author: Mr. JUSTICE DOWNING

text:
    Nick Meyerson et al., Plaintiffs-Appellees, v. James Y. Carter, Public Vehicle Licensing Commissioner of the City of Chicago, et al., Defendants-Appellants—(Edward V. Hanrahan, State’s Attorney of Cook County, Defendant.)
    (No. 58251;
    First District (2nd Division)
    August 13, 1974.

      Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Robert R. Retke, Assistant Corporation Counsel, of counsel), for appellants.
    Miller & Schneider, of Chicago, for appellees.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

The circuit court of Cook County held unconstitutional the “Taxicabs-bulletproof shields” statute (Ill. Rev. Stat, 1972 Supp., ch. 951/2, par. 12— 605), finding it tó be so vague and indefinite that it is judicially unenforceable. Judgment was entered permanently enjoining enforcement of the statute. Defendants’ appeal challenges the correctness of the ruling.

Approximately 2% years after the effective date of the statute, plaintiffs Nick Meyerson, an owner-operator of a taxicab operating pursuant to a license issued by the city of Chicago, and American United Cab Association, a taxicab affiliate acting on behalf of its affiliated members, i.e., independent taxicab owners and operators, filed their verified complaint for declaratory judgment and injunction.

The defendants-appellants are James Y. Carter (hereinafter Carter), Public Vehicle Licensing Commissioner, and James Conlisk, Commissioner of Police, of the city of Chicago. The State’s Attorney of Cook County, joined as a defendant after the original complaint was filed, did not appeal. A temporary injunction issued and, after the subsequent bench trial, the trial court declared the statute to be unconstitutional.

Plaintiffs’ complaint alleged that various members of American United, including plaintiff Meyerson, were notified by Carter on March 6, 1972, that, unless they complied with the statute within 30 days, their right to operate their cabs would be suspended. Plaintiffs proceeded to attack the validity of the statute alleging that its provisions violated the due process and equal protection clauses of both the United States and Illinois constitutions; that the statute constituted an invalid exercise of the police power by compelling a citizen to guard his own safety without benefiting the general public; that the bulletproof shield endangers the health, safety, and comfort of the cab operator as well as his passengers; that the statute draws an unreasonable classification; and that it is vague and unclear in that it fails to specify the standards with which the bulletproof shield must comply.

In their answer to the complaint, defendants admitted the facts giving rise to plaintiffs’ action as stated by plaintiffs; denied that the statute was unconstitutional or its enforcement illegal; affirmatively stated that the statute is a valid exercise of the state’s police power intended to regulate those persons who use public ways for private profit; denied plaintiffs’ allegations that the shield endangers the operator and passengers stating further that such cannot properly support an allegation that a statute is unconstitutional; and denied the remainder of plaintiffs’ allegations concerning an unreasonable classification and vagueness of the statutory language. Defendants also asserted that the plaintiffs were guilty of laches in seeking the temporary injunction.

So far as resolving the issues raised in this appeal, the significant testimony may be summarized as follows.

John H. Andrews, a mechanical engineer specializing in vehicles, testified on behalf of plaintiffs as an expert witness. He stated that, according to accepted standards within the glass industry, the transparent material used in various bulletproof shields examined on taxicabs operating in the city of Chicago would not be considered “bullet proof.” Referring to the standards published by the American Society of Mechanical Engineers and the Insurance Institute for Highway Safety, Andrews described the four types of bullet-resistant glass defined by those standards, to wit:

“Type MPW, a nominal thickness of an inch and three-sixteenths which is ballistically resistant to medium powered small arms ammunition;
Type HP which is one and nine-sixteenths inch, which is ballistically resistant to high powered small arms ammunition;
Type SP which is an inch and three-quarters thick which is resistant to super powered small arms ammunition; and the fourth type,
Type RR which is two inches thick are [sic] ballistically resistant to high powered rifle ammunition.”

Asked by the court whether the term “bullet proof” was synonymous with the term “bullet resistant,” Andrews stated “It is the same generic type of definition.” The court then inquired whether one could have type MP glass and still be considered to have bulletproof glass. This witness responded that such would be bullet resistant to small arms ammunition.

Andrews further testified that the three-quarter-inch and three-eighths-inch material presently used in the shields is not bullet resistant and that, should someone fire a bullet through material of that thickness, the bullet would not only come through the shield with a great deal of energy, but fragments of plastic would also be accelerated forward.

On cross-examination Andrews stated that he had examined approximately seven shields; that all materials have some bullet-resistant qualities, but that plastic is not as strong as glass when it comes to resisting the impact of a bullet. He further testified that the terms “bullet proof” and “bullet resistant” imply the same idea noting though that a piece of 2-inch steel is bullet proof since a bullet cannot pierce it; that, on the other hand, while a piece of glass or plastic will reduce the bullet’s energy, the bullet can penetrate the substance.

Anthony Bottalla, president of the plaintiff American United Cab Association, testified that Carter’s office had notified him by letter in March 1971 that the statute in question had been passed; that he then contacted the office of the governor of the State of Illinois, the enforcing unit of the city of Chicago, and Carter, requesting the specifications of the particular bulletproof shield which Carter requested them to install; that he received no specifications; and that, when he talked to Carter he asked him what is the requirement of the law, to which Carter replied: “The law is not specific to the dimension or the size or the thickness.”

Defendants called two witnesses who testified concerning then- experience with cabs equipped with a so-called bulletproof partition.

Defendants also called Alfred Halloway, chairman of the safety committee of the Democratic Union Organization, Local 777, who testified that approximately 4,800 taxicab drivers belonged to the union and that, prior to passage of the statute in question, he had circulated a petition favoring installation of such shields and had accumulated nearly 3,500 signatures.

Defendant Carter testified that after passage of the statute he notified by letter the taxicab owners of the passage of the statute in question; that all of the Yellow and Checker cabs (approximately 80% of the city cabs) had shields presently installed and that about 60% of the independent cabs in the city are presently equipped with the shields; that “there is no such thing as bullet proof”; that at the time of the statute’s passage he did not know whether bullet-resistant shields were made, although there were advertisements for such in trade journals; and that, from tests conducted at the police testing range, it was discovered that only two types of transparent material were bullet resistant.

On cross-examination Carter stated that, as commissioner, he has a statutory duty to examine the bodies of taxicabs once each year and a duty, by ordinance, to perform such examinations twice annually. When asked whether his office has formulated any particular statistic, dimen-' sion or type of shield, Carter stated that:

“I am in no position to tell anybody what to buy. I am only in a position to tell them what they cannot use. And my understanding has been that there are two products that I know that will withstand this type of beating and anything else you can find for me that has passed the Bureau of Standards.”

The trial court found the statute to be judicially unenforceable solely on the ground that its language was too vague and indefinite.

Defendants urge on appeal that in so ruling the trial court ignored the intent of the legislature as well as the special meaning which the term “bulletproof shield” has acquired within the taxicab industry. Further, defendants urge that the plaintiffs are guilty of laches (by waiting 2Vz years before filing suit) and thus have waived their right to question the validity of the statute.

I.

The cardinal principle in construing a statute is to give effect to the true intent and meaning of the legislature. See People ex rel. Hanrahan v. White (1972), 52 Ill.2d 70, 73, 285 N.E.2d 129; People v. Wallace (1974), 57 Ill.2d 285.

The subject statute was first passed by our General Assembly in 1969 and became effective August 28, 1969. It applied only to municipalities with 1,000,000 or more population — thus only to the city of Chicago.

The evidence before the trial court established that the safety committee of a taxi drivers union of Yellow and Checker cabs in Chicago presented to the legislature, prior to the passage of the statute, a petition signed by approximately 3,500 cab drivers requesting the installation of the bulletproof shield.

The language of the statute leaves no doubt of the intent of the. General Assembly to eliminate the possibility of armed assaults upon cab drivers by passengers bent upon robbing the drivers. To this end the statute compels installation of a “bulletproof shield” in each cab manufactured, owned, or operated after September 1, 1970 and regularly operated in a municipality having a population of 1,000,000 or more under pain of a $500 fine. Thus the legislature has created a penal statute and, accordingly, its essential elements must be so clearly expressed that the ordinary person can intelligently choose in advance the lawful course to pursue. Connally v. General Construction Co. (1925), 269 U.S. 385, 393, 70 L. Ed. 322, 46 S. Ct. 126.

The controversy in the instant case centered around the legislature’s use of the phrase “bulletproof shield.” The record clearly reveals the trial court’s conclusion that the phrase is too indefinite and susceptible of too many interpretations to form the basis of criminal liability. This conclusion is amply supported by the testimony of John Andrews, a mechanical engineer, that the material presently used in Chicago cabs is not bullet proof; that the capacity of a piece of glass to resist a bullet’s impact depends upon the thickness of tire glass as well as the type of bullet and weapon from which it is discharged; that plastic is less buffet resistant than glass; and that none of the shields he inspected would resist the impact of even small-arms ammunition. Further, Anthony Bottalla, president of the plaintiff association, stated that, upon his inquiry, defendant Carter was unable to specify the type of shield required by law. Carter himself testified that “there is no such thing as bullet proof” and that, at the time of the statute’s passage, he did not know whether bullet-resistant shields were made.

Defendants contend nonetheless that the phrase “bulletproof shield” has acquired a special but commonly understood meaning throughout the industry. This position, they maintain, is supported by defendant Carter’s testimony that the majority of cabs in Chicago are equipped with a shield and by testimony of a number of plaintiffs’ witnesses that shields had been installed in their cabs. It must be noted though that there is no testimony to the effect that these shields were, in fact, buffet proof.

Defendants also point to defendant Carter’s acknowledgment that various shields (claimed to be bulletproof by their manufacturers) were advertised in taxicab journals, but the significance of this statement is somewhat diluted by defendant Carter’s testimony that one product for which he received a mailed advertisement was “not buffet anything,” i.e., it was not at all bullet resistant.

Considering these factors in light of Andrews’ testimony that the standard for determining a material’s resistance to buffets is a variable one and Bottalla’s statement that Carter was unable to specify the type of shield required by the statute, it cannot be said that the phrase “bulletproof shield” has acquired such a well-defined meaning as to enable one engaged in die trade to correctly apply it (cf. Hygrade Provision Co. v. Sherman (1925), 266 U.S. 497, 502, 69 L. Ed. 402, 45 S. Ct. 141).

Accordingly the trial court properly found the statute in question to be unconstitutionally vague for, as stated by our supreme court in a case involving an occupational-disease statute, Vallat v. Radiunn Dial Co. (1935), 360 Ill. 407, 412-13, 196 N.E. 485:

“In order that a statute may be held valid the duty imposed by it must be prescribed in terms definite enough to serve as a guide to those who have the duty imposed upon them. Such definiteness may be produced by words which have a technical or other special meaning well enough known to permit compliance therewith or words which have an established meaning at common law through decisions; but if the duty is imposed by statute through the use of words which have not yet acquired definiteness or certainty and which are so general and indefinite that they furnish no such guide the statute must be declared to be invalid.”

As noted above, in the instant case there was sufficient evidence to support the conclusion that no one standard defining “bulletproof shield” exists within the glass or related industries. Such being the case, cab-owners are left to choose, at their peril, which type of bullet-resistant material to install in their vehicles.

Defendants suggest that such a standard presently exists since Carter’s office had conducted tests at the police testing range and found that two types of transparent material were bullet resistant. When asked, though, whether his office had formulated any particular standard, Carter replied:

“I am in no position to tell anybody what to buy. I am only in a position to tell them what they can not use. And my understanding has been that there are two products that I know that will withstand this type of beating and anything else you can find for me that has passed the Bureau of Standards.”

Thus, while two types of material are presently acceptable to the office enforcing the statute’s mandate, the fact remains that no definite, ascertainable set of standards has yet been adopted. Under these circumstances this court is not in a position to require compliance with the statute for, as the trial court commented:

“There is no great hardship in draftmanship for the legislature to say that the particular shield shall be of such and such a thickness and shall be resistant to a certain extent, or even to enable the Commissioner of Vehicles to set up standards.”

This principle is clearly set out in Mayhew v. Nelson (1931), 346 Ill. 381, 387, 178 N.E. 921, to wit:

“A law must be complete in all its terms and conditions when it leaves the legislature, so that every person may know, by reading the law, what his rights are and how it will operate when put into execution. [Citations.] While it is the duty of the courts to ascertain the meaning of and to give effect to every valid act of the legislature, yet they cannot supply omissions or remedy defects in matters committed to the legislature.”

Plaintiffs suggest that the bulletproof-shield statute was an improper exercise of police power by the state, resulting in an unconstitutional restraint upon the personal freedom of taxicab licensees (see section 2 of article II of the 1870 Constitution of the State of Illinois and article I, section 2 of the 1970 Constitution). Plaintiffs recognize that the state, acting under its police powers, may enact legislation if the evil sought to be remedied affects the public health, safety, morals, or general welfare. People v. Fries (1969), 42 Ill.2d 446, 250 N.E.2d 149.

The record here clearly indicates that the instant legislation was enacted in response to a plea by an overwhelming number of taxicab drivers in the city of Chicago favoring installation of a bulletproof shield.

It should be noted that the legislature is vested with broad discretion to determine not only what the public interest and welfare require, but also what measures are necessary to secure such interests (Tometz v. Board of Education (1968), 39 Ill.2d 593, 600, 237 N.E.2d 498; Thillens, Inc. v. Morey (1957), 11 Ill.2d 579, 593, 144 N.E.2d 735). The language of the statute here leaves no doubt of the legislature’s intent to ehminate the possibility of armed assaults upon cab drivers by their passengers. We recognize the primary result of a bulletproof-shield statute will be to protect the cab driver, but we also believe the general public can also benefit by reducing crime and increasing the public safety on the streets in the city of Chicago (see People v. Roe (1971), 48 Ill.2d 380, 270 N.E.2d 27). Be that as it may, the indicated infirmity of this particular statute outweighs the obvious intent of the legislature.

II.

Defendants lastly urge that plaintiffs have waived their right to question tire legality of the legislation since they did not seek to enjoin enforcement of the statute until 272 years after the effective date of the statute. They point out that a majority of the cabs in Chicago are equipped with the partitions, and that the statute had been challenged in two previous actions in the circuit court of Cook County and found valid each time. The trial court, before granting the temporary injunction in the instant cause, found that the.issue concerning the deprivation of plaintiffs’ individual rights and liberties without promoting a purpose that is beneficial to the public was not presented to the court in the other two cases.

Defendants suggest that this court follow the holding of the New York Supreme Court in Scherr v. City of New York (1967), 55 Misc. 2d 176, 284 N.Y.S.2d 775, where the petitioner sought to enjoin enforcement of a regulation “requiring a partition between the front and rear seats of aH taxicabs operating for hire between 8:30 P.M. and 6:30 A.M.” (284 N.Y.S.2d at 776.) Having upheld the validity of the regulation on the ground that one who engages in a publicly regulated business surrenders his right to unfettered discretion in the conduct of that business, the court added that by waiting for many months to seek judicial relief, while many in the industry incurred expenses in reliance upon the regulation, the petitioner was guilty of laches.

As is demonstrated by the case of Parks v. Libby-Owens-Ford Glass Co. (1935), 360 Ill. 130, 195 N.E. 616, our supreme court has taken a contrary position, to wit:

“To sustain the constitutionality of a statute against a particular contention is not decisive of its validity against subsequent attacks upon different constitutional grounds. A decision upholding the validity of a statute does not, therefore, preclude the same court from subsequently declaring it unconstitutional in another case in which the statute is assailed upon grounds other than those urged in the former case. Nor does tire fact that a statute has been construed and applied during a long period of time necessarily make it valid and immune from attack.” (360 Ill. at 139.)

See also Berk v. County of Will (1966), 34 Ill.2d 588, 593-94, 218 N.E.2d 98; Grasse v. Dealers Transport Co. (1952), 412 Ill. 179, 184-85, 106 N.E.2d 124; Schuman v. Chicago Transit Authority (1950), 407 Ill. 313, 315, 95 N.E.2d 447; Community Consolidated School District No. 210 v. Mini (1972), 5 Ill.App.3d 807, 815, 284 N.E.2d 343.

In the instant case the trial court considered the issue of laches during the course of the hearing held to determine whether a temporary injunction should issue. Cognizant of the above-stated principle, it concluded that it would hear the case since the claim of vagueness had not been raised in the prior cases and, assuming the truth' of plaintiffs’ allegations, they created factual questions that would have probative value in determining the constitutionality of the statute. Thus the trial court’s decision on this issue was in accord with the position taken by our supreme court.

For these reasons the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

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

       The original statute as passed August 28, 1969, was identified as ch. 95%, pars. 441-442, and is:
      “In municipalities with 1,000,000 or more population, any taxicab manufactured, owned or operated after September 1, 1970, and regularly operated in such a municipality must have a bulletproof shield completely separating the driver’s seat from the back seat.
      see
      Any person owning a taxicab which is in violation of this Act shall be fined not to exceed $500.”
      At the time plaintiffs brought this action, the citation of the statute had been changed to chapter 95%, section 12-605 with no significant change in the statutory language.

       The installation of the shield was also involved in negotiations in 1967 and 1968 between the union and then- employers.

       For example, having chosen type MPW glass they might later be informed they have violated the statute since the material used must be resistant to super-powered small aims as well as to medium-powered small arms.

       Neither the wording or the citation of the New York regulation is given in the reported opinion. The precise wording of the regulation, or lack of it, was not in issue.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Angel Gonzales, Defendant-Appellant.
    (No. 72-253;
    Second District
    September 18, 1974.

      Ralph Ruebner and Richard Wilson, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Gerry Dondanville, State’s Attorney, of Geneva (Clarence Wittenstrom, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

After a bench trial, the defendant was found guilty of involuntary manslaughter, and was sentenced to 8V2 to 10 years imprisonment. He appeals contending (1) the trial court erred in denying his motion to suppress oral statements he made after his arrest, and (2) his sentence was excessive.

At approximately 2:30 A.M., on the morning of August 21, 1971, the defendant, his “common-law wife”, and her three children by a previous marriage returned home from a visit with defendant’s brother-in-law. Inside the house, the two older children went to sleep, but the 2-year-old boy sat on the couch and cried. When the child refused to stop crying on his command, the defendant shuck the boy three or four times in the stomach with his fist. Immediately, Mrs. Gonzales noticed that her son’s breathing was unusual. She picked up the youngster and left the house. About two blocks from the home, the child died. The pathologist determined that the cause of death was internal bleeding, and that the bleeding was caused by a traumatic laceration of the small bowel and a separation of the artery feeding that segment.

At 3:45 A.M., the defendant was arrested at his home and transported to the Aurora police station. At the station in the booking room an officer read to the defendant his constitutional rights in English off a card supplied to tire officer by the police department. On inquiry, the defendant stated that he understood his rights. Thereafter, while still in the booking room the defendant was asked what caused the marks on his right hand. The defendant stated that he had hit a 2-year-old child. No other questions were asked the defendant at this time.

At 6:05 A.M., the defendant was taken from the cell block to the sergeants room. There another officer in the sergeant’s presence again read the defendant his constitutional rights in English and in Spanish from a card supplied to the officer by the police department. Specifically, the defendant was first read his constitutional rights in English, and in response to a specific inquiry he stated that he understood what was read to him. Thereafter, the defendant was read his constitutional rights in Spanish. The defendant was told to ask questions, if he did not understand, since the officer was not fluent in Spanish. The defendant had no questions and again stated that he understood what was read to him. Thereafter, the officer asked the defendant if he wished to waive his constitutional rights, and further explained to the defendant what the word “waiver” meant. The defendant stated that he wanted to tell the officers about the offense. The entire interrogation lasted 45 minutes.

Since the defendant could not read or write English, it was necessary to record the substance of his oral statements on video tape. The tape reveals that the defendant was again given his constitutional rights in English before being asked any substantive questions. On specific inquiry, the defendant stated that he understood his rights. The entire taping lasted 15 minutes wherein the defendant admitted that he had struck the 2-year-old boy in the stomach with a closed fist.

It is argued by the defendant that he lacked the mental capacity to understand his constitutional rights, and he therefore could not have freely, knowingly and voluntarily waived his rights. The defendant relies principally upon his own testimony and the testimony of a psychologist to support his contention. At the hearing on defendant’s motion to suppress his oral statements, the defendant testified that he did not understand his constitutional rights and that he did not know what an attorney was. The psychologist testified that in a test of defendant’s verbal abilities in English, he scored 61 which placed him in the lower 1% of this country’s population in language efficiency; that the defendant was at a distinct disadvantage in language situations; that defendant could be sociable with words but not intelligent; and that in his professional opinion tire defendant would have difficulty understanding the meaning of a phrase even if he understood each and every word in the phrase.

Balanced against this evidence, the officers testified to the procedure they used (as previously stated). The defendant testified that the officers had in fact read him his constitutional rights; that he told them he understood what was read to him; and that he thought that his right to remain silent meant that he “didn’t have to say something.” The psychologist testified that the defendant’s non-verbal I.Q. is 97, which is average; that “non-verbal” refers to visual and motor skills and relates to intuitive thinking, reasoning and work skills; that defendant’s overall intelligence is an average of the two scores (79); and that the defendant’s problem-solving ability is excellent. The evidence also reveals that the defendant was 27 years old at the time of his arrest; that he was bom in the United States and has lived here his entire life; and that although an interpreter was provided for him at the hearing, he was able to answer all questions in English without her assistance. The trial court also saw the videotape which further revealed that the defendant, by his responses, understood the questions put to him.

Based on this evidence, the trial court concluded that the State had, by a preponderance of the evidence, proven that the oral statements of defendant were freely, voluntarily and knowingly made and were therefore admissible at trial.

On the issue raised by the motion to suppress oral statements, the State has the burden of proof. (Ill. Rev. Stat. 1971, ch. 38, § 114 — 11.) However, the trial court need not be convinced of the voluntary nature of the statement beyond a reasonable doubt. (People v. Torres, 54 111. 2d 384, 392-93 (1973.) It is sufficient if the State proves by a preponderance of the evidence that the statement was voluntary. People v. Jackson, 41 Ill.2d 102, 109 (1968).

For the statement to be held admissible, the trial court must determine whether the suspect in custody was advised of his constitutional rights and, having been so advised, whether the defendant knowingly, voluntarily and freely waived those basic constitutional guarantees. (Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602 (1966).) The question of a voluntary, free and knowing waiver depends on the total circumstances under which it is taken and no single factor is controlling. (People v. Baker, 9 Ill.App.3d 654 (1973).) Thrrs, subnormal mentality alone does not, ipso facto, render an oral statement involuntary. (People v. Hester, 39 Ill.2d 489, 500 (1968) and cases cited therein.) The cmcial test as to whether defendant’s rights were knowingly waived was recently addressed by the supreme court in People v. Turner, 56 Ill.2d 201, 205-06 (1973), wherein the court, quoting from Johnson v. Zerbst, 304 U.S. 458, 464, 82 L.Ed. 1461, 1466, 58 S.Ct. 1019 (1938), stated:

“ ‘A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of right to Counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ”

The defendant does not challenge the adequacy of the words used in informing him of his constitutional rights, but asserts that due to both his inability to understand the English language and his subnormal intelligence, he could not have knowingly, voluntarily and understandingly waived his constitutional rights. This argument was made to the trial court and found non-persuasive. It is a rule of law which needs no citation that the trial court is in a superior position to observe the demeanor, candor, sincerity, and credibility of the witnesses, and to weigh the evidence. The trial court’s finding will not be disturbed unless contrary to the manifest weight of the evidence. People v. Burbank, 53 I11.2d 261, 266 (1972).

The officers explained defendant’s rights to him, three times in English and once in Spanish. While this, in and of itself, is of little consequence unless defendant possessed sufficient intelligence to understand (People v. Turner, supra, page 205), it is clear from the evidence that the English language was not foreign to the native-born defendant, that he did not require the assistance of the available interpreter and that he admitted understanding that he was not required to talk to the officers. The record reveals no evidence of duress or cajolery on the part of the police officers. From this court’s viewing of the videotaped interrogation (conducted in English) it is clear that defendant, without hesitation or confusion, responded understandingly to all questions. Evidence of defendant’s subnormal comprehension of English was in conflict with the total evidence before us. Concluding that the preponderance of the evidence clearly demonstrated defendant’s ability to intelligently converse in and comprehend the English language, we find that the ruling of the trial court was not against the manifest weight of the evidence.

The defendant next contends that his sentence is excessive under the Unified Code of Corrections and that it should be reduced to 1 to 3 years. Because defendant’s case had not reached final adjudication, he is entitled to the benefit of the Code provisions. (Ill. Rev. Stat. 1973, ch. 38, § 1008 — 2—4.) Under the Code, the offense of involuntary manslaughter is a class 3 felony subject to a sentence of any term in excess of 1 year and not exceeding 10 years. (Ill. Rev. Stat. 1973, ch. 38, § 1005 — 8—1.) The Code further provides that the minimum term for a class 3 felony shall be 1 year “unless the Court, having regard to the nature and circumstances of the offense and the history and character of the defendant sets a higher minimum term, which shall not be greater than one-third of the maximum term set in that case by the court.” Here, the trial court, having regard for the nature and circumstances of the offense and the history and character of the defendant, clearly indicated that the minimum term should be in excess of 1 year. We agree. In accordance with the Code provision,. however, defendant’s minimum term is reduced to 3% years, one-third the duration of his maximum term. The sentence is modified to a term of 3% to 10 years.

Judgment affirmed as modified.

SEIDENFELD and RECHENMACHER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Le Roy Perkins, Defendant-Appellant.
    (No. 73-122;
    Second District
    September 18, 1974.

      Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.


author: Mr. JUSTICE RECHENMACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert R. Click, Defendant-Appellant.
    (No. 73-190;
    Second District
    September 19, 1974.

      Farrell & Edgerton, of West Chicago, for appellant.
    Gerry L. Dondanville, State’s Attorney, of Geneva (Clarence Wittenstrom, Jr., of counsel), for the.People.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court;

Defendant appeals from orders entered by the Circuit Court of Kane County on May 11, 1973, revoking probation and sentencing him to two concurrent, indeterminate terms of 2 to 7 years in the penitentiary system of the Illinois Department of Corrections.

On June 8, 1970, defendant pleaded guilty in the Circuit Court of Kane County to two burglary charges, and on July 3, 1970, upon the State’s recommendation, an order was entered granting probation for 60 months. On November 2, 1972, an order of temporary revocation was entered on the State’s petition based on the defendant’s failure to report monthly since May of 1972 (his whereabouts being unknown), as well as on the pendency of a burglary charge at Relleville, Illinois. -

On April 6, 1973, the State filed its petition to revoke probation alleging defendant’s failure to comply with the conditions of his probation and further alleging that while on probation he committed five burglaries, one attempted burglary and one" theft. After a hearing, the order appealed from was entered.

Defendant contends that the judgment is erroneous because it constituted a breach of a plea bargain between the defendant and the State’s Attorney of Kane County, and that such plea bargain must be fulfilled.

The record discloses that on January 11, 1973, the Ogle County Public Defender, then representing the defendant, wrote a letter to the State’s Attorney of Kane County stating as follows:

“We are attempting to clear up all matters involving Robert Clide and offer this disposition: under Section 1005 — 4—2, Section R; all the charges can be consolidated in one case and after conferring with our State’s Attorney, our Sheriff and Probation Officer together with a full investigation, it is our belief that he be,placed on four years probation in Ogle County, the first two years to be served in the Ogle County Public Safety Ruilding. Please inform me as to whether or not you will accept this. The other counties have accepted-this procedure.”

By letter dated January 22 State’s Attorney Dondanville replied as follows:

“I am in receipt of your letter of January 11, 1973, concerning the above-named defendant. The procedure which you outline in your letter is satisfactory to the State’s Attorney’s office of Kane County.
As far as the Kane County charges are concerned, please be advised that there are three burglaries, one theft (over $150.00) and one attempt (burglary).
If you wish to proceed and have pleas of guilty entered to these charges as well as those of the other counties, please have your State’s Attorney send a formal request to me, together with the necessary documentation by the defendant approving of the procedure, and I shall follow through accordingly.”

By letter dated February 1, 1973, Mr. Dondanville wrote to the Ogle County State’s Attorney’s Office concerning this defendant, stating in part ¿s follows:

“Please be advised that this date an Order was entered by the Circuit Court of Kane County, directing the Circuit Clerk of Kane County to transmit certified copies of the court papers concerning our five (5) charges against the above-named defendant now in your county.
The Order by its terms provides that upon a final determination of your case, that your Clerk’s Office send the Kane County Circuit Clerk a certified copy of each of these Orders. This will allow our Circuit Clerk to close his files.”

Pursuant to section 5 — 4—2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 4—2(b)) the Circuit Court of Ogle County continued the prosecution on the five charges referred to in Mr. Dondanville’s lettér, and other charges in Ogle and St. Clair Counties, and on March 15, 1973, upon the defendant’s guilty plea to such charges, entered a judgment order sentencing defendant to separate, concurrent terms of probation for 5 years on each of those charges, commencing March 15, 1973 with specific conditions, and concurrent terms of periodic imprisonment for a period of 2 years with specific conditions.

Thereafter, defendant qualified for the work release program and has been working at a job during the day and spending his nights and weekends in jail, with permission to go home on Sundays to attend church with his wife (who was pregnant), have dinner with her and to return to the’jail by 3 P.M. Defendant has also been assisting the Ogle County sheriff in putting on a burglary prevention program in that county. Both the sheriff and the chief probation officer of Ogle County testified that defendant has demonstrated a sincere desire for rehabilitation. Both requested that probation not be revoked by the Circuit Court of Kane County and that defendant be transferred to Ogle County to go back to his job which was waiting for him. The defendant and the probation officer testified that the defendant pleaded guilty to Kane County offenses believing that all Kane County charges against him were thereby disposed of, and that this was so represented by the State’s Attorney of Ogle County to the Circuit Court of Ogle County.

Mr. Dondanville testified that foHowing his letter of January 22 he had an exchange of correspondence with the State’s Attorney of Ogle County concerning the charges against the defendant and that it was not until shortly after defendant’s guilty plea in Ogle County and the judgment order thereon that he discovered the two cases in Kane County on which petitions to revoke probation were pending and undisposed of in the Circuit Court of Kane County from a report by the Kane County probation officer on which he observed the defendant’s name.

Mr. Dondanville also testified concerning the size of his staff, the large volume of felony and misdemeanor cases pending and the rate of filings and dispositions. Prior to writing to the Ogle County State’s Attorney he had not made any search of Kane County records as to other charges pending against the defendant beyond those which he was personally familiar with which were listed in his letter of February 1, 1973; and he had not conducted any plea bargains with the defendant or any attorney in his behalf.

Section 5 — 4—2(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 4—2(b)) provides in pertinent part as follows:

“A defendant * * # charged, or held in custody in a county other than that in which any other charge is pending against him may state in writing or in court that he desires to plead guilty, to waive trial in the county in which the charge is pending and to consent to disposition of the case in the county in which he is held, * * * or charged, subject to the approval of the State’s Attorney for each county. Upon receiving notification from the sentencing court, the clerk of the court in which the charge is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court in which the defendant desires to plead guilty. Thereafter, the prosecution shall continue in that county.”

It was pursuant to the foregoing provision that defendant made his plea bargain, as the statute provided, with the Ogle County State’s Attorney (not with the Kane County State’s Attorney). Morever, the defendant himself certainly was aware of his probation status in Kane County, also that he had not reported to his probation officer there, and that he had violated tire conditions of his probation in Kane County. It was incumbent upon him and his attorney to ascertain whether these probation violations (or any petition to revoke such probations) were transmitted to Ogle County and included in the proposed disposition in that county. We, of course, are unable to speculate whether either the State’s Attorney of Kane County or the State’s Attorney of Ogle County would have approved the proposed disposition effectuated by the order entered in Ogle County March 15, 1973, had they been aware of the defendant’s violation of the conditions of the probation granted him in Kane County July 3, 1970.

In any case the probation violation charges in Kane County were not transmitted to the clerk of the Circuit Court of Ogle County or included in the prosecution in that court. The judgment order of the Ogle County Court is in evidence and it lists the five Kane County cases being disposed of by number, and the two cases referred to in this appeal are not listed. The question of whether the defendant would be entitled to any relief in Ogle County based on an alleged breach of an unfulfilled promise made by the State’s Attorney of Ogle County is not before us. Defendant’s reliance in the instant case on Santobello v. New York (1971), 404 U.S. 257, 30 L.Ed.2d 427, 92 S.Ct. 495; People v. White (1972), 5 Ill.App.3d 205, and People v. Pier (1972), 51 Ill.2d 96, is therefore misplaced. Each of those cases concerned a plea bargaining agreement between the prosecutor and the accused and would be relevant only in relating to any plea bargain the defendant entered into with the State’s Attorney of Ogle County. There was no plea bargain here between the defendant and the State’s Attorney of Kane County.

Next, the defendant contends that the sentence imposed by the trial court was excessive and urges a reduction of the sentence to conform to that imposed by the Ogle County Circuit Court on March 15, 1973. The trial court here heard testimony of the sheriff and probation officer of Ogle County as to defendant’s present progress in the rehabilitation program in that county. However, the court also had before it the defendant’s juvenile record of 15 months’ confinement in St. Challes School for Boys for two car thefts, the two burglary convictions in 1970 resulting in probation (which he violated by failure to report and otherwise), and seven felony convictions resulting in the March 15, 1973, judgment order.

The trial court is normally in a better position than a reviewing court to make a sound determination as to the punishment to be imposed. (People v. Burbank (1972), 53 Ill.2d 261, 275.) Hie sentence imposed was within statutorily prescribed limits and is not in variance with the spirit of the law or improper. People v. Taylor (1972), 8 Ill.App.3d 727, 732.

Therefore, the judgment of the Circuit Court of Kane County is affirmed.

Judgment affirmed.

GUILD and SEIDENFELD, JJ„ concur.

       This is not to overlook or condone the failure of the State’s Attorney of Kane County to examine the records of his office and the Circuit Court for all charges pending there against the defendant. We are aware that this failure may well have been due at least in part to an insufficient staff and an increased workload in his office.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James R. Cook, Defendant-Appellant.
    (No. 73-53;
    Second District
    September 19, 1974.

      Ralph Ruebner and Richard Wilson, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Horace Lee Holliman, Defendant-Appellant.
    (No. 72-331;
    Second District
    September 23, 1974.

      William H. Snively, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Edward N. Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

In separate jury verdicts, defendant was found guilty of both the possession of and the sale of heroin in violation of section 3 of the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, §22 — 3). He was sentenced to a concurrent term of 2 to 6 years on each count. On appeal defendant contends that (1) the eavesdropping statute is unconstitutional; (2) the testimony of the law enforcement officers concerning his conversations with the informer were improperly admitted into evidence; (3) the testimony of the law enforcement officers was perjured; (4) he was not proven guilty beyond a reasonable doubt; and (5) the sentence is excessive.

On March 5, 1971, Jacob Seibert, Jr., while in j ail charged with violating the Hypodermic Syringes and Needles Act (Ill. Rev. Stat. 1969, ch. 38, § 22 — 50 et seq.) and at his request, met with State Trooper Hendrickson and Winnebago County Detective England. As a result of the meeting, Seibert was released having agreed to work with the law enforcement officers as a paid informant.

On March 21, 1971, with permission from an assistant State’s Attorney and with the consent of the informer, officers listened, via an extension phone, to a conversation between the informer and the defendant during which the defendant agreed to sell the informer a $25 bag of heroin. Both Hendrickson and the informer testified that the voice was that of the defendant.

The next day, again with the permission of an assistant State’s Attorney and the consent of the informer, police outfitted the informer with an electronic eavesdropping device after first strip-searching him. He was given $25 in marked money and proceeded, in company with the officers, to the defendant’s house. They traveled in an unmarked surveillance truck which contained the receiver for the electronic transmitter attached to the informer. At 3:30 P.M., the informer went to the front door of the defendant’s house where defendant told him that he did not have any narcotics but would have some about 4 P.M. and that the informer should meet him then at a named cafe. Upon returning to the truck, the informer was again strip-searched; no narcotics were found. The informer and police went to the cafe and waited one hour but defendant never arrived. After leaving the cafe, the informer was again strip-searched; no narcotics were found. They drove back to the defendant’s house, the informer went to the rear door, defendant answered, and the informer gave him $25 in exchange for a foil-wrapped package. The officers overheard defendant tell the informer that he would have “smack” on a daily basis. The informer did not enter the house and was at all times within the officers’ view. Upon returning to the vehicle and after giving tire package to the police, he was again searched; no narcotics were found. A crime lab analysis revealed that within the foil package was l/200th gram of substance containing heroin. Defendant was arrested on April 7, 1971. A search of his car and person revealed no further evidence. At trial, the informer and the law enforcement officers all testified regarding these events and conversations.

Defendant took the stand in his own behalf and testified that he was in Freeport, Illinois, on the date and during the time when the offense occurred. His testimony was corroborated by two other witnesses. He also offered testimony to the effect that he did not have a telephone on March 21, 1971, tire date on which the informer was said to have called him. This testimony was corroborated by his sister and by an employee of the telephone company who testified that a phone, listed under the name of Breckenridge, was disconnected from defendant’s home on January 26, 1971, and that a new connection, under the name of Graham, was not made at that address until May 14, 1971. No listing was found under defendant’s name. On cross-examination, the telephone company employee testified that it was possible for another number to have been connected between these dates but that he could not run a check without having a specific name or number.

The eavesdropping statute provides in relevant part:

“A person commits eavesdropping when he: (a) Uses an eavesdropping device to hear or record all or any part of any conversation unless he does so with the consent of any one party to such conversation and at the request of a State’s Attorney; * ” Ill. Rev. Stat. 1969, ch. 38, § 14 — 2.

Defendant contends that the statute violates the Fourth Amendment of the U.S. Constitution, section 6 of article II of the 1870 Illinois Constitution, and section 6 of article I of the 1970 Illinois Constitution. Section 6, article II, of the Illinois Constitution (1870) and the Fourth Amendment to the U.S. Constitution contain almost identical language, but section 6, article I, of the Illinois Constitution (1970), effective July 1, 1971, has extended the rights of the people to include the right “to be secure in their persons, houses, papers and other possessions against unreasonable * * * invasions of privacy or interceptions of communications by eavesdropping devices or other means.”

In the instant case, the eavesdropping occurred prior to the effective date of the 1970 constitution, but the motion to suppress eavesdropping evidence (on the grounds that the statute was invalid under the new constitution) and the trial itself, both, occurred after the constitution’s effective date. It is necessary to decide, then, whether the above-quoted provisions are applicable. The constitution’s transition schedule provides that any new right, substantive or procedural, is prospective, not retroactive. (Ill. Const. (1970), trans. sched. §2.) We find the problem analogous to that faced by the United States Supreme Court in determining the retroactive effect of a decision that expands new constitutional rules affecting criminal trials. The determination is viewed by the Court as requiring three considerations: (a) the purpose to be served by the new standards, (b) the extent to which law enforcement authorities relied on the old standards, and (c) the effect on the administration of justice by the retroactive application of new standards. (Stovall v. Denno, 388 U.S. 293, 297, 18 L.Ed.2d 1199, 1203, 87 S.Ct. 1967 (1967).) The most important factor is the purpose to be served by the new constitutional rule. (Desist v. United States, 394 U.S. 244, 249, 22 L.Ed.2d 248, 255, 89 S.Ct. 1030 (1969).) The purpose of the new section 6, article I, of the 1970 constitution is to more effectively protect the citizens of our state from both unreasonable interceptions of communications by eavesdropping devices or other means, and unreasonable invasions of privacy. We cannot say that the purpose would be advanced by making the rule retroactive to police action that occurred prior to the constitution’s effective date and which was conducted in reliance upon a statute then in effect. Further, retroactive application would upset the administration of justice in a number of cases in the same class as that of defendant’s. We therefore find that section 6 of article I of the 1970 Illinois Constitution, to whatever extent it may have created a new right, does not apply to events that occurred prior to its effective date, and any such right does not control our determination herein.

Both the Federal and State constitutions prevent unreasonable searches and provide that no search warrants are to issue without a showing of probable cause. Defendant claims that “to allow the prosecuting officer to decide whether a search should be conducted is unreasonable per se, and since no search warrant procedure is authorized by the statute, it is unconstitutional.” We first examine whether the State’s actions (in listening to the conversations between the defendant and the consenting informer) constituted a “search and seizure” within the meaning of the Fourth Amendment to the U.S. Constitution and section 6 of article II of the 1870 Illinois Constitution.

At common law, the ancient practice of eavesdropping was condemned as a nuisance. (4 Blackstone, Commentaries, 168.) Since the days of Lord Camden, intrusions into individual privacy have been condemned as “subversive of all the comforts of society.” (Entick v. Carrington, 19 How. St. Tr. 1029, 1066 (1765).) Our founding fathers saw fit to recognize the right to privacy by the drafting of the Fourth Amendment. Unlike his ancient counterpart, the modern eavesdropper is no longer limited by proximity; sophisticated electronic devices now facilitate eavesdropping in almost any situation. The law, though jealous of individual privacy, has not kept pace with technological advances. (Berger v. New York, 388 U.S. 41, 47-48, 18 L.Ed.2d 1040, 1045-46, 87 S.Ct. 1873 (1967).) In Illinois, the eavesdropping statute was construed by tire supreme court in People v. Kurth, 34 Ill.2d 387, 395 (1966), wherein it was held that a recording of a conversation obtained by eavesdropping was inadmissible against a party who had not consented to or had knowledge of the recording. The statute was amended in 1969 to allow eavesdropping subject to the request of a state’s attorney and the consent of one party to the conversation. The defendant contends that this exception to the statutory prohibition is unconstitutional. We disagree.

In Katz v. United States, 389 U.S. 347, 351-52, 19 L.Ed.2d 576, 582, 88 S.Ct. 507 (1967), the court explained that “the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, * * * is not a subject of Fourth Amendment protection. But what he seeks to preserve as private * * * may be constitutionally protected.” Thereafter, in United States v. White, 401 U.S. 745, 749-52, 28 L.Ed.2d 453, 457-59, 91 S.Ct. 1122 (1971), the Court found that police eavesdropping on conversations between an accused and a consenting informant did not violate the fourth amendment. The Court reasoned that:

"[Hjowever strongly a defendant may trust an apparent colleague, his expectations in this respect are not protected by the Fourth Amendment when it turns out that the colleague is a government agent regularly communicating with the authorities. In these circumstances, no interest legitimately protected by the Fourth Amendment is involved,’ for that amendment affords no protection to ‘a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.’ Hoffa v. United States, at 302, 17 L Ed 2d at 382. No warrant to search and seize’ is required in such circumstances, nor is it when the Government sends to defendant’s home a secret agent who conceals his identity and makes a purchase of narcotics from the accused, Lewis v. United States, 385 US 206, 17 LEd 2d 312, 87 S Ct 424 (1966), or when the same agent unbeknown to the defendant, carries electronic equipment to record the defendant’s words and the evidence so gathered is later offered in evidence. Lopez v. United States, 373 US 427, 10 L Ed 2d 462, 83 S Ct 1381 (1963).
* * * Our problem, in terms of the principles announced in Katz, is what expectations of privacy are constitutionally "justifiable’ — what expectations the Fourth Amendment will protect in the absence of a warrant. So far, the law permits the frustration of actual expectations of privacy by permitting authorities to use the testimony of those associates who for one reason or another have determined to turn to the police, as well as by authorizing the use of informants in the manner exemplified by Hoff a and Lewis. If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case.”

Our supreme court has held that the Fourth Amendment to the U.S. Constitution and section 6 of article II of the 1870 Illinois Constitution should be construed alike. (People v. Tillman, 1 Ill.2d 525, 529 (1953).) Therefore, based on White, we hold that the defendant’s constitutional right to privacy was not violated, there being no search and seizure here involved; that the statute is valid; and that the procedure provided by the statute may be initiated without a warrant or other court approval.

Defendant next contends that the trial court erred by admitting the officers’ testimony regarding conversations between defendant and the State’s informant. He argues that such evidence was obtained in violation of the statute inasmuch as an assistant State’s Attorney, not the State’s Attorney, approved the eavesdropping. The legislature, in using the term “a State’s Attorney,” contemplated that an assistant State’s Attorney could act in this regard. (People v. Nahas, 9 Ill.App.3d 570, 575-76 (1973).) Therefore, approval by the assistant State’s Attorney satisfied the requirement of the statute and, coupled with the consent of the informer, fully complied with the conditions of exception to the eavesdropping statute. The testimony of the officers who overheard these conversations was, in this regard, admissible.

The defendant further maintains that the testimony of the law-enforcement officers was perjured and that the use of this testimony deprived the defendant of a fair trial. This claim of error was not raised in defendant’s post-trial motion nor was the report of proceedings on defendant’s post-trial motion included in the record. Due to the constitutional dimension of the allegation, however, we here consider the issue which is one of fact. (People o. Bassett, 56 Ill.2d 285, 293 (1974).) Defendant claims that the two officers gave testimony which varied from earlier testimony, reports and pictures. At trial, England testified that on the first visit to defendant’s home the informer went to the front door: at an earlier hearing and in his police report, he stated that the informer went to the rear door. When questioned about this discrepancy, England testified that he had erred in his earlier testimony and report. Two officers testified at trial that they could see the defendant’s rear door from the van: defendant offered pictures into evidence to show that the door was not visible from that location. A discrepancy also occurs between the testimony of the officers as to whether the informer was searched after his initial meeting with the defendant and as to whether he still had the marked money at that time. Hendrickson testified that the informer was searched after his initial meeting and that he still had the marked money. England did not testify about the search and said he was uncertain whether the informer still had the money although in his report he had stated that the defendant was searched after the initial meeting and found to have no money. The defendant also cites the discrepancy between the name of the defendant and the name of the “suspect” shown on the evidence tag attached to the package of heroin: the tag read Chester Holliman, not Horace Holliman. The evidence tag was the only place in which the suspect was referred to as “Chester.” At trial and in the earlier reports of the two officers’ and of the informer, it was uncontradicted that the man who made the delivery to the informer was Horace Holliman, the defendant in the case at bar.

The question is whether these inconsistencies and discrepancies constituted “the prosecution’s use or reliance on testimony known to be false.” (People v. Martin, 56 Ill.2d 322, 325 (1974).) In this type of allegation the burden of proof is on the defendant (People v. Harris, 55 Ill.2d 15, 18 (1973)), and a conclusion that testimony was perjured cannot be drawn solely from the circumstance that a witness has given contradictory evidence. (People v. Nuccio, 54 Ill.2d 39, 50 (1973).) Under the facts here, we find no merit to defendant’s claim that the officers’ testimony was perjured.

Defendant asserts that he was not proven guilty beyond a reasonable doubt in that the evidence against him was based on the testimony of an addict-informer and should, therefore, not be believed. While the testimony of an addict-informer, standing alone, is viewed with suspicion and must be carefully scrutinized (People v. Bazemore,, 25 Ill.2d 74, 76-77 (1962); People v. Porter, 13 Ill.App.3d 437, 439 (1973),) here the addict-informer’s testimony was corroborated by close police surveillance and eavesdropping. Where the addict-informer’s testimony is corroborated by close police surveillance, his testimony may be believed. (People v. Hill, 83 Ill.App.2d 116, 119-23 (1967).) We find that sufficient corroborating evidence was presented to support the credibility of the addict-informer and to sustain the convictions of the defendant for sale and possession of heroin beyond a reasonable doubt.

Defendant additionally argues that he was not proven guilty beyond a reasonable doubt because testimony of the defense witnesses exonerated him. Ignoring the fact that one of his own witnesses contradicted him (defendant claimed he was in Freeport all day on March 22. 1971, but his father testified that he saw the defendant in Rockford on the afternoon of that same date), it remains that the jury was not obligated to believe the testimony of the defendant and his corroborating witnesses, for where there is clearly conflicting testimony, it is the province of the jury to weigh the evidence and decide whose testimony is credible. Unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt as to defendant’s guilt, a jury’s verdict should stand. (People v. Nuccio, supra, at 51.) Under the facts here, the defendant has not met this test and therefore the verdict must stand.

Defendant contends that the concurrent sentences of 2 to 6 years for sale and possession of heroin are excessive. Before reaching defendant’s claim, we note that possession of heroin is a lesser included offense of the charge of selling heroin. (See People v. Strong, 21 Ill.2d 320, 323-24 (1961); People v. King, 34 Ill.2d 199, 202 (1966).) We also note that both counts of the indictment were based upon a single act of the defendant. Under such circumstances there can be but one sentence (People v. Duszkewycz, 27 Ill.2d 257, 259-62 (1963)), and one judgment of conviction (People v. Schlenger, 13 Ill.2d 63, 65-67 (1958)). Accordingly, we reverse the judgment of conviction and vacate the sentence as to the count of the indictment charging defendant with the lesser included offense of possession of heroin. People v. Lilly, 56 Ill.2d 493, 495-96 (1974).

Section 411 of the Controlled Substance Act (Ill. Rev. Stat. 1971, ch. 56V2, § 1411) notes certain aggravating factors to be considered in sentencing. Those relevant are the unlawful delivery of a Schedule 1 controlled substance and the non-possessory offenses of persons who have no other visible means of support. Heroin is a Schedule 1 controlled substance and defendant here was unemployed prior to his arrest. Under the circumstances, although the defendant has no prior felony record, we find that the sentence of 2 to 6 years is not excessive.

The judgment of conviction for the possession of heroin is reversed and the sentence imposed thereon is vacated. In all other respects, the judgment is affirmed.

Reversed in part; affirmed in part.

SEIDENFELD and RECHENMACHER, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Douglas Edward Smith, Defendant-Appellant.
    (No. 12290;
    Fourth District
    September 19, 1974.
    John F. McNichoIs and J. Daniel Stewart, both of State Appellate Defender’s Office, of Springfield, for appellant.
    No appearance for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

Defendant was sentenced to 1 to 3 years for burglary. He urges now that the trial court did not adequately admonish him before accepting his plea of guilty to insure that his plea was knowingly and voluntarily made as required by Supreme Court Rule 402. (Ill. Rev. Stat. 1971, ch. 110A, par. 402.) The office of the State appellate defender has moved to withdraw as counsel for the defendant for the reason that there is no justiciable issue for review and that any request for review would be frivolous. Accordingly, we will examine the record to satisfy ourselves that such is the case.

To comply with Rule 402, the court must inform the defendant of the nature of the charge. The indictment was read to defendant: “The essence of this offense of burglary is that ** * * you entered this building without permission, without authority, and that your intention in entering the building was to steal something.” The defendant responded that he understood. The Rule next requires admonishment as to the minimum and maximum sentences. The court answered this requirement by explaining that the possible penalty for burglary is 1 to 20 years with a "mandatory three years parole in addition to whenever you were released” and that he might be fined up to $10,000. Also, that any sentence imposed would have a minimum and maximum within these limits and that the minimum could not be greater than one-third of the maximum. Amplification followed with examples.

In further compliance with the Rule, the court admonished that defendant could plead not guilty and the State would be required to prove him guilty beyond a reasonable doubt; that he could have a jury trial or a trial before the court; that the State would have to call witnesses; that he would be entitled to question the witnesses; that he could call witnesses himself; that he could testify but that no one could force him to and that his failure could not be commented on, and that a plea of guilty would waive a trial of any kind. Defendant responded that he understood that by pleading guilty he was admitting that he entered the building and that he intended to steal something.

The Rule next requires a determination by the court that the plea was voluntary. The court explained that he was making no commitment with respect to sentence. Defendant said no one had promise him anything, nor had anyone threatened him or promised him anything to get him to plead guilty. He said he was pleading guilty because he had committed the offense and wanted to admit he did so. He was also satisfied with his attorney’s representation. Next, the court determined a factual basis for the plea. The assistant State’s Attorney advised that on a given date defendant and another person went to the building in question, entered it through a rear window and did so for the purpose of removing certain items — it was a furniture store — and that they were later recovered whereupon defendant gave a voluntary statement to the police admitting his participation. Defendant said that this recitation was substantially correct. Thus, the court complied with all of the sub-paragraphs of Rule 402 except (d), but such sub-paragraph is nonoperative here because there was no plea agreement. Following a pre-sentence report and a hearing on sentencing, the l-to-3-year sentence followed.

In our opinion there has been substantial and full compliance with Rule 402 and with the constitutional requirement that guilty pleas be made knowingly and voluntarily. (Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709.) The judgment appealed from is affirmed and the motion to withdraw as counsel is allowed as there is no justiciable issue for review.

Affirmed.

CRAVEN and SIMKINS, JJ., concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee v. Kenneth Eugene Ratliff, Defendant-Appellant.
    (No. 12494;
    Fourth District
    September 19, 1974.
    John F. McNichols and John L. Swartz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Thomas L. Knight, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant-appellant Kenneth Eugene Ratliff was tried before a jury, convicted of the crime of armed robbery, and sentenced 4 to 12 years. On appeal he contends that the judgment should be reduced from armed robbery to robbery since the weapon used was a .22-calibre pistol designed to fire blank cartridges, and therefore not a dangerous weapon.

Section 18 — -2(a) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 18 — 2(a)) provides that a person who commits a robbery while armed with a dangerous weapon is guilty of armed robbery. During the course of the trial the State stipulated that the weapon in question was designed to fire blank cartridges. This stipulation was read to the jury. The robbery in question was committed during the early morning hours on April 16, 1973. Defendant walked into the Martin oil station, pointed a pistol at the assistant manager, then demanded and received money from him. The defendant was about 3 or 4 feet from the victim when this occurred. Defendant was apprehended by the police very shortly after the robbery. The arresting officer identified the pistol in question as the one which he took from the defendant at the time of arrest. The victim was unable to state that the .22-calibre pistol seized by the officer, and admitted into evidence, was the pistol used during the robbery, but testified that it was “similar”. The State argues that the pistol was a dangerous weapon “* * * because it was of such a character and was used in such a manner and in such circumstances ” * * that it could have been employed immediately as a bludgeon to cause death or great bodily harm” since the defendant was in such close proximity to the victim during the course of the robbery. We affirm.

Defendant cites People v. Trice, 127 Ill.App.2d 310, 262 N.E.2d 276. In Trice the weapon used was a “starter pistol”. The issue was raised, on appeal, as to whether or not it was a dangerous weapon within the meaning of the armed robbery statute. In affirming the conviction the appellate court stated that the gun “* * * was held to the head of the victim; there was also testimony that a charge from a shell can create a high flash and cause considerable damage. Based upon such testimony the jury was entitled to conclude the weapon was dangerous.” (127 Ill.App.2d at 321.) In so holding the court cited, with approval, the following language from People v. Dwyer, 324 Ill. 363, 365, 155 N.E. 316, 317:

“ ‘Where the weapon in question and the manner of its use are of such character as to admit of but one conclusion, the question whether or not it is deadly is one of law for the court to determine, but when the character of the weapon is doubtful or the question depends upon the manner of its use it is a question for the jury to determine from a description of the weapon, from the manner of its use and the circumstances of the case.’ ” 127 Ill.App.2d at 320.

Defendant argues that there is nothing in the record' upon which it may be concluded that the weapon was dangerous “as used.” We note that the “starter pistol” in Trice was used to threaten the victim; in Dwyer the weapon was a pistol but there was no allegation that it was loaded. It, too, was used to threaten the victim. We do not understand Dwyer, or Trice to stand for the proposition that injury or physical harm must be inflicted upon a victim as a prerequisite to a finding that the instrumentality is a dangerous weapon.

The weapon in question is a piece of metal; it could have been a brick, a ball bat or anything else which could be utilized in a manner dangerous to the physical well-being of the individual threatened. We, therefore hold that the jury was fully justified in finding that the pistol used by the defendant was a dangerous weapon within the purview of the statute.

Judgment affirmed.

SMITH, P. J., and CRAVEN, J. concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John E. Hartley, Defendant—(William Howard Holman, Contemnor-Appellant.)
    (No. 12138;
    Fourth District
    September 19, 1974.

      John F. McNichols and Brace L. Herr, both of State Appellate Defender’s Office, of Springfield, and Patrick J. Flynn, Senior Law Student, for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (Michael Prall, of Circuit Attorney Project, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Appellant, Holman, and one Hartley, were charged with conspiracy to commit armed robbery. Claiming privilege against self-incrimination Holman refused to testify for the prosecution at the trial of Hartley. The trial court adjudged Holman in contempt and sentenced him to 6 months in jail. He appeals.

At the time the claim of privilege was asserted and denied, Plolman had been convicted of the offenses charged upon a jury verdict. It was agreed that motions in arrest of judgment and for a new trial had been argued and were being held under advisement before another judge. It was also agreed that Holman had not testified at either his preliminary hearing, before the grand jury or at his own trial.

The colloquy of record shows that out of the presence of the jury Holman’s counsel requested that the court advise of the privilege against self-incrimination. He then asserted the claim of privilege. Although requested, neither counsel provided authority upon the particular issue. The court stated his “impression” that once there had been a verdict of guilty, no privilege existed and that the pendency of a new trial or an appeal did not afford immunity.

We find persuasive authority to the contrary. In Malloy v. Hogan, 378 U.S. 1, 12 L.Ed.2d 653, 84 S.Ct. 1489, the Supreme Court reversed the Supreme Court of Connecticut saying that the 14th Amendment to the United States Constitution made the 5th Amendment applicable to the States, and that a State may not imprison for refusal to give answers which might tend to incriminate. See Halpin v. Scotti, 415 Ill. 104, 112 N.E.2d 91.

The conviction here was not final in several aspects. Sentence had not been imposed. In Mills v. United States (1960), 281 F.2d 736, the court sustained the privilege claimed by a codefendant called to testify for the defendant where the witness had been convicted but not yet sentenced. The court stated that the time for appeal had not expired and that the witness claiming privilege might incriminate herself, both as to the fixing of sentence and as to the results of an appeal. In State v. Tyson, 43 N.J. 411, 204 A.2d 864, the claim of privilege was sustained where the witness had pleaded guilty but had not yet been sentenced. The court noted that the answers, if compelled, might influence the court in the exercise of its- discretion upon a motion to withdraw- the plea of guilty. See also Evans v. State (1852), 1 Ohio Dec. Reprint 436; Annot., 9 A.L.R. 3d 990.

Directly in point, the claim of privilege is properly sustained where there has been a conviction but a motion for a new trial pends. Stallings v. State (1911); 136 Ga. 131, 70 S.E. 1015.

We find persuasive authority that the claim of privilege should be sustained where an appeal pends. Frank v. United States, (D.C. Cir. 1965), 120 U.S. App. D.C. 392, 347 F.2d 486; State v. Johnson, 77 Idaho 1, 287 P.2d 425, 51 A.L.R.2d 1386. In People v. DenUyl, 318 Mich. 645, 29 N.W.2d 284, 2 A.L.R.2d 625, defendant’s conviction and sentence had been affirmed on appeal, but a petition for certiorari was then pending before the United States Supreme Court. The Michigan Supreme Comt approved the language of the trial judge who said, in elucidating the complexities of the issue:

“T do not believe that the verdict of guilty concludes that case in the Federal Court, nor does it render the danger of self-incrimination remote or fanciful or speculative, as alleged in this motion; and that does not become true, in my judgment, until such time as the time for appeal passes and the person convicted commences to serve the sentence imposed upon him without further right of appeal except by a special leave of the court, because, in my judgment, * * 9 if the case should for any reason be reversed and sent back for a new trial, the danger of self-incrimination again arises.”’ (Emphasis supplied.) 318 Mich, at 649, 29 N.W.2d at 286: l

In Davis v. State (Tex. Crim. App. 1973), 501 S.W.2d 629, defendant had been convicted of murder but his appeal "was pending. It was held that there had not been a final adjudication and the claim of privilege was properly allowed for if there was a new trial the testimony for which privilege was claimed might be used against defendant. In Mills v. United States (1960), 281 F.2d 736, the court sustained the claim of privilege noting that the witness who claimed privilege had neither been sentenced nor had the time for appeal expired.

The prosecution cited People v. Reeves, 50 Ill.2d 28, 276 N.E.2d 318; Knox v. State, 234 Md. 203, 198 A.2d 285; United States v. Gernie, 252 F.2d 664; and United States v. Hoffman, 385 F.2d 501. In each case defendant had pleaded guilty. None of these cases referred to an issue concerning the finality of the conviction. The cited Reina v. United States, 364 U.S. 507, 5 L.Ed.2d 249, 81 S.Ct. 260, held that a federal statute was constitutional upon tire construction that it granted immunity in both State and Federal prosecutions. In Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709, and McCarthy v. United States, 394 U.S. 459, 22 L.Ed.2d 418, 89 S.Ct. 1166, it is held that a plea of guilty in-, dudes a waiver of the privilege against self-incrimination.

In Halpin v. Scotti, 415 Ill. 104, 108, 112 N.E.2d 91, the court examined an immunity statute and stated that the reason for the privilege remains unless the witness “is fully protected from the effects of his testimony.” In Hoffman v. United States, 341 U.S. 479, 95 L.Ed. 1118, 71 S.Ct. 814, the court stated as a standard that it must be perfectly clear under all of the circumstances that the answers of tire witness' cannot possibly have a tendency to incriminate hinr.

No Illinois cases directed to this issue have been cited. Upon the: record showing that there had been no waiver of the privilege against self-incrimination, that the conviction was not final and that Holman was not fully protected “from the effects of his testimony”, it was error to: deny the claim of privilege against self-incrimination. With such conclusion, it is unnecessary to review the other issues argued.

The judgment below is reversed.

Reversed.

SMITH, P. J., and CRAVEN, J., concur.

       The Connecticut Court had held that the defendant had not properly invoked the privilege under the State constitution and that the 5th Amendment did not apply to the several States.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ralph B. Kelly, Defendant-Appellant.
    (No. 12274;
    Fourth District
    September 19, 1974.

      John F. McNichoIs and Daniel D. Yuhas, both of State Appellate Defender’s Office, of Springfield, for appellant.
    George P. Wittman, State’s Attorney, of Jerseyville (Michael Prall, of Circuit Attorney Project, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Ralph B. Kelly, appeals from judgments entered on jury verdicts finding him guilty of two counts of armed robbery and from concurrent sentences imposed of 20 to 50 years imprisonment on each count.

Defendant raises the following issues for resolution by this court:

(1) Whether the trial court erroneously admitted the in-court identification of defendant by Mrs. Brands and Mrs. Maurer,

(2) Whether Officer Watson’s reference to the attache case seized from defendant as a “housebreaking kit” amounted to reversible error,

(3) Whether certain closing prosecutorial statements amounted to reversible error and

(4) Whether defendant’s sentences were excessive.

At the trial Frank Maurer, the operator of the River Road Antique Shop in Grafton, Illinois, testified that on October 27, 1972, he and his wife, Gretchen, were closing their business when two individuals entered the establishment followed shortly thereafter by the defendant. Maurer stated that he recognized all three since they had been in the antique shop the day before. He stated that defendant pulled a revolver, pointed it at him stating that this was a hold-up, bound their hands with tape, and forced them to lie on the floor in a back storeroom. Maurer further testified that he observed defendant for approximately 5 to 10 minutes under good lighting conditions, that he had a good look at defendant, and that defendant was the same individual who had pointed a gun at him on the night in question.

Edith Brands, an acquaintance of Mrs. Maurer, testified that while the robbery was in progress she arrived at the shop to pick up Mrs. Maurer so that they could go to a local grade school function. She stated that she entered the front door and was told by a woman subject to proceed to the rear where she was informed that tire Maurers were in the storeroom. She stated that once inside the storeroom defendant pointed a gun at her telling her to cooperate and she would not get hurt. Defendant then took a diamond ring from her, bound and gagged her, and forced her to lie on the floor. She identified defendant as the individual in question stating that she observed him for approximately 1 to V-k minutes under good lighting conditions.

Gretchen Maurer verified her husband’s testimony of the events on the evening in question and likewise identified defendant as the individual who had pointed the gun at her and who had bound her. She stated that she saw defendant for at least 3 to 4 minutes under good lighting conditions and that she viewed him close up for the entire period of time that he was taping her.

After the three robbers left the shop, the Maurers freed themselvés and called the local authorities. Larry Newingham, a Grafton police officer, testified that upon arriving at the shop he was told by Mrs. Brands that she thought the robbers were in a dark green station wagon headed east toward Alton, Illinois. He stated that he proceeded to alert the Alton police. Gray Fleming, an Alton police officer, testified that on the evening in question he observed a dark-green-colored station wagon matching the description relayed to him containing three individuals also matching the descriptions of the suspects in question. He further stated that after attempting to elude the police, the car was finally forced to stop. Officer Logan testified that he apprehended the defendant who was the driver of the vehicle in question. Officer Watson testified that a search of the car turned up three boxes of assorted antiques, two pistols, and an attache case containing rolls of tape, a Phillips-head screwdriver, and other items. Officer Watson stated that the latter is commonly referred to as a “house-breaking” kit. Officer Conner testified that he searched defendant after he was taken to the Alton Police Department and found a diamond ring in his right hand jacket pocket.

The jury subsequently returned a verdict finding defendant guilty of both counts of armed robbery. A hearing in aggravation and mitigation was conducted on February 22, 1973, after which defendant received the concurrent 20 to 50 year sentences.

Defendant first contends that the trial court erroneously admitted the in-court identification of defendant by Mrs. Brands and Mrs. Maurer. We note that on the evening of his apprehension the defendant was subjected to a lineup at which he was identified by Mrs. Brands and Mrs. Maurer. Prior to trial defendant filed a motion to suppress the lineup identifications, and a hearing was held in that regard. On January 30, 1973, the court suppressed the lineup evidence on the grounds that defendant was denied his right to counsel at the lineup after making a demand therefor. Prior to the testimony of Mrs. Brands, defense counsel-moved that she not be allowed to give identification testimony citing the suppression of her out-of-court identification of defendant. Arguments were proffered to the court, and the court ruled that Mrs. Brands would only be allowed to make an in-court identification if the. State could establish that she was not relying upon the lineup to support her identification. She then proceeded to testify as to her observations of defendant outside the presence of the jury. The trial judge then specifically inquired whether she could identify the individual who robbed her if she had not seen him in the lineup. She replied affirmatively. The trial court then specifically found that any in-court identification by Mrs. Brands would not be predicated upon the lineup identification, and that she would be permitted to identify defendant in the presence of the jury. Defense counsel made a similar objection prior to the testimony of Mrs. Maurer. After a hearing on the motion and after testimony by Mrs. Maurer outside the presence of the jury, tire court also concluded that her identification of defendant would not be based upon her lineup identification, and that she would be permitted to identify defendant in the presence of the jury. We find the procedures used by the trial court here to be clearly proper, and we see absolutely no merit in defendant’s argument.

It is well established that the State may use in-court identification if it can establish that the in-court identification is independent of any type of tainted out-of-court confrontation. (United States v. Wade, 388 U.S. 218 (1967).) Even assuming then that the lineup identification here was properly suppressed, the record demonstrates that the in-court identification of defendant by Mrs. Brands and Mrs. Maurer had origins independent of the line-up confrontation, and the trial court was correct in so finding. Mrs. Brands stated that she observed defendant closeup and under good lighting conditions for approximately 1 to IVz minutes. Mrs. Maurer stated that she observed defendant for 3 to 4 minutes under good lighting conditions, and that she viewed him close up for the entire period of time he was taping her. Both women heard the defendant speak, described his clothing in great detail, and impressed upon the court that their knowledge of details were due to the frightening nature of their confrontation. It clearly cannot be said tiren that the trial court’s finding of independent origin was erroneous.

Defendant next contends that Officer Watson’s reference to the attache case seized from defendant as a “housebreaking kit” denied defendant a fair trial and amounted to reversible error. We note that defense counsel made no objection to the witness’ reference in question nor was the alleged error included in defendant’s post trial motion. An examination of the record further reveals that Watson volunteered his characterization of the kit, was asked no further questions in that regard by the state, and it was the defense counsel who decided to question further in this regard, thus carrying it beyond all necessary limits. Nevertheless, the trial judge sua sponte instructed the jury to disregard any reference to the attache case as a housebreaking kit. This limiting instruction and the overwhelming evidence of guilt clearly indicates that any error in this regard is harmless beyond a reasonable doubt.

The defendant next contends that the following prosecutorial closing remarks amounted to reversible error:

"I’m just going to state what sort of recapitulates goes over what you’ve heard here the last few days, and I think after I go over these statements that were made on the witness stand and uncontradicted statements of the witnesses that you will find defendant guilty of armed robbery.”

Defendant argues that tírese comments are actually comments upon defendant’s failure to testify in his own behalf. Even assuming that defendant’s characterization of these comments as a reference to defendant’s failure to testify is correct, we further note that defense counsel failed to object to these comments. In People v. Skorusa, 55 Ill.2d 577, 304 N.E.2d 630, our supreme court held that an objection on appeal to an allegedly improper comment during closing argument regarding a defendant’s failure to testify is waived by failure to make timely objection. Such is the case here.

Defendant finally contends that the concurrent sentences of 20 to 50 years imposed upon him for the two counts of armed robbery are excessive. We agree and chose to follow this court’s opinion in People v. Dandridge, 9 Ill.App.3d 174, 292 N.E.2d 51. Accordingly, the minimum concurrent sentences here are reduced from 20 to 10 years, but the maximum concurrent sentences imposed by the trial court are affirmed.

Accordingly, for the reasons stated above the judgments of the circuit court of Jersey County are hereby affirmed, the sentences modified, and the cause is remanded to the circuit court with directions to issue an amended mittimus.

Sentences modified, judgments affirmed as modified.

SMITH, P. J„ and CRAVEN, J., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerry Smith, Defendant-Appellant.
    (No. 73-191;
    Third District
    September 19, 1974.
    James Geis, of State Appellate Defender’s Office, of Ottawa, for appellant. j
    LaMarr Evans, State’s Attorney, of Oquawka, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant Jerry Smith plead guilty to a charge of burglary. He was sentenced to a term of from 1 to 3 years by the Circuit Court of Henderson County.

The issues presented for review are whether the trial court erred in refusing to allow the defendant to withdraw a guilty plea which had been induced by the defense attorney’s erroneous representation that the defendant would receive probation and whether defendant should be permitted to plead anew because prior to accepting the guilty plea the trial court failed to determine that defendant understood the nature of the charge.

There is no brief in this court on behalf of the People. It is well settled that lack of brief by the appellee permits reversal with no discussion of the merits. If it would be manifestly unjust to reverse pro forma, the court may exercise its discretion and consider the appeal on its merits. (2 I.L.P. Appeal and Error §560 (1953).) After examining the record and the issues we have determined that pro forma reversal is the appropriate action. People v. Elliott, 9 Ill.App.3d 178.

Accordingly, the judgment of the Circuit Court of Henderson County is reversed and the cause remanded to the trial court with direction that defendant be permitted to plead anew.

Reversed and remanded with directions.

ALLOY and STOUDER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward Cavett, Defendant-Appellant.
    (Nos. 74-99, 73-154 cons.;
    Third District
    September 19, 1974.
    James Geis, of State AppeUate Defender’s Office, of Ottawa, for appellant.
    Henry D. Sintzenich, State’s Attorney, of Macomb, for the People.


author: Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Timothy B. Hester, Defendant-Appellee.
    (No. 73-290;
    Third District
    September 19, 1974.

      Charles D. Sheedy, Jr., of Model District State’s Attorneys Office, of Elgin, for appellant.
    Dennis K. Cashman, of Quincy, for appellee.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

The People of the State of Illinois under the authority of Rule 604(a) (1) (Ill. Rev. Stat. 1973, ch. 110A, par. 604(a)(1)) appeal from that portion of the order of the circuit court of McDonough County granting in part defendant’s, Timothy Hesters, motion to suppress evidence.

The only issue presented by the appellant on review is whether the trial court erred in suppressing certain items of evidence that were not specifically listed in the search warrant. Defendant-appellee raises the related issue as to whether the trial court erred in not suppressing more items.

' Oh March 15, 1973, security police at Western Illinois University received a call to the effect that there was a bomb on the 15th floor of Thompson Hall. The cáínpus police officers proceeded to the dormitory and began to search: the rooms on the 15th floor including room 1515 which was registered to defendant. The director of public safety for the University testified he personally saw lying on a desk in room 1515 about thirty grams of marijuana along with two pipes which he concluded were hash pipes. The officers did not seize these articles at that time. They searched the room for a bomb and then sealed the room. Later that evening the officers applied for a search warrant to search both room 1515 and the person of defendant for marijuana and hash pipes. The search warrant authorized “* * * the person of Tim Hester and Room 1515 Thompson Hall Western Illinois University, Macomb, Illinois be searched and * * « evidence of, the offense of unlawful possession of cannabis be seized therefrom: marijuana (cannabis ), hash pipes.” The officers returned and searched the entire room. While searching the room the officers also seized other items which they considered' to be contraband. Upon motion by defendant to suppress, the Iowér court suppressed all items which ■' did not constitute either marijuana or hash pipes. The items excluded included a pint bottle containing unidentified fluid, a notebook, a plastic card file box with address cards, a pocket knife and a dial-o-gram scale.

There are two main issues on appeal. The first is whether the police officers were limited to seizing the cannabis and hash pipes which served as the basis for the issuance of the warrant, i.e., that which was observed on the desk by the security officer. The second issue is whether the police were necessarily limited to seizing items- mentioned in the warrant, i.e., marijuana and hash pipes.

We shall first discuss defendant’s contention on appeal that the officers were limited to taking the cannabis and hash pipes on the desk. The trial court in its order to suppress evidence implicitly recognized the officers were not so limited as contended by defendant. The legal issue here is whether the search warrant which was based upon the personal knowledge of the director of public safety for the University so limited the officers to seizing the items which they knew were present on the desk. The contention may be worded thusly: Once the cannabis and hash pipes on the desk were seized the officers’ authority was terminated and any further search would constitute an exploratory search which would be contrary to both the Illinois and the Federal constitutional protections against unreasonable searches and seizures. The contention in the present case must be rejected for the search warrant was issued on the basis that there was probable cause to believe that both the room and person of defendant, Timothy Hester, contained marijuana and hash pipes. The fact that hash pipes and marijuana were observed on the desk would not limit the officers to seizing merely those items. This observation in itself could constitute probable cause for believing other similar items were located elsewhere on the person and in the room of defendant.

The second issue dealing with whether officers are necessarily limited to seizing items specifically mentioned in the search warrant has been dealt with in many cases both at the United States Supreme Court and Illinois level. The general rule was enunciated in Abel v. United States, 362 U.S. 217, 238, 4 L.Ed.2d 668, 686, 80 S.Ct. 683, where the Court stated, “When an article subject to lawful seizure properly comes into an officer’s possession in the course of a lawful search it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for.” This particular quotation was cited in People v. Myles, 2 Ill.App.3d 955, 275 N.E.2d 691. The same rule was stated in somewhat different fashion in Warden v. Hayden, 387 U.S. 294, 18 L.Ed.2d 782, 87 S.Ct. 1642, where the Court held that the search must be one directed in good faith toward the objects specified in the warrant and must not be a general exploratory search through which the officers merely hope to discover evidence of wrongdoing.

In the present case the trial court suppressed evidence on the grounds the evidence was not specifically described in the search warrant. As mentioned earlier it did allow the admission of evidence other than that which was on the desk as observed earlier by the police officer. In accordance with the above stated rules the order of the circuit court suppressing all items other than those originally observed by the police officer must be reversed. The search warrant in this case authorized the police officers to search the room and person of Timothy Hester for marijuana and hash pipes. The warrant did not limit the officers to seizing the evidence which had been observed on the desk. The observation of the marijuana and hash pipes on the desk constituted probable cause for finding more of such evidence in the room and on the person of defendant. Although this court reverses the order of the circuit court it should be mentioned that there is some question as to the particular relevance of some of the items seized by the police officers.

For the foregoing reasons, the order of the circuit court of McDonough County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

ALLOY and DIXON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronnie Williams, Defendant-Appellant.
    (No. 74-243;
    Third District
    September 19, 1974.
    James Geis, of State Appellate Defenders Office, of Ottawa, for appellant.
    Michael Mihm, State’s Attorney, of Peoria, for the People.