author: Mr. PRESIDING JUSTICE SEIDENFELD

text:
    Charles F. Wohlhuter, Plaintiff-Appellant, v. St. Charles Lumber & Fuel Co. et al., Defendants-Appellees.
    (No. 73-220;
    Second District (1st Division)
    February 7, 1975.

      Redman, Shearer, O’Brien & Blood, of St. Charles (Richard D. Shearer, of counsel), for appellant.
    Geister, Schnell, Richards & Brown, of Elgin (Donald J. Weaver, of counsel), for appellees.
   Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Plaintiff appeals from the judgment below which vacated a prior judgment entered by confession under the terms of a promissory note. The trial court found that plaintiff failed to properly file a financing statement to perfect his security interest in inventory pledged as collateral for the loan, thereby unjustifiably impairing the collateral so as to discharge the parties to the instrument from liability under section 3 — 606 (l)(b) of the Uniform Commercial Code (hereinafter UCC). Ill. Rev. Stat. 1971, ch. 26, par. 3 — 606(1) (b).

The defendants Ivan L. Anderson and Stanley D. Lee were majority stockholders, directors and officers of the defendant corporation, St. Charles Lumber and Fuel Co. Anderson and Lee negotiated with the plaintiff for a $50,000 loan. Plaintiff made the loan, receiving a promissory note signed as follows:

A security agreement (chattel mortgage) under which the corporation pledged its inventory as collateral secured the loan. The agreement provided that the inventory would be maintained in such an amount that the indebtedness owed by the debtor to the secured party at all times would not exceed 80% of the value of the security.

The note and security agreement were given to plaintiff on February 15, 1966, and he filed the security agreement in the office of the recorder of deeds in Kane County on February 17, 1966. Pie did not, however, file either a copy of the security agreement or a financing statement with the Illinois Secretary of State. No principal payments were made by the St. Charles Lumber and Fuel Co. during the time the Andersons and Lees owned the corporation, but the interest was paid as accrued.

In June of 1968, the Andersons and the Lees sold all of their stock ip the St. Charles Lumber and Fuel Co. to Barrett Paper Co. and resigned as officers. At the time of the sale there was sufficient inventory on hand to satisfy the security agreement made with Wohlhuter. Wohlhuter was made aware of the disposition and sale of the lumber company, and the Barrett Paper Company was informed of the outstanding mortgage on the inventory. The Barrett Paper Company also made a $15,000 payment on the principal of the note to Wohlhuter at that time.

Subsequently, in November of 1969, the St. Charles Lumber and Fuel Co. found itself in financial trouble and sold all of its inventory of plywood and lumber supplies to another company in a bulk transfer. It appears that at the time of this transfer the inventory on hand was sufficient to satisfy the original security agreement. The purchaser was unaware, however, of the Wohlhuter security interest in the inventory, and during the 6 months following the sale the lumber and plywood were consumed.

On July 27, 1970, plaintiff put his note in judgment. The defendants, Ivan L. Anderson, Annette Anderson, Stanley D. Lee and Ann P. Lee filed their motion to open the judgment, and after a hearing the trial court entered the judgment from which this appeal is taken.

The plaintiff contends that his act of recording the security agreement in Kane County instead of filing a financing statement with the Secretary of State as provided by statute (UCC section 9 — 402) was not an impairment of the security pledged by St. Charles Lumber and Fuel Co. under the provisions of the UCC. Furthermore, he contends that the individual defendants accepted his requirement of personal liability as a condition for his loan and cannot now disclaim their personal liability after disposing of their interest in the corporation by making this a corporate obligation.

The defendants argue that because of the plaintiff's failure to file a financing statement in the office of tíre Secretary of State he failed to perfect the security interest which permitted the disposition of the collateral free and clear of any interest therein. Accordingly, they argue that the plaintiffs failure constituted an impairment of the collateral which operated to discharge the parties to the instrument under section 3 — 606 of the UCC.

We do not agree that the question of the impairment of the security is the dispositive issue in the case, however, for we conclude that the defenses enumerated in section 3 — 608 of the UCC, upon which the trial court ruled, are available only to known sureties. The particular defense that there has been an “unjustifiable impairment of collateral” is not available, in our view, to principals and co-makers. Peoples Bank v. Pied Piper Retreat, Inc. (W.Va. 1974), 209 S.E.2d 573, 578; Oregon Bank v. Baardson (1970), 256 Ore. 454, 473 P.2d 1015, 1017.

On its face, UCC section 3 — 606 would appear to apply to any party to the instrument. It appears, however, from the Uniform Commercial Code Comment (Ill. Ann. Stat. ch. 26, par. 3 — 606, at 411 (Smith-Hurd 1963)) that the words “any party to the instrument” were added to remove an uncertainty which arose under the original section as to its applicability to accommodation parties. The suretyship defenses, according to the commentary, “are not limited to parties who are ‘secondarily liable,’ but are available to any party who is in the position of a surety, having a right of recourse either on the instrument or dehors it, including an accommodation maker or acceptor known to the holder to be so.” See also Security National Bank v. Temarantz (N.Y. Sup. Ct. 1969), 6 UCC Reporting Service 157, 158-9.

An accommodation party is one who signs the instrument in any capacity, including the capacity of a maker, for the purpose of lending his name to another party generally. (UCC section 3 — 415. See also Common Wealth Insurance Systems, Inc. v. Kersten (1974), 40 Cal. App. 3d 1014, 115 Cal. Rptr. 653, 663.) An accommodation maker’s basic liability to a holder is identical to that of any other maker. He engages to pay the note according to its tenor at the time of signing. However, the surety status of an accommodation party will give him special de-' fenses (e.g., UCC section 3 — 606) unavailable to the general run of parties on instruments. See White and Summers, Handbook of tire Law under the Uniform Commercial Code 428 (1972). See also Rose v. Homsey (1964), 347 Mass. 259, 197 N.E.2d 603, 605-606.

Whether a party is an accommodation party at the time of signing is a question of fact and intention. (Common Wealth Insurance Systems, Inc. v. Kersten (1974), 40 Cal. App. 3d 1014, 115 Cal. Rptr. 653, 663. See also First National Bank v. Achilli (1973), 14 Ill.App.3d 1, 5). Once status as a maker has been affirmatively established, it is not subject to change. For example, the maker of a note could not recast his role to that of a surety or accommodation maker by selling or transferring the property which secures the note to another party. See Commerce Union Bank v. May (Tenn. 1973), 503 S.W.2d 112, 116.

In Common Wealth Insurance Systems, Inc. v. Kersten, the court found evidence that parties were not accommodation makers in a situation where they had signed a note in then individual capacities, were among the principal stockholders of the corporate signer and where the loan was essential to the preservation of their interest in the corporation. Similarly, there is strong evidence here that Anderson and Lee were not accommodation makers but principals. They were the sole stockholders of the St Charles Lumber and Fuel Co. At the time they made tire loan, it appeared that this loan was important to the preservation of the interest in the corporation, and the note was signed in both a personal and corporate capacity. Furthermore, personal liability to Mr. Wohlhuter has been admitted in testimony as well as in argument. In addition, the stipulation of counsel indicates that at the time the corporation was sold to the Barrett Paper Company, defendants requested a release from their personal and individual liabilities on the note. Although it appears that Wohlhuter refused to give the release, it also appears that defendants included a ‘hold harmless” clause in the sale contract to Barrett to protect them from their individual liability to Wohlhuter. Furthermore, the original promissory note contained a clause stating that “[a]ll signers of this note are principals * #

It appears, therefore, that at the time defendants individually signed the promissory note, they knowingly incurred personal liability and were thus signing in the capacity of co-makers. Accordingly, the defenses enumerated in UCC section 3-606 are not available to them.

Even if it could be argued that defendants believed they signed the note as accommodation parties, it must still be shown that they were in the position of known sureties. And there is no evidence that Wohlhuter possessed or should have possessed any such awareness from the record.

Our finding that the defense of impairment of security under the provisions of UCC section 3 — 606 was unavailable to the defendants disposes of the case without reference to the propriety of the trial court’s finding that the security was impaired by the failure to file the financing statement in the Secretaiy of State’s office. For the reasons that we have stated, the trial court erred in vacating the judgment taken by plaintiff and we therefore reverse.

Reversed.

GUILD and HALLETT, JJ., concur.

       “§ 606. Impairment of Recourse or of Collateral.

      (1) The holder discharges any party to the instrument to the extent that without such party’s consent the holder « * *
      (b) unjustifiably impairs any collateral for the instrument given by or on behalf of the party or any person against whom he has a right of recourse.”

       It is clear that the failure of a creditor to perfect his security interest in collateral, thereby causing the interest to be subordinated to the interest of a third party, constitutes an unjustifiable impairment of collateral which, under UCC section 3 — 606, discharges a party from liability to the extent of the impairment. Peoples Bank v. Pied Piper Retreat, Inc., (W. Va. 1974), 209 S.E.2d 573, 577-8; White and Summers Unifonn Commercial Code 1972, pages 428-9. See also First Bank & Trust Co. v. Post (1973), 10 Ill.App.3d 127; White v. Household Finance Corp. (Ind. Ct. App. 1973), 302 N.E.2d 828; Shaffer v. Davidson (Wyo. 1968), 445 P.2d 13. But compare First Citizens Bank & Trust Co. v. Larson (1974), 22 N.C. App. 371, 206 S.E.2d 775 (finding no unjust impairment in failing to file the financing statement when, as here, the security agreement appears to have given the debtor an option as to whether the financing statement is to be filed).


source: Caselaw Access Project

author: Mr. JUSTICE EBERSPACHER

license: Public Domain

text:
    Albert A. Wells et al., Plaintiffs-Appellants, v. Melvin Kern et al., Defendants-Appellees.
    (No. 74-229;
    Fifth District
    February 6, 1975.
    Thomas Meyer, of Meyer & Meyer, of Greenville, for appellants.
    Robert G. Burnside, of Burnside, Dees & Johnston, of Vandalia, for appellees.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by plaintiffs from a judgment entered after a bench trial for parties defendant by the circuit court of Fayette County.

Plaintiffs commenced this suit by filing a complaint in the circuit court of Fayette County. Subsequently, plaintiffs amended this complaint by filing their first amended complaint. Plaintiffs’ first amended complaint was an action in two counts. Count I alleged that parties defendant “unlawfully” withheld the possession of certain premises located in Fayette County from tire plaintiffs. This count was abandoned by plaintiffs, and a directed verdict in favor of parties defendant was entered on this count by the trial court. Count II alleged that parties defendant held possession of said premises during 1971 and 1972, and that while in possession of said premises they “wrongfully used and abused the items of chattel property and personal property of the plaintiffs” located thereon. After a bench trial, the trial court entered judgment in favor of parties defendant, expressly finding that defendant Melvin Kern was a purchaser in good faith and for value of the hay, straw, shelled com, and silage located upon plaintiffs’ farm.

Having reviewed the record, we find that no error of law appears, that the judgment is not against the manifest weight of the evidence, and that an opinion would have no precedential value.

We therefore affirm in accordance with Supreme Court Rule 23. Ill. Rev. Stat. 1973, ch. 110A, par. 23.

Judgment affirmed.

JONES, P. J., and CARTER, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Mike Neideffer, Defendant-Appellee.
    (No. 74-207;
    Fifth District
    February 7, 1975.

      Donald E. Irvin, State’s Attorney, of Mt. Vernon, for the People.
    Stephen P. Hurley and John H. Reid, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the State, pursuant to Supreme Court Rule 604 (Ill. Rev. Stat. 1973, ch. 110A, par. 604), from an order entered by the circuit court of Jefferson County discharging the defendant for want of prosecution. The sole issue raised on appeal is whether any delay occasioned by the defendant effectively tolled the 160-day statutory period.

On September 16, 1972, the defendant was charged by criminal complaint with the offense of unlawful delivery of a controlled substance and was subsequently indicted for that offense. The defendant was released on bail on November 2, 1972, and on February 9, 1973, filed his motion for a speedy trial. The defendant’s petition for discharge was filed May 2, 1974. The trial court granted the defendant’s petition for discharge, after expressly finding “that as of July 18, 1973, no motions were pending requiring judicial determination, and that from July 18, 1973, to January 24, 1974, no action was taken in this case by either party.”

: The relevant facts show that the defendant was charged by criminal complaint with the offense of unlawful delivery of “200 grams or more” of a controlled substance. This offense was punishable, upon conviction, by a sentence of 10 years to life imprisonment and a fine not to exceed $200,000. (Ill. Rev. Stat. 1971, ch. 56%, par. 1401(a)(5).) The defendant, without counsel, was brought before the trial court on September 18, 1972, and was advised by the trial court that the punishment “* * * upon conviction shall be imprisonment in the penitentiary one to eight years and fined not more than $15,000.00.” The State made no effort to correct this admonition.

On September 21, 1972, the defendant was indicted for unlawful delivery of “less than 200 grams” of a controlled substance in violation of “Paragraph 1401 (a-5), Chapter 56% Illinois Revised Statutes.” On September 22, 1972, the defendant, without counsel, was again brought before the trial court. Although the trial court read aloud the indictment, including the altered language charging defendant with delivery of “less than 200 grams,” it assured the defendant that “the body [of the indictment] is the same as the complaint. That is the charging paid.” The trial court then stated, “Any person who violates this section with respect to (a-5), 200 grams or more * # Penalty: any other amount of a substance is guilty of an offense and upon conviction shall be imprisoned in a penal institution other than the penitentiary for not more than one year or from one to eight years, and fined not more than $15,000.” Thereafter the trial court appointed the public defender to represent the defendant.

The only other recorded court proceedings which transpired prior to April 24,1973, occurred on October 18,1972. Therein the public defender petitioned the court to reduce defendant’s bond; at such time the charge was neither fully stated nor corrected. On April 23, 1973, the State filed a motion to amend the indictment. The State requested that the language of the indictment be changed to state that the defendant’s acts were in violation of “Paragraph 1401(d), Chapter 56V2 of the Illinois Revised Statutes.”

On April 24, 1973, the State appeared in open court and announced that it was ready. Whereupon the defendant made the following declaration,

“I was informed Saturday that the sentence for sale was four to ten. When I was in front of you before, you told me one to three, and I just found out Saturday that the sentence is four to ten, and no chance of probation, so I went over to Carbondale Monday, and talked to Mr. Briggs, an attorney, and he said he would do the case, and he told me to come back here and get it postponed.”

After the trial court contacted Mr. Briggs via the telephone, it noted in the record that Mr. Briggs was now representing the defendant. The trial court then granted the public defender’s oral motion to withdraw. The trial court concluded the proceedings by directing that “the record show that Mr. Briggs did request a continuance, and since he has been only in this case since yesterday, a continuance will be granted, Mr. Neideffer, and the case will be reset very shortly. All right.” No response appears in tire record. The common-law record reflects that the cause was continued generally.

The threshold question before this court is whether the delay resulting from the defendant’s request for a continuance on April 24, 1973, was, in fact, “occasioned by the defendant.” The State contends that delays occasioned by the defendant effectively tolled the 160-day statutory period. The defendant, on the other hand, contends that the motions and requests which delayed the trial of the instant case, although “superficially” chargeable to him, were occasioned by the State.

Our supreme court approached a similar inquiry in People v. Nunnery, 54 Ill.2d 372, 375-76, 297 N.E.2d 129, in the following manner,

“The controlling question in determining if the defendant was entitled to discharge under the 120-day rule is whether the delay of the trial beyond 120 days was ‘occasioned by the defendant/f and if answered affirmatively, he was not entitled to discharge. ‘In determining this question, the criterion in each case is whether the defendant’s acts in fact caused or contributed to the delay. In the' varied fact situations that involve the 120-day rule, we have carefully examined the facts to prevent a ‘mockery of justice’ either by technical evasion of the right to speedy trial by the State, or by discharge of a defendant by a delay in fact caused by him.’ People v. Fosdick, 36 Ill.2d 524, 528-29.”

Generally, a delay caused by a motion of the accused or the granting of his motion is occasioned by him and so tolls the running of the statutory period within which he must be brought to trial. (People v. Hamby, 27 Ill.2d 493, 190 N.E.2d 289.) Of course, a delay must, in fact,' occur as a direct consequence of the defendant’s actions for the defendant to be chargeable. (People v. Gooding, 21 Ill.App.3d 1064, 316 N.E.2d 549; People v. Markword, 108 Ill.App.2d 468, 247 N.E.2d 914.) Moreover, where the motions of the defendant are necessitated by the State’s dilatory actions, the delay is “occasioned by the defendant” only if said defendant fails to act diligently. (See People v. Shields, 58 Ill.2d 202, 317 N.E.2d 529. See also People v. Sharos, 24 Ill.App.3d 265, 320 N.E.2d 351.) Similarly, a delay caused by the inadvertence of the trial court is not to be ascribed to the defendant (People v. Wyatt, 24 Ill.2d 151, 180 N.E.2d 478; People v. House, 10 Ill.2d 556, 141 N.E.2d 12) absent a showing that the resulting delay is otherwise caused by the defendant (see People v. Rogers; 70 Ill.App.2d 474, 217 N.E.2d 344).

In the instant case the defendant was misinformed by the trial court regarding the possible penalty for the offense for which he was charged. The trial court on two separate occasions informed the defendant, appearing without the aid of counsel, that the penalty, upon conviction, for a violation of section 401(a)(5) of the Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56Y2, par. 1401(a)(5)) was 1 to 8 years’ imprisonment and a fine not to exceed $15,000. The State, present on both occasions, neglected to correct such admonitions, preferring, instead, to stand mute. We will not speculate whether the public defender corrected this error, since the defendant’s statement of April 24, 1973, that he had only recently been advised of the proper penalty for a violation of section 401(a)(5), stands uncontradicted. Nor will we speculate whether the defendant would have entered a plea of guilty to the indictment, continued to retain the public defender or otherwise altered his defense if the penalty for a violation of section 401(a) (5) was á sentence of 1-to 8 years’ imprisonment. The defendant had a right to be advised of the correct penalty for the offense for which he stands accused. If not, the defendant is forced to predicate his actions upon knowledge which the law does not presume of him. Under such circumstances the defendant’s actions cannot be said to have been made with even a reasonable understanding of their consequences, as required under our system of jurisprudence.

The fact that the State’s attempted amendment to the indictment would have corrected the trial court’s erroneous admonitions occurred only after the indictment returned by the grand jury, which had remained unamended for 7 months, prompted the defendant to seek private counsel.

The responsibility of the trial court to correctly admonish the defendant and the consequences of any delay caused thereby cannot, in good conscience, be ascribed to tire defendant, especially when the defendant appears without aid of counsel. We, therefore, conclude that the record before us contains sufficient facts from which the trial court could have concluded that the April 24 continuance, although requested by the defendant, was not occasioned by defendant.

Even if we were to hold that the delay caused by the April 24 continuance was occasioned by the defendant, that does not, ipso facto, toll the running of the statutory period indefinitely or require a new demand. (People v. Cornwell, 9 Ill.App.3d 799, 293 N.E.2d 139.) As this court stated in People v. Terry, 24 Ill.App.3d 197, 198, 321 N.E.2d 21, 22;

‘When the defendant filed these motions he was chargeable with delay occasioned by them. Also he had the primary duty of calhng up his motions to suppress. However, this does not justify inaction by the State. Here the State had ample time to call up the motions after it appeared that the defendant was not going to proceed.”

After the continuance granted by the trial court on April 24, 1973, the defendant filed a discovery motion. The State complied with the motion on July 18, 1973. From July 18, 1973, until January 24, 1974, when the State filed a motion for discovery and a motion to produce alibi witnesses, a period in excess of 160-days, the State remained entirely inactive with respect to the instant case. The trial court found that as of July 18, 1973, no motions requiring judicial determination were pending. In view of this express finding and our failure to discover anything in the record to justify or excuse the complete inaction by the State for the full statutory period, we would be inclined, on this basis alone, to affirm the trial court’s discharge of the defendant.

We note in passing that the State’s argument that the defendant’s actions in the spring of 1974 tolled the statutory period is devoid of any merit, since the 160-day period had already expired. See People v. Yates, 17 Ill.App.3d 765, 308 N.E.2d 679.

Therefore, in accordance with the foregoing, we affirm the order entered by the circuit court of Jefferson County discharging the defendant.

Order affirmed.

JONES, P. J., and CARTER, J., concur.


author: Mr. JUSTICE GEORGE MORAN

text:
    A. Wain Westfall, Plaintiff-Appellant, v. Ethel C. Westfall, Defendant-Appellee.
    (No. 74-230;
    Fifth District
    January 30, 1975.
    Sprague, Sprague and Ysursa, of Belleville (John R. Sprague and John R. Sprague, Jr., of counsel), for appellant.
    Sam S. Pessin, of Belleville, for appellee.
   Mr. JUSTICE GEORGE MORAN

delivered the opinion, of the court:

This is an appeal from a judgment of the circuit court of St. Clair County denying plaintiff-appellant’s petition for cancellation or substantial modification of alimony payments appellant was ordered to pay his wife by a former divorce decree.

Appellee was awarded a divorce from appellant on her counterclaim on June 26, 1973, which provided for a division, of the property and $500-per-month alimony to appellee. Appellant filed an appeal which was later dismissed by this court. Thereafter, appellant filed a petition to modify the decree, asking that the alimony payment be cancelled completely or reduced substantially. The same trial judge who granted the divorce reduced the alimony payment from $500 per month to $400 per month.

Appellant contends that the trial court’s refusal to cancel the alimony payment or reduce it substantially was against the manifest weight of the evidence.

The only issue in this case is whether the judgment of the trial court was against the manifest weight of the evidence. We find that the judgment of the trial court was not against the manifest weight of the evidence, that no error of law appears and that an opinion in this case would have no precedential value.

We therefore affirm the judgment of the trial court in compliance with Supreme Court Rule 23 ( 50 Ill.2d R. 23).

Judgment affirmed.

EBERSPACHER and CARTER, JJ., concur.


author: Mr. PRESIDING JUSTICE JONES

text:
    J. Glenn Dunn, Plaintiff-Appellant, v. Landis L. Shepherd, d/b/a Shepherd Insurance Agency, Inc., Defendant-Appellee.
    (No. 74-253;
    Fifth District
    February 11, 1975.

      Hanagan, Dousman & Giamanco, of Mt. Vernon (Paul D. Giamanco, of counsel), for appellant.
    Cochran & Harrison, of Fairfield, for appellee.
   Mr. PRESIDING JUSTICE JONES

delivered the opinion of the court:

This is an appeal from a judgment of the Circuit Court of Wayne County, Illinois, rendered following a bench trial. J. Glenn Dunn, plaintiff-appellant, commenced an action to declare a restrictive covenant in a contract between him and the defendant-appellee, Shepherd Insurance Agency, Inc., unenforceable, for an injunction against defendant’s interference with his sale of insurance and for money damages. Defendant denied plaintiff’s right to relief, and in a counterclaim asked to have plaintiff enjoined from violating the restrictive covenant and for compensatory and punitive damages. The court entered judgment against plaintiff and for defendant, granting defendant’s prayer for an injunction against the plaintiff but denying both compensatory and punitive damages. The defendant did not cross-appeal.

Plaintiff entered into a series of three employment contracts with defendent, each of which contained a covenant not to compete in the event employment was terminated. In the last of these contracts the plaintiff agreed that in the event his employment terminated for any reason he would not solicit insurance orders from defendant’s customers nor would he engage in the business of selling or serving any type of insurance in any capacity within the confines of Wabash, Edwards, Wayne and Lawrence (Counties), Illinois and Gibson and Knox Counties, Indiana, for a period of 5 years from the date of termination.

This is one of a large number of cases which have come before the courts of Illinois since before the turn of the century in which the validity of a covenant not to compete has been considered. The law is well established that such covenants can be enforced. This case, as have most of the others, simply presents to the court a consideration of whether or not the facts either do or do not justify enforcement of the covenant under the rules which have been developed. Briefly, the conditions for supporting a covenant are:

1. That the time limitation be reasonable;
2. That the geographical limitation be reasonable;
3. That trade secrets or confidential information be in the possession of the promisor;
4. That the restriction not go beyond that necessary for the protection of a legitimate business interest;
5. That the covenant not be against public policy in denying to the public service of a kind which is needed.

In the instant case we find that the time and geographical limitations are reasonable in view of the nature of defendant’s business; that a public policy question is not involved; that plaintiff obtained information about defendant’s policy holders and the expiration dates of their policies; that such information has commercial value and when used by plaintiff would work to the detriment of defendant; and that the restriction does not go beyond the bounds necessary to protect a legitimate business interest.

We find no errors of law in this appeal. After reviewing the authorities cited by both parties, we find present those elements of Illinois Supreme Court Rule 23 (Ill. Rev. Stat. 1973, ch. 110A, par. 23) authorizing a memorandum opinion. Therefore, in accordance with Supreme Court Rule 23, we affirm the judgment of the Circuit Court of Wayne County.

Affirmed.

G. MORAN and KARNS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clement West, Defendant-Appellant.
    (No. 73-192;
    Fifth District
    February 4, 1975.

      Paul Bradley and Gordon Berry, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville (Raymond F. Buckley, Jr., of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the defendant, Clement West, from the orders' entered by the circuit court of Madison County denying defendant’s post-trial motion for a judgment n.o.v. or, in the alternative, for .a new trial, and sentencing the defendant to 6 to 12 years’ imprisonment.

The defendant contends that error occurred in the procedures followed at the hearing on the defendant’s motion to suppress, that the State failed to prove by the preponderance of the evidence that the statement was made voluntarily, and that the minimum sentence imposed upon the defendant must be reduced to 4 years. For the purpose of discussing the first two of defendant’s contentions we will assume ad arguendo that defendant’s alleged statement to police that he did wield a pistol while attempting to commit a robbery was material to the State’s case against him.

The two procedural errors defendant alleges to have occurred at his hearing on his motion to suppress concern the imposition of an inverse burden of proof and the failure of the State to produce all material witnesses. The defendant correctly asserts that the State has the burden of proving that the defendant’s statement was made voluntarily. (Ill. Rev. Stat., ch. 38, par. 114 — 11; People v. White, 22 Ill.App.3d 180, 317 N.E.2d 323.) The defendant’s allegation that the trial court “treated the defendant as party having” the burden of proof derives its origin from the fact that the trial court instructed the defendant, who although advised by counsel was appearing pro se, to call the first witness.

When a motion is made to suppress a confession on ground that it is not voluntary, the burden of going forward with evidence and of proving voluntariness is on the State, but the duel burdens do not have to be met simultaneously. (People v. Smith, 71 Ill.App.2d 446, 219 N.E.2d 82, cert. denied, 386 U.S. 910.) Where the State makes prima facie showing that a confession was voluntary, the burden of producing evidence to show that confession was involuntary shifts to the defense and shifts back to the State only when defendant has produced evidence. (People v. Smith; People v. White, 22 Ill.App.3d 180, 317 N.E.2d 323.) While the trial court erroneously instructed the defendant to call the first witness, we do not believe that it necessarily follows that the trial court placed upon the defendant the burden of proving the involuntariness of the statement in question. Notwithstanding the fact that defendant here was required to proceed first, defendant elicited testimony from two officers that established a prima facie case of the voluntariness of the alleged confession. Both testified that defendant was advised of his rights several times. The trial court’s closing remarks further repudiate the defendant’s argument that the trial court improperly placed the burden of proof upon the defendant. Before rendering its decision the trial court read the following statement from a case referred to by the trial court as “People v. James Thorns, 83 Ill.App.3d 709, p. 713”:

It is clear that once the Miranda warnings have been given and an individual indicates in any manner prior to or during questioning that he wishes to remain silent, that the interrogation must cease. Citing Miranda vs. Arizona, 16 Law. Ed. 694. However, here the defendant did not indicate in any manner that he wished to remain silent, but merely refused to sign the form which set up the various waivers. He indicated that if he did give a statement he would do it with the rights that were explained to him in mind, and he thereafter willingly answered questions. The refusal to sign the waiver was insufficient by itself to establish the fact the [sic] defendant wished to stop interrogation. See People vs. Dooley, 42 Ill.2d 148. The totality of the circumstances surrounding the giving of the statement clearly shows that the narrative was given willingly. See People vs. Williams, 131 Ill.App.2d 149, 264 N.E.2d 901. Klingler vs. United States, 8th Circuit Court of Appeals, 409 Fed.2d 299.”

The foregoing quotation accurately reflects the language embodied in People v. Starnes, 8 Ill.App.3d 709, 713, 289 N.E.2d 264. Significant is the fact that this quotation embraces the “totality of the circumstances” test and indicates that the court in Starnes found “that the narrative was given willingly.” It would be highly improbable that after reading this quotation the trial court would impose upon the defendant the burden of proving the involuntariness of the statement in question. The probability of the trial court’s imposition of an inverse burden of proof is rendered even more improbable by the trial court’s closing statement:

“I feel that under the testimony that’s been presented to the Court here today, and under the totality of the circumstances, I do not feel that the failure of the signature of a waiver of rights was sufficient to stop the interrogation. I feel that the testimony exhibited and presented in Court today is sufficient enough to satisfy this Court that this man was advised of his rights, and that the oral statement that allegedly was taken was done so with an understanding of his rights. Defendant’s Motion to Suppress will be denied.”

In view of these statements, we are compelled to conclude that the trial court’s error in instructing the defendant to call the first witness did not result in the improper placement of the burden of proof or otherwise taint this proceeding.

The defendant also contends that the trial court erred by fading to require the State to produce all material witnesses. As a general rule, when the voluntary nature of a confession is brought into question, tire State must produce all material witnesses. (People v. White, 22 Ill.App.3d 180, 317 N.E.2d 323.) Defendant cannot, however, object on appeal that the State did not produce all material witnesses at a hearing on the motion to suppress an alleged confession as involuntary where he failed to object in the trial court. (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 11(d); People v. White, 22 Ill.App.3d 180, 317 N.E.2d 323.) Since the defendant in the instant case, who was advised by counsel, did not object to the State’s failure to produce all material witnesses at the hearing on his motion to suppress, we will not entertain such objection for the first time on appeal.

Next, the defendant contends that the State failed to prove by the preponderance of the evidence that the statement in question was made voluntarily. In response to the question: “Assuming you were read these rights, did you make any response to the policeman that read you these rights?” the defendant stated: “Yes, one statement, which was that I understood what it meant — that I didn’t want to make no statement.” Defendant later reiterated: “I recall that I told her [Officer Towse] that I did not want to make a statement.” The defendant argues that the testimony of Officer Towse confirms his position that he exerted his right to remain silent. The basis for the defendant’s argument is the following colloquy,

“A. [Officer Towse] Yes. They asked who was with you, because we had information that someone had run from the building.
Q. [Defendant] And what was said?
A. Well, you said you didn’t want to tell us that right then.
Q. I wouldn’t say anything?

A. Right.”

If these were the only responses given by Officer Towse relating to the alleged incident, we would be inclined to agree with the defendant that the State has failed to sustain its burden of proof. However, later Officer Towse responded in the following manner,

“Q. [Defendant] When they arrested me and put me in the car— when they kept asking me to repeat — about whether I wanted to say anything — why did they keep on asking me after I said I did not want to make no statement? That I wasn’t going to say nothing.
A. [Officer Towse] I didn’t testify to that.
Q. You weren’t in the car?
A. Yes. I was in the car.
Q. And you can’t remember none of this?
A. I don’t — after they read you your rights, you didn’t want to make a statement. Whenever they asked who was with you, you said you didn’t want to tell them at that time.”

The preceding colloquy raises doubt whether the defendant expressed a desire to remain silent or merely refused to identify an alleged accomplice. We believe this discrepancy was eliminated by Officer Towse’s following statement, “I’d like to correct one thing. Never at any point did you say you didn’t want to say anything. * * a.” It was within the province of the trial court, which was sitting as the trier of fact, to determine whether Officer Towse’s testimony was more credible than that of the defendant. Moreover, it is our opinion that when Officer Towse’s testimony is combined with testimony of Officer Park, who testified, “He [defendant] told us he didn’t want a lawyer and he would talk to us about it [the alleged robbery],” the trial court, as the trier of fact, was justified in finding that the State met its burden of proving by the preponderance of the evidence that defendant’s statement was offered voluntarily. We will not disturb this finding unless it is contrary to the manifest weight of the evidence (People v. White, 22 Ill.App.3d 180, 317 N.E.2d 323); this has not been demonstrated.

Even if we were to decide that defendant did assert his right to remain silertt immediately after arrest, we believe he later waived it at the police station. In the case of People v. Burbank, 53 Ill.2d 261, 291 N.E.2d 161, cert. denied, 412 U.S. 951, the defendant was first advised of his rights in the squad car after his arrest and told the officers that he had nothing to hide. He was again advised of his rights at the police station, at which time he told the officers of his involvement in the crime. The evidence was that the defendant understood his rights. Under these circumstances our supreme court upheld defendant’s conviction for murder over his objection that his confession was not given with the intention to waive his constitutional right, declaring:

“Once an accused has been advised of his rights and indicates that he understands them, his choosing to speak and not to request a lawyer is evidence that he knows his rights and chooses not to exercise them. [Citation Omitted.]” (53 Ill.2d 261, 266.)

The fact that defendant here refused to sign a form waiving his rights is insufficient by itself to establish that defendant wished to stop the interrogation. (People v. Starnes, 8 Ill.App.3d 709, 289 N.E.2d 264; see People v. Williams, 131 Ill.App.2d 149, 264 N.E.2d 901.) Before the interrogation, Detective Parker gave the defendant a thorough and comprehensive reading of his Miranda rights, including his right to remain silent, demand a lawyer and refuse to answer any questions. The defendant indicated that he understood his rights and was familiar with both booking procedures and rights forms. Detective Parker testified that defendant indicated he did not want a lawyer and would talk to the officers about the alleged armed robbery. Officer Towse stated that the defendant appeared to understand his rights and that he said he understood them. Although defendant contradicts much of the two officers’ testimony, sufficient evidence exists in the record for the court below to find the officers’ testimony more believable than the testimony of defendant, and, consequently, a finding that defendant made the alleged oral statement with an understanding of his rights is justified.

Finally, the defendant contends that the minimum sentence imposed by the trial court, 6 years, must be reduced to 4 years. While it is true that this court has long recognized the pragmatic advantages of the one-to-three ratio in sentencing, as recommended by the American Bar Association, and made mandatory for Class 2 and Class 3 felonies (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(3), (4)), our legislature has seen fit to omit any requirement that a sentence imposed on a Class 1 felony be so restricted (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c) (2)). The defendant in the instant case was charged with, and convicted of, armed robbery, a Class 1 felony. The minimum sentence there is 4 years “* * * unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term.” Ill. Rev. Stat. 1973, ch. 38, 1005 — 8—1(c)(2).

The record in the instant case reveals that the defendant had compiled an extensive juvenile arrest record, had previously been sentenced to serve a term for burglary, had violated his parole on the burglary charge, and had committed the instant offense just shortly after completing his sentence for burglary. The record also reveals that during the course of the commission of the instant offense one person was injured when he was struck on the head with what he thought was a gun. In view of these factors, which were brought to the attention of the trial court at the defendant’s hearing in aggravation and mitigation, we cannot say that the trial court abused its discretion in imposing a sentence in excess of the 4-year minimum provided by statute. Consequently, we will not reduce the sentence of 6 to 12 years imposed upon the defendant for the offense of armed robbery.

The judgment of the circuit court of Madison County is, therefore, affirmed.

Judgment affirmed.

JONES, P. J., and CARTER, J., concur.


text:
    Ralph Layton, Plaintiff-Appellant, v. Russell Miller, Defendant-Appellee.
    (No. 74-171;
    Fifth District
    January 29, 1975.

      Robert L. Douglas, of Robinson, for appellant.
    Harlan Heller and William E. Larrabee, both of Harlan Heller, Ltd., of Mattoon, and E. H. Price, of Robinson, for appellee.
   Mr. PRESIDING JUSTICE JONES

delivered the opinion of the court:

This is an appeal from an order dismissing a petition for “custody” of three minor children. The petitioner alleges that he is the uncle of the children whose ages are 4, 5, and 7 years.

We are concerned only with the sufficiency of the petition to state a cause of action cognizable by the trial court. A brief statement of the facts is necessary, but because of their fragmentary presentation on the record before us, such statement can at best be sketchy. The petition was dismissed by the trial court upon motion of the respondent, and petitioner, rather than amend, apparently chose to stand on his petition and brought this appeal. In the ordinary case we would be strongly inclined to affirm the dismissal for the reason, that the petition is woefully insufficient, but for reasons hereinafter assigned we choose to reverse and remand.

Prior to October 1971, custody of the three minor children involved in this case was with their parents, Gerald Miller and Sharon Miller. In October 1971 Gerald Miller was sentenced to the penal farm at Vandalia, Illinois, and custody of the children then remained with the mother until her death on July 4, 1972. Following their mothers death the children were placed in the custody of their maternal grandmother, Evelyn Layton, pursuant to a writ of habeas corpus issued by the Circuit Court of Crawford County. Gerald Miller was released from the penal farm in July 1972, following which he resided with his parents. On March 21, 1973, a hearing was held in the Circuit Court of Crawford County in a consolidation of three separate causes, (1) In the Matter of the Guardianship of Jerry David Miller, Terry Jo Miller, and Gary Lee Miller, No. 72-P-57; (2) The People of the State of Illinois ex rel. Jerry David Miller, Terry Jo Miller, and Gary Lee Miller, by Evelyn E. Layton their Maternal Grandmother and Next Friend, Petitioner, v. Russell Miller, Respondent, No. 72-MR-3; and (3) In the Estate of Sharon May Miller, Deceased, No. 72-P-71. Pursuant to the hearing the court entered an order on May 30, 1973, dissolving the writ of habeas corpus, appointing Russell Miller (the paternal grandfather) as guardian of the persons of the children and granting him custody, and, finally, appointing Mark Webber as guardian of the estates of the children.

On December 13, 1973, the petition in question was filed. We will not dwell at length upon its deficiencies but it suffices to say that it is wide of the mark of “a plain and concise statement of the pleaders cause of action” called for by section 33(1) of the Civil Practice Act. (Ill. Rev. Stat. 1973, ch. 110, par. 33(1).) The petition alleges the natural grandparents (sic) gave custody of the children to their natural father, contrary to court order, and that, the “grandparents [in the plural] who are the guardians of the children are in contempt of court and an order to show cause should be issued * * In paragraph 8 of 14 paragraphs the petitioner prays that the court will place “custody” of the children with him as opposed to the grandparents. Paragraph 9 charges that “the grandparents of the guardian of the person have failed to cooperate with the guardian of the estate * * *.” Paragraph 10 states that “because of the misheathen, malheathens, and failure to comply with the orders of this Honorable Court the said Russell Miller is unfit to continue in his duties and obligations of the person of the minor children * * There is no formal prayer for relief as required by section 34 of the Civil Practice Act; petitioner never asks that the personal guardian be removed nor that petitioner be appointed guardian of the person of the children.

Respondent filed a motion to dismiss the petition upon the grounds that there was a final and complete determination of all matters concerning the guardianship and custody of the minor children which was concluded by the order appointing a guardian entered on May 30, 1973, and that order is res judicata as to the petition. The motion also asserted that the petitioner is an improper person and without standing to bring the action.

On April 8, 1974, the circuit court, after hearing argument, entered an order in which its only finding was that the motion to dismiss should be granted, and the petition was accordingly dismissed. This appeal followed.

The respondent filed a motion to dismiss the appeal upon the grounds that the record did not contain a report of proceedings of the original appointment of guardian and other proceedings which culminated in the order of May 30, 1973. The argument is not well taken and the motion to dismiss is denied. The instant proceeding is not a continuation of those cases and it is apparent that the original appointment of guardian was not disputed. The order of appointment of a guardian cannot be res judicata as to matters arising subsequent to its entry. Inherent in the continuing wardship of the minors is the possibility of additional litigation over their custody and welfare. The statute providing for the removal of guardians for cause, section 276 of the Probate Act (Ill. Rev. Stat. 1973, ch. 3, par. 276), is plain recognition of that fact.

It is regrettable that the petitioner did not see fit in the preparation of his petition to follow the statute provided for removal of guardians (Ill. Rev. Stat. 1973, ch. 3, par. 276-288) or for appointment of himself as successor guardian (Ill. Rev. Stat. 1973, ch. 3, par. 137).

While it is understandable that the trial court would dismiss the petition under review, we cannot understand why petitioner would elect to stand on such a petition and appeal rather than obtain leave to amend. Perhaps the answer lies with the grounds of alleged defects advanced by respondent in his motion to dismiss, none of which are sufficient. But we need not be concerned with the reason for the abrupt termination of the proceeding below. Were we to follow the indicated path there would be an affirmance and a termination of the matter. As stated above, that is our inclination. But we perceive an element in the case that has evoked further, more careful consideration. Our attention has focused on paragraphs 5, 6 and 7 of the petition. Those paragraphs allege that after the children were delivered into the custody of their natural father they were living in the city of Marshall, Clark County, Illinois, that they did not receive proper food and clothing, that they were living on the back porch of a home without windows, screens or other protection from the elements such as flies, insects and other vermin that appear in and about said place, and that tire children were not bathed or cleaned and were permitted to wear clothing that contained filth and vermin, which was unhealthy and contributed to the debilitation of the children.

Because these are minor children of tender age and they are and remain wards of the court, the court should be especially attentive to any assertions that improprieties are taking place that affect the welfare of the children or which tend to show that they have come into any adverse situation. It is the public policy of this State that rights of minors be carefully guarded. No citation of authority need be given to state that one of the cardinal precepts of our law is that in any court proceeding involving minors their best interest and welfare is the primary concern of the court. When serious charges of neglect or abuse are addressed to the court, even in an instrument so imperfectly drawn as the petition in the present case, a duty devolves upon the court to satisfy itself that minor children who are its wards are being cared for in a proper manner and that they are not suffering neglect, abuse or privation. In view of the continuing nature of the wardship, under the discretionary authority vested in the court, appropriate measures should be taken to determine that the best interests of the minor children are in fact being served.

Accordingly, we remand this case to the trial court for further proceedings. That court should order a repleader pursuant to section 42(1) of the Civil Practice Act in order that the petitioner may have an opportunity to amend his petition to seek removal of the present guardian and appointment of himself as successor guardian, if that is his aim. In the event the petitioner fails or refuses to replead so that the issues concerning the neglect and deprivation of the children are presented to the court for adjudication, then the court should proceed under its own authority to cause an investigation to be made.

Such a course of conduct is especially desirable because the children are already the wards of and under the supervision of the court. The inquiry may be pursued through authority conferred by the Probate Act. Section 139 of that statute makes it clear that the guardian of the person of a minor shall exercise the- customary nurture and tuition of his ward under the direction of the court. Or, at the discretion of the court, resort may be had to the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 701 — 1 et seq.) and the powers of protection of minor children conferred by that statute. See People ex rel. Houghland v. Leonard, 415 Ill. 135, 112 N.E.2d 697.

The respondent argues that the guardian of the estates of the three minors was not made a party to the instant petition and the jurisdiction of the court was faulty. It is true that section 141 of the Probate Act provides that a guardian of the estate of a minor shall appear for and represent his ward in all regular proceedings unless the court in the exercise of its discretion appoints another to that duty. Whether the guardian of the estate of the minor must appear in litigation looking to the removal of the guardian of the person of the minor we need not determine, for section 141 of the Probate Act confers upon the court a broad discretion in the appointment of a guardian ad litem. In the instant case, clearly a guardian ad litem should be appointed to represent the minors, and no reason appears why it could not be the same attorney who was originally appointed as guardian of their estate. However, the court should be careful that there be no conflicting interests between the minors and the person representing them. Patterson v. Pullman, 104 Ill. 80.

The respondent further complains that the petitioner is an improper person and is without standing to intercede in behalf of the minors and that the petition does not allege any of the grounds for removal of a guardian enumerated in section 276 of the Probate Act. These arguments, too, are untenable. Section 133 of the Probate Act permits the filing of a petition for appointment of a guardian by any reputable citizen of this State or permits the court to proceed on its own motion whenever appointment of a guardian becomes necessary or convenient. Certainly a maternal uncle of minor children would come well within the range of qualified persons. With regard to the grounds for removal of a guardian, the allegations of neglect and deprivation of the children are sufficient to constitute “other good cause” for removal as specified in section 276(a) (10) of the Probate Act.

There is one further matter in this case that commands our attention. In the petitioners brief the following language appears: “By nothing but the most reprehensible judicial fiat can this Court deny this petitioner, etc.” This language is strong, unwarranted, even scurrilous, and we consider it an attack on tire integrity of this court. Such language should not be employed since the only purpose it can serve is to inject acrimony into the proceeding; it can add nothing to assist the court in its deliberations in an attempt to find the just and reasonable solution to the problems present. Counsel is requested to desist from the use of such language in the future.

Reversed and remanded with directions.

KARNS and CARTER, JJ., concur.


author: Mr. JUSTICE CARTER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Patton, Defendant-Appellant.
    (No. 73-277;
    Fifth District
    February 3, 1975.

      Robert Farrell, of Mt. Vernon, and Steven Clark, of Chicago, both of State Appellate Defender’s Office, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Robert L. Craig, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

The defendant-appellant was indicted for the crimes of rape and aggravated kidnapping, and he was tried before a jury. After being found guilty of both charges, a sentence of from 20 to 60 years was imposed for rape. No sentence was imposed on the aggravated kidnapping charge.

On appeal the defendant contends that he was denied effective assistance of counsel, he was improperly convicted of two offenses arising from the same conduct, and his sentence was excessive.

The basis of defendant’s claim concerning the competency of counsel is that counsel failed to offer an instruction to the jury on the defense of compulsion even though the defendant testified that he was forced by another person to aid in the commission of the crime. The alleged incompetence of appointed counsel will not require reversal unless the attorney demonstrates “actual incompetence * * * as reflected by the manner of carrying out his duties as a trial attorney and * * * substantial prejudice results therefrom, without which the outcome would probably have been different.” People v. Gill, 54 Ill.2d 357, 363-64.

A complete examination of the record is necessary to determine whether there was sufficient evidence supporting the defense of compulsion and whether the outcome would probably have been different if such an instruction had been offered.

The prosecutrix was 17 years old and a senior in high school. She testified that the following events took place when she left her home on January 29, 1973. About 8:30 P.M. she walked through her yard and onto a parking lot near a shopping center which was her destination. A car stopped in the parking lot, and one person got out of the car, put a gun to her head and said, “Get in the car and don’t scream or I’ll shoot you.” She and the man with the gun got into the back seat, and a second individual drove the car. Her head was forced onto the floor, and several minutes later she was struck on the head with the gun. The gunman instructed the driver as to directions. After about 15 or 20 minutes the car was stopped, and one of the individuals found a rag that was applied to her head to stop the bleeding. A few minutes later both men raped her in the car with the driver of the car, who was called Melvin by the gunman, being the first to perform the act. Although her face was concealed part of the time, she was able to see somewhat and also able to distinguish one of the men from the other. After driving a short distance, the individual called Melvin pushed her out of the car and he then got out and told her that there was a police station down the street. He then ran off. She went to a nearby house for help and was then taken to her own home. Later she was taken to a hospital by her family. She viewed a police line-up about 2 weeks later at which time she identified defendant as one of the men who raped her.

On cross-examination, the prosecutrix stated that the defendant never had a weapon; that he found the rag for her head to stop the bleeding; that she saw the defendant when he reentered the car and the dome light went on; that she was certain that both men had intercourse with her; that after the rape, it was defendant who got out of the car and guided her in the direction of the police station.

The only other witness to testify for the prosecution was Kenneth McCoy, an East St. Louis police officer. He identified People’s Exhibit No. 1 as a statement by the defendant made 2 weeks after the incident to McCoy and Sergeant Morrison of the East St. Louis Police Department. The statement was then read in open court, and it confirmed the prosecutrix’s testimony with the exception that the defendant denied having intercourse with the prosecutrix. The defendant also told McCoy that his companion raped the prosecutrix in the back seat while the car was moving.

The testimony of McCoy indicated that defendant never told' him that he may have been under duress or coercion during the evening in question. McCoy also identified defendant’s Exhibit No. 1 as a police report which included a statement made to the police by the prosecutrix. The report stated that the prosecutrix was raped by a man with a gun.

The defendant was the only witness to testify during his case-in-chief. He stated that he was 17 years old and on the evening in question -was riding with his companion in his car. He claimed that he objected to his companion’s suggestion that they rape the prosecutrix. His version of the incident was substantially the same facts as included in People’s Exhibit No. 1, the statement made by the defendant to the police. The defendant denied having sexual intercourse with the prosecutrix, and he also stated that his companion was pointing the gun at him when he, the companion, raped the prosecutrix.

As a rebuttal witness, McCoy testified that the defendant never indicated to him that he, the defendant, was forced against his will to do anything on the night in question. Bruce Morrison, a sergeant with the East St. Louis Police Department, testified on rebuttal that he was present when the defendant made his statement to McCoy and that defendant never stated he was forced unwillingly to participate in the incident in question. There is no question that an instruction regarding a defense should be given when requested even where there is only “very slight evidence” supporting the defendant’s theory. (People v. Kucala, 7 Ill. App.3d 1029; People v. Keating, 2 Ill.App.3d 884.) In light of defendant’s testimony, a compulsion instruction should have been given if one had been tendered.

The defense of the defendant was based on compulsion, as indicated by defense counsel’s opening and closing statements, and the fact that defendant admitted that he aided his companion in the perpetration of the offense. Counsel’s failure to tender an instruction was inexcusable. However, an examination of the record reveals that counsel’s failure to offer a compulsion instruction did not constitute incompetence. Defense counsel prior to trial filed three motions to suppress, and five witnesses were examined on these motions. The cross-examination of the prosecutrix had to be a delicate task under the circumstances, and defense counsel accomplished it with more than average skill. A study of the record and the transcript of proceedings demonstrates to this court that defense counsel was well prepared and provided the defendant with very competent representation.

Counsel’s failure to tender an instruction on the defense of compulsion did not result in prejudice “without which the outcome would probably have been different.” The jury was instructed on the theory of accountability as follows:

“A person is responsible for the conduct of another person when, either before or during the commission of a crime and with the intent to promote or facilitate the commission of a crime, he knowingly solicits, aids, abets, agrees or attempts to aid the other person in the planning or commission of the crime.” (Emphasis added.)

If the jury believed that the defendant did not rape the prosecutrix but found that the defendant was accountable for the actions of his companion, the jury must have found that the defendant had “the intent to promote or facilitate the commission of a crime.” If the jury believed the defendant had such an intent, it does not seem plausible that they would have found in favor of the defendant as to the defense of compulsion had the proper instruction been given.

The two East St. Louis police officers testified that the defendant never indicated to them that he, the defendant, may have been under duress or coercion during the evening in question. The defendant on the witness stand did not testify that he actually feared death or serious bodily harm if he did not follow the instructions of his companion. The defense of compulsion is not applicable in a situation in which there was no apprehension of death or serious bodily harm (People v. Ricker, 45 Ill. 2d 562; People ex rel. Rusch v. Rivlin, 277 Ill.App. 183). The defendant did testify that his companion pointed a gun at him on two occasions. However, defendant did not testify that he was afraid, and given the fact that the defendant and his companion were friends, it was not likely that the jury would have found in favor of the defendant had they been instructed as to the defense of compulsion.

In People v. Morris, 3 Ill.2d 437, 449, 121 N.E.2d 810, discussing deprivation of due process of law because of alleged incompetence of appointed trial counsel the court observed:

“* * * based both on precedent and reason, we believe that in order to sustain his position here the defendant must clearly establish: (1) actual incompetency of counsel, as reflected by the manner of carrying out his duties as a trial attorney; and (2) substantial prejudice resulting therefrom, without which the outcome would probably have been different. Due to the nature of the inquiry it is hardly possible to be more definite, and each case will have to be judged on its own particular facts as they appear in the context of the proceedings under consideration.”

Consequently, we find that counsels failure to tender an instruction on the defense of compulsion did not create prejudice “without which the outcome would probably have been different.”

The second point in defendant’s appeal is that he was improperly convicted of two offenses arising from the same conduct. Even though the jury found him guilty of both offenses, the defendant was sentenced only for the offense of rape. He thus alleges that the aggravated kidnapping conviction should be reversed in that it arose from the same conduct that supported the rape conviction.

The same situation arose in People v. Jones, 6 Ill.App.3d 669. The court held in that case that the offenses of aggravated kidnapping and rape are separate and distinct crimes and require different elements of proof. That the kidnapping would be aggravated due to the commission of the rape would not render them the same for prosecution. Our supreme court in People v. Johnson, 44 Ill.2d 463, laid down some clear guidelines for decisions when defendants claim that one conviction should be reversed because it arose from the same conduct that supported another conviction. It said:

“However proper the application of the above statutory provisions may be in cases which would involve double punishment for. tihe same conduct where the same identical evidence is the basis for the finding of guilty of both charges, we believe they were not intended to cover situations in which more than one offense arises from a series of closely related acts and the crimes are clearly distinct and require different elements of proof.” (44 Ill.2d 463, 475.)

In that case, the court found that crimes of rape and burglary were separate and distinct crimes requiring different proof to sustain them. While we recognize that the acts of the defendant were not wholly unrelated, nevertheless, the two offenses involved two different mental states. The conduct constituting the offense of kidnapping was the abduction of the victim against her will, and then in a remote area 15 or 20 minutes later, the prosecutrix was raped by the defendant; thus defendant’s claim that he was improperly convicted of two offenses arising from the same conduct is without merit.

In the instant case, the jury returned a general verdict of guilty, and the defendant was not sentenced on each count. As stated in People v. Lymore, 25 Ill.2d 305, 308:

“This court has also held that in a case where an indictment contains several counts arising out of a single transaction, and a general verdict is returned, the effect is that the defendant is guilty as charged in each count, and if the punishment imposed is one which is authorized to be inflicted for the offense charged in anyone or more of the counts, the verdict must be sustained.”

Accordingly, the two convictions against the defendant are upheld. However, the mittimus issued by the trial court indicates that the defendant was sentenced for both offenses, while the trial court specifically stated that a sentence was not being imposed for the offense of aggravated kidnapping. Thus the mittimus is amended wherein the words “and aggravated kidnapping” is stricken.

The defendant’s final contention is that the sentence of 20 to 60 years is excessive. He cites the 1970 Illinois Constitution as follows:

“All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” (Ill. Const. (1970), art. I, §11.)

We agree with this contention; the defendant was 17 years old at the time of the offense, and he had no record of a prior conviction. As a juvenile, he escaped from The Giant City Youth Development Center in 1972. No evidence was presented at the sentencing hearing.

Considering the testimony at the trial and the gravity of the crime, the trial court was justified in imposing a minimum sentence in excess of 4 years. However, it is unrealistic to believe that a youth may successfully participate in a worthwhile program of rehabilitation in the Department of Correction with a sentence of 20 to 60 years to look forward to. The language in People v. Jones, 6 Ill.App.3d 669 is applicable. The court in Jones stated at page 687:

“* * * does not indicate that the best interests of society or of the defendants would be served by foreclosing them from the possibility of rehabilitation by being considered for parole before serving 20 years, less time for good behavior. The parole authorities should be given an opportunity to consider their possibilities of rehabilitation at a time when rehabilitation is still possible and at a time and age when it may be possible for them to make it’ outside the walls of an institution.”

Therefore, we affirm the judgment of conviction, modify the sentence, and remand this cause for issuance of an amended mittimus to show that the defendant was sentenced only for the crime of rape, and a reduction of the minimum to 10 years and the maximum of 30 years.

The judgment of the Circuit Court of St. Clair County is affirmed as modified; the cause remanded with directions.

EBERSPACHER and CREBS, JJ., concur.


author: Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Nathaniel Turner, Defendant-Appellant.
    (No. 74-153;
    Third District
    February 13, 1975.

      Klockau, McCarthy, Lousberg, Ellison & Rinden, of Rock Island (Peter Lousberg, of counsel), for appellant.
    Donald C. Woolsey, State’s Attorney, of Galesburg, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Knox County denying a petition of Nathaniel Turner for post-conviction relief pursuant to section 122 — 1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 122 — 1). On defendant’s prior direct appeal to this court, his conviction and sentence were affirmed. People v. Turner, 15 Ill. App.3d 139, 303 N.E.2d 768.

In January, 1972, defendant, Nathaniel Turner was charged by complaint with aggravated battery. The facts and circumstances giving rise to the criminal charge are described in People v. Turner, 15 Ill.App.3d 139, 303 N.E.2d 768, and need not be repeated in this opinion. After his motion for appointment of counsel was denied, defendant retained counsel who thereafter represented him in the trial court and on the preceding appeal to this court. Defendant pleaded guilty in June, 1972, and requested probation. A probation hearing was held, probation was denied and defendant was sentenced to 1 to 3 years in the penitentiary, the minimum term provided by statute.

On this appeal defendant raises three principal issues. First, defendant argues the attorney who represented him was incompetent and failed to provide him with effective representation. Second, according to defendant, the court failed to properly admonish him of his rights as required by Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402). Finally, defendant insists the sentence imposed was contrary to article 1, section 2, of the Illinois Constitution of 1970.

After defendant filed his petition for post-conviction relief in January, 1974, the court conducted a 2-day hearing. At this time the court heard testimony presented by defendant in support of his petition as well as testimony in opposition thereto, including the testimony of the Knox County State’s attorney and the attorney who had originally represented defendant. With respect to his claim that his original attorney was incompetent, defendant claims that this conclusion is required as a matter of law because his counsel should have undertaken plea bargaining; should have secured an agreement from the State’s attorney before permitting him to plead guilty; should not have guaranteed that he would receive probation; should have moved to withdraw his guilty plea when the State’s attorney recommended a jail sentence; should not have advised him to plead guilty when he had a defensible case; should have advised him of his legal rights and the nature of the criminal process; and finally, should have assigned as error on his direct appeal the failure of the trial court to comply with Supreme Court Rule 402.

As noted earlier, when defendant first appeared in court in response to the charge he requested the appointment of counsel. This request was denied, the court apparently concluding that defendant was not indigent, and thereafter defendant retained counsel. Defendant did not know any attorneys, and the attorney who did represent him was recommended by defendant’s employer. It is well settled where a defendant is represented by counsel of his own choice, incompetency of counsel violative of constitutional rights requires a showing of representation of such a low caliber that it reduces the court proceedings to a farce or sham. (People v. Stanley, 50 Ill.2d 320, 278 N.E.2d 792.) As the defendant points out, although this rule is frequently announced in terms which imply a different standard of competency for counsel selected by defendant from that required of counsel not selected by defendant, the cases do not in fact set forth any meaningful distinction in the standard of competence required. We agree the cases on the subject are of doubtful support for any precise rule which permits counsel personally selected to meet some lesser standard of competence which is sufficient to meet constitutional standards. Rather, we believe the reference to the manner of selecting an attorney is merely one of the background facts or circumstances from which the character and quality of the legal assistance rendered by counsel must be viewed. Consistent with this view, we believe the fact in the instant case that the attorney selected by the defendant was one recommended by somone else is not of critical importance on the issue of incompetency of representation. See People v. Cornwall, 3 Ill.App.3d 943, 277 N.E.2d 766.

From the nature of the reasons now advanced by defendant in support of his claim that he did not receive effective assistance of counsel, there can be little doubt but that the defendant is primarily concerned about his failure to receive probation. Both defendant and his counsel had the expectation defendant would be granted probation, and when this expectation was not realized, the reasons for such failure of expectation became couched in terms of incompetency of counsel.

We have reviewed the reasons detailed earlier in this opinion and conclude the evidence in the record is sufficient to support the trial court’s determination that the defendant was not represented by incompetent counsel. The first reason advanced by defendant in support of his argument is, we believe, central to the issues presented on this appeal, and whether the issues are considered singly or cumulatively, they do not support defendant’s contention that his legal representation was a sham or a farce.

The principal reason for claiming incompetency of his counsel is defendant’s assertion that his counsel was under a duty to negotiate for a recommendation of probation by the State’s attorney in return for defendant’s plea of guilty. Where, as in this case, the sentencing expectation was not realized, it is not unreasonable for the defendant viewing the circumstances by way of hindsight to believe that somehow or other he should and could have secured a different recommendation from the State’s attorney which would have been approved by the court. Such retrospective reconsideration of past alternatives does not render such prior conduct incompetent. From the record, it appears defendant’s counsel did have conversations with the State’s attorney and in fact had ascertained that if there was to be a trial to determine defendant’s guilt, the State’s attorney proposed that defendant be indicted also for attempted murder, a more serious offense carrying the heavier penalty and involving different hazards so far as a potential defense was concerned. It is also clear from the testimony of the State’s attorney presented at the post-conviction hearing that the only recommendation the State’s attorney could or would malee was the one which he did, namely, the minimum 1 to 3 years in the penitentiary. Even though the defendant and his counsel shared the expectation that probation would be granted, it nowhere appears that the defendant believed the State’s attorney would concur in such sentence or that he had any intention of recommending probation. As is apparent from the detailed requirements of Supreme Court Rule 402, the primary purpose of the rule is to provide a procedure for determining whether defendant’s plea of guilty is understandably and voluntarily made. The requirement that a plea of guilty be understandably and voluntarily made does not include the requirement that defendant know in advance whether the State’s attorney will make a sentence recommendation, and it does not require that the defendant know in advance the sentence which will be imposed. The openness of the proceedings in court is designed to permit the court to satisfy itself that the defendant does understand his rights and the consequences of his plea, and the plea will be voluntarily and understandably entered even though the defendant may have some hope of leniency not amounting to any condition on the entry of his plea. At the hearing at which the guilty plea was accepted by the court, the defendant expressed satisfaction with his counsel, and except for the disappointing final result, the testimony of the defendant does not show that his counsel afforded inadequate representation.

With respect to Supreme Court Rule 402 (Ill. Rev. Stat. 1973, ch. 110A, par. 402), defendant argues both that the trial court failed to comply with the rule and the failure of defendant’s counsel on his prior appeal to raise such issue in this court evidenced his incompetency. We do not regard counsel’s failure to present this issue on the direct appeal as requiring the holding of incompetency, since the defendant’s principal argument related to his claim that the sentence was excessive, a claim which was independent of and unrelated to any alleged technical deficiencies, if any existed, in the admonition procedures under Rule 402. Nor do we believe the failure to comply with Rule 402 is in and of itself a sufficient reason for granting relief in a post-conviction proceeding where the issue is not merely compliance with the rule but whether the defendant’s plea under all the circumstances, including that revealed by the record made at the time of the entry of his plea, demonstrates that the plea was not intelligently and voluntarily made. (People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559; People v. Holvey, 17 Ill.App.3d 809, 308 N.E.2d 622.) In other words, the present rule is that mere noncompliance with Supreme Court Rule 402 does not raise an issue of constitutional dimension but is relevant in a post-conviction proceeding only so far as the record does or does not demonstrate the defendant’s plea was intelligently and voluntarily made. We hold that the record of the original proceeding, when considered with defendant’s testimony at the post-conviction hearing, is sufficient to support the trial court’s conclusion, that the defendant failed to establish from the record that his plea was involuntary or not understandably made.

This brings us to the defendant’s last claim of error, in which he insists the sentence imposed is contrary to article 1, section 2, of the Illinois Constitution of 1970. Other than rearguing the reasons for claiming the sentence is excessive, we hold both that no constitutional issue was presented in the post-conviction hearing and further that the issue was finally decided in defendant’s prior direct appeal to this court and therefore is pot appropriately raised in this collateral proceeding.

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

Judgment affirmed.

ALLOY and DIXON, JJ., concur.


author: Mr. JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roy William Graham, Defendant-Appellant.
    (No. 74-43;
    Third District

      James Geis and Richard Steck, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Max B. Stewart, State’s Attorney, of Carthage (F. Stewart Merdian and Charles D. Sheehy, Jr., of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from a judgment of the Hancock County Circuit Court finding defendant, Roy William Graham, guilty of aggravated assault and of armed violence. He was sentenced to a term in the penitentiary of 1 to 3 years. The defendant was indicted on four counts of aggravated assault under the provisions of the Illinois Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 2(a)(1), (6)) and on 2 counts of armed violence under section 33A — 2 of the Code.

From die record it appears that on October 24, 1972, defendant called the police and warned them “he was on another terror.” He thereafter went to the house of his ex-wife and demanded her gun. He finally threatened her with a knife to obtain the gun. Tire gun was unloaded, but defendant told his wife he would find some ammunition. He thereafter stopped briefly at a neighbor’s house before driving away. Police officers followed Graham out into the country where they stopped him. When defendant got out of his pickup truck, Trooper Giacomelli entered it and removed the keys from the ignition. Another officer sprayed Mace at defendant’s face, and defendant ran off some 30 to 75 feet. He then turned, pointed a gun at Giacomelli, and finally ran off into a cornfield from which he emerged on the road some minutes later. At this point defendant was coaxed into a police car and taken to the station, although he was not disarmed. He was later released and arrested the next day. Officers testified they were familiar with Graham and his occasional episodes of similar conduct.

The testimony indicated that defendant had been drinking on the night in question and that Graham had been treated previously for mental problems. The officers also testified that on the night of the incident, Graham complained that an operator had refused to put his call through to the Governor in Springfield. The officers also testified that he told police that he could throw a knife well and could outrun any of them because he was an Indian. As we have indicated, Graham was charged with two counts of assault with a deadly weapon (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 2(a)(1)) (one for each weapon — gun and knife) and two counts of assaulting a police officer (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 2(a)(6)), all of which are classified as “aggravated assaults” under Illinois law. Defendant was also charged with two counts of armed violence under section 33A — 2, which provides in relevant part: “A person commits armed violence when, while armed with a dangerous weapon, he performs any act prohibited by Sections * * * 12 — 2 • * * of this Act.”

On appeal in this court, defendant challenges the sufficiency of the armed-violence counts of the indictment and asserts that the indictment fails to properly charge an offense. The State argues that defendant has waived such issue by not raising it at the trial court level. While we agree that the general rule is that points not raised at trial may not be considered by the reviewing court, under the Code of Criminal Procedure there is a specific provision that an attack may be made upon an indictment for failing to state a charge and that such attack may be raised initially upon appeal (Ill. Rev. Stat. 1971, ch. 38, pars. 114 — 1(a)(8), (b); People v. Heard, 47 Ill.2d 501, 505, 266 N.E.2d 340 (1970); People v. Brakebill, 9 Ill.App.3d 691, 692, 292 N.E.2d 491 (3rd Dist. 1973)). We, therefore, determine that we should consider defendant’s attack on the indictment.

The armed-violence counts of the indictment charged that defendant, while armed with deadly weapons (the gun and the knife), violated section 12 — 2( a) (1) — assault with a deadly weapon. Defendant contends that the incorporation by reference of section 12 — 2 (aggravated assault) into section 33A — 2 (armed violence) was not meant to include assault with a deadly weapon (section 12 — 2(a) (1)), and also defendant asserts alternatively that to construe the armed-violence statute otherwise would raise serious constitutional questions of equal protection and delegation of legislative authority. Assault with a deadly weapon, like other forms of aggravated assault, is a Class A misdemeanor. Armed violence is a Class 4 felony, with a possible penitentiary sentence. To the extent that section 33A — 2 incorporates section 12 — 2(a)(1), the conduct proscribed by both provisions is identical and co-extensive, that is, both prohibit assaults with deadly weapons. (Section 33A — 2 is also the basis for the prosecution of other crimes when committed with deadly weapons, but those situations are not involved here nor are they affected by what is said in this opinion.)

Defendant argues that the prosecutor has absolute discretion to charge either the felony of armed violence or the misdemeanor of aggravated assault when the conduct involved is assault with a deadly weapon, and because of the right of the prosecutor to make such election defendant contends that the act violates equal protection of the laws, and that there is also an unconstitutional delegation of legislative power to impose penalties for criminal activities. This issue has been raised a number of times in this court and in the Illinois Supreme Court. The Illinois Supreme Court has held that where criminal conduct is prohibited by two different statutes, which provide different penalties, there is no constitutional problem in the prosecution of a defendant under the statute which provides the greater penalty. (People v. McCollough, 57 Ill.2d 440, 313 N.E.2d 462 (1974), reckless homicide/involuntary manslaughter. See also People v. Keegan, 52 Ill.2d 147, 286 N.E.2d 348 (1971), cert. denied (1972), 406 U.S. 964, indecent liberties with a child/contributing to the sexual delinquency of a child). The court has also considered the provisions of the statute on aggravated battery, which existed prior to the Unified Code of Corrections (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 4), and concluded that the provisions were not unconstitutional because they allowed a range of penalties from a fine and/or jail sentence up to imprisonment in the penitentiary. People v. Williams, 15 Ill.App.3d 294, 304 N.E.2d 150 (3rd Dist. 1973); People v. Chambers, 15 Ill.App.3d 23, 303 N.E.2d 24 (3rd Dist. 1973).

While the penalty provision for assault with a deadly weapon is such that a choice could be made as to whether it is a Class A misdemeanor or a Class 4 felony, the State’s attorney as representative of the People is vested with discretion and responsibility to determine which crimes should be charged and what penalties should be sought in criminal cases (People v. Rhodes, 38 Ill.2d 389, 396, 231 N.E.2d 400 (1967)). While we have been directed to no such penalty provision of the criminal code since the enactment of the Unified Code of Corrections, effective on January 1, 1973, such provisions were common before the passage of the Code. The courts have found no sound reason why the legislature should not be free to provide both felony and misdemeanor penalties for the same conduct in appropriate cases where prosecution seeking a greater or lesser penalty may be consistent with the nature of the offense. It is clear that there is no constitutional infirmity in the legislative provision for both felony and misdemeanor penalties for the crime of assault with a deadly weapon, in the alternative sections considered in the instant case. (Section 12 — 2(a)(1) and 33A — 2.)

We have noted defendant’s argument and the relevant legislative history for the purpose of checking to determine the legislative intent. Prior to 1923, assault with a deadly weapon was the only form of aggravated assault, and the use of the weapon was a factor aggravating the assault and suggesting the increased penalty. Commencing in 1923, the legislature added other categories of aggravated assault in the years following, which categories did not involve the use of a weapon but rather were dependent upon the character of the assailant (e.g., hooded, masked, or robed) or the character of the victim (e.g., policeman, fireman, teachers, government employees). Currently, an assault falling into one of these categories of section 12 — 2(a) is considered “aggravated” and is classified as a Class A misdemeanor, while simple assault is a Class C misdemeanor.

It appears obvious that the legislature intended, when it passed the armed-violence statute in 1967 (article 33A) to respond emphatically to the growing incidence of violent crime. (Cf. People v. Hardaway, 108 Ill.App.2d 325, 332, 247 N.E.2d 626 ( 4th Dist. 1969).) Section 33A— 2 contains a special statutory prohibition for commission of any of several enumerated crimes (e.g., kidnapping, rape, deviate sexual assault, aggravated assault, aggravated battery, grand theft, intimidation) while armed with a dangerous weapon. As it relates to section 12 — 2, the armed violence act provided a felony penalty for any assault which, once aggravated by the nature of the victim or the disguise of the assailant, was further aggravated by the use of a deadly weapon.

We agree that it was highly significant that, at the same time the legislature adopted the armed violence statute it amended the aggravated assault statute to exclude section 12 — 2(a)(1), assault with a deadly weapon (Laws of Illinois 2595 (1967)). This seems logical since the weapon, the aggravating factor in armed violence, was already present in section 12 — 2(a)(1). This legislative activity, however, left an apparent gap in criminal law provisions. An assault with a deadly weapon was only a simple assault, unless performed against a victim such as a peace officer or teacher, or by a hooded or masked assailant, in which case it was also aimed violence. An assault without a weapon against a policeman or teacher was still an aggravated assault. The method of revision created a situation where assault with a deadly weapon could not be punished as an aggravated assault. This omission was remedied in 1968, when the legislature reinstated section 12 — 2(a)(1) (Laws of Illinois 99 (1968)). The armed-violence statute, section 33A — 2 incorporates certain provisions of the Criminal Code, including section 12 — 2, by specific reference.

When the legislature reinstated section 12 — 2(a) (1), it obviously intended, in view of the existing provisions of the armed-violence statute, to make it possible to charged armed violence where there was an assault with a deadly weapon. If die legislature did not so intend, it could easily have incorporated an exception as to assault with a deadly weapon.

While we agree that section 12 — 2(a)(1) was pointedly omitted when the armed-violence statute was adopted, it was also pointedly reinserted by the legislature in 1968 when it was known that the provisions of the armed-violence statute would incorporate such provision by reference. Therefore, we should follow the maxim that implementing the legislative intent is always the cardinal rule in judicial construction of statutes. (Inskip v. Board of Trustees, 26 Ill.2d 501, 510, 187 N.E.2d 201 (1962); People ex rel. Kucharski v. Adams, 48 Ill.2d 540, 543, 273 N.E.2d 7 (1971).) As evidenced by the history which we have reviewed herein, the legislative intent obviously was that section 12 — 2(a)(1) when reinserted was intended to be subject to incorporation by reference in the armed-violence statute provisions, particularly when so quickly reinserted. There was an obvious intent that the penalty for any aggravated assault with a deadly weapon would be enhanced and possibly punished under the armed-violence provision. Cf. People v. Hardaway, 108 Ill.App.2d 325, 247 N.E.2d 626.

Defendant makes an alternative argument that the aggravated-assault convictions must be vacated as they arose out of the same course of conduct (People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1 (1974)). We note that the State concedes this point, and we agree. The aggravated-assault convictions are herewith vacated.

Defendant raises two other issues, (1) that a gun which is not shown to be loaded is not a deadly weapon, and (2) that the court erred in permitting the State’s expert witness to testify concerning defendant’s sanity. While an assault with an unloaded gun is obviously made with a deadly weapon (People v. Halley, 131 Ill.App.2d 1070, 268 N.E.2d 449, 450 (1971)), it is not necessary that we consider the first argument. The jury returned a general verdict of guilty on four counts of aggravated assault and two counts of armed violence. Since there were duplicate counts as to the gun and the knife which were wielded by defendant, even if we were to uphold defendant’s argument and vacate the conviction insofar as it pertains to the gun, the conviction would stand because of the use of the knife. People v. Lymore, 25 Ill.2d 305, 185 N.E.2d 158 (1962).

As to the second contention, the record shows that Dr. Kyden testified in rebuttal for tire State. The doctor examined defendant on March 9, 1973, for the purpose of determining his competency to stand trial, in an hour-long interview. He was subsequently requested to give an opinion as to defendant’s mental condition on the night of the incident, and testified, over defense objection, that from Iris observations of defendant and from reports of the State’s attorney’s office, he was of the opinion that defendant was sane on the night of October 24, 1972. The doctor testified that tire reports he received from the State’s attorney’s office simply related to tire “charges and happenings.” The doctor concluded that defendant was sane on the night of October 24,1972.

In People v. Black, 367 Ill. 209, 10 N.E.2d 801 (1937), the supreme court held that it was error to allow a doctor to testify when his opinion was based in part on reports submitted by others and not before the jury or court. While the State argues that the trend in Federal courts and in other States is against this position, we still consider the Black case to be the law in this State, and we feel thát the opinion of the expert must be based upon facts found in ,the record. (Craft v. Acord, 20 Ill.App.3d 231, 236.) On the basis of the record before us, however, it is clear that Dr. Kyden relied upon the States attorney’s report only to the extent of the charges which were made and the facts of the incident which were brought out by other witnesses at the trial. Defense, on cross-examination could have probed into the contents of these reports if it doubted that this was an accurate description of the nature of the reports from the State’s attorney. Defendant, however, did not do so. On the basis of the record before us, we therefore believe that there was no such error in admitting the expert opinion as would justify reversal, since the opinion of the expert was based upon facts found in the record and his own medical knowledge and his observations of defendant.

The sentence imposed by the court of 1 to 3 years in the penitentiary was based on the armed-violence charges. This was an appropriate sentence under the statutory provision. As we have indicated, the convictions for aggravated assault are vacated and the conviction for armed violence is affirmed.

Conviction for armed violence affirmed.

STENGEL and BARRY, JJ., concur.