author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Petitioner-Appellee, v. Gerald Sansone, Respondent-Appellant.
    (No. 58310;
    First District (2nd Division)
    March 12, 1974.

      Thomas Grippando, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda Conley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

This appeal arises from an order finding respondent, Gerald Sansone, in need of mental treatment and ordering his commitment to the Madden State Hospital pursuant to the Illinois Mental Health Code. Respondent contends on appeal.

1. A determination that a mentally ill person is likely to injure others or himself requires proof of prior dangerous behavior; and in the absence of proof of prior dangerous behavior, civil commitment is preventive detention, and violative of due process;
2. The petition for emergency commitment was inadequate in that it did not meet the requirements of the Mental Health Code, and failed to meet the notice requirement of due process;
3. The standard of proof for civil commitment must be proof beyond a reasonable doubt, not preponderance of the evidence;
4. Respondent was unlawfully placed in former jeopardy in that he was found not to be in need of mental treatment in a prior civil commitment proceeding; and
5. Respondent was not certified within 24 hours after his admission to the hospital to be in need of treatment.

In an emergency petition signed by Mrs. Mary Fleming, the assistant director of Social Services, Psychiatric Institute of the Circuit Court of Cook County, respondent was alleged to be in need of mental treatment. The petition stated that the facts may be established by the attached certificate of Dr. S. Lipkin. The space provided for the names of witnesses who would testify in support of the allegations in the petition was left blank. Petitioner based her belief that an emergency existed on “[h]istory of behavior and psychological and psychiatric ex-animation done on August 18, 1972, at the Psychiatric Institute of the Circuit Court of Cook County.”

On August 18, 1972, respondent was admitted to the Chicago Reed Mental Health Center. Within 24 hours of his admission, respondent was examined by a psychiatrist, Dr. Vieland. This certificate does, not appear in the record, but its contents were read into the record by the assistant State’s Attorney:

“Patient is cooperative during interview, he is orientated, able to answer questions but is somewhat agitated, appeared to be delusional of grandiose nature. According to him he was U.S. Senator and, as far back as 1946 he was the only child lobbyist who was in Washington written about in newspapers. He was about 14 years old then and the diagnosis is schizophrenic paranoid type.”

On August 25, 1972, the State requested that the hearing on the petition be continued to allow a more thorough evaluation of respondent’s condition.

On August 30, 1972, the hearing was held, and respondent moved to dismiss the petition on the grounds that petitioner failed to state adequate reasons for her belief that an emergency existed, that the petition placed respondent in former jeopardy, and that respondent was not certified as in need of mental treatment within 24 hours after his admission to the hospital. The petition was orally amended by stipulation of counsel to add that respondent demonstrated delusions, confusion and impaired judgment. The trial court then denied respondent’s motions.

A psychiatrist, Dr. Sarma, testified that he examined respondent on two occasions prior to the hearing, and found him “to be fairly orientated, but not completely orientated,” and that respondent “showed quite * * * unrealistic thinking.” Dr. Sarma found respondent to be suffering from “a thought disorder of a delusional nature.” Respondent had told Dr. Sarma in an interview that he had been a Senator and Speaker of the House, and had campaigned with John F. Kennedy for the vice-presidency. He also related that he was police chief of Rerwyn for 2 days, and that he had been arrested by a “cop who was crooked”; that people were always arresting him. He further related that his wife was shot on tire White House lawn while he was a guard there, and that he had been shot through the head. At his first interview with Dr. Sarma, he stated that he had had an argument with him “the last time.” He also stated that he had been arrested while he was ordering people from his property “on a federal order,” and that persons were occupying his property illegally, and they were going to take his house, and that was the reason he was ordering them off his property. Dr. Sarma diagnosed respondent as a paranoid schizophrenic, and recommended hospitalization. He testified that respondent’s statements concerning his arrests and his ordering people from his property strongly indicated that respondent believes “people are after him.”

On cross-examination, Dr. Sarma testified that respondent was not dangerous to himself and was able to care for himself, but that he could be dangerous to others in that he “might start a fight with someone telling them to clear off of his property.” Respondent never stated to Dr. Sarma that he would fight or injury anyone. The doctor also stated that he had known delusional patients who were not dangerous to others, but “not with this kind of a delusional material,” i.e., delusions regarding law enforcement and law officers. Dr. Sarma testified that he could not predict when respondent would become dangerous, and could not give any degree of probability of respondent’s dangerousness.

On re-direct examination, Dr. Sarma testified that respondent would have difficulty functioning if he were released.

A social worker, Lynn Appelt, testified that she spoke to respondent during his first stay at the hospital (July 20, 1972, to July 28, 1972) after his arrest. Respondent was “quite cooperative,” but did not remember the reason for his arrest. She stated that respondent told her that he had been shot in the eye 4 years ago, and that this occurred every 4 years, but that he did not know who the perpetrators were. After this interview respondent was returned to the House of Correction, and later readmitted to the hospital. On this occasion, he told the witness that one of his children had been shot, but he could ndt relate any facts of the shooting. He also stated that he had changed the title to his house three times because people were trying to take the house from him. Finally, he told the witness that Mary Fleming (who had signed the emergency petition) had murdered a person in his presence, and that there was a warrant out for her arrest.

On cross-examination, this witness testified that respondent was very cooperative in the hospital; that he never attempted to injure another patient. After an objection was sustained to a question regarding a prior commitment hearing, counsel made an offer of proof that the witness saw respondent in court earlier in the month, and that at that time respondent was found not to be in need of mental treatment.

Thereafter the State rested, and respondent offered no evidence. The court found respondent to be in need of mental treatment, and ordered his commitment for treatment.

The Mental Health Code (Ill. Rev. Stat. 1971, ch. 91½, par. 1—11) defines persons “in need of mental treatment”:

“§ 1—11. ‘Person in Need of Mental Treatment, when used in this Act, means any person afflicted with a mental illness, not including a person who is mentally retarded, as defined in this Act, if that person, as a result of such mental illness, is reasonably expected at the time the determination is being made or within a reasonable time thereafter to intentionally or unintentionally physically injure himself or other persons, or is unable to care for himself so as to guard himself from physical injury or to provide for his own physical needs. * * *”

The provisions setting forth procedures in emergency admissions (Ill. Rev. Stat. 1971, ch. 91½, pars. 7—1 to 7—6) provide in pertinent part:

“§ 7—1. [Petition—Certificate of physician.]
When any person is or is asserted to be mentally retarded or in need of mental treatment and in such a condition that immediate hospitalization is necessary for the protection from physical harm of such person or others, any person 18 years of age or older may, in the county where such person in need of mental treatment or mentally retarded person resides or is found, present to the superintendent of a hospital a petition stating the reasons for such conclusion. Such petition must also state the name and address of the spouse or other nearest relative or, if none, of a friend of such person asserted to be in need of mental treatment or mentally retarded, if known to petitioner and, if not known, that diligent inquiry has been made to learn the name of such persons; the name and address of the guardian, if any, of the person asserted to be in need of mental treatment or mentally retarded; and the names of the witnesses by which the facts asserted may be proved. The petition may be prepared by the superintendent of any hospital, as well as by other persons. Such petition must be accompanied by the certificate of a physician not an employee of, or financially interested either directly or indirectly in, any licensed private hospital in which hospitalization is sought, certifying that the person is in need of immediate hospitalization as in need of mental treatment or is mentally retarded and the reasons for such conclusion. # * * Such certificates must be based upon a personal examination of the person asserted to be in need of mental treatment or mentally retarded, made not more than 72 hours prior to admission. Upon presentation of the petition and certificate to the superintendent, the patient may be admitted to or hospitalized in a hospital pending procedures specified in this Article.”
“§ 7—4. [Copies of petition and statement to patient—Telephone calls.]
Within 12 hours after the patient’s admission under this Article, the superintendent shall cause to be given to the patient:
1. A copy of the petition filed relative to the patient;
2. A written statement in simple, clear and concise terms stating that the patient will be examined relative to the allegations of the petition and will appear before a court for a hearing within S days, excluding Saturdays, Sundays and holidays, after the court receives notice of the patient’s hospitalization. If the patient cannot read or understand the written statement, it must be explained to him in a language he understands and a note of such explanation and by whom made put into the patient’s record.
Not later than 24 hours, excluding Saturdays, Sundays and holidays, after admission, a copy of the petition and written statement described in (1) and (2) of this Section must be given personally or sent by mail to the patient’s attorney, the nearest relative of the patient reasonably ascertainable by the superintendent, other than the person executing the petition. The patient must also be asked if he desires such documents sent to any persons, and at least 2 of any persons designated by the patient must also receive such documents. The patient must be allowed to complete a reasonable number of telephone calls at die time of his admission to such persons as the patient chooses, but in no event may the number be limited to less than 2.”
“§ 7—5. [Examination by psychiatrist.]
As soon as possible, but not later than 24 hours, excluding Saturdays, Sundays and holidays, after admission of a person pursuant to this Article, the superintendent shall cause the patient to be examined by a psychiatrist, who may be a member of the staff of the hospital but who may not be the physician who executed the certificate relative to the patient. If the psychiatrist does not, upon the basis of such examination, certify the patient to be a person in need of mental treatment or mentally retarded the patient shall be released forthwith.”
“§ 7—6. [Filing of copies of petition and physician’s certificate— Order setting hearing.]
Within 24 hours, excluding Saturdays, Sundays and holidays, after any person asserted to be in need of mental treatment or mentally retarded is admitted to a hospital under this Article, the superintendent of such hospital shall file, or cause to be filed, 2 copies of the petition and the physician’s certificate in the office of the clerk of the court ip the county in which the hospital in which such person is hospitalized is located. Upon the filing of such petition and certificate, the clerk shall immediately present them to the judge of such court who shall set them for hearing at a time not more than 5 days, excluding Saturdays, Sundays and holidays, after the admission of the patient to the hospital. The order setting the hearing on the petition must direct that reasonable notice of the time and place of the hearing be served upon the patient, his attorney, if any, and the persons entitled to receive a copy of the petition pursuant to Section 7—4.”

Inherent in civil commitment proceedings is the promise of the State, under a parens patriae theory, that the person who is being deprived of his liberty will receive treatment. Also inherent is the duty of the State to protect society from dangerous conduct of the mentally ill. The procedures set forth in the Illinois Mental Health Code are a legislative recognition that civil commitment is a deprivation of personal liberty, and their purpose is to provide adequate safeguards against unreasonable detention and commitment. Respondent does not contend that the procedures set forth in the Mental Health Code are violative of due process requirements.

Although the United States Supreme Court has not had occasion to consider whether, and to what extent, constitutional guarantees apply to involuntary civil commitment processes, the Court has recognized “the danger of a deprivation of due process in proceedings dealing with persons charged with insanity , and the special importance of maintaining the basic interests of liberty in a class of cases where the law though ‘fair on its face and impartial in appearance’ may be open to serious abuses in administration and courts may be imposed upon if the substantial rights of the persons charged are not adequately safeguarded at every stage of the proceedings.” (Minnesota ex rel. Pearson v. Probate Court, 309 U.S. 270, 276—77.) It is within this context that respondents contentions must be considered.

Initially, respondent argues that to sustain a finding of likelihood of injury to respondent or others, proof of prior dangerous conduct must be adduced, and in the absence of such proof, civil commitment is preventive detention. Respondent asserts that, pursuant to the theory of Robinson v. California, 370 U.S. 660, confinement based upon a prediction of future dangerous conduct is confinement based upon status. Respondent relies upon Cross v. Harris, 418 F.2d 1095 (D.C. Cir.), and Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis.), for the proposition that a prediction of future dangerousness must be based upon documented prior overt acts or threats.

The Illinois Mental Health Code defines a person in need of mental treatment as one who “is reasonably expected at the time the determination is being made or within a reasonable time thereafter to intentionally or unintentionally injure himself or other persons.”

In the area of mental health law, the State must balance the curtailment of liberty against the danger of harm to the individual or others. The paramount factor is the interest of society which naturally includes the interest of the patient in not being subjected to unjustified confinement. We agree with respondent that the “science” of predicting future dangerous behavior is inexact, and certainly is not infallible. We also agree that the mere establishment of a mental problem is not an adequate basis upon which to confine a person who has never harmed or attempted to harm either himself or another. However, we are of the opinion that a decision to commit based upon a medical opinion which clearly states that a person is reasonably expected to engage in dangerous conduct, and which is based upon the experience and studies of qualified psychiatrists, is a determination which properly can be made by the State.

Moreover, we cannot agree that commitment in the absence of evidence of prior harmful conduct is preventive detention based upon the patient’s status as a mentally ill person. Again, we reiterate that a finding must be based upon an explicit medical opinion regarding the patient’s future conduct, and cannot be based upon a mere finding of mental illness. Secondly, the purpose of the Mental Health Code is to provide treatment, and in fact, the Code affords every patient the right to treatment. This is a very different situation from that in Robinson v. California, supra, wherein the Court held that a law which imprisons a person afflicted with a disease inflicts cruel and unusual punishment. The Court in Robinson distinguished criminal punishment and detention from detention based upon laws which require medical treatment. (370 U.S. 660, 666.) Therefore, we hold that a finding of “in need of mental treatment,” absent evidence of prior harmful conduct, is not per se violative of due process.

Respondent next contends that the emergency petition was inadequate and failed to meet the notice requirements of due process in that no facts were alleged upon which a conclusion of dangerousness could be based, and the names of no witnesses who could testify to the “facts” were listed in the petition.

A fundamental requirement of due process is “notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (Mullane v. Central Hanover Rank & Trust Co., 339 U.S. 306, 314; Robinson v. Hanrahan, 409 U.S. 38.) The petition in the instant case was orally amended by stipulation of counsel to add that respondent was “delusional, confused and has impaired judgment.” Proof of these facts could reasonably be anticipated to support a finding that respondent was in need of mental treatment. Due process does not require that a person be charged with a specific dangerous overt act, but that there be a nexus between the facts asserted and a finding of “in need of mental treatment.” The amended petition was sufficient to advise respondent of the facts upon which a finding could be based.

Furthermore, we do not believe that respondent was unduly prejudiced by the failure to list the names of witnesses. § 7—1 of the Code requires that the petition list the names of witnesses who may prove the facts asserted in the petition. In order to provide respondent with the procedural safeguards intended by the legislature, this provision should be complied with. Although respondent could have ascertained prior to the hearing who was to testify, and his counsel could have asked for a continuance if he were surprised by the witnesses’ testimony, it is statutorily incumbent upon the State to provide this information. The State argues in response that at the time the petition was drawn, the names of witnesses were not known. We note that counsel did not raise an objection to the witnesses’ testimony, and moreover, thoroughly cross-examined them. Upon our review of the totality of circumstances we do not believe that the petition was fatally defective.

Respondent also contends that the standard of proof required to commit an individual pursuant to the Mental Health Code must be the criminal standard of proof “beyond a reasonable doubt.” The State maintains that it need only prove its case by the “preponderance of evidence” standard.

The determination of the appropriate burden of proof “is the kind of question which has traditionally been left to the judiciary to resolve * * (Woodby v. Immigration & Naturalization Service, 385 U.S. 276, 284.) Our concern with the possibility of loss of personal liberty in commitment proceedings leads us to agree with respondent that the civil standard of proof by a preponderance of the evidence is inadequate. However, we cannot agree that the standard of proof should be “beyond a reasonable doubt.” While both civil commitment proceedings and criminal proceedings may result in confinement, a person involuntarily committed pursuant to the Mental Health Code is entitled to treatment, to review of his condition and to release when he is no longer in need of treatment. We are aware that until recently, civil commitment and incarceration have been synonomous terms. Our legislature has made a considerable effort to differentiate between persons in need of mental treatment and persons who have transgressed our criminal laws. Respondent relies upon In re Winship, 397 U.S. 358, and In re Gault, 387 U.S. 1, wherein the Court stated that “civil labels and good intentions do not themselves obviate the need for criminal due process safeguards” in juvenile proceedings which could result in the loss of liberty. (In re Winship, 397 U.S. 358, 365.) However, the Illinois Mental Health Code not only utilizes civil labels and good intentions, but affords the individual a full panoply of due process protections. In our view the Code attempt to balance the interests of the individual and society in the administration, treatment and hospitalization of the mentally ill. Therefore, we are of the opinion that due process does not require the State to prove beyond a reasonable doubt that a person is in need of mental treatment. In fact, it may well be true that the difficulty in proving an individuars state of mind, combined with a stringent reasonable-doubt standard, may work a hardship on the individual who has a right to treatment and on society which has a right to protection.

However, we reiterate that it is impermissible for an individual to be committed upon no higher standard of proof than applies in a negligence case. (Cf. Woodbury v. Immigration & Naturalization Service, supra.) Where the issue involved is not tire occurrence of an event, but the determination of an individual’s mental condition, the State must prove that the individual is in need of mental treatment by clear and convincing evidence. The facts upon which a medical opinion is based must be established by clear and convincing evidence, and the medical testimony upon which the decision to commit is based must be clear and convincing. In the instant case, respondent’s delusions regarding law enforcement and law enforcement officers were established without con-tradition by the testimony of the psychiatrist and the social worker, both of whom interviewed respondent on two different occasions. The medical opinion was that respondent believed that persons were “after him,” and that respondent could be dangerous to others. The psychiatrist testified that persons he had known with the same type of delusions had injured or attempted to injure others. Therefore, although the psychiatrist could not give any degree of probability of dangerousness, and although there was no evidence of prior dangerous conduct, the uncontradicted testimony established by clear and convincing evidence that respondent was in need of mental treatment.

Respondent’s fifth contention is that he was placed in former jeopardy. Two weeks prior to the present hearing, another commitment hearing had been held, at which time respondent was found not to be in need of mental treatment. Respondent asserts that the State should be required to show that there has been a change in respondent’s condition between the time of the two hearings, and that this change can be evidenced only by proof of an overt act of respondent.

Initially, we reject respondent’s assertion of former jeopardy. We have concluded previously in this opinion that, in view of the treatment purpose of involuntary civil commitment, all criminal safeguards are not required. However, even though not former jeopardy under the fifth amendment, misuse of multiple commitment proceedings would be violative of due process. (Gomes v. Gaughan, 471 F.2d 794 (1st Cir.).) In the instant case, an offer of proof was made which merely revealed that earlier the same month respondent had been found not to be in need of mental treatment. There was no offer of proof that the evidence presented at both hearings was identical or that the evidence introduced at the instant hearing was based upon the same examination, historical facts and diagnosis of respondent’s propensities. (Cf. Gomes v. Gaughan, supra.) On the contrary, the date of the present petition for emergency treatment, and the dates of the examinations of respondent immediately prior to the hearing strongly indicate that there was a fresh and independent diagnosis of respondent’s mental condition. Therefore, we conclude that the multiple commitment hearings were not so unfair as to violate due process.

Finally, respondent argues that the petition should have been dismissed for file reason that respondent was not certified within 24 hours of his admission to the hospital to be in need of mental treatment as required by § 7—5 of the Mental Health Code. The record indicates that respondent was examined by Dr. Vieland within 24 hours of his admission. A copy of Dr. Vieland’s report was not filed with the clerk of the court, but the contents of the report were read into the record by the assistant State’s Attorney. Respondent was found to be delusional and somewhat agitated, and was diagnosed as a “schizophrenic-paranoid type.”

Immediate examination and certification pursuant to § 7—5 is required to protect an individual from unjustified detention where no basis in fact exists for the detention. We are concerned that Dr. Vieland’s certificate and Dr. Lipkin’s certificate which was statutorily required to be attached to the petition were not filed with the court or formally placed into evidence. Although these documents were in the possession of the assistant State’s Attorney, he did not deem it necessary to introduce them into evidence. We share the trial court’s concern in this matter, and we agree that the better practice would be to file these certificates with the clerk so that they would formally appear in the record. Such a practice would alleviate the situation in which this court now finds itself—to determine the adequacy of a document which is not before it. However, it is clear that both documents were before the court and were considered by the court in determining the issues presented.

It appears that the trial court was convinced, after examining the report of Dr. Vieland, that it was in the nature of a certificate of “in need of mental treatment” as required by § 7—5. After the contents of Dr. Vieland’s report were read into the record, the following colloquy ensued:

“Counsel for Respondent: Your Honor, nothing in that statement the doctor felt he was in need of mental treatment [sic]. The doctor never stated that on the certificate.
Assistant State’s Attorney: But he was examined within the 24 hour period, and the code states that if the doctor doesn’t feel that he’s in need of further mental treatment, he should be discharged otherwise the hospital has a right to keep the patient for further treatment.
The Court: And from the form that was used, I presume, that its [sic] in a form different than a form that is ordinarily used for certificates.
Assistant State’s Attorney: Yes.
The Court: [B]ut, I’m not going to allow the fact that its [sic] on a form different than ordinarily used to invalidate the proceedings.
Counsel for Respondent: We’re relying on the sentence that says, if the psychiatrist does not have a basis for such examination certify the patient to be a person in need of mental treatment or mentally retarded a patient shall be released thereof [sic].
The Court: Well, he wasn’t released, was he?
Counsel for Respondent: He, he wasn’t. Therefore,—
The Court: Well, I’m, I take the position that, that document that’s in the record is in the nature of a certificate of a person’s need for hospitalization.”

Thus it appears that Dr. Vieland did not submit his report on the standardized certificate form normally used, and that he did not use the words “in need of mental treatment.” Upon our review of the totality of the circumstances, we are constrained to agree with the trial court that, although the appropriate form was not utilized by Dr. Vieland, his report is in the nature of a certificate that respondent was in need of mental treatment, and that the failure to explicitly certify to such a finding is not reversible error.

For the foregoing reasons, we hereby affirm the order of the trial court.

Affirmed.

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

       Ill. Rev. Stat. 1971, ch. 91½, par. 1—1 et seq.

       Ill. Rev. Stat. 1971, ch. 91½, par. 7—1.

       Respondent relies on the recent case of Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis.), as authority for many of the arguments asserted herein. The federal district court there held the Wisconsin Civil Commitment Statute to be constitutionally defective insofar as it failed to require effective and timely notice of the charges under which a person is sought to be detained; failed to require adequate notice of all rights, including the right to jury trial; permitted detention longer than 48 hours without a hearing on probable cause; permitted detention longer than 2 weeks without a full hearing on the necessity for commitment; permitted commitment based upon a hearing in which the person charged with mental illness is not represented by adversary counsel, at which hearsay evidence is admitted and in which psychiatric evidence is presented without the patient having been given the benefit of the privilege against self-incrimination; permitted commitment without proof beyond a reasonable doubt that the person is both mentally ill and dangerous; and failed to require those seeking commitment tp consider less restrictive alternatives to commitment. A perusal of the Illinois Mental Health Code demonstrates that an individual in Illinois is afforded many of the safeguards which the court in Lessard found to be lacking in the Wisconsin statute, and which the court held to be constitutionally required, (An appeal ip the Seventh Circuit Court of Appeals is now pending.)

      Ill. Rev. Stat. 1971, ch. 91½, par. 1—11.

       Ill. Rev. Stat. 1971, ch. 9½, pars. 9—6, 1—9.

       Ill. Rev. Stat. 1971, ch. 91½, par. 9—4, provides in pertinent part: “Counsel shall be allowed time for adequate preparation * *

       Our research has led us to Illinois cases which held that incompetence must be proven by preponderance of the evidence. (Titcomb v. Vantyle, 84 Ill. 371; English v. Porter, 109 Ill. 285; Lilly v. Waggoner, 27 Ill. 395.) These cases, however, are clearly inapposite as they do not involve commitment proceedings, but merely causes of action to set aside conveyances. See also Ill. Rev. Stat. 1971, ch. 91½, par. 9—11.

       Ill. Rev. Stat. 1971, ch. 91½, pars. 9—6, 1—9.

       Ill. Rev. Stat. 1971, ch. 91½, pars. 10-1—10-3.

       Ill. Rev. Stat. 1971, ch. 91½, par. 10—4.

       Our Sexually Dangerous Persons Act (Ill. Rev. Stat. 1971, ch. 38, par. 105—1 et seq.) is a proceeding which is civil in nature, as is the instant proceeding. Because the Act provides for possible involuntary confinement, due process requires the application of certain criminal safeguards. (People v. Nastasio, 19 Ill.2d 524, 168 N.E.2d 728; People v. Bruckman, 33 Ill.2d 150, 210 N.E.2d 537.) However, our Supreme Court has consistently held that this does not mean that all criminal safeguards must be afforded to an individual. (People v. Studdard, 51 Ill.2d 190, 281 N.E.2d 678; People v. English, 31 Ill.2d 301, 201 N.E.2d 455.)

       The courts in Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis.), and In Re Ballay, 482 F.2d 648 (D.C. Cir,), held that the reasonable doubt standard must be applied in civil commitment proceedings. In Murel v. Baltimore City Criminal Court, 407 U.S. 355, the Court dismissed a writ of certiorari as improvidently granted. The issue involved the civil commitment statute in Maryland. In a dissent Mr. Justice Douglas stated that he would require the reasonable doubt burden of proof. Other courts have specifically rejected this standard. Fhagen v. Miller, 65 Misc. 2d 163, 317 N.Y.S.2d 128, modified and aff’d, 36 App. Div. 2d 926, 321 N.Y.S.2d 61; Tippett v. State, 436 F.2d 1153 (4th Cir.); Dixon v. Attorney General, 325 F. Supp. 966 (M.D. Pa.). Cf. United States v. Brown, 478 F.2d 606 (D.C. Cir.).

       Ill Rev. Stat. 1971, ch. 91½, par. 7—5.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ADESKO

license: Public Domain

text:
    Mildred Bilsky, Plaintiff and Counterdefendant, Appellant, v. Howard Bilsky, Defendant and Counterplaintiff, Appellee.
    (No. 56679;
    First District (4th Division)
    March 13, 1974.

      Dom J. Rizzi, of Chicago, for appellant.
    No brief for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Mildred Bilsky, plaintiff and counterdefendant, appellant (hereinafter counter defendant), filed a suit for separate maintenance or in the alternative for divorce against her husband, Howard Bilsky, defendant and counterplaintiff, appellee (hereinafter counter plaintiff), in which she alleged as grounds for divorce that Mr. Bilsky was guilty of adultery and mental cruelty. Mr. Bilsky filed a counterclaim for divorce in which he alleged as grounds for divorce physical and mental cruelty. At the trial Mrs. Bilsky did not proceed with her complaint but offered evidence in defense of the counterclaim of Mr. Bilsky. A bench trial was had solely on the counterclaim and the court found in favor of the counterplaintiff. In this appeal the counterdefendant maintains that the counterplaintiff failed to prove as a matter of law conduct amounting to extreme and repeated mental cruelty. It is also contended by the counterdefendant that the counterplaintiff failed as a matter of law to prove lack of provocation and that he failed to establish that the alleged acts of mental cruelty affected his- physical or mental health. The counter defendant also contends that her defense of recrimination is a bar to the entry of the divorce decree in favor of the counterplaintiff. We find no merit in these contentions.

The parties were married on January 17, 1970, in Chicago Illinois, and the complaint of Mrs. Bilsky was filed on September 9, 1970. As stated previously, Mr. Bilsky filed a counterclaim for divorce and although it alleged both physical and mental cruelty, no evidence of physical cruelty was introduced at the trial. The counter plaintiff testified that two weeks after the marriage he and Mrs. Bilsky went on a two-week honeymoon in Miami, Florida, which was financed entirely by Mrs. Bilsky. The counterplaintiff stated that he did not want to go on the honeymoon and that he did not have any funds as he was between jobs at the time. However, Mr. Bilsky did go and he testified that Mrs. Bilsky would dole out money to him for the cost of meals, including tips. He stated that Mrs. Bilsky would give him whatever the cost of the meal was and that this embarrassed him. Mr. Bilsky testified further that he did the shopping, prepared the meals, cleaned the apartment, did his own laundry and that the plaintiff retired each evening at 7 or 8 P.M. Mrs. Bilsky, according to the counterplaintiff, continuously accused him of drinking and being a drunk. She also accused Mr. Bilsky of carousing with other women because she found cigarette butts in his car with lipstick on them. However, Mr. Bilsky explained that some of these belonged to his mother and some to office girls in the shop where he worked. He testified he gave them rides to public transportation because the shop was located in a bad neighborhood. Mr. Bilsky also testified that Mrs. Bilsky interfered with his watching television by turning the volume down or by turning the set off. Mr. Bilsky stated that he lost 9 or 10 pounds during the period that the parties lived together.

On July 6, 1970, the counter plaintiff’s 13-year-old son, by a prior marriage, came to live with the parties without the prior consent of Mrs. Bilsky. Mr. Bilsky testified that Mrs. Bilsky treated his son as an unwelcome guest but that she was concerned for his son’s well-being and did not treat him badly. Mr. Bilsky testified that Mrs. Bilsky would not cook or clean for his son nor do his laundry. Mr. Bilsky stated, “It was— in other words, she was not his mother and she didn’t want to act as his mother and she wouldn’t do any of the matronly acts that belonged in a household.”

During the course of the marriage, difficulties with sexual relations developed and the counterplaintiff accompanied his wife to see her gynecologist. The doctor did not testify but Mr. Bilsky was permitted to testify over objection that the doctor’s conclusion was that Mrs. Bilsky had an obsession with money and that this was an obstruction to their sexual relations. Mr. Bilsky testified that during the marriage he went to see a doctor because of his mental distress and that he was an asthmatic and feared that mental distress would aggravate the problem.

On August 8, 1970, the counterplaintiff and his son moved from the marital residence into an apartment at 6727 N. California. Mr. Bilsky stated he moved for the sake of his sanity and that of his son. According to Mr. Bilsky, he could no longer stand the harassing and embarrassment and the accusations and the allegations that were thrown upon him by Mrs. Bilsky in front of his son.

The counterdefendant testified and her testimony was in direct conflict with that of Mr. Bilsky. Mrs. Bilsky stated she first learned the defendant was without funds on the day of the wedding and that he was unemployed until March 10, 1970. She testified that after Mr. Bilsky began working he never paid any of the bills and that she paid the rent and utilities. She also stated that she paid for the food and only after she begged Mr. Bilsky for money did he begin to give her $10 per week for expenses.

Mrs. Bilsky also testified that she did the cleaning and that the counterplaintiff would call her from one end of the apartment to the other to show her a spot she had missed. She stated that she did the cooking and that she treated the counterplaintiff’s son well. Mrs. Bilsky explained that the visit to her gynecologist was intended to get Mr. Bilsky to assume his responsibilities. She stated she tried to please her husband in every way.

Mrs. Bilsky stated her husband began coming home late or not at all in May of 1970. She found lipstick and cigarettes not used by her in his car. She found the name of another woman in Mr. Bilsky’s wallet which he refused to explain. She stated Mr. Bilsky was in an automobile accident on the Saturday after he left the marital residence and that a woman he was dating was a passenger.

The counterdefendant hired a detective and he testified that he had Mr. Bilsky’s apartment at 6727 N. California under surveillance between February 12 and 16 of 1971. The detective stated he observed the counter-plaintiff and a woman leaving and entering the apartment and spending the night there. The detective marked both entrances to the apartment and stated no one could have gone out the other entrance. He observed the woman drive an automobile with license number MB 5425, and through a license check determined that the woman was Irene Buyer. At the trial the detective identified Mr. Bilsky as the man he observed in the apartment. The detective stated he observed Mr. Bilsky and Irene Buyer walking hand in hand in a shopping center. Upon cross-examination the detective did state that during the time he had the apartment under surveillance he did not observe an act of sexual intercourse between Mr. Bilsky and Irene Buyer. The detective was also directed to check an address at 7133 N. Damen and he stated that the mailbox for apartment 8 at that address had the names Buyer and Bilsky on it. He also stated that the automobile with license number MB 5425 was parked at the rear of this apartment.

The trial court found in favor of the counterplaintiff and the first issue raised by the counterdefendant in this appeal is that the counter-plaintiff failed to prove extreme- and repeated mental cruelty. This contention is predicated upon the assertion that more evidence than the complaining party’s bare assertion that certain acts have caused mental cruelty is necessary. The counterdefendant admitted in her brief that no such rule has been articulated by an Illinois court but maintains that our courts have established and followed a policy of not allowing a divorce where the testimony of the complaining party was not corroborated by additional evidence on the issue of mental cruelty. In support of this position the counterdefendant cited Stanard v. Stanard, 108 Ill.App.2d 240, 247 N.E.2d 438 (1969), and Howison v. Howison, 128 Ill.App.2d 377, 262 N.E.2d 1 (1970). While it is true that in both cases the divorce was not permitted and that the only evidence as to mental cruelty was supplied by the complaining witness, the decisions are based on grounds other than that the testimony of the complaining witness was not corroborated. The law is directly contrary to the assertion of the counterdefendant and corroboration is not necessary in a contested divorce proceeding. (Varap v. Varap, 76 Ill.App.2d 402, 222 N.E. 2d 77 (1966).) The testimony of the complainant is enough if it is sufficiently credible in light of the opposing evidence to warrant acceptance by a reasonable person. (Surratt v. Surratt, 12 Ill.2d 21, 145 N.E.2d 594 (1957).) Although the Varap and Surratt decisions involved divorce actions based on physical cruelty, the rules enunciated in them are equally applicable to a divorce proceeding based on mental cruelty.

The counterdefendant also - maintains that the counterplaintiff failed to prove lack of provocation and that he did not establish that the alleged acts of mental cruelty affected his physical or mental health. It has been held that evidence as to lack of provocation is an essential element of a complaining party’s case in a divorce proceeding based on mental cruelty. (Stanard, supra.) It has also been established that a complaining party must prove that the alleged acts of mental cruelty caused embarrassment, humiliation and anguish so as to render life miserable and unendurable or caused the plaintiff’s life, person, or health to be endangered. (Quilty v. Quilty, 5 Ill.App.3d 801, 284 N.E.2d 690 (1972); accord, Stanard, supra.) As stated in Hoioison, supra, at 381: “What constitutes mental cruelty depends upon the total circumstances set forth in a given case. The conduct of a defendant may vary from case to case, but the ultimate test is the effect such conduct has upon the plaintiff and the marriage.” The counterdefendant maintains that the counterplaintiff’s proof failed in these essential elements. We do not agree.

The instant controversy was tried before the court without a jury and we must be mindful that the trial court was in a better position to determine the credibility of the witnesses. As stated in the divorce proceeding of Hayes v. Hayes, 117 Ill.App.2d 211, at 215, 254 N.E.2d 288, at 290 (1969):

“It is within the province of the trial court to make the determination whether there has been sufficient evidence with which to establish either party’s contentions. In the instant case the trial court heard the evidence, viewed the witnesses and was in a better position to conclude the issues. This court will not set aside the findings and judgment of the trial court unless the decision reached by such trial court is against the manifest weight of the evidence. Hoffman v. Hoffman, 40 Ill.2d 344, 239 N.E.2d 792 (1968); Curran v. Curran, 19 Ill.2d 164,166 N.E.2d 13 (1960), and the trial court’s findings are presumed, to be correct. Gillespie v. Gillespie, 70 Ill. App.2d 38, 216 N.E.2d 462.”

After carefully reviewing the record in the case at bar, we cannot conclude that the trial court’s findings are against the manifest weight of the evidence.

The final issue raised by the counterdefendant is that her defense of recrimination precludes the entry of a divorce decree in favor of the counterplaintiff. The counterdefendant maintains that the testimony of the detective proved the counterplaintiff’s adultery and that adultery is a good defense to any statutory ground for divorce. While we agree that adultery is a good defense to any statutory ground for divorce (Stanard, supra), it must be proved by a preponderance of the evidence. As stated in Haring v. Haring, 125 Ill.App.2d 116, at 121 to 122, 260 N.E.2d 396, at 399 (1970):

Similarly in the case at bar, we cannot conclude that the trial court erred in finding that the defense of adultery had not been proved by a preponderance of the evidence.

“While we recognize that adultery seldom can be proved as a direct fact and that it may be established by circumstantial evidence (Stiles v. Stiles, 167 Ill. 576, 47 N.E. 867 (1897); Marcy v. Marcy, 400 Ill. 152, 79 N.E.2d 207 (1948)), we cannot say that the evidence in this case is such that the trial court erred in finding that the defense of adultery had not been proved by a preponderance of the evidence. * ” to establish adultery by circumstantial evidence, the proofs must convince the mind affirmatively that actual adultery was committed, since nothing but the carnal act can lay the foundation for a divorce. * * *’ Fowler v. Fowler, 315 Ill.App. 270, 42 N.E.2d 954, 957 ( 4th Dist. 1942). Likewise, in order to establish adultery, proof of the clearest and most convincing character must be offered that an actual carnal act of adultery was committed. Metoyer v. Metoyer, 92 Ill.App.2d 32, 235 N.E.2d 882 (1st Dist. 1968) (abst.).”

We are cognizant of the well-established rules that a marriage should not be lightly terminated and that a complaining party must prove his case by competent evidence using a statutory ground as a basis. (Farnbach v. Farnbach, 1 Ill.App.3d 74, 273 N.E.2d 12 (1971); Stanard, supra.) However, in the case at bar the counterplaintiff sustained his burden of proof and the trial court did not err in entering a divorce decree in his favor. Therefore, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN and DIERINGER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Hector Durruty, Defendant-Appellee.
    (No. 57805;
    First District (4th Division)
    March 13, 1974.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and James B. Haddad, Assistant State’s Attorneys, of counsel), for the People.
    Allan A. Ackerman, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Hector Durruty, the appellee in the instant appeal (hereinafter referred to as defendant), was arrested on September 21, 1970, and charged with possession of a narcotic drug. At the preliminary hearing in the Circuit Court of Cook County, before Judge James A. Geocaris, a motion to suppress physical evidence was made. Defendant alleged that the evidence had been seized in violation of his rights under the fourth amendment of the United States Constitution. An evidentiary hearing was held by Judge Geocaris after which the motion to suppress was denied. Judge Geocaris further found that there was probable cause to believe that the defendant had committed the offense charged and the defendant was bound over to the grand jury. Following defendant’s indictment for unlawful possession of heroin and of cocaine, the case was assigned to Judge Kenneth Wendt for trial. A petition for substitution of judges was filed by defendant and the case was then assigned to Judge George E. Dolezal. On December 15, 1971, defendant made a motion to suppress physical evidence before Judge Dolezal. By agreement of defendant and the State, Judge Dolezal heard no new evidence but reviewed the evidence presented on the motion to suppress taken at the preliminary hearing. After his review of this evidence, Judge Dolezal reversed the ruling of Judge Geocaris at the preliminary hearing and granted defendant’s motion to suppress the physical evidence. On January 14, 1972, the State filed a notice of appeal from the order granting the motion to suppress and brings this appeal before this court pursuant to Illinois Supreme Court Rule 604(a). Ill. Rev. Stat. 1971, ch. 110A, sec. 604(a).

It is the State’s contention that the trial judge is obligated to follow a ruling of a preliminary hearing judge who has heard and denied a motion to suppress physical evidence. The State argues that the issue was res judicata and, therefore, that Judge Dolezal could not properly grant the motion to suppress.

This issue is clearly controlled by several recent decisions of the Illinois Supreme Court. These decisions are discussed in People v. Holland, 56 Ill.2d 318, 307 N.E.2d 380. In that appeal both defendants had made motions to suppress evidence at their preliminary hearings. The motions were denied in each case and later made again before the trial judges. The trial judges denied the motions on the grounds that ruling of the judge at the preliminary hearing was binding at trial. In affirming these decisions, as well as those of the appellate court upholding them, the supreme court stated as follows, at page 321;

“In reaching their respective decisions that the motions to suppress, having been denied at preliminary hearings could not be renewed at trial, the appellate and circuit courts concluded that our decision in People v. Taylor, 50 Ill.2d 136, required them to so hold. Taylor did not present the question here considered; it involved the converse and clearly distinguishable situation which resulted from the allowance of a motion to suppress. The rule applicable here was enunciated in our recent cases of People v. Hopkins, 52 Ill.2d 1, and People v. Armstrong, 56 Ill. 2d 159, but in these cases, as in Hopkins, there has been no suggestion of exceptional circumstances or any evidence in addition to that submitted upon the first hearing which had become available for submission in connection with the motion to suppress. (52 Ill.2d 1, at 4.) Although the trial courts erred in holding that they were without jurisdiction to consider the motions, because of the absence of an offer of proof to show that additional evidence was to be offered or the existence of special circumstances, no error is shown which requires reversal.”

In the instant appeal, no new evidence or “special circumstances” were presented that would have justified the granting of the motion to suppress by tire trial judge. “[T]he doctrine of coHateral estoppel bars tire relitigation of an order sustaining the validity of a search, in absence of additional evidence or pecufiar circumstances * * (People v. Armstrong, supra, discussing the opinion of the court in People v. Hopkins, supra.) Whffe it would have been proper for the trial judge to hear a motion to suppress evidence to afford defendant the opportunity to present new evidence or demonstrate other changed circumstances, it was eiTor to reverse the ruling of the judge at the preliminary hearing based solely on a review of the evidence presented there.

For the above stated reasons, the order of the Circuit Court of Cook County, granting defendant’s motion to suppress physical evidence is reversed and the cause remanded for further proceedings in accordance with this opinion.

Reversed and remanded.

BURMAN and JOHNSON, JJ., concur.


author: Mr. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Andrew Weathers, Defendant-Appellant.
    (No. 57978;
    First District (4th Division)
    March 13, 1974.

      Charlotte Adelman, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

Andrew Weathers, the defendant, was charged by indictments with murder, attempted robbery and three counts of armed robbery. Following a jury trial he was found guilty of murder, attempt and two counts of armed robbery. He was sentenced to serve not less than 40 nor more than 80 years in the penitentiary on the murder charge, and he instituted the present appeal.

On appeal he contends that (1) his arrest was improper, (2) his oral and written statements, made while in the custody of the police, should have been suppressed, (3) the statement of an alleged co-participant in the offense should not have been read to the jury, (4) the State concealed evidence favorable to his defense, (5) the court improperly refused to submit jury instructions concerning involuntary manslaughter and reckless conduct, (6) he was not proven guilty beyond a reasonable doubt, and (7) his sentence is excessive.

We summarize the evidence. On May 1, 1971, at about 2 o’clock in the morning, Willie Johnson drove his automobile into the rear of a gas station located at Lexington Sheet and California Avenue. He got out of the car to go to the rest room. P. L. Johnson and Ernest Douglas remained in the front seat, and Herman Milton was asleep in the rear. While Johnson was outside of the car he saw two negro men run up. One was skinny and the other “kind of heavy.” The skinny one said, “I want your money.” When Johnson said that he had no money, the skinny one searched him and took some money out of his inside pocket. After this he heard a shot and the robbers fled.

P. L. Johnson, also known as Frank Johnson, testified that he saw two men go through Willie Johnson’s pockets. One of the men was very small and the other one was “pretty heavy.” After the two had robbed Willie Johnson, the heavy man (the defendant) entered the front seat and took his money and a gold watch. The defendant then got out of the car and stood beside it along with the other man. He reached into the back seat and touched Milton on the knee. Milton said, “No man, don’t do that to me” and went back to sleep. The defendant rolled down the rear window and said to Milton, “Man, if you don’t give me that money out of there I will kill you. I will blow your head off.” At this time the defendant was holding a sawed-off shotgun. Johnson heard two blasts, and the robbers fled. He looked into the back seat and saw Milton slumped over with a wound in his neck. He identified a gold watch in evidence as being the watch taken from him and also identified a shotgun as being similar to the one used to shoot Milton.

King Ward testified as a witness for the State. He stated that he was a friend of the defendant, who was also known as “Casino”, and had known him all his life. Pie was reluctant to testify against the defendant, but did so because he was subpoenaed. He related that there was a small party in the defendant’s apartment on the evening of April 30. Everyone there was drinking. The defendant showed him three pieces of a shotgun and asked him to put it together, which he did. The defendant asked him for some shotgun shells, but he told the defendant that he did not have any. However, someone else at the party stated that he had some.

At about 2 o’clock in the morning, the defendant left the apartment with Tyrone Hughes and a girl named Renee. The three of them returned at about 3 o’clock, and the defendant gave Ward the shotgun, which was again in three pieces. Ward asked the defendant about the shells, and the defendant said that he had thrown them away. The defendant had borrowed Ward’s jacket, and he returned it along with the gun. Ward gave the gun to James Clemmons, also known as “Sug”, and later the same day (May 1) went to Clemmons’ apartment along with the police to recover the weapon. He was also present when the police recovered a gold watch from the pocket of the jacket that he had loaned to the defendant.

Renee Fox, who was 16 years old, testified for tire prosecution. She stated that she and the defendant left the party along with Tyrone Hughes, and the three of them “drove around” in a red and black Dodge Charger driven by Tyrone. They stopped near Lexington and California, and the two men got out. She fell asleep, but was awakened by gun shots. Hughes and the defendant returned, and they went back to the defendant’s apartment where the defendant gave a rifle to King Ward.

The police arrived at the scene of the shooting, and it was ascertained that Milton was dead. Doctor Jerry Kearns, a pathologist, testified that he conducted an autopsy on Milton’s body, and that Milton died of a gunshot wound in the neck and skull. The police investigation led ultimately to the defendant and Tyrone Hughes, and they were arrested. At first the defendant denied any knowledge of the offense, but later he admitted participation in the robbery. He denied, however, that he and Hughes had intended to shoot anyone and stated that the gun went off accidentally as he was attempting to take it away from Hughes.

We begin by considering whether the defendant’s arrest was improper. He argues that the officers had no warrant and had no reasonable grounds to believe that he had committed a crime and therefore that his arrest should have been quashed. It is undisputed that the officers did not have a warrant. However, the State contends that the prior police investigation established sufficient probable cause to arrest the defendant. After reviewing die record, we agree.

Officer Kenneth Spink testified that he arrived at the scene of the shooting prior to the removal of Milton’s body. He interviewed Milton’s companions and other persons on the scene. A witness, Miriam McGee, informed him that the car driven by the offenders was a red and black Dodge Charger, and he passed this information along to Officers Thomas Sherry and James Griffin, who were assigned to investigate the incident at 8:30 that morning.

Sherry and Griffin both testified that they spoke with Officer Niebalic and were informed that he had issued a traffic ticket to the driver of a red and black 1969 Dodge Charger at 2:45 A.M. at a location 1 or 2 miles from the gas station. The ticket identified the driver as Tyrone Hughes of 2212 West Flournoy Street and listed the license plate number of the car as PE4697. The officers returned to the area of the gas station and interviewed Miriam McGee, who stated that she had memorized the license number of the car that she had seen and that it was PE4697.

Sherry and Griffin went to 2212 West Flournoy, where they were • joined by Officer Soil. They spoke to Mrs. Neeley, who stated that she was Tyrone’s mother. She told them that her son was known as “Jap”. She also told them that her stepson, John McChristian, had a red and black 1969 Dodge Charger. They spoke to Tyrone’s brother, Edward Hughes, who told them that Tyrone and a person named “Casino” had been in possession of the car between 1 and 3 o’clock in the morning. He also told them that he did not know Casino’s real name, but that Tyrone could probably be found either at a nearby pool room or at Casino’s apartment, which was located at 1815 West Monroe Street.

The officers had been given a description of Hughes by his brother. They also had obtained a general description of the offenders from the victims and had learned that one of the offenders had probably been hit in the jaw by the shotgun when it went off. They went to the pool room, but did not find either Hughes or Casino. They then proceeded to 1815 West Monroe, where they ascertained the number of Casino’s apartment by asking a boy who lived in the building. There is a conflict in the testimony as to the manner in which the officers gained entry to the apartment; however, it is immaterial to the question of probable cause. Once inside, they saw several men engaged in washing walls. They stated that they were looking for Tyrone Hughes and Casino, and the occupants denied that, either was present.

Officer Soil noticed that one of the men had high cheek bones and asked him if he was known as “Jap”. He said no, and Soil asked him for identification. He stated first that his name was Tyrone Neely and then that it was Tyrone Hughes. Officer Griffin then noticed that Hughes had a bump on his jaw. Officer Sherry asked which person was Casino, and Hughes stated that it was the one with the red streak in his hair. The officers observed that the defendant had a red streak in his hair and asked both Hughes and the defendant to accompany them to the station.

In our view the foregoing is sufficient to establish a reasonable belief on the part of the investigating officers that Hughes and the defendant had committed the robberies and shooting. As our supreme court has stated, “the test of probable cause is whether a reasonable and prudent man in possession of knowledge which has come to the arresting officer would believe the person to be guilty of the crime; that it is something less than evidence that would result in conviction and may be founded on hearsay evidence; that it is based upon factual and practical considerations of every day life upon which reasonable and prudent men, not legal technicians, act.” (People v. Macias (1968), 39 Ill.2d 208, 213, 234 N.E.2d 783, 786-87.) If this test is applied to the information developed by the officers during their investigation, it is apparent that they had probable cause to arrest the defendant.

The defendant places great emphasis on the fact that some of the information about which the officers testified was not included in the police reports that they prepared shortly after the events allegedly occurred. This, he argues, discredits their testimony and creates a doubt as to the actual existence of the probable cause. While we might agree with this argument in principle, we believe that it raises a question of credibility, which the trial court resolved adversely to the defendant. As we have stated on numerous occasions, this court will not, except in cases of palpable error, substitute its judgment for that of the trial of fact in determining the credibility of witnesses.

The defendant also argues that the circumstances presented no emergency, and therefore that it was improper for the officers to have proceeded without a warrant. We deem it now well settled in Illinois that the legality of arrests is to be tested by the presence or absence of probable cause and not the presence or absence of a warrant. (Ill. Rev. Stat. 1969, ch. 38, par. 107—2; People v. Johnson (1970), 45 Ill.2d 283, 259 N.E.2d 57.) We have already concluded that there was probable cause for the arrest, and therefore we consider this argument to be without merit. The trial court acted properly in denying the defendant’s motion to quash the arrest.

As his second contention, the defendant asserts that the trial court erred in denying his motion to suppress the oral and written statements that he made while in police custody. He argues that they were tire products of an illegal arrest and that they resulted from coercion. We have already commented on the legality of the arrest and need not comment further.

With respect to the allegation of coercion, the defendant testified that after being taken to the police station he was handcuffed to a radiator, placed in several lineups, interrogated continuously, denied food and beaten on the arm with a blackjack. He stated that he finally agreed to make a statement because he did not want to be “jumped on no more.” A defense witness, Curtiss Terry, testified that he saw the defendant in a lineup and that the defendant had tears in his eyes and was having difficulty with one arm. The defendant told him that he had been beaten by the police. The defendant’s mother testified that she visited the defendant in jail 2 weeks after his arrest, and he told her that he had been beaten on May 1. She noticed that something had happened to his hand. The defendant also reported tq officials at the Qogk Qgupty Jail that he had been injured.

This testimony was directly opposite that of the police officers present, who testified that the defendant was not beaten or abused in any way, that he was allowed to see friends and members of his family who came to the station and that he was given a sandwich and soft drink. The officers also stated that the defendant was advised of his constitutional rights on at least two occasions prior to making any statement, and he indicated that he understood them. He made both the oral and written statements voluntarily. This testimony was corroborated in part by the court reporter and assistant State’s Attorney, who testified that they were present at the taking of the written statement and that the defendant appeared to be in good physical condition.

In our view, this conflicting evidence raised a question of fact to be determined by the trial court. Thus the matter is one of weighing evidence and judging the credibility of witnesses. After hearing the evidence, the trial court found that the events in question had transpired substantially in the manner described by the State’s witnesses. We can find nothing in the record which would allow us to substitute our judgment for that of the trial court.

The defendant also argues that the statements should have been suppressed because he made them as a result of being informed by the police that Tyrone Hughes and Renee Fox had made statements implicating him in tire offense, The record reflects that the officers did tell the defendant that they possessed certain incriminating statements made by Hughes and Miss Fox. However, we can see no indication that this procedure was coercive and we do not believe that it provides a basis for suppressing the statements.

Finally, the defendant argues that his motion to suppress should have been granted because the State failed to produce every person present at the time that the statements were taken. The record reflects that a police officer named Hensley, who was present when the defendant made his written statement, was not called to testify at the hearing on the motion to suppress. However, it does not appear that Officer Hensley was present when the alleged coercion took place or that his testimony would have differed from that of the other officers present, all of whom did testify. It was the burden , of the State to prove by a preponderance of the evidence that the statements were voluntary. (Ill. Rev. Stat. 1969, ch. 38, par. 114—11.) After reviewing the totality of the evidence, we conclude that the State met this burden and that the trial court was correct in denying the motion to suppress.

As this third contention, the defendant urges that it was error for the court to have allowed the confession of Tyrone Hughes to be read to the jury. By this he refers to a portion of his own written statement which contains a colloquy between himself, Hughes and a police officer in which Hughes states that the defendant was holding the gun when it went off and that he had the defendant by the arm. The defendant states that it was Hughes who had the gun and that he had Hughes by the arm. Both agree that they were wrestling over the gun at the time. This portion of the defendant’s statement was admitted into evidence and read aloud to the jury over the objection of defense counsel.

The defendant argues that Hughes’ version of the shooting directly contradicts his and, therefore, under the holding of Bruton v. United States (1988), 391 U.S. 123, that portion of his statement which contained Hughes’ remarks should not have been admitted. We have examined the statement, and we disagree with the defendant’s characterization of Hughes’ version of the incident as contradictory to his. If anything, it is corroborative in that it strengthens the defendant’s theory that the shotgun discharged accidentally as he and Hughes struggled over it. The conflict as to who was actually holding the gun when it went off is immaterial, as the State, under its theory of the case, was not required to prove that the defendant had possession of the gun or actually pulled the trigger. (See Ill. Rev. Stat. 1969, ch. 38, par. 9—1(a) (3); People v. Brooks (1972), 51 Ill.2d 156, 281 N.E.2d 326.) Even if it be assumed for the sake of argument that Hughes’ statement was prejudicial to the defendant, its introduction was, at most, a harmless error in view of the overwhelming evidence of the defendant’s guilt. See People v. Lucas (1971), 48 Ill.2d 158, 269 N.E.2d 285.

As his fourth contention, the defendant argues that the State deliberately concealed evidence favorable to the defense. The evidence to which he refers is the medical records of the Cook County Jail concerning treatment of an alleged injury on the defendant’s arm. This contention is utterly unsupported by the record, as it appears that the State -complied fully with defense counsel’s discovery motion, and defense counsel acknowledged this fact in open court.

As his fifth contention, the defendant argues that the court erred in refusing to instruct the jury as to involuntary manslaughter and reckless conduct. He takes the position that the jury could have found from the evidence that he intended to- leave the scene of the robbery prior to the shooting and that he returned only for the purpose of persuading Tyrone Hughes to leave. He bases this upon his testimony that he wanted to leave because people were coming and that he and Hughes were “playing with” tire shotgun when it went off.

We find this argument unpersuasive. It was the State’s theory that the defendant was guilty of murder under the so-called “felony murder rule”. (Ill. Rev. Stat. 1969, ch. 38, par. 9—1(a)(3).) This provides that a person is guilty of murder if he kills an individual while attempting or committing a forcible felony. No intent is required, and the accused need not be the actual perpetrator of the killing. (People v. Brooks (1972), 51 Ill.2d 156, 281 N.E.2d 326.) It follows, then, that it would be impossible for one committing a homicide during the course of a forcible felony to be guilty of manslaughter. In the present case the defendant admitted participation in a planned armed robbery. Therefore, it would have been impossible for the jury to have found him guilty of manslaughter or reckless conduct, and any conjecture as to the precise circumstances under which the gun was discharged is immaterial. It is our conclusion that the trial court correctly refused the tendered instructions.

As his sixth contention, the defendant argues that he was not proven guilty beyond a reasonable doubt. He bases this contention upon his own testimony that he had ceased his participation in the robbery at the time of the shooting and that it was “accidental”. He also questions the credibility of P. L. Johnson’s testimony that he heard the defendant demand Milton’s money because Johnson was drunk at the time of the robbery. As we have explained, under the theory of felony murder, the jury could have taken the defendant’s version of the shooting as true and still have convicted him of murder. Furthermore, the jury was not required to believe the defendant or to give his testimony any weight at all. Therefore, the question is one of credibility of witnesses rather than reasonable doubt. For these reasons, we are satisfied that the record overwhelmingly supports the conviction.

Finally, the defendant contends that his sentence is excessive. The trial court described the shooting as vicious and senseless. It was revealed at the hearing in aggravation and mitigation that the defendant had been convicted previously of battery and aggravated battery and was on probation at the time of the present offense. We have stated on numerous occasions that sentencing is within the sound discretion of the trial court and that in the absence of an abuse of such discretion this court will not intervene. We concur in the trial court’s characterization of the offense, and we see nothing in the record that would indicate an abuse of the court’s discretion.

For the foregoing reasons the judgment of the Circuit Court is affirmed.

Affirmed.

DIERINGER and JOHNSON, JJ., concur.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ramon A. Moreno, Defendant-Appellant.
    (No. 58181;
    First District (4th Division)
    March 13, 1974.
    James J. Doherty, Public Defender, of Chicago (Leonard V. Solomon, Assistant Public Defender, 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.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant was indicted for the crimes of rape, indecent liberties with a child, and contributing to the sexual delinquency of a child. After a bench trial, the defendant was found guilty of the lesser included crime of attempt rape. The court sentenced the defendant to 3 years probation, with the first year to be spent in the Work Release Program of the Cook County Department of Corrections.

The issues presented on appeal are.(l) whether the testimony of the complaint was sufficiently clear and convincing to prove the defendant guilty beyond a reasonable doubt; (2) whether the testimony of the complainant was sufficient to sustain the finding of guilty beyond a reasonable doubt despite defendant’s alibi evidence; and (3) whether the conduct and comments of the trial judge were consistent with a finding of guilt beyond a reasonable doubt.

On December 14, 1971, at approximately 5:15 P.M., Colleen Baiocchi, age 14, was walking south on Clark Street toward her home. As Miss Baiocchi approached the intersection of Clark and Montrose she observed a young man walking ahead of her. The young man turned "around, looked as Miss Baiocchi, then continued walking ahead of her. Shortly thereafter, the young man stopped, knelt down, and began tying his shoe. Miss Baiocchi kept walking, and as she passed him she was able to clearly observe the right side of the young man’s face. When Miss Baiocchi had walked another three-quarters of a block, someone came up behind her, put a knife to her neck, and told her in a soft voice she would not get hurt if she went with him into an adjacent alley. The assailant forced Miss Baiocchi into a gangway underneath a porch in the alley, making her face the wall. He ordered her to remove her slacks, and when she began crying he forcibly pulled her slacks down. The victim, who had not had sexual intercourse prior to the date in question, believed the assailant then had sexual intercourse with her, although at trial she was somewhat confused as to whether penetration had occurred. Just prior to the sexual contact, Miss Baiocchi toned around and saw her attacker’s face. She recognized tire attacker as being the same person she had just seen on the corner and whom she had just passed a few moments before. The incident was subsequently reported to the police. One week after the attack Miss Baiocchi picked the defendant’s picture out of over 1,000 photographs she viewed. She informed the police, however, that she could not be completely positive until she could see the defendant in person and hear him speak. On January 7, 1972, at a police line-up, Miss Baiocchi positively identified the defendant, Ramon Moreno, as her attacker. The defendant was thereafter brought to trial. At the close of all the evidence, the court found the testimony of the complainant to be “clear and convincing.” The only element the court believed was not proven beyond a reasonable doubt was that of penetration. Accordingly, the court found the defendant guilt}' of the lesser included offense of attempt rape and entered judgment on that finding. The defendant was sentenced to 5 years probation with the first year of his probation period in the Cook County Department of Corrections System in the Work Release Program.

The defendant’s first contention is he was not proved guilty beyond a reasonable doubt since the identification of him by the complaining witness was vague and uncertain. The defendant bases his contention on the decision in People v. Cullotta (1985), 32 Ill.2d 502, 504, wherein the Illinois Supreme Court stated:

“We have reiterated the rule that a conviction cannot be deemed to be sustained by evidence beyond a reasonable doubt if the identification of the accused was vague, doubtful, and uncertain.”

The defendant further contends Miss Baiocchi’s selection of his picture out of over 1,000 photographs implanted the image of the defendant in the mind of the complainant as her attacker. Defendant argues this identification was unreasonably suggestive. He cites the decision in People v. Calhoun (1973), 11 Ill.App.3d 600, wherein tire appellate court held that the State must prove the uninfluenced origin of the in-court identification by clear and convincing evidence.

We believe the identification testimony of the complainant was sufficiently clear and convincing to prove the defendant guilty beyond a reasonable doubt. The identification of the defendant by the complainant was based on three separate and distinct opportunities to observe the defendant for short periods of time. The circumstances under which Miss Baiocchi was able to observe the defendant do not make her identification vague and uncertain. Rather, Miss Baiocchi had more than adequate opportunity to closely observe the defendant and her identification based on these observations is sufficient to warrant the trial court’s finding of guilty beyond a reasonable doubt. We cannot find a basis for saying the verdict was palpably contrary to the manifest weight of the evidence so as to cause a reasonable doubt of the defendant’s guilt. (People v. Daily (1968), 41 Ill.2d 116.) Miss Baiocchi’s identification of the defendant at the police line-up was not suggestive, but rather wholly independent of the viewing of the photographs. In People v. Moore (1972), 51 Ill.2d 79, the Illinois Supreme Court held that a rape victim’s tentative identification of a photograph of defendant and her subsequent positive identification of defendant at a preliminary hearing did not taint the identification. The court stated at page 86:

“The record shows a sufficient basis for an identification wholly independent of the viewing of the photographs and her seeing the defendant in person at the preliminary hearing is shown to have merely confirmed her identification from the photograph.”

The defendant contends next that his alibi evidence raised a reasonable doubt as to his guilt. The defendant at trial produced two witnesses who testified the defendant was at a different place on the date and time in question. The defendant relies on the decision in People v. Gooden (1949), 403 Ill. 455, wherein the Illinois Supreme Court held that in a criminal case the burden rests upon the People not only to prove beyond a reasonable doubt the commission of the crime charged but also to establish by the same degree of proof the perpetration of the crime by the person accused.

We believe the identification testimony of the complainant was sufficient to sustain the finding of guilty beyond a reasonable doubt despite defendant’s alibi evidence. The general rule for determining whether a verdict based on an identification contradicted by an alibi should be disturbed is well stated in People v. Knowles (1970), 130 Ill.App.2d 78:

“The testimony of one witness, if it is positive and the witness credible, is sufficient to sustain a conviction even though that testimony is contradicted. [Citations.] The adequacy of an identification raises a question of the credibility of the witnesses which is a matter for determination by the trier of fact, who has a superior opportunity not only to hear the testimony of the witnesses but to observe their demeanor on the stand. [Citations.] A reviewing court will not reverse on this ground unless the testimony is so unsatisfactory as to create a reasonable doubt of the defendant’s guilt.”

In the instant case, the identification testimony of Miss Baiocchi was clear and convincing, while the evidence presented by the defendant contained several discrepancies. Therefore, the judgment of the trial court should not be disturbed.

The defendant finally contends the conduct and comments of the trial judge reflect an uncertainty as to whether the defendant was proven guilty beyond a reasonable doubt. Defendant cites two instances in support of his contention. First, the court’s reduction of the crime from rape to attempt rape; second, the seeking of advice on sentencing from the father of the complainant.

The defendant’s contention is without merit. The court’s judgment resulted from the uncertainty of the victim on the issue of whether penetration occurred. Since the court determined the element of penetration had not been proven beyond a reasonable doubt, it could not find the defendant guilty of the crime of rape as charged. The missing element did not, however, affect the evidence the defendant attacked the complainant and forced her to submit to his sexual advances. It was entirely proper, therefore, for the court to find the defendant guilty of the lesser included crime of attempt rape for which all elements were proved. Ill. Rev. Stat. 1971, ch. 38, § 2—9.

During the hearing in aggravation and mitigation the trial court asked the complainant’s father if he had any comments. Such a procedure does not reflect any judicial uncertainty as to the guilt of the defendant. It was simply a matter of courtesy for the court to seek the views of the father of the complainant.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADESKO, P. J., and JOHNSON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Silas Walker, Defendant-Appellant.
    (No. 58554;
    First District (4th Division)
    March 13, 1974.

      Edward M. Genson and Sam Adam, both of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Roger Horwitz, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. After a bench trial the defendant was convicted of reckless homicide and leaving the scene of an accident. He was sentenced to a term of from 1 to 2 years on each charge, the charge, the sentences to run concurrently.

The issues presented on appeal are (1) whether the defendant was properly informed of his constitutional rights and knowingly and intelligently waived said rights; (2) whether the defendant was proven guilty beyond a reasonable doubt; (3) whether the indictment for the offense of leaving the scene of an accident was defective for failure to allege a mental state; and (4) whether Illinois Revised Statutes 1969, chapter 95½, §§11—401(b) and (d) and 11—403, violate the defendant’s constitutional right against self-incrimination.

At the trial of this cause, Mr. Ray Joiner testified that on November 28, 1969, he was walking east on Marquette Road toward Aberdeen on the north side of the street when, from a distance of 75 to 100 feet, he heard a noise that sounded like a collision. At this moment the witness looked up and saw an automobile leave the curb and return to the street. The witness observed the car travel 15 feet and again drive on the curb and return to the street. The car then traveled another 20 feet when it again went onto tíre curb and struck a tree. The driver of the car slumped over the wheel for a few seconds, restarted the car, and continued west on Marquette in a zigzag pattern. The witness then looked down and saw the victim, Mr. Willie Johnson, lying on the street. The witness once again observed the automobile, which made a U-tum and came back east on Marquette toward Aberdeen. The witness hailed the driver to stop, but the car drove on with the driver slumped behind the wheel.

Police Officer Robert Janus testified he was flagged down by Mr. Joiner. The officer observed skid marks and scuff marks on the curb and street. He also found a metallic ring lying in the street next to the curb, which appeared to have been broken off something. •

Police Officer Edward Amswald of the hit-and-run division testified he and fellow officers conducted a search for the hit-and-run car. Officer Arnswald subsequently spotted a car parked along the street two blocks from Aberdeen and Marquette which fit the description of the hit-and-. run car. The left rear tail lens was missing from the car; there was an indentation on the hood and roof; and the hood ornament on the right front side was broken and had some cloth wrapped around it. Officer Amswald compared the metal ring located on the left side of the car with the ring found at the scene of the hit-and-run, and testified they were the same size. The cloth found on the right front side of the car and the jacket worn by the victim at the time he was killed were sent to the police crime lab. The lab report concluded the fabric from the car and the victim’s coat were from the same weave fabric.

The defendant was arrested in a tavern on December 3, 1969. He was taken to the hit-and-run police offices where Officer Amswald warned the defendant “he didn’t have to answer any question about an accident and that if he did say anything about the accident, he had a right to an attorney, that if he did say anything, it could be used against him at some future criminal proceeding.” Officer Arnswald further advised the defendant he should obtain the advice of an attorney, and if he did not have enough money to obtain one, the State would provide an attorney for him. The defendant indicated he understood his rights. At trial counsel for the defendant objected to Officer Arnswald’s testimony on the ground the defendant did not know or comprehend the nature of the officer’s warning, and did not knowingly waive his rights under Miranda. The objection was overruled by the court. Officer Arnswald then testified further the defendant stated he was on Halsted at 69th Street on November 28, 1969; when he heard a “thump” on his car. He got out, saw no damage, and drove on. The defendant denied he was at Aberdeen and Marquette.

At the conclusion of the trial, the defendant was found guilty of reckless homicide and leaving the scene of an accident. He was sentenced to concurrent terms of from 1 to 2 years in the Illinois State Penitentiary.

The defendant first contends his oral and written statements to the police were obtained absent constitutionally required warnings and absent a valid and knowing waiver of said rights. The defendant relies primarily on the decision in Miranda v. Arizona (1966), 384 U.S. 436, wherein the Supreme Court held that when an individual is taken into custody or otherwise deprived of his freedom, “he must be warned prior to any questioning that he has a right to remain silent, that anything he says can be used against him in a court of law, that he has the right to tire presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” The defendant argues the warnings given him in the instant case were devoid of any mention of defendant’s right to have an attorney present at the interrogation, and thus were insufficient to satisfy die Miranda requirements. The defendant further contends he did not knowingly and intelligently waive his rights under Miranda. Defendant argues that at the time of his arrest he was intoxicated and did not comprehend the nature of the warning given him by the police. He cites the decision in People v. Roy (1971), 49 Ill.2d 113, wherein die Illinois Supreme Court held where arresting officers related the defendant appeared intoxicated and was unsteady following arrest, the defendant’s statements were inadmissible since it was not shown the defendant had knowingly waived his right to counsel and right to remain silent.

We believe the defendant was properly informed of his constitutional rights and knowingly and intelligentiy waived said rights. The warning by Officer Amswald that the defendant should obtain the advice of an attorney was given immediately after the officer told the defendant that if he said anything it could be used against him at some future criminal proceeding. These warnings clearly conveyed the idea to the defendant that he had a right to an attorney present during interrogation. The officer did not have to warn the defendant of this right with the included phrase “present during interrogation,” because the law does not require specific words to be repeated every time to an arrested person in order to comply with Miranda. In People v. Townsend (1972), 6 Ill.App.3d 873, 877, this court held:

“The words of Miranda, however, do not constitute a ritualistic formula which must be uttered without deviation to be effective. Rather words which convey the substance of the warnings and the required information are sufficient.”

After being advised of his rights, the defendant was asked if he understood the warnings. He answered he did understand, and then elected to volunteer statements to the police. Officer Arnswald testified that based on his conversation and observation of the defendant, it was his opinion the defendant was sober at the time the statements were made. In People v. Noonan (1972), 5 Ill.App.3d 1109, 1111, the defendant contended he was intoxicated at the time of his interrogation, but the interrogation officers testified the defendant was sober. In affirming the defendant’s conviction, the appellate court stated:

“The warnings given the defendant complied with the constitutional requirements set out in Miranda v. Arizona (1967), 384 U.S. 436. Whether he understood and waived them was a factual question, the answer to which depended upon the acceptance or rejection of defendant’s testimony or that of the police officers. The credibility and weight to be given to the testimony of witnesses is a matter to be determined by the trial judge. His determination will not be reversed unless it appears to be palpably erroneous.”

In the instant case, the defendant fully understood his rights and knowingly waived them when he volunteered statements to the police. He cannot now claim he was denied his constitutional rights.

The defendant next contends he was not proven guilty beyond a reasonable doubt. Defendant argues the State’s case against him rests on a weak chain of inferences which do not support a conviction or prove the defendant guilty beyond a reasonable doubt.

We believe the defendant was proven guilty beyond a reasonable doubt of reckless homicide and leaving the scene of an accident. It is a well settled principle of law that a conviction may be sustained on circumstantial evidence. (People v. Huff (1963), 29 Ill.2d 315.) In People v. Marino (1970), 44 Ill.2d 562, the Illinois Supreme Court stated:

“* * * a conviction may be sustained upon circumstantial evidence as well as direct evidence [citation], it being necessary only that the proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. [Citation.]”

In the instant case, the chain of events established beyond a reasonable doubt the defendant recklessly drove his automobile, struck and caused the death of a pedestrian, and did not stop or report the accident within 48 hours. The trial judge’s decision should therefore not be disturbed. People v. Johnson (1969), 114 Ill.App.2d 415.

The defendant’s third contention is the indictment for the offense of leaving the scene of an accident in violation of Illinois Revised Statutes 1969, chapter 95½, § 11—401, is defective for failure to allege a mental state. Defendant contends that, short of the imposition of absolute liability, a mental state must be described and proved for those who fail to comply with the reporting procedure set forth in Illinois Revised Statutes 1969, chapter 95½, §§11—401(b) and (d) and 11—403. In support of this contention the defendant cites Lambert v. California (1957), 355 U.S. 225, wherein tire Supreme Court ruled a California statute which required convicted felons to register on entering any county within the state violated the due process clause of the fourteenth amendment. Defendant argues in the case at bar the statutory requirement that defendant report an accident prescribes no requisite mental state and would constitute a violation of due process. The defendant further argues since the statute fails to allege a mental state, the indictment in question is defective for the same reason, the failure to aHege a mental state.

We do not agree with the defendant’s contention. The Illinois Supreme Court has upheld the validity of statutory provisions imposing liability without wrongful intent. (People v. Fernow (1919), 286 Ill. 627.) In People v. Player (1941), 377 Ill. 417, the Illinois Supreme Court held:

“* * * a statute may forbid the doing of an act and make its commission criminal without regard to tire intent or knowledge of the doer. In such cases the doing of the inhibited act constitutes the crime, # » * [and the] knowledge or ignorance of its criminal character are immaterial on a question of gufft and need not be alleged or proved. [Citations.] Such legislation has been sustained against constitutional attack on the grounds it was enacted in the exercise of the police power.”

In the instant case, the statute making the leaving of the scene of an accident and not reporting it a crime is a proper exercise of the legislature’s police power. Therefore, the defendant is guilty of such an offense without any showing of knowledge or intent. It logically follows that since a mental state is not an essential element of Illinois Revised Statutes 1969, chapter 95½, §§ 11—401(d) and 11—403, the indictment charging that offense need not allege a mental state.

The defendant finally contends Illinois Revised Statutes, 1969, chapter 95½, §§11—401(b) and (d) and 11—403, violate the defendant’s constitutional right against self-incrimination. The defendant maintains that requiring a motorist involved in an accident to stop and report the accident impinges upon tire privilege against self-incrimination.

We do not agree with the defendant’s contention. In People v. Lucus (1968), 41 Ill.2d 370, 373 the Illinois Supreme Court held the requirement that a motorist involved in a traffic accident must identify himself does not violate the fifth amendment’s privilege against self-incrimination. The court stated:

“The gist of the offense created by the statute is not the fact of causing damage to a motor vehicle, but the concealing or attempting to conceal the identity of a driver who has been involved in an accident * * *.
# # #
The privilege under the fifth amendment is not without qualification. It ‘is confined to real danger, and does not extend to remote possibilities out of the ordinary course of law.’ [Citation.]”

In the instant case, the statute’s provisions do not present a real danger of self-incrimination.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN and JOHNSON, JJ, concur.