author: Mr. JUSTICE HUNT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Bissonnette, Defendant-Appellant.
    (No. 72-242;
    Second District
    July 10, 1974.

      Frank Wesolowski, Jr., Public Defender, of Wheaton (Robert H. Heise, Assistant Public Defender, of counsel), for appellant.
    William V. Hopf, State’s Attorney, of Wheaton (Malcolm F. Smith and Ralph J. Gust, Jr., Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE HUNT

delivered the opinion of the court:

This is an appeal from a conviction by a jury, and concurrent sentencing of 4 to 10 years for each of the crimes of attempt (rape) and deviate sexual assault. Defendant challenges the indictment, the proof and the sentencing.

The complaining witness was a 20-year-old woman, a student at Wheaton College. On May 16, 1971, about 10:30 in the morning, she rode with a friend to a rural pasture and timber area near a road known as Prairie Path. The friend left and prosecutrix lay on the grass to sunbathe and study some college texts. The nearest dwelling was at least a block away and no one was within sight or sound of her at this time. She was dressed in blue jeans rolled to the knees, over panties, and a blue work shirt with the shirt tail out, sleeves rolled to the elbow over a bra.

The defendant, who lived in the area, approached and started a conversation with her. He was wearing a shirt and slacks and had a sheath knife in a hunting case on his belt. He told her that he had a gun and that she better come with him or someone would get hurt. She looked around and, seeing no help or avenue of escape, elected to accompany him. He took her hand and led her a distance of about 500 feet to a wooded area heavy with underbrush where he ordered her to sit down. She repeatedly plead with him, “Please don’t hurt me,” but displayed no further resistance to his advances for a time. He talked to her briefly about life in communes, the new morality, free love and the joys of body kissing. He then unbuttoned her shirt, lifted her bra and kissed her on the neck, breasts and stomach. She remained passive. He then removed her jeans and panties and kissed her legs and stomach. Then, spreading her legs and placing them over his shoulders, he placed his mouth hard against her vagina and again kissed her legs and abdomen.

He then put her legs down, folded her jeans and placed them under her hips and opened his pants exposing his penis. She said that she was a virgin and asked him not to have intercourse with her and he agreed not to. He told her to lie flat on her back and he placed his penis between her legs close to the vagina and told her to pull her legs together. There followed a simulated intercourse without noticeable penetration for a period of about 20 minutes.

At that time the movements of his hips loosened the sheath knife which fell to the ground at her side. She felt around, found the knife and jabbed it into his side just below the shoulder at the eighth rib, almost puncturing the lung and leaving a cut 1 to IV2 inches wide.

The defendant sat back and prosecutrix held on to the knife. A struggle ensued for the knife and defendant wrested it away from her. He threatened to cut her and in fact threatened her life with it. She persuaded him he needed medical help from his wound, helped him staunch the flow of blood with a sleeve from her shirt, and helped him to a house which they reached at his direction. On entering the yard, he threw the knife and sheath into a dog house and they went to the door to seek help. It turned out to be his house and his wife met him at the door. He said there had been an accident and that prosecutrix had helped him.

She asked to use the telephone, called the Wheaton College and arranged for the dean of women to meet her at the hospital. She then accompanied the defendant and his wife to the hospital. While he received medical aid she told the dean of women what she had experienced. They drove first to the city hall and then to the county police. She was examined by a physician. He found her hair matted and bloody, mud on her legs, dirt in the opening of the vagina, the hymen intact and no evidence of sperm. He could not say positively if there had been a penetration.

Prosecutrix testified as to the above facts, which were corroborated by the police, the dean of women, and the medical testimony. Defendant did not testify, and a police officer was called as to some possible inconsistent items in the police report.

Prosecutrix first signed a rape complaint (which was later nolle pressed), and the defendant was arrested. Subsequently defendant was indicted for attempt (rape), and about 3 months later for deviate sexual assault. The two indictments were consolidated for purposes of trial.

Prior to the trial, defendant filed a motion to quash the indictment charging deviate sexual assault, arguing that the grand jury heard no competent evidence — only the testimony of an assistant State’s Attorney. The assistant State’s Attorney acknowledged that another member of the staff had presented the case to the grand jury and that he, the assistant, had appeared and testified as the only witness. He declined to say what testimony he had presented, on the ground that it was before a grand jury and therefore a secret investigation. No record was made of the grand jury proceedings. It is conceded the evidence was hearsay.

In Illinois a grand jury may return an indictment upon hearsay evidence. (People v. McCracken, 61 Ill.App.2d 457, 209 N.E.2d 673 (1965).) It is common for an investigating police officer to appear and testify as to matters he saw or uncovered at the scene of the crime and also what was told him by others who were present. The grand jury is an official body, constituted and sworn by the court, to make an independent investigation into all matters which may come before it presented by the State’s Attorney or otherwise. Section 112 — 4(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, § 112— 4(a)) states: “The Grand Jury shall hear all evidence presented by the State’s Attorney.”

It has the power to require the presence of witnesses if it feels it needs further or better information. Its inquiries are secret, and the court will not inquire into proceedings had before it, for the purpose of determining whether the evidence heard by it was sufficient to support an indictment, unless all the witnesses were incompetent. (People v. Bladek, 259 Ill. 69, 102 N.E. 243 (1913).) “Incompetent” means mentally deranged or otherwise disqualified by law. People v. McCracken, 61 Ill.App.2d 457, 209 N.E.2d 673 (1965).

There is no showing that the witness here was mentally incompetent. The fact he was called as an investigating witness and was also on the staff of the State’s Attorney does not render him legally incompetent, nor does it constitute an improper attempt to influence the grand jury. (People v. Strauch, 247 Ill. 220, 93 N.E. 126 (1910).) While this practice could be subject to abuse and is not encouraged, we cannot say that any of defendant’s statutory or constitutional rights were offended.

Defendant challenges the sufficiency of the evidence to establish the crime of attempt (rape). He argues there was no intent to commit the crime of rape and therefore his actions previously described which constitute a substantial step toward the commission of that offense should be disregarded. Defendant relies upon her testimony that he had assured her she would not be hurt and that he would not violate her virginity and that she should keep her legs together, coupled with the fact there was no evidence of penetration. The jury also heard testimony of his mounting passion and excitement, and that he was armed with a sheath knife. The fear and apprehension displayed by the prosecutrix indicated that she did not rely upon his assurances. She stabbed him in self-defense, not relying on his representations.

The fact that he grabbed the knife after his sexual attack was interrupted, and threatened her life with it, was also before the jury. The jury was properly instructed on the law concerning intent. Specific intent, if not admitted by defendant, can be discovered by examining the totality of the circumstances. A charge of attempt (rape) was sustained where defendant threatened the prosecutrix’s infant daughter if prosecutrix did not submit, and then was frightened away without further action. People v. Triplett, 46 Ill.2d 109, 263 N.E.2d 24 (1970). See also People v. Bazzelle, 130 Ill.App.2d 131, 264 N.E.2d 457 (1970).

Where the jury has had an opportunity to see and hear the witnesses, and has been properly instructed as to the law, this court will not set aside its findings in the absence of a clear showing as to reasonable doubt. People v. Henderson, 12 Ill.App.3d 111, 298 N.E.2d 183; People v. Barker, 13 Ill.App.3d 349, 299 N.E.2d 365.

Defendant was sentenced October 8, 1971, on a charge of deviate sexual assault, to a period of not less than 4 nor more than 10 years, and on the charge of attempt (rape) to a term of not less than 4 nor more than 10 years to be served concurrently.

Defendant has appealed from the sentencing and has filed a motion with the appeal, which this court has taken with the briefs, to reduce the sentence on the attempt (rape) charge to that of a Class 4 felony. Defendant relies upon the provisions of section 8 — 4(c) (4) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, § 8 — 4(c)(4)), effective July, 1973, as construed by People v. Scott, 14 Ill.App.3d 211, 302 N.E.2d 146, aff’d in pt. and rev’d in pt., 57 Ill.2d 353. Defendant also claims the benefit of the Unified Code of Corrections, effective January 1, 1973, which prohibits a sentence in which the minimum sentence is in excess of one-third of the maximum term (Ill. Rev. Stat. 1973, ch. 38, § 1005 — 8—1(c)). Defendant also appeals from the concurrent sentencing, charging that they arose out of the same transaction against the same person and by the same person at the same time and place.

The court finds that the defendant is entitled to any lesser sentence provided in the Unified Code of Corrections, as this case has been constantly before the courts on appeal since the date of sentencing in 1971. (Ill. Rev. Stat. 1973, ch. 38, § 1008 — 2—4; People v. Lilly, 56 Ill.2d 493; People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269; and People v. Horton, 15 Ill.App.3d 51, 303 N.E.2d 534.) This court has the power to reduce the sentence to conform to the law without remanding, by virtue of Supreme Court Rule 615 (Ill. Rev. Stat. 1973, ch. 110A, § 615). The minimum sentence may be reduced to 3 years, 4 months to 10 year's for the Class 2 felony of attempt (rape). The crime of deviate sexual assault is a Class 1 felony punishable by a sentence of not less than 4 years to an indeterminate number of years. (Ch. 38, § 11 — 3(b).) There is no restriction on the minimum term for a Class 1 felony in its relation to the maximum term (ch. 38, § 1005 — 8—1(c)(2)), and the sentence of 4 to 10 years for this crime is still correct. (People v. Lilly, supra.) Defendant relies on People v. Scott, supra, to reduce the sentence on the attempt (rape) to that allowed for a Class 4 felony. The section on sentencing referred to in Scott was amended October 1, 1973, to correct a legislative oversight and resulting ambiguity. The section (Ill. Rev. Stat. 1973, ch, 38, § 8 — 4(c)) now reads as follows:

“(c) Sentence.
A person convicted of an attempt may be fined or imprisoned or both not to exceed the maximum provided for the offense attempted but, except for an attempt to commit the offense defined in Section 33A-2 of this Act.
(1) the sentence for attempt to commit murder shall not exceed the sentence for a Class 1 felony;
(2) the sentence for attempt to commit a Class 1 felony shall not exceed the sentence for a Class 2 felony;
(3) the sentence for attempt to commit a Class 2 felony shall not exceed the sentence for a Class 3 felony; and
(4) the sentence for attempt to commit any felony other than those specified in Subsections (1), (2) and (3) hereof shall not exceed the sentence for a Class 4 felony.” (Amended by Pub. Act 77-2638, § 1, effective Jan. 1, 1973; Pub. Act. 78-342, § 1, effective Oct. 1, 1973.)

Rape is a Class 1 felony, (ch. 38, § 11 — 1(c).) The sentence for a rape attempt may not exceed the penalty for a Class 2 felony, namely, 1 to 20 years. The present sentence of 4 to 10 years (now reduced to 3 years 4 months to 10 years) is therefore correct and the defendant is not entitled to the benefit of a punishment as a Class 4 felony.

The defendant also argues that the two offenses arose out of the same transaction against the same person by the same person at the same time and place and that one crime is an included part of the other. Here the facts disclosed that preliminarily the defendant undressed the victim from the waist down, forced her to put her lower limbs over his shoulders and forcefully placed his mouth against her vagina and other parts of her body. Thereafter he forced her to lie on her back and took overt steps to accomplish the crime of rape. The two acts have been recognized by the courts as separate and distinct offenses and not part of one single transaction. The case of People v. Scott, 14 Ill.App.3d 211, 302 N.E.2d 146, affd in pt. and rev’d in pt., 57 Ill.2d 353, cited by the defendant in his motion, involved an accomplished rape followed by an attempted forced deviate sexual assault. The appellate court there found the offenses separate and sustained concurrent sentences. See also People v. Miller, 7 Ill.App.3d 878, 289 N.E.2d 23; and People v. Moore, 51 Ill.2d 79, 281 N.E.2d 294.

The finding and sentence on the charge of deviate sexual assault is affirmed, the finding on the charge of rape (attempt) is affirmed and the sentence reduced to not less than 3 years 4 months nor more than 10 years, said sentences to run concurrently.

Affirmed, and sentence reduced in part.

T. MORAN, P. J., and SEIDENFELD, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. August Urban Barber, Defendant-Appellant.
    (No. 72-92;
    Second District
    July 1, 1974.
    Ralph Ruebner and Richard Wilson, both of the State Appellate Defender’s Office, of Elgin, for appellant.

      Gerry L. Dondanville, State’s Attorney, of Geneva (Clarence Wittenstrom, Jr., of counsel), for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendant was convicted of burglary after a jury trial and sentenced to 7-15 years in the penitentiary, to be served concurrently with any sentence upon which he was serving time or on parole. He appeals, contending that the court committed reversible error in admitting a prejudicial photograph and in giving a non-IPI instruction, entitling him to a new trial. He alternatively argues that the sentence was excessive and improperly based on matters outside the evidence.

The offense charged resulted from a theft in which various items including a white suitcase, a billfold and a hand mixer were taken on September 17, 1971, from the Aurora home of Lucille McCarthy in her absence. There were no eye witnesses. The investigating officers testified that on September 24 following the burglary they stopped a car which defendant was driving for the purpose of serving an outstanding arrest warrant on one of the passengers.

The officers saw a white suitcase in plain view on the seat behind the driver which the officers recognized from their investigation of the McCarthy burglary. Both defendant and the passenger were arrested. Defendant signed a waiver to permit a search of his vehicle.

A wallet missing from the McCarthy home containing Mrs. McCarthy’s identification was found on top of the dashboard. When the suitcase was opened, it was found to contain packs of various brands of cigarettes and a policeman’s nightstick. The search of the car revealed items including flashlights, transistor radios, and various tools, none of which were identified as taken from the McCarthy home. However, a portable mixer and a portable typewriter identified as taken from the McCarthy home were also found in the car.

There was testimony that defendant regularly smoked one of the brands of cigarettes found in the suitcase; and that the same brand identified as Marlboro cigarettes, as well as Raleigh cigarettes, partially smoked, were found in the McCarthy home and outside near the broken window where the entry was made. Mrs. McCarthy testified that she lived alone in the house and did not smoke.

Defendant did not testify but his signed statement given to the police admitting that he and Mendiola committed the burglary was in the evidence.

Defendant’s girl friend testified in his behalf that she saw some of the described stolen merchandise in the apartment of the passenger Joe Mendiola and that he exhibited acts of ownership. There was also’ testimony by the witness and defendant’s mother, who claimed to have seen the car every day during the period, that none of the stolen merchandise was seen in the defendant’s station wagon between the time of the alleged burglary and his arrest.

Under these circumstances the defendant contends that it was reversible error to give the following instruction:

“The Court instructs the jury that the recent and unexplained possession of stolen property by the defendant, if the evidence so shows, tends to establish his guilt, and is sufficient, of itself, to authorize a conviction unless the inference of guilt thereby raised is overcome by other facts and circumstances in evidence, so as to raise in the minds of the jury reasonable doubt of such guilt.”

Defendant argues that the instruction does not comply with the law because it fails to charge that the defendant had exclusive possession as a basis for the inference of guilt as set forth in IPI Criminal sec. 13.21 (1968). He also urges consideration of Supreme Court Rule 451(a) (Ill. Rev. Stat. 1969, ch. 110A, par. 451(a)) which requires that Illinois Pattern Jury Instructions-Criminal be used when applicable, unless the trial court determines that the instruction does not accurately state the law.

We note, however, that defendant failed to tender IPI 13.21 and failed to object to the given instruction on Supreme Court Rule 451(a) grounds. Under these circumstances, the trial court had no duty to give that instruction and defendant waived the right to raise this issue on appeal. (People v. Springs (1972), 51 Ill.2d 418, 425. See also People v. Carvin (1960), 20 Ill.2d 32, 36; People v. Rudolph (1973), 12 Ill. App.3d 420, 427; and People v. Colon (1973), 9 Ill.App.3d 989, 998.) While there is some doubt from the record that the defendant objected to the instruction on the other specific grounds urged here, we cannot conclude with certainty that he failed to object and thereby waived his right to raise the issues on appeal. We will therefore consider his other arguments on the merits.

The inference of guilt from unexplained possession of recently stolen property has been long established. In Comfort v. People (1870), 54 Ill. 404, 407-8, the court stated the rule that recent possession of stolen goods after the theft is sufficient to warrant a conviction unless the circumstances and other evidence so far overcome the presumption as to create a reasonable doubt of guilt. In Comfort, a recent pawnbroker’s receipt in defendant’s name was held sufficient evidence of defendant’s possession of stolen property found in a pawnbroker’s shop. (See also People v. Pride (1959), 16 Ill.2d 82, 89-90.) The presumption that the possessor of recently stolen property is the thief is an inference which the jury may be permitted to draw based on human experience and common sense from known events or circumstances. People v. Fiorito (1952), 413 Ill. 123, 128-9.

Defendant has cited a number of cases in which there is the statement that the possession must also be exclusively in the defendant for the inference to be drawn. (E.g., People v. Urban (1942), 381 Ill. 64, 69; People v. Hawkins (1963), 27 Ill.2d 339, 341; People v. Davis (1966), 69 Ill.App.2d 120, 125.) Defendant argues that the authorities establish that the instruction must not only contain the reference to defendant’s possession but must characterize the possession as “exclusive.” And he further argues that the evidence for the defense that the passenger Mendiola exhibited acts of ownership when the property was seen in his apartment and that the property was not seen in his car prior to the day of the arrest raised a reasonable doubt that defendant ever had sole, personal and exclusive control of the property. Thus he claims that at the very least the evidence raised a question of fact which entitled the jury to be properly instructed as to exclusive possession, citing People v. Khamis (1951), 411 Ill. 46, 53. However, defendant’s arguments are unpersuasive.

It is clearly established that the fact that the element of possession is controverted is not a basis for refusing to give the recent possession instruction. See People v. Woods (1963), 26 Ill.2d 557, 562; People v. Boulahanis (1964), 50 Ill.App.2d 440, 442; People v. Harris (1972), 53 Ill.2d 83, 85-87.

Further, defendant’s argument based on the statement found in some of the cases that possession must be shown to be exclusively in the defendant is not well founded. On analysis this does not appear to be an elemental rule but one dependent on the circumstances of each case.

Proof of the possession by the defendant is the key if the inference is to be made on the basis of possession of recently stolen property. If the jury is required to speculate as to whether defendant in fact had the possession which would be a circumstance of his guilt, it would be unreasonable to draw the inference based on the speculation. See People v. Bullion (1921), 299 Ill. 208, 213; People v. Hawkins (1963), 27 Ill.2d 339, 341; People v. Urban, 381 Ill. 64, 69.

Thus, if possession by a single defendant is in issue, the possession must be shown to be in him and not in someone else. (Watts v. People (1903), 204 Ill. 233, 245.) But if the circumstances show that a defendant possessed the recent stolen property either singly or jointly with others, the inference of guilt is warranted and “exclusiveness” of possession is not rebutted by merely showing another’s presence. People v. Strutynski (1937), 367 Ill. 551, 554; People v. Reynolds (1963), 27 Ill.2d 523, 526; People v. Woods (1963), 26 Ill.2d 557, 562; People v. Wheeler (1955), 5 Ill.2d 474, 484-5; People v. Harris (1972), 53 Ill.2d 83, 85-87; People v. Phelps (1944), 388 Ill. 618, 622; People v. Mathews (1950), 406 Ill. 35, 43-44.

In the particular circumstances of this case we conclude that possession of the recently stolen articles was shown to be in defendant as a foundation for the giving of the instruction. This jury could not have been misled or prejudiced by the form of the instruction or the omission of the characterization of the possession as “exclusive.” Defendant adduced evidence from which the argument was made to the jury that the possession was not in him but in his passenger alone. The defense also advanced the theory in closing arguments that the explanation for the items being in defendant’s car was that he was moving them for Mendiola, although the record reveals no specific testimony to that effect. Such arguments would have permitted the jury to refuse to draw the inference of guilt from possession if they had found the evidence credible. Possession is a question of fact to be decided by the jury whose province it is to decide the credibility of witnesses, the weight to be given their testimony and the inferences to be drawn. People v. Woods, 26 Ill.2d 557, 562; People v. Harris, 53 Ill.2d 83, 85-87.

Defendant next contends that the trial court committed reversible error in admitting over objection a photograph which showed contents of the white suitcase which were not taken in the burglary. He argues that a photograph of the suitcase itself had been admitted and that the photograph of the contents permitted the jury to wrongfully infer that these items were also taken in the burglary and that this was prejudicial.

While a number of items in the suitcase had no relevance to the offense charged, there were packs of the brand of cigarettes which defendant was shown by the evidence to have smoked; and evidence that butts of the same brand were found at the McCarthy residence, although Mrs. McCarthy lived alone and did not smoke. Further, no objection was made to the testimony of one of the officers as to the contents of the suitcase or to the admission of all of the articles recovered in the search, so that the admission of the photograph was merely cumulative of the oral testimony. Thus any prejudice or error resulting from the admission of the particular photograph was harmless beyond a reasonable doubt. (See People v. McDonald (1936), 365 Ill. 233, 245-246.) We also find it significant that no objection was made to other photographs which showed evidence found in the vehicle but not necessarily linked to the burglary (see People v. Allen (1959), 17 Ill.2d 55, 61). Further, according to the testimony of one of the police officers defendant admitted that he and Mendiola committed the offense charged, and defendant’s written statement to that effect was admitted into evidence. We therefore conclude that no real prejudice resulted from the admission of the photograph requiring reversal. See People v. Budzynski (1973), 9 Ill.App.3d 24, 26-27.

For the reasons stated the judgment of the conviction is therefore affirmed.

We then reach defendant’s alternative arguments that the sentence was excessive and improperly based on matters not in evidence.

It is agreed that the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1 et seq.) is applicable since the case is not yet reached for final adjudication. Defendant argues that since burglary is, a class 2 felony it is subject to the limitation that the minimum shall not exceed one-third of the maximum sentence imposed. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1.) The State agrees that the 1-3 ratio governs but notes that the maximum sentence under the Code is 20 years and that the trial court set a maximum of 15 years which was within the statutory limits. Therefore, the State urges that we should merely reduce the minimum sentence from 7 to 5 years rather than remanding for resentencing.

The defendant has argued that, during trial, the judge showed his displeasure with the misconduct of defendant’s mother and girl friend during trial and severely admonished' them outside the presence of the jury; that during sentencing the court again made reference to that occurrence; and that it is a fair inference from the record that the judge imposed an excessive sentence partially based on the misconduct of others than the defendant. We also note from the record that in admonishing the defendant’s mother, the court made the statement that the taxpayers had given her son a “free ride” on three cases and that he didn’t think that this was any place for humor or distraction. It is difficult to assess what effect, if any, the court’s “observations” prior to sentencing had on the sentence imposed. The record reveals that defendant had committed numerous parole violations and exhibited conduct and an attitude which would justify imposition of a severe sentence.

In view, however, of the ambiguities in the court’s statements and the questions raised, we vacate the sentence imposed and remand the cause with directions to resentence defendant under the Unified Code of Corrections. To avoid any suggestion of prejudice under the particular circumstances of the record, the causes should be re-assigned for the new sentencing hearing.

Affirmed and remanded with directions.

GUILD and RECHENMACHER, JJ., concur.


author: Mr. JUSTICE SEIDENFELD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Campbell, Defendant-Appellant.
    (No. 72-196;
    Second District
    July 1, 1974.
    Ralph Ruebner and Adam Lutynski, both of the State Appellate Defenders Office, of Elgin, for appellant.
    William J. Cowlin, State’s Attorney, of Woodstock (James K. Kilduff, Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. William G. Anders, Defendant-Appellee.
    (No. 73-47;
    Second District
    June 26, 1974.
    John J. Bowman, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.
    Cox, Lyle & Darrah, of Glen Ellyn, for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

On July 27, 1972, the trial court entered an order quashing a search warrant and suppressing the evidence seized thereunder. The State filed a timely notice of appeal on August 25, 1972, but made no application to any court to extend the time for filing the record on appeal pursuant to the terms of Supreme Court Rule 608 (Ill. Rev. Stat. 1971, ch. 110A, par. 608) until December 8, 1972, and then in an answer to the defendant’s motion in the trial court to dismiss the appeal.

The defendant’s motion to dismiss the appeal was filed on December 6, 1972, recited that the time to perfect the appeal had expired and asked that the appeal be dismissed in accordance with Supreme Court Rule 309 (Ill. Rev. Stat. 1971, ch. 110A, par. 309). Attached to the State’s answer and motion was an affidavit of the head secretary of the appellate division of the Du Page County State’s Attorney’s office alleging an inadvertent failure to obtain and timely file the transcript and record due to a heavy work load and due to the fact that it was erroneously believed that the appeal was filed by the defendant rather than the State. The report of proceedings was tendered.

The court found that the State had not shown a reasonable excuse for failure to timely file the report of proceedings and refused to invoke the 6 months’ so-called “safety valve” provision provided in Supreme Court Rule 608(d) (Ill. Rev. Stat. 1971, ch. 110A, par. 608(d)). The State appeals.

The defendant has not answered the brief and argument filed by the State which requests that we vacate the order of the trial court dismissing the appeal and reinstate the notice of appeal. The State argues that inadvertence or mistake must be considered a reasonable excuse if the 6 months’ period provided in Supreme Court Rule 608(d) is to have any meaning; and since defendant was not incarcerated he has not been prejudiced by the delay. No authorities are cited.

In view of the novelty of the issue, we exercise our discretion to rule on the merits although no answering brief has been filed. Budget Rent a Car v. Kirk (abstract opinion 1974), #73-386, Second District.

No step in the perfection of the appeal other than the filing of the notice of appeal is jurisdictional. (Ill. Rev. Stat. 1971, ch. 110A, par. 606(a).) Nevertheless, the right of appeal is purely statutory and there must be compliance with the conditions prescribed by statute. See Fonda v. Jackson (1903), 203 Ill. 113, 114.

We have been unable to find authority which has ruled directly on the relatively new provision adding the 6 months’ “safety valve” in the procedures for criminal appeals. (Ill. Rev. Stat. 1971, ch. 110A, par. 608(d).) The Rule states:

“(d) Extensions of Time. Before the expiration of the applicable time, any judge of the trial or reviewing court may extend the time for filing the report of proceedings in the trial court or the record in the reviewing court. An extension of time may also be granted by the judge on motion, supported by a showing of reasonable excuse for failure to file the motion earlier, made within 35 days after expiration of the applicable time or within six months of the expiration of the original 30 days allowed for filing a notice of appeal, whichever is later.”

The “reasonable excuse” standard found in Supreme Court Rule 608(d) however, appears in various portions of the Supreme Court Rules. In Supreme Court Rule 606(c) for example, under a 1971 amendment, a 30-day safety valve is provided for filing a notice of appeal on motion supported by a showing of reasonable excuse for failing to file the notice of appeal on time. In People v. Sanders (1968), 40 Ill.2d 458, 462, the court held that since the defendant in open court had indicated his desire to appeal his conviction, it was the duty of the trial court clerk to prepare and file the proper notice of appeal and that the failure of the clerk provided a reasonable excuse for the defendant’s failure to file his own notice of appeal on time under Supreme Court Rule 606(c).

The phrase reasonable excuse also appears in Supreme Court Rule 303(e) in connection with the time for filing civil appeals (Ill. Rev. Stat. 1971, ch. 110A, par. 303(e)). The Committee Comments state (Smith-Hurd Ann., ch. 110A, par. 303, at 564):

“* * * The standard of paragraph (e), ‘a showing of reasonable excuse,’ is intended as a lenient standard which will cover a wide range of reasons for failure to file the notice of appeal within the original 30 days. Examples include illness of counsel, an honest mistake of counsel, delay in the mail, a snowstorm, and many others. The rule permits the reviewing court to preserve a party’s right to appeal if counsel’s mistake is discovered and a motion is filed within the additional 30 days, and the authority granted should be liberally exercised.”

See Chicago Corp. v. White (1971), 49 Ill.2d 433, 435.

In other contexts, an excusable mistake has been defined as one which occurs without negligence (People v. McArthur (1936), 283 Ill.App. 467, 470) and involves the question of whether a party acts reasonably and not negligently in failing to pursue his rights. Johnson-Olson Floor Coverings, Inc. v. Branthaver (1968), 94 Ill.App.2d 394, 398.

The State contends that the safety valve provision must be considered as one which provides for human error such as that found here, if it is to have any real meaning. We do not agree. A showing of reasonable excuse is intended as a lenient standard vesting the court with a broad discretion. But the court is not required to raise mere inadvertence to the level of a reasonable excuse for the long delay involved under the circumstancs of this case. The trial court could properly find here that the State’s mistake was the result of negligence and therefore unreasonable.

On the record before us, we conclude that the trial court was justified, in the exercise of its discretion, in concluding that there was not a reasonable excuse for the State’s delay in pursuing its appeal from the suppression order. The judgment of the trial court is therefore affirmed.

Affirmed.

T. MORAN, P. J., and RECHENMACHER, J., concur.

       The “reasonable excuse” standard as promulgated to take effect in 1967 applied to petitions made within 6 months of the 30-day period for the filing of a notice of appeal. In 1971, the paragraph was amended to limit this period to 30 days making it parallel to the provisions of Rule 303(e) governing civil cases and providing the more stringent standard after the thirty day period of a showing that the appeal was meritorious and that the delay was not due to culpable negligence. See, S.H.A., ch. 110A, par. 606(c), Committee Comments.


author: Mr. PRESIDING JUSTICE T. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Louis McGruder, III, Defendant-Appellant.
    (No. 72-254;
    Second District
    July 2, 1974.

      Rehearing denied July 25, 1974.

      Ralph Ruebner, of the State Appellate Defender’s Office, of Elgin, for appeHant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz and Edward Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. PRESIDING JUSTICE T. MORAN

delivered the opinion of the court:

A two-count indictment charged the 17-year-old defendant with burglary and rape. (Defendant, on September 27, 1971, had followed a woman into her home and forcibly raped her.) On the day set for trial, he requested leave to withdraw his plea of not guilty and to enter a negotiated plea of guilty. In return for the plea, the State was to dismiss the rape charge. The trial judge admonished defendant of his rights, conditionally accepted his plea of guilty by not entering judgment thereon, and continued the case in order that the matter might be referred to the probation department for a presentence report. The report filed, defendant’s plea was accepted and there was a combined hearing on probation and aggravation and mitigation. The court denied defendant’s request for probation, allowed the State to dismiss the rape count and sentenced defendant to serve 3 to 9 years in the penitentiary.

Four issues are raised on appeal: (1) whether defendant’s prosecution as an adult violated his rights under the fourteenth amendment of the U.S. Constitution and sections 2 and 18 of article I of the Illinois Constitution of 1970; (2) whether the trial court substantially complied with Supreme Court Rule 402 prior to accepting defendant’s guilty plea when it failed to explain his right to confront the witnesses against him; (3) whether the trial court abused its discretion by denying defendant’s apphcation for probation; and (4) whether defendant’s sentence was excessive.

The first contention is based upon section 2 — 7(1) of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, § 702 — 7(1)) which, it is argued, makes an unconstitutional distinction by protecting a girl under the age of 18 from being prosecuted as an adult but affords the same protection to a boy only if he is under the age of 17.

This same argument was recently raised in People v. Ellis, 57 Ill.2d 127. There the Illinois Supreme Court held that section 2 — 7(1) contravened section 18 of the Bill of Bights of the Constitution of 1970 (Ill. Const., art. I, §18 (1970)) and declared the section invalid. The court resolved the question of “whether the effect of * * * holding section 2 — 7(1) invalid is to extend its application to 17-year-old boys, to hold it inapplicable to 17-year-old girls, or to eliminate it,” by stating:

“In view to the constitutional provision, and the amendment to section 2 — 7(1), we conclude that the effect of the deletion of the invalid classification from the statute is to render the statute inapplicable to both males and females who were not under the age of 17 years,’ and that the failure to consider defendant eligible for treatment as a minor under its provisions did not deprive him of equal protection of the laws.” 57 Ill.2d at 134.

Because defendant was 17 years of age at the time of the offense, his prosecution as an adult did not deny him equal protection of the laws.

Defendant next contends that the trial court failed to inform him that by pleading guilty he waived his right to confront witnesses. On February 7, 1972, the trial judge admonished the defendant of all his rights except the right to confrontation but, on that date, defendant’s plea of guilty was only conditionally accepted. On April 26, 1972, the court reviewed the admonishments with the defendant and included the right to confrontation. It was on this later date that the court accepted defendant’s plea of guilty to the charge of burglary and entered judgment thereon. We, therefore, find no merit in this contention.

Defendant next contends that the trial court abused its discretion in denying his application for probation, asserting that: (1) he had no prior convictions (he had been arrested at age 12 for having taken magazines from a drug store and at age 14 for exposing himself to a woman but on both occasions the police released him to the custody of his parents); (2) he was an above-average student according to the principal of his high school; (3) he has had sickle cell anemia since the age of 3 and that prisons are not able to cope with this sickness; (4) he has a good relationship with his family; (5) he has sought and received psychiatric and psychological counseling while awaiting trial, has made good progress and will be rehabilitated within 3 years if not sent to prison; and (6) he received a favorable report from the probation officer who did not oppose the application for recommended probation in conjunction with periodic confinement in the Lake County Jail.

The granting of probation rests within the discretion of the trial court but its determination is reviewable in order to ascertain whether it did, in fact, exercise discretion or whether it acted in an arbitrary manner. (People v. Saiken, 49 Ill.2d 504, 514-15 (1971), cert, denied 405 U.S. 1066; People ex rel. Ward v. Moran, 54 Ill.2d 522 (1973); People v. Dugger, 7 Ill.App.3d 235, 237 (1972).) The record before us does not suggest that the trial judge acted arbitrarily or that he failed to exercise discretion in denying probation. To the contrary, the record indicates that, among other things, the court reviewed the notes and records of the hearing and gave attention to the reports and recommendations of the probation officer, the psychologist and the psychiatrist. The psychologist testified to the effect that the offense charged was the result of defendant’s difficulty with impulse control, i.e., that he acted impulsively in response to his feelings. The trial judge took particular notice of a section of the psychiatrist’s report which stated that a clinical examination of the defendant revealed defective impulse control and that, sooner or later, when defendant’s defenses were down, a similar occurrence could be expected. In view of the reports, the trial judge concluded that, because of the nature of the offense and in fairness to society, defendant was not a good prospect for probation.

Pending appeal, motions were allowed for both the State and the defendant to supplement the record. As additional evidence, the State submitted that diagnosis and treatment of sickle cell anemia within the Department of Corrections differs in no way from that of the civilian community with the possible exception that one does not have freedom to choose the attending physician. Defendant’s additional evidence indicated that the ability of the Department of Corrections to directly provide care for sickle cell anemia is dependent upon the acuteness and severity of the complaint or crisis and, in those situations where routine medications alone will not suffice, it is customary to seek outside consultation or hospitalization. Defendant also submitted a letter from the Illinois Division of Vocational Rehabilitation which stated that, having interviewed defendant, they were “* * * in the process at this point of determining his eligibility for services through this division and in assessing with him appropriate vocational objectives.” This evidence suggests that incarceration of defendant in the penitentiary will not preclude his receiving proper medical attention. From our review of the entire record we conclude that the trial court did not abuse its discretion by denying defendant’s petition for probation.

In the alternative, defendant argues that his sentence is excessive and should be reduced to 1 to 2 years to be served in the Lake County jail under the periodic imprisonment provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, § 1005 — 7—1(b)(2), (5), (6), and 1005 — 7—3(b)). This, it is urged, would enable him to continue his therapy at the Lake County Mental Health Center, allow him to visit the National Foundation for Sickle Cell Anemia Center in Milwaukee for proper medical care during future crises, enable him to pursue a college education and allow him to pay the State room and board through his gainful employment. We agree with the trial court that the defendant should be required to serve a period of imprisonment. It has been held that we are precluded from reducing a sentence of imprisonment to the lesser alternative sentence of periodic imprisonment. (People v. DeBates, 18 Ill.App.3d 663, 664 (1974).) Considering defendant’s age and background, we conclude that the best interest of society will be served by reducing his sentence to a term of 1 to 3 years in the penitentiary. (Supreme Court Rule 615(b) (4).)

The defendant’s sentence is therefore ordered reduced to a period of 1 to 3 years and, as modified, the judgment is affirmed.

Judgment affirmed as modified.

SEIDENFELD and RECHENMACHER, JJ., concur.

       This section was since amended to read "no minor who was under 17 years of age * * * (Ill. Rev. Stat. 1973, ch. 37, $ 702 — 7(1).)


author: Mr. PRESIDING JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert Estes, Defendant-Appellant.
    (No. 72-211;
    Third District
    June 26, 1974.

      Marshall Douglas, of East Moline, for appellant.
    F. Stewart Merdian, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

Albert Estes, the defendant, after trial by jury in the circuit court of Rock Island County was convicted of the offense of robbery and sentenced to a term of not less than 3 nor more than 10 years in the penitentiary.

No useful purpose would be served by setting forth a recital of the facts which constituted the crime allegedly committed by the defendant since we are concerned with certain testimony adduced during the course of the defendant’s trial.

It is the defendant’s contention that reversible error was committed when a witness, Detective Coleman, was permitted to testify as to his refusal to talk after he had indicated that he desired to remain silent. This assignment of error is based upon the following colloquy:

“Witness: * * * I asked him if there were any questions about what his rights were. He said he understood what his rights were. He had been shown the paper, he had seen the paper, and that was it.
Prosecution: Okay, then what did you do?
Witness: I asked him if he wanted to talk to me about the robbery at Super Par.
Prosecution: What did he say?
Witness: He didn’t seem like he wanted to talk about it. The only thing he said was he had—
Defense Counsel: I object. If he made any indication that he did not want to talk about it, then it was your duty not to talk to him unless his lawyer was present—
Prosecution: Judge, if he wants to argue at this point, I think the jury should be excused. Otherwise, I will continue on * * * or if you want to rule now—
Court: I will overrule the objection right now.
Witness: He said before actually he made the remark that he didn’t want to make a statement. He said that he had witnesses and alibi witnesses to say he wasn’t there.”

In examining this colloquy it is apparent that it is ambiguous as to whether the defendant’s remarks concerning an alibi were made before or after he indicated that he didn’t want to talk. We cannot determine with certainty that the defendant voluntarily made his exculpatory remarks prior to being advised as to rights as required by Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S.Ct. 1602. Since we cannot so determine we are compelled to abide by the rule that where an accused exercises his constitutional right not to make a statement, the fact that he may say something else in response to interrogation by an investigating officer renders such response equivocal and fails to demonstrate that the accused has waived his right to remain silent.

It is clear from the colloquy which we have set forth that testimony was admitted into evidence which informed the jury that the defendant did not wish to make a statement. Counsel for the defendant made a timely objection to such testimony and we are of the opinion that error was committed when such objection was overruled. See People v. Lampson, 129 Ill.App.2d 72, 262 N.E.2d 601.

It is the prosecution’s position that the defendant made exculpatory statements, to-wit, that he had alibi witnesses and therefore such remarks were admissible for the jury’s consideration and especially in view of the fact that in the instant case the defendant failed to produce such witnesses. In support of its position the prosecution relies upon the case of People v. Peto, 38 Ill.2d 45, 230 N.E.2d 236. We note that in Peto our supreme court carefully recognized that the defendant was tried prior to the Miranda case. With such a specific disclaimer we have a strong indication that the application of the Miranda rule to facts such as existed in Peto might well have warranted a contrary result. We cannot agree that the case of Peto supports the prosecution’s argument.

The defendant in this appeal alleges other assignments of error, but since we deem it necessary to remand this case for a new trial these further claims of error need not be considered.

For the reasons set forth the judgment of the circuit court of Rock Island County and the conviction imposed thereon are so reversed and this cause is remanded for a new trial.

Reversed and remanded.

ALLOY and STOUDER, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Doyle Garriott, Defendant-Appellant.
    (No. 73-115;
    Third District
    June 21, 1974.

      Michael J. Warner, of Rock Island, for appellant.
    F. Stewart Merdian, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant, Joseph Doyle Garriott, was indicted and tried for the crime of deviate sexual assault. After a jury verdict of guilty he was sentenced by the Circuit Court of Rock Island County for a term of not less than 10 nor more than 14 years. He appeals contending that he was not proven guilty beyond a reasonable doubt and that his sentence is excessive.

Carole Rosa, the complainant was a married woman, 24 years of age, who lived in the Rock Island area about 6 years. She lived with her husband and 21-month-old daughter. She has a Bachelor of Theology degree from the Bible Missionary Institute in Rock Island, was active in church as a teacher and considered herself a very religious person.

On Saturday, October 28, 1972, she left her daughter with her mother-in-law and drove her car to the Speedy Boy Car Wash, a self-service car wash in Milan, Illinois. No attendants were on duty. She first arrived at 12:30 but many cars were in line so she left and came back at 1 P.M. There are three stalls but only one was working. The stalls have aluminum doors with small glass windows. There is an opening between stall 2 and 3.

She testified that the defendant came into the car wash three times, and each time asked her where the manager was, each time she told him she didn’t know; that she didn’t work there. Each time he came in he would go outside the stalls and sit on a barrel. The door of the car wash was completely up. There was nothing to impede her view of the defendant. She looked at defendant from time to time as she washed her car. The fourth time the defendant came, she testified, was about 1:15 P.M. and he rushed at her with a pocket knife with a 4-inch handle and a 4-inch blade, held it to her throat, and told her not to scream, not to struggle, or he’d kill her. He told her he wanted her pants. He had his hand on her throat. She believes she screamed once. She testified he took her through the doorway from stall 2 to stall 3, backed her up against the wall next to stall 2, and told her to take off her underwear and pulled her dress up. She had on a three-quarter length car coat, a dress, hose, girdle, pants, and shoes. She started to take her pants off, and he pulled them the rest of the way down. He did not take them completely off. They were at her feet. She was still standing up against the wall. He tried to kiss her, and told her to kiss him. He caressed her a little bit, but he never took her dress off or anything.

She testified that her only solace when something like that happens, is to turn to the Lord. She tried to talk to him about the Lord. She asked him if he were a Christian, and if he knew what it meant to be saved. He said, “Oh, yes, I’m a Christian,” and then kept on as he was. Defendant pulled his pants and underwear down, pushed on her shoulder and pushed her down to a kneeling position. His penis was erect, and he pushed it in and out of her mouth for three or four minutes, telling her not to use her teeth. She gagged, and couldn’t tell whether she was using her teeth or anything. He did not ejaculate. Then he pushed her down on her hands and knees, pulled up her dress in back, and forced his male organ into her rectum. This act took maybe 4 or 5 minutes. He did not ejaculate to her knowledge. He did not have normal sexual intercourse with her. He then pulled his pants back up and got ready to leave. She testified she was afraid at this time. He still had the knife, and as near as she could remember, it was still open.

He asked her if he could really be a Christian, and she said, “Yes,” and he wanted her to tell him how, and she tried to tell him the basic steps. He asked her her name and where she went to church and told her he would be there in the morning. Then he left. He asked her what she was going to do when he left, and if she would call the police, and she said, “No.” She did not see where he went. She got up, got her clothes back on, picked up her coat and the rest of the car mats and different things, put them in the car and got out as fast as she could.

She drove to her mother-in-law’s house about 3 miles from the car wash. She noticed there was some blood from somewhere, and that she had a cut on the thumb of her right hand. She got blood on her dress and on her underwear as she tried to get dressed again. She threw the dress away about a week after the incident. The Police did not ask her to save it.

She didn’t stop at the police station, because she told him she wouldn’t, and she was scared, and didn’t think. She didn’t know what to do. She noticed she had an abrasion on the lower left side of her cheek, and on the rear part of her left shoulder.

On cross-examination, complainant testified that she didn’t know that the Milan Police Station was located about three or four blocks from the Speedy Boy Car Wash. As she was driving home, she went past the State Police Headquarters on Blackhawk road.

Willene Rosa, mother-in-law of Carole Rosa, testified that her daughter-in-law came home in her car shortly before 2 P.M. on October 28, 1972. She drove into the driveway and stopped close by the window. Willene Rosa noticed that after her daughter-in-law stopped her car, she sat in the car for awhile and arranged her hair and her face in the mirror, which is unusual for her, then got out of the car quickly and ran to the door. She could tell there was something wrong. There was blood down the front of her dress, which was not there before she left the house. She had a cut on her finger, which to the best of her knowledge she did not have when she left the house. Her hair was messed up, and she had a red spot on one side of her face. Willene Rosa called the police.

A. W. Rosa, Jr., husband of the complainant, testified that in the evening of October 28, 1972, he saw a mark on the left shoulder on the back of his wife, which looked like a heavy thumb print, and that there were two marks on her left cheek; that these marks weren’t there a week before, which was the last time prior to October 28, 1972, that he had an opportunity to examine his wife’s physical appearance.

That defendant, Joseph Doyle Garriott, testified that he has a 4th-grade education according to the tests he has taken. That he can read and write some. On October 28, 1972, he was employed by Flick’s Plumbing Supply, which is located at Airport Comers, out by the Quad-City Airport, as a delivery driver. He was told to make a delivery of salt to the Speedy Boy Car Wash in Milan; that he arrived at the car wash between 10 and 15 minutes after 1 P.M. That there were six or seven motor vehicles in and around the area, but he did not see any people in and around the area of the car wash. Then he saw one of the stalls was open, No. 2. He walked over and there was a woman washing her car and sweeping out the front of the car and taking the mats out. He asked her where the manager was and when he would be back. She told him she didn’t know where he was; that she didn’t work there. The woman he saw is the complainant, Carole Rosa. He then walked over to the open-air market which is about 25 yards from the car wash, to see if they had a phone he could use to call his employer, but they didn’t have a phone. Defendant testified that he then went back to his pick-up track. It was about 1:20 or 1:25 P.M. He smoked about half a cigarette, threw it away because he wasn’t feeling too good, and left, going back to Flick’s. He was sick to his stomach, getting hot and cold chills. He asked his brother-in-law, David Navarro, who worked at Flick’s also, if he could borrow his car. He then punched out about 1:50 P.M. and went home. Defendant testified that he was wearing a blue levi jacket, a maroon sweat shirt, insulated underwear, brown bell-bottom pants, and a pair of work shoes. Carole Rosa had testified that defendant was wearing a dark brown or black jacket, waist length, light brown, bronze, or beige pants. On cross-examination, defendant testified that he has four or five knives, but never carries them at work.

Robert Roete, 18, a witness in behalf of plaintiff-appellee, testified on direct examination that defendant told him in the afternoon that he was ill and left work at approximately 2 P.M. Roete made the delivery of salt about 2:15 P.M. on October 28, 1972, at the Speedy Boy Cash Wash in Milan. On cross-examination, Roete testified that the pick-up truck is a white Ford, with a red rack, and has “Flick’s” painted on tire sides in big letters, easily seen a distance from the truck. In rebuttal, he testified the defendant carries a knife.

David Navarro testified that he loaned his car to defendant on October 28, 1972, about 1:30 P.M.; that defendant left work shortly thereafter. He also testified defendant was wearing a maroon jersey, which he had given him about a week before, and a blue denim jacket.

Shirley Tighe, sister of the defendant, testified that she saw the defendant at his home in the afternoon between 2 and 2:30 on October 28, 1972; that he was sitting in a chair, wrapped up in a blanket, had a temperature and had the chills.

Steven Doyle, a patrolman for the Police Department of the Village of Milan, was called by defendant and permitted to be examined as a hostile witness. He testified that the Speedy Boy Car Wash is located at the junction of 4th Street and Route 67 in Milan; that there is a pool hall across the roadway, and an open air market in and around the area of the car wash. He investigated the incident, and was told by the complainant, Carole Rosa, that the assailant was approximately 5' 9", 140 lbs., medium build, light blond hair, wore a dark brown waist length jacket, possibly denim, brown pants, with dark wide belt with square gold or silver buckle. Officer Doyle also testified that Bill Dryel who had been at the pool hall at approximately 12 noon, looked Mice the defendant, possibly with the difference of the hair, which is real light blond and longer, but that he did not investigate further the possibility that Bill Dryel did this or arrest him.

On October 31, 1972, Carole Rosa, her husband, A. W. Rosa, Jr., her father-in-law, A. W. Rosa, and her mother-in-law, Willene Rosa, went to Flick’s Plumbing Supply Company, about 1:30 P.M. to identify a man that Mr. Flick said had made a delivery, on October 28, 1972, but he was not the defendant. At that time Carole Rosa saw the defendant at Flick’s. The Milan police had been called. When the defendant and Carole Rosa saw each other, the defendant started to leave the store, just as the policeman, Kenneth Wales, Assistant Chief of Police, of Milan, Illinois, was coming in the door. Chief Wales hollered at the defendant to halt, but he did not do so. He hastened toward his car, got in it, locked the doors, started it, backed it up and sped away. Chief Wales tried to stop him by firing one shot at his front tire, and two shots in the rear tire.

Defendant testified that the only reason he ran when he saw the police officer at Flick’s on October 31, 1972, was because he thought he was wanted for parole violation by the State of California.

Defendant married his wife, Gloria, on November 6, 1971, and is living with her. He is 26 years of age.

Defendant has no prior felony convictions.

Defendant voluntarily turned himself in to the Rock Island County Jail when he called his wife and she told him he was wanted for rape or molesting a woman in Milan.

The defendant contends that he was not proven guilty beyond a reasonable doubt because:

1. He denied that he did it, and

2. The evidence is not clear beyond a reasonable doubt that

(a) she did not consent, or

(b) that she showed such resistance as will demonstrate that the act was against her will, or

(c) that she gave immediate notification of the assault.

With respect to the denial of the defendant that he committed the offense, this of course is no more indicative of innocence than a formal charge is indicative of guilt. The courts of this State have repeatedly held that the fact that a defendant denies guilt and that defense witnesses corroborate his alibi, does not, in and of itself create a reasonable doubt as to his guilt. (People v. Jackson, 95 Ill.App.2d 28.) A jury is under no obligation to believe the defendant’s alibi evidence which is contradictory to positive evidence of the prosecutrix. (People v. Newson, 133 Ill.App.2d 391, People v. Thomas, 130 Ill.App.2d 1107, and People v. Knowles, 130 Ill.App.2d 78, cert. denied, 404 U.S. 965.) Further, in the instant case none of defendant’s alibi witnesses established that he could not have committed the crime. Their testimony only indicated that he was home later in the afternoon, complaining of being ill.

Defendant does not argue that there is failure of proof with regard to his identification, but assumes for the sake of argument that he committed the acts complained of, and contends that the proof with regard to consent is insufficient as a matter of law. This contention not only ignores the evidence of struggle, the resulting marks and laceration, but also the law of this State that resistance is not even necessary where it would be futile and would result in the victim’s life being endangered as here where the defendant was armed with a deadly weapon. People v. Jackson, 103 Ill.App.2d 209, cert. denied, 397 U.S. 957.

The presence of a deadly weapon has also been held to reheve the victim from the duty to cry out. (People v. Gray, 106 Ill.App.2d 110.) The fact that the victim herein sought solace in God is understandable in light of her religious background and family affiliations and the fact that she became reconciled to her plight as a result of being threatened with the knife did not destroy the validity of the charge.

The mere lapse of time between the commission of the crime and the complaint and delay in the making of the complaint may be explained by testimony as to the surrounding circumstances as there is no set rule as to what constitutes inconsistent delay. (People v. Mason, 301 Ill. 370, 378.) Delay in making a complaint of the offense goes to the weight of the evidence and to the credibility of the prosecuting witness. It is a circumstance for the consideration of the jury. People v. Garafola, 369 Ill. 232.

Finally, the defendant’s demeanor and reaction on being confronted with the victim at his place of employment and his immediate flight must be considered with the other evidence. People v. Rossini, 25 Ill.2d 617; People v. Reed, 103 Ill.App.2d 342.

From the evidence which has been related, it may be seen that the points of argument raised go more to the weight and credibility of evidence rather than its sufficiency, and to the question of whether we should accept the interpretation of the facts advanced by the defendant or the conclusion arrived at by the jury. We are unable to say that the evidence is so improbable or unsatisfactory as to require that the finding of the jury be disturbed.

On March 20, 1973, the defendant stood convicted of the offense which was committed October 28, 1972. The defendant elected to be sentenced under the penalty provisions in effect at the time of the commission of the offense rather than under the Unified Code of Corrections. Section 11 — 3(b) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, sec. 11 — 3(b)) then provided a sentencing range of from 4 to 14 years. He now asks that we apply the “spirit” of the new code and reduce his minimum sentence to 4 years. At the hearing on aggravation and mitigation evidence showed that defendant had a prior conviction as a juvenile offender. When a defendant contends that the punishment imposed by the trial court is excessive, although within the limits prescribed by the legislature, a court of review will not disturb the sentence unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the proscription of the Illinois Constitution which requires that all penalties be proportioned to the nature of the offense. (People v. Taylor, 33 Ill.2d 417.) As the trial judge ordinarily has a superior opportunity in the course of a trial and a hearing in aggravation and mitigation to make a sound determination of punishment, an appellate tribunal should exercise its authority to reduce sentences with considerable caution and circumspection. (People v. Hampton, 44 Ill.2d 41.) Lack of a previous criminal record is one factor to be taken into account in considering reduction of sentences (People v. Crews, 42 Ill. 2d 60), as is also lack of injury to the victim of the crime. (People v. Brown, 132 Ill.App.2d 302.) Deviate sexual assault is a serious crime and severe penalties for its commission are appropriate. Under the facts of this case we find that defendant’s sentence was not excessive.

For the foregoing reasons, the judgment of the Circuit Court of Rock Island County is affirmed.

Judgment affirmed.

STOUDER and ALLOY, JJ., concur.


author: Mr. JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Oscar Casley, Defendant-Appellant.
    (No. 73-220;
    Third District
    June 26, 1974.

      Robert Agostmelli, of the State Appellate Defenders Office, of Ottawa, for appellant.
    Max B. Stewart, State’s Attorney, of Carthage, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendant, Oscar Casley, appeals from a judgment of the Circuit Court of Hancock County, finding defendant guilty of the offense of forgery based on an information, pursuant to which defendant was sentenced to a term of not less than 1 year nor more than 3 years in the Illinois State Penitentiary. Defendant pleaded guilty to the information charging forgery.

On appeal in this court, defendant contends that the court failed to advise him of the nature of the charge and of the minimum and maximum senténces prescribed by law for the offense before- accepting defendant’s waiver of indictment. It is contended that there was a failure of compliance with Supreme Court Rule 401 (Ill. Rev. Stat. 1971, eh. 110A, § 401). Defendant also contends that the court failed to comply with Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, § 402) by reason of the fact that the court never established the existence of a plea agreement prior to defendant’s plea of guilty.

While the record shows that in the cause before us defendant was advised by the court that he had a right to an indictment by the grand jury, the court did not, prior to the waiver of indictment by defendant, advise him either of the nature of the charge or the minimum or maximum sentence prescribed by law for the offense of forgery.

We considered a case which was similar in many respects to the instant case in People v. Schyska, 14 Ill.App.3d 557, 302 N.E.2d 666, in which we dealt with Rule 401 referred to. We pointed out that, in Rule 401, it is expressly provided that the court should not permit a waiver of indictment unless the court, “by addressing defendant personally in open court” has informed him of and determines that he understands (1) the nature of the charge; (2) the minimum and maximum sentence prescribed by law; and (3) that he can be prosecuted for the offense only after indictment by a grand jury unless he waives indictment. We pointed out in the Schyska case that, from the nature of the rules set forth, advice to the defendant by the trial court of the nature of the charge and the minimum and maximum sentences prescribed by law is a basic requirement as a preliminary to acceptance of waiver of indictment by the defendant. We also pointed out in such case that if a defendant has once been advised of the nature of the charge and the minimum and maximum sentences prescribed by law, such advice could carry over and could apply in successive procedures such as waiver of indictment and plea of guilty. In view of the record in this case, which shows that defendant was not advised of the nature of the charge and the minimum and maximum sentences prescribed by law prior to the waiver of indictment, this cause is required to be reversed and remanded to the trial court.

In view of our disposition of this cause it is unnecessary for us to rule on the remaining contention of defendant (with respect to the recognition of the plea agreement) as a failure to comply with certain provisions of Rule 402. In the event of a plea of guilty, it is improbable that such deficiency would be repeated upon remandment.

This cause is, therefore, reversed and remanded to the Circuit Court of Hancock County with directions to such court to vacate the sentence heretofore imposed and to permit defendant to withdraw his plea of guilty as well as his waiver of indictment, if he chooses so to do, and that the trial court shall thereafter proceed to advise defendant in accordance with Rules 401 and 402, if there are to be further proceedings by waiver of indictment or plea of guilty in this cause. This cause is, therefore, reversed and remanded with directions to proceed in accordance with the views expressed in this opinion.

Reversed and remanded with directions.

STOUDER and DIXON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul James Smith, Defendant-Appellant.
    (No. 73-287;
    Third District
    June 21, 1974.

      James Geis, of the State Appellate Defenders Office, of Ottawa, for appellant.
    David DeDoncker, State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant, Paul James Smith, was indicted for unlawful possession of more than 30 grams but not more than 500 grams of cannabis under section 4(d) of the Cannabis Control Act (Ill. Rev. Stat., ch. 56% sec. 704(d)). He pleaded not guilty and was convicted of the charge after a jury trial in the Circuit Court of Rock Island County. He was sentenced to a term of not less than 1 nor more than 3 years.

The only issue presented for review is whether the indictment and conviction were based on an unconstitutional statute which violates the due process clauses of the Federal and State constitutions because the statute allows the penalty to be determined by weight unrelated to the quantity of cannabis possessed, and the penalty provisions of the statute bear no reasonable relationship to the purpose of the statute.

The issue of the constitutionality of the statute was not raised during the proceedings in the trial court.

The question of the constitutionality of a statute is properly presented for review only when it has been raised and passed upon by the trial court. Since this was not done in the instant case, the question is not subject to review in this appeal. People v. Amerman, 50 Ill.2d 196, 197; People v. Cooper, 17 Ill.App.3d 934, 308 N.E.2d 815, 819.

For reasons stated the judgment of the Circuit Court of Rock Island County is affirmed.

Affirmed.

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


author: Mr. JUSTICE ALLOY Mr. JUSTICE STOUDER,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John M. Reans, Defendant-Appellant.
    (No. 73-270;
    Third District
    June 20, 1974.

      STOUDER, J., dissenting.
    James Geis, of the State Appellate Defender’s Office, of Ottawa, for appellant.
    David DeDoncker, State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendant John Reans appeals from a conviction (following a jury trial in the Circuit Court of Rock Island County) of the offense of theft by deception in excess of $150 in violation of sections 16 — 1(b) and 16— 1(d) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, pars. 16 — 1 (b) and 16 — 1(d)). He was sentenced to serve 5 years’ probation. Probation was subsequently revoked and he was sentenced to a prison term of from 1 to 3 years. Defendant has withdrawn a claim of improper revocation of probation and has actually been released on parole. The only remaining issue before the court is whether the appellant’s conviction for theft by deception should be reversed.

In argument of his appeal, defendant states that he should have been charged more appropriately with deceptive practices in violation of section 17 — 1(d) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 17— 1(d)). He argues specifically that the differentiation between the charges is that in the charge of theft for which he was convicted, there is involved the element of intent “to deprive the owner permanently of the use or benefit of the property” (Ill. Rev. Stat. 1969, ch. 38, § 16 — 1 (d)(1)). He contends that the State has failed to prove such intent.

The record in this case indicates that on January 25, 1971, defendant opened a checking account at a Rock Island bank in the name of a corporation, and that, at that time, he made no deposit but did obtain some checks to use prior to the time the corporation’s checks were printed. On January 27, 1971, when a Steve ICoehler, to whom Reans owed $10, asked him to pay that money, Reans wrote a check for $300 and instructed Koehler to return the balance in excess of the $10 to him. Defendant Koehler then attempted unsuccessfully to cash the check at two stores. Koehler then went to a bank, where he cashed the check and gave the balance of $290 to Reans. The check was returned unpaid due to insufficient funds, since no money had been deposited in the account by defendant.

During the 2-day period following January 25, 1971, Reans tendered ten other bad checks. Although the indictment in the cause before us related only to the eleventh check which was written, the State presented proof of the other ten checks in order to show a prior course of conduct which would support an inference of the requisite felonious intent on the part of defendant.

Defendant Reans contends that at the time he presented the eleventh bad check he was sponsor of a Park District basketball team and was expecting to receive, on January 27, reimbursement in the amount of $900 for some of his disbursements for the team. The money never arrived. Defendant said that, upon learning of the return of the check which he had tendered to Koehler, he called the cashing bank to attempt to make restitution on February 13, but his arrest on February 11 thwarted that endeavor. He also testified that he had asked the drawee bank if he could make a deposit which would enable the bank to honor the returned check. The bank refused. Reans also stated that on February 1, he attempted to arrange a loan in order to pay the bad checks but he was unsuccessful. It is defendant’s position that his course of conduct following his tender of the checks, including the fact that he gave the bank his real name and remained in town, was inconsistent with any intent permanently to deprive the drawee bank of the funds with which it had paid the check.

After charges had been filed against him, defendant Reans apparently commenced to make restitution with respect to some of the bad checks. At the trial he attempted to produce some evidence of his subsequent course of conduct for the purpose of countering the State’s contention as to his intent at the time he wrote the check to Koehler. The trial judge refused to admit the testimony with respect to any restitution which was attempted after the charges had been filed. Defendant Reans challenges that determination on the ground that such action taken subsequently to the filing of the charges against him, was part of and corroborative of a course of conduct he had commenced prior thereto. He states that while the value as evidence of subsequent acts might have been impaired by the intervening charges, that was a question of weight and not admissibility and the jury was the proper body to decide it.

Defendant Reans contends that the State failed to prove beyond a reasonable doubt the existence of a requisite felonious intent. In a trial by jury, where the jury is the finder of fact and has the ability to see and hear the evidence first hand, and, also, to view the witness’s demeanor, and generally to decide the. weight to be attached to any particular testimony or items of evidence, a court of review hesitates to challenge the finding of the jury. The right to believe or disbelieve the contentions of defendant Reans as to the existence of the requisite felonious intent was the prerogative of the jury. Even though the evidence of the State and defendant Reans was in conflict, that does not in and of itself as a matter of law, raise a reasonable doubt as to guilt. People v. Hoffman, 326 Ill.App. 514, 62 N.E.2d 24.

We have also noted, from the record, that although Reans supplied the names of his supposed “backers” who were to have provided the funds which he anticipated but did not receive, Reans failed to either call the backers to testify or to explain his failure to do so. The jury might reasonably have had some reservations about believing the testimony of Reans under such conditions. They obviously could have considered that it would be simple to obtain such testimony and such testimony would be very effective if Reans had attempted to produce it.

On the record, it is clear that Reans tendered a check knowingly without having funds on deposit. This in and of itself would support an inference of the existence of the requisite felonious intent. Likewise, according to provisions of section 15 — 3 of the Criminal. Code (Ill. Rev. Stat. 1969, ch. 38, par. 15 — 3), “permanently deprive” is defined in such manner that the evidence at the trial could be deemed to have established an inference that Reans intended to permanently deprive when he tendered the check without having funds on deposit. The State also bolstered that inference by proving the prior course of conduct of defendant Reans. The jury obviously had evidence to find defendant Reans guilty beyond a reasonable doubt under such circumstances.

A second issue which is raised by defendant involves a refusal of the trial judge to allow Reans to present evidence concerning further attempts at restitution following the time when he was criminally charged. Under the precedents of this State, restoration or restitution to the owner after a theft does not negative the offense. (Callaghan’s Illinois Criminal Law, vol. 1, § 15-29.) The evidence of attempts at restitution to which Reans referred in his testimony, could bear only on the question of the extent to which such evidence tended to negate the existence of a requisite intent. The criminality of the act is not removed by an intention to make restitution. People v. Riggins, 13 Ill.2d 134, 148 N.E.2d 450.

We note from the record that Reans was in fact permitted to attempt to show that he attempted to have the banks allow him to make the check good and that he attempted to obtain the loan. He was also permitted to testify that he did not possess the requisite intent to deprive the bank of the funds. The trial court, in ruling on the evidence which was excluded, determined that it had minimal, if any, probative value with respect to the issue of the existence of the requisite intent. While we would normally favor the admission of evidence of attempts at restitution for the purpose of having a jury or a trier of fact consider these activities with all other facts in determining the absence or presence of felonious intent in a prosecution, we believe that its exclusion in the cause before us, in view of the specific record of the activities of defendant in this cause, was not sufficiently prejudicial to constitute reversible error. The discretionary ruling by the trial court did not constitute reversible error, in view, particularly, of the fact that defendant himself had testified to his attempts at restitution.

The final argument raised by defendant is that the court improperly refused to give the jury the second paragraph of a circumstantial evidence instruction in form as carried in Illinois Pattern Jury Instructions, Criminal, which was requested by the defense with respect to circumstantial evidence. The instruction No. 3.02 is as follows:

“Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of [the] [a] defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict. [You should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.]"

According to defendant Reans, the only controverted issue when the case was submitted was the existence of the requisite felonious intent. Defendant argues that, since the proof of such intent must necessarily require the jury to draw inferences from the existence of certain other facts, the evidence with respect to this question was entirely circumstantial and the refused portion of the instruction should have been given. We have observed the Committee Note accompanying the challenged portion of the instruction which reads: “The second paragraph should be given only where proof of guilty is entirely circumstantial.” By its nature, specific intent normally must be proved by the drawing of an inference from the proof of another fact, often the commission of the proscribed act itself. In this sense, such intent usually is proved circumstantially and not directly. With respect to many criminal acts, the act clearly “speaks for itself.” The act so clearly broadcasts the intent with which it was performed that the question of intent either becomes inconsequential or the proof of it is so directly related to proof of the act that the evidence is regarded as direct even though technically it might be “circumstantial.” In the instant case, the State was required to prove the existence of not only the intent but of all other elements of the charged crime as well. It is incontrovertible that the State’s proof of all such elements, at least, was direct. Therefore, obviously, the proof by tibe prosecution was not “entirely circumstantial” and the court properly refused to include the requested second paragraph.

Since we find no reversible error in the record, the judgment of the Circuit Court of Rock Island County will be affirmed.

Affirmed.

SCOTT, P. J., concurs.

Mr. JUSTICE STOUDER,

dissenting:

Consistent with my view as discussed in my dissenting opinion in People v. Minish, 19 Ill.App.3d 603, filed May 20, 1974, I believe the entire circumstantial evidence instruction should have been given and the failure to do so requires a new trial in this case. I see no reason for repeating my observations in my dissenting opinion in the Minish case although I believe them to be equaHy applicable to the basic issue of this case.

This case iUustrates and supports my view that there is nothing in the nature of circumstantial evidence which suggests that a particular instruction should be given only if all of the evidence is circumstantial. Concededly, in this case the only disputed issue is the intent of the defendant and the only evidence relevant to such disputed issue is circumstantial. This is true of the evidence tending to show defendant’s intention to permanently deprive the bank of its property as well as the evidence tending to show the defendant had no such intention. Whether the requisite intent is or is not proved by the circumstantial evidence is measured by the same standard that would be applicable if aU the evidence were circumstantial and the jury should have been so instructed.

If the jury had been properly instructed I believe there is sufficient evidence, although conflicting, which would support the conviction of the defendant if the conflicts in such evidence were resolved in favor of the prosecution.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Walter Charles York, Defendant-Appellant.
    (No. 74-87;
    Third District
    July 11, 1974.
    James Geis, of the State Appellate Defender’s Office, of Ottawa, for appellant.
    David DeDoncker, State’s Attorney, of Rock Island, for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David Lynn Marselle, Defendant-Appellant.
    (No. 73-92;
    Third District
    July 11, 1974.
    Michael Massey, of Calva, for appellant.
    William K. O’Connor, State’s Attorney, of Cambridge, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal by defendant, David Lynn Marselle, from a conviction and judgment in a bench trial in the Circuit Court of Henry County. Defendant was found guilty of the offense of contributing to the delinquency of a minor (Ill. Rev. Stat. 1971, ch. 23, § 2361A). Following a hearing in aggravation and mitigation, defendant was sentenced to a term of 1 year and given credit for time served against that sentence.

Defendant bases his appeal from the conviction on two major grounds. He first contends that it was reversible error for the court to have allowed an Illinois policeman to read from a letter which presumably was sent to the policeman from the Colton, California, chief of police stating that David Marselle had been involved in an automobile wreck on September 14, 1972, in Colton, Califoma, and that Marselle’s auto was taken to a junkyard operated by a man named Aboytes. The letter also stated that the junk dealer told the policeman that the complaining witness, who was identified by him from a photograph, was with the defendant in Colton, California, on such date. It is also argued that it was reversible error for the court in considering sentencing, to consider in the hearing in aggravation and mitigation, a prior conviction of defendant which had been declared void in a subsequent habeas corpus proceeding.

From the record it appears that Christine Wolfe, the complaining witness, testified that she left her home and her high school in Kewanee, Illinois, and that dining the first 3 or 4 weeks, August 23, 1972, to September 20, 1972, when she was gone continuously, she was in the presence of defendant Marselle, and away from Kewanee, Illinois. She also said that Teddy Nelson accompanied them. Defendant Marselle, on the contrary, testified that he was not with the complaining witness at any time during that period.

The so-called “identification” by the California junk dealer was offered by the prosecution for the purpose of showing that during the period in question, following the wreck involving Marselle’s automobile, the complaining witness, in the presence of the defendant, procured personal items from the wrecked automobile. The defense relied upon the testimony of the defendant and of alibi witnesses who placed defendant alone in Kewanee at various times during the period in question. The State also offered the testimony of witnesses who refuted the alibi testimony.

Defendant Marselle testified that on August 22, 1972, he and Teddy Nelson did leave for the West. He stated that he returned to Kewanee sometime between September 10 and 17 and that he left for the West against approximately 5 or 7 days later. He stated he returned again to Kewanee in late September or early October. During his second return trip he stated he spoke with the Kewanee Police Chief and with Christine’s mother and remembered telling them of the wreck in Colton, California.

Defendant’s father, Frank Marselle, testified that he had ordered his son to leave the home and that David in fact left their home on August 22 but returned again on August 29. Frank next saw David on October 11 at which time David said he told them he had returned to prove he had not taken the girl. David’s sister-in-law stated that she and her husband were asked to stay at David’s parents’ home during the parents’ absence around August 30, 1972, in order to guard the home against the rumored return of David. She said she was shocked one morning to find David sleeping on a mattress in the furnace room. This testimony was corroborated by the defendant’s brother, Lariy Marselle.

The Kewanee police chief testified that shortly after August 23, 1972, he talked to Frank Marselle concerning Christine Wolfe’s disappearance. A Kewanee police officer testified that on September 21, 1972, he talked to Frank Marselle and that Frank then told him he had not seen David since August 22.

It is clear, therefore, that the issue to which the junk dealer Aboytes’ purported identification of the complaining witness was directed was whether, during Christine’s absence from school and home, Christine was with defendant. This was critical to the ultimate question of whether defendant had committed the charged offense. Clearly, as a result of the conflicting testimony of the complainant and defendant, the letter from the Colton, California, chief of police was crucial with respect to the credibility of defendant’s own testimony. Other than the direct testimony of complainant who remained away approximately 3 months after she claimed defendant was last with her, the letter was the only evidence of any substance that tended to place complainant with defendant. The letter and its contents were admitted into evidence over defendant’s timely objection.

It is obvious that the critical material testimony of Mr. Aboytes, the junk dealer, was “second-degree hearsay” since it supposedly represented the purported identification by one out-of-court witness (Aboytes) made to the second out-of-court witness (Colton, California, chief of police) and was transmitted by the second out-of-court witness to the witness who testified (the investigator for the Henry County Sheriff’s Department). The in-court testimony permitted the deputy to read the report of the Colton police chief and also of his report of the statement of the junk dealer. The Colton police chief’s account was “first-degree hearsay” and, as indicated, that of the junk dealer was “second-degree hearsay”. Defendant argues that the challenged letter was received in evidence in contravention of his Sixth Amendment rights under the Constitution of the United States and of article I, section 8 of the 1970 Illinois Constitution, which grants him the right to be confronted by witnesses against him and to meet the witnesses face to face. This right is guaranteed to defendants in both Federal and State proceedings (Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065). It is apparent from the record that defendant had no opportunity to confront or cross-examine the Colton police chief or Aboytes, the junk dealer.

It has been observed that the evidentiary rule of general exclusion of hearsay testimony is that such testimony is generally considered inherently unreliable. Most exceptions to the rule of general exclusion owe much to the evidence to which they relate being considered less unreliable. In absence of a particular exception based on the particular quality of the evidence in question, hearsay evidence is inadmissible. It is clear that the “evidence” contained in the letter from the California Police Chief, as well as the reference to the purported identification by the junk dealer does not rise to the standard of reliability which is required.

The Hlinois Supreme Court in People v. Smith, 38 Ill.2d 13, 230 N.E.2d 188, indicates that the letter of the Colton police chief was constitutionally inadmissible in absence of the State’s having made the chief and Aboytes, the junk dealer, available for cross-examination. In the Smith case, which was also a bench trial, the arresting officer testified that a deceased informer had identified defendant as having sold narcotics to the informer. The Hlinois Supreme Court held that the defendant unconstitutionally was denied the right to confront the witnesses against him. Even apart from the constitutional issue, the letter would not have been admissible in this cause under Illinois Supreme Court Rule 236(a) (Ill. Rev. Stat. 1971, ch. 110A, § 236(a)), where certain business and professional writings or records are permitted to be introduced as an exception to the hearsay rule. Subsection (b) of that Rule, however, specifically provides: “This rule does not apply to the introduction into evidence of * * * police accident reports.”

Even if we assume for the purpose of this case that the information received from the Colton, California Police Chief was a “police accident report,” Supreme Court Rule 236 would be unavailable as a statutory basis for its admissibility. It likewise certainly did not come under any of the express exclusions from the hearsay rule. We, therefore, conclude that the admission of the evidence of the letter from the Colton, California, chief of police, including the report of the statement of the California junk dealer should not have been admitted and, under the facts in the record, constituted reversible error. We cannot determine whether defendant, in absence of such evidence, would have been found guilty beyond a reasonable doubt.

A prior conviction which has been set aside in a subsequent habeas corpus proceeding was brought to the attention of the court in the hearing in aggravation and mitigation. People v. Helton, 106 Ill.App.2d 246, 245 N.E.2d 4, 6, held that a prior conviction, subsequently reversed, could not be brought to the attention of a court in a hearing in aggravation and mitigation. In People v. Shook, 35 Ill.2d 597, 221 N.E.2d 290, 292, the Illinois Supreme Court held that evidence of a prior conviction, which had been dismissed in a habeas corpus proceeding, was improperly interjected for impeachment purposes. We, therefore, see no reason why a conviction which has been voided in a habeas corpus proceeding, should be considered by the trial court in the hearing in aggravation and mitigation. Accordingly, upon remand of this case, in the event circumstances should warrant a new hearing in aggravation and mitigation, information with respect to the prior conviction should not be presented or considered by the sentencing court.

For the reasons stated, the judgment of conviction is reversed and this cause is remanded to the Circuit Court of Henry County for a new trial.

Reversed and remanded.

STOUDER and DIXON, JJ., concur.