text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert L. Davis et al., Defendants-Appellants.
    (No. 56652;
    First District (2nd
    March 20, 1974.

      James J. Doherty, Public Defender, of Chicago (Jean Essary, Assistant Public Defender, of counsel), for appellant Robert L. Davis.
    Charles Locker, of Chicago, for appellant Charles Anderson.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Barry Rand Elden, and Mark R. Harms, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Defendants Robert L. Davis and Charles Anderson were found guilty by a jury on two counts of armed robbery. Defendant Davis was sentenced to two concurrent penitentiary terms of from 15 to 40 years; defendant Anderson was sentenced to two concurrent penitentiary terms of from 10 to 30 years. Defendants appeal from the judgments of conviction, and from the sentences imposed; they are represented by separate counsel on appeal.

Both defendants raise these issues on appeal:

(1) whether defendants were deprived of due process of law in that their in-court identifications resulted from an unnecessarily suggestive pretrial lineup and were not established by independent origin; and
(2) whether the prosecution’s evidence in the court below established their guilt beyond a reasonable doubt.

In addition, defendant Davis presents these issues for review:

(3) whether he was afforded a fair trial where he refused to testify in his own behalf owing to a claimed fear of prejudice founded upon the possible admission into evidence of a prior conviction;
(4) whether, where police officers had hours to obtain warrants, but did not, a warrantless search was unreasonable and a warrantless arrest was without probable cause;
(5) whether a claimed misstatement of facts during the closing argument by the State to the jury deprived him of a fair trial; and
(6) whether the sentence imposed upon him was excessive.

At approximately 3 P.M. on September 12, 1969, defendant Anderson walked into an auto parts store owned and operated by Joe and Arnold Rubin, located at 8420 South Vincennes Avenue on Chicago’s south side. Anderson inquired of Joe Rubin concerning an auto part, and then left the premises. Approximately 20 to 25 minutes later, Anderson returned to the store carrying a brown paper bag, made a further brief inquiry, and then pulled from the bag a sawed-off shotgun and announced a holdup. Anderson was followed in the front door of the store by a man later identified as defendant Davis, who brandished an automatic pistol with a "clip” in the handle bottom, similar to those carried by Army officers. Thereupon, a third man appeared, coming in behind Davis, and he also carried a gun, characterized as a police-type revolver.

Defendant Davis ordered the Rubins to put their hands up, and then began to empty the store’s cash register drawer, ultimately removing the entire cash tray from the drawer, which contained approximately $900 in paper currency and change. After further demands for money, the Rubin brothers handed over about $100 in cash and a $50 personal check from their wallets. The three men then left the store.

None of the three intruders wore masks or gloves during the incident, which lasted approximately 5 to 6 minutes. The area in which the incident took place was brightly lit by fluorescent lighting, the tubes for which had been changed some few days earlier.

Immediately after the incident, the police were telephoned, and Officer William Lieber responded to the call. Officer Lieber testified that, upon his arrival at the scene, he spoke with the Rubins and obtained descriptions of the three men. The men were described as follows: all three were male Negroes; one stood approximately 5' 10" or 5' 11" tall and weighed about 150 to 160 pounds; the second was 5' 9" or 5' 10" tall, of medium build, and wore a little goatee and a mustache—he was of a darker complexion than the other two; and the third was described as very slightly built and much shorter than the other two. Additionally, Lieber procured a description of a Cadillac convertible, bearing the license number KD8819, which allegedly had been used by the three men. After- having unsuccessfully combed the area for the auto, Officer Lieber sent out a radio flash message describing the auto to the police robbery detail, one of whom was James Doyle, a police investigator.

Investigator Doyle testified that, after having spoken with the Rubin brothers and Officer Lieber, and having obtained a description of the three men, the auto, and its license number, he checked the auto’s registration through the Secretary of State’s office, and, at approximately 6:50 P.M. on the day of the incident, he, along with three other police officers, proceeded to the vicinity of 21st Street and Springfield Avenue; that the officers placed the location of 2104 South Springfield—the address given him as that of the registrant, defendant Robert L. Davis, by the Secretary of State—under surveillance; that, at approximately 7 P.M., a Cadillac, bearing the license number KD8819, approached the area under surveillance; that the auto was occupied by three male, Negro passengers, two of whom rode in the front seat, the third in the rear seat; that the auto parked, and the driver, defendant Davis, got out of the driver’s side and walked back to the trunk of the auto carrying a brown paper bag; that the four officers drove up to the auto, got out of their car, and that he, Doyle, went back to where Davis was opening the trunk of the Cadillac; and that, as Davis attempted to throw the brown paper bag, Doyle grabbed the bag, the bag split, and a shotgun fell out and onto the pavement.

Doyle went on to testify that he recovered the shotgun and two other weapons which were in the brown paper bag: a .32-caliber automatic pistol and a lightweight, snub-nosed “Colt” revolver; that the auto’s three occupants, Davis, defendant Anderson, who had been seated in the passenger side of the front seat, and a third man, who had occupied the rear seat, were arrested and searched; that a white paper bag containing $14 or $15 in nickles, dimes, quarters, and pennies was taken from Anderson’s person; that a brown paper bag containing $20 to $25 was taken from the person of the third man in the rear seat; and that $43 in United States currency was taken from Davis’s person.

Later in the evening of September 12, 1969, the Rubins were summoned to the police station and were asked to view, separately, a lineup of four male Negroes, three of whom were the men arrested at the Springfield address. The fourth man in the lineup, who stood approximately 5' 10" in height, weighed about 160 pounds, and had gray hair, was a Chicago police officer. Both Joe and Arnold Rubin identified the three suspects as the men who had earlier in the day robbed their auto parts store. Subsequent to the lineup and identifications, the Rubins identified the weapons confiscated by Doyle and his fellow officers as those which had been used by the three men during the holdup. During the course of their trial testimony, the Rubins again identified Davis and Anderson as two of the three men who had robbed them; the third man was not tried with the two defendants in the case at bar.

Tire brother of defendant Anderson testified that Anderson on September 12, 1969, and at the time of the trial, was 6' 1" tall. Investigator Doyle, on rebuttal, testified that on September 12, 1969, defendant Anderson told him he was 5' 11" tall and weighed 165 pounds. Thereafter, defendant Anderson stood before the jury upon the request of his attorney.

The record further shows that the recovered weapons, as well as the two bags of currency and coins which had been confiscated, were admitted into evidence; the $43 taken from defendant Davis’s person was not admitted.

I.

Defendant Davis urges that because the police officers involved in his apprehension failed to obtain warrants for his arrest and search, his arrest was without probable cause and the search made unreasonable.

We have carefully examined the record presented here, and we find a complete lack of any objection to the admission of the evidence presented below on the ground that it had been obtained as the result of an illegal search or that Davis’s arrest, itself, was illegal. Furthermore, the alleged errors were not included in defendant’s written motion for a new trial, and, as this court said at page 664 of People v. Jennings (1st Dist. 1972), 5 Ill.App.3d 661, 284 N.E.2d 41, ‘When grounds for a new trial are stated in writing, a defendant on review is limited to the errors set out in the post-trial motion, and all others are regarded as having been waived. People v. Irwin, 32 Ill.2d 441, 207 N.E.2d 76; People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840; People v. Landry, 123 Ill.App.2d 86, 259 N.E.2d 604; People v. Harper, 127 Ill.App.2d 420, 262 N.E.2d 298.”

Because we find that neither defendant nor his counsel moved to suppress the allegedly illegally obtained evidence or the allegedly illegal arrest in the court below, we do not consider those questions here. People v. Harris (1965), 33 Ill.2d 389, 211 N.E.2d 693.

On oral argument, counsel for defendant Davis, for the first time in this appeal, called this court’s attention to an alleged discrepancy in the testimony of Investigator Doyle. At the preliminary hearing, Doyle testified that three guns which he described, were on the front seat of the car at the time defendants were apprehended. He further said “It was in a brown paper bag.” At the trial, Doyle testified that defendant Davis—when he got out of the car and proceeded to the trunk of the car—attempted to throw a brown paper bag, which then split, and a shotgun fell out. No attempt was made during any examination of Doyle to confront him with the apparent conflict. Whether this was as the result of trial strategy or whatever the reason may be, we cannot now speculate. This point was not raised in the trial court in any post-trial motion. In any respect, even assuming there is a conflict, we fail to see any error in light of the totality of the record.

II.

Defendants contend they were deprived of due process in that their in-court identifications allegedly resulted from an unnecessarily suggestive pretrial lineup and were not established by independent origin. The defendants, however, never moved to suppress the Rubins’ identification testimony either prior to or during their trial in the court below; the record before this court is devoid of any objection by either defendant to the introduction into evidence of the identification testimony on the grounds now advanced for the first time on appeal. Therefore, we conclude, as did this state’s supreme court in similar circumstances presented in People v. Studdard (1972), 51 Ill.2d 190, 198, 281 N.E.2d 678, “that all these objections to the show-up identification were waived and cannot now be reviewed.” See also People v. Harris, supra, at pages 390-391, where the court said: “Justice will not be served by permitting a defendant to proceed through an entire trial without raising alleged error and then take advantage of such error on an appeal from an adverse judgment.”

III.

Defendant Davis contends that he was not afforded a fair trial in that his refusal to testify in his own behalf in the court below resulted from what he claims to have been a fear of prejudice founded upon the possible admission into evidence of a prior conviction. He states on appeal that he feared that proof of a prior conviction, or facts from another case, would be used in rebuttal to impeach his credibility.

After the State had rested its case against Davis and Anderson, a discussion took place, without the presence of the jury, to determine whether defendants were going to testify. Defendant Davis’s counsel in the trial court stated that he had talked with his client, had gone over .the case with him, and had discussed the possibility of his impeachment if he elected to testify. Further, counsel stated that he had advised Davis formally, and very strenuously, not to take the witness stand. After having explained to counsel that the decision of whether Davis should testify was to be made by counsel and his client, the trial judge admonished counsel that the situation was “not a matter for the court to become involved in at all. It is a decision you must make.” Thereupon, counsel for defendant Davis rested his case.

Defendant Davis argues that his refusal to testify was based on his fear that proof of a prior conviction of facts from another case would be used in rebuttal to impeach his credibility. The record contradicts this contention.

Counsel for defendant Anderson made an oral “motion for a protective order.” It is clear that, although there was some discussion about the possible applicability of People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695, the State indicated that it would not use prior convictions for impeachment, but it did not intend to waive its right to cross-examine the defendants if they should take the stand. The record also showed that Anderson’s counsel was in fact allowed to exhibit him to the jury and thus to indicate his height, which was the only issue discussed as the intended subject-matter of Anderson’s proposed testimony in the trial court.

The State points out that there is no authority for the proposition urged by the defendant, namely, that the rule announced in People v. Montgomery, supra, should be the subject of an admonishment by the trial judge to the defendant, even where the defendant is represented by counsel. In People v. Roberson (1964), 30 Ill.2d 168, 195 N.E.2d 722, cited by the State, the trial judge did not advise the defendant, who was represented by counsel, that he need not testify, and the supreme court stated at page 170: “In the present case the defendant was represented by counsel of his own choice and we are of the opinion that it was not necessary for the trial judge to advise the defendant that he need not testify. His voluntary testimony at the request of his own attorney waived the constitutional privilege against self-incrimination.”

Similarly, under the facts here, both defendants, represented by counsel, voluntarily chose not to testify. The Montgomery question, while discussed, was never really put in issue. The record is silent as to any specific facts upon which the trial court could intelligently rule. The trial judge was not required to advise the defendants whether or not, in his opinion, it was prudent for them to testify. Defendant’s refusals .to testify, therefore, were voluntary and not the result of any error on the part of the trial judge.

IV.

Both defendants contend that the prosecutions evidence in the court below failed to establish their guilt beyond a reasonable doubt. Defendants were positively identified by the Rubin brothers as two of the men who had robbed them during a 5- or 6-minute incident, which took place at 3:15 in the afternoon, in a flúorescent-lit store, and during which defendants were unmasked. StiU further, the police, armed with a description of defendants, as well as of the auto used in the robbery and its license number, apprehended defendants in that very auto, registered to one of the defendants, a few hours after the commission of the offense; at that time, they were in possession of the very weapons which were later identified as those which had been used in the robbery. Both victims separately identified the defendants about 7 hours later.

For the purposes of disposing of this issue, it will suffice to quote from People v. Novotny (1968), 41 Ill.2d 401, 244 N.E.2d 182, where our supreme court addressed itself, at page 412, to the question of proof of guilt beyond a reasonable doubt:

“It is neither the duty nor the privilege of a reviewing court to substitute its judgment as to the weight of disputed evidence or the credibility of witnesses for that of the trier of fact who heard the evidence presented and observed the demeanor of the witnesses (People v. Mills, 40 Ill.2d 4, 19; People v. Anderson, 30 Ill.2d 413; People v. Orlando, 380 Ill. 107, cert. denied 317 U.S. 694, 87 L.Ed. 555, 63 S.Ct. 435); and we will not reverse a criminal conviction where the evidence is not so improbable as to raise a reasonable doubt of guilt. People v. Mills; People v. Ashley, 18 Ill.2d 272, cert. denied 363 U.S. 815, 4 L.Ed.2d 1157, 80 S.Ct. 1255."

Based upon a reading of the record on appeal, and in adherence to the settled law of this state, we find that defendants in the case at bar were proven guilty beyond a reasonable doubt in that the evidence presented below was not so improbable as to raise a reasonable doubt of guilt. See People v. Stringer (1972), 52 Ill.2d 564, 568-569, 289 N.E.2d 631.

V.

Defendant Davis further contends that he was deprived of a fair trial owing to claimed misstatements of facts by prosecution counsel to the jury during the closing argument. Davis cites three instances of alleged misstatements by the prosecution: first, certain references made to the State’s failure to introduce fingerprint evidence, though police department technicians had processed the occurrence scene for same; second, certain statements made with respect to the fact that the auto registered to defendant Davis had been used in the robbery, when, it is claimed, Officer Lieber’s testimony was devoid of any reference to the source of the auto’s description or license number; and third, this statement, made by prosecution counsel to the jury: “You don’t have to worry about the police protecting his rights. The court protects the rights of anybody on trial.”

With respect to the first instance, we find that, while the prosecutor made reference to the lack of fingerprint evidence (to which objection was made and sustained), defense counsel, in his earlier argument, had attempted to cast doubt upon the prosecution’s case by, himself, commenting on the failure of the State to produce fingerprint evidence. Without belaboring the point, we find, upon a reading of the record, that prosecution counsel’s remarks were made in response to earlier defense counsel remarks on the same subject, and it is the law of this state that one cannot provoke a reply to his own improper argument and then claim error. People v. Anderson (1971), 48 Ill.2d 488, 498, 272 N.E.2d 18.

Regarding the second instance, upon review of Officer Lieber’s testimony, we are of the opinion that it may be reasonably inferred from his statements that the source of the description of the vehicle and its license number was in evidence, as well as the fact that the auto was registered to defendant Davis. It is to be noted that objection to these statements was not made in the trial court; moreover, Officer Lieber was subject to cross-examination on these points, and, if there was doubt in defense counsel’s mind, he could have availed himself of an appropriate line of questioning. We find that the second instance to which defendant refers was not a misstatement of the facts.

The third instance of claimed misstatements, set out above, is, in our judgment, an anomaly with respect to the proceedings, whose meaning— much less its import—we are unable to divine.

In any event, we hold that the alleged misstatements in all the instances called to our attention by defendant did not constitute material factors in his conviction and that they were of such minor character that prejudice would not be their probable result. People v. Smothers (1973), 55 Ill.2d 172, 176, 302 N.E.2d 324; City of Chicago v. Lawrence (1969), 42 Ill.2d 461, 467-468, 248 N.E.2d 71; People v. Swets (1962), 24 Ill.2d 418, 423, 182 N.E.2d 150.

VI.

Finally, defendant Davis contends that the two concurrent sentences of from 15 to 40 years imposed upon him were excessive and that a review of those sentences should now be considered under the provisions of the Unified Code of Corrections. (Ill. Rev. Stat. 1973, ch. 38, par. 1001—1—1 et seq.) He contends specifically that sections 5—3—1 and 5—8—1(c)(2) of the Code were not considered with respect to the imposition of the sentences.

Section 5—3—1 provides as follows:

“A defendant shall not be sentenced before a written presentence report of investigation is presented to and considered by the court where the defendant is convicted of a felony. The defendant may waive the presentence investigation and written report.”

Section 5—8—1(c)(2) provides:

“(c) The minimum term shall be set according to the following limitations:
(2) for a Class 1 felony, the minimum term shall be 4 years unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, set a higher minimum term; * * *.”

Regarding section 5—3—1, defendant claims that because no presentence report was requested or presented in the court below prior to sentencing, a new hearing in aggravation and mitigation should be afforded at which time defendant may present said report. With respect to section 5—8—1(c)(2), defendant asks that this court review the minimum sentence imposed, as the setting of a minimum sentence higher than four years for a Class 1 felony, such as armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18—2), requires that file sentencing court have before it the history and character of the defendant, which, allegedly, the court below did not have.

The record indicates that on May 21, 1971, the trial court conducted a thorough hearing in aggravation and mitigation as to each defendant before imposing each sentence. The effective date of the Unified Code of Corrections was January 1, 1973. We find nothing in the Code which would indicate any legislative intent to require the retroactive application of section 5—3—1, even before final adjudication in this court. (See People v. Brezezinski (1973), 15 Ill.App.3d 509, 305 N.E.2d 32.) Section 8—2—4 of the code (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008—2—4) provides that "sentences under this Act apply if they are less than under the prior law upon which the prosecution was commenced.” This language specifies only that the substantive sentencing provisions of the Code supercede the prior law when less than under the prior law. The Code does not provide retroactive effect for its other provisions.

As to section 5—8—1(c)(2), which is a sentencing provision, the provision is inapplicable to the defendant under the terms of section 8—2—4. Recently in People v. Killebrew (1973), 55 Ill.2d 337, 303 N.E. 2d 377, the supreme court, at page 343, rejected similar contentions of an appellant convicted of armed robbery in the following language:

“At the time the defendant was prosecuted and sentenced armed robbery was an offense punishable by ‘any indeterminate term with a minimum of not less than 2 years.’ Ill. Rev. Stat. 1967, ch. 38, par. 18—2(b).
Thus, the defendant does not fall within the sentencing provisions of the Code. Its sentencing provisions provide for a greater minimum sentence than was provided for in the prior law under which this defendant was prosecuted and sentenced.”

In our opinion, the sentences imposed do not contravene any of the provisions of the Code.

Defendant Davis, who was sentenced to not less than 15 nor more than 40 years, complains about the disparity with the 10-to-30-year sentence imposed upon defendant Anderson. He relies upon People v. Richmond (2nd Dist. 1969), 107 Ill.App.2d 394, 245 N.E.2d 916. We have reviewed the record as to the hearing in aggravation and mitigation. In our opinion, the able, experienced trial judge was in a better position than is the reviewing court to determine the proper punishment. We find no error in the sentences imposed.

The judgment of the circuit court of Cook County is affirmed as to each defendant.

Judgments affirmed.

HAYES, P. J., and STAMOS, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE LEIGHTON

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Robinson et al., Defendants-Appellants.
    (No. 57154;
    First District (2nd Division)
    March 20, 1974.

      Frederick F. Cohn, of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Elmer C. Kissane, Randall T. Sims, and James Truschke, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

In a seven-count indictment, defendants Anthony Robinson and Kenneth Simmons, together with one David Goss who is not involved in this appeal, were jointly charged with murder, armed robbery, aggravated battery and unlawful restraint. Goss was tried alone and convicted. A short time later, defendants pled guilty to murder, armed robbery and aggravated battery. Robinson was sentenced to serve concurrent terms of 25 to 100 years for murder; 5 to 10 years for armed robbery and aggravated battery. Simmons was sentenced to serve concurrent terms of 15 to 40 years for murder; 5 to 10 years for armed robbery and aggravated battery.

Thereafter, defendants, represented by a new lawyer, filed a timely motion to withdraw their pleas of guilty. The motion was denied. They then took a direct appeal to the Illinois Supreme Court on the ground that then- case contained constitutional questions which gave that court jurisdiction. However, on motion of the Attorney General, the appeal was transferred to us for disposition. Thus, we are asked to review issues which are raised from procedural events which happened the day defendants pleaded guilty to the charges against them. We will discuss these in the order of their occurrence.

On February 10, 1971, defendants and Goss were in court for trial. Goss and his lawyer were ready. Defendants, however, were not, because then lawyer was occupied in another court. Therefore, at their request, their cases were continued; but the trial court proceeded to hear, as against Goss, the same charges that were pending against defendants. The record shows that after hearing evidence which proved the conduct of all the indictees, the trial judge said:

“The Court has listened to the testimony of the witnesses for the State and the defendant in this case of David Goss, age 18. There isn’t any question in the Court’s mind that the charge of murder was proven insofar as Mr. Robinson [the Anthony Robinson in this case] is concerned. I wouldn’t say that that [the killing alleged in the indictment] should be considered murder; that should be considered an execution. Robinson, from the testimony that I heard, was an executioner. And the deceased didn’t have a prayer of a chance. * * * [I]f three gentlemen walked into a bank with the intention of robbing a bank, and one of the gentlemen shot the guard or a teller in the bank, even though the intention of the other two was to just rob the bank, all three are guilty of murder. * * *”

On February 18, defendants were in the courtroom of the same judge. Their lawyer told him that on the day before, from a copy of a report of proceedings, he learned of and shared with defendants the conclusions concerning their guilt which the trial judge reached when he heard the evidence against Goss. The lawyer explained that his clients had decided to waive a jury and take a bench trial. However, he said, because of the conclusions concerning their guilt which the trial judge had reached, defendants feared that they could not receive a fair trial before him. Therefore, on behalf of each defendant, and on the ground that tire judge was prejudiced against them, the lawyer said he was filing a motion for substitution. The motions were filed. A hearing was held, during which the trial judge admitted he made the statements attributed to him. At the conclusion of the hearing, the motions were denied. From this ruling, defendants present the issue whether denial of their motions for substitution of judge was error.

Defendants’ motions were filed more than ten days after the cause was placed on the trial call of the judge. Substantively and procedurally, they were governed by the subsection of the statute which provides that “* * * any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion the court shall conduct a hearing and determine the merits of the motion.” (Ill. Rev. Stat. 1969, ch. 38, par. 114—5(c).) Therefore, the right to substitution of judge under this subsection is not absolute; the merits of a motion under its provisions must be established at a hearing. (People v. Peter, 55 Ill.2d 443, 303 N.E.2d 398.) This being so, mere filing of such a motion does not affect a trial court’s power or authority. (Compare People v. Kostos, 21 Ill.2d 451, 173 N.E.2d 469; People v. Davis, 10 Ill.2d 430, 140 N.E.2d 675.) After a hearing, a court’s ruling on such a motion, even if erroneous, is not a jurisdictional defect. When a court has power to hear, it has the power to make a wrong as well as a right decision. (Pope v. United States (1944), 323 U.S. 1, 14, 89 L.Ed. 3, 65 S.Ct. 16; Fiore v. City of Highland Park, 93 Ill.App.2d 24, 235 N.E.2d 23; I.L.P. Courts § 11.) In this case, since there was a hearing, the proceedings subsequent to the court’s ruling were not void. (People v. Lagardo, 82 Ill.App.2d 119, 226 N.E.2d 492; compare People v. Ethridge, 78 Ill.App.2d 299, 223 N.E.2d 437; People v. Morrow, 100 Ill.App.2d 1, 241 N.E.2d 680; see Annot., 21 A.L.R.3d 1369.) It was for defendants, however, to prove that they had cause for substitution of judge. The question, then, is whether proof that the trial judge, after hearing evidence against a co-defendant, but before hearing evidence against defendants, concluded that they were guilty, showed prejudice which disqualified him to sit as the judge in their case.

Prejudice is a condition of the mind that imports the formation of a fixed anticipatory judgment as distinguished from opinions which yield to evidence. (Schipper & Block, Inc. v. Carson Pirie Scott & Co., 122 Ill.App.2d 34, 41, 256 N.E.2d 854.) Ordinarily, prejudice is not proved by direct and positive evidence; it is proved by circumstances, environment, association, relationship, and conduct of tire person who entertains it. (State ex rel. Conley v. Parks (1925), 32 Okla. Crim. 61, 239 P. 941.) Recognizing this fact, it is universally held that a judge who, before hearing a criminal case expresses conviction that the accused is guilty, cannot give that accused a fair and impartial hearing, and is thereby disqualified to sit as a trial judge. See Stamp v. Commonwealth (1922), 195 Ky. 404, 243 S.W. 27; Castleberry v. Jones (1940), 68 Okla. Crim. 414, 99 P.2d 174; Calhoun v. Superior Court of San Diego County (1958), 51 Cal.2d 257, 331 P.2d 648; compare Noel State Bank v. Blakely Real Estate Improvement Corp., 321 Ill.App. 594, 53 N.E.2d 621; Evans v. Superior Court of Los Angeles County (1930), 107 Cal.App. 372, 290 P. 662.

In the case before us, tire trial judge, from evidence he heard against David Goss, concluded that the defendant Robinson mercilessly shot and killed the victim of the homicide during a robbery. With understandable indignation, the judge characterized the conduct of Robinson as that of an executioner, and that of Simmons as a guilty party because he was accountable. When told that defendants had learned of his conclusions, the trial judge did not deny reaching them nor did he qualify their meaning in any way. In fact, in a later colloquy with defendants’ counsel concerning the matter, the judge said, “I heard the testimony. I came to that conclusion and my statement was correct.” This was an acknowledgement that before he had heard the case against them, the trial judge had acquired a personal conviction that defendants were guilty. “A fair trial under due process of law requires an impartial judge free from personal conviction as to the guilt or innocence of the accused.” (People ex rel. Przyblinski v. Scott, 23 Ill.App.2d 167, 170, 161 N.E.2d 705, aff'd 19 Ill.2d 500, 167 N.E.2d 194.) Therefore, under the circumstances of this case, it is our judgment that denial of defendants’ motion for substitution of judge was error. See People v. Ehrler, 114 Ill.App.2d 171, 252 N.E.2d 227; People v. Arnold, 76 Ill.App.2d 269, 222 N.E.2d 160.

However, defendants later pleaded guilty. They now contend that the guilty pleas were invalid because (1), they were not admonished, as required by Supreme Court Rule 402(a) (4) of their right to confront witnesses; (2), the trial court abused its discretion when it denied a motion for continuance which their lawyer made in order to prepare their defense; (3), their pleas of guilty were coerced by the adverse rulings the trial court made on their motions for change of judge and the motion for continuance. Therefore, we are required to decide whether it was an abuse of discretion for the trial court to deny defendants’ motion for a continuance; whether, as required by Supreme Court Rule 402(a)(4), defendants were properly admonished before they pleaded guilty to the charges against them; and whether their pleas of guilty were voluntary.

Our code of criminal procedure provides that “[a]ll motions for continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the movant.” (Ill. Rev. Stat. 1969, ch. 38, par. 114—4(e).) The right to a continuance, even for the purpose of preparing for trial, is not absolute; its grant or denial is a matter left to sound judicial discretion. (People v. Wilson, 29 Ill.2d 82, 193 N.E.2d 449; People v. Davis, 45 Ill.2d 514, 261 N.E.2d 314.) The record shows that defendants’ discovery motion had been answered. A biH of particulars had been given them. Four previous continuances had been granted at their request. And it appears that the trial court took into account the proven trial abiHty and other professional obligations of the lawyer representing defendants. In our judgment, the trial court did not abuse its discretion when it denied defendants’ motion for a continuance. (See People v. Young, 6 Ill.App.3d 119, 285 N.E.2d 159; People v. Harvey, 5 Ill.App.3d 499, 285 N.E.2d 179; compare People v. Johnson, 110 Ill.App.2d 292, 249 N.E.2d 194.) And as to the trial court’s admonitions to defendants before their guilty pleas were accepted, we find them adequate and in substantial compliance with the rule of the Illinois Supreme Court. (See People v. Miller, 3 Ill.App.3d 712, 279 N.E.2d 64; People v. Charleston, 14 Ill.App.3d 452, 302 N.E.2d 687 (Abstract opinion).) We turn, then, to the question whether defendants’ pleas were voluntary.

The record shows that after the trial judge denied defendants’ motions for change of judge, no further reference was made to this fact either by defendants or their counsel. After the motion for continuance was denied, the only reference to the ruling was counsel’s comment, “I just wanted to express my position, Judge.” Thereafter, defendants requested the court’s permission to talk with members of their family. The permission was granted. Then, defendants conferred with their counsel. A short time later, without any hint or suggestion of any kind that the prior adverse rulings on their motions were influencing their conduct, defendants, by their counsel, moved to withdraw their not guilty pleas and enter pleas of guilty to murder, armed robbery and aggravated battery. After acknowledging the seriousness of defendants’ request, the trial judge admonished them concerning the consequences of their pleas on their right to a jury trial. Then, he advised them about the sentences they could receive. On several occasions the trial judge inquired of each defendant whether his pleas were voluntary. Each time, defendants assured the trial judge that they were. Neither in their responses nor in the conduct of their lawyer was there any suggestion that defendants were acting under coercion. We conclude that defendants’ pleas of guilty were voluntarily made, with the advice of experienced counsel and with the benefit of admonitions given them by the trial judge.

A guilty plea is a break in the chain of events which precedes it in the criminal process; therefore, when a criminal defendant solemnly admits in open court that he is in fact guilty of the offense with which he is charged, he cannot thereafter raise independent claims that prior to entry of the guilty plea he was deprived of statutory or constitutional rights. (See Tollett v. Henderson (1973), 411 U.S. 258, 36 L.Ed.2d 235, 93 S.Ct. 1602.) Consistent with this broad general principle, we have held that a plea of guilty, voluntarily and understandingly made, waives aH non-jurisdictional defects and errors. (People v. Jones, 7 Ill.App.3d 146, 287 N.E.2d 227; People v. Krause, 7 Ill.App.3d 970, 289 N.E.2d 89 (Abstract opinion).) It follows that the error which the trial court made when it denied defendants’ motions for substitution of judge was waived when defendants voluntarily and understandingly pled guilty.

There remains one issue for our review; whether, on the facts shown in the record, the multiple sentences for armed robbery and aggravated battery were proper. Although defendants’ argument on this issue is somewhat cryptic, we gather the claim that the two offenses for which the multiple sentences were imposed arose out of the same conduct. (See People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316; People v. Scott, 43 Ill.2d 135, 251 N.E.2d 190.) However, our examination of the facts to which defendants stipulated convinces us that the armed robbery and the aggravated battery against the victim in question were two separate and distinct crimes, each punishable by separate and distinct sentences. (See People v. Johnson, 44 Ill.2d 463, 256 N.E.2d 343; People v. Chambers, 15 Ill.App.3d 23, 303 N.E.2d 24; Ill. Rev. Stat. 1969, ch. 38, par. 1—7(m).) Therefore, the multiple sentences were proper. The judgments are affirmed.

Affirmed.

HAYES, P. J., and STAMOS, J., concur.


author: PER CURIAM.

text:
    Forty-Seventh & Cicero Currency Exchange, Inc., Plaintiff-Appellee, v. C. Austin Montgomery, Director of Financial Institutions, et al., Defendants-Appellants.
    (No. 57997;
    First District (2nd Division)
    March 20, 1974.
    DOWNING, J., took no part.
    Duffy and Jordan and Sheldon Goldman, both of Chicago, for appellant Thillens, Inc.
    Carey, Filter & White, of Chicago (Edward M. White, of counsel), for appellee.
   PER CURIAM.


author: Mr. JUSTICE McGLOON

text:
    Joann Crane Gray, Adm’rx of the Estate of Leroy Crane, Deceased, Plaintiff-Appellant, v. Raymond J. Schottmiller, Defendant-Appellee.
    (No. 56676;
    First District (3rd Division)
    March 21, 1974.
    A. J. Hardiman, of Hardiman & Lynch, of Chicago, for appellant.
    Clausen, Hirsh, Miller & Gorman, of Chicago, for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is a wrongful death action in which the plaintiff, administratrix of the estate of the decedent, alleged that as a result of an automobile collision the defendant negligently caused the death of the decedent. Although a jury demand was originally filed by the defendant, the case was tried before the trial judge without a jury. At the conclusion of the plaintiffs case, pursuant to the defendant’s motion under section 64(5) of the Civil Practice Act for a finding in his favor, the trial judge entered judgment for the defendant.

In this appeal the plaintiff alleges that the trial judge erred in allowing the defendant to withdraw his jury demand immediately prior to trial, and that the trial judge erred in granting judgment for the defendant at the close of plaintiff’s case.

We affirm.

The pertinent portions of the record on appeal are as follows: In 1966 the plaintiff filed a multi-count complaint in which she alleged that the instant defendant and a second defendant, one Dan Taylor, had negligently caused the death of the decedent when the three drivers were involved in a three-car accident on the Eisenhower Expressway in Chicago. The complaint also complained of three other defendants in a ‘dram shop count’; however, these defendants were dismissed prior to trial. The plaintiff did not file a jury demand when the complaint was filed.

The defendant Schottmiller answered the complaint, denying the allegations of negligence, and, at the same time, filed the appropriate form demanding a trial by jury.

When the case came on for trial the only defendant appearing was the instant defendant. It appears from the record that sometime during the pendency of the action the ‘dram shop count’ was dismissed and that the plaintiff was unable to serve the defendant Taylor. In any event, the plaintiff voluntarily dismissed Taylor during the trial.

On the first day of trial, before beginning the jury selection, the defendant moved to waive the jury that he had previously demanded. The trial court granted defendant’s motion over the plaintiffs objections. The pertinent portions of the evidence adduced at trial came through the testimony of two witnesses; the section 60 examination of the defendant; and an occurrence witness, Roy Helmerson.

The defendant testified that on Sunday, May 8, 1966, at about 5:15 A.M., he was proceeding in an easterly direction on the Eisenhower Expressway. He further testified that on that morning he was driving at a speed of 30 to 35 miles per hour in the most northerly of the three eastbound lanes. At that time of the early morning it was still dark and there was a light rain falling, characterized as “mist”, and occasional patches of fog. He had his headlights on low beam and traffic was described as “light”.

As the defendant passed under the Lombard Avenue overpass he saw the decedent’s auto stopped with no lights or flares displayed, facing a south-southeast direction, and straddling the northern-most and middle eastbound lanes. (It is apparent from the record that moments before this the decedent’s auto had been struck, head on, by an auto driven by Taylor who was proceeding west in the eastbound lanes.) The defendant further testified that in his estimation he was 50 to 70 feet from the decedent’s auto when he first saw it. He immediately applied his brakes and swerved to the left in an attempt to avoid hitting the obstructing vehicle. The right front of his car struck the right rear of decedent’s. The defendant testified that the accident happened suddenly, in a matter of seconds from the time he saw the defendant’s car, and that he did his best to avoid the collision.

Roy Helmerson testified that he too was driving on the Eisenhower Expressway early on the morning of May 8, 1966. Although it was somewhat unclear from his testimony, it appears that he was travelling in the same northern-most, eastbound lane. He was some distance ahead of the defendant when he came upon the decedent’s stopped vehicle. He testified that he saw the decedent’s unlighted vehicle stopped ahead of him. Helmerson drove to the right and successfuUy went around the decedent’s car without making contact with it. As he passed the decedent’s car he saw a head moving inside the car. He further testified that when he was approximately 50 feet past the decedent’s car, he heard the explpsion which occurred as the defendant struck tire decedent’s vehicle.

At the conclusion of the plaintiff’s case, defendant moved for judgment pursuant to section 64(5) of the Civil Practice Act. The trial judge granted the motion and entered judgment for the defendant and against the plaintiff.

The plaintiff first contends that it was error for the trial court to allow the defendant to withdraw his jury demand immediately prior to trial after the parties had participated in settlement negotiations with the trial judge. The plaintiff argues that because certain frank and open statements concerning liability and damages were made by both counsel and the court during settlement negotiations, the defendant, by waiving demand for a jury, gained a tactical advantage over the plaintiff by having the case heard by a trial judge who “could possibly be influenced” by matters previously discussed.

Beyond the fact that the plaintiff has not alleged actual prejudice but merely the possibility of prejudice, it has been held that the systematic order of procedure provided for jury demands in section 64 of the Civil Practice Act will be applied unless the trial court, in its discretion and for good cause shown, allows the plaintiff additional time to file a jury demand pursuant to the provisions of section 59 of the Civil Practice Act and Supreme Court Rule 183. (Hudson v. Leverenz (1956), 10 Ill. 2d 87, 139 N.E.2d 255.) Plaintiff cites no cases to support her position and we feel the allegation that the plaintiff was somehow “possibly” prejudiced when she participated in settlement negotiations in the belief that the case would be tried by a jury does not make the required showing of “good cause” that would allow the suspension of the provisions of section 64. (Smith v. Realcoa Construction Co. (1973), 13 Ill.App.3d 254, 300 N.E.2d 855.) Therefore, the trial judge did not err in allowing the defendant to waive his jury demand.

The plaintiff also contends that the trial judge erred in granting the defendant judgment at the close of plaintiff’s case. The plaintiff argues that the trial judge misconstrued or ignored certain competent evidence which proved a prima facie case against the defendant and that, therefore, the motion should not have been granted.

Ill. Rev. Stat. 1969, ch. 110, par. 64(5) provides:

“In all cases tried without a jury, defendant may, at the close of plaintiffs case, move for a finding, judgment or decree in his favor. In ruling on the motion the court shaH weigh the evidence. If the rufing on the motion is favorable to the defendant, a judgment or decree dismissing the action shall be entered. If the rufing on the motion is adverse to the defendant he may proceed to adduce evidence in support of his defense, in which event the motion is waived.”

This provision requires the trial judge, at the close of plaintiffs case, to evaluate the evidence by determining the credibility of the witnesses, reasonable inferences to be drawn from the evidence, and, in general, the weight and quality of the testimony, in order to conclude whether or not the evidence to that point of the trial has made out a prima facie case in favor of plaintiff. (De Bello v. Checker Taxi Co. (1972), 8 Ill.App.3d 401, 290 N.E.2d 367.) On appeal, the reviewing court must itself examine the evidence and determine whether or not the trial court erred in deciding the case contrary to the manifest weight of the evidence. De Bello v. Checker Taxi Co., supra; Bilyeu v. Plant (1966), 75 Ill.App.2d 109, 220 N.E.2d 513; Chappell v. Juergens (1973), 11 Ill.App.3d 469, 297 N.E.2d 270.

We have examined all the evidence and find that the judgment of the trial court was not contrary to the manifest weight of the evidence. The salient evidence in this regard is as follows: the uncontradicted testimony that on the morning of the accident it was stfil dark, with' fight rain and occasional patches of fog; that the decedent’s unlighted vehicle was stopped, after having been struck head on by the Taylor vehicle, blocking completely at least one lane of the expressway. At least one vehicle, driven by Helmerson, came upon the decedent’s vehicle and was able to drive around it to the right. The uncontradicted testimony of the defendant was that he was travelling at 30 to 35 miles per hour; that he saw the decedent’s vehicle when he was 50 to 70 feet from it; that he immediately applied his brakes and swerved to the left. His evasive actions, however, were unsuccessful and he struck the decedent’s vehicle resulting in an explosion and fire. The defendant testified that the entire incident occurred in a matter of seconds and that he had done his best to avoid the collision.

No inference of negligence arises from the mere happening of an accident or an injury. (Summers v. Hopwood (1970), 125 Ill.App.2d 441, 261 N.E.2d 36.) There are cases where the facts present a chain of circumstances which make an accident unavoidable and there is, therefore, no negligence. (See Wilson v. Nichols (1941), 311 Ill.App. 73, 35 N.E.2d 396, where the court affirmed a verdict for the defendant where there was evidence of an icy road condition causing a chain-reaction type collision; and Threatt v. U.S. Steel Corp., 283 F.2d 411 (7th Cir. 1960), where the court held there was ample evidence to show that the plaintiff’s injuries were the result of the accident alone when, at a busy intersection, one car stopped suddenly and a multi-car rear end collision occurred.) These principles have also been applied to cases where one vehicle was stopped, blocking following traffic. In Hoffman v. Wilson (1965), 60 Ill.App.2d 396, 208 N.E.2d 607, the court affirmed a verdict for defendant, where, at dusk, the defendant struck plaintiff’s vehicle in the rear as plaintiff was stopped on the road waiting to make a turn and the defendant testified he applied his brakes as soon as he saw the plaintiff, but was unable to stop on a slippery road.

We find, as apparently the trial court did, that the instant case is similar to those cited above. There was no evidence adduced at trial to contradict the defendant’s description of his collision with the decedent’s vehicle. This testimony discloses that the defendant, while travelling at a moderate rate of speed under poor visibility conditions, came upon the decedents unlighted vehicle stopped in the lane in front of him and that he was unable to avoid impact with it. In this regard it has been held that whether a person driving at night on a straight highway should, by use of ordinary care, have seen, in the light of his own headlights, a dark or inadequately lighted object is a question for the trier of fact. Warren v. Patton (1954), 2 Ill.App.2d 173, 119 N.E.2d 465; Summers v. Hopwood (1970), 125 Ill.App.2d 441, 261 N.E,2d 36.

Although there are some apparent inaccuracies in the trial judge’s extemporaneous summary of the testimony of the witnesses, after our own review of the evidence, we find that the decision of the trial court is not contrary to the manifest weight of the evidence.

In view of this holding it is unnecessary for us to consider the question of whether the plaintiff proved, or was required to prove, that the defendant Schottmiller alone proximately caused the death of plaintiff’s decedent.

For these reasons the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE MEJDA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Stephens, Defendant-Appellant.
    (No. 57156;
    First District (3rd Division)
    March 21, 1974.

      Sam Adam, Edward Marvin Genson, and James J. Cutrone, all of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Barry Rand Elden, Kenneth L. Gillis, and Frank Deboni, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

After a trial without a jury, defendant was convicted of unlawful possession of heroin in violation of Ill. Rev. Stat. 1969, ch. 38, par. 22—3. Following a hearing in aggravation and mitigation the defendant was sentenced to a term of 1 to 3 years in the Illinois State Penitentiary. On appeal, defendant initially contends that the trial court erred in refusing to suppress evidence seized pursuant to a search warrant on the ground that the police officers executing the warrant gained entry into defendant’s apartment by force, without a prior announcement of either authority or purpose. We agree. Inasmuch as we must reverse, only those facts pertinent to the initial issue will be set forth.

On May 14, 1971, a complaint for search warrant was filed by Officer Charles Jackson of the Chicago Police Department alleging that a reliable police informer had observed a quantity of heroin in the defendant’s apartment and had purchased a portion of it from the defendant. A search warrant was issued for the person and apartment of defendant, and at 11 A.M., on the same day, Officer Jackson, together with Officers Arnold and King, forcibly entered defendant’s apartment which was located in a hotel at 1380 East 51st Street in the city of Chicago. The defendant was found alone in the apartment and was dressed in pajamas. A search of his person resulted in the discovery of a packet of heroin in the pocket of his pajama top, and he was then placed under arrest. During a further search of his apartment several packets of heroin were found on top of a bedroom dresser.

Defendant’s motion to quash the search warrant because of insufficient allegations, and his further motion to allow a hearing as to the truthfulness of the allegations in the complaint for search warrant were denied. After a jury waiver the only witness called by the State at defendant’s trial was Officer Jackson. On cross-examination he testified that when he and the other officers approached the door to defendant’s apartment they neither knocked nor made any other announcement of their presence. He further testified that immediate entry was made into the apartment by Officer King and himself by forcing the door open with their feet, stating that Officer King “did put his foot on there and kicked the door open.” At the conclusion of the witness’ testimony, defendant moved that the evidence seized in the apartment be suppressed because the method of entry employed by tire police violated the fourth amendment to the United States Constitution. The motion was denied.

The defendant’s contention is that the trial court erred in not suppressing the seized evidence in that it is unreasonable under the fourth amendment for police to effect an entry by force into a private dwelling without making a prior announcement of authority and purpose unless at the time of the entry circumstances exist which justify removing the necessity for a prior announcement. In support of this premise defendant cites several Federal and sister State cases. The State denies that any prior announcement of authority and purpose is constitutionally required before police may effect an entry by force to execute a search warrant, and in support of that position the State relies upon People v. Hartfield (1968), 94 Ill.App.2d 421. The State argues that all the cases cited by defendant as supporting the proposition that a prior announcement of authority and purpose is a constitutional necessity are cases wherein either a Federal or State statute requires such an announcement, and that Illinois has no such statutory requirement.

The Illinois statute relating to the execution of search warrants provides:

“All necessary and reasonable force may be used to effect an entry into any building or property or part thereof to execute a search warrant.” (Ill. Rev. Stat. 1971, ch. 38, par. 108—8.)

By its terms, this statute neither condones nor prohibits forcible, entries in the absence of a prior announcement of authority and purpose. It follows that a determination of whether a forcible entry may be made under the authority of this statute without any prior announcement rests upon constitutional grounds, for, at the minimum, this statute must be consistent with constitutional guarantees against unreasonable searches and seizures.

In Ker v. California (1963), 374 U.S. 23, the United States Supreme Court was called upon to review the constitutionality of state police officers effecting an entry into a defendant’s apartment through the use of a passkey without a prior announcement of their authority and purpose. The officers had entered the premises to arrest the defendant for possession of marijuana. A California statute provided that officers could break into a dwelling to effect an arrest only after stating their purpose in demanding admission and being refused such admission. The court observed that California case law had recognized an exception to the announcement requirement of the statute where exigent circumstances existed at the time of entry. After emphasizing that its determination was based upon a constitutional reference the court held that under the circumstances of that case, where the defendant was believed to be in possession of marijuana, and his previous furtive actions suggested that he was expecting the arrival of the police, the method of entry employed by the officers and sanctioned by State law was not unreasonable under the standards of the fourth amendment. The four justices who dissented in Ker agreed that the existence of exigent circumstances could remove the constitutional necessity of an announcement of authority and purpose prior to making a forced entry, but disagreed with the majority’s application of that exception to the facts of that case. In their dissent, the justices delineated other possible exigent circumstances which could excuse compliance with the announcement requirement, including circumstances justifying a belief that the authority and purpose of the officers is already known to the occupants, circumstances justifying a belief that a person inside the premises or the officers themselves are in imminent danger, or circumstances wherein the occupants have been made aware of someone’s presence outside, and their subsequent actions justify a belief that they are attempting to destroy evidence or flee.

Subsequent to the decision in Ker, and based upon it, several Federal and State courts have held that the fourth amendment prohibits forced entries to execute a search warrant without a prior announcement of authority and purpose, except where exigent circumstances justify the failure to give notice. United States ex rel. Ametrane v. Gable, 401 F.2d 765 ( 3rd Cir. 1968); United States v. Tracy, 350 F.2d 658 ( 3rd Cir. 1965), cert. denied 382 U.S. 943 (1965); State v. Dusch, 289 N.E.2d 515 (Ind. 1972); Commonwealth v. Newman (1968), 429 Pa. 441, 240 A.2d 795.

The State cites People v. Hartfield, supra, as support for its contention that in the absence of an express statutory requirement, the failure to make an announcement of authority and purpose prior to a forced entry does not infringe constitutional rights. Although in Hartfield, wherein the police announced their office, the court stated that the fact that no purpose is announced prior to a forceful entry is not a per se violation of constitutional rights, the court made that statement in recognition of possible exigent circumstances which may arise in a particular case to remove the necessity for a prior announcement. The context of the court’s statement becomes apparent from its holding that as in the Ker case, there existed a circumstance which justified the failure to give a prior announcement of purpose; that is, the defendant was believed to be in possession of easily disposable narcotics. We do not feel that the Hartfield case is authority for the proposition that no constitutional infringement can ever arise from an unannounced forcible entry.

We find Ker to be controlling as to this issue, and under its mandate constitutional guarantees against unreasonable searches and seizures extend to the circumstances under which forcible entries may be made to execute search warrants in this State. Consequently, we construe section 108—8 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 108—8) to prohibit forced entries to execute search warrants without a prior announcement of authority and purpose, unless at the time of entry there exist circumstances which excuse compliance with this requirement. In so holding, we are not unmindful of the practical ramifications of unannounced forcible entries into private dwellings. The possibility of mistake and the inherent dangers to both the occupants and the police in effecting entry in this manner are obvious.

Nothing in this opinion should be taken as an attempt to establish an all-inclusive or restricted categorization of what circumstances would be sufficient to negate the need for a prior announcement of authority and purpose, for that determination is one of reasonableness which must be made on a case-by-case basis. By its very nature, however, any judicial determination as to the existence of exigent circumstances removing the necessity of a prior announcement must be limited to those facts which were within the knowledge of the police officers at the time they effected the forced entry.

In the instant case, it is argued by the State that the officers were justified in not announcing their authority and purpose prior to entering defendant’s apartment because the defendant was believed to be in possession of an unknown quantity of heroin which might be readily destroyed during any delay in effecting entry. During oral argument of this appeal, the State admitted that no other reason existed for the method of entry employed by the officers. This same justification argument was presented to and rejected by the California Supreme Court in People v. Gastelo (1967), 63 Cal. Rptr. 10, 12, 432 P.2d 706:

“The Attorney General contends that unannounced forcible entry to execute a search warrant is always reasonable in narcotics cases, on the ground that narcotics violators normally are on the alert to destroy the easily disposable evidence quickly at the first sign of an officer’s presence.
We do not agree with this contention. Neither this court nor the United States Supreme Court has held that unannounced forcible entries may be authorized by a blanket rule based on the type of crime or evidence involved. Indeed in the Ker case the court was divided 4 to 4 on the question whether the evidence offered to excuse compliance with the notice and demand requirements was sufficient. [In Ker, Justice Harlan was of the opinion that Fourth Amendment standards should not be applied to the states. Thus, the judgment of conviction was affirmed, 5-4.] * * *
* # e
Under the Fourth Amendment, a specific showing must always be made to justify any kind of police action tending to disturb the security of the people in their homes. Unannounced forcible entry is in itself a serious disturbance of that security and cannot be justified on a blanket basis. Otherwise the constitutional test of reasonableness would turn only on practical expediency, and the amendment’s primary safeguard—the requirement of particularity—would be lost. Just as the police must have sufficiently particular reason to enter at aH, so must they have some particular reason to enter in the manner chosen.”

Similarly, the Superior Court of Pennsylvania, in Commonwealth v. Riccardi (1971), 220 Pa. Super. 72, 75, 283 A.2d 719, 721 stated:

“Notwithstanding the above, the Commonwealth argues that this case presents ‘exigent circumstances’ suspending the announcement requirement simply because the police believed that the drugs would be easily destroyed. However, as the Supreme Court of this Commonwealth stated in Commonwealth v. Newman, 429 Pa. 441, 240 A.2d 795 (1968): ‘The fact that some lottery paraphernafia is easily destroyed does not justify the suspension of the Fourth Amendment in all lottery prosecutions. One of the prices we have to pay for the security which the Fourth Amendment bestows upon us is the risk that an occasional guilty party will escape. 429 Pa. at 448, 240 A.2d at 798 [citation omitted].’
To excuse the pofice’s failure to announce their purpose and presence and thereafter to aHow a reasonable time for the voluntary surrender of the premises, there “* * * must be more than a presumption that the evidence would be destroyed because it could be easily done. Commonwealth v. DeMichel, supra, at 563, quoting State v. Mendoza, 104 Ariz. 395, 399, 454 P.2d 140, 144 (1969).’
The entry by the police in the circumstances of this case violated the standards of the Fourth Amendment.”

Other courts have also rejected a blanket removal of announcement requirements in narcotics cases. (State v. Dusch, supra; State v. Hatcher (1970), 3 Wash.App. 441, 475 P.2d 802.) Likewise, we cannot accept the contention that the nature of the narcotic sought herein is in and of itself a sufficient basis for noncompliance with the announcement requirement which we have construed section 108—8 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 108—8) to contain. This corut is aware that People u. Hartfield, supra, passed approvingly on the blanket removal of any announcement requirement in narcotics cases but did so in finding the factual situation similar to that found in the Ker case. As in Ker, upon which Hartfield relied, we require that “[i]n addition to the officers’ belief that [defendant] was in possession of narcotics, which could be quickly and easily destroyed, * * (emphasis added) further reasons exist to establish the exigent circumstances which excuse the prior announcement. In Ker the same consisted of “* * * Ker’s furtive conduct in eluding them shortly before the arrest was ground for the belief that he might well have been expecting the police.” 374 U.S. 23, p. 40.

In the instant case the State concedes that the only reason at the time of entry to excuse any announcement was the belief that defendant was in possession of a narcotic which might be readily destroyed. Therefore, we conclude that there were no exigent circumstances to justify the forcible entry without any announcement. The trial court erred in denying defendant’s motion to suppress the evidence which was seized pursuant to the execution of the search warrant, and as it was the only evidence upon which a finding of guilty could be predicated, the judgment must be reversed.

In view of the conclusion reached herein we do not deem it necessary to consider other contentions raised by defendant. The judgment and sentence of the circuit court of Cook County are reversed.

Reversed.

McNAMARA, P. J., and McGLOON, J., concur.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael P. Toomin, Defendant-Appellant.
    (No. 57172;
    First District (3rd Division)
    March 21, 1974.
    James J. Doherty, Public Defender, of Chicago (Stanton Bloom, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and James E. Staruck, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Respondent, Michael P. Toomin, an attorney, appeals from an order adjudging him guilty of direct contempt of court for certain conduct during his representation of two defendants, Robert Montgomery and Brian Pace, in a criminal case in the circuit court of Cook County. (On this same date, we have filed an opinion relating to one of those defendants, People v. Montgomery (1974), 18 Ill.App.3d 828. The precise basis for the contempt order was respondent’s .refusal to disclose to the trial court how he had obtained a copy of an official police report used to impeach successfuHy a witness for the State.

Respondent’s clients were charged with multiple counts of attempt murder and aggravated battery. During the course of their trial, the judge issued a discovery order directing the State to furnish to respondent any and all reports prepared by police officers who thereafter would be testifying as witnesses. In conformance with this order, Morgan Lloyd, the arresting officer, furnished the State a purported copy of his original arrest report. The State, in turn, gave a copy to respondent. The document bore Lloyds signature, but it failed to indicate the time and place of his signature and did not have the signature of Lloyd’s supervising officer. The copy was marked as Defendant’s Exhibit No. 1 for Identification.

Respondent cross-examined Lloyd at trial regarding the incident. Lloyd recalled that Luis Pagan had informed him that two men had just attacked his friends with a baseball bat. The officer stated that Pagan had told him that the two assailants had run east toward the lake, and he rejected any suggestion by respondent at trial that Pagan had told him the men had run west.

At this time respondent produced a second document, another copy of a police report, subsequently marked as Defendant’s Exhibit No. 2 for Identification. It contained not only Lloyd’s signature but also the time stamp of the Chicago Police Department and the signature of Lloyd’s superior. Officer Lloyd then admitted that the second copy contained a statement not found in the first exhibit, specifically that Pagan had told him that the two offenders “ran west through Lincoln Park.” The officer produced his handwritten notes which also contained the statement found in Exhibit No. 2. Officer Lloyd concluded that Exhibit No. 2 and not No. 1 was the correct copy of the original and official police report, and his assertion was not challenged by the prosecutor.

After Lloyd had concluded his testimony and the jury had been excused, the trial judge asked respondent how he had obtained the second report. Respondent replied that he would be unable to supply that information, and the judge directed him to appear that afternoon prepared to defend his position. Respondent subsequently informed the trial court that the reasons for his refusal to respond to the court’s inquiry were his conception of professional responsibility, the protection of his work product, and the immateriality of the inquiry. The record discloses that respondent was respectful at all times in presenting his position. The judge perceived the problem as being the non-compliance by the State with the original discovery order, and he apparently believed that he could safeguard his orders only by questioning respondent as to how the second exhibit had been obtained. Respondent again respectfully replied that he could not answer the court’s question, and the judge orally cited respondent for direct contempt of court. Upon respondent’s request, the matter was deferred until the criminal trial had been completed. At that time the trial judge reaffirmed his earlier finding of direct contempt in a written judgment order and fined respondent $100. From this judgment respondent appeals.

Respondent contends that the trial court erred in finding him guilty of contempt of court for the following reasons: the court’s inquiry was not germane to the material issues involved at trial; the inquiry was constitutionally proscribed; the judgment order recited a mere conclusion unsupported by facts in the record; and where an attorney’s disobedience of a court order is based upon a sincere belief that the order is illegal, such action is not contemptuous.

Respondent initially urges that the court’s inquiry was immaterial in regard to any issue involved at trial because there was no issue regarding the authenticity of the second exhibit, and that thereby respondent was absolved of any possible contempt. The State counters that, since there was evidence that the court’s discovery order had not been complied with, the court had a direct interest in safeguarding its orders and that the court’s inquiry was properly directed to that effort.

To sustain on appeal a finding of direct contempt of court, it must be shown that the particular conduct was calculated to embarrass, hinder, or obstruct the court in the administration of justice, or to lessen its authority or dignity, or to bring the administration of law into disrepute. (People v. Miller (1972), 51 Ill.2d 76, 281 N.E.2d 292.) The party seeking to uphold the contempt order bears the burden of showing that the court was warranted in exercising its power. (People v. Tavernier (1943), 384 Ill. 388, 51 N.E.2d 528.) It should also be borne in mind that a court must exercise its power in direct contempt proceedings prudently and judiciously because normal constitutional safeguards are not applicable. (People v. Loughran (1954), 2 Ill.2d 258, 118 N.E.2d 310.

We believe that the trial court, under the facts and circumstances of the present case, erred in finding respondent’s conduct contemptuous. In our judgment a trial court may conduct the type of inquiry attempted here only if it is related to material and relevant issues involved in the case. It is axiomatic that the more remote an inquiry is from the central issues involved, the more difficult it will be to show that one’s refusal to participate in that inquiry, without more, constituted an act of direct contempt within the meaning set forth above. (See People v. White (1956), 8 Ill.App.2d 428, 131 N.E.2d 803.) It is quite difficult to perceive how an attorney’s unwillingness to participate in an immaterial and irrelevant inquiry can be characterized as a calculated obstruction to the administration of justice or a hindrance to the court in its normal functions. Any embarrassment suffered by the court as a result of a party’s failure to participate in such an inquiry would seem to be based on the wrongfulness of the order rather than any intentional effrontery to the court. See George v. Toal (1972), 6 Ill.App.3d 329, 286 N.E.2d 41 (abstract opinion).

An analysis of the facts in tire present case discloses that the inquiry by the trial court was in no way related to any material and relevant issue in the case. The second exhibit was utilized to impeach the arresting officer’s credibility, a proper exploratory collateral issue. We note that our supreme court has recently held that a trial judge is precluded from examining a statement to determine if it is in fact impeaching. (People v. Bassett (1974), 56 Ill.2d 285.) Moreover, the police officer, after being confronted with the conflicting exhibits, conceded that Exhibit No. 2 was the true copy of the original and official police report. Thus, the authenticity of the second document was not in issue. Since respondent’s respectful refusal to answer the court’s inquiry regarding an issue not germane to the case is the sole ground cited for his contempt, we do not believe that his conduct thwarted the administration of justice; nor was it contemptuous.

We appreciate the trial judge’s concern over the fact that the State had not complied with his discovery order. However, we believe that a proper investigation could have been undertaken in a supplemental proceeding, with the onus of explanation resting upon the State, and specifically upon the arresting officer. The prosecution carries a heavy burden in making this type of document available to a defendant in a criminal case, and the inquiry should have been directed at the State’s witness, rather than at respondent.

Because of our holding on this issue, it is unnecessary to examine respondent’s other contentions. For the above reasons, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

DEMPSEY and McGLOON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert D. Montgomery, Defendant-Appellant.
    (No. 57173;
    First District (3rd Division)
    March 21, 1974.

      Michael P. Toomin, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and James Staruck, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Robert D. Montgomery, was charged with attempt murder and aggravated battery upon Justo and Angel Rivera. A jury found him guilty of both charges as to Justo Rivera, guilty of aggravated battery upon Angel Rivera, and not guilty of attempt murder of Angel Rivera. The court imposed one sentence for the crimes against Justo Rivera, and sentenced defendant to a term of 5 to 15 years for attempt murder. The trial court sentenced defendant to a term of 5 to 10 years for the aggracated battery upon Angel Rivera. The sentences were to run concurrently. Brian Pace was charged with the same crimes, was tried in absentia with defendant, and is not involved in this appeal. Defendant contends that the trial court erred in precluding him from introducing into evidence a statement attributed to the absent Pace, in failing to tender to the jury certain instructions and verdict forms requested by defendant, in entering judgments of guilt on verdicts predicated upon the same act or series of acts, and in sentencing him to a term of years for the aggravated battery upon Angel Rivera unsubstantiated by the jury verdict.

Defendant and Pace were both present in court when the trial judge commenced jury selection. On the morning of the second day of voir dire, the privately retained counsel representing both defendants informed the court that he did not know the whereabouts of Pace. In response to the court’s inquiries, defendant stated that he had not seen Pace since early the previous evening and that he doubted that Pace would voluntarily return to the trial. After discussing with the prosecutor and defense counsel the possible legal consequences of Pace’s abrupt departure, the trial judge concluded that the proceedings had reached a point whereby jeopardy had attached to Pace and that his absence could be deemed a voluntary waiver of his constitutional right to be present at trial, thus enabling the State to try him in absentia with defendant. After the court denied defense counsel’s motion to withdraw as attorney for Pace, the voir dire continued. Pace did not reappear at trial.

On the next day, defense counsel moved on behalf of Pace for a severance. Without detailing the substance of the communications, defense counsel stated that, as a result of a meeting he had with defendant on the previous evening, he would offer in evidence a certain statement that would tend to exonerate defendant at the expense of inculpating Pace. Counsel attempted to justify the untimeliness of the motion by claiming that Pace’s absence had triggered defendant’s remarks to him. The trial court reserved ruling on the motion, and the State commenced putting in its evidence.

Eight eyewitnesses, including the victims, testified for the State. On August 10, 1969, defendant and Pace interrupted a baseball game engaged in by the Rivera family in Lincoln Park in the city of Chicago, seeking to join the game. The father, Justo Rivera, refused, saying that they were ready to quit and go home. Defendant walked about 20 feet away, but Pace insisted that he be given the bat and the ball. An argument ensued, and Pace struck Justo Rivera, threatening to kill him. Defendant ran over, grabbed Justo from behind, locked the father’s arms over his head, and held him while Pace continued to punch Justo. Eleven-year-old Angel Rivera came to his father’s defense and struck both assailants with a baseball bat. While defendant maintained his hold on Justo Rivera, Pace chased Angel and, upon catching him, first kicked and then struck the boy with the bat several times on the head, causing blood to flow down the youth’s face. Pace then returned and, as defendant continued to hold Justo, hit the latter several times with the bat until he fell unconscious to the ground.

James O’Kennard testified for the State to a similar set of facts. On cross-examination, the witness recalled his observations of Pace and defendant during the attack. O’Kennard stated that Pace appeared to be under the influence of heroin. O’Kennard testified that defendant’s reflexes appeared better than Pace’s, and characterized defendant’s eyes as normal and his facial expression as not unusual.

Gerald Stevens testified for the State and supported the Riveras’ account of what had occurred. In his opinion neither Pace nor defendant had been under the influence of alcohol or drugs. On cross-examination, the witness admitted telling a defense investigator that the two assailants were "obviously higher than kites.”

Dennis McQuen, a friend of defendant and Pace, testified for the defense that the three of them had spent the afternoon listening to a rock festival in the park. Although other members of the group had popped pills and smoked marijuana that afternoon, he did not see either Pace or defendant indulge in anything except wine. The witness stated that both men were very drunk, but conceded that he himself had been intoxicated at the time he observed defendant’s condition.

Defendant testified that he had consumed approximately 2 quarts of wine over a 4-to-5-hour period on the afternoon preceding the occurrence. Although he recalled seeing white pills in the possession of some of his companions, he did not recall taking any. He further testified that he had no knowledge of anything that took place subsequent to the time Pace and he left the group in search of more wine. On cross-examination, defendant conceded that he had been lucid enough to remember the amount of wine he had drunk and the manner in which he had been arrested.

After the defendant had replied affirmatively to his counsel’s question, “Do you know today whether you consumed any pills at that particular place?”, the State objected and a hearing was held outside the jury's presence. To the State’s contention that the answer was incompetent as hearsay, defense counsel responded by making an offer of proof that, if the witness were permitted to testify, he would state that, on the evening of Pace’s disappearance prior to trial, Pace told defendant that he was responsible for getting defendant into the present predicament because he had placed pills in defendant’s drink prior to the attacks on the Riveras. Defense counsel stated that it was this information that had been the basis for his earlier motion for a severance. The trial judge held that the statement did not qualify as an exception to hearsay, and struck defendant’s answer. The court also denied the motion for severance.

Defendant’s first contention is that the trial court erred in denying defendant the right to introduce into evidence a statement attributed to the absent Pace which allegedly supported one of his defense theories. An ancillary position taken by defendant is that the court erred in denying the motion for a severance.

Defendant is in no position to question the propriety of the court’s action in denying the motion for severance. The motion was expressly made on behalf of Pace because, defense counsel feared the statement’s admission into evidence would impair the rights of Pace, not defendant. Hence the issue is not properly appealable by defendant. In any event, we are unable to discern how the defendant could have been prejudiced by the court’s action in denying the motion for severance. Had the court granted the motion made on behalf of Pace, the defendant would have had no way of properly introducing the statement into evidence. The statement was clearly hearsay because it was intended to prove the truth of the matter asserted. Defendant asserts that in the event of a severance the statement would have qualified as an exception to the hearsay rule since it constituted “an admission by an indicted co-defendant not joined at trial.” Such an assertion is not encompassed within any of the established hearsay exceptions, is not supported by any legal authority, and is rejected by this court.

Defendant argues, however, that the statement qualified as a party-admission and, therefore, is an exception to the hearsay rule, and should have been admitted into evidence. We believe that there are significant differences between the party-admission exception to the hearsay rule and the statement proffered in the present case. In the first place the party-admission exception only applies when the statement is sought to be introduced by a party-opponent (McCormick, Evidence, ch. 26, p. 628 ( 2d ed. 1972); Clearly, Handbook of Illinois Evidence, §17.11, pp. 280-281 (2d ed. 1963)), since the admissibility is based upon the adversary theory of litigation. (Morgan, Basic Problems of Evidence 265 (1962).) Here, defendant Montgomery, not the State, sought to introduce the statement of his codefendant Pace. The adversary naturé of the proceedings makes a second distinguishing factor evident. The underlying reason for introducing a statement attributed to a party-opponent is, naturally, to use the statement substantively against him. Here, however, the defendant was disinterested in using the statement against the absent Pace. He sought to introduce the statement solely to exculpate himself. A third important element goes to the very roots of the party-admission exception to hearsay. This exception is not affected by the hearsay rule, which excludes extra-judicial assertions if there was no opportunity to cross-examine, because it is the party-opponent’s own statement and he need not cross-examine himself. It is said that the hearsay rule is thus satisfied since the party “now as opponent has the full opportunity to put himself on the stand and explain his former assertion.” (4 Wigmore, Evidence, §1048, pp. 2—5 (3d ed. 1940).) Yet, in the instant case, not only did Pace voluntarily absent himself from trial, but it was codefendant’s own attorney who sought to have the statement admitted. We conclude that the statement did not qualify as a party-admission exception to the hearsay rule, and that the trial court properly excluded it.

Defendant's next contention is that the trial court erred in refusing defendant’s verdict forms for simple battery. Moreover, he argues that the State’s failure to address itself to this issue in its brief amounts to a confession of error.

Under Supreme Court Rules 341(e)(7) and (f), the failure of an appellee to argue a point in its brief waives the issue for purposes of oral argument. However, this procedural rule does not deprive us of jurisdiction, and in our discretion, as we so decide in tire instant case, we may determine the issue ignored in appellee’s brief. People v. Marro (1972), 4 Ill.App.3d 197, 280 N.E.2d 560; People v. Keeney (1968), 96 Ill.App.2d 323, 238 N.E.2d 614.

A defendant tried for aggravated battery is not entitled to have the court tender a verdict form to the jury on tire lesser-included offense of simple battery in the absence of evidence in the record to support that offense. (People v. Day (1972), 2 Ill.App.3d 811, 277 N.E.2d 745.) Defendant did not dispute at trial the eight eyewitness accounts depicting how he held Justo Rivera while Pace struck first Angel and tiren Justo repeatedly with a baseball bat. Although Angel did not remain at the hospital, he was taken immediately to a hospital for treatment and to receive stitches. He was also confined to his home for about 10 days and at the time of trial he bore a scar on his head. Justo Rivera was in the hospital for 21 days in critical condition, having sustained a fracture of the skull. Since the evidence in the record indisputably satisfied the elements which distinguished aggravated battery from simple battery, no instruction for the crime of simple battery had to be given.

Defendant next argues that the court’s failure to instruct the jury on the statutory definitions of the terms “intentionally” and “knowingly” constituted prejudicial error. The record reveals that the trial judge properly instructed the jury on all the elements of the crimes with which defendant was charged, on the theory of accountability, and on the affirmative defense of intoxication. We reject defendant’s contention that the failure of the court to further define the above two terms, found in several of the instructions, made it impossible for the jury to determine defendant’s conduct with respect to any ascertainable standard.

To define the terms “intentionally” and “knowingly” in the context of the intoxication instruction would not have aided the jury. “Intoxication” is a self-defining term well within the comprehension of the jury. The jury was informed that the defendant bore no criminal responsibility if it found that defendant was intoxicated at the time of the attacks. We further believe that under these facts and circumstances the instructions in question would not have been helpful to the jury in the context of enlightening the jury more concerning the substantive elements of the crimes charged. Both terms have plain meanings within the July’s common knowledge. People v. Wick (1970), 125 Ill.App.2d 297, 260 N.E.2d 487 (abstract opinion); see State v. Siekermann (Mo. S.Ct. 1963), 367 S.W.2d 643.

Defendant further contends that the conventions for the attempt murder of Justo Rivera and for the aggravated battery upon Angel Rivera emanated from the same act or series of acts, and that therefore the aggravated battery conviction should be reversed. In presenting this argument, defendant concedes that the trial court imposed only one sentence for his convictions of attempt murder and aggravated battery of Justo Rivera. He argues, however, that since he maintained a constant position throughout the attacks on both Justo and Angel, he could not receive a separate sentence for the aggravated battery upon Angel.

A person cannot be convicted of two or more offenses resulting from the same conduct. (Ill. Rev. Stat. 1969, ch. 38, par. 1—7(m).) Conduct is defined as “an act or series of acts, and the accompanying mental state.” (Ill. Rev. Stat. 1969, ch. 38, par. 2—4.) It is clear that separate offenses may arise from a series of closely related acts, which crimes are clearly distinct and require different elements of proof. People v. Johnson (1970), 44 Ill.2d 463, 256 N.E.2d 343, cert. denied (1970), 400 U.S. 958.

Defendant misses the point when he argues that he maintained a constant position during the course of the attacks. He was tried and convicted upon a theory of accountability, and therefore his actions must be analyzed in connection with the acts of Pace, the principal. The attack upon Angel Rivera commenced only after the youth came to the defense of his father. After Angel struck each defendant once with the baseball bat, Pace chased the youth, caught him about 15 feet away, and hit him three or four times with the baseball bat. He then returned to the father and beat him with the bat. Although the attacks were closely related in time and space, they were clearly separate and distinct crimes. (People v. Smith (1972), 6 Ill.App.3d 259, 285 N.E.2d 460.) Defendant properly received separate punishments for the crimes against Justo and Angel Rivera.

Defendant’s final contention is that the sentence rendered by the court upon his conviction for aggravated battery upon Angel Rivera was not justified by the verdict. Defendant was indicted and tried upon two counts of aggravated battery in relation to the attacks upon each victim. One of the counts (Ill. Rev. Stat. 1969, ch. 38, par. 12—4(a)), is predicated upon the commission of a battery "caus[ing] great bodily harm,” punishable by a sentence of one to ten years, while the other (Ill. Rev. Stat. 1969, ch. 38, par. 12—4(b) (1)), is premised upon the commission of a battery “us[ing] a deadly weapon,” punishable by a sentence of 1 to 5 years. Although the jury was instructed upon each count, the verdict form tendered the jury did not distinguish between the two types of offenses. Thus, the verdicts returned by the jury simply stated that defendant was guilty of the crimes of aggravated battery upon Justo and Angel Rivera. The trial judge imposed only one sentence upon defendant for his acts against Justo Rivera, a sentence of 5 to 15 years for attempt murder. The court further sentenced defendant on the aggravated battery verdict relating to his attack on Angel Rivera to 5 to 10 years, both sentences to run concurrently.

The defendant argues that tire second sentence rendered by the court was unsupported by the verdict returned by the jury, for although the sentence was obviously based upon a conviction under 12—4(a), there is nothing in the record to suggest upon which type of aggravated battery offense the jury’s finding was based.

We agree with defendant’s contention. We also believe that the evidence presented supports a guilty verdict under either section of the statute. Accordingly, we will vacate the sentence imposed for the aggravated battery of Angel Rivera, and instead impose the statutory minimum sentence permitted under the section carrying the lesser sentence.

Defendant’s sentence for the aggravated battery of Angel Rivera, therefore, is reduced to 1 to 5 years, the sentence to run concurrently with his sentence imposed for the attempt murder of Justo Rivera. And as so modified, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed as modified.

DEMPSEY and McGLOON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Robert Tornabene, Defendant-Appellant.
    (No. 57561;
    First District (3rd Division)
    March 21, 1974.

      James J. Doherty, Public Defender, of Chicago (Ian Levin, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Frederic Chaimson, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by Mr. PRESIDING JUSTICE McNAMARA.