text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Stephen Hesse, Defendant-Appellant.
    (No. 72-322;
    Third District
    April 18, 1974.

      Robert Agostinelli, Assistant Appellate Defender, of Ottawa, for appellant.
    Martin P. Moltz, of Model District State’s Attorneys Office, of Elgin, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Defendant, Stephen Hesse, was found guilty of two counts of unlawful possession of cannabis by the circuit court of McDonough County. He was sentenced as to Count I to be placed on 3 years’ probation, the first 90 days of which he was to be confined in the Illinois State Farm at Vandalia, Illinois, without credit for good time. As to Count II defendant was sentenced to 90 days in the Illinois State Farm at Vandalia with a sentence credit time of 28 days for time spent in the McDonough County Jail.

The evidence disclosed that a United States Postal Inspector intercepted a parcel mailed from outside the United States and informed a special agent with the Bureau of Customs of the United States Treasury Department named Serra that the package contained 1 pound of hashish. Serra opened the package and discovered a wax candle inside of which was imbedded the hashish. The package was addressed to defendant in Macomb, Illinois. Serra took the package to the Macomb Post Office to Postal Inspector Rennie and Sheriff Bliven. The package was again opened and inspected, then resealed and signed over to Inspector Rennie, and then to Sheriff Bliven who placed it on the post office shelf ready for pick up. Defendant went to the post office and found the slip in his postal box indicating there was a package for him. He presented the slip to the postmistress who suggested defendant check the contents of the package since the box was damaged. Defendant went to a nearby table, opened the package, examined the contents, then returned to the window to sign a receipt card. Police officers observed the transaction and defendant was arrested as he left the post office with the package. Following the arrest, the police conducted a warrantless search of the package and also of the person of defendant, where inside his top coat pocket was a small packet of hashish and inside his right coat pocket was a small bottle also containing hashish.

In a pretrial motion defendant raised the issue of suppression of the evidence discovered after his arrest. The motion was denied, the trial court finding there was probable cause for the arrest and search.

Defendant’s first contention is that there is an absence of evidence’ from which one could reasonably infer the defendant had “knowing” possession of cannabis found in the package. Defendant’s knowledge of the presence of narcotics in addition to his immediate possession and control thereof is essential to prove the crime of possession of narcotics. (People v. Smith, 20 Ill.2d 345, 169 N.E.2d 777, and People v. Mack, 12 Ill.2d 151, 145 N.E.2d 609.) The brief and argument of defendant point out the statement made by defendant that when he opened the box he observed a white candle and some packing paper, but defendant fails to take into account the evidence presented by the State concerning what could be observed in the package. Serra, a special agent with the Bureau of Customs of the United States Treasury Department, a witness for the State who had inspected the package prior to defendant’s observation of the package, testified that as a person looked into the box from the top, the hashish was clearly exposed. Another State witness was Sheriff Bliven who testified that he looked on while defendant opened the package and stated the hashish was easily observable. Deputy Sheriff Barry testified the hashish was observable in the package.

It is our opinion that rather than an absence of evidence to prove defendant guilty beyond a reasonable doubt, there is merely a conflict in the evidence. As indicated by the Illinois Supreme Court in People v. Galloway, 28 Ill.2d 355, 192 N.E.2d 370, we believe that whether there is knowledge is a question of fact to be determined by the jury and the findings of the jury will not be disturbed on review unless so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to' create a reasonable doubt of guilt.

Defendant calls our attention to People v. Ackerman, 2 Ill.App.3d 903, 274 N.E.2d 125, where the defendant received a package containing LSD addressed to an unknown person in care of defendant. In Ackerman the defendant did not have the opportunity to inspect the contents of the package nor did he even open the package prior to his arrest. There is no evidence of the defendant’s knowledge in Ackerman, whereas in the instant case it can be inferred from Hesse’s acts and from the testimony of the State witnesses that Hesse had knowledge of the contents of the package. We believe the evidence was sufficient to support the jury’s finding that the defendant was guilty beyond a reasonable doubt.

Defendant’s next contention relates to the constitutionality of section 4 of the Cannabis Control Act (Ill. Rev. Stat. 1971, ch. 56½, sec. 704), under which he was convicted. He maintains the statute is violative of the due process and equal protection clauses of the Federal and State constitutions by providing penalties to be determined by the weight of the “substance containing cannabis” and also by distinguishing between persons placed within different penalty provisions. These issues are raised in the same manner in previous cases decided by this court (People v. Campbell, 16 Ill.App.3d 851, 307 N.E.2d 395, and People v. Kline, 16 Ill.App.3d 1017, 307 N.E.2d 398) where such issues are discussed at length. We believe no further discussion is required at this time.

Finally defendant contends his motion to suppress evidence was improperly denied because his warrantless arrest and subsequent search were without probable cause or in the alternative even if the arrest was lawful, the subsequent search of defendant’s person was unlawful. According to the Illinois Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, sec. 107—2(c)) a peace officer may arrest a person without a warrant if he has reasonable grounds to believe the person is committing or has committed an offense. Considering the evidence presented at the trial, discussed earlier in this opinion on the issue of knowledge and considering also the jury’s finding of guilt, we believe the officers had reasonable grounds to believe defendant knew the package he was carrying contained cannabis at the time he was arrested.

In view of the fact the arrest was lawful, we next consider whether the subsequent search of his person was proper. Defendant states in his brief that the Illinois Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, sec. 108—1) controls in the instant case and that he is not within one of the categories described. We disagree. The statute provides in part that where a lawful arrest is made the peace officer may reasonably search the person arrested to discover articles which may constitute evidence of an offense. It is proper to search a person without a search warrant and the evidence obtained is admissible, if the search is incident to a lawful arrest. (People v. Wilson, 45 Ill.2d 581, 262 N.E.2d 441.) It is our opinion the arrest and the subsequent search of defendant were lawful and the evidence seized was admissible at the trial.

For the foregoing reasons, the judgment of the circuit court of McDonough County is affirmed.

Judgment affirmed.

ALLOY and DIXON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DIXON

license: Public Domain

text:
    Bessie Thomas, Plaintiff-Appellee, v. William A. Thomas, DefendantAppellant.
    (No. 73-266;
    Third District
    April 19, 1974.

      Kavanagh, Scully, Sudow, White & Frederick, of Peoria, for appellant.
    Barash & Stoerzbach, of Galesburg, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is a petition to modify a decree for divorce brought by the defendant, William A. Thomas, seeking to reduce alimony payments to Bessie Thomas, plaintiff, on the grounds of a substantial change in circumstances. The Circuit Court of Knox County denied the petition and defendant has appealed contending that the trial court erred in finding no material change in circumstances sufficient to warrant reduction of alimony payments.

On April 27, 1973, a judgment for divorce was granted to plaintiff which provided for $25 per week alimony and which expressly provided for future modification if there was a change of circumstances.

On July 11, 1973, defendant filed his petition for modification alleging that at the time of the decree he was on medical leave from his employer receiving weekly benefits of $119, and that he anticipated that he would return to employment in the near future; that since then his employment was terminated for permanent medical disability, that he now receives $228 per month pension from his employer and all other payments from the employer were terminated. A hearing was held wherein it was disclosed that petitioner also received $266.10 social security and was to continue to receive this each month in addition to the $228 pension. The trial court denied the relief requested stating, “If anything the defendant is getting more money than was anticipated at the time of the divorce because so much of it was taxable at that time. At that time the only tax deductible items he knew of were the alimony payments, whereas now he also has $266.10 that is also deductible."

The appellant has fully perfected his appeal and complied with all the requirements of the rules of court. The plaintiff-appellee has not filed a brief in this court, but reversal of the judgment is not required for this reason alone and the reviewing court may consider and determine the case on its merits. (2 I.L.P. Appeal and Error, sec. 560.) A case will not be reversed without considering it on the merits if there may be a good reason why appellee filed no brief. (Wempen v. Girard, 84 Ill.App. 130.) We infer from what we discover, on reading the record, that there may be a good reason why no brief has been filed, and so consider the case on its merits.

The record shows that the appellee, aged 67, is permanently and totally disabled from a stroke, and that her only income other than alimony was $171 a month from her social security. She lives with and is cared for by her mother, aged 85.

The record further shows that at the time of the divorce, defendant thought that he would receive social security disability payments of only $20 per week and that he was aware that his employer was going to transfer him to long term disability thereby reducing his weekly benefits of $119 to a lesser sum. We quote from the record:

“Q. You have freely and voluntarily entered into a settlement agreement with Bessie Thomas, settling all property rights of you and Mrs. Thomas against each other, is that correct?
A. I have.
Q. Part of that agreement included alimony of $25.00 per week, which figure is based on your present income and earning ability. You are now receiving disability payments * * * in the net
amount of $119.00 and you also have the possibility of receiving Social Security payments which will supplement these payments to a certain extent, is that correct?
A. That’s right, sir.
Q. Do you know at this time what amounts those payments will be?
A. No, the only thing I can say is that last Wednesday or Thursday, Mr. Neal at the insurance company at Caterpillar notified me they was going to put me on LTD, which means long term disability and when they do that they will take away from what my original payments are now. That is according to what Mr. Neal told me.
Q. To the best of your knowledge, you have been classified as disabled under the terms of the Social Security Act, is that correct?
A. As far as I know, sir.
Q. Those anticipated Social Security payments were considered in arriving at the figure of $25.00 per week is that correct?
A. That’s right.
Testimony at the subsequent hearing on modification shows that he thought his Social Security payments would amount only to $20.00 per week. During the hearing the local Social Security office was called by order of the court and it was determined that the payments were $266.10 per month.”

The application for an alteration or modification of a decree for alimony is always addressed to the sound discretion of the trial court (Cole v. Cole, 142 Ill. 19), whose decision thereon will not be reversed on appeal in the absence of serious error or an abuse of discretion. (See I.L.P. 16A, Divorce, sec. 161.) Ordinarily, the only inquiry is whether sufficient cause has intervened since the decree to authorize or require the court, applying equitable rules and principles, to change the allowance. Cole, supra.

One of the chief grounds for modification is a material change in the financial circumstances of the parties. Where the alleged change is one that was expected and allowed for when entering the original decree, the change is not a ground for modification. Annot. 18 A.L.R.2d 21, 77, 78, secs. 3, 25.

. It is clear, from the testimony, “will take away from what my original payments are now” and “those anticipated Social Security payments were considered in arriving at the figure of $25.00 per week”, that the alleged change was one that was expected and allowed for when the original decree was entered only a few weeks prior to the petition for modification.

Appellant argues that there was no evidence as to his disposable income after taxes. Consideration of income tax has long been a factor in determining whether an award of alimony should be modified (Arnold v. Arnold, 332 Ill.App. 586, 18 A.L.R.2d 1; Jacobs v. Jacobs, 328 Ill.App. 133), because only the balance which remains after payment of taxes will be available for the support of either husband or wife. However, the burden of showing changed circumstances is on the party seeking the modification. In the instant case there was no showing at all on the part of petitioner as to his disposable income after taxes either at the time of the original judgment or at the hearing on modification. He failed to meet his burden of proof in the matter.

For the foregoing reasons the judgment of the Circuit Court of Knox County is affirmed.

Judgment affirmed.

STOUDER and ALLOY, JJ., concur.


author: Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Herman Holmes, Defendant-Appellant.
    (No. 73-51;
    Third District
    April 23, 1974.
    James Geis, Deputy Defender, of Ottawa (Stephen Hurley, Assistant Appellate Defender, of counsel), for appellant.
    Martin Rudman, State’s Attorney, of Joliet (George Relias, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

After pleading guilty to the offense of voluntary manslaughter the defendant, Herman Holmes, was sentenced by the circuit court of Will County on September 10, 1971, to a term of from 4 to 12 years in the penitentiary. On this appeal defendant urges the record fails to show his plea was voluntarily and understandably made because the court failed to properly admonish him of the nature of the offense charged. This is the only respect in which defendant claims any deficiency in the court’s compliance with Supreme Court Rule 402. Ill. Rev. Stat. 1971, ch. 110A, sec. 402.

Defendant was initially charged with murder but after plea negotiations the defendant agreed to plead guilty to the offense of voluntary manslaughter if the murder charge was dropped. No recommendation on sentence was included in the plea bargain. A hearing was held with respect to the waiver of indictment and after such waiver was accepted by the court, the defendant pleaded guilty to a charge contained in an information of voluntary manslaughter.

Relevant to the nature of the offense charged, the following appears from the record at the hearing on waiver of indictment:

“Q. You promise if there is anything that is not clear in your mind you will ask questions and find out what the problem is?
A. I will.
Q. All right. Now, the State has filed a paper called an information which charged you with the offense of voluntary manslaughter. It says that on or about May 29, 1971, you killed Homer Trammel, without lawful justification. In not going to read it all to you. I’m just going to tell you generally what it’s about.
MR. VINSON: Your Honor, the record can show that we have a copy of it and Mr. Holmes has read it.
THE COURT: All right.
MR. VINSON: That is the copy we have.
THE COURT: Now, Mr. Holmes, the charge of voluntary manslaughter is that you killed Homer Trammel, you didn’t have any legal right to do it, you shot him with a gun, and that was near 362 North Bluff Street, City of Joliet, Will County, Illinois. And at the time you shot him you were under an intense passion. Do you understand what I said?
MR. HOLMES: Yes.
[EXAMINATION BY THE COURT: Continuing]
Q. Resulting from serious provocation. That charge says that Homer Trammel provoked you. Do you understand that?
A. Yes.”

The court then proceeded on the verified information, and after having read the charge to him by the court, the defendant entered a plea of guilty to the charge of voluntary manslaughter. However, before accepting the defendant’s plea of guilty the court admonished the defendant pursuant to Supreme Court Rule 402(a) by advising him of the minimum and marimnm sentence, right to a jury trial, whether the plea was voluntary, and the nature of the charge, which was done in the following manner:

“Q. Now, I’ve told you before that you are facing the charge of voluntary manslaughter and the charge is that you killed Homer Trammel, you didn’t have any legal justification for killing him, you killed him with a hand gun on Bluff Street in Joliet. At the time you killed him you were acting under an intense passion and that came from provocation by Homer Trammel.
Do you understand that charge?
A. Yes.
Q. That is what you are charged with doing?
A. Yes.”

Defendant seeks to bring this case within the rule as applied in People v. Krantz, 12 Ill.App.3d 38, 297 N.E.2d 386 and People v. Farnsworth, 10 Ill.App.3d 844, 295 N.E.2d 83. Advising the defendant of the nature of the offense should be done in simple layman’s language which can be understood by reasonable men. People v. Hudson, 7 Ill.App.3d 800, 288 N.E.2d 533, and People v. Ingeneri, 7 Ill.App.3d 809, 288 N.E.2d 550.

Defendant complains that the use of the term “without legal justification” is not readily understandable and that in the instant case the defendant’s lack of understanding is demonstrated by an additional reference in the record. Defendant applied for probation and at a combined hearing on his petition for probation and in aggravation and mitigation the defendant testifying in his own behalf indicated that he was not the attacker.

We believe the position of the defendant at his sentencing hearing was designed to minimize the culpability of his conduct and indeed the defendant seems to concede this position in his brief because he faüs to describe the facts of the offense which were presented at the hearing in great detail. In explaining the nature of the offense we do not believe the rule requires that matters which may be urged by way of defense need be specified or itemized. Such matters generally relate to the negativing of the elements of the offense and consequently are explicit without further explanation. While it well may be that something may occur later in the proceeding, such as in People v. Farnsworth, 10 Ill.App.3d 844, 295 N.E.2d 83, indicating the defendant may not have understood the nature of the offense thereby requiring additional explanation, we believe that the defendant’s effort in this case to describe his conduct with a view toward securing a reduced penalty falls short of indicating any lack of understanding of the nature of the charge.

For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE DOWNING

text:
    Edward E. Jackson, Plaintiff-Appellee, v. Illinois Central Gulf Railroad Company, Defendant-Appellant and Third-Party PlaintiffAppellee—(University of Chicago, -Third-Party- Defendant-Appellant.)
    (No. 58821;
    First District (2nd Division)
    March 12, 1974.

      Winston & Strawn, of Chicago (Edward J. Wendrow, Thomas P. Healy, and Patrick F. Healy, Jr., of counsel), for Illinois Central Gulf Railroad Company.
    Louis G. Davidson & Associates, Ltd., and Francis J. Gariepy, both of Chicago (Louis G. Davidson and Robert B. Patterson, of counsel), for Edward E. Jackson.
    Menk, Johnson & Bishop, of Chicago (Ronald T. Bishop, of counsel), for University of Chicago.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Edward Jackson (hereinafter plaintiff) sought by a personal injury suit to recover damages for an injury to his left hand allegedly caused by the negligence, and the wilful and wanton negligence, of the Illinois Central Gulf Railroad (hereinafter the railroad). Subsequently, the railroad filed a third-party complaint against the University of Chicago (hereinafter the university), basing its cause upon a written “side track” agreement which existed between the railroad and the university.

The third-party complaint contained three counts. Count I alleged that plaintiff’s injury had been caused solely by the university’s negligence and that the railroad was entitled, therefore, to full indemnity; count II alleged that the railroad and the university had been jointly negligent, and that, therefore, the railroad was entitled to contribution from the university; and count III alleged that the railroad was entitled to full indemnification from the university under the common law doctrine of “active-passive” negligence.

After denials of all the parties’ motions for directed verdicts, plaintiff’s case—as well as the third-party action—was submitted to a jury. The jury returned a verdict in favor of plaintiff against the railroad, finding the railroad to have been actively negligent, and a judgment of $125,000 in damages was entered upon the verdict. With respect to the third-party action, the jury returned a verdict in favor of the railroad on count II of its complaint, finding that the university had been guilty of passive negHgence. The court below then entered judgment in the railroad’s favor in the amount of $62,500, representing the sum of contribution owing from the university.

The railroad and the university have appealed from the judgment entered in favor of the plaintiff, as well as from the judgment entered in the third-party action.

The issues presented to this court for review are:

(1) Whether the jury properly found that the railroad had been negligent and that plaintiff had been in the exercise of ordinary care for his own safety;
(2) Whether the railroad owed to plaintiff a duty to look for and warn plaintiff of the impending movement of railroad cars, located on a “spur track” maintained by the university, under which plaintiff was working;
(3) Whether there was sufficient evidence presented to warrant the submission to the jury of the issue of the railroad’s wilful and wanton misconduct;
(4) Whether there was sufficient evidence presented to warrant the giving of an instruction to the jury concerning the plaintiff’s lost future earnings;
(5) Whether the jury’s award was so excessive as to warrant an order of a substantial remittitur by this court; and
(6) Whether the raüroad was entitled to contribution from the university.

The pertinent facts can be summarized as follows:

Plaintiff, Edward Jackson, who was 27 years old at the time of the accident, testified that on November 6, 1967—the day of the accident— he was employed by the University of Chicago as a machine operator in the university’s steam and power plant; that he had begun working in the power plant 2 months prior to the day of the accident, though he had worked as a janitor for the university for some years; that his main work in the power plant was to move a machine back and forth along a conveyor belt which brought coal to the plant in order to keep the university’s coal bins full; that railroad coal cars would be brought by the railroad onto the university’s elevated “spur track,” located atop a trestle on the university’s premises; that the coal cars were then emptied by university personnel into coal pits located directly underneath the spur track; that after the coal had been unloaded from the cars, it was brought down through a series of holes at the bottom of the pits to a conveyor belt underneath, which carried the coal to the power plant; that, on occasion, he would be requested to assist in unloading the coal from the ear’s; that it was the practice of raüroad employees to warn workmen before a railroad car would be moved on the spur track and that on three occasions while he was working near or underneath the track, he had observed a railroad employee walk down the track to give warning to the workmen; that on six or seven other occasions, he had observed railroad employees give similar warnings; that every time he had observed empty cars being moved, the railroad had followed that procedure; and that frequently a bell or a horn would be sounded before the railroad removed empty cars.

Plaintiff went on to testify that at approximately 1 P.M. on the day of the accident—a Monday—a request was made by Nathaniel Cornwell, plaintiff’s senior co-employee to assist in the unloading of coal from the cars; that on the previous Friday, six coal cars had been run onto the spur track by the railroad and that he had assisted in unloading them; that the coal had become frozen over the intervening weekend and that it had formed an arch extending up to 6 inches from the top of a cross beam located between the tracks, though the coal beneath the. arch had been removed; that because the coal had frozen and because there were too few workmen to do the job, Cornwell asked plaintiff to help break up the coal by going down into the pits and using a long, “breaking bar”; that Cornwell told him to stand off to one side and break it up; that he told Cornwell that the suggested procedure was too dangerous in that he might slip and have tons of coal fall upon him, and that Corn-well asked if he, plaintiff, knew of a better way of doing tire job; that, thereupon, he told Cornwell he would obtain a safety belt he had seen at the plant and would “work something out with the belt,” and that Cornwell responded that he, Cornwell, had never used a belt before; and that he told Cornwell that he didn’t want to chance hurting himself.

Plaintiff, continuing, testified that after having obtained the safety belt, which was 2 inches wide, one-quarter of an inch thick, and had a “D” ring on one end, he returned and attached a rope to one end of tire belt; that, after having tied the belt on, he attached the other end of the rope to a side railing adjacent to a walkway alongside the tracks; that he first stood on one track and attempted to break up the coal, but that,, because of a lack of leverage, he was not too successful; that he then went down through an opening between the west rail and the walkway, and, while standing underneath the coal arch, attempted again to break, it up; that working in that position was the safest, he felt, because a, concrete abutment located near where he was standing would deflect the coal should it have fallen; that, again being unsuccessful in breaking the arch, he proceeded to position himself on his knees, on top.of the arch, underneath one of the coal cars, securing the rope to a bar under the car; that, at this juncture, he had no reason to anticipate that the railroad would come onto the spur track with an engine without first warning him; that he chopped at the frozen coal with a long breaking bar for approximately 20 to 25 minutes; and that he was in plain view, in this position, to anyone walking along the spur track walkway.

Plaintiff testified further that he first realized that the railroad cars were about to begin moving when he heard a banging noise; that he then tried to loosen the safety belt, but was unable to do so because he had gloves on and that by the time he reached out again, the train had started moving, snapping him onto his back across a breaking beam; that he then scrambled up onto his knees and tried to loosen the belt again after he had removed his gloves, but was dragged over other beams; that, as he was being dragged, he threw up his hands and thereafter remembered nothing other than a blinding flash until he regained consciousness at the bottom of the pit into which he had fallen; that he didn’t know how his hand had been run over by a railroad car, but that his hand felt “odd,” and that when he looked at it, it was bleeding badly; that one of his co-workers jumped down into the pit, tied a rope for him, and lifted him out of the pit; that he was thereupon taken to a hospital; and that prior to the accident, his left hand had not been deformed in any manner.

Plaintiff’s testimony further shows that subsequent to the accident, plaintiff underwent a series of nine operations on his left hand, which ultimately resulted in the amputation of the little, ring, and middle fingers of the hand; that prior to the injury, his yearly earnings were approximately $6,500; that, due to the injury, he was off of work some 18 or 19 months; that he then sought employment at several businesses, but was unable to secure same; that, during May of 1969, he began working on the university’s security police force, had worked there steadily until the time of trial, had been promoted to the rank of sergeant, and was earning approximately $9,500 per year at the time of trial in the court below.

Dr. Louis Kolb, an orthopedic surgeon affiliated with Illinois Masonic . and Cook County Hospitals at the time of trial, testified that he had examined plaintiff at Billings Hospital during the afternoon of November 6, 1967; that plaintiff had extensive injury to his left hand, with the fifth, finger of the hand amputated just beyond the first knuckle; that the,ring finger was amputated to the first joint of the finger, with, skin loss over the long or little fingers of the hand; and that there was. , a laceration through the palm of the hand.

Dr. Kolb testified that he had X rays taken and that he decided surgery was necessary that day in order to prevent infection and to cover the bony parts of the hand with soft tissue; that surgery was performed; that on November 9, 1967, plaintiff had a skin graft taken from his left thigh, in order that the skin be grafted over the tip of plaintiff’s left hand middle finger, but that only 50% of the graft survived; that plaintiff was subsequently sent home from the hospital and underwent physiotherapy; that later, plaintiff developed flexion contracture of one of the joints of his middle finger; and that certain procedures were employed to correct the contracture, but that it recurred.

Nathaniel Cornwell, plaintiff’s senior co-employee on the day of the accident, confirmed plaintiff s account of many of the surrounding circumstances prior to the accident, and then testified that during his work experience with the university, each time empty coal cars were to be replaced on the spur track by full cars, railroad employees would walk up and down the track area to make certain none of the workmen was underneath any of the cars and to warn the workmen of the impending move; and that he had not instructed plaintiff not to use the safety belt and had not heard anyone else instruct him to use it, but had not cautioned plaintiff against using it.

William Cansar, at the time of the accident the assistant supervisor at the university’s power plant, testified that during his 15 years’ experience, he had observed the car removal practices of the railroad on numerous occasions; that he had never observed an occasion when railroad employees failed to walk up the walkway to warn the workmen; and that it had been the railroad employees’ custom to do so.

John Segeler, who, at the time of the accident, was the superintendent of the university’s power plant, testified that during his 38 years’ experience, he could not recall an occasion when a member of a railroad crew failed to walk down the spur track trestle to see if the track was clear prior to moving out the empty cars.

Paul Jones, who was the engine foreman in charge of the railroad’s crew on the day of the accident, testified that he had never seen workmen working underneath the cars; that if he believed it was necessary to sound a warning prior to moving the empty cars, he would request the engineer to do so; that there was nothing to prevent him from walking the walkway to check to see if workmen were laboring under the cars; that he attempted to ascertain whether anyone was under the cars by looking on both sides of the cars, but that he did not walk up to see if men were working underneath; that it never had been the custom and practice for any member of the railroad to walk along the walkway prior to removing cars; and that, in his 20 years’ experience as a railroad man he had never seen, nor heard of, a workman tying himself to the underside of a railroad car.

Donald Cleghom, the train’s engineer on the day of the accident, testified that members of the train crew would not go back and check to see if the trestle was clear on a regular basis and that no member did so on the day of the accident; and that railroad employees would walk along the walkway only if they observed someone working on the track area.

Gibson Kahn, at the time of the accident the assistant general yardmaster for the railroad, testified that during winter months, it was an almost daily occurrence that cars loaded vrith coal would be brought onto the university’s spur track; that the railroad’s crew always had orders “to take all the precautions in the world to not injure anyone or themselves either. That’s a standard instruction on a railroad. * * * They look around to the best they can. They go back if it’s safe to do so. # # # [I]f it’s not safe to do so they take a reasonably safe course,

they look over, they can stand on the front end of the engine and look over and they can get on the ground and look under and look on both sides of the engine.”

Also, there was admitted into evidence in the court below the following railroad safety rule:

“Guidelines to Safety
Illinois Central Railroad
Compliance with rules is essential to safety.
191. Take these- precautions and all other measures necessary to prevent injury when coupling onto or moving camp cars, cabooses, or cars on house, team, or industry tracks:
(a) find out if anyone is in, under, or between such cars,
(b) get everyone out from under or between cars,
(c) warn everyone remaining in cars that coupling will be made, and
(d) make certain that transfer plates and skids are in the clear.”

Still further, there were submitted to the jury a series of special interrogatories regarding the jury’s findings with respect to specific liability at the close of the evidence; these interrogatories, which we will number consecutively for our convenience, and the jury’s findings relative to them, were:

“(1) Did the defendant, Illinois Central Railroad Company, at the time and place in question conduct itself in a wilful and wanton manner which proximately contributed to cause the accident and injury in question?
Yes- No X
(2) Did the defendant, Illinois Central Railroad Company, at the time and place in question conduct itself in a negligent manner which proximately contributed to cause the accident and injury in question?
Yes X No-
(3) Did the plaintiff, Edward Jackson, at the time and place in question conduct himself in a wilful and wanton manner which proximately contributed to cause the accident and injury in question?
Yes-- No X
(4) Did the plaintiff, Edward Jackson, at the time and place in question conduct himself in a negligent manner which proximately contributed to cause the accident and injury in question?
Yes- No X
(5) If you find that the defendant, Illinois Central Railroad Company, a Corporation, was negligent and that said negligence was a proximate cause of the injury to the plaintiff, Edward Jackson, was said negligence active or passive?
Active X Passive-
(6) If you find defendant, IUinois Central Railroad Company, a corporation, negligent, was said negligence the sole, proximate cause of the injury to the plaintiff?
Yes- No X
(7) Did the third-party defendant, University of Chicago, at the time and place in question conduct itself in a negligent manner which proximately contributed to cause the accident and injury in question?
Yes X No-
(8) If you find that the third-party defendant, University of Chicago, a corporation, was negligent and that said negligence was a proximate cause of the injury to the plaintiff, Edward Jackson, was said negligence active or passive?
Active- Passive X ’’

I.

At the outset, we note, with respect to special interrogatories numbers 2 (the railroad’s negligence) and 4 (no contributory negligence) set out above, that the answers to each were favorable to plaintiff. The record before us reveals a failure on the railroad’s part to object to these answers, as well as a failure to move to set them aside in its post-trial motion. The consequences of these failures to so object or so move is that the answers to numbers 2 and 4 are conclusive regarding the facts upon which the issues of liability depended. (Taake v. Eichhorst (1931), 344 Ill. 508, 509; Quagliano v. Johnson (3rd Dist. 1968), 100 Ill.App.2d 444, 447-448, 241 N.E.2d 187; Huff v. Illinois Central R.R. Co. (5th Dist. 1972), 4 Ill.App.3d 113, 117, 280 N.E.2d 256.) We are required, then, under the settled law in this state, to consider these special findings to have been fully supported by the evidence presented.

II.

The first substantive issue with which we are confronted is whether the railroad owed plaintiff a duty to look for and warn him of the impending movement of coal cars, located on university premises, under which he was worldng at the time of the accident. The railroad, on appeal, urges that neither a general duty of due care with respect to plaintiff, nor any custom or practice of the industry, or even the dictates of its Rule 191, imposed upon it the duty of determining whether plaintiff had tied himself to the undercarriage of the coal car before the railroad proceeded to move same. The railroad contends that the custom and practice, whereby its employees would walk along the walkway to look for and warn workmen of the impending movement of the cars, related solely to determining whether university employees were working about the cars on the trestle or whether they were in the pit below the trestle. The railroad admits that its Rule 191 admonishes railroad employees to find out whether anyone is under the cars before undertaking to move them, but claims that the Rule has no application to the incident in question, in that the Rule relates only to workmen who might be on the ground under the cars.

Plaintiff, on the other hand, reasons that the railroad owed a duty to exercise ordinary care for the safety of plaintiff, who fell within a broad class of individuals to whom injury might foreseeably result by virtue of the railroad’s negligent conduct.

This State’s supreme court in Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 622, 126 N.E.2d 836, had occasion to address itself to the issue of the duty to exercise ordinary care; while the factual circumstances of Kahn are not analogous to those presented in the case at bar, the principles reiterated by the court, at page 622, are applicable here:

“Every person owes to all others a duty to exercise ordinary care to guard against injury which may naturally flow as a reasonably probable and foreseeable consequence of his act, and the law is presumed to furnish a remedy for the redress of every wrong. The duty to exercise ordinary care to avoid injury to another does not depend upon contract, privity of interest, or the proximity of relationship, but extends to remote and unknown persons. (Wintersteen v. National Cooperage and Woodenware Co., 361 Ill. 95.)”

In their treatise on the law of torts, Harper and James have said:

“[F]oreseeability is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful man would take account of it in guiding practical conduct. Just as this broadening of the quest adds to the risks which may make conduct unreasonably dangerous, just so does it add to the range of duty.” Harper & James, The Law of Torts (1956 ed.), § 18.2, at 1020.

American Jurisprudence also discusses the standard of conduct with which we are dealing here:

“Thus, the requisite relationship may exist under certain circumstances because of the mere presence of the person injured, at least if he is a member of a particular class, in a place where he may be injured by the defendant’s conduct, as, for example, where the presence of another may create a relation that imposes on the operator of a mobile machine or moving instrumentality a duty to maintain a lookout, or to warn persons in that vicinity of the path [of] a moving piece of machinery * * 57 Amjur. 2d Negligence §37, at 385-386 (1971).

Applying these stated principles to the case at bar, we conclude that the railroad owed plaintiff a duty to look for him and to warn him of the impending movement of the coal cars prior to their removal from the university’s spur track. Plaintiff was working in an area where university employees would foreseeably be working, and he was engaged in labor which the railroad knew was often necessary during winter months, to wit: the breaking up of frozen coal. The railroad’s duty was clear, not only from a reading of its Rule 191 and from a review of its established custom and practice, but also from an understanding of the basic legal tenets underpinning one’s general duty to exercise ordinary care for the safety of others who fall within a class of individuals to whom injury might foreseeably result owing to one’s negligent conduct.

In its argument on this issue, the railroad relies principally upon Mieher v. Brown (1973), 54 Ill.2d 539, 301 N.E.2d 307, which involved the question of the correctness of the dismissal of an amended complaint. The supreme court held that a truck manufacturer is under no duty to design a vehicle with a rear bumper, fender, or shield, so as to prevent injuries to a person colliding with the truck from the rear. The railroad claims that the holding in Mieher is- applicable here, in that the railroad operated under no duty to anticipate that someone might tie himself to the undercarriage of a railroad car. Without belaboring the matter, we feel that the rationale and the holding of the Mieher case are wholly inapposite to the issues before this court.

IIL

The next issue for our consideration is whether sufficient evidence had been presented in the trial court to warrant the tendering to the jury of the issue of the railroad’s possible wilful and wanton conduct. Although, by its answer to special interrogatory number 1, the jury found that the railroad was not responsible for wilful and wanton conduct, the railroad claims that the very submission of the question to the jury resulted in prejudicial error, basing its claim upon the rationale of Scerrino v. Dunlap (1st Dist. 1957), 14 Ill.App.2d 355, 144 N.E.2d 859. In Scerrino, both the questions of plaintiffs’ wilful and wanton misconduct and plaintiffs’ negligence were submitted to jurors by way of special interrogatories, and though the jury found plaintiffs not guilty of wilful and wanton conduct, the submission of the issue was held prejudicial error, in that the jury might well have concluded that plaintiffs were guilty of contributory negligence. The Scerrino court stated at page 365 of the opinion:

“The submission of the issue of wilful and wanton conduct of plaintiffs here may, on first consideration, seem harmless, inasmuch as the jury found plaintiffs not guilty thereof in their answer to the interrogatories; nevertheless, since the question of negligence on the part of plaintiffs was also submitted to the jurors by special interrogatory, the jury may well have been led to conclude that plaintiffs were at least guilty of contributory negligence. We find no evidence in the record to support the special finding that plaintiffs were guilty of wilful and wanton conduct, and it was prejudicial error to submit this false issue to the jury.” (Emphasis supplied.)

After having thoroughly reviewed the evidence, we conclude that the submission of this question to the jury was not the submission of a “false issue,” as it was held to have been in Scerrino, for in the case at bar the record reflects evidence which might have led the jury to find the railroad guilty of wilful and wanton conduct, though the jury did not so find. Scerrino, therefore, is readily distinguishable from the instant case, in that the Scerrino record displayed no evidence to support the special finding; whereas here, the record supports the trial court’s action.

IV.

The railroad also asserts that the court below erred in tendering to the jury an instruction concerning plaintiff’s lost future earnings when, the railroad claims, there had been adduced no evidence of same. No authority is cited by the railroad to support its argument on this point.

Suffice it to say that considering plaintiffs life expectancy, the extent and permanent nature of his injury, and the effect of the injury on his future ability to secure laboring employment, the jury could well have concluded that plaintiffs capacity to earn money in the future would be severely hampered and that he had suffered—and would continue to suffer—great pain. We think there is sufficient evidence in the record to have warranted the giving of instructions concerning plaintiff’s loss of future earnings. Martin v. McCarry (4th Dist. 1971), 2 Ill.App.3d 650, 657, 275 N.E.2d 897.

V.

The railroad further contends that the amount of the verdict is so grossly excessive that any affirmance of the judgments entered in the court below should be conditioned upon the filing of a substantial remittitur. We disagree, and, in so doing, we quote this state’s supreme court in Lau v. West Towns Bus Co. (1959), 16 Ill.2d 442, 452-53, 158 N.E.2d 63:

“[I]t has long been the law in Illinois that the amount of a verdict is largely within the discretion of the jury. Kahn v. James Burton Co., 5 Ill.2d 614; Bucher v. Krause, (7th dr.) 200 F.2d 576, cert. den. 345 U.S. 997; Holsman v. Darling State Street Corp., 6 Ill.App.2d 517. * * *
* * ” It is true that the verdict is large in comparison to the expenses of plaintiff, but we cannot limit compensable damages for pain and suffering to a set percentage of medical, hospital and kindred expenses. Costly surgery may result in complete recovery for one person, while the total of the foregoing expenses incurred by a multiple amputee may be small. Each verdict for a personal injury must be examined in the light of the particular injury involved, with humble deference to the discretion of the jury in making its determination and to the ruling of the trial judge on the post-trial motions. Johnson v. Eckberg, 94 Ill.App. 635.’’

VI.

Finally, we consider whether the railroad was entitled to contribution from the university. The cross-appeal of the university is based on its theory that it was at most only passively negligent, therefore, the plaintiff is not entitled to indemnity from the university. On the other hand, the railroad contends it is entitled to the contribution under the provisions of a so-called side-track agreement between the university and railroad in effect, and unchanged, since September 17, 1928.

The jury found the railroad guilty of active negligence and the university guilty of passive negligence (see special interrogatories 5 and 8, supra). The jury then returned a verdict in favor of the railroad and against the university, on count II of the railroad’s complaint, which charged that the railroad and the university had been negligent. The trial court then entered judgment for the railroad and against the university, ordering it to contribute the sum of $62,500.

So far as is pertinent to this question, the 1928 agreement states:

“The Shipper also agrees to indemnify and hold harmless the Railroad Company for loss, damage or injury from any act or omission of the Shipper, its employees, or agents, to the person or property of the parties hereto and then- employees, and to the person or property of any other person or corporation, while on or about the Track; and if any claim or liability other than from fire shall arise from the joint or concurring negligence of both parties hereto, it shall be borne by them equally.”

At the outset, it is to be noted that there is ample evidence to support the finding of the jury that the university was guilty of passive negligence. For example, there is evidence that the university telephoned the railroad to remove the empty cars and put in loaded cars; yet, its employees, with knowledge of the impending move of cars, requested the plaintiff to engage in breaking up the frozen coal and took no positive step to protect the plaintiff while he was performing the assigned work.

The university contends the side-track agreement does not provide for indemnity where there is a variance between degrees of fault, e.g., active and passive negligence and that, in Illinois, an indemnity agreement will not be construed as indemnifying one against his own negligence unless such is required by the clear and explicit provisions of the contract. In other words, the university urges that if the railroad—an active tortfeasor—expected to be indemnified by a passive tortfeasor, the agreement would have had to expressly so state.

In support of its position, the university cites and principally relies upon Booth-Kelly Lumber Co. v. Southern Pacific Co. (9th Cir. 1950), 183 F.2d 902. It is urged that Booth-Kelly interpreted a similar agreement and held that the railroad is entitled to equal contribution when its negligence is “of the same character” as the industry and that the words “joint or concurring negligence,” as used in the agreement, permits equal contribution where the parties are in pari delicto.

In addition, the university cites many cases in its brief in support of its theory. One is Tatar v. Maxon Construction Co. (1973), 54 Ill.2d 64, 294 N.E.2d 272, wherein our supreme court held that an indemnity agreement, which provided that a subcontractor would indemnify his general contractor, does not indemnify against the subcontractor’s own negligence.

The indemnification agreement in Tatar, of course, is not the same as that in the instant case. In reaching its decision, the supreme court stated at page 67:

“We have examined the authorities cited by the parties and many of those collected at 27 A.L.R.3d 663, and conclude that the contractual provisions involved are so varied that each must stand on its own language and little is to be gained by an attempt to analyze, distinguish or reconcile the decisions. The only guidance afforded is found in the accepted rule of interpretation which requires that the agreement be given a fair and reasonable interpretation based upon a consideration of all of its language and provisions.”

The agreement in question in this case has been in effect since 1928. Since that date, many decisions have set forth developing ideas and theories. Yet these parties did not deem it necessary to change the language. We believe the reason they did not is that the words “joint or concurring negligence of both parties hereto, it shall be borne by them equally” fairly and reasonably expressed their mutual intention. Those words, in consideration of the language of the entire side-track agreement, need no modification or additions. The language, in our opinion, clearly states that under the facts of this case, both the railroad and university shall be jointly liable. The trial court correctly ordered the university to contribute the sum of $62,500.

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

Judgment affirmed.

STAMOS and LEIGHTON, JJ., concur.


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald J. Hammond et al., Defendants-Appellants.
    (No. 12051;
    Fourth District
    April 18, 1974.

      Rehearing denied May 20, 1974.

      Julius Lucius Echeles, Frederick F. Cohn, and Carolyn Jaffe, all of Chicago, for appellants.

      William E. Lowry, State’s Attorney, of Pittsfield (George S. Dzielak, of Circuit Attorney Project, of counsel), for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

The defendants were charged in a two-count indictment with burglary and possession of burglary tools. The first indictment contained no allegation of ownership of the burglarized telephone booth here involved and for that reason that indictment was nolled and another indictment returned.

Following a jury trial, the defendants were found guilty of both charges. A post-trial motion as to the defendant Nora E. Hammond asked that the jury’s verdict be set aside or, in the alternative, that a new trial be granted. This motion asserted that the trial court committed error in denying a motion for directed verdict; that the jury’s verdict was contrary to the evidence; that the State failed to prove essential elements of the charge and other technical errors. A motion in arrest of judgment on behalf of Donald J. Hammond was filed and by that motion he sought to have the jury’s verdict set aside, or in the alternative, a new trial. He specifically alleged that the State failed to prove ownership of the telephone booth and other technical errors. A separate motion for a new trial was filed on the same day and it asserted error in failure to direct a verdict; that the proof was not sufficient to convict; errors in instruction; and other technical errors. Nothing in that motion expressly related to failure of the State to prove ownership of the telephone booth.

Upon hearing of tire post-trial motions, the trial court made a specific finding that there was absolutely no evidence showing ownership of the burglarized telephone booth and by reason of this deficiency the evidence was insufficient to sustain a conviction. The trial court ordered a new trial. He denied the motions for acquittal. The trial court denied any relief sought in the post-trial motion with reference to Count II and entered judgments thereon. Defendant Donald Hammond was sentenced to not less than 1 nor more than 2 years in the penitentiary and the defendant Nora Hammond was granted probation. This appeal is from that action of the trial court.

The parties in their original briefs did not raise nor discuss the issue of whether or not this court has jurisdiction to review the order of the circuit court ordering a new trial as to the burglary charge. This court has a duty to inquire as to its own jurisdiction. Since the order for a new trial is not a final judgment, we did raise the question of jurisdiction, and supplemental authority was requested and filed upon the issue.

The final judgment in a criminal case is a sentence. (People ex rel. Filkin v. Flessner, 48 Ill.2d 54, 268 N.E.2d 376.) Obviously, the order for a new trial in this case is not a final judgment in that no sentence was imposed. We do have jurisdiction, however, to review the trial court proceedings as they relate to the offense of possession of burglary tools. Furthermore, it is our studied conclusion that we have jurisdiction to review the order providing for a new trial as part and parcel of the total case pending before this court upon appeal. Supreme Court Rule 615 (Ill. Rev. Stat., ch. 110A, par. 615(b)(2)) provides that this court on appeal may set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken. The present supreme court rule is former section 121— 9 of the Criminal Code of 1963 (Ill. Rev. Stat., ch. 38, par. 121—9) without any change in substance. The Committee Comments as to the original section state:

“In view of the purpose of this entire article to provide one complete, full and adequate review, and to do justice to the defendant and the People, this subsection is necessary and consistent with the provisions of subsection (b) enlarging the power of the reviewing court on appeal.
Subsection (b) is, again, consistent with the philosophy of the entire article that, in the interests of fairness and justice to both the defendant and People when the defendant appeals (or the State in those situations authorized by Article 121), and in the interest of reducing the number of appeals and re-trials and delays in each case, the reviewing court should have the power to do complete justice when the case is before it. Of course, the reviewing court is limited by law and the record before it in each case, but within- the scope of these limitations it should be empowered to act.”

To ignore the order providing for a new trial and to review the conviction for possession of burglary tools upon the facts of this case would effectively emasculate the purpose of review as set forth in the quoted Committee Comments.

The supplemental brief filed by the appellants relates to the application of Supreme Court Rule 366 and Supreme Court Rule 304, neither of which are expressly applicable to criminal proceedings. (See Supreme Court Rule 612.) We note, however, that in People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1, the supreme court acting under Rule 366 noted that if a case is properly before the court upon one issue, the court would have jurisdiction with reference to the other issues although the order as to those issues was not final and appealable.

The order of the circuit court providing for a new trial upon the specific finding by that court that the evidence was insufficient to convict by reason of the failure to prove ownership of the burglarized premises is in error. In People v. Brown, 99 Ill.App.2d 281, 241 N.E.2d 653, this issue was discussed in much detail. The conclusion reached in Brown was that when the evidence is insufficient to convict, a new trial is not ordered but a conviction would be reversed. In People v. Darling, 7 Ill.App.3d 687, 288 N.E.2d 502, in a supplemental opinion filed upon rehearing we specifically approved the decision in People v. Brown and stated:

“A successful prosecution for a criminal act requires an indictment, information or complaint charging the defendant with every essential element of the precise crime charged with proof beyond a reasonable doubt supporting every material element of that crime. The consequences of a failure to meet this test was ably and thoroughly discussed in People v. Brown, 99 Ill.App.2d 281, 241 N.E.2d 653. In that case there was failure on the part of the State to prove an essential element of the offense and the court there held that on appeal the State was not entitled to a second chance to rehabilitate its case at the expense of the defendant’s right to acquittal on the evidence which the State did see fit to present.”

In People v. McCoy, 44 Ill.2d 458, 256 N.E.2d 449, the Illinois Supreme Court stated: “Since the trial placed defendant in jeopardy and the error is the failure of the evidence to support the charge, there is no basis to order a new trial.”

The order of the circuit court ordering a new trial in the face of a specific finding that the evidence was insufficient to convict is contrary to the. cited authority and that order is reversed.

The factual circumstances relating to this offense may be summarized as follows. At around 8:40 P.M. on January 19, 1971, a Mrs. McClean looked out the window of her home in Kinderhook, Illinois, and saw a man get out of a car near a telephone booth which was located next to her home. The man had a gadget of some kind with him in the telephone booth. She saw him take the cash drawer out of the pay telephone and empty its contents into a sack. He gave the sack to a lady who got out of the car and walked over to the telephone booth. They then entered their car and drove away. Mrs. McClean noted the license number and telephoned the operator. Mrs. McClean subsequently identified both defendants at a police station as the persons she saw at the telephone booth. A witness, Jim Bruce, a service representative of the General Telephone Company, received a call regarding the incident at the pay telephone and he called the State Police and then went to the telephone location with a plant supervisor and examined the telephone. He described how the mechanism had been tampered with and that there was no coin box inside the telephone.

The chief of police in Pittsfield, Illinois, testified that he received a radio message relevant to the incident; that he saw a car with the indicated license number and stopped the car and arrested the two occupants of the car—the two defendants. The car was watched all night (the night of January 19) and on the following day (January 20) he obtained a search warrant and searched the car. He found a bunch of tools, a telephone door, a wheel-pulling device, a bag that held nickels, dimes and quarters in the aggregate amount of $74.80.

Another witness, Harold Howe, an investigator for the General Telephone Company, testified that on the day of the search he was at the police headquarters, saw the above-mentioned items, and he expressed the opinion that two of the items admitted as exhibits were tools for unlocking pay telephones. Witnesses on behalf of the defendants testified as to alibi and one witness testified that she leased a tavern in Quincy from the defendant Donald Hammond; that she had called him and he was in her place of business on January 19 to fix the lock on a pool table; that he emptied change from the pool table and vending machines and juke box and put the change from the same in a coin bag.

In connection with that phase of this appeal that relates to the conviction of possession of burglary tools, the defendants urge that the affidavit for the search warrant was insufficient to establish probable cause and that accordingly the search was illegal and the trial court erred in not suppressing the items found in the search. We are not so persuaded. Upon this issue, the appellants urge that the affidavit of Charlie Cheek, sheriff of Pike County, given in support of the complaint for the search warrant was insufficient in that the document indicated no date upon which either the informant’s (Mrs. McClean) observations were made or related to the complainant. The trial court denied the motion to suppress and we affirm.

In People v. Dillon, 44 Ill.2d 482, 256 N.E.2d 451, the court indicated that affidavits in support of complaints for a search warrant must be tested and interpreted in a common sense and realistic fashion and should not be found deficient through hypothetical scrutiny. The provisions of section 108—14 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 108—14) are to like effect. In this case, in addition to the affidavit, the record establishes that the search warrant was not issued until after the court heard testimony from the sheriff to the effect that the search was in connection with the breaking into of the pay telephone on the evening of January 19. He did not specify the year of the occurrence but we agree with tire trial court that in seeking a warrant on January 20 with reference to an incident on January 19 and the object to be searched was a 1971 automobile, we do not have such a deficiency of substance as to offend any constitutional right against unreasonable search and seizure.

After the defendants were arrested, Mrs. McClean, the identifying witness, was brought into the room where the defendants were situated. It is suggested that such a procedure was unduly suggestive. The evidence in this record with reference to the witness’ opportunity to observe other than at the police station gives her in-court identification an origin independent of and untainted by such confrontation and we find no error. See People v. Blumemhine, 42 Ill.2d 508, 250 N.E.2d 152.

In the trial of this case, the defendants initially sought and were granted a continuance so that a new jury list could be obtained which would include 18- to-20-year-olds as eligible jurors. Apparently the case was tried with two persons on the jury who were under 21 years of age. The defendants now contend that the jury was composed of persons not qualified as jurors because of that fact. This reversal of the position taken in the trial court will not be countenanced upon appeal. If such inclusion was error, and we need not decide the issue, it was invited error and we need not pause to consider it. People v. Rossi, 52 Ill.2d 13, 284 N.E.2d 275.

The defendants object to certain instructions. However, neither the abstract nor the record in this court have all the instructions given and refused, and this issue is not properly preserved for review upon appeal. (People v. Daily, 41 Ill.2d 116, 242 N.E.2d 170.) In addition, it does appear from the record that at the conference on instruction the defendants made no objections to the instructions about which they now complain.

A final issue relates to the examination of a defense witness and the attempted impeachment of that witness by questioning him as to whether or not he had ever been convicted of a felony. There was no objection and as to the defense witness Rife, a question that indicated this witness had been arrested for aggravated battery was the subject of an objection. The objection was sustained and the jury was admonished to disregard it. We perceive no reversible error.

For the reasons stated, the judgments of the circuit court and the sentences imposed for the offense of possession of burglary tools are affirmed. The order of that court ordering a new trial upon tire charge of burglary is reversed and this cause is remanded to that court with directions to render a judgment of acquittal on that charge.

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

SMITH, P. J., and TRAPP, J., concur.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles J. Myers, Defendant-Appellant.
    (No. 72-55;
    Fifth District
    April 10, 1974.

      Richard G. Younge, of East St. Louis, for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville (James W. Jerz and Martin P. Moltz, of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendant was indicted for murder and, in a jury trial in the Circuit Court of Madison County, he was convicted of the lesser offense of voluntary manslaughter. He was sentenced to the penitentiary for a term of not less than 4 nor more than 12 years. In this appeal defendant contends that under the law of self-defense he was not proven guilty beyond a reasonable doubt, and, in the alternative, that the cause should be reversed and remanded because the State wrongfully withheld from him certain favorable evidence.

The victim, John Valle (hereinafter referred to as John), age 19, lost his life on the night of September 11, 1971, in a fight in a parking area below the Chain of Rocks Bridge. He and a group of his friends had come to the area earlier in the evening in two cars and had roasted marshmallows and drunk a few beers. Later defendant, accompanied by his brother and their two girl friends, drove in and parked some distance away. There were also a number of other cars and young people present.

Just prior to the incident leading up to the fight the victim and five of his friends, three boys and two girls, were sitting in his car. According to one of the boys, the defendant walked over and asked him if he wanted to sell or trade the tape they were playing. On being refused, he left and then came back in about 5 minutes and again asked about buying the tape. At this time, one of the girls in the back seat threw some chipped ice at the witness because he previously had thrown some ice down her back. Some of the ice hit defendant and he got mad because his pants got wet. He said, “If that were my bitch, I’d smash her in the head.” He then left again but came back immediately, this time shirtless and with a knife in his hand with a blade about six inches long. He was accompanied by his brother who was carrying a jack handle. At this time the victim was standing outside the car, leaning on it and talking to those inside. Defendant again protested about being hit with the ice, and he would not accept the witness’ explanation that the ice had been thrown at him and not defendant. He persisted in arguing and called the girl a “whore”. When she got out of the car demanding to know what he called her, he punched her in the chest causing her to fall against the car. Then everybody got out of the car. The witness stated that he and John got both girls back in the car and then, as he turned around, he saw that John and defendant were fighting. Defendant’s brother was swinging the jack handle, keeping everybody away. The two who were fighting had fallen to the ground and by the time the witness got to them John was getting up and he was all covered with blood. As John walked back to the car it appeared that defendant was going to stab him again and one of the fellows lacked him in the chest to stop him. As John reached the car he fell, bleeding badly. The defendant and his brother then ran to their car and left.

Other witnesses told substantially the same story but added some details. One girl testified that when defendant knocked the wind out of her sister he said, “Come on. I’m going to take you all on.” John then pushed her and her sister back in the car in an attempt to leave. The next thing she knew John and defendant were fighting and when she heard someone yell that John had been stabbed she ran over to another car to get the boy with whom she had come. He had gone a short distance away to talk with some other fellows about tibe car they were driving, and had not been present at the start of the incident. When this witness ran up, he said the defendant and John were on the ground. He could see the knife and saw defendant stab John twice. When John got up and started to walk away it looked as if defendant was going to stab him again, so the witness kicked defendant in the chest to stop him. Another occupant of John’s car said he saw defendant’s knife and that it had about a 5-inch blade. When John stumbled to the car the defendant yelled, “Come on. I’ll take somebody else on.” Another boy testified that he did not see the fight start, nor did he see the knife, but he did see defendant’s brother swinging the jack handle. He also testified, as did all of the state’s witnesses, that no one of them ever attacked or touched the defendant other than the boy who kicked him to keep him from stabbing John again.

It was stipulated that John died at the scene by reason of multiple stab wounds. From other testimony it was determined that there were five stab wounds in the chest and stomach area, one about 14 inches below the back of the neck in line with the spinal cord, and one large laceration in the left arm.

Defendant testified that he made only one trip over to John’s car to inquire about buying or trading for the tape and his brother came with him then. The girl threw ice on his brother and then twice on him, getting his new pants wet. He told the man in the front seat, “If that was my girl, I’d slap her right in the mouth.” He said he told everybody he didn’t want any trouble, but when the girl got out of the car and started calling him all kinds of vile names, he pushed her. A man then grabbed him. He pleaded with him to let go, but the man threw him and was choking him, and the other men were kicking and hitting him. Finally, he said he got his knife out of his pocket, opened it and struck out wildly with it. Nonetheless, they continued beating him, he said, until his girl turned the lights on in his car, and when they saw the knife, they all got up and left him alone. He said he was choked twice but he did not know if it was the same fellow as it was too dark, and one man kicked him in the face. His only intention in swinging the knife was “to get those people away from me.” He testified that as he ran to his car he threw the knife away.

Defendant’s brother said the girl threw three cups of ice on defendant and one on him; that defendant called her a bitch, and then when she got out of the car and cursed him, defendant pushed her. He and defendant then started to leave but three or four men came running and one grabbed defendant around the neck and wrestled him to the ground, and three or four more jumped on him. Defendant yelled for help so the witness went back to the car, grabbed a jack handle, and started swinging it, not to hurt anybody, but just to scare them. He testified that the defendant was on fire ground and they were kicking and hitting him. Finally, he got them off defendant and then six or seven went after him but he chased them back. In the meantime three or four more were back on defendant and had him down on the ground. When the witness got them off defendant again, he told defendant to run back to the car, and he and defendant ran back to the car through a barrage of bricks and rocks. The two girls stated that they did not leave the car, but they could hear some of the words being exchanged. They said they saw some man grab defendant and a number of others jump on him, kicking him. They also stated that defendant’s brother came back to the car and got the jack handle and then he was attacked by several men. Finally, they said the boys were able to get back to the car and leave, and defendant’s eye and nose were bleeding.

It is true, as defendant contends, that the burden of proof never shifts to defendant, no matter what his defense may be, and where he pleads self-defense, it is sufficient to acquit him if his evidence on self-defense, together with all other evidence in the case, creates a reasonable doubt of guilt. (People v. Williams, 56 Ill.App.2d 159.) Also, one who is deliberately assaulted in a manner to make him reasonably apprehensive that his life may be taken or that he may suffer great bodily harm has the right, in self-defense, to deliberately kill his assailant. (People v. Taylor, 3 Ill.App.3d 734.) However, it is also an accepted rule that the issue of self-defense is one of fact to be determined by the trier of the fact, and once a verdict on that issue has been rendered such verdict will not be disturbed on review unless the evidence is palpably contrary to the verdict, or so unreasonable, improbable, or so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. People v. Jordan, 18 Ill.2d 489.

Based on the facts before us, it is the improbability of defendant’s story that is so apparent and not the insufficiency of support for the verdict. According to defendant, it was he who was set upon by a large number of people. He claims he was thrown to the ground, was choked, kicked and beaten, and not until he finally took his knife from his pocket, opened it, and began striking out wildly to protect himself, did they all get up and leave him alone. In the face of this testimony is the fact that only one person got hurt and he died with seven separate stab wounds in his body. Apparently no one else was injured, not by the knife and not even by tire swinging jack handle wielded by defendant’s brother, although he testified that on two occasions he got five or six and then three or four attackers off defendant. The jury is under no obligation to accept this testimony as true merely for its telling. The jury’s duty is to weigh all the evidence in the light of the surrounding circumstances, giving consideration to the probabilities and improbabilities raised thereby, and then to reach a verdict based on the credibility it attaches to the various witnesses. We believe that the verdict here, finding that defendant did not act in self-defense, is more than amply supported by substantial evidence and we shall not disturb it.

Next, citing People v. Cole, 30 Ill.2d 375, defendant contends that reversible error occurred when the State wrongfully withheld certain evidence from him which should have been made available during the trial. The principle stems from the case of Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, wherein it was held that, “The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of tire good faith or bad faith of tire prosecution.” (Emphasis supplied.) 373 U.S. at 87.

The only information we have relative to the evidence allegedly withheld is a statement by counsel in his brief and in his attached affidavit that the State possessed pictures of the decedent “showing the arm of the deceased being cut in a manner which was either accidental or caused by the warding off of a blow thrown by the deceased which was clearly the cause of death.” Apparently counsel had seen tire pictures in an in-camera session during the trial but he made no request for them at that time, nor did he file a general discovery motion asking for evidence favorable to defendant. Under similar facts we have held that in the absence of a request by defendant the State is not obligated to disclose evidence favorable to the defense. (People v. Howze, 7 Ill.App.3d 60.) In any event, apart- from the conclusionary statement of counsel, there is no showing that the pictures contained anything material relative to the guilt or punishment of defendant and materiality is a further condition of the obligation to disclose. Counsel claims that the pictures would show that decedent’s arm was cut in a manner which was either accidental or caused by warding off a blow thrown by decedent, and also, that this cut, and presumably no one of the other stab wounds, was clearly the cause of death. This is pure speculation and we cannot hold it to be a showing of materiality. In addition, it is well settled that a reviewing court will not consider matters not of record and which appear for the first time in defendant’s brief on appeal. People v. Anthony, 28 Ill.2d 65.

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

Affirmed.

EBERSPACHER and CARTER, JJ., concur.


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    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth E. Seidler, Defendant-Appellant.
    (No. 73-319;
    Fifth District
    April 9, 1974.

      Robert E. Ferrell, Deputy Defender, of Mt. Vernon, for appellant.
    W. C. Spomer, State’s Attorney, of Cairo (Ralph J. Mendelsohn, Assistant State’s Attorney, and Darrel L. Conley, of counsel), for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

The defendant, who was represented by the public defender, pleaded guilty to the offenses of burglary, theft and possession of burglary tools. He was sentenced to serve three concurrent terms in the penitentiary, 3 to 5 years for the offenses of burglary and theft and 1 year to 1 year and 1 day for possession of burglary tools.

On January 5, 1973, the defendant notified the Circuit Court of Alexander County of his intention to file a post-conviction petition and requested that an attorney be appointed to represent him. The same public defender who had represented the defendant throughout the proceedings was appointed again, and a post-conviction petition was filed. The State filed a motion to dismiss the petition, a hearing was held and the motion to dismiss was granted pursuant to a finding that the petition did not present an issue of constitutional magnitude.

The defendant appeals the dismissal of the post-conviction petition and alleges that: (1) the sentences imposed for theft and burglary do not comply with the Unified Code of Corrections, (2) those sentences are excessive and in violation of article 1, section 11 of the Illinois Constitution, and (3) the defendant was not adequately represented by counsel in the post-conviction proceeding.

The sentences of 3 to 5 years for theft and burglary are inconsistent with certain provisions of the Unified Code of Corrections (Ill. Rev. Stat., ch. 38, sec. 1005—8—1(c)(3) and (4)). Relief under the Post-Conviction Hearing Act, however, is limited to errors of a constitutional magnitude (Ill. Rev. Stat. ch. 38, sec. 122—1; People v. Fuca, 43 Ill. 2d 182, 251 N.E.2d 239), and sentencing inconsistencies with the Code do not nresent issues of that nature.

The defendant maintains that the Code should be applied to cases in a post-conviction proceeding. He relies upon supreme court decisions holding that the Code shall be applied to cases which have not reached “final adjudication.” (People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269; People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.) The defendant asserts that, until post-conviction relief has been denied and reviewed, a case has not reached “final adjudication.” There is no merit to that proposition as it would result in the absurd conclusion that, in all cases in which post-conviction relief is not sought, a conviction would not reach “final adjudication” until 20 years after the conviction. We therefore hold that the Unified Code of Corrections is not applicable in a post-conviction proceeding if the defendant has already exercised a direct appeal or if his time for doing so has expired. People v. Null, 13 Ill.App.3d 60, 299 N.E.2d 792.

The defendant’s second contention is that the sentences imposed were excessive. He contends that a question of constitutional magnitude was presented because the sentences were not in conformance with article 1, section 11 of the Illinois Constitution which provides that:

“All penalties shall be determined both according to the seriousness of offense and with the objective of restoring the offender to useful citizenship.”

In People v. Ballinger, 53 Ill.2d 388, 292 N.E.2d 400, the defendant was convicted of murder and sentenced to serve 35 years in the penitentiary. A post-conviction petition alleging that the sentence imposed was excessive was dismissed without an evidentiary hearing. The Illinois Supreme Court affirmed the circuit court and stated:

“The sentence is within the statutory limits and although subject to review on direct appeal, the allegation of excessiveness raises no issue cognizable under the Post-Conviction Hearing Act.” (53 Ill.2d at 390.)

Several appellate courts, including this court, have also determined that the alleged excessiveness of a sentence is not cognizable in a post-conviction proceeding. (People v. Null, supra; People v. Holman, 12 Ill.App. 3d 307, 297 N.E.2d 752; People v. Heard, 10 Ill.App.3d 445, 294 N.E.2d 110; People v. Murry, 5 Ill.App.3d 64, 283 N.E.2d 98.) We therefore hold that the defendant has not raised an issue of constitutional dimension.

In any case, the defendant is not entitled to relief because the sentencing issue was not raised by the post-conviction petition. The Post-Conviction Hearing Act provides that:

“Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.” (Ill. Rev. Stat., ch. 38, sec. 122—8.)

When the post-conviction petition fails to raise a particular issue, that issue need not be considered on an appeal from the dismissal of the petition. People v. Brounard, 53 Ill.2d 109, 290 N.E.2d 206; People v. French, 46 Ill.2d 104, 262 N.E.2d 901.

The defendant’s final contention is that he was not adequately represented by counsel on his post-conviction petition. This claim is based upon the assertion that counsel did not consult with the defendant to determine whether any questions of constitutional magnitude existed. Supreme Court Rule 651(c) provides:

“* * * The record filed in that court shall contain a showing, which may be made by the certificate of petitioner’s attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional right, ” * Ill. Rev. Stat., ch. 110A, sec. 651(c).

The defendant also relies upon People v. Slaughter, 39 Ill.2d 278, 235 N.E.2d 566, and People v. Jones, 43 Ill.2d 160, 251 N.E.2d 218, in which the supreme court held that an attorney appointed to represent an indigent in a post-conviction proceeding must consult with his client to ascertain his alleged grievances.

The record reveals that the public defender did confer with the defendant through the mail on one occasion. That letter, however, did not specifically ask the defendant about the possible grounds for post-conviction relief. The letter informed the defendant that, if he wished to allege the incompetency of trial counsel, he should request that another attorney be appointed. Since that letter was not an effort to ascertain tire defendant’s “assertions of deprivation of constitutional rights,” it did not constitute compliance with Rule 651(c).

The State maintains that, since the attorney appointed to assist the defendant in the post-conviction proceeding is the same attorney who had represented the defendant at all prior proceedings, it was not necessary for counsel to consult with the defendant. We do not find the State’s reasoning persuasive. It was a distinct possibility in the instant case, even though the public defender had represented the defendant at all stages of the prosecution, the defendant may have been able to state possible constitutional violations which the attorney did not consider.

For the foregoing reasons we reverse the order of the Circuit Court of Alexander County dismissing the post-conviction petition, and the cause is remanded with directions that an attorney be appointed to represent the defendant in the post-conviction proceeding.

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

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


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    Carl J. Clutts, Adm’r of the Estate of Charles Grant Britt, Deceased, Plaintiff-Appellee, v. Alfred J. Throgmorton, Defendant-Appellant.
    (No. 73-361;
    Fifth District
    April 17, 1974.
    Donald R. Mitchell and Paul G. Schoen, both of Carbondale, for appellant.
    W. C. Spomer, of Cairo, and Harris and Lambert, of Marion for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Plaintiff brought an action to recover damages for wrongful death in the Circuit Court of Johnson County. After a jury trial, judgment was entered on the jury verdict for $25,000 damages and defendant has appealed.

The only substantial claim of error on this appeal is that the trial court committed reversible error in refusing to give defendant’s tendered instructions Nos. 3 and 10.

Defendant’s instruction No. 3 reads as follows:

“A presumption is an inference as to the existence of one fact ' from the existence of some other basic fact established by the proof. Presumptions have been classified as either conclusive or rebuttable. Conclusive presumptions cannot be contravened by opposing evidence. Whereas rebuttable presumptions may be disputed and eliminated if they do not correspond with the circumstances actually proved.”

Defendant’s instruction No. 10 reads as follows:

“The presumption that the adult children of the decedent sustained some substantial pecuniary injury by reason of the death of the decedent is not a conclusive presumption but rather it is a rebuttable presumption which may be overcome by contrary evidence.
Whether or not this presumption has been overcome by the evidence is for you to determine.”

The court did give plaintiff’s instruction No. 18A which is IPÍ No. 31.04, modified as follows:

“If you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate the children of the decedent for the pecuniary loss proved by the evidence to have resulted to them from the death of the decedent and which will reasonably and fairly compensate the plaintiff for the burial expense of the decedent. Wdiere a decedent leaves children, the law recognizes a presumption that they have sustained some substantial pecuniary loss by reason of the death.
In determining pecuniary loss and the weight to be given to the presumption of pecuniary loss, you may consider what benefits of pecuniary value, including money, goods and services, the decedent might reasonably have been expected to contribute to the children had the decedent lived, bearing in mind the following factors concerning the decedent:
1. What instruction, moral training, and superintendence of education he might reasonably have been expected to give his children had he lived;
2. His age;
3. His health;
4. His habits of industry, sobriety, and thrift.”

As a basis for their contention appellants cite the case of Flynn v. Vancil, 41 Ill.2d 236, 242 N.E.2d 237. In that case the jury found in favor of the plaintiffs on the issue of liability, but awarded no damages on the wrongful death count. The deceased was a 2-week-old child who had incurable congenital physical defects impairing her health.

In this case, while there is no evidence of monetary contributions, it is undisputed that the evidence shows pecuniary loss. For example the daughter who lived next door to decedent did not have a car and she regularly relied on her father, the decedent, to provide her transportation. Decedent was so engaged at the time of the accident here involved. There was also evidence that decedent helped his daughter with her housework, mowed her lawn, bought her food and would look after her five children at times when she was at work.

From a review of all the evidence we conclude that it shows substantial pecuniary loss. Since the presumption was supported by the evidence in this case, it follows that failure to instruct the jury that the presumption could be rebutted cannot here constitute reversible error.

Since it is not necessary for a decision of this case, we do not pass on whether or not tendered instructions Nos. 3 and 10 would be required under different circumstances.

Judgment of the Circuit Court of Johnson County is affirmed.

EBERSPACHER and CARTER, JJ., concur.


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    The People of the State of Illinois, Plaintiff-Appellee, v. Gaby Lee Holloway, Defendant-Appellant.
    (No. 73-214;
    Fifth District
    April 9, 1974.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon (Michael J. Rosborough, Assistant Appellate Defender, of counsel), for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Phillip G. Feder, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

The defendant was indicted for the offense of burglary and, pursuant to a plea agreement, pleaded guilty to that offense. The agreement provided that the defendant would apply for probation and that the State would make no sentencing recommendation. A sentencing hearing was held on February 26> 1973, at which time the defendant was sentenced to serve a minimum of 3 and a maximum of 7 years in the penitentiary.

The only issue raised is whether the sentence imposed is consistent with the Unified Code of Corrections (Ill. Rev. Stat., ch. 38, sec. 1001 et seq.). Burglary is a Class 2 felony (Ill. Rev. Stat., ch. 38, sec. 19—1 (b)). The Code provides:

“[F]or a Class 2 felony, the minimum term shall be 1 year unless the court, having regard to the nature and circumstances of the offense and the history and character of defendant, sets a higher minimum term, which shall not be greater than one-third of the maximum term set in that case by the court; * * (Ill. Rev. Stat., ch. 38, sec. 1005—8—1(c)(3).)

It is conspicuous that the court erred when it imposed a minimum sentence which exceeded one-third of the maximum.

The defendant maintains that the court also erred in imposing a minimum sentence in excess of 1 year. A presentence report was prepared, and a sentencing hearing was held. It was revealed to the judge that the defendant had a prior felony conviction record. Facts asserted in the defendant’s favor were that he has a wife and a young child to support, he appears to be capable of earning a good living, and the crime alleged did not involve violence.

Because of the defendant’s past criminal record, we do not hold that the trial court abused its discretion in imposing a minimum sentence which exceeds 1 year. The fact that the minimum sentence imposed exceeded one-third of the maximum sentence, however, suggests that the court may have failed to consider section 5—8—1(c)(3) when it sentenced the defendant. That fact, coupled with the evidence in the presentence report and the sentence hearing favorable to the defendant, creates some doubt that a minimum sentence in excess of 1 year was justified.

For the foregoing reasons, the cause is remanded to the Circuit Court of St. Clair County with directions that the defendant be resentenced in compliance with the Unified Code of Corrections.

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

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