author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Merrill Scott et al., Defendants-Appellants.
    (No. 58784;
    First District (3rd Division)
    June 20, 1974.

      Paul Bradley, of the State Appellate Defender’s Office, of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Defendants, Merrill Scott and Henry Crutcher, were indicted for armed robbery, theft, and unlawful restraint. After a joint trial in the circuit court of Cook County the jury found defendants guilty of all three offenses. Scott was sentenced to 10 to 24 years in the penitentiary for armed robbery and 1 to 2 years for unlawful restraint, the two sentences to run consecutively. Crutcher was sentenced to 8 to 16 years for armed robbery and 1 to 2 years for unlawful restraint, the two sentences to run consecutively. Defendants have appealed.

Both defendants contend that they were not proved guilty beyond a reasonable doubt, that the trial court improperly admitted hearsay identification testimony into evidence, and that their sentences were excessive. In addition, Scott contends that the lineup at which both he and Crutcher were identified was unduly suggestive.

We affirm as modified.

The facts follow. The complaining witness, Steven James, testified at trial that on April 5, 1972, at 9:30 P.M., he drove his new automobile into the alley behind his home. As he pulled into the alley he saw three men walking together toward the front of his car. James unlocked the door of his garage, which faced the alley, and backed his car into it. As he was sitting in his car with the garage door open, he observed the three men walk by. When they had passed James got out of his car and locked the car door. Immediately thereafter he remembered that he had locked his cigarettes in the car. While he was looking for the cigarettes, one of the three men he had seen in the alley, identified as defendant Scott, placed the barrel of a .38-caliber revolver to his left side. Scott searched him and removed his billfold which contained $41. Two other men entered the garage. One of them, whom James identified as Crutcher, placed a revolver to his head. James was told to lie face down on the garage floor. He remained on the floor for 4 to 5 minutes, during which time he was again searched. His watch, keys, gloves, and cigarettes were taken.

Defendant then put James into the trunk of his car and drove away. He remained in the trunk for approximately 2 hours but was unable to ascertain where the men were driving. While he was in the trunk he heard one of the men say that he was going to kill him. He heard another man object. When the trunk was finally opened, he saw three men, two of whom he identified as defendants. They pulled him out of the trunk and forced him to walk approximately 75 feet in a bent over position until they reached an abandoned building. Once inside the building Scott bound James with a belt and took the coat that he was wearing. After his assailants had left, James freed himself, signaled a squad car to stop, and reported the incident.

On cross-examination, James testified that he gave a description of his car to the first police officer he encountered but did not give a description of his assailants until another group of police officers arrived at the scene. James could not remember the clothing that the men were wearing nor could he give any description of the third man who was involved. Officer Guisinger of the Chicago Police Department testified that he arrived at the scene at about 11:30 P.M. or 11:45 P.M. that night and interviewed James for over an hour. According to the police officer James described one of the men as a male Negro, between 18 and 23 years old, about 5'10" tall, 150 lbs., black or brown hair, brown eyes, and medium complexion and the other man as a male Negro, 5'8" tall, 150 lbs., black hair, brown eyes, and medium complexion.

The testimony further showed that there were no lights in the garage, but that a lamp in the alley near the garage provided illumination. At various times during the episode defendants told James not to look at them. However, James maintained that he looked at them every chance he had. The testimony further showed that James’ driver’s license restricted him by requiring him to wear corrective lenses while driving. At the time of the robbery and thereafter he was not wearing his glasses. He explained that he only needed his glasses for reading and that he could drive his car without wearing them.

Defendants’ arrest occurred as a result of the description of James’ new car. At 4 P.M. on April 6, 1972, the day after the incident, Officer Cronin of the Chicago Police Department observed four men in a car proceeding suspiciously, very slowly, westbound on Fillmore Avenue, as he was proceeding eastbound in a squad car. Officer Cronin did not realize that the car had been stolen until he passed it and noticed the license plate number to which he had been alerted. He chased the car but momentarily lost sight of it. He also radioed for assistance and gave a description of the two men he observed in the front seat of the car to other police officers. He testified that he described the clothing that the men were wearing. He described one as wearing a dark black fur coat and the other as wearing a green army type jacket and a beard. Approximately 5 minutes later, Officers Bolton and Anderson returned in their squad car with two men in the back seat to the location at which the stolen car had been abandoned and Officer Cronin identified the two men by their faces as the men he had observed earlier. Likewise, at trial, he identified defendants as the men he had observed in the front seat of the stolen car. Officer Anderson apprehended defendants near the location where Officer Cronin first spotted them. He recognized them walking together on the street by the description which Officer Cronin had given.

At a lineup which the police conducted on April 7, 1972 James selected both defendants from a group of six men and positively identified them as two of his assailants. Officer Cronin and Assistant State’s Attorney Fagan testified, in addition, that James had selected defendants at the lineup. As the men were leaving the lineup area, James noticed that Crutcher was wearing the coat that James wore during the robbery and abduction. However, James testified that he selected Crutcher at the lineup by his facial features. James further testified that before the lineup the police telephoned him and told him that they had someone in custody. They did not tell him how many suspects they intended to place in the lineup. Officer Cronin testified that he recognized defendants at the lineup as the men he had observed in the front seat of the stolen car.

The prosecutor introduced into evidence James’ coat which was allegedly taken and later recovered from Crutcher. Officer Guisinger testified that although his report of the incident did not indicate that a coat had been taken, it did show that the officer observed that the complaining witness was not wearing a coat at the time. Aside from the coat and automobile, the police did not recover any of the other stolen items.

The defense did not present any evidence.

Scott contends that the lineup at which he and Crutcher were identified was unduly suggestive and that the trial court committed reversible error when it denied Scott’s pre-trial motion to suppress all identification testimony. Scott’s motion alleged that the manner in which the police conducted the lineup was a denial of due process. In particular, Scott argues that the lineup was suggestive in that he stood apart from the others in terms of age, height, and the fact that he was the only person who had a full beard.

The lineup included six male Negro subjects, two of whom were the defendants. Scott was in position number 1 and Crutcher was in position number 4. Scott was age 28 at the time; Crutcher was 19. The other men were aged 18, 20, 19, and 18 respectively. At the hearing on the motion to suppress, a police officer who witnessed the lineup testified from a photograph of the lineup that two subjects were approximately the same height as Scott. We were unable to examine the photograph itself, which was later introduced into evidence at trial, as it was not included in the record on appeal. We infer from the record, however, that Scott was the tallest member of the lineup. The police witness further testified that the police tried to find someone else in the lockup who had a beard but were unsuccessful. At the conclusion of the hearing the trial court found that any identification testimony that James might give would not be tainted by the lineup and denied the motion. We find no reversible error in the trial court’s ruling.

Whether a pre-trial confrontation offends due process depends on whether based on the totality of circumstances the confrontation was unnecessarily suggestive and conducive to irreparable mistaken identification. (Stovall v. Denno, 388 U.S.293, 18 L.Ed.2d 1199, 87 S.Ct. 1967; People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152.) The defendant has the burden of proving that the lineup procedure was unfair. (People v. Blumenshine, supra; People v. Brown, 52 Ill.2d 94, 285 N.E.2d 1.) In the instant case we find that the police did not conduct a lineup which violated Scott’s constitutional right of due process. Although Scott was the tallest member of the lineup, there were two other members who were close to him in height. Slight differences in height are of little consequence. (People v. Prignano, 2 Ill.App.3d 1063, 278 N.E.2d 128, cert. denied, 409 U.S. 851.) Although Scott was 28 years old at the time and the other members were from 18 to 20 years old, there was testimony that all six members looked to be approximately the same age.

The most serious challenge to the lineup is that Scott was the only member to have a full beard. However, we do not find this feature of the lineup to constitute a denial of due process under the circumstances. It is significant that James did not mention a beard in any of his prior descriptions, even conceding that these descriptions were rather general in nature. (See People v. Bates, 9 Ill.App.3d 882, 293 N.E.2d 358.) At trial James’ testimony was that he was not sure he noticed a beard at the time he was robbed. The lineup was conducted 2 days after the occurrence when James’ recollection of his assailants was relatively fresh. The police required all members of the lineup to speak the same words. The witness selected Scott from the lineup partially because of his voice. He was positive of his identification. In addition, it is noteworthy that the police searched the lockup for another man with a beard. Under all these circumstances we find that the trial court did not err in concluding that the lineup was not unnecessarily suggestive. See People v. Keane, 127 Ill.App.2d 383, 262 N.E.2d 364.

Even assuming that the lineup was impermissibly suggestive, we find that based on the totality of circumstances James’ identification stemmed from his observation of Scott at the time of the crimes and had an origin independent of the lineup proceedings. (Neil v. Biggers, 409 U.S. 188, 34 L.Ed.2d 401, 93 S.Ct. 375; Stovall v. Denno, supra; People v. Blumenshine, supra.) A review of the trial testimony shows that James had more than adequate opportunity to observe both defendants on the night the crimes were committed. James had opportunities to observe defendants in the alley near his garage, at close range in the garage while they threatened him with deadly weapons, at close range in the alley where they drove him and removed him from the trunk, and at close range in the abandoned building where Scott tied him up. The lighting conditions, while not ideal, were adequate. Because of defendants’ warnings, James was only able to glance at them at first. By the time the episode had finished, however, he had managed to get a good look at them. That James was not wearing his glasses during the robbery and driving under a restricted license are factors that go to the weight of his testimony. People v. Lawrence, 72 Ill.App.2d 1, 217 N.E.2d 120.

Defendants’ second contention is that they were not proved guilty beyond a reasonable doubt. We find it significant that not only did James’ identification testimony connect defendants with the crimes but so did the identification testimony of Officer Cronin that he observed defendants in the stolen car and James’ black fur coat which the police recovered from Crutcher. This other evidence of guilt more than overcomes any deficiency that we could perceive in the identification testimony of the complaining witness in that he could only muster a general description of the defendants. People v. Brown, 51 Ill.2d 271, 281 N.E.2d 682.

Officer Cronin positively identified both defendants in court, and at the scene. His observation of the defendants occurred under ample fighting conditions during daylight hours. His description of defendants led to their apprehension. In its totality we find the proof in the record sufficient to sustain the jury’s verdicts. The cases cited by defendants to support reversal are inapposite for the reason that they deal with cases in which defendants presented strong and corroborated alibi evidence in opposition to vague, doubtful, or otherwise unsatisfactory identification.

Defendants’ third contention is that the testimony of a police officer and Assistant State’s Attorney that James had identified defendants at the lineup was plain error which requires reversal. Defendants raised no objections to this testimony at trial. The testimony, although hearsay and objectionable, was merely cumulative to James’ identification testimony. (People v. Lowe, 112 Ill.App.2d 399, 251 N.E.2d 329.) In view of this and other competent evidence of guilt, we find the error, if any, to be harmless. People v. Gaiter, 8 Ill.App.3d 784, 291 N.E.2d 172.

Defendants’ final contention is that the consecutive sentences were excessive. We agree that the provision of the Unified Code of Corrections which pertains to the sentences involved dictates that the sentences for armed robbery imposed on each defendant be reduced. The relevant portion of the Code provides in pertinent part:

“(c) The aggregate maximum of consecutive sentence shall not exceed twice the maximum term authorized under Section 5 — 8—1 for the most serious felony involved. The aggregate minimum period of consecutive sentences shall not exceed twice the lowest minimum term authorized under Section 5 — 8—1 for the most serious felony involved * * Ill. Rev. Stat., 1973 Supp., ch. 38, sec. 1005 — 8—4(c).

The trial court imposed an aggregate minimum sentence of 11 years on Scott. (10 years for armed robbery and 1 year for unlawful restraint.) Under the above statute the maximum aggregate minimum sentence would be 8 years. (Twice 4 years, the lowest minimum for armed robbery, the most serious felony involved.) The trial court imposed an aggregate minimum sentence of 9 years on Crutcher. (8 years for armed robbery and 1 year for unlawful restraint.) As in the case of Scott, under the above statute the maximum aggregate minimum sentence would be 8 years.

Section 5 — 8—4(c) is applicable to both defendants in the instant case because their appeals were pending on January 1, 1973, the effective date of the Unified Code of Corrections, and because application of the Code would result in a reduction of the sentences imposed under the prior law. People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.

Accordingly, we reduce Scott’s sentence of 10 to 24 years for armed robbery to a term of 7 to 24 years. This reduced term is to be consecutive to the term of 1 to 2 years for unlawful restraint. Likewise, we reduce Crutcher’s sentence of 8 to 16 years for armed robbery to a term of 7 to 16 years. This reduced term is to be consecutive to the term of 1 to 2 years for unlawful restraint.

The prosecution argues that section 5 — 8—4(c) was amended by Public Act 78 — 939 and that defendants’ sentences should stand. This act is not applicable to the instant case. (See People v. DuPree, 16 Ill.App.3d 769, 306 N.E.2d 693.) In People v. Braddock, 17 Ill.App.3d 73, 308 N.E.2d 74, we have recently decided that the provisions of Public Act 78 — 939 do not become effective until July 1, 1974.

In defendants’ supplemental brief they request that we order their sentences to run concurrently because the record does not indicate that consecutive sentences are required to protect the public from further criminal conduct by the defendants. This contention is based on the language of section 5 — 8—4(b) of the Unified Code of Corrections, which provides:

“The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court may set forth in the record.” Ill. Rev. Stat., ch. 38, sec. 1005 — 8—4(b).

In a recent case cited by defendants, People v. Reno, 17 Ill.App.3d 348, 308 N.E.2d 3, the appellate court ordered a consecutive sentence to run concurrently so “that the ends of justice will best be served.” After a thorough review of the record in the instant case, which included the hearing in aggravation and mitigation, we conclude that consecutive sentences are proper under the circumstances and although the trial court did not specifically state in the record that consecutive sentences were in the public interest, it is apparent that he was of such an opinion and the circumstances of the case fully justify his order. See People v. Talach, 19 Ill.App.3d 189, 311 N.E.2d 319, where the court remanded for further consideration of the propriety of consecutive sentences, when, after examining the record, it could not make a proper determination, and was remanding for additional consideration of other sentencing issues.

Finally, defendants contend that their sentences should be further reduced because they were excessive considering their personal backgrounds. The modified sentences are within the bounds prescribed by the legislature. The record does not warrant any further reduction. Accordingly, the judgments of the circuit court of Cook County are affirmed except that the sentences are modified as expressed above.

Judgments affirmed as modified.

DEMPSEY and MEJDA, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DEMPSEY.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Boris Flowers, Defendant-Appellant.
    (No. 59332;
    First District (3rd Division)
    June 20, 1974.
    James J. Doherty, Public Defender, of Chicago (Alan Eckstein and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and John M. Cutrone, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE DEMPSEY.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Chavers, Defendant-Appellant.
    (No. 59737;
    First District (3rd Division)
    June 20, 1974.
    No appearance for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

DEMPSEY, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eddie Ford, Defendant-Appellant.
    (Nos. 58116-7 cons.;
    First District (5th Division)
    June 21, 1974.

      James J. Doherty, Public Defender, of Chicago (Donald S. Honschell and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George Young, Defendant-Appellant.
    (No. 58527;
    First District (3rd Division)
    June 6, 1974.

      Paul Bradley, Robert E. Davison, and A1 Weiderer, of the State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and John Brennan, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

In a trial without a jury the defendant George Young was convicted of burglary and was sentenced to a term of 3 to 9 years in the penitentiary. He appeals his conviction on three grounds: he was not proven guilty beyond a reasonable doubt; his sentence was increased because he exercised his right to a trial, and the punishment imposed on him was excessive.

Young was arrested less than two blocks away from the Chicago home of Lee and Alberta Lewis, which had just been burglarized. Fred Saunders, a next-door neighbor of the Lewises, testified at the trial that about 3:30 P.M., he heard a burglar alarm from the Lewis house and went to investigate. On the way he met Mrs. Jessie Evans, another neighbor, who had also heard the alarm. They noticed that the back door of the Lewis home was open and a basement window was broken. They entered the house and saw Young and a woman identified as Eva Davis coming down the stairs from the second floor with clothes in their arms. When Young and Davis saw Saunders and Mrs. Evans, they dropped the clothing and ran out the front door to a car which was parked in front of the residence. They could not start the car and they got out and ran down an alley. Saunders flagged down a police car which was responding to the burglar alarm and told the policemen what he had seen. He got into the car and the police drove around the block to the other end of the alley. Saunders identified Young and Davis as they came out of the alley and the police arrested them.

Jessie Evans also testified that she saw Young and Davis inside the Lewis home and watched them run away. She continued to watch them until they were arrested at the end of the alley. Jeffrey Williams testified that on the day of the burglary, as he stood across the street from the Lewis residence talking to a friend, he saw Young sitting in a car parked in front of the Lewis home. One of the arresting officers testified that he saw Young throw a bag onto a lawn adjoining the alley. He recovered the bag and found a crowbar inside.

Young did not testify at the trial. However, Eva Davis testified that he was not the man with whom she committed the burglary. She said that Young saw her running in the alley and joined her, and that it was she who threw away the bag containing the crowbar.

The defendant’s assertion that the evidence did not support his conviction is without merit. Two witnesses saw him in the act of burglarizing the Lewis home. One watched him from that time until his arrest minutes later; the other accompanied the police and identified him soon after the crime had occurred. That their testimony lacked details about the clothing he wore does not detract from their unimpeached testimony and positive identifications.

At a pre-trial conference, the possibility of a guilty plea was discussed. Young, who had a long criminal record, was told that if he were to plead guilty his sentence would be 2 to 5 years. He contends that the 3- to 9-year sentence he did receive was punishment for exercising his right to a trial and that statements made by the court confirmed this.

The first sentence imposed on Young after the hearing in aggravation and mitigation was a term of 4 to 12 years in the penitentiary. In pronouncing this sentence, the court stated:

“I might add that I have increased the sentence that I said that I would impose upon you in this matter. This matter was conferenced and the primary reason for increasing it is because I feel the evidence clearly shows you are guilty. Furthermore, the court does not appreciate your bringing into this Court a young woman, Miss Davis, and having her perjure herself under oath in an attempt to take you out from under your legal obligation. So I have seen fit to add two years to the minimum sentence that I said I would give you when the matter was conferenced * *

The court was told by defense counsel that Miss Davis did not testify at the defendant’s request but at his own. After hearing this explanation the court re-sentenced Young to three to nine years. The court stated, “You shot tiie dice and they just came up craps. I have no inclination to give you the same thing had you chose to throw yourself on the mercy of the Court. I will add one year * *

In People v. Moriarty (1962), 25 Ill.2d 565, 567, 185 N.E.2d 688, the court reversed the conviction of a defendant who had been given a higher sentence because he had pleaded not guilty rather than guilty. The trial judge had said,

# * If you’d have come in here, as you should have done in the first instance, to save the State the trouble of calling a jury, I would probably have sentenced you, as I indicated to you I would have sentenced you, to one to life in the penitentiary. It will cost you 9 years additional, because the sentence now is ten to life in the penitentiary/ ”

The reviewing court stated:

“* * * we believe that the court’s remarks here make it evident that the punishment imposed by the trial judge was in part for the reason that the defendant had availed himself of his right to a jury trial, and only in part for the crime for which he was indicted. A defendant in a criminal case should not be punished by a heavy sentence merely because he exercises his constitutional right to be tried before an impartial judge or jury.”

In two other cases, remarks made by the trial judges during sentencing which referred to the defendants’ use of a trial were held to be inappropriate, but the court held that the sentences imposed were justified. In People v. Capon (1961), 23 Ill.2d 254, 257, 178 N.E.2d 296, the trial judge said in pronouncing sentence, “If he had come in and pleaded guilty, it might have been different. All I can do is sentence him in accordance with the statute. You take your chance when you take a jury, one to life in the penitentiary.’” In People v. Hopkins (1963), 29 Ill.2d 260, 267, 194 N.E.2d 213, the trial judge responded to a plea for leniency by saying, “ ‘Well, the difficulty with giving leniency here is if the defendant would have come in and plead guilty and thrown himself on the mercy of the court, that is one thing. But where a man stands trial and the evidence convinces the court that the man is clearly guilty * * */”

In Capon and Hopkins there was no evidence of what the sentences would have been if the defendants had pleaded guilty. In this case, Young was offered a sentence of 2 to 5 years if he pleaded guilty. This was acknowledged by the court, as evidenced by his statements and by his question to the defendant’s lawyer, “I said two to five on the plea, did I not?”

Whether a defendant received a heavier sentence because he demanded a trial must be clearly established by the evidence. (People v. Perry (1971), 47 Ill.2d 402, 266 N.E.2d 330.) The statements by the court in the present case, like those made by the trial judge in Moriarty, leave no doubt that Young’s sentence was increased because he went to trial:

“* * * I have increased the sentence that I said that I would impose upon you * * * the primary reason for increasing it is because * * * the evidence clearly shows you are guilty” and, “you shot the dice and they just came up craps. I have no inclination to give you the same thing had you chose to throw yourself on the mercy of the court."

A secondary reason given for the longer sentence — subornation of the perjury committed by Eva Davis — was withdrawn when the original sentence of 4 to 12 years was vacated. The evidence which the court said clearly showed Youngs guilt did not establish his guilt any more than an admission of guilt, through a plea of guilty, would have done. At no time was it contemplated that Young would throw himself “on the mercy of the court.” His plea of guilty, if made, would have been accompanied by an agreed sentence of 2 to 5 years.

The trial court raised the minimum sentence offered to the defendant if he pleaded guilty by 1 year and the maximum by 4 years. The evidence of the defendant’s guilt was overwhelming and his trial was free of error. There is no reason to reverse the conviction, as was ordered in Moriarty. The only mistake was in the sentencing and the explanation given by the court for increasing the punishment from a 2-year minimum to 3, and from a 5-year maximum to 9. The circumstances of this case compel a modification of the sentence to that which was originally offered to the defendant.

The defendant’s third contention, excessive punishment, was directed to the sentence of 3 to 9 years and does not have to be considered.

The conviction of the defendant is affirmed but his sentence is reduced to a period of not less than 2 and not more than 5 years in the penitentiary.

Judgment affirmed as modified.

McNAMARA, P. J., and MEJDA, J., concur.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Miguel Baez, Defendant-Appellant.
    (Nos. 59519-21 cons.;
    First District (1st Division)
    June 3, 1974.
    BURKE, J., took no part.

      James J. Doherty, Public Defender, of Chicago (Lawrence J. Czepiel, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM:

In connection with his possession on March 7, 1973, of a .38-caliber automatic pistol, the defendant, Miguel Baez, was convicted following a bench trial of the following three weapons offenses and sentenced to concurrent terms of 9 months in the Illinois State Farm at Vandalia:

1. Unlawful use of weapons in that he carried on his person a loaded .38-caliber automatic pistol in violation of Ill. Rev. Stat. 1973, ch. 38, par. 24 — 1 (a) (10);

2. Failure to have in his possession a firearm owner’s identification card issued by the Department of Law Enforcement in violation of Ill. Rev. Stat. 1973, ch. 38, par. 83 — 2;

3. Defacing identification marks on a firearm, specifically with defacing the serial number of the .38-caliber weapon so it was illegible in violation of Ill. Rev. Stat. 1973, ch. 38, par. 24 — 5.

Defendant raises four contentions on this appeal: (1) since the complaints were stamped as filed on March 6, 1973, and the charge and proof showed the incident occurred on March 7, 1973, all convictions should be reversed; (2) the charge of defacing identification marks on a firearm is defective because it stated he possessed a defaced weapon rather than that he changed, altered, removed or obliterated the identification number; (3) the provision of section 24 — 5(b), that possession of a defaced firearm is prima facie evidence that the possessor defaced the firearm, violates the due process clause of the United States and Illinois Constitutions: (4) the Assistant Public Defender’s statement, “Not guilty, Jury waived,” made after the case was passed, was not a sufficient waiver of jury.

The evidence may be briefly summarized: Chicago Police Officer Lester Bowen testified that on March 7, 1973, at North Avenue and California in the City of Chicago he observed a butt of a pistol protruding from the defendant’s belt and arrested him. The defendant could not produce a State firearm owner’s identification card when requested by the officer to do so, and tire weapon was admitted into evidence. The defendant testified that the officer suddenly came up to him and searched him while he was waiting for a bus. The officer put his hands up and took out the gun and put it in his face and asked if he wanted him to pull the trigger, and the defendant said, “Hell, no, because it’s loaded.” He claimed he had just bought the gun and was going to take it to a police officer he knew so that the officer could check it out for him. He knew that having a weapon was “kind of dangerous” and he could be in trouble if he was stopped, but “there was a chance that I took, you know, and unfortunately I got caught.”

The evidence and the complaints, themselves, state that the offense occurred on March 7, 1973, but the complaints are stamped filed on March 6, 1973. Although the defendant did not argue this point in his written post-trial motion, the defendant now contends that this discrepancy voids the complaint. As the State.points out, this failure to raise the issue in the written post-trial motion constituted a waiver of the issue. (People v. Irwin, 32 Ill.2d 441, 207 N.E.2d 76.) Nevertheless, People v. Wright, 21 Ill.2d 547, 173 N.E.2d 451, cited by the defendant, is distinguishable because in that case it was not disputed that a police officer filed a false affidavit when he appeared before a judge at 11 o’clock in the morning on October 1, 1956, and signed an information stating the defendant was in possession of certain narcotic drugs, when in fact at the time the warrant was issued the defendant was en route from New York to Chicago by plane.

No issue was made of the difference between the stamped date and that date alleged, and the proof corresponded to the date alleged. The only reasonable conclusion is that the court clerk made a mistake. The defendant has offered no other proof that the complaint was filed the day before the occurrence.

Defendant contends he was not properly charged under section 24 — 5 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 24 — 5), which provides:

“§ 24 — 5. Defacing Identification Marks of Firearms, (a) Any person who shall change, alter, remove or obliterate the name of the maker, model, manufacturer’s number or other mark of identification of any firearm commits a Class A misdemeanor.
(b) Possession of any firearm upon which any such mark shall have been changed, altered, removed or obliterated shall be prima facie evidence that the possessor has changed, altered, removed or obliterated the same.” Amended by P.A. 77 — 2638, § 1, eff. Jan. 1, 1973.

The complaint charged the defendant “committed the offense of Defacing Firearm Identification Marks in that he possessed a .38-caliber automatic pistol on which the serial number had been defaced as to make it illegible in violation of Chapter 38, Section 24 — 5.” Defendant’s contention is that the complaint charged him with possession of a defaced weapon, which is not a crime, but evidence of a crime, and that he was not charged with changing, removing, altering or obliterating the firearm identification marks. However, a complaint is to be read as a whole and where, as here, the statute is cited in the complaint, the statute and the charge are to be read together. As the court said in People v. Harvey, 53 Ill.2d 585, 588, 294 N.E.2d 269, the charge “which is phrased in terms of the statutory offense may be valid if the words ‘so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged.’ ” Since the charge here refers to section 24 — 5 of the Criminal Code and states that the defendant had in his possession a defaced weapon, the complaint and the statute, when read together, clearly indicate the crime with which the defendant was charged.

Defendant next argues that there is no rational connection between possession of a defaced weapon and the inference to be drawn therefrom by section 24 — 5(b), that the possessor is presumed to be the one who altered the identification marks. The State argues that common sense and experience indicate a person does not buy a firearm where the identification marks have been defaced. Defendant answers that firearms are easily and freely obtained and that the person in possession may have been unaware of the fact that the firearm was defaced until after arrest. On a factual basis, defendant argues that he had bought the weapon only 10 minutes before the officer stopped him for its possession, and that he did not have time to deface it, himself. However, we think the inference is a reasonable one; it is not an irrebuttable presumption but merely prima facie evidence which is supported by the difficulty of proving, as an initial matter, that the person in possession actually did deface the weapon. Here, although the defendant testified, he did not deny that he defaced the weapon.

Defendant next contends that he did not make a voluntary and intelligent waiver of his right to jury. The point of his argument in this regard is that the assistant public defender appointed to represent him failed to discover his prior record upon which the 9-month sentence was imposed and that had the assistant public defender been aware of that record he would not have advised the defendant to waive his right to a jury and accept a bench trial. However, the assistant public defender, after a conference with the defendant, stated, “Not guilty, Jury waived.” People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397, held that when an accused permits his attorney, in his presence and without his objection, to waive his right to a jury trial, a defendant will be deemed to have acquiesced in and will be bound by his attorney’s conduct. The Sailor rule also applies to court-appointed counsel. (People v. McClinton, 4 Ill.App.3d 253, 280 N.E.2d 795.) In People v. Davis, 17 Ill.App.3d 127, 308 N.E.2d 34, an Assistant Public Defender waived a jury after having conferred with the defendant and this was held sufficient under Sailor.

Accordingly, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

Mr. JUSTICE BURKE took no part in the consideration or decision of this case.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roosevelt Bridges, Defendant-Appellant.
    (No. 59391;
    First District (1st Division)
    June 3, 1974.

      Howard T. Savage, of Chicago (Howard O. Edmonds, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Dennis J. O’Hara, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

BURKE, J., took no part.


author: Mr. JUSTICE HALLETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roy L. Hamil, Defendant-Appellant.
    (Nos. 58879, 59325 cons.;
    First District (1st Division)
    June 3, 1974.

      Paul Bradley, of the State Appellate Defender’s Office, of Chicago, and Clinton R. Batterton, Senior Law Student, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Dennis J. O’Hara, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE HALLETT

deEvered the opinion of the court:

We have here appeals in two separate and yet related proceedings involving the same individual and they have been consoEdated on his motion.

No. 58879

In No. 58879, Roy Lee Hamil, who was then under indictment for rape, attempt rape, robbery, etc., involving four females, two of them under age, was charged in a petition filed in 1966 in those cases, with being a “sexually dangerous person” under “An Act relating to sexually dangerous persons and providing for their commitment, detention and supervision,” approved July 6, 1938, as amended (Ill. Rev. Stat. 1965, ch. 38, § § 105 — 1 through 105 — 12). After a full scale hearing in which he was represented by private counsel, he was adjudged to be such a person and was committed to the custody of the Director of PubEc Safety “until he has recovered.” The said criminal charges were stricken with leave to reinstate. No contention was made in that proceeding that the statute under which he was so committed was unconstitutional. In August of 1968, after treatment at the Elgin State Hospital, he was given another hearing in the Criminal Court and was given a “conditional release” from his said commitment.

On December 2, 1971, Hamil was involved in another sexual incident which will be more fully discussed under the second appeal (No. 59325). Suffice it to say here that he was indicted for the attempt rape and aggravated kidnaping of Loretta Lingle, was found guilty as charged on May 25, 1972, by Judge Louis B. Garippo and was sentenced to serve 3 to 14 years.

Meanwhile, in January of 1972, a petition had been filed in the earEer cases alleging that Hamil had been so arrested and charged and seeking the entry of an order revoking his 1968 conditional release and recommitting him under the 1966 adjudication and commitment. Testimony by Miss Lingle and others, including Hamil, was taken before Judge Joseph A. Power on January 21, 1972, and the matter was then continued from time to time until May 31, 1972, when the findings and sentence above described were reported to Judge Power and Hamil testified further to his version of the Lingle incident. At the conclusion of said hearing, Judge Power revoked his conditional release and ordered him recommitted.

During this proceeding Hamil was represented by the same private attorney who had represented him in the 1966 proceedings and in the 1972 criminal trial. No contention was made during said hearings that the statute (“* * * relating to sexually dangerous persons * * *”) under which he had been committed was unconstitutional.

Thereafter the Public Defender of Cook County substituted as Hamil’s attorney and on August 11, 1972, appealed from the May 31, 1972, judgment that he was “guilty of violation of conditioned release as a sexually dangerous person.”

In November of 1973, the Office of the State Appellate Defender filed its brief in this court in these consolidated cases and, in addition to four other grounds for reversing the said 1972 revocation of Hamil’s 1968 “conditional discharge” from his 1966 adjudication and commitment as a “sexually dangerous person,” for the first time challenged the constitutionality of the statute under which he had been so adjudicated and committed. In December of 1973, the People filed a confession of error in Case No. 58879 and on January 4, 1974, this court reversed, and, as a result, the People’s brief does not, other than mentioning said confession and reversal, deal further with this case.

On the oral argument, however, the office of the State Appellate Defender argued orally that its Point I (being a full scale constitutional attack on said statute) survived said confession and reversal; and we have read their brief in this case.

No such attack was made in 1966, 1968 or 1972 or at any other time in the trial court and we hold that it cannot be made here for the first time. See People v. Amerman (1971), 50 Ill.2d 196, 279 N.E.2d 353, citing People v. Allen (1959), 17 Ill.2d 55, 61, 160 N.E.2d 818; People v. Brand (1953), 415 Ill. 329, 337, 114 N.E.2d 370; People v. Luckey (1969) , 42 Ill.2d 115, 117, 245 N.E.2d 769; and Van Meter v. Stout (1970) , 45 Ill.2d 7, 9-10, 256 N.E.2d 784; Also, citing Amerman, see Jarvis v. Herrin City Park Dist. (1972), 6 Ill.App.3d 516, 520, 285 N.E. 2d 564.

Grasso v. Kucharski (1968), 93 Ill.App.2d 233, 236 N.E.2d 262; Rau v. Village of Warrenburg (1939), 302 Ill.App. 37, 23 N.E.2d 371 (abstract opinion); Joseph v. Joseph (1948), 336 Ill.App.258, 83 N.E .2d 600; and People ex rel. Kilduff v. Brewer (1927), 328 Ill. 472, 160 N.E. 76, are cited for the propositions that an unconstitutional statute is void ab initio; that such a statute does not give a court jurisdiction; and that where a court lacks jurisdiction its judgments may be attacked at any time, The first two cases (Grasso and Rau) did involve the constitutionality of statutes but the attacks were initially made in the trial court; the other two cases (Joseph and Kilduff) had nothing to do with the constitutionality of statutes of the effect thereof; none of the four cases was a criminal case; all four of them were handed down before the Supreme Court decided Amerman (1971); and none of them deals with the proposition that attacks on the constitutionality of a statute must initially be made in the trial court.

We therefore conclude that, insofar as Case No. 58879 is concerned, nothing remains before us and we pass on to the other appeal.

No. 59325

In No. 59325, Roy L. Hamil, was found guilty following a bench trial of the crimes of attempt rape (Ill. Rev. Stat. 1971, ch. 38, par. 8 — 4) and aggravated kidnaping (Ill. Rev. Stat. 1971, ch. 38, par. 10 — 2) and was sentenced to a term of from 3 to 14 years on each charge, the sentences to run concurrently. Defendant appeals on the ground that the evidence was insufficient to establish his guilt beyond a reasonable doubt. We disagree and affirm the judgment.

The complaining witness testified at trial that on December 2, 1971, at 7:30 A.M., she left her home and was proceeding to her place of employment. As she walked down the street, the defendant pulled up in a white Chevrolet and asked her for directions. As she stood next to the car, he grabbed her left arm and pulled her into the vehicle. She began to cry and asked him to release her. Defendant put his hand on her throat and told her to shut up or he would kill her. He then drove the car through several alleys and stopped near the side of a building so that the passengers door could not be opened. Defendant ordered her to remove her coat, but she refused. He then ordered her to lift up her dress and pull down her pantyhose. She began to fight off the defendant and struggled to get to the drivers door of the vehicle to escape. During the fight, the back and arm of her coat were tom. Defendant pulled down her pantyhose and put his hand underneath her dress. He lifted off her brassiere and fondled her breasts. He then asked if she was a virgin and she replied that she was. She testified that defendant stated that if she was a virgin he would let her go, but if she was not, he was then going to have intercourse with her. Defendant was exposed and sexually aroused. He stuck his finger into her vagina and ordered her to touch him, but she refused. Defendant said she was "nothing but a virgin and no good.” He got behind the wheel of the car and, as he started to pull away, the complainant opened the passenger door and jumped out. As she went by the rear of the automobile, she saw the license number of the car. She ran to a nearby bus stop and told a woman that she had just been attacked. The woman took her to a nearby restaurant where she called one of her fellow employees who picked her up and drove her to her sister-in-law’s home. The police were called. Complainant told the police what had occurred and gave them the license number of the defendant’s car. Police took her to Northwest Hospital where she was examined. Later that day, she attended a lineup consisting of six men and identified the defendant as her assailant.

The complainant’s sister-in-law testified that on December 2, 1971, at approximately 8:45 A.M., the complainant came to her home in a hysterical state. After calming down, the complainant told her what had occurred and the police were called.

It was stipulated to at trial that if Dr. Gaetano Raineri were called to testify, he would testify that on December 2, 1971, he examined the complaining witness. His examination disclosed "no external trauma. The hymen intact.”

It was also stipulated that if the complaining witness’ mother were called to testify, she would testify that when the complainant left her home on December 2, her coat was not torn. The coat was introduced into evidence.

Defendant testified that on December 2, 1971, at 7:45 A.M., he was on his way to work when he observed the complaining witness waiting for a bus. He pulled his car up to her and asked her whether she wanted a ride. She agreed and entered his car. Defendant testified that during the drive he had an extensive conversation with the complaining witness, talking about where she worked and where she went to school. He added that he asked her for a date, but she refused. Defendant stated that he propositioned her. She became very upset and slapped him several times. He testified that the complainant stated that she was a virgin and would not listen to his propositions. She demanded to be let out of the car. Defendant testified that he immediately pulled over to the curb and let her out of the car.

Defendant maintains that we ought to reverse his conviction for attempt rape and aggravated kidnaping because the evidence at trial was insufficient to prove him guilty beyond a reasonable doubt.

To support a conviction for attempt rape, the proof of which includes every element of the crime of rape except penetration, the evidence must show that the male person intended to have carnal knowledge of the female person against her will by means of force and that he took a substantial step toward accomplishing that purpose (People v. Moore (1966), 77 Ill.App.2d 62, 222 N.E.2d 142). Thus, an indecent assault, however aggravated, will not warrant a conviction for attempt rape unless there is proof of intention to have intercourse by force and against the will of the female. People v. Hiller (1955), 7 Ill.2d 465, 131 N.E.2d 25; People v. Jenkins (1930), 342 Ill. 238, 174 N.E. 30.

The intent to commit rape may, however, be inferred from tiie conduct of the accused, the character of the assault, the acts done and the time and place of the occurrence, as well as from the words spoken. (See People v. Young (1972), 6 Ill.App.3d 119, 285 N.E.2d 159; People v. Moore (1966), 77 Ill.App.2d 62, 222 N.E.2d 142; People v. Kruse (1943), 385 Ill. 42, 44, 52 N.E.2d 200.) The fact that the defendant broke off the attack after encountering resistance does not change the nature of the attack up to that point. People v. Poe (1969), 109 Ill.App.2d 295, 248 N.E.2d 715.

Defendant’s contention that no intent to rape was shown because the victim was told “[I]f you are a virgin I will let you go, but if not, I am going to * * * [have intercourse with you]” is fanciful. Even upon being told by the victim that she was a virgin, the defendant persisted in his attack by inserting his finger into her genitals and by ordering her to stimulate his organ with her hands. Here the defendant’s actions, both before and after his equivocal statement about the victim’s virginity, bespeak his intent much louder than his words alone. To use the language of the court in People v. Moore (1966), 77 Ill.App.2d 62, 222 N.E.2d 142, at page 67:

“His was not just an amorous advance. He did not claw at her clothing just to kiss her lips; he did not threaten to kiH her just to feel her breasts.”

The only realistic conclusion to be drawn from the defendant’s conduct toward Miss Lingle is that he initiaHy intended to rape her. His conduct unquestionably constituted a substantial step toward achieving that objective. He is therefore guilty of attempt rape even though he eventually abandoned the project.

We now turn to a consideration of defendant’s contention that he was not proved guilty beyond a reasonable doubt of the crime of aggravated kidnaping. Kidnaping (Ill. Rev. Stat. 1971, ch. 38, par. 10 — 1) is defined as:

“§ 10 — 1. Kidnaping
(a) Kidnaping occurs when a person knowingly:
(1) And secretly confines another against his wiH, or
(2) By force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will, or
(3) By deceit or enticement induces another to go from one place to another with intent secretly to confine him against his will.
(b) Confinement of a child under the age of 13 years is against his wiH within the meaning of this Section if such confinement is without the consent of his parent or legal guardian.
(c) Sentence.
Kidnaping is a Class 3 felony.”

Aggravated kidnaping is defined as:

“§ 10 — 2. Aggravated Kidnaping
(a) A kidnaper within the definition of Section 10 — 1(a) is guilty of the offense of aggravated kidnaping when he:
(1) Kidnaps for the purpose of obtaining ransom from the person kidnaped or from any other person, or
(2) Takes as his victim a child under the age of 13 years, or
(3) Inflicts great bodily harm or commits another felony upon his victim, or
(4) Wears a hood, robe or mask or conceals his identity.
As used in this Section, ransom’ includes money, benefit or other valuable thing or concession.
(b) Sentence.
(1) Aggravated kidnaping for ransom is a Class 1 felony for which an offender may be sentenced to death under Section 5 — 5—3 of the Unified Code of Corrections. If the accused is found guilty by a jury, a sentence of death shall not be imposed by the court unless the jury’s verdict so provides in accordance with Section 5 — 5—3 of the Unified Code of Corrections.
(2) Aggravated kidnaping other than for ransom is a Class 1 felony for which an offender may not be sentenced to death.”

The statute requires that one first establish that a kidnaping has occurred before establishing that an aggravated kidnaping has been committed.

We conclude that the evidence at trial established beyond a reasonable doubt that defendant committed the crime of aggravated kidnaping. Notwithstanding defendant’s protestations to the contrary, the evidence clearly established that he confined the complaining witness in the car while he drove through several alleys before finally parking in an alley next to a building where she could not open the passenger door. Such conduct constitutes a secret confinement within the meaning of the statute. People v. Bishop (1953), 1 Ill.2d 60, 114 N.E.2d 566, and People v. Landis (1966), 66 Ill.App.2d 458, 214 N.E.2d 343.

The credibility of the witnesses is a matter within the province of the trial judge sitting as the trier of fact and a court of review will not disturb that finding unless the proof is so unsatisfactory as to justify a reversal. (People v. Coleman (1971), 49 Ill.2d 565, 276 N.E.2d 721.) Further, the testimony of the complaining witness alone, if positive and credible, is sufficient to sustain a conviction even though contradicted by the accused. (People v. Wright (1972 ) 3 Ill.App.3d 829, 279 N.E.2d 398.) Here the complaining witness’ version of what occurred was corroborated by her torn coat which was admitted into evidence and her mother testified that the coat was not tom when the complaining witness left home shortly before the abduction.

We conclude that the evidence sustains the trial court’s finding that Hamil was guilty of kidnaping. And, since we have already held that the evidence sustains the finding of attempt rape, it follows that the evidence also sustains the finding of guilty of aggravated kidnaping.

We therefore affirm the judgment.

Judgement affirmed.

EGAN, P. J., and GOLDBERG, J., concur.


author: Mr. JUSTICE STAMOS.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Angel Rivera, Defendant-Appellant.
    (No. 59210;
    First District (2nd Division)
    May 28, 1974.

      James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Opinion by

Mr. JUSTICE STAMOS.


author: Mr. JUSTICE DOWNING.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Dickey, Defendant-Appellant.
    (No. 58818;
    First District (2nd Division)
    May 28, 1974.

      Paul Bradley and Howard B. Augustus, both of the Office of State Appellate Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Mary Ellen Dienes, and William Lirikul, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE DOWNING.


author: Mr. JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Fred Dortch, Defendant-Appellant.
    (No. 57883;
    First District (2nd Division)
    May 28, 1974.

      Paul Bradley and Lynn S. Frackman, both of Office of State Appellate Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (James S. Veldman and Rick Petrone, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This was a prosecution for murder. A two-count indictment charged that on July 18, 1971, defendant Fred Dortch shot and killed his cousin, Lerdie L. Dortch. At his jury trial, there were nine eye-witnesses: five for the prosecution; four for the defense. At the close of all the evidence, defendant tendered, but the court refused to give the jury two instructions on voluntary manslaughter. Thereafter, the jury returned a verdict finding defendant guilty of murder and the court sentenced him to serve 35 to 100 years. The issue in this appeal is whether, under the circumstances of this case, it was error for the trial court to refuse the instructions on voluntary manslaughter.

I.

On July 17, 1971, at about midnight, Lerdie Dortch, a woman who was about 6 feet tall and weighed between 220 to 240 pounds, was in a tavern called the Palm Village on the southeast side of Chicago. Present were her “common law husband,” her brother William Dortch, the five State eye-witnesses, defendant and his wife. All of them, including defendant, were related to each other either by blood or marriage.

From the evidence, it appeai-s that at the time of this gathering, Lerdie had a 14-year-old son who was living in Mississippi. On the previous July 4 weekend, defendant, while there, either chastised or corporally disciplined the boy. When Lerdie saw defendant in the tavern, she asked him why he had slapped her son. This inquiry, obviously unfriendly, precipitated a violent argument between them during which, according to six witnesses, defendant drew a knife out of his pocket. In the altercation that followed, the knife was knocked from his hand with one of the witnesses telling him that “* ” * you don’t have to cut her.” Defendant then left the tavern, saying to Lerdie, “Bitch, I’ll be back.”

However, he did not come back. In the meantime, at about 2:30 A.M., Lerdie and her companions left the tavern and went home. While they were in front of her house, defendant arrived in a car with his brothers Morris, Willie and a friend, Kirby Allen. According to the State’s five eye-witnesses, defendant got out of the car with a .25 automatic gun in his hand. First, he threatened Thomas Dortch, another of Lerdie’s brothers, and then shot Lerdie in the heart causing her death a short time later. According to defendant and his three eye-witnesses, when he was about to get out of the car, Lerdie came at him armed with a knife, again renewing in an abusive way the subject of their earlier argument in the tavern. While Lerdie was doing this, Lillian and Lorraine Dortch, each armed with a knife, came at defendant. At the same time, according to defendant and his eye-witnesses, Thomas Dortch approached defendant armed with a bottle. Defendant testified that he told Lerdie not to come near him because he did not want to hurt her. Despite what he said to her, Lerdie kept coming at him, she being “about six feet five, weighed 230 or 240 pounds” and he being “five feet seven and [weighing] 180 pounds.” Defendant said that Lerdie took hold of him; that he had the gun in his right hand; he pulled the trigger, not knowing how many times; that he “* * * was so panicky”, all he “° * * was doing was getting out of their way, backing up.” It was under these circumstances, according to defendant and his witnesses, that he shot Lerdie.

II.

It is clear that if the State’s evidence is accepted as true and the defense evidence rejected, defendant committed murder when he shot and killed Lerdie Dortch (People v. Shannon, 94 Ill.App.2d 110, 236 N.E.2d 369; People v. French, 3 Ill.App.3d 884, 279 N.E.2d 519.) It is equally clear that if the defense evidence is accepted as true and the State’s evidence rejected, defendant committed a justifiable homicide or, at most, voluntary manslaughter. (See People v. Motuzas, 352 Ill. 340, 185 N.E. 614; People v. Washington, 54 Ill.App.2d 467, 204 N.E.2d 25.) However, since the evidence was conflicting, it was for the jury, with proper instructions, to decide whether the killing of Lerdie Dortch was murder or manslaughter, or whether it was justified as self defense. People v. Davis, 35 Ill.2d 55, 61, 219 N.E.2d 468; see 40 Am.Jur.2d Homicide § 479; I.L.P. Homicide § 132.

It is a settled rule that where there is evidence which if believed by a jury would reduce a crime to a lesser included offense, an instruction defining that offense should be given. (People v. Jones, 384 Ill. 407, 51 N.E.2d 543; People v. Harris, 8 Ill.2d 431, 134 N.E.2d 315.) This rule is applicable even if the theory of defense is inconsistent with the possibility that the defendant is guilty of the lesser crime. (People v. Scalisi, 324 Ill. 131, 154 N.E. 715; People v. Bembroy, 4 Ill.App.3d 522, 525, 281 N.E.2d 389.) A defendant in a criminal case is entitled to have the jury consider any legally recognized defense theory which has some foundation in the evidence, however tenuous. (United States v. Grimes (7 Cir. 1969), 413 F.2d 1376; see People v. Kucala, 7 Ill.App.3d 1029, 288 N.E.2d 622.) Very slight evidence on a theory of defense will justify the giving of an instruction. People v. Matter, 371 Ill. 333, 20 N.E.2d 600.

In this case, five State eye-witnesses testified that defendant deliberately and intentionally shot and killed Lerdie Dortch. Three defense eye-witnesses, and the defendant, testified that Thomas Dortch, armed with a bottle, and Lerdie, Lorraine and Lillian Dortch, all armed with knives, assaulted defendant as he was alighting from his automobile. A person who is assaulted so that he reasonably believes lethal force is necessary to prevent imminent death or great bodily harm to himself or another may resort to such force in self defense. People v. Golson, 392 Ill. 252, 64 N.E.2d 462.

Recognizing this fact, the trial court, at defendant’s request, gave the jury an instruction on self defense. It should also have recognized that an assault by several persons armed with knives is provocation which will reduce an intentional killing from murder to voluntary manslaughter. (See People v. Kessler, 333 Ill. 451, 164 N.E. 840.) Therefore, only under properly drawn instructions could the jury have resolved the issues presented by the evidence. We conclude that the trial court erred in refusing to give the jury any instruction on voluntary manslaughter. (See People v. Joyner, 50 Ill.2d 302, 278 N.E.2d 756; compare People v. Zertuche, 5 Ill.App.3d 303, 282 N.E.2d 201; People v. Johnson, 1 Ill.App.3d 433, 274 N.E.2d 168.) The judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded with directions.

HAYES, and DOWNING, JJ., concur.


author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James McGhee et al., Defendants-Appellants.
    (No. 57760;
    First District (2nd Division)
    May 28, 1974.
    Paul Bradley, of Office of State Appellate Defender, of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Defendants, James McGhee and Rochester Lowe, were indicted for battery, resisting arrest and aggravated battery. After a bench trial, they were found guilty of aggravated battery. Defendant McGhee was sentenced to 2 years’ probation and defendant Lowe was sentenced to 5 years’ probation, with the first 90 days to be served in the Work Release Program of the Cook County Department of Correction. On appeal, defendants contend that they were not proven guilty beyond a reasonable doubt, and alternatively defendant Lowe contends that his sentence is excessive.

On May 30, 1970, at approximately 4:30 A.M., Chicago Police Officer Edward Meany stopped a car driven by McGhee at 95th and Oakley streets in Chicago. Meany testified that he observed McGhee speeding and that he followed his car for approximately 8 blocks in a westerly direction before McGhee pulled over and stopped. McGhee got out of his car and Meany asked him to produce his driver’s license. While McGhee unsuccessfully attempted to locate his license, Meany smelled a strong odor of alcohol. At that point another car driven by Lowe pulled up behind the police squad car and Lowe exited his car and walked up to Meany and McGhee. Lowe told Meany that he could not give McGhee a ticket, whereupon Meany ordered Lowe from the scene. Lowe refused to leave and Meany walked back to the squad car and radioed for assistance.

Approximately 30 seconds later, plainclothes officers Thulis and O’Donnell arrived on the scene in an unmarked car, and they proceeded to order Lowe from the scene. Lowe then left and McGhee was arrested and handcuffed and transported in a police wagon to the 6th District police station. Officer O’Donnell testified that when he and Officer Thulis answered Meany’s call, he observed Meany and both defendants arguing. Officer Thulis testified that he observed defendant and Meany speaking, and that he told Lowe that McGhee was going to be arrested and taken to the 6th District station. The remainder of Officers O’Donnell’s and Thulis’ testimony is substantially identical to Meany’s. Meany followed the wagon to the station, Thulis drove McGhee’s car to the station and O’Donnell left the scene in the unmarked police car.

Defendant McGhee testified that he was at a party from 9 P.M. until approximately 3:45 A.M. on May 30, 1970. At the party he had drunk only one beer. He left the party in his car and his friend Lowe, who had also been at the party, followed in his car. They were driving in an easterly direction when he observed Meany following with the squad car’s blue light and spotlight turned on. He pulled over to an island on the left side of 95th Street and got out of his car. Lowe pulled up to the curb side of the street, and walked over to where he and Meany were standing. He could not find his license in his wallet, although on cross-examination he admitted that the license was in his wallet. When Lowe walked up to him, he asked Lowe to check with his wife to see if he had left it at home. Before Lowe said anything to Meany, Meany walked back to his car, and within 3 or 4 minutes more police arrived and Lowe was told to leave the scene. Meanwhile Meany told McGhee that he was under arrest if he could not locate his license; he was then handcuffed and placed in the wagon. On redirect examination McGhee testified that Meany never stated why he was being arrested.

Defendant Lowe testified that he has known McGhee for approximately 18 years. On May 30, 1970, he left the party and followed McGhee in his car. He was not under the influence of alcohol and he did not see McGhee drink at the party. His car and McGhee’s turned onto 95th Street and they proceeded in an easterly direction. At 95th and Halsted Streets he observed Officer Meany driving behind him, pass him and pull McGhee over. He parked his car, and as he walked up to McGhee and Meany, Meany walked back to his car and a couple of minutes later more police appeared. McGhee told Lowe to call his wife. When one of the detectives told him to leave the scene, he returned to his car and followed the wagon to the police station.

Officer Meany testified that McGhee was brought into an interrogation room at the station, and was seated at one of the tables in the room. Meany was seated at another table and began writing McGhee’s tickets and his report on the arrest. Meany and Thulis testified that Thulis was also in the room. Lowe then entered the room “screaming and yelling.” Officer O’Donnell entered and before O’Donnell spoke, Lowe picked up a chair and threw it at him. Meany went to O’Donnell’s aid and Lowe was subdued. Meany observed McGhee push Thulis, several blows exchanged and Thulis and McGhee wrestling. Meany then went to Thulis’ aid and hit McGhee in the head. McGhee was subdued and handcuffed again.

Officer O’Donnell testified that after he left the scene at 95th Street, he answered another call and arrived at the station approximately 15 minutes later. He walked into the interrogation room and observed McGhee, Thulis and Lowe arguing. Lowe turned around, said something, picked up a chair and hit him with it. Lowe and O’Donnell then began wrestling on the floor. O’Donnell testified that during the scuffle Lowe pulled O’Donnell’s gun from its holster, and O’Donnell later found it lying on the floor. After O’Donnell subdued Lowe he told him he was under arrest. On cross-examination O’Donnell testified that he was not aware that his gun had been pulled out until another officer handed it to him after the scuffle. He admitted that in his written report he did not mention that Lowe had pulled his gun, and that the first time he made a written statement about the gun was after the Internal Investigation Division’s investigation of the incident had commenced. O’Donnell did not see Lowe attempt to take his gun, but he testified that the gun cannot fall out of the holster, and that only he and Lowe were involved in the incident.

Officer Thulis testified that he drove McGhee’s car to the station, parked it and walked into the interrogation room in which Meany and McGhee were seated. He walked to the front part of the station to pick up some forms. As he walked back into the room, he observed Lowe follow him. McGhee and Meany were seated and Meany was working on his ticket book. Lowe stated that “as long as you locked up my friend, you might as well lock me up.” Thulis told Lowe that the room was for police business and that he had to leave. Lowe then became abusive and stated that he could stay because it was a public building. Voices began to rise and Thulis again ordered Lowe to leave and he- again refused. O’Donnell then entered and Thulis next observed Lowe and O’Donnell wrestling. As Thulis turned to help O’Donnell, McGhee jumped up and pushed Thulis with his hands. Thulis reached behind him and grabbed his nightstick from a table, put one hand at each extremity and pushed it into McGhee’s face, knocking his arms aside. Thulis dropped the club and he and McGhee fell to the ground. This struggle lasted 2 to 3 minutes, and three officers were required to subdue and handcuff McGhee.

On cross-examination defense counsel attempted to impeach Thulis by his testimony at the preliminary hearing. Thulis had previously testified that only McGhee was in the room when he arrived. He also previously testified that when O’Donnell entered the room, he left to obtain certain forms. On cross-examination Thulis stated that O’Donnell was struck by Lowe a minute or two after O’Donnell entered the room. He observed the first blow struck by Lowe, then he saw O’Donnell hit Lowe with his fist. McGhee pushed at Thulis with both hands, and then hit him with his right fist. In his previous testimony Thulis omitted any mention of his use of his club, and previously testified that McGhee threw three or four punches and kicked at him, and that Thulis knocked him to the ground and managed to handcuff him. Also at the preliminary hearing Thulis characterized the incident “as a little wrestling match.”

Defendant McGhee testified in his own behalf that when Meany took him into the interrogation room, he asked to make a telephone call or speak to the sergeant or lieutenant in charge. Meany replied: “No, you can’t do anything.” Approximately 1 minute later Thulis entered and McGhee asked “You mean to tell me that I don’t have the right to make one call?” Thulis said: “This is another one of those smart niggers. I’ll take care of him,” and thereupon Thulis hit him across the forehead and face with his nightstick. McGhee did not push or strike Thulis because he was still handcuffed. Lowe entered the room and stated: “You shouldn’t be doing this.” O’Donnell, who was standing near the door asked Lowe for his driver’s license and Lowe complied with the request. O’Donnell threw it back to Lowe and the scuffle between Lowe and O’Donnell commenced. McGhee did not see Lowe pick up a chair, he did not see a chair thrown and he did not see Lowe strike O’Donnell. McGhee testified that he suffered a broken nose and that 7 stitches were required to close a wound in his head.

Defendant Lowe testified that he parked his car at the station and walked into the building. He walked back to a little room and observed Thulis strike McGhee two times with a club. McGhee was handcuffed, O’Donnell came over to Lowe and told him that it was none of his business and asked him for his license. Lowe produced it and O’Donnell threw it back at him. Lowe then stated: “You don’t have to treat me like no dog. I’m coming here voluntary." Lowe picked up his license and threw it back at O’Donnell. O’Donnell then swung at Lowe and he and Lowe began to wrestle. When Lowe was subdued and handcuffed, Thulis stated: “You like to swing back,” and proceeded to hit Lowe with his club. Lowe testified that he suffered a “hole” in his head and his hands and back were swollen. Lowe filed a complaint with the Internal Investigation Division, and photographs of his injuries were taken. After the scuffle O’Donnell told defendants to mop up the squad room; they were then taken to the hospital for treatment, and upon their return were placed in the lockup.

On cross-examination the prosecutor asked Lowe if he refused to be fingerprinted and to make a telephone call while in the lockup. Defense counsel objected to the question on the basis that this line of questioning was irrelevant to the charges against defendants. The trial court allowed the prosecutor to continue and Lowe admitted that he spoke with the watch commander while in the lockup, but he denied refusing to be fingerprinted and make phone calls. On redirect examination Lowe stated that the watch commander entered the lockup early in the morning after defendants returned from the hospital. At that time the watch commander requested that defendants be fingerprinted first, and then they could make phone calls.

The defense then rested, and, over defense counsel’s objections, the prosecutor called rebuttal witnesses. James H. Williams, Jr. testified that he was the acting watch commander on May 30, 1970. He went on duty at 6:30 A.M., and shortly thereafter he was notified that defendants refused to cooperate and be fingerprinted, and he went to the lockup to speak with defendants. The prosecutor asked Williams his opinion as to their sobriety and he answered “They were uncooperative.” He testified that McGhee looked like “he was under the influence of alochol or whatever.” He asked defendants to cooperate and he gave them every opportunity to make phone calls. He asked them to be fingerprinted and they refused. He recalled that McGhee’s face was swollen and that he had a bandage. He stated that McGhee did not ask to make a phone call before being fingerprinted. He admitted that the first time he made a written statement concerning defendants’ refusals was when he was contacted by the Internal Investigation Division.

Charles Freeman, the lockup keeper on May 30, 1970, also testified in rebuttal. He began his shift at 6:30 A.M. on that day and defendants were brought to the lockup at approximately 7:30 A.M. They refused to be fingerprinted and at approximately 8 A.M. he called Lieutenant Williams who came to talk with defendants. Freeman noted a “strong, stale odor of alcohol” on defendants’ breaths. Defendants slept through the morning, and every 2 hours Freeman awakened them and asked them if they would be fingerprinted or make a phone call. At approximately 12:20 P.M. one of the defendants made a call. Freeman could not recall if one of the men was bandaged and he could identify only one defendant. On the arrest reports he noted that both men refused to be fingerprinted at 8:10 A.M.

The State’s final rebuttal witness was Officer Meany who identified the three tickets he wrote and the notation he made on one of the tickets that McGhee was driving west on 95th Street when he stopped him. Defense counsel stipulated to the introduction into evidence of the ticket, but stated: “I didn’t stipulate to the accuracy of it.” On cross-examination Meany admitted that he did not write the tickets on the street; he began writing them in the station prior to the disturbance, and he finished them after defendants were taken to the hospital.

Defendant McGhee testified in surrebuttal that, when he returned from the hospital and was in the lockup, he was in extreme pain; his face was swollen and he could hardly breathe. Lieutenant Williams entered the lockup once approximately 2 to 3 horns after defendants returned from the hospital. Williams spoke only with Lowe. Neither Williams nor Freeman told him that he could make a call. Approximately 5 or 6 hours later another officer entered and told him to be fingerprinted and he complied. After being fingerprinted he was allowed to make a phone call; he phoned his parents about 5 P.M.

Defendant Lowe testified that Freeman told defendants to be fingerprinted and Lowe stated that he wanted to make a call first. Freeman said that he did not care if they ever got fingerprinted and took defendants back to the lockup. Approximately one-half hour later Williams entered with Freeman and asked Lowe to cooperate. Lowe replied: ‘Why don’t you cooperate with me, let me make a call.” Williams told him that he would have to be fingerprinted first. Lowe denied making a phone call to his sister at 12:20.

Lowe’s sister testified that she received a call from him at approximately 3:30 P.M. She attempted to contact her mother at work, but her mother had already quit for the day.

Lowe’s mother testified that she left work at approximately 3:30 and when she returned home, her daughter told her that Lowe had called.

The doctor’s reports of defendants’ treatment at the hospital were introduced into evidence by stipulation of counsel. The doctor had noted on McGhee’s report that he smelled “a heavy odor of alcohol on McGhee’s breath.” The parties rested and the trial court found defendants guilty of aggravated battery.

From the testimony adduced at trial, it is clear that the evidence was so contradictory as to make a determination of the facts a matter of great difficulty. Such a situation requires great care in the conduct of the trial to avoid the erroneous admission of prejudicial evidence.

Defendants urge reversal of their conviction on the grounds that they were not proven guilty beyond a reasonable doubt in that the officers’ testimony was implausible and largely impeached and the trial court relied upon improper rebuttal evidence in determining that the police officers’ testimony was credible.

Defendants cite six factors which they believe demonstrate the implausibility of the evidence adduced by the State: 1) Officer Thulis’ testimony at the preliminary hearing as to whether he was in the room when Lowe entered is inconsistent with his testimony at trial, and his testimony at trial differed somewhat from Officer Meany’s testimony; 2) Officer Thulis’ testimony that Officer O’Donnell was struck by defendant Lowe 2 or 3 minutes after he entered the room is inconsistent with Officer Meany’s testimony that O’Donnell was struck immediately upon entering; 3) at the preliminary hearing Officer Thulis did not specifically mention striking defendant McGhee with his nightstick; 4) Officer O’Donnell did not state in his report that his gun was pulled from its holster during his struggle with defendant Lowe; 5) there was no testimony that defendant McGhee’s handcuffs had been removed prior to the altercation; and 6) the diminutive sizes of defendants in comparison to the police officers indicate that the officers were the aggressors.

In a bench trial it is the duty of the trial judge to determine the credibility of witnesses and the weight to be given their testimony. (People v. Hampton, 44 Ill.2d 41, 253 N.E.2d 385.) In the instant case the police officers were cross-examined extensively, and the trial court’s attention was directed to all of these matters cited by defendants. Minor discrepancies, such as those pointed out above, are matters of credibility which are for the trial court’s determination. (People v. Bell, 53 Ill.2d 122, 290 N.E.2d 214.) Although the conflicting evidence in this case presented the trial court with a difficult problem in determining credibility, we are of the opinion that, as a matter of law, the testimony of the police officers was not so unpersuasive or improbable as to raise a reasonable doubt of defendants’ guilt. We note that defendants’ assertions regarding Thulis’ failure to previously mention use of the nightstick, O’Donnell’s gun and testimony regarding removal of defendant McGhee’s handcuffs are unconvincing, and that reasonable explanations for these matters are reflected in the record when all the testimony is considered.

The alleged improper rebuttal consists of the testimony of the watch commander and the lockup keeper, and the admission into evidence of the traffic violations written by Officer Meany. During defense counsel’s cross-examination of Officer O’Donnell, O’Donnell mentioned the investigation of the incident by the Police Department’s Internal Investigation Division. Defendant Lowe also mentioned the investigation by testifying on direct examination that he made a complaint to the “I.I.D.” On cross-examination, defendant Lowe denied refusing to be fingerprinted after returning from the hospital. Defense counsel’s objection to this question was overruled by the court, and the prosecutor then asked a question regarding the investigation. The trial court stated: “I think it can be explored. * * * The I.I.D. has been mentioned. It may or may not have some bearing on the case.” The prosecutor proceeded to question defendant Lowe regarding his statement to the watch commander concerning his refusal to be fingerprinted and make phone calls. Defendant Lowe was questioned as to the time of day he was fingerprinted and allowed to make a telephone call and as to when his relatives arrived and posted bond, and he was released. The trial court stated that the attempted impeachment “will mean nothing unless they bring the people in.” In an extensive colloquy among defense counsel, the prosecutor and the trial court, defense counsel again strongly objected to the prosecutor’s attempt to call rebuttal witnesses to testify as to the irrelevant issue of defendants’ refusals to be fingerprinted, and stated that impeachment on this issue was unrelated to defendants’ request to file a complaint with the Internal Investigation Division. The trial court stated: “I think it is, the whole thing. I have to try and find out who is telling the truth here.” The prosecutor stated that the questions show “the attitude, sobriety of the man. It shows everything.”

Collateral matters may be gone into on cross-examination for the limited purpose of testing the witness’ credibility, and the latitude in cross-examination rests largely within the discretion of the trial court. (People v. DuLong, 33 Ill.2d 140, 210 N.E.2d 513.) Rebutting evidence is that which is adduced by the prosecution to explain, repel or disprove evidence given by defendant. (People v. Karmazinas, 80 Ill.App.2d 322, 224 N.E.2d 287.) Rebuttal witnesses may properly be called by the prosecution to contradict defendant’s testimony as to a material issue; however, rebuttal witnesses cannot be called to contradict defendant’s testimony as to a collateral or immaterial matter. (People v. Dennis, 47 Ill.2d 120, 265 N.E.2d 385; People v. Kirkwood, 17 Ill.2d 23, 160 N.E.2d 766; People v. Simmons, 274 Ill. 528, 113 N.E. 887.) Collateral matters are generally considered to include facts irrelevant to the substantive issues in the case and facts which are not independently provable, by extrinsic evidence, apart from impeachment purposes. (McCormick, Evidence §47.)

Defendants argue that the issue of defendants’ conduct in the lockup is immaterial to the substantive issues involved in the case, and therefore, the testimony of the State’s rebuttal witnesses was improper. The State maintains that defendants’ sobriety at the time of the altercation is a material issue and that the rebuttal testimony contradicts defendants’ testimony in this regard. We have carefully perused the record, and we are convinced that the major part of the testimony by Officers Williams and Freeman concerned defendants’ refusal to cooperate with the police. This rebuttal testimony covers approximately 70 pages in the record, and the testimony concerning defendants’ sobriety consists of one statement by Officer Williams that “McGhee looked like he was under the influence of alcohol or whatever,” and statements by Officer Freeman that 1) he smelled a strong odor of alcohol; 2) defendants slept during the day; and 3) he could tell the difference between drinking alcohol and hospital alcohol. On this basis we cannot characterize this testimony, as the State does, as merely contradicting defendants on the issue of their sobriety.

This rebuttal evidence was offered by the State to contradict defendants’ testimony concerning their conduct in the lockup after the altercation for which they were being tried. We are of the opinion that this conduct by defendants was collateral to the substantive issues at trial, and thus the rebuttal testimony was improper.

At the conclusion of all the evidence in this case, the trial court commented:

“Now, in all the conflict and everything else and searching for the truth which is impossible sometimes, the man that meant the most in convincing me is Officer Freeman. * * * I thought out of everybody else that he was the man who proved beyond a reasonable doubt that the State had proven their [sic] case.
In taking the men as to the alcoholic thing, he said he was back there. It will say on the record how many times.
* # *
Officer Freeman did mark down what he said about the call and how many times he was there, and he was lockup keeper at that time.
# e # ”

In light of these comments, we conclude that the trial court’s findings of guilty were based on improper rebuttal testimony, and therefore, defendants were so prejudiced by the introduction of this testimony that a new trial is required. It is apparent that the trial court relied upon the improper rebuttal to determine the credibility of all the witnesses.

In light of our disposition of this cause, we will consider the introduction into evidence of the tickets written by Officer Meany. The notation on one of the tickets was introduced by the State to rebut defendants’ statements that they were driving east when defendant McGhee was stopped. As rebuttal evidence, it was used to show the truth of the matter asserted, and therefore, is inadmissible hearsay. The police officer who made the notation had testified as to that issue in the State’s case-in-chief, and therefore it is clear that the ticket is not admissible as past recollection recorded. The State does not dispute these conclusions, but argues that defense counsel stipulated to its introduction into evidence. We have reviewed the colloquy which ensued and have found it to be confusing, at best. We are of the opinion, however, that defense counsel did stipulate to its introduction into evidence, and thereby waived any error in its admission.

In view of our decision to reverse and remand for a new trial, we need not consider defendant Lowe’s contention regarding excessiveness of his sentence.

Reversed and remanded for a new trial.

HAYES, P. J., and DOWNING, J., concur.

       Ill. Rev. Stat. 1971, ch. 38, par. 12 — 4(b)(6).


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward Huff, Defendant-Appellant.
    (No. 57460;
    First District (2nd Division)
    May 28, 1974.

      James J. Doherty, Public Defender, of Chicago (Bradley Harris and Justine I. Knipper, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE DOWNING.