text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Douglas Rogers, Defendant-Appellant.
    (No. 73-5;
    Fifth District
    October 18, 1974.

      Robert E. Farrell, Richard E. Cunningham, and Timothy F. Flynn, all of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Clyde L. Kuehn, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a judgment entered by the circuit court of St. Clair County, on a jury verdict, against the defendant, Douglas Rogers, on three counts of armed robbery and the imposition of three concurrent sentences of 10 to 15 years in the penitentiary.

In this appeal the defendant raises six allegations of error: (1) that he was denied the effective assistance of counsel; (2) that he was not proven guilty beyond a reasonable doubt; (3) that the trial court erred in admitting the testimony of two policemen; (4) that the trial court erred in communicating privately with the jury; (5) that the trial court erred in imposing three sentences for alleged offenses arising from the same conduct; and (6) that the sentences imposed were excessive.

The defendant’s first contention is that he was denied due process of law due to the incqmpetency of his appointed counsel. It is, of course, the duty of the trial court to see that counsel assigned by it has sufficient ability and experience to fairly represent the defendant, present his defense and to protect him from undue oppression. (People v. Blevins (1911), 251 Ill. 381, 96 N.E. 214.) Although a defendant is entitled to a fair trial, his attorney is hot expected, nor does due process require that he, be infallible. It is only where the defendant demonstrates “actual incompetence of counsel as reflected by the manner of carrying out his duties as a trial attorney and * * # subsequent prejudice therefrom without which the outcome would probably have been different” that the constitutional requirement of adequate representation will demand reversal. People v. Teague (1973), 15 Ill.App.3d 479, 305 N.E.2d 80, 87. See also People v. Gill (1973), 54 Ill.2d 357, 297 N.E.2d 135; People v. Goerger (1972), 52 Ill.2d 403, 288 N.E.2d 416; People v. Dudley (1970), 46 Ill.2d 305, 263 N.E.2d 1.

The first alleged instance of incompetency of counsel is the defense attorney’s failure to request the court to order that all witnesses be kept separated. Prior to the trial’s commencement, the defense counsel did move that all witnesses be excluded from the courtroom. The defendant contends that his attorney should have taken the additional precaution of moving for the separation of witnesses. However, the defendant fails to allege, and we are unable to find, any unique circumstances which demonstrate a particular need for the separation of witnesses in the instant case. In the absence of such an allegation or finding we cannot say that the defense counsel’s failure to make such a request manifested his incompetence.

The defendant also alleges that the record “reveals confused and uninformed questioning” by defense counsel during cross-examination of the State’s witnesses. The record does not substantiate that claim. Moreover, “a review of appointed counsel’s competency does not extend to those areas involving the exercise of judgment, discretion, or trial tactics.” (People v. Witherspoon (1973), 55 Ill.2d 18, 302 N.E.2d 3, 5.) The extent and manner of a defense counsel’s cross-examination of the State’s witnesses will not be subjected to the scrutiny of the reviewing court where, as in the instant case, the defense counsel’s action or inaction involves the exercise of his “judgment, discretion, or trial tactics.”

The final alleged instance of incompetency is that defense counsel failed to question Mrs. Verdin Hesterberg, a victim of the alleged offense, about the possibility of an improper identification procedure. Assuming ad arguendo that the identification procedure was tainted and that counsel’s failure to develop this area demonstrated his incompetence the defendant was not prejudiced thereby and the conviction need not be reversed. Mrs. Hesterberg’s testimony reveals that she had an excellent opportunity to view the perpetrators during the commission of the alleged offense. It is likely, therefore, that even if an improper identification procedure had been employed, Mrs. Hesterberg’s in-court identification had an origin independent of that procedure, and under such circumstances, the in-court identification need not be suppressed. (People v. Rodgers (1972), 53 Ill.2d 207, 290 N.E.2d 251.) In any event there were two other prosecution witnesses who made a positive identification of the defendant at the trial. Hence, even if Mrs. Hesterberg’s identification testimony had been suppressed in its entirety, we cannot say that the outcome of the trial would probably have been different. Without such a determination defendant could not have been prejudiced by the actions of his appointed counsel and, therefore, we will not reverse the defendant’s conviction on the ground that defendant’s counsel was incompetent.

The defendant also contends that he was not proven guilty beyond a reasonable doubt because the conviction rests upon identification testimony that is vague and uncertain. The general rule is that the sufficiency of eyewitness identification is a matter for determination by the trier of fact, and a reversal will not be warranted unless the testimony is so unsatisfactory as to leave a reasonable doubt as to the guilt of the accused. (People v. Williams (1972), 52 Ill.2d 455, 288 N.E. 2d 406; People v. Del Genio (1973), 10 Ill.App.3d 437, 294 N.E.2d 78; People v. Hill (1972), 3 Ill.App.3d 694, 279 N.E.2d 497.) Testimony of a single eyewitness is sufficient to establish guilt beyond a reasonable doubt provided such witness had an ample opportunity to observe the defendant and such witness is credible. People v. Guyton (1972), 53 Ill.2d 114, 290 N.E.2d 209; People v. Stringer (1972), 52 Ill.2d 564, 289 N.E.2d 631; People v. Savage (1973), 12 Ill.App.3d 734, 298 N.E.2d 758.

In the instant case three eyewitnesses positively identified the defendant at the trial. Each of the witnesses had an ample opportunity to observe the defendant during the commission of the alleged offenses. The record reveals that the store in which the aHeged offenses occurred was weH fighted; that the defendant was in close proximity to the witnesses; and that each of the witnesses had sufficient time to observe the defendant.

The defendant contends that eyewitness identifications were doubtful, vague and uncertain since the witnesses could not recall whether the defendant had worn glasses, a mustache, or a beard. It is well established that minor discrepancies in the testimony of an eyewitness do not destroy credibility and are for the trier of fact to weigh in its deliberations. (People v. Del Genio (1973), 10 Ill.App.3d 437, 294 N.E.2d 78; People v. Willis (1970), 126 Ill.App.2d 348, 261 N.E.2d 723.) Where identifications testimony is positive, as in the instant case, precise accuracy in describing facial characteristics of a defendant is not necessary. (People v. Miller (1964), 30 Ill.2d 110, 195 N.E.2d 694; People v. Carroll (1973), 12 Ill.App.3d 869, 299 N.E.2d 134; People v. Taylor (1972), 8 Ill.App.3d 727, 290 N.E.2d 342.) We, therefore, find that the identification testimony of the three witnesses was clear, convincing and credible and that the defendant was proven guilty beyond a reasonable doubt.

Next, the defendant contends that the court erred in admitting the testimony of two East St. Louis policemen, Lawrence Brewer and Emanuel Farmer. Lawrence Brewer testified that he placed the defendant in custody on March 30, 1972. Defense counsel objected to any further testimony concerning the arrest on tire ground that it had no bearing on the alleged offenses. The objection was overruled, and Brewer was then asked whether the defendant was taken into custody as a suspect in the instant case. Defense counsel again objected and asked that a continuing objection be noted in the record. The objection was overruled. When Brewer was asked if he knew who lived in the residence at which the defendant was arrested, defense counsel again objected and requested that his continuing objection be shown. The trial court responded that the objection was overruled but that counsel’s continuing objection would be shown. Brewer tiren testified that the defendant had been living with Ella Smith, his girlfriend. Defense counsel objected, claiming that the testimony was highly prejudicial, but the prosecutor said that he would “attempt to connect it up.” Brewer then testified that Ella Smith owned a blue 1966 Chevrolet with a black vinyl top.

Officer Farmer testified that on April 1, 1972, he dusted Ella Smith’s blue 1966 Chevrolet for fingerprints. It was his opinion that some of the prints lifted from that car matched those of the defendant. The defendant did not object to officer Farmer’s testimony.

The prosecutor’s attempt to connect the preceding evidence was based upon the testimony of the witness Philip Reinecker. He testified that he saw three men running from the scene of the alleged offenses “in a suspicious manner” on March 29, 1972, the date of the alleged offenses. He further testified that the men ran down an alley and got into a blue car with a black vinyl top. The witness did not know the make or the license number of the car.

“The test of the admissibility of evidence is whether it fairly tends to prove the particular offense charged, and any circumstances may be put into evidence which tend to make the proposition at issue more or less probable.” (People v. Peter (1973), 55 Ill.2d 443, 559, 303 N.E.2d 398, 408. See also People v. Rodgers (1972), 53 Ill.2d 207, 290 N.E.2d 251; People v. Nemke (1970), 46 Ill.2d 49, 263 N.E.2d 97.) Proof with respect to the opportunity to execute an act is admissible to raise or negate an inference as to its performance by the person charged with its commission. Thus, recent possession by the accused of instruments suitable for the commission of the offenses, even though no claim is made that, in fact, those were the instruments used, is a relevant evidentiary consideration. People v. Hahn (1967), 90 Ill.App.2d 367, 234 N.E.2d 142.

In the instant case, the testimony that the defendant lived with Ella Smith, that Ella Smith owned a blue car with a black vinyl top and that the defendant’s fingerprints were found therein tends to show that the defendant did have access to, and had been in, a car which was similar to the car which was seen by an eyewitness fleeing the scene of the alleged offenses. We find that this evidence was properly admitted since the total of the evidence presented in this respect would justify reasonable men in concluding that the existence of the ultimate fact, i.e., that the defendant committed the alleged offenses, is more probable than its nonexistence.

The defendant’s next contention is that the trial court erred in communicating with the jury outside the presence of the defendant. The defendant had alleged in a post-trial motion that the trial court had erred in ordering the continuation of jury deliberations notwithstanding the fact that the jury had announced on two occasions that they could not reach a unanimous verdict. In defense counsel’s oral argument on the motion, he alleged that the jury had deliberated from 10:30 A.M. to 5:30 P.M. on the day in question, that the jury foreman informed the court on two occasions during the afternoon, that the jury could not reach an unanimous verdict and that on each occasion the court instructed the jury to deliberate further. The trial judge stated that the jury did not report directly to him at any time during its deliberations but that the jury reported to the bailiff, who in turn reported to the judge. In denying the post-trial motion, tire court stated:

* * On this question about the jury and improper or undue pressure, I do not feel there, was any and as I indicated earlier there was no contact between the court and the jury, the [szc] only contact was that the bailiff reported to me in Chambers that on one occasion they were 9 to 3 and in another occasion they were 10 to 2 and on each of those instances I told the bailiff to ask the foreman if they wished to deliberate further and on each of those instances they did go back and take another vote and this is what he reported to me. There was no contact between the jury and myself or anyone else to indicate any undue pressure. * * *”

It is well established that it is generally improper for the trial judge to communicate with the jury outside the presence of the defendant and his attorney. (People v. Longstreet (1971), 2 Ill.App.3d 556, 276 N.E.2d 825.) It is, however, equally well established, that a jury verdict will not be set aside because of an unauthorized communication with the jury unless the defendant demonstrates that he was prejudiced. People ex rel. Walker v. Pate (1973), 53 Ill.2d 485, 292 N.E.2d 387; People v. Tobe (1971), 49 Ill.2d 538, 276 N.E.2d 294; People v. Canaday (1971), 49 Ill.2d 416, 275 N.E.2d 356; People v. Callahan (1974), 16 Ill.App.3d 1006, 307 N.E.2d 188.

The defendant asserts that he was prejudiced by the trial court’s communication with the jury since that communication constituted the exertion of undue influence upon the jury. The defendant has cited two cases in support of this assertion. (Crabtree v. Hagenbaugh (1860), 23 Ill. 289; People v. Rohwedder (1967), 78 Ill.App.2d 211, 223 N.E.2d 1.) Crabtree can be of no aid to the defendant, however, because it is no longer law and Rohwedder can be significantly distinguished from the instant case. In Rohwedder this court stated:

“* * * we are not convinced that no injury resulted from the communication between the judge and jury in this case. The Chief Judge testified that he called the jury down and asked them if they needed more time to deliberate. We believe that the jury would probably interpret this to mean that the judge thought it was about time that they brought in a verdict. (78 Ill.App.2d at 217, 223 N.E.2d at 4.)

In the instant case the record suggests that the jury initiated the communication with' the court by informing the bailiff that they could not or had not reached a verdict. The trial judge merely informed the jury that they could continue to deliberate; there is nothing in the record to indicate that any pressure was put upon the jury to reach a verdict quickly. In Rohwedder the judge initiated the communication and had the bailiff bring the jury down to the court room, that procedure was found to be coercive pressure which deprived the defendant Rohwedder of a fair and orderly trial.

Our supreme court faced a factual situation similar to the one herein present in People v. Tobe (1971), 49 Ill.2d 538, 543, 276 N.E.2d 294, 298. Therein the supreme court affirmed the conviction and stated:

“We do not judge that the communication between the jurors and the bailiffs was coercive and prejudicial as the defendant claims. Considering the length of the trial and the time the jury spent in deliberating, we do not believe it can be reasonably said that the statements of the bailiffs that the jurors should continue to deliberate until they reach a verdict can be regarded as coercive.”

In both Tobe and the instant case the jury informed a bailiff that they could not reach or had not reached a unanimous verdict, the bailiffs reported the communication to the judge and the judge instructed the bailiff to inform the jury to continue deliberations. The jury in Tobe had been deliberating approximately the same length of time as had the jury in the instant case. The supreme court held in Tobe that under such circumstances, absent a showing that the jury was coerced by the judge or bailiff, the communication is not deemed coercive or prejudicial. Since our review of the record reveals that the defendant in the instant case has failed to show that he was prejudiced by the trial judge’s unauthorized communication with the jury we conclude that none of the defendant’s statutory or constitutional rights were thereby offended.

A further contention is that the trial court erred in imposing three separate sentences. The defendant was sentenced to serve three concurrent sentences of 10 to 15 years for three counts of armed robbery. The three counts arose during the course of the alleged armed robbery of Bert’s Hardware Store. The defendant argues that the record fails to indicate that the armed robbery of the three individuals was sufficiently separable to warrant individual sentences on each count. We find no merit in this argument.

We hold the supreme court’s ruling in People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601, is dispositive of this issue. In Prim the defendant and three accomplices allegedly boarded a bus and, while armed with a gun, took property from the bus driver and from two passengers. The defendant was found guilty, and the court imposed separate sentences on the armed robbery counts and stated:

“The armed robbery of the bus driver, of William Giersz and of Ermelindo Maldonado were three separate and distinct crimes committed by different persons or the same person at different times. * * * Separate criminal acts were involved in each case and the court properly imposed separate though concurrent sentences for each offense. People v. Raby, 40 Ill.2d 392, 240 N.E.2d 595.” (53 Ill.2d at 78, 289 N.E.2d at 610-611.)

In view of the similarity between the circumstances here present and those present in Prim we conclude that the three armed robberies in the instant case were separate and distinct offenses for which the court properly imposed separate sentences. That conclusion is also supported by People v. Lewis (1974), 17 Ill.App.3d 188, 308 N.E.2d 59 and by People v. Ellis (1971), 132 Ill.App.2d 920, 271 N.E.2d 47.

The defendant’s final contention is that the sentence imposed upon him was excessive. The trial court sentenced tire defendant to three concurrent terms of not less than 10 nor more than 15 years in the penitentiary. The main thrust of the defendant’s contention is “that the minimum sentence of ten years may serve to discourage the defendant in his efforts toward effective rehabilitation.”

Although a hearing in aggravation and mitigation was held that hearing consisted solely of short statements made by each counsel. The defense counsel informed the court that the defendant was only 19 years old and that the defendant had received a “G.E.D.” (General Equivalency Diploma) while he was in jail. The only evidence the State offered to aggravation was that the defendant had pled guilty to theft in 1970 and had beeen sentenced to serve 2 to 5 years in the penitentiary. The defendant was on parole for this offense at the time he allegedly committed the armed robberies involved herein. Although the defense counsel indicated in his argument that a presentence investigative report had been prepared and that the trial court received the report that report has not been included in the record on appeal.

In People v. Friday (1973), 11 Ill.App.3d 1071, 297 N.E.2d 218, a defendant convicted of aimed robbery was given a sentence of 15 to 35 years. The offense was allegedly committed while the defendant was on parole from another felony conviction. Despite the defendant’s prior felony record, the reviewing court reduced the sentence to 5 to 12 years. A majority of this court considers the sentence here imposed as too severe, foreclosing the possibffity of rehabilitation. We therefore modify the concurrent sentences here imposed to reduce the minimum on each to 7 years.

Although the defendant was not accorded a perfect trial free from aH error he was given a fair trial. Accordingly, not having found any reversible error, we affirm the judgment of the circuit court of St. Clair County as modified.

Judgment affirmed as modified, cause remanded for issuance of mit-timuses in compliance herewith.

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


source: Caselaw Access Project

author: Mr. JUSTICE CREBS

license: Public Domain

text:
    Elizabeth Phillips et al., Plaintiffs-Appellants, v. Board of Education of Brownstown Community Unit School District No. 201, Fayette County, Defendant-Appellee.
    (No. 74-85;
    Fifth District
    October 23, 1974.

      Drach, Terrell and Deffenbaugh, P.C., of Springfield, for appellants.
    Martin J. Corbell, of Vandalia, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal by the plaintiff teachers from an order of the Circuit Court of Fayette County denying their request for a declaratory judgment and refusing them injunctive relief from the School Board’s requirement that they perform allegedly non-teaching duties without extra pay.

Each of the plaintiffs was a duly qualified, tenured teacher certified by the State of Illinois and employed at a fixed salary by the defendant Board of Education of Brownstown Community Unit School District No. 201 of Fayette County. Their teacher-salary statements, or contracts, had been signed in the year they were respectively employed and were continuing from year to year. In addition to a stated salary the contracts provided that certain other extra duties assigned by the principal would be considered a part of their positions as teachers. In the 1972-1973 school year, as was customary, the teachers were assigned such extra duties as sponsoring a particular high school class both during and beyond the normal school day and sponsoring a student group known as Future Homemakers of America. Also, one of the teachers was required to take charge of the concession stand for school basketball games, and four others were required to sell tickets for such games, three of them being assigned to one weekday game each starting at 6:30 P.M., and one of them to a Saturday game.

On September 11, 1972, the teachers’ association, known as the Brownstown Education Association, directed a letter to the Board stating that due to its dispute with the Board over salaries the teachers would no longer perform any “voluntary activities not directly relating to teaching assignments.” On February 2, 1973, the superintendent of the school district informed plaintiffs in writing that such extra duties were considered a normal part of their teaching duties and that failure to perform them would be considered a wilful violation of their teachers’ contracts.

In this appeal plaintiffs contend that by statute (Ill. Rev. Stat., ch. 122, par. 24 — 2) the Board is specifically prohibited from requiring teachers to teach on Saturdays, and that the other extra-duty assignments required of plaintiffs bear no reasonable relationship to the profession of teaching for which sole purpose plaintiffs were hired. It is argued, therefore, that those provisions of the contracts for the school year 1972-1973 requiring the performance of such prohibited and unreasonable extra duty assignments should be declared invalid and the- Board enjoined from endeavoring to enforce them.

The Board admits that in the one isolated Saturday incident the teacher could have refused his ticket selling assignment because if by statute he could not be required to teach on that day, it necessarily follows that he could not be required to perform any other duties no matter how closely related to teaching. As to the other extra duties it is contended that they were teacher related, reasonable, and within the provisions of their contracts under contractual continued service.

In effect what we are being asked to decide here is whether the teachers’ contracts for the school year 1972-1973 were sufficient to require performance of the extra duties described. However, from the record it is apparent that this dispute was settled between the parties themselves even before the hearing on the matter in the trial court. As admitted by plaintiff’s counsel in his argument to the trial court in November, 1973, extra pay for the questioned extra duties was included in their contracts for the school year 1973-1974. In our opinion there is now no existing controversy, nothing remains for us to decide, and the case has, therefore, become moot. As stated in La Salle National Bank v. City of Chicago, 3 Ill.2d 375, a case is moot when it does not involve any actual controversy; and where issues in the trial court no longer exist, an appellate court will not review a case merely to decide moot or abstract questions, or to establish a precedent, or, in effect, to render a judgment to guide potential future litigation. See also Siefferman v. Johnson, 406 Ill. 392; Central States Import & Export Corp. v. Illinois Liquor Control Com., 405 Ill. 58; Railway Express Agency Inc. v. Commerce Com., 374 Ill. 151; People ex rel. Lawrence v. Village of Oak Park, 356 Ill. 154; Berg v. City of Chicago, 97 Ill.App.2d 410.

We are aware that this general rule relative to mootness is subject to an exception and that in certain instances courts of review have chosen not to apply it. (Kern v. Chicago & E.I.R.R. Co., 44 Ill.App.2d 468; People ex rel. Wallace v. Labrenz, 411 Ill. 618; Partney v. Dallas, 111 Ill.App.2d 261.) However, in each of these cases it was the overriding public interest involved in the issue presented that dictated the decision to consider it in spite of its mootness. In Kern it was the validity of a corporate bylaw that was involved which was designed to modify the cumulative voting rights of a great number of preferred stockholders. In People ex rel. Wallace the issue concerned the right of a trial court to appoint a guardian for an 8-day-old child with power to consent to a blood transfusion for the child over the objections of the parents on religious grounds. In Partney the issue involved the relative rights of a mayor or city council to make certain committee appointments.

In the case before us we find no such overriding public interest involved. The issue here was whether the plaintiff teachers were entitled to minimal extra compensation for minimal extra duties. No reimbursement was sought for the contract year in question, and the parties themselves resolved the question for the subsequent year. Under these circumstances, and in accordance with the cases above cited, we find this case has become moot and the appeal from the order of the Circuit Court of Fayette County is hereby dismissed.

Appeal dismissed.

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


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry Lee Williams, Defendant-Appellant.
    (No. 73-339;
    Fifth District
    October 31, 1974.

      Robert E. Farrell, of Mt. Vernon, and Steven Clark, of Chicago, both of State Appellate Defenders Office, for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville (Raymond F. Buckley, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

The defendant was convicted of the offense of murder and sentenced to serve a minimum of 20 and a maximum of 30 years in the penitentiary. This court affirmed the conviction but remanded the cause to the circuit court of Madison County for reconsideration of the minimum sentence. People v. Williams, 10 Ill.App.3d 456, 294 N.E.2d 98.

The trial court held a hearing to resentence the defendant and imposed a sentence of 17 to 30 years in the penitentiary. The defendant appeals that order and alleges that (1) a minimum sentence in excess of 14 years was not justified and (2) the defendant should have been given sentence credit for time spent in a California mental hospital awaiting extradition to Illinois.

Propriety of the 17- to 30-Yeab Sentence.

The state presented no evidence at the resentencing hearing. The defendant called two witnesses and presented seven exhibits in addition to his own testimony at the hearing. The evidence presented by the defendant indicates that the defendant had made great progress toward rehabilitation since his incarceration.

The Unified Code of Corrections (Ill. Rev. Stat., ch. 38, par. 1005— 8 — 1(c) (1)) provides in part:

"(1) [F]or murder, the minimum term shall be 14 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, stressing the fact that the state introduced no evidence at the hearing, contends that a minimum sentence in excess of 14 years was not justified in light of the above statutory provision.

Even though the state produced no evidence at the sentencing hearing, it does appear that the court considered the nature and circumstances of the offense and the history and character of the defendant. The judge who presided at the defendant’s trial was tire same judge who resen-tenced the defendant, and he signed an order which included the statement that he had reviewed the record. He also stated that he had considered the presentence report which was submitted to the trial court on July 9, 1973. He also considered the oral arguments of each attorney which pertained to the nature and circumstances of the offense and the history and character of the defendant.

Tire trial court also considered the history and character of the defendant before it imposed tire sentence. The presentence report which the trial court considered stated that the defendant made a number of achievements since his incarceration. The report also suggests, however, that the defendant had not been a model prisoner. The defendant had been convicted of several minor offenses. When he was 17 years of age he was placed on 6 -months’ probation for the offenses of assault and reckless driving. He was convicted of a battery and was fined at age 20. He was also convicted of a battery and malicious mischief in the state of California when he was almost 22 years old. It appears that he was fined $700 and given a 50-day jail sentence for that offense.

In our opinion, the trial court, after considering the nature and circumstances of the offense and the history and character of the defendant, did not abuse its discretion in sentencing the defendant to a minimum in excess of 14 years.

Cbedit Time

The defendant was arrested in California on the basis of a felony-fugitive complaint indicating that he was wanted for murder in Madison County, Illinois. On December 5, 1967, he was adjudicated insane and incompetent to participate in an extradition hearing and was committed to a California state hospital. On January 14, 1969, he was determined to be sane. On February 16, 1969, he was released to Illinois authorities.

The defendant contends that he is entitled to sentence credit for time spent in custody in California awaiting extradition to Illinois from December 5, 1967, to February 6, 1969. Section 5 — 8—7(b) of the Unified Code of Corrections (Ill. Rev. Stat., ch. 38, par. 1005 — 8—7(b)), provides that:

“The offender shall be given credit on the maximum term and the minimum period of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed.”

No case has beeen found which has determined whether a defendant held in an out-of-state mental institution while awaiting extradition to Illinois is entitled to credit for the time spent in that institution. If a defendant is found unfit to stand trial or be sentenced and is hospitalized in tire state, he shall be given credit for time spent in the hospital pursuant to the finding of unfitness if he is subsequently sentenced for tire offense charged at tire time of such finding. (Ill. Rev. Stat., ch. 38, par. 1005 — 2—2(c); In re Estate of Schneider, 130 Ill.App.2d 440, 264 N.E.2d 805.) It has also been held that if a defendant is confined in a foreign state by reason of an Illinois process, and if that defendant is subsequently returned to Illinois and convicted for the offense upon which he was being held, he is entitled to sentence credit for the time confined in the foreign state. (People ex rel. Bradley v. Davies, 17 Ill.App.3d 920, 309 N.E.2d 82.) It would follow that time spent in a foreign mental hospital while awaiting extradition to Illinois should be credited to a defendant’s sentence if he is sentenced for the offense charged at the time of the incarceration in the mental hospital. In the instant case, it appears that there were no charges pending against the defendant in California when he was hospitalized in that state. The proceedings in California evidently resulted from the criminal charges against the defendant in Illinois. Therefore, within the meaning of section 5 — 8—7(b) of the Unified Code of Corrections (Ill. Rev. Stat., ch. 38, par. 1005 — 8—7(b)), the time spent by the defendant in a California mental institution was “time spent in custody as a result of the offense for which the sentence was imposed.” Defendant is entitled to sentence credit for time spent in California awaiting extradition to Illinois from December 5, 1967, to February 16, 1969.

Therefore, defendant’s sentence is modified to give credit for time served in custody while awaiting trial and as modified it is affirmed.

Affirmed as modified.

EBERSPACHER and CARTER, JJ., concur.


author: Mr. JUSTICE CARTER.

text:
    The People of the State of Illinois, Respondent-Appellee, v. James Hyde, Petitioner-Appellant.
    (No. 73-113;
    Fifth District
    November 1, 1974.
    Robert Farrell, of Mt. Vernon, and Steven Clark, of Chicago, both of State Appellate Defender’s Office, and Mel S. Johnson, Senior Law Student, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Robert L. Craig, Assistant State’s Attorney, of counsel, and Mark Levi, Junior Law Student, Research Assistant), for the People.
   Opinion by

Mr. JUSTICE CARTER.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thad Harrell, Defendant-Appellant.
    (No. 73-260;
    Fifth District
    November 1, 1974.
    Robert Farrell, James Streicker, and Richard E. Cunningham, all of State Appellate Defenders Office, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Donald J. Dahlmann, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

The defendant was indicted for robbery by the St. Clair County grand jury. The indictment alleged that on January 17, 1973, the defendant took $40 cash from the presence of James Wright and Fred Holden by threatening the imminent use of force. At arraignment defendant pled not guilty, but at subsequent proceedings he changed his plea to guilty pursuant to a plea agreement. Defendant appeals, arguing that his plea was taken in violation of Supreme Court Rule 402(b). Ill. Rev. Stat., ch. 110A, par. 402(b).

Rule 402(b) provides as follows:

“In hearings on pleas of guilty, there must be substantial compliance with the following:
# # #
(b) Determining Whether the Plea is Voluntary. The court shall not accept a plea of guilty without first determining that the plea is voluntary. If the tendered plea is the result of a plea agreement, the agreement shaU be stated in open court. The court, by questioning the defendant personally in open court, shall confirm the terms of the plea agreement, or that there is no agreement, and shall determine whether any force or threats or any promises, apart from a plea agreement, were used to obtain the plea.”

The Committee Comments to Rule 402 (S.H.A., ch. 110A, § 402, Committee Comments (1974)) indicate that two major objectives of Rule 402 are: “(1) to insure compliance with the Boykin requirements [Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709]; and (2) to give visibility to the plea agreement process and thus provide the reviewing court with a record containing an accurate and complete account of all relevant circumstances surrounding the guilty plea.” The Comments to subsection (b) add that by giving visibility to the terms of the plea agreement and defendant’s assent to them, the plea will be insulated from collateral attack based on allegedly unfulfilled promises made to the defendant.

The record in this case gives only a bare outline of the plea agreement. The terms of the agreement must be pieced together from statements made by the court and the attorneys scattered through the first half of the change of plea proceedings. Nowhere is there a direct statement of the agreement. However, we need not decide whether there was a violation of the statement requirement of 402(b) because the record shows that the trial court did not question the defendant personally in open court to confirm the terms of the plea agreement as required by Rule 402(b). This was reversible error. People v. Ridley, 5 Ill.App.3d 680, 284 N.E.2d 37.

For the foregoing reasons the judgment of the trial court is reversed and this case is remanded with instructions that the defendant be allowed to plead anew.

Reversed and remanded with instructions.

CARTER and EBERSPACHER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnnie Hinkle, Defendant-Appellant.
    (No. 71-223;
    Fifth District
    November 1, 1974.
    Robert E. Farrell and Timothy F. Flynn, both of State Appellate Defender’s Office, and Antoinette G. Kirsch, Research Assistant, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Joseph B. McDonnell, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

The defendant, Johnnie Hinkle, was convicted of burglary after a jury trial in St. Clair County and was sentenced to serve not less than 3 and not more than 10 years in the penitentiary. We reverse.

A house located in East St. Louis was burglarized. The house was apparently entered by breaking a window in the front door, close to the doorknob. Four finger-prints were discovered on the glass remaining in the window, one on the inside and three outside. Defendant was subsequently arrested without a warrant.

Defendant-appellant contends that a card bearing his fingerprints taken shortly after arrest was improperly admitted into evidence. The arrest was made by an East St. Louis detective in an alley near the scene of the burglary 2 days after the burglary. The officer’s testimony in no way reveals the basis for the arrest. According to the State’s brief, one witness, Max Foreman, purportedly would have established cause for the arrest. However, a motion to strike was entered by defendant and the testimony was stricken. The State argues that defendant moved to strike because Foreman was not listed as a witness and that defendant is now somehow charged with the failure in proof of probable cause. The record reveals no warrant, no probable cause for arrest and no indication of the nature of Foreman’s proposed testimony. The Supreme Court of the United States in Davis v. Mississippi, 394 U.S. 721, 22 L.Ed.2d 676, 89 S.Ct. 1394 (1969), reversed the conviction of a defendant based largely on fingerprint comparison where defendant’s prints had been taken while defendant was detained both before and after arrest where the arrest was supported neither by warrant or probable cause. The court made it clear that the taking of fingerprints is within and controlled by fourth- and fourteenth-amendment restrictions on search and seizure. The State here attempts to distinguish Davis, since the police here used no dragnet tactics. However, the clear thrust of Davis militates against this view. It is the taking from the person without warrant or probable cause that invalidates the evidence. The First District has stated that under Davis, once the fingerprint evidence is objected to, it is necessary that a showing of compliance with fourth-amendment restrictions be made in order to have the prints admitted. (People v. Chambers, 127 Ill App.2d 215, 262 N.E.2d 170.) The State has not attempted to refute this position. Instead, the State contends that since defendant moved to have “probable cause” testimony stricken, he cannot now claim error. In People v. Moncrief, 131 Ill.App.2d 770, 268 N.E.2d 717, the court held that while the burden of showing unlawful search and seizure is on the defendant, the burden shifts to the State to prove valid arrest where evidence of probable cause is lacking. In Moncrief the arresting officer did not testify at the suppression hearing and the defendant testified that he was merely walking around an airport when apprehended. The record in the instant case reflects an oral motion to suppress physical evidence but no suppression hearing, although a prior motion is alluded to in defendant’s post-trial motion. Defendant cites as error the trial court’s failure to grant defendant’s motion to suppress, Also contained therein are references to a “tipster,” perhaps Foreman. None of this evidence is contained of record. It seems absurd to charge the defendant with the proper exclusion of a witness who might prove probable cause against him. The burden on the State is to prove compliance with the fourth amendment. No such showing was made here. Rather, the State argues that since defendant successfully excluded testimony allegedly tending to show probable cause, defendant is in no position to complain of lack of probable cause leading to his arrest. A defendant’s constitutional rights should not be jeopardized because he exercises his constitutional right to conduct a defense.

Judgment reversed.

CARTER and CREBS, JJ., concur.


author: Mr. PRESIDING JUSTICE G. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lendell Gersbacher, Defendant-Appellant.
    (No. 73-386;
    Fifth District
    September 11, 1974.

      Rehearing denied October 30, 1974.

      Kenneth L. Jones, of State Appellate Defender’s Office, of Chicago, for appellant.
    Donald E. Irvin, State’s Attorney, of Mt. Vernon, for the People.
   Opinion by

Mr. PRESIDING JUSTICE G. MORAN.


author: Mr. JUSTICE CARTER

text:
    S. M. Wilson & Company, Plaintiff-Appellee, v. The Prepakt Concrete Company, Defendant-Appellant.
    (No. 73-202;
    Fifth District
    October 7, 1974.

      Garry E. Peel, of Reed, Armstrong, Gorman & Coffey, of Edwardsville, for appellant.
    Frank C. Mansfield, of Belleville, for appellee.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The plaintiff-appellee, S. M. Wilson & Co., a general contractor on a construction project for an addition to the St. Elizabeth’s Hospital in Granite City, Illinois, brought a contract action based upon the theory of promissory estoppel against the defendant-appellant, The Prepakt Concrete Company, a subcontractor specializing in foundation work. The defendant-appellant denied the existence of any contractual obligation and refused to perform. The plaintiff-appellee contracted with another foundation work subcontractor at an increased cost. Damages sought were the difference between the bid of the replacement subcontractor and the original bid of the defendant-appellant, The Prepakt Concrete Company. No questions were raised on the pleadings.

The jury rendered a verdict for the appellee in the sum of $10,950 and judgment was entered upon this verdict. Following judgment the court denied the post-trial motions of the defendant-appellant for a judgment notwithstanding the verdict or for a new trial or for a substantial remittitur. A remittitur of $244 was allowed by the court, following which judgment was entered for the appellee for $10,706. Appeal is taken from the jury verdict, the judgment, and the rulings on the post-trial motions.

Appellee, a general contractor in Granite City, Illinois, submitted a successful bid for a construction project involving an addition to the St. Elizabeth’s Hospital in Granite City. Prior to submitting its bid, bid invitation cards were sent to approximately 30 subcontractors, asking them to bid on portions of the work. The appellant, which performs specialized type of foundation work, received a bid invitation card following which it made a telephone proposal to the appellee. This proposal was made on June 24, 1988, and under the same date it confirmed its proposal in writing, the last paragraph of the letter of transmittal accompanying the proposal stating:

‘We sincerely hope that our quotation to you will help to secure this job and look forward to working with you on this project.”

This written proposal contained the statement that it would expire on July 31, 1968.

After appellee’s bid had been accepted by the hospital on July 16, 1968, there was a delay in executing the contract. This resulted from the estimate exceeding the amount budgeted and necessitated further negotiations between the hospital and the Federal government, which was underwriting a portion of the costs. This problem was resolved and the general contract was awarded on September 24, 1968, to plaintiff-appel-lee. On August 9, 1968, appellee advised appellant that it was likely it would be awarded the contract and that it intended to employ the appellant for the piling work. On October 15, 1968, appellee sent to appellant a letter of intent to award the subcontract for the foundation piling. On October 17, 1968, appellant’s treasurer notified appellee by letter that the appellant would not do the job.

This court is confronted with two major issues: is the theory of promissory estoppel applicable in this case, and if applicable, was the trial court’s judgment correct.

The record shows that initially both parties submitted instructions based on contract theory. With regard to these instructions the trial court stated:

“A number of instructions based on contract theory have been submitted by the plaintiff (in addition to those on promissory estoppel). The substantive aspects of the case were discussed at length this morning in an earlier conference and the court gave counsel its opinion that the case must rest on promissory estoppel rather than any formalistic written contract or oral contract accepted * * * on the whole matter the court is of the opinion we knocked the contract theory out of the case this morning and restricted the plaintiff to promissory estoppel proof rather than any claim of oral contract * *

The doctrine of promissory estoppel is recognized in Illinois. Both the appellant and appellee agree on this point. The question confronting the court is whether or not it is proper to apply it in this case. Both appellant and appellee cite numerous authorities and cases expounding the elements of promissory estoppel. These cases require that there be a promise unambiguous in terms, that there be reliance on such promise by the party to whom it is made, that this reliance be expected and foreseeable by the party making the promise, and that the one to whom the promise is made in fact rely upon it to his injury.

As pointed out by appellee, in the construction industry the relationship between contractor and subcontractor typically involves these facts: An owner puts a particular project up for bid. Before interested general contractors submit bids, they solicit bids from subcontractors and suppliers. There may be and frequently are a large number of such subcontractors and suppliers. Based upon the totals of low subcontractors and supplier bids and upon other considerations, general contractors then submit bids to the owner. Following a determination of the low bid, the successful general contractor then sends subcontracts to each of the low-bidding subcontractors based upon their initial estimates.

It is obvious to this court that a general contractor will suffer financial loss if one or more of the subcontractors whose bids he used as a part of the total bid which procured the job for him refuses to perform after the job is awarded to the general contractor. We have no hesitancy in saying that the theory of promissory estoppel was appropriate in this case and that the trial judge was correct in so ruling.

Under the circumstances in this case, of what effect was the July 31 expiration date contained in appellant’s bid proposal? The record shows that following July 31 appellant and appellee commmrcated on several occasions regarding the job on which appellant had bid. Nothing that transpired in these communications would have led appellee to believe that appellant did not plan to do the piling work. Appellee states that appellant repeatedly indicated both willingness and intention to do the work by direct assurances and by participating with appellee in numerous details of the preliminary planning for the job. It was not until October 17, 1968, more than 2Vz months after the expiration date of July 31, that appellant notified appellee it would not perform.

Appellant cites Brook v. Oberlander, (1964), 49 Ill.App 2d 312, as the only Illinois case which meets squarely the problem of promissory estoppel as applied in the construction industry. In that case the court held for an electrical subcontractor. But that case is distinguishable from the instant case in two important respects. In Brook the court found that:

“* * * there is a variation between the description of the work as it appeared in the bid of the defendant and as set forth in the alleged acceptance by the plaintiff corporation.” (49 Ill.App.2d at 317.)

The court felt that these variations were material. Also, in Brook the bid was submitted to a partnership called “Abbot Construction Co.,” but acceptance of the bid and preparation of the proposed contract was by a corporation called “B. R. Abbot Construction Co.” Consequently, as a matter of law the bid was invited by one party and the subcontract was extended by another. In the instant case there was no misunderstanding about the parties involved and the record does not disclose any substantial difference between the bid proposal and the proffered subcontract.

Appellant also cites Hughes v. Encyclopaedia Britannica, Inc. (1954), 1 Ill.App.2d 514, an action to require the employer to continue purchasing annuities for employees. It was alleged that the employer failed to keep a promise of payment of such premiums on a group annuity contract for retirement benefits. The court recognized that the doctrine of promissory estoppel is used in Illinois but concluded that the employees had not made any detrimental change of position because of the promise of the employer — an essential element if promissory estoppel is to apply. The court also found that there was no fraud and no intent to deceive. However, it is not essential to the doctrine of promissory estoppel that either fraud or intent to deceive be present.

Both appellant and appellee cite many cases from other jurisdictions in which the principle of promissory estoppel was involved. Briefs and arguments of the appellant do not indicate to us that any reasoning in these cases would prevent the doctrine of promissory estoppel from applying in the instant case. Appellant understood the purpose and the intended end result of its bid. There was no material variance between the bid proposal and the proffered subcontract. Although the bid . proposal contained a termination date of July 31, actions of the appellant after that date reasonably led the appellee to believe that negotiations were still alive. Under these circumstances it would be an injustice to the appellee and a serious threat to the basis upon which construction contracts are implemented to hold that the appellant subcontractor is not bound and is immune to the application of the theory of promissory estoppel. In this case the trial court judge formulated and gave two instructions to the jury. In our opinion these instructions state fairly the burden which had to be met by the appellee general contractor.

Appellant objected to certain documents offered by the appellee on the theory that they had not been previously disclosed and that there was an element of surprise. The trial court found that:

“The defendant was not misled and had opportunity to inspect documents offered in this case.”

Our review of the record leads us to confirm the finding of the trial court that appellant was not prejudiced by not seeing all of these documents before they were offered in evidence by the appellee.

Appellant also argues that there should have been a more substantial remittitur-. Both appellant and appellee supplied figures and information regarding differences in cost between the job as done by the subcontractor procured by the appellee and the bid proposal of the appellant. A review of the record convinces us that the trial court did not act arbitrarily in deciding that a remittitur of $244 was all that was allowable.

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

Judgment affirmed.

EBERSPACHER and CREBS, JJ., concur.


author: PER CURIAM.

text:
      In re Application of the County Collector of St. Clair County.
    (No. 73-82;
    Fifth District
    October 7, 1974.
    Robert H. Rice, State’s Attorney, of Belleville, for appellant.
    J. Michael Mathis, of Peoria, for appellee.
   PER CURIAM.

G. MORAN, P. J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William McAllister, Defendant-Appellant.
    (No. 73-144;
    Fifth District
    October 8, 1974.

      Robert E. Farrell and Richard E. Cunningham, both' of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Howard Hood, State’s Attorney, of Murphysboro, and Ralph J. Mendel-sohn, of Model District State’s Attorneys Support Unit, of Cairo, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendant, William McAllister, was found guilty of the crimes of armed robbery and unlawful use of weapons after a jury trial in the Circuit Court of Jackson County. Count I charged him with armed robbery and Count II charged him with unlawful use of weapons.

Defendant initially maintains that Count I of the indictment failed to state an offense. The pertinent part of Count I stated:

“That William McAllister on the 20th day of June A.D., 1972 within said County of Jackson, committed the offense of Armed Robbeiy in violation of the provisions of Chapter 38, Paragraph 18 — 2, Illinois Revised Statutes, in that he took property from the Spires Grocery Store, 303 South Washington Street, Carbondale, Illinois, said property being United States currency, by threatening tlie imminent use of force and while armed with a dangerous weapon, to-wit: a sawed-off shotgun.”

Prior to his trial defendant filed a motion to quash the indictment and that motion was denied.

The crime of robbery is the forcible taking of property from another person. The indictment in the case at bar charges the defendant with the taking of property from “the Spires Grocery Store” by threatening the imminent use of force. The identity of an armed robbery victim is an essential allegation of an indictment charging that offense.

In the case at bar the “person” identified as the one robbed was “the Spires Grocery Store.” Thus, the complaint in this case is fatally defective in that “Spires Grocery Store” is not a “person” capable of being robbed and the conviction on this charge is reversed.

The defendant raises several other issues on appeal. We have reviewed tire record and find these issues to be without merit. We find that no error of law appears, that an opinion would have no precedential value, and that the evidence is not so unsatisfactory as to leave a reasonable doubt as to defendant’s guilt and we therefore affirm Count II of the conviction in accordance with Supreme Court Rule 23 (Ill. Rev. Stati, ch. 110A, par. 23).

Judgment reversed in part and affirmed in part.

EBERSPACHER and CARTER, JJ., concur.


text:
      In re Application of the County Collector of St. Clair County.
    (No. 73-81;
    Fifth District
    October 8, 1974.
    Robert H. Rice, State’s Attorney, of Belleville, for appellant.
    J. Michael Mathis, of Peoria, for appellee,
   PER CURIAM.

G. MORAN, P. J., took no part.


text:
    Germania Federal Savings and Loan Association, Plaintiff-Appellee, v. Virgil M. Jacoby et al., Defendants-Appellants.
    (No. 74-20;
    Fifth District
    October 8, 1974.

      Rehearing denied November 21,1974.

    Jacoby, Patton and Manns and Roach, Keshner & Wyss, both of Alton (P. J. O’Neill, of counsel), for appellants.
    Hoagland, Maucker, Bernard & Almeter, of Alton (William H. Hoag-land, of counsel), for appellee.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

This is an appeal from a forcible entry and detainer action in which possession was granted to the lessor, Germania Federal Savings and Loan Association, through a directed verdict.

The law firm of Jacoby, Patton and Manns occupied space in the Germania Federal Savings and Loan Association building as lessees from March 1, 1958, to March 1, 1961. Occupancy was under a written lease. This lease was extended or renewed from time to time, the last renewal being for a 3-year period terminating on March 15, 1973. The record discloses that during this last period of occupancy appellee on more than one occasion indicated to the appellant that it desired this space for its own use after March 15, 1973. This last period of occupancy was under a final option in the previous “extension of office lease” and under its terms expired at the end of the day on March 14, 1973. On February 15, 1973, appellee delivered to appellant a formal demand for possession as of March 15, 1973. On March 15 defendants were still in the premises, and a complaint for forcible entry and detainer was filed that same day.

Appellant filed an answer to the complaint containing a general denial, separate affirmative defenses and a counterclaim for damages alleged to be due for overpayment of rent. Appellant also asked for a jury trial which was granted. On motion of the appellee, the court struck the affirmative defenses and severed the counterclaim. The trial court specifically ruled that the matter was to be tried on the sole issue of who had the right to possession. Nevertheless, during the trial appellant introduced matters relating to the affirmative defenses and the counterclaim. Counsel and the judge met several times out of the presence of the jury, and on motion of the appellee the judge granted a protective order to keep matters not germane to the possessory action from being introduced. When it appeared to the trial judge that no testimony would be offered to refute the right to possession as of March 15, he directed the jury to bring in a verdict awarding possession to the appellee.

This appeal presents two basic issues: 1) Did the trial court have authority to sever the counterclaim and affirmative defenses from the principal action and limit the issue to the right of possession? 2) Did the trial court, in the absence of a motion by the appellee, have the power to direct a verdict for the appellee?

We believe that the trial court had the right to act as it did on the two issues presented for appeal. Section 5 of the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1971, ch. 57, par. 5) provides that “The defendant may under a general denial of the allegations of the complaint give in evidence any matter in defense of the action. No matters not germane to the distinctive purpose [emphasis added] of the proceedings shall be introduced by joinder, counterclaim or otherwise: Provided, however, that a claim for rent may be joined in the complaint, and judgment obtained for the amount of rent found due.”

With respect to the first issue, namely, whether or not the court had authority to sever the affirmative defenses and counterclaim and try only the issue of possession, there has been some shifting in position by both Illinois and Federal courts. The original view was that the forcible entry and detainer action was solely for the purpose of determining the right to possession. It was intended to be summary in nature and, hence, a quick and definite method through which an owner could retrieve his property unless the lessee could show he still had a possessory right. The amendment to the Illinois law which permitted the landlord to add a count for rent opened the way for a tenant to introduce matters which could defeat or reduce the claim for rent. Beyond cases in which there are questions about rent, the courts appear to have moved cautiously.

In Rosewood Corp. v. Fisher (1970), 46 Ill.2d 249, 263 N.E.2d 833, a purchase contract rather than a lease was involved and the question was whether or not the contract was enforcible or had been breached by the seller. Obviously, a purchaser should be permitted to make defenses that, after all, go to the right of possession. Such a defense is germane. The recent decision of the appellate court (First District) in Rosewood Corp. v. Fisher (1974), 20 Ill.App.3d 422, 314 N.E.2d 294, does not change this principle. In Marine Park Associates v. Johnson (1971), 1 Ill.App.3d 464, 274 N.E.2d 645, the Federal Civil Rights Act was involved (42 U.S.C. §§ 3604(a) and 1982 (1970)); hence, it was germane to permit the defendant to introduce evidence regarding violation of the Federal law because it had to do with his right to continue possession or to renewal. Even in Jack Spring, Inc. v. Little (1972), 50 Ill.2d 351, 280 N.E.2d 208, the case relied on most heavily by the appellant and one which might be read as materially changing the concept of defense to a forcible entry and detainer action, there was a legitimate question about the payment of rent. Hence, the court’s discussion of the more modern view about warranties of habitability, particularly in furnished apartments, was still related to the amount of rent the tenant might be required to pay.

Also, if, as in Jack Spring, Inc., there is a city building code, the terms of which relate to the issue of possession or continued possession or renewal or to a forestalling of the owner’s right to regain possession, except under certain conditions, then this is all germane. In Spring, a case involving several defendants, the lease of one defendant contained what amounted to a waiver of liability for the condition of the premises. The court said that, whether this did or did not preclude the existence of an implied warranty of habitability, thus permitting proof of a breach and hence affecting the rent due, it was germane. The court in Spring nevertheless restricted the application of its decision by saying that it did not affect any notice given under the Landlord and Tenant Act except for section 8 of that act, which refers specifically to the Forcible Entry and Detainer Act as a remedy for the landlord. The court also said that it does not alter the rule that liability for rent continues during occupancy and that it applied only to the occupancy of multiple dwelling units.

In the instant case no civil rights law or building code is involved, the rent has all been paid, and there is no claim for rent. Appellant for the first time raised objections about the condition of the premises after the forcible entry and detainer action was commenced. It should be noted also that this is a business rental, not the rental of a furnished apartment, which could bring into play the theory developed in Spring regarding warranties of habitability.

In our opinion the theories developed in Spring are good and are needed to protect tenants and to get away from the agrarian overtones in property rental, but they simply do not apply in this case for the reasons mentioned.

Did the trial court have the power to direct a verdict for appellee? Section 68.1 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 68.1) states: “If at the close of the evidence * * * any party moves for a directed verdict * * *” such may be granted. Appellant relies on this for the proposition that the trial court cannot direct a verdict unless one of the parties moves for such a verdict. However, section 68.1 also states: “Relief after trial may include the entry of judgment if under the evidence in the case it would have been the duty of the court to direct a verdict without submitting the case to the jury, even though no motion for directed verdict was made * * (Emphasis added.) This seems clearly to indicate that the court may direct a verdict without a motion.

Cases cited by the appellant do not hold that the judge lacks this authority. In People ex rel. General Motors Corp. v. Bua (1967), 37 Ill.2d 180, 226 N.E.2d 6, a products liability case, the supreme court held that the trial court’s production orders were too broad and difficult to comply with, not that the power was lacking or that contempt would not lie had it been properly exercised. In Gillespie v. Norfolk & Western Ry. Co. (1968), 103 Ill.App.2d 449, 243 N.E.2d 27, the trial court dismissed a wrongful death action and entered a default judgment for failure of the plaintiff to answer interrogatories within 28 days. The order dismissing the plaintiff’s complaint was reversed and remanded, the facts showing that there was no record of proof of service of the motion to dismiss or of an undated notice that the motion would be presented. The motion was received after plaintiff’s attorneys had advised that interrogatories would be answered. There was no written order as required by Supreme Court Rule 271. The record did not show how the plaintiff was advised of the order of dismissal. With all these defects in procedure it is quite understandable why the Supreme Court of Illinois reversed the decision. No defects of this nature are alleged in the instant case.

Appellants had ample opportunity to present all the evidence possible which might have refuted the right of the appellee to possession on' and- after March 15.'This they did-not do but insisted on discussing the shortcomings of the landlord with respect to the premises during the period of occupancy. When it became apparent to the trial judge that matters which he had ruled out were the only ones which appellants would discuss before the jury, he directed the jury to bring in a verdict for the appellee. In our opinion this was the proper alternative and one which he was justified in exercising.

Consequently, the trial court acted properly in directing a verdict for the appellee.

Judgment affirmed.

EBERSPACHER and CREBS, JJ., concur.


author: Mr. JUSTICE EBERSPACHER Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David Miller, Defendant-Appellant.
    (No. 73-103;
    Fifth District
    October 9, 1974.

      G. MORAN, P. J., dissenting.
    Robert E. Farrell, of Mt. Vernon, and James R. Streicker, of Chicago, both of State Appellate Defender’s Office, for appellant.
    Philip C. Quindry, State’s Attorney, of Albion, for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

Upon his plea of guilty the defendant, David Miller, was convicted of contributing to the delinquency of a minor child (Ill. Rev. Stat., ch. 23, § 2381(a)). From the judgment of the circuit court of Edwards County, the defendant has brought this appeal.

The defendant was charged by information filed November 16, 1972, which stated:

“That on October 26, 1972, in Edwards County, David Miller committed the offense of Contributing to the Delinquency of a Minor Child in that the said David Miller, a male person over the age of 17 years did knowingly cause Debbie Weisenberger, a female child under the again of 18 years to become a delinquent child, in that he knowingly caused Debbie Weisenberger to be present upon a public street, in the City of Albion, Illinois, after the hour of 11:00 P.M., in violation of Paragraph 2361(a), Chapter 23, Illinois Revised Statutes.”

An warrant of arrest was issued, defendant was arrested and bail set at $10,000 on the same date. On the following day, November 17, the defendant was first brought before the court, acknowledged receipt of a copy of the information, the information was read to him and upon being asked if he understood the charge indicated that he did by “nodding his head yes.” After further explanation of the charge and without being advised of the possible penalty he was asked: “Do you have any questions about the charges filed against you and the possible penalties?” to which the defendant responded by nodding his head no..

This was followed by the following colloquy:

“By the Court: I have given you a copy of the Information. You are entitled to have a lawyer represent you?
Defendant: No.
By the Court: How much money is in his possession.
Sheriff: $100.00.
By the Court: If you desire to have a lawyer the money you have would have to be expended toward hiring an Attorney, expenses for an Attorney. When expenses for an Attorney went beyond funds you have available it is my obligation to appoint a lawyer to represent you.”

No further inquiry was made to determine defendant’s indigency. On several subsequent occasions during the cotuse of the proceedings, the court advised the defendant that he was entitled to be represented by a lawyer. However, on only one of those occasions, the first above recited, did the court make an effort to advise the defendant that he had right to appointed counsel.

After further proceedings it was determined defendant was 20 years of age and defendant was sentenced to the Illinois State Farm at Van-dalia for 1 year and assessed a fine of $40 and costs. Defendant remained incarcerated at the State Farm from November 17, 1972, until May 31, 1973, when he was released on bail pending appeal, by this court.

Among numerous other contentions, the defendant asserts that the court erred in accepting the defendant’s guilty plea as the defendant was not represented by counsel and did not knowingly and intelligently waive his right to counsel.

In Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006, the United States Supreme Court held that the sixth amendment to the Constitution of the United States (made applicable to the States through the fourteenth amendment, Gideon v. Wainwright (1963), 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792) required:

“[T]hat absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” 407 U.S. at 37, 32 L.Ed.2d at 538.

In the instant case,' the defendant was convicted and sentenced to the maximum of 1 year’s incarceration without the aid or assistance of counsel. Thus, unless he knowingly and intelligently waived his right to counsel, and to appointed counsel if he was indigent, his conviction and sentence must be reversed. Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006.

In Illinois, the standard for determining whether a defendant in a criminal case is entitled to the appointment of counsel is whether the defendant is “indigent”. Ill. Rev. Stat, ch. 38, §§ 109 — 1(b)(2), 113— 3(b); Supreme Court Rule 401(a)(3), Ill. Rev. Stat., ch. 110A, § 401(a) (3).

We are aware of no requirement that a defendant be entirely without funds to be found indigent. Thus, the admonition given by the trial court wherein it was stated and inferred that the defendant must be entirely without funds before counsel would be appointed is error. We must, therefore, conclude that the waiver of right to counsel was not knowingly and intelligently made.

See also People v. Slaten (1973), 13 Ill.App.3d 317, 320-321, 300 N.E.2d 46, 49:

“The record discloses that at no time during defendant’s three appearances before the court was any inquiry made with a view to ascertaining whether or not defendant was indigent. At the time the plea was taken the court made no inquiry concerning defendant’s ability to secure counsel or whether he had made any effort to do so, nor did he inquire whether or not defendant wished to proceed without counsel. It is also apparent from the record that the passing reference to the right to counsel, made at the time this plea was taken on February 28,1967, may be characterized as the sort of routine inquiry’ proscribed in People v. Bush, 32 Ill.2d 484, 207 N.E.2d 446, where the court said with reference to right to counsel ‘a finding of waiver is not lightly to be made [Citations] and the record must show that an accused was offered counsel and that he intelligently and understandingly rejected the offer. [Citations.] In order that the court may be sure that an accused fully understands his right to counsel and intentionally relinquishes that right, something more than a routine inquiry by the court is required.’ We view this portion of the case as being controlled by People v. Hessenauer, 45 Ill.2d 63, 256 N.E.2d 791, where the court held ‘Because of the critical nature of the arraignment, an accused is entitled to the assistance of counsel wehther or not he requests it. [Citations.] A finding of waiver will not be made unless it appears from the record that at each critical stage of the proceeding the trial judge specifically offered, and the accused knowingly and understandingly rejected, the representation of appointed counsel.’ These requirements were not met here and we therefore reverse.”

On this one contention alone this cause must be reversed and remanded with directions to allow defendant to plead anew after a proper hearing on the question of his indigency. However, defendant has raised a question concerning the excessiveness of the sentence imposed. To establish a factual basis for the plea the 16-year-old girl named in the information was called by the State and testified that she was with the defendant in a car riding around on the streets of Albion after 11 o’clock on .the 26th. The court determined there was a factual basis for the plea. At a hearing in aggravation in which defendant was not represented by counsel and obviously under the misapprehension that if he was to be represented he would at least have to pay $100 of an attorney fee, the sheriff testified that defendant “had his problems. He had boys school, Youth Commission, and has had a sentence at Vandalia.” No record of conviction was ever presented.

After the sheriff had testified the trial judge said, “Let’s hear more testimony about die trip when they went to Florida.” Previous to this inquiry by the trial court there had been no reference to any trip to Florida. Testimony was then offered that the girl had on a previous occasion taken a trip to Florida with defendant but there was no showing of any charges resulting from such trip; nor was there any evidence that there was any criminal conduct in connection with such trip. Whether the trip was with other parties or with the consent of parents is not shown.

Based upon this paltry information the trial court saw fit to impose the maximum incarceration of 1 year, impose a fine and costs upon the youthful defendant. To say the action of the trial court on this record was arbitrary and an abuse of discretion is to minimize. The errors are so obvious and the trial court’s conduct so lacking in objectivity that we need not cite authorities. Appellant served approximately 6 months of the sentence and we consider a 6 months’ sentence on this record qualitatively as unreasonable as 1 year; we would therefore, modify the sentence to time served by the defendant.

As a result of the foregoing we reverse and remand with directions that defendant be allowed to plead anew, with further directions that if defendant elects to not plead anew the sentence be modified by the trial court, to the amount of time served.

Reversed and remanded with directions.

CREBS, J., concurs.

Mr. PRESIDING JUSTICE GEORGE J. MORAN

dissenting in part:

In my opinion this case should be reversed outright instead of being remanded to the trial court because the defendant pled guilty to a void information.

The information alleged that the defendant had violated Ill. Rev. Stat. 1971, ch. 23, § 2361(a), in that he had knowingly caused Debbie Weisenberger, a female under the age of 18, to be on a public street in the City of Albion, Illinois, after 11 P.M. on October 26, 1972, thereby rendering her a delinquent child.

Section 2360(a) of chapter 23 defines a delinquent child as any child who has violated or attempted to violate any Federal, State or municipal ordinance. The instant indictment fails to allege that Debbie Weisen-berger violated or attempted to violate any Federal or State law or municipal ordinance. Instead, it merely alleges that the defendant caused her to remain on a public street after 11 P.M. This allegation is clearly insufficient to demonstrate that Debbie Weisenberger had become a delinquent child since it fails to allege that she violated any Federal or State law or municipal ordinance.

In the case of People v. Plocar, 411 Ill. 141, 145, our supreme court said:

“# * * It is not specified by the information in what respect these facts tend to render the child delinquent, as set forth in the statute, nor do they by their plain meaning import a criminal or improper act or motive. The information is not sufficient, since it does not with reasonable certainty describe the crime in the terms of the statute, nor does it set forth sufficient facts to plainly apprise the defendant of the crime charged and of the specific violation of the statute.”

Under the language of the information in the present case, Debbie’s conduct and that of the defendant could have been wholly innocent. Where the conduct alleged in an indictment may in itself be wholly innocent, it is essential that the unlawfulness of the conduct be averred either by express allegations or by the use of terms, or the statement of facts, which clearly imply such unlawfulness. (41 Am.Jur.2d Indictments and Informations §§ 111 and 113 (1968). See also People v. Stewart, 3 Ill.App.3d 699, 279 N.E.2d 53.) If the facts alleged may all be true and yet constitute no offense, the indictment is insufficient. (People v. Barnes, 314 Ill. 140,145 N.E. 391.) In the absence of an accusation charging defendant with a violation of the criminal law, the indictment is void on its face, the trial court has no jurisdiction or authority to convict, and the defendant cannot by waiver or consent confer such jurisdiction or authority. People v. Fore, 384 Ill. 455, 51 N.E.2d 548; People v. Minto, 318 Ill. 293, 149 N.E. 241.

For the foregoing reasons, I would reverse this conviction outright.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dennis Hunsaker, Defendant-Appellant.
    (No. 73-164;
    Fifth District
    October 9, 1974.
    Robert Farrell, of Mt. Vernon, and Steven Clark, of Chicago, both of State Appellate Defender’s Office, for appellant.
    Howard L. Hood, State’s Attorney, of Murphysboro and Ralph J. Mendelsohn, of Model State’s Attorneys Support Unit, of Cairo, for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

This is an appeal from a conviction for the unlawful delivery of a controlled substance.

On July 7, 1972, a complaint was issued which charged that the defendant on April 20, 1972, made an unlawful delivery of controlled substances. After arrest, on July 26, 1972, the defendant was admitted to bail on July 31, 1972. On September 12, 1972, defendant was indicted, and after posting bond, he requested a prelim'nary hearing, which was set for November 22, 1972. The clerk’s record sheet indicating that a hearing had been held on that date was in error, as no hearing was held.

On January 23,1973, a motion for discovery was filed by the defendant. Item 7 of this motion requested the disclosure and production of “all books, papers, documents, photographs, tangible objects which the prosecuting attorney intends to use in the hearing or trial or which were obtained from or belonged to the accused.” A response to this motion was filed by the State on January 31, the response stating in item 6 that “the State has the following tangible evidence it intends to use at trial which were obtained from or belonged to defendant.” No tangible evidence was listed. On January 29, a motion to quash the indictment was filed by reason of the fact that no preliminary hearing was held prior to indictment on September 12,1972. The motion was denied. On March 15, 1973, a bench trial was held and defendant was found guilty. On April 16, he was sentenced to IVz to 5 years in the penitentiary.

We hold that the trial court did not err in denying defendant’s motion to dismiss because of the failure to have a preliminary hearing. We also hold that the trial court did not err in allowing the State to admit tangible physical evidence not listed on the State’s response to the defendant’s motion for discovery. These are the two issues raised by defendant’s appeal.

Prior to trial the judge found that appellant had been initially arrested only after indictment and was therefore not entitled to a preliminary hearing. Defendant contends that the initial charge was the complaint filed on July 7, 1972. Article I, section 7, of the Illinois Constitution of 1970 provides in part that:

“No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary hearing to establish probable cause.”

In People v. Hendrix (1973), 54 Ill.2d 165, 169, 295 N.E.2d 724, the court said: “What is a prompt preliminary hearing [emphasis added] must, of course, depend upon an appraisal of all of the relevant circumstances, * * The court in Hendrix also stated: “The second paragraph of section 7 does not provide a grant of immunity from prosecution as a sanction for its violation.”

While it may be argued that in the instant case a preliminary hearing should have been held some time prior to September 12, this does not constitute reversible error. On that date an indictment was returned and, though the record is not clear about the length of time appellant spent in jail, the record does show that he was out on bond in sufficient time to arrange for his defense. Since the supreme court in Hendrix and the appellate court in People v. Howell, 16 Ill.App.3d 989, 307 N.E.2d 172, have held that failure to hold a prompt prelim'nary hearing does not call for reversal when the defendant is subsequently indicted, we do not find such failure.

Appellant contends that it was reversible error to allow the introduction into evidence of three bags of white powder identified as MDA in view of the fact that the State had failed to list them in response to defendant’s discovery motion.

In People v. Jordan, 38 Ill.2d 83, 93, 239 N.E.2d 161, the supreme court stated:

“Secondly, allowing unlisted witnesses to testify is within the discretion of the trial court and in the absence of a showing of surprise or prejudice, that discret-'on will not be reviewed.”

The record fails to show that the defendant was prejudiced or surprised by the State’s failure to list the three bags of white powder in its response to defendant’s discovery motion. The indictment listed the controlled substance by name and weight.

The record shows that the evidence is strong and the linkage unbroken tracing the three bags of MDA back to the defendant and establishing that they were the bags an agent for the Illinois Bureau of Investigation purchased from the defendant at a trailer park in Carbon-dale, Illinois. In view of the evidence we do not find that the appellant was harmed by failure of the prosecution to list these bags in response to appellant’s discovery motion and their introduction as evidence, though failure to disclose their existence was error.

The judgment of conviction of the Circuit Court of Jackson County is affirmed.

Affirmed.

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


author: Mr. JUSTICE EBERSPACHER

text:
    Wayne Allen, Plaintiff-Appellant, v. Kewanee Machinery and Conveyor Co. et al., Defendants-Appellees.
    (No. 74-88;
    Fifth District
    October 10, 1974.
    Thomas F. Londrigan, of Springfield (Robert Weiner, of counsel), for appellant.
    Hull, Campbell & Robinson, of Decatur (Michael I. Campbell, of counsel), for appellee Weakly & Hunter, Inc.
    Daniel G. Reese, of Taylorville, and Vernon H. Houchen, of Decatur, for appellee Kewanee Machinery and Conveyor Co.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by plaintiff, Wayne Allen, from orders entered by the circuit court of Christian County striking plaintiff’s amended complaint and granting a summary judgment in favor of parties defendant, Kewanee Machinery and Conveyor Co., a corporation, and Schwab and Weakly, Incorporated, a corporation (now Weakly and Hunter, Inc.).

The plaintiff commenced this litigation by filing a three-count complaint against parties defendant. The complaint alleged the manufacture and sale of a portable auger which was “* * * in an unreasonably dangerous defective condition in that it was of defective design and so constructed as to cause the upper portion of the same to tip on its wheels as the last portion of grain was being emitted from the upper end thereof.”

The defendant Kewanee Machinery and Conveyor Co. was the manufacturer of the auger and Schwab and Weakly, Inc., was the seller. An auger is a device used in the moving and lifting of grain. Grain is placed into one end of the auger and the grain is then, by mechanical means, conveyed a distance by the auger to a point where the grain is emitted from the discharge point of the auger. Among other things, augers are used to lift the grain to put it in storage. Thus, the plaintiff contends that when the grain is being lifted, the auger, through which the grain is being moved, can become dangerous because when there is grain only in the emitting end of the auger, the entire auger becomes unstable.

For the purpose of clarity the plaintiff, Wayne Allen, shall hereinafter be referred to as the plaintiff and the defendant Kewanee as the manufacturer and the defendant Schwab and Weakly as the seller.

The seller filed a motion to dismiss two of the plaintiffs counts. This motion was denied and thereafter the defendants pursuant to the court’s order filed their answers. Defendants have not filed a cross-appeal. We are not asked to pass on the propriety of the denial.

After discovery the defendants filed motions for summary judgment. The plaintiff filed a motion to strike the motions. These motions were heard and the matter was taken under advisement. The seller on the day of the hearing filed a “Supplement to Motion for Summary Judgment” asserting that the complaint failed to state a cause of action because this State does not recognize strict liability in tort for negligent design. This motion was heard and continued to allow for the filing of briefs. Prior to the argument of said motions, the plaintiff filed an amended complaint adding additional counts to his original complaint.

The plaintiff did not obtain leave of the court to which this case has been assigned, but instead obtained consent from another judge. This was done without notice to the defendants.

The defendants then filed their morions to strike the amended complaint asserting that the added counts were barred by the statute of limitations. Arguments were heard and on November 29, 1973, the court entered its order striking the added counts because of the statute of limitations. Then on January 8, 1974, the court granted the defendant’s motion for summary judgment.

From the orders of the circuit court of Christian County striking the amended compla'nt and the summary judgment granted in favor of parties defendant the plaintiff has brought this appeal.

The issues for review by this court are all based upon the pleadings of the cause. There are but two issues for review. The first being whether there is an action for defective design of a product under the Illinois’ law of strict liability in tort. The second is whether an amended complaint adding alternative counts pleading separate theories of recovery based upon the same set of facts is barred by the statute of limitations where the original complaint was filed within the applicable statutory period.

The trial court determ'ned that the first issue is controlled by the case of Mieher v. Brown, 3 Ill.App 3d 892, 278 N.E.2d 869, reversed on other grounds, 54 Ill.2d 539, 391 N.E.2d 397. The court concluded that the Mieher case holds that there is no cause of action in this State for strict liability in tort for defective design.

The Mieher case involved an automobile truck collision wherein the administrator of the estate of the deceased automobile driver brought suit against the manufacturer of the truck. The plaintiff contended that the truck was negligently designed permitting plaintiff’s decedent to drive under the track after colliding with the truck from the rear and thereby allowing the truck bed to go through the automobile windshield killing the automobile driver. This court stated in that same case, Mieher v. Brown, 3 Ill.App.3d 802, 804-805, 278 N.E.2d 869, 872:

“To put the matter bluntly, there is no cause of action in this state for strict liability in tort for negligent design.”

We went on to say,

“The complaint in question is, despite the language in the briefs and statements of counsel made during oral argument, an effort to state a cause of action for negligent design. It does not state a cause of action for strict liability in tort. There is, for example, no allegation that the truck in question was in the same condition when it left the possession of the defendant manufacturer as it was at the time of the accident which caused decedent’s death. There is an allegation that the vehicle was a negligently designed truck’, and that the defendant “knew or in the exercise of ordinary care should have known that said truck * * * was defective # * *’. As the Court said in Suvada, ‘to require proof that Bendix was actively negligent, would be the antithesis of strict liability.’ (32 Ill.2d 612, 624, 210 N.E.2d 182, 189 (1965).) Emphasis added. We therefore treat the complaint for what it plainly is, a cause of action for negligent design of the truck.” [Emphasis Ours.]

Negligence has nothing to do with strict tort liability.

The Illinois Supreme Court in Mieher v. Brown, 54 Ill 2d 539, 541, 301 N.E.2d 307, 308 accepted the appellate court’s holding that the case did not state a cause of action for strict liability in tort:

“However, the appellate court held that it did not state a cause of action on the theory of strict liability in that it did not allege that the truck was in the same condition when it left the possession of the defendant as it was at the time of the accident which caused decedent’s death * * *.

The appellate court correctly concluded that the amended complaint failed to state a cause of action for strict liability.” The supreme court then went on to examine whether or not that complaint stated a cause of action based on common-law negligence and concluded that it did not so do. The Mieher case was therefore decided upon the common law of negligence.

It is not reasonable to conclude that there is no strict liability in tort for defective design when there is strict liability in tort for defective manufacture. In Wright v. Massey-Harris, Inc., 68 Ill.App.2d 70, 79, 215 N.E.2d 465, 470, this court stated:

“The present case involves a claimed defect in design rather than a defect in manufacture and we interpret Suvada to mean that the strict liability imposed upon a manufacturer includes injuries which arise from defects in design as well as defects in manufacture.
Whether the design defect in the present case is of a nature upon which liability can be imposed involves the factual question of whether it creates an unreasonably dangerous cond'tion, or, in other words, whether the product in question has lived up to the required standard of safety.”

We reaffirmed the foregoing position in Williams v. Brown Manufacturing Company, 93 Ill.App.2d 334, 358, 236 N.E.2d 125, 138, reversed on other grounds, 45 Ill.2d 418, 261 N.E.2d 305, wherein we stated:

“In Suvada, the Supreme Court commented favorably upon, and quoted from, the opinion of the Supreme Court of California in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897. That opinion explicitly and unequivocally holds that liability may be imposed upon a manufacturer under the doctrine of strict liability as a result of a defect in design. This court so held in Wright v. Massey-Harris, Inc., 68 Ill.App.2d 70, 215 N.E.2d 465.”

Although the supreme court reversed our holding in Williams it stated that: “* * * it is clear that plaintiffs complaint was sufficient notwithstanding the absence of an allegation that he exercised due care.” (45 Ill.2d at 427, 261 N.E.2d at 310.) The supreme court had, previously, described plaintiffs complaint as “an action against defendant under a theory of strict product liability in tort, essentially alleging an unreasonably dangerous design # * *.” (45 Ill.2d at 420, 261 N.E.2d at 306.) In addition the supreme court in Williams discussed the appropriate statute of limitations to be applied in an action based on strict tort liability for damages for defective design. Such a discussion would have been an exercise in futility unless there existed an action for strict liability in tort for defective design. For these reasons we conclude that the supreme court in Williams did agree with our conclusion that “liability may be imposed upon a manufacturer under the doctrine of strict liability as a result of a defect in design.” See also Dunham v. Vaughan & Bushnell Mfg. Co., 86 Ill.App.2d 315, 229 N.E.2d 684, affirmed, 42 Ill.2d 339, 247 N.E.2d 401; Rivera v. Rockford Machine & Tool Co., 1 Ill.App. 3d 641, 274 N.E.2d 828.

We, therefore, conclude that the trial court erred in granting a summary judgment on behalf of the defendants based upon the holding of the Mieher case.

The next issue for review is whether the trial court erred in striking, because of the statute of Hmitations, the amended complaint pleading alternative counts as separate theories of recovery based upon the same facts as the original complaint which had been timely filed. The pertinent part of the trial court’s order provided that:

“* ” * the Court finds that Counts IV through Count IX as aHeged in the amended Complaint are barred by the Statute of Limitations and therefore Motion is allowed and IT IS HEREBY ORDERED that AMENDED COMPLAINT be stricken.” (Emphasis added.)

Ordinarily, we would not interfere with the trial court’s judgment with regard to its refusal to aUow amendment unless there has been an abuse of discretion. (Austin Liquor Mart, Inc. v. Department of Revenue, 51 Ill.2d 1, 280 N.E.2d 437; Shroat v. Robins, 7 Ill.App.3d 293, 287 N.E.2d 157.) Nevertheless, when, as in the instant case, we are confronted with a situation where the trial court erroneously believed that it had no discretion and was required to strike the amended pleadings we need not find an abuse of discretion in order to reverse the trial court.

Section 46 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 46), provides, in part, that:

“(1) At any time before final judgment amendments may be allowed on just and reasonable terms, * * * changing the cause of action or defense or adding new causes of action or defenses, and in any matter, either of form or substance, in any process, pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the claim for which it was intended to be brought or the defendant to make a defense or assert a cross demand.
(2) The cause of action, cross demand or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defense or cross demand interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed, and for the purpose of preserving as aforesaid the cause of action, cross demand or defense set up in the amended pleading, and for that purpose only, an amendment to any pleading shall be held to relate back to the date of the filing of the original pleading so amended.”

The manufacturer urges that the plaintiff should not be allowed to change his theory of the case after the issue has been submitted to summary judgment. The statutes quoted above belie this and the cases cited by the manufacturer are not persuasive.

We have been directed by the parties to the case of Halberstadt v. Harris Trust & Savings Bank, 55 Ill.2d 121, 124-125, 302 N.E.2d 64, 66. We feel that its interpretation of the foregoing statute is controlling. Therein the Illinois Supreme Court stated:

“The aforementioned provisions were designed to insure fairness to the litigants rather than unduly enhance the technical considerations of common-law pleading. Geneva Construction Co. v. Martin Transfer and Storage Co. (1954), 4 Ill.2d 273, 287, 122 N.E.2d 540.) As was noted in the Geneva case, the policy attendant to statutes of limitation is to provide defendant a sufficient opportunity to investigate the factors upon which his liability may be based while such evidence is still ascertainable. (4 Ill.2d at 289-90, 122 N.E.2d 540.) In the present case it is readily apparent that the cause of action set forth in the second amended complaint ‘grew out of the same transaction or occurrence set up in the original pleading,’ which was timely filed. Moreover, in all the pleadings the basis of defendants’ liabibty was the alleged defective nature of the work area utilized by deceased prior to his fall. Thus defendants were informed of circumstances upon which they might predicate a defense. We conclude that the second amended complaint was properly filed.”

We, therefore, reverse the order entered by the circuit court of Christian County strik-ng plaintiff’s amended complaint and the summary judgment entered in favor of parties defendant, and remand for further proceedings.

Reversed and remanded.

CREBS and CARTER, JJ., concur.