text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James E. Garner, Defendant-Appellant.
    (No. 58893;
    First District (5th Division)
    May 3, 1974.
    Jacob J. Gordon, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, and Nicholas P. Iavarone, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Defendant was charged with two counts of burglary (Ill. Rev. Stat. 1971, ch. 38, par. 19 — 1), one count of armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2), two counts of deviate sexual assault (Ill. Rev. Stat. 1971, ch. 38, par. 11 — 3), two counts of indecent liberties with a minor (Ill. Rev. Stat. 1971, ch. 38, par. 11 — 4), and two counts of contributing to the sexual delinquency of a child (Ill. Rev. Stat. 1971, ch. 38, par. 11 — 5). Following a bench trial he was convicted on one count of burglary, acquitted on all other charges, and sentenced to 4 to 12 years. On appeal he contends: (1) the verdict is inconsistent and not supported by evidence sufficient to establish his conviction beyond a reasonable doubt; and (2) it was error to exclude the results of a polygraph test administered by the Chicago police department.

The following evidence pertinent to this appeal was adduced.

Franklin Jones, for the State:

He is 15 years old. He has resided with his mother, brother and two sisters on the second floor of a six-unit, apartment building at 949 Winona Avenue since February, 1972. On the evening of May 12, 1972, he was cleaning his aquarium in the living room. His brother and two sisters were sleeping in their bedrooms and his mother was asleep on the living room couch. Shortly before midnight while passing through the kitchen, he was confronted by defendant who beckoned him with a small pistol and commanded him to fetch his mothers purse which lay next to her on the floor. After he retrieved the purse, defendant ordered him to go into his bedroom and shut the door. He walked around his room for about 2 minutes. He had assumed defendant had left when there was a light knock on his bedroom door. Defendant entered and held a pistol to his head forcing him to commit oral copulation and anal intercourse. While being subjected to anal intercourse, he heard the apartment bathroom toilet flush. Defendant arose, peered out the bedroom door and ran out the apartment’s back door. His mother appeared at the bedroom door and in response to her question, he related what had occurred. She called the police. While waiting for the police, his mother walked toward the kitchen and reappeared 2 or 3 minutes later with her purse. He underwent a medical examination that night at Weiss Memorial Hospital. He was shown photographs at the police station immediately thereafter, but was unable to identify anyone.

On June 8, 1972, he saw defendant exit the front door of their building, get into an automobile and drive away. He telephoned the police. Investigator Larry Evans and another police officer arrived at his apartment and arrested defendant when he returned to the apartment building.

On cross-examination he admitted that subsequent to defendant’s arrest he learned that defendant lived with a roommate directly above his apartment.

There was a stipulation that Franklin’s medical examination conducted on May 13, 1972, at approximately 1:30 A.M. revealed no abnormal finding; the rectal area was negative and there was no blood.

Constance R. Jones, for the State:

She is Franklin’s mother. She is a school teacher and is at work during the day. On the night in question she was asleep on the living room couch when she was awakened by the sound of a door closing. As she started to get up, a Negro man appeared in the entrance way adjacent to the living room, ran toward the kitchen, turned around to face her momentarily and then fled out the back door. She called to her son who came into the living room and related what had occurred. After phoning the police she went into the kitchen and looked out the window. She observed the same Negro man coming up the steps with her purse. The porch was lighted. He looked up at her when she screamed, he dropped her purse and ran away. She retrieved the purse and found that approximately $150 was missing. She went to the hospital with her son. She was unable to identify anyone from a series of photographs shown to her at the police station later that morning.

On the afternoon of June 8, 1972, while at home with her son Franklin, she observed defendant, recognizing him as the same man she had seen in her apartment on May 12. In response to her summons, Chicago police detective Larry Evans arrived. Evans arrested defendant later that afternoon.

She admitted that she saw defendant with his dog sitting in front of her apartment building sometime in August, 1972; that she approached him with her sister in tow and that she apologized for her sister’s behavior in throwing pebbles at his car. No one else was present.

Allen White, for the State:

He is a Chicago police officer. On May 13, 1972, at approximately 12:40 A.M. he and Officer Larry Evans responded to Mrs. Jones’ burglary call at 949 Winona Avenue. A glass plate from her apartment’s back door was missing and a piece of cardboard approximately the same size of the opening was lying on the back porch. Mrs. Jones’ purse contained no money. They drove Mrs. Jones and Franklin to Weiss Memorial Hospital where a medical examination of the boy was conducted.

This testimony was corroborated by Evans who additionally testified that ón June 8, 1972, hé and Chicago police investigator Andrew Martorano drove to Mrs. Jones’ apartment in response to her sighting of defendant. They arrested defendant in the hallway of the third floor just outside his apartment at 949 Winona Avenue. Defendant denied all of the crimes charged and voluntarily took a polygraph test.

James Garner testified in his own behalf:

He has shared a third-floor apartment at 949 Winona Avenue with Curtis Benson since August, 1971. On the evening of May 12, 1972, he and Benson went shopping, did their laundry and then returned to the apartment where they watched television from 10 P.M. until retiring just after midnight. He knows Franklin and his mother have lived directly below his apartment since February, 1972. Prior to his arrest, he had seen them regularly and exchanged greetings when going in and out of the apartment building to walk his two dogs. He is the only Negro in the building. He denied ever owning a gun or committing any acts charged in his indictment.

He was arrested on the afternoon of June 8 and was taken to the police station where he voluntarily submitted to a polygraph examination. His counsel’s motion to admit the results of the examination into evidence was denied.

In the middle of August, 1972, he was sitting in his car in front of the apartment talking with a neighbor, Judy Wroblewski, when Mrs. Jones leaned into the car and apologized for aU of his troubles and stated that she reaUy hadn’t seen him on the night of the burglary, but that her son had “and that’s good enough for me.” After she walked away, her sister, Jeanette Ross, began throwing rocks from an apartment window at his car. She returned a moment later and apologized. He went into Judy’s apartment and called the police.

Judith Wroblewski for the defense:

She has been close friends with Benson for 8 years and defendant for 2 years, but has not dated either man. She is employed as a dental technician by her father, Dr. Henry Wroblewski. She spent part of the 1972 summer at home recovering from surgery. She substantially corroborated defendant’s account of the August, 1972, conversation he had with Mrs. Jones. She had seen Mrs. Jones, but not Franklin, prior to that conversation.

Curtis Benson for the defense:

He is defendant’s roommate. He supported defendant’s alibi for the night of May 12, 1972. He had also seen Mrs. Jones in the hallway of the apartment on occasions prior to this incident.

James Smith, for the defense:

He is the building engineer of two twin six-flat units at 947-949 Winona Avenue. He had seen defendant walk his dogs regularly during the day, but he had never seen defendant fraternizing with Mrs. Jones or Franklin. He also testified that Mrs. Jones and Franklin were not at home most of the day.

Abraham Truman, for the defense:

He is a friend of defendant, and now fives in the same neighborhood. They see each other at least once a week. Although he does not personally know Franklin, he and defendant have on occasion seen the boy while they were walking in the neighborhood. He has never seen defendant fraternizing with Franklin or his mother.

OPINION

Defendant contends that the trial judge rendered an inconsistent verdict thus demonstrating the insufficiency of the evidence. His position is that the finding of not guilty on eight of the nine charges infers that the testimony of the State’s witnesses was not believable and that therefore the same witnesses’ testimony cannot support a conviction for burglary.

While there is no inconsistency in the verdict here since there are different elements in each of these offenses and a varied amount of proof was offered for each of the charges (see People v. Harper, 50 Ill.2d 296, 278 N.E.2d 771), we nevertheless find that the evidence is so unsatisfactory as to create a reasonable doubt of defendant’s guilt.

While the trial judge’s finding on the credibility of a witness is entitled to great weight, it is not conclusive and we will reverse a conviction where the evidence is so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. (People v. Pellegrino, 30 Ill.2d 331, 196 N.E.2d 670.) A conviction on evidence that is improbable and contrary to human experience will require us to reverse. People v. Dawson, 22 Ill.2d 260, 174 N.E.2d 817.

In the instant case, Franklin Jones testified that after retrieving his mother’s purse for the intruder, he went into his bedroom, closed the door and walked around the room. Incredibly, he made no attempt to notify anyone of the crime. There are other additional facts that make his testimony suspect. His charge that he was forced to submit to anal intercourse is not corroborated by the hospital report. Furthermore, his denial of having seen defendant in the nearly 5 months prior to defendant’s arrest is somewhat improbable considering that defendant resided in the apartment directly above his, that defendant was the only Negro in the six-unit apartment building, and that defendant walked his two dogs daily and was frequently in and around the apartment.

His mother’s testimony suffers from some of the same infirmities. She too, had never seen defendant prior to the arrest date. Additionally, the circumstances of her identification of defendant are peculiar. She saw his face briefly when he ran out of the apartment and then approximately 20 minutes later, she leaned out her kitchen window and saw him returning up the steps with her purse in his hand. It is incredible that defendant would not either return to his third-floor apartment immediately or at least avoid remaining below an apartment he had just burglarized. Perhaps most bewildering is Mrs. Jones’ conversation with defendant, after the defendant’s arrest. According to her testimony, she approached him to apologize for her sister’s behavior in throwing stones at defendant’s automobile. This is contrary to a mother’s human nature whose son had been sexually assaulted by the same man only 3 months earlier.

The State’s evidence is further rebutted by defendant whose own testimony is supported by various witnesses. Defendant’s roommate supports defendant’s alibi that he had been in the apartment at the time of the burglary and assault. The apartment’s janitor, James Smith, confirms defendant’s frequent appearances in and around the building. Defendant’s account of his conversation with Mrs. Jones in August is confirmed by a neighbor, Judith Wroblewski. At this time, Mrs. Jones allegedly admitted not having seen defendant in her apartment. There is also Abraham Trumans corroboration of defendant’s testimony that he and defendant had on occasion passed Franklin while walking in the neighborhood prior to defendant’s arrest. The record on the whole does not prove defendant’s guilt beyond a reasonable doubt.

Having reached this result, it is unnecessary to consider defendant’s alternate contention.

Accordingly, the judgment of the circuit court is reversed.

Reversed.

BARRETT and DRUCKER, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SULLIVAN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul Wayne Watts, Defendant-Appellant.
    (Nos. 59122, 59079 cons.;
    First District (5th Division)
    May 3, 1974.

      James J. Doherty, Public Defender, of Chicago (Daniel Miranda, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Frank J. Parkerson, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from the conviction, after a jury trial, of indecent liberties with a child, and from the sentence of 6 to 10 years.

An eight-count indictment charged defendant with the following crimes: four on complaints of Pattie Pruitt (rape, indecent liberties with a child, contributing to the sexual delinquency of a child, and aggravated kidnapping), and four on complaints of Karen Ogden (attempted rape, attempt to commit indecent liberties with a child, contributing to the sexual delinquency of a child, and aggravated kidnapping, which was later reduced to kidnapping). The trial court directed a verdict of not guilty on the charges of attempted rape, attempt to commit indecent liberties with a child, and contributing to the sexual delinquency of Karen Ogden. The jury found defendant guilty of the charges of indecent liberties with and contributing to the sexual delinquency of Pattie Pruitt, but found him not guilty as to her rape and kidnapping, and not guilty of the kidnapping of Karen Ogden. The delinquency charge having merged with the indecent liberties charge, defendant was sentenced only on the latter charge.

Defendant contends on appeal that the State did not prove him guilty beyond a reasonable doubt; that he was denied his right to a fair trial by the introduction of certain evidence and the prosecutor’s comment thereon; and that his sentence is excessive.

At the trial, the following testimony relevant to the issues on appeal was adduced:

Pattie Pruitt, complainant, testified for the State. She was 14 years old at the time of the alleged offenses. Defendant accosted her and Karen Ogden in Oak Park and forced them into his car at the threat of being shot. While driving through Chicago, defendant told them that although he did not want to pick them up, it was his job to do so. He told them he worked for the Mafia. He said there was a car following them, and that if they were to try to escape they would be picked up by the other men who would not be as patient as defendant. He said that he had been a policeman but had been expelled from the force for failing to give a ticket to someone he knew. He also said he had stolen some money and had been in jail.

After stopping at a gas station in Evanston, he drove them to a motel in South Holland. There he informed them that he had found a microphone in the motel room. He also said he had made contact with his superiors and that he had orders to rape both girls. When she (Pattie) became upset, he said, “Calm down, we will pretend.” He told them to take off their clothes and spread them around the room because other men would come in to make sure the orders were being carried out. If they didn’t find everything just right, defendant said that they would work the girls over, and things would be a lot worse. The girls took off their clothes and got into the double bed while defendant was in the washroom.

When defendant came out, he said that one of the girls had to act asleep and the other had to pretend to be enjoying herself in sexual activity. Neither girl wanted to be the one to pretend, so defendant said he would flip a coin. Karen called the toss, and Pattie lost. Defendant came around to her side of the bed, took off his pants, and got into bed on her left. Karen was on her right. He reiterated his intent to “fake it.” But then he said that they would have to do it, because the microphone could pick up their motions, and the people listening would be able to tell if the act were faked. He told Pattie to spread her legs. Then he got on top of her and said he had to do it. He put his penis in her vagina. When she asked him to stop, he said that the microphone would know and he asked whether she would rather be found dead in a ditch or a field.

When he finished, defendant expressed a desire to see Pattie again, but she refused. He then went into the washroom, and the two girls dressed. When defendant left the washroom, the girls went in.. When they came out, he had gone. They went to a nearby gas station and asked to use the phone. Pattie called her home. All she was able to say was, “Mom.” Karen had to continue the conversation. An officer of the South Holland Police took them to the police station and then to a hospital for an examination.

Karen Ogden, complainant, testified for the State that she was 14 years old when the alleged offenses occurred. She agreed substantially with the testimony of Pattie Pruitt. In addition, she testified as follows: In the course of their drive, defendant told her he drove the man who killed Senator Percy’s daughter. When they were in the motel room bed, she faced away from defendant and Pattie, but she heard him tell Pattie to spread her legs apart and to get into different positions. She lay on the bed listening and decided defendant was not faking, so she turned over and told him to stop it. He replied, “Remember the bug, I am not doing anything.” Upon leaving the motel, she and Pattie went to a gas station, where Pattie told the attendant she had been raped.

Brian Arakelian testified for the State. He was employed at a gas station in South Holland on the day in question. A couple of young girls ran up to him crying and apparently upset. One of them said she had been raped. They asked to use the phone, and he showed them where it was.

South Holland Police Sergeant, James Ashmore, testified for the State. He received a call and went to the gas station, where the girls told him what had happened, and they appeared shaken and were crying.

Mrs. Betty Pruitt testified for the State that on the day in question she received a telephone call. The caller said, “Mom”, and the conversation was then continued by Karen Ogden.

Dr. Jose Montero testified for the State. He is a licensed physician who was working in the emergency room of Ingalls Memorial Hospital on the day in question. He examined Pattie on that day and took smears from her vagina and vulva. There were no lacerations on her hymen nor any evidence of injury in the genital region or the rest of her body. A laboratory report indicated that the smears were positive for spermatozoa but did not indicate whether they were present in the smear from the vulva, in the smear from the vagina, or in both. It was his opinion that a penis did enter her vagina.

Defendant testified on his own behalf. In the 2% hours immediately prior to picking up the girls, he drank approximately 1 quart of whiskey at home. In the 2 hours prior to that, he had consumed 12 beers and 3 shots of whiskey. He picked up the girls in Oak Park, but he did not threaten to shoot them. He stopped at a gas station in Evanston. He did not tell the girls that he was a member of the Mafia, that he had been in jail, that he had applied for the police department, that he had been charged with robbery, that the car was being followed or that he had a gun.

He took the girls to a motel in South Holland. He did not say anything about a microphone or about people who would check up on him. He fell asleep in a chair in the motel room. When Pattie awakened him she was undressed. He had not instructed her to undress. He did not know where Karen went after she entered the room. He went to the washroom, and when he came out Pattie was in the bed. They conversed, but he was in no condition to remember what was said. He didn’t remember what was said from the time he entered the motel room until the time he sat on the bed. Pattie asked if they would be wasting their time, whereupon he undressed and got into the bed next to Pattie. There was only one person other than himself in the double bed. He and Pattie started “playing around.” She was ready to complete the act, but he ejaculated without inserting his penis into her vagina. He was drunk at the time. He did not remember whether anything was said during the foreplay, whether her legs were spread apart or were together, whether she said anything after he ejaculated, or whether he or Pattie made any noises during the sexual activity.

He used the washroom but vacated it upon Pattie’s request to use it herself. He was wearing his pants at that time. He put on his shirt, told Pattie that he would be back in 5 minutes after getting some cigarettes, and left the motel. He did not remember if he zipped or buttoned his pants, if he put on his socks, or if he put on his jacket. He fell asleep in his car on a side street and did not return to the motel.

OPINION

I.

Defendant’s first contention is that the State did not prove him guilty beyond a reasonable doubt. He was convicted of indecent liberties with a child in that he performed an act of sexual intercourse, and he argues that Pattie’s testimony was insufficiently corroborated and that there was a lack of clear and convincing testimony on the issue of sexual intercourse.

It is well-settled that when a conviction for the crime of indecent liberties rests upon the testimony of a child, the evidence must be corroborated or must otherwise be clear and convincing. People v. Dunbar, 1 Ill.App.3d 308, 272 N.E.2d 378.

From our review of the record, we believe that Patties testimony concerning the sexual intercourse was clear and convincing and that it was corroborated by other testimony. Initially, we note that sexual intercourse has been defined as any penetration of the female sex organ by the male sex organ. (People v. Smith, 58 Ill.App.2d 123, 206 N.E.2d 714.) Here, defendant himself admits to being unclothed in bed, engaging in sexual foreplay with the girl, and ejaculating. Karen agreed with Pattie that the three of them were in the bed and that defendant told her friend to spread her legs. From listening to them, she concluded, despite defendant’s denials, that he was in fact engaging,in sexual intercourse with Pattie, and she told him to stop. Although she did not see the alleged penetration of Pattie’s sex organ by defendant’s, her testimony corroborates Pattie’s in many respects, particularly as to the location of the three people in the bed and the conversations that occurred there. In People v. Smith, 58 Ill.App.2d 123, 206 N.E.2d 714, defendant’s conviction for rape was affirmed despite the fact that the complainant’s mother, who was pinned under her, admitted that she could not see the rape. Similarly, Karen’s testimony lends credence to Pattie’s.

Further corroboration of Pattie’s testimony is provided by Dr. Montero, who testified that traces of spermatozoa were found in the smears taken from Pattie’s vaginal area (although not necessarily in the vagina itself); and that it was his professional opinion that sexual intercourse had occurred. To a lesser extent, she was corroborated by Arakelian, who testified that when the girls came to his gas station “they were both crying and they were real upset” and that one told him she had been raped.

Pattie described in detail the events in the motel leading up to and following the offense. She indicated no uncertainty as to what occurred in bed, and she testified on two occasions that defendant had inserted his penis in her vagina.

Defendant also argues that Pattie’s story is implausible and unbelievable because of inconsistencies in her testimony and in that of the other State’s witness. We need not cite authority for the proposition that it is for the jury to determine the credibility of the witnesses and the plausibility of their accounts. Furthermore, we think the inconsistencies pointed out by defendant do not appear to relate to material elements of the' crime, but rather to collateral matters. The mere fact of minor conflicting evidence does not justify reversal. People v. Davis, 10 Ill.2d 430, 140 N.E.2d 675.

For the reasons stated, we believe defendant was proven guilty beyond a reasonable doubt.

II.

Defendant’s second argument is that he was prejudiced by the testimony of the two girls concerning defendant’s alleged representations that he had been kicked off the police force; had stolen money; worked for the Mafia; had been put in jail; and had driven the person who killed Senator Percy’s daughter. In addition, he claims that the following comment . by the prosecutor in his closing argument was improper and prejudicial:

“He said that he had been convicted of robbery and that he had been in jail and I think you might agree that this lends some credence to the fact that this is indeed the kind of person that would be carrying a gun and would not be afraid to use that weapon.”

Initially, we note that although defendant denied in direct examination that he made the representations to the girls, his counsel did not object to the introduction of the evidence or to the closing argument. A party cannot sit by and permit evidence to be introduced without objection and on appeal urge an objection which might have been obviated error if made at the trial. (People v. Thompson, 48 Ill.2d 41, 268 N.E.2d 369.) Because defendant elected not to object and treated the evidence as properly admitted at trial, his right to raise this issue on appeal is waived.

Furthermore, the use by defendant of force, or the threat of force and acts performed against the will of the victim, are elements in the other charges of kidnapping, aggravated kidnapping, and rape. (Ill. Rev. Stat. 1969, ch. 38, pars. 10 — 1, 10 — 2, 11 — 1.) Thus, the allegedly improper evidence was relevant for the purpose of proving whether these crimes were committed as charged. Evidence that defendant, in fact committed other offenses is admissible if relevant for any purpose other than to show propensity to commit a crime. (People v. Cole, 29 Ill.2d 501, 194 N.E.2d 269.) A fortiori, evidence that defendant represented he had committed other offenses is admissible when, as here, it is relevant. The prosecutor’s comment is permissible as a reasonable inference drawn from admitted evidence.

Moreover, the jury returned a verdict of not guilty on the charges of rape, kidnapping, and aggravated kidnapping, in all of which the use or threat of force and acts taken against the will of the victim are elements. He was convicted of two crimes not containing these elements; thus, assuming arguendo that there may have been error in the admission of this testimony and the prosecutors comment, we believe that no prejudice resulted from it. A reviewing court does not reverse a conviction merely because error was committed unless it appears that justice has been denied or that the verdict of guilty may have resulted from the error. People v. Morehead, 45 Ill.2d 326, 259 N.E.2d 8.

III.

Defendant’s final contention is that the sentence of 6 to 10 years is excessive. We recognize that the legislature chose to make the crime of indecent liberties a Class 1 felony under the Unified Code of Corrections, and this indicates legislative displeasure with this type of crime. (See People v. Brown, 107 Ill.App.2d 406, 246 N.E.2d 61.) But the Code states that “for a Class 1 felony, the minimum term shall be 4 years unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term.” (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(2).) (Emphasis added.) The offense committed here did not involve violence; the victim’s hymen had no lacerations; her body was free from bruises; and her life was not endangered in the commission of the offense. Indeed, the jury acquitted defendant of all crimes charged which involved the use of force or the threat of force. He was young (22 years old), with no prior criminal record. He had been fairly steadily employed, although by a variety of employers. He was terminated by one for lack of work and resigned once for unknown reasons. His school record showed fair conduct and grades, poor to fair attendance, and unsatisfactory deportment.

Accordingly, the judgment is affirmed, but defendant’s sentence is modified to a term of 4 to 10 years.

Affirmed as modified.

DRUGKER and LORENZ, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Earl Delaney, Defendant-Appellant.
    (No. 59151;
    First District (5th Division)
    May 3, 1974.
    James J. Doherty, Public Defender, of Chicago (Robert Gevirtz and J. Powers McGuire, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

BARRETT, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Raymond Bartemio, Defendant-Appellant.
    (No. 58504;
    First District (1st Division)
    May 6, 1974.
    Edward C. Riordan, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State’s Attorney, of counsel), for the People.
   PER CURIAM.

BURKE, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Carlton, Defendant-Appellant.
    (No. 58568;
    First District (1st Division)
    May 6, 1974.

      James J. Doherty, Public Defender, of Chicago (Robert Gevirtz, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

HALLETT, J., took no part.


author: Mr. JUSTICE GOLDBERG

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Virgil, Defendant-Appellant.
    (No. 59319;
    First District (1st Division)
    May 6, 1974.

      Block, Levy & Becker, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John F. Brennan, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Willie Virgil (defendant) was indicted on two counts of aggravated battery. Count I charged commission of an aggravated battery by virtue of great bodily harm (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 4(a)). Count II charged aggravated battery in that a deadly weapon was used by defendant (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 4(b)(1)). After trial by jury, a verdict of not guilty was returned on Count II concerning use of the deadly weapon. A verdict of guilty was returned on Count I alleging great bodily harm. Defendant was sentenced to 5 to 10 years and he appeals.

Defendant contends prejudicial error resulted from refusal of the trial court to submit verdicts on the lesser included crime of battery; the trial court considered improper matters when imposing sentence and the sentence is excessive. The State responds that defendant had no right to an instruction on the lesser included offense since the evidence did not support it; no improper matters were considered by the trial court in passing sentence and the sentence is not excessive.

Although defendant raises no point on the sufficiency of the evidence to prove guilt beyond reasonable doubt, a factual statement is essential. On December 26, 1971, during the very early morning horns, the complaining witness, a young woman then some 18 years old, was returning to her home. A person identified as the defendant followed her, seized her around the neck and put “something sharp like a knife or a fingernail file” against her throat.

Defendant threatened to cut her throat. She struggled but he dragged her into an alley and parts of her clothing were tom off. She was cut on the neck in the area below her jaw. After a considerable struggle, she escaped and ran out of the alley. Her attacker pursued her and she toned left toward her home. She then noticed a police car which came to her assistance. At a hospital, four stitches were required to close the wound. Police immediately apprehended her attacker who ran from the scene and hid behind some garbage cans in a basement type of gangway. The police noticed the blood flowing from the wound on the victim’s neck and on her clothes. Defendant had blood on his right hand and on the right sleeve of his coat or jacket but had no wound. He was searched by the police but no weapon was found on his person. Police examined the area near his place of concealment and found no knife or other weapon. The defense consisted of an alibi advanced by the defendant and supported by his wife.

As regards the first contention of defendant, in his original brief and argument he proceeded on the assumption that the instructions given by the trial court were proper but that reversible error occurred when the court refused to submit verdicts on battery to the jury. The brief and argument for the People proceeded on the assumption that the judge refused instructions on the crime of battery. The reply brief of defendant then urged that the court should have instructed the jury on battery and should have submitted the necessary verdicts on this crime. The report of proceedings contains the court reporter’s transcript of the given instructions as read to the jury by the trial court. The record does not include copies of the instructions, given and refused, which should have been incorporated in the record including the written endorsements by the trial judge. (See Ill. Rev. Stat. 1973, ch. 110, par. 67, and Supreme Court Rule 451, 50 Ill.2d R. 451.) We cannot tell from this record which instructions, if any, were tendered by defendant and refused. Under these circumstances, we cannot consider the propriety of refused instructions. This situation has been clearly elucidated by the supreme court in People v. Springs, 51 Ill.2d 418, 425, 283 N.E.2d 225.

. Similar confusion exists regarding the tender of a verdict. The record shows that after the conference on instructions, the court granted defense counsel permission “to submit tomorrow morning defense instructions No. 22 and No. 23 which are forms for the offense of battery, the lesser included offense of aggravated battery. These will be refused as well.” The record as originally filed in this court did not include these forms. Defendant obtained leave from this court to file a supplemental record. The certification of the clerk shows this record to contain true copies “of xeroxed copies of instructions found in file in cause General No. 72-2005.” This document contains copies of various instructions and verdict forms which are not identified and which do not contain any endorsements by the trial judge. In addition, physically appended to this supplemental record, by some person or persons unknown, but not certified by the clerk of the circuit court, there are some additional matters including purported forms of blank verdicts; guilty or not guilty of battery with reference to IPI-Criminal No. 26.02 and 26.05. This uncertified material should not have been tendered to this court and cannot be considered by us. Thus, we cannot ascertain whether the instruction on the issues in battery and the necessary accompanying verdicts were ever tendered by counsel to the court.

However, with the possibility of future litigation in mind, and for purposes of certainty, we will consider defendant’s contention. According to the stenographic transcript, the trial court, in instructing the jury, defined “battery”; defined “aggravated battery by infliction of great bodily harm”; gave the issues regarding this crime; defined “aggravated battery by use of a deadly weapon” and gave the issues regarding this crime. (IPI-Criminal Nos. 11.05, 11.07, 11.08, 11.09 and 11.10.) The court submitted four forms of verdict: guilty of aggravated battery by means of inflicting bodily harm; guilty of aggravated battery by deadly weapon and not guilty as to each of these offenses. We will assume for this discussion that defendant had tendered an instruction covering the issues on simple battery and two verdict forms regarding this offense and that all had been refused by the court. Defendant reasons that the distinction between the simple and aggravated forms of battery are differences of degree only which are questions of fact so that, by refusing the proffered instruction on the issues in battery, the trial court precluded the jury from a determination of an important factual issue.

The premise upon which defendant bases this argument has partial validity. Battery is a lesser included offense within the definition of aggravated battery. (People v. Gnatz, 8 Ill.App.3d 396, 399, 290 N.E.2d 392.) In addition, the cases are numerous and uniform in holding that it is generally a question for the trier of fact as to whether the commission of any particular crime constitutes a simple battery or great bodily harm under the statute defining aggravated battery. (People v. Newton, 7 Ill.App.3d 445, 447, 287 N.E.2d 485, and cases there cited.) However, it does not follow from these two accepted principles that, in every trial for aggravated battery by virtue of causing great bodily harm, it is essential for the court to instruct the jury on the elements and issues of simple battery.

The test of the need for instructing the jury on a lesser-included offense is whether there is evidence in the record tending to support commission of the latter and relatively minor crime. The practice of giving instructions on abstract questions of law which have no relation to the evidence before the jury has always been condemned and the test is whether there is sufficient evidence in the record to warrant such an instruction. (See People v. Barks, 26 Ill.2d 259, 262, 186 N.E.2d 338.) In People v. Montgomery (1974), 18 Ill.App.3d 828, 310 N.E.2d 760, this court held that “[a] defendant tried for aggravated battery is not entitled to have the court tender a verdict form to the jury on the Iesserincluded offense of simple battery in the absence of evidence in the record to support that offense. (People v. Day (1972), 2 Ill.App.3d 811, 277 N.E.2d 745.)” There, in a case involving an attack upon a person with a baseball bat, defendant was found guilty of aggravated battery on the theory of accountability. There was no evidence in the record regarding commission of a simple battery as such.

Similarly, in People v. Ardelean, 368 Ill. 274, 13 N.E.2d 976, in a prosecution for forcible rape, defendant contended that the trial court should have submitted a verdict of simple assault. The supreme court quoted from People v. Gilday, 351 Ill. 11, to the effect that where the evidence is contradictory in regard to the degree of the offense actually committed the defendant may be convicted of the lesser offense. The court added that on the contrary, where “There was no evidence offered justifying a verdict of simple assault * * * the court properly refused to include a form of verdict for that crime with those submitted to the jury.” See 368 Ill. at 280, 281.

The identical situation is presented in the case before us. The evidence shows that the complaining witness was attacked with a sharp instrument and a threat was made to cut her throat. Her throat actually was cut to such an extent that she bled profusely. The police noticed bleeding from her neck and her clothing was stained with blood. Defendant’s right hand and the sleeve of his jacket or coat were also stained with blood although he was not wounded. Her injury required surgical attention to the extent of four stitches. There is not a single shred of evidence to the contrary. The inevitable result of this evidence beyond reasonable doubt is that the victim suffered great bodily harm. The defendant was also necessarily guilty of simple battery but only as a lesser included offense. But it cannot be successfully contended that the result of all the evidence constitutes in its totality proof of guilt of simple battery as distinguished from aggravated battery.

The above result is supported by legal analogy. The issue of whether a homicide is to be classified as murder or voluntary manslaughter is a question of fact. (People v. French, 3 Ill.App.3d 884, 888, 279 N.E.2d 519.) However, the trial court must necessarily reject instructions on manslaughter and refuse to submit such a verdict in a murder case unless there is evidence in the record which, if believed by a jury, would reduce the crime to manslaughter. People v. Craven, 54 Ill.2d 419, 425, 299 N.E. 2d 1; People v. Sanders, 56 Ill.2d 241, 253, 306 N.E.2d 865.

We conclude that even if this contention of defendant had properly been presented for our consideration, it is legally invalid and must be rejected.

Defendant’s next contention that the trial court considered improper matters when imposing sentence is hardly worthy of comment. The verdict in this case was returned on February 2, 1973. Imposition of sentence was necessarily postponed until February 23, 1973. At the hearing, the court inadvertently used the words “both counts” in referring to the guilt of defendant. This was immediately corrected by both attorneys. The court promptly accepted this correction and then proceeded to pass sentence only upon the count involving great bodily harm. Also, in his remarks immediately prior to sentencing, the court stated that defendant had picked up a mere stranger on the street and attacked her “with a knife.” We find no impropriety here. The exact words used by the complaining witness, as above quoted, included the word “knife.” Whatever the nature of the weapon, it undoubtedly inflicted a painful and severe injury. People v. Riley, 376 Ill. 364, 369, 33 N.E .2d 872, the only authority cited in this regard by defendant, involved imposition of the death penalty. The situation has no factual applicability to the case before us. Also, there the supreme court affirmed the judgment appealed from.

Defendant urges finally that the sentence is excessive and should be modified. Immediately prior to imposition of sentence there was a discussion between the court and counsel as to whether defendant would elect to be sentenced under the provisions of the Criminal Code of Illinois, as it existed at the time of his offense and commencement of the prosecution, or under the provisions of the Unified Code of Corrections in effect when sentence was passed. There was a statement made to the court by defense counsel that defendant elected the former.

After a careful reading and study of this record, we are not satisfied that this election by defendant was based upon full knowledge of all of the facts bearing upon this situation. In our opinion, justice would best be served by use of our authority to reduce the minimum sentence. (Supreme Court Rule 615(b)(4), 50 Ill.2d R. 615(b)(4).) We will, therefore, apply the ameliorative principles reflected by the Unified Code of Corrections. The Code provides that in a Class 3 felony, such as here involved, the minimum may not be greater than one-third of the maximum term set by the court. (Ill. Rev. Stat. 1973, ch. 38, par. 1005— 8 — 1(c) (4).) Accordingly the judgment will be affirmed but the sentence will be modified by reducing the minimum term to 3 years and 4 months.

Judgment affirmed as modified.

BURKE and HALLETT, JJ., concur.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Ralph White et al., Defendants-Appellees.
    (Nos. 59513-17 cons.;
    First District (1st Division)
    May 6, 1974.
    HALLETT, J., took no part.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
    No brief for appellees.
   PER CURIAM:

Criminal complaints were filed against the defendants charging them with the offenses of gambling and syndicated gambling, in violation of sections 28 — 1, 28 — 1.1 and 28 — 3 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, pars. 28 — 1, 28 — 1.1, 28 — 3). Defendants’ pretrial motion to suppress evidence was sustained on the grounds that the People had failed to produce the original search warrant pursuant to which the evidence in question had been seized and had further failed to lay a proper foundation for the introduction of a copy of the warrant as evidence at the hearing on the motion to suppress; the causes were stricken off with leave to reinstate. The People prosecute this appeal pursuant to Supreme Court Rule 604(a)(1). Ill. Rev. Stat. 1973, ch. 110A, par. 604(a)(1).

The People contend that the trial court was in error in holding that a proper foundation had not been laid for the introduction of the copy of the search warrant, leading to the striking of the charges against the defendants. The defendants were served with notice of appeal but have filed no brief on this appeal; there is authority that under such circumstances the trial court judgment may be reversed pro forma, but such cases should be decided on their merits where circumstances dictate. See People v. Jones, 8 Ill.App.3d 849, 852, 291 N.E.2d 305.

At the hearing on the defendants’ motion to suppress, the arresting police officer testified that he had entered the premises in the execution of a search warrant, placed the defendants under arrest and served them with a copy of the warrant. He testified that he filed the original warrant with the court after its execution, along with an inventory of the evidence seized pursuant thereto, as was "normal procedure” in such cases. It appeared at the hearing that the original warrant was not in the court file and that it could not be found, and the officer was questioned and testified that the copy of the warrant tendered to the court and to defense counsel was a true and correct copy of the original warrant. The court refused to admit the tendered copy of the warrant into evidence at the hearing on the ground that a proper foundation had not been laid. The copy of the search warrant which the People tendered at the hearing, and the complaint for that warrant executed by the arresting officer,' are in the record on this appeal. These documents purport to bear the signature of the issuing judge and the date and time of issuance, and otherwise conform to the details contained in the criminal complaints filed in the matter.

Proof of court records may be by certification by the clerk having custody thereof or may be by copy of the document examined and sworn to by a credible witness. (Ill. Rev. Stat. 1973, ch. 51, pars. 13, 18.) In the instant case the arresting police officer, who also swore out the complaint for the search warrant, properly authenticated the copy of the warrant tendered to the court and opposing counsel; it was also established that the original warrant was filed with the court upon its execution but could not be located in the court file. The trial court was in error in refusing to admit the tendered copy of the warrant into evidence and in sustaining the defendants’ motion to suppress the evidence seized pursuant to the warrant. The order is reversed and the cause remanded for proceedings not inconsistent with the views expressed.

Order reversed and cause remanded.

HALLETT, J., took no part in the consideration or decision of this case.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie D. Williams, Defendant-Appellant.
    (No. 59645;
    First District (1st Division)
    May 6, 1974.
    James J. Doherty, Public Defender, of Chicago (Matthew J. Beemsterboer and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Lawrence O’Gara, Assistant State’s Attorney, of counsel), for the People.
   PER CURIAM.

HALLETT, J., took no part.


author: Mr. JUSTICE JOHNSON

text:
      In re Interest of Melvin Woods, a Minor—(The People of the State of Illinois, Petitioner-Appellee, v. Melvin Woods, Respondent-Appellant).
    (No. 59137;
    First District (4th Division)
    May 8, 1974.
    Paul Bradley and Kenneth L. Jones, of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

On Februaiy 28, 1973, a petition for adjudication of wardship was filed alleging that Melvin Woods, a minor, committed the offense of theft in that he knowingly exerted unauthorized control over a 1972 Ford with the intent to permanently deprive the owner, Harold Bleck, of its use and benefit. After a hearing in the juvenile division of the circuit court of Cook County, Woods was adjudged delinquent and sentenced to probation for 1 year. On appeal, the issue presented for review is whether Melvin Woods was proven guilty beyond a reasonable doubt.

The testimony of the arresting police officer, Robert L. Silas, may be summarized as follows. At approximately 11:45 A.M. on February 27, 1973, Silas was patrolling in a squad car when he observed the driver of a 1972 or 1973 Torino make an illegal right turn. The officer turned on the mars light of the squad car, signalling the Torino to pull over, but the driver accelerated instead. The police chased the Torino into a nearby schoolyard, where the driver slammed on the brakes, jumped out of the car, and ran into a building. He was apprehended, arrested and subsequently identified by Officer Silas as the respondent, Melvin Woods. Woods gave his name upon arrest, however, as Melvin Gibson of Newport, Arkansas. According to Officer Silas, an examination of the vehicle driven by Woods revealed a “lock puller” in the back seat but no key in the car or on Woods. The officer stated further that the vehicle was in such a condition it could be started without a key.

Harold G. Bleck testified that he owned a 1972 Ford Torino with a red body and black vinyl top, which he permitted his son to use on February 25, 1973. According to Bleck, he filed a police report that the car was missing on February 25, 1973, and recovered his automobile from the police station around noon on February 27, 1973. Bleck testified that the ignition had been pulled from the car when he recovered it. At the hearing, he produced his Illinois vehicle registration card for the Torino and the trial judge accepted it into evidence.

Melvin Woods testified that Andre Ross, a friend, loaned him the car on February 25, 1973, with the stipulation that Woods return it on February 27, 1973. According to Woods, Ross did not tell him that the car was stolen but did warn him to “be cool” because the car had no city sticker. Woods stated further that there was a key in the ignition when he was arrested and that he did not know the “lock puller” was in the back seat of the car. Woods admitted giving a false name and address when stopped by the police and testified that he fled because he did not have a driver’s license. Andre Ross did not testify.

The respondent’s father, Henry James Woods, testified that he rode in the Torino with his son on February 25, 1973, and observed keys in the ignition at that time. According to Mr. Woods, the only thing unusual about the car was that it had no city sticker. Mr. Woods further stated that he knew his son did not have a driver’s license.

A finding of delinquency for criminal misconduct is valid only if supported by evidence which establishes the offender’s guilt beyond a reasonable doubt. (In re Urbasek (1967), 38 Ill.2d 535, 232 N.E.2d 716.) Woods contends in this appeal that the evidence produced at his hearing failed to prove beyond a reasonable doubt that he committed the offense of theft.

Woods’ first argument is that the evidence failed to connect him with the stolen car. There was no testimony that the car he was driving immediately prior to arrest was the same car reported missing by Bleck. Woods contends that Bleck’s testimony regarding the time he recovered his car from the police station supports the inference that it was not the car Woods had driven earlier.

The record shows that the arresting officer described the car driven by Woods as a 1972, or 1973 red-black over red Torino. Harold Bleck described the stolen car as a 1972 Torino with a red body and black vinyl top. In our opinion, these two descriptions sufficiently matched each other to establish that the car Woods was driving when observed by the arresting officer was the same car reported missing by the owner. Moreover, this identification was corroborated by Bleck’s vehicle registration card, which the trial judge inspected and accepted into evidence. .

The cases cited by respondent do not warrant a contrary conclusion. In People v. Pitt (1971), 133 Ill.App.2d 859, 272 N.E.2d 250, the court reversed an adjudication of delinquency where the only competent evidence linking the defendant with a stolen car was the statement of a police officer that he saw the car which was allegedly stolen parked outside the jail where defendant was being held. In the instant case, the arresting officer testified that respondent was actually driving a car similar to the one reported stolen immediately prior to arrest. Respondent cites People v. Horton (1966), 78 Ill.App.2d 428, 223 N.E.2d 206, as authority for the proposition that a description by year and model of two cars which witnesses saw defendant drive was insufficient to establish that the cars belonged to the persons named in the indictments. Here, Bleck produced a vehicle registration card at the hearing to establish his ownership of the car in question.

Secondly, Woods argues that the State failed to prove that his possession of the automobile was unauthorized since there was no testimony introduced by the State that Bleck’s son did not give Woods or someone else permission to use the car. This argument also fails to merit reversal of the trial court’s finding. In People v. Hayes (1972), 4 Ill.App. 3d 997, 1000, 282 N.E.2d 777, 779, this court stated:

“* * * [T]he trier of fact is not required to search out a series of potential explanations compatible with innocence and elevate them to the status of reasonable doubt, People v. Owens (1962), 23 Ill.2d 534, 538, 179 N.E.2d 630, 632, cert. denied (1962), 370 U.S. 947; People v. Russell (1959), 17 Ill.2d 328, 331, 161 N.E.2d 309, 311; and the trier of fact does not have to disregard the inferences that flow normally from the evidence. People v. Brown (1963), 27 Ill.2d 23, 26, 187 N.E.2d 728, 730, cert. denied (1963), 374 U.S. 854; People v. Russell, supra.”

In this case, the trial court found that the evidence supported the inference that Woods’ possession of the car was unauthorized. We agree with its conclusion.

Finally, respondent contends that a reasonable doubt on the issue of authorization was raised by the testimony of Woods and his father that there were keys in the car. However, the arresting officer testified that there were no keys in the car or on Woods’ person and the owner, Harold Bleck, stated that the ignition had been pulled when he recovered the car at the police station.

In view of this conflicting testimony, the credibility of the witnesses was in issue. It is well settled in Illinois that the credibility of witnesses and the weight to be accorded their testimony are matters to be determined by the trier of fact, and a reviewing court will not disturb his finding unless the evidence is so improbable, unreasonable or unsatisfactory as to create a reasonable doubt of the guilt of the accused. People v. James (1969), 109 Ill.App.2d 328, 248 N.E.2d 777; People v. Savaiano (1973), 10 Ill.App.3d 666, 294 N.E.2d 740.

After a careful review of the record before us, we are convinced that tire trial court’s adjudication of delinquency is supported by the evidence beyond a reasonable doubt. Therefore, the judgment of the juvenile division of the circuit court is affirmed.

Affirmed.

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


author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert Brown, Jr., Defendant-Appellant.
    (No. 56936;
    First District (2nd Division)
    May 14, 1974.
    Arthur H. Grant, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Defendant, Albert Brown, Jr., was indicted on three counts of murder. After waiving his right to a jury trial, he was found guilty on all counts, and was sentenced to consecutive terms of 31 to 100 years for the murders of Larkey Hudson and Eloise Haynes and a concurrent term of 31 to 100 years for the murder of David Young. On appeal defendant contends that he was not proven guilty beyond a reasonable doubt in that the evidence supports his allegations of self-defense and defense of habitation, or that at most the killings were voluntary manslaughter. In its brief, the State has confessed error as to the findings of guilty as to the murders of Larkey Hudson and David Young. The State maintains, however, that the evidence established beyond a reasonable doubt that defendant murdered Eloise Haynes, or at the very least, the evidence supports a finding of voluntary manslaughter in the shooting of Eloise Haynes.

On February 5, 1971, defendant and his girlfriend, Myrtle McDaniels, had lived together at 15 West 100th Street, Chicago, for approximately 1 year. On that date defendant left work and went to a tavern for a few beers. At approximately 6 P.M. he left the tavern and proceeded to a pawnshop located at 1335 Racine to pick up Myrtle who worked at the shop. An argument ensued between defendant, Myrtle, and Myrtle’s brother, Henry Prison, the manager of the shop. Myrtle stated her intention of moving out of their apartment, and, accompanied by Larkey Hudson, David Young and Eloise Haynes, (Henry Prison’s wife), she left the shop shortly after 8 P.M. Approximately 10 minutes later defendant left the shop and drove directly to the apartment. Defendant arrived at the apartment before Myrtle and her friends due to the fact that they had stopped to pick up two of Eloise’s children, Anthony Prison and Beverly Haynes, to help move Myrtle’s belongings.

Defendant proceeded to hide in a closet in the living room when he heard Myrtle and her friends arrive. Myrtle, Eloise, Beverly and Anthony walked into the bedroom while Hudson and Young remained in the dining room. Defendant emerged from the closet with a 12-gauge shotgun and shot Hudson and Young. Upon hearing the shots, Eloise Haynes opened the bedroom door and defendant also shot her.

At trial Myrtle McDaniels testified that she had observed a revolver in Hudson’s possession that evening, and had also observed a revolver lyon the floor between Hudson’s legs after he was shot. Hudson’s wife testified that he was employed as a security guard and had in his possession his company revolver and his personal revolver when he left home that morning. A police officer also testified that he observed a .38-caliber revolver lying on the floor between Hudson’s legs and a .32-caliber revolver lying on the floor near David Young. Both weapons were loaded but had not been fired. Defendant testified in his own behalf that at the pawnshop he had observed a gun on Young’s person, and that Hudson was wearing his security guard uniform. The State concedes that this evidence corroborates defendant’s testimony that Young and Hudson drew their guns and that he shot them in self-defense, and requests that defendant’s convictions with respect to the deaths of Hudson and Young be reversed. Therefore, the sole issue is whether the evidence supports a conviction for murder or voluntary manslaughter as to Eloise Haynes.

Henry Prison testified as to the events in the pawnshop prior to the shooting. At 7:30 P.M. Myrtle unlocked the pawnshop door and allowed defendant to enter. Defendant and Myrtle then entered into a discussion which he could not hear, and defendant picked up Henry Prison’s gun and pointed it at Myrtle and Henry. Defendant stated that he wanted to talk to Henry and they walked to the rear of the shop. Defendant then started out the door with the gun, and Myrtle told Henry to call the police. Henry instead talked to defendant and defendant gave him the gun and Henry locked it in the office. A woman in the shop telephoned Eloise Haynes, who arrived shortly thereafter. Young and Hudson were by that time already in the shop. On cross-examination Henry testified that he observed a gun in Myrtle’s bag. He also related that he observed Myrtle with a knife in her hand. He stated that Myrtle had been holding his gun before defendant picked it up, but that there was no argument between defendant and Myrtle. Hemy then admitted that Myrtle screamed at defendant and threw whisky in his face, and that he told both of them to “keep cool” but neither would listen. After Myrtle, Eloise, Hudson, and Young left the shop, defendant asked him to unlock the door and allow him to leave, but he tried to talk defendant out of leaving because his wife Eloise had told him to keep defendant there until they got back. Defendant left the shop approximately 2 minutes after Myrtle and her friends left.

Myrtle McDaniels testified as follows: On February 5, 1971, she had been drinking and was intoxicated. Defendant came to pick her up at approximately 8 P.M. She had a gun in her hand prior to the time defendant entered tire pawnshop. Henry and defendant walked to the rear of the shop to talk and Henry then called her back. An argument and a “scuffle” ensued between defendant, Myrtle, and Henry. Henry told defendant and Myrtle that he wanted them to stop fighting and “get along better.” Myrtle could not recall what was said, but stated that defendant picked up Henry’s gun and pointed it at her, and Henry stood between them. Myrtle admitted holding an open pocket knife, but denied threatening defendant in any way. She admitted that she was intoxicated and shouted and screamed at defendant. Someone in the shop telephoned Eloise Haynes who arrived shortly thereafter, and then Hudson and Young entered the shop. Myrtle decided to leave defendant, and Eloise asked Young to drive them to the apartment to remove Myrtle’s belongings. Hudson stated that he would go along to help. Eloise asked defendant to wait at the shop until they returned and he said he would.

On the way to the apartment they stopped to pick up Beverly Haynes and Anthony Prison, both teenagers. When they arrived, Myrtle and Eloise went to the rear of the building to see whether defendant’s car was parked there because Myrtle “didn’t want any trouble.” Myrtle did not have the keys to the front door of the apartment building, but a woman on the first floor opened the door for them. Myrtle entered her apartment, first and the rest of the party followed her in. She, Eloise, Beverly, and Anthony immediately proceeded to the bedroom, and shut the door; Hudson and Young remained in the dining room. Myrtle testified that defendant kept the shotgun in its case and “usually” stored it in the bedroom. As Myrtle was removing the bed linens, she observed defendant’s coat on the bed and defendant’s empty shotgun case. At this moment she heard two shots. She pushed back the bed and told Anthony to hide behind it with her. Eloise told Beverly to stay in the closet. Myrtle heard Eloise open the bedroom door and then heard a third shot. Defendant entered the bedroom and told them to come out of hiding. Defendant, apparently out of ammunition, ordered Myrtle to find more shotgun shells. Beverly screamed that her mother had been shot and Myrtle went to Eloise’s aid. Eloise had fallen in the dining room approximately 3 to 4 feet from the bedroom door. Myrtle observed Hudson and Young lying on the floor and a shotgun in defendant’s hands. Defendant called the police and stated “You better get over here, I have already shot three, if you don’t get here, I am going to shoot four more.”

Beverly Haynes’ and Anthony Prison’s testimony as to the events at the apartment substantially corroborated Myrtle’s testimony. Beverly testified that her Aunt Myrtle entered the apartment first and she was the last one to enter. She was in the bedroom closet when she heard two shots. She was coming out of the closet when her mother opened the bedroom door, was shot and fell on the bed. Defendant then entered the bedroom, pointed the shotgun at her and asked her where Myrtle was. Beverly told him that she was under the bed and defendant jumped on the bed and hit Myrtle with the shotgun. Defendant told Eloise and Myrtle to get up, and ordered them all into the dining room. Defendant then called the police. On cross-examination Beverly stated that she “stayed all the time in the closet.”

Anthony Prison testified as follows: when he heard two shots, he hid behind the bed and then heard another shot. He did not know what happened after he hid. Defendant entered the bedroom, stepped on the bed and told them to come out. Defendant hit Myrtle on the head with his shotgun, told her he should shoot her, and ordered her to find more shells. Defendant ordered them into the dining room, and at that time Anthony did not know that Eloise had been shot. Defendant called Henry Prison and told Anthony to relate what had occurred and also called the police.

Defendant testified in his own behalf that, when Myrtle had unlocked the pawnshop door for him, he observed that she was holding a pistol behind her and that she “wasn’t happy.” Defendant thought that he and Myrtle “were getting along all right.” Henry asked defendant to talk with him in the rear of the shop, and told defendant that he and Myrtle were going to have to get along better. Henry called Myrtle and began talking to her. Myrtle still had the pistol behind her, and became “madder and madder” and began cursing. Defendant then was aware that she had been drinking. Eloise, Hudson, and Young arrived in the shop and Eloise told her husband Henry to keep defendant “locked up” in the shop until they returned. Myrtle threatened defendant with a hook-blade knife and with words, refused to allow him to leave and threw whisky in his face. Defendant stated on cross-examination that this did not anger him. Defendant also observed that Eloise had a gun in her coat pocket, and testified that he had known her to carry a gun “a couple of previous times.” On cross-examination he testified that he saw the gun when Eloise pulled her hand out of her coat pocket before she left the shop. Five to ten minutes after Myrtle and her friends left, defendant was able to slip out of the shop when someone left the door unlocked. He drove straight to his apartment and called his landlord. He told him that people were on their way over to take “everything” out of his apartment and asked the landlord to call the police. The landlord told defendant to pack Myrtle’s clothes and set them outside the door. Defendant then heard car doors slamming, and saw Myrtle and her friends approaching. Defendant testified that his first thought was to take his things and leave, but then he hid in the closet in the hope that they would take her things and leave.

While in the closet defendant heard one of the men ask Myrtle if he could have defendant’s gun. Defendant emerged from the closet to tell them not to take any of his things. Before he could utter more than one word Hudson drew his gun. Defendant dove back into the closet and picked up his loaded shotgun which was lying there. Defendant reemerged from the closet and walked into the dining room. Hudson again drew his gun and defendant shot him, Young had almost gotten his gun out of his pocket and defendant shot him, and Eloise, who was standing at the entrance to the bedroom, then reached her hand into her pocket and defendant shot her. Eloise did not fall but remained in the doorway and pushed defendant. Defendant cocked his shotgun and ordered'the rest of the persons from the bedroom. Defendant called Henry Prison and the police. Defendant testified that Hudson was 3 to 4 feet from defendant, Young was 8 feet from defendant, and Eloise was 2 to 3 feet from defendant when the fatal shots were fired.

The police who arrived at the scene testified that they found defendant holding a shotgun. He surrendered the gun upon request and without resistance. Defendant orally stated that he shot three persons in' self-defense — Hudson pulled a gun on defendant and defendant shot him, defendant observed Young pull his hand out of his pocket and defendant shot him, and defendant observed Eloise Haynes with her hand in her pocket and he shot her.

Self-defense is an affirmative defense, and once it is raised by defendant, the State must overcome it by proof beyond a reasonable doubt. (People v. Halley, 13 Ill.App.3d 719, 300 N.E.2d 645.) The issue of self-defense is one of fact. (People v. Jordan, 18 Ill.2d 489, 165 N.E-.2d 296.) It is the function of the trial court, sitting as the trier of fact, to resolve conflicts in the evidence and to determine the credibility of witnesses. (People v. Pelegri, 39 Ill.2d 568, 237 N.E.2d 453.) A reviewing court will not disturb the court’s findings unless thfe evidence is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt of defendant’s guilt. People v. Jordan, supra; People v. Adams, 113 in.App.2d 205, 252 N.E.2d 35.

Defendant’s allegation of self-defense in the shootings of Young and Hudson was partiaUy corroborated by the State’s witnesses. However, the corroboration of a portion of defendant’s, testimony does not require this court to believe all of defendant’s testimony. Defendant’s testimony that, prior to the shootings, he observed Eloise Haynes with a gun in her possession was rebutted by the fact that the police recovered no weapon from her person. On the basis of this conflict in the evidence, the trial court found defendant’s theory of self-defense to be unworthy of belief.

Upon a careful review of the record, we cannot say that this finding was palpably erroneous. If defendant’s testimony is disbelieved, no legal justification for the shooting can' reasonably be inferred. The victim opened the door when she heard two shots fired. Defendant, who was standing merely 2 feet from her, shot her with a 4-foot-long 12-gauge shotgun.

We likewise reject defendant’s contention that, even if Eloise Haynes did not have a weapon in her possession at that time, under the circumstances defendant acted under a reasonable apprehension of great bodily harm. Defendant correctly states as an abstract proposition of law that a person may act in self-defense even though the danger of bodily harm to him is apparent rather than real; however, a person must determine from the circumstances and the actual state of affairs surrounding him the necessity of resorting to deadly force. (People v. Organ, 345 Ill. 339, 178. N.E. 73; People v. Lockett, 85 Ill.App.2d 410, 229 N.E.2d 386.) Here, defendant, holding a shotgun after shooting two men, and without a word being uttered, shot Eloise Haynes as she stepped out of the bedroom. The trial court could properly have believed that the victim was not in a position to harm defendant. The record supports the trial court’s rejection of defendant’s theory of self-defense, and we will not substitute our judgment for that of the trier of fact.

Defendant’s contention of defense of habitation is likewise untenable. Section 7 — 2 of the Criminal Code provides that a person is justified in the use of force to prevent or terminate another’s unlawful entry into or attack upon a dwelling, and further provides:

“[A person] is justified in the use of force which is intended or likely to cause death or great bodily harm only if:
(a) The entry is made or attempted in a violent, riotous or tumultuous manner, and he reasonably believes that such force is necessary to prevent an assault upon, or offer of personal violence to him * * *, or
(b) He reasonably believes that such force is necessary to prevent the commission of a felony in the dwelling.”

The evidence in the case at bar discloses a lawful entry by Eloise Haynes. It is undisputed that Myrtle McDaniels resided in the apartment with defendant. The State’s witnesses testified that the victim accompanied Myrtle McDaniels to her apartment for the purpose of helping Myrtle remove her belongings. The trial court disbelieved defendant’s uncorroborated testimony that persons in the apartment discussed their intention of taking his property, and rejected his testimony that he shot Eloise Haynes in self-defense.

Accordingly, we reject defendant’s assertions of legal justification. However, we are convinced that the evidence does not support a conviction for the murder of Eloise Haynes; we are of the opinion that the evidence establishes that defendant is guilty of voluntary manslaughter.

A person is guilty of voluntary manslaughter if, in taking another’s life, he believes that he is in danger of losing his own life or suffering great bodily harm, but his belief is unreasonable. (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 2(b); People v. Lockett, 85 Ill.App.2d 410, 229 N.E.2d 386.) Accordingly, pursuant to Supreme Court Rule 615(b) (3), we remand the cause to the Circuit Court with directions to enter a finding of guilty of voluntary manslaughter as to the shooting of Eloise Haynes and to impose sentence thereon. The murder convictions as to the deaths of Larkey Hudson and David Young are hereby reversed in accordance with the State’s confession of error.

Judgment as to the murder conviction for the death of Eloise Haynes modified and remanded with directions.

Judgments as to the murder convictions for the deaths of Larkey Hudson and David Young reversed.

HAYES, P. J., and LEIGHTON, J., concur.

       Ill. Rev. Stat. 1971, ch. 38, par. 9 — 1 (a)(2).

       Ill. Rev. Stat. 1971, ch. 38, par. 7 — 2.

       In addition to defendant’s reliance on Section 9 — 2(b), defendant maintains that the evidence supports a finding of voluntary manslaughter pursuant to Section 9 — 2(a) which provides that a person commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by the individual killed or another who the person attempts to kill but negligently or accidentally causes the death of the person killed. From the record before us, the inference most favorable to defendant is that defendant was provoked by Hudson and Young, not by Eloise Haynes. Therefore, defendant’s reliance upon Section 9 — 2(a) is misplaced. See People v. Wax, 75 Ill.App.2d 163, 220 N.E.2d 600.

       Ill. Rev. Stat. 1971, ch. 110A, par. 615(b)(3).


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Jackson, Defendant-Appellant.
    (No. 58066;
    First District (2nd Division)
    May 14, 1974.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

STAMOS, J., took no part.


author: Mr. JUSTICE DOWNING

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Buford, Defendant-Appellant.
    (Nos. 58857-8 cons.;
    First District (2nd Division)
    May 14, 1974.
    James J. Doherty, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

After a bench trial in the court below, appellant James Buford (hereinafter defendant) was found guilty of the offense of possession of heroin, pursuant to the provisions of Illinois’ Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56½, par. 1100 et seq.), and he was sentenced to a term of 4 months in the House of Correction.

The single issue raised on appeal is whether the State failed to establish beyond a reasonable doubt that the substance possessed by defendant was, in fact, heroin.

Prior to the calling of witnesses in the court below, the following colloquy took place between respective counsel and the court:

“Mr. Sullivan [Assistant State’s Attorney]: * * * Stipulate to the lab report, counsel?
Mr. Carey [Defense Counsel]: Proceed on the misdemeanor, yes. Do you have the lab report? I will.
Mr. Sullivan: All right. Judge, for the record now, Mr. Carey will stipulate to the lab report, and therefore the state will proceed on a, we will ask leave to proceed on the misdemeanor.
The Court: Leave granted to reduce the felony to a misdemeanor. All right.”

Officer Cox, called as a State’s witness, testified, in pertinent part, that on September 17,1971, he, along with three other police officers, executed a search warrant in a first-floor apartment located at 3250 South Prairie Avenue in Chicago; that defendant was present when the search warrant was executed; that the officers found “three hypodermic needles, and kitchen cabinet found eight syringes [sic]; found one foil pack containing white powder in bedroom on a bed, and I took one pack, tin foil out of the defendant’s right hand front pocket”; and that he arrested defendant.

The following colloquy then took pace between the officer and counsel for the State:

“Q. Did you take that contraband yourself, the foil packet to the Chicago Crime Detection Laboratory?
A. That is correct, sir.
Q. Was that returned on the 22nd of September, 1971, case number 71-12132?
A. Yes.
Q. Charles Vondrak, chemist. That was two foil packets containing total 4.45 grams tan powder which was analyzed and determined to be diacetyl morphine hydrochloride commonly refered [sic] to as heroin, is that correct, officer?
A. Yes, sir.”

In addition, three gas bills, addressed to defendant at the Prairie Avenue address, which were found in the apartment on the day of the arrest, were admitted into evidence as State’s exhibits. The crime lab report, as well as the substances allegedly possessed by defendant, were never admitted into evidence as part of the State’s case. The State rested its case after Officer Cox had undergone cross-examination. Defendant made no motion for a directed finding of not guilty at the close of the State’s case.

Defendant testified that he did not have anything in his pocket when the officer searched him; that he had never lived at the Prairie Avenue address and that he had leased the apartment for his girlfriend; that the gas and light service bills for the apartment were in his name; and that, on the day of his arrest, he resided at 3649 South Giles Street in Chicago.

I.

We note at the outset, as we did recently in People v. Johnson (1st Dist. 1973), 15 Ill.App.3d 680, 304 N.E.2d 688, at trial, and on this appeal, defendant’s counsel has been the public defender of Cook County. While it is true, as it was in Johnson, that different assistants prosecuted the trial and the appeal, the same questions of propriety and waiver arise in the instant matter. The issue raised on this appeal involves alleged errors in the trial court by the same attorney who now on appeal complains about what he did or did not do in the trial court. Unlike our treatment of the circumstances presented in the Johnson case, we find that in this appeal we would be fully justified in disregarding the errors alleged to have been committed in the trial court. However, we will proceed to dispose of the issue presented.

II.

Defendant contends on appeal that the State failed to satisfactorily sustain its burden of proving a chain of custody of the seized substance from the moment of its seizure to the time of its analysis, which would have insured its trustworthiness as evidence against the defendant. Defendant claims that the stipulation to the laboratory report — which is not spread upon the record before this court — established merely that a named chemist hád analyzed two foil packets of tan powder and that he had determined that the substance contained therein was heroin. Further, defendant urges that Officer Cox’ testimony established merely that he had obtained two packets of white powder, which he took to Chicago’s crime detection laboratory, and that the contraband was returned some four days later under the case number 71-12132.

The State argues, in contradistinction, that, because no objections were made to Officer Cox’ testimony relative to the seized substance, and because counsel for defendant had stipulated to the contents of the laboratory report, the State sustained its burden of establishing beyond a reasonable doubt that the substance possessed by defendant was heroin.

Defendant submits that People v. Resketo (1st Dist. 1972), 3 Ill.App. 3d 633, 279 N.E.2d 432, is determinative of the issue presented upon this appeal. In Resketo, an arresting officer, acting pursuant to a search warrant, found defendant in possession of a vial containing white powder, which was subsequently transported to a crime laboratory. At trial, the prosecutor stated for the record, after having given an erroneous case number, that "one plastic container containing .34 grams of white powder subjected to various chemical identity tests, determined to be amphetamines, a dangerous drug. * « * This is the defendant you arrested?” (Resketo, supra, at page 634.) To this last question, the arresting officer answered in the affirmative. In reversing defendant’s conviction and remanding the cause for a new trial, the Resketo court held that there was a complete lack of proof that the substance found by the arresting officer was actually the same material which had been subjected to the chemical tests. In so holding, the court found that there was no evidence presented with respect to whom the vial was delivered, no evidence of its condition when delivered, and no evidence as to which laboratory the substance was delivered or that it ever reached the Chicago Police Department crime laboratory.

The State, on the other hand, contends that People v. Polk (1960), 19 Ill.2d 310, 167 N.E.2d 185, an unlawful sale of narcotics case, should control our determination here. In Polk, an arresting officer testified that a glassine envelope introduced into evidence, which he identified by his initials, contained a white powder, and that after he had received the envelope from the defendant, he had initialed it, inventoried it at the detective bureau, and delivered it to a crime laboratory for analysis. A stipulation was then entered into by both defendant and the State; the stipulation was:

“ ‘[I]f Daniel Dragel were called to testify and sworn, he would testify that he is a qualified chemist, a member of the Chicago Police Scientific Crime Detection Laboratory, and he examined the white powder, the substance that was found in the glassine envelope that was referred to here in the testimony as People’s exhibit 3 for identification, that he examined it and found a quantity of white powder, 1.53 grams, that it was subjected to various chemical identity tests and the results are as follows: that that exhibit is diacetyl morphine hydro-chloride, commonly referred to as heroin, and that the unconsumed portion of that exhibit is presently here in court.’ ” Polk, supra, at page 313.

Our supreme court in Polk held that the stipulation had the effect of eliminating proof of the continuity of possession, and that the evidence, together with the stipulation, was sufficient to establish the corpus delicti of the unlawful sale of narcotics. The court stated at page 315 in Polk:

“While proof of continuity of possession may be necessary under certain circumstances, it has no application here. The stipulation had the effect of eliminating proof which otherwise might have been required. The law is well established that an accused may, by stipulation, waive the necessity of proof of all or part of the case which the People have alleged against him. Having done so, he cannot complain of the evidence which he has stipulated into the record. People v. Pierce, 387 Ill. 608; People v. Malin, 372 Ill. 422.”

A stipulation has been defined by Illinois Law and Practice (34 I.L.P. Stipulations, sec. 1) as an agreement between parties or their attorneys with respect to business before a court, and courts look with favor upon stipulations designed to simplify, shorten, or settle litigation. (34 I.L.P., supra.) With respect to evidence, it has been said, “* * * stipulations relating to evidence should be construed to ascertain and give effect to the intention of the parties, and they should be broadly construed in the furtherance of justice. Such stipulations are binding and conclusive on the parties.” (34 I.L.P., supra, at sec. 7.) Moreover, proof of the stipulated facts is unnecessary, because the stipulation is substituted for proof and dispenses with evidence. 34 I.L.P., supra, at sec. 8.

We find upon a reading of the record presented here that it was clearly the intention of the parties that the contents of the laboratory report be the subject of their agreement; thus, under the stated rules, proof of the stipulated facts was dispensed with. The dispute raised on appeal with respect to the colors of the powder — whether it was tan or white — is, in our opinion, without significance, based upon all the attendant circumstances involved herein. The laboratory report referred to heroin; Officer Cox testified regarding the substance heroin; and indeed, defense counsel, in his cross-examination of Cox, himself referred to heroin as the substance allegedly within his client’s possession.

We further find that defendant’s reliance upon People v. Resketo is misplaced. First of all, there was no stipulation to the contents of the laboratory report made by defense counsel in Resketo; thus, the case is clearly distinguishable from the matter at hand on that ground. Moreover, the Resketo court found a complete lack of proof that the substance found by the arresting officer was actually the same material which had been subjected to chemical tests; we do not find, upon a reading of the record, that the same circumstances regarding proof obtains in the case at bar.

For these reasons, then, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

HAYES, P. J., and LEIGHTON, J., concur.

       We note that in the court below defendant’s counsel did not object to any testimony attempting to establish that the substance was heroin.


author: Mr. JUSTICE DOWNING.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael McDaniel, Defendant-Appellant.
    (No. 59103;
    First District (2nd Division)
    May 14, 1974.

      James J. Doherty, Public Defender, of Chicago (S. K. Horn and George L. Lincoln, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE DOWNING.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Francis Bastien, Defendant-Appellant.
    (No. 59181;
    First District (2nd Division)
    May 14, 1974.
    Jerome Rotenberg, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Edna Selan Epstein, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

STAMOS, J., took no part.


author: Mr. JUSTICE McGLOON.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Horne, Defendant-Appellant.
    (No. 58596;
    First District (3rd Division)
    May 16, 1974.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Opinion by

Mr. JUSTICE McGLOON.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Woods, Defendant-Appellant.
    (No. 58788;
    First District (3rd Division)
    May 16, 1974.

      James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.

DEMPSEY, J., took no part.


author: Mr. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Walter Semma, Defendant-Appellant.
    (No. 59044;
    First District (3rd Division)
    May 16, 1974.
    Paul Bradley, Robert E. Davison, and P. Kay Adrian, of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The defendant Walter Semma was found guilty of attempt burglary by a jury and was sentenced to a minimum of 1 year and a maximum of 14 years in prison. He contends that the State did not prove the intent necessary to commit attempt burglary, that the trial judge improperly ruled that evidence of prior convictions could be used to impeach his testimony, and that the sentence was excessive under section 8 — 4(c) of the Criminal Code, as amended January 1, 1973 (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 8 — 4(c)).

The State admits that the defendant’s sentence should be reduced to 1 to 10 years pursuant to section 5 — 8—1 of the Unified Code of Corrections, but disagrees that it should be further reduced by reason of section 8 — 4(c) of the Criminal Code.

Semma was arrested on April 1,1972, in the back yard of the residence of Julietta Miller, 5654 Wilson Avenue, Chicago, At the trial, Mrs. Miller testified that she was alone in her house on the evening of April 1st; she was ill in bed and the lights were not on. At about 8:30 P.M., she heard the doorbell ring. Without turning on any lights, she looked out a window and saw Semma on the steps. She watched him as he went down the steps and walked to the house next door. Watching from different windows in her house, she saw him walk down the alley between her house and her neighbor’s house, go into her neighbor’s yard, come into her back yard, climb on her fence and try to open the bedroom window and the back porch window of the house next door. He then came to her kitchen door and threw himself against it. While he was at the door, Mrs. Miller called the police. Upon returning to the kitchen, she saw that Semma was breaking the glass in the door near the door handle. As she ran to telephone the police again, she saw that they had already arrived. She directed them to her back yard. Going back into the kitchen, she saw Semma walk down the back stairs and stand behind a tree. When the police entered the yard, he stepped out from behind the tree and was arrested.

The offense of burglary consists of entering, with or without force, any dwelling or other building, either in the daytime or the nighttime, with intent to commit a felony or theft. (Ill. Rev. Stat. 1971, ch. 38, par. 19 — 1.) While intent cannot be implied as a matter of law, criminal intent may be shown by circumstantial evidence. (People v. Soznowski (1961), 22 Ill.2d 540, 177 N.E.2d 146.) In determining intent, all of the facts and circumstances of the case may be considered including the words and actions of the accused. (People v. Maffioli (1950), 406 Ill. 315, 94 N.E.2d 191.) Where there are no inconsistent circumstances, theft may be inferred as the purpose of breaking and entering a building containing personal property that could be the subject of larceny. People v. Johnson (1963), 28 Ill.2d 441, 192 N.E.2d 864.

Semma tiled to break down the kitchen door and then broke the glass near the handle of that door. There were no lights on in the house and when he had rung the doorbell, no one answered so that the house appeared to be unoccupied. There being no inconsistent circumstances, the facts support the inference that he was attempting to enter the house with the intent to commit theft.

The trial court considered Semma’s pre-trial motion to disallow evidence of his four prior convictions if he testified. The convictions were for a burglary in 1942 with release from prison in 1955, an attempt burglary in 1960 with release on parole in 1964, and two robberies in 1965. The court ruled that the conviction for burglary was too remote but that the other three would be admissible for impeachment purposes if Semma testified.

Semma did not testify at the trial and therefore evidence of the prior convictions was not received. He now asserts that the judge’s decision to permit the introduction of the prior attempt burglary convictions prejudiced him by causing him not to testify.

This issue is raised for the first time on appeal. No assertion of error based on the admissibility of his prior convictions was made in his post-trial motion and therefore the issue has been waived. (People v. Hairston (1970), 46 Ill.2d 348, 263 N.E.2d 840, cert. denied, 402 U.S. 972 (1971); People v. Landry (1970), 123 Ill.App.2d 86, 259 N.E.2d 604.) Furthermore, the trial court’s decision was not improper under the guidelines set out in People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695.

The defendant’s final contention, that he was improperly sentenced according to the provisions of section 8 — 4(c) of the Criminal Code (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 8 — 4(c)) was decided adversely to his position in People v. Ashford (1974), 17 Ill.App.3d 592, 308 N.E.2d 271. He asserts that he should have been sentenced according to section 8 — 4(c)(4) rather than section 8 — 4(c)(3). He cites as authority the case of People v. Scott (1973), 14 Ill.App.3d 211, 302 N.E.2d 146, which held that both section 8 — 4(c)(3) and 8 — 4(c)(4) applied to the defendant Scott and that he was therefore entitled to the application of the provision which provided the lesser sentence.

In Ashford this court disagreed with the holding in People v. Scott and held that section 8 — 4(c) was ambiguous and had to be construed so as to avoid the ambiguity. This court held that the proper construction of section 8 — 4(c) was that all offenses covered by section 8 — 4 (c)(3) were excluded from the application of section 8 — 4(c) (4).

Under our construction of section 8 — 4(c), the offense of attempt burglary would fall only under section 8 — 4(c)(3), the section which the trial court applied in this case.

The sentence of the defendant will be reduced in accordance with section 5 — 8—1 of the Unified Code of Corrections to a minimum of 1 year and a maximum of 10 years.

Affirmed as modified.

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


text:
    The People of the State of Illinois, Respondent-Appellee, v. Joseph Gaynor, Petitioner-Appellant.
    (No. 59550;
    First District (3rd Division)
    May 16, 1974.
   PER CURIAM.

MEJDA, J., took no part.

Paul Bradley and Margaret Maxwell, both of the Office of State Appellate Defender, of Chicago, for appellant.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Dorothy B. Johnson, Assistant State’s Attorneys, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Evans, Defendant-Appellant.
    (No. 59618;
    First District (3rd Division)
    May 16, 1974.
    Meyer Weinstein and Samuel E. Hirsch, both of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and William F. Linkul, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

McNAMARA, J., took no part.