author: Mr. JUSTICE CARTER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Sharos, Defendant-Appellant.
    (No. 73-421;
    Fifth District
    November 27, 1974.
    Meyer and Kaucher, of Belleville, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Richard Aguirre, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

This is an appeal from a conviction for unlawful delivery of a controlled substance. The trial was without a jury.

On March 15, 1973, appellant was arrested for delivery of a controlled substance, which took place on August 30, 1972. The substance was LSD, and it was sold to an Illinois Eureau of Investigation agent. On March 16, the day after his arrest, appellant was released on bond. On March 21, a preliminary hearing was held and appellant was bound over to the grand jury. On March 27, appellant filed a demand for a speedy trial, and on the next day, March 28, he filed a motion for discovery. On April 6 an indictment was returned, and on April 19 appellant was arraigned and pled not guilty, and his release on band was still in effect.

The appellant’s case was called for trial on May 23, but a continuance was granted because the State had not complied with the discovery motion. Two days later, on May 25, the State did comply with the discovery motion, but the trial had already been continued until September 13. On that date, the appellant appeared and filed a motion for discharge under section 103 — 5(b) of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 103 — 5(b)). The judge who heard the motion for discharge made a finding that the delay was not occasioned by the appellant but that the 160-day period commenced from the date of arraignment and not from the date of demand. The motion for discharge having been denied, the trial was begun 6 days later on September 19.

This case presents a single issue, namely, should appellant have been discharged because he was not tried within 160 days of his formal written demand for a speedy trial. We hold that his motion for discharge should have been granted by the trial court.

In furtherance of the constitutional requirements contained in both the Federal and Illinois constitutions, section 103 — 5(b) provides that: “Every person on bail or recognizance shall be tried by the court having jurisdiction within 160 days from the date defendant demands trial unless delay is occasioned by the defendant * *

Appellant maintains and the State concedes on appeal that the statute commenced to run from the date of demand, March 27, 1973. The State concedes that the date of arraignment was not the proper beginning point for computation of the 160-day period. We agree. This issue is thus narrowed to the single question of whether or not defendant’s motion for continuance on May 23 was a delay “occasioned by the defendant” within the meaning of section 103 — 5. If it was not such a delay, then defendant’s motion of September 13 for discharge should have been granted, because by that date 170 days had expired from the date of the demand. If appellant’s motion for continuance resulted in a delay “occasioned by the defendant,” then the court was correct in denying the motion and appellant was not denied a right to a speedy trial within the meaning of section 103 — 5.

The record discloses that the trial court which heard the motion for discharge on September 13 after an extensive hearing made the finding that “since the defendant’s motion for discovery had not been complied with on May 23, 1973, the continuance which was granted was not occasioned by the defendant.” It should be pointed out that the trial judge who on September 13 made the finding that the delay was not occasioned by the appellant but that the 160-day period ran from the date of arraignment was not the judge who heard the case and fixed sentence.

In People v. Scott (1973), 13 Ill.App.3d 620, 630, 301 N.E.2d 118, the court said: “All discovery motions are not intrinsically dilatory, therefore not every such motion automatically extends the period in which the defendant must be tried.” Continuing further the court said: “A motion may be simple and easily answered * * *. A discovery motion which the State can answer quickly would cause little or no delay; the State should not be permitted to use such a motion as an excuse to toll the statute implementing the constitutional right to a speedy trial.” In holding that the court had not abused its discretion, the court continued by saying: “The interpretation of the motion and of the availability of the required information, the reasonable time needed to answer and whether proposed objections are genuine or dilatory, should rest in the judgment of the trial court and its decision as to the accountability for the ensuing delay, if there is one, should be sustained unless it is clearly shown that the court’s discretion was abused.”

Since a motion for continuance was a logical sequence of the State’s failure to comply with discovery, since the request for discovery was not difficult to comply with, and since the State delayed more than a month and a half after an indictment was returned to comply with the motion, it is clear that the court did not abuse its discretion in finding that the delay was not occasioned by the appellant. Nevertheless, compliance was made in sufficient time to have had the trial long before the expiration of 160 days.

Though the trial court did not abuse its discretion in finding that the delay was not occasioned by the appellant, it was in error in measuring the 160 days from April 19, the date appellant was arraigned and pleaded. The period should have been measured from March 27, the date appellant filed his demand for a speedy trial. Both the appellant and the State agree that the 160-day period should have been measured from this date, and there is ample authority to support this contention. (People v. Ruczynski (1965), 33 Ill.2d 412, 211 N.E.2d 687; People v. McClure (1969), 106 Ill.App.2d 283, 246 N.E.2d 476; United States v. Marion (1971), 404 U.S. 307, 30 L.Ed.2d 468, 92 S.Ct. 455.) Furthermore, the plain reading of section 103 — 5(b) leads to the conclusion that a person may demand a speedy ferial as soon as he is placed on bail or recognizance. Since in the instant case this demand was made more than 160 days before the date of the trial and the delay was not occasioned by the appellant, the appellant must be discharged.

The judgment of the Circuit Court of St. Clair County is reversed.

Reversed.

EBERSPACHER and CREBS, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE MEJDA

license: Public Domain

text:
    Estate of Esther Z. Callner, deceased, Plaintiff-Appellant, v. American National Bank & Trust Company of Chicago, Trustee, et al., Defendants-Appellees.
    (No. 59167;
    First District (3rd Division)
    November 7, 1974.
    Jerrold M. Facktor & Assoc., Ltd., of Chicago, for appellant.

      Myron Lieberman, Isidoro Berkman, and David C. Roston, all of Chicago (Lieberman, Levy, Baron & Stone, Ltd., of counsel), for appellees.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff, as administrator de bonis non with will annexed, of the estate of Esther Z. Callner, deceased, filed an amended complaint in the Probate Division of the Circuit Court of Cook County against defendants as trustees of two inter vivos trusts created by decedent to compel apportionment and contribution toward the Federal estate tax paid on decedent’s estate. Defendants filed an answer and moved for summary judgment. No affidavits were filed either in support or in opposition to the motion. Summary judgment was entered for defendants, and plaintiff appeals.

The issues presented for review are (1) whether the trust assets are chargeable with a proportionate share of the total Federal estate tax, and (2) whether summary judgment for defendants was proper.

On February 10, 1954 and January 1, 1957, Esther Z. Callner created two almost identical irrevocable inter vivos trusts. American National Bank and Milton Callner were named as trustees. Max Petacque and Henry Lava, successor trustees to the individual trustee, and American National Bank, as trustee, are the defendants herein. Decedent retained a life estate in each trust. Each trust named the same beneficiaries. Thereafter, on August 26, 1965, decedent executed a last will and testament which was admitted to probate upon decedent’s demise on April 15, 1969. The will expressly stated that no provision was made therein for the trust beneficiaries because of the previous provision made in the trusts. Each of the trust agreements contains the following concerning estate taxes:

“In the event any inheritance, estate or succession taxes or duties shall be levied or assessed because of the death of the Grantor, with respect to any of the property transferred in trust, or the transfer thereof under this Agreement, or upon the right to receive the same, the Trustees hereunder are expressly authorized to pay any and all such taxes or duties as they deem fairly allocable to the trust property then in their hands as Trustees hereunder, taking into consideration all of the property of the Grantor included in her adjusted gross taxable estate. The decision of the Trustees with respect to the allocated part of any such taxes payable out of this trust estate shall be conclusive and binding upon all persons concerned.”

The first article of the last will and testament provides:

“Article First: I direct that my Executors pay out of the principal of my estate all of my just debts, funeral expenses and costs of administration; and to pay out of the principal of my Residuary ... Estate, or to make deposits therefrom to secure such payments, .all estate, inheritance, transfer and succession taxes including any interest and penalties thereon, which may be assessed in any way by reason of my death, and I hereby waive on behalf of my estate any right to recover from any person, including any beneficiary of insurance on my life, any part of such taxes so paid.”

Plaintiff alleged in the amended complaint that the trust assets were included in decedent’s estate for Federal estate tax purposes and that the said tax liability was satisfied pursuant to the provisions of decedent’s will from the residue of the estate.

I.

Plaintiff maintains that the defendants are under a legal obligation, notwithstanding the first article of decedent’s will, to contribute to the payment of the Federal estate tax in direct proportion as to gross value which the trust assets bear to the entire taxable estate. It is argued that the decedent’s intention to effect this result is evidenced by the following facts: (1) the primary beneficiary of the trusts was not named in the will; (2) the trustees were given separate powers to pay trust taxes; and (3) since the trusts were irrevocable and created prior to the execution of the will, the decedent considered the documents as separate and distinct and therefore did not intend to waive recovery of the estate taxes paid upon trust assets. Plaintiff further argues that under the circumstances in the instant case, equitable apportionment should be imposed.

Defendants rely upon, as plaintiff seeks to distinguish, the holding in In re Estate of Wheeler (1965), 65 Ill.App.2d 201, 213 N.E.2d 35. In that case the testator, prior to the execution of his will, created a revocable inter vivos trust, the corpus of which, by the terms of the trust, vested in one Owens upon the death of the settlor. Subsequent to the creation of that trust, the decedent executed a will which provided, in language almost identical to that in the instant case, that all taxes were to be paid out of the principal of his estate and that the right to recover taxes so paid was waived. The recipient of the corpus petitioned the court to compel the executor to pay the Illinois inheritance tax assessed on the trust property. Although the specific legatees alleged in their answer that the assets of the estate were insufficient to pay in full the specific bequests and that the residuary legatees would receive nothing if the executor was compelled to satisfy the tax liability, the court ordered the executor to pay the inheritance tax. In Wheeler, this court held that a testator may shift payment of taxes and that his intention to do so, if indicated by appropriate language in his will, is controlling. We stated, “The intention must be ascertained from the language of the will itself and where the language on its face has a clear and unmistakable meaning, that meaning will be taken as the expression of his intention.” The court further stated that the language “all * * * taxes * * * assessed * 4 4 in any way by reason of my death * * *” was all inclusive and clearly expressed the intention of the testator.

Plaintiff seeks to distinguish Wheeler from the case before us in that in the former the trust was revocable with full power retained in the grantor to assign, revoke, alter or amend the provisions, whereas in the instant case the trusts are irrevocable and the assets had many years before passed from the testator’s control. However, we find no compelling reason to justify the application of a different rule even in light of this factual difference. In both Wheeler and the instant case, the testators in their wills provided for the payment of all taxes assessed in any way by reason of their deaths and included a waiver of recovery as to any person for any part of such taxes so paid. The fact that the testator did or did not retain control of certain nonprobate assets until death is not relevant. The significant fact is that the testator, by appropriate language in her will, shifted the burden of the estate taxes upon the property passing through her will.

Plaintiff maintains that the testator’s intention should be inferred not only from the terms of her will but also from the fact that the trustees were “authorized” to pay any tax liability assessed from the corpus of the trusts. We disagree. Without discussing the significance of the trust provisions, which merely authorized but did not compel payment, we reiterate that the intention of the testator must be ascertained from the language of the will itself. Only when that document is unclear or the intention is ambiguous should inquiry be made outside the four comers of the will.

Plaintiff, in support of her argument for equitable apportionment, refers us to our recent opinion in In re Estate of Van Duser (1974), 19 Ill.App.3d 1022, 313 N.E.2d 228. However, that case is clearly distinguishable on its facts. There the decedent died intestate. Applying equitable apportionment, we held at page 1024, that “logic, reason, and simple justice dictate that, unless there is a contrary intention expressed by the decedent, as in a will in testate estates, the doctrine of equitable contribution should be invoked as to non-probate assets to fairly distribute the Federal estate tax burden.” (Emphasis supplied.)

II.

Plaintiff contends that there was no basis for granting a summary judgment since questions of fact or decedent’s intentions remained open.

It has been held that “where the record shows there is no triable issue of fact, a summary judgment will be granted.” (Tuohey v. Yellow Cab Co. (1962), 33 Ill.App.2d 180, 183, 180 N.E.2d 691; see also Miller v. Owens-Illinois Glass Co. (1964), 48 Ill.App.2d 412, 416, 199 N.E.2d 300.) In the instant case, tire first article of decedent’s will clearly and unambiguously provided that all estate taxes should be paid out of the principal of her estate, and expressly waived any right to recover from any person any part of such taxes so paid. There being no genuine issue of fact presented to the trial court, summary judgment for the defendants was proper.

The judgment of the trial court is affirmed.

Affirmed.

McNAMARA, P. J„ and DEMPSEY, J., concur.


author: Mr. JUSTICE CREBS

text:
    James Snyder, Plaintiff-Appellee, v. Hamel Service, Inc., Defendant-Appellant.
    (No. 73-313;
    Fifth District
    November 26, 1974.

      Hoagland, Maucker, Bernard & Almeter, of Alton, for appellant.
    McGrady, Madden & McGrady, of GiHespie, for appeUee.
   Mr. JUSTICE CREBS

deHvered the opinion of the court:

This is an appeal from a jury verdict in the Circuit Court of Madison County.

Plaintiff, James Snyder, was the owner of a 1966 White Tractor diesel with a Cummins NH220 engine and flat-bed trader, purchased in May 1970 for $4,200. On November 16, 1970, the engine “broke down” and the truck was taken to defendant, Hamel Service, Inc., for repairs. Plaintiff testified that he wanted a complete “rebuild,” but apparently meant an “in-frame overhaul” which was what was performed. The trouble was diagnosed as a “pulled” #4 liner, parts having dropped into the oilpan. Plaintiff obtained a list of the new parts needed from Porter, the defendant’s mechanic, and ordered them from the factory. Plaintiff then assisted Porter in the overhaul by washing parts and handing them to Porter, but did no technical work and claimed no expertise. Some parts were merely cleaned and replaced. Porter testified that he asked plaintiff if he wanted the rod “magnafluxed,” a process by which cracks or other structural weaknesses can be detected. Porter testified that he told plaintiff that magnafluxing would cause a delay and cost $25 and that plaintiff said that he didn’t want to spend the money. On rebuttal, plaintiff testified that the decision about magnafluxing was left up to Porter based on necessity, not cost. The rod was placed back in the engine without magnafluxing.

The engine was started and shortly thereafter starting “missing and pecking.” Adjustments were made and plaintiff took it on a trip. Several more trips were made and the truck was also taken to a Cummins dealer where adjustments were made. On February 18, 1971, the engine “blew up” in Kansas and the truck was towed back to Hamel. The cause of the blow up was the breaking of the #4 rod. The vehicle was driven 12,000 miles between November 1970 and February 1971. The truck remained at Hamel until it was repossessed by the bank.

Plaintiff filed a three-count complaint. The first count was based on negfigence and the second count on breach of warranty. The third count was dismissed at trial. Defendant filed a counterclaim for $870.11 against plaintiff for the amount owed the defendant for repairs.

The record in this case presents a difficult situation. Some of the testimony given by experts is quite technical. The owner of Hamel testified that he told plaintiff that he would not warrant parts provided by another dealer and that the plaintiff agreed to this. On the charge slip for the original rebuild-overhaul there is a handwritten guarantee of labor. Testimony was provided by several experts concerning the possible causes for the breaking of the #4 rod. Much of this testimony was in conflict as to whether the rod was "stretched” and whether an engine in that condition could run 12,000 miles.

There was evidence that “over-reving” the engine would cause it to fly apart. Also there was testimony that the rod should have been magnafluxed and that magnafluxing probably would have prevented the replacement of a faulty rod. The case was submitted to the jury and the jury returned a verdict in favor of the plaintiff for $5900 and the court ordered a remittitur of $740. After a denial of defendant’s motion for a new trial this appeal followed.

Appellant’s initial contention is that a new trial should have been granted because the verdict was against the manifest weight of the evidence.

It is undisputed that the rod in question had not been magnafluxed. Also, the evidence indicates that any defect in the rod would have been detected had the rod been magnafluxed.

Although there is conflicting evidence, there was ample basis for the jury finding in favor of the plaintiff; thus, we cannot say the verdict of the jury was against the manifest weight of the evidence.

The appellant next alleges that a new trial should have been granted because the verdict was grossly excessive and was the result of passion. The appellant refers us to Panepinto v. Morrison Hotel, Inc., 71 Ill.App.2d 319, 218 N.E.2d 880, as holding that the trial court must order a new trial if the verdict is so excessive as to indicate that the jury was under the influence of passion, prejudice and sympathy and that the offering of a remittitur in that circumstance does not remove the error.

In Panepinto the court felt that the verdict could well have been influenced by incompetent evidence erroneously admitted or by erroneous instruction. In that case the court felt that a remittitur could not remove the error. However, in Lau v. West Towns Bus Co., 16 Ill.2d 442, 158 N.E.2d 63, the court held that even though the verdict might well be in excess of the amount which would have been allowed if they had heard the evidence and made the original determination, still it was not so excessive as to show passion or prejudice.

Here the amount of the remittitur was not large in proportion to the amount of the verdict.

The jury returned a verdict for $5900 and the court ordered a remittitur of $740. The plaintiff operated under a lease with Riss International and during the first 23 days of the lease he earned $1798.71 and had incurred expenses of $472, leaving net earnings of $1326.36, He would have had approximately the same amount of work for the 46 days which passed between the day the engine blew up until the plaintiff found new work. The plaintiff alleged therefore that he lost earnings in the amount of $2652.72.

Evidence was introduced indicating that the cost of a rebuilt engine was $3400; other estimates for rebuilt engines started at $2500. Also there was testimony showing that necessary repairs on the plaintiff’s truck would cost $4200. The plaintiff sought damages in the amount of $6600. Evidence of a $2652.72 loss in earnings coupled with damages to the vehicle of from $2500 to $4200 provided a sufficient basis for an award of $5160.

Judgment of the Circuit Court of Madison County is affirmed.

EBERSPACHER and CARTER, JJ., concur.


author: Mr. JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Earl Miller, Defendant-Appellant.
    (No. 73-267;
    Fifth District
    November 20, 1974.

      Robert E. Farrell and Michael J. Rosborough, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Howard L. Hood, State’s Attorney, of Murphysboro, and John T. Bowman and Gary T. Miller, Senior Law Students, of Carbondale, for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the defendant, Earl Miller, from a judgment entered, on a jury verdict, by the circuit court of Jackson County against him for the offense of deceptive practice and the imposition of a sentence of one year with the department of corrections.

The information charging the defendant with deceptive practice only alleged that he had been involved with the delivery of 1 check, a check for $99.17 drawn on the Carterville State and Savings Bank. This check was designated as people’s exhibit no. 2. Due to the fact that we are confronted with issues involving the admissibility of certain evidence and the sufficiency of the evidence it becomes necessary to examine the evidence presented in the trial court.

The State’s first witness, Herbert Odum, testified that he and his .son, Ronald Odum, were partners in a Lafayette Radio Store located in Carbondale, that he saw the defendant in the store, around 3 P.M. (on February 8, 1973), witii a young man represented to be defendant’s son-in-law, that he did not wait on the defendant, but did examine a check (People’s exhibit 1), which was accepted in return for a “Walkie-Talkie”, that pursuant to his son’s request the defendant supplied his social security number and the defendant’s “son-in-law” supplied his driver’s license number which were written on the check, and that the defendant left the store with the “Walkie-Talkie,” which was eventually returned by the police. The witness further testified that the check (people’s exhibit 1) was presented for payment and that it was subsequently returned with a notation that no such account existed, that about 5:30 P.M. (February 8, 1974) the defendant called the store on the telephone and talked to the witness’ wife, Rosemary Odum, “saying that he was going to send his son-in-law back in,” that tire young man, purported to be defendant’s “son-in-law,” returned to the store with a check with defendant’s signature on it; that either the witness’ son or wife handled this transaction, that he saw his wife fill in “Lafayette” on that check (people’s exhibit 2), that the check (people’s exhibit 2) was tendered in exchange for another “Walkie-Talkie,” and that no payment was received as the check (people’s exhibit 2) was also returned marked no such account. On cross-examination the witness stated that his wife filled in the words “Lafayette Radio” and he was “pretty sure” that she filled in the amount of the second check, and that the check (people’s exhibit 2) was signed with the defendant’s name before it was brought into the store; however, he stated that he did not “know for a fact” that the defendant signed the second check (people’s exhibit 2).

The next witness called by tire State, Rosemary Odum, testified that she helped her husband at Lafayette Radio, that she saw the defendant and a younger boy enter the store on February 8, 1973, around 4 P.M. and buy a walkie-talkie, that payment for the walkie-talkie was in the form of a check (people’s exhibit 1), that she saw the defendant hand over the check (people’s exhibit 1), that she received a telephone call from the defendant, who said he would send the “boy” in to pick up another walkie-talkie, that the defendant said “he would sign the check and send the boy for it,” and that she filled out the words “Lafayette Radio” and the amount on the check (people’s exhibit 2), which was signed when she received it. On cross-examination the witness testified that she was not positive that the person she had talked to on the telephone was the defendant, that she did not fill in the words “Lafayette Radio,” but that she did fill in the amounts on the second check (people’s exhibit 2), that she did not see the defendant put his name on the check (people’s exhibit 2), and that she did not see the first check signed (people’s exhibit 1).

The State then called Ronald Odum, who testified that he was a partner in tire Lafayette Store, that the defendant came into the store with a younger boy about 10 A.M., looked at walkie-talkies, and returned abut 1 or 2 P.M. and purchased a walkie-talkie, that the defendant filled in all portions of the check (people’s exhibit 1), that he believed that the defendant removed a single check from his pocket, that the only identification that the defendant had was his social security card which' he, the witness, “took down” together with the number from the driver’s license of the younger man who accompanied the defendant, that the defendant left the store with the merchandise, and that he, the witness, was not present when the second set was sold. On cross-examination the witness testified that he watched the defendant fill out the check (people’s exhibit 1), that the witness had selected the defendant’s picture from a group of photographs shown to him by the police, and that he had nothing to do with the second check.

The last State’s witness was Lloyd C. Henderson, a vice-president of the Carterville State and Savings Bank. He identified people’s exhibits one and two as counter checks from his bank. He testified that the checks were presented for payment but were not honored because the account number on the checks did not exist and the checking account record revealed no depositor by the name of Earl Miller. On cross-examination the witness testified that he did not know who signed the check (people’s exhibit 2).

The State rested, and the trial court recessed. When the court reconvened the State moved to reopen the case to admit people’s exhibits nos. 1 and 2 into evidence. The defense objected, but was overruled. The defense objected to exhibit no. 1, as not being “of a probative nature as to whether or not the second check (which was of the amount charged in the information) was illegally and criminally issued and passed by this defendant.” No objection was made to people’s exhibit no. 2. The trial court overruled the defense counsel’s objection to people’s exhibit no. 1 and submitted both exhibits (people’s exhibits 1 and 2) into evidence. The State than again rested.

Thereafter defense counsel made a motion for a directed verdict on the ground that there was no proof that the defendant issued the check (people’s exhibit 2) described in the information. Defense counsel further alleged that it was improper to use the first check (people’s exhibit 1) as a vehicle of tying the defendant to the second check (people’s exhibit 2). After the State’s argument in rebuttal, the trial court denied the motion. The defendant rested without presenting any evidence.

In this appeal defendant raised three issues: first, that the trial court erred in allowing the jury to take people’s exhibits nos. 1 and 2 into the jury room, secondly, that people’s exhibit no. 1 was erroneously admitted, and lastly, that the trial court erred in denying defendant’s motion for a directed verdict at the close of the State’s case. Due to the interrelationship of these contentions we will address ourselves first to the admissibility of people’s exhibit no. 1.

The defendant contends that people’s exhibit no. 1 evidenced the commission of another crime and, therefore, its relevancy “was completely outweighed by the prejudicial effect it had on the jury in view of the State’s total failure to present any direct and concrete evidence linking the defendant with the alleged passage of the second check.” The defendant cites two cases, People v. Cage, 34 Ill.2d 530, 216 N.E.2d 805, and People v. Spencer, 7 Ill.App.3d 1017, 288 N.E.2d 612, in support of the above proposition. In each of the cited cases the respective court made three determinations: (1) that as a general rule evidence of other crimes is inadmissible to prove that a defendant committed the crime for which he is being tried, (2) that such evidence may, however, be admitted when its relevancy in placing the defendant in proximity to the time and place, aiding or establishing identity, or tending to prove design, motive or knowledge is so closely connected to the main issue as to justify admission, and (3) due to the facts there present the probative value was minimal in establishing any of the elements which would remove it from the exclusionary rule. As stated in People v. Spencer, 7 Ill.App.3d 1017, 1021, 288 N.E.2d 612, 615:

“The facts of each case must be examined to determine whether the evidence * * * is sufficiently relevant to prove the accused guilty of the offense for which he is being tried.”

Our review of the record in this case leads us to conclude that people’s exhibit no. 1 is so closely connected to the main issue as to outweigh its prejudicial effect and justify its admission into evidence. In the instant case the evidence of another crime, people’s exhibit no. 1, placed the defendant in the proximity to the time (February 8, 1973) and place (the Lafayette Radio Store) of the crime for which he was being tried, aided in establishing the identity of the defendant by (1) comparison of the handwriting on the two checks (people’s exhibits 1 and. 2) and (2) connecting the defendant with the party who passed the second check (people’s exhibit 2), and tended to show defendant’s knowledge of the delivery of the second check (people’s exhibit 2) by the fact that the checks were (1) both signed in defendant’s name, (2) consecutively numbered, (3) drawn on the same numbered account at the same bank, and (4) passed at the same location. We, therefore, hold that people’s exhibit no. 1 was properly admitted into evidence by the trial court.

The defendant’s contention that the trial court erred in denying his motion for a directed verdict was directly premised upon the inadmissibility of people’s exhibit no. 1. Having already determined the admissibility of people’s exhibit no. 1, we will address ourselves to the issue of whether the evidence presented by the State was sufficient to sustain a verdict of guilty. In People v. Bernette, 30 Ill.2d 359, 367, 197 N.E.2d 436, 441, our supreme court stated:

“# # # a conviction may be sustained upon circumstantial evidence as well as direct evidence, (People v. Russell, 17 Ill.2d 328, [161 N.E.2d 309]) it being necessary only that the proof of circumstances must be of a conclusive nature and tenancy leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed tire crime. (People v. Magnafichi, 9 Ill.2d 169, [137 N.E.2d 256]; People v. Grizzel, 382 Ill. 11, [46 N.E.2d 78].) The jury need not be satisfied beyond a reasonable doubt as to each link in tire chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfies the jury beyond a reasonable doubt of the accused’s guilt.”

The foregoing was quoted and relied upon in People v. Marino, 44 Ill.2d 562, 256 N.E.2d 770. See also People v. Helm, 10 Ill.App.3d 643, 295 N.E.2d 78; People v. Holt, 7 Ill.App.3d 646, 288 N.E.2d 245.

From our review of the entire record, which includes people’s exhibits nos. 1 and 2, we find that the circumstantial evidence presented in the trial court was of a sufficiently conclusive nature and tendancy to sustain a verdict of guilty. It is within the peculiar province of the jury to weigh the evidence and determine the facts and unless that decision is so contrary to the evidence — so unreasonable, improbable or unsatisfactory so that we have reasonable doubt — the decision of the jury will not be disturbed. (People v. Smith, 5 Ill.App.3d 648, 283 N.E.2d 727.) .Consequently, we hold that the trial court did not err in overruling the defendant’s motion for a directed verdict.

The final contention to which the defendant directs our attention concerns the propriety of the jury taking exhibits nos. 1 and 2 into the jury room during their deliberations. The defendant concedes that a jury in a criminal trial is competent to make handwriting comparisons (Ill. Rev. Stat. 1971, ch. 51, par. 50; People v. Clark, 301 Ill. 428, 134 N.E. 95); however, he contends that it is reversible error to allow the jury to engage in a handwriting comparison for the first time in the jury room (People v. White, 365 Ill. 499, 6 N.E.2d 1015; People v. McElroy, 63 Ill.App.2d 403, 211 N.E.2d 444; People v. Harter, 4 Ill.App.3d 772, 282 N.E.2d 10).

In People v. White, 365 Ill. 499, 6 N.E.2d 1015, our supreme court held that it was prejudicial error to allow the jury to take exemplars of handwriting into the jury room for comparison. In White the exemplars were taken to the jury room over the objection of defense counsel. It is interesting to note, however, that the supreme court in White refused to entertain the defendant’s claim that interrogation of the jurors, by a witness, after a demonstration was improper on appeal since the defendant had not “properly preserved the alleged error for review.” (People v. White, 365 Ill. 499, 511.) In People v. McElroy, 63 Ill.App.2d 403, 211 N.E.2d 444, the appellate court held that the trial court did not abuse its discretion in denying the defendant’s motion to permit the jury to take exhibits into the jury room. In People v. Harter, 4 Ill.App.3d 772, 282 N.E.2d 10, the appellate court was confronted with the defendant’s allegation that his trial counsel was incompetent. The corut concluded that the defendant was deprived of substantial rights and should be granted a new trial. Thereafter the court noted that there were other trial errors which taken alone would not be grounds for reversal. It was subsequent to this qualifying statement that the court held that it was error to allow samples of handwriting to be taken to the jury room.

The defendant has not called our attention to any case which has reversed on the ground that an exhibit was improperly taken into the jury room where the defense counsel has not objected to the introduced exhibits being taken to the jury room in the trial court. On the other hand, tire State cites People v. Allen, 17 Ill.2d 55, 160 N.E.2d 818, for the proposition that a defendant must object at the proper time to preserve for review questions conceminug the taking of physical evidence into the jury room. In People v. Allen, our supreme court stated:

“Defendant objected at the trial to taking the screw driver into the jury room but raised no objection to sending the other exhibits in with the jury. The alleged error in taking in the other exhibits is therefore waived.” (17 Ill.App.2d 55, 62, 160 N.E.2d 818, 823.)

See also People v. Dixon, 75 Ill.App.2d 77, 221 N.E.2d 35.

In the instant case there was no objection to the taking of people’s exhibits into the jury room, in fact, reference was made to this possibility in the closing argument and a “word of warning” was added about the jury’s examination of the two exhibits: Failure to properly preserve the alleged error for review precludes the defendant from raising this issue on appeal.

In accordance with' the foregoing conclusions we affirm the judgment entered by the circuit court of Jackson County against the defendant for deceptive practice.

Judgment affirmed.

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

       Subsequently, the testimony regarding the telephone conversation between the witness’s wife and the defendant was objected to, and sustained, as hearsay. At that time, the trial court instructed the jury to disregard “anything that was heard between the wife of the witness and the defendant.”


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Bain, Defendant-Appellant.
    (No. 73-349;
    Fifth District
    November 8, 1974.
    Robert Farrell, of Mt. Vernon, and Allen L. Wiederer, of Chicago, both of State Appellate Defender’s Office, for appellant.

      Robert H. Rice, State’s Attorney, of Belleville (Clyde L. Kuehn, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of St. Clair County denying defendant’s pro se petition for post-conviction relief after an evidentiary hearing. The sole issue presented is whether the trial court committed reversible error in appointing the public defender’s office to represent defendant in these proceedings when the same officer had represented him on his original conviction, and when, after a previous appeal, the Supreme Court of Illinois had directed that counsel be appointed other than the public defender.

A full understanding of the issue requires a brief summary of its background. On October 8, 1965, defendant was convicted of burglary on his plea of guilty and he was sentenced to the penitentiary for a term of 1 to 10 years. On March 6, 1969, defendant filed his pro se petition alleging, among other things, incompetence of the court-appointed public defender who represented him at the time of his plea. The Circuit Court of St. Clair County dismissed this petition without an evidentiary hearing, but on appeal, and after the State confessed error, the Illinois Supreme Court, on January 27, 1971, reversed and remanded the cause and ordered that an evidentiary hearing be conducted and that counsel be appointed for defendant other than one from the public defender’s office. Not until January 14, 1972, was the case again called for hearing and then, on motion of the State, the petition was dismissed once again, this time on the grounds that defendant had been paroled and was no longer incarcerated. On appeal from this order we found that defendant’s parole had no bearing on his right to an evidentiary hearing (People v. Bain, 10 Ill.App.3d 363) and on March 8, 1973, we reversed the cause and remanded it with directions.

In compliance with our mandate the circuit court, on March 20, 1973, set the cause for a hearing and appointed an attorney from the Illinois Public Defender Project to represent defendant. When this attorney informed the court that he was unable to serve at the trial-court level the court then appointed the public defender from St. Clair County. This was the same public defender’s office that had represented defendant on his original conviction, but the individual attorney was different due to a change of personnel in the office. The cause then proceeded to a hearing and after presentation of evidence and arguments of counsel the petition was again dismissed. It is from this order of dismissal that the present appeal is taken.

Defendant contends that it is well established in Illinois that it is reversible error to appoint the public defender to represent a post-conviction petitioner when one of the issues raised in the petition is the competence of the same public defender’s office who represented defendant at the time of his conviction. (People v. Wallace, 14 Ill.App.3d 18; People v. Gray, 4 Ill.App.3d 934; People v. Brittain, 52 Ill.2d 91.) In addition, it is pointed out that the reappointment of the same public defender’s office was directly contrary to the previous mandate of the Supreme Court of Illinois, and that the failure of the circuit court to obey, such mandate in itself necessitates a reversal. People v. Bain, 10 Ill.App.3d 363.

The State does not quarrel with these principles but states that this court should be cognizant of the injustice to the people that would flow from a reversal. It is argued that defendant, at taxpayer’s expense, received the services of the most respected and competent criminal attorney in the county and that far more injustice would flow from another reversal than would be sustained by defendant by- such representation. This argument appears to rest on the premise that, in the State’s opinion, defendant could receive no better representation than now has been afforded him, that his cause is therefore hopeless, and that the taxpayers should not be subjected to the injustice of having to undergo any further expense in defendant’s behalf.

Such an argument begs the question. The issue here is not the competence of the public defender appointed to represent defendant in the post-conviction proceedings, but rather whether the appointment itself gave rise to a conflict of interest situation which was both prejudicial to defendant and unfair to counsel. As stated in People v. Gray, supra, trial counsel should not be placed in a position where he is required to pursue an advocatory role in support of an issue which would, if adjudged meritorious, reflect unfavorably upon the integrity of counsel’s own office; nor should an individual defendant be deprived of his right to .a full and complete assistance of counsel unencumbered by divided loyalties. As stated in People v. Smith, 37 Ill.2d 622, the rule is designed to prevent the inequities that might arise out of the natural inclination of a public defender’s office to protect its reputation by defending against the charge of incompetency while at the same time trying to perform its duty as an advocate to aid the petitioner in establishing the veracity of his charges.

In other words, the rationale of the rule is to avoid the conflict of interest inherent in the situation by recognizing it in advance and requiring the appointment of an attorney other than one from the same office alleged to have been previously incompetent. The present case is a prime exámple of the need and effectiveness of the rule. Had it been followed there would have been no need for this appeal nor. any reason for the State to attempt to argue the extraneous question of the competence of the second public defender.

Nine years have now passed since defendant filed his first petition. Twice it was dismissed without a hearing and both times the dismissal was reversed, once by the supreme court and once by this court. He spent 7 years in the penitentiary, and now on this third review the State would have us weigh the equities, contending that justice demands an affirmance. We cannot agree. Justice cannot be weighed in dollars and cents, nor in convenience to the State. No one could have been more diligent and persistent than defendant in endeavoring to exercise his right to purge himself of his conviction and its attendant stigma and disabilities. Without fault on his part he has struggled through a morass of legal entanglements, and he waits still to have a hearing in strict compliance with the mandate of the supreme court entered' more than 3% years ago. It is not for us nor the State to conjecture whether an attorney other than one from the public defenders office could do better pr worse, but it is time that defendant had the type of hearing to which he is entitled.

This court recently filed an opinion in the case of People v. Buckholz (No. 72-204). There the public defender of Madison County represented Buckholz at the time he entered a guilty plea in 1961. In 1971 the same office was appointed to assist the defendant with his petition for post-conviction relief although with a different attorney. In 1972 an amendment to the post-conviction petition was filed alleging for the first time that Buckholz’s trial counsel was incompetent. At the evidentiary hearing the court questioned Buckholz and Buckholz stated that he had no conflict with his present appointed counsel and that he absolutely wanted to keep that appointed counsel.

It is apparent that the factual situation of People v. Buckholz differs from the case at bar-. The court in Buckholz did not act in a manner contrary to the supreme court mandate and the petitioner in that case was satisfied with his appointed counsel on the post-conviction petition. Thus, we do not feel that our decision in Buckholz controls the result in the case at bar.

The judgment of the Circuit Court of St. Clair County is reversed and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael B. Quick, Defendant-Appellant.
    (No. 74-29;
    Fifth District
    November 22, 1974.
    Robert E. Farrell, of Mt. Vernon, and Lynn Sara Fraclcman, of Chicago, both of State Appellate Defender’s Office, for appellant.
    John H. Ward, State’s Attorney, of Taylorville, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendant, Michael B. Quick, was originally indicted for murder, but after protracted plea negotiations, this charge was dismissed and his plea of guilty to a complaint charging voluntary manslaughter was accepted by the Circuit Court of Christian County. Following the submission of a presentence report and an extensive hearing in aggravation and mitigation, the court imposed a sentence of 5 to 15 years in the penitentiary. The length of the sentence was not included in the plea negotiations. In this appeal defendant contends that the trial court erred in determining there was a factual basis for the plea contrary to Supreme Court Rule 402(c) (Ill. Rev. Stat., ch. 110A, par. 402(c)), and, in the alternative, it is argued that the sentence was excessive.

Using the language of the statute (Ill. Rev. Stat., ch. 38, par. 9 — 2(b)), the complaint charged that defendant committed the offense of voluntary manslaughter, stating that:

“* * * without lawful justification, [he] did knowingly kill John Young, by shooting him through the head with a gun and that at the time of the killing he believed the circumstances to be such, that if they existed, would justify or exonerate the killing, but his belief was unreasonable * *
The language of the statute is as follows:
“(b) A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such, that if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this Code, but his belief is unreasonable.”

Prior to accepting defendant’s plea the trial court admonished defendant relative to his constitutional rights, and over 70 pages of the record are devoted to a report of these proceedings. The court read the complaint to defendant and also the statute upon which it was based. He called attention to the fact that defendant was being charged with shooting the victim believing that under the circumstances he was justified, but that such belief was unreasonable. He was asked if he understood that, and he replied that he did. He was asked further if he understood under what circumstances a person may use force and what those circumstances were. Defendant replied, “Where you believe that you may be in great bodily harm.” The court then stated that the State was charging that even though he may have believed the circumstances justified the use of force, the force used by defendant was not justified and that, therefore, the killing constituted voluntary manslaughter. Defendant again admitted that he understood this and that it was clear in his mind. On further inquiry the defendant again admitted that the voluntary manslaughter to which he was pleading involved the unreasonable use of force, and that having been charged with murder and having negotiated a plea to voluntary manslaughter with the murder charge being dismissed, it would be quite remarkable if he did not understand what he was doing. The defendant also agreed to this.

Thereafter, at the specific request of the court that a factual basis be established for the plea, the State presented tire testimony of two police officers. Testifying from the facts related to them by defendant after his arrest and in his confession, they stated that defendant had known John Young for some time, that he had suggested to defendant that they could make a large sum of money in a scheme to sell stolen cigarettes, and that defendant was needed because he was a truck driver and could drive the truck. Defendant had been leery of the scheme but finally, on Young’s insistence, he agreed to go with him to the Rosebud Cafe in Pana where the truck was scheduled to arrive. Before leaving, however, defendant had a “certain feeling” similar to those he had experienced during his tours of duty in Viet Nam — that there would be danger — so he took a hand gun out of his own car and put it in his belt.

They drove to Pana in Young’s car and after sitting there for some time defendant became nervous and started to query Young about why the truck had not arrived and whether the whole scheme was “just a farce.” As he was so speaking, Young said, “Punk, you’re dead,” and reached for his pocket. Defendant thereupon automatically reacted as he had been trained to do in Viet Nam; he opened the car door on his side, pulled out his gun and as he rolled out of the car he shot once. When he got to his feet, he saw Young slumped over the steering wheel. He got back into the car to check his condition and determined that he was dead. When further investigation revealed that Young had not been armed he got scared and in a “state of shock” drove Young5s car back to the Viking Lounge in Decatur from where they had started. He then washed and left his gun and clothing at a girl friend’s. He told her what had happened and asked her to tell the police he had been with her. Later he returned to the car where the police had already discovered the body and he tried to talk to them, but no one would listen. Subsequently, while visiting another friend, he got a call informing him that the police wanted to see him, and he then voluntarily gave himself up. Both police officers stated that they believe defendant was telling the truth as he knew it.

On the completion of this testimony the court accepted defendant’s plea, finding that he was entering it knowingly and voluntarily, that he understood the consequences, and that there was a factual basis for the plea.

The case was then continued for a hearing in aggravation and mitigation which was even more lengthy, consuming an additional 700 pages or more of the record. In effect, this hearing went into almost as much detail as a full trial might have, calling attention to defendant’s excellent war record and endeavoring to explain away defendant’s precipitate actions by attributing them to his war training in jungle warfare. It is now argued in this appeal that since defendant’s reactions under the circumstances were automatic as he had been trained to act in Viet Nam, and since he genuinely believed that he acted in self-defense, the evidence was insufficient to prove that his actions were unreasonable, and, therefore, the court was in error in determining that there was a factual basis for the plea.

This argument misconstrues the issue. We are not here concerned with proof of guilt. Defendant has admitted his guilt, knowingly and understandingly. He has admitted killing a man motivated by the unreasonable belief that he was acting in self-defense. He chose not to stand trial on the charge of murder in exchange for his plea for voluntary manslaughter and a dismissal of the murder charge. He understood this, as did his counsel and the state’s attorney throughout the prolonged plea negotiations. It is only appellate counsel who would like to have the establishment of a factual basis for a plea transformed into a trial finding of guilt beyond a reasonable doubt.

The purpose behind the requirement that a court must determine a factual basis for a plea is to protect a defendant who is in the position of pleading voluntarily with an understanding of the charge but without realizing that his conduct does not actually fall within the charge. (McCarthy v. United States, 394 U.S. 459, 2 L.Ed.2d 418, 89 S.Ct. 1166.) Or, as we have stated in People v. Billops, 16 Ill.App.3d 892, there must be a determination that the facts fit the crime charged to prevent the possibility of defendant pleading guilty to a crime beyond the confines of his acts. Considering the question further in People v. Hudson, 7 Ill.App.3d 800, 803, we stated;

“The requirement of Rule 402(c) that there be a factual basis for the plea is met when it appears on the record that there is a basis for reasonably concluding that the defendant actually committed the acts with the intent (if any) required to constitute the offense to which the defendant is pleading guilty. It is not necessary that it appear on the record beyond a reasonable doubt or even by a preponderance of the evidence that the defendant committed the offense. (See ABA Standards Relating to Pleas of Guilty, Par. 1.6, approved Draft, 1968). All that is required to appear on the record is a basis upon which the judge could reasonably reach the conclusion that there is a connection between the defendant’s acts and the intent with which he acted and the acts and intent (if any) required to constitute the offense to which the defendant is pleading guilty.”

Also in point is the case of People v. Love, 6 Ill.App.3d 577, 581-82, wherein it is stated:

“* * * The determination of whether or not there is a factual basis for a plea is poles apart from a determination of whether or not after a full-blown trial the evidence will sustain a conviction or establish a defense not made or asserted during the [plea] proceedings. * * * There can be no question but what the exchange of a minimum of 7 years for manslaughter in lieu of a minimum of 14 years for murder and the dismissal of the murder indictment was considered by him and by the State’s Attorney, and by his counsel as a good bargain. They made it openly and voluntarily. * 6 ° We do not here consider a situation where either the trial court or this court weighs possible evidence or determines the innocence or guilt of the defendant. A plea of guilty voluntarily made precludes the necessity for proof. In the face of the unanimity of agreement between the State’s Attorney, defense counsel, and the defendant, we do not believe that any rule requires the trial court to go beyond this plea agreement honestly and fairly entered into.”

Applying the reasoning of these cases to the facts before us we find that the trial court fully complied with the requirements of Supreme Court Rule 402(c). The unequivocable and fully understood admission of defendant that he acted unreasonably, coupled with the testimony of the police officers relating the details of the crime as told to them by defendant, furnished a solid basis upon which the court could reasonably conclude that defendant’s acts could fall within the charge to which he pleaded guilty. We conclude that no error was committed by the trial court in accepting defendant’s plea of guilty to the offense of voluntary manslaughter.

Finally, defendant contends that his sentence was excessive in light of the nature of the offense and defendant’s background. However, the trial court took these matters into consideration and only after an extraordinarily lengthy hearing in aggravation and mitigation did he make his decision. The court even commented upon defendant’s fine military record and that his experience in jungle fighting may have led him into killing without thinking. Nonetheless, the court stated, defendant did take a human fife unnecessarily, and in view of the nature of the offense and all the circumstances involved he determined that a sentence of 5 to 15 years was appropriate. Upon a review of the entire record we cannot say that the sentence imposed was not proportionate to the nature of the offense or that the trial court abused its discretion. The sentence, therefore will not be disturbed.

The judgment of the Circuit Court of Christian County is affirmed.

Affirmed.

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


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Willmore, Defendant-Appellant.
    (No. 73-131;
    Fifth District
    November 22, 1974.
    Robert H. Rath, of Harrisburg, for appellant.
    Albert W. McCallister, State’s Attorney, of Carmi, for the People.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant appeals from a judgment of the circuit court of White County finding him guilty of the crime of aggravated incest after a jury trial. He contends in his appeal that he was not proved guilty beyond a reasonable doubt.

The Willmore family consisted of Kenneth Willmore, his wife Donna, and five children. The eldest child is Kenneth Willmore, Jr., age 15, W. Willmore, a daughter, age 14, K. Willmore, a daughter, age 13, and two other daughters age 10 and 9 respectively.

The defendant was indicted by the grand jury of White County for having committed the crime of aggravated incest with his daughters, K. and W., on several dates during the months of April and May of 1972.

K. did not testify at the trial and the only evidence which was relevant to convict the defendant came from his daughter, W. She testified that she now lived with her grandmother, Elberta Willmore of Norris City, Illinois, and that she formerly had lived with her parents out in the country, that her father worked at a filling station and did some farming and her mother ran a paper route. Her mother left home to deliver the papers about 3 A.M., and her father left about 5 A.M.; when her mother left for work her father would call her into his room or he would come into her room and they would have intercourse. He would do the same thing to K., sometimes in her presence. In the middle of May she called her grandmother, and in a few days a woman from the Department of Children and Family Services came to school and talked to her. They then went to the grade school and talked to her 13-year-old sister, K., and Mr. Blackman, the Superintendent of the Omaha-Norris School District No. 3. She then went to live with two different families, then with the Department of Children and Family Services, and finally went back to live with her grandmother. Her father had told her that if she told they could “get in bad trouble.” She never testified as to the intercourse having taken place between either her or K. on any particular date, but said that it had been going on for a couple of years.

On cross-examination she testified that she discussed her testimony with a lady from the Department of Children and Family Services who gave her a calendar and told her that she needed to know dates and “things like that.” She did not remember whether or not she talked to people from the Department about her grand jury testimony. She told her grandmother after this had been going on for 2 years because it was getting more uncomfortable all the time. When her father would come into her room he would aheady have started intercourse before she woke up. She had written a couple of letters to her mother and brother, but these letters had to go through the Department.

Donna Willmore, the mother of W., testified that she had no activity which took her out of the home on a daily basis until sometime in December of 1971 when they took over a paper route that they had run previously. At that time she and her husband and the son would get up about 2:30 A.M. At that time her husband would take the car and she would take the truck. They would pick up the papers at Omaha and divide them up. Her husband would then deliver the west one-half of the route and wind up at Johnson City to work in his service station. She would take the east one-half of the route and be back in time for the boy to go to school.

This routine continued until the spring of 1972 when they started farming. Then her husband would come in from work at the station, get on the tractor and work as late as possible and then go to bed. He started to get into the fields about the first of May. This changed his work routine because it would be midnight or one A.M. before he got to bed, so he couldn’t get up at 2:30 to go on the paper route. She then commenced to handle the paper route until the end of May when they ceased because of the trouble.

She further testified that up to the first day of May, 1972, there was no regular time that her husband would be at home and she would be gone, except in January and February of 1972 when she operated a Sunday paper route. During that time she would get up at 3 A.M. and her husband at 5 A.M.

She first learned of “these” accusations on May 22,1972, when the children did not come home from school. She went to the school to find out where the children were.

As a mother she had talked with her two oldest girls about boys and how to behave with them. She was close to both of them and neither of the older girls ever indicated to her in any way that they had sexual relations with her husband. Her and her husband's sexual relations were normal.

Where a conviction for a crime of this kind depends upon the testimony of the complaining witness and the defendant denies the charge, the testimony of the complaining witness must be corroborated. This rule does not apply where the testimony is clear and convincing. People v. Rogers, 391 Ill. 264.

The only evidence that could conceivably tend to corroborate the testimony of the complaining witness was medical testimony that she was not a virgin. Assuming that she was not, this would offer little aid to the State’s case because there was no testimony that her father was the only one she had sexual relations with.

Since there is no corroboration of her testimony, we must decide whether her evidence was so clear and convincing that the defendant’s conviction can stand on the complaining witness’s testimony alone. We think not. She was close to her mother and made no complaint of her father’s conduct to her at any time. Why she called her grandmother instead of telling her mother is not clear. She said that her father had been having sexual relations with her for 2 years while her mother was out of the house between 3 A.M. and 5 A.M. in the morning. Her mother testified unequivocally that this could not be true. The mother testified that she was close to W. and that W. had never complained to her of any sexual activity between her and her father. The father unequivocally denied having sexual relations with either of his daughters. Although the indictments alleged that the defendant had intercourse with both K. and W. on several different dates in April and May of 1972, there was no testimony of this happening on any specific dates.

From the record before us we must conclude that the State has failed to prove the defendant guilty beyond a reasonable doubt.

Reversed.

EBERSPAGHER and CREES, JJ., concur.


text:
    Central Illinois Public Service Company, Petitioner-Appellant, v. Marion J. Badgley et al., Defendants-Appellees.
    (No. 74-34;
    Fifth District
    November 19, 1974.

      Byron L. Connell, Jr. and Byron L. Conned, both of Mounds, and Elmer Nafziger, of Springfield, for appeHant.
    Jack Williamson, of Vienna, for appellees.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an action instituted in the circuit court of Pulaski County by the petitioner, Central Illinois Public Service Company (C.I.P.S.), to acquire a perpetual easement to construct, operate and maintain an electric transmission fine across adjacent farmlands owned respectively by defendants Marion J. Badgley and Glenna Badgley and defendants Duard J. Badgley and Mildred Louise Badgley (referred to collectively as defendants). The defendants each filed a separate cross-petition claiming that their lands within the easement strip would be damaged. They also claimed damages to the remainder of their properties not within the easement strip. The petitioner admitted that the property within the easement strip would be damaged, but contested the amount. The petitioner denied that the land outside the easement strip would be damaged. The case was tried before a jury, which returned a verdict finding the just compensation to be paid Marion J. Badgley and Glenna Badgley for land occupied by the structures to be $1.80, the damages to the land not occupied by the structures but within the easement strip to be $1170, and damage to the remainder of their farm to be $1932. The jury also found the just compensation to be paid to Duard J. Badgley and Mildred Badgley for land occupied by the structures to be $1.80, the damages to land not occupied by the structures within the easement strip to be $2010, and the damage to the remainder of their farm to be $4536. Judgments were entered on the verdicts. The petitioner filed a post-trial motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court entered an order denying each of these motions and the petitioner appeals therefrom.

The issues raised in this appeal are whether the trial court committed prejudicial, reversible, error in (1) sustaining the defendants’ objection, and by not allowing petitioner’s engineer witness to testify and read into the evidence the “Engineer’s Covenant,” which set out the rights and type of easement sought by the petitioner, (2) not.granting petitioner’s post-trial motion for a new trial, because of counsel for defendants’ improper and erroneous comments made during closing arguments, (3) refusing to give petitioner’s jury instruction no. 10, and (4) not granting the petitioner a new trial, because there is no sufficient or substantial evidence to support the verdicts, which are against the manifest weight of the evidence.

We shall first address ourselves to petitioner’s contention that the trial court erred in refusing to give petitioner’s jury instruction no. 10. Petitioner’s jury instruction no. 10, not contained in Illinois Pattern Jury Instructions (IPI), read as follows:

“In arriving at the damages to that part of the easement strips which are not occupied by structures, you should take into consideration the fact that the owners will have and retain all the uses of said easement strips not inconsistent with the right to construct, operate and maintain the said transmission line.”

Supreme Court Rule 239(a) provides, in part that:

“* # * Whenever IPI does not contain an instruction on a subject on which the court determines that the jury should be instructed, the instruction given on that subject should be simple, brief, impartial, and free from argument.” Ill. Rev. Stat. 1973, ch. 110A, par. 239(a).

In paragraph 5 of the petition for condemnation the petitioner set out the easement rights sought to be acquired. That paragraph contained, among other things the following provision,

“* * # the owners of said parcels shall have and retain all uses of said parcels not inconsistent with the easement * *

In view of the foregoing provision contained in the petition for condemnation and the fact that considerable emphasis was placed upon whether C.I.P.S. or the landowners would have the “superior right” or “superior use” of the easement strips, particularly by counsel for the defendants, the trial court should have instructed thé jury concerning this matter.

The defendants contend, however, that the trial court properly refused to give such instruction since it was argumentative and abstract. Defendants assert that:

“It is argumentative because it states that defendants’ will have certain rights not inconsistent with the rights of the petitioner, without setting out in detail the rights of each. It is abstract because it unduly emphasized the rights the defendants would have to the use of the easement.”

No cases are cited in support of this argument.

We find petitioner’s instruction no. 10 neither argumentative nor abstract, as claimed by the defendants. In addition we find said instruction to be simple, brief and substantially impartial. Having previously determined that this instruction concerned a matter “on which the jury should be instructed,” we hold that the trial court erred in refusing to give petitioner’s instruction no. 10. Compounding this error was the trial court’s refusal to allow petitioner’s engineer, J. G. Cors, to read into evidence petitioners exhibit “5,” referred to as the Engineer’s Covenant,” which also set forth the rights and type of easement sought to be acquired by the petitioner. More significant, however, is the fact that none of the other instructions adequately covered the matter contained in the refused instruction or otherwise mitigated the effect of this error. In view of these facts and since the correctness of these instructions was vital (Department of Public Works v. Bohne, 415 Ill. 253, 113 N.E.2d 319), we hold the trial court’s refusal to give the tendered instruction to be reversible error. The difficulty in determining the precise consequences of this error leads us to the conclusion that justice would best be served by remanding the entire case for a new trial.

Although our conclusion that this case must be remanded for a new trial eliminates the need to consider the other allegations of error advanced by the petitioner, we will address the petitioner’s contention that the trial court erred in denying admission to the “Engineer’s Covenant,” since it is likely that this issue will arise in the new trial.

The “Engineer’s Covenant” stated:

“Petitioner covenants that in order to construct, operate and maintain said proposed 161 KV transmission line to be operated initially at 69 KV and to comply with said order of the Illinois Commerce Commission, it will be necessary for Petitioner to acquire an easement over the parcels of land hereinafter in paragraph numbered 7 described for the purpose of entering upon said parcels to construct, operate and maintain said proposed 161 KV transmission line to be operated initially at 69 KV and that the owners of said parcels shall have and retain all uses of said parcels not inconsistent with the easement aforesaid and Petitioner will, within thirty (30) days, following written notice so to do, pay to the owners or any successors in title to said parcels of land, and all damages properly chargeable to Petitioner in any way arising in connection with or subsequent to the construction, operation and maintenance of said proposed 161 KV transmission line to be operated initially at 69 KV upon, over, along, across and through said parcels of land.”

This is substantilly identical to paragraph 5 of the petition for condemnation.

Petitioner contends that this covenant should have been allowed into evidence,

“* * * because it properly advised the jury, (1) what rights the petitioner would receive by the easement sought, (2) that the owners of the parcels were to have and retain all use of the lands not inconsistent with the easement, and (3) that any and all damages in any way arising in connection with or subsequent to the construction, operation and maintenance of the line in the future would be paid by the petitioner.”

Defendants agree with the petitioner’s summary of the contents of the covenant, however, they contend that:

“It is well settled law in Illinois that a binding and legal stipulation or covenant on the part of a condemnor must do and contain four things:
(1) prevent damages which would otherwise occur,
(2) do a thing, or things, not required of it by law,
(3) reduce injury to land,
(4) show what extent the property not taken would be damaged.”

No citations are given by defendants in support of this proposition, nor are we able to determine the origin of this “well settled law.”

Courts look with favor upon stipulations designed to simplify, shorten or settle litigation and save costs to parties, unless they are illegal or contrary to public policy. (People ex. rel. Stead v. Spring Lake Drainage & Levee District, 253 Ill. 479, 97 N.E. 1042; People v. McCrory, 41 Ill.App.2d 59,190 N.E.2d 159; Keithley v. County of Clark, 206 Ill.App. 500.) Any matter which involves the individual rights of the parties to a cause of action may properly be made the subject of a stipulation between them (Roin v. Checker Taxi Co., 36 Ill.App.2d 447, 184 N.E.2d 736), and parties directly affected may stipulate as far as their rights or obligations are concerned. Sanitary District v. Johnson, 343 Ill. 11, 174 N.E. 862.

In the instant case the “Engineer’s Covenant” established the rights sought by the petition for condemnation and clarified which elements of damage were outside the scope of the instant proceedings, i.e., future damages. In addition the petitioner offered to have the wording of this covenant incorporated into the final “Decree of Judgment,” ensuring that the covenant would be binding on the petitioner and enforceable by the defendants. Under these circumstances the trial court erred in not allowing petitioner’s engineer to read the covenant into evidence. Therefore, we direct the trial court to allow petitioner to have the- “Engineer’s Covenant” read into evidence at the new trial ordered held.

In view of the foregoing conclusions we reverse the judgment of the trial court and remand this case for a new trial consistent with the views expressed herein.

Reversed and remanded with directions.

CREBS and CARTER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry H. Hess, Defendant-Appellant.
    (No. 74-138;
    Fifth District
    November 25, 1974.

      • Walker & Williams, of Belleville (Harry J. Sterling, of counsel), for appellant.
    Douglas Marti, State’s Attorney, of Greenville, for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by defendant, Larry Hess, from a judgment entered, on a jury verdict of guilty, by the circuit court of Bond County of the offense of driving while under the influence of intoxicating liquor, and the imposition of a sentence of 60 days at the state farm.

The defendant contends, among other things, that the State failed to prove the corpus delicti of the offense charged. We are not unmindful of the accepted fact that intoxicated drivers are the direct cause of a great number of deaths and an even greater number of injuries each year. The imposition of criminal sanctions and the revocation of the driver’s licenses of those convicted of the offense are two of the means of combating this problem. Imposition of these penalties is, of course,- accompanied by the requirement that the State, as in other criminal cases, prove each element of the offense and that the proof of each of these elements must be beyond a reasonable doubt. See People v. McNutley, 90 Ill.App.2d 465, 233 N.E.2d 229.

■ The defendant cites People v. Miller, 23 Ill.App.2d 352,163 N.E.2d 206, for tire proposition that the State must prove beyond a reasonable doubt that the defendant drove the motor vehicle at the time and place in question, and that he was then and there under the influence of intoxicating Hquor. An even more emphatic statement may be found in People v. Williams, 3 Ill.App.3d 1036, 1039, 279 N.E.2d 735, 737, wherein the court noted that:

“ ‘The rule is weH settled that in order to prove the corpus delicti the State has the burden of proving that the defendant drove a motor vehicle at the time and place in question and was, at that time, under the influence of intoxicating liquor.’ (Emphasis added.) (People v. Taylor, 110 Ill.App.2d 81, 84, 249 N.E.2d 127, 128.)”

The difficulty in obtaining direct evidence of each of the elements of this offense prompted the court in People v. Mundorf, 97 Ill.App.2d 130, 134, 239 N.E.2d 690, 693, to recognize that:

“Direct evidence is not necessary to prove the corpus dehcti. If aH of the evidence establishes that a crime has been committed and that the defendant committed it, it is, of course, sufficient. If the evidence is all or largely circumstantial, it should be sufficiently compelling to produce a moral and reasonable certainty that the crime was committed and that the defendant committed it. People v. Schulewitz, 87 Ill.App.2d 331, 336, 337, 231 N.E.2d 678 (1967); People v. Garnier, 20 Ill.App.2d 492, 494, 156 N.E.2d 613 (1959).”

However, equally important was the court’s statement that;

“Where the circumstances can be explained upon a reasonable hypothesis consistent with innocence and leave serious and grave doubt of guilt, a conviction is improper. People v. Magnafichi, 9 Ill.2d 169, 173, 137 N.E.2d 256 (1956).” 97 Ill.App.2d 130, 134, 239 N.E.2d 690, 693.

Although a number of cases approach the factual situation here present, none of the cases relied upon by either of the parties, nor discovered in research, is dispositive. We will assume for the purposes of our review of the facts in the instant case that the State proved that the defendant drove the automobile to the location where it was discovered by Trooper Bryan, the arresting officer. Moreover, we will assume that the defendant was intoxicated when arrested. These two assumptions would not, ipso facto, be sufficient to sustain a conviction for driving while under the influence of intoxicating liquor. Absent is the third element of the offense, the nexus, proof that the defendant was intoxicated while in the act of driving.

Although we agree with the following view expressed by the court in People v. Garnier, 20 Ill.App.2d 492, 494, 156 N.E.2d 613, 614, “[0]b-servation of the defendant in the act of driving while intoxicated is not an indispensable requirement for conviction under section 47 of the Traffic Act,” and are familiar with a number of comparable cases, including People v. Schulewitz, 87 Ill.App.2d 331, 231 N.E.2d 678, People v. Mundorf, 97 Ill.App.2d 130, 239 N.E.2d 690, and People v. Chamberlain, 5 Ill.App.3d 235, 285 N.E.2d 784, we are unaware of any case which has sustained a conviction of the offense of driving while under the influence of intoxicating liquor on the paucity of evidence here present.

In the instant case the first witness called by the State was Trooper Bryant, the arresting officer. He testified that at approximately 7 P.M., March 31, 1973, he discovered the defendant and another individual sleeping in an automobile located in a ditch adjacent to a township road. He described the position in which he found the defendant in the following manner:

“He was sitting in the vehicle behind the driver’s seat, with the upper portion of his body lying to the south, or to the passenger side of the front seat and in the seat, lying in the seat.”

The officer further testified that while conveying the defendant an6 his companion to die county jail both individuals joked about “an open can of beer that I found on the dashboard of their vehicle.” On cross-examination the officer testified that die road adjacent to die ditch where the automobile was found was a “muddy road,” comprised of gravel and oil, about 20 or 22 feet wide, he did not charge the defendant with driving while under the influence at the time of defendant’s arrest for disorderly conduct bcause he did not have an impartial witness that saw the defendant driving, and that subsequently he signed an information charging defendant with driving while under the influence. The State next called Henry Abler, a Bond Comity jailer, who testified regarding his observations of the defendant while in custody. Finally, the State called Karen ICeaster, court reporter for Bond County, who verified that State’s exhibit number 1 was a photocopy of “a couple of questions and answers” from the testimony she had transcribed in a case entitled “The People of the State of Illinois versus James M. Kimberlin and Larry Hess, 73-CM-44,” taken at a hearing in mitigation and aggravation, on a disorderly conduct charge, in which the defendant was neither represented by counsel nor advised of his constitutional right against self-incrimination. Over the objection of defense counsel, State’s exhibit number 1 was admitted into evidence. It read as follows,

“Q. [State’s Attorney] All right. Now, on the evening in question, which was March 31, 1973, who was driving the car?
A. [Larry Hess] I was.
Q. O.K. And were you driving it when it went in the ditch?
A. Yes.”

The State then rested. After the trial court denied defense counsel’s motion for a directed verdict, the defense rested without proffering any evidence.

As revealed by the preceding review, there was no evidence presented with respect to how long the automobile had been in the ditch, much less whether the defendant was intoxicated at the time he drove the automobile into the ditch. Similarly, the circumstantial evidence presented was not sufficiently compelling to produce a moral and reasonable certainty that the defendant was intoxicated at the time he drove the automobile into the ditch. Unlike People v. Garnier, 20 Ill.App.2d 492, 156 N.E.2d 613, there was no evidence regarding the length of time which had transpired since the defendant was last seen imbibing at a bar. Unlike People v. Schulewitz, 87 Ill.App.2d 331, 231 N.E.2d 678, and People v. Mundorf, 97 Ill.App.2d 130, 239 N.E.2d 690, the defendant was not found along side a busy thoroughfare, from which the trier of fact might reasonably conclude that he had been where he was found for only a short period of time. Unlike People v. Chamberlain, 5 Ill.App.3d 235, 285 N.E.2d 784, the defendant was not found unconscious behind the steering wheel with his car in gear and with his motor running, nor was there any evidence that the defendant’s lights were on, as was present in Mundorf and Chamberlain.

In fact, in the instant case the arresting officer testified that there was an open beer can on the dashboard of the vehicle in which he found the defendant and his companion sleeping. Logic would dictate that this can of beer was placed on the dashboard after the automobile was driven into the ditch and before the defendant and his companion fell asleep. The State produced no evidence which would by inference, or otherwise, establish how many, or few, beers were consumed by the defendant after the automobile was driven into the ditch. Nor can the defendant’s failure to testify be employed to supply this inference. Quite probably if the defendant were to testify in an attempt to negate the inference that he was intoxicated at the time he drove the automobile into the ditch, he would have to incriminate himself of another crime, for example, illegal transportation of liquor.

Suspicious circumstances, although of probative value, cannot be substituted for proof, and suspicions or probabilities are not enough to convict. (People v. Curran, 6 Ill.App.3d 792, 286 N.E.2d 594.) A conviction should not be based upon the weakness of the defendant’s case or, as in the instant case, upon the failure of the defendant to testify. Rather, a conviction must be based upon the ability of the State to establish beyond a reasonable doubt each element of the crime. When, as in the instant case, the State fails to introduce sufficient evidence from which the jury could conclude, beyond a reasonable doubt, that the defendant was intoxicated while in the act of driving a motor vehicle, this court is under an obligation to set aside the jury’s verdict and reverse the defendant’s conviction. See People v. Williams, 3 Ill.App.3d 1036, 279 N.E.2d 735; People v. Jefferson, 1 Ill.App.3d 484, 275 N.E.2d 176; People v. Wells, 103 Ill.App.2d 128, 243 N.E.2d 427.

Considering our conclusion that the defendant’s conviction must be reversed, we need not discuss the other issues raised by the defendant in this appeal.

In accordance with the foregoing discussion we reverse the judgment of conviction entered by the circuit court of Bond County against the defendant for the offense of driving while under the influence of intoxicating liquor.

Judgment reversed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harry Harden, Defendant-Appellant.
    (No. 74-186;
    Fifth District
    November 20, 1974.
    Robert L. Douglas, of Robinson, for appellant.

      Patricia H. Fehrenbacher, of Newton, for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the defendant, Harry Harden, from a judgment entered on a jury verdict by the circuit court of Jasper County, convicting him of the offense of operating a motor vehicle while under the influence of intoxicating liquor.

The defendant, through his retained counsel, waived arraignment and requested a jury trial. The record before us discloses that no issue as to the lack of probable cause was raised in the trial court. During the direct examination of the State’s first witness, Trooper Harry Sutton, the following colloquy occurred:

“A. I was sitting at the intersection. There was a man and woman drove up.
MR. HELLMAN: Objection, your Honor. May we approach the bench.
THE COURT: Yes, sir.
(Conference between Court and Counsel before the bench but out of the hearing of the Jury):
MR. HELLMAN: I believe the State is leading the witness. She is preparing the witness to testify to some hearsay testimony. It’s apparent that the persons who made the statements which he is about to testify to are not present in open court. They are unsworn statements and I will not have the right to cross examine them.
THE COURT: You objected to the —
MR. HELLMAN: My objection is that I believe this testimony is about to be that these two persons told him that Mr. Harden, the defendant was operating a motor vehicle and in some sort of irregular manner. I believe that is highly prejudiical and is not justified in terms of what might be proved.
THE COURT: This testimony is admitted in exception to the hearsay rule in that the purpose is to show that the officer was alerted as to the condition of the defendant and for that purpose only. It won’t be necessary, I take it, Mrs. Fehrenbacher, to have an extended conversation?
MRS. FEHRENBACHER: No.
THE COURT: It’s only to show the fact that the officer was notified. For that reason, the witness will be allowed to testify as to what was told him by the person or persons in the other car. (The following in Court room before jury)
THE COURT: Would you repeat the last question, please.
REPORTER: Again, calling your attention to the date and the time of 6:30 P.M. did anything out of the ordinary occur at that time?
THE COURT: You may answer the question — overruled.
MR. SUTTON: A man and woman drove up to my unit and advised me that there was a man driving a yellow pick up truck, forcing cars off the road between St. Marie and Junction 49 and 33. And the driver pointed out the truck to me as belonging to the defendant, Mr. Harden.”

The defendant first asserts that the foregoing evidence was “violative of the hearsay rule” and that since the evidence is not “overwhelming” or “ample” against the defendant “* * * justice and fairness would appear to be better served by a reversal with remand for a new trial, excluding the prejudicial testimony.” The State’s reply to this assertion is simply that “the statement was not hearsay and therefore properly admitted.”

The main thrust of the State’s argument is that the statement was “offered not to establish the fact in the statement, but to show the reason for the conduct of the witness,” i.e., “to show that a statement had .been made to put him on notice.” It is interesting to note, however, that the following quotation from People v. Rice, 109 Ill.App.2d 391, 395, 248 N.E.2d 745, 747, is cited by the State;

“ ‘The test of admissibility of evidence is whether it fairly tends to prove the particular offense charged and any circumstances may be put in evidence which tends to make the proposition at issue either more or less probable.’ ”

We agree with the test espoused by the court in People v. Rice, in fact, we quoted People v. Peter, 55 Ill.2d 443, 303 N.E.2d 398, 408, for an identical proposition in People v. Rogers, 23 Ill.App.3d 115, 318 N.E.2d 715. Therein we held that the evidence in question was relevant since it tended to prove the proposition in issue (whether the defendant committed the offense charged) more probable than its non-existence. We are compelled to reach a contrary conclusion in the instant case.

If we assume ad arguendo that the proffered evidence was introduced solely to show notice on the part of the arresting officer, such evidence was irrelevant, since what motivated the arresting officer to place the defendant under surveillance was not in issue, and evidence concerning the officer’s motivation had no probative value with respect to the defendant’s guilt of the offense charged. Probative value, i.e., relevancy, attaches to such evidence only when it is proffered in an attempt to establish the truth of the matter asserted therein.

If, on the other hand, we assume that this evidence was proffered in an attempt to prove the truth of the matter asserted therein, it should have been excluded as hearsay when objection was raised by the defense counsel. (People v. McKee, 39 Ill.2d 265, 235 N.E.2d 625.) The essential feature of the hearsay rule is not that all statements made out of the presence of the defendant are inadmissible but rather that all testimony is inadmissible which does not give the defendant an opportunity for cross-examination of the party whose assertions are offered. (People v. Cook, 33 Ill.2d 363, 211 N.E.2d 374.) In People v. Colegrove, 342 Ill. 430, 438, 174 N.E. 536, 539, our supreme court stated:

“Declarations out of court or statements of any kind by a third person against the accused, made in his absence and without his knowledge, are inadmissible as evidence against him.”

See also People v. Smuk, 12 Ill.2d 360, 365, 146 N.E.2d 32.

In the instant case the admission of Trooper Sutton’s testimony concerning what he was told by unnamed motorists, used for the alleged purpose of showing “notice,” bore too heavily upon defendant’s guilt or innocence to allow its admission. Although other competent evidence was presented to establish the degree, or extent, of defendant’s intoxication, the source of the only evidence of defendant’s abnormal driving was this incompetent hearsay evidence which was admitted over objection. Furthermore, the trial court failed to admonish the jury as to the limited purpose for which such evidence was to be admitted. Under these circumstances, we can only conclude that the jury’s finding was based in part on incompetent evidence which was so prejudicial to the defendant as to deny him his right to a fair and impartial trial. We believe that justice will be better served in a new trial, free from such error, and we remand the case for that purpose. While “notice” may be shown to explain the reason for the conduct of the witness, it is not necessary that the details of the report and language of the informant be disclosed, particularly when those details or language would describe criminal acts.

Having thus decided, we need consider only one additional issue, the defendant’s contention that since no probable cause for the arrest was established the case should be reversed without remand. Section 107 — 2 of the Code of Criminal Procedure (Ill. Rev. Stati, ch. 38, par. 107 — 2) provides, in part, that:

“A peace officer may arrest a person when:
# #
(c) He has reasonable grounds to believe that the person is committing or has committed an offense.”

This same element of probable cause is one of constitutional dimension which must be demonstrated from the attending circumstances of the case as reasonably existing in the mind of the arresting officer at the moment his arrest of the accused is effectuated. (Beck v. Ohio, 379 U.S. 89, 13 L.Ed.2d 142, 85 S.Ct. 223.) As stated in People v. Brooks, 13 Ill.App.3d 1003, 1006, 301 N.E.2d 496, 498:

“This belief may be founded on hearsay evidence and on factual and practical considerations of everyday life upon which reasonable, prudent men, not legal technicians, operate. The question of whether probable cause exists depends on the facts of each individual case. See People v. Colbert, 10 Ill.App.3d 758, 760, [295 N.E.2d 225] (1973), and cases cited therein.”

An officer is justified in regarding information as reasonably reliable in making an arrest if the information is independently corroborated (Beck v. State of Ohio; People v. Ostrand, 35 Ill.2d 520, 221 N.E.2d 499) by the officer’s independent observations (People v. Cummings, 38 Ill.2d 11, 230 N.E.2d 187). Having carefully considered the record of the instant case, it is our conclusion that the factual circumstances which presented themselves to the arresting officer were sufficient to give rise to a reasonable belief that the defendant committed the offense for which he was charged, prior to the effectuation of his arrest.

Accordingly, we reverse the judgment entered by the circuit court of Jasper County and remand this cause for a new trial consistent with the opinions expressed herein.

Reversed and remanded with directions.

CREBS and CARTER, JJ., concur.