text:
    Samuel E. Valerio, Plaintiff, v. R & R Construction Company, Defendant-Third-Party Plaintiff-Appellant — (Ceco Steel Products Corporation, Third-Party-Defendant-Appellee.)
    (No. 72-364;
    Fifth District
    June 17, 1974.

      Robert W. Wilson, of Burroughs, Simpson & Wilson, of Edwardsville, for appellant.
    Listeman, Bandy & Hamilton, of Belleville (James J. Gomric, of counsel), for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Plaintiff, Samuel Valerio, brought an action in the Circuit Court of Madison County against R & R Construction Company (hereafter referred to as R & R) for personal injuries suffered when a beam he was bringing down broke, causing him to stumble backward over a pile of material and debris on the floor. Plaintiff was employed by third-party defendant, Ceco Steel Products Corporation (hereafter referred to as Ceco), working on the campus of Southern Illinois University at Edwardsville. R & R was the general contractor and Ceco was the subcontractor on the job. Plaintiff’s action was based both on negligence and Scaffold Act violation.

Defendant, R & R, filed a third-party action against Ceco in two counts. Count I dealt with contractual indemnity, and Count II dealt with the “active-passive” fault of the parties defendant.

At trial the jury decided Count II adversely to R & R finding defendant actively at fault. Count I of the third-party action was decided by the court in favor of Ceco on the indemnity provisions of the contract. This appeal arises solely from the court’s ruling as to Count I.

Ceco entered into an agreement as a subcontractor- with R & R as the general contractor to perform certain work and supply materials for the concrete flooring of the general services building of Southern Illinois University at Edwardsville. The written agreement under which the parties assumed these responsibilities was initiated on May 9, 1967, with the preparation of Ceco’s standard contract form number 110. This contract form was forwarded to R & R for their signature. On May 18, R & R prepared an additional two-page document and returned same with earlier document of May 9 to Ceco. Both documents were returned for Ceco’s final approval as is required by Ceco’s contract form 110. In Chicago, Ceco’s signature and approval was obtained on both documents on June 6, 1967, being signed by the person of Mr. William A. Smith, an officer of Ceco. They were then returned to R & R as is shown on the stamped contract form 110. The stamp bears the date of June 8, 1967, acknowledging receipt of said documents by R & R. The aforesaid sequence of events was testified to by both Mr. Rook, President of R & R, and Mr. Gordon Madison, the district manager of Ceco. The signed documents of May 9 and May 18 refer to tire general conditions and make the general conditions part of the contract document. The general conditions are conditions agreed to by R & R and the owner, The Illinois Building Authority. These general conditions had been in effect for quite some time prior to Ceco and R & R entering into any agreement. Therefore, the proper contract documents in the present case are Ceco’s contract form 110, the R & R purchase order, and by reference, the general conditions.

The general conditions contain a paragraph which deals with indemnity.

Paragraph 39 of the general conditions at page G-26 requires the contractor to purchase insurance and that such insurance shall “hold the Owner, User, the Project Architect and their agents and representatives harmless and protect them from any claims or liabilities arising from the work and shall hold the Owner, User, the Project Architect, and all other persons having charge of the work, and their agents, employees and representatives, harmless from loss, cost or expense arising from any and every accident happening to any person whomsoever, or damage happening to any property whatsoever, and occasioned directly or indirectly by the operations of the Contractor or by his subcontractors. In the event the insurance does not provide the stated coverage, then the Contractor shall be responsible for such protection.”

Paragraph 31 of the Ceco contract form 110 also deals with the question of indemnification between the parties. “Ceco agrees to indemnify the contractor and owner and save them harmless from any and all claims, suits or liabilities for injuries to persons, including death, or from loss of, or damage to the property arising from and growing out of the negligent acts or omissions of Ceco, its officers, agents or employees in the performance of this contract and not contributed to by the negligent acts or omissions of tire contractor or owner or their officers, agents or employees. Ceco agrees to indemnify the contractor and owner and save them harmless from any and all claims, suits or liabilities for injuries to Ceco’s officers, agents or employees not caused or contributed to by the negligent acts or omissions of contractor, or owners or officers, agents or employees.”

The jury found that R & R was guilty of negligence or responsible under the Scaffold Act which act or omission was the cause of the injury to the plaintiff. The question then became one of indemnity under Count I of the third-party complaint. After considering the evidence the trial court found that the contract consisted of the Ceco document, the R & R document and the general conditions and held that paragraph 31 of the Ceco form contract controlled the question of indemnity and ruled in favor of Ceco on Count I of the complaint.

R & R maintains that the contract consisted of their document of May 18, 1967, and the general conditions agreed to by R & R and the Illinois Building Authority. However, Mr. Rook of R & R testified that the May 18 document would not lay out the specifications or details of work or responsibilities or materials that were to be used by the subcontractors. He said further that it would be necessary to refer to the May 9 document to obtain that information. We agree with the trial court that the contract in this case consisted of the documents of May 9 and May 18, as well as the general conditions. This was the intent of the parties as indicated by the factual situation as stated above.

Ceco argues that clauses such as the one contained in paragraph 39 of the general conditions have been outlawed by statute.

Ceco refers to the act concerning indemnification contracts (Ill. Rev. Stat., ch. 29, par. 61 — 63), which states that all hold-harmless clauses which provide for indemnification for indemnitees for the consequences of their own negligence are against public policy and therefore void. However, the case of White v. Morris Handler Company, 7 Ill.App.3d 199, 203, 287 N.E.2d 203, states as follows:

“Economy’s citation to the recently enacted legislation voiding all hold-harmless clauses which provide for indemnification for indemnitees for the consequences of their own negligence, as being contrary to public policy, is unavailing. The legislation specifically states that it has prospective effect only, whereas the instant subcontract was entered into prior thereto, but prior to the enactment of that legislation hold-harmless clauses providing for indemnification of indemnitees against their own negligence were specifically upheld by the courts of this State. (Cf. DeTienne v. S. N. Nielsen Co., 45 Ill.App.2d 231, 195 N.E.2d 240; see also Ill. Rev. Stat. 1971, ch. 29, pars. 61 — 63.”

Thus that statute is not applicable to the case at bar because the contract was entered into in 1967 and the injury occurred in 1968, prior to the enactment of the legislation cited by Ceco.

We must take note of the fact that public policy of the State at the time this contract was entered into did not favor agreements indemnifying one against his own negligence and such agreements have been upheld only when the clear and explicit language of the agreement so required. Patent Scaffolding Co. v. Standard Oil Co. (1966), 68 Ill.App. 2d 29, 215 N.E.2d 1.

We must seek to ascertain the intention of the parties as revealed by an examination of the entire contract. (Gay v. S. N. Nielsen Company, 18 Ill.App.2d 368, 152 N.E.2d 468.) In the case of De Tienne v. S. N. Nielsen Company, 45 Ill.App.2d 231, 195 N.E.2d 240, the court stated:

“‘A contract is to be construed as a whole, given meaning and effect to every provision and word, if possible, since it will be presumed that everything in the contract was inserted deliberately and for a purpose * * *. ”

R & R maintains that paragraph 5 of the contract purchase order governs. R & R would have us ignore paragraph 31 of the Ceco form contract 110. However we must consider the entire document and we cannot consider some clauses and ignore others. For this reason we cannot say that either of these two paragraphs control the agreement. Paragraph 31 of the Ceco form 110 conflicts with paragraph 39 of the general conditions. We consider this to be an ambiguity. Where an ambiguity does exist, the court will construe the contract most strictly against the party seeking indemnity for his own negligence. Westinghouse Electric Elevator Company v. LaSalle Monroe Building Corporation, 395 Ill. 429, 70 N.E.2d 604 (1946), Jeschke v. Mercury Builders, Inc., 122 Ill.App.2d 461, 259 N.E.2d 342.

We conclude that the total agreement before us does not clearly indicate the mutual intent of both parties. Therefore it cannot be said that the language of the agreement indicates that both parties clearly and explicitly intended that Ceco indemnify R & R for R & R’s own negligence. (Patent Scaffolding Co. v. Standard Oil Co., supra.) Also the agreement is ambiguous and requires that the agreement be strictly construed against R & R. Westinghouse Electric Elevator Company v. LaSalle Monroe Building Corporation, supra.

For these reasons we conclude that the trial court correctly ruled in favor of Ceco on Count I of the third-party complaint.

We therefore affirm the decision of the Circuit Court of Madison County.

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


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD

license: Public Domain

text:
    Helen Kitzer, Plaintiff-Appellee, v. Phillip C. Kitzer, Jr., et al., Defendants — (Plymouth Insurance Agency, Inc., Defendant-Appellant; Exchange National Bank of Chicago, Defendant-Appellee.)
    (No. 72-375;
    Second District
    June 14, 1974.

      Blumenfeld & Blumenfeld and Henry N. Novolselsky, both of Chicago, for appellant.
    D’Ancona, Pflaum, Wyatt & Riskind and Louis Z. Grant, both of Chicago, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court;

Plymouth Insurance Agency, Inc. (Plymouth), appeals from a judgment entered after remand of the cause in a prior appeal. (1 Ill.App.3d 1016.) The trial court, after a hearing in which additional evidence was taken, again ordered that the proceeds of the sale of certain real estate located in Hinsdale be distributed in part to the Exchange National Bank of Chicago (Exchange) to the extent of its mortgage lien, and the balance be paid to Helen Kitzer, the plaintiff in the divorce action.

On appeal Plymouth contends that the trial court’s findings are inconsistent and against the manifest weight of the evidence. Specifically Plymouth takes the position that the note and trust deed were executed to it for the purpose of securing a portion of the purchase price of the Hinsdale property purchased for Phillip Kitzer, Jr., and Helen Kitzer, his wife, and that Exchange held the note and trust deed only for safekeeping purposes. Exchange contends that the trust deed and bearer note in question in the amount of $27,000 were pledged as collateral to it to secure loans made to Phillip Kitzer, Sr., by Exchange.

The facts and findings from the first hearing are set out in the prior appeal (1 Ill.App.3d 1016), and need not be repeated here.

After hearing additional evidence upon remand the trial court found that Phillip Kitzer, Sr., withdrew $44,500 from Plymouth’s bank account either as a loan or an advance to himself and with this money made a valid gift to Phillip Kitzer, Jr., and Helen Kitzer of the Hinsdale property, and that as an accommodation to the senior Kitzer, Phillip Kitzer, Jr., caused the note and trust deed in question to be issued and allowed Phillip Kitzer, Sr., to pledge these documents as collateral to secure the latter’s indebtedness to Exchange. The court ordered that the proceeds of the collateral in excess of the senior Kitzer’s indebtedness to Exchange be paid to Helen Kitzer.

Plymouth argues first that the judgment below cannot be supported by the findings. It reasons that the finding that a gift was made of the Hinsdale property is inconsistent with the finding that the trust deed and note were valid; and that the finding that Phillip Kitzer, Sr., deposited the trust deed and note with Exchange as collateral to secure his indebtedness is inconsistent with the order that the excess proceeds be paid to another.

The trial court’s finding that the Hinsdale property was a gift- to plaintiff and her husband is not inconsistent with its finding that the subsequent note and trust deed were valid as an accommodation to Phillip Kitzer, Sr. Plymouth is apparently concerned that no consideration was shown for the issuance of the note and trust deed and their subsequent pledge to Exchange. The note secured by the trust deed was executed by a land trust trustee payable only out of the land trust res and no personal liability attached to the beneficiary, Phillip Kitzer, Jr., under the provisions of the trust deed and note. Nevertheless, the note stifi qualified as a negotiable instrument under article 3 of the Uniform Commercial Code. (Ill. Rev. Stat. 1971, ch. 26, par. 3 — 105(1) (h), and Official Comment 7.) Under the Commercial Code the execution of a note to secure the antecedent or existing indebtedness of another needs no consideration. (Ill. Rev. Stat. 1971, ch. 26, par. 3 — 408, and Official Comment 2 thereto; First National Bank v. Achilli (1973), 14 Ill.App.3d 1, 6.) The note itself is valid without a showing of consideration.

Although the trust deed does not qualify as a negotiable instrument under the Commercial Code, we conclude that there was a showing that the issuance and pledge of the trust deed securing the note was also valid. The trial court found that both the trust deed and note were pledged as collateral to secure the indebtedness of Phillip Kitzer, Sr., to Exchange as an accommodation by Phillip Kitzer, Jr., who directed the land trustee to execute the note and trust deed. The beneficiary of an accommodation note and a trust deed securing it may transfer this accommodation paper as collateral security for a concurrent or even an antecedent debt and the maker will have no defense based on want of consideration. (Bittner v. Field (1933), 354 Ill. 215, 221; Foreman Trust & Savings Bank v. Cohn (1930), 342 Ill. 280, 284-288; Naef v. Potter (1907), 226 Ill. 628, 630; Miller v. Larned (1882), 103 Ill. 562, 570.) Moreover, both the note and trust deed were payable only out of the land trust res with no personal liability attaching to the maker under the terms of either document. Presumably they were issued at the same time as a unit and cannot be regarded as separate transactions. Thus we hold that with the type of note and trust deed involved here the value sufficient to support the note without a showing of consideration is sufficient to support the trust deed as well. McIntire v. Yates (1882), 104 Ill. 491, 501.

Plymouth also argues that the court was inconsistent in ordering that the pledged property not be returned to the pledgor after satisfaction of the underlying debt. This argument overlooks the accommodation feature of the collateral. The court found that as an accommodation to the senior Kitzer, Phillip Kitzer, Jr., who held the sole power of direction under the land trust, caused a bearer note and trust deed to be issued by the trustee and allowed Phillip Kitzer, Sr., to pledge the documents with Exchange as additional collateral to secure the latter’s indebtedness to Exchange. Under these circumstances the collateral belongs to the accommodating party, Phillip Kitzer, Jr., and he is entitled to its return to the extent the indebtedness which it secures is otherwise satisfied. Under the terms of the divorce decree Helen Kitzer, as the junior Kitzer’s wife, becomes entitled to the excess proceeds from the sale of the collateral after Exchange obtains satisfaction. We find no inconsistency in the court’s conclusions.

Plymouth also contends that the court’s finding that it had no lien in the proceeds of the collateral is erroneous. The argument is first made that the evidence is insufficient to establish a gift by Phillip Kitzer, Sr., to his son and the plaintiff, Helen Kitzer, of the entire equity of the Hinsdale property. At approximately the same time the Hinsdale property was placed into the land trust naming Phillip Kitzer, Jr., as sole beneficiary, the trust deed and note were executed. The money used to buy the property apparently came from funds in a Plymouth bank account, and apparently the senior Kitzer was in possession of the trust deed and note when these documents were delivered to Exchange. From these circumstances and from che senior Kitzer’s testimony, the court could have found that the Hinsdale property was a gift only to the extent of $12,000, i.e., the difference between the note and the purchase price of the property.

Other facts, however, support the court’s finding that a gift of the entire property was intended. The purchase price of the property was listed as a gift to Phillip Kitzer, Jr., and to the plaintiff, Helen Kitzer, on a 1965 Federal gift tax return signed by the senior Kitzer. The court was not required to believe the senior Kitzer’s testimony that he signed the form in blank and turned it over to- his son; and in fact, the court specifically found the testimony of Phillip Kitzer, Sr., to be unbelievable. Although the trust deed provides for monthly payments beginning March 1,1965, apparently no payments have ever been made. The type of trust deed and note involved, payable solely out of the res of the trust, shows a design for accommodation; neither the grantee nor the beneficial owner under the land trust are disclosed. No records of Plymouth were introduced showing a mortgage transaction by it, and the attorney who purportedly prepared the trust deed and note for Plymouth was not called to testify despite our comments in the prior appeal on his absence. Finally, Phillip Kitzer, Sr., himself testified that he had borrowed funds from Plymouth, which was solely owned by him and his sons, for his own use on prior occasions. From these facts the court could have found, as it did, that the Hinsdale property in its entirety was intended as a gift from the senior Kitzer to his son and the plaintiff, and that the note and trust deed were executed as an accommodation to the father.

The court’s finding that the note and trust deed were pledged as coHateral to secure the indebtedness of Phillip Kitzer, Sr., to Exchange rather than having been left with Exchange merely for safekeeping, follows logically from the finding that the note and trust deed were accommodation paper. Kitzer’s testimony that the note and trust deed were deposited for safekeeping and not as a pledge appears incredible for several reasons: he faffed to produce a safekeeping receipt and Exchange’s books contain no recordation of a safekeeping entry for the note and trust deed, although both receipt and recordation are standard operating procedures at Exchange; Exchange did have a collateral card showing that the bank held a mortgage on the Hinsdale property as collateral; Exchange held a title insurance policy and an appraisal on the property which the testimony showed were only obtained on property pledged as collateral; and finally, Exchange showed that during March, 1965, when the note and trust deed came into its possession, Phillip Kitzer, Sr., owed Exchange a fluctuating indebtedness in excess of $35,000.

We conclude that the court’s findings are neither inconsistent nor against the manifest weight of the evidence. The judgment below is therefore affirmed.

Affirmed.

GUILD and RECHENMACHER, JJ., concur.

       In the proceedings below Helen Kitzer claimed that the note and trust deed were invalid as a fraud upon her. In this appeal, however, she has adopted the brief and argument of Exchange and we therefore conclude that she has abandoned this claim.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Luther Coburn, a/k/a Luther J. Coburn, Defendant-Appellant.
    (No. 58868;
    First District (5th Division)
    April 19, 1974.
    BARRETT, J., took no part.

      James J. Doherty, Public Defender, of Chicago (John Bogren, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM:

Defendant was indicted for the offenses of murder and aggravated battery. (Ill. Rev. Stat. 1971, ch. 38, pars. 9 — 1, 12 — 4.) A jury found him guilty of murder and not guilty of aggravated battery. He was sentenced to a term of from 50 to 150 years. On appeal defendant contends that (1) the trial court improperly denied his motion to suppress the preliminary hearing testimony of a deceased witness; (2) Supreme Court Rule 411 (Ill. Rev. Stat. 1971, ch. 110A, par. 411) is unconstitutional; and (3) the sentence is excessive.

Leslie Pippine testified for the State: At approximately 9:30 P.M. on December 20, 1971, he was in the Bus Stop Lounge, 505 West 79th Street in Chicago; he asked Edward Grant, the decedent, to lend him $30. Grant suggested they go to the washroom where they could talk. While they were in the washroom two persons entered, one of whom was named Philips and the other identified by the witness as defendant. Grant told Philips to leave and then turned to defendant and said, “That goes for you too, monkey.” Pippine was within one to one and one-half feet of defendant. He got a good look at defendant’s face for two or three minutes. The washroom was illuminated by an uncovered 60 watt light bulb. He and Grant left the washroom and walked to the end of the bar where he turned to Grant and remarked, “Man, you quit playing with them young punks like that.” Defendant walked out of the washroom and, with his back toward Pippine, stood between Pippine and Grant and said to Grant, “Now what was that you said in the bathroom?” Grant remained silent and defendant pulled out a pistol, grabbed Grant, shoved the pistol in his stomach and fired four shots. Defendant then stepped around Grant’s body and walked out the door. The bar near where Pippine was standing was illuminated by the light of a beer case and the lights on the wall.

Ms. Billie Jean Barnes testified for the State: She was in the Bus Stop Lounge at the time of the shooting; she was sitting about five to nine stools away from Grant and Pippine. During the few minutes she was at the bar she observed no other person than Grant and Pippine. While sitting at the bar she heard two shots go off and she dove behind the counter. Something went sweeping across her face and her glasses fell off. To the best of her recollection at no time could she remember seeing anyone walk toward Grant and Pippine. She thought Pippine was the man who did the shooting because he was the only person she had seen with Grant. She was later called as a defense witness and testified that the lighting in the bar was poor; that it was dark where Grant and Pippine were standing, and that Joel Murphy was standing in the lighted part of the bar at the time of the shooting.

Thomas Ferry, an investigator for the Chicago Police Department, testified for the State: He entered the bar during the early morning hours of December 21, 1971. In the apartment on the second floor of the tavern he found a brownish plaid overcoat that had wet red stains on the front and sleeve. On cross-examination he testified that the lighting in the Bus Stop Lounge was poor. On redirect examination he testified that the lighting inside the washroom was good; that the lighting in front of the beer case was located at the south end of the bar about three to five feet from where “Mr. Pippine and Mr. Grant were situated.”

Oscar Winston testified for the State: He was in the Bus Stop Lounge on the night of December 20, 1971; he heard some shooting and immediately hit the floor. When he looked up, he saw a man leaving the tavern with a gun in his hand. He was not able to identify the man, but he knew it was not Pippine because he had known him for two years.

The State offered into evidence the transcript of the preliminary hearing testimony of Joel Murphy who had died prior to trial. Defendant objected and made an offer of proof of a prior statement made to the police by Murphy and pointed out certain discrepancies between that statement and the testimony of Murphy at the preliminary hearing. At the preliminary hearing Murphy testified under oath and was cross-examined by defendants attorney, the public defender, who also represented defendant at trial.

The transcript of Murphy’s testimony at the preliminary hearing was admitted into evidence and it showed that Murphy, the owner of the Bus Stop Lounge, testified as follows: At approximately 9:25 P.M. he saw Grant and Pippine talking at the bar. After about five minutes, Grant and Pippine went into the washroom; after three or four minutes they came out of the washroom and seated themselves at the bar. Another man came out of the washroom and joined Grant and Pippine. He heard a shot-fired and turned to see the three men standing at the bar. After turning, he heard two more shots after which he saw the man standing with Grant and Pippine turn, and with the gun in his hand walk out of the bar. Murphy was about 40 feet away at the time of the shooting, but, as the person who shot Grant left the bar, he passed within six feet of where he was standing. Murphy identified defendant as the man who shot Grant.

Defendant chose not to testify in his own behalf.

At the hearing in aggravation and mitigation, it was revealed that defendant had previously been convicted of resisting arrest, aggravated battery, unlawful possession of a shotgun, and five counts of robbery. In answer to a question by the court, defense counsel stated that defendant did not wish to say anything.

Defendant argues that Amendment VI of the United States Constitution guarantees an accused in a criminal prosecution the right to confront the witnesses against him, and that this confrontation clause was violated when the preliminary hearing testimony of the deceased Joel Murphy was introduced into evidence.

The law is clear that the testimony of a witness at a preliminary hearing is admissible in evidence at the trial when the witness is unavailable. The general rule is stated in Whartons Criminal Evidence, 13th ed. (1973), Vol. III, Sec. 650, pp. 371-374, as follows:

“As an exception to the hearsay evidence rule, the testimony of a witness at a preliminary hearing or former trial may be allowed in evidence at a subsequent trial if a proper foundation has been laid, including a showing that the witness is no longer ‘available.’ Whether a proper foundation has been laid is a question for the trial judge in his discretion to resolve, and his ruling will not be disturbed unless there has been a clear abuse of such discretion. This use of a former witness’ testimony is not violative of the accused’s constitutional right ‘to be confronted with the witnesses against him’ if, at the preliminary hearing of the former trial, the accused has been accorded an adequate opportunity to cross-examine such witness.” [Emphasis added.]

The facts in the case at bar fall squarely within the foregoing rule of law. Here Murphy testified under oath at the preliminary hearing, was cross-examined by counsel for defendant and died prior to trial.

Defendant relies primarily upon Barber v. Page, 390 U.S. 719, where the court held that confrontation at a preliminary hearing cannot compensate for the absence of confrontation at trial because the nature and object of the two proceedings differ significantly. However, the court later discussed Barber in California v. Green, 399 U.S. 149, 166, stating:

“And in Barber v. Page, 390 U.S. 719, 725-726 (1968), although noting that the preliminary hearing is ordinarily a less searching exploration into the merits of a case than a trial, we recognized that ‘there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause where the witness is shown to be unavailable * * In the present case respondent’s counsel does not appear to have been significantly limited in any way in the scope or nature of his cross-examination of witness Porter at the preliminary hearing. If Porter had died or was otherwise unavailable, the Confrontation Clause would not have been violated by admitting his testimony given at the preliminary hearing — the right to cross-examination then afforded provides substantial compliance with the purpose behind the confrontation requirement, as long as the declarenfs inability to give live testimony is in no way the fault of the State. Compare Barber v. Page, supra with Motes v. United States, 178 U.S. 458 (1900).” [Emphasis added.]

We note that Green affirms the well established rule in this state concerning the admission of previously given testimony of deceased witnesses. (See e.g., Bergen v. People, 17 Ill. 426; People v. Holman, 313 Ill. 33, 144 N.E.313; People v. Burton, 6 Ill.App.3d 879, 286 N.E.2d 792, cert, denied 411 U.S. 937.) It is therefore clear that the court below did not err in permitting the preliminary hearing testimony of Joel Murphy to be introduced at trial.

Defendant next contends that Supreme Court Rule 411 is unconstitutional because as applied to the facts in the instant case it constitutes a denial of defendant’s right to confront the witnesses against him. The rule provides that:

“These [discovery] rules shall be applied in all criminal cases wherein the accused is charged with an offense for which, upon conviction, he might be imprisoned in the penitentiary. They shall become applicable following the indictment or information and shall not be operative prior to or in the course of any preliminary hearing.”

Defendant argues that the statements made by Murphy to the police prior to the preliminary hearing were not available to defendant prior to his cross-examination of Murphy at the preliminary hearing; that statements made by Murphy were inconsistent with his preliminary hearing testimony and also contradicted the testimony given at trial by another State witness; and that Murphy’s prior inconsistent statements were discovered at trial and were preserved in defense counsel’s offer of proof. However, an examination of the record fails to disclose that defendant made a motion for the production of Murphy’s statement to the police prior to or at the time of the preliminary hearing. Further, the record does not disclose that defendant at any time prior to or during the preliminary hearing made a motion for discovery or that Rule 411 was unconstitutional. It is the rule that matters not raised in the trial court., even those presenting constitutional questions, cannot be raised on appeal. (People v. Long, 39 Ill.2d 40, 233 N.E.2d 389.) We therefore find that defendant has waived his challenge to Rule 411.

Finally, defendant argues that the sentence of 50 to 150 years was excessive. A sentence imposed by the trial court, which sees defendant and is in a better position to appraise him and evaluate the likelihood of his rehabilitation than an appellate tribunal, should not be reduced unless there are substantial reasons for doing so. (People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673; People v. Kendricks, 4 Ill.App.3d 1029, 283 N.E.2d 273.) In the instant case the defendant failed to present any mitigating circumstances tending to establish a likelihood of rehabilitation. There is no showing that the trial court abused its discretion in sentencing defendant to a term of not less than 50 nor more than 150 years and therefore the sentence is affirmed. (People v. Moore, 50 Ill.2d 24, 276 N.E.2d 319.)

For the foregoing reasons the judgment entered below is affirmed.

Judgment affirmed.

BARRETT, J., took no part.


author: Mr. JUSTICE HALLETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William T. Dixon, Defendant-Appellant.
    (No. 59226;
    First District (1st Division)
    March 25, 1974.

      Opinion modified upon denial of rehearing June 17, 1974.

      Paul Bradley, Deputy Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE HALLETT

delivered the revised opinion of the court upon denial of the petition for rehearing:

Defendant, William T. Dixon, entered a plea of guilty to two counts of aimed robbery, in violation of section 18 — 2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2); he was sentenced to concurrent terms of 10 years to 14 years, the terms further to run concurrently with a sentence previously imposed upon an unrelated attempt armed robbery conviction. (Ill. Rev. Stat. 1969, ch. 38, par. 18 — 2.) On appeal, he contends: (1) that the trial court failed properly to admonish him upon his plea of guilty consistent with the provisions of Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402(a)(2)); and (2) that the sentences imposed are excessive. We disagree and affirm.

When the case was called for trial, it was brought out that attempts to arrive at a plea bargaining agreement had been fruitless, that such circumstances had been related to defendant by his counsel, and that defendant nevertheless wished to enter a plea of guilty to the charges. Specific questions directed by the trial court to defendant concerning the nature of the charges and his desire to enter a plea of guilty were answered by defendant clearly and understandingly. The court advised the defendant concerning the terms of sentence which could be imposed upon a plea of guilty, in the following manner:

“THE COURT: As your lawyer has explained to you and as I now tell you, on your plea of guilty to each of the counts you may be sent to the penitentiary for a term of years under the law in effect at the time this offense occurred, it could be any number of years, not less than two and there was no maximum. That is to say it could be two to ten, ten to fifty or fifty to a hundred or any number of years on each of the counts and could be added to one another. Do you understand that?
THE DEFENDANT: Yes, your Honor.”

The defendant was further advised that the Unified Code of Corrections had taken effect since the date of the offenses charged and that he could be sentenced under either the former statute or under the new statute in that regard; defendant responded that he was acquainted with the provisions of the new statute, he was admonished with regard to the sentences which could be imposed under the new statute, and he elected to be sentenced under the former statute. The record discloses knowing, voluntary and intelligent responses given by defendant to the court’s questions and admonishments, and the court thereupon accepted his plea of guilty. After the factual basis for the plea was entered before the court by stipulation, the court entered judgment upon the finding of guilty.

The hearing in aggravation and mitigation disclosed convictions and lengthy sentences in 1952 for murder and for burglary, and in 1972 for the offense of attempt armed robbery; it was further brought out at that hearing that defendant was 37 years of age, had two children, and had been attending school while incarcerated. The foregoing concurrent sentences imposed by the trial court were made to run concurrently with the sentence imposed upon the 1972 armed robbery conviction, also of 10 years to 14 years and theretofore imposed by the same trial judge. It was further disclosed that defendant had been before the same trial judge in the past, and that he had completed 2 years of college education.

Defendant contends that the trial court faffed to advise him consistent with Supreme Court Rule 402(a)(2) that the sentences imposed upon the instant convictions could be made to run consecutively with the sentence imposed upon the 1972 attempt armed robbery conviction.

In People v. Zatz (4th Dist. 1973), 13 Ill.App.3d 322, 300 N.E.2d 16, cited by defendant, the defendant pleaded guilty to five counts of forgery and was given 1 to 5 years on each count, to be served concurrently. The appellate court there reversed and remanded with directions to permit the defendant to plead anew on the ground that he had not been informed by the trial court of the possibility of consecutive sentences (which did not materialize). We can perceive no possible way in which the defendant in Zatz was prejudiced by the court’s failure to inform him of something which failed to materialize. Likewise, in the case at bar, the defendant’s sentences were ordered to run concurrently with that given the defendant in 1972. Hence he was in no way prejudiced by the trial court’s failure to warn him of a possibility which did not eventualize.

The cases are legion that error which does not prejudice a defendant is not ground for reversal.

A more realistic precedent than Zatz appears in People v. Hickman (3d Dist. 1973), 9 Ill.App.3d 39, 291 N.E.2d 523. Rule 402(d) provides that a judge shall state in open court whether he concurs conditionally or otherwise with a plea agreement. In Hickman, the judge was informed by the parties of the agreement, but he failed to state whether he concurred; but he did sentence the defendant pursuant to the agreement. The court at page 43, said:

“That the trial court failed to specifically state in open court its concurrence or non-concurrence as to the negotiated plea is unquestioned. Such an omission is clearly present, but is it one that is so prejudicial as to require a reversal? We believe not, for a realistic analysis of the court’s action clearly establishes the fact that the trial judge ascertained that plea negotiations had taken place, and was advised by the prosecution as to the agreed upon sentence. Counsel for the defendant and the defendant both agreed with the prosecution’s statement as to the agreed sentence, and the court did in fact sentence the defendant in accordance with the agreement. We believe that under such a state of facts substantial compliance with Supreme Court Rule 402 has been accomplished and that is all that is required.”

The opinion in Zatz cites and relies heavily upon People v. Flannigan (5th Dist. 1971), 131 Ill.App.2d 1059, 267 N.E.2d 739, where the court reversed for a similar failure to inform of the possibility of consecutive sentences but there the defendant was given consecutive sentences and, as a result, was prejudiced.

We therefore decline to follow Zatz and hold that the error, if any, did not prejudice the defendant and does not require reversal.

Defendant also contends that the minimum sentences imposed upon the instant conviction are excessive. He argues that since the two instant sentences were imposed to run concurrently with the sentence imposed upon the 1972 conviction, the three sentences are “interrelated”; that since tire 1972 sentence of 10 to 14 years will be reduced upon appeal from that conviction (see General Number 58687) in light of the fact that it involved a Class 3 or a Class 4 felony wherein the minimum sentence cannot exceed one-third the maximum imposed, the “interrelationship” between the instant sentences and that sentence must be preserved; and that therefore the minimum sentences imposed upon the instant armed robberies must likewise be reduced. He also argues that the sentences imposed frustrate the possibility of his rehabilitation and his restoration to useful citizenship.

There exists no “interrelationship” between the instant sentences and the 1972 sentence as defendant contends other than the fact that they were made to run concurrently. The 1972 conviction involved a class of felony which calls for the application of the one-to-three ratio between the minimum and maximum sentences imposed, whereas the instant convictions involve a Class 1 felony, wherein no such ratio is mandated by statute. (See Ill. Rev. Stat., 1972 Supp., ch. 38, pars. 8 — 4(c)(3), 18 — 2 (b), 1005 — 8—1(c)(2) & (4).) The case of People v. Rue (1966), 35 Ill.2d 234, 220 N.E.2d 457, cited by defendant in support of this contention is inapposite for the reason that Rue involved three interrelated offenses, one of which resulted in a conviction upon trial and the other two in conviction upon pleas of guilty which were based upon the conviction at trial; the Supreme Court reversed the trial conviction on evidentiary grounds, and, in turn, reversed the conviction based on pleas of guilty because they had been founded upon the former. No such situation is presented with regard to the instant sentences and the sentence imposed upon the 1972 conviction.

The terms of 10 years to 14 years imposed upon the instant conviction are not excessive. Defendant had a serious prior criminal record and had perpetrated the instant offenses at gunpoint, also holding innocent bystanders as hostages at gunpoint in an attempt to effect an escape. The hearing in aggravation and mitigation disclosed nothing which would have justified a lesser sentence. Finally, defendant affirmatively acquiesced in the sentences recommended by his counsel during the hearing, which were the sentences herein imposed by the trial judge. Defendant cannot now be heard to complain.

For these reasons, the judgments of conviction entered and the sentences imposed by the circuit court of Cook County are affirmed.

Judgments affirmed.

EGAN, P. J., and BURKE, J., concur.


author: Mr. JUSTICE SEIDENFELD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Shannon West, Defendant-Appellant.
    (No. 73-114;
    Second District
    June 6, 1974.
    William L. Balsley, of Loves Park, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Thomas Sullivan, both of Model District State’s Attorneys Office, of counsel), for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Barnes, Defendant-Appellant.
    (No. 72-301;
    Second District
    June 7, 1974.
    Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Thomas Sullivan, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Defendant was charged with 3 separate offenses of forgery. After entering a plea of guilty to each, he was sentenced for a term of 2 to 10 years. The issue on appeal is whether the plea was entered voluntarily.

Defendant was arrested on February 26, 1972. A month later, during his arraignment, it was revealed that he was a heroin addict. When the court inquired if he was presently on narcotics, defendant replied, “I’m off it now ** * * ever since I’ve been in jail.” Further inquiry by the State disclosed that defendant was receiving pills from a doctor, that the pills helped but that he could not sleep at night. Three months after his arrest, defendant (having been incarcerated during the period) entered a plea of guilty. At the hearing, the following colloquy took place:

“The Court: What is your condition now as far as narcotics?
The Defendant: I’m taking no medication for them right now.
The Court: How long has it been since you had any?
The Defendant: Since they took the dolaphines off up there.
The Court: Are you on medication of any type?
The Defendant: No.
Mr. Lafayette [defendant’s counsel]: He has dried out since February 25th when they picked him up. And for the last two or three weeks' they have removed any medication from the County Jail. So he has had no medication for narcotics since at least about three weeks.”

Toward the end of the hearing the following occurred:

“Mr. Gemignani [Asst. State’s Attorney]: May the record show Mr. Lafayette and I have engaged in plea negotiations and that the most I have offered Mr. Lafayette was five to fifteen years, and that was refused, and that no other promises have been made by myself to Mr. Lafayette or this defendant.
Is that true, Mr. Lafayette?
Mr. Lafayette: That is correct.
Mr. Gemignani: Is that true, sir?
The Defendant: Yes.
Mr. Gemignani: Your attorney has made no other promises or no promises of any kind?
The Defendant: No.”

Defendant contends that being without medication for 3 weeks was the physical and mental coercion which caused him to plead guilty. In cases where a similar claim has been made with regard to the voluntariness of confessions, the courts have held that the record must show facts upon which such conclusion may be based. (People v. Muniz, 31 Ill.2d 130, 137-38 (1964); People v. Pote, 5 Ill.App.3d 856, 859-60 (1972); People v. Bryant, 101 Ill.App.2d 314, 319-20 (1968).) Here there is no evidence that at the time of his plea defendant was suffering from withdrawal symptoms or that his behavior was other than normal. Nothing in the record substantiates defendant’s assertion.

Defendant argues that the court failed to ask if any force or threat had been used to obtain his plea and that such failure constituted reversible error. In determining whether the plea is voluntary, substantial compliance with Rule 402(b) does not require the trial court to follow, verbatim, the language of the rule. (People v. Compton, 16 Ill.App.3d 196 (1973), appeal denied, May 29, 1974, case No. 46431.) A review of the record as a whole convinces us that the defendant voluntarily entered his plea of guilty to the offenses charged.

Judgment affirmed.

SEIDENFELD and RECHENMACHER, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Cardell Henry, Defendant-Appellee.
    (No. 73-57;
    Third District
    June 5, 1974.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People,

      Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

An indictment was returned Nov. 15, 1972, charging the defendant, Cardell Henry, in one count, with theft of a bicycle of a value less than $150, also alleging a previous conviction of the crime of theft. Defendant filed a motion to strike the allegation of the previous conviction. After a hearing and over the'objection of the State the trial court on January 31, 1973, ordered stricken the allegation of the previous conviction of theft, thereby reducing the charge from a felony to a misdemeanor. The State has appealed from that order.

The defendant’s brief concedes that the trial court was without authority to proceed as it did. By statute the State’s Attorney is charged with the commencement and prosecution of criminal cases within the county. (Ill. Rev. Stat. 1971, ch. 14, par. 5.) In the exercise of his public duty, he is granted certain discretionary powers, one of which is to determine the offense which can and should, properly be charged. The Illinois constitution divides the powers of government among the legislative, executive and judicial departments and provides that none of these shall exercise powers belonging to the others. The State’s Attorney’s office is part of the executive branch. It is clear that the judicial department may not take as its own discretionary powers vested in an executive officer. People v. Rotramel, 5 Ill.App.3d 196, 198.

The defendant, however, has questioned whether the State has the right to appeal. Supreme Court Rule 604(a)(1) provides that the State may. appeal only from an order or judgment, "the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114 — 1 of the Code of Criminal Procedure [Ill. Rev. Stat. 1971, ch. 38, par. 114 — 1] * * The State argues that the trial court, by reducing the charge, in effect dismissed the original charge brought.

In People v. Rotramel, supra, the court stated, “In People v. Love (1968), 39 Ill.2d 436, 438-440, it was held that the intent of section 114 — 1 was not to reduce the State’s Attorney’s right of appeal to only the ten grounds set forth in the statute, but to include within that right those instances whereby the substantive effect of the judgment would be the dismissal of the indictment, information or complaint. See also, People v. Petropoulos (1966), 34 Ill.2d 179, 181, and People v. Finkelstein (1939), 372 Ill. 186, 192.”

We agree with the State that the substantive effect of the order of the trial court amounted to a dismissal of the original charge brought and conclude that the State could properly appeal.

The trial court’s order dated Jan. 31, 1973 striking the allegation of the previous conviction for theft is reversed. The cause is remanded to the trial court for further proceedings consistent with this opinion.

Reversed and remanded with directions.

SCOTT, P. J., and ALLOY, J., concur.

       The prior offense involved a theft of a pair of shoes. The current offense involved the theft of a bicycle. The trial court explained his abhorrence of the subsequent-offense penalty for theft of property of a value not exceeding $150,


author: Mr. JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Grotti, Defendant-Appellant.
    (No. 73-185;
    Third District
    June 6, 1974.
    James Geis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    A. Randolph Comba, State’s Attorney, of Princeton, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Bureau County following a conviction of defendant Ronald Grotti of the offenses of burglary and theft of property under $150. Defendant was sentenced to 1 to 3 years for burglary and 6 months for theft, with tire sentences to be served concurrently.

In this court, defendant contends that the judgment entered upon tire charge of theft should be reversed because the act constituting die theft was not independently motivated or otherwise separable from the act constituting the burglary. It is also contended that the dial court improperly and unconstitutionally allowed the prosecutor to present evidence of a charge for which defendant had not been convicted, at the hearing in aggravation and mitigation, and asserts that the resulting denial of probation constituted an abuse of discretion.

At the jury trial, a police officer testified that he had attempted to check defendant’s automobile for license-plate violation resulting from a high-speed chase which culminated in defendant’s arrest for reckless driving. In the rear of the stationwagon was seen a Iawnmower and a motorcycle in plain view. Defendant had consented to the search of the vehicle. The Iawnmower and motorcycle had been stolen from the garage of another person, where the garage door had been left open.

At a hearing, which served both as a probation proceeding and a hearing in aggravation and mitigation, an Illinois State trooper testified about an alleged incident involving defendant which resulted in an indictment which was pending at the time of the hearing. The incident involved an assertion that defendant had punched the trooper in the chest and threatened that the group with which he was riding at the time in that incident would kill the trooper. The trooper testified that when he pulled his gun, defendant and the others fled from the scene in their automobile. The complaint which was signed in that cause was apparently for aggravated battery and aggravated assault. The record does not indicate whether there was any subsequent conviction on this charge.

A probation officer recommended, on the sole basis of the seriousness of the offense of burglary and theft in the cause before us, that the sentence be 1 to 3 years in the State Penitentiary. There was also a contention that the prosecutor, in arguing as to sentencing alternatives, urged the court to deny probation and impose a prison sentence and referred to testimony of the State trooper.

In view of the Illinois Supreme Court decision in People v. Lilly, 56 Ill.2d 493, and cases such as People v. Leggett, 2 Ill.App.3d 962, 275 N.E.2d 651, the prosecutor made no objection to the appellant’s prayer for the reversal of the judgment entered on the charge of theft, and agrees that the conviction on the charge of theft should be reversed, because the act constituting the theft was not independently motivated or otherwise separable from the act constituting the burglary. The judgment entered on the theft charge should, therefore, be reversed.

There was no indication in the record that the trial court made the determination as to denial of probation on the basis of any improper evidence which may have developed at the probation hearing. As indicated in the case of People v. Dunham, 13 Ill.App.3d 784, 300 N.E.2d 328, the appellate court, in reviewing an issue similar to that involved in the instant case, stated that the review of the refusal of the court to grant probation is limited to the extent of ascertaining whether the trial court did in fact exercise discretion or whether it acted in an arbitrary manner.

In presentation of this case on appeal, the appellant states that he is now on parole and he suggests that this court of review reduce his sentence to probation. While a court of review is not authorized to grant probation (People ex rel. Ward v. Moran, 54 Ill.2d 552, 301 N.E.2d 300), it does have authority to determine whether the discretion of the trial court was abused in denying probation. As indicated in People v. Dunham, 13 Ill.App.3d 784, 300 N.E.2d 328, where a defendant is already on parole such procedure is not recommended. We find no compelling reason to remand this cause to the trial court for further consideration of the issue of probation in view of the circumstance that defendant is now on parole. Additionally, our examination of the record does not indicate affirmatively that the trial court abused its discretion or used or considered improper evidence in making a determination that probation should be denied to defendant.

For the reasons stated, the judgment of the Circuit Court of Bureau County in this cause is affirmed as to the conviction and sentence of defendant for burglary, but the judgment of the Circuit Court of Bureau County is reversed as to the conviction and sentence for theft of property.

Affirmed in part and reversed in part.

SCOTT, P. J., and STOUDER, J., concur.


author: Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Randall S. Gremp, Defendant-Appellee.
    (No. 73-127;
    Third District
    June 11, 1974.
    Ronald E. Boyer, State’s Attorney, of Watseka, for the People.
    James Geis, of the State Appellate Defender’s Office, of Ottawa, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Defendant, Randall S. Gremp, was charged with the offense of unlawful possession of cannabis in excess of 30 grams in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1971, ch. 56%, par. 704(d)). Defendant moved to suppress the evidence seized by the police officers namely the cannabis and the trial court granted such motion. The State has appealed.

Randall Gremp is one of three codefendants charged with the possession of cannabis arising from the same incident and joined with the other codefendants in moving to suppress the evidence. We have recently considered on this exact question in connection with the consolidated appeals of the other two codefendants, and in People v. Wolf (1973), 15 Ill.App.3d 374, 304 N.E.2d 512, appeal allowed, 56 Ill.2d. -, we held the trial court erred in suppressing the evidence.

No useful purpose would be served by either reiterating the facts which are amply disclosed in the Wolf case or repeating the reasoning of the court.

Accordingly, the judgment of the circuit court of Iroquois County is reversed and the cause is remanded to said court for further proceedings.

Reversed and remanded.

ALLOY and DIXON, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Allen Harris, Defendant-Appellant.
    (No. 11902;
    Fourth District
    June 12, 1974.
    John F. McNichols and Bruce L. Herr, both of the State Appellate Defender’s Office, of Springfield, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Robert James Steigmann, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The defendant entered a plea of guilty to robbery and aggravated battery, and was sentenced 2 to 12 years in the penitentiary. Count II for attempted murder, Count IV for aggravated battery and Count V were dismissed, and the sentence imposed pursuant to a negotiated plea. The defendant further agreed to testify against others involved in the same transaction and apparently carried out that agreement.

At the time of the occurrences, the defendant was 17 years of age and contended that the Illinois Juvenile Court Act in effect at that time (Ill. Rev. Stat. 1971, ch. 37, par. 701 — 1 et seq.), denied equal protection of the law because of age variance between the sexes and thus such statute was unconstitutional. In People v. Ellis, 57 Ill.2d 127, our supreme court laid this issue to rest and held that the Juvenile Court Act does not apply to males over 17 years of age.

The defendant likewise contended that the indictment for aggravated battery was fatally defective because it did not charge that the battery was committed “without lawful justification” and that such an allegation was essential to a valid indictment. This claim likewise is now at rest. People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.

The defendant further states that he was not adequately admonished concerning the nature of the charge of aggravated battery and that actually the court misinformed him of the elements of the offense and failed to advise the defendant that he was charged with having caused great bodily harm to the victim. True enough, aggravated battery in the language of the statute is that “[he] knowingly caused great bodily harm”. (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 4.) (Emphasis added.) The trial court in its admonition used the following language: “You knowingly caused bodily harm to said Jon Houlette, namely, striking said Jon Houlette on the head with great force with a shotgun * # * ” (Emphasis added.) Thus, the defendant contends that the trial court led him to believe that he was pleading guilty to a misdemeanor rather than a felony. The record shows that at the time of arraignment, the judge used the word “great”. The record shows that during the intervening 2 weeks, the defendant consulted with his attorney concerning his guilty plea as well as with his parents who were both present in open court at the time the plea was being made. Prior to the statements of the trial court, the assistant State’s Attorney represented to the court that the plea of guilty was the result of plea negotiations and that the plea was further discussed with the defendant personally in the presence of his counsel and in the presence of his parents. In addition, the State’s Attorney stated in open court that the defendant had been identified as the man who committed the armed robbery and as the man who hit the victim over the head “thereby causing serious injury to Mr. Houlette, resulting in, I believe somewhere in tire nature of maybe to 100 stitches over the back of his head, a 3-inch laceration which required his hospitalization”. The court then asked the defendant if he wished to add anything to this recitation and the defendant replied that he did not. In the face of this record, the assertion in the defendant’s brief that the trial court misled the defendant in the choice of language used strikes us as an exaggerated application of the use of Rule 402. It strains credulity and warps reality to believe that the defendant was misled.

The defendant further states that the trial court should not have accepted the guilty plea because no factual basis was established and such is required by Supreme Court Rule 402(c) prior to the entry of final judgment. This position is based on the theory that the defendant performed this aimed robbery and aggravated battery under compulsion and is based upon defendant’s uncontradicted statements that at the first filling station to which Harris was sent by his buddies, he backed down and refused to carry out instructions. One of them then told Harris that they would try at another and stated “if you mess up, if you decide to run or tell the policeman, we know where you live, we know where your brothers and sisters are at this time of night”. When the group arrived at the station, Harris was again instructed to rob the attendant and hit him. Harris again backed down and returned to the car and told Mc-Clendon that he was not going through with the affair. McClendon then gave Harris a backhanded slap across the mouth and said, “Is that enough nerves for you?” Harris then returned to the station and held up the proprietor with a shotgun and thereafter a struck him hard enough to inflict the injuries previously recited. One of the difficulties with this defense of compulsion is the circumstances under which it is now asserted. Testifying on oath during the hearing in response to questions by his attorney, he was asked whether or not “You raise the point that you were under stress at the time you committed the offense”.

“A. Yes, sir.
Q. And we have discussed this as a possible defense with you?
A. Yes.
Q. And your mother and father?
A. Yes, sir.
Q. And after discussing this I have indicated to you that I felt that a jury would be extremely reluctant to accept this as a defense?
A. Yes, sir.
Q. And your parents have also indicated the same?
A. Yes, sir.
Q. And you in the discussions have indicated that you have agreed?
A. Yes, sir.
Q. Your plea in this case is your own free and voluntary act?
A. Yes, sir.
Q. And I have made you no promises?
A. Yes, sir.
Q. And I have not coerced you or anything to make this plea?
A. Yes, sir.
Q. In fact, I have advised you that if you desired, we could prepare the case for trial, that is, for trial by the jury?
A. Yes, sir.
Q. Or by the court, as you indicated?
A. Yes.
Q. And it’s your opinion and your voluntary act that you accept the offer of the State’s Attorney’s office?
A. Yes, sir.”

The record further shows that it was the defendant who was in possession of the shotgun. Whether there were any other weapons in the group is not shown. Defendant’s furlough from the Army ended about 5 days after the commission of this offense and he would have returned for overseas duty in Germany. His brother is a policeman with the Urbana Police Department. He conferred with his parents and with his attorney. Under such circumstances, great care was taken by the State’s Attorney’s office, defense counsel, this defendant, his parents and the court, and for him to now assert that he should be discharged because of the defense that was not made but was carefully considered by all seems a non sequitur.

Lastly, it is urged that the conviction for aggravated battery must be reversed because it was an integral part of the robbery and a part of a single transaction. From this record it seems clear that the aggravated battery was separately motivated. The victim was ordered to lie on the floor. The defendant then struck him over the head with the butt of the gun inflicting the injuries previously described without any justification or reason therefor. This was after the victim’s money was taken. Both the State and the defendant received a quid pro quo. We see no reason for disturbing the action of the trial court or the agreement of the parties. From aught that appears in this record, the beating administered was separately motivated or otherwise separable and was independent of the robbery. People v. Johnson, 3 Ill.App.3d 19, 278 N.E.2d 837.

We do not have circumstances here where it is improper to impose separate sentences (People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679), or where it is improper to enter two judgments of conviction where a single act constitutes two crimes. People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1; People v. Leggett, 2 Ill.App.3d 962, 275 N.E.2d 651.

The judgment of the trial court is affirmed.

Affirmed.

TRAPP and SIMKINS, JJ., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Stanley Myers, Defendant-Appellant.
    (No. 11984;
    Fourth District
    June 12, 1974.

      Downs, Haddix & Schwab, of Chicago, for appellant.
    John G. Satter, State’s Attorney, of Pontiac (George S. Dzielak, of Circuit Attorney Project, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant was convicted of deviate sexual assault upon the verdict of a jury. Sentence of 4 to 6 years was imposed. The offense occurred during a riot at the penitentiary in Pontiac.

As grounds for reversal defendant argues that the trial court erred in denying his request for a change of venue; that there was insufficient compliance with his motion for discovery and that there was a failure to prove guilt beyond a reasonable doubt.

We find no error in the denial of the motion for a change of place of trial. Such motion shall state facts showing the nature of the prejudice alleged and the evidence heard must show such prejudice on the part of the inhabitants of the county that defendant cannot receive a fair trial. Ill. Rev. Stat. 1971, ch. 38, par. 114 — 6.

The articles in the newspaper tendered with the motion were not inflammatory. The name of the defendant appeared only peripherally as one of the number of inmates who had been indicted. It cannot be said that he was the focus of any report.

Each case is to be judged upon the fact of community prejudice. (People v. Gendron, 41 Ill.2d 351, 243 N.E.2d 208.) The record of voir dire examination provides a significant basis to show that absence of community prejudice which permits a fair trial. (People v. Torres, 54 Ill.2d 384, 297 N.E.2d 142.) Here, the defendant neither made a challenge for cause nor exercised a preemptory. The absence of challenge is significant in determing whether it was possible to select jurors free from bias. People v. Black, 52 Ill.2d 544, 288 N.E.2d 376.

Such a motion is subject to review as an act of discretion by the trial judge. (People v. Parisie, 5 Ill.App.3d 1009, 287 N.E.2d 310.) Upon review, the test is whether or not a denial of such motion for change was a clear abuse of the court’s discretion. People v. Tillman, 4 Ill.App. 3d 910, 282 N.E.2d 231.

Defendant does not point out any matter in the voir dire which suggests that the jurors were unable to consider the evidence presented impartially. With such facts, we cannot say that there was an abuse of discretion in denying the motion.

The trial court granted defendant’s motion that police reports “be made available at the time of trial.” On the day prior to trial, a supplemental discovery motion requested production of records and testimony from hearings asserted to have been held by the Board of Review in the penitentiary. No motion for a continuance was made by defendant at this time to permit the prosecution to comply with this request prior to trial.

The defense called an assistant warden, Harvey. In direct examination, the witness advised that the prison disciplinarian would probably have a record consisting of substantially verbatim reports of testimony taken from various witnesses who observed the defendant at or near the time of the alleged assault. It is apparent from the record that neither defense counsel nor the prosecution were aware of the existence of such records prior to this time.

Following the noon recess, the State’s Attorney stated that he had made inquiry of the secretary of the prison warden and was advised that the file Harvey had described was separate from the segregation file requested by defense counsel the previous day. He further stated that he had no knowledge as to the existence of the documents prior to the testimony of Harvey, and that the warden, Petrilli, had delivered the file in question to the courtroom.

Petrilli, called by the defendant, stated that the investigation reports in his possession had been made within a few days after the offense charged, and that the documents were contained in the defendant’s case record.

Although an objection was made that the prosecution had not sufficiently complied with the discovery requested on the previous day, no motion for a continuance was made and defense counsel advised that he had had time to read and examine the documents and was prepared to proceed with the trial.

Defendant argues that the prosecution did not comply with written motions for discovery as required in Supreme Court Rule 412, and, in the alternative, that the prosecution was under obligation to supply the material in its possession showing matters favorable to defendant under the rule in Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194. We cannot find a meritorious issue within the context of the facts presented. Defendant’s argument that the prosecution refused to supply “prison reports” is founded essentially upon his interpretation of “police reports” as requested in his motion. The record shows that upon a reasonable specification, the prosecution responded as promptly as possible. The argument fails to point out any exculpatory matters relevant to the defense in the material suppfied which would suggest prejudicial error. Defense counsel stated in the record that he had examined the documents produced and was prepared to continue with the trial. It is an established rule that counsel may waive error as to compliance with discovery. People v. Embry, 12 Ill.App.3d 332, 297 N.E.2d 604; People v. Jones, 13 Ill.App.3d 684, 301 N.E.2d 85.

Upon the issue of guilt, Pettit, an inmate, testified that he was in his ceH on the same gaHery as Queen, the victim. At that time the gallery was weH iHuminated and by means of a mirror, called a “gapper”, thrust between the bars of the ceH, he observed that Queen was “jumped” by some 6 black inmates, that Queen was struck and dragged back into a cell. Pettit did not observe the actual sexual assault, nor was he able to identify the defendant, Myers, as being a participant. He had, however, seen defendant in this gallery during the disturbance.

Queen testified that some prisoners were released from their cells during the disturbance at the penitentiary and that he and another inmate, Schwerdfeger, were in the gaHery outside their cells. He and Schwerdfeger were approached by two black males subsequently identified as the defendant and one Harrison. After harassing Schwerdfeger, the inmates directed their attention to Queen and began beating him. They were joined by several unidentified black inmates in the assault. He testified that he was thrown into a cell and upon á bed and held down and was sexually assaulted seven of more times. He identified defendant as participating in the striking and beating, and that he was able to observe that defendant and Harrison were among those who assaulted him sexually. The others he could not identify when his face was turned down. He testified as to complaining of the assault to the authorities at the first opportunity and that the area was well iHuminated at the time.

The defendant denied the offense and called some 10 inmates ás witnesses, none of whom, however, provided alibi testimony as to the time at issue. The defendant argues the issue of reasonable doubt in the context that only the victim identified the defendant. The record does show a sufficient opportunity to observe the defendant at the time of the events described in evidence. (People v. Dirkans, 18 Ill.2d 300, 164 N.E. 2d 23; People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232.) In People v. Shields, 9 Ill.App.3d 682, 295 N.E.2d 153, it was specifically held that an identification in a prosecution for deviate sexual assault is sufficient to support the conviction where the record discloses identification that is positive and that the witness is credible. Nothing in the record suggests an impairment of the victim’s opportunity to observe defendant.

Defendant first raised in this court an assertion that the identification made at trial was tainted by reason of an allegedly prejudicial pretrial photographic identification. Defendant elicited from the victim that he first identified defendant by viewing some 100 pictures of black inmates at the penitentiary. This means of identification was set out in the answer to the motion for additional discovery. The testimony is that none of such pictures bore any identification by name. Defendant now asserts an unduly suggestive procedure and that since the defendant was “in custody” a line-up should have been held. The description of the procedure refutes the argument that it was so suggestive as to create a substantial likelihood of irreparable misidentification. The identities of the men commiting the specific offense were unknown, and it was necessary to apprehend them. (Simmons v. United States, 390 U.S. 377, 19 L.Ed. 2d 1247, 88 S.Ct. 967.) It is noted that there was no motion prior to or at trial to suppress the identification. In People v. Black, 52 Ill.2d 544, 288 N.E.2d 376, it was held that the defendant cannot complain where the issue of suggestive identification is not raised in the trial court.

The judgment of conviction is affirmed.

Affirmed.

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


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Wayne Booth, Defendant-Appellant.
    (No. 12085;
    Fourth District
    June 12, 1974.

      John F. McNichols and J. Daniel Stewart, both of State Appellate Defender’s Office, of Springfield, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Robert James Steigmann, Assistant State’s Attorney, and Jerry Finney, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant was charged in an indictment with one count of rape and one count of burglary. He was tried and found guilty, in a bench trial, on both charges. The trial court entered judgment on its verdict and sentenced defendant to an indeterminate term of 5 to 15 years. Defendant appeals.

Defendant urges the following on appeal. He was not proven guilty beyond a reasonable doubt; the trial court erred in refusing to grant his request for a new trial based upon purported newly-discovered evidence; and, finally, that the trial court erred in entering judgment on both the rape and burglary verdicts.

At trial, the complaining witness, Mrs. Gail Hunter, testified that on the evening of September 2, 1971, she was alone in her basement apartment in Champaign, Illinois. She sat down around 7 P.M. to read and about 20 minutes later she thought she saw someone looking at her through the living room window. An hour later, she again believed she saw someone looking at her and at that time she got up from her chair and observed a figure running away from the window.

She went into her bedroom, and put on her nightgown, and then laid on her bed and began to read. She fell asleep and slept for an hour to an hour and a half when she was awakened by noises coming from outside the bedroom. Immediately after awakening, she saw a man standing in the entrance of her bedroom, 8 to 10 feet away. She stated that the bedroom and living room lights illuminated the man and she observed the man’s face for approximately 8 seconds. She described him as being 5'6" to 5'8", weighing around 140-150 lbs., wearing Levi bluejeans and a faded blue T-shirt with white short sleeves or a tie-dyed T-shirt. He was a small-boned man around 23 years old with dark hair, square jaw and sharp features. He was unshaven. She stated that at that time she was not wearing her glasses.

She began to scream as the man came towards her and lunged onto the bed. He turned her over on her back, and he hit her on the face. He held her down and removed her panties and began to rape her. She kept her hands over her face during the attack except for a few seconds when she observed the man close up. He had a nylon stocking over his face but it did not distort his features. At close range she noted that his eyes were dark and that his breath smelled of stale liquor.

After the attacker had completed the rape, he left the room. Mrs. Hunter called the police. The time was around 9:51 P.M. At this juncture of her testimony, Mrs. Hunter identified the defendant as being her assailant. She continued to testify that she was then taken to the hospital by the authorities and examined by a physician.

The day following the incident Mrs. Hunter went to the Champaign Police Department and was shown a book of mug shots containing some 300-350 photos. On September 11, 1971, Mrs. Hunter again observed 7 or 8 additional photographs. On both occasions she positively identified the defendant.

Mrs. Hunter testified that she is a licensed practical nurse, and that while making rounds in the maternity ward in Mercy Hospital on November 28, 1971, she saw defendant sitting in the fathers’ lounge. She stated that she eventually entered the room of defendant’s wife and recognized the defendant as her attacker. She went to the nurse at the station to call her husband who in turn notified the authorities. This occurred around 10:30 A.M. Defendant was apprehended at 1:40 P.M. Mrs. Hunter subsequently picked defendant out of a six-man lineup. She testified that upon seeing defendant’s face she fainted, and upon being revived she stated that defendant was the individual who had raped her.

The State called Dr. Lewis Trupin. He testified that upon examining Mrs. Hunter the night of the incident, he noticed an abrasion to her right temple and that there was evidence of a forcible entry into the vaginal area. He stated that a smear indicated the presence of spermatozoa. He further testified that Mrs. Hunter was extremely upset and overwrought. He prescribed a tranquilizer.

Officer William Jobe testified that he went to Mrs. Hunter’s apartment on the night in question and noticed that she was extremely upset and apparently had been struck on the right temple. Upon investigation, he found that the rear entrance to the apartment had been forcibly opened; however, no physical evidence or fingerprints were found linking the defendant directly to the scene.

Detective Sergeant William Bates was called to testify by the State. He corroborated the fact that on September 3, 1971, Mrs. Hunter tentatively identified defendant’s photo. Furthermore, Bates testified that on September 11, 1971, he brought over additional, photos for her to identify. He stated that Mrs. Hunter identified defendant’s picture, saying that it was the man that had raped her.

Detective Donald Evans testified that on November 28, 1971, he had an occasion to go to Mercy Hospital located in Urbana, Illinois. He stated that upon arriving at Mercy Hospital he had a conversation with Mrs. Hunter concerning the suspect who fit the description of her assailant. Evans testified that after he talked with Mrs. Hunter, he left the hospital and returned at approximately 1:40 P.M. with Sgt. Douglas. At around 2 P.M., Evans approached defendant and placed him under arrest for rape. Evans stated that defendant replied, “I could not have done it. I can prove where I was at.” Evans said that he told defendant that he did not know how he could prove where he was at because he had not yet told him what the date was. Thereafter, he was taken to the station where he appeared in the six-man lineup and was identified by Mrs. Hunter.

Defendant advanced an alibi defense. He testified that he had been working on September 2, 1971, on a construction site on North Madison Avenue in Champaign. His regular work uniform was dark blue pants and a light blue shirt imprinted with the defendant’s employer’s name. He testified that he had never visited or worked in the Hunter apartment complex.

On the day in question, defendant stated that his wife picked him up from the job site. They returned home after grocery shopping around 6 P.M. After arriving at defendant’s home, his mother and his wife fixed supper. He said he changed into a white T-shirt and brown cutoffs and the family ate supper around 7:30 P.M. No alcoholic beverages were served during the evening. After eating, defendant said that he worked on a TV set and his son’s toy car in the garage.

Mr. Randall Gozad, defendant’s father, corroborated defendant's testimony that he had been worldng at a construction site on North Madison Avenue on the day in question. Defendant’s wife testified that she did pick defendant up after work and that he stayed home the entire evening. Defendant’s mother and his wife both testified that although neither had defendant within their full view, the entire evening, both stated that he had not left the premises at any time. The defendant, his mother, and wife, all testified that the entire family watched the news and weather report which appeared on television at 10 P.M. Shortly thereafter, defendant’s mother left and defendant continued to work on a remodeling project until retiring around 1:30 A.M.

Defendant, his father, mother, and wife, all testified that defendant did not own or wear bluejeans or a tie-dyed T-shirt, and that defendant only on very rare occasions consumed alcoholic beverages. They all testified that defendant was incapable of growing much facial hair. It was brought out that defendant was 5'10Vá" tall and weighed 142 lbs.

At the conclusion of the second day of the bench trial, the court found defendant guilty of both rape and burglary.

Included in defendant’s post-trial motion was an allegation that newly-discovered evidence of a very probative nature had been uncovered. This evidence would be used to explain the inculpatory statement made to Evans at the time of his arrest. At the hearing on the motion, defendant testified:

“The reason why I said what I said was because I was told that my last case that I was sentenced 23 days on that from there on out I should have proof wherever I’m at and whom I am with from that date on.”

Defendant further testified that his trial attorney was aware of the explanation but he did not want to bring it before the court due to the fact it would involve a communication to the court of other offenses, which might be prejudicial. The trial court denied defendant’s post-trial motion for a new trial. After a pre-sentence hearing and sentencing, the defendant appealed.

Defendant contends that the State failed to establish his guilt beyond a reasonable doubt. Essentially, he urges that the identification testimony of Mrs. Hunter is not credible.

The State must prove defendant’s guilt beyond a reasonable doubt; however, the positive testimony of just one credible witness is enough to convict defendant, even if the testimony is contradicted by the accused. (People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182.) The fact that defendant’s testimony and that of. other defense witnesses conflicted with that of the State’s principal witness creates a question of credibility for the trier of fact. In this case, the trier of fact has chosen to resolve the conflict in favor of the State. It is the function of the trial court as the trier of fact to ascertain the credibility of witnesses and its findings pertaining thereto will be disturbed only when the evidence of guilt is so improbable or unsatisfactory as to leave a reasonable doubt of guilt. People v. Curry, 56 Ill.2d 162, 306 N.E.2d 292.

Next, defendant contends he is entitled to a new trial because evidence adduced after trial would have changed the outcome of the trial. Defendant urges that the explanation given with regards to the remarks “I could not have done it. I can prove where I was at” was not given at trial because the defendant did not know the reliance that would be placed upon such remarks by the court. It is argued that a new trial should be permitted so that defendant can explain the remarks in question. We cannot agree.

An application for a new trial on the grounds of newly-discovered evidence is addressed to the sound discretion of the trial judge. (People ex rel. Walker v. Pate, 53 Ill.2d 485, 292 N.E.2d 387.) A denial thereof by the trial judge will not be disturbed upon review unless there is a showing of an abuse of discretion. It is clear that in order to warrant a new trial the new evidence must be conclusive or probably change the outcome on retrial. People v. Reese, 54 Ill.2d 51, 294 N.E.2d 288; People v. Miner, 17 Ill.App.3d 661, 307 N.E.2d 624.

The situation presented here is not one where the offered evidence was newly discovered. Defendant admits that the nondisclosure of the reason for his utterance when arrested was a calculated move on the part of his trial counsel. The evidence was intentionally withheld from the trial court as a result of a calculated trial tactic. Moreover, the evidence is not conclusive; therefore, the trial court’s decision not to grant a new trial was not a manifest abuse of discretion.

Finally, the defendant urges that his burglary conviction must be reversed because it arose out of the same transaction as the rape conviction. The trial court found defendant guilty of both charges, although only one sentence was imposed. Where, as here, two offenses occur but are not independently motivated or otherwise separable, it would have been improper to impose separate sentences. (People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679.) Likewise, it is also improper under such circumstances to enter two judgments of conviction. People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1; People v. Leggett, 2 Ill.App.3d 962, 275 N.E.2d 651.

The conviction for the offense of rape is affirmed. The conviction upon the offense of burglary is reversed and this cause is remanded to the circuit court of Champaign County with directions to issue an amended mittimus.

Affirmed in part, reversed in part, and remanded with directions.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steven Piper, Defendant-Appellant.
    (No. 12119;
    Fourth District
    June 12, 1974.
    John F. McNichols, of State Appellate Defender’s Office, of Springfield, for appellant.
    John Satter, State’s Attorney, of Pontiac, for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

Defendant was convicted on his plea of guilty to the crime of escape from the Illinois State Penitentiary as defined in the Penitentiaries Act (Ill. Rev. Stat. 1971, ch. 108, par. 121). He contends that the court failed to comply with Supreme Court Rule 402(c) in that it did not determine that there was a factual basis for the plea and that the statute on which the conviction is based is unconstitutional.

Supreme Court Rule 402(c) mandates that the court shall not enter a final judgment on a plea of guilty “without first determining that there is a factual basis for the plea.” There must be substantial compliance with this requirement. (People v. Dugan, 4 Ill.App.3d 45, 280 N.E.2d 239.) The rule, sensibly, does not lay down a ritual of inquiry' as to what and from whom this requirement may be satisfied. The committee comments suggest that it can be satisfied by obtaining the factual basis from either the defendant, his attorney, the prosecution, a presentence report, or “by any other means which seem best for the kind of case involved.” Such is. the import of Dugan:

“Rule 402 calls for substantial compliance with the requirement for a factual basis. This could be accomplished by having the defendant state what he did, having the State’s Attorney state the facts in the presence of the déíendant, having the facts stated by a knowledgeable witness, or by examination of a presentence report, or by any other means which seem best for the kind of case involved, * #

The court here explained the nature of the offense, the minimum and maximum, that the sentence would be consecutive to the one being served at the time of the escape (the statute mandates this), his right to plead not guilty, that by pleading guilty he waived his right to a jury trial and to confrontation. Having determined that the plea was voluntary, defendant was asked: “And are you in fact guilty of the offense charged here?” with the response “Yes, sir”. Defendant now argues that this does not establish “a factual basis for the plea”.

Defendant, in his brief, glides over the fact that at the time of the arraignment, the indictment was read to him. It read that on a- given date he committed the offense of escape in that while being a prisoner in the Pontiac Branch he intentionally and knowingly escaped, from such institution while being in prison on a conviction of burglary and escape and that at the time he escaped, he had not completed his sentence. Defendant acknowledged that he understood the charge. In addition, the report of the probation officer — which can be considered.a presentence report— contained the statement, “according to defendant, there was a lot of heat in the cell house regarding riots and took opportunity to escape with fellow prisoner”. Certainly in our opinion, this establishes a factual basis for the plea so far as the court is concerned. We should keep in mind that it is the court who determines that there is a factual basis for the plea. Final judgment then followed. The fact that the referral to the probation officer on motion of the defendant for probation was rendered inoperative by the withdrawal of such motion and the waiving of a hearing on aggravation and mitigation does not detract from the report and the information it contained.

While we do not hold this up as a model — the reading of the indictment here was sufficient with defendant’s response ta establish a factual basis for The plea. The indictment was specific enough to advise him of the crime for which he was charged — and the offense of escape is unique in this, one has to be in the penitentiary and one hardly has to be told explicitly where he is — when he knows very well where he is!

Defendant next says that the statute is unconstitutional because it denies him equal protection of the law. The section under which he was indicted requires, as we have seen, that the sentence be served consecutive to the sentence he was serving at the time of escape. However, he could have been prosecuted under the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 31 — 6(a)), rather than the Penitentiaries Act, and this section of the Code does not mandate a consecutive sentence. This, says defendant, gives to the prosecution an “unfettered discretion” which mandates a declaration of unconstitutionality. But this argument has been answered conclusively in the course of this appeal by the supreme court in People v. McCollough, No. 45634, May Term, 1974. Neither statute is here unconstitutional for the reasons stated in that opinion.

Accordingly, the judgment appealed from is affirmed.

Affirmed.

CRAVEN and SIMKINS, JJ., concur.