author: Mr. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steven Brooks Gaines, Defendant-Appellant.
    (Nos. 57843, 58985 cons.;
    First District (3rd Division)
    August 1, 1974.

      Edward M. Genson, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Dennis O’Hara, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The defendant, Steven Gaines, was charged with the offense of deviate sexual assault. He withdrew his plea of not guilty, entered a plea of guffty and was sentenced to imprisonment for a term of 4 to 6 years at the Illinois State Penitentiary at Menard. This is a consolidated appeal from the judgment rendered on his guilty plea and from the dismissal of his petition for post-conviction relief. The two phases of the appeal have been commingled in his argument and brief. The legal issues pertaining to each phase are different, and we wiU consider them separately. People v. McCarroll (1973), 10 Ill.App.3d 249, 294 N.E.2d 52.

Gaines contends that: (1) his prosecution as an adult was based on a sex classification and thus violated his right to equal protection under the law; (2) his guüty plea was neither intelligently nor voluntarily made; (3) his sentence was influenced by the court’s considering improper testimony concerning previous criminal behavior for which he had been arrested but not convicted; (4) his sentence was excessive because the court misapprehended the permissible punishments and, (5) his post-conviction hearing was unfair because the judge who presided at his trial conducted the hearing.

When Gaines’ case was called for trial, his counsel requested a conference with the assistant State’s Attorney and the judge. Gaines’ approval of the request appears of record. After the court reconvened, the People read into the record a short narrative of the facts of the case. Gaines, through his counsel, stipulated to those facts. The court then explained the charge of deviate sexual assault and the punishment that could be imposed upon him: imprisonment from 4 to 14 years. Gaines acknowledged his understanding of the charge and of the potential punishment. There followed an explanation by the court of the defendant’s rights and the consequences of their waiver, and an inquiry into the voluntariness of the plea. Gaines at that point hesitated, saying that the plea was not a result of his own decision, but rather "my attorney’s and my mother’s and my father’s.” He was then questioned, first by counsel and then by the court:

"Counsel: Mr. Gaines, your mother and I have had a discussion a few moments ago in the jury room of this courtroom?
Gaines: Did we?
Counsel: Yes.
Gaines: Yes.
Counsel: Did we discuss the possibilities of entering pleas and not entering pleas?
Gaines: Yes.
Counsel: And was it your decision with our conversation that a plea of guilty should be entered?
Gaines: No.
Counsel: It is your wish not to enter a plea of guilty?
Gaines: No.
Counsel: You do not wish to enter a plea of guilty?
Gaines: No.
Counsel: You wish to enter a plea of not guilty?
Gaines: No.
Counsel: What is your deshe, Mr. Gaines?
Gaines: When you asked me if I was guilty, I could honestly say I don’t know, so. * * *
Counsel: Is it your desire to have a plea of not guilty entered before this court, or a plea of guilty?
■ Gaines: A plea of guilty because of the circumstances that we talked about.
The Court: The question I am asking you, Mr. Gaines, is whether you are doing this voluntarily? Are you making the decision?
Gaines: Okay, I am, yes.”

Gaines twice repeated that the plea was his own and was made voluntarily. After he had executed a written jury waiver, the court inquired whether his plea had been induced by promises, threats or coercion from any person. He replied twice that it had not and acknowledged that if any promises had been made, they would not bind the court. Before the colloquy ended, Gaines again affirmed his plea of guilty:

“The Court: Now, Mr. Gaines, knowing the nature of the charge against you, the consequences thereof, and the penalty that may be imposed upon you; knowing of your rights that you have just waived, do you still desire to enter a plea of guilty to the crime of deviate sexual assault?
Gaines: Yes.”

At the hearing in aggravation and mitigation a number of witnesses testified to the circumstances of the assault. The victim stated that on July 13, 1971, as she and two female companions were leaving a tavern on Chicago’s southwest side, Gaines forced his way into their auto and committed a deviate sexual assault upon her. She related that he held a knife at her side and threatened to kill her if she did not perform the acts which he commanded. He also threatened her companions, instructing one of them to drive the car and ordering the other to disrobe. The latter woman, who had been riding alone in the auto’s back seat, corroborated the victim’s story. She added that her signals of alarm drew the attention of a group of men who had left the tavern at the same time as the three women. The men followed the auto until it stopped at an intersection. They then left their own car and ran to the women’s aid; one of them dragged Gaines into the street. Gaines got loose and ran away, but was apprehended shortly afterward. The man who had pulled Gaines from the auto testified and identified him as the man who had been in the women’s car.

The prosecution called two additional witnesses. The first was a young woman who, over objection by defense counsel, described an attempted deviate sexual assault on herself by Gaines in October 1970. In many ways Gaines’ behavior at this earlier incident paralleled his conduct at the later one. However, the earlier victim had screamed, which frightened Gaines away. A police officer testified that he had arrested Gaines moments after the October attack and had shown him to the previous witness, who positively identified him as her assailant. The record does not disclose whether Gaines was convicted for this offense.

Also received in evidence was a psychologist’s report. The report stated that Gaines, although possessing average to above-average intelligence, displayed “a combination of syndromes often found in hospitals for the mentally disturbed,” and recommended a long-term psychiatric supervision and counseling. A letter from Dr. Littner of the Institute of Psychoanalysis, said of the defendant:

“It was my impression, both from his history as well as from my examination, that his emotional illness was of such a degree and nature that he could be considered potentially dangerous to others —particularly if his emotional condition should worsen.
He seemed fully aware of the nature of the charges against him; he seemed perfectly capable of cooperating with his counsel; and he seemed quite capable of distinguishing right from wrong.”

Dr. Tilkin testified for the defendant that he had treated him since his arrest in July of 1971. He concurred with the psychologist’s report and with the opinion of Dr. Littner that the defendant required a long period of treatment for his emotional problems. However, he could not predict whether Gaines would or would not commit this type of offense again. He limited his assurances to a statement that among his patients 7 of 10 responded well to treatment. The defendant’s father testified that he had previously sought psychiatric help for him in 1969, “when my son got in his first trouble,” and in 1970, first “to try to find help for Steven with the dope situation,” and then after his arrest for the October assault.

The court stated that it was impressed with Gaines’ chances for rehabilitation, but noted that he had obtained drags while hospitalized under Dr. Tilton’s care. The court concluded that incarceration could not be avoided:

“* * * You have weaknesses. If you were just going to destroy yourself I would take the chance and let you destroy yourself or straighten yourself out. My responsibility is not only to you but to the other members of society.
The odds of seven to three just aren’t good enough.”

Promising to seek assurances that Gaines would receive psychiatric care and expressing his willingness to “personally go to bat” for him before the parole board when he had shown satisfactory progress, the court sentenced him to 4 to 6 years in the Menard penitentiary.

Gaines, who was 17 years of age at the time of the 1971 offense, claims that his prosecution as an adult denied him the equal protection of the law, because a female of the same age would have been prosecuted under the Juvenile Court Act as it was then written. (Ill. Rev. Stat. 1969, ch. 37, par. 702 — 7 (1).) This issue has been settled in People v. Ellis (1974), 57 Ill.2d 127, 311 N.E.2d 98. It was held that the differential classification according to sex was invalid, but that the effect of its invalidity was to render the provisions of the Juvenile Court Act inapplicable to both males and females who were not under the age of 17 years at the time they committed an offense. Therefore, the failure to consider Gaines eligible for treatment as a minor did not deprive him of equal protection of the law.

Nor do we agree that Gaines’ plea of guilty was secured in violation of his constitutional right to due process. He alleges involuntariness because of the improper influence of his parents, counsel, and the court, and also that the plea was not made understandingly, due to his youth and emotional instability.

No evidence appears of record to support the allegation that the defendant was subject to any pressure by the court in his decision to enter a guilty plea. Therefore, we address ourselves only to the alleged pressure exerted by his parents and his attorney.

Constitutional guarantees of due process require that a plea of guilty be intelligent and voluntary. If the plea is to withstand appellate review, the record must affirmatively disclose that the defendant who pleads guilty enters his plea understandingly and voluntarily. (Boykin v. Alabama (1969), 395 U.S. 238, 23 L.Ed.2d 274, 895 S.Ct. 1709; People v. Reeves (1971), 50 Ill.2d 28, 276 N.E.2d 318.) The fact that other persons have advised a defendant to plead guilty does not render the plea invalid. (North Carolina v. Alford (1970), 400 U.S. 25, 27 L.Ed.2d 162, 91 S.Ct. 160.) The defendant points to United States ex rel. Brown v. LaVallee (S.D.N.Y. 1969), 301 F. Supp. 1245, where the court held that a guilty plea which was induced by a defendant’s will being overborne by the persistent and unrelenting advice of counsel and the “hysterical pleadings of an overwrought mother” (301 F. Supp. at 1253) did not reflect the defendant’s own considered choice and therefore was involuntary. But in the Brown case there was substantial evidence in the record to show coercion at the arraignment. Here, all that appears is the defendant’s initial indecision or hesitation, his questioning by his counsel and then the judge, and a final settling on a plea of guilty, which he then reaffirmed as his own choice three times. As regards the influence of his parents — if they advised him to plead guilty it was done privately; the record reflects only their presence when the plea was entered; they made no comment.

Concerning the intelligence with which the defendant entered his plea and his competence to plead, it is appropriate to note that it is not within the province of an appellate court to determine whether a defendant has made the best choice when entering a guilty plea. It is sufficient that the record shows he was aware of the alternatives presented to him and their consequences. (North Carolina v. Alford.) The record adequately demonstrates that Gaines was fully aware of the consequences of his plea. But he claims that he was incompetent to plead by reason of his youth and emotional instability. He also claims an inability tó remember the events for which he was charged, and ascribes this to the effects of his prolonged use of drugs.

The defendant has confused the question of capacity to understand the nature of his acts at the time of his offense with the question of his competency to stand trial. If a defendant understands the nature and object of the charge against him and can, in cooperation with his counsel, conduct his defense in a rational and reasonable manner, then he is competent to stand trial. The presence of a mental disturbance or defect is not alone sufficient to conclude the issue of competence. (Withers v. People (1961), 23 Ill.2d 131, 177 N.E.2d 203.) Youth does not indicate incompetence, as long as a defendant is not below the minimum age fixed by statute for criminal capacity. (People v. Davis (1947), 396 Ill. 432, 72 N.E.2d 193, cert, denied, 332 U.S. 848.) Further, there was no previous adjudication of mental incompetence, no request for a sanity hearing by the defendant or his counsel, and no facts presented which should have raised in the court’s mind a bona fide doubt of the defendant’s mental competence. (See People v. Cleggett (1961), 22 Ill.2d 471; 177 N.E.2d 187.) The defendant’s statements to the court were coherent and lucid. The psychologist’s report, tendered at the presentencing hearing, said he was of average or better intelligence. Dr. Littner found Gaines capable of distinguishing .right from wrong and able to cooperate with counsel in the preparation of his defense. Gaines’ psychiatrist concurred in these opinions. Such an agreement by two or more medical experts justifies a finding of competency to answer charges. People v. Lyons (1969), 42 Ill.2d 437, 250 N.E.2d 133.

The record affirmatively discloses that Gaines was competent to make his own decision to plead guilty and that he made it understandingly and without compulsion.

As a general rule, prior arrests not followed by conviction are not admissible during a hearing in aggravation and mitigation. (People v. Riley (1941), 376 Ill. 364, 33 N.E.2d 872.) The major justification for the rule is the fear a defendant may be subjected to punishment for crimes of which he is not guilty. But the interest in protecting a defendant’s rights must to a limited extent be weighed against other concerns. Obligations are due the public as well as the accused. Modem concepts of justice, social theory and law admonish that courts should mete out sentences tailored as well as possible to fit the individual offender’s circumstances, striking a balance between the protection of the public and the rehabilitation of the offender. (People v. Williams (1972), 7 Ill.App.3d 733, 288 N.E.2d 636.) Proper performance of this task demands the broadest possible familiarity with the individual offender’s circumstances. So, in aggravation and mitigation hearings, the court is charged to look at the facts of the crime, and search anywhere within reasonable bounds for other facts which tend to aggravate or mitigate the offense. Acceptable areas of inquiry include the moral character of the offender, his mentality, his habits, his social environments, his abnormal or subnormal tendencies, his age, his natural inclination or aversion to commit crime, the stimuli which motivate Ins conduct, and something of his life, family, occupation and criminal record. (People v. McWilliams (1932), 348 Ill. 333, 180 N.E. 832; People v. Mann (1963), 27 Ill.2d 135, 188 N.E.2d 665.) When making such inquiry, the formal rules of evidence do not apply. It is enough that the court “exercise care to insure the accuracy of information considered and to shield itself from what might be the prejudicial effect of improper materials.” People v. Adkins (1968), 41 Ill.2d 297, 300, 242 N.E.2d 258.

Highly relevant matter should not be excluded from a sentencing hearing merely because a narrative of the defendants past activity mentions an arrest which followed that activity. The unvaried application of the prior-arrest exclusionary rule would deny courts access to valuable information where, as here, a previous arrest is only incidental to testimony that the defendant has behaved in a similar, aberrant fashion in the non-distant past. It would ignore the fact that even at trial evidence may be admissible for one limited purpose although inadmissible for another. If a jury of laymen can distinguish between the acceptable and unacceptable uses of certain evidence, for the purpose of ascertaining guilt, as the law assumes it can, then a court of review should recognize a like capacity in trial judges when assessing evidence at the less crucial stage of the presentence hearing.

The evidence of Gaines’ prior behavior was relevant to the court’s determination of his potential for rehabilitation, and the dangers he might pose to society if not incarcerated. Evidence of recidivism was extremely important to an assessment of both concerns. Moreover, the evidence did not present the same trampling on the accused’s protections as might be the case if it were not pertinent to appropriate sentencing; or where the arrest and tire attendant behavior took place many years ago; or where the arrest was for an offense wholly dissimilar to the one for which the accused is facing sentence (cf. People v. Riley); or where the court has been informed of the bare fact of an arrest, with no indication at all of its relevancy. In addition to its relevancy, the information in this case came from trustworthy sources: direct testimony by the victim and the arresting officer. It was received in open court, and the opportunity was afforded the defendant’s counsel to cross-examine the witnesses and the defendant to deny the testimony. This he did not do. (Cf. Taylor v. United States (9th Cir. 1950), 179 F.2d 640, cert, denied, 339 U.S. 988.) In these respects this case is dissimilar from some relied upon by the defendant, in which sentences were based in part on assumptions of past criminality that were materially untrue or were related through sources traditionally held to be unreliable, such as hearsay. See United States v. Tucker (1972), 404 U.S. 443, 30 L.Ed.2d 592, 92 S.Ct; 589.

Whether the court allowed itself to be prejudiced by the arrest can be judged by viewing the case as a whole and its disposition. In the first place a court is presumed to have sorted the competent aspects of testimony from the incompetent. (People v. Bey (1972), 51 Ill.2d 262, 281 N.E.2d 638.) In the second place, the court was not likely to be misled as to the importance of the arrest itself, since the court received a factual description of defendant’s behavior which was so similar to that for which he had pleaded guilty. Third, the mention of arrest was to some extent cumulative to that which other witnesses, appearing in behalf of the defendant, hinted at. There was testimony from Gaines’ father and mention in the psychologist’s report that the defendant had some prior history of similar conduct which resulted in a brush with the law. Finally, the sentence itself is the best possible evidence that the court was not influenced by the evidence of arrest. The maximum sentence imposed was 6 years, just 2 years above the statutory minimum. Moreover, the court offered to take personal interest in the defendant’s progress.

Judgments will be upheld unless there is a “definitive indication” that the court considered arrests not resulting in conviction. (People v. West (1972), 3 Ill.App.3d 963, 279 N.E.2d 503. And see People v. Dixon (1971), 2 Ill.App.3d 279, 276 N.E.2d 42.) As this court stated in People v. Wilson (1973), 11 Ill.App.3d 693, 696, 297 N.E.2d 277:

“[T]he mere fact that a trial judge, before imposing sentence, is aware of certain inadmissible facts does not automaticaHy insure a reversal of that sentence. The function of a reviewing court is not to determine whether the record is perfect, but to determine whether defendant had a fair trial. Where it can be said from the record that an error complained of could not reasonably have affected the result of the trial, the judgment of the trial court wUl be affirmed.”

The evidence of the defendant’s previous arrest not foHowed by conviction, whffe incompetent, was not prejudicial.

The defendant next maintains that his sentence of 4 to 6 years in the penitentiary was arbitrary, because the court misapprehended the avail-abffity of probation. He argues that because the court did not consider probation a permissible sentencing option under the statute, it misconceived the range of available dispositions. To correct the alleged error he seeks remand for a reconsideration and resentencing.

If the court clearly did not understand the punishments, including probation, which were available for the offense, that fact might have resulted in discriminatory sentencing which would necessitate remandment. (See People v. Hunt (1972), 3 Ill.App.3d 1074, 280 N.E.2d 46.) Or, if the record was inadequate to permit an informed judgment whether the court considered the full range of permissible dispositions, then given the allegations of the defendant’s petition, fundamental fairness might compel the return of the cause to the trial court for redetermination. (People v. Smice (1967), 79 Ill.App.2d 348, 223 N.E.2d 548.) But neither of those situations is presented in the facts of this case. The record reveals no factual basis for a contention that the sentence imposed was arbitrary or excessive.

The transcript of the presentencing hearing amply demonstrates the court’s awareness that deviate sexual assault was a probationable offense. During that proceeding the State’s Attorney argued against a grant of probation, and the court acknowledged the alternative. It expressed discontent with a statute which forced it to choose between permitting the defendant to roam at large or sentencing him to serve at least 4 years in the penitentiary. In settling on the latter alternative, the court noted the psychiatrist’s opinion that chances were 3 in 10 that the defendant might not respond well to continued treatment.

The only indication of any misapprehension concerning the permissible range of sentences is found in the transcript of the arguments heard on the defendant’s petition for post-conviction relief.

Only a portion of the petition is included in the unindexed excerpts of the record furnished by the defendant’s counsel. The assertions in the petition were identical to some of the trial errors raised in the direct appeal: transgression of the defendant’s rights, as a 17-year-old male, to equal protection of the law; acceptance of an involuntary plea of guilty; consideration of his prior criminal behavior without proof that the behavior had been followed by a conviction, and the imposition of an excessive sentence. In commentng on the latter assertion, the court noted that there had been no negotiated plea and that an extensive hearing had been held before the sentence was pronounced. At one point the court said that the defendant’s offense was not probationable, but was quickly corrected by the defendant’s attorney and the prosecutor. This — which was nothing more than a temporary lapse of recollection — is the basis for the contention that the court misunderstood the range of sentences applicable to the defendant’s offense and arbitrarily sentenced him to prison. The trial court record shows that the court considered but rejected the possibility of probation. The petition alleged no facts outside the record to support the assertions of duress, capacity or excessive punishment, and the facts in the record are simply incapable of justifying a post-conviction hearing on tírese issues or on the purported misunderstanding and arbitrariness of the court.

The only assertion in the petition of something outside the trial record was that the defendant had an insanity defense, but was informed by his trial counsel that the defense “was not proper and legally unsound, which judgment was error.” This allegation was unsupported by the affidavit of the defendant or by other proof, and there was no claim that the failure to use the insanity defense indicated inadequate representation. All the other allegations could be resolved by examining the trial record and the court correctly concluded that an evidentiary hearing on the post-conviction petition was unnecessary. People v. Ramme (1972), 4 Ill.App.3d 386, 280 N.E.2d 473. The defendant’s final contention is that the court should have disqualified itself from presiding at the post-conviction hearing. The petition did not request a change of venue and no complaint was made concerning venue until the court, in sustaining the State’s motion to dismiss, summarized its findings and reviewed the circumstances of the guilty plea.

The right to a change of venue in a post-conviction proceeding is not absolute. An exception is made if it appears that the court may be biased or may be a potential witness. (People v. Wilson (1967), 37 Ill.2d 617, 230 N.E.2d 194.) However, where a defendant does not allege inducement to plead guilty by some action of the trial judge, and does not request a change of venue in his petition, the court’s failure to disqualify itself is not an abuse of discretion. (People v. Hayes (1971), 49 Ill.2d 298, 273 N.E.2d 838.) Here the defendant’s petition did neither.

The court was not a potential witness. The record itself completely refuted the defendant’s allegations. A court may properly render its decision on a motion to dismiss based upon the contents of the petition to which the motion is directed, read in conjunction with the transcript of proceedings at the trial. (People v. Slicker (1969), 42 Ill.2d 307, 247 N.E.2d 407; People v. Hamby (1968), 39 Ill.2d 290, 235 N.E.2d 572.) The court acted well within the bounds of its authority. Although expressed in terms of personal recollection, its summary of the circumstances surrounding entry of the guilty plea merely confirmed that which is plain on the face of the record. When ruling, the court relied on the written record. After stating its recollection, the court added this disclaimer: “Be that as it may the record speaks for itself as far as that is. concerned.” The court did not err in refusing to disqualify itself from .presiding at the post-conviction proceeding.

The judgment entered on the defendant’s plea of guilty and the dismissal of his petition for post-conviction relief are affirmed.

Affirmed.

McNAMARA, P. J., and MEJDA, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE MEJDA

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leonard Kincaid et al., Defendants-Appellants.
    (No. 57949;
    First District (3rd Division)
    August 1, 1974.

      James J. Doherty, Public' Defender, of Chicago (Phillip A. Olson and John M. Kalnins, Assistant Public Defenders, of counsel), for appellants.
    Bernard Carey, States Attorney, of Chicago (Patrick T. Driscoll, Jr., Mary Ellen Dienes, and Michael F. Baccash, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court.

The defendants, Leonard Kincaid and James Mitchell, Jr., were charged with rape in violation of section 11 — 1(a) of the Criminal Code, and with the offense of contributing to the sexual delinquency of a child in violation of section 11 — 5 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, pars. 11 — 1(a) and 11 — 5). After a bench trial Kincaid was found guilty of rape and sentenced to the penitentiary for a term of not less than 4 nor more than 12 years. James Mitchell, Jr., was found guilty of contributing to the delinquency of a child in that he attempted an act of sexual intercourse against her will. The common-law record states that Mitchell was found guilty of “contributing to sexual intercourse of a child in manner and form as charged in the indictment.” Mitchell was sentenced to the House of Correction for 1 year. Both defendants have appealed.

The issues on appeal are whether Kincaid was found guilty of rape beyond a reasonable doubt; whether there was reversible error due to an alleged variance between the indictment of Mitchell and the findings of the trial judge; whether Kincaid was denied a hearing in mitigation; whether the trial judge abdicated his discretion in sentencing Kincaid; and whether section 11 — 1(c) of the Criminal Code is constitutional.

The victim testified that on September 7, 1971, at approximately 9:30 P.M., she and a friend went to a restaurant at 103rd Street and Michigan Avenue in Chicago. After leaving the restaurant the friend left and the victim started to walk to her home located on State Street, where she lived with her mother. As she walked west on 103rd Street she saw a green Thunderbird in which sat two people whom she knew as Mitch and Kincaid. She had known each of them for about 1 year. She identified both defendants in open court.

The victim entered the car to be driven home. When they passed the intersection of 103rd and State Streets, she said, “I thought you were going to take me home; why didn’t you all turn down State Street?” They said nothing and Kincaid grabbed her by the neck. She tried to climb over Kincaid and open the window but could not roll it down. When she tried to fight him he grabbed her legs.

The victim testified that the car stopped at Bishop and 108th Streets and Mitchell got out; she tried to get out behind him but Kincaid held her arm. When Mitchell returned to the car he and Kincaid forced her into the back seat and removed her pants and underpants. She was crying and attempted to push Kincaid away with her hands; he put his fingers into her vagina, and later put his penis into her vagina and was going up and down for about 15 minutes. When Kincaid finished he got out of the car and she started to get up, but Mitchell climbed around to the back seat and pushed her down. He put his penis into her vagina and was going up and down for about 10 or 15 minutes; she was crying and was scared. On cross-examination the victim said Mitchell stuck his penis into her vagina and was going up and down, but she did not know whether his penis was soft or hard.

The victim testified that she was allowed to put on her shorts and pants; that when she got out of the car to get into the front seat she tried to run but Kincaid grabbed her by the wrist and pushed her back into the car; and that they drove back to 103rd and State Streets, where she got out and ran into the house. She said she told her mother what had happened and the police were called. Later, when she took off her clothes while being examined at Roseland Community Hospital, she noticed that her pants “had white stuff in the seat.”

The victim further stated that she was not and had never been married to Mitchell or Kincaid and had never agreed to have sexual intercourse with either of them. She said she was 16 years old on September 7, 1971, and that it was the first time she had had sexual intercourse.

The victim’s mother testified that her daughter left the house to go to the store at about 10 P.M. on September 7, 1971; that she returned home at about 11:45, crying, and said she had been raped. The police were called and they took the girl to the Roseland Community Hospital for examination. She was also examined by Dr. Walters, the family doctor, on September 9.

Police Officer John Carioscia testified that on September 7, 1971, at 11:59 P.M., he responded to a call and talked to a young woman and her mother; he then took them to the Roseland Community Hospital where the girl was examined by Dr. Hernandez. On cross-examination Carioscia testified that the girl’s clothes were in a mess and she was in a slight state of shock, and he told the hospital personnel he had a rape victim. On redirect examination Carioscia testified that the girl told him she knew the people who had assaulted her and gave him the names Kincaid and Mitch; that one lived in Princeton Park and one in Morgan Park, and that she had known them from school.

It was stipulated that if Dr. Hernandez was called to testify he would state that on September 8, 1971, he had occasion to examine the victim at Roseland Community Hospital; that he made a vaginal examination with a smear from the victim and that tests made of the smear showed positive presence of spermatozoa. It was further stipulated that if Dr. J. Elliott Walters was called to testify he would state that on September 9, 1971, he examined the victim at his office; that he conducted a pelvic examination which failed to reveal any evidence of physical trauma; and that the patient was being treated for vaginitis.

It was further stipulated that at the time of trial Kincaid was 20 years old and Mitchell was 21 years old.

Each of the defendants and two other defense witnesses testified that during the night of September 7, 1971, Kincaid and Mitchell attended a party in Markham, Illinois, during the entire period the victim testified she was with them, which included the time she was allegedly raped. Both defendants denied raping the victim, denied that they were with her that evening, and denied that they were in any of the places she claimed they were during that evening.

The trial judge, in commenting on the testimony, stated that in his opinion the victim was telling the truth, and that he did not believe the testimony of Kincaid and Mitchell or their alibi witnesses. He further stated that in his opinion Kincaid “committed rape on the young lady”; that Mitchell was not guilty of rape; that it is not clear, concise and convincing that Mitchell inserted his penis; that there was no penetration; that there was lewd fondling and touching; that he attempted an act of sexual intercourse against her will; and that Mitchell was therefore guilty of contributing to the delinquency of a child because he attempted an act of .sexual intercourse against her will.

Kincaid argues that he was not found guilty of rape beyond a reasonable doubt because on cross-examination the victim testified that she did not know if Kincaid had had intercourse with her. Kincaid admits that the victim did testify he had intercourse with her, but argues that her admission that she did not know if he had sexual intercourse with her must be considered as raising a reasonable doubt as to the guilt of rape. The record discloses that the victim testified Kincaid “got on top of her and put his penis into her vagina and was going up and down for about 15 minutes.” The victim’s mother testified that immediately after her daughter arrived home she said she. had been raped. Police Officer John Carioscia testified that the victim told him she had been raped by Kincaid. The stipulated testimony of Dr. Walters was to the effect that he treated the victim for vaginitis. It was further stipulated that a medical examination made shortly after the reported rape showed the presence of spermatozoa.

In reviewing a conviction for the crime of rape a reviewing court is charged with a special duty to exercise the utmost caution and circumspection in scrutinizing the sum and substance of the evidence upon which the conviction is predicated. However, the- trial court was in a superior position to judge the credibility of witnesses and the weight to be given their testimony, and the reviewing court will not disturb the court’s judgment unless the evidence was so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. (People v. Pointer (1972), 6 Ill.App.3d 113, 285 N.E.2d 171.) The testimony of the victim alone is sufficient to support a conviction if that testimony is found to be clear and convincing. People v. Davis (1957), 10 Ill.2d 430, 140 N.E.2d 675; People v. Wright (1972), 3 Ill.App.3d 829, 279 N.E.2d 398.

In the case before us the trial judge stated that in his opinion the victim was telling the truth; that he did not believe the testimony of Kincaid, Mitchell or their alibi witnesses; and that in his opinion Kincaid “committed rape on the young lady.” Under such circumstances, the judgment of the trial court should be affirmed.

Mitchell argues it was reversible error for the trial judge to make a finding of guilty on the charge of contributing to the delinquency of a child upon an indictment “which charged only that the defendant performed an act of sexual intercourse with’ the complainant, even though the trial judge, sitting as the trier of fact, found that there was no penetration.” Mitchell further argues that there is such a variance between the trial court’s finding and conviction that his conviction for the offense of contributing to the sexual delinquency of a child must be reversed. Mitchell also contends that the defendant must be informed of the crime of which he is charged; that in the present case he was not so informed; and that he was therefore found guilty of a crime not charged.

Mitchell was charged by indictment with the offense of contributing to the sexual delinquency of a child in that he performed an act of sexual intercourse with the victim, a child under the age of 18 years, in violation of section 11 — 5(a)(1) of the Criminal Code. The common-law record recites that Mitchell was found guilty of “contributing -to sexual intercourse of a child in manner and form as charged in the indictment.” The finding of the trial court was as follows: “I cannot in good conscience find Mr. Mitchell guilty of rape. There is that thing in there about, ‘I don’t know what it was’ on cross examination. And he did go up and down. But it’s not clear and concise and convincing. I am — I am going to find him guilty to the contributing to the delinquency of a child in that he attempted it; I don’t think that there was penetration, and there must be a penetration. So I will find him guilty of contributing to the delinquency of a child because he attempted an act of sexual intercourse against her will.”

From the foregoing it is apparent that there is a discrepancy between the common-law record and the transcript. Although the common-law record imports verity and is presumed correct (People v. Cleggett (1961), 22 Ill.2d 471, 177 N.E.2d 187; People v. Pahl (1970), 124 Ill. App.2d 177, 260 N.E.2d 405), where there are other facts appearing which are contradictory the court should consider the matter upon the record as a whole. People v. Williams (1963), 27 Ill.2d 327, 189 N.E.2d 314; People v. Brown (1973), 14 Ill.App.3d 196, 302 N.E.2d 101; People v. Caruth (1972), 4 Ill.App.3d 527, 281 N.E.2d 349.

In the instant case the indictment charges defendant with contributing to the sexual delinquency of a child in violation of section 11 — 5(a)(1) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 11 — 5(a) (1)) in that he had intercourse with the victim who was under the age of 18 years. By statute, attempt to commit a crime is a lesser included offense of the substantive charge (Ill. Rev. Stat. 1969, ch. 38, par. 2 — 9(b)). Here, the trial judge’s finding quoted above clearly indicates that the defendant did not achieve penetration, and that the trial court was therefore finding the defendant guilty of the attempt of contributing to the sexual delinquency of a child in violation of section 8 — 4 and section 11 — 5(a)(1) of the Criminal Code, Since this was a lesser included offense of the crime charged, there was no fatal variance between the indictment and the finding of the trial court. (People v. Rosochacki (1969), 41 Ill.2d 483, 244 N.E.2d 136.) Defendant was informed of the crime with which he was charged; he was in no way surprised at trial, and there is no evidence that he suffered any prejudice. People v. Simental (1973), 11 Ill.App.3d 537, 297 N.E.2d 256.

Because of the conclusion we have reached — that defendant was found guilty of the attempt of contributing to the sexual delinquency of a child — it is obvious that the trial court’s record and mittimus are in error. The case of James MitcheH, Jr., is remanded to the trial court with directions to correct the record and to issue an amended mittimus showing that defendant was found guilty of attempt to contribute to the sexual delinquency of a child by attempting an act of sexual intercourse.

Kincaid argues that he was denied a hearing in mitigation as required by section 1 — 7(g) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 1 — 7(g)). After Kincaid was found guilty the trial court proceeded with a hearing in aggravation and mitigation. After the assistant State’s Attorney made some statements in aggravation there was the following discussion between the court and counsel:

THE COURT: Oh, all right. Do you wish to say anything in mitigation? There is nothing you could do now. I am bound by the legislature to a minimum on this. No matter what you say, whatever his problems are, it’s a minimum of four. And I use the American Bar Association time; that’s four to twelve. You can say anything you wish.
MR. MOROWITZ [Defense Counsel]: Will he be eligible for a parole?
THE COURT: In probably 24 to 26 months; a little over two years. All right, there will be judgment on that finding.

The record clearly shows that Kincaid had an opportunity to present evidence in mitigation. The failure to present such evidence after an opportunity was given constituted a waiver of any right to a hearing in mitigation. (People v. Brown (1971), 2 Ill.App.3d 368, 276 N.E.2d 452; People v. Dennis (1970), 47 Ill.2d 120, 265 N.E.2d 385, cert, denied, 403 U.S. 907; People v. McNeil (1972), 52 Ill.2d 409, 288 N.E.2d 464.) It is therefore apparent that the trial court did not deny Kincaid a hearing in mitigation.

Kincaid also argues that the trial court “did mechanically follow the American Bar Association recommendation and the evil of ‘computerized justice’ foreseen in the Winston case [People v. Winston (1972), 4 Ill.App.3d 467, 281 N.E.2d 432] became a reality.” The trial judge sentenced Kincaid to a minimum of 4 years and a maximum of 12 years in the penitentiary. The sentence was in accordance with section 11 — 1(c) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 11—1), which was controlling at the time of the occurrence and provided as follows:

“A person convicted of rape shall be imprisoned in the penitentiary for any indeterminate term with a minimum of not less than 4 years.”

At the present time rape is a Class 1 felony (Ill. Rev. Stat. 1973, ch. 38, par. 11 — 1). Section 5 — 8 — 1(b)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8 — 1(b)(2)) provides that “for a Class 1 felony, the maximum term shall be any term in excess of 4 years.”

Kincaid argues that it was error for the trial court to impose a 12-year maximum sentence; that the court, in using the American Bar Association guide, was under the erroneous impression the maximum sentence must be three times the minimum sentence, and that since the minimum sentence for rape is 4 years, the trial court imposed a sentence of “four to twelve” years. There is nothing in the Code that there must be a “one-third spread” between a maximum and minimum sentence for a Class 1 felony, although a one-third spread is provided for in section 5 — 8 — 1(c) (3) for a Class 2 felony, and in section 5 — 8 — 1(c)(4) for a Class 3 felony.

In the case before us, the trial judge did not “mechanically” follow the American Bar Association guide, but used his discretion in choosing the maximum sentence to be imposed. He could have chosen other guides to aid him in determining the maximum term of imprisonment, thereby making the maximum sentence either more or less than the 12 years imposed. It is clear from the record that the trial court chose to use the American Bar Association guide, not that he was compelled to use it, and therefore, the “evil of computerized justice” was not present.

A sentence imposed by the trial judge who saw Kincaid, and was therefore in a better position to appraise him and to evaluate the likelihood of his rehabilitation than a reviewing court, should not be reduced unless there are substantial reasons for doing so. (People v. Taylor (1965), 33 Ill.2d 417, 211 N.E.2d 673; People v. Kendricks (1972), 4 Ill.App.3d 1029, 283 N.E.2d 273.) The sentence was within the statutory provision, and since there is no showing that the trial court abused its discretion in sentencing Kincaid to a term of not less than 4 years nor more than 12 years, the sentence should be affirmed. People v. Moore (1971), 50 Ill.2d 24, 276 N.E .2d 319.

Kincaid finally argues that the 4-year minimum sentence provided for in section 11 — 1(c) of the Criminal Code is unconstitutional, as a usurpation by the legislature of judicial discretion, since under the minimum-sentence provision the trial court had no discretion to sentence Kincaid for a minimum sentence of less than 4 years.

A similar contention was rejected by the court in People v. Moore (1973), 15 Ill.App.3d 691, 304 N.E.2d 696. Section 11 — 1(c) of the Criminal Code is constitutional.

The judgments of the trial court are affirmed, and the case of James Mitchell, Jr., is remanded to the trial court with directions to correct the record and to issue an amended mittimus showing that James Mitchell, Jr., was found guilty of the attempt of contributing to the sexual delinquency of a child by attempting an act of sexual intercourse.

Judgments affirmed; case of James Mitchell, Jr., remanded with directions.

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


author: Mr. JUSTICE HALLETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Elester Richardson, Defendant-Appellant.
    (No. 58633;
    First District (1st Division)
    August 5, 1974.

      Paul Bradley and Howard Augustus, both of State Appellate Defenders Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

After a bench trial, the defendant was convicted of reckless homicide in connection with an incident in which his automobile veered onto a sidewalk, bounced off the side of a bridge, hit two boys, killing one of them, hit two vehicles and came to a stop after colliding with a large “Be-Mac” truck. He was sentenced to 1 to 3 years in the penitentiary. At the trial, Officer Payne testified that the defendant, after being given the Miranda warnings by a Sgt. Marhoff, who did not testify at the trial, admitted going 65-70 miles an hour before the first impact. On appeal, the defendant contends, inter alia:

1. That Officer Payne’s testimony that, in his presence, Sgt. Mar-hoff read the Miranda warnings to the defendant constituted hearsay and was improperly admitted over objection.
2. That the State must produce all material witnesses to the giving of such a warning or explain their absence and that, since such was not done here, Officer Payne’s testimony as to the defendant’s subsequent admission as to speed was improperly admitted over objection.
3. That the evidence is not sufficient to establish the defendant’s guilt beyond a reasonable doubt.

We disagree with the first two of these contentions but concur in the third and therefore reverse without remanding.

The defendant first contends that to permit Officer Payne to testify as to what Sgt. Marhoff, in his presence and hearing, read to the defendant as his Miranda warnings violates the rule against hearsay. This is not correct and reflects a misunderstanding of what constitutes hearsay.

One of the clearest statements found in Professor Cleary’s Handbook of Illinois Evidence (2d ed. 1963), where, in section 17.4, page 275, it is pointed out that:

“Hearsay does not encompass all extrajudicial statements but only those offered for the purpose of proving the truth of matters asserted in the statement. Therefore, when the mere making of the statement is the significant fact, hearsay is not involved.”

To the same effect, it is said in 2 Jones on Evidence (5th ed.), section 271, page 521, that:

“§ 271. Extra-Judicial Statements Not Within the Rule. If a statement previously made out of court is offered in evidence through a witness or a writing, not for the purpose of establishing the truth of the matter stated, but merely for the purpose of establishing the fact that the statement was made, the evidence is admissible, if it is relevant, and it is not subject to the exclusionary impact of the hearsay rule.”

In Hunter’s Trial Handbook for Illinois Lawyers (3d ed.), section 309, at page 258, it is said:

“§ 309. Definition of Hearsay Evidence. Hearsay evidence includes only those statements made outside court which are offered to prove the truth of that which is asserted in the statement. Our Illinois Supreme Court has stated that ‘the distinction between admissible testimony and that which is barred by the hearsay rule is well illustrated by Wigmore’s example of the witness A testifying that “B told me that event X occurred.’ If As testimony is offered for the purpose of establishing that B said this, it is clearly admissible — if offered to prove that event X occurred, it is clearly inadmissible, for the only probative value rests in B’s knowledge — and B is not present to be cross-examined.” People v. Carpenter, 28 Ill.2d 116, 190 NE2d 728 (1963).”

To the same effect see McCormick’s Handbook on Evidence (Hornbook Series), section 228, at page 463; VI Wigmore on Evidence (3d ed.), section 1766, at page 178.

And in Northern Trust Co. v. Moscatelli, 54 Ill.App.2d 316, 203 N.E.2d 447, this court, in affirming a decree, at page 332-333, said:

“The definition of ‘hearsay’ as developed in recent Illinois cases is that it is an out-of-court statement offered for the truth of the matter asserted. People v. Carpenter, 28 Ill2d 116, 190 NE2d 738; People v. DeMarco, 44 IllApp2d 459, 195 NE2d 213.
The letters from Rundall to Yolande were not offered for the truth of the matters asserted, but to show that Yolande had notice of the information contained therein. * * *”

Officer Payne’s testimony was offered not to prove the truth of the Miranda warnings but only to prove that they were given before the defendant made a statement. We therefore conclude that the admission of this testimony did not violate the rule against hearsay.

The defendant next contends that Sgt. Marhoff, who, according to the testimony of Officer Payne, in his presence and hearing, read the Miranda warnings to the defendant from a card, should have been produced by the State at the trial before the defendant’s subsequent statements could be admitted. While it is well established in Illinois (People v. Gavurnik (1954), 2 Ill.2d 190, 117 N.E.2d 782; People v. Wagoner (1956), 8 Ill.2d 188, 133 N.E.2d 24; People v. Jennings (1957), 11 Ill.2d 610, 144 N.E.2d 612; People v. Sammons (1959), 17 Ill.2d 316,161 N.E.2d 322; People v. Dale (1960), 20 Ill.2d 532, 171 N.E.2d 1; People v. Sims, (1961), 21 Ill.2d 425, 173 N.E.2d 494; People v. Wright (1962), 24 Ill.2d 88, 180 N.E.2d 689; People v. Armstrong (1972), 51 Ill.2d 471, 282 N.E.2d 712) that where it is contended that the defendant was beaten or otherwise coerced into a confession and a motion is made to suppress on that ground, the State must produce all material witnesses connected with the taking of the statement or explain their absence, no such contention is made here and no Illinois case has held that this rule applies to the giving of a Miranda warning and we do not do so now.

This brings us to the defendant’s third contention that, even with Officer Payne’s testimony, the evidence is not sufficient to establish the defendant’s guilt beyond a reasonable doubt. We shall therefore consider the testimony in considerable detail.

Stanley Wirtschorek testified for the State that on October 21, 1971, at about 4:10 P.M., he was a passenger in a truck headed north on Cicero Avenue in Chicago; that the traffic was heavy and they were stopped at the bottom of the overpass in the turn lane at 67th Street; that in the side view mirror he saw a car coming down the sidewalk headed toward him; that he saw two children walking north on that sidewalk and saw what may have been one of the children on the hood of the car; that the body of the boy who died came to rest underneath a semi-trailer truck headed west on 67th Street; that the car hit the buck in which the witness was riding in the rear; that based on what he saw for a few seconds in the side view mirror he was of the opinion that the car was going about 50 miles an hour; and that the defendant was the driver of the car.

Mark Duffield, 12 years old, testified for tire State that he was playing at the top of the hill on Cicero at the south end of the bridge; that he saw a car headed north going down the hill faster than the other cars; that at the end of the bridge the driver put on his brakes and skidded and went up on the sidewalk; and that he ran down the hill and saw the car hit another car and a white truck.

Robert Madesa, 14 years old, testified for the State that he was with Lawrence KiU (who was kiUed) walking north on Cicero on the east sidewalk when they were struck by a car and that the next thing he remembers is waking up in the hospital.

Patrick Payne, a Chicago police officer, testified that he investigated an accident at Marquette and Cicero on October 21, 1971, involving two cars, three trucks and two pedestrians; that Lawrence KiU (who died) was underneath the tractor of a Be-Mac truck which was facing west on Marquette; that he saw tire marks on the sidewalk roughly 669 feet south of 67fh Street; that the roof of the defendant’s car was caved in, two tires were flat and the front end was damaged and that the right front fender of the defendant’s car was against the right front fendér of the Be-Mac truck. He also testified that he then went to the Von Solbrig Hospital, where the defendant, after being advised of his Miranda rights (to remain silent, to have a lawyer, etc.), stated that he was going north on the bridge one block south of 67th Street and that his gas pedal stuck and his brakes wouldn’t work. He also testified that the one block between the bridge and 67th Street is all downgrade. On cross-examination, he admitted that he did not include in his accident report that the defendant said he was going 65 or 70 miles an horn. He ticketed the defendant for going too fast for conditions in going 40 miles an hour in a 40 mile zone and for driving an unsafe vehicle in that there were no brakes and a bad gas pedal, but was not able to explain why he put down 40 m.p.h. He also testified that the defendant was not under the influence of alcohol.

Robert Henker testified for the State that he is a machinist for the Chicago Police Department; that he has had long experience with Ford automobiles and is familiar with their workings; that on December 22, 1971, he examined the defendant’s said Ford automobile at the Police Auto Pound in Chicago; that he removed the wheels and found the brake linings intact and the brake system functioning, although the brake shoes were badly worn; that he removed the carburetor and found that the shaft was frozen due to gummy substances but after it was cleaned up it was free; that he examined the linkage from the floor board to the carburetor and found nothing that would cause the gas pedal to stick; and that, in his opinion, the carburetor was functioning properly on the date of the accident. On cross-examination, he admitted that the car had been badly maintained and that the brake linings were badly worn, some down to the rivets; that he really couldn’t tell the condition of the car at the time of the accident; that there was a hole in the cap of the master cylinder; that if air gets into the brake system it can affect its function and that he did not bleed the brakes to find out if it had; that he didn’t step on the accelerator but merely disconnected it; that there was about half a pedal of traveling in the brake pedal, which indicates that the brakes were poorly adjusted; that one of the shoe linings in the right rear brake was broken; and that the left and right front linings were down to the rivets.

It was stipulated that Lawrence KiH died on the day of the incident of head injuries; that he was in good health before said incident; that the defendant was 30 years old; and that the accident occurred in Cook County.

After the State had rested and a motion for a directed verdict had been denied, Standell King testified for the defense that he worked with the defendant and had ridden with him in the car involved in the accident about a week before, at which time the gas pedal did not stick and the defendant had no trouble stopping the car; that on the date in question he drove 10 blocks from the Lerner Warehouse to Cicero Avenue, with the defendant behind him; that traffic was heavy and they drove at about 5 miles per hour; that the defendant passed him about 3 car lengths south of the bridge going about 30 miles an hour; that the speed limit there is 40 miles an hour; that he saw the defendant’s car strike the railing on the bridge at which time he was going 35-40 miles an hour; that he saw the defendant’s brake lights go on when he hit the railing; and that the pavement on the bridge was rough and bumpy.

Dorothy Ballard testified for the defense that she saw the defendant leave work at about 4 P.M.; that she drove the 10 blocks to Cicero Avenue at 25-30 miles an hour and that he did not pass her; that when she got to the bridge traffic was backed up and she stopped on the incline; that, looking in her rear view mirror, she saw the defendant hit a car to her right rear and continue on down the side; that his car then went out of control and picked up speed; and that she then lost sight of it.

Brenda Newman testified for the defense that she was a passenger in the defendant’s car on the day in question; that he had owned this car for about 1 week; that he moved along with the traffic at 20-25 miles an hour up to 71st Street, where he stopped as the first car in line; that at that point the road goes north up over a bridge over the railroad tracks; that, when they were about halfway up and could see the traffic ahead of them stopped for the light at the bottom of the hill, the defendant tried to stop the car but couldn’t do so; that he said that the accelerator was stuck and kept pumping the brake pedal with his left foot and sticking his right foot under the accelerator pedal lifting it up but the car kept right on going and hit the side of the bridge and then went up onto the sidewalk and down the hill on the sidewalk; and that at that point they were going 35-40 miles an hour.

The defendant’s final witness, Ivan K Dawson, testified that he had a bachelor’s degree in engineering, is a registered professional engineer and has published papers in his field; that for the past 3 to 4 years he has worked for Alcoa testing automobile parts and components, including brakes and accelerators; that he examined the defendant’s car at the Chicago Police Auto Pound; that he took off the right rear brake drum and found that the drum was scored %2 inch deep by rivets which hold the drum in place and that the drum had not been turned when the new shoes were put on; that the carburetor linkage was badly rusted so that it could not be operated; that several of the linkage arms were disconnected, including one connecting the carburetor to the transmission to actuate the passing gear; that a spring, which has the function of resisting the action of the passing gear, was broken and a string was dangling from the arm on the passing gear towards the other linkages in the carburetor; that the vacuum line going from the manifold to the booster brake cylinder was disconnected and split; that the floor mat around the accelerator was badly wrinkled; that the string dangling in the carburetor could disturb the carburetor linkage so that it would not operate freely and that the broken spring would kick the passing gear in more easily and perhaps accidentally; that, based upon the damage to the radiator, etc., he was of the opinion that the speed of the vehicle upon final impact was definitely less than 40 miles an hour; that, under the facts here existing, the car could shift into the passing gear which would increase its power; and that the stopping distance of the defendant’s car was substantially greater than with a car in good condition.

Although we have held that Officer Payne’s testimony was properly admitted, we are not at all overwhelmed by it. Although he testified at the trial that the defendant, who was then in the hospital, having been seriously injured less than an hour before, said that he was hitting 65 or 70 on the bridge about one block south of 67th Street, he admitted that he did not reflect this in his accident report and that he ticketed the defendant for going too fast for conditions in going 40 miles per hour in a 40-mile zone and for driving an unsafe vehicle which had no brakes and a bad gas pedal, although he could not explain why he put down 40 m.p.h. He also admitted that he did not personally analyze the brake or steering mechanism of the car after the accident, and that the defendant was not under the influence of liquor. Furthermore he did not mention the defendant’s alleged statement as to speed until he testified at the trial.

We have carefully considered this very shaky testimony and all of the other testimony above set forth and conclude that there remains a serious and well-founded doubt as to the defendant’s guilt.

As our supreme court stated in People v. Sledge (1962), 25 Ill.2d 403, 407, 185 N.E.2d 262:

‘While it is the province of the jury to pass upon tire question of guilt or innocence of an accused in the first instance, it is the duty of this court to carefully examine the evidence and if, after doing so, there remains a serious and well founded doubt of a defendant’s guilt, the conviction must be reversed. (People v. Gair, 379 Ill. 458; People v. McMahon, 254 Ill. 62,)”

Since we reverse on the ground that the evidence is not sufficient to support the guilty finding, we reverse without remanding the cause for another trial. (People v. Rendas (1937), 366 Ill. 385, 9 N.E.2d 237; People v. Bradley (1940), 375 Ill. 182, 30 N.E.2d 636; People v. Mostafa (1971), 5 Ill.App.3d 158, 274 N.E.2d 846, leave to appeal denied.) We therefore do not reach such problems as the sufficiency of the indictment or the constitutionality of the statute.

Reversed.

EGAN, P. J., and BURKE, J., concur.


author: Mr. JUSTICE CLYDESDALE

text:
    R. Eugene Wilson, Plaintiff-Appellee, v. Massey-Ferguson, Inc., Defendant-Appellant—(Edward Westen, d/b/a Westen Implement Company, Defendant).
    (No. 12428;
    Fourth District
    August 22, 1974.
    Sorling, Catron and Hardin, of Springfield (Patrick V. Reilly, of counsel), for appellant.

      John R. Gehlbach, of Lincoln, for appellee.
   Mr. JUSTICE CLYDESDALE

delivered the opinion of the court:

Plaintiff-appeHee filed a complaint in the circuit court of Logan County on December 2, 1971. Said complaint, as amended, alleged that on or about April 15, 1967, plaintiff purchased from the defendant Edward Westen, d/b/a Westen Implement Company, a tractor, manufactured by the defendant Massey-Ferguson, Inc., for the sum of approximately $9000.It is further alleged that defendants knew that plaintiff was buying the tractor for the purpose of heavy-duty plowing on his farm and therefore the defendants impliedly warranted, under sections 2 — 314 and 2— 315 of the Uniform Commercial Code (Ill. Rev. Stat. 1969, ch. 26, ¶¶ 2 — 314, 2 — 315), that the tractor was merchantable, and fit for the particular purpose of heavy-duty plowing. FinaHy, it is alleged that the tractor was neither merchantable nor fit for the specific purpose as warranted, in that the tractor overheated, constantly threw out oil, and was not usable for general farming purposes.

Plaintiff demanded judgment in the sum of $3300, the alleged difference between the tractor’s purchase price and its value at the time of purchase.

Defendant Westen filed a motion to dismiss for failure to state a cause of action and for failure to allege facts as distinguished from conclusions. Defendant Massey filed an answer denying it sold the tractor to plaintiff, but claiming that plaintiff’s purchase was made from Westen. Massey raised the statute of limitations as an affirmative defense. Defendant Massey filed a motion for judgment on the pleadings which was denied by the court with a specific finding that the complaint was not barred by the statute of limitations. A docket entry indicates that after a hearing on defendant’s motion to dismiss, the case against Westen was dismissed. The case then proceeded to trial against the defendant Massey only.

The evidence introduced in plaintiff’s case established that plaintiff purchased the tractor on April 15, 1967, for cash of around $9000; that there was no written contract between the parties; that plaintiff used the tractor for normal farming practices; that he had taken care of it according to the maintenance manual; and that the motor went dead and would not start. It was further established that in the fall of 1971, the tractor started leaking oil and, thereafter, Westen’s mechanic looked at it and told plaintiff that the motor would have to be replaced.

At the trial, Westen testified that he was a Massey-Ferguson dealer and in response to the question of “How long does a tractor normally run?” he stated:

“Well, I would say there is tractors like that would run ten years without any problem. I think we have some that was sold in ’64 or ’65, somewhere in there.”

Plaintiff’s exhibit 1 was admitted into evidence which indicated that the cost to replace the tractor’s engine would be in the sum of $4532.78. The agreement between Massey-Ferguson and Westen was also introduced into evidence.

The defense offered no evidence other than to cross-examine plaintiff’s witness, Westen.

The trial court’s order found that plaintiff purchased the tractor from Westen for $9000; that the tractor was manufactured by Massey-Ferguson; that defendants, as merchants, impliedly warranted the tractor to be merchantable and fit for the particular purpose for which it was bought; that the tractor was not merchantable or fit for the ordinary purpose for which the tractor was to be used; that the tractor overheats, constantly throws out excessive amounts of oil, and is generally not usable for any general farming purposes; and that the plaintiff was damaged to the extent of $4330.26. The court thereupon entered judgment in that amount.

In a statement of reasons for its decision, pursuant to Supreme Court Rule 323(a) (Ill. Rev. Stat. 1971, ch, 110A, j[ 323(a)), the court indicated that the basis of its decision was that the breach occurred within 4 years from the date of filing suit and that defendant Westen was an agent of Massey-Ferguson for the pmpose of selling the tractor.

Defendant Massey appealed from the judgment of the lower court and raised the following issues for review by this court: (1) was the action of the plaintiff barred by the statute of limitations; (2) does the record support a finding that Westen was an agent of Massey-Ferguson for purposes of affecting sales of property to plaintiff; and (3) was the finding of $4330.26 in damages contrary to the manifest weight of the evidence?

It should first be pointed out that an implied warranty of fitness for a particular purpose under section 2 — 315 of the U.C.C. is not really involved here. First, there is no evidence whatever that the buyer was relying on the seller’s skill or judgment to select or furnish suitable goods for a particular purpose. Furthermore, there was no evidence to support a warranty for a particular purpose. The Illinois Code Comment to section 2 — 315 indicates that:

“Thus, where the goods are to be put to ordinary use, the concept of merchantability and not particular purpose is involved.” (S.H.A. (1963), ch. 26, § 2 — 315, at 239.)

The Uniform Commercial Code Comment similarly indicates that:

“2. A particular purpose’ differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question. For example, shoes are generaHy used for the purpose of walking upon ordinary ground, but a seller may know that a particular pair was selected to be used for climbing mountains.” S.H.A., supra, at 240.

In this case, the tractor was sold and used for ordinary farm work, which includes, without question, heavy-duty plowing. Thus, section 2— 315 is not relevant in this case, and the implied warranty of merchantability (§ 2 — 314), is the only relative concept here. The fact that only section 2 — 314 and not section 2 — 315 is applicable here is not determinative of any of the issues but we felt it necessary to clarify the distinction between these two sections of the U.C.C. because the trial court, in its final order, seemed to imply that both sections were applicable to this case.

Clearly, this action was not brought within the 4-year statute of limitation. The applicable section is 2 — 725 of the U.C.C. (Ill. Rev. Stat. 1973, ch. 26, § 2 — 725) which provides:

“(1) An action for breach of any contract for sale must be commenced within 4 years after the cause of action has accrued. # # #
(2) A cause of action accrues when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered.”

It has been established that there was no written contract for the purchase of the tractor, and that the date of purchase was April 15, 1967, with delivery thereof a day or two after April 15. Thus, under the plain and unambiguous language of section 2 — 725, this cause of action (filed December 2, 1971) was not brought in time unless the exception of section 2 — 725(2) was applicable here. The exception is only applicable if the warranty explicitly extends to future performance of the goods. AH warranties, implied or expHcit, must arise out of the contract for sale. Plaintiff contends, however, that the implied warranty of sale in this case does explicitly extend to future performance.

Plaintiff cites Klondike Helicopters Ltd. v. Fairchild Hiller Corp., 334 F.Supp. 890 (N.D. Ill. 1971). Klondike is of questionable authority for plaintiff’s position. Count II of the 6-count complaint in that case alleged that defendant breached a continuing contract to supply information relating to the servicing of an aircraft. Count III of the complaint alleges breaches of both express and implied warranties. Both counts were stricken from the complaint by the District Court on the ground that the Illinois statute of limitations (§ 2 — 725 of U.C.C.) did not apply and that applicable California statute of limitations barred these counts. The court did, however, discuss section 2 — 725 as it related to these two counts of the complaint. The court held that Count II would not be barred if Illinois law was applicable because this count of the complaint relied upon a contract provision that called for a continuing duty on the part of the seller to provide information regarding the servicing of the aircraft and it therefore fell within the future performance exception of section 2 — 725(2). Count III dealt with express and implied warranties and the court said:

“These warranties relate to the merchantability of the aircraft. It seems reasonable to expect a warranty of this nature to continue beyond the tender of delivery and extend for the life of the product. For this reason, the alleged warranties extended to future performance within the meaning of Section 2 — 725(2).” (334 F. Supp. at 893.)

The court’s analysis was, of course, dicta and as it relates to Count III appears to be unsound. Merely because it is reasonable to expect that a warranty of merchantability extends for the life of a product, does not mean that “such a warranty explicitly extends to future performance.” The only explanation for the reasoning in Klondike is that the terms of the express warranties in Count III did in fact extend to future performance, but the terms of the warranties were not set out in the opinion. To the extent that the above quoted portion of Klondike supports the proposition that an implied warranty of merchantability extends for the life of every product and is therefore a warranty extending to future performance within the meaning of section 2 — 725(2), that opinion is clearly erroneous. In order for the warranties to extend to future performance, the warranty must be explicit.

In the case of Binkley Co. v. Teledyne Mid-America Corp. (E.D, Mo. (1971)), 333 F. Supp. 1183, affd, 460 F.2d 276 (8th C.A. (1972)), the seller of a welding machine expressly warranted that the welder would weld at a rate of 1,000' per 50-minute hour, which it never did. Defendant moved for a summary judgment on the basis of lapse of the statute of limitation. The district court discussed various pre-code cases and stated:

“While these cases were not decided under § 2 — 725(2), they do indicate a judicial reluctance to infer from the language of express warranties terms of prospective operation that are not clearly stated. This court must exercise similar reluctance, since under the terms of § 2 — 725(2), only explicit warranties of future performance delay accrual of a cause of action for breach of warranty.” (333 F.Supp. at 1186)

The court then dealt with the question of what exphcit means, and relying upon other cases and Webster’s dictionary stated:

“ ‘Explicit is defined * * * as “not implied merely, or conveyed by imphcation; distinctly stated; plain in language; clear; not ambiguous; express; unequivocal” # (338 F. Supp. at 1186.)

The court remarked that although the warranty expressly stated that the welder would weld at 1,000' per hour, the decisive factor was that there was no reference to future time found in the warranty. In response to the buyer’s argument that he was unable to test the apparatus until after delivery, the court stated that to allow plaintiff’s action on that basis would be contrary to the clear language of the act that the breach occurs at the time of delivery “regardless of plaintiff’s knowledge”. The Eighth Circuit Court of Appeals affirmed, stating that:

“We * * * agree with Judge Webster’s well-reasoned opinion that the proper construction of the statute makes the rule, rather than the exception, applicable to this case.” 460 F.2d at 227.

We conclude, based on the rationale of Binkley and the clear, unambiguous language of section 2 — 725(1) and (2), that the appelleeplaintiff’s case is barred by the statute of limitations. We find nothing in the record, nor in the transcript of the evidence which would support an inference that any explicit warranty or representation as to the performance of the tractor was made, let alone representations, explicit or otherwise, as to the future performance of the tractor. Even if the seller had specifically told plaintiff that “this tractor is suitable for heavy duty plowing,” Binkley makes it clear that the breach of that warranty occurred at the time of delivery because the warranty did not explicitly state that the tractor would be suitable for such work beyond that time. Absent an explicit indication of such a warranty, the statute of limitations runs from the time of delivery.

Inasmuch as this finding is dispositive of the case, we need not discuss nor rule upon the other issues raised upon appeal.

Judgment reversed.

TRAPP, P. J., and SIMKINS, J., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Les Snow, Jr., Defendant-Appellant.
    (No. 12243;
    Fourth District
    August 22, 1974.

      Markowitz, Lawrence, Lenz, Jennings and Naylor, of Bloomington (Harold M. Jennings, of counsel), for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (John A. Beyer, of Circuit Attorney Project, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals from a conviction for theft in excess of $150 entered upon a jury verdict. Defendant was sentenced to serve a term of 2 to 5 years in the penitentiary.

The record indicates that the defendant was charged in connection with his sale of a stolen 1969 Ford pickup truck with an attached camper top. The State’s case-in-chief showed that two vehicles were involved— the identification number of the stolen truck being altered to conform to the identification number of a wrecked Ford truck obtained by defendant in Indiana.

There is little or no dispute in the record as to the fact that the vehicle sold by defendant Les Snow was, in fact, stolen from one Sylvester Coplin in Chicago on or about March 15, 1971. The gist of this appeal is whether the State showed by circumstantial evidence that the defendant knowingly exerted unauthorized control over a vehicle which he knew at the time was stolen.

Snow testified he had purchased a wrecked 1970 Ford pickup truck in Indiana which, according to defendant, he subsequently took to Chicago to be rebuilt by one “Bob Pronger,” the owner of a body shop on 127th Street in Blue Island, Illinois. Snow stated he was unaware of the fact that the vehicle returned to him by Pronger was, in fact, stolen. The whereabouts of Pronger at the time of the trial was unknown.

The evidence showed many differences between the truck bought by the defendant in Indiana and the one allegedly returned to him by Pronger. The prosecution pointed out that although the defendant had given Pronger a wrecked 1970 Ford pickup, the truck returned to him was a 1969 model equipped with a camper, that the returned vehicle had an automatic instead of a manual transmission, a step-up bumper instead of a plain chrome one, and a poorly done white-over-green paint job on the cab. Numerous other discrepancies between the two vehicles were indicated by the evidence.

On the foregoing, the jury found the defendant guilty of exerting unauthorized control over the truck of Sylvester Coplin.

It is argued on review that the court erred in giving an instruction, IPI-Criminal 13.21; that certain statements by the State’s witnesses were inadmissible as hearsay and that the defendant was improperly impeached by the introduction of evidence of a prior conviction.

The indictment charged defendant with theft “in that he wilfully, unlawfully and knowingly obtained or exerted unauthorized control over property * * * owned by Les Coplin [sic], with intent to deprive the owner permanently * ” Such charge is in the language of section 16 — 1(a) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 16— 1(a)).

In opening statements, the State’s Attorney stated that the prosecution would not undertake to prove that “Snow physically stole the truck from Chicago.” Upon such statement, defendant argued, in the trial court and here, that defendant was to be convicted of possession of stolen property in violation of section 16 — 1(d) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 16 — 1(d).

Defendant points out that the authorities hold that theft of property is different conduct than receiving stolen property. From the premise that the State was proving the charge of receiving stolen property, he argues that there was error and prejudice in giving IPI-Criminal instruction 13.21.

The premise is false. The Criminal Code, article 15, defines the terms in the statutes relating to offenses against property. Section 15 — 8 (Ill. Rev. Stat. 1969, ch. 38, par. 15 — 8) provides:

“[T]he phrase obtains or exerts control’ over property, includes but is not limited to the taking, carrying away, or the sale, conveyance, or transfer of title to, or interest in, or possession of property.”

It is held that the obtaining of unauthorized control includes, but is not limited, to the initial taking or carrying away (People v. Helm, 10 Ill.App.3d 643, 295 N.E.2d 78), and that the unauthorized possession need not begin at the time of the original talcing. (People v. Quick, 15 Ill.App.3d 300, 304 N.E.2d 143.) There is no support for the claim that the State sought to convict upon the evidence of receiving stolen property.

Such instruction does not create an unconstitutional pressure compelling defendant to testify in his own behalf in violation of fifth amendment rights. Turner v. United States, 396 U.S. 398, 24 L.Ed.2d 610, 90 S.Ct. 642; People v. Street, 11 Ill.App.3d 243, 296 N.E.2d 606.

The second contention of defendant is that the trial court erred in permitting witnesses for the prosecution to testify as to the manner in which Ford vehicle-identification numbers were stamped on the frame of Ford trucks in that no evidence was introduced showing that the witnesses themselves had observed said numbers being implanted on either 1969 or 1970 Ford pickups, and that the testimony was hearsay. The record shows that the questioned testimony was not elicited in order to show that the truck sold by defendant was stolen. Such fact was proven through the testimony of the owner, Sylvester Coplin, by various identifying marks and encumbrances on the truck body and cab. The purpose for which the State offered testimony that the numbers on the frame had been altered was to show knowledge on the part of the defendant.

It may be said that since the evidence showed numerous and more obvious differences between the vehicle stolen and that purchased by defendant, the jury could have determined that defendant knew that the truck sold was not the one purchased in Indiana, and thus the asserted error was harmless. Nonetheless, we hold that the expert testimony was properly admitted upon the authority of People v. Brown, 125 Ill.App.2d 336, 261 N.E.2d 11. See also People v. Owens, 41 Ill.2d 465, 244 N.E.2d 188.

The testimony was given by a police officer and an agent of the National Automobile Theft Bureau who were qualified by years of study, practical experience, and whose business it was to verify such automobile identification numbers. The opinions were based upon personal knowledge and examination of the vehicles. Skalon v. Manning, Maxwell & Moore, Inc., 127 Ill.App.2d 145, 262 N.E.2d 146.

In People v. Jennings, 252 Ill. 534, it is said that the general rule is that whatever tends to prove any material fact is relevant and competent, and that expert testimony is admissible when the subject matter of the inquiry is of such a character that only persons of sldH and experience in it are capable of forming a correct judgment as to any facts connected therewith.

Defendant urges that the trial court erred in denying his motion in limine and in admitting evidence of defendant’s prior conviction upon a plea of guilty to possession of a motor vehicle which altered serial numbers. In People v. Washington, 55 Ill.2d 521, 304 N.E.2d 276, it is said that such evidence is admissible in the sound discretion of the trial court subject to the specified limitations stated in People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695. This prior conviction was within the time limitation stated in Montgomery and was punished by imprisonment in excess of 1 year. In the light of the issues present here, the prior conviction does have a bearing on the credibility of defendant. (People v. Blythe, 17 Ill.App.3d 768, 308 N.E.2d 675.) We find no abuse of discretion.

The Unified Code of Corrections, effective January 1, 1973, governs the sentence imposed in cases pending on appeal. (People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.) The conviction reviewed here is a Class 3 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 16 — 1(e)(2).) As to such, the minimum sentence may not exceed one-third of the maximum. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8 — 1(c)(4).) Pursuant to Supreme Court Rule 615, the minimum sentence is modified and as modified the minimum sentence shall be not more than 1 year and 8 months.

The conviction is affirmed, the minimum sentence is modified and the cause is remanded to the circuit court to issue an amended mittimus.

Conviction affirmed, sentence modified, cause remanded with directions. •

SMITH, P. J., and SIMKINS, J., concur.

       “Obtains control over stolen property knowing the property to have been stolen by another or under such circumstances as would reasonably induce him to believe that the property was stolen, * *

       “If you find that the defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by theft.”


author: Mr. JUSTICE BURKE

text:
    Virginia M. Atz, Plaintiff-Appellee, v. Sol Goss et al., Defendants-Appellants.
    (No. 57917;
    First District (1st Division)
    August 5, 1974.

      William Parker Ward, of Chicago, for appellant Sol Goss.
    Leo J. Spivack and Norman E. Goldman, both of Chicago, for appellant Jay B. Jans.
    A. T. Walsh and John R. Fielding, both' of Chicago, for appellee.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

This is a personal injury action brought by the plaintiff, a passenger in defendant Jay B. Jans’ automobile, against both Jans and defendant Sol Goss, the driver of the automobile which collided with Jans’ car. A jury verdict of $20,000 was rendered against both defendants. Both defendants appeal.

Defendant Jans contends that the court erred in refusing to grant his motions for a directed verdict or judgment notwithstanding the verdict (n.o.v.) and that the verdict as to him is against the manifest weight of the evidence. Defendant Goss contends that the court erred in allowing the plaintiff’s attorney to argue the amount of damages for the first time in closing argument, in refusing his instruction on the plaintiff’s burden of proof and in giving her instruction, and in allowing plaintiff’s medical expert to testify before cross-examination of plaintiff.

On June 19, 1965, at about 5:30 P.M., defendant Jans was driving southbound on Kenton Avenue, a residential street in Lincolnwood, Illinois. Defendant Goss was driving eastbound on Arthur Avenue, also a residential street. The cars collided in the intersection of the two streets. The weather was clear and sunny. Jans had picked up the plaintiff, who was his date, earlier in the day. The plaintiff was sitting partly on the console between the two front bucket seats of Jans’ car and partly on the front passenger bucket seat. Another person was seated to plaintiff’s right in the passenger’s front bucket seat. On the northwest comer of the intersection was a hedge which prevented a clear view of cross-traffic by either driver.

We will examine defendant Jans’ arguments first. His initial contention is that he should have been given a directed verdict as to liability after the plaintiff’s case or judgment n.o.v. Applying the Illinois standard for reviewing a directed verdict or judgment n.o.v., we must determine whether all of the evidence viewed in its aspects most favorable to the plaintiff so overwhelmingly favors defendant Jans that no contrary verdict could ever stand. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) The plaintiff was a guest in Jans’ car. The Illinois statute applicable to guests at the time of the accident requires proof of wilful and wanton conduct on the part of the host driver before recovery is possible for the guest. (Ill. Rev. Stat. 1985, ch. 95%, par. 9—201.) The evidence necessary to support a verdict of wilful and wanton conduct must be such as shows the injury was intentional or the act was committed under circumstances exhibiting a reckless disregard for the safety of others. Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 69 N.E.2d 293.

Defendant Jans testified that he looked to the west when he was about 100 feet from the intersection. He could see through the hedge at the end of the street, although only to a limited extent. He saw no cars on Arthur approaching the intersection with Kenton. The same was true when he looked west a second time at a point about 30 feet north of the intersection. His view at that time was also impeded by the hedge on the northwest corner of the intersection. As he entered the intersection he looked west for the third time and saw no approaching vehicles. He stated that the sun was then at treetop level and hindered his vision of Arthur Avenue to the west. He also stated however that he could see one-half block west on Arthur in spite of the sun. He testified that he was just past the center line of Arthur when he first saw Goss’ car, which was about two car lengths away, and the collision occurred 1% seconds later. His car was struck in the right rear. Damage to Jans’ car was in the area of the right rear wheel and towards the rear of the car.

Defendant Goss testified that he could not definitely set a speed of Jans’ car, that the speed was between 20 and 50 miles per hour. He could not say which car entered the intersection first. Goss said that he slowed down when he first saw Jans’ car. Both the plaintiff and defendant Jans testified that Jans’ car was going 20 miles per hour, the posted speed limit, or slower, and that his car entered the intersection first.

The issue of wilful and wanton conduct depends on the facts in the case. (Ficht v. Niedert Motor Service, Inc., 34 Ill.App.2d 360, 181 N.E.2d 386.) In that case the speed of the host driver was an issue. As in the instant case, however, the defendant’s speed was but one circumstance to be considered in determining whether the driver’s conduct was wilful and wanton. The cases cited by the plaintiff are not compelling. We find that the issue as to Jans’ alleged wilful and wanton conduct should have been taken from the jury. Having reached this conclusion, we need not discuss defendant Jans’ second argument, that the verdict was against the manifest weight of the evidence.

We now turn to the contentions of defendant Goss, who was found by the jury to be negligent. He was not charged with wilful and wanton conduct. His first argument is that it was error for the court to allow plaintiff’s attorney to mention a specific award of monetary damages for the first time in closing argument. The extent and content of counsels’ arguments to the jury are generally left to the trial court’s discretion. Unless there is a clear abuse of that discretion so that the defendant is prejudiced, the reviewing court will not disturb the trial court’s determination. (Galluccio v. Hertz Corp., 1 Ill.App.3d 272, 274 N.E.2d 178.) The defendant’s argument that it was possible that the mention of damages prejudiced him (“what if” the argument had not been made?) is irrelevant. It is up to the defendant to demonstrate prejudice. The fact that the damages sought and mentioned in closing argument were $100,000, while the jury returned a verdict of $20,000, tends to refute the defendant’s speculation that he was prejudiced.

Defendant Goss’ next argument is that the court erred in giving the plaintiff’s instruction on her burden to prove her absence from contributory negligence and in refusing to give his instruction. The plaintiffs instruction did not set out any obligation on her part to prove her absence from contributory negligence, while the defendant’s did. It is settled in Illinois that where there is no testimony or other evidence as to the plaintiffs contributory negligence, no instruction on that issue should be given to the jury. (Smith v. Bishop, 32 Ill.2d 380, 205 N.E.2d 461.) Defendant Goss points to the facts that the plaintiffs position partly on the console and partly on the front passenger bucket seat was precarious and that she was not wearing a seat belt as evidence of contributory negligence. But, as the plaintiff points out, the defendant failed to show that these facts contributed either to the occurrence or to the plaintiff’s injuries. In any event evidence as to the use of a seat belt would not be relevant to the liability issue, but would go to the issue of damages. (Mount v. McClellan, 91 Ill.App.2d 1, 234 N.E.2d 329.) We find no error in the granting of the challenged instruction.

The third argument raised by defendant Goss is that the court erred in allowing the plaintiff’s medical expert to testify before cross-examination of the plaintiff. In support of this contention the defendant cites the case of Carlson v. New York Life Insurance Co., 76 Ill.App.2d 187, 222 N.E.2d 363. That case sets out the general rule that a trial judge has discretion to permit evidence to be presented out of order. The court there determined however that it was an abuse of discretion for the trial judge to allow the plaintiff to leave the stand so that a medical expert could testify:

“The defendant also contends that the trial court erred in permitting the plaintiff to be withdrawn from the stand so that plaintiff’s expert medical witness could testify and return to Michigan. The trial judge has discretion to permit evidence to be presented out of order. But here the defendant was definitely injured by this course of action. The expert placed on the stand gave his opinion based upon a number of hypothetical facts, which it was presumed would be testified to by the plaintiff. The defendant had been given no opportunity to cross-examine the plaintiff and was thereby restricted in presenting to the expert medical witness alternate assumed facts based upon plaintiff’s testimony. The result of taking these particular witnesses out of order, was to deprive the defendant of the full right of cross-examination of the expert witness. It constituted error.” Carlson v. New York Life Ins. Co., 76 Ill.App.2d 187, 202, 222 N.E.2d 363, 371.

It is obvious from the quoted passage that the trial court’s abuse of discretion centered on the defendant’s lack of opportunity to explore hypothetical situations with the medical expert. That is not the case before us. The medical expert in this case testified only as to the plaintiff’s actual injuries. We find no abuse of discretion in the trial court’s arrangement of the testimony.

For the reasons stated, the judgment as to defendant Goss is affirmed. The judgment as to defendant Jans is reversed and the cause remanded with directions to enter judgment notwithstanding the verdict in favor of Jans and against plaintiff.

Judgment affirmed in part and reversed in part and cause remanded in part with directions.

EGAN, P. J., and GOLDBERG, J., concur.