text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dennis Kent, Defendant-Appellant.
    (No. 58590;
    First District (4th Division)
    March 13, 1974.

      James J. Doherty, Public Defender, of Chicago (Lee T. Hettinger, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Algis Baliunas, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant was found guilty of reckless conduct and sentenced to a term of one year in the House of Correction.

The only issue presented on appeal is whether the charge set forth in the complaint was defective for duplicity.

Complainant, Adolph Buckley, charged the defendant, Dennis Kent, “on November 6, 1972, at 534 W. Division Street, committed the offense of reckless conduct in that he intentionally and knowingly without legal justification caused bodily harm and endangered the life of Adolph Buckley, by recklessly discharging a shotgun pointed at the victim, Adolph Buckley, in violation of Chapter 38, Section 12—5 of the Illinois Revised Statutes.” The complaint was filed along with another complaint charging the defendant with battery. The court read the charges to the defendant as follows:

“COURT: All right, Mr. Kent, you are charged with the misdemeanor offense of reckless conduct in that you intentionally and knowingly without legal justification caused bodily harm and endangered the life of Adolph Buckley by recklessly discharging a shotgun pointed at the victim. Do you understand the charge against you?
MR. KENT: Yes, sir, your Honor.
* * *
COURT: How do you wish to plead?
MR. KENT: Not guilty.”

The evidence showed that the defendant approached a group of youths, hit his chest with his hand, a sign which meant “Stone love,” and fired a sawed-off shotgun into the group. After the close of the evidence, there was a finding of guilty as to the offense of reckless conduct, and a discharge on the battery since it arose out of the same transaction. This appeal addresses itself only to the language set forth in the first complaint.

The defendant contends the complaint is defective for duplicity by virtue of charging two separate and distinct offense»—battery and reckless conduct—in one count. Defendant argues the statutory language of battery was charged by the language “intentionally and knowingly without legal justification caused bodily harm to Adolph Buckley,” while at the same time the statutory language of reckless conduct was charged by the language “caused bodily harm and endangered the life of Adolph Buckley, by recklessly discharging a shotgun pointed at the victim.” Defendant bases his contention on the decision in State v. Morton (1946), 142 Me. 254, wherein the court stated:

“The well established rule of criminal pleading that prohibits the joinder of two or more substantive offenses in the same count, is important to every respondent. It is necessary that a person who is accused of a crime should know the specific charge against him in order that his rights be protected. Each count should, therefore, present only a single issue which, if sustained, subjects the accused to a punishment that is specified.”

We believe there was no duplicity in the instant complaint which charged but one offense, that of reckless conduct. The prosecution in the instant complaint charged the defendant with reckless conduct. In another complaint, upon which the defendant was discharged, the crime of battery was charged. The instant complaint correctly charged the offense of reckless conduct. In addition, the words “intentionally and knowingly” were appended. These words were merely surplusage or “multifarious,” and do not confuse or contribute to the clearly charged offense of reckless conduct. In People v. Ross (1961), 21 Ill.2d 419, 420, the Illinois Supreme Court stated:

“Duplicity is the joinder of two or more distinct offenses in the same count of an indictment. [Citations.] It arises from charging more than one offense, and not from charging a single offense in more than one way, or pleading different acts contributing to the ultimate charged offense, and averments, however multifarious, will not constitute duplicity when all matters taken together constitute one connected charge.”

In the case at bar, there was “one connected charge,” reckless conduct, and no multifarious language can alter that fact.

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

Affirmed.

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


source: Caselaw Access Project

author: Mr. JUSTICE DIERINGER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Homer Robinson, Defendant-Appellant.
    (No. 58746;
    First District (4th Division)
    March 13, 1974.
    James J. Doherty, Public Defender, of Chicago (Suzanne M. Xinos, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and John M. Cutrone, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendant, Homer Robinson, was charged with deviate sexual assault, contributing to the sexual delinquency of a child, and indecent liberties with a child. In a bench tidal in the Circuit Court of Cook County, the defendant was convicted of indecent liberties with a child and sentenced to the penitentiary for a term of 7 to 15 years.

The sole issue on appeal is whether the sentence was excessive.

The defendant was discovered by police parked in an alley with his penis in the mouth of the 6-year-old daughter of the family with which he lived. She told police and testified at trial to that fact.

The defendant, who had one leg, denied the crime and stated he had just urinated out of the car door. The defendant had a long arrest record but had not previously been found guilty of any sex crimes. Prior to trial there was a Behavior Clinic examination and the defendant was found competent to stand trial.

Indecent liberties is a Class 1 felony for which the minimum sentence is “4 years unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term.”

This court’s power to reduce a sentence should only be utilized where there has been “ * * a great departure from the fundamental law and its spirit and purpose, or that the' penalty is manifestly in excess of the proscription of section 11 of article II of the Illinois Constitution, which requires that all penalties shall be proportioned to the nature of the offense. * " People v. Taylor (1965), 33 Ill.2d 417; People v. Smith (1958), 14 Ill.2d 95.

After reviewing the record we conclude the sentence was appropriate and does not violate the proscriptions of People v. Taylor.

For these reasons the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Erskine Sankey, Defendant-Appellant.
    (No. 58944;
    First District (4th Division)
    March 13, 1974.
    Paul Bradley, Deputy Defender, of Chicago (Martin Carlson, Assistant Appellant Defender, of counsel), for appellant.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendant, Erskine Sankey, was charged in a four-count indictment with armed robbery, attempted murder and two counts of aggravated battery. Following a bench trial in the Circuit Court of Cook County the defendant was found guilty of aimed robbery and attempted murder, and he was sentenced to two concurrent terms of 5 to 15 years in the penitentiary.

The issues for review are whether the two offenses arose out of the same conduct; whether the minimum term of the sentence must be reduced pursuant to the provisions of the Unified Code of Corrections; and whether the maximum term of the defendant’s sentence is excessive and should be reduced.

The complaining witness, an 84-year-old man, testified he was returning to his apartment after having paid his rent and had $80 in his pocket. He was struck from behind on his head and fell to the floor, where he was struck several more times. He was taken to the hospital, where he received a total of 121 stitches.

After trial and during the hearing in aggravation and mitigation, the defendant admitted he and his sister-in-law had gotten drunk and planned to take the old man’s money. He stated he threw him down and hit him with a wrench. The defendant contends his sole objective in striking the victim was to assist his sister-in-law in the robbery.

He expressed remorse for what he had done, stated he had a drinking problem at the time of the offense but had not had a drink since January of 1972. The defendant was 34 years old, with no prior felony conviction, was married and had seven children. Prior to his arrest he had been steadily employed.

Before imposing sentence the judge stated he was impressed by the defendant’s conduct during the trial and his background, and he had no doubt that if he were placed on probation, there would be no further problem. However, he also stated he had a responsibility to protect society and on that basis sentenced him to a term of 5 to 15 years. The penalty for armed robbery at the time of sentencing was any indeterminate term with a minimum of not less than 5 years (Ill. Rev. Stat. 1971, ch. 38, § 18—2), and the penalty for attempted murder was not to exceed 20 years (Ill. Rev. Stat. 1971, ch. 38, § 8—4(c)).

Under the Unified Code of Corrections both attempted murder and armed robbery are Class 1 felonies for which the minimum term is 4 years “unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term.”

The defendant contends the convictions for armed robbery and attempted murder were based on the same conduct and the conviction for the lesser offense must be reversed. Although at the present time both crimes are classified as Class 1 felonies, at the time they were committed the defendant argues that the sentence for armed robbery was potentiaUy greater and, therefore, the conviction for attempted murder should be reversed.

In the case of People v. Prim (1972), 53 Ill.2d 62, the defendant and three codefendants boarded a bus, announced that it was a holdup, and money was taken from the passengers. When one of the passengers resisted, she was shot and tilled. The court held that the two crimes of attempted armed robbery and murder arose out of the same conduct and a single sentence should have been imposed; that being for the more serious offense of murder. Also, see People v. Stewart (1970), 45 Ill.2d 310.

In the case at bar, the injuries inflicted on the complainant were for the purpose of effectuating the robbery; therefore, only a single sentence is proper. Because both convictions are Class 1 felonies and the injuries inflicted were for the purpose of carrying out the robbery, the conviction for attempted murder should be reversed. Inasmuch as the minimum term for a Class 1 felony is 4 years, and the defendant had no prior record, the minimum sentence is reduced to 4 years.

The judgment is affirmed as modified, that is, 4 years to 15 years. The judgment of guilty of attempted murder is reversed.

Affirmed in part and reversed in part.

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


text:
    Evodio Rivera et al., Plaintiffs-Appellants, v. George M. Taylor et al., Defendants-Appellees.
    (No. 58965;
    First District (4th Division)
    March 13, 1974.
    Piacenti, Cifelli & Pigato, of Chicago (Nicholas Liontakis, of counsel), for appellants.
    Jacobs, Williams and Montgomery, Ltd., of Chicago (Wyatt Jacobs, Lloyd E. Williams, Jr., and Alan C. Torgerson, of counsel), for appellees.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

Tire plaintiffs, Evodio Rivera, Juanita Rivera, Alicia Longorio, and Roberto Longorio, originally brought this action against the defendant, George Taylor, in the Circuit Court of Cook County on August 7, 1970, as the consequence of an automobile accident which occurred in Illinois on August 10, 1968.

After it was discovered the defendant had died in Indiana on March 10, 1969, and letters of administration had been issued to his widow 3 days later, the plaintiffs were granted leave to file an amendment to tire complaint adding an additional count and adding Robert Grossi, the administrator of the defendant’s estate in Illinois, as a party defendant on December 1, 1971. On January 20, 1972, the administrator filed his motion to dismiss, which was sustained.

The issue for review is whether section 19 of the Limitations Act (Ill. Rev. Stat. 1967, ch. 83, §20) has extraterritorial effect so as to require the plaintiff to file a suit within 9 months after the issuance of letters testamentary to defendant’s estate outside the State of Illinois.

The accident occurred in Illinois on August 10, 1968, and the defendant died on March 10, 1969. His wife was appointed administratrix of his estate on March 10, 1969. This lawsuit was filed on August 7, 1970, in Illinois naming George Taylor as defendant. Sendee was attempted via the Illinois long-arm statute, and the original summons was returned “not found” by the sheriff of Lake County, Indiana.

An alias summons was issued and served upon the Illinois Secretary of State and notice of sendee of process was sent by registered mail to George Taylor and was signed for by “Mrs. G. M. Taylor.” Subsequently, negotiations were carried on between the attorneys for the plaintiffs and representatives of the Employers Mutual Insurance Company, which had a policy covering the defendant in effect at the time of the accident

On August 16, 1971, the insurance company informed the plaintiffs’ attorneys of the death of the defendant.

On October 21, 1971, Robert Grossi was appointed administrator of the estate of the defendant by the probate division of tire Circuit Court of Cook County. The plaintiffs were then granted leave to file the amendment to their complaint.

The statute of limitations for negligence actions in Illinois is 2 years (Ill. Rev. Stat. 1971, ch. 83, §15), but if the potential defendant dies, the time within which an action may be brought is modified by section 19 of the Limitations Act, which provides in part:

“If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred, an action may be commenced against his executors or administrators after the expiration of the time limited for the commencement of the action, and within 9 months after the issuing of letters testamentary or of administration.”

The plaintiffs contend the action was filed against the Illinois administrator within the 9-month period allowed by section 19 and the complaint should not have been dismissed. They argue that interpreting the statute to give extraterritorial effect such that an action must be filed within 9 months of issuing letters of administration outside the State of Illinois puts too great a burden on a plaintiff, requiring him to check all of the death records of all courts in the United States. They argue the legislative purpose of the statute is best served by construing the statute to mean that suit must be filed within 9 months of the appointment of an Illinois administrator.

The defendant maintains that giving extraterritorial effect to the statute imposes no great burden on a plaintiff because he need only check the records of the court where the defendant resides. He also argues the case of Bavel v. Cavaness (1973), 12 Ill.App.3d 633, is dispositive of the issue. In that case there was an automobile accident on July 14, 1967, and the defendant, Lillian Rausch, died in the collision. Her estate was opened in Indiana on July 19, 1967. On July 14, 1969, exactly 2 years after the accident, plaintiffs filed suit in the Circuit Court of St. Clair County naming as defendants the estate of Lillian D. Rausch, its executors and heirs. A motion to dismiss was filed, alleging that the statute of limitations had run and that the plaintiffs had failed to file a complaint against any proper party within the time allowed by the statute. On January 18, 1971, the court held that the suit was void ah initio by virtue of plaintiffs’ failure to name a proper party-defendant and the complaint was dismissed.

On April 21, 1971, plaintiffs sought the appointment of defendant, the Public Administrator of Williamson County, and letters- of administration were issued and the suit was immediately filed. The defendant filed a motion to dismiss the complaint on the grounds that it was barred by the Statute of Limitations and the motion was denied. In reversing that part of the judgment, the court stated:

“Section 20 [section 19 of the Limitations Act] makes no distinction as to where the letters shall be issued, referring simply to issuance of letters, and it is clear that the plaintiffs did not initiate their suit within nine months from the date the Indiana estate was opened.”

However, the court went on to state:

“It is not necessaiy for us to determine whether plaintiffs were required to file within nine months from the date the letters of administration were issued, which would have the effect of reducing the applicable two-year limitation period, for it is clear that plaintiffs failed to file either within nine months after the letters were issued or within two years after the cause of action accrued and that they are therefore barred regardless of which limitation period is applied.”

That court apparently felt the statute should have extraterritorial effect but actually decided the question based on the fact the plaintiffs failed to file a proper complaint within 2 years of the commencement of the cause of action.

In the case at bar the plaintiffs did file a good complaint within the 2-year limitation period and also filed an amendment naming the Illinois administrator as a party defendant within 9 months of his appointment.

We hold the statute does not have extraterritorial effect because to construe it otherwise would be against the legislative purpose of the Act and would foreclose an Illinois resident from having his day in court.

For these reasons the judgment of the Circuit Court of Cook County is reversed.

Reversed.

BURMAN and JOHNSON, JJ., concur.


author: Mr. JUSTICE JOHNSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerome Taylor, Defendant-Appellant.
    (No. 59100;
    First District (4th Division)
    March 13, 1974.
    Paul Bradley, Deputy Defender, of Chicago (Steven Clark, Assistant Appellate Defender, of counsel), for appellant.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Scott W. Petersen, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

Following a jury trial, the defendant, Jerome Taylor, was found guilty of armed robbery and sentenced to a term of 4 to 8 years in the penitentiary. On appeal, the appellant presents the following issues for review:

1. Whether the identification of the defendant by the occurrence witnesses established his guilt beyond a reasonable doubt;
2. Whether testimony concerning the defendant’s silence when arrested was erroneously admitted into evidence on cross-examination;
3. Whether the prosecutor’s closing argument was improper, inflammatory and prejudicial, thereby denying defendant a fair trial.

The complaining witness, Mrs. Carol Kapior, testified that at 12:30 P.M. on June 24, 1972, she was robbed by a lone gunman in the parking lot of Zayre Deparement Store, Ashland and 42nd Street in Chicago. According to the witness, a man came up behind her and “mumbled something” while she was unloading her car. She turned and observed a silver-colored gun in his hand. The gunman ordered Mrs. Kapior into her car, and she got into the front seat while the man slid into the back seat. He then demanded her wallet, and she turned around and observed his face for 4 or 5 seconds while surrendering it. The gunman then directed Mrs. Kapior to lie down on the front seat. She complied and, after waiting for a couple of minutes, lifted her head and saw the man running away from the scene. He was wearing striped pants, a short denim jacket and a knit hat with a plume or pom-pom in top.

When Mrs. Kapior got out of her car, she saw a man standing in a bread truck in the next parking space. The truck driver, Mr. Conrad Bradich, testified that he observed a man, whom he later identified as the defendant, approach the parking lot and confront Mrs. Kapior. Bradich heard no conversation but knew something was wrong by the look on her face and the tears in her eyes. When she emerged from the car, Bradich asked if she had been robbed; Mrs. Kapior replied that she had. Bradich immediately began chasing the robber in his truck while, simultaneously, Mrs. Kapior ran into the Zayre store and reported the robbery to two off-duty Chicago police officers who were employed by Zayre’s as part-time security guards. When the two guards came outside, the breadman had returned; Bradich said he lost sight of the robber when the latter vaulted a fence but that he knew where the man would emerge. Mr. Bradich and the two guards drove off in the bread truck to a semi-trailer truck and found the defendant there. As the officers jumped from the bread truck, the defendant ran from them but was apprehended in front of the store. He was wearing blue striped pants.

A short denim jacket, a knit hat with a pom-pom on top, a silver-colored gun and Mrs. Kapior’s wallet were recovered from beneath the same trailer truck where the defendant was seen emerging. In a lineup, Mrs. Carol Kapior and Mr. Conrad Bradich positively identified the defendant as the man who committed the robbery.

The final witness for the State was Daniel Atherton, a Chicago police officer employed as a security guard at Zayre’s, who arrested the defendant. Officer Atherton testified that, subsequent to being alerted to the robbery by Mrs. Kapior, he and his partner got into Conrad Bradich’s bread truck and drove toward the semi-trailer truck. After travelling about 75 feet in the truck, Officer Atherton observed the defendant and it looked to him as if the defendant was “hiding” behind the semi-trailer truck. Upon seeing the bread truck, the defendant began running but was pursued, overtaken and apprehended. Officer Atherton testified that the blue denim jacket recovered from beneath the semi-trailer truck fit the defendant.

Mr. Arthur , Cotton and the defendant testified for the defense. Both claimed that they had gone to the Zayre Department Store to look for auto parts to work on Mr. Cotton’s auto. As they drove into the parking lot at Zayre’s, the defendant testified that he noticed a man disappear behind a trailer truck. When the man did not reappear, Taylor went to investigate and satisfy his curiosity while Arthur Cotton went on to park the car. Upon rounding the trailer, the defendant stated that he saw the police and ran because of his fear of white policemen. Jerome Taylor claimed that, he'had never before seen the gun, blue denim jacket, knit hat with the pom-pom on top or the wallet which were found under the trailer truck. Mr. Cotton testified that, after waiting 2 or 3 minutes inside the car, he got out to look for Taylor. However, Mr. Cotton testified that he left and said nothing when he saw the policemen jump from the bread truck, chase and grab the defendant.

The first issue raised by the defendant in this appeal is that he was not proved guilty beyond a reasonable doubt. He contends that his identification by the two occurrence witnesses was uncertain and their ability to identify him at the lineup did not prove that he was the same man who had robbed Mrs. Kapior.

Defendant argues that the conditions under which the witnesses observed the incident did not afford them an opportunity to make a positive identification, that their initial descriptions of the robber to the security . guards were vague, that the clothes allegedly worn by the robber were not in any way unusual, and that the jacket and hat found near the semitrailer truck where he was observed could easily have fit anyone of medium build.

After carefully considering these objections, we find them insufficient to require a reversal of defendant’s conviction. It is well settled in Illinois that the testimony of one witness, if it is positive and the witness is credible, is sufficient to convict even though the testimony is contradicted by the accused. (People v. Stringer (1972), 52 Ill.2d 564, 569, 289 N.E.2d 631, 634; People v. Robinson (1972), 3 Ill.App.3d 858, 862, 279 N.E.2d 515, 518; People v. Marshall (1966), 74 Ill.App.2d 472, 476, 221 N.E.2d 128, 130; People v. Washington (1962), 26 Ill.2d 207, 210, 186 N.E.2d 259, 261; People v. Lamphear (1955), 6 Ill.2d 346, 128 N.E.2d 892.) A positive identification by two witnesses, as here, lends further credence to the identification. Mrs. Kapior had three separate and unobstructed views of the defendant, and Mr. Bradich observed the entire incident from a distance of one parking space away from the Kapior car. Both eyewitnesses positively identified the defendant.

After hearing aH the evidence, the jury chose to believe the identification testimony of the two occurrence witnesses rather than the account given by the defendant and his friend. It is the province of the jury to weigh the evidence and determine the credibility of the witnesses, and a reviewing court wHl not overturn its verdict unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt as to the guilt of the accused. (People v. Sumner (1969), 43 Ill.2d 228, 232, 252 N.E.2d 534, 536; People v. Kelley (1963), 29 Ill.2d 53, 59, 193 N.E.2d 21, 24.) After an examination of the record, we cannot say that the jury’s determination was erroneous.

Defendant argues, further, that the witnesses’ ability to identify him at a lineup was not convincing. Since both Mrs. Kapior and Mr. Bradich observed the defendant’s arrest, he contends that their lineup identifications only demonstrated that they could identify the person arrested and not that the man arrested was the same person who robbed Mrs. Kapior.

This argument is not supported by the record of the proceedings at trial. Referring to the lineup, Mrs. Kapior testified as foUows:

“Q. And did you—did you observe a lineup at that time?
A. Yes, sir.
Q. And whom did you see in that lineup, if at aH, that you recognized?
A. Mr. Taylor.
Q. And how did you recognize him?
A. I recognized him by his face and everything.
Q. And are you positive that’s—that’s the same man who robbed you earlier that day?
A. Yes, sir.”

Bradich’s testimony regarding the lineup was as follows:

“Q. Mr. Bradich, the person whom you saw arrested, was that the same person that you had seen with Mrs. Kapior?
A. Yes, it is.
Q. And the person that you identified in the lineup, is that the same person that was arrested, when you saw Mrs. Kapior?
A. Yes.
Q. And you have identified him as the defendant, Jerome Taylor, is that correct?
A. Yes, I have.”

In view of the above, we find adequate support in the record to show that both occurrence witnesses positively identified the defendant as the man who robbed Mrs. Kapior in the Zayre parking lot on June 24, 1972.

Secondly, defendant contends that it was error for the prosecutor to elicit testimony concerning his silence when arrested. He objects to the following colloquy that occurred, without objection, during cross-examination:

“Q. Did you say anything to the officer when he said, ‘There, that’s the man’?
A. Did I say anything to him—this is back at Zayre’s? At that moment?
Q. Yes.
A. No, I didn’t—
Q. Did you say anything to the policemen at that time?
A. No. I didn’t [but] after they had me in the lockup, I did. I said, ‘I am not alone.’ I said I had a friend outside.”

The prosecutor did not refer again to the defendant’s silence but, during rebuttal, the arresting officer testified that the defendant did not ask him to look for the defendant’s friend.

Defendant argues that cross-examination regarding his silence upon arrest was improper since the exercise by an accused of his constitutional right against self-incrimination shall not be subject to comment at trial. (Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 684, 86 S.Ct. 1602.) He further argues that we should consider this contention on the merits notwithstanding the failure of defense counsel to object inasmuch as Supreme Court Rule 615(a) provides: “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” Ill. Rev. Stat. 1971, ch. 110A, par. 615(a).

In deciding whether the violation of a Federal constitutional right amounts to reversible error, we apply the standard established in Chapman v. California (1967), 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824. The Supreme Court there held that in order for an error involving a Federal constitutional right to be held harmless in a state criminal case, the reviewing court must be satisfied beyond a reasonable doubt that the error did not contribute to the defendant’s conviction. After reviewing the record before us, we have no doubt that the error complained of was harmless.

In People v. Johnson (1971), 2 Ill.App.3d 965, 275 N.E.2d 649, the defendant was apprehended at the scene of a burglary and. was seen carrying goods from the premises. He invoked his constitutional right to remain silent, and an officer gave testimony to this effect at trial. The court held that the error committed thereby was harmless since the evidence of defendant’s guilt was overwhelming. Here, as in Johnson, the evidence was overwhelming.

To support his contention, the defendant relies heavily upon People v. Gates (1973), 14 Ill.App.3d 367, 302 N.E.2d 470, where the court reversed and remanded a conviction for aggravated battery. The defendant in Gates, arrested for an alleged attack on a fellow employee, did not tell the police upon arrest that he acted in self-defense but did so testify at trial. Over objections the prosecution cross-examined the defendant about his failure to tell the police that he had acted in self-defense. Moreover, the prosecutor elicited testimony that defendant was silent when arrested from several witnesses and repeatedly stressed in closing argument that defendant had not raised his claim of self-defense until after his arrest. The error alleged here is not analogous to that in Gates, where the prosecutor attempted to discredit the defense by vigorously and repeatedly referring to defendant’s silence following arrest. Here, the prosecutor made only a passing reference, without objection, to defendant’s silence during cross-examination and did not repeat or comment on his silence at any other point.

In view of the above, we are satisfied beyond a reasonable doubt that the error complained of was harmless. The evidence in the present case is overwhelming and the admission of the testimony in question was not sufficient to require reversal.

Finally, defendant contends that the prosecutor’s closing argument was improper, inflammatory and prejudicial. He argues that the prosecutor alleged several matters to be fact which had not been presented in evidence, namely: that the defendant and Mr. Cotton passed several other auto parts stores but went “half way across the city to save a few cents on spark plugs,” and that.the defendant had a gun in his pocket even though no weapon was found on his person when he was searched.

It is well settled that arguments based on facts in evidence or on legitimate inferences deductible from the evidence may be the subject of fair comment. (People v. Weaver (1972), 8 Ill.App.3d 299, 307, 290 N.E.2d 691, 696; People v. Adams (1972), 8 Ill.App.3d 8, 13, 288 N.E.2d 724, 728; People v. Brown (1971), 132 Ill.App.2d 302, 306, 270 N.E.2d 501, 504.) Here the record shows that the defendant and his friend, Arthur Cotton, had gone some distance to purchase spark plugs. Further, the comment that defendant had a gun in his pocket was an inference logically drawn from the fact that the defendant was positively identified as the man who committed the robbery at gunpoint. Moreover, the record shows that the trial judge instructed the jury to consider only the testimony in reaching their verdict. Thus, we find that the prosecutors statements during closing argument were fair comments.

Defendant contends further that the prosecutors warning to the jury in closing argument that they should not release the defendant unless they wanted an unsafe community was inflammatory and prejudicial. In People v. Anderson (1971), 48 Ill.2d 488, 272 N.E.2d 18, the defendant was referred to as a murderer and the jury was told that it had to decide whether he was to be punished for the murder he committed or whether he was to be turned loose on the streets of Peoria. In affirming the conviction, the court said at page 498:

“We find nothing in the prosecutors argument that expresses his personal opinion as to the guilt of the defendant. The statement clearly contains a reference to the evidence and his opinion as to what the evidence proves and thus is not improper. People v. Hoffman, 399 Ill. 57, 65."

A prosecutor may, in closing argument, reflect unfavorably on the accused, apprise the jury of the evil results of crime and urge the fearless administration of the law if such comments are based on facts in the record or may be fairly inferred therefrom. (People v. Durso (1968), 46 Ill.2d 242, 253, 239 N.E.2d 842, 848; People v. Hampton (1962), 24 Ill.2d 558, 182 N.E.2d 698; People v. Tanthorey (1949), 404 Ill. 520, 89 N.E.2d 403.) Here, the jury was requested to consider the possibility that evil results might arise if the defendant was released. Since these remarks referred to the evidence and inferences that could be made therefrom, we find that the prosecutors closing argument was not improper.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

DIERINGER and BURMAN, JJ., concur.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Earl Good, Petitioner-Appellant.
    (No. 59222;
    First District (4th Division)
    March 13, 1974.
    Paul Bradley, Deputy Defender, of Chicago (Robert E. Davison, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (James Veldman, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

The petitioner was indicted for the crime of murder and entered a plea of guilty to the charge of voluntary manslaughter. The court then sentenced him to not less than 14 nor more than 20 years in the Illinois State Penitentiary. No appeal was taken from the conviction, but relief was sought under the Post-Conviction Hearing Act. The State’s motion to dismiss the petition was sustained.

On appeal, defendant contends that he was induced to plead guilty because his appointed counsel told him that if he was tried by a jury he would receive a sentence of 40-60 years, that he was riot sufficiently informed of the nature of the charge, and that he was prosecuted as an adult which denied him equal protection of the laws inasmuch as he was a minor.

Prior to the acceptance of defendant’s guilty plea, the following discussion took place:

“THE CLERK: Earl Good.
MR. ORAMENOS: Your Honor, in the case of Earl Good, Indictment 64—3526, I ask for leave to withdraw the previous pleas entered in this cáse at this time, advising the court I have discussed the case with my client, and have an interest in entering a plea of guilty to voluntary manslaughter.
THE COURT: Does the State have any objection?
MR. FLEISCHMAN: No.
THE COURT: Mr. Good, you have heard your attorney indicate that you now wish to enter a plea of guilty to the lesser included offense of voluntary manslaughter to this indictment, charging you with the offense of murder, is that correct?
THE DEFENDANT: That’s correct.
THE COURT: You understand, sir, that on a plea of guilty you automatically waive your right to a trial by jriry, do you understand that?
THE DEFENDANT: I understand.
THE COURT: Do you also understand that the court on a plea of guilty, could sentence you to any number of years to a maximum of 20 years in the Illinois State Penitentiary, do you understand that?
THE DEFENDANT: I understand.
THE COURT: Knowing these factors you are willing to plead guilty?
THE DEFENDANT: Yes.
THE COURT: Are you the boy’s mother?
MRS. GOOD: Yes, sir.
THE COURT: What is your name?
MRS. GOOD: Lucille Good.
THE COURT: Let the record show that the defendant has been advised of the consequences of his plea of guilty to this indictment charging him with murder and the plea of guilty to the lesser included offense of voluntary manslaughter. The plea of guilty will be accepted to voluntary manslaughter.
The records of the court will reflect a finding of guilty on the plea of guilty to voluntary manslaughter and judgment entered on the finding of guilty.
MR. PLEISGHMAN: Let the record show there is a stipulation between the defendant, Earl Good, in his own proper person and by his attorney, and the People of the State of Illinois that the facts as alleged in Indictment Number 64-3526 are true and correct and are sufficient to sustain the charge of voluntary manslaughter; that everything occurred in Cook County Illinois, and that the age of the defendant is—
MR. ORAMENOS: So stipulated. His age is 17.”

The record rebuts both of these allegations. The record of the change of pleas clearly shows that the defendants’ plea was knowingly and voluntarily made.

The Illinois Appellate Court in People v. Spencer (1972), 7 Ill.App.3d 828, 288 N.E.2d 682, held that an allegation by a petitioner, under the Post-Conviction Hearing Act, that his plea of guilty was coerced because his attorney advised him he might get a greater penalty by standing on a plea of not guilty and taking a jury trial, and a lesser one by . admitting his guilt, did not furnish a substantial basis for assertion that his guilty plea was involuntary. The issue of the validity of a guilty plea was recently discussed in North Carolina v. Alford (1970), 400 U.S. 25, 31, where the court stated:

“The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. [Citations.] That he would not have pleaded except for the opportunity to limit the possible penalty does not necessarily demonstrate that the plea of guilty was not the product of a free and rational choice, especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant’s advantage.”

The same allegations were presented to this court in People v. Funches (1972), 9 Ill.App.3d 372, 374-76, 292 N.E.2d 187. The admonishments given in Funches were almost identical to those given in the case at bar. The court at page 376 held:

“Since defendant has made only broad nonspecific assertions and has failed to present a substantial showing of violation of his constitutional rights, his petition was nonmeritorious on its face and we find the trial court acted properly when it dismissed the petition without an evidentiary hearing. People v. Smith, 40 Ill.2d 562, 241 N.E.2d 413.”

In People v. Calhoun (1970), 46 Ill.2d 60, 263 N.E.2d 69, and in People v. Mendoza (1971), 48 Ill.2d 371, 270 N.E.2d 30, these same aUegations were presented to the Illinois Supreme Court. The admonishments by the trial court were almost identical to the admonishments in the instant case and were held to be sufficient. After a careful review of the record, we find that the court properly advised defendant of the consequences of his plea.

The defendant makes two contentions. First, he alleges that he was coerced by his attorney to plead guilty, and second, the trial court did not sufficiently inform him of the nature of the charge of voluntary manslaughter so that he could knowingly and voluntarily enter his plea.

It is well established that nonmeritorious petitions may be dismissed without a hearing on the basis of what is contained in the petition and what is revealed in the record of the trial or other proceedings. People v. Morris (1969), 43 Ill.2d 124, 251 N.E.2d 202.

We, therefore, find that the trial court properly dismissed the defendants’ amended petition without a hearing.

We further find that the defendant was not denied equal protection of the law.

Good was 17 years of age when the offense was committed. At that time the Juvenile Court Act applied to males under the age of 17 and females under the age of 18. (Ill. Rev. Stat. 1965, ch. 37, sec. 702—7.) It is this difference that defendant attacks as unconstitutional.

The Illinois Supreme Court ruled on this issue in People v. Pardo (1970), 47 Ill.2d 420, 265 N.E.2d 656. The court found that age and differences between the sexes formed a proper basis for legislative classification so that the provision did not deny the accused equal protection of the law. The accused then sought an appeal to the United States Supreme Court. This appeal was dismissed for want of a substantial Federal question in Pardo v. Illinois (1971), 402 U.S. 992, 29 L.Ed. 2d 158, 91 S.Ct. 2179. Therefore, the holding of constitutionality made by the Supreme Court is the authority in Illinois today.

This has been further reiterated in People v. McCalvin (1973), 55 Ill. 2d 161, 167-68, 302 N.E.2d 342, 346, where Mr. Justice Schaefer said:

“We therefore hold that section 2—7 of the Juvenile Court Act did not violate the equal-protection clause. We adhere to the conclusion we reached in People v. Pardo (1970), 47 Ill.2d 420, * * * ”

Pardo was decided under the constitution of 1870 and McCalvin was decided under the constitution of 1970.

For the reasons stated, the order of the circuit court is affirmed.

Affirmed.

ADESKO, P. J., and BURMAN, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John E. Lofthouse, Defendant-Appellant.
    (No. 59217;
    First District (5th Division)
    March 15, 1974.

      DRUCKER, J., took no part.
    James J. Doherty, Public Defender, of Chicago (William Lebovitz and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Edwards, Defendant-Appellant.
    (No. 72-291;
    Fifth District
    January 23, 1974.

      Rehearing denied April 18, 1974.

    Robert E. Farrell, Deputy Defender, of Mt. Vernon, for appellant.

      Nicholas G. Byron, State’s Attorney, of Edwardsville (James W. Jerz and Edward N. Morris, of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the cou£t:

On a negotiated plea of guilty in the Circuit Court of Madison County defendant was convicted of burglary and sentenced to the penitentiary for a term of not less than two nor more than four years. His sole contention on appeal is that his minimum sentence was excessive.

Burglary is a Class 2 felony and under the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, sec. 1005—8—1(c) (3)), which is applicable here, it is provided:

“* * * (3) for a Class 2 felony, the minimum term shall be 1 year unless the court, having regard to the nature and circumstances of the offense and the history and character of defendant, sets a higher minimum term, which shall not be greater than one-third of the maximum term set in that case by the court.”

Defendant contends that in compliance with .the Code his minimum sentence should be reduced to one year, or, in the alternative, his sentence should be vacated and the cause remanded for resentencing after a presentence investigation. He argues that his minimum sentence cannot be set at more than one year without a specific finding that "the nature and circumstances of the offense and the. history and character of defendant” justifies a higher minimum. As a further alternative, defendant requests that in any event his minimum sentence should be reduced to one year and four months, which is one-third the maximum. The State joins in defendant’s latter request, but opposes his first two alternatives.

Defendant has not cited any authority, nor have we found any, requiring justification for a sentence imposed in compliance with previous plea negotiations. Here, prior to acceptance of defendant’s plea, he was fully admonished as to his rights and he concurred in the State’s recommended sentence of two to four years. Further, there is no contention that he did not specifically and understandingly waive his right to a probation hearing and his right to a hearing in mitigation. In effect, he voluntarily accepted a minimum sentence of two years and thereby recognized and admitted that such sentence was fair and justified in the light of the nature of his offense and his own history and character. Under such circumstances we find no reason for an investigation and specific finding on these matters to justify a minimum sentence of one year and four months when it has already been agreed and accepted by defendant that his conduct warranted an even higher minimum of two years.

Accordingly, defendant’s sentence is hereby modified to a minimum of one year and four months and a maximum of four years, thereby complying with the Code providing that a minimum sentence shall not exceed one-third of the maximum.

The judgment of the Circuit Court of Madison County is affirmed as modified.

Affirmed as modified.

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


author: Mr. JUSTICE CARTER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Siglar, Defendant-Appellant.
    (No. 73-14;
    Fifth District
    February 21, 1974.

      Rehearing denied April 19, 1974.

      Robert E. Farrell, Deputy Defender, of Mt. Vernon (Michael Q. Jones, Senior Law Student, of counsel), for appellant.
    Herbert L. Lantz, Jr., State’s Attorney, of Chester (James W. Jerz and Edward N. Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

On January 3, 1969, an indictment was filed in the Circuit Court of Randolph County charging the defendant, James Siglar, with the alleged offenses of escape, kidnapping, theft in excess of one hundred fifty dollars ($150.00) (two counts), burglary, and armed robbery.

On February 20, 1969, defendant entered a plea of not guilty to all of the above charges.

On November 22, 1972, • defendant, accompanied by his court-appointed counsel, withdrew his plea of not guilty and pleaded guilty to each of the above six charges. At this time it was announced that this plea was the result of negotiations, the terms of which were that defendant would receive a sentence of three to six years for each charge except kidnapping, for which a sentence of three to five years would be imposed, all sentences to run concurrently.

After the court admonished the defendant concerning the guilty plea, the State’s Attorney related the circumstances of the alleged offenses.

Defendant was alleged to have escaped from prison by kidnapping a prison official and taking a prison truck. He was then alleged to have entered a private residence and to have stolen several articles, including a gun, while waiting for the residents to return. Upon their return, Siglar was alleged to have used the gun to rob them and. to have taken their automobile to further facilitate his escape.

■ The court accepted defendant’s guilty plea to all charges and imposed •sentence in conformance with the plea negotiations.

From these sentences defendant appeals.

The issues presented to this court are whether the trial court could properly impose separate sentences on all six counts of the indictment and whether the sentences imposed conform to the Unified Code of Corrections.

Defendant-appellant contends that there were in fact only two separate offenses, escape and armed robbery, and that sentences imposed for all counts, except the count of armed robbery, are not in accord with the Unified Code of Corrections (Ill. Rev. Stat., ch. 38, sec. 1001—1—1 et seq.). The State contends that more than two offenses were chargeable and, regardless of how many separate offenses were involved, appellant is precluded from raising this issue on appeal because he pleaded guilty to all six counts. The State admits that sentencing was not in accord with the Unified Code of Corrections.

With regard to the proper number of chargeable offenses, the applicable statute is Ill. Rev. Stat., ch. 38, sec. 1005—8—4(a). It provides that “The Court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective. Sentences shall run concurrently unless otherwise specified by the Court.”

Our supreme court has accepted an “independent motivation” test to determine whether particular chargeable offenses are “part of a single course of conduct during which there was no substantial change of the criminal objective.” People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679; People v. Stewart, 45 Ill.2d 310, 259 N.E.2d 24; People v. Prim, 43 Ill.2d 62, 289 N.E.2d 601.

In discussing the meaning of the independent-motivation test, this court in People v. Ike, 7 Ill.App.3d 75, 286 N.E.2d 391, stated: “We take this to mean that under the facts of this particular case it was determined that force was an essential element to be shown in proving the offense of attempted robbery and that as such the hitting was an integral and inseparable part of that crime. In other words, the same element of proof (force) was essential to both the robbery and battery.” We do not subscribe to the theory that the defendant’s conception of his motivation is determinative. The test must be more objective and must consist in an appraisal of all the surrounding facts to determine if the defendant’s actions resulting in more than one possible charge were in fact a single course of conduct with no change in the criminal objective and with no new elements of proof required.

As we review the record of this case and consider further the definition of “conduct” in the Illinois Revised Statutes, ch. 38, sec. 2—4, as “an act or a series of acts and the accompanying mental state”, it seems to us there were three times when the appellant was independently motivated and when he was pursuing a single course of conduct—when he carried out his escape; when he decided to enter a private home and burglarize it; and when he decided to remain in that home until the occupants returned so he could rob them and acquire another vehicle. We held, therefore, that he was properly chargeable with three offenses —escape, burglary and armed robbery. However, the State argues that appellant’s plea of guilty precludes him from challenging the appropriateness of these charges and sentences on appeal. The State cites People v. Stanley, 50 Ill.2d 320, 278 N.E.2d 792; People v. Love, 6 Ill.App.3d 577, 286 N.E.2d 355, and People v. Moore, 8 Ill.App.3d 351, 290 N.E.2d 268, to support its contention. These cases held, that pleas of guilty admit all elements of the offense and that non-jurisdictional defects are waived. But appellant does not question that the offenses were committed. None of these cases dealt with sentencing, and the court did not pass sentence until after the plea of guilty was accepted,. Thus, while the plea might waive prior defects, it could not possible waive subsequent ones.

We would point out that the record in this case does not disclose that the requirements of Rule 402(a)(2) requiring a trial court to admonish the defendant regarding minimum and maximum sentences, added penalties, and the possibility of consecutive sentences, were fully met. (People v. Zatz, 13 Ill.App.3d 322, 300 N.E.2d 16.) However, this issue was not raised on appeal and, viewing the record overall, we do not believe the defendant’s rights were prejudiced.

Accordingly, we hold that while the charges stand, sentences can be imposed only for escape, burglary and armed robbery.

In accord with the requirements of the Unified Code of Corrections, sentence for these offenses are changed to provide as follows:

Escape—two to six years.
Burglary—two to six years.

The sentence for armed rdbbery remains at three to six years since it is not affected.

The judgment of the Circuit Court of Randolph County is affirmed as modified.

Affirmed as modified.

EBERSPACHER, P. J. and CREBS, J., concur.


author: Mr. JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Paproth, Defendant-Appellant.
    (No. 71-317;
    Fifth District
    March 18, 1974.

      Rehearing denied April 18, 1974.

    Robert E. Farrell, Deputy Defender, of Mt. Vernon, for appellant.
    Kelly D. Long, State’s Attorney, of Hillsboro, for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

The defendant, Melvin Paproth, was charged by indictment filed on March 31, 1971, in the circuit court of Montgomery County, Illinois, with the offense of burglary.

At the arraignment held on the morning of June 22, 1971, the defendant requested a recognizance bond. The court refused the request but stated that if the defendant were able to meet the bond that he would be allowed to leave the state to attend to a personal matter involving the legality of the defendant’s marriage to a 15-year-old girl. The defendant expressed a desire to assist his wife in avoiding being placed in a deténtion home by his proving the validity of a marriage that was alleged to have occurred in tire State of Missouri. The defendant asserted that he was without funds to meet the required bond. The matter with the defendant was concluded at approximately 10:45 A.M.

At 11:45 A.M., approximately 1 hour after the original arraignment had been concluded, court reconvened. The State’s Attorney informed the court that he had received communication from defense counsel- stating that the defendant wished to change his plea. The State’s Attorney stated to the court, “My understanding in communication with defense counsel as well as a recommendation of the Sheriff of Montgomery County is that Mr. Paproth wishes to plea [sic] guilty to the offense of burglary at the Pruitt residence and his attorney has asked us that the check charge be dismissed with leave to reinstate.”

The court then inquired of the defendant if he desired to plead guilty and make application for probation. The defense counsel answered yes.

The court then explained that the defendant had a right to plead guilty and to request the matter be referred to the probation officer “and in that event the Court would refer it to the Probation Officer of this court to make an investigation and there would be a hearing on that and it would be up to the Judge to grant you probation. In the event you were not granted probation you might be . sentenced to the penitentiary for not less than one year with a maximum of any number of years, do you understand?” The defendant answered “yes”. The court then inquired if the defendant desired to plead guilty and the defendant responded, “[Y]es, I want to plead guilty.” The court then continued, “Very well, it will be necessary that you reduce this to writing stating that you are guilty of this Pruitt burglary as charged and that you do waive your right to a trial by jury.”

The State’s Attorney next- informed the court that no promises or concessions had been made other than those which were part of the record and the defendant admitted subsequently that he did sign in open court the “JURY WAIVER AND PLEA OF GUILTY”.

The court then accepted the defendant’s written jury waiver and plea of guilty and inquired of defendant if he understood that acceptance of such plea was the equivalent of having been found guilty by jury verdict. Again the defendant answered “yes”.

Thereupon the matter was referred to the probation officer. The probation report was filed on June 30, 1971, the date set for hearing. On October 4, 1971, the defendant appeared to offer testimony in support of his application for probation. During the hearing then held defendant testified, in explanation of his failure to appear June 30, that he was “preaching” and working as a carpenter in South Dakota when he was arrested and waived extradition and brought back for this hearing; that he had intended to return for the June 30 hearing but was prevented from doing so because of an attack of stomach cramps in Kansas City. He also alluded to the personal matter of the legitimacy of his marriage. The court denied the defendant’s application for probation and sentenced the defendant to a term of not less than 3 nor more than 7 years in the Illinois State penitentiary system. The State had recommended that the defendant be sentenced to a term of from 1 to 4 years.

The defendant has brought this appeal asserting that the trial court did not substantially comply with Illinois Supreme Court Rule 402, specifically sections(a)(3), (a)(4) and (b).

The defendant asserts that the facts and circumstances of this case strongly suggest that the defendant was rushed or pressured into his decision to plead guilty, but concedes, however, that it cannot be positively established by the record. With that we agree. The record of the “original” or “first” arraignment includes the following dialogue which occurred earlier that morning.

“THE COURT: Those are the various papers that are on file in this case. It’s my duty once again to inform you that this Bill of Indictment returned by a Grand Jury of this County of March 31, 1971, charges you, Melvin Paproth, Jr., and Jess Arnold did commit the offense of burglary at the William Pruitt residence, Rural Route, Litchfield, Montgomery County, Illinois, in that you did in there knowingly enter the residence of said William Pruitt with intent to commit therein a theft and you did knowingly obtain unauthorized possession over a television, stereo, tape player, watch, knife and wedding ring, the property of Mr. and Mrs. Pruitt, being in the value of more than One Hundred Fifty Dollars ($150.00) with intent to permanently deprive the owners of use and benefit of that property.
This also constitutes the offense of burglary and in case you are found guilty you might be sentenced to the penitentiary for not less than one year and with the maximum of any number of years. Here your rights are just the same as I told you in the other case. Would you like them repeated? Could we stipulate that the same rights that were explained in the Arraignment in Number 71-C-43 be incorporated in this Arraignment?
MR. WHITE: Yes.
. THE COURT: Now, you have a right to a trial by jury, you have a right to hire your own lawyer, however, the Court has appointed a lawyer for you and you have indicated that his services are satisfactory. You have a right to make the State prove this charge beyond a reasonable doubt convincing all 12 members of the Petit Jury panel that you are guilty beyond a reasonable doubt. You have a right to confront the persons that accuse you of this crime in open court, you have a right to bring in witnésses on your own behalf by subpoena or otherwise. You are presumed innocent of this charge until you are proven guilty and you have a right not to make any statement or plea which might incriminate you. You are entitled to a trial within 120 days from the time you were jailed for this offense. Now, I will ask you how do you plea, guilty or not guilty?
MR. MELVIN PAPROTH: Not guilty.”

The assertions that the defendant makes concerning the alleged pressures and persuasions are unsubstantiated by the record. The Supreme Court Rule requires substantial compliance and our reading of the record indicates that there has been substantial compliance. The cases cited by the defendant do not support his contention. Indeed, as stated in People v. Krouse, 7 Ill.App.3d 754, 757, 288 N.E.2d 543, at p. 547:

“Similarly, the next contention of defendant regarding Rule 402, that he was not informed that he was waiving a right to trial and to confront witnesses against him cannot be refuted categorically. However, our Supreme Court in People v, Mendoza, 48 Ill.2d 371, 270 N.E.2d 30, stated that even though defendant, who had been informed that a guilty plea waives the right to a trial by jury, was not similarly admonished on the record, that he was simultaneously waiving additional constitutional rights, including the privilege against self-incrimination and the right to confront his accusers * * *.’, the trial court’s admonitions nonetheless constituted substantial compliance with Rule 402. The Supreme Court enlarged upon this issue:
‘The free and voluntary character of defendant’s plea, as disclosed in this record, is uncontradicted by factual allegations in the petition or by accompanying affidavit. The fact that defendant was not specifically admonished by the court, on the record, as to each and every consequence of this plea does not sufficiently demonstrate that he was, in fact, unaware of these consequences.’ People v. Mendoza, 48 Ill.2d 371, 374.”

Defendant’s final contention under Rule 402, that the trial failed to determine that the plea was voluntary, is not supported by the record. The trial court asked the defendant, “In making this plea guilty have there been any promises made by anyone—the state’s attorney, * * *, you or the court concerning what the sentence might be?” Defendant answered, “No.” The court continued, “This is of your free will and accord?” Defendant: “Yes.”

On the strength of People v. Mendoza, 48 Ill.2d 371, we reach the conclusion that there was substantial compliance with Rule 402 and that the deficiencies noted are not sufficient to constitute reversible error.

We agree with the defendant’s contentions that the mere signing of a printed form allegedly waiving the constitutional right to a jury trial is not sufficient to indicate that such an alleged waiver was performed not only understandingly but also expressly (People v. Rambo, 123 Ill. App.2d 299, 260 N.E.2d 119; People v. Cummings, 7 Ill.App.3d 306, 287 N.E.2d 291), and that the election to forego a jury .trial must expressly and understandably be made (People v. Surgeon, 15 Ill.2d 236, 154 N.E. 2d 253). We conclude that there has been substantial compliance with the rule.

The defendant next asserts that the sentence imposed is excessive. Defendant has a previous conviction for burglary, and had successfully completed a 2-year probation. Defendant’s statements at the probation hearing likewise reflect on the possibility of an early rehabilitation. We note that since the court imposed the sentence the Unified Code of Corrections has become a part of the law and all cases on direct appeal are covered thereby. This law requires that the minimum sentence not exceed one-third of that of the maximum in this case. We therefore reduce the minimum sentence imposed upon the defendant to 2 years 4 months. Ill. Rev. Stat., ch. 38, sec. 1005—8—1.

As modified the judgment is affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Zachary L. Smith, Defendant-Appellant.
    (No. 73-67;
    Fifth District
    March 20, 1974.
    CREBS, J., took no part.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon (Theodore A. Gottfried, Assistant Appellate Defender, of counsel), for appellant.
    John H. Ward, State’s Attorney, of Taylorville (James W. Jerz and Martin P. Moltz, both of Model District State’s Attorneys Office, of counsel), for the People.
   PER CURIAM.


author: PER CURIAM:

text:
    Dave M. Shatz, Plaintiff-Appellant, v. Wilford Dunn et al., DefendantsAppellees.
    (No. 73-325;
    Fifth District
    March 21, 1974.

      PER CURIAM.
    EBERSPACHER, J., took no part.
    Robert L. Lansden, of Cairo, for appellant.
    Jack Williamson, of Vienna, for appellees.
   PER CURIAM:

The defendants-appellees are makers of a promissory note which became due on March 30, 1973. The payees of the note indorsed the note in favor of the plaintiff-appellant. The note contained the provision that judgment could be confessed against the makers “in favor of the holder.”

On June 6, 1973, a confessed judgment was entered in favor of appellant in tire sum of $34,952.50. The appellees subsequently filed a motion to vacate the judgment alleging that the note was non-negotiable and that a judgment confessed in favor of one other than the payee is void. The Circuit Court of Johnson County vacated the judgment, and this appeal is from that order.

The parties agree that the note is non-negotiable because it contained the provision that judgment could be confessed “at any time hereafter” (Ill. Rev. Stat., ch. 26, sec. 3—112(d); Marengo State Bank v. Meyers, 89 Ill.App. 421, 232 N.E.2d 75). Because the note in question was non-negotiable, article three of the Commercial Code, which would have governed this case if the note were negotiable, does not apply. Ill. Rev. Stat., ch. 26, sec. 3—101 et seq.

Ill. Rev. Stat. ch. 98, sec. 2, provides:

“Any such note, bond, bill or other instrument in writing, made payable to any person named as payee therein, shall be assignable, by indorsement thereon, under the hand of such person, and of his assignees, in the same manner as bills of exchange are, so as absolutely to transfer and vest the property thereof in each and every assignee successively.”

The note in the instant case was indorsed by the payee in favor of the appellant, and that constituted an assignment in compliance with section 2.

Ill. Rev. Stat., ch. 98, sec. 3, provides:

“Any assignee to whom such sum of money or personal property is, by such indorsement or indorsements, made payable, or in case of the death of such assignee, his executor or administrator, may, in his own name, institute and maintain the same kind of action for the recovery thereof, against the person who made and executed any such note, bond, bill or other instrument in writing, or against his heirs, executors or administrators, as might have been maintained against him by the obligee or payee, in case the same action had not been assigned; *

In accordance with section 3, we hold that the appellant, as assignee of the note in question, did have the right to exercise the confession of judgment clause against the appellees just as the payee could have done if the note had not been assigned.

Even though Ill. Rev. Stat., ch. 98, is titled, “Negotiable Instruments,” sections 2 and 3 of that chapter do apply to certain non-negotiable instruments including the promissory note in the instant case. Sections 2 and 3 apply to instruments defined in Ill. Rev. Stat., ch. 98, sec. 1, which reads as follows:

“All promissory notes, bonds, due bills and other instruments in writing, made or to be made, by any person, body politic, or corporate, whereby such person promises or agrees to pay any sum of money or articles of personal property, or any sum of money in personal property, or acknowledges any sum of money or article of personal property to be due * * *.”

The plain language of section 1 results in the conclusion that sections 2 and 3 apply to all promissory notes, whether negotiable or non-negotiable, in which a person promises or agrees in writing “to pay any sum of money or articles of personal property, or any sum of money in personal property.”

Where a warrant of attorney specifies a particular person in whose favor a judgment may be confessed, a confession in favor of another is void. (Keen v. Bump, 286 Ill. 11, 121 N.E. 251; Federal Savings & Loan Insurance Corp. v. Quinn, 81 Ill.App.2d 121, 225 N.E.2d 696.) The promissory note in the instant case, however, provided for confession of judgment in favor nf the ‘holder.” Appellant, the assignee of the note, was obviously a “holder” as defined by Ill. Rev. Stat., ch. 26, sec. 1— 201(20). He therefore had the right to exercise the confession of judgment clause against the maker of the note.

For the foregoing reasons we reverse the holding of the Circuit Court of Johnson County vacating the confessed judgment and remand this cause for further proceedings.

Reversed and remanded.

Mr. JUSTICE EBERSPACHER took no part in the consideration of this case.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jimmie C. Peters, Defendant-Appellant.
    (No. 73-185;
    Fifth District
    March 25, 1974.
    Thomas A. LeChien, Ltd., of Belleville, for appellant.
    Robert Emmett Murphy, State’s Attorney, of Waterloo, for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The defendant, Jimmie Peters, was convicted upon his guilty plea of giving alcoholic beverages to. a minor (Class B misdemeanor) in Monroe , County.. This action was in violation of section 12 of article VI of the Dram Shop Act (Ill. Rev. Stat., ch. 43, sec. 131). Application for probation was made and an extensive report was presented to the court, including a report of psychological examination. The State agreed not to make any recommendation from the probation report. The Court denied the defendant probation and on June 12, 1973, sentenced the defendant to a period of 6 months to the Department of Corrections. The mittimus was issued for incarceration of the defendant in the Vandalia State Penal Farm. This was the maximum sentence available under the Unified Code of Corrections, and the defendant was released on bond by this court pending appeal.

The appellant presented two issues on his appeal, namely:

(1) whether the penalty imposed by the trial court was too harsh.
(2) whether the trial court arbitrarily abused its discretion in determining whether probation should be granted.

This court has long been willing to exercise its power under Supreme Court Rule 615(b) to reverse orders denying probation. (People v. Evrard, 65 Ill.App.2d 118, 242 N.E.2d 305; People v. Harpole, 97 Ill.App.2d 28, 239 N.E.2d 471; People v. McClendon, 130 Ill.App.2d 852, 265 N.E.2d 207; People v. Dowiels, 3 Ill.App.3d 813, 279 N.E.2d 121.) This court has looked to job opportunities, reputation in the community, restitution, and the potential for becoming a productive member of the community in deciding whether to reverse the trial court’s exercise of discretion in a particular case.

The probation report and psychological examination are the main sources of information about the appeUant, who was 22 years of age at the time of the report. The offense itself involved no violence. The record discloses an arrest in 1972 for disorderly conduct and resisting arrest, and defendant was serving 1 year’s probation. A petition to revoke this probation was filed but not finally adjudicated. The present offense occurred while appellant was still on probation from the original offense. Consequently, with appellant’s record on probation, the recommendation is no surprise. The report does disclose a fairly steady employment record, including employment at the time of his arrest, the most lucrative to date.

This court takes special note of the court-ordered psychological examination and its recommendations. The recommendations of this report seem contrary to those in the probation investigation. WeU supervised probation appears to be more called for by the psychological examination, perhaps with some counseling, if available. Given the minor nature of the offense (giving a six-pack of beer to two minors, ages 19 and 17), a sentence of 6 months seems unduly harsh and should be vacated.

“The basic philosophy of probation is that young and unhardened criminals should not be exposed to the “contaminating influence of association with hardened or veteran criminals”, but should have an opportunity to rehabilitate themselves under the supervision of a probation official without institutional confinement.’ ” (People v. Carleton, 16 Ill. App.2d 450, 451-452.) (Emphasis added.) The above language coupled with the opinion in People v. McClendon, 130 Ill.App.2d 852, 265 N.E.2d 207, treating the underlying principles of probation, convince this court that this case falls into the category of cases where probation should be reconsidered by the court.

The judgment of the conviction is affirmed. The sentence imposed by the trial court is vacated and the case is remanded to the Circuit Court of Monroe County with directions to grant the petition for probation in the absence of a finding of aggravating circumstances subsequent to the sentence here imposed, and if probation is granted, to determine the length of the period of probation, and the terms and conditions thereof in accordance with the statutory provisions related thereto.

Conviction affirmed, sentence vacated, and cause remanded with directions.

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


author: Opinion by Mr. JUSTICE T. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leonard L. Crago, Jr., Defendant-Appellant.
    (No. 72-249;
    Second District
    March 28, 1974.
   Opinion by Mr. JUSTICE T. MORAN.

Ralph Ruebner, Deputy Defender, of Elgin (Richard Wilson and Phyllis Perko, Assistant Appellant Defenders, of counsel), for appellant.

William J. Cowlin, State’s Attorney, of Woodstock, for the People.


author: Mr. JUSTICE RECHENMACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Otha Charles Malone, Defendant-Appellant.
    (No. 72-270;
    Second District
    March 21, 1974.

      Rehearing petitions denied April 10 and April 24, 1974.

    Ralph Ruebner, Deputy Defender, of Elgin (Richard Wilson, Assistant Appellate Defender, of counsel), for appellant.
    Gerry L. Dondanville, State’s Attorney, of Geneva (Clarence Wittenstrom, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

Defendant appeals from the order revoking his probation and imposing a sentence of not less than 11 or more than 16 years to the Illinois State Penitentiary. Defendant was indicted in December 1967 for aggravated incest and indecent liberties with a child, namely, his stepdaughter, Deborah. As a result of a plea bargain, and because his counsel stated, “there is a greater penalty on the indecent liberties,” defendant pleaded guilty in January 1968 to aggravated incest. The record discloses that defendant’s incestuous conduct with his step-daughter, as often as two or three times a week for 8 years, had begun when she was 5 years old.

At the urging of defendant’s new pastor, Reverend Ervin Benz (defendant having found “religion”) and another clergyman, Reverend Paul Johannaber, the trial judge in April 1968 granted defendant’s application for probation placing him under the supervision of the two ministers, as special probation officers, for 5 years. Some of the conditions of probation were that defendant could not communicate with his children, nor consume alcoholic liquors, nor have firearms in his possession. The children were removed from defendant’s home and later were taken to live with defendant’s parents in Mississippi. In March 1971, upon the recommendation of both special probation officers, the court granted defendant permission to move to Mississippi where his wife was dying of cancer. (She died there a month later.)

On October 4, 1971, the State’s Attorney filed a petition to revoke défendant’s probation alleging that, in violation of his probation, he molested his own 11-year-old daughter, Janet, was carrying a concealed weapon, and was drinking alcoholic liquors. Defendant was arrested in Mississippi, broke jail, and escaped to Florida, where he was later arrested and extradited from that state and returned to Kane County. Court-appointed counsel moved for substitution of judges which the court denied.

At the probation revocation hearing in February 1972, three witnesses testified: Mr. O. C. Mundwiler, Kane County Probation officer, Mr. Benny Gaines, probation and parole officer for Northern Mississippi, and Reverend Johannaber. Mr. Mundwiler testified that in September 1971 he received a letter from Reverend Benz recommending revocation of defendant’s probation and enclosing a letter which Reverend Benz had received from defendant’s step-daughter, Deborah. Deborah’s letter stated among other things that defendant “goes to bed with Janet” (his 11-year-old daughter). Mr. Mundwiler further testified that he forwarded this letter to Mr. Gaines with a request to investigate. Mr. Gaines testified, over objection as hearsay, (1) that the defendant’s 70-year-old father stated to him that he found his granddaughter on occasion “in bed” with defendant, that defendant had “raped her” and the defendant “carried a weapon”; (2) that defendant’s employer informed the witness that defendant was carrying a concealed weapon and that he was drinking and selling whiskey; (3) that the witness caused Janet to be examined by a physician, one Dr. Joseph Bruce, who prepared a medical report that was received in evidence over objection. In that report Dr. Bruce stated that Janet told him prior to examination about two occasions when defendant attempted sexual acts. Reverend Johannaber testified that defendant, after being returned to Kane County, admitted to him that he had “returned to his old ways”. Defendant objected to Reverend Johannaber s testimony on the basis of priest-penitent privilege which the witness did not invoke. Defendant neither took the stand himself at the hearing, nor called any witnesses in his behalf. At the conclusion of the hearing the order revoking defendant’s probation and imposing sentence was entered by the trial court.

On appeal defendant contends: (1) that the violation of probation was not properly proved by the State, in other words, that defendant did not get a conscientious judicial determination according to accepted and well recognized procedural methods; (2) that arbitrary classification of father-daughter incest as aggravated incest violates defendant’s constitutional rights of equal protection of tire law and to freedom from discrimination on the basis of sex; (3) that the trial court erred in denying defendant’s motion for substitution of judge for cause, and (4) that defendant’s sentence is excessive.

Here the only proof adduced as to violation of probation was the testimony of Mr. Gaines. Defendant was entitled to a conscientious judicial determination according to accepted and well-recognized procedural methods on the question of whether or not he had violated probation. Mr. Gaines’ testimony as to what defendant’s father and employer told him concerning defendant’s conduct or actions, and a medical report of Dr. Bruce stating what defendant’s daughter told him at the time of the examination are hearsay. Mr. Gaines acknowledged that he had not personally witnessed any actions by the defendant which would constitute violation of his probation, and that his only knowledge is “what somebody else told me.” His testimony was, therefore, inadmissible and defendant’s objection should have been sustained. Reverend Johannaber said merely that defendant admitted having “returned to his old ways”. Such testimony, without more, provides no proof that defendant violated his probation. Upon remand the State will have an opportunity to establish by a preponderance of the evidence under orderly, accepted and well recognized procedural methods whether defendant violated the conditions of his probation. People v. Crowell (1973), 53 Ill.2d 447, 451, 292 N.E.2d 721, 723; People v. Pier (1972), 51 Ill.2d 96, 100, 281 N.E.2d 289; People v. Hardnett (1971), 132 Ill.App.2d 843, 846, 270 N.E.2d 864, 865; People v, Collins (1973), 14 Ill.App.3d 446, 302 N.E.2d 709, 711.

In view of our holding on this point we need not consider the other questions raised in the briefs and in defendant’s several motions which were taken with the case. We presume that those questions will receive due consideration from the trial court upon remand. Therefore, the judgment revoking defendant’s probation and imposing sentence is reversed, and this case is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

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


author: Mr. JUSTICE STOUDER

text:
    Three Sisters, Inc., Plaintiff-Appellant, v. Vertigo West, Inc. et al., Defendants-Appellees.
    (No. 73-248;
    Third District
    March 29, 1974.

      Rehearing denied April 24, 1974.

    John F. Sloan, of Peoria, for appellant.
    William E. Palmer and Duane Stone, both of Peoria, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

In this action plaintiff-appellant, Three Sisters, Inc., sought to have a lease forfeiture set aside and in addition sought supplemental relief against other parties. The action was brought primarily against defendant-appellee, Commercial National Bank of Peoria as trustee, the landlord, and Vertigo West, Inc., lessee. The landlord moved for summary judgment, the complaint was dismissed with prejudice and the plaintiff has appealed.

Since the judgment in this case was entered on a motion for summary judgment, the facts are those contained in the pleadings, affidavits and exhibits attached thereto.

According to the affidavit of William Palmer who was the managing agent in charge of the premises in controversy, he negotiated a lease at the premises between the Catholic Bishop of Peoria, trustee, as lessor and Three Sisters, Inc., as lessee. A written lease was executed on June 15, 1971, for a period of 5 years from that date at a monthly rental of $300. Arthur Nicholson signed such lease as president of Three Sisters, Inc., and additionally Arthur Nichelson and Verdia Nichelson personally guaranteed the obligation of the lessee. The premises were used and occupied by the lessee as a tavern and the required rental payments were made until September 15, 1972. On October 15, 1972, the premises were padlocked by the Internal Revenue Service because of the corporation’s Federal income tax delinquency and the premises remained so closed at least until February 16, 1973. In January, 1973, the trusteeship of the lessor was transferred from the Catholic Bishop of Peoria as trustee to the Commercial National Bank of Peoria as trustee and the lessee was notified of such change. On February 5, 1973, Palmer posted a 5-day notice on the premises declaring a forfeiture of the lease.

On February 15, 1973, Arthur Nichelson went to Palmer’s office and was advised that the lease was deemed forfeited for non-payment of rent. Nichelson, according to Palmer, indicated the corporation was unable to pay the rent, that he considered the contract forfeited and indicated that they were intending to sell the business to Vertigo West, Inc. Palmer prepared a document which was signed by Arthur Nichelson as president of Three Sisters, Inc., which document recited the execution and forfeiture of the lease and in consideration of the termination of the lease, Three Sisters, Inc., and its guarantors were released from any obligations under the lease both past and future. A copy of the document signed by the trustee was forwarded to Nichelson on the following day. On the same day, February 16, 1973, the trustee entered into a lease with Vertigo West, Inc. According to the affidavit of Donald Fernandes, president of Vertigo West, Nichelson had called him on February 15 asking whether he should sign the document and was advised by Fernandes that it was all right to do so. Although the record is not clear as to what thereafter transpired and it is immaterial so far as the issues of this case are concerned, it may be inferred that the contemplated arrangements between Three Sisters, Inc., and Vertigo West, Inc., were not satisfactory to Three Sisters. Nichelson’s affidavit, filed in opposi,tion to the motion for summary judgment, stated that Three Sisters had three directors including himself, Verdia Nichelson and one Charles Johnson. According to the affidavit Nichelson was president- of Three Sisters, Inc. at the times relevant to this controversy and he admits the execution of the document on February 15, 1973. However, he states he was told by Palmer that legal action would be commenced against him if the release were not signed and further that he did not read or understand the document and did not consult his attorney before signing it. According to Nichelson, rent payments had been made and received more or less irregularly during the period prior to September 15, 1972, and even though the premises may have been padlocked at the time the 5-day notice was posted, the corporation had. not abandoned the premises or removed its property thereform.

The final affidavit considered by the trial court was that of- Bernard Rosenberg who indicated that he was financially interested in the tavern business conducted by Three Sisters, had helped in the purchase of the business and had co-signed an obligation of the corporation in the amount of $18,000 secured by the fixtures and other equipment located in the tavern. The affidavit further recited that Rosenberg’s interest in the business was known to Palmer, and that on one occasion in the past he had been notified of a rental delinquency which had been paid but was not notified of the business’s delinquency during the period prior to February 15, 1973. In January, 1973, according to Rosenberg, he had a conversation with Palmer indicating that a purchaser of the business had been secured if a transfer of the lease and liquor license could be affected. He heard no more from Palmer and learned of Nichelson’s execution of the release some time after it was executed.

We have summarized the facts at some length because where, as in this case, the controversy is disposed of pursuant to a motion for summary judgment, the court of review is required to determine whether there are any genuinely disputed issues of fact material to the resolution of the controversy. (Wilcox v. Natural Gas Storage Co., 24 Ill.2d 509, 182 N.E.2d 158; Ill. Rev. Stat. 1971, ch. 110, sec. 57. ) It is in the application of the foregoing rule that the parties disagree.

In its argument the appellant first contends that the allegations of fact indicate the forfeiture of the lease was improper and in this connection insists that because late payments had been accepted in the past, lessor was not entitled to forfeit the lease without some further notice that payments would be expected on time. Additionally, the appellant claims the notice posted on the premises was improper and insufficient because the lessee was in possession of the premises. However, we find it unnecessary to determine whether there is or is not a factual dispute conceming the right of the lessor to forfeit the lease or his procedures undertaken because in our view the release document if valid is dispositive of the issues raised on this appeal.

This brings us to appellant’s second assignment of error, namely that the release document was invalid because Nichelson had no authority to execute a release as president of Three Sisters, Inc. As indicated in the statement of facts, Nichelson in his affidavit suggested that he had not read and did not understand the release but no claim is made in this court of any fraud or misrepresentation in the execution of the release and consequently whatever effect such allegations were intended to have is not material to the issue discussed in appellant’s brief on this appeal.

The appellant has referred to several cases in support of the general rule that the president of a corporation does not have implied power to make a contract which is unusual or extraordinary. Bleck v. Cosgrove, 32 Ill.App.2d 267, 177 N.E.2d 647; Central Republic Trust Co. v. Evans, 378 Ill. 58, 37 N.E.2d 745; Sacks v. Helene Curtis Industries, Inc., 340 Ill.App. 76, 91 N.E.2d 127.

We have reviewed the foregoing cases cited by the appellant but do not find the factual situations to which the rule was applied supportive of the claim that Nichelson lacked implied authority in the instant case. We note that this is a case where the corporation itself is urging that its president lacked the implied authority to execute the document and under such circumstances it has the affirmative duty of establishing this claim. The only fact referred to in the affidavits is that of Nichelson himself who states that there are three directors on the board of directors of Three Sisters, Inc., and the board had not approved the termination of the lease. Under the circumstances of this case, we believe this fact is immaterial since so far as the record shows the lease itself was entered into by Nichelson in the exercise of his implied authority and, in the absence of any notice to the lessor to the contrary, we believe that Nichelson had implied authority to terminate the lease.

For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed.

Judgment affirmed.

SCOTT, P. J., and DIXON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John T. Ramirez, Defendant-Appellant.
    (No. 58446;
    First District (5th Division)
    October 26, 1973.
    LORENZ, J., took no part.
    McDonnell & McDonnell, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dair Banks, Defendant-Appellant.
    (No. 58899;
    First District (5th Division)
    October 26, 1973.
    LORENZ, J., took no part.
    Paul Bradley, Deputy Defender, of Chicago (Edwin R. McCullough, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Opinion by Mr. JUSTICE GOLDBERG.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Owen Phifer, Defendant-Appellant.
    (No. 54768;
    First District (1st Division)
    October 29, 1973.

      Paul Bradley, Deputy Defender, of Chicago (Kenneth L. Jones, Assistant Appellate Defender, of counsel) for appellant.
    Bernard Carey, State’s Attorney, of Chicago (James S. Veldman and Thomas A. Mauet, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by Mr. JUSTICE GOLDBERG.


text:
    The People ex rel. Leroy Macklin, Relator-Appellant, v. Richard Elrod, Sheriff of Cook County, Respondent-Appellee.
    (No. 58566;

    First District (1st Division)
    October 29, 1973.
    EGAN, J., took no part.
    James J. Doherty, Public Defender, of Chicago (J. Powers McGuire, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Assistant State’s Attorney, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE EGAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry Schreiber, Defendant-Appellant.
    (No. 58834;
    First District (1st Division)
    October 29, 1973.
    Paul Bradley, Deputy Defender, of Chicago (James R. Streicker, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Mariann Twist, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE EGAN

delivered the opinion of the court:

Defendant, Henry Schreiber, pleaded guilty on August 28, 1968, to an indictment charging theft of an automobile worth in excess of $150, and he was sentenced to three years probation on condition that the first year be served in the House of Correction. (Ill. Rev. Stat. 1967, ch. 38, par. 16—1(a)(1).) In August, 1970, the probation was extended for two years following a revocation hearing based on defendant’s conviction of auto theft in Florida on May 14, 1970. On August 22, 1972, a rule to show cause was filed based on the defendant’s conviction of theft on May 15, 1972, in the circuit court of Cook County. After a hearing on September 8, 1972, defendant’s probation yygs revoked and he was sentenced to not less than one nor more than five years in the Illinois State Penitentiary.

Defendant argues that, since his appeal from the revocation of probation was pending on January 1, 1973, the effective date of the new Code of Corrections, he is therefore entitled to the benefits of section 5—6—4 (h) of the Code (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—6—4(h)) which provides in relevant part:

“Resentencing- after revocation of probation or of conditional discharge shall be under article 4. Time served on probation or conditionál discharge shall be credited against a sentence of imprisonment or periodic imprisonment.”

The identical issue was decided recently in two cases, People v. Johnson (1973), 13 Ill.App.3d 1020; People v. Murray, 13 Ill.App.3d 987. In both cases it was held that, since a judgment pending on appeal has not reached a final adjudication, the sentence imposed for a violation of probation was subject to the provisions of the Uniform Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1008—2—4) and that section 5—6—4(h) (par. 1005—6—4(h)) was applicable.

The court in Johnson pointed out that section 5—4—1(d) (3) (par. 1005—4—1(d)(3)) provides that the clerk of the court shaU transmit to the department or other agency the number of days the defendant has been in custody and for which he is entitled to credit. Since there is no similar provision for stating to the department the amount of time served on probation to enable the administrative application of sentence credit as provided in section 5—6—4(h) (par. 1005—6—4(h)), the court held that it was necessary for the trial court to determine the amount of time spent on probation when imposing the sentence for violation of probation and to issue an amended mittimus to reflect such time served.

, In the defendant’s brief he asks that the case be remanded to the trial court with directions that he be given credit for the time served on probation. In oral argument, however, he maintains that he has, in effect, served his sentence while on probation and asks, that we order him discharged. Whether this relief is appropriate may be determined by the trial court.

The judgment of the circuit court, therefore, is affirmed and the cause is remanded to the trial court for resentencing of the defendant with directions to credit him with time served on probation and for any further proceedings consistent with the views expressed in this opinion.

Judgment affirmed; cause remanded.

BURKE, P. J., and GOLDBERG, J., concur.