author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Vincent Ross Jones, Defendant-Appellant.
    (No. 12007;
    Fourth District
    April 25, 1974.

      G. Michael Cooper, III, R. Eugene Pinchara, and Charles B. Evins, all of Chicago, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Robert James Steigmann, Assistant State’s Attorney, and Craig Greenwood and Keith Luymes, both Senior Law Students, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals his conviction and sentence upon a plea of guilty to burglary. Sentence of 1 to 5 years was imposed.

On appeal it is urged that the admonishment pursuant to Supreme Court Rule 402 ( 50 Ill.2d R. 402) was inadequate because the terms of the plea agreement were not properly set forth in the record, that the trial court abused its discretion by denying probation, and that the sentence is excessive.

The plea was tendered at the time of defendant’s arraignment. The trial court admonished defendant pursuant to Supreme Court Rule 402. Thereafter, the prosecutor indicated that the plea was the result of prior negotiations by counsel and defendant, and that it had been arranged that defendant would plead guilty to burglary and move for probation; that the prosecution would abide the recommendation of the probation officer and would not oppose probation if such was recommended; that the People would not seek any terms or conditions in excess of those recommended in the probation report and that the prosecution would enter a nolle prosequi on an indictment charging defendant with forgery, The defendant then indicated that he understood the recommendations as stated and that no other recommendations had been communicated to him. The court advised the defendant in some detail that it was not bound by recommendations of either the State’s Attorney or the probation officer, and made clear that the sentence could be any number of years with a minimum of one year.

A continuance was entered pending filing of the probation report. The report subsequently filed recommended a denial of probation. Such report was introduced into evidence, testimony and arguments heard, and the court determined to deny probation.

The following thereafter occurred:

“THE COURT: What was the recommendation at the time of the plea here?
THE STATE: Your Honor, I believe that the recommendation The People indicated to the Court and defendant we would make in the event of denial of probation was a penitentiary sentence of one to six years.
DEFENSE COUNSEL: That is correct.
THE COURT: That is the recommendation, one to six?
DEFENSE COUNSEL: Yes, sir.”

The record indicates that defendant was present at these proceedings and that he made no comment in response to counsel’s concurrence with the terms of the plea agreement.

Defendant claims a misunderstanding in that the prosecution’s proposal to recommend a sentence of 1 to 6 years was not communicated to him. It is not contended that a lesser recommendation was promised. At both the hearing on probation and the hearing in aggravation and mitigation the prosecution indicated that the terms of the agreement included such sentence recommendation in the event probation would be denied. Defendant was present at such hearing and remained silent when such recommendations were stated into the record. Defendant’s counsel expressly agreed that the plea agreement included the possible l-to-6 year recommendation. In addition, at the hearing on the motion for probation, the prosecution indicated that such recommendation was communicated to the defendant, his counsel concurred in the statement and defendant made no response or objection.

Defendant’s contention that the initial statement of the plea arrangement did not include the prosecutor’s proposed sentence recommendation is a technical contention without relation to the fact of error. Examination of the record shows substantial compliance with Supreme Court Rule 402. People v. Talbot, 9 Ill.App.3d 688, 292 N.E.2d 561.

The requirement in Supreme Court Rule 402(b) that the terms of the plea arrangement be made a part of the record was designed to prevent the defendant from swearing falsely in a later collateral attack upon the proceedings that the terms of the arrangement reached were not fulfilled. (People v. Ridley, 5 Ill.App.3d 680, 284 N.E.2d 37. See also Committee Comments to Supreme Court Rule 402.) In the light of this record, such function of the Supreme Court Rule has been performed.

Defendant here argues that he felt that “he would qualify for probation” for otherwise he would not have pleaded guilty and says that it is unreasonable to believe that defendant and his counsel “would accept such negotiation of the results of the conference (presumably the plea negotiations with the State’s Attorney) had not discussed that * * * he would qualify for probation”. The argument is novel but does not stand firmly in the light of the court’s admonition that the question of probation would be determined by the court following the hearing. Counsel have not advised of any procedure whereby counsel may determine, prior to defendant’s plea, that a defendant is “qualified” for probation, nor can it be said that the fact a prosecutor negotiates a plea constitutes such a determination. The argument is without merit.

It is also urged that because the trial court granted a continuance to await the filing of the probation report, the trial court “conditionally concurred in the result of that agreement”, and that when the report recommended the denial of probation, defendant should have been given the opportunity under Supreme Court Rule 402(d)(2) to withdraw his plea of guilty. This argument is totally without merit. No authority has been cited for the proposition that the granting of a continuance awaiting the filing of a probation report constitutes concurrence in the plea agreement, and we hold that it does not. The trial court made absolutely certain that the defendant was aware the trial court was in no way bound by either the probation report or the State’s Attorney’s recommendation. The Committee Comments to sub-paragraph (d)(3) state that:

“Where there is a plea agreement but no concurrence or conditional concurrence by the judge * * *, the judge is required to advise the defendant that he is not bound by the agreement stated in court at the time of the plea. This caution will remove any possibility of an inference by the defendant that the judge’s awareness of the agreement indicates concurrence in it.”

Supreme Court Rule 402(d) (2) is not applicable to the facts of this case, and upon such facts and under Rule 402(d)(3) the trial court, at no time, was under any duty to offer defendant the opportunity to withdraw his plea.

Defendant also asserts that the trial court should have admonished him that his prior probation would disqualify him for probation. There is no statutory ineligibility for probation. Ill. Rev. Stat., 1972 Supp., ch. 38, pars. 1005—5—3(d) (1) and 1005—5—3(g).

Defendant contends that the court “should have gone beyond the very language used in Supreme Court Rule 402” in order that there be a knowing plea. The argument implies a bizarre revision of the system of criminal procedure in that a tendered plea of guilty is revocable at will upon denial of probation. Defendant was thoroughly admonished concerning the consequences of the plea and the granting or denial of probation so that the argument has no merit.

Defendant asserts that the trial court abused its discretion in denying probation. Upon review here, the question is whether the court did exercise discretion upon the facts appearing in the record or acted arbitrarily. (People ex rel. Ward v. Moran, 54 Ill.2d 552, 301 N.E.2d 300.) That case held that the exercise of judicial discretion lies in a factual consideration to be made by the trial court. Nothing in this record suggests that the court considered matters outside of the record, or otherwise acted arbitrarily. (People v. McAndrew, 96 Ill.App.2d 441, 239 N.E.2d 314.) The court certainly could not ignore that defendant had rapidly accumulated a number of offenses. This offense was committed ten days after he had been placed on probation for a federal misdemeanor. A part of the plea arrangement provided for the dropping of a forgery charge. No real basis can be found for asserting that the court acted arbitrarily.

Similarly, the record does not sustain the argument that the sentence imposed was excessive. The minimum sentence for burglary, a Class 2 felony, (Ill. Rev. Stat. 1973, ch. 38, par. 19—1(b)) is 1 to 3 years in the penitentiary. The maximum sentence which may be imposed is 20 years. (Ill. Rev. Stat. 1973, ch. 38, pars. 1005—8—1(b)(3), (c) (3).) The court actually imposed a lesser sentence than that discussed during the plea negotiations. We find no valid basis for concluding that the sentence was excessive.

The judgment is affirmed.

SMITH, P. J., and SIMKINS, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SIMKINS

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Wright, Defendant-Appellant.
    (No. 12089;
    Fourth District
    April 25, 1974.

      John F. McNichols, Deputy Defender, of Springfield (J. Daniel Stewart, Assistant Appellate Defender, of counsel), for appellant.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (James W. Jerz and Thomas F. Sullivan, Jr., both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

This is an appeal from defendant’s conviction by a jury of the offense of armed robbery in violation of section 18—2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, sec. 18—2) and from a sentence of 5 to 8 years. The co-defendant in the case, William Smith, was acquitted by the same jury. Defendant raises the following issues: (1) Whether defendant was deprived of a fair hearing on the motion to suppress, (2) Whether the trial court erred in permitting defendant’s confession to be used for impeachment purposes, (3) Whether defendant was convicted beyond a reasonable doubt, (4) Whether the mandatory minimum penalty imposed for armed robbery is unconstitutional, (5) Whether defendant’s sentence should be reduced under the Unified Code of Corrections.

At approximately 9:30 P.M. on March 18, 1972, the A&P Grocery Store in Springfield, Illinois, was robbed by two individuals wearing nylon stockings over their faces. At that time there were only two people in the store, Jack Carrol, the manager, and Michaeleen McClure, a checker. The shorter of the two men waved a gun and yelled, “This is a holdup” and, “Lay on the floor.” That same individual entered the office and removed the cash register drawers from the safe. The robbers left the store with the trays in their hands. The defendant was arrested later in the evening and was immediately thereafter identified as one of the robbers by McClure. On March 19, 1972, Durrell Jackson, defendant’s girlfriend, gave the police a written statement implicating defendant in the robbery.

On April 2, 1972, defendant gave a written confession to Officers Kirk and Pettit detailing his participating in the robbery. On July 3, 1972, defendant moved to suppress the confession. At the hearing defendant stated that the Miranda warnings were not given to him and that he talked to Kirk and Pettit because he had obtained a message while in jail to the effect that Jackson was being “unnecessarily harrassed” due to her relationship with him. When asked what the harrassment was, the trial court refused to permit any testimony by defendant in that regard. On cross-examination Wright testified that he was not forced by Kirk or Pettit to sign the statement, and that Kirk was there upon his request. He further stated that he wouldn’t say his statement was voluntary because he gave it under strain, but that neither Kirk nor Pettit put any strain on him. Officer Pettit testified that he was present with Kirk at the time defendant gave his confession, that the Mimnda warnings were given to defendant, and that no pressure was placed on defendant. He further stated that Officer Kirk was on vacation. The court then stated that if the confession is offered at the trial, Officer Kirk would have to be present. The court then denied the motion to suppress and specifically found that the Miranda warnings were given to defendant and that defendant’s confession was voluntary.

At the trial Carrol testified that he could not identify the robbers unless they would again wear nylon stockings on their heads.

McClure testified that the larger of the two men stood in front of her under good lighting conditions for 5 or 6 seconds with his face 4 inches from hers and grabbed her shoulder, forcing her to the floor. She further stated that the stocking mask didn’t conceal his main features and made no difference as far as her identification was concerned. She then identified defendant as being the larger of the two robbers. She stated that her identification of defendant was facilitated by the fact that defendant had previously been an employee of the store.

Durrell Jackson testified that on March 13, 1972, defendant had a conversation with Howard Lowe at her house concerning holding up the A&P. She also stated that Lowe and defendant had conversed on March 17, 1972, about stealing a car for a robbery. She further stated that on March 18, 1972, defendant was at her house and left to find a car. He returned prior to 9:10 P.M. and left shortly thereafter in a gold car after obtaining a nylon stocking and some rubber gloves. She stated that defendant returned again between 10 and 10:30 P.M., and they all left shortly thereafter to go to the home of Bernadine Smith. At the Smith residence she testified that she observed some money lying on a bed and heard defendant laughingly respond to a newcast concerning the robbery by stating, “We got away slick.” She stated that defendant left the Smith residence later stating that he might burn the car. He returned shortly thereafter and stated that he had parked the car near Sandy’s Restaurant. She then stated that she was told by Officer Kirk that if she did not make a statement implicating defendant, she would have her children taken from her.

Lowe testified that while at Bernadine Smith’s house on the evening of March 18, 1972, he observed defendant with two bags containing square objects which were taken to a car. He also stated that he saw defendant laughingly respond to a newscast concerning the robbery.

Robert Mabie testified that he was sitting on a park bench across the street from the A& P when the robbery occurred and observed a gold car pull up in front of the store and two men getting out of the car and going into the A & P. He stated that one of the men appeared to have a gun.

Defendant took the stand in his own behalf and testified that he had never discussed a robbery with either Smith or Lowe, and that on the evening in question he and Lowe were at Jackson’s house watching T.V. At approximately 9:10 P.M., he stated that he went across the alley to attend a party given by a young lady named Naomi. It was there that he met Smith and the two went to several taverns. Defendant later left one of the taverns and walked to Bernadine Smith’s house where he was joined 10 minutes later by Smith. The State then sought over defendant’s objection to use for impeachment purposes statements given by defendant in his confession that were inconsistent with certain statements given by him on direct, and the court stated that it could be so used because the voluntariness of the confession had already been established at the pre-trial hearing.

William Smith, the co-defendant, also testified in his awn behalf, and his testimony was substantially similar to that given by defendant.

Officer Kirk was called as a witness on behalf of Smith, and he testified that he participated in arresting Smith and Wright. He further stated that Jackson was later taken into custody and gave a written statement concerning the robbery. The defense counsel then chose not to examine Kirk on behalf of defendant Wright.

It is contended that defendant was deprived of a fair hearing on the motion to suppress the confession because the trial court limited the scope of inquiry into the voluntariness of the statement and failed to require all witnesses to the confession to testify at the hearing. We note that defendant on the motion to suppress was not allowed to relate to the court the details of “the unnecessary harrassment” of Jackson, his girl friend. However, during the trial Jackson related to the court the details of the alleged harrassment, i.e,, that Officer Kirk had threatened to take her children away from her. Defendant could have at this point renewed his motion to suppress by making an offer of proof of additional evidence or of the existence of special circumstances relating to the issue of voluntariness. The court clearly had jurisdiction to reconsider the motion to suppress at this time. See People v. Holland and People v. Shackleford (consolidated), 56 Ill.2d 318. Nevertheless, defendant chose not to renew his motion. Likewise, the court refused to allow the confession to be used during the trial, presumably in the State’s case-in-chief, unless Kirk was present at the trial, citing section 114r—11(d) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, sec. 114— 11(d)). Kirk, however, was called as a witness by Smith and was available at the trial, but defense counsel chose not to question Kirk on behalf of the defendant concerning the alleged threats. Had defendant chosen to call Kirk before defendant as a defense witness, defendant could likewise have renewed his motion to suppress by making an offer of proof of additional evidence or of the existence of special circumstances relating to the issue of voluntariness. Since defendant did not take advantage of the procedural tools available to him at trial, he cannot now complaint before this court that he was deprived of a fair hearing on the motion to suppress.

The real issue then is whether the trial court erred in permitting defendant’s confession to be used for impeachment purposes. The Illinois Supreme Court has held that an out of court inconsistent statement may be used for impeachment purposes only if the voluntary character of the statement is established. People v. Tate, 30 Ill.2d 400, 197 N.E.2d 26; People v. Adams, 1 Ill.2d 446, 115 N.E.2d 774. In Harris v. New York, 401 U.S. 222, defendant admitted to the police that he had sold heroin on a certain date. The trial court held that the statements given by defendant should be suppressed under Miranda v. Arizona, 384 U.S. 436, because defendant was not told that he had a right to appointed counsel after being taken into custody, and held that such statements could not be used in the government’s case-in-chief. Defendant did not claim that the statements were either coerced or involuntary. At the trial defendant took the stand in his own behalf and denied making the sale in question at which time the government used his prior inconsistent statement for impeachment purposes. The United States Supreme Court affirmed and held that prior inconsistent statements inadmissible because of a failure to comply with the procedural safeguards enunciated in Miranda may be used at trial for impeachment purposes provided that its trustworthiness satisfies legal standards.

We believe that the statements given by defendant to the police in the instant case clearly satisfied the legal standards contemplated by Harris. The trial court heard defendant and Officer Pettit testify at the hearing on the motion to suppress. Jackson later testified as to the exact nature of the alleged harrassment by the police, and Officer Kirk was. available at trial for any further testimony in that regard. Furthermore, the trial court specifically found that all the Miranda warnings were given defendant and that the confession was voluntary. The trial court, however, refused to let the confession be used in the State’s case-in-chief because Officer Kirk, a witness to the confession, did not testify at the hearing on the motion to suppress. Nevertheless, such a failure to follow procedural statutorily mandated safeguards as to the voluntariness of confessions is certainly no greater a deviation from legal standards than that which occurred in Harris, and the statements were voluntary, at least within the meaning of Tate, Adams and Harris. Therefore, the court did not err in allowing the statements to be used for impeachment purposes.

Defendant also contends that he was not proven guilty beyond a reasonable doubt. We find no merit to that argument. McClure, the store clerk, positively identified defendant immediately after the robbery as being the taller of the two robbers. She was face to face with defendant for 5 seconds under good lighting conditions and expressly stated that the nylon stocking did not obscure defendant’s facial features. Her familiarity with defendant was also based in part upon defendant’s previous employment at the store. Furthermore, Jackson testified that defendant had discussed the robbery several times before March 18, that defendant had obtained a nylon stocking from her, that defendant had responded to a newscast of the robbery with “We got away slick,” that defendant stated that he was going to burn the car, and that she had observed money lying on a bed in the house where defendant was shortly after the robbery. Defendant testified in his own behalf as to his whereabouts on the evening in question, but, except for the co-defendant, no other witnesses substantiated defendant’s testimony. Nevertheless, credibility is a question for the trier of fact and their determination of guilt will only be disturbed where the evidence is so unsatisfactory as to leave a reasonable doubt of defendant’s guilt. (People v. Hampton, 44 Ill.2d 41, 253 N.E.2d 385.) This is clearly not the case here.

Defendant also contends that the mandatory 5-year minimum sentence with no probation for armed robbery contained in sections 18— 2(b) and 117—1 of chapter 38 (Ill. Rev. Stat. 1971, ch. 38, secs. 18—2 (b) and 117—1) is unconstitutional as applied to the youthful defendant here with no prior criminal record because it is violative of the limitation-of-penalties-after-conviction section of the 1970 Illinois Constitution (art. 1, sec. 11) which states that “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship * * We find no merit to this argument. We first note that the minimum sentence imposed is a legislative judgment reflecting the seriousness of this particular offense and the fact that a longer rehabilitative period is necessary. We also note that the test for the constitutionality of a penalty for a criminal offense is whether the punishment is cruel or degrading or “ so wholly disproportioned to the offense committed as to shock the moral sense of the community.’ ” (People v. Jackson, 116 Ill.App.2d 304, 322, 253 N.E.2d 527.) Considering the seriousness of the crime of armed robbery and the dangers inherent when that offense is committed, we certainly cannot say that the moral sense of the community is offended in any fashion by a 5-year minimum sentence.

Nevertheless, the State concedes that defendant’s minimum sentence should be reduced to 4 years. Defendant was sentenced on July 26, 1972, and on January 1, 1973, the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, secs. 1001—1—1 et seq.) became effective. The new Code applies to convictions entered before the effective date but on direct appeal after that date. (People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.) In those instances the new Code applies for purposes of sentencing "if they are less than under the prior law upon which the prosecution was commenced.” (Ill. Rev. Stat. 1973, ch. 38, sec. 1008—2—4.) Defendant was convicted and sentenced to 5 to 8 years under section 18—2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, sec. 18—2) which provides for a mandatory 5-year minimum sentence. Under the new Code, however, armed robbery is a Class 1 felony which provides for a 4-year minimum "unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term.” (Ill. Rev. Stat. 1973, ch. 38, sec. 1005—8—1(c)(2).) Therefore, since the penalty provisions of the new Code are applicable, the minimum imposed by the trial court should be reduced from 5 years to 4 years.

For the reasons herein stated the judgment of the trial court is affirmed as modified.

Judgment affirmed and modified.

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


text:
    Corn Belt Bank, Trustee, Petitioner-Appellant, v. William F. Cellini, Secretary of the Department of Transportation, Defendant-Appellee.
    (No. 12248;
    Fourth District
    April 25, 1974.
    Dunn, Brady, Goebel, Ulbrich, Hayes and Morel, of Bloomington (George R. Flynn, of counsel), for appellant.

      William J. Scott, Attorney General, of Springfield (William P. Ryan and William B. Lawrence, Assistant Attorneys General, of counsel), for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

This appeal is from an order of the court dismissing a petition for a writ of mandamus to compel the defendant to institute condemnation proceedings with respect to plaintiff’s property adjacent to which the defendant had constructed a viaduct for the improvement of a State highway.

The property in issue, owned by the Com Belt Bank as trustee under a land trust, is located in Bloomington and is improved with a large warehouse consisting of four stories and a basement and was occupied by four business tenants at the time the petition was filed. The petition alleged that there had been convenient and easy access from South Center Street which was indispensable to the full use and enjoyment of the warehouse, and that petitioner’s property was taken and damaged by the construction of the viaduct along and over the previously existing grade of Center Street. On October 10, 1972, the court issued a writ of mandamus after the defendant failed to answer the petition. However, on October 11 that order was vacated on the motion of the plaintiff and defendant was ordered to plead in response to the petition within a stated time. On October 12, 1972, the defendant filed an answer admitting that there had been convenient and easy access to the warehouse on plaintiff’s property and admitting the completion of the viaduct improvement, but denying that plaintiff’s property was taken or damaged by such construction, and denying that the defendant had a duty or even the power or authority to commence eminent domain proceedings in such a situation.

A hearing was commenced on December 15, 1972, at which time the plaintiff’s written demand on tire defendant was introduced and plaintiff’s two witnesses testified. A real estate broker, Mr. Ball, testified to his experience and qualifications as a real estate appraiser, and then testified to his personal familiarity with the plaintiff’s building, giving the opinion that the construction and existence of the South Center Street viaduct has resulted in damage to the value of the petitioner’s property. When asked to state the basis of that conclusion, Mr. Ball said “* * * three points, which would be the loss of the railroad siding, accessibility to use * * by railroad; secondly, would be the ability to meet the

conventional type of over-the-road equipment, tractor-trailer and so on, access to the building; thirdly would be the loss of any possible display area that would be beneficial to somebody with a type of sales operation there in the east end.” Mr. Ball further testified that in his opinion the best use of the property was for storage or the sale of heavy equipment —its present use. When asked about dollar values for the building and land as testified to by petitioner’s other witness, one of the beneficiaries of the land trust, Mr. Ball said he could not make an estimate on value because it “* * * would be dependent upon the income that it derives and the relative stability of that income, and it would be evident that the stability of that income has decreased, but to what extent or whether or not the income prior to the construction would warrant that price or not, I have not figured it out.” Thereafter apparently upon the assumption that an appraisal based on the change in rental income was required, a continuance was granted after the defendant moved to strike Mr. Ball’s testimony on the grounds that he had testified that the building’s income would determine its value, but that he had made no study of the income before and after the viaduct’s construction.

The hearing was resumed on January 31, 1972, and the real estate appraiser Ball was recalled apparently for the purpose of more specifically establishing the damage suffered as a result of the construction of the viaduct. Ball again testified to his personal familiarity with the premises saying that before the construction Center Street was on ground level giving access to the first floor of petitioner’s building, while after the railroad overpass was completed the street was approximately at the top of the second floor and that access was seriously impaired. When asked to explain in detail how he arrived at his appraisal, Mr. Ball testified to three standard evaluation methods, return on investment, replacement cost, and sale of comparable structures. Mr. Ball testified that using the three, he estimated the value prior to construction at $107,037 and after at $74,927, or a loss of $32,110 due to the viaduct. In addition to the three standard methods, Mr. Ball testified that there had also been an increase in vandalism, specifically many broken windows, and that this security problem due to the viaduct’s existence had a psychological effect making the building less desirable to tenants, which was a factor in the market place.

The defendant then moved to strike Mr. Ball’s testimony on the grounds that he had improper elements in arriving at his appraisal. The petitioner replied that Mr. Ball had merely referred to all the factors affecting property values in addition to the income approach and the comparable sales approach, and that since he had testified that in his opinion the overpass had caused a decrease in the value of the property, that its access had been decreased, and that the efficiency of the building for its highest and best use had been decreased, his opinion and testimony were quite proper.

The court said “Well the Court finds that the witness has indeed considered improper elements in arriving at his appraisal, and the testimony of Mr. Paul Ball is stricken.” When the plaintiff asked to recall Mr. Ball for redirect examination the court said there was nothing to redirect “* * * If you want to recall him you may do so, but there is no redirect left for you, Mr. Flynn. Everything has been stricken at this point.” The court refused to grant the plaintiff a continuance and denied leave for plaintiff to submit written authorities. The court then found the petitioner had failed to prove the necessary elements and requirements for the issuance of a writ of mandamus and denied the petition.

Thereafter the plaintiff again sought to recall Mr. Ball and the court repeated several times that petitioner would not be allowed to impeach his own witness, in response to which the plaintiff said he did not wish to impeach Mr. Ball but to have him testify as to the damage done to the warehouse on the basis of his general knowledge of real estate, his qualifications and background previously having been established, leaving aside the factors which the court had found improper. The court said that Mr. Ball had already testified that his opinion was based partially on improper elements and that he would not be allowed to be requestioned on damages aside from the elements held improper. Petitioner asked to be allowed to make an offer of proof based on the expert’s general knowledge as an appraiser and without regard to the psychological or security factors about which he had testified earlier. The court again stated that Mr. Ball would not be allowed to change his testimony and refused the offer of proof, reaffirming his denial of the petition.

The trial court prepared a memorandum setting out his reasons for dismissing the petition. The court noted that section 15, article I of the Illinois Constitution provides that private property shall not be taken or damaged for the public use without just compensation as provided by law and that the constitutional provision is self-executing and cannot be annulled by non-action of a head of a department of government. The court said that a property owner’s right to damages is absolute and not affected by the fact that no property is taken and that the Secretary of the Department of Transportation may be compelled by mandamus to institute eminent domain proceedings to ascertain damages. The court then said that to be entitled to a writ of mandamus it is necessary to show a clear legal right to the relief demanded and this petitioner must prove a clear right to damages actually incurred and recoverable in an action of condemnation, and that any damages to be so compensated must be direct and proximate and not such as are merely possible or speculative or that may be conceived by the imagination. After so summarizing the general law on the matter the court then said: “The Petiturner herein must prove by evidence that his property has been damaged by proper elements affecting its fair cash market value after the completion of the improvement. In this case the Petitioner has failed to offer sufficient proof that he has sustained such damages that are compensable in a condemnation proceeding and it is for that reason that the court found on January 31, 1973 that the Petitioner failed to show a clear and undoubted right to a Writ of Mandamus and the Petition for Writ of Mandamus was therefore denied.”

We find no fault with the court’s statement of law. However, it seems the trial court imposed too great a burden on the plaintiff as to particularity of proof of specific injuries, and erred in not allowing the plaintiff’s witness to be recalled to testify where at most only some of the elements considered in arriving at the total amount of damages were improper. Even if the expert did testify to and consider some elements which were incompensable, he also testified to the loss of access to tire railroad spur and severely hindered access to the street. Only if all the elements considered by the plaintiff’s expert witness were improper would he clearly not be entitled to writ of mandamus.

Mandamus will lie to command performance of an official act which is ministerial. (People ex rel. Richter v. Telford, 103 Ill.App.2d 132, 242 N.E.2d 464.) Where damages result to property from highway improvements, the owner may bring mandamus against the Director of the Department of Public Works and Buildings to compel him to institute condemnation proceedings to ascertain the amount of damages. Posinski v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co., 376 Ill. 346, 33 N.E.2d 869.

The case which most directly applies to the instant problem is People ex rel. Haynes v. Rosenstone, 16 Ill.2d 513, 158 N.E.2d 577. In that case a plaintiff who owned land abutting a state highway filed a petition for writ of mandamus against the Director seeking to compel him to institute proceedings under the Eminent Domain Act to ascertain damages to plaintiff’s property allegedly caused by changes in the highway. As in the instant case, none of the plaintiff’s land was actually taken, so the defendant argued that he could not be required to file an eminent domain action for ascertaining plaintiff’s damages caused by water due to raising the highway and the installation of inadequate drainage. The supreme court said: “* * * We adhere to the view that a property owner who can prove that his property has been damaged by the State for the benefit of the public can compel the institution of eminent domain proceedings.” (16 Ill.2d at p. 516.) The supreme court then discussed the requisite showing of damage to a petitioner’s property and said: “To justify issuance of the writ, the mandamus proceeding must determine the fact of damage."’ (16 Ill.2d at p. 517.) In that case the supreme court reversed and remanded, stating that it was error to enter judgment for the petitioner on the pleadings. However the language which concerns the instant case is that to the effect that the mandamus proceeding is to determine the fact of damage. Thus the mandamus proceeding is distinguished from the condemnation proceeding itself where for recovery to be warranted the damage must be direct and proximate rather than remote and contingent or speculative, and where if a witness has considered improper elements of damage his testimony is deemed incompetent even though based in part on proper elements. Trunkline Gas Co. v. O’Bryan, 21 Ill.2d 95, 171 N.E.2d 45.

Although at the second hearing of December 31 Mr. Ball, in response to further questions as to the extent of damage and how he arrived at monetary values, referred to increased vandalism and the psychological loss of having the overpass immediately in front of the building, it appears there was substantial testimony which would establish the fact of damage if unrebutted and this testimony was unrebutted at the time of the dismissal of defendant’s petition by the trial judge.

As heretofore observed, at the initial hearing on December 15, as well as at the later hearing on December 31, Mr. Ball testified that access to the railroad spur was terminated and that access to large over-the-road trucks was curtailed. It is clear that access rights are property rights which cannot be taken away or materially impaired without just compensation. (Department of Public Worlds & Buildings v. Mabee, 22 Ill.2d 202, 174 N.E.2d 801.) Although the plaintiff’s witness may have testified to and considered improper elements in arriving at his opinion as to the amount of damages resulting as expressed in terms of monetary loss, the petitioner was not required to prove the precise monetary amount of damage sustained, that being an element of proof required in the eminent domain proceeding as contrasted to the proof required to support his petition for writ of mandamus in which proceeding he need only prove “the fact of damage.” (Rosenstone.) It was therefore error for the trial court to strike dll of his testimony concerning damage. That ruling effectively precluded petitioner from establishing the fact of damage. Accordingly the order dismissing the petition for the writ of mandamus is reversed and the cause remanded for further proceedings consonant with the views herein expressed.

Reversed and remanded.

SMITH, P. J., and CRAVEN, J., concur.


text:
    Harold E. McCallister, Plaintiff-Appellant, v. Julio C. delCastillo, M.D., Defendant-Appellee—(Blessing Hospital, Defendant.)
    (No. 12338;
    Fourth District
    April 25, 1974.
    Jay H. Janssen, of Peoria, for appellant.
    R. P. O’Connell, of Quincy, for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

On January 15, 1970, defendant-appellee, Dr. Julio C. delCastillo, a neurosurgeon, performed surgery upon the left temporal area of the brain of plaintiff-appellant, Harold E. McCallister, for the purpose of removing a tumor. Plaintiff’s post-operative recovery was unsatisfactory, and on January 24, 1970, the defendant again performed brain surgery and discovered that a small piece of cotton, approximately 2-cm. in diameter had been left in the site of the original surgery. The piece of cotton had blocked cerebral spinal fluids resulting in obstruction of the left ventricle and caused internal hydrocephalus.

Plaintiff brought suit against Dr. delCastillo claiming that the initial operation was negligently performed, and that as a result of the failure of defendant to remove the piece of cotton from plaintiff’s brain during the course of the operation he had suffered permanent injury.

The case was submitted to a jury which was unable to arrive at a verdict. Subsequently the trial judge directed a verdict for the defendant and this appeal ensued.

The issue presented invokes consideration of the following familiar proposition: “* * * verdicts ought to be directed and judgments

n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria and Eastern. R.R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504.

There is no dispute that the defendant performed the surgery in question. There is no dispute that during the operation he inserted, one at a time, balls of cotton into the surgical site and that the piece of cotton in question became detached from a larger piece and was left in plaintiff’s brain where it was discovered, and from which it was removed, on the occasion of the second operation.

The defendant was called as an adverse witness and was asked, “Now, leaving a fragment of cotton in a patient’s skull is not standard operating procedure, is it?”, and responded, “Under certain circumstances you might have to. Not in this case, certainly, not in this case * * The defendant further testified that “This was an accident of the surgical procedure, certainly not done on purpose.” Counsel then asked, “I understand that. I understand that you didn’t do it on purpose. That was never the point. Talking about it being something that you should not have done?” to which the Doctor responded, “Yes sir, it should not happen.”

Dr. Anthony J. Raimondi, a neurosurgeon, testified in behalf of the plaintiff and on direct examination the following questions and answers occurred:

“Q. Should it have been removed from the patient’s skull in toto?
A. Certainly.
Q. And leaving a portion of that cotton ball in the patient was something that should not have been done on the 15th of January, 1970?
A. Yes.”

The doctor also testified that it was standard operating procedure to use cotton balls in this type of surgery (p. 288, vol. III).

During the defendant’s cross-examination of Dr. Raimondi, the following questions and answers appear in the record:

“Q. Let’s assume that you’re ready to close up after doing all these good things, and you have your lighted instrument there and you’re working in a cavity about like that, three inch cavity, I think it was described, that was left after the tumor was removed, and you thoroughly irrigate the whole operative field, and you remove every cotton baH you put in there, and upon visual inspection you don’t see a little piece of a fluffy that someway, somehow, who knows, got out of the operative field.
How would you describe that occurrence as a neurosurgeon?
A. Well, I think you know, and I put it in writing, I considered this surgical accident. Actually, it’s occurred.
Q. Well, assuming that this procedure that I’ve just described, assume Dr. del Castillo did that, did he do anything which in your opinion was negligent or careless, assuming these facts?”

At this juncture there was an objection by the plaintiff that the last question invaded the province of the jury since it went to the ultimate issue. The trial judge overruled the objection and the following appears in the record:

‘WITNESS RAIMONDI: I think it’s difficult for me to—I’m not walking on ice, and legs down one at a time, and I’m not attempting to skirt the question—but it’s difficult for me to address myself directly to negligence without knowing whether he was counting his fluffies as he put them in and counting them as he put them—as he took them out, which is what we do.
Q. Let’s assume for purposes of our involvement here right now that all fluffies that were put in were accounted for, that a whole fluffy wasn’t left in there. I just want you to assume that. I know you don’t know for sure.
A. I don’t.
He was neglectful in getting all of the fluffies out. Now, does that impart to you the judgment of negligence? It does to me. So that it was neglected, all of the cottons were not taken out. (Emphasis added.)
Q. Right. They were not.
Let’s assume that all of the fluffies as near as anybody in that operating room—.
A. Were out.
Q. [Continuing]—were out, and that what we’re talking about is not a fluffy, as such, but a small part, a fragment of a fluffy, and assume that were in the ventricle, the left ventricle, assume the patient is on his right side, head slightly tilted to the back, posterior, and all fluffies, as such, are out, the man is thoroughly syringed out and those lights are in there and you look around and there is nothing to be seen.
Is that what you mean by a surgical accident in your report?
A. Oh, in my report, leaving the fluffy in, a part, is a surgical accident. Clearly, it’s a surgical accident. And I think what you’re asking me is, the surgeon who is in there, who has the responsibility for putting it in and taking it out, you know, and the hole is three inches across. Now, that’s what we’re agreeing to.
Q. Well, just assuming that.
A. That’s what we know. We also know that the fluffy is one inch across to a half inch across, that is, it occupies between a sixth and a third the size of the hole.
Q. In the syringing portion.
A. That’s a surgical accident.
Q. Right.
You’ve read his operative report. Have you not?
A. Yes.
Q. In your opinion did he perform his surgical procedure in standard, customary, recognized, workmanlike, neurosurgeon-type manner?
A. Yes. Surely.”

At the time of allowing the defendant’s motion for directed verdict the trial judge reversed his ruling, made during the course of the trial, and struck the following answer given by Dr. Raimondi:

“He was neglectful in getting all of the fluffies out. Now, does that impart to you the judgment of negligence? It does to me. So that it was neglected, all of the cottons were not taken out.”

In making this ruling the trial judge stated that he relied upon Wawryszyn v. Illinois Central R.R. Co., 10 Ill.App.2d 394, 135 N.E.2d 154, and particularly the following language from that opinion: “We believe it can be said to be the law of this State that neither an expert nor a non-expert witness may give his opinion on an ultimate issue in the case * * *. The question of defendant’s negligence was clearly an ultimate issue in this case.”

We agree that Dr. Raimondi’s answer did indeed constitute an opinion on the ultimate issue in the case. We also note that his prior statement to the effect that he considered this to be “surgical accident” could be said to be an opinion on the ultimate issue in the case.

It also appears that Dr. Raimondi’s definition of a “surgical accident” is subject to interpretation. He testified:

“Now, let me speak to you only from the point of view of a surgeon. Really all I’m saying. During the operation, as you proceed, you encounter a series of events. Some of the events are routine and some of the events aren’t. I referred to this as a surgical accident. Another surgical accident, a blood vessel that breaks and you have to stop it. And another surgical accident is a changing breathing' or cardiac arrest. So that during the operative procedure, these events occur.
# # e
But what happens is that maybe something else occurs that may take your time for a great period of time, may take your attention for just a moment or it may take your attention for five or ten minutes to deal with. Constantly in the unknown as we go ahead. It’s not a programmed procedure.”

It is a fair reading of this testimony that he was defining as a “surgical accident” any unexpected or unanticipated event occurring during the course of an operation. We do not equate this definition as being inconsistent with the view that the unanticipated event involved might have been negligently caused or created.

Dr. Ken B. Smith, Jr., a neurosurgeon, testified that it was accepted proper surgical technique to use cotton balls to control bleeding in the type of surgery performed on the plaintiff. He further testified that he thought it unlikely that the piece of cotton could have remained in the ventricle of the brain because of the amount of irrigation done by Dr. Raimondi. In his opinion the most likely explanation was that the cotton became a part of a blood clot and was invisible for that reason.

The striking of that portion of Dr. Raimondi’s testimony which dealt with the ultimate issue of defendant’s negligence was error. There was no question as to what had occurred. The stricken testimony was directed to whether or not what had ocurred constituted negligence on the part of defendant. Neurosurgery involves techniques and procedures clearly not within the knowledge and understanding of the average person, and Dr. Raimondi’s testimony was admissible. Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co., 49 Ill.2d 118, 273 N.E.2d 809.

In the opinion of Dr. Raimondi, the defendant was negligent; in defendant’s opinion, and in that of Dr. Smith the defendant was not negligent. The evidence raised an issue of fact to be resolved by the trier of fact. Under the evidence and favorable inferences therefrom, reasonable men could have differed as to whether the defendant was negligent in not removing the piece of cotton. Piacentini v. Bonnefil, 69 Ill.App.2d 433, 217 N.E.2d 507.

We therefore reverse and remand for a new trial.

Reversed and remanded.

SMITH, P. J., and CRAVEN, J., concur.


author: Mr. JUSTICE SIMKJNS

text:
    The People of the State of Illinois, Plaintiff-Appllee, v. Joseph H. Burrows, Defendant-Appellant.
    (No. 12352;
    Fourth District
    April 25, 1974.
    John F. McNichols, Deputy Defender, of Springfield, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana, for the People.
   Mr. JUSTICE SIMKJNS

dehvered the opinion of the court:

On July 7, 1972, defendant-appellant Joseph Burrows was convicted of the burglary of the Sidney, Illinois, Dairy Bar in violation of section 19—1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, sec. 19—1). On August 7, 1972, defendant was placed on 3 years’ probation. On November 29, 1972, a motion to revoke defendant’s probation was filed which alleged that defendant had violated the conditions of his probation by committing the burglary of the Community Unit School District No. 7 in Sidney and by committing the burglary of McCarrey’s Garage in Sidney. On December 28, 1972, a hearing was held on the motion to revoke probation, and the court found that defendant had violated the terms of his probation by committing the two burglaries. On January 5, 1973, the court conducted a hearing and sentenced defendant to 2 to 6 years for the underlying burglary offense. On February 7, 1973, defendant filed his notice of appeal.

The Illinois Defender Project moved to withdraw as counsel for defendant, and appended to the motion a brief in conformity with Anders v. California, 386 U.S. 738. The record shows proof of service of the motion was continued to enable the defendant to file additional suggestions, and notice of this opportunity given to him. None were filed.

In discharge of our responsibilities we have examined the record. At the hearing on the motion to revoke probation defendant was represented by an assistant public defender. Over defendants counsel’s objection the State was granted permission to amend their probation revocation petition in order to insert the exact date of the two alleged burglaries as being September 8, 1972. The court stated that the only possible objection to the motion to amend would be that defendant would not be prepared because of inadequate notice. However, the court then asked defendant’s counsel if, despite the amendment, he was ready to proceed. Defendant then stated, “Yes we are, Your Honor.” The record, therefore, discloses that defendant was admittedly adequately prepared and received sufficient notice of the alleged probation violations.

Rex Ollen Rusher testified that on the evening of September 8, 1972, he and defendant broke into McCarrey’s Garage and the Sidney Grade School in Sidney, Illinois. He then testified as to the exact details of these incidents and stated that they stole cigarettes from the principal’s office and money from the pop machine at the school and cigarettes and money from the garage.

The State then introduced evidence of the ownership of the school and the testimony of the school janitor that on the morning of September 9, 1972, he observed that the pop machine at the school had been broken into and the principal’s office had been ransacked. Evidence was also introduced concerning the ownership of the garage, and the lack of authority on defendant’s part to enter the garage.

Virginia Burrows, defendant’s mother, testified that on the evening of September 8, 1972, defendant was home sick from 6 P.M. to 10 P.M. She stated that at about 10 P.M., defendant left to go to a party at the home of his older brother, Carlos Burrows. Carlos testified that defendant attended a party at his house on September 8, 1972. He couldn’t remember the exact time defendant arrived but stated that it was later in the evening. He further stated that defendant came with Rex Rusher and that defendant did not leave the party that evening except to go across the street to buy pop.

Dennis Burrows, another brother of defendant, testified that he was at the party on September 8, 1972, and that Rex Rusher left the party alone at about 10:30 P.M. and returned a little bit after 11 P.M.

Defendant testified that he was in bed sick until 10 P.M. on September 8, 1972, at which time he left to go to his brother’s house for a party, and he didn’t leave the party at all that evening except to get a coke. He also stated that he saw Rusher at the party and that Rusher left around 11 P.M., but he didn’t go with him nor did he commit the burglaries. The court then found defendant to have violated the terms of his probation by committing the two burglaries in question. There was certainly sufficient evidence introduced by the State to support such a conclusion.

On January 5, 1973, the court conducted a sentencing hearing on the underlying offense. Defendant was represented by counsel at the hearing, and counsel acknowledged receiving the presentence report 3 days prior to the hearing. The court also considered a psychiatric report and a clinical record from the Army. The court questioned defendant concerning his background and then sentenced him to 2 to 6 years with credit for the time served in the county jail and on probation. The sentence imposed is within the statutory limits.

We agree that this record discloses no justiciable issue for review and that the appeal is without merit and frivolous. Accordingly the motion of the Illinois Defender Project to withdraw as defendant’s counsel is allowed and the judgment of the trial court is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Petro Brown, Defendant-Appellant.
    (No. 72-339;
    Second District
    May 3, 1974.

      Rehearing denied May 21, 1974.

      William L. Balsley, of Loves Park, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (Robert R. McWilliams, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A jury found the defendant guilty of aggravated battery in violation of section 12—4(b)(6) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 12—4(b) (6)), and he was sentenced to 1 year at the Illinois State Farm at Vandalia.

The defendant contends on appeal that (1) certain of the court’s and State’s Attorney’s comments were prejudicial to him; (2) he was not proven guilty beyond a reasonable doubt; (3) irrelevant and immaterial evidence was admitted; (4) the criminal complaint was insufficient; (5) the statute under which he was convicted is unconstitutionally vague and uncertain; (6) certain instructions, submitted by the State and given by the court over defendant’s objections, were prejudicial; and (7) the sentence was excessive.

Defendant and his wife quarreled on November 9, 1971, and the wife went to their daughter’s home. Defendant followed, was denied entry into the house, broke in the front door, ripped the telephone out and damaged the back door. The police were called and, upon their arrival, defendant was observed with his hands in his pockets standing in the front yard of the home. He stated that he had a gun, was going to shoot them and was not going to be arrested. During efforts to arrest the defendant, one of the four officers was hit in the chest and kicked in the leg; defendant sustained three broken ribs and a bruised eye. He was finally subdued, handcuffed and taken away in a patrol car. No gun was found.

Defendant contends that he was prejudiced by remarks made during trial in that (a) the trial court was critical of defense counsel’s understanding of the law; (b) the court was impatient with the manner in which the defense was conducted; (c) the defense counsel was reprimanded by the court, and (d) the State’s Attorney’s indications of impatience with the defense counsel compounded the alleged prejudiciality of the court’s remarks. Defendant cites 32 separate remarks by the court and 6 by the State’s Attorney, all made in the presence of the jury. It is the State’s position that the statements were either provoked by defense counsel or were not prejudicial and that the mere possibility of prejudice was cured by the cautionary instruction.

Other than the officer’s testimony, there is no direct evidence of defendant striking the officer; defendant denied doing so. Thus, the case turns on whom the jury chose to believe. Should the record indicate that the court showed obvious irritability toward the defense and that the State’s Attorney failed to accord opposing counsel due courtesy, reversal would be required. (People v. Evenow, 355 Ill. 451, 455-56 (1934).) Such actions, in the presence of the jury, may prove a source of prejudice which would deny defendant a fair and impartial trial. (People v. Lewerenz, 24 Ill.2d 295, 300-01 (1962).) In this consideration, however, we are mindful that it would be a dangerous precedent to permit counsel to claim an advantage from statements which the trial court made in response to the invitation or provocation of counsel. People v. Smith, 63 Ill.App.2d 369, 376-77 (1965); People v. Shockey, 66 Ill.App.2d 245, 249 (1966); People v. Smith, 66 Ill.App.2d 257, 262-63 (1966).

An examination of the record reveals that the remarks by the trial court and the State’s Attorney were never directed toward the defendant or the evidence presented. We find that of the 38 allegedly prejudicial comments directed at defense counsel, 33 were not prejudicial and the remaining 5, which in other circumstances may be construed as error, were here provoked by defense counsel. Further, in this case the cautionary instruction (I.P.I.-Criminal 1.01) counteracted any possibility of prejudice posed by the comments.

It is maintained that because the State failed to meet its burden of proof as to the element of bodily harm, defendant was not proven guilty beyond a reasonable doubt. There was direct testimony from the complaining officer that he was struck and kicked by the defendant. Whether this constituted bodily harm is a question for the jury. (People v. Newton, 7 Ill.App.3d 445, 447 (1972).) Even when refuted by the defendant, the testimony of one witness (when that testimony is positive and the witness credible) is sufficient, without corroboration or medical reports, to support a finding that bodily harm did occur. (People v. Holmes, 5 Ill.App.3d 708, 712 (1972).) Here, the witness’ testimony was positive and where the issue turns on the credibility of that witness, a reviewing court will not upset a jury’s finding unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory that it would raise a reasonable doubt as to tire guilt of the accused. (People v. Spears, 106 Ill.App.2d 430, 434 (1969); People v. Nuccio, 54 Ill.2d 39, 51 (1973).) The evidence being sufficient, we find no error with the jury’s determination of guilt.

Defendant alleges that he was prejudiced by irrelevant and immaterial evidence admitted over his objection, such evidence being: (a) an officer’s testimony during the case-in-chief regarding his observations of the condition of the home after defendant’s arrest; (b) the defendant’s testimony on cross-examination concerning events prior to the arrival of the police; (c) rebuttal testimony of defendant’s daughter contravening defendant’s denial of having broken into her house, and the daughter’s criminal complaint introduced into evidence.

“The test of the admissibility of evidence is whether it fairly tends to prove the particular offense charged, and any circumstances may be put in evidence which tend to make the proposition at issue more or less probable.” People v. Peter, 55 Ill.2d 443, 459 (1973).

The officer’s testimony supported a necessary element of the offense, i.e., that the officers were acting in their official capacity. (People v. Bailey, 10 Ill.App.3d 191, 192 (1973).) The testimony concerning the condition of the house was also admissible in that it presented a continuous narrative of the facts at and around the time of the crime. People v. Johnson, 34 Ill.2d 202, 206 (1966); People v. Sanders, 56 Ill.2d 241, 250 (1974); City of Chicago v. Mayer, 56 Ill.2d 366, 369-70 (1974).

On direct examination, the defendant testified that he was only standing in the yard when accosted by the police. Based on this testimony, the State questioned him as to the circumstances which led to his being in the yard. The questions on cross-examination were expositive of defendant’s direct testimony. As a general rule, the latitude allowed in cross-examination is left to the discretion of the trial court and reversal on this ground would only be occasioned by a clear abuse of discretion. (People v. Gallo, 54 Ill.2d 343, 356 (1973).) It was therefore not error to allow the inquiry.

The rebuttal testimony of the defendant’s daughter and the criminal complaint supporting her testimony were properly admitted since they had probative value for the purpose of refuting defendant’s testimony that he was merely standing in the yard prior to arrival of the police. (People v. Daugherty, 43 Ill.2d 251, 254 (1969).) The trial court’s ruMngs on these matters were not in error.

The defendant claims that the complaint was insufficient in that it failed to allege the specific act or acts the defendant committed, that such acts were committed upon the officer, or what official duties the officer was performing at the time of defendant’s alleged acts. The complaint states:

“* tt * That on the 9th day of Nov. 1971, in the County of Winnebago, State of Illinois, Petro Brown committed the offense of AGGRAVATED BATTERY, in that he, knowingly or intentionally and without legal justification committed a battery on CHESTER GAINES thereby causing bodily harm to CHESTER GAINES knowing the said CHESTER GAINES to be a peace officer, or a person summoned and directed by him, or a correctional officer, while such officer was engaged in the execution of any of his official duties including arrest or attempted arrest in violation of Paragraph 12—4(b)(6), Chapter 38, Illinois Revised Statutes.”

The requirements for determining the sufficiency of a criminal complaint are enumerated in the Code of Criminal Procedure. (Ill. Rev. Stat. 1971, ch. 38, par. Ill—3.) Our supreme court has held that to be sufficient a criminal charge must inform the accused of the nature of the charge, “thus allowing him to prepare a defense and to serve as a bar to a future prosecution for the same offense,” and a criminal charge phrased in statutory language is sufficient if the defendant is thereby apprised, with reasonable certainty, of the precise offense charged. (People v. Harvey, 53 Ill.2d 585, 588 (1973).) The instant complaint was framed substantially in the words of the statute and it is not fatally defective for failing to include the matters enumerated by the defendant. We find the complaint was sufficient to enable defendant to prepare his defense and to act as a bar to future prosecution for the same offense. (People v. Grieco, 44 Ill.2d 407 (1970).) We note, too, that a bill of particulars was available to the defendant had he desired more details toward the preparation of his defense.

Defendant contends that the statute under which he was convicted is vague and indefinite, thereby violating the due process clause of both the United States and Illinois constitutions. Such vagueness is specified to be the statutory use of the word “harmed” instead of the words “bodily harm” which, defendant argues, does not make it a certainty that an aggravated battery has been committed if a defendant strikes a police officer without causing “bodily harm."

The statute states that an aggravated battery is committed when:

“(b) A person who, in committing a battery

(6) Knows the individual harmed to be a peace officer, or a person summoned and directed by him, or a correctional officer, while such officer is engaged in the execution of any of his official duties including arrest or attempted arrest; * * *.” Ill. Rev. Stat. 1971, ch. 38, par. 12—4(b) (6).

Battery is defined by section 12—3(a) of the Criminal Code, (Ill. Rev. Stat. 1971, ch. 38, par. 12—3(a).)

“A person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.”

When read together, these statutes adequately explain the “harm” which constitutes the offense of aggravated battery as herein charged. The statute is neither vague nor uncertain. Both the statute and the legislative intent are clear. A simple battery, if knowingly committed on a peace officer engaged in his official duties, is an aggravated battery. This classification is constitutionally permissible. People v. Hanson, 53 Ill.2d 79, 81-82 (1972).

Defendant finds prejudicial error in the giving of certain instructions over his objection. He first complains of the giving of LP.I.-Criminal 11.09, which defined the crime charged, claiming that the complaint alleged “bodily harm” while the instruction stated “harmed” and that this distinction allowed defendant to be found guilty without proof of all the elements in the complaint. The instruction, however, utilized the words of the statute to inform the jury of the applicable law. Any possible difficulty which the jury may have found in understanding the definition of “harmed” was cured by the giving of I.P.I.-Criminal 11.10, which clearly stated that to be found guilty defendant must have caused “bodily harm” to the officer.

“No single instruction is required to state all of the relevant law on a single subject, but it is sufficient that the instructions as a whole adequately inform the jury as to the law.” People v. Campbell, 13 Ill.App.3d 31, 34 (1973).

Defendant finds error in the giving of I.P.I. Criminal 11.09 in that no definition of the term “battery” (used in that instruction) was given. People’s Instruction No. 11, defining “battery”, was withdrawn. The defendant did not tender an instruction defining “battery” but seeks to have us find error in the court’s failure to give the same. The defendant who fails to tender an instruction cannot claim error by the court’s failure to give such instruction. People v. Springs, 51 Ill.2d 418, 424-25 (1972).

It is next maintained that People’s Instructions Nos. 8 and 13 were prejudicial to the defendant in that they introduced new issues not properly before the jury and unduly emphasized improper elements. Instruction No. 8, not an I.P.I. instruction, is a direct quote from the Criminal Code. (Ill. Rev. Stat. 1971, ch. 38, par. 107—5(a) (b) (c).) Instruction No. 13 is I.P.I.-Criminal 24.20, which relates the law as to a private person’s use of force in resisting arrest. These instructions, when taken together and in conjunction with I.P.I. 11.10 (defining the necessary elements to be proved by the State in the crime charged), were properly given. A necessary element of the instant crime is that defendant acted without legal justification. (People v. Gnatz, 8 Ill.App.3d 396, 399 (1972).) Instruction No. 13 informed the jury of defendant’s lack of legal justification. Instruction No. 8 explained the method of arrest in the words of the Criminal Code and was explanatory of the term “arrest” used in Instruction No. 13. Under the circumstances of this case, neither instruction misled nor confused the jury to the prejudice of the defendant. People v. Booker, 378 Ill. 334, 345 (1941).

Pending appeal, we were informed by motion that defendant has completed his sentence. It is therefore unnecessary that we consider the last issue raised.

Judgment affirmed.

GUILD, P. J., and SEIDENFELD, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Gee, Defendant-Appellant.
    (No. 12152;
    Fourth District
    April 25, 1974.

      Rehearing denied May 23, 1974.

    Markowitz, Lawrence, Lenz, Jennings and Naylor, of Bloomington (Harold M. Jennings, of counsel), for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (John A. Beyer, of Circuit Attorney Project, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

This is an appeal from a conviction in a bench tidal of the misdemeanor offense of leaving the scene of an accident involving personal injuries in violation of section 11—401(a) of the Vehicle Code (Ill. Rev. Stat. 1971, ch. 95½, sec. 11—401(a)) and from a sentence imposed of 9 months’ incarceration in the State Penal Farm.

At approximately 1:30 A.M. in Bloomington, Illinois, on August 22, 1971, defendant, Robert Gee, was involved in a hit-and-run incident which resulted in serious personal injuries to Mike Sholty when the latter fell from the bicycle he was riding and was struck by defendant’s automobile. Sholty was pinned under the automobile and was dragged down the street for some distance. The police shortly thereafter found the victim lying in a pool of blood off the side of the road. A criminal complaint was then sworn out by the State’s Attorney charging defendant with leaving the scene of an accident involving personal injuries in violation of section 11—401(a). Defendant was apprehended at approximately 1 P.M. on August 22, 1971, and his car was impounded. Defendant was arraigned on the criminal complaint in case no. 71-9436 on August 23, 1971. Defendant entered a plea of not guilty to the charge and was released on bond.

On July 22, 1972, defendant was arraigned in case no. 72-CM-335 based on an indictment captioned ‘leaving the scene of an accident’ and containing the following language:

“* * * [defendant on August 22,1971] did willfully, unlawfully, and knowingly fail to report to the Bloomington Police Station or to the McLean County Sheriff’s Office his name, address, the registration number of the vehicle he was driving, the names of the occupants if any, and the place, date, and approximate time of an accident in which he was involved; Robert Gee having been the driver of a vehicle involved in an accident at Madison and Monroe Streets in Bloomington, Illinois, which accident resulted in injury to Michael Ray Sholty, and Mr. Gee failed to immediately stop his vehicle at the scene of the accident or as close thereto as possible and failed to return to the accident scene and failed to render to Mr. Sholty reasonable assistance and further failed to leave his name, address and registration number of his vehicle as required by Section 11—403 of Chapter 95V2 Illinois Revised Statutes. By leaving the scene of the accident and failing to report it within 48 hours to the nearest Police Station or Sheriff”s Office, Mr. Gee was in violation of Section 11—401(b) Chapter 95Vz Illinois Revised Statutes 1969.”

Defendant pleaded not guilty to the charge. On July 19, 1972, defendant moved to dismiss the indictment because defendant was subjected to a previous complaint on the same charge. The trial court denied tire motion. On September 19, 1972, defendant was found guilty of the misdemeanor of leaving the scene of an accident involving personal injuries in violation of section 11—401(a) and not guilty of the felony of failing to report an accident involving personal injuries within 48 hours as required by section 11—401(b). On October 13, 1972, the State’s Attorney moved to nolle prosequi the criminal complaint in case No. 71-9436, and the court granted said motion.

On appeal defendant raises three issues: (1) Whether 11—401(a) is a lesser included offense under 11—401(b), (2) Whether the indictment sufficiently charges a violation of 11—401(a), and (3) Whether the nolle prosequi of the criminal complaint after the conviction of the identical offense invalidated the conviction.

Defendant contends that 11—401(a) is not a lesser included offense under 11—401(b). We agree. Section 11—401(a) of the Vehicle Code (Ill. Rev. Stat. 1971, ch. 95½, sec. 11—401(a)) states that “The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident, or as close thereto as possible and shall then forthwith return to, and in every event shall remain at, the scene of the accident until he has fulfilled the requirements of Section 11—403 [detailing the duty to give information and render aid] * ” Section 11—401(b) of the Vehicle

Code (Ill. Rev. Stat. 1971, ch. 95½, sec. 11—401(b)) states that “Any person who has failed to stop or to comply with said requirements shall, within 48 hours after such accident * * * report the place of accident, the date, the approximate time, his name, address, the registration number of the vehicle driven, and the names of the occupants, if any, of such vehicle, at a police station or sheriff’s office near the place where such accident occurred * * Section 2—9 of the Criminal Code

(Ill. Rev. Stat. 1971, ch. 38, sec. 2—9) states that an included offense means an offense which

“(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged # a #

It is clear from a reading of 11—401(a) and 11—401(b) that they are offenses which are established by proof of different facts, and an individual could violate (a) and not violate (b) and vice versa. Furthermore, the First District case of People v. Harvey, 5 Ill.App.3d 499, 285 N.E.2d 179, contains language implying that section 11—401(a) is not a lesser included offense of section 11—401(b), although that court did not so hold:

“Defendant’s contention * * * that the imposition of multiple sentences was error since all the offenses arose from the same conduct is untenable. The single common factor among them is that they all relate to the defendant’s having operated a motor vehicle. (See People v. Adams (1969), 113 Ill.App.2d 276, 252 N.E.2d 65.) The offense of driving while license revoked was a continuing offense. The offense of leaving the scene of an accident could not be committed until all of the acts upon which the charge of involuntary manslaughter rests were complete. Similarly, the offense of failure to report an accident was not complete until 48 hours following the occurrence.” (Emphasis added.) 5 Ill.App.3d 499, 507, 285 N.E.2d 179.

Likewise, in the present case the only common conduct between the offenses is that they relate to defendants’ operation of a motor vehicle. Section (a) is, therefore, not a lesser included offense of section (b).

It is not clear from the record whether the trial judge thought (a) to be a lesser included offense of (b) or not. Nothing was stated in that regard throughout the trial, and the trial judge did specifically find defendant guilty of one section and not guilty of the other. However, the lesser included offense contention was argued to the court by the State in their closing argument. Nevertheless, even if the court erred in that regard, the critical issue is whether the indictment sufficiently charged a 11—401 (a) offense so as to vitiate the error and adequately inform defendant of the charges against him.

The captioned portion of the indictment expressly states Heaving the scene of an accident.” The charging portion of the indictment refers to the incident in question, names the defendant and the victim, and quotes almost directly from the statutory language of 11—401(a) in stating that defendant “* * * failed to immediately stop his vehicle

at the scene of the accident or as close thereto as possible and failed to return to the accident scene and failed to render Mr. Sholty reasonable assistance and further failed to leave his name, address and registration number of his vehicle as required by Section 11—403 of Chapter 95½ * * The only element omitted is that section 11—403(a) was not cited. In People v. Robinson, 7 Ill.App.3d 704, 706, 288 N.E.2d 484, this court stated:

“Paragraph 111—3, ch. 38, Ill. Rev. Stat. 1969, with reference to form, requires that a charge shall be in writing and allege the commission of an offense by stating the name of the offense and citing the statutory provision alleged to have been violated. An indictment or information otherwise valid that is defective in that it does not cite the statutory provision alleged to have been violated is not thereby rendered void. * * * Such omission while error does not vitiate the indictment.” (Citations omitted.)

Hence, the fact that 11—401 and not 11—401(a) is cited in the indictment does not render void an otherwise sufficient indictment which properly charges defendant with an 11—401(a) violation. Furthermore, the fact that the same count of the indictment also alleges an 11—401(b) violation does not void the indictment. In People v. Barrett, 405 Ill. 188, 90 N.E.2d 94, it was held that separate offenses arising out of the same transaction may be charged in the same count of an indictment.

Defendant finally contends that the nolle prosequi of the criminal complaint in case no. 71—9436 voided defendant’s conviction because defendant was convicted of the identical offense he was charged with in the criminal complaint. We see no merit to this argument. The charge that was nolle prosequi was a separate and independent charge from that which defendant was convicted upon. Secondly, this was merely an administrative action to clear the books in regard to defendant. Thirdly, it is obvious that the doctrine of double jeopardy would preclude the State from any further proceedings in regard to the identical misdemeanor complaint in case no. 71—9436.

For the reasons stated above the judgment of the trial court finding defendant guilty of violating section 11—401(a) is hereby affirmed.

Judgment affirmed.

SMITH, P. J., and CRAVEN, J., concur.


author: Mr. JUSTICE DRUCKER

text:
    Mary Lee McReynolds, Plaintiff-Appellee, v. The Civil Service Commission et al., Defendants-Appellants.
    (No. 58731;
    First District (5th Division)
    April 11, 1974.

      William J. Scott, Attorney General, of Chicago (Paul J. Bargiel, Assistant Attorney General, of counsel), for appellants.
    Richard F. McPartlin, of Chicago, for appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiff filed a complaint under the provisions of the Administrative Review Act to review the finding of discharge by the Civil Service Commission. The circuit court reversed the Civil Service Commission on the basis that the Commission lost jurisdiction of the case by failing to hold a hearing within 30 days after the date notice was received from plaintiff requesting a hearing. Defendants appeal arguing that the 30-day requirement is directory only.

Plaintiff was suspended without pay as an employee of the Department of Mental Health of the State of Illinois on January 11, 1972. A notice of discharge was served on plaintiff by registered mail on January 26, 1972. A written request by plaintiff for a hearing was received by the Civil Service Commission on February 2, 1972, and a hearing was scheduled for March 21, 1972. The hearing was continued, at defendants’ request, to March 29, 1972. After the hearing, the hearing officer’s recommendation that plaintiff be discharged as an employee of the State of Illinois was adopted by the Civil Service Commission. Plaintiff’s motion before the hearing officer to dismiss the charges because the hearing was scheduled beyond the 30-day limit was denied. It is admitted that the hearing was scheduled and held 47 days after plaintiff requested it.

The sole question in this case involves the construction to be given to section 11 of the Personnel Code (Ill. Rev. Stat. 1971, ch. 127, par. 63b111), which provides:

“No officer or employee under jurisdiction B, relating to merit and fitness, who shall have been appointed under the rules and after examination, shall be removed or discharged, demoted, or suspended for a period of more than 30 days, except for cause, upon written charges approved by the Director of Personnel, and after an opportunity to be heard in his own defense if he makes written request to the Commission within fifteen days after the serving of the written charges upon him. Upon the filing of such a request for a hearing, the Commission shall grant a hearing within thirty days. The time and place of the hearing shall be fixed by the Commission, and due notice thereof given the appointing officer and the employee. The hearing shall be public, and the officer or employee shall be entitled to call witnesses in his own defense and to have the aid of counsel. The finding and decision of the Commission or officer or board appointed by it to conduct such investigation, when approved by said Commission, shall be certified to the Director, and shall be forthwith enforced by the Director. In making its finding and decision, or in approving the finding and decision of some officer or board appointed by it to conduct such investigation the Civil Service Commission may, for disciplinary purposes, suspend an employee for a period of time not to exceed 90 days, and in no event to exceed a period of 120 days from the date of any suspension of said employee, pending investigation of such charges. If the Commission certifies a decision that an officer or employee is to be retained in his position and if it does not order a suspension for disciplinary purposes, the officer or employee shall receive full compensation for any period during which he was suspended pending the investigation of the charges.
Nothing in this Section shall limit the authority to suspend an employee for a reasonable period not exceeding 30 days.” (Emphasis supplied.)

The precise question for our determination is whether the word "shall," found in the emphasized phrase above, should be given a mandatory or directory construction.

OPINION

In arguing the issue before us, both parties have cited and discussed certain general rules of statutory construction. There is no universal rule which will differentiate between mandatory and directory provisions of a statute. (Zbinden v. Bond County Community Unit School District No. 2, 2 Ill.2d 232, 117 N.E.2d 765; People ex rel. Milburn v. Huston, 267 Ill.App. 395.) The court must look to the legislative intent (Teece v. Boyle, 345 Ill.App. 88, 102 N.E.2d 347.) and to the other provisions in the act; the objects of the provisions in question must be taken under consideration; and the language used in the act must also be scrutinized. (Lawton v. Sweitzer, 354 Ill. 620, 188 N.E. 811.) Although it has been decided that the word "shall” has no exclusive, fixed or inviolate connotation (Cooper v. Hinrichs, 10 Ill.2d 269, 140 N.E.2d 293.) words found in a statute should be given their ordinary and usual meaning. La Salle National Bank v. Village of Burr Ridge, 81 Ill.App.2d 209, 225 N.E.2d 33.

In People v. Jennings, 3 Ill.2d 125,127,119 N.E.2d 781, the supreme court, when faced with an issue of statutory construction, cited language from French v. Edwards, 80 U.S. (13 Wall.) 506, 20 L.Ed. 702, which quotation is particularly appropriate to the instant case:

‘“There are, undoubtedly, many statutory requisitions intended for the guide of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the requisitions ineffectual. Such, generally, are regulations designed to secure order, system and dispatch in proceedings, and by a disregard of which the rights of parties interested cannot be injuriously affected. Provisions of this character are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory but mandatory. They must be followed or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise/ ”

The expressed purpose of the Personnel Code (Ill. Rev. Stat. 1971, ch. 127, par. 63b101 et seq.) is to establish a system based on merit principles and scientific methods. (Ill. Rev. Stat. 1971, ch. 127, par. 63b102.) In furtherance of this purpose and to insure better qualified public employees, it was deemed necessary to give employees certain procedural protections when they were being considered for discharge, demotion or suspension. Defendants admit in their brief that the object of this statute is to provide a timely hearing and a speedy adjudication of disciplinary charges. They concede that it “would be unfair to keep a suspended employee in limbo pending a disciplinary hearing,” and we think it obvious that the statute also insures that unqualified employees or employees who should be discharged for just cause should be separated from public service as quickly as possible so that the State will not suffer from their continued retention.

Section 11 of the Personnel Code (Ill. Rev. Stat. 1971, ch. 127, par. 63b111), serves to effectuate the above stated goals. It provides, inter alia, for notice, written charges, a public hearing, the right to call witnesses and for the aid of counsel. This section also sets up certain time Mmitations which insure not only fairness to the employee but serve to prevent the employee from suffering monetary injury.

In analyzing how these time limitations protect the employee, we think it important to keep in mind that there should be as short a period as possible in which an employee’s status is uncertain. Not only will this serve to guard against any undue anxiety being placed on the employee, but it will enable the employee to formulate plans for the future. Beyond these more elusive types of considerations, an employee derives certain direct pecuniary protections from the statute. Upon receipt of the approved charges for discharge, or on the effective date thereof, if the discharge is for disciphnary purposes, all benefits and salaries of the employee are terminated. Therefore, during the subsequent period of appeal to the Commission and later for judicial review, the employee will be deprived of any income. If the employee’s discharge was warranted, no claim wffl be allowed for back salary for any period after the 30-day suspension period. (People ex rel. Cotter v. Conlisk, 17 Ill.App.3d 346, 308 N.E.2d 1.) Therefore, in order for an employee to begin earning a livelihood again, he should be informed as soon as possible if he has to seek other employment. If on the other hand the discharge is found to be unwarranted and the employee seeks back salary, the State will still be able to allege certain defenses and set-offs, among which are mitigation of damages by subtracting income the employee received from outside work and payments to a de facto employee. (People ex rel. Hilger v. Myers, 114 Ill.App.2d 478, 252 N.E.2d 924; People ex rel. Trapp v. Tanner, 10 Ill.App.2d 155, 133 N.E.2d 526.) Thus, by setting a time Hmitation, possible monetary injury to the employee is held to a minimum.

The language of the statute also lends itself to a mandatory construction. The word “shall” ordinarily connotes a command. “Shall” is used in several other sentences of the Act where procedural due process requirements, such as the holding of a public hearing, are mandated. A word used several times in a statute is presumed to have the same meaning. (Lawton v. Sweitzer, 354 Ill. 620, 188 N.E. 811.) Later on in the statute the legislature used the word “may” when defining the period of time the Commission may suspend an employee for disciphnary purposes. This word with its usual directory connotation could have been but was not used with regard to the time for a hearing.

Defendants argue that the recent amendment to the statute, which did not become effective until May 27, 1972, demonstrates that a directory meaning was intended. The amendment added the phrase:

“The finding and decision of the Commission, or the approval by the Commission of the finding and decision of the officer or board appointed by it to conduct such investigation, shall be rendered within 60 days after the receipt of the transcript of the proceedings. If the finding and decision is not rendered within 60 days after receipt of the transcript of the proceedings, the employee shall be considered to be reinstated and shall receive full compensation for the period for which he was suspended.” (Ill. Rev. Stat. 1971, ch. 127, par. 63b111.)

Defendants contend that this amendment which sets out the consequences if a decision is not rendered within 60 days indicates an intention by the legislature that the 30-day period within which to hold a hearing be directory. It is our view that this amendment rather than supporting defendants’ theory supports the conclusion that a mandatory construction was intended. Before the amendment there existed a loophole in the time frame intended by the legislature. In other words, instead of an employee being able to determine his status without undue delay, the Commission could delay this determination for an unspecified amount of time. Now, with the amendment, this situation is no longer possible.

Finally, defendants argue that Horan v. Foley, 39 Ill.App.2d 458, 188 N.E.2d 877, is direct precedent that the 30-day period is directory only. In Horan the hearing was originally scheduled 31 days after the date of suspension although the statute specified a 30-day period. Before the 30-day period had elapsed, the Commission rescheduled the hearing for a date within the 30-day period. The court found that there was no prejudice by the rescheduling, and since the hearing was rescheduled to be held within the 30-day period, the Commission did not lose its jurisdiction. The court in Horan never was asked to determine the question now before us, and we therefore cannot deem it controlling. We have found that a similar type of time limitation has been construed as mandatory. Johnkol, Inc. v. License Appeal Com., 42 Ill.2d 377, 247 N.E.2d 901.

Reading the statute as a whole, and taking into consideration the general purpose of the Act, the object of the specific provision in question, the language of the statute, and the consequences of the different possible constructions, we find that a disregard of this requirement could be detrimental to an employee, and that the legislature intended the 30-day period to be a mandatory requirement. The judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.