author: Mr. PRESIDING JUSTICE McNAMARA

text:
    Lada Svrcek, Ex’rx of the Estate of Leo Svrcek, Deceased, Plaintiff-Appellant, v. Fred Kudlata, Ex’r of the Estate of Bessie Jiskra, Deceased, Defendant-Appellee.
    (No. 59132;
    First District (3rd Division)
    November 7, 1974.

      Angelos & Angelos, of Chicago (James M. Murray, of counsel), for appellant.
    Arnold and Kadjan, of Chicago (Daniel N. Kadjan and Edward T. Graney, of counsel), for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Lada Svrcek, as executrix of the estate of Leo Svrcek, her husband, filed a wrongful death action in the circuit court of Cook County against Fred Kudlata, as executor of the estate of Bessie Jiskra, seeking damages for her husband’s death caused as a result of an automobile collision involving autos driven by Mrs. Jiskra, in whose auto Leo Svrcek was riding, and by a William Heise, Jr. Plaintiff's complaint was in three counts: the first count charged that Leo Svrcek had been a “passenger” in the auto and that Bessie Jiskra had driven in a negligent manner; the second count alleged that Leo Svrcek had been a “guest” in the auto and that Bessie Jiskra was guilty of wilful and wanton conduct in the manner she had driven her auto; the third count sought recovery under the family expense statute. (Ill. Rev. Stat. 1967, ch. 68, par. 15.) At the close of plaintiff’s case, the trial court granted defendant’s motion for a directed verdict in his favor on the first two counts. The record is silent as to the resolution of the third count. After her post-trial motions were denied, plaintiff brought this appeal. Although Heise and Arrow Petroleum Company, the owner of the Heise vehicle, had their cause of action against defendant consolidated with that of plaintiff at trial, only the Svrcek appeal is before us.

Both Bessie Jiskra and Leo Svrcek died after the collision and prior to trial. Heise, apparently the only other occurrence witness, was precluded from testifying at trial on the basis of the Illinois Dead Man’s Act. (Ill. Rev. Stat. 1971, ch. 51, par. 2, amended, Ill. Rev. Stat. 1973, ch. 51, par. 2.) Consequently, plaintiff was compelled at trial to depend upon the pleadings in the case and reasonable inferences from the physical evidence found at the scene of the collision to reconstruct what had occurred.

Through the pleadings the parties admit that at approximately 1:30 P.M. on October 16, 1968, Mrs. Jiskra was proceeding south, and Heise was driving north, on Harlem Avenue, approaching 19th Street, a public highway running in an east and west direction, in the City of Berwyn. Svrcek was riding in the Jiskra auto. The two vehicles collided. Mrs. Jiskra died 2 hours after the collision without having regained consciousness. Mr. Svrcek was taken to a hospital where he died 2 months later. There is no issue as to Svrcek’s contributory negligence.

In addition to the pleadings, Wilbur Koop, a Berwyn police officer with 19 years’ experience, testified that he was called to the scene to investigate. The weather was clear. Upon arriving at the scene, Koop discovered that both autos had come to rest on the opposite sides of Harlem Avenue from which they had been travelling. The Jiskra vehicle had smashed head-on against tire northwest comer of a building located on the east side of Harlem Avenue. The vehicle was pointed in a southeast direction. The Heise vehicle was found in the southbound lane of Harlem straddling the center lane and facing southwest. The rear left side of the Heise vehicle had sustained damage, and parts normally attached to the undercarriage were missing. The condition of the vehicles, including the steering and brakes, was found to be good.

Officer Koop noted an undisturbed accumulation of dirt in the northbound lane which was not present elsewhere in the immediate area. In Koop’s opinion, this spot marked the point of impact, with the deposit coming from the undercarriages of the vehicles upon collision. Although there were no skid or gouge marks, Koop noticed a track mark in the shape of a sharp curve leading from the dirt to the southbound lane. Koop asserted this mark was caused by the rear wheels of Heise’s auto making a sharp turn against their normal direction. Parts of an automobile were located in the east parkway of Harlem, and wheel marks were seen on the sod nearby, 35 feet from the Jiskra automobile. Although there were no wheel marks leading from the dirt to the building struck by the Jiskra vehicle, the dirt, wheel marks on the sod, and building connected in an imaginary straight line. The officer noticed no debris in the southbound lane of Harlem.

On cross-examination, Koop testified that he had no knowledge that the unattached vehicle parts on the east parkway belonged to the Heise auto. He also had no way of knowing whether the parts could have landed on the parkway as a result of the collision or whether they could have been moved there by one of the onlookers milling around the curb. Although the officer denied the possibility that the dirt accumulation could have marked the place of impact of more than one accident, he stated that he lacked certain knowledge of the exact source of the deposit of debris.

Since at the time of this occurrence the traditional Illinois guest statute was still in full force and effect, plaintiff offered two witnesses in an attempt to prove that Svrcek held a “passenger,” nonguest status during his ride in the Jiskra vehicle.

Mary Gregor testified that she had been a good friend and neighbor of Mrs. Jiskra and the Svrceks. In the 4- to 5-year interval between the death of Mr. Jiskra and the date of this accident, the witness observed Svrcek come to the Jiskra home on a regular basis and perform manual chores around the house. He cut grass, raked leaves, and shoveled snow. Moreover, Svrcek would drive Mrs. Jiskra to the store “once a week, every week,” and, upon returning to the Jiskra home, bring her groceries into the house. On the date of the collision Mrs. Jiskra was 72 years old.

The witness further testified that on the date of the accident, while outside of her house, she saw Mrs. Jiskra back her auto out of the driveway and Svrcek enter on the passenger side. Mrs. Jiskra then called out to the witness through the open car window that “they were going to Hillman’s and that Mr. Svrcek would help her with her shopping.” It was the first time Miss Gregor had ever seen Mrs. Jiskra drive an auto.

Defendant’s counsel did not cross-examine Miss Gregor, but moved to strike all of her testimony on the ground of relevancy. The judge granted the motion and instructed the jury to disregard Miss Gregor’s testimony. Trial was then recessed for the day.

On the following morning, plaintiffs counsel asked the trial judge in chambers to reconsider his ruling. The judge stated that he had erred in striking all of the testimony, and that he had been “premature” in striking Miss Gregor’s statement of what Mrs. Jiskra had allegedly told her as the latter was driving' away. The judge stated that he would reserve a ruling on defendant’s motion as to the purported Jiskra statement until all the evidence was introduced.

Lada Svrcek, the plaintiff, testified that her husband retired from his maintenance job at a bank on January 1, 1968. He was 62 years of age at that time. The wife then gave testimony relating to damages.

After that testimony, plaintiff’s counsel sought to elicit testimony from Lada concerning the nature of the relationship between her husband and Mrs. Jiskra. In so doing, counsel attempted to circumvent the preclusion-ary effect of the Dead Man’s Act on the basis that defense counsel had waived the Act’s protection in his opening statement to the jury. In that statement defense counsel had asserted that Svrcek and Mrs. Jiskra had been good friends; that Svrcek had performed a courtesy to his friend by accompanying her to the store; and that Svrcek was a beneficiary under Mrs. Jiskra’s will. The trial court ruled that the opening statement of defense counsel did not constitute a waiver of the Dead Man’s Act, and on that basis, would not permit plaintiff to testify as to her husband’s relationship with Mrs. Jiskra. Plaintiff’s counsel made a detailed offer of proof that plaintiff would testify that her husband was paid by Mrs. Jiskra for accompanying her to the store and taking care of the lawn.

When plaintiff rested, defendant moved for a directed verdict. The judge first stated that he was reversing his earlier ruling striking Miss Gregor’s testimony. He then held that plaintiff had not met her burden of establishing a nonguest status for Svrcek, stating that the statement by Mrs. Jiskra to Miss Gregor was so “apparently improbable” that he doubted that it had ever been made and, even if it had been made, was too “uncertain, unclear, not precise, vague [and] ambiguous” to take the case out of the guest statute. The judge also stated that the evidence was insufficient to show negligence, although he had earlier remarked in chambers that “there is evidence of negligence.” The trial judge then directed a verdict in favor of defendant.

The guest statute applicable at the time of this occurrence provided in part as follows:

“No person riding in or upon a motor vehicle * * * as a guest without payment for such ride * * * nor his personal representative in the event of the death of such guest, shall have a cause of action for damages against the driver or operator of such motor vehicle * * * for injury, death or loss, in case of accident, unless such accident shall have been caused by the wilful and wanton misconduct of the driver or operator * 9 * and unless such wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.” (Ill. Rev. Stat. 1967, ch. 95%, par. 9 — 201, amended, Ill. Rev. Stat. 1971, ch. 95%, par. 10 — 201.)

The rationale of the act was that there should be a difference between the liability of the person who, out of the generosity of his heart, renders a gratuitous service to his fellow traveler over one rendering such service for hire. (Clarke v. Storchak (1943), 384 Ill. 564, 52 N.E.2d 229, app. dism. 1944, 322 U.S. 713.) The occupant assumes the burden of proving his status of passenger rather than guest at the time of the accident. (Leonard v. Stone (1942), 381 Ill. 343, 45 N.E.2d 620.) The determination- of who is a guest is dependent upon the facts of each case (Miller v. Miller (1946), 395 Ill. 273, 69 N.E.2d 878), ever mindful that the statute is in derogation of the common law and hence is to be strictly construed. (Summers v. Summers (1968), 40 Ill.2d 338, 239 N.E.2d 795.) If the carriage tends to promote the mutual interests of tire driver and occupant, or is performed primarily for the attainment of some objective or purpose of the operator, the passenger is not a guest with'n the meaning of the statute. (Connett v. Winget (1940), 374 Ill. 531, 30 N.E.2d 1.) Renefit can be conferred by other than the expenditures of money. See Gass v. Carducci (1962), 37 Ill.App.2d 181, 185 N.E.2d 285.

We recognize that we can sustain the action of the trial court in directing a verdict for defendant at the close of plaintiff’s case only where “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 & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.

Under that criteria, we conclude that the trial court erred in ruling that as a matter of law the evidence did not make out a prima facie case of “passenger” status for Leo Svrcek and of negligence on the part of Ressie Jiskra.

We consider initially the evidence adduced as to Svrcek’s status in the vehicle. Mary Gregor testified that not long after Mr. Jiskra’s death some years prior to the accident in question, Svrcek began coming over to the Jiskra home on a regular basis and performing manual chores. She further testified that Svrcek drove Mrs. Jiskra to the store “once a week, every week” and, upon returning, would bring groceries into the home. While the witness never stated that she had seen Mrs. Jiskra pay Svrcek for his services, she likewise never suggested that his chores were performed as mere social courtesies for Mrs. Jiskra.

This background adds additional force to Miss Gregor’s testimony that on the day in question, Mrs. Jiskra called out to her from her open car window that Svrcek and she “were going to Hillman’s and that Mr. Svrcek would help her with her shopping.” There is noth'ng in the statement making it inherently implausible or improbable. Defense counsel did not cross-examine the witness and thus the testimony stands uncontrad'.cted. Viewed under Pedrick, the jury could reasonably infer that Svrcek’s presence in the vehicle was primarily and solely to aid the operator in her shopping and driving, and not to fulfill unspecified and unsupported social amem'ties. (See Davidson v. Pugh (1971), 1 Ill.App. 3d 670, 274 N.E.2d 205; Justice v. Justice (1969), 114 Ill.App.2d 254, 252 N.E.2d 493.) Thus, Miss Gregor’s testimony was sufficient to establish a prima facie case at that point in the trial that Svrcek rode with Mrs. Jiskra as a passenger on the day in question.

We deem it unnecessary to consider whether defense counsel’s reference to the relationship purportedly existing between the Svrceks and Mrs. Jiskra acted as a waiver of the preclusionary effect of the Dead Man’s Act in the present trial. Defense counsel insisted at trial that his remarks constituted a proper response to plaintiff’s counsel’s opening statement concerning the relationship between the parties. Since each attorney argues that the other “opened the door,” we presume that in a new trial both sides intend to be careful not to make any statement or adduce any testimony which might operate as a waiver of the Dead Man’s Act.

We next consider whether the trial court erred in ruling as a matter of law that the plaintiff did not prove a prima facie case of Mrs. Jiskra’s negligence. Under Pedrick, we hold that the court did so err.

Officer Koop, a veteran of 19 years as a police officer, testified that, upon his arrival at the scene, both vehicles were on the opposite sides of the street from which they had been travelling. Although only the Heise vehicle was found on the southbound lane of Harlem Avenue, various kinds of debris were seen on the northbound lane. An undisturbed accumulation of dirt, unlike anything else in the immediate area, was noticed in the lane. Sharp, curved track marks leading from the dirt to the southbound lane of Harlem Avenue indicated to the officer that the rear tires of the Heise vehicle had been turned in an unusual direction. The officer further testified that since a collision involving two vehicles usually causes a deposit of dirt from the undercarriages of the autos, it was his opinion that the dirt represented the point of impact. Track marks found on the sod of the east parkway were in a line with the dirt and the corner of the building into which the Jiskra vehicle crashed.

While we express no opinion as to the conclusiveness of the evidence, the defendant should have borne the burden of going forward. The officer was qualified to testify as he did. (Thomas v. Cagwin (1983), 43 Ill.App.2d 336, 193 N.E.2d 233; Siebens v. Konicek (1969), 108 Ill.App. 2d 300, 247 N.E.2d 453.) The circumstantial evidence was not so slight as to render the issue of negligence one of speculation. If the jury were to reasonably infer from the evidence that the accident occurred in the northbound lane of Harlem, under Illinois law a presumption of negligence as to the Jiskra veh-'cle would be created. Calvetti v. Seipp (1967), 37 Ill 2d 596, 227 N.E.2d 758.

Thus, we hold that the trial court erred in directing judgment for defendant on the first count of plaintiffs complaint at the close of plaintiffs case.

Since the case will be remanded for a new trial, we must consider the correctness of the trial court’s act'on in directing a verdict for the defendant on the wilful and wanton count.

In the present case, both vehicles were found on the wrong sides of the street. No evidence was adduced as to the speed of the vehicles. No testimony was given as to the distance from the center line that the accumulation of dirt, the claimed point of impact, had been noticed. Since a wilful and wanton injury must have been intentional or committed under circumstances exhibiting a reckless disregard for the safety of others (Klatt v. Commonwealth Edison Co. (1965), 33 Ill.2d 481, 211 N.E.2d 720), the lack of such evidence in the present case clearly and convincingly demonstrates that, under Pedrick, the trial court correctly directed a verdict in favor of defendant as to plaintiffs wilful and wanton count.

Plaintiff cites two cases, Larson v. Harris (1967), 38 Ill.2d 436, 231 N.E.2d 421, and Turner v. Ovall (1970), 132 Ill.App 2d 273, 264 N.E.2d 839, in support of her theory that she had established a prima facie case under the wilful and wanton count. However, both cases are clearly distinguishable from the instant case. The only similarities in those cases with the one at bar are the absence of affirmative evidence of the conduct of the drivers and the lack of competent eyewitnesses. Although defendant’s vehicle in Larson was also found on the “wrong” side of the street from which it was travelling, in that case only one vehicle was involved in the accident. In the present case, both vehicles were found on the "wrong” side of the street. In Turner, there was evidence that the vehicle involved in the accident veered on and off the road, skidded, struck guard rails, travelled in the air, and was driven at an excessive rate of speed prior to the collision.

The third count of the complaint seeks recovery on the basis of the family expense statute and, accordingly, is bottomed on the negligence count. Since we are reversing the trial court’s ruling directing a verdict on the negligence count and remanding it for a new trial, the third count may also be reinstated.

For the reasons stated, the judgment of the circuit court of Cook County in directing a verdict on count two, the wilful and wanton count, is affirmed. The judgment of the court in directing a verdict for defendants on counts one and three of the complaint is reversed and remanded for a new trial.

Affirmed in part; reversed in part and remanded.

DEMPSEY and MEJDA, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John R. Legg (Impleaded), Defendant-Appellant.
    (No. 59352;
    First District (3rd Division)
    November 7, 1974.

      James J. Doherty, Public Defender, of Chicago (Judith A. Stewart and Ira Churgin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Ricky L. Petrone, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE DEMPSEY.

text:
    The People of the State of Illinois, Respondent-Appellee, v. Lorenzo Wayne Williams, Petitioner-Appellant.
    (No. 59427;
    First District (3rd Division)
    November 7, 1974.

      Paul Bradley and James R. Streicker, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John F. Brennan, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE DEMPSEY.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anthony L. Weeks, Defendant-Appellant.
    (No. 59907;
    First District (3rd Division)
    November 7, 1974.

      James J. Doherty, Public Defender, of Chicago (Suzanne M. Xinos, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and James R. Kavanaugh, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE DRUCKER

text:
    The People of the State of Illinois, Petitioner-Appellee, v. Robert Pembrock, Respondent-Appellant.
    (No. 59415;
    First District (5th Division)
    November 8, 1974.

      Robert H. Smith, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, both Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

This appeal arises from a judgment finding defendant to be a “sexually dangerous person” and appointing the Director of Corrections his guardian. Defendant contends that (1) the standard of proof for commitment under the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1971, ch. 38, par. 105 — 1 et seq.) must be proof beyond a reasonable doubt, not a preponderance of the evidence; (2) substantial differences exist between commitment proceedings brought under the Sexually Dangerous Persons Act and those brought under the Mental Health Code (Ill. Rev. Stat. 1971, ch. 91%, par. 1 — 1 et seq.), and this constitutes a violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution; (3) he should have been afforded certain procedural rights available to defendants in criminal prosecutions; (4) the Sexually Dangerous Persons Act is constitutionally void for vagueness and over-breadth; and (5) he was denied certain statutory and constitutional rights due to the fact that his trial counsel stipulated to the admission into evidence of psychiatric reports.

There is no dispute as to the facts. On September 19, 1972, defendant was arrested and charged with the crime of indecent liberties with a child (Ill. Rev. Stat. 1971, ch. 38, par. 11 — 4(a)(2)). Subsequently, on October 6, 1972, the State filed a petition pursuant to section 1.01 et seq. of the Sexually Dangerous Persons Act (Ill. Rev. Stat. 1971, ch. 38, par. 105 — 1.01 et seq.) requesting that the court declare defendant to be a sexually dangerous person. Pursuant to section 4 of the Act (Ill. Rev. Stat. 1971, ch. 38. par. 105 — 4), the court ordered two psychiatrists of the “Psychiatric Institute of the Municipal Court of Chicago” to examine defendant and file reports on their findings. On November 6, 1972, a hearing was held on the State’s petition at which defendant, through court appointed counsel, waived his right to a jury (see Ill. Rev. Stat. 1971, ch. 38, par. 105-5) and stipulated into evidence the reports of the psychiatrists. Both reports included summaries detailing the psychiatrists’ interviews with defendant, and both reports recommended that he be declared a sexually dangerous person. The court so found and, pursuant to section 8 of the Act (Ill. Rev. Stat. 1971, ch. 38, par. 105-8), appointed the Director of Corrections to be defendant’s guardian. Defendant is currently confined in the State Penitentiary at Menard.

Opinion

The State argues that at defendant’s commitment hearing it was required to and did prove its case by a preponderance of the evidence as required in civil cases. Defendant contends that he was denied due process of law in that his involuntary commitment was ordered without his having been proved a sexually dangerous person beyond a reasonable doubt.

The State urges that we must reject defendant’s contention since proceedings under the Sexually Dangerous Persons Act are characterized as civil in nature (Ill. Rev. Stat. 1971, ch. 38, par. 105-3.01). However, it asserts that in the interests of “consistency” a standard of proof of “clear and convincing evidence” should be applied to these proceedings as it is in those brought under the Mental Health Code. See People v. Sansone, 18 Ill.App.3d 315, 309 N.E.2d 733.

The United States Supreme Court in In re Gault, 378 U.S. 1, and in In re Winship, 397 U.S. 358, held that the distinction between “criminar and “civil” proceedings provided an unpersuasive excuse for affording lesser safeguards to juveniles in delinquency proceedings than are given adults charged with violations of the criminal law. The requirements of due process are determined by the nature of the interests which are affected by the proceedings and not by the descriptive label applied to them. See Lessard v. Schmidt (E.D. Wis. 1972), 349 F. Supp. 1078; People v. Capoldi, 37 Ill.2d 11, 225 N.E.2d 634.

Winship focused specifically upon the issue of the standard of proof required where an individual stands in jeopardy of being placed in institutional confinement. The Supreme Court explicitly stated for the first time that the reasonable doubt standard is constitutionally required in criminal cases and went on to hold that since a juvenile in a delinquency proceeding, like a criminal defendant, is threatened with loss of liberty and “stigmatization,” this standard applies in such situations as well even though the proceedings are characterized as “civil.” The court further found that the reasonable doubt standard reduces the risk of erroneous conviction, engenders respect and confidence in the law and helps alleviate the severe disadvantages of the defendant in his confrontations with the State and that, moreover, the adoption of this standard would not destroy the “beneficial aspects of the juvenile process.” Winship at 366; see Developments in the Law — Civil Commitment of the Mentally Ill, 87 Harv. L. Rev. 1190, 1295.

Relying heavily on Winship, the Federal District Court in Stachulak v. Coughlin (N.D. Ill. 1973), 369 F. Supp. 628, has recently held that the reasonable doubt standard is required in proceedings brought pursuant to the Sexually Dangerous Persons Act. Although we are not bound by the decision of Federal district courts (People v. Stansberry, 47 Ill.2d 541, 268 N.E.2d 431) we are convinced of the soundness of the Stachulak holding. There the plaintiff, committed under the Sexually Dangerous Persons Act, brought a habeas corpus action. The court found his case to be indistinguishable from Winship. It further noted that “[i]n the present case, as in Winship, the plaintiff had at stake an ‘interest of immense importance, both because of the possibility that he may lose his liberty * * # and because * * * he would be stigmatized by the conviction’ 397 U.S. at 363.” In the case at bar defendant has suffered a “loss of liberty”; he has been ordered confined to a facility of the Department of Corrections. He was found to be a sexually dangerous person, a designation which “certainly carries a potential for stigma equal to the label delinquent.” (Stachulak at 630.) Moreover, as was noted by the district court, to allow a lesser burden of proof in a sexually-dangerous-persons proceeding than if the original criminal charge had proceeded to completion creates an incentive for the prosecution to file a sexually dangerous persons petition in cases where it feels it does not have sufficient evidence to convict for the original offense charged. (Stachulak at 631; cf. Burick, An Analysis of the Illinois Sexually Dangerous Persons Act, 59 J. Crim. L.C. & P.S. 254 (1968).) We, therefore, hold that in proceedings brought pursuant to the act in question, the State must prove its case beyond a reasonable doubt. Consequently we reverse the judgment entered below and remand the cause for a determination as to whether under this standard defendant is a sexually dangerous person.

Although we have held that a standard of proof of beyond a reasonable doubt must be used in sexually dangerous persons proceedings, we do not believe that other elements of the criminal process, such as admonitions regarding a right to a jury trial, a right to appeal and the consequences of a guilty plea, are also constitutionally required as has been contended by defendant. We have noted above that the requirements of due process are not static but may vary depending upon the nature of the interests involved. While both the civil proceedings in question and criminal prosecutions may result in a loss of liberty, substantial differences exist between them. Foremost among these are that in a commitment under the Act there is no inference of moral blameworthiness since a finding of sexual dangerousness indicates that a defendant’s inability to conform to the dictates of the law is the product of a mental illness and, secondly, commitment under the Act, unlike criminal incarceration, is not intended as punishment. Thus our supreme court has specifically rejected defendant’s arguments regarding jury trial admonitions (People v. Studdard, 51 Ill.2d 190, 281 N.E.2d 678) and right to appeal (Capoldi). Moreover, since commitment under the Act does not constitute a criminal conviction, Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402) does not apply.

Defendant next argues that we must find the Sexually Dangerous Persons Act void for vagueness and overbreadth.

The courts of this State have consistently upheld the constitutionality of this statute. (People v. Sims, 382 Ill. 472, 47 N.E.2d 703; People ex rel. Elliot v. Juergens, 407 Ill. 391, 95 N.E.2d 602; People v. Ross, 344 Ill.App. 407, 101 N.E.2d 112.) Although defendant claims that advances in psychiatry coupled with recent decisions by the Supreme Court (see, e.g., Jackson v. Indiana, 406 U.S. 715) compel a reexamination of the Act, we note that in Stachulak the court rejected this precise argument. We, therefore, hold that the Act is neither too vague nor too broad and imprecise to pass constitutional muster.

Defendant also contends that individuals subject to involuntary commitment under the Sexually Dangerous Persons Act are not offered the same procedural rights as those committed under the Mental Health Code (Ill. Rev. Stat. 1971, ch. 9172, par. 1 — 1 et seq.) and that this constitutes a violation of the equal protection clause of the Fourteenth Amendment. We find, however, that the two methods of commitment are substantially similar. For example, it is undisputed that both the Act and the Mental Health Code allow trial by jury and grant the right to appeal. Both provide for commitment in specially designated facilities. (Compare Ill. Rev. Stat. 1971, ch. 38, par. 105 — 8, with Ill. Rev. Stat. 1971, ch. 9172, par. 1 — 5.) In addition, both set forth clear standards of review and release. Although defendant has argued that a constitutionally impermissible difference between the two procedures exists because the Mental Health Code provides for periodic review of an individual’s need for continued commitment (see Ill. Rev. Stat. 1971, ch. 9172, par. 10 — 2) while under the Act the burden of seeking review is placed upon the person committed, we feel that this difference is not so substantial as to constitute a violation of the equal protection clause.

Finally, defendant contends that due to the fact that counsel below stipulated to the admission of the psychiatric reports, he was denied his right to confront witnesses against him. In addition, he argues that the State failed to prove the qualifications of the examining psychiatrists as is required by the Act. (See Ill. Rev. Stat. 1971, ch. 38, par. 105 — 4.01.) Defendant relies primarily on People v. Dykema, 89 Ill.App.2d 409, 232 N.E.2d 471, where a finding of sexual dangerousness was reversed due to the stipulation into evidence by defense counsel of psychiatric reports. In reaching that decision the appellate court noted that these reports were filed by two physicians who were substituted for the court appointed psychiatrists on oral motion on the day of the commitment hearing. Moreover, the record was silent as to their qualifications. We find the instant case to be distinguishable. The trial court ordered two psychiatrists from the “Psychiatric Institute of the Municipal Court of Chicago” to examine defendant. They took over 3 weeks in preparing their reports. On the day of the hearing defense counsel reiterated his agreement to a stipulation to the admission of the reports into evidence. The following colloquy then ensued:

“The Court: Okay, so we have two qualified physiciatrists [sic], Dr. Kelleher and Dr. Stem?
Mr. Gecan [the Public Defender]: Right, Judge.
The Court: Is the defendant waiving his right to trial by jury on this charge?
Mr. Gecan: Yes, Judge.
The Court: Okay, then we are ready. Is there any evidence the defendant would tender now following the finding of the report of both Dr. Kelleher and Dr. Stem.
Mr. Gecan: No, Judge. We would stand on the doctors’ report. We would stipulate to their admission in evidence.”

Clearly, defendant’s stipulations in the instant case relieved the State of any further proof regarding the psychiatrists’ qualifications. In addition, on the basis of the record before us we believe that the requirements of the statute and of due process were met by these stipulations.

For the foregoing reasons the judgment entered below is reversed and the cause remanded for a hearing at which tire standard of proof shall be beyond a reasonable doubt.

Reversed and remanded.

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

       Section 1.01 (Ill. Rev. Stat. 1971, ch. 38, par. 105 — 1.01) provides:
      “All persons suffering from a mental disorder, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the petition hereinafter provided for, coupled with criminal propensities to the commission of sex offenses, and who have demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children, are hereby declared sexually dangerous persons.”

       Section 4 (Ill. Rev. Stat. 1971, ch. 38, par. 105-4) provides:
      “After the filing of the petition, the court shall appoint two qualified psychiatrists to make a personal examination of such alleged sexually dangerous person, to ascertain whether such person is sexually dangerous, and the psychiatrists shall file with the court a report in writing of the result of their examination, a copy of which shall be delivered to the respondent.”

       Section 8 (Ill. Rev. Stat. 1971, ch. 38, par. 105-8) provides:
      “If the respondent is found to be a sexually dangerous person then the court shall appoint the Director of Corrections guardian of the person found to be sexually dangerous and such person shall stand committed to the custody of such guardian. The Director of Corrections as guardian shall keep safely the person so committed until the person has recovered and is released as hereinafter provided. The Director of Corrections as guardian shall provide care and treatment for the person committed to him designed to effect recovery. The Director may place that ward in any facility in the Department of Corrections or portion thereof set aside for the care and treatment of sexually dangerous persons. The Department of Corrections may also request another state Department or Agency to examine such patient and upon such request, such Department or Agency shall make such examination and the Department of Corrections may, with the consent of the chief executive officer of such other Department or Agency, thereupon place such patient in the care and treatment of such other Department or Agency.”

       “Those persons who are adjudged sexually dangerous under the Act are committed to the care of the Director of Corrections, but this does not imply that they are to be treated as criminal prisoners. The Act states that the Director of Corrections ‘shall provide care and treatment for the person committed to him designed to effect recovery,’ and that such persons shall be held ‘in any facility in the Department of Corrections or portion thereof set aside for the care and treatment of sexually dangerous persons.’ (Emphasis supplied.) Ill. Rev. Stat. 1969, ch. 38, par. 105 — 8.” People v. Shiro, 52 Ill.2d 279, 283, 287 N.E.2d 708.

       Section 4.01 of the Act (Ill. Rev. Stat. 1971, ch. 38, par. 105 — 4.01) defines a “qualified psychiatrist” as “a reputable physician licensed in Illinois to practice medicine in all its branches, who has specialized in the diagnosis and treatment of mental and nervous disorders for a. period of not less than 5 years.”


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Nicholas Grevan, Defendant-Appellee.
    (No. 59936;
    First District (5th Division)
    November 8, 1974.

      Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Fran Baumgart, Assistant State’s Attorneys, of counsel), for the People.
    No appearance for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

The State appeals from an order granting defendant’s motion to dismiss an indictment wherein defendant was charged with felonious theft.

- On October 8, 1971, defendant was charged with deceptive practice in violation of section 17(1) (d) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 17(l)(d)), a misdemeanor. Prior to a jury trial, on motion of the State, the charge was stricken, with leave to reinstate. Defendant was then charged by indictment with felonious theft in violation of section 16 — 1(b) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1(b)). The indictment was based on facts identical to those underlying the misdemeanor charge. Defendant, claiming double jeopardy, moved to dismiss and the trial court granted the motion.

The sole issue on review is whether the State’s attempt to prosecute defendant on the indictment placed him in double jeopardy.

Defendant has filed neither an appearance nor a brief in this matter. In such circumstances, this court, in its discretion, may either reverse tire matter pro forma or consider the merits of the appeal. (People v. Marro, 4 Ill.App.3d 197, 280 N.E.2d 560.) In this case we will consider the merits of the appeal.

Opinion

We agree with the State’s interpretation that a trial begins and jeopardy attaches in a jury trial when the jury has been impaneled and sworn. (People v. Pierce, 34 Ill.2d 382, 216 N.E.2d 120.) Extended discussion is unnecessary. Since the former prosecution was dismissed prior to impanelment of any members of a jury, there was no prosecution and it was error for the trial court to dismiss the indictment.

The judgment of the circuit court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

SULLIVAN, P. J., and DRUCKER, J., concur.


author: PER CURIAM:

text:
    Phil Jacobs Company, Inc., Plaintiff-Appellant, v. Mildred Mifflin, d/b/a The Gaiety Shop, Defendant-Appellee.
    (No. 72-195;
    Fifth District
    October 8, 1974.

      Rehearing denied December 2, 1974.

    G. MORAN, P. J., took no part.
    William E. Aulgur, of Eldorado, for appellant,
    Harris and Lambert, of Marion, for appellee.
   PER CURIAM:

■ The plaintiff, Phil Jacobs Co., sold dress goods to the defendant, Mildred Mifflin, doing business as the Gaiety Shop, for a period from 1967 to 1970. This suit was brought to recover the purchase price for goods delivered from July, 1969 to January, 1970, totaling $1,718.40. The sales procedure was as follows: plaintiff’s sales representative, James Hybar-ger, went to the defendant’s store four times a year. He took with him printed order forms filled in with style numbers of goods sold by the company. Hybarger testified that after consulting with defendant, unwanted items were crossed off and desired items not shown were added. Defendant would then sign the forms and Hybarger would send them to the plaintiff who would ship the goods over the succeeding 3 months. There were two orders in the time period involved in the dispute. The first, placed on August 6, 1969, for $736.75, was concluded by telephone. Mrs. Mifflin was not in her store when Mr. Hybarger appeared. He called her from St. Louis. Mr. Hybarger testified that he asked Mrs. Mifflin if he could “order what we had normally been ordering.” She agreed, according to Mr. Hybarger. Mrs. Mifflin did not testify as to this transaction. It is evident, however, that she did not sign the order as was the usual custom and there is no evidence that she signed the final order form. The other transaction occurred on November 5, 1969, an order being placed for $952.20. There is some dispute about part of this order. The ordering procedure apparently d ffered as to one item of clothing — stretch pants. Mr. Hybarger testified that in order to further style, color and size continuity, specific quantities were not added to the form until he consulted his records of the customer’s sales for previous years. Thus, quantities and total amounts were not included on the order form when it was signed by Mrs. Mifflin. Mrs. Mifflin’s daughter testified that on one occasion in 1968 Mr. Hybarger said to Mrs. Mifflin about the form, “You have to sign it in order to get anything at all and when I leave I will adjust it or mark out some of the things and send you not as much.” This statement allegedly was made after Mrs. Mifflin complained that she was being sent too much merchandise. Mr. Hybarger denied making the statement and Mrs. Mifflin did not testify about it. There was no evidence that such a statement was made about any subsequent order, and specifically not the disputed one. Mrs. Mifflin testified that despite what she told Mr. Hybarger when he came, she “always wound up with the same run-of-the-mill and would be overstocked with one item and completely out of another item.” She admitted that all material she received was listed on the order form which bore her signature except, of course, the two orders which were taken by telephone.

Mrs. Mifflin’s defense generally was that she had been over-supplied by plaintiff for some time with goods not ordered, and that she had offered to return the goods but had been refused. Defendant’s exhibits show that on June 17, 1969, plaintiff’s credit manáger wrote Mr. Hy-barger stating that word had been received from Mrs. Mifflin that she was being overshipped by a significant amount and that she should not be sent more than $400.00 per month in merchandise thereafter. Plaintiffs exhibits and testimony and defendant’s testimony reveal that the largest monthly shipment during the disputed period totaled from $286 to $289. A letter was received by plaintiff in October, 1969, after a shipment of $289 was received stating “Please! Do not send me anymore [sic] clothing.” On January 5, 1970, in response to a debt reminder from the plaintiff, plaintiff received a letter from defendant stating that during the year of 1969 she had received over $2,000 more merchandise than had been ordered by her and that she desired to return it. In March, 1970 (after the disputed period), plaintiff’s credit manager again communicated with Mr. Hybarger. He stated that more trouble with Mrs. M'fflin’s account had developed, that she was to be shipped no more merchandise until a part balance was paid and that no more than $250 per month would be shipped after that. Another letter was written by defendant on July 1, 1970, stating again that overshipments were made and that excess was being held for return. At trial, Mrs. Mifflin produced and identified the goods. She admitted, however, that she did not know whether these goods were ordered or delivered during the disputed period, July, 1969, to January, 1970. Mrs. Mifflin later wrote to plaintiff in 1971 asking for reinstatement of service.

At the conclusion of the evidence, the trial court, sitting without a jury, gave judgment for defendant without opinion and plaintiff appeals.

Plaintiff first asserts that defendant relied upon, but did not carry the burden of proof upon, an affirmative defense that she had been shipped items not ordered by her, had notified plaintiff of the over-shipment, and had offered to return the items. Plaintiff cites several cases to support the major premise that the burden of proving an affirmative defense rests initially and throughout the trial with the party who asserts it (see, e.g., Ellis v. Cothran, 117 Ill. 458; Ermold v. Bear, 358 Ill. 233; Auer v. Wm. Meyer. Co., 322 Ill.App. 244; Jones v. Katz, 325 Ill.App. 65). We cannot but agree with this premise. Plaintiff goes on to assert the defendant did not meet this burden since there was no showing that specific items were not ordered, or that plaintiff was notified of overshipment of any specific items, and that defendant was unable to testify that the items held for reshipment included any item shipped during the disputed period. The evidence appears to support this position.

Defendant, however, states that she did not rely on an affirmative defense, but rather simply denied having accepted the goods under section 2 — 607 of the Uniform Commercial Code (Ill. Rev. Stat., ch. 26, §2 — 607). She asserted this defense as a special defense under section 43 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, § 43). This section provides for the assertion of affirmative defenses and “any ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply.” The definition of an affirmative defense under section 43 has been held to be ‘“whether the defense gives color to the opposing party’s claim and then asserts new matter by which the apparent right is defeated * * (S.H.A., ch. 110, §43, Historical and Practice Notes (1968); Horst v. Morand Brothers Beverage Co., 96 Ill.App.2d 68, 80.) In Horst the court held that a denial of the existence of an agency relationship was not an affirmative defense. Defendant’s position that denial of acceptance of goods does not constitute an affirmative defense finds support in Nordstrom, Handbook on the Law of Sales, § 431, which puts the burden of showing conformity on the seller, allowing the buyer simply to deny conformity and force the seller to prove it. But regardless whether the defense asserted was an affirmative one, the evidence simply does not support her position. Section 2 — 606 of the Uniform Commercial Code provides that acceptance of goods occurs when the buyer, after a reasonable opportunity to inspect the goods, (1) notifies the seller of acceptance, (2) fails to make an effective rejection or (3) “does any act inconsistent with the seller’s ownership.” The buyer (defendant) did not specifically inform plaintiff of the non-conformity of specific commercial units, but rather generally complained of overshipment. Defendant testified that she held goods allegedly not ordered for reshipment to plaintiff. But she could not identify them as having been shipped during the disputed period. There was no evidence of what was done with items allegedly overshipped during that period. But it is a reasonable assumption that if they were not held for reshipment they were offered for sale. This would appear to be an act inconsistent with the seller’s ownership and constitute acceptance. Furthermore, the evidence showed complaint of overshipment by the defendant for the years preceding the disputed period. Defendant, however, had paid and continued to pay for those goods. While this fact would not preclude her from rejecting non-conforming goods in the future, it tends to indicate that her dissatisfaction was not such to cause her to terminate dealing with plaintiff.

Plaintiff next asserts that since defendant paid for all goods received prior to July, 1969, she cannot now claim that they did not conform to the contract. Appellant cites Illinois Glass Co. v. Ozell Co., 197 Ill.App. 626. There, the seller of bottles sued the purchaser for the price of the second of two shipments, the first having been paid for. The purchaser filed a counter-claim, alleging damage of the first shipment. The court held that since the first shipment had been paid for and used by the purchaser, he could not claim damage of that shipment in an action on the other. In Waukesha Canning Co. v. Henry Horner & Co., 138 Ill.App. 564, the court held that a buyer of canned com could not rescind the contract of purchase on the ground that the corn was of substandard quality when he had resold as standard quality a substantial portion of the com. While neither of these cases dealt exactly with the instant problem, the rationale that one cannot accept and pay for merchandise and then claim some defect in it as a defense to a suit on a subsequent purchase, appears applicable. We are concerned here only with $1,718.40 in merchandise shipped between July, 1969, and January, 1970.

Defendant argues that this court should not reverse the factual findings of the trial court unless found to be “manifestly erroneous.” In Wall v. Lanahan, 79 Ill.App.2d 62, this court stated that the trial judge’s unique position as the arbiter of credibility of witnesses and weight of authority in a bench trial is so well established as not to require citation of authority. The plaintiff in the instant case, however, made a strong prima facie showing of defendant’s liability on the contract. Defendant’s only defense was the rejection of the extra merchandise. As we have noted, there was no showing of effective rejection of the merchandise shipped from July, 1969, to January, 1970. Thus, the trial court erred in entering judgment for defendant.

The judgment of the trial court is reversed and the cause remanded with directions to enter a judgment for plaintiff for $1,718.40 and costs.

Reversed and remanded with directions.

Mr. PRESIDING JUSTICE GEORGE J. MORAN took no part in the consideration or decision of this case.


author: Mr. JUSTICE EBERSPACHER

text:
    Deweese Scruggs, Plaintiff-Appellant, v. James Scruggs, Defendant-Appellee.
    (No. 73-414;
    Fifth District
    November 4, 1974.

      Mitchell & Armstrong, of Marion, for appellant.
    Richard E. White, of Murphysboro, for appellee.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the plaintiff, Deweese Scruggs, from an order entered by the circuit court of Pulaski County denying certain relief, requested by her petition for rehearing, from a divorce decree awarded plaintiff, which provided for child support and lump-sum alimony.

On December 1, 1971, the plaintiff filed a complaint against the defendant, James Scruggs, pray'ng for: (1) a divorce from the defendant, (2) custody of the minor children “and reasonable child support for said minor children," (3) alimony, (4) defendant to pay plaintiffs attorney fees and court costs, and (5) a property settlement to be made. Defendant, in response thereto, filed an answer and a counterclaim on March 17, 1972. On April 4, 1972, plaintiff filed an answer to defendant’s counterclaim and an amended complaint. The prayer contained in plaintiff’s amended complaint reiterated the provisions embraced in the prayer of plaintiffs original complaint with the exception of provision (5), which was amended to read: “That a property settlement be made and the Plaintiff be awarded one-half of the real estate and other property accumulated by the parties.” In neither plaintiffs complaint nor in her amended complaint did she assert any special equities or contributions in support of her request for a property settlement."

On September 26, 1972, the cause was called for trial and on October 19, 1972, a “decree” was entered by the trial court. This decree ordered, among other things, that the marriage be dissolved, and

“That the plaintiff herein desires no installment alimony payments and expressly herein refuses and relinquishes right to claim same, now and forever, but defendant will pay plaintiff as alimony in gross the sum of $10,000 within ninety (90) days from the date of the filing of the said Decree, * * * and it is ordered that neither the plaintiff or defendant will take any alimony, one from the other, now and forever, neither being entitled to same, one from the other, except herein stated.”

On November 13, 1972, the plaintiff, after retaining new counsel, filed á motion to partially vacate the decree, and a motion for rehearing. This motion alleged that the property settlement was made by plaintiff’s attorney without her consent. She moved to set aside all of the provisions of the decree except for the provision dissolving the marriage. On February 1, 1973, the trial court entered an order granting plaintiff’s motion to partially vacate and plaintiff’s motion for rehearing, on the basis of her previous attorney having no authority to enter into the property settlement.

On March 8, 1973, a hearing was held to determine the rights and obligations of the parties under the divorce decree. The majority of the testimony presented therein concerned the defendant’s income, the value of defendant’s business property, the defendant’s debts, the plaintiff’s contribution to defendant’s business, the condition and value of various properties owned by the parties, the needs of the plaintiff, and the medical and educational requirements of the parties’ unemancipated child, Jerry Scruggs. After hearing the testimony of the defendant, plaintiff, and Jerry Scruggs, the trial court took the matter under consideration.

On March 27, 1973, the trial court entered a “supplemental decree.” Under this decree the defendant was ordered to pay $12,000 alimony in gross to the plaintiff, $20 per week for support of the son, Jerry Scruggs, the medical and educational expenses of said son, $500 to J. C. Mitchell (counsel for plaintiff), and $204 to Mr. Lorek (previous counsel for plaintiff) for costs advanced by him in the prosecution of plaintiff’s claim. This decree also incorporated, “with the exception of Paragraphs 3 and 9 of the original Decree, and as otherwise modified in the foregoing Paragraphs of this Decree, Paragraphs 2 through 13, inclusive, of the original Decree * * The unmodified provisions of the “original decree” incorporated into the second decree included, among others, provision 5, which awarded the “homeplace” of the parties and the furniture and household goods located therein to the plaintiff, provision 6, which awarded three described pieces of real estate located in Mound City to the plaintiff, ordered the defendant to convey his interest in such real estate to the plaintiff by quitclaim deeds, and ordered defendant to pay the 1971 taxes on such real estate, provision 7, which awarded certain “property referred to as the Kinslow conveyance” to the plaintiff, ordered the defendant to convey his interest in such real estate to the plaintiff by quitclaim deed, and ordered defendant to pay the 1971 taxes thereon, provision 10, which provided that the plaintiff and defendant were individually and not jointly, responsible for any debts incurred after September 1, 1971, and provision 13, which ordered the plaintiff to convey any interest she may have in six described pieces of real estate, including the property on which the defendant operated an I.G.A. grocery store, to the defendant.

Subsequently, plaintiff filed a motion for rehearing. She alleged therein that,

“The alimony in gross awarded to Plaintiff by Defendant is, as a matter of law, less than that shown by the manifest weight of the evidence. Based upon the evidence in the record, said alimony in gross should not have been less than Twenty-Four Thousand Dollars ($24,000.00).”

She further alleged that the child support should not have been less than $40 per week, she should be given one-half interest in the “Real estate where Defendant’s place of business is now located,” the supplemental decree did not correctly award her the automobile (title of which remained in defendant’s possession), and the defendant had another bank account of which she had just learned.

On June 26, 1973, the date set for rehearing, counsel for both parties argued in support of their cause. The argument of plaintiff’s counsel with respect to the inadequacy of the alimony in gross award contained in the supplemental decree was based solely upon the insufficiency of the amount. In response to the plaintiff’s claim of newly discovered assets, the defendant’s counsel made the following statements; that the new bank account was an account held by the defendant and his second wife, that there were two accounts, that one account was a checking account of the second wife, and that the other account was a joint savings account where the second wife put her savings from the salary she received from the defendant’s store. Impropriety of lump-sum alimony was not urged.

On August 14, 1973, the trial court entered an order directing the defendant to pay $30.00 per week in child support and also directing the defendant “to deliver title to said automobile to Plaintiff.” The plaintiff s motion for rehearing was denied “in all other respects.” The plaintiff appeals from this order.

The plaintiff raised three contentions in this appeal; first, that the trial court “abused its discretion in the establishment of the just alimony and support award” and, therefore, this court can, and must, reverse same; secondly, that it was improper for the trial court to award alimony in gross in lieu of periodic alimony under the circumstances here present; and lastly, that the trial court erred in failing to grant plaintiff an equitable interest in the business operated by defendant.

We shall first discuss whether the trial court’s action in granting alimony in gross in lieu of periodic alimony was reversible error. Unless the circumstances justify a different course of action, the usual and proper practice is to award permanent alimony in such a manner that it wiH remain in the control of the court. (Schwarz v. Schwarz, 27 Ill.2d 140, 188 N.E.2d 673; Meighen v. Meighen, 307 Ill. 306, 138 N.E. 613; Hall v. Hall, 18 Ill.App.3d 583, 310 N.E.2d 186.) In Honey v. Honey, 120 Ill.App.2d 102, 256 N.E.2d 121, the court discussed various circumstances under which courts have granted alimony in gross and, then, found that the record before it was devoid of any similar circumstances which would justify the imposition of alimony in gross. Consequently, the court held that since periodic alimony was feasible the trial court, persuaded by plaintiff’s counsel, adopted the wrong standard in determining the award of alimony, i.e., alimony in gross, and that aspect of the decree must be reversed.

Nevertheless, the court’s ruling in Honey v. Honey is of little aid to the plaintiff in the instant case. The order appealed from in the instant case was the culmination of four separate hearings before two different presiding judges. As the record set forth previously demonstrates, at no time throughout any of these proceedings did either of plaintiff’s counsel complain of the impropriety of alimony in gross. In fact, plaintiff not only acquiesced to alimony in gross but requested alimony in gross in her second motion for rehearing, complaining only about the amount of the award of alimony in gross previously entered by the trial court. Furthermore, plaintiff has accepted the quitclaim deeds tendered by the defendant pursuant to provisions 5 and 7 of the original decree, incorporated by reference in the trial court’s supplemental decree and order. Section 18 of the Divorce Act (Ill. Rev. Stat. 1971, ch. 40, par. 19), provides, in part, that:

“The court may order the husband or wife, as the case may be, to pay to the other party such sum of money, or convey to the party such real or personal property, payable or to be conveyed either in gross or by installments as settlement in lieu of alimony, as the court deems equitable.”

Since the preceding provision has been interpreted to mean that a court may not grant both periodic alimony and a lump-sum payment (Rodely v. Rodely, 28 Ill.2d 347, 192 N.E.2d 347; Overton v. Overton, 6 Ill.App.3d 1086, 287 N.E.2d 47), the acceptance by the plaintiff of the deeds tendered by the defendant as part of a property settlement further evidences the plaintiff’s waiver of her “right” to periodic alimony. The plaintiff’ s apparent request for alimony in gross,' her failure to raise any question relating to the impropriety of alimony in gross in any of the four separate hearings conducted by the trial court, and her acceptance of the defendant’s tender of certain quitclaim deeds, which were part of the trial court’s property settlement, lead us to refuse to consider this issue for the first time on appeal. See Hux v. Raben, 38 Ill.2d 223, 230 N.E.2d 831; Womans Athletic Club v. Hulman, 31 Ill.2d 449, 202 N.E.2d 528; Hartman v. Hartman, 11 Ill.App.3d 524, 297 N.E.2d 199.

Next, we shall address plaintiffs contention that the trial court abused its discretion in determination of the amount of the alimony and child support to be awarded. The measure of alimony is the need of the wife considered in connection with the husband’s ability to pay. (E.g., Busby v. Busby, 11 Ill.App.3d 426, 298 N.E.2d 585.) No single criterion is controlling and each case will depend on the individual facts of that case. (Turns v. Turns, 96 Ill.App 2d 347, 239 N.E.2d 144.) As a general rule, the amount of alimony is within the sound discretion of the trial court, and the amount of alimony determined thereby will not be disturbed unless an abuse of discretion is shown. (Rodely v. Rodely, 28 Ill.2d 347, 192 N.E.2d 347; Sandberg v. Sandberg, 11 Ill.App.3d 495, 297 N.E.2d 654.) From the record before us, we are unable to say that the terms of the divorce decree, in particular the alimony award, were against the manifest weight of the evidence or that they were beyond the proper limits of discretion vested in the trial court.

The final contention of the plaintiff is that the trial court erred in failing to award her an equitable interest in the business operated by defendant. In support of this contention plaintiff cites Everett v. Everett, 25 Ill.2d 342, 185 N.E.2d 201, for the proposition: “For a court to exercise its equitable powers to adjust property rights of the parties, special circumstances and equities must exist.” Plaintiff alleges that “her efforts and denial of the material benefits of life with reference to the growth and development of the grocery store of her husband * * * qualify as special circumstances and equities.”

The trial court as the trier of fact is in a position superior to a court of review to observe the conduct of witnesses while testifying, to determine their credibility, and to weigh the evidence and to determine the preponderance thereof, especially where testimony is contrad'ctory. (Schulenburg v. Signatrol, Inc., 37 Ill.2d 352, 226 N.E.2d 624; Smith v. Realcoa Construction Co., 13 Ill.App.3d 254, 300 N.E.2d 855.) The function of a reviewing court is to examine the factual determinations of the trial court to see whether they are supported by the evidence (In re Estate of Kas, 14 Ill.App.3d 729, 303 N.E.2d 201), and not to disturb those determinations unless they are against the manifest weight of the evidence (Brown v. Zimmerman, 18 Ill.2d 94, 163 N.E.2d 518). In the instant case the trial court, after hearing the evidence pertaining to the plaintiffs contributions to “the grocery store of her husband” and the plaintiffs deprivation of the “material benefits of life,” much of which was contradictory, determined that no special circumstances or equities existed to justify the plaintiffs request for a one-half interest in the grocery store operated by the defendant and, therefore, denied plaintiffs request for such an interest. We cannot say, from the record before us, that the trial court’s denial of plaintiffs request was against the manifest weight of the evidence.

Having found each of plaintiff’s contentions without merit we affirm the order entered by the circuit court of Pulaski County denying paragraphs one, three and five of plaintiffs motion for rehearing.

Order affirmed.

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


text:
    The People ex rel. James Allen Buckholz, Petitioner-Appellant, v. Paul W. Sympson, Warden, Illinois State Penitentiary at Menard, Respondent-Appellee.
    (No. 74-67;
    Fifth District
    November 4, 1974.
    Robert E. Farrell and Allen L. Wiederer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville, for appellee.
   PER CURIAM.

CARTER, J., took no part.


author: Mr. JUSTICE CARTER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Malcolm Jackson, Defendant-Appellant.
    (No. 73-4;
    Fifth District
    November 4, 1974.

      Robert E. Farrell and Michael J. Rosborough, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Robert L. Craig, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The defendant, Malcolm Jackson, and a co-defendant, Nathaniel Russell, were each named in an indictment charging aggravated assault and another indictment charging armed robbery. After a trial, the jury found the defendant, Jackson, guilty of both alleged offenses. After a hearing in aggravation and mitigation, the defendant was sentenced to concurrent terms of not less than 2 nor more than 5 years for aggravated assault and not less than 8 nor more than 25 years for armed robbery.

We believe the defendant was proven guilty beyond a reasonable doubt and that the trial court did not err in refusing to suppress the defendant’s identification. However, the defendant must be resentenced on the aggravated assault count. The defendant bases his appeal on these three issues.

On February 13, 1972, two men entered a Moto service station in East St. Louis early in the morning. When the attendant turned his back, one man pulled a gun and announced a holdup. The attendant had been talking on the telephone and the party with whom he was talking called the police. The robbers took money, a money changer and a gun from the attendant and also money from the cash drawer. A hitchhiker in the station at the time was relieved of a watch and a ring. The co-defendant took the attendant and the hitchhiker outside to the attendant’s car while the defendant remained inside. At that moment Officer Eiskant of the East St. Louis Police Department arrived. He saw the three men in the attendant’s car and ordered them out. As the three individuals came out of the car, the defendant, Jackson, rushed out of the service station and fired at Officer Eiskant, who ducked behind his car while the defendant fired again, running around the side of the building. Immediately, Eisk-ant gave a brief description of the defendant on his radio and gave chase. The defendant’s companion and co-defendant, Russell, retrieved his gun and also ran. A few minutes later a Sergeant Comley arrived and received directions from the attendant and proceeded down the street. He saw men in an alley and ordered them to halt, identifying Irmself as a police officer. The co-defendant ducked behind a car and the defendant fired at Com-ley. Soon thereafter, the co-defendant was found and captured by Com-ley hiding in a parked car, which turned out to belong to the defendant’s mother. Another officer, Thomas Ezell, was cruising in the immediate area looking for suspects and at that time the defendant walked out of a yard and was stopped by Ezell, offering no resistance. One weapon was recovered on the floor of the car in which the co-defendant was apprehended and two more weapons along with a hat, gloves, money changer, and cash were found on the roof and in the yard of a nearby house. Later at the police station, the watch and ring of the hitchhiker fell to the floor beside the defendant and were thought to have come from him. Money was found on both suspects. At the police station, the hitchhiker identified the defendant and the attendant identified both the defendant and the co-defendant.

Defendant’s first contention that he was not proven guilty beyond a reasonable doubt does not stand up in the light of all the testimony and evidence.

Officer Eiskant, the first officer on the scene, positively identified the defendant as the man who had fired twice at him at the service station and a third time while he was pursuing the defendant down a street. He stated that he was 25 feet away when the first two shots were fired and the lighting was excellent at the service station. Officer Eiskant concluded his testimony by identifying a number of items found in the vicinity of the houses near the service station and where defendant and co-defendant were apprehended. These items are included in People’s Exhibits 14 and 15. Exhibit 14 consisted of change and currency that he found in the immediate vicinity of 646 North 51st Street, a block away from the service station and the place where defendant was taken into custody. Exhibit 15 was a money changer found by Officer Eiskant hanging on a fence on the south side of 646 North 51st Street.

Sergeant Comley arrived at the service station after he heard Officer Eiskant give a description on the car radio of a suspect. He then drove down a street near the service station and saw two figures come out of a passageway and he later identified them as the defendant and the co-defendant. Sergeant Comley then left his automobile and identified himself as a police officer. He then testified that the co-defendant “dropped out of sight” and the defendant ran back into the passageway after firing a shot at him. Sergeant Comley continued his search of the area.

The third East St. Louis police officer, Patrolman Ezell, who arrived at the scene talked with Sergeant Comley as to the description of the suspects, and he then drove a block from the service station. He observed the defendant standing near one of the houses in the area, and as he fit the description given to him by Comley, he placed the defendant under arrest.

An investigation of the scene where the robbery took place was conducted the next morning by Patrolman Lewis. A .38-caliber snub-nose gun was found by Lewis in the yard in the vicinity of 646 North 51st Street, and it was identified as People’s Exhibit 4. This exhibit was later identified by Clifton Willis, assistant manager of tire service station, as the gun that was kept at the service station. The other pistol was found by Lewis on the roof of a house in the same area, and also a hat on the other side of the same roof. These items were marked People’s Exhibit 3 and 2, respectively, and admitted into evidence.

A jailer, two desk sergeants and the evidence custodian of the East St. Louis Police Department all testified as to the chain of custody of the exhibits.

The attendant at the service station in question, Charles Hill, testified that he allowed a hitchhiker to come into the station about 2:30 A.M. on February 13, 1972. While he was talking on the telephone about an hour later, two men requested to enter the service station building, and he opened the door for them to enter. After requesting cigarettes and some change, one of the men pulled a pistol. Hill then stated that he gave him the money from his pocket, and he took the money from the cash register. The other individual also had a gun and took his money changer, after talking with the hitchhiker in the corner of the building. One of the men identified by Hill as the co-defendant took the hitchhiker and Hill outside and got into Hill’s car. The other individual, who stayed inside the service station at that time, was identified as the defendant, Jackson. Hill then started his car with the hitchhiker in the front seat and the co-defendant in the back seat, and then the police car arrived. Patrolman Eiskant, the driver, ordered the three men out of the attendant’s car, and at that time the defendant came out of the station, firing a shot in the direction of Eiskant. The officer returned the shot. At that time, the co-defendant reached back inside the car, picked up a gun and fled tire scene. Hill identified People’s Exhibit 4 as being the revolver which was taken from him by the defendant that night, and he also identified People’s Exhibit 15, which was his money changer taken from him. Hill distinctly identified the defendant, Jackson, at the trial as one of the robbers, stating that “he had a good view of him in the station”. He also adequately described him and his companion, the co-defendant. The lighting in and out of the service station was fine and until the defendant fled the scene, Hill was never more than 25 feet away from him.

The defendant’s defense consisted of the testimony of the following people: the co-defendant, an Illinois Bureau of Investigation agent, an automobile mechanic, and a Stanley Sanders.

Co-defendant Russell testified for the defense, acknowledging his par-, ticipation in the crime and his plea of guilty. He testified that a friend of his named Jimmy was the other participant and not the defendant. Although he had known Jimmy for 6 months, he only knew that he lived in St. Louis and did not know his last name. Under cross-examination, he admitted that he had known defendant for 5 years, that he had seen defendant’s car prior to the night of this crime, but that he did not know that at the time he hid in the car after the robbery that the car was the defendant’s.

The defendant’s theory in the case apparently was that he was in the area as a result of his car having broken down, and he was apprehended near the residence of a person that he approached for help in taking care of his car. The defendant called witnesses in his defense, in addition to the co-defendant, and one of them was a Stanley Sanders, who testified that he took the defendant to the 600 block of 51st Street where the defendant’s car was because he was told that defendant’s car had broken down. The next witness was an Illinois Investigation Bureau agent who testified that he performed firearms discharge residue tests on the defendant, which were negative. The third witness was a Bernard Harris, who testified that a car belonging to defendant’s mother was repaired in his shop subsequent to the offense. The prosecution had called a Johnny Houston, who lives next-door to the house where the evidence was retrieved. He testified that a black male came to his house in the early morning hours of the night of the crime, stating that his car had broken down and asking to use the telephone. Houston refused the request. Houston was advised by his family of noise in the back of the house. He then found the policeman and he further testified that he. could neither describe nor identify the man that came to the front door.

The defendant alleges that the evidence against him was not credible and cites People v. Coulson, 13 Ill.2d 290, and People v. Gardner, 35 Ill.2d 564. In Coulson the conviction rested almost solely on the testimony of the robbery victim, who had stated that he took the five men who stole his wallet to his house with a promise of more money and went inside alone while they waited outside. The court felt that this testimony “taxes the gullibility of the credulous” and reversed the conviction. However, the court stated that mere conflict of evidence shall be decided by the jury and not by the appellate court. In Gardner the court reversed a rape conviction where the only evidence was the identification by the victim and defendant’s presence in the area. The victim gave conflicting descriptions but did identify the defendant in a one-man showup in her hospital room. The defendant further presented strong alibi evidence. The court held that in light of the strong unimpeached alibi and weakness in identification, the conviction could not stand on a doubtful, uncertain and vague identification. The State cites the general rule that the positive, credible identification by one witness with opportunity to see the defendant is sufficient to sustain the conviction even in the face of contradiction by the defendant’s testimony. (People v. Tribbett, 41 Ill.2d 267; People v. Stringer, 52 Ill.2d 564.) The identification does not have to have been under perfect conditions or for a long period of time. (People v. Stringer, supra; People v. Harris, 46 Ill.2d 395.) This court has recently reaffirmed the reasonable-doubt standard and stated that the jury verdict would be overturned only where the verdict has been found to be palpably contrary to the evidence. (People v. Irons, 20 Ill.App.3d 125, 312 N.E.2d 664.) The State also cites this court’s decision in People v. Johnson, 6 Ill.App.3d 1003. In that case the witness positively identified the defendant but could not describe his clothes, facial characteristics, or facial hair, and was unclear about height and weight. The court stated:

“In any event, lack of precise accuracy in describing a defendant’s clothes and facial characteristics does not necessarily create a reasonable doubt of guilt. [Citations.] The test to be applied to positive in-court identification is not whether the witness gave a full description of features and attire of the defendant at the time of the crime but rather whether the witness was close enough to defendant for a sufficient length of time under adequate lighting conditions to be able to make a positive identification.” 6 Ill.App. 3d 1003, 1006.

Such a determination is to be made in light of all circumstances in each case. It is the court’s opinion that there was sufficient positive identification of the defendant for the jury to convict him.

The second point in the defendant’s appeal is whether or not the trial court erred in refusing to suppress the defendant’s identification. Prior to and during the early stages of the trial, a hearing was had on the defendant’s motion to suppress certain identification testimony. At the conclusion of evidence on such motion, the trial court denied the motion. Defendant contends that he was deprived of due process by an in-court identification by the victim based on a “tainted” lineup. The testimony at the hearing on the motion indicates that the defendant was incarcerated on the women’s side of the cell block in the East St. Louis Jail. Outside the Detective Bureau is a hallway and apparently a waiting room. The defendant testified that he was taken from his cell to the bureau past the man who viewed him in the lineup. Defense counsel testified that, when he arrived he saw the defendant and others in the Detective Bureau room and three people in the hallway. He learned that they were witnesses, and thereupon he had them removed before the subjects were taken to the lineup room. He did not see the defendant walk past the witness. Hill, the service station attendant, testified that he was seated in the hallway and that both the defendant and the co-defendant walked past him only once. No evidence of the lineup appears and the defendant apparently does not otherwise question the propriety of the lineup. Hill picked both defendant and co-defendant from the lineup. There is no evidence that the defendant spoke with Hill during that time or that the police in any way indicated to Hill that the defendant was a suspect. There is no showing that the viewing was done intentionally by the police or with any malice. This court has held the test to be that pretrial identification violates due process only where it is “so impermissibly suggestive as to give rise to the substantial likelihood of irreparable misidentification.” (People v. Irons, 20 Ill.App.3d 125, 312 N.E.2d 664.) This is not the case here. Even if the lineup itself were somewhat “tainted,” in-court identification is properly admitted if “an independent origin exists on which the identification can be based.” (People v. Harris, 46 Ill.2d 395; People v. Bixler, 49 Ill.2d 328; People v. Patrick, 53 Ill.2d 201.) Hill testified at the hearing that he told the policeman at the lineup, “How could I forget someone who has got a gun in my face?” Although Hill was unable to describe clothes worn by the robbers at the scene of the crime, he did state that the defendant wore sunglasses, had a goatee, but no moustache and that his hair was “full.” At the trial, Hill testified that defendant wore sunglasses and gloves and had facial hair, at least a goatee, though he was unclear about hair. The trial court correctly denied defendant’s motion to suppress the identification. There is no doubt that the victim had sufficient independent origin for his in-court identification to refute any “taint.” He had an opportunity to see the robbers and observe them for a sufficient length of time and under proper circumstances.

The final contention of the defendant is that his concurrent sentences of from 2 to 5 years for aggravated assault and from 8 to 25 years for armed robbery should be reduced and that the Unified Code of Corrections is applicable to this case. Aggravated assault prior to January, 1973, was treated both as a misdemeanor (4 days to 1 year) and a felony (1 to 5 years). It is now a Class A misdemeanor (less than 1 year) (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 2). Armed robbery carried a minimum penalty of 5 years for the first offense and 8 years for a subsequent conviction. It is now a Class 1 felony (4 years minimum) (Ill. Rev. Stat. 1973, ch. 38, par. 18 — 2). The trial judge commented at sentencing that he was giving the minimum sentence available under the statute, defendant having a prior conviction. The record indicates that the defendant was 21 years of age at the time of the offense with no stable background of employment and that he had two prior convictions — one in 1968 for unlawful use of a weapon (fine and 6 months’ probation) and another in 1968 for armed robbery (5 years’ probation). He was arrested in 1969 for aggravated battery (firing shotgun and injuring two people). He was not prosecuted for this offense but his probation was revoked and he was sentenced to 2 to 7 years. He was paroled in April, 1971, and the present offense occurred in February, 1972. His record to date shows a history of the use of firearms and disregard for human safety. The defendant also contends that his sentence is grossly disparate with that given his co-defendant. It is true that this court has reduced such disparate sentences where the background and participation in the offense were substantially the same. (People v. Tobin, 2 Ill.App.3d 538; People v. Cherry, 130 Ill.App.2d 965.) The record indicates that the co-defendant entered a plea of guilty and received a sentence from 2 to 3 years. The record, however, contains no evidence of co-defendant’s background or past criminal record. In addition, there is no evidence that the co-defendant fired at the police officers; in fact, he denied it in his testimony.

The issue of reducing disparate sentences of defendants who go to trial rather than plead guilty is to prevent “punishment” by the court for the exercise of a right to jury trial. (People v. Cherry, supra; People v. Moriarty, 25 Ill.2d 565.) “Punishment” does not appear here. As noted above, the trial court imposed the minimum sentence available at that time for armed robbery. In addition, this is not a case where the trial judge expresses prejudice toward the defendant for forcing the State to its proof before a jury. Defendant knew of his prior conviction and undoubtedly had been told by his counsel of the mandatory 8-year minimum if he was found guilty. Defendant’s conduct and history in this case are serious enough to warrant the sentence imposed by the trial court. However, as the defendant must be resentenced on the aggravated assault count, the court at that time may take into consideration whether a minimum term of greater than 4 years for armed robbery is required.

The judgment of the trial court of St. Clair County is affirmed subject to a remand for resentencing on the aggravated assault count.

Judgment affirmed and remanded.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Smith, Jr., Defendant-Appellant.
    (No. 74-13;
    Fifth District
    November 6, 1974.
    Robert E. Farrell, of Mt. Vernon, and Brenda Richey, of Chicago, both of State Appellate Defender’s Office, for appellant.
    Guy M. Lahr, III, State’s Attorney, of Metropolis, for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the petitioner, Willie Smith, Jr., from an order entered by the circuit court of Massac County denying his petition for post-conviction relief after holding an evidentiary hearing. The sole issue raised in this appeal is whether the petitioner received inadequate representation in the prosecution of his post-conviction petition.

The petitioner was convicted in 1969 of murder and attempted murder and was sentenced to consecutive terms of 60 to 100 years and 15 to 20 years. His conviction was affirmed by this court on direct appeal. (People v. Smith, 5 Ill.App.3d 648, 283 N.E.2d 727.) The evidence presented at the petitioner’s trial is summarized in that opinion and need not be repeated here.

In the petitioner’s pro se petition for post-conviction relief he alleged: (1) that he was denied a fair trial because of pretrial publicity, (2) that his appointed trial counsel was incompetent, .(3) that the State made several comments which were prejud;cial to him during its closing arguments, (4) that hearsay evidence was admitted at his trial, (5) that appointed appellate counsel was incompetent, and (6) that the grand jury selection was improper because no blacks were included. In support of petitioner’s first allegation, adverse pretrial publicity, he filed a memorandum setting forth the factual basis, the greater part of which was contained in the record of the trial, and the authorities upon which he based this allegation. The petitioner also filed a motion for appointment of counsel. Counsel was appointed. At the evidentiary hearing the petitioner’s appointed counsel added the following allegations to the petition: (7) that the trial court improperly allowed the jurors to remain in the court room during the voir dire of subsequent jurors, (8) that the petitioner’s trial counsel’s association with the State’s Attorney’s office prevented him from rendering effective assistance of counsel, and (9) that the in-court identification procedure was improperly suggestive.

The main thrust of the petitioner’s argument in this appeal is that petitioner’s appointed counsel failed to amend the pro se petition and set forth the allegations contained therein “in appropriate legal form.” As authority for this argument the petitioner cites three cases. (People v. Hawkins, 44 Ill.2d 296, 255 N.E.2d 456; People v. Slaughter, 39 Ill.2d 278, 235 N.E.2d 566; People v. Gonzales, 14 Ill.App.3d 535, 302 N.E.2d 718.) In People v. Gonzales, 14 Ill.App.3d 535, 302 N.E.2d 718, the First District Appellate Court, in an abstract opinion, held that the petitioner’s appointed counsel was inadequate since he failed to amend the petitioner’s pro se petition for post-conviction relief which was found to be “totally conclusional in nature.” Unlike the instant case, such failure to amend resulted in the petition being dismissed without an evidentiary hearing and, hence, the petitioner was given no opportunity to present a factual basis for the conclusionary allegations contained in his petition. In People v. Slaughter, 39 Ill.2d 278, 285, 235 N.E.2d 566, 569, our supreme court after reviewing the origin of the present Post-Conviction Hearing Act, stated:

“To the end that the complaints of a prisoner with respect to the validity of his conviction might be adequately presented, the statute contemplated that the attorney appointed to represent an indigent petitioner would consult with him either by mail or in person, ascertain his alleged grievances, examine the record of the proceedings at the trial and then amend the petition that had been filed pro se, so that it would adequately present the prisoner’s constitutional contentions. The statute cannot perform its function unless the attorney appointed to represent an indigent petitioner ascertains the basis of his complaints, shapes those complaints into appropriate legal form and presents them to the court.”

The Supreme Court then went on to hold that:

“The record before us shows unmistakably that the defendant did not receive adequate representation with respect to his original petition and his motion to amend that petition. (39 Ill.2d 278, 285, 235 N.E.2d 566, 569.)

In People v. Hawkins, 44 Ill.2d 296, 255 N.E.2d 456, our supreme court held that a petitioner did not receive adequate representation of counsel on his post-conviction petition. The court based its holding on the following findings: (1) that the petitioner’s pro se petition was apparently prepared “by someone with a very meager knowledge of the law”; (2) that the petitioner’s court appointed counsel “made no attempt to amend this petition and, at the hearing on the motion to dismiss, merely recited the claims of constitutional error as set forth in tire pro se petition”; and (3) that the statutory deficiencies were not corrected by appointed counsel. In both Slaughter and Hawkins the petitioner’s unamended pro se petition for post-conviction relief was dismissed without an evidentiary hearing. And, from our reading of these cases, we cannot find any indication that the respective counsel either consulted with their client or reviewed the trial record.

In the instant case petitioner’s appointed counsel consulted with the petitioner at Menard and in court (during a recess requested by petitioner’s counsel for such purpose), reviewed the trial record, solicited suggestions from the defendant, and made what he believed to be appropriate amendments at the evidentiary hearing. Moreover, the petitioner did receive an opportunity to present evidence at an evidentiary hearing on his petition for post-conviction relief.

Petitioners counsel is not required to amend the pro se petition where no possibility of successful amendment appears. (People v. Stovall, 47 Ill.2d 42, 264 N.E.2d 174; People v. White, 14 Ill.App.3d 274, 303 N.E.2d 32; People v. Burns, 4 Ill.App.3d 893, 282 N.E.2d 185.) As stated in People v. Wollenberg, 9 Ill.App.3d 1028, 1030, 293 N.E.2d 728, 731:

“The question then arises: Amend it to say what? * * * Mr. Bassiouni was appointed as a lawyer, not as a conjurer, * # **.”

As a general rule anything which was raised on direct appeal is res judicata and anything which could have been raised on direct appeal, but was not, is waived, except where fundamental fairness requires otherwise. (People v. French, 46 Ill.2d 104, 262 N.E.2d 901; People v. Derengowski, 44 Ill.2d 476, 256 N.E.2d 455; People v. Somerville, 42 Ill.2d 1, 245 N.E.2d 461.) On the petitioner’s direct appeal he raised three issues, which included his contention:

“that [he] was not afforded due process of law and a fair trial under the Constitution of the United States and of the State of Illinois.” (People v. Smith, 5 Ill.App.3d 648, 653, 283 N.E.2d 727, 730.)

After we determined that the petitioner’s other contentions were without merit, we addressed the above contention in the following manner:

“Finally, the defendant asserts that the case should be reversed because he was denied a fair trial and due process of law. Upon a consideration of the complete record, we do not find any basis for this contention. (Betts v. Brady, 316 U.S. 455; [62 S. Ct. 1595]; People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208.) The evidence to support the conviction is overwhelming. The conduct of the trial and the representation that the defendant had was of a high professional standard.” (5 Ill.App.3d 648, 655; 283 N.E.2d 727, 732.) (Emphasis added.)

In view of our “consideration of the complete record” on direct appeal all but two of the allegations presented in the petitioner’s pro se petition were decided and are res judicata. The two allegations not decided because they were outside the record before us, (1) that petitioner was denied a fair trial because of pre-trial publicity, and (2) that the grand jury selection was improper because no blacks were included, were adequately presented at the petitioner’s evidentiary hearing. Since an evi-dentiary hearing on post-conviction was held on these two issues, we need .not consider whether they were waived by not being raised on direct appeal.

The memorandum appended to petitioner’s pro se petition adequately set forth the factual basis upon which he based his claim of adverse pre-trial publicity, and we cannot say that his appointed counsel was inadequate because he failed to supplement this allegation. With respect to petitioner’s contention that the grand jury selection was improper because no blacks were included the trial court found that: “Evidence indicates that black persons were on the Grand Jury. Allegations made in that paragraph simply do not appear to be true.” Thus, neither of these allegations, which were not res judicata as a result of the direct appeal, were disposed of because counsel failed to set forth the allegations contained in petitioner’s pro se petition in “appropriate legal form,” as alleged by petitioner.

Having found the petitioner’s sole contention without merit we affirm the order entered by the circuit court of Massac County dismissing the petitioner’s request for post-conviction relief after holding an evidentiary hearing.

Order affirmed.

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