evidence.

Defendant maintains that the decedent was guilty of contributory negligence as a matter of law or, in the alternative, that by finding the decedent free from contributory negligence, the jury’s verdict was against the manifest weight of the evidence. There is no claim that decedent was guilty of contributory wilful and wanton misconduct. Defendant’s contention concerns only the issue of decedent’s contributory negligence. Ordinary negligence on the part of the victim is not a defense in an action predicated upon wilful and wanton misconduct. (Scott v. Instant Parking, Inc., 100 Ill.App.2d 293, 299-300 (1968); Yelinich v. Capalongo, 38 Ill.App.2d 199, 205-206 (1962).) Having found that the evidence was sufficient for the jury to find defendant guilty of wilful and wanton misconduct, we conclude that there is no justiciable issue concerning defendant’s contributory negligence.

Defendant asserts that under the Wrongful Death Act (Ill. Rev. Stat. 1971, ch. 70, § 1 et seq.) pecuniary damages, not punitive damages, are proper. The act provides in relevant part:

“* * * [T]he amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person.” (Ill. Rev. Stat. 1971, ch. 70, § 2.)

Plaintiff argues that where death is attributable to decedent’s injuries, punitive damages can be awarded to the estate of the decedent or to his heirs, upon either of two alternative bases: (a) the common law of Illinois, or (b) the survival statute (Ill. Rev. Stat. 1971, ch. 3, § 339).

Early common law in Illinois established that a living plaintiff may recover both compensatory and punitive damages when the injury was the result of the wilful and wanton misconduct of the defendant. (Chicago & A.R.R. v. Wilson, 63 Ill. 167, 173 (1872).) This is still the law. (Moore v. Jewel Tea Co., supra.) Whether the common law also provides this relief to the estate or heirs of a decedent when the death is attributable to the claimed injuries requires an examination of two distinct common law rules here pertinent: (1) that a plaintiff may not complain of the death of another as causing injury to him, and (2) that personal actions abate with the death of the injured party. The two rules can be distinguished by the party seeking damages. Under the first rule, the heirs would seek damages for their own losses occasioned by the wrongful death. Under the second rule, the estate of the victim would seek damages for losses incurred on the victims behalf as a result of the injuries.

The basis for the first of those common law rules is found in the root of English common law (Roman law), the Lex Aquilia. Therein, compensation was allowed for injuries caused to a freeman by another’s wrongful act (Grueber, Lex Aquilia, 17; Dig. ix. 1.3; ix. 2.13 pr; ix. 3.7) but it was provided that no damages were recoverable for the death of a freeman (Grueber, Lex Aquilia, 17; Dig. ix. 3.1.5). The latter resulted from the conviction that to put a value on the life of a freeman was to reduce him to the status of a slave (property). Since no pecuniary value for his life could be ascertained, it was impossible to award damages. Although later criticized as having no place in our common law (Holdsworth, The Origin of the Rule in Baker v. Bolton, 32 Law Quarterly Review 431 (1916)), the concept took hold in England in the case of Baker v. Bolton, 1 Camp. 493, 10 R.R. 734, 170 Eng. Reprint 1033 (1808), wherein the plaintiff’s wife had been injured in a stagecoach mishap which was due, presumably, to ordinary negligence on the part of the defendant carrier. The woman died of her injuries a month later and suit was instituted by the husband for his loss of consortium and services. While damages were allowed for loss of services between the time of injury and death, none were awarded for the losses occasioned by the womans death. Lord EHenborough stated, “In a civil court, the death of a human being could not be complained of as an injury; and in this case the damages as to the plaintiff’s wife must stop with the period of her existence.”

The second of the common law rules set forth (the abatement rule) originated early in the history of English law. (Malone, The Genesis of Wrongful Death, 17 Stan. L. Rev. 1043, 1044 (1965).)

The courts of Illinois have recognized both axioms as the common law. In Crane v. Chicago & W. I. R. R. Co., 233 Ill. 259, 262 (1908), the supreme court reiterated the first rale by stating, “At the common law no action could be maintained against any person or corporation causing the death of another by wrongful act, neglect or default.” In Murphy v. McGrath, 79 Ill. 594, 595 (1875), the supreme court recognized the abatement rale and stated, “At common law, doubtless the action would have abated on the death of the plaintiff before final judgment * * Saunders v. Schultz, 20 Ill.2d 301, 309-11 (1960), expanded the Illinois common law by allowing the estate or heirs of the victim to recover pecuniary losses, not otherwise recoverable under our Wrongful Death Act, when the victim’s death was due to the wrongful act of another. The change occasioned by Saunders was specifically limited to pecuniary losses. In all other respects the common law remains undisturbed. We, therefore, find that there is no presently-recognized common law cause of action in Illinois by which punitive damages may be granted in a wrongful death action.

In order to alleviate the harsh and unjust result of the common law, our legislature, in 1853, enacted the Wrongful Death Act and, in 1872, enacted the survival statute. The purpose of each statute is distinct. It was the purpose of the Wrongful Death Act to allow the heirs of the decedent to collect for their pecuniary losses suffered as a result of the death. The survival statute was enacted to allow the continuation of specific types of suits that would otherwise abate under the common law due to the death of one of the parties. Under the holding of Holton v. Daly, 106 Ill. 131 (1882), the Wrongful Death Act provided the exclusive remedy where the decedent had died of the complained-of injuries and further provided that no action for damages could be brought under the Survival Statute when the injuries resulted in the death of the decedent. This distinction was extinguished in Murphy v. Martin Oil Co., 56 Ill.2d 423, 431 (1974), wherein the court expressly overruled Holton and held that both the heirs and the estate may sue for injuries caused by the wrongful death. Thus, it is the law in Illinois today that the heirs may bring a suit under the Wrongful Death Act for their pecuniary losses and the estate may bring a suit under the survival statute to recover damages for injury to the person and property of the decedent even though death is attributable to the injuries. However, the Murphy case in no way affected Conant v. Griffin, 48 Ill. 410, 412-13 (1868), wherein the court found that punitive damages were not recoverable under the Wrongful Death Act. This is still the law today. Baird v. Chicago, B. & Q. R.R. Co., 11 Ill.App.3d 264, 268-70 (1973).

Left unanswered is the question of whether punitive damages are recoverable under that portion of the Survival Statute which states, “In addition to actions which survive by the common law, the following survive: * * * actions to recover damages for an injury to the person * ” We initially note that the statute is to be liberally construed (Devine v. Healy, 241 Ill. 34, 40 (1909); Northern Trust Co. v. Palmer, 171 Ill. 383, 387 (1898)), and that the present trend is to allow punitive damages where a person has died due to the wilful and wanton conduct of another. (Holthus, Punitive Damages in Wrongful Death, 20 Clev. St. L. Rev. 301 (1971).) A majority of jurisdictions deny recovery of punitive damages under their wrongful death, survival or hybrid statutes.

Simply stated, the matter is essentially one of statutory construction. Most states that deny recovery of punitive damages do so under the theory that the right to recover damages for wrongful death did not exist at common law and the statute must be strictly construed. Therefore, where the right to punitive damages is not expressly stated, the statute has been interpreted to mean that no right exists. States that allow punitive damages have found that the purpose of the statute is to punish the wrongdoer, or that the public has a right to be protected from such objectionable conduct by making an example of the wilful and wanton tortfeasor, or that the statute is remedial in nature and the legislative intent was to allow punitive damages.

A case in point is Reynolds v. Willis, 58 Del. 368, 209 A.2d 760, 763-64 (1965), wherein the court allowed recovery of punitive damages under the Survival Statute but not under the Wrongful Death Act and in so doing noted that, “theoretically, there appears to be no reason for withholding this punishment simply because the victim [died] from the injuries received.” Similarly, in Hennigan v. Atlantic Refining Co., 282 F. Supp. 667, 683 (1967), affd, 400 F. 2d 857 (1968), cert, denied, 395 U.S. 904, 23 L.Ed.2d 216, 89 S.Ct. 1739 (1969), the Federal court (in applying Pennsylvania’s survival statute) noted that, “since the function of punitive damages is to punish outrageous conduct and to discourage similar conduct in the future, Restatement, Torts, § 908, Comment (a) (1939), it would appear to be inconsistent to disallow such an award where the conduct of the defendant is not only reprehensible but in fact results in death.” An examination of the Delaware and Pennsylvania survival statutes in effect at the time of these opinions must be considered due to the marked similarities in their wording. See 10 Del. Code Ann., §3701 (1963); 20 Pa. Stat. Ann., § 320.601 (1949).

Such a construction of our own survival statute would once and for all put to rest the old adage that it is cheaper to kill your victim than to leave him maimed. In addition to deterring others from wilful and wanton misconduct, it would bring death actions into complete harmony with the general body of law governing other types of tortious conduct. Logically, it would seem that punitive damages should be allowed to the estate of the decedent under the survival statute.

The logic for allowing such a recovery finds support in the reasoning of Murphy v. Martin Oil Co., supra, at page 431, wherein the court stated:

“To say that there can be recovery only for his wrongful death is to provide an obviously inadequate justice. Too, the result in such a case is that the wrongdoer will have to answer for only a portion of the damages he caused. Incongruously, if the injury caused is so severe that death results, the wrongdoer’s liability for the damages before death will be extinguished. It is obvious that in order to have a full liability and a full recovery there must be an action allowed for damages up to the time of death, as well as thereafter.”

Despite our highest desires, however, law is not always based upon logical rationale. The survival action for damages for injury to the person is a creature of statute and the intent of the legislature, as expressed in the statute, is controlling. The words “damages for injury to the person” clearly and unequivocally mean damages of a physical character. (See Shedd v. Patterson, 230 Ill.App. 553, 557 (1923), aff’d, 312 Ill. 371 (1924).) Punitive damages are not damages of a physical character. They are those assessed in the interest of society to punish the defendant and to warn him and others that such acts are offenses against society. (Eshelman v. Rawalt, 298 Ill. 192, 197 (1921).) No plaintiff has a vested right to punitive damages. The legislature may restrict or deny the allowance of such damages at will. (Smith v. Hill, 12 Ill.2d 588, 595 (1958).) Although the survival statute is found to be remedial in nature and is to be liberally construed (McDaniel v. Bullard, 34 Ill.2d 487, 492 (1966)), the words of the statute must be construed to take on their ordinary, popularly-accepted meaning. (Jones v. Barmm, 217 Ill. 381 (1905).) The reason for the old common-law rule of abatement seems to be that a tort action was originally regarded as punitive in character. (McDaniel v. Bullard, supra, at page 493.) The legislature modified the rule of abatement when it limited recovery under the survival statute to damages of a physical character. We find that by allowing actions to survive for damages for injury to the person, the legislature intended to allow the recovery of only compensatory damages. Thus we hold that there exists no right to punitive damages under the survival statute.

Anticipating the possibility of our holding that punitive damages were not proper in the case at bar, plaintiff contends that any error in this regard was waived by defendant’s failure to object to the award at trial. Defendant did, in fact, challenge the award of punitive damages in its post-trial motion and it can thus be assumed that the trial court considered the issue in denying plaintiffs motion. Regardless, this is not the type of error to which the rule of waiver applies. The error involved is not one which relates to a matter within the discretion of the trial court but, rather, is one which goes to the heart of the complaint. The issue is whether the complaint was legally correct in seeking punitive damages. While one may waive defects in a complaint which contains an incomplete or otherwise insufficient statement of a good cause of action, the question of whether there is a legal basis for the complaint can be raised at any time. (People ex rel. Hanrahan v. One 1965 Oldsmobile, 52 Ill.2d 37, 46 (1972); Wagner v. Kepler, 411 Ill. 368, 371 (1951); Watson v. Chicago Transit Authority, 12 Ill.App.3d 684, 688 (1973).) Following these cases, we find the rule of waiver to be inapplicable to the issue of whether the plaintiff has a legal right to seek punitive damages and, for the above reasons, we vacate the award of punitive damages.

Defendant seeks to have the case remanded to the trial court because the jury was erroneously instructed that they could award punitive damages if they found the defendant guilty of wilful and wanton misconduct. This error does not require remandment because (1) any error in instructing the jury that they could award punitive damages was waived by defendant’s failure to object to the instruction (Delany v. Badame, 49 Ill.2d 168, 178 (1971); Russo v. Kellogg, 37 Ill.App.2d 336, 341-42 (1962)) and (2) the defendant could not have been prejudiced by this instruction inasmuch as there were separate verdicts for pecuniary and punitive damages. Compare Baird v. Chicago, B. & Q. R. R. Co., supra.

Defendant also seeks remandment on the basis that he was prejudiced in the eyes of the jurors by the trial court allowing arguments, evidence and instructions on wilful and wanton misconduct. This claim is without merit. Wilful and wanton misconduct is a ground for seeking recovery of pecuniary damages in a wrongful death action. Chicago City Ry. Co. v. O’Donnell, supra.

Defendant claims that the pecuniary award of $75,000 was excessive, that it was based on passion, prejudice, speculation and sentimentality. Decedent was the oldest of four children. He did all of the outside maintenance chores for the family (e.g., summer yard work and painting the garage). He repaired watches and television sets and, at the time of his death, was gainfully employed as a representative of a Chicago newspaper. With funds earned, he had purchased a lawn mower for his family, contributed to the purchase of his own clothing and that of the other children. He assisted his parents in caring for the children. When his mother was ill, he took over household functions. He planned to go to college and, after graduation, to help finance the education of the three younger children.

“There is a presumption of a pecuniary loss in favor of the lineal heirs of the deceased in a wrongful death action arising from the relationship alone. The decedent’s parents are, of course, lineal next of kin.” (Jung v. Buelens, 77 Ill.App.2d 391, 398 (1966).) Fixing the amount of damages is a function of the trier of fact and that determination will not be disturbed unless obviously the result of passion or prejudice. (Maca v. Rock Island-Moline City Lines, Inc., 47 Ill.App.2d 31, 37 (1964).) Based on the evidence presented, we cannot say that the jury’s award was obviously based upon passion or prejudice.

The judgment awarding $50,000 punitive damage is vacated. In all other respects, the judgment is affirmed.

Judgment affirmed in part and vacated in part.

SEIDENFELD and RECHENMACHER, JJ., concur.


author: Mr. JUSTICE DOWNING

text:
      In re Estate of Herman Henry Fleer, Deceased. Ira D. Schultz, Guardian-ad-Litem for certain minor legatees of Herman Henry Fleer, Deceased, Respondent-Appellant, v. Elmhurst College et al., Respondents-Appellees—( Benjamin H. Fleer et al., Executors of the Last Will of Herman Henry Fleer, Deceased, Petitioners.)
    (No. 59169;
    First District (2nd Division)
    June 25, 1974.

      Ira D. Schultz, of Chicago (Sidney Z. Karasik, of counsel), for appellant.
    Goebel and Kal, of Chicago, for appellee Elmhurst College.
    Kennedy, Golan, Morris, Spangler & Greenberg, of Chicago, for ap-pellee The Salvation Army.
    Mayer, Brown & Platt, of Chicago, for appellees American Cancer Society and Chicago Heart Association.
    John Mulder, of Chicago, for appellee Fourth Presbyterian Church.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

This is an appeal involving a probate matter. Insufficient funds existed in the decedent’s estate with which to fulfill all of the bequests made under the decedent’s will. The executors of decedent’s estate petitioned the court below for instructions with respect to distribution of the estate. The guardian ad litem, who had been appointed to represent certain minor legatees named under the will, appeals from an order entered in the court below proportionately abating certain legacies under two separate articles of the will to two different groups of legatees.

The pertinent facts may be summarized as follows. The decedent, Herman Henry Fleer, died on January 28, 1969, and his will was admitted to probate March 20, 1969. Article I of the will provided that payment of expenses of last illness, the costs of decedent’s funeral, and the administration of the estate were to be made from the principal of the residuary estate. Article II provided that death taxes were to be paid out of the residuary estate. Article III provided specific bequests of certain items of decedent’s personalty to his relatives and to Elmhurst College. Article IV provided dollar amount bequests, totalling $414,000, to the testator’s brother and certain other relatives, including nieces, a nephew, grandnieces, and grandnephews. Article V provided dollar amount bequests, totalling $90,000, to five eleemosynary institutions: $50,000 to Elmhurst College, and $10,000 each to the Salvation Army, the Chicago Heart Association, the American Cancer Society, and the Fourth Presbyterian Church of Chicago, Illinois. Article VI provided for the disposition of decedent’s residuary estate.

After the appointment of the guardian ad litem for certain of the minor legatees provided for in Article IV, and after the assets of the estate were found to be insufficient to pay all of the will’s legacies in full, the executors petitioned the probate division for a finding that the legacies under Article V should abate in full prior to the abatement of the legacies under Article IV; and that the executors be given leave to distribute the remaining assets, after payment of taxes and so forth, to the legatees under Article IV pro rata in the proportions of their legacies.

The court below entered an order stating that if abatement was necessary on the distribution of the estate, the general legacies in Articles IV and V were to abate proportionately.

The sole issue on review, raised by the guardian ad litem, is whether the order entered in the court below, abating the legacies proportionately, was erroneous, in that the order was contrary to what was alleged to have been the intention of the testator with respect to abatement.

I.

The guardian ad litem contends on appeal that the testamentary scheme of disposition set forth in the instant will manifested an intent by the testator to prefer the natural objects of his bounty over the bequests he made to the eleemosynaries involved herein. Consequently, it is urged, the testator intended, in the event abatement became necessary, that the legacies to the eleemosynaries should have been eliminated prior to prorating any reduction in the general bequests to the testator’s relatives. The testator’s preference for his relatives, it is claimed, was evident from the face of the will, by virtue of the order and manner in which the bequests were made; the use of certain terms of endearment with respect to the testator’s relatives; the use of terms of obligation with respect to certain of his relatives; and the bequeathment in Article VI, the residuary article, of far greater percentages of his estate to relatives than to the eleemosynaries mentioned therein.

Section 291(b) of the Probate Act (Ill. Rev. Stat. 1973, ch. 3, par. 291 (b)) provides:

“(b Unless otherwise provided by the will, when the estate of a testator is insufficient to pay all devises and all legacies under his will, specific devises and legacies shall be satisfied pro rata before general devises and legacies, and general devises and legacies shall be satisfied pro rata without any priority in either case as between real and personal estate.”

The legacies involved in the matter at bar, those in Articles IV and V, are general legacies, in that they are designated primarily by quantity or amount and may be satisfied out of the general assets of the testator, without the necessity of delivering any particular chattel or fund to the legatee. In re Estate of Berman (2d Dist. 1963), 39 Ill.App.2d 175, 178, 187 N.E.2d 541.

It is clear to us that while the above-quoted provision of the Probate Act provides that general legacies abate proportionately where an estate is insufficient to pay all legacies unless a contrary intention is provided in a will, that contrary intention must be set forth in the will and cannot be derived from such inferences as the guardian ad litem seeks to draw here. In Rexford v. Bacon (1902), 195 Ill. 70, a case upon which the appellant relies, wherein the testatrix set down in her will a definite and well defined scheme of preference, our supreme court stated, at page 78 of the opinion:

“Where the testatrix has laid down and carried out a consistent scheme of distribution throughout, it will not be disturbed by the courts unless they are compelled to do so by the very terms of the will or codicil.”

This court, in In re Estate of McDonald (2d Dist. 1942), 314 Ill.App. 148, 151-152, 41 N.E.2d 128, discussed some of the principles which must guide us in the resolution of the issue presented on this appeal:

“A preference or priority may be given a legatee of a general legacy if the intention of the testator to give such preference appears beyond dispute by the terms of the will. Rood on Wills, p. 497, par. 743 (General Legacies). Redfield — Law of Wills — (3 Ed. 1869), vol. 2, p. 450, sec. 7; and p. 454, sec. 13 (on Priority of Payment of Legacies).
The order in which legacies shall abate may be controlled by direction of the testator expressed in his will. Ordinarily a testator will be deemed to have acted upon the belief that his estate would be sufficient to answer the purposes to which it is devoted. If the chances of deficiency are anticipated and provided for by the terms of the will, then the directions of the testator will govern, and the legatee or legatees to be preferred will so be, and the loss must be borne by those who by the terms of the will of the testator are designated to bear such loss. Thus, we find that a testator may give preference to certain legatees over others, and such directions must be followed. Commentaries on Wills (Alexander), vol. 2, p. 1020, par. 691.
A testator can discriminate as between or among those who take under his will, and prefer one to another, in the event the funds of the estate shall be exhausted prior to the payment of all the legacies. * * * An unexpected shrinkage in the estate of a testator not infrequently occurs after he has made his will, and before his death or before his estate can be put in shape for settlement. If the shrinkage is substantial, there may not be enough in the estate to pay the legacies in full after satisfaction of the debts. Therefore, testators frequently provide against such a contingency by prescribing the order in which legacies shall be satisfied. In the absence of such provision, general legacies suffer and abate pro rata.”

We find, after having reviewed the instant will and the arguments presented by the guardian ad litem,, that the order entered in the court below was not erroneous, as the decedent’s will failed to provide for a scheme of disposition contrary to that set down in section 291(b) of the Probate Act. In his brief and on oral argument, the guardian ad litem placed great reliance upon Moody Bible Institute v. Pettibone (1st Dist. 1937), 289 Ill.App. 69, 6 N.E.2d 676, which stood, in part, for the proposition that, as a general rule, legacies to relatives, who are otherwise unprovided for, are given preference over other legacies to those who have no natural claim on the testator’s bounty. We have read the Moody case, and find that, in view of the totality of the circumstances in the matter at hand, the case is unpersuasive.

For these reasons, then, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

STAMOS and LEIGHTON, JJ., concur.