author: Mr. PRESIDING JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Nicholas DeBartolo, Defendant-Appellant.
    (No. 73-34;
    Second District (1st Division)
    January 22, 1975.

      Thomas H. Stern, Thomas S. Fins, and Harry G. Fins, all of Chicago, for appellant.
    Ralph J. Gust, Jr., Assistant State’s Attorney, of Wheaton, for the People.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Defendant was convicted of theft over $150 (Ill. Rev. Stat. 1973, ch. 38, par. 16 — 1(a)(1)) following a jury trial. He was sentenced to 2-5 years in the penitentiary. On appeal, defendant contends that he was not proven guilty beyond a reasonable doubt and that various trial errors require reversal. Nicholas DeBartolo, the defendant (together with one John Owen), were charged by indictment with the theft of 20 “Hood” brand tires, alleged to have a value of more than $150, from Zayre of Illinois, a corporation. Brandon LeRoy Page, a 16-year-old minor at the time of the crime, and who admitted that he participated in the theft, was the principal witness for the State.

Page testified that on February 18, 1970, he and DeBartolo drove in defendant’s truck to the Zayre Automotive Center in Addison. The pickup truck had been fitted with wooden sides by the witness some 2 or 3 weeks prior to this time at defendant’s direction. DeBartolo drove his vehicle into one of the six automotive stalls after someone opened a service door. John Owen, a mechanic at Zayre’s, was working in the bay area of the automotive center. There were no other people in the area except for a woman employee from the store whom DeBartolo asked whether she could sell him a tape. While DeBartolo went to Zayre’s merchandise section, which was separated from the automotive center by a wall, with the employee, Page testified, he and Owen loaded 28 tires onto the truck. Page said that Owen told him to put the tires in the truck and to put the tarpaulin in the back of the truck over them, which he did, and that he and Owen had no other conversation in the approximately 10 minutes that it took to complete the loading. That DeBartolo then returned with some tape he had purchased in the store and asked Page to collect his change and receipt.

The witness said DeBartolo was pretending that he was getting an oil change and that he thought that Owen placed a gallon and a quart of oil on the front seat of the truck. DeBartolo then left the area. Page remained with Owen for approximately 15 minutes more while Owen put his tools away since it was close to 6 o’clock in the evening. The witness testified that he then accompanied Owen to “Murph’s Gas Station” where he saw defendant’s truck. He said he also saw defendant give Owen about $300 at the station. He said that he did not hear any conversation at the time of the exchange of the money.

Page further testified that on the following Sunday he met the defendant at “Murph’s Gas Station”; that they then loaded the tires on a “U Haul” trailer and drove to “Maxwell Street” where they unloaded the tires and some tools they had brought and began selling the tires and tools on the street. He said that he and defendant also sold tires at the same place the following Sunday accompanied by a friend, who did not appear or testify.

There was evidence that Page had been convicted previously of a burglary in which the defendant DeBartolo was the victim; that Page was on probation for that offense both when he participated in the offense here involved and when he testified; and that Page was neither being prosecuted for his participation in this offense nor had any action been taken to revoke his burglary probation. Page conceded on cross-examination that a police officer drove him to court each day during his trial testimony but claimed he was promised nothing in exchange for his testimony. Page also admitted that he was angry at defendant when he committed the crime against him but “didn’t know” whether he was still angry at him when he testified. There was evidence that Page had been hired as an employee of Linemaster by defendant who was a supervisor of the firm and that he had been recently discharged. Page was not certain on cross-examination of the exact times he arrived and left the Zayre store, but said they were approximate times.

Sue Young testified for the defendant. She was the secretary at the Linemaster Tool Company where DeBartolo worked. She identified defendant’s time card for February 18, 1970, which showed that although the normal working hours were from 9 o’clock to 5:30 or 6 o’clock, defendant had worked on February 18 from 10:30 A.M. until 9 P.M. She said that she recalled the defendant did not leave the Linemaster building between 5 and 6:30 on February 17 or 18, because she was asked to join defendant and Mr. Linemaster in a pizza for supper on those dates. A receipt for a pizza on February 18 was admitted into evidence.

On cross-examination the witness admitted that the defendant wrote the time in on the time card which was accepted for pay purposes, since the company had no time clock. She admitted that she did not know whether the defendant and Linemaster had dinner together but assumed that because Linemaster could not have eaten a large pizza ordered by himself. The witness claimed that her acquaintance with defendant was only in the course of employment. In rebuttal, however, a witness testified to seeing defendant’s car in her driveway on many occasions.

Defendant argues that the testimony of an accomplice is to be examined with extreme caution (People v. Johnson (1925), 317 Ill. 430, 434-435), noting that the accomplice Page had motives of revenge and self-protection, and that an alibi defense must be given considerable weight when, as here, the accomplice’s testimony is the only contradictory evidence. (People v. Hermens (1955), 5 Ill.2d 277, 285-286.) Defendant contends also that the testimony of Page is improbable because it is unlikely that there would be no other witnesses in the Zayre Automotive Center in the time period involved, that there would be no conversations between the participants, and that the allegedly stolen merchandise would thereafter be sold on a crowded city street.

Hie State responds that defendant’s argument is directed to questions of credibility which were for the jury, properly instructed. We agree. While the testimony of an accomplice is subject to careful scrutiny, it is sufficient to convict if it satisfies the trier of fact beyond a reasonable doubt. (People v. George (1971), 49 Ill.2d 372, 382.) The fact that the accomplice is a self-confessed criminal and has expectation of leniency is a factor which the jury may take into account in weighing credibility but does not of itself raise a reasonable doubt of guilt. (People v. George, 49 Ill.2d 372, 382; People v. Coleman (1971), 49 Ill.2d 565, 573.) The testimony of the accomplice in this record was not substantially impeached, and the so-called improbabilities were matters for the jury to weigh.

The case of People v. Hermens, 5 Ill.2d 277, cited by defendant, does not a dictate a different conclusion here. In Hermens, one accomplice denied the testimony of the other and corroborated the testimony of the defendant. In addition to the fact that the State’s witness was thoroughly discredited, prejudicial statements were made about other offenses. (See People v. Slayton (1974), 16 Ill.App.3d 910, 915.) On the whole record before us we conclude that there was evidence from which the jury could properly find that the defendant was guilty beyond a reasonable doubt.

Defendant further contends that even if Page’s testimony is taken as true there is no proof of felonious intent in the taking of the tires because Zayre’s employee, Owen, made the sale to defendant, and there was no showing that they were coconspirators. The proof of the necessary intention is an essential element of the offense of theft as defendant argues. (People v. Betts (1937), 367 Ill. 499, 502-503.) But more persuasive, in our view, is the argument of the State that the circumstances are sufficient to compel the conclusion that defendant knowingly obtained control' over property with the intention to deprive the owner permanently of its use and benefit. People v. Baddeley (1969), 106 Ill.App.2d 154, cited by defendant on this issue, involved essentially a bona fide although mistaken belief in the right to reclaim property without a court order and is therefore factually dissimilar. Also People v. Ibom (1962), 25 Ill.2d 585, is clearly distinguishable on its facts. The entire record in this case does not leave us with a grave and substantial doubt of the felonious intent on the part of the defendant.

Defendant next contends that he has been improperly sentenced for a felony and that his argument is not based on either the instruction given to the jury nor the claim that the verdict form was improper.

The indictment under which defendant was tried charged him with theft in excess of $150; but the form of the verdict did not specify any value. Defendant contends that the value of the subject of theft must be made a part of a jury verdict to support a felony conviction, particularly when value is substantially disputed. He reasons that People v. Dell (1972), 52 Ill.2d 393, stands for the proposition that the absence of any reference to value in a theft verdict results in a conviction of the misdemeanor offense of theft only. We disagree. Dell is factually distinguishable. In Dell, a figure of $250 was found to have been inserted in the verdict form before it was submitted to the jury, thus precluding the determination by the jury of the disputed fact of value. Here, no figure was inserted in the verdict, and the jury was given the option of finding the defendant either guilty of theft or not guilty under specific instructions and not by general reference to the indictment. The issues instruction specifically required the State to prove:

“FOURTH: That the value of the tires was more than $150.00.” No instruction was tendered or given as to any lesser included offense. Thus, any possibility that the jury might have found defendant guilty of a lesser offense or any ambiguity in the jury’s verdict was eliminated. See People v. Harden (1969), 42 Ill.2d 301, 306-7.

Next, defendant contends that the State failed to prove the fair cash market value of the property (People v. Rose (1960), 19 Ill.2d 292, 295). He argues that the State’s valuation witnesses were security personnel without sales experience and therefore without the requisite expertise to set a value on the stolen tires, and that it was error to base their testimony on the retail price of the tires. The argument is not persuasive. In view of the nature of the business of Zayre’s, the retail price of stolen property is a proper measure of the fair cash market value of the item. (People v. Hansen (1963), 28 Ill.2d 322, 340; People v. Briseno (1972), 2 Ill.App.3d 814, 816.) The witnesses were competent to testify as to the retail value of the stolen items. (See People v. Leman (1968), 95 Ill.App.2d 212, 219.) One witness stated that the minimum price per tire of the kind that were missing regardless of size was $25 and that the retail value of the 20 missing tires was more than $150. Another witness, the security manager of the company, testified that the price of Zayre’s smallest size and least expensive unmounted whitewall tires as of February 1970 was approximately $15, and that she had occasion to view price books of the retail price of the tires. In addition, it should be noted that Owen, a codefendant at trial, testified in his own behalf that the whitewalls at Zayre’s could have been priced as low as $9 and as high as $30. Under any view of the evidence, therefore, the value of the stolen tires exceeded $150.

Defendant also contends that there was a failure to prove the corporate identity of “Zayre of Illinois, a corporation.” It is undisputed that where ownership of stolen property is alleged to be in a corporation, the corporate existence must be proved. (People v. Gordon (1955), 5 Ill.2d 91, 95.) Proof of user is prima facie evidence of the corporate existence (Ill. Rev. Stat. 1973, ch. 38, par. 160 — 1), but this method of proof is not exclusive, and in absence of evidence to the contrary the existence of a corporation may be shown by the oral testimony of a person with knowledge of the fact. People v. McGuire (1966), 35 Ill.2d 219, 232.

Defendant argues that the State attempted and failed to prove the corporate existence by the testimony of the two security officers. That one, Mrs. Spoors, did not have knowledge of the nature of Zayres but could only give that as the name of the business, and the other, Mrs. Petrucci, came to the conclusion that Zayres was a corporation because she looked at the corporate charter, which was not offered or introduced. However, the witness Spoors did testify that to the best of her knowledge “Zayres is a corporation,” and without objection answered the question:

“Q. Is it Zayre’s of Illinois, a corporation?
A. Yes.”

And Mrs. Petrucci testified that the name of Zayre corporation as it existed in February of 1970 in Addison was “Zayre of Illinois, incorporated” and testified further as follows:

“O. Is that a corporation?
A. It is.”

This proof of corporate existence, though not artful, was sufficient in the absence of contrary evidence. People v. McGuire, 35 Ill.2d 219, 231-232.

Defendant’s next contention is that the jury deliberations were contaminated by the furnishing of soup and beverage cups which contained printed legends including “A PUBLIC MESSAGE FROM YOUR AUTOMATIC VENDOR”, “SUSPICIOUS PERSONS?”, “CALL THE POLICE”, “LOCK OUT CRIME”, “LOCK YOUR CAR”, and “NEVER GIVE A BURGLAR A-N EVEN BREAK”. Defense counsel learned of this after the jury verdict had been returned and filed a post-trial motion for a mistrial. The trial judge denied the motion in a written opinion.

In the opinion the court recited the representation of counsel that the cups had been placed in the vending machines by the vendor and were not requested by any agency of county government, that defendant did not contend that any attempt at jury influence was involved but mere inadvertence, that following the discharge of the jury the State’s Attorney obtained oral statements from each juror which were reduced to transcripts, that a review of the transcripts indicated that the few jurors who remembered the cups made a joke of them and that none felt his or her verdict was in any way influenced by the cups. The court concluded that the affidavit of a jury member may be used in support of but not to impeach a jury verdict (Kelley v. Call (1944), 324 Ill.App. 143, 147-148), that a verdict would not be disturbed unless an invasion of the jury process was calculated to influence the verdict of the jury (People v. Brothers (1932), 347 Ill. 530, 547), and that while the cups should not have been given to the jury, the error was harmless.

Defendant argues that the rule against impeachment of a jury verdict is to prevent a juror from later changing his verdict and that the rule is not applicable to a charge that a verdict has been contaminated by inflammatory and prejudicial material. In the latter situation, defendant argues that the verdict must be reversed on due process grounds without the necessity of a showing that the jury actually considered or was influenced by the intrusion. Defendant cites Parker v. Gladden (1966), 385 U.S. 363, 17 L.Ed.2d 420, 87 S.Ct. 468 (bailiff communicated to the jury that defendant was guilty and if wrong the higher court would correct); People v. Holcomb (1938), 370 Ill. 299 (judge permitted non-admitted exhibits to go to jury room over objection). He argues that the legends on the cups are prejudicial on their face, and if we do not so consider them, that in the alternative we should remand for an adversary hearing in accordance with due process (citing Morrissey v. Brewer (1972), 408 U.S. 471, 481, 33 L.Ed.2d 484, 494, 92 S.Ct. 2593) to determine the effect of the materials on the jury’s verdict.

The general rule has been well established that the affidavits or testimony of jurors cannot be received to impeach their verdict. (People v. Nuccio (1973), 54 Ill.2d 39, 49; People v. Pulaski (1958), 15 Ill.2d 291, 300.) We agree with defendant, however, that the rule does not preclude an inquiry into the effect of prejudicial influences upon the deliberations of a jury. But we do not agree that the presence of material which could conceivably be prejudicial must result in a reversal without the necessity of a showing that the jury considered and was influenced by it. We find some similarity to eases in which newspaper comments relating to a particular case are alleged to have influenced a jury in a criminal case. The rule has become well established in such cases that a trial judge has considerable discretion in assuring himself that the offensive material did not create prejudicial error. (People v. Malmenato (1958), 14 Ill.2d 52, 63-64; People v. Hryciuk (1954), 5 Ill.2d 176, 185.) The burden of showing an abuse of discretion is upon the complaining party. (United States v. Carruthers (7 Cir. 1945), 152 F.2d 512, 518; cert. denied, 327 U.S. 787, 90 L.Ed. 1014, 66 S.Ct. 805.) We do not agree that the inquiry by the court must be conducted as an adversary proceeding. See Marshall v. United States (1959), 360 U.S. 310, 312, 3 L.Ed.2d 1250, 1251, 79 S.Ct. 1171.

The defendant has not sustained his burden of showing that the judge abused his discretion in this case. The cups were not a calculated interference (see Bulliner v. People (1880), 95 Ill. 394; Annot., 31 A.L.R.2d 417, 436 (1953)). The legends on the cups were general statements of a kind which jurors would see and read in the course of their common experience and did not deal specifically with defendant. As in People v. Zamorano (1974), 16 Ill.App.3d 807, 811, the probability of prejudice is not clearly evident. In our view the trial judge did not err in denying defendant’s motions.

Defendant’s final contention is that the case must be reversed because the State failed to prove the defendant’s age and the jury verdict contained no finding as to age. He argues that there therefore is no proof that he was 13 years of age or over, so as to be subject to criminal prosecution (Ill. Rev. Stat. 1973, ch. 38, par. 6 — 1), or over 17, so as to be tried as an adult (Ill. Rev. Stat. 1973, ch. 37, par. 704 — 1). We find no merit in this argument. The proof of defendant’s age was not an element of the offense of theft. (Ill. Rev. Stat. 1973, ch. 38, par 16 — 1.) The failure to prove the age of the defendant must be raised by way of affirmative defense (Ill. Rev. Stat. 1973, ch. 38, par. 6 — 4). The defendant did not raise the affirmative defense.

For the reasons given we affirm the judgment below.

Affirmed.

GUILD and HALLETT, JJ., concur.

       Defendant did not object to the form of the verdict either at trial or in his post-trial motion. The State argues that we should apply the waiver doctrine. (E.g., People v. LeMay (1966), 35 Ill.2d 208, 212.) We have chosen, however, to consider the issue on its merits. (See People v. Dell, 52 Ill.2d 393.) Also, while defendant apparently claims that Harden was in effect overruled by the majority opinion in Dell, we do not conclude that the absence of reference to Harden in the majority opinion means any more than the majority did not find it applicable to the facts. Cf. People v. Eastland (1973), 11 Ill.App.3d 271, 272.

       As the trial court indicated there is some authority that testimony or affidavits of jurors may be received in support of rather than to impeach a jury verdict. (People v. Matlock (1922), 303 Ill. 399, 409; Kelley v. Call (1944), 324 Ill.App. 143, 147-148.) The issue is not determinative here, and we do not therefore decide that a different rule applies to jurors’ affidavits in support of a jury verdict rather than in impeachment of it. But see People v, Hryciuk (1954), 5 Ill.2d 176, 184; Annot., 93 A.L.R, 1449, 1450, 1451 (1934).


source: Caselaw Access Project

author: Mr. JUSTICE GUILD

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Nicholas DeBartolo, Defendant-Appellant.
    (No. 73-261;
    Second District
    January 22, 1975.

      Thomas H. Stern and Shelvin Singer, both of Chicago, for appellant. .
    John J. Bowman, State’s Attorney, of Wheaton, (Ralph J. Gust, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendant herein was convicted of theft over $150 (Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1) following a jury trial. He was sentenced to 4-8 years in the State penitentiary.

In this appeal the defendant has raised, in substance, six grounds which he contends require reversal of his conviction. Defendant argues that he was not connected with the stolen property; the next three contentions of the defendant pertain to the valuation of the stolen property; that the corporate existence of the owner of tire garbage containers stolen herein was not proven; that a member of the jury made false statements to a fellow juror; that the age of the defendant was not established and, lastly, that his sentence is excessive. The State argues that several of these alleged grounds for reversal were waived by the defendant as he failed to raise the issues in his post-trial motion. The State is correct in stating we need not consider these contentions unless they are of contitutional magnitude or of such import as to require our consideration. We do not find that the issues raised fit in either of those categories but nonetheless we will consider them in discussing the case as a whole.

Two large garbage containers were stolen from the rear of an apartment building owned by a Mr. and Mrs. Mills in the month of December, 1969. The garbage containers were owned by the Glen Ellyn Disposal Company and furnished by that company to the owners of the apartment building. The State witness, Brandon Page, testified that on an evening in the month of December, 1969, he accompanied the defendant to the rear of the apartment building, by the Four Seasons Motel in Du Page County, and helped him load the two containers onto a trailer. The containers were covered with three tarpaulins and taken to “Murph’s” gas station on Lake Street and left there on the trailer. The witness, Page, returned to Murph’s gas station the following Saturday morning and observed the defendant painting the two containers. Defendant asked the witness, Page, to take the containers across the street to John’s Pizzeria, owned by John Cullotta. Page further testified that he was to get $100 in cash for the containers. Page took the containers to Cullotta, obtained the money, returned and gave it to the defendant. John Cullotta, the owner of the pizzeria place, testified that during the month of November or the early part of December, 1969, the defendant offered to get Cullotta some garbage containers. Cullotta agreed to pay $125 for the two con-. tamers. CuHotta further testified that he paid $125 for the containers, which had been painted dark green in color. CuIIotta further had seen the defendant painting the garbage containers at tire gas station. A month or two later the garbage containers were picked up by the Addison police and taken into their custody.

Several of the contentions raised by the defendant in this case were raised in People v. DeBartolo (1975 ) 24 Ill.App.3d 1000, 322 N.E.2d 551, which also involved theft of property alleged to be in excess of $150. Reference is specifically made to that case and the authorities cited therein for several of the issues discussed herein.

The first part of this argument is that the valuation of the property stolen was not proved to have been in excess of $150. The evidence herein, however, discloses the contrary. The business manager of the Glen Ellyn Disposal Company testified that the value of each container was between $80 and $90. Two containers were stolen. The two containers were sold for either $100 or $125. The valuation of the containers established by the business manager of the company discloses that the value in total is more than $150. The fact that the containers may have been sold for less than that by the defendant does not diminish their value. The jury was justified in finding that the value of the items was in excess of $150.

Defendant also alleges in this connection that the jury was not given the option of finding the defendant guilty of theft of property of value less than $150. No instruction to that effect was offered by the defendant nor was a verdict to that effect tendered. The defendant cites People v. Dell (1972), 52 Ill.2d 393, 288 N.E.2d 459. This contention was answered by this court in People v. DeBartolo, supra.

Defendant herein argues that the State failed to prove that the owner of the stolen garbage containers was a corporation and that the corporate existence was not established by the State. We do not agree. We adopt the finding on this issue in People v. DeBartolo, supra. In the instant case the business manager of the Glen Ellyn Disposal Company, Inc., testified that the Glen Ellyn Disposal Company was, in fact, a corporation.

In the instant case, as distinguished from the prior DeBartolo case, the foreman of the jury was alleged to have advised another member of the jury that he, in fact, had measured the garbage containers when, in fact, he had not done so. It is to be specifically noted that the jury had arrived at their verdict and after they had so arrived at their verdict one of the jurors questioned the fact as whether or not DeBartolo and Page could have loaded these large garbage containers on the trailer which was used to transport them to “Murph’s” gas station. As we stated in People v. DeBartolo, supra, it is the general rule that the courts will not receive affidavits or testimony of jurors who rendered, a verdict for the purpose of impeaching such a verdict. This has been the rule in the State for many years, and we refer to the citations on this issue found in the prior DeBartolo case.

Likewise, the defendant here again contends that the State failed to prove his age and that the jury’s verdict made no finding as to his age. As we stated in People o. DeBartolo, supra, the failure to prove the age of the defendant must be raised by way of an affirmative defense (Ill. Rev. Stat. 1971, ch. 38, par. 6 — 4). The defendant did not raise such affirmative defense and it is to be noted that defense counsel advised the court that the defendant was bom on December 9, 19421

We turn now to the arguments presented herein which were not raised in the other DeBartolo case, supra. The defendant contends that he was not connected in any way with the stolen property, hence, he was not proven guilty. The basis for this argument is that the State did not prove by testimony of witnesses or a witness from the Glen Ellyn Disposal Company that the garbage containers in the possession of the police department were the same garbage containers taken from John Cullotta’s pizzeria and in turn acquired by John’s Pizzeria from the defendant. The essence of this argument is that the specific stolen items must be produced or the conviction of the defendant cannot stand. In support of this contention the defendant has cited People v. Maruda (1924), 314 Ill. 536, 145 N.E. 696. We do not find that Maruda is applicable to the facts in the case before us. In Maruda the defendant confessed that he had stolen certain items from Marshall Field and Company, his place of employment. In this somewhat confusing case the supreme court held that “[tjhere was no proof of the corpus delicti in this case, — that a larceny had been committed * * (314 Ill. 536, 541, 145 N.E.2d 696, 698.) That is not the situation before us where we have a witness, a participant in the theft, testify in detail as to the theft of the garbage containers and the subsequent disposition of them by the defendant. In further support of this contention that defendant has cited People v. Horton (1966), 78 Ill.App.2d 428, 223 N.E.2d 206, which we also do not find factually to be applicable to the case before us. In People v. Horton, supra, reference is made to the other case of People v. Horton affirming the conviction of theft of a motor vehicle by the same defendant found in the same volume (78 Ill.App.2d 421, 223 N.E.2d 202). The facts in the latter case are somewhat similar to the situation before us herein. In the latter case two participants in the car theft testified that the defendant, and they did in fact steal the car in question. That is the situation we have before us. The defendant herein has failed to consider the evidence adduced at the trial which specifically identified the defendant as a participant and a perpetrator of the theft of the garbage containers. The owners of the apartment building testified that the containers were at the building in question and that they were stolen. Page, the participant in the theft of the two containers, testified that he and the defendant stole them. The witness, Page, testified that they were taken to “Murph’s" gas station and that 3-4 days later he saw the defendant repainting them. Page further testified that he and another boy wheeled the containers across the street from the gas station to the pizzeria where he obtained the money therefor, returned and paid the money to the defendant. Whether the garbage containers recovered by the police from Cullotta were, in fact, the same containers is immaterial. To hold otherwise would be to find that unless the stolen items are recovered, a conviction of theft could not stand, even though the evidence disclosed the items were stolen and sold by the defendant.

The defendant contends that there is no proof that the offense herein occurred in Du Page County. This contention is not substantiated by the record herein.

Lastly, the defendant contends his sentence of 4-8 years is excessive and that the provisions of the Unified Code of Corrections are applicable herein. Theft of the garbage containers took place in December, 1969. The defendant was tried in April, 1971. He was sentenced in October, 1971 and notice of appeal was filed. It can thus be seen that for a period of several years this appeal has been pending. As the result thereof the provisions of the Unified Code of Corrections are applicable (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(4)). (See People v. Harvey (1973), 53 Ill.2d 585, 294 N.E.2d 269, and People v. Chupich (1973), 53 Ill.2d 572, 295 N.E.2d 1.) Theft of property exceeding $150 is a Class 3 felony (Ill. Rev. Stat. 1973, ch. 38, par. 16 — 1(e) (2) ). The sentence for a Class 3 felony is a minimum of 1 year and a maximum of 10 years, with the minimum not to exceed one-third of the maximum. Accordingly, the defendant’s sentence is reduced to a minimum period of 32 months and not to exceed a maximum of 8 years. As modified the judgment of the conviction of the defendant is affirmed.

Judgment affirmed, sentence' affirmed as modified.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Ray Bryant, Defendant-Appellant.
    (No. 73-335;
    Second District (1st Division)
    January 22, 1975.
    Karl F. Winkler and Roszkowski, Paddock & Johnson, both of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Edward Morris, both of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court;

The defendant herein, on a plea of guilty to the charge of battery in a bench trial, was found guilty and admitted to probation for a period of 1 year and 6 months, the condition of probation being that he spend the first 45 days of said probationary period in the county jail under the provisions of section 5 — 7—1(c) of the Unified Code of Corrections. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 7—1(c)). The defendant appeals, contending that the sentence of periodic imprisonment is unwarranted and not necessary in view of the nature of the offense and the record of the defendant.

The defendant and the complaining witness, one Dorcie Craig, had known each other for a number of years, had been keeping company and had planned on being married in a few days after the offense charged herein. It would appear that on the day in question herein, and perhaps prior thereto, Dorcie had decided to part company with the defendant. He picked her up at work on the day in question, drove her home and suggested that they eat together or go out to a restaurant. Dorcie, the complaining witness, was divorced and had two boys, aged 8 and 13. She refused to eat with the defendant or to go out with him. He returned to her place of residence, an altercation ensued and he struck her several times, causing serious injury to her eye. The striking appears to have been with his open hand. Shortly after the battery, defendant returned to Dorcie’s residence and testified that he did so for the purpose of apologizing. However, she met him at the door with a gun, an altercation again ensued and the police were called and both were charged. The complaining witness went to the hospital and subsequently returned thereto for the purpose of surgery upon her eye. Her medical bills totalled $1659.77. Upon demand by Dorcie’s attorney, defendant paid that amount to her, together with the sum of $1,000 for pain and suffering. In order to do this he placed a mortgage upon his own residence. Needless to say the marriage did not take place.

Tire sole question presented here is whether or not the sentence of periodic imprisonment as the condition of probation is warranted. With the exception of one assault case which occurred 13 years prior to the instant matter, and for which the defendant was fined the sum of $10, he has no criminal record. He has been steadily employed for the past 15 years in a drugstore in Rockford, where he is now the manager. He is 40 years of age.

The gist of the defendant’s argument is that the main purpose to be served in sentencing is the rehabilitation of the defendant which, he goes on to argue, is unnecessary in his case. Modern-day penologists have substantiated the defendant’s contention to some degree. However, we disagree. Rehabilitation of the defendant is, of course, highly desirable, however, it is only one of several purposes to be served by sentencing. Protection of society is another essential element to be considered by the trial court in removing a defendant from society who is a menace ■thereto. No useful purpose would be served is discussing in detail the purposes and the efficacy of the varying degrees of sentence that may be imposed on a defendant either for the conviction of a felony or a misdemeanor as here. One facet to be considered in sentencing is the punishment of the defendant for his act and the deterrent effect such punishment may or can have on other potential offenders.

Considering the above, the question arises as to whether or not 45 days of periodic imprisonment as a condition of probation is such punishment as might deter others from committing a like offense, or if such periodic imprisonment wiH protect society from the defendant, and lastly, whether the 45 days of periodic imprisonment would have a rehabilative effect upon this particular defendant.

The courts of Illinois, in three fairly recent cases, have considered this very question. In People v. Callahan (1968), 103 Ill.App.2d 350, 243 N.E.2d 624, the defendant therein assaulted a police officer in the criminal court building in Chicago, ostensibly because of a prior altercation with that pohceman in the parking lot of the criminal court building. The court therein, in observing the seriousness of the offense, stated, “However, we are not persuaded that the interests of society wffl be best served here by defendant spending the first six months of his probation period in the House of Correction.” (103 Ill.App.2d 350, 355, 243 N.E.2d 624, 627.) The court considered the fact that the defendant had been convicted of armed robbery, but for the subsequent 14 years had had no difficulty with the law and had been steadüy employed. The court thereupon eliminated that portion of the order which directed the imprisonment of the defendant for 6 months as a condition of his probation. In People v. Hutchins (1970), 127 Ill.App.2d 296, 262 N.E.2d 258, the court considered a case involving a defendant, who was not a student, who had come to a high school carrying a cane or bludgeon. The defendant stated that he had gone to help a member of the Blackstone Rangers, towit, Jeff Fort. The trial court imposed a sentence of probation providing that the first 30 days of the same were to be served in the House of Correction. The appellate court in that case, although not requested to remove the conditions of his admission to probation, did so under Supreme Court Rule 615 (Ill. Rev. Stat. 1969, ch. 110A, par. 615) and found that the defendant had never been in prison and that the interests of the defendant and society were best served by eliminating the first 30 days of his period of probation in the House of Correction. Likewise, in People v. Krebel (1970), 130 Ill.App.2d 815, 264 N.E.2d 279, the court considered a case where two defendants, who were brothers, had entered a plea of guilty to a charge of aggravated battery. The two brothers were fighting and when apprehended by the police the officer was struck in the mouth. More officers arrived on the scene, and the two brothers offered resistance to the efforts of the police to subdue them. The trial court granted probation to both brothers but provided that the first portion of their period of probation should be spent in confinement. The appeHate court in that case found:

“It appears that the defendants are not likely to commit another offense, the public interest does not require their incarceration, and rehabilitation does not require incarceration. Under these circumstances we are not persuaded that the interests of society will best by served by requiring them to be confined for part of their probationary periods. People v. Callahan, 103 Ill.App.2d 350, 243 N.E.2d 624.” 130 Ill.App.2d 815, 819, 264 N.E.2d 279, 282.

In the case before us we feel that the principles enunciated in the above three cases are applicable. As a matter of fact, the conduct of the defendant herein, while it resulted in serious injury to his would-be bride, was no more serious than the conduct of the defendants in the cases set forth above. Additionally, the defendant was genuinely sorry for his misconduct in striking and beating his would-be bride, who apparently had tired of him. Further, he reimbursed her for her medical expenses together with an additional sum for her pain and suffering, and, while not condenable, it was obviously a crime of passion. In view of the defendant’s lack of a prior record of any kind except one $10 fine, his excellent work record at one place of employment, the last 9 years of which he has been manager of the drugstore, and considering all of the items enumerated in the above cases, we think that the interest of society and the rehabilitation of the defendant may best be served by eliminating the condition of probation that the defendant serve the first 45 days of his probationary period in the county jail under a period of periodic imprisonment. While the actions of the defendant are not to be condoned in any way, the judgment of the circuit court of Winnebago County is affirmed, and the terms of the defendant’s admission to probation are modified so as to eliminate the condition that the defendant serve the first 45 days of his period of probation in periodic imprisonment. We do this under the provisions of Supreme Court Rule 615 (Ill. Rev. Stat. 1969, ch. 110A, par. 615).

Affirmed as modified.

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


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wesley Kelly, Defendant-Appellant.
    (No. 73-97;
    Second District (2nd Division)
    January 24, 1975.

      Charles S. Wilson, III, and Charles F. Scott, both of Waukegan, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (Ivan H. Tepper, Assistant State’s Attorney, and James W. Jerz, of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant, Wesley Kelly, was indicted for murder and voluntary manslaughter. After a jury verdict finding him guilty of involuntary manslaughter, he was sentenced by the Circuit Court of Lake County to 5 years’ probation with the first year to be served on a work-release program.

He appeals, contending:

1. That since he was not indicted for involuntary manslaughter, the jury should not have been instructed regarding the offense.

2. That his testimony did not establish the offense of involuntary manslaughter and there was not sufficient evidence to submit the question to the jury in that.

3. That there was no affirmative testimony of recklessness.

4. That he was not proved guilty beyond a reasonable doubt in light of testimony regarding self-defense.

5. That refusal of certain defense instructions regarding self-defense was error.

6. That refusal to give an instruction regarding accidental death was error.

7. That admission of a pathologist’s testimony and the showing of a picture of decedent was error.

8. That statements of the prosecutor during closing argument deprived him of a fair trial.

9. That a review of the entire record indicates that he did not receive a fair trial.

On September 17, 1972, defendant arid his wife were át hómfe awaiting the return of Joey Stock, her child of a former marriage to Joseph Lee Earl Stock III. Stock had the child for the day which ended with a dinner party celebrating his brother’s birthday. Stock stayed late at the. party where he had drank wine and screwdrivers. When he drove back to the Kelly residence to return Joey he had with him Virginia Pond, his girl friend, Jacqueline Blaese, his niece, and Joey. It was dark but a porch light was on.

When Stock arrived at the KeUy residence about 35 minutes late, the defendant answered the door. He told Stock that his wife was worried and that Stock should have called. Stock replied, “I don’t give a damn. I don’t have the number on me. You stupid son-of-a-bitch, can’t you see what the weather is like?” Leaving the boy, Stock walked down the steps, turned around and said, “I’ll take that wooden leg off you and beat you over the head with it.” (Defendant has an artificial leg.) He callfed defendant a chickenshit and asked him to come onto the porch. Defendant refused because his wife and the boy were there.

Stock returned to his car, hit the steering wheel and said Kelly was a son-of-a-bitch. He then returned to the Kelly residence where he met Mrs. Kelly at the door. He said, “I want Joe [Kelly’s nickname].” When defendant appeared, Stock continued saying “come on, come on, come on.” Defendant was talking to Miss Pond when he was struck in the face by Stock who threw the first blow. Miss Pond intervened between the two. Kelly pushed back and Stock went off the porch and while kneeling on the ground removed his belt and wrapped it around his hand. Defendant went into the house and returned within a few seconds with a .22-caliber revolver.

Defendant testified that when he returned to the porch with the gun, Miss Pond was still holding back Stock who had a belt wrapped around his hand. Stock pushed the girl friend aside. Kelly told Stock he had a gun, pointed it at the road and pulled the trigger twice but the gun did not discharge. He lowered the gun to see why it did not go off. He looked up and saw that Stock had pushed the girl friend aside. He warned Stock, “Don’t come no closer.” He squeezed the trigger again to give a warning shot and the bullet struck Stock in the lower midpoint of the forehead. He said the purpose of squeezing the trigger this third time was to fire a warning shot, that he did not intend to shoot the decedent; that at no time did he ever intend to hit the decedent, that he did not know the gun was pointed at Stock, he was not aiming at anything but did admit that it was pointed in Stock’s direction, and that just before the fatal shot was fired Stock was coming at him with tfafe belt.

A ballistics expert testified that he test-fired the gun for accuracy at 8 feet and failed to hit target, that because the rifling in the barrel was so poor the bullets came tumbling out of the barrel and that with the gun aimed between a subject’s eyes and discharged the bullet would not strike the subject or any part of his body.

The jury was instructed on the crime of murder, voluntary manslaughter and, over objection of defendant, involuntary manslaughter.

On appeal defendant argues that since he was not indicted for involuntary manslaughter and the State’s case contained no testimony to establish the element of recklessness necessary for involuntary manslaughter, it was error to instruct on this lesser offense.

We think there was sufficient evidence to warrant a finding of involuntary manslaughter, because the jury was entitled to believe that the defendant had acted recklessly and in such fashion that his act was likely to cause death or great bodily harm.

Section 9 — 3(a) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 3(a)) defines involuntary manslaughter:

“(a) A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.”

Section 4 — 6 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 4 — 6) provide in part:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.”

The Committee Comments to section 9 — 3 (S.H.A. ch. 38, § 9 — 3, at 245 (1972)) point out that the clause,, “whether lawful or unlawful” was added to make clear the. departure from the wording of the former Illinois statute which drew a distinction between lawful and unlawful acts.

Involuntary manslaughter is an offense which happens without the intent to inflict injury, and death results from acts performed recklessly. People v. Johnson, 54 Ill.App.2d 27, 36.

It is a well-established rule of common law, incorporated by judicial adoption into the jurisprudence of Illinois, that the jury may, under an indictment charging murder, return a verdict convicting the accused of any lower degree or grades of homicide included in the charge, provided there is evidence to support the lower grade or degree. (People v. Lewis, 375 Ill. 330, 334.) In Lewis the defendant contended, as here, that he was convicted of an offense with which he was not charged, in violation of the due process clause of the constitutions. The court gave a thorough and extended discussion, holding that the indictment for murder included manslaughter, and defendant was thereby advised of the charge and had no ground to complain that his rights under the due process clauses had been invaded.

Many cases have specifically held that involuntary manslaughter is a lesser included offense to a charge of murder, and where there is sufficient evidence from which the jury could find that the defendant was guilty of involuntary manslaughter, it is correct to give an instruction on involuntary manslaughter. People v. Barksdale, 131 Ill.App.2d 103; People v. Arndt, 50 Ill.2d 390, 394.

Further, if the evidence would support a verdict of manslaughter, a defendant will not be heard to complain that a manslaughter instruction was given, even though he did not request it. It is only where the evidence establishes that defendant is guilty of murder or is not guilty, as for example in cases in which the defense is alibi, or mistaken identity, that a defendant may be said to have a right not to have the jury charged as to lesser included offenses. People v. Taylor, 36 Ill.2d 483, 489.

In the instant case the defendant admitted that the gun was pointed in decedent’s direction when he fired the fatal shot. A Lake County deputy testifying for the State stated that shortly after the shooting Kelly admitted to him that he was aiming at Stock at the time he shot. In a statement made to assistant State’s attorney Ori, defendant said he shot at Stock. It was a question for the jury whether firing a gun aimed toward the decedent was a reckless performance of an act likely to cause death or bodily harm to a person 18 feet away. Obviously the jmy believed defendant’s testimony that he did not intend to kill but rejected his theory that he had a right to exercise deadly force in defense of his person when confronted with a man wielding a belt, or that it was a mere accident that Stock was shot.

Defendant argues that all of the evidence of recklessness came in the defendant’s case and therefore the State had no right to seek an involuntary manslaughter instruction when the only evidence of recklessness came from the defendant himself.

One who is accused of crime has a privilege not to be compelled to give self-incriminating testimony but when the accused takes the stand in his own behalf after an informed and intelligent choice he waives, that privilege and may incriminate himself. Once evidence is admitted it is in the case for all purposes without regard to who produced it. The evidence as a whole must be considered. The same rule with respect to testing the evidence applies as in a civil action.' (23A C.J.S. Criminal Law § 1145 (3), note 61 (1961).) A motion for directed verdict made at the close of all the evidence must be considered in the light of all the evidence, including that given by accused (23A C.J.S. Criminal Law, § 1149, note 49), and it is the province of the jury to determine the guilt or innocence of accused on all the evidence.

Further, there was evidence in the State’s case to establish recklessness. The only eyewitness presented by the State, Virginia Pond, testified that Kelly aimed his gun at Stock and shot him. The deputy Schrader testified that Kelly admitted that he fired the shot in the direction of Stock. The jury could conclude that Kelly recklessly fired a deadly weapon in the direction of Stock at close range and reject the possibility that he was intentionally aiming the gun. The State’s firearms expert testified that there were certain malfunctions in the weapon. From this the jury could infer that Kelly was reckless in shooting a defective weapon in the general direction of Stock. The State’s evidence established that Kelly either shot while aiming directly at Stock intending to kill or shot in the general vicinity of Stock, aiming so close that his conduct was reckless.

In argument 4 defendant alleges that there was insufficient evidence to sustain the guilty verdict. His primary argument is that the evidence established that he was acting in self-defense when he fired the fatal shot and therefore the killing was justified by virtue of section 7 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 7 — 1). Alternatively, he argues that even if he was not justified in the use of deadly force, the killing was only an accident and the evidence failed to establish recklessness.

It is undisputed that deceased and defendant engaged in a heated verbal exchange and that a scuffle ensued. That defendant went into his home and up to his bedroom to obtain a gun. When he returned to the porch Stock was 18 feet away with the belt wrapped around his hand. Kelly said he did not intend to kill but only to warn.

Section 7 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 7 — 1) provides:

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

Applicable committee comments to this section state;

“(1) The person must not be the aggressor; * * *
(2) The danger of harm must be a present one, not merely threatened at a future time, or without the present ability of carrying out the threat;
(3) The force threatened must be unlawful — either criminal or tortious;
(4) The person must actually believe that the danger exists, that his use of force is necessary to avert the danger, and that the kind and amount of force which he uses is necessary; and
(5) His belief, in each of the aspects described, is reasonable even if it is mistaken. * * * in determining whether the use of force is necessary, the person need not consider whether the danger might be avoided if he were to give up some legal right or privilege.”

Did Kelly have a right to reasonably believe that his use of deadly force was necessary to prevent imminent death or great bodily harm? It is a question of fact for the jury. (People v. Taylor, 6 Ill.App.3d 335; People v. Wilson, 3 Ill.App.3d 481, 486.) Of critical significance in determining whether a defendant had the right to use deadly force is his own state of mind. The test here can be subjective. A killing may be justifiable under section 7 — 1 even though the danger facing the defendant is not real. If the defendant had reasonable ground to believe himself in danger of losing his life or suffering great bodily harm he may protect himself even if he is mistaken and the danger only apparent. Whether the danger is actual or apparent does not depend upon the assailant using a deadly weapon or having one in his possession. People v. Lockett, 85 Ill.App.2d 410, 414.

However, the privilege of using deadly force requires further restriction — a limitation to the situation in which the force imminently threatened apparently will cause death or great bodily harm, or in which violent offense is being committed which in its nature involves serious risk of great bodily harm.

Illinois courts have refused to require retreat and especially so when in one’s own curtilage. “Reasonably believes,” as defined in section 2 — 19 of the Criminal Code, “means that the person concerned, acting as a reasonable man, believes that the described facts exist.”

In section 7 — 1, the described facts are the other persons imminent use of unlawful force, the necessity of using force to defend against it and the proper quantity of force necessary for defense.

Self-defense presupposes the intentional use of force in defense of one’s person. (People v. Johnson, 54 Ill.App.2d 27.) The test is whether accused honestly believed that he was in such danger, or apparent danger, as required the means taken for his protection. (People v. Edwards, 389 Ill. 563.) Under these circumstances a person may deliberately use a deadly weapon in self-defense. (People v. Hannon, 381 Ill. 206.) Where the evidence on an issue is legally sufficient and is in conflict or more than one inference reasonably may be drawn therefrom, the question is for the jury. Under such circumstances it is for the trier of fact to determine malice, intent, passion or provocation, whether or not accused acted in self-defense, or whether the facts and circumstances were such as to induce a reasonable apprehension of loss of life or great bodily harm by the person assaulted, so as to entitle him to take the aggressor’s life in self-defense. 21 I.L.P. Homicide § 132 (1956).

In the instant case Miss Pond testified that she observed Kelly come to the front porch and aim a gun towards Joseph Stock, who turned toward Kelly and was immediately shot. By her account Stock had not struck an attack posture. Kelly testified that after the shooting Miss Pond asked him why he shot. He said he pulled the trigger because Stock had been “egging him on.” Nowhere in Kelly’s testimony did he assert that he actually believed that Stock posed an imminent threat to inflict great bodily harm upon him. Because of defendant’s own testimony as to his state of mind at the time he shot, the jury was justified in concluding that he had no right to use deadly force when he did.

In the alternative defendant argues that even if he was not justified in pulling the trigger, the killing was a mere accident because of the weapon being defective in its aim. Defendant admitted that he shot at Stock; further, when asked for a blanket to cover Stock who was lying wounded on the ground, he stated, “He don’t deserve it.”

Defendant in his argument relies heavily upon People v. Post, 39 Ill. 2d 101. In that case the facts were that accused fired toward the ground to scare an intruder. The court stated, “Filing into the ground or into the air to tighten a marauder in order to keep him from returning is not, in our opinion, such a reckless act as to justify conviction of involuntary manslaughter.” The case is clearly distinguishable on the facts.

In the instant case the evidence does not require a finding as a matter of law that death had occurred by accidental means. Here, where the accused admits firing the fatal shot while aiming at or in the direction of the decedent, it is the province of the trier of fact to determine whether the killing was hy misadventure or by reckless conduct. People v. Washington, 27 Ill.2d 104; People v. Green, 23 Ill.2d 584.

We are, therefore, of the opinion that the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of the crime of involuntary manslaughter.

Defendant next contends that there was error in refusing two of his instructions. The instructions related to the justifiable use of force and burden of proof thereof. Neither of them are found in IPI — Criminal. Supreme Court Rule 451 (50 Ill.2d R. 451) in applicable part provides:

“(a) Use of IPI-Criminal Instructions; Requirements of Other Instructions. Whenever Illinois Pattern Instructions in Criminal Case (IPI-Criminal) contains an instruction applicable in a criminal case, giving due consideration to the facts and the governing law, and the court determines that the jury should be instructed on the subject, the IPI-Criminal instruction shall be used, unless the court determines that it does not accurately state the law.”

The IPI — Criminal instructions on self-defense (IPI — Criminal 24.06), and burden of proof (IPI — Criminal 25.05 and 2.03) clearly, concisely and impartially state the applicable law and are the instructions which are required to be given under Rule 451.

Defendant also tendered an instruction defining accident which was refused by the trial court. In People v. Witherspoon, 55 Ill.2d 18, 24, the court pointed out that the present criminal code contains no reference to death by misadventure and stated: “An instruction on death by misadventure simply tells the jury that the defendant must be found not guilty if the requisite mental state is lacldng to establish the particular homicide crime with which the defendant is charged. (See Ill. Rev. Stat. 1967, ch. 38, art. 4 and art. 9.) This is an inverted way of instructing the jury as to the elements of the crime of murder and that the burden of proving beyond a reasonable doubt every material allegation of the offense rests upon the State.

“Since the statute no longer contains the affirmative defense of death by misadventure and since the jury was properly instructed as to the mental state required before the defendant could be found guilty, the giving of the refused instruction was necessary.” The court concluded, “If the jury receives the appropriate instructions from chapter 7, we can see no need for the giving of an instruction concerning death by misadventure.” 55 Ill.2d 18, 25.

In argument 7 the defendant contends that the pathologist’s testimony and a picture of decedent were introduced to induce the jury to dwell upon gory details of the death of Joseph Stock and not to prove the point in issue.

In support of this proposition the defendant cites several cases such as People v. Lefler, 38 Ill.2d 216, proscribing the use of photographs of the corpse unless such pictures are relevant as to a point in issue or' serve to illustrate relevant testimony. Here the State did not introduce a photograph of the dead Joseph Stock. The exhibit showed Joseph Stock alive and well prior to the night of September 17, 1972. The picture of a smiling Joseph Stock would not induce the jury to dwell upon the gory details of his death. The photograph, illustrating the size and general physical build of decedent was relevant to the issue of justifiable use of force. The reasonable nature of Kellys belief that he was in imminent danger of death or great bodily harm might depend in part, upon the size and strength of Mr. Stock. As in People v. Le May, 35 Ill.2d 208, we feel the photograph in question in the case before us would establish facts in controversy material to the offense, and that the trial court did not abuse its discretion in admitting the photograph into evidence.

Defendant also argues that because he had stipulated that a bullet fired by him from his gun caused the death of Joseph Stock he was prejudiced when the prosecutor was allowed to illustrate, on his own head by the use of a finger, the testimony óf Dr. Vem L. Zech as to the point of entry of the fatal bullet and the place where the bullet eventually lodged. Dr. Zech’s testimony as to the path of the bullet helped to establish tire stance taken by Stock at the time Kelly fired. The position of Stock at that moment was probative for a determination of whether Stock was taking an attack position at that time and went to the issue of self-defense. As stated in People v. Scheck, 356 Ill. 56, 62: “It has never been held that the State is barred from proving a fact because the defendant offers to admit it, but, on the contrary, the rule is that when a trial is upon a plea of not guilty the State is permitted to go ahead and introduce its full proof of the crime charged in the indictment.” The State had the right to prove every element of the crime charged and was not obligated to rely on the defendant’s stipulation. People v. Speck, 41 Ill.2d 177, 201-202.

The defendant next contends that he was deprived of the right to a fair trial when the prosecutor misstated the evidence in his closing argument by stating that the defendant clicked the trigger on the weapon which killed Stock five times. He goes on to argue that the evidence only established that the trigger had been squeezed three times.

An examination of all of the trial testimony, especially that of firearms expert, Susan Komar, reveals that it was quite likely that Kelly did click the trigger of his .22-caliber revolver five times. Miss Komar was shown People’s Exhibit No. 11, which was an envelope containing four .22-caliber shells found on the bookcase in the Kelly house on September 17, 1972. She testified that she had examined these cartridges and determined that they were Federal .22-caliber short cartridges, three of which had fine firing-print impressions on them. The fourth did not. When asked hew a firing-print impression could appear on a live round of ammunition, Miss Komar stated that it was possible that an attempt was made to fire the cartridge, but that for some reason it did not fire.

This testimony must be considered in examining the entire thrust of the prosecutor’s theory as to how many times the defendant pulled the trigger. He stated that theory as follows:

“Members of the Jury, here is the diagram made by Deputy Cook and you will recall what his testimony was. The darkened portions, that is chambers three, four, five and six contained live rounds, and further that these other two chambers, one and two, were empty. That’s the way the gun was when he found it. Of course, by the testimony of the defendant, the defendant removed a couple of rounds from that particular exhibit.
Now then the testimony of Susan Komar which revealed that rounds three, four and six had firing pin impressions on them, I submit to you, members of the Jury, the manner in which this gun was fired was as follows and this is a reasonable inference from the testimony.
First of all, the defendant first pointed the gun at Joseph Stock, number five. It was in the upper position. That would be in the position which would be shot. Defendant pulled the trigger, the cylinder rotated, pulled the trigger, number four rotated clockwise and comes under the hammer. The firing pin impression is down on number four indicating the hammer came down on it and the bullet misfired. Next, three, there is a firing pin impression there. Again the trigger is pulled again and the gun misfires and two and one, we don’t know. One of those contained, of course, the bullet that killed Joseph Stock.
What is important, members of the Jury is that number six also had a firing pin impression on it and I submit to you, members of the Jury, what the defendant did in this case was click that trigger five times. The first time was chamber number four.
MR. WILSON: There is absolutely no evidence on either side of this case that the gun had been attempted to be fired more than three times by either —
THE COURT: I’m going to let him argue from the facts in evidence.
MR. LANG: The testimony of Susan Komar, I asked the question, ‘How does a firing pin impression come to be on a live round?’ These are live rounds. Her testimony was a firing pin was hitting it, but not with enough force to hit the primer and cause the bullet to go off. I submit the defendant pulled the trigger five times. The first time was on four and three.
We’ve got the firing pin impressions to show they were fired, two and one. I don’t know which one of those were the death bullet. One of them was, but even after the shot was fired that killed Joseph Stock, the defendant pulled the trigger again, again pulled the trigger. We have a firing pin impression on chamber number six, another impression.”

Since two of the six chambers in the weapon used to kill Stock were empty, having been removed by defendant, and three of the four rounds left in the gun had firing pin impressions on them, it was perfectly proper for the prosecutor to argue that the defendant pulled the trigger five times.

The defendant also takes exception to the argument that, to Virginia Pond, the .22 carried by the defendant looked like a ,45-caliber machine gun. Defense counsel objected to this characterization and the trial court sustained the objection noting that the weapon was not a machine gun. The comment objected to was contained in the following thoughts conveyed by the prosecutor:

“He comes out of that porch and he has a gun in his hand and he stands a few feet from her and points the gun in the direction of Joe Stock. You are Virginia Pond. I come out obviously angry. I had just been in an argument. I come out with a weapon. How many are going to grab this weapon from my hand?
She was excited. She said no, you don’t have to kill him. You don’t have to shoot him and indeed this would be a mature reaction, would it not? She was awe-struck to see this weapon. This weapon looked like a .45 caliber machine gun.
MR. WILSON: I’m going to object to that.
THE COURT: It is not a machine gun. I will sustain the objection.
MR. WITT: This weapon was immense to her, was it not, at that moment when it was pointed by the defendant at her lover and then he stood there and she said, ‘Oh, no, you don’t have to shoot him,’ as he pulled the trigger five times.”

It is clear from a reading of these remarks that the State’s Attorney was not arguing to the jury that the defendant actually carried a .45-caliber machine gun. Obviously, the State’s Attorney was spealdng figuratively and not giving his literal account of the. evidence when he said the weapon appeared to be a .45-caliber machine gun to Miss Pond. Whatever error may be present in the use of such allegory, it certainly could not have affected the deliberations of the jury nor did it deprive the defendant of a fair trial, especially since the trial court corrected the prosecutor in sustaining defense counsel’s objection and the prosecutor immediately abandoned his characterization of the weapon as a machine gun. People v. Stark, 33 Ill.2d 616, 213 N.E.2d 503.

A judgment will be reversed only when it is reasonably clear that improper remarks influenced the jury in a manner that resulted in substantial prejudice to a party. People v. Stahl, 26 Ill.2d 403; People v. Miller, 30 Ill.2d 110.

„ Defendant’s last assignment of error is in several parts. First, he contends that because he was not admitted to bond and was in jail continuously from September 17, 1972, until after trial, he was not able to show his counsel the physical layout of where the shooting took place or the places where various individuals stood at relevant times.

In People v. Harris, 38 Ill.2d 552, 555, the court said, “Both as a practical matter and a procedural matter, review of an order denying, bail must be raised prior to trial and conviction.” After Harris was decided, Supreme Court Rule 604 was amended in 1971 by adding paragraph (c) to establish a simple procedure for appeals from orders in criminal cases concerning bail. (Prior to its adoption, the only avenue of relief was an original petition to the supreme court for a writ of habeas corpus.)

At the hearing on the motion for bond there was testimony of Ben Ori, first assistant State’s attorney, regarding a statement made by the defendant:

“And I asked Mr. Kelly why he didn’t close the door, go back into the house and close the door. He related to me that this was something that had to come to a head, it had been going on for three years and it was just something that had to come to a head and putting it off at this time, it would come up again some later time.”

The court in its ruling stated:

“I am going to deny the motion for bail. I believe the proof is evident and I believe the presumption is great. I think something that wasn’t commented on, I think is in the record, it’s perfectly obvious, there was bad blood between these two people for a considerable period of time. Obviously, the defendant was in control of the situation. The evidence is, after being struck, he knocked the decedent off the porch, shot him from some distance away. # #

At that time the defendants attorney asked for and was granted full access by his investigators to the defendant in the County Jail at reasonable times. The court went on to state:

“The only thing I can see, despite my feeling about the bond, if it should appear he is not in a position to get what is adequate for his defense, I would probably have to reconsider the bond question. * *

The question of bond was never raised again, so it would appear that, despite his incarceration, the defendant was able to assist in the preparation of his defense to the satisfaction of defense counsel.

Defendant further contends that he was prejudiced because during voir dire, Mr. Kenneth Blaese and Deputy William Eye, relatives of the decedent, sat among veniremen. One bailiff had advised defense counsel that decedent’s brother was “moving all over the court room.” Another bailiff, Stickles, had advised counsel that Blaese was sitting next to a juror.

Blaese was sworn and testified that he did not in fact sit near anyone unknown to him and did not talk to any jurors about the case. The court told him to stay away from any jurors.

Bailiff Stickles was sworn. He testified that the last juror selected (Smith) had sat next to a woman who was sitting near Blaese and that he then ran Smith into the jury room.

The juror Smith was never recalled to determine if in fact he had been talked to or overheard any conversation about the case. No motion for mistrial was made. No prejudice has been shown, in fact no communication or misconduct calculated to influence a juror was shown.

Parties, and other persons connected with a case or having some interest therein, including counsel, witnesses, and relatives of parties, should carefully avoid private conversations and social intercourse with jurors. The rule is based on the policy of the law to keep the jurors free from influences tending to prejudice them against or in favor of either party and is designed to maintain integrity of judicial procedure and impartial justice. 75 Am. Jur. 2d Trial §§ 1005, 1008 (1974); Annot., 9 A.L.R. 3d 1275 (1966).

During a criminal trial, in a homicide case especially, the jury, from the time of being sworn until deliverance of their verdict, should be kept as free as practicable from all, even appearances of, opportunity for communicating with outside parties, or even appearances of, opportunity for communicating with outside parties, or receiving communications from them. (75 Am. Jur. 2d Trial § 1010 (1974).) Just as a reversal or a new trial will not be ordered because of a conversation between a juror and a third person which is of a harmless character and unrelated to the case (People v. Strause, 290 Ill. 259, 285-289), so we believe that where, as here, there was an opportunity for but in fact no communication shown, a new trial should not be ordered.

As to Deputy Sheriff Eye, the following occurred early during impanelment of jurors:

“Defense Counsel: I now notice a deputy sheriff who coincidentally happens to be the step-father of the decedent now sitting in close proximity to the jury and I would ask that the situation be remedied.
Cotut: Which one?
Defense Counsel: Mr. William Eye in the brown suit.
Ass’t State’s Attorney: On the very edge of the seat.
Court: I will try and get all the jurors to the left and we will put everybody else on the other side.”

Defendant in his brief has failed to point out why the above denied him a fair trial, and we do not believe it did.

For the above and foregoing reasons the judgment of the Circuit Court of Lake County is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Edward Moose, Defendant-Appellant.
    (No. 73-164;
    Second District
    January 24, 1975.

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

delivered the opinion of the court:

The defendant, James Edward Moore, was indicted for the offense of armed robbery alleged to have occurred at O’Donnell’s Foods in Rockford' on May 24, 1971. Defendant was convicted after a jury trial and sentenced to 3-9 years in the penitentiary. He appeals, contending that the court erred in denying his motion to suppress a written confession and that he was not proved guilty beyond a reasonable doubt.

It appears from the transcript of the pretrial motion to suppress that defendant was arrested on July 3, 1971, while attempting a burglary of the St. Mary’s Social Club in Rockford. He was taken to the police station on the same date and after being advised of his constitutional rights defendant gave a written statement confessing to the attempted burglary of the St. Mary’s Club. He also confessed to being involved in certain other burglaries in the Rockford area after being told by Officer Johnson of the Rockford police that he would not be prosecuted for any burglaries to which he confessed at that time.

Johnson testified that during the morning of July 5, 1971, he again saw the defendant and discussed a further unsolved burglary, but that defendant told him that he was not involved in any burglaries other than those to which he had previously confessed. The witness stated that he mentioned the armed robbery here involved, but the defendant said that he did not commit it.

In the afternoon of July 5, Johnson again saw the defendant and secured his agreement to a line-up. The officer testified that defendant asked why he was to be in a line-up and that he told him that he had been tentatively identified as the robber of O’Donnell’s Foods. After being advised of his rights, defendant orally admitted the O’Donnell armed robbery. And after returning from the line-up defendant gave his written confession to the armed robbery and also to another robbery not here involved.

On cross-examination Officer Johnson was asked to relate his exact words to defendant when he questioned him on the morning of July 5:

«Q » » # but when you started talking about O’Donnell’s and armed robberies, did you at that time tell him that you were no longer just clearing your books? A At that time he was told to clear everything he was involved in. I don’t remember how I asked him, I asked him whether there were any robberies or any burglaries he was involved in to get them cleared up. He said there was nothing else he was involved in, so I didn’t talk to him any further.”

Defendant’s testimony at the combined pretrial hearing on the motion to suppress his confession and to suppress the line-up identification did not refer to any conversation between defendant and Officer Johnson. At trial, however, defendant testified that Johnson told him on July 5 when he asked defendant about the O’Donnell robbery that it would not be held against him. if he helped “clear the books”; that he denied participation in this robbery at that time; and that after he was told on the afternoon of July 5 that he had been picked out as the robber he signed a confession; but that it was entirely false and detailed from what he had read in the newspapers. In his trial testimony, Officer Johnson testified substantially as he had at the pretrial hearing. He denied that he had stated to defendant that he wanted to clear up anything but. other burglaries when he spoke to him on July 5. He categoricaUy denied that he had promised defendant immunity for the armed robbery.

It is, of course, clear that the State has no right to extort confessions by a promise of reward or leniency (People v. Martorano (1935), 359 Ill. 258, 265); and the admission of a statement unconstitutionaUy obtained is reversible error whether or not independent evidence exists to support the judgment of conviction. Lynum v. Illinois (1963), 372 U.S. 528, 537-38, 9 L.Ed.2d 922, 928, 83 S.Ct. 917.

Defendant argues that the record shows that his confession was extorted by a promise that he would not be prosecuted for either robberies or burglaries he confessed to other than the one involving the St. Mary’s Social Club, and that his confession to this armed robbery was therefore inadmissible in this case.

The State argues that the testimony of Officer Johnson taken in its entirety does not amount to an offer of immunity as to the O’DonneH armed robbery; that at best the offer to “clear the books” made by Johnson at the July 5 interrogation in the morning was not accompanied by an offer of immunity as to the armed robbery charge and did not amount to a promise of leniency sufficient to render the confession invalid. We agree. In the ruling on the suppression motion, the trial court could properly have concluded from the testimony of Johnson and the circumstances that defendant was not offered immunity in exchange for his confession to the O’Donnell armed robbery, and could well have concluded that defendant’s testimony that the officer specifically offered immunity for an armed robbery after previously securing a confession to a lesser offense of attempted burglary and while the authorities were in the course of investigating an armed robbery was incredible. (See State v. Hunter (Mo. 1970), 456 S.W.2d 314.) It appears more likely, as the State contends, that the confession of this armed robbery was voluntarily made after defendant was confronted with the fact that he had been tentatively identified by eyewitnesses and not because of any promise or understanding that he would receive immunity. People v. Joe (1964), 31 Ill.2d 220, 225; see also People v. Hartgraves (1964), 31 Ill.2d 375, 381.

A finding that a confession is voluntary after a full hearing on a motion to suppress will not be disturbed unless it can be judged to be contrary to the manifest weight of the evidence. (People v. Daily (1968), 41 Ill.2d 116; People v. Ackerson (1967), 37 Ill.2d 117, 121.) The court is not required to be convinced beyond a reasonable doubt of its voluntary character in ruling on a preliminary question of the admissibility of a confession. It was not error to admit the confession here. People v. Daily (1968), 41 Ill.2d 116, 119; People v. Weger (1962), 25 Ill.2d 370, 373-4.

Defendant’s further claim, that he was not proven guilty beyond a reasonable doubt is not persuasive on the record before us. In addition to the confession which is considered evidence of a convincing character (see People v. Green (1959), 17 Ill.2d 35, 41), there was credible eye witness testimony. Against this, defendant produced no witnesses other than himself to testify to his whereabouts at the time of the O’Donnell armed robbery in support of his defense of alibi.

For the reasons stated we, therefore, affirm the judgment below.

Affirmed.

T. MORAN and RECHENMACHER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Ramsey, Defendant-Appellant.
    (No. 73-196;
    Second District
    January 24, 1975.

      Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz and Martin Moltz, both of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendant was convicted of armed robbery in a jury trial and was sentenced to 11-33 years in the penitentiary. He appeals only from the sentence and asks that the case be remanded for a new sentence hearing based upon his contention that the judge considered improper matters arising from a personal investigation of the defendant’s conduct in the county jail.

In the course of the hearing in aggravation and mitigation the trial judge stated for the record that defendant, while in the county jail awaiting trial, had written to him complaining of treatment in the jail and claiming that he had been incarcerated “in the hold” for 72 hours without any water. The judge related that he called in a jail officer in the temporary absence of the warden and was shown the contents of a report which the jailer assured him was factual. These jail reports, required to be kept by the warden, detailed the conduct of prisoners while incarcerated. The judge said it appeared from the report that the defendant had been a constant problem while in jail:

“He harasses the other prisoners, remains up most of the night, pulls bankets off the prisoners, pounds them to keep them awake, and even pulls them out of their bunks, and if he can do it, he steals their food and this is as of that date, steals their personal belongings. They tried to reason with him in the beginning and then he started to threaten and harass the guards and they started to put him in the hold. As of this date, I do not know how many times he has been in the hold, which is, as you know, what they call solitary confinement, but it was my understanding when the Warden, as you know was hospitalized about that time for the removal of a kidney and he couldn’t come back for a considerable period of time, and when he came back, he came up to talk to me about it because Corporal Eye reported it to him and during that period of time we had one of the other prisoners in who testified that he had been struck by the defendant and of course he claimed he didn’t do anything to incite the striking.
You are right, the man has been in jail for a considerable period of time. As you know, we had all kinds of motions on this case, the case was continued from time to time at the request of all three defense counsel — ”

The judge then, in alluding to the circumstances of the armed robbery and the fact that the defendant had committed the offense while on probation for burglary, stated:

“To me, I must agree that my reaction to this young man, in view of what happened in the jail, in view of the failure of this young man to take advantage of a five-year probationary period, is apparent. I don’t know if it is a complete disregard of authority as shown over the period of time, or what it is, but I do not believe that this young man is amenable at the present time to any light sentence.”

At this point the defendant’s counsel sought to minimize the defendant’s conduct in jail by noting that, while he was confined, the defendant had no exercise and this lack of exercise was particularly destructive to one with a personality of the defendant. He also argued that a large spread between the stated minimum of 4 years and the maximum would be a proper answer to a concern for the defendant’s rehabilitation potential.

The judge’s response included:

“The Court has considered the arguments of counsel, has reviewed the notes that the Court has made and particularly the notes made with regard to the investigation that the Court undertook after receiving the letter from Mr. Ramsey in October of 1972 * * * and the Court feels that having had the benefit of the case history, the investigation by the Probation Department and the review of the other files and notes that the Court has heretofore referred to, the Court is now ready to enter sentence #

The defendant argues that the judge, by considering ex parte converations with witnesses in a nonadversary setting and considering a hearsay report, went beyond the statutory deadlines set forth for sentencing hearings. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 4—1(a).) And that the judge, in effect, based the sentence upon information coHected upon his own motion and not presented by a means recognized as due process in judicial proceedings. The State notes that the inquiry was initiated by the defendant who did not object to the court’s recital of the facts nor deny them. It contends that the inquiry made by the court was relevant to the issue involved in sentencing and that the entire record supports the sentence imposed which was within the statutory limits.

In our view the Unified Code of Corrections does not substantiaHy change procedural standards for sentencing hearings which have been well established in previous case law, except to require the presentation of a presentence report and to allow the defendant an opportunity to inspect its content (Ill. Rev. Stat. 1973, ch. 38, pars. 1005 — 3—1, 1005 —3—á). The sentencing judge may look to the facts of the crime and may search anywhere within reasonable bounds for other facts which tend to aggravate or mitigate the offense without being bound strictly by the rules of evidence which apply to the guilt finding process. (People v. Adkins (1968), 41 Ill.2d 297, 301; People v. Loomis (1971), 132 Ill.App.2d 903, 905.) Hearsay evidence may be considered. People v. Dennis (1970), 47 Ill.2d 120, 135. See also People v. Holmes (1973), 12 Ill.App.3d 713, 719; People v. McDaniel (1972), 8 Ill.App.3d 45, 46.

There are, however, limits to the procedures employed by the court at the presentence hearing in acquiring relevant background information. Sentencing procedures affect substantial rights of a criminal accused to whom the fundamental rights of due process are extended. (Mempa v. Rhay (1967), 389 U.S. 128, 137, 19 L.Ed.2d 336, 342, 88 S.Ct. 254; People v. Ackerman (1971), 132 Ill.App.2d 251, 254.) In the exercise of the judge’s sentencing discretion he must exercise care to insure the accuracy and propriety of the materials considered. (People v. Crews (1967), 38 Ill.2d 331, 337; People v. Loomis (1971), 132 Ill.App.2d 903, 905.) Under certain circumstances this may require that the materials which form a part of the judge’s process of determining the sentence be made available to defendant and the sources of the information also made available so that they may be subjected to cross-examination. People v. Crews (1967), 38 Ill.2d 331, 338.

Here, an investigation of the defendant’s complaint of mistreatment while in jail awaiting trial was warranted. But it was an improper procedure for the judge to merely satisfy himself, as he apparently did, as to the factual background resulting from his inquiry. The judge should properly have tendered to the defendant the right and opportunity to subject the facts resulting from the inquiry to an in-court testing of the accuracy of the information since the conclusions reached, by the judge’s own admission on the record, were considered in his decision.

The defendant, however, initiated the inqiiiry by his letter to the judge and did not object either personally or by counsel to the procedure followed or challenge the accuracy of the facts stated. His failure to object amounts to a waiver of that error on appeal if the error did not result in the denial of any substantial rights. See Ill. Rev. Stat. 1973, eh. 110A, par. 615(a).

The defendant did not challenge the judge’s statement of the facts as to his conduct in jail, and while the court did not invite the defendant or his counsel to present a rebuttal, there was an opportunity for each of them to do so. In fact, counsel responded, not by questioning the information but by seeking to explain the conduct without disagreeing with the facts. In addition, the propriety of the judge’s sentence determination is buttressed by the consideration of the defendant’s use of a sawed-off shotgun to commit the aimed robbery while he was still on probation for a prior conviction of burglary and his unemployment since March of 1969 with a record of heroin addiction. On the whole record we conclude that the court’s procedural error has not resulted in the denial of any substantial rights of the defendant and that the judge did not abuse his discretion in the imposition of the 11-33 year sentence.

We, therefore, affirm the judgment below.

Affirmed.

T. MORAN and RECHENMACHER, JJ., concur.


author: Mr. JUSTICE GUILD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tony Walker, Defendant-Appellant.
    (No. 73-410;
    Second District (1st Division)
    January 24, 1975.
    Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    John J. Bowman, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People,
   Opinion by

Mr. JUSTICE GUILD.


author: Mr. JUSTICE T. MORAN.

text:
    Joan R. Murphy, Adm’r of the Estate of Robert T. Murphy, Deceased, Plaintiff-Appellant, v. James B. Hook, Defendant-Appellee.—(Allstate Insurance Company, Garnishee.)
    (No. 73-255;
    Second District (2nd Division)
    January 27, 1975.
    John A. Leemon, of Mt. Carroll, for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, for appellee.
   Opinion by

Mr. JUSTICE T. MORAN.


author: Mr. PRESIDING JUSTICE SEIDENFELD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Howard Copus et al., Defendants-Appellants.
    (Nos. 73-291, 73-295 cons.;
    Second District (1st Division)
    January 29, 1975.
    Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellants.
    William Sisler, State’s Attorney, of Freeport (James W. Jerz and Martin P. Moltz, both of Illinois State’s Attorneys Association, of counsel), for the People.
   Opinion by

Mr. PRESIDING JUSTICE SEIDENFELD.


author: Mr. JUSTICE STOUDER

text:
    James C. Rocker et al., Plaintiffs-Appellees, v. Larry Hubert Murphy et al., Defendants-Appellants.
    (No. 74-167;
    Third District
    January 24, 1975.

      Dorothy O’Dean, of Rock Island, for appellants.
    McGehee, Roling & Whitmore, Ltd., of Silvis (N. L. McGehee, of counsel), for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Plaintiffs, James and Vicki Rocker, brought this action in the circuit court of Rock Island County seeking to recover an amount due on a real estate sales contract from defendants, Larry and Linda Lou Murphy. The court sitting without a jury entered judgment in favor of the plaintiffs for $570, the amount which they requested. Defendants have appealed. We reverse.

The Rockers listed their house with a real estate agency associated with a multiple-listing service. A broker other than the one with whom the property had been originally listed secured an offer to purchase the premises for $20,000 from the Murphys. The offer to purchase in so far as it is pertinent to this litigation included a provision that the obligation of the buyers was contingent upon the buyers being able to secure financing of 95% of the selling price ($19,000). The offer to purchase was accepted by the sellers on April 19, 1973.

Early in June, 1973, Jack Rue, agent for the real estate broker, had telephone conversations with Rocker indicating that in order for the sale to be concluded and the Murphys to secure the mortgage financing, it would be necessary for the Rockers to pay a 3% discount to the mortgage company so that the company would make the required loan. Rocker admitted in his testimony that conversations had taken place, that he had agreed to pay the discount and that the first document forwarded by Rue authorizing the discount payment had been misplaced. Sometime after July 1 Rue again talked with Rocker and ascertained that the previous document had been mislaid, and Rue forwarded a new document. Sometime between July 1 and July 10, when the transaction was closed Rocker and his wife signed the document authorizing the payment of the 2>% discount ($570) and forwarded the statement to the attorney for the mortgage company.

The Roclcers were represented by an attorney, Layne McGehee, who on June 9, 1973, sent the warranty deed signed by the Rockers to the agent of the mortgage company with instructions concerning the payments to be made from the purchase price. The letter of instructions did not refer to the deduction of the discount, and in fact the Rockers did not talk with their attorney about the matter at all. The transaction was closed on July 10, 1973, and the check for the Rockers’ equity was sent to McGehee with a statement of credits and disbursements including the fact that $570 had been withheld as a discount. Apparently McGehee called the mortgage company and ascertained that the Rockers had authorized the discount and he thereafter sent the net amount to the Rockers who accepted the amount and voiced no objection until sometime later.

As indicated earlier, the trial court entered judgment in favor of the sellers in the amount of $570, the amount of the discount. The buyers on their appeal urge that the sellers had admittedly agreed to pay the discount, that the agreement was supported by adequate consideration and that in any event the contract was completely executed and therefore could not support a cause of action by the plaintiffs.

The principal arguments advanced by the plaintiffs in support of the judgment are that the agreement to pay the discount was without consideration and that the defendants were entitled to enforce the original agreement without regard to any modification.

With respect to the issue of consideration, it is our conclusion that the modification of the original agreement was supported by adequate consideration. The sellers’ position seems to be that because the buyers were required to pay only $20,000 both before and after the modification of the contract, the sellers received no benefit from the modification which can be considered consideration. This is in our opinion an unwarranted conclusion. Before the modification the liability of the buyers, as well as the right of the sellers to enforce such liability, was contingent. After the sellers had agreed to pay the discount, the obligation of the buyers was no longer contingent but became unconditional, a fact of significant value and benefit to the sellers and hence legal consideration for the promise.

In addition we believe the agreement was completely executed. Performance of the buyers’ obligations had been tendered to and accepted by the sellers, and the sellers had completely performed their obligations under the contract by delivering the warranty deed to the buyers. We believe this case faHs within the rule announced in Hines v. Ward Baking Co. (7th Cir. 1946), 155 F.2d 257, and precludes the assertion of any claim by the sellers once the performance of the contract by the buyers has been accepted and in the absence of a claim of fraud, duress, mistake or other improper influence.

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

Judgment reversed.

ALLOY and BARRY, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH.

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Arthur Lee Johnson, Defendant-Appellee.
    (No. 12269;
    Fourth District
    January 28, 1975.

      John E. Gambill, of Rantoul, for appellant.
    No appearance for the People.
   Opinion by

Mr. PRESIDING JUSTICE SMITH.