author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thomas Taylor, Defendant-Appellant.
    (No. 74-83;
    Fifth District
    January 14, 1975.

      Robert Farrell, of Mt. Vernon, and Allen L. Wieder, 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 CREBS

On a prior appeal we remanded this cause with directions that sentence be imposed in compliance with section 5 — 8—1(c)(3),(4) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1 (c)(3),(4)) and that, if necessary, reconsideration be given to defendant’s motion for probation. (People v. Taylor, 12 Ill.App.3d 353.) Defendant is now appealing from the order of the Circuit Court of St. Clair County imposing new sentences. Previously the trial court had sentenced defendant to terms of 2 to 5 years on each of two counts of an indictment charging burglary and theft over $150, and 2 to 5 years on a separate indictment charging burglary. After remandment the sentences were reduced to terms of not less than 1 year and 8 months and not more than 5 years, all sentences to run concurrently. The sole issue here is whether these sentences were excessive.

At the rehearing on defendant’s previous request for probation, and in aggravation and mitigation, the court considered a new presentence report. It stated that defendant was 20 years of age (18 at the time of the offenses), and that while out on appeal bond he had been working on his stepfather’s farm for $2 an hour plus room and board. His prior criminal record showed a number of traffic or vehicle violations and two misdemeanors. In addition, while free on appeal bond, he was arrested for theft over $150 for which he was fined and sentenced to 40 days in the county jail. He was also convicted of unlawful delivery of a controlled substance, which cause is now pending on appeal. Defendant’s mother testified that she had made arrangements for her son’s employment if probation were granted. Following argument by counsel the court denied probation and imposed the new sentences, stating specifically that he did not previously, and was not now, taking into consideration defendants mere arrests.

Defendant argues that the nature and circumstances of the offenses for which he was sentenced and his own history and character do not warrant minimum terms in excess of one year within the meaning and intent of the above cited sections of the Code. He also contends that the 5-year maximum imposed is excessive. The State argues that on a remandment for resentencing under the Code the defendant is entitled only to a reduction of the minimum so that it will not be in excess of one-third of the maximum, and that the court is not obliged to consider the nature and circumstances of the offense or tire history and character of the defendant. In the alternative, the State contends that even considering these factors the sentences imposed are justified.

With' reference to the State’s first contention, we have recently held that all sentencing provisions of the Code are applicable to re-sentencing procedures even though the original sentence may have been imposed prior to the effective date of the Code. (People v. Hammonds, 21 Ill.App.3d 5.) Specifically, we held that before resentencing a defendant to a higher minimum than 1 year for a Class 2 felony the court must give consideration to the nature and circumstances of the offense and the history and character of the defendant as required by the Code. We abide by that decision and hold it applicable here.

Defendant makes no objection to the trial court’s denial of probation, but he contends that defendant was only 18 years old at the time and that the offenses he committed were no more serious than any ordinary burglary or theft. He argues, therefore, that there was no justification for either the minimum sentence being in excess of 1 year or the maximum being as much as 5 years. We cannot agree. Defendant was convicted of two separate offenses occurring 9 days apart. Even using defendant’s argument that they were just ordinary offenses, nonetheless there were two of them, and when considered along with the defendant’s record, they do demonstrate a proclivity for committing crime and have a direct bearing on defendant’s history and character. In addition, while out on appeal bond, he committed two more offenses, and these facts too may be considered in assessing defendant’s character and in determining new sentences even though they occurred after the time of his original sentencing. North Carolina v. Pearce, 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072; People v. Heise, 35 Ill.2d 214; Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 5—4.

On the basis of these facts we find that the trial court did consider the histoiy and character of the defendant and the nature of the offenses committed by him, and we cannot say that the sentences imposed were in any sense an abuse of the court’s discretion. Accordingly, the judgment of the Circuit Court of St. Clair County is affirmed.

.Affirmed.

EBERSPACHER and CARTER, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alexander Rogers, Defendant-Appellant.
    (No. 73-86;
    Fifth District
    January 16, 1975.

      Robert E. Farrell and Michael J. Rosborough, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (Robert L. Craig, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendant, Alexander Rogers, was charged with the offenses of rape and robbery in the Circuit Court of St. Clair County. Defendant made a statement to the police in which he admitted taking the alleged viotim’s purse but denied raping her. The public defender was appointed to represent him and on September 13, 1972, a hearing was held on defendant’s motion to suppress the confession. The motion was denied and a jury trial was held the same day, and the defendant was found guilty on both charges. On January 3, 1973, a sentencing hearing was held and the defendant was sentenced to serve a term of 4 to 10 years on each charge with the sentences to be served concurrently. The appeal followed.

The initial contention of the defendant is that he was not proved guilty beyond a reasonable doubt. Thus it is necessary to summarize the factual situation surrounding the alleged offenses.

The prosecutrix and her husband, a Fairview Heights police officer, had been having a disagreement while driving through East St. Louis. The prosecutrix, who was of Japanese descent and had lived in the United States approximately 3 years, left their automobile on the evening of July 4, 1972, in that city. Her husband tried to persuade her to return to the vehicle and then started to drive way. He then saw the prosecutrix walking with a Negro man. The man then approached the car and asked if the husband and the prosecutrix were arguing. The prosecutrix refused to return to the car and after the husband lost sight of her, he drove to Collinsville to leave their little girl with his mother.

The prosecutrix had walked away from the man, but he followed her. She walked under a bridge at which time a man grabbed her and pulled her into a “shadow place.” There were no lights under the bridge. He told her to take her clothes off, pulled her underwear down, and had intercourse with her. The man then threatened to kill the prosecutrix, took her purse and ran away.

The prosecutrix then sought help and encountered a Mr. Brown and two mechanics at a gasoline station. They brought her to Mrs. Brown. At this point the prosecutrix informed Mrs. Brown of the incident that had just occurred. Mrs. Brown testified that the prosecutrix had mud on her dress, had only one shoe and one stocking on, that her undergarment was only on one leg and that her hair was all messed up.

The police were called as well as the prosecutrix’s husband. Her husband then took her to the hospital where she was examined by a physician. No medical testimony was introduced at the trial.

The following day, July 5, 1972, defendant was arrested. He testified that he had spent tire previous evening shooting firecrackers with neighborhood children. Defendant’s mother testified that her son had been popping firecrackers that evening and that he had been “in and out.” Mrs. Rogers testified that her son spoke to her at about 11:35 on the evening of July 4, 1972.

Statement of the defendant was read at the trial and in it defendant admitted robbing a “white female lady” of her purse near the scene of the crime, but it denied that he had had intercourse with the lady he robbed.

The husband of the prosecutrix identified the defendant as the man whom he had talked to the evening of the alleged crime. The prosecutrix testified that the man she talked to on the street was the same man who attacked her under the viaduct. At the trial the prosecutrix was asked four times if the man who attacked her was in the courtroom before she identified the defendant. The State contends that this was partially explained by the fact that she had difficulty with the English language. She also said that it was dark under the viaduct and that she could not clearly see her attacker.

The testimony of a complaining witness in a rape prosecution is sufficient to support a conviction if it is clear and convincing; if not clear and convincing it must be corroborated. People v. Scott, 407 Ill. 301, 95 N.E.2d 315.

The'testimony of the husband corroborated that of the prosecutrix in that it tended to prove that the defendant was with the prosecutrix.

The testimony of Mrs. Brown concerning the appearance of the prosecutrix bolsters the testimony of the prosecutrix that the rape had occurred. Mrs. Brown testified that the prosecutrix told her that she had been raped. The defendant claims that such hearsay testimony should have been excluded. The statement to Mrs. Brown met the requirements of a spontaneous exclamation. The statement referred to an occurrence sufficiently startling to produce a spontaneous and unreflecting statement, there was an absence of time in which to fabricate, and the statement related to the circumstances of the occurrence. (See People v. Damen, 28 Ill.2d 464, 193 N.E.2d 25.) The testimony of Mrs. Brown also would be admissible under the corroborative statement rule because the prosecutrix’s complaint to Mrs. Brown was made without inconsistent or unexplained delay, it was not made as a result of a series of questions and the complainant was a witness at the trial. The testimony of Mrs. Brown was properly admitted and provided further corroboration for the testimony of the prosecutrix. Thus there was sufficient evidence for the jury, as the trier of fact, to find the defendant guilty beyond a reasonable doubt of rape.

The defendant next contends that it was error to deny his motion to suppress the confession. The arresting officer stated that he read the defendant his Miranda rights at the defendant’s home in the presence of defendant’s mother on July 5, 1972. (Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602.) The defendant admitted that the officer informed him of his right to remain silent and that there was “something else he said.” The statement signed by the defendant contained a preprinted warning of his Miranda rights, and also included the statement that the signer, having been advised of his rights, voluntarily agrees to make a statement. The preprinted form also contained the statement, “I have not been threatened or mistreated in any fashion nor have any promises of leniency been made to me in return for making this statement.”

The defendant maintains that the record does not reflect that he understood his rights or that he expressly and understandingly waived those rights. Defendant’s mother testified that the arresting officer did not inform her son of his Miranda rights at her home. Defendant testified that the arresting officer told him to make a statement or else he would get 20 years. The officer denied making any threats or promises to the defendant.

The State has the burden of demonstrating that the confession was voluntary. The burden is that of a preponderance of the evidence, and the trial court need not be convinced beyond a reasonable doubt. (People v. Jackson, 41 Ill.2d 102, 242 N.E.2d 160; People v. Harper, 16 Ill.App.3d 252, 305 N.E.2d 680.) Here there was a conflict in the testimony and as such should be resolved by the trier of fact who is in the best position to judge the credibility and observe the demeanor of the witnesses. Such a determination is within the sound discretion of the trial court and should be sustained unless contrary to the manifest weight of the evidence. (People v. Higgins, 50 Ill.2d 221, 278 N.E.2d 68; People v. Kalagian, 6 Ill.App.3d 582, 285 N.E.2d 510.) We cannot say that the decision of die trier of fact was against the manifest weight of the evidence, and it was not error to deny the defendant’s motion to suppress the statement.

The next contention of the defendant is that he was denied a fair trial because of improper comments made by the prosecutor. The prosecutor referred to the defendant as a “vulture” and also referred to the alleged offense as a “bastardly crime.” The prosecutor also stated that the area in which the alleged offense took place was a “high crime area.” The prosecutor additionally said that the husband was “stupid” to allow his wife to leave the car at night and that “[h]e’s paid a price. He is paying a price. He will continue to pay die price of his stupid actions.”

The defense counsel did not object to any of these statements and such a failure to make a timely objection constitutes a waiver of the objection. People v. Skorusa, 55 Ill.2d 577, 304 N.E.2d 630; People v. Moore, 55 Ill.2d 570, 304 N.E.2d 622.

If the remarks are considered “seriously prejudicial” this court may relax the waiver rule. (People v. George, 49 Ill.2d 372, 274 N.E.2d 26.) Improper remarks must result in substantial prejudice for there to be reversible error. People v. McCorry, 51 Ill.2d 343, 282 N.E.2d 425. Here we find no reason to relax the waiver rule.

The final contention of the defendant is that the sentence imposed for robbery, 4 to 10 years, was excessive. Robbery is a Class 2 felony requiring that “(3) for a Class 2 felony, the minimum term shall be 1 year unless the court, having regard to the nature and circumstances of the offense and the history and character of defendant, sets a higher minimum term * * (Ill. Rev. Stat., ch. 38, par. 1005 — 8—1.) The trial court made no findings as contemplated by the statute as to why the minimum sentence on the robbery charge should be in excess of 1 year. The defendant was 17 years of age at the time of the commission of the offense and had no serious prior record. We therefore reduce the sentence imposed for robbery to a minimum of 1 year and a maximum of 3 years pursuant to our authority under Illinois Supreme Court Rule 615(b)(4) (50 Ill.2d R. 615(b)(4)).

Affirmed as modified.

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


author: Mr. JUSTICE GEORGE J. MORAN

text:
    Linda L. Cox, Adm’r of the Estate of Colbert L. Snider, Deceased, Plaintiff-Appellee, v. Employers Life Insurance Company of Wausau et al., Defendants.—(Bonita S. Snider, Defendant-Appellant.)
    (No. 74-63;
    Fifth District
    January 16, 1975.

      Joseph W. Hickman, of Benton, for appellant.
    Mitchell & Armstrong, of Marion, for appellee.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant Bonita Snider appeals from a judgment of the trial court of Jackson County finding that the plaintiff-appellee administrator of the estate of Colbert L. Snider was entitled to the proceeds of a group life insurance policy payable on the death of Colbert L. Snider.

This case concerns a dispute between the administrator of the estate of Colbert L. Snider, deceased, and Bonita Snider, the divorced wife of the decedent, over the proceeds of a group policy in the amount of $20,000 on the life of Colbert L. Snider.

Colbert L. Snider, an employee of E. T. Simonds Construction Company, was insured under a contributory group insurance policy with Employers Life Insurance Company of Wausau at the time of his death. He and the appellant were married in 1950 and entered into a property settlement agreement on August 14, 1972.

On August 16, 1972, a decree of divorce incorporating the property settlement was granted to Bonita Snider. Neither the decree nor the property settlement made any mention of insurance. Colbert L. Snider died the next day after tire divorce was granted, as a result of an accident.

The administrator of the estate of Colbert L. Snider filed a suit in the circuit court of Jackson County claiming that she was entitled to the proceeds of the group policy by reason of the death of Colbert L. Snider. Defendant Bonita Snider filed an answer claiming the proceeds, and the Employers Life Insurance Company of Wausau tendered the proceeds of the policy in question into the court with the request that the court determine which party was entitled to the money.

The plaintiff contended in the trial court that she was entitled to the money because (1) Bonita Snider was not a designated beneficiary under the terms of the group policy at the time of the death of Colbert L. Snider, and (2) assuming that she was, her interest was abolished by the property settlement incorporated into the divorce decree.

The trial court in holding in favor of the plaintiff stated:

“Assuming arguendo (but not necessarily so specifically holding) that Mrs. Snider was the designated beneficiary of the policy in question, the crucial question in this litigation is whether the divorce decree barred her right to receive the proceeds of the said insurance policy upon his death, in light of the language of said Paragraph 9 of the Divorce Decree.
Although there are no Illinois authorities directly in point and the ruling in this cause may be one of first impression, this court feels that sound reasoning, logic and equity require the answer to the question in the affirmative.
The decided weight of authority in the case law of foreign jurisdictions, as set out in the texts and treatises, such as A.L.R., American Jurisprudence and others, support the principal of law, under the individual circumstances and facts of the case at hand, that the rights of the beneficiary to the proceeds of an insurance policy upon the life of a divorced spouse can be terminated by agreement to relinquish the spouse’s right to the proceeds without formally changing the beneficiary by giving notice to the insurance company or its agents of such change. The real question is whether the Divorce Decree barred the defendant’s right to receive the proceeds of the insurance policy and this court feels that the answer to this question is that the Decree did so bar her rights to the same.”

The critical questions for review are: (1) Was Bonita Snider the designated beneficiary of the policy in question? We hold that she was. (2) Did the divorce decree bar Bonita Snider’s right to receive the proceeds of the policy? We hold that it did not.

Opinion

Question No. 1:

Guidance for the answer to this question can be found in the principle stated in 46 C.J.S. Insurance § 1186, at page 98 (1946):

“The designation and description of the beneficiary in the policy are liberally construed in his favor, and, where it is not clear from the policy exactly what person has been designated as beneficiary, the intention of insured is controlling, and in cases of doubt the question ioill be determined on the basis of all the surrounding circumstances.” (Emphasis added.)

Cases in various jurisdictions have recognized this principle. For example, in Walker v. General American Life Insurance Co., 141 S.W.2d 785 (Mo. 1940), the Missouri Supreme Court said at 787:

“The rule is that: ‘In determining who is the beneficiary under the terms of a policy of life insurance, the courts are governed by the intention of the parties, or at least the intention of insured, as indicated by the surrounding circumstances and conditions at the time the contract was made as applied to the language of the instrument.’ ”

And in reference to a group policy, the court in Butcher v. Pollard, 32 Ohio App.2d 1, 288 N.E.2d 204 (1972), said (288 N.E.2d 204, 206):

“The designation of a group life insurance beneficiary is solely a decision of the insured and normally he will name a specific individual or a class of individuals. Whenever a dispute develops over the connotation of the named beneficiary, the court’s responsibility is to ascertain and give effect to his intentions. And, although intention is an intangible commodity, it may nevertheless be gathered indirectly through the insured’s chosen words and any relevant circumstances prior to and contemporaneous with his decision.”

In Illinois this principle has been specifically recognized where the insured and the insurer are the contracting parties. (New York Life Insurance Co. v. Rak, 24 Ill.2d 128, 180 N.E.2d 470 (1962).) No Illinois cases have been found by this court or cited in the briefs dealing with a situation involving a group insurance policy. However, the Ohio court in Butcher alludes to Rak as authority for its statement on group policy beneficiaries. We agree with the rationale of Butcher and hold that Illinois courts should also extend the principle of Rak to group policy cases, as did the Ohio court. Thus, in the instant case the intention of Colbert Snider at the time the contract of insurance involving the policy in question was entered should govern the question of whether Bonita Snider was a designated beneficiary. This should be true, at least if there is no formal requirement of the policy itself which would prevent such intention from governing.

With this principle in mind, we examine this question. The most important items to examine in solving this problem are: (a) the employee enrollment card kept with the employer-policyholder, which named Bonita Snider beneficiary; (b) the provisions of the insurance policy in question pertaining to the designation or change of designation of beneficiary; and (c) the designation of Bonita Snider as beneficiary on two previous group insurance policies.

Clearly, from the circumstances existing at the time the employer-policyholder entered the contract of insurance with Employers Life Insurance Company of Wausau, Colbert Snider intended Bonita Snider to be the designated beneficiary. Not only had the employee enrollment card been completed in writing, though admittedly without the signature of Colbert Snider, but also Colbert Snider had received copies of two previous group insurance policies entered into by the same employer, each of which listed Bonita Snider on its face as beneficiary of the policy. Surely, had Colbert Snider not directed the employer to designate Bonita Snider as beneficiary on the employee enrollment card, he would have objected to the designation of Bonita Snider as beneficiary on these two previous policies and would have directed the employer to delete her name from the employee enrollment card and list another beneficiary. Therefore, it is apparent that the employee enrollment card was completed at the direction of Colbert Snider.

Realizing that it was the intention of Colbert Snider to designate Bonita Snider as beneficiary at the time tire employer-policyholder entered the insurance contract with Employers Life Insurance Company of Wausau, it remains only to determine whether anything will prevent this court from carrying out that intention. The requirements for properly designating a beneficiary under the policy in question are listed on the third page of the policy:

“An employee may designate a beneficiary, or change his designation of beneficiary, from time to time by written request filed through the policyholder. Such designation or change shall take effect, provided it has been received by the policyholder, as of the date of execution of such request * *

Clearly, from this statement there are two essential requirements for proper designation: (1) That the designation be in writing, and (2) that the designation be filed “through the policyholder.” There is no specific requirement that the wilting be signed by the insured, nor is there a requirement that the insurer acknowledge or approve the designation of beneficiary. Tire absence of the latter of these is an indication that the insurer left the bookkeeping function of recording designated beneficiaries to the employer-policyholder. Such is also indicated by the absence of a space for designation of beneficiary on the policy in question or on any of the supplementary pages which are part of the policy in question. Thus, the requirement that the designation be in writing was accomplished when the name of Bonita Snider was typed into the space of the employee enrollment card for designating the beneficiary.

Not only is it clear from the wording of the policy itself that there was no requirement of the insured’s signature, the absence of such a requirement is also apparent from the employee enrollment card. An examination of the card shows that the space for “Employee’s Signature” appeared on the card only in order to allow the employer to make payroll deductions. Immediately above the space for the “Employee’s Signature” appears the sentence:

“I hereby authorize my employer to deduct from my wages the amount required to cover my contribution for group insurance for which I am or may become eligible. It is understood that my employer shall continue the required deduction as long as I remain insured.”

If the signature were intended to be a form of verification for all that appears on the card, a different sentence would have been used, such as “I hereby affirm that all of the above is true and as I intend it.”

Concededly, the policy in question was that of Employers Life Insurance Company of Wausau, whereas the card was that of Employers Mutual Liability Insurance Company of Wisconsin. Nevertheless, as stated on the policy in question, Employers Life Insurance Company of Wausau is owned by Employers Mutual Liability Insurance Company of Wisconsin and could be charged with knowledge of the format of such Employee Enrollment Cards as had previously been issued by the owner (parent) company. If, therefore, Employers Life Insurance Company of Wausau wished for the policyholder to require a signature of the insured for designation of beneficiary on the card, it would have issued cards with a different format or it would have specifically stated in the policy in question that a signature was required.

Regarding the requirement of filing “through the policyholder,” it is clear that the name of Bonita Snider had been filed “through the policyholder,” as this is the name which appeared on the previous policy issued by the owner (parent) company. Moreover, since there was no mention in the policy in question that acknowledgement or approval of designated beneficiaries by the insurer was required, as is the case in many other such policies, designation of the beneficiary on the Employee Enrollment Card alone was a sufficient filing “through the policy.” Thus, it is clear that Colbert Snider did, in fact, designate Bonita Snider as beneficiary under the policy in question.

Question No. 2:

Precisely the same issue as that presented by this question was decided by the Appellate Court for the Third District of Illinois in O’Toole v. Central Laborers’ Pension & Welfare Funds, 12 Ill.App.3d 995, 299 N.E.2d 392 (1973), a case where the decedent-insured had designated his wife as beneficiary of two group insurance policies. Subsequent to the designation, the wife was granted a divorce from the insured. Incorporated in the divorce decree was a property settlement agreement disposing of various items of real and personal property. The property settlement agreement made no mention of the insurance policies or proceeds, but it did contain a general clause stating that “each party is further barred as to any and all claims of interests whatsoever in and to the property of the other now owned and hereafter acquired.” Two months after the divorce decree was entered, the husband-insured died intestate, never having made a change of beneficiary of the insurance policies. The administrator of the estate filed a petition to have the insurance proceeds paid to the estate, based on the separation agreement. The ex-wife, of course, objected and sought to have the proceeds paid to her as the designated beneficiary. The lower court awarded the proceeds to the ex-wife, and the administrator appealed.

The administrator argued on appeal that despite the fact that the decedent had not attempted to change the designated beneficiary of the policies, the property settlement agreement effected such a change because insurance proceeds payable under a contractual agreement constituted property and, thus, came within the general clause of the property settlement agreement mentioned above. The court rejected this argument, saying:

“In Equitable Life Assurance Society v. Stilley, 271 Ill.App. 283, it is stated that .when the insured reserves a right to change a beneficiary, the beneficiary has a mere expectancy during the insured’s lifetime. This expectancy would not be considered property and would not be included in a contract between the parties for division of property rights unless specifically included or so intended by the language of the agreement. In the instant case, the parties agree the language of the property agreement is general and there is no specific provision regarding insurance.

Illinois follows the majority rule that a decree of divorce in no way affects the rights of the divorced wife as a beneficiary in a husband’s life insurance policy. (See, 22 I.L.P. Insurance, sec. 93 and 44 Am.Jur.2d Insurance, sec. 1740.) Only if a property settlement agreement should specifically include a termination of the beneficiary’s interest, will the right to the proceeds of a policy on the life of the husband be affected, unless the policy itself or a statute provides otherwise. (Couch on Insurance 2d ed., sec. 27: 111.) We find no provision regarding insurance in the property settlement agreement nor is there a provision in the policy or a statute which terminates a spouse’s interest as beneficiary upon divorce. Nor is there any indication of an intention of the insured to make a change. Surely, if the insured had wished to substitute another person or his estate as beneficiary following the divorce, he would have at least attempted to effect a change with the insurer or included a provision in tire property settlement agreement 8 8 8.” 12 Ill.App.3d 995, 997-998.

Comparing the property settlement agreement of Colbert and Bonita Snider to that in O’Toole, it is clear that they are, for all practical purposes, identical. They both speak generally of property, and neither specifically named the insurance policies.

The rationale of O’Toole is consistent with the opinion of the First District Court in Suga v. Suga, 35 Ill.App.2d 355, 182 N.E.2d 922 (1962), where that court held that when an insurance policy regulates die method for changing the beneficiary, the method specified is generally exclusive, and, therefore, the benficiary could not be changed by will. In the instant case, the policy provided that, to effect a change of beneficiary, the insured was required to file a written request through the policyholder. The property settlement agreement in this case in no way complies with this requirement and, therefore, would be ineffective to change the beneficiary of the insurance policy as was the will in Suga.

For the foregoing reasons the judgment of the circuit court of Jackson County is reversed, and this cause is remanded for proceedings consistent with this opinion.

Reversed and remanded.

CARTER and CREBS, JJ., concur.


author: Mr. JUSTICE EBERSPACHER

text:
    Dennis Keith Huey, Plaintiff-Appellant, v. Frances Ann Huey, Defendant-Appellee.
    (No. 74-196;
    Fifth District
    January 16, 1975.

      Sprague, Sprague and Ysursa, of Belleville (John R. Sprague and N. Dean Nester, of counsel), for appellant.
    Jim D. Keehner, Ltd., of Belleville, for appellee.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This appeal grows out of a divorce action in the circuit court of Randolph County, wherein the appeUant, Dennis Huey, filed a complaint against his wife, Frances Huey, asking the court for a judgment of divorce and an order giving permanent custody of the only child of the couple, a female 7 years of age in May, 1974, to appeUant. The trial court, after a contested hearing on the merits of the cause, awarded a divorce to the appeUant on the grounds of physical cruelty, adultery and the appellee’s conviction of a felony, i.e., aggravated battery. The trial court awarded permanent custody of the chüd, however, to the appellee, subject to specific visitation privileges in the appeUant. The appellant has appealed the order of the trial court granting the appellee permanent custody of the chüd. The only question on review is whether this order of the trial court is against tire manifest weight of the evidence.

At the outset it should be noted that it is the settled rule in Illinois that the paramount consideration in awarding the custody of minor children to one parent or the other must necessarily be the welfare and best interests of the children. (Miezio v. Miezio, 6 Ill.2d 469, 129 N.E.2d 20; Fears v. Fears, 5 Ill.App.3d 610, 283 N.E.2d 709.) In making an award of custody the general rule is that the question is one within the discretion of the trial court, and such a judgment will not be set aside unless it appears that the judgment is against Die manifest weight of the evidence. Holloway v. Holloway, 10 Ill.App.3d 662, 294 N.E.2d 759; Stark v. Stark, 13 Ill.App.3d 35, 299 N.E.2d 605; O’Donnell v. O’Donnell, 5 Ill.App.3d 870, 284 N.E.2d 682; Braun v. Goodman, 3 Ill.App.3d 1002, 279 N.E.2d 177.

There is in Illinois a rule favoring the award of the custody of a minor of tender years, especially a female, to the mother. (Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300; Fears v. Fears, 5 Ill.App.3d 610, 283 N.E.2d 709; Pierce v. Wade, 2 Ill.App.3d 717, 276 N.E.2d 744.) This rule favoring the mother, however, is not to be applied arbitrarily. Girolamo v. Girolamo, 5 Ill.App.3d 627, 283 N.E.2d 713; Vysoky v. Vysoky, 85 Ill.App.2d 306, 230 N.E.2d 3.

In the instant case the appeUant introduced evidence in the trial court from which it could be inferred that appellee, if not an alcoholic, as alleged in his complaint, abused the use of alcohol. AppeUant also proffered evidence that appellee engaged in several acts of adultery with several different persons within a period of less than 1 year from the date of the hearing. The appellee, on the other hand, produced evidence which tended to negate the inference that she misused alcohol; and, although appellee admitted one instance of adultery, she denied all others. Furthermore, counsel for the appellee was able to establish the possibility of bias on the part of those witnesses proffered by the appellant regarding his allegation of repeated adulterous acts by appellee by eliciting that each witness to said acts was either a friend of the appellant or a friend of appellant’s father. Although these allegations, misuse of alcohol and allegations of numerous acts of adultery, are relevant to the court’s determination of the fitness of a particular parent to the custody of a minor child, in view of the conflicting evidence presented to the trial court, we cannot say that the trial court’s determination that the appellee is a fit and proper parent is against the manifest weight of the evidence insofar as that finding rests upon either or both of tírese two allegations.

Any act of adultery by a parent is an element to be considered by a court in making a determination of the fitness of that parent to have custody of a minor child. As a general rule in Illinois, however, the mere fact that a divorce has been awarded to a husband on the grounds that the wife was guilty of adultery does not prevent the trial court from exercising its discretion and awarding custody of the children to the wife. (Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300; People ex rel. Hickey v. Hickey, 86 Ill.App. 20; Hockett v. Hockett, 128 Ill.App.2d 255 (abstract opinion).) This rule, as enunciated in Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300, is controlling here:

“Where the mother is able to care for her minor daughter and is not shown to lack the proper attributes of good motherhood, past misconduct, where the evidence indicates no probable future misconduct, should not be a basis for denying custody to the mother.” 411 Ill. 408, 415.

The evidence presented on the question of the appellee’s ability to care for her minor daughter and the evidence on the question of appellee’s attributes of good motherhood is, without exception, that the appellee is a good mother who properly cares for the physical and emotional needs of her minor daughter. Appellant even concurred in this assessment. We cannot say that this record bears sufficient evidence to conclude that the future conduct of the appellee would be such as to deprive her of custody, particularly in view of the showing of her emotional disturbance and frustration occurring when she was deprived of custody of her child.

Evidence was produced at trial that appellee was guilty of physical cruelty towards the appellant. Since one of the grounds upon which the trial court granted appellant a divorce was physical cruelty, we can only conclude that it found that appellee was guilty of physical cruelty towards the appellant. There was also introduced into the record evidence that appellee was convicted of aggravated battery. According to appellee’s testimony, which is substantiated by the record, both of these occurrences were precipitated by the dispute over appellee’s custody and visitation rights to the parties’ minor child, which had been temporarily denied appellee by the trial court. The record confirms the fact that the instances of physical cruelty transpired only subsequent to the filing of the complaint for divorce which requested, among other relief, the permanent custody of the child, and only after a temporary order was entered, granting custody to the appellant and enjoining appellee from the custody or visitation of her child. Similarly, the record indicates that the events surrounding the appellee’s altercation with a police officer, which formed the basis for the aggravated battery conviction, also involved the dispute over custody of appellee’s child. This conviction resulted in a fine of $100 and a 6 months’ conditional discharge, both of which have been satisfied. Although these explanations do not, of course, excuse either of these incidents, they do tend to diminish the probability of appellee’s future propensity for such behavior. No authority has been found to support the proposition that either physical cruelty to one’s spouse or conviction of a felony makes a parent ipso facto unfit for the custody of a child. We believe the rule in Nye, quoted above, applies equally as well to physical cruelty to one’s spouse and to conviction of a felony as it does to adultery. Nye is particularly applicable in the instant case, where the presence of extenuating circumstances demonstrates the isolated nature of such wrongdoing and the improbability of its reoccurrence. All evidence regarding the appellee’s attributes of motherhood and ability to attend to the emotional and physical needs of the child are positive. We cannot, therefore, say that the finding of the trial court that appellee is a fit and proper parent is against the manifest weight of the evidence insofar as that finding rests upon either the question of appellee’s acts of physical cruelty to her spouse or appellee’s conviction for aggravated battery.

The finding of the trial court that the appellee is a fit and proper person to have the care and custody of the minor female child of the parties cannot be said to be against the manifest weight of the evidence concerning appellee’s use of alcohol, acts of adultery, acts of physical cruelty to plaintiff-appellant, or conviction of a felony. The trial court heard and saw tire witnesses and has broad discretion in such matters and in determining what is to a child’s best interest. The order of the trial court awarding the permanent custody of that child to appellee, subject to specific visitation rights in the appellant, was therefore properly within the trial courts discretion.

Affirmed.

CREES and G. MORAN, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Custer, Defendant-Appellant.
    (No. 73-420;
    Fifth District
    January 21, 1975.

      Rehearing denied February 21, 1975.

      Ross Armbruster, of Alton, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the defendant, William Custer, from separate orders entered by the circuit court of St. Clair County denying the defendant’s motion for a new trial and denying his request for probation.

In 1971, a jury returned a verdict of guilty against the defendant for the offense of forgery, and a judgment of conviction was entered thereon. After the trial the defendant filed a motion for a new trial on the ground of newly discovered evidence. The trial court denied this motion and specifically ruled on and denied a motion for probation, and, after hearing evidence in aggravation and mitigation, sentenced the defendant to a term of imprisonment of not less than 2 or more than 14 years. On appeal, this court affirmed both the judgment of conviction and the denial of the defendant’s motion for a new trial. (People v. Custer, 11 Ill.App. 3d 249, 296 N.E.2d 753.) Upon the denial of the defendant’s petition for a rehearing, this court filed a supplemental opinion remanding the case for resentencing under the Unified Code of Corrections. (People v. Custer, 11 Ill.App.3d 258, 296 N.E.2d 759.) Since the evidence presented at the defendant’s trial is well summarized in those opinions, that evidence will not be repeated here except where necessary for discussion of the issues raised in the instant appeal.

The defendant advances two contentions in this appeal: first, that the trial court “erred in not granting a new trial or actually in not dismissing this case because of Newly Discovered Evidence”; and secondly, that the trial comt’s denial of probation was arbitrarily exercised, manifesting an abuse of discretion, describing “Denial of Probation” as an issue presented for review.

Our mandate issued June 15, 1973, remanded the cause “to the Circuit Court of St. Clair County for resentencing.” On June 21, 1973, the defendant filed his motion entitled “Motion to dismiss case or in the alternative motion for new trial on the ground of newly discovered evidence” which was based on the alleged discovery of certain checks, ledger sheets, and other documents in a garage behind the building which previously housed the defendant’s car dealership.

On June 22, 1973, the trial court, in the presence of defendant, his counsel and an assistant State’s attorney, entered an order which recited:

“* * * whereupon, upon the Mandate of the Appellate Court the Court finds that a presentence investigation is required, and this case is referred to the Adult Probation Officer for investigation and report to this Court on the 30th day of July, 1973 at the hour of nine o’clock a.m. It further appearing to the Court that defendant has filed a post-trial motion, etc., and copy furnished to the State’s Attorney, this matter is also set for hearing on July 30, 1973.”
On June 25, 1973 the trial court entered the following order:
“The resentencing hearing, together with hearing on Motion for New Trial, set for August 13, 1973 @ 9:30 A.M., Court Room No. 2.”

On June 27, 1973, a presentencing report, in which the probation officer refrained from making a recommendation, was made and subsequently presented to the court. On August 13, 1973, evidence was heard on the motion for a new trial, and the matter “taken under advisement pending submission of briefs by both parties.”

On November 14, 1973, the court denied the motion for new trial and set the matter for disposition on December 3, 1973. On December 10, 1973, the court denied “the motion for probation” and sentenced the defendant to not less than 2 nor more than 10 years. No motion for probation appears in the record made after our mandate was issued, although an oral request for probation had been made when defendant was first sentenced in 1971; that request was considered by the court at that time and denied, before the 2- to 14-year sentence had been imposed. At the hearing on the motion for new trial, defendant’s counsel acknowledged that the request for probation had been adjudicated, saying: “As I understand there was a probation hearing one time before, and there was testimony here. I think the court heard those witnesses at that time, and denied probation, so we wouldn’t go into that again, I presume.” Defendant has perfected an appeal from the order of November 14 denying the motion for a new trial and the order of December 10, 1973, denying the application for probation and sentencing defendant.

Our mandate (taken with our prior opinions) conferred jurisdiction on the trial court for one purpose only, that of resentencing in conformity with the Unified Code of Corrections. The trial court by our mandate would not be barred from hearing a petition filed under section 72 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, par. 72); however, defendant’s petition was not and by its content could not be considered as a section 72 petition. Counsel has, since this cause was argued in this court, redrafted his original motion to make it appear to be a section 72 petition and filed such petition in the trial court and forwarded a copy to this court; a highly irregular procedure.

In Schuman v. Department of Revenue, 38 Ill.2d 571, 574, 232 N.E.2d 732, 734, our supreme court said:

“However, it is well established that a motion under section 72 does not lie on the basis of newly discovered evidence. [Citations to criminal cases.]”

The trial court had no jurisdiction to hear- the motion for new trial and had no motion for probation before it which had not been adjudicated. Defendant does not here argue that the sentence of 2 to 10 years last imposed pursuant to our mandate is excessive. We therefore dismiss the appeal.

Appeal dismissed.

G. MORAN and CREBS, JJ., concur.


author: Mr. JUSTICE KARNS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Daniel Binkley, Defendant-Appellant.
    (No. 73-168;
    Fifth District
    January 22, 1975.

      Paul Bradley and Brenda Richey, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Robert H. Howerton, State’s Attorney, of Marion (William B. Ballard, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE KARNS

delivered the opinion of the court:

In a bench trial in the Circuit Court of Williamson County defendant was convicted of a calculated criminal cannabis conspiracy and of possession of cannabis. (Ill. Rev. Stat. 1973, ch. 56½, pars. 709, 704(e).) He was sentenced to concurrent prison terms of 3 to 10 years and 1 to 3 years, respectively. In this appeal he contends (1) that the count of the indictment charging the conspiracy was insufficient in that it failed to allege the necessary element of an agreement, (2) that the evidence was insufficient to prove the material possessed and delivered was cannabis as defined by statute, and (3) that it was improper to convict and sentence defendant for both the conspiracy and the possession of cannabis.

Patricia Parker testified that on August 24, 1972, she, the defendant, and her boyfriend, Toby Tyler, purchased 10 pounds of marijuana from a Leo Sadler in Nashville, Tennessee, for $170 a pound with defendant putting up three-fourths and Tyler one-fourth of this sum. They then took the marijuana to defendant’s apartment in Carbondale, Illinois, passing through Williamson County on the way. After arriving in Carbondale at about 8 P.M. they cleaned and bagged the marijuana into y2-pound bags. Later that same evening they went to Chip Hugh’s house in Carbondale and sold 7 pounds to various individuals for $240 per pound. She stated that defendant negotiated the sales while she, Tyler, and a number of other people were present. With the remaining 3 pounds still in their possession they returned to her apartment in Nashville and, counting their money, found they had $1800. They then purchased 10 pounds more and on August 25, with 13 pounds in their possession, returned to Carbondale, again passing through Williamson County. They went back to Hugh’s house and with defendant’s permission, Hugh took 3 pounds and went somewhere and sold it for $240 a pound. On his return he gave this money to defendant. Stan Guziec and Alex Mair then came to Hugh’s house and bought 2 pounds from defendant at the same price. About 30 minutes later they returned complaining they were short 2 ounces. After a heated argument, defendant took back the marijuana and refunded their money. Later, with the remaining 10 pounds in their possession, the defendant, Miss Parker and Tyler drove out to a strip mine near Carbondale and hid 3 pounds. They then returned to defendant’s apartment and Alex Mair came over in the early morning hours of August 26. Under an arrangement with defendant, he took 3 pounds and sold it. When he came back he turned the money over to defendant and bought 4 pounds more for himself. This exhausted their supply, with the exception of the 3 pounds hidden in the strip mine; so, arrangements were made with Mair to meet him the next day to supply him with an additional 13 pounds. The defendant, Miss Parker and Tyler then went back to Nashville to buy another 10 pounds, but Miss Parker got sick in Nashville and was unable to return with them to Carbondale.

Miss Parker further testified that she had previously used a variety of drugs, that she had seen and smoked marijuana and was familiar with it. She had smoked some of the substance they had transported from Nashville to Carbondale on August 24 and 25 and, in her opinion, the substance was marijuana.

Toby Tyler’s mother and stepfather testified that when they became concerned about the disappearance of their son they talked to defendant in September, 1972. He told them that he and Toby had been dealing in marijuana in Carbondale for about a week, around the end of August. He told them some of the names of the persons to whom they had sold marijuana, but they could only remember the name of Chip Hugh. Hugh, admitting that he was offered immunity for his testimony, stated that he knew the defendant, Miss Parker and Tyler and that in August, 1972, he had sold some “stuff” for them which was supposed to be marijuana. He said that he did not use any of it personally, but that he had smoked marijuana before, was familiar with its physical characteristics, and that the substance he sold looked like marijuana. On cross-examination he admitted that he could not identify marijuana from sight alone.

An investigator for the Tennessee Bureau of Identification testified that Miss Parker had shown him the house in Nashville where she said they had purchased the marijuana, and that after the issuance of a search warrant the individual identified by Miss Parker as Leo Sadler was arrested for possession of marijuana. A deputy sheriff from Williamson County testified that Miss Parker had directed him to the strip-mining area in Williamson County near Carbondale where the 3 pounds of marijuana had been hidden; however, no marijuana was found, and none of the substance alleged to have been marijuana was introduced into evidence.

Defendant’s first contention is directed towards the sufficiency of the conspiracy count of the indictment which was worded in the language of the statute. (Ill. Rev. Stat. 1973, ch. 56½, par. 709(a).) It charged defendant with an unlawful calculated criminal cannabis conspiracy alleging that:

“* * * on the 26th day of August, 1972, at and within the County of Williamson, State of Illinois, the defendant, Charles Daniel Binkley, as part of a conspiracy with two or more persons, Alex Mair, Toby Tyler, Patsy Parker, and Stan Guziec, did in violation of Sec. 705(d) of ch. 56% Illinois Revised Statutes, knowingly and unlawfully deliver to Alex Mair more than 30 grams but not more than 500 grams of a substance containing Cannabis, otherwise than as authorized in the Cannabis Control Act, and he organized said violation in violation of Paragraph 709(a), Chapter 56%, Illinois Revised Statutes.”

Defendant concedes that an indictment is sufficient when it states the offense in the terms and language of the statute if it states the elements of the offense with sufficient particularity to apprise an accused of the crime charged so as to enable him to prepare his defense and plead any judgment in bar of a subsequent prosecution for the same offense. (People v. Grieco, 44 Ill.2d 407, 255 N.E.2d 897 (1970); People v. McDavid, 3 Ill.App.3d 169, 278 N.E.2d 182 (1971).) But, it is argued that since section 8 — 2 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 2) defines conspiracy as an offense in which one must “agree” with others to its commission, the indictment should have specifically alleged such agreement. The argument seems to assign some magic to the word “agreement.” It ignores the actual language used and the implications and meaning necessarily flowing from such language. The indictment charges that the offense was committed by defendant “as part of a conspiracy with two or more other persons.” By definition a conspiracy is an agreement among conspirators, an act of conspiring together. It necessarily implies acting in concert, undertaking some joint action. In fact, it has been specifically held that while a common design is the essence of a conspiracy, it is not necessary to prove such common design by direct evidence of an agreement between the conspirators, but rather it is only necessary to show that they pursued a course tending toward the accomplishment of the object of which complaint is made. (People v. Perry, 23 Ill.2d 147, 177 N.E.2d 323 (1961).) Also, as stated in People v. Holtz, 294 Ill. 143, 128 N.E. 341 (1920), to justify the conclusion that a conspiracy existed there must be evidence of some agreement or some joint action toward accomplishing the object of the conspiracy. Considering these principles, we believe defendant’s objection is unduly technical and unrealistic, and we conclude that the indictment as worded was sufficient to apprise defendant of the crime charged so as to enable him to prepare his defense and plead any judgment in bar of a future prosecution for the same offense.

Next, defendant contends that in the absence of a chemical analysis the evidence was insufficient to prove beyond a reasonable doubt that the substance possessed and delivered by defendant was cannabis, or marijuana, as defined by statute. It is argued that the evidence, including Miss Parker’s testimony, was circumstantial only and without probative value. Defendant concedes that in People v. Robinson, 14 Ill.2d 325, 153 N.E.2d 65 (1958), our supreme court specifically refused to rule that a chemical analysis is the only means of proving a substance to be a narcotic. He attempts to distinguish that case on the grounds that there the testimony of the lay witnesses and former addicts was more substantial than in the case before us. He calls attention to the fact that in Robinson there was testimony that the substance had the same bitter taste as did the heroin the witnesses had previously used; that they had injected themselves using the same methods and paraphernalia as they had on previous occasions and that they had obtained the same reactions. In addition, an expert testified that an addict would come to know a narcotic by his reaction to it. We do not believe these distinguishing features are particularly significant, for each case must be judged on its own facts. In United States v. Agueci, 310 F.2d 817 (2nd Cir. 1962), the court stated:

“Just as with any other component of a crime, the existence of and dealing with narcotics may be proved by circumstantial evidence; there need be no sample placed before the jury, nor need there be testimony by qualified chemists as long as the evidence furnished ground for inferring that the material in question was narcotics.” 310 F.2d 817, 828.

In Toliver v. United States, 224 F.2d 742 ( 9th Cir. 1955), proof that a substance was heroin was held ample where it was based on evidence of the exorbitant price paid for a small amount of the substance; the fact that it was a powder; that the witness had been a user and had had previous transactions in narcotics; that he bought the substance as heroin and sold it to his customers as heroin and none of them complained. In Ewing v. United States, 386 F.2d 10 (9th Cir. 1967), a witness’, conclusion that she had received marijuana was competent evidence where founded upon her prior experience, rolling the cigarette herself, seeing what it looked like and the fact that it made her “high.”

As in Robinson, Agueci, Toliver, and Ewing, the evidence of the character of the substance here was partly direct and partly circumstantial. It was Miss Parker’s informed, though perhaps not expert, opinion that the substance was marijuana. By her own admission, Miss Parker was experienced in the use of many drugs, including marijuana. Her opinion of the narcotic character of the substance possessed by the defendant and smoked by her was competent direct testimony tending to prove an element of the offense. Her testimony was supported by circumstantial evidence that defendant had bought the material for $170 a pound and had sold it for $240 a pound without complaint from the purchasers. In addition, Hugh testified that though he did not smoke any of the substance he sold to the defendant, he was familiar with marijuana and the substance he sold looked like marijuana. Miss Parker’s testimony was further supported by the testimony of Mr. and Mrs. Tyler that defendant had told them personally that he and their son had been dealing in marijuana in Carbondale during the end of August, 1972, and that he mentioned names of some of the individuals to whom they had sold the marijuana. Considering all of these facts together, we find that they constitute ample proof sufficient for tire court to find beyond a reasonable doubt that the substance involved was marijuana and that they wholly support the trial court’s conclusion to that effect.

On the same point defendant also very briefly argues that there has been some recent evidence that there are three varieties of marijuana, i.e., cannabis sativa, cannabis indica and cannabis roderalis. From this it is contended that since cannabis sativa was the only substance covered by the Cannabis Control Act it was incumbent upon the State to prove the specific species involved here as cannabis sativa. We were directed to studies conducted on this question but we found them to be preliminary and speculative. Accordingly, and apart from the fact that the contention Was not raised in the trial court and is therefore waived here, we conclude that the argument itself is without merit.

The defendant finally contends that the court erred in entering judgment and sentence on both the conspiracy and possession charges. The defendant relies on People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316 (1958), and People v. Stewart, 45 Ill.2d 310, 259 N.E.2d 24 (1970), wherein our supreme court held that multiple conviction and sentences for acts which constituted a “single course of conduct” were improper where no independent motivation existed for the separate acts. Defendant argues that the offenses here involved a single course of conduct and that the conviction for possession of marijuana, the lesser offense, should be vacated. We feel, however, that defendant has misinterpreted the import of the supreme court cases. Stewart and Schlenger, People v. Scott, 43 Ill.2d 135, 25 N.E.2d 190 (1969), and the more recent cases of People v. Lilly, 56 Ill.2d 493, 309 N.E.2d (1974), and People v. Hood, 59 Ill.2d 315 (1974), involved multiple offenses arising from a single act and not a series of acts. In the case at bar, there were a series of acts culminating in the delivery of marijuana to Mair. In People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679 (1970), tire court relied on Stewart, Schlenger and Scott and held that defendants theft of a motor vehicle during an escape from the penitentiary constituted a single course of conduct and stated:

“It was therefore improper for defendant to be sentenced on the theft charge.” (46 Ill.2d 405, 410, 265 N.E.2d 679, 682).

Without further explanation, the court vacated both the sentence and conviction for theft.

Since Whittington was announced, section 5 — 8—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4) was enacted by the legislature. Subsection (a) of that statute states in part:

“The court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective.” (Emphasis added.)

The clear import of this statute appears to be that concurrent sentences for offenses arising from a single course of conduct are permissible. (See also People v. Whittington, 46 Ill.2d 405, 410, 265 N.E.2d 679, 682 (1970) (Mr. Justice Underwood’s dissent).

While we perceive a potential conflict between Whittington and the statute quoted above, we find it unnecessary to decide whether Whit tington has been superseded. The offenses here charged are separate and distinct. As we stated the test in People v. Ike, 7 Ill.App.3d 75, 286 N.E. 2d 391 (1972), where offenses result from a series of acts, though close in time, which require “separate and distinct” elements of proof, each offense may be punished separately. In the instant case, the possession as charged and proved was complete before the overt act of delivery began. The possession charge stemmed from August 25 while the overt act on which tire conspiracy charge was based occurred on August 26. The conspiracy charge alleged delivery of not less than 30 grams and not more than 500 grams of marijuana. To support the possession charge as framed in the indictment, the State was required to prove possession of more than 500 grams. There can be little doubt that defendant possessed the marijuana as part of the conspiracy to unlawfully deliver it to Alex Mair. But to hold that since his objective was the unlawful delivery of the marijuana, any other offense was merely part of the same transaction is to reward the successful criminal. As stated in Ike:

“The rationale of such an argument can only lead to irrational results. It deprives society of the right to determine accountability for criminal acts and instead grants to the criminal the right to avoid accountability for a second offense when perpetrated in the process of committing a first offense. We cannot accept such a theory.” (7 Ill.App.3d 75, 81, 286 N.E.2d 391, 395.)

We conclude, therefore, that defendant was properly convicted and sentenced on both charges.

Judgment affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Rosie Petty, Defendant-Appellant.
    (No. 73-90;
    Fifth District
    January 23, 1975.

      Robert E. Farrell and Michael J. Rosborough, both of State Appellate Defender s Office, of Mt. Vernon, and Karen Munoz, Senior Law Student, for appellant.
    Robert H. Rice, State’s Attorney, of Relleville (Robert L. Craig, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

The defendant, Rosie Petty, was indicted for the offense of murder. A jury found the defendant guilty of murder and the circuit court of St. Clair County entered a judgment of conviction against the defendant. After the defendant’s post-trial motion for a new trial was denied, a sentencing hearing was held and the defendant was sentenced to 14 to 45 years in the Illinois State Reformatory for Women. This appeal followed.

The defendant raises three contentions on this appeal. First, she contends that she was not proven guilty beyond a reasonable doubt of the offense of murder. Secondly, she contends that she was denied her right to a fair and impartial trial. And lastly, she contends that the maximum sentence imposed by the trial court was excessive.

The defendant premises her first contention upon the alleged failure of the State to prove that she entertained the requisite mens rea to be convicted of the offense of murder. Section 9 — 1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 1(a)(1) and (2)) provides, in part, that:

“(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
(1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
(2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another, # # *

In People u. Koshiol, 45 Ill.2d 573, 262 N.E.2d 446, cert. denied, 401 U.S. 978, our supreme court noted that:

“As to the question of the sufficiency of proof of specific intent the law is well settled that intent is a state of mind, and, if not admitted, can be shown by surrounding circumstances, and intent to take a life may be inferred from the character of the assault, the use of a deadly weapon and other circumstances. (People v. Shields, 6 Ill.2d 200, 127 N.E.2d 440.) Also, ‘Since every sane man is presumed to intend all the natural and probable consequences flowing from his own deliberate act, it follows that if one wilfully does an act, the direct and natural tendency of which is to destroy another’s life, the natural and irresistible conclusion, in the absence of qualifying facts, is that the destruction of such other person’s life was intended.’ (People v. Coolidge, 26 Ill.2d 533, 537, 187 N.E.2d 694, 697.)” 45 Ill.2d 573, 578, 262 N.E.2d 446, 449.

In the instant case the defendant took the stand in her own behalf. She testified that she and the deceased, Nathaniel Lewis, had been romantically involved for quite some time, that she had lived with the deceased continuously for 3% years, that she was pregnant and was miscarrying with the deceased’s child, and that she had visited the deceased on the day of the alleged murder in an attempt to procure financial assistance for the payment of certain medical bills. The defendant repeatedly disclaimed any intent to kill the deceased. She further testified that only after the deceased advanced toward her brandishing a knife with a 7-inch blade and uttering gruesome threats did she shoot him in an attempt “to scare him * * * only trying to frighten him.” This testimony, standing alone, may evidence sufficient provocation to require that the defendant be found either innocent of the offense charged, on the ground of self-defense, or guilty of a lesser offense, i.e., voluntary manslaughter.

The defendant admitted, however, that she had left her home on the morning in question with a loaded gun concealed on her person. She also stated that after she shot the deceased she disposed of the weapon by tossing it in the box car of a passing train. When first interrogated by the police the defendant denied any responsibility for the death of the deceased. The record also includes the testimony of two of the deceased’s sons who allegedly witnessed significant portions of the events immediately preceding and following the shooting of their father. Both testified that the defendant terminated her conversation with the deceased, left the presence of the deceased, and walked around the corner of their house, before she came back around the house and started shooting at the deceased. The older son, Nathanial Lewis, Jr., was, in fact, hit by one of the shots fired by the defendant. The testimony of the defendant is contradicted further by the medical testimony which revealed that the deceased “had a wound of his back underneath his right shoulder,” “two other gunshot wounds in the back,” and a “superficial wound of the right wrist,” and that any one of the three major wounds could have been fatal. It is also noteworthy that no knife was recovered.

Thus, the record reflects testimony which not only challenges the credibility of the defendant, but conflicts with' her initial description of the events surrounding the death of tire deceased. Although certain testimony at the trial tended to corroborate some aspects of the defendant’s testimony, the significant portions of such testimony were not confirmed and were often contradicted by the testimony of other witnesses. It was the province of the jury to determine whether they wished to accept the defendant’s version of the episode or the testimony offered by the State. As the court stated in People v. Pagan, 52 Ill.2d 525, 534, 288 N.E.2d 102, the judgment of the trier of fact will not be set aside on review unless die proof of guilt is so unsatisfactory as to create a reasonable doubt as to the defendant’s guilt. As did our supreme court in Pagan, we do not find die proof so unsatisfactory as to require a reversal, and we are satisfied, from a careful review of the entire record, that there was sufficient evidence to prove that the defendant harbored the requisite mental state to convict her of murder, i.e., that the defendant’s actions were neither the result of sudden and intense passion nor of serious provocation on the part of the deceased.

Having thus decided, we need not consider the defendant’s request that we reduce the offense to voluntary manslaughter.

Next, the defendant contends that she was denied a fair and impartial trial due to (1) the State’s Attorney’s repeated remarks and elicitation of testimony to the fact that the deceased was survived by four young children, (2) the inflammatory nature of the closing argument made by the State’s Attorney, and (3) testimony elicited by the State’s Attorney concerning an offense other than that charged by the indictment. We find that none of these particular circumstances, within the context of the record of the instant case, denied the defendant her constitutional right to a fair and impartial trial. In fact, many instances cited by the defendant as evidencing the State’s Attorney’s “prejudicial” remarks and elicitation of “prejudicial” testimony were clearly within the range of permissible latitude and, consequently, were admissible. Similarly, we find that the testimony concerning actions by the defendant which constituted a separate and distinct offense were properly admitted since its prejudicial effect was outweighed by its tendency to prove an important and disputed element in the State’s case against the defendant, the defendant’s mens rea at the time she allegedly committed the offense of murder. (See People v. Melquist, 28 Ill.2d 22, 185 N.E.2d 825, cert. denied, 372 U.S. 967.) The few remaining alleged instances of error, if not waived by the defendant’s failure to object at trial (People v. Edwards, 55 Ill.2d 25, 302 N.E.2d 306; People v. McCorry, 51 Ill.2d 343, 282 N.E.2d 425), are manifestly insufficient to support the defendant’s claim that she was denied a fair trial either when taken individually or collectively. (See People v. Wilson, 51 Ill.2d 302, 281 N.E.2d 626.) Although the defendant was not afforded a perfect trial free from all error, she was afforded her constitutional right to a fair and impartial trial.

Finally, the defendant contends that the maximum sentence imposed upon her was excessive. Although this court has the power to reduce a maximum sentence (e.g., People v. Tobin, 2 Ill.App.3d 538, 276 N.E.2d 828), it is not our function to determine the propriety of the sentence imposed by the trial court based on what we might have done. Our function is, instead, to determine whether the trial court properly exercised its discretion in imposing sentence. (People v. White, 22 Ill.App.3d 180, 317 N.E.2d 323.) We have, under circumstances similar to tire instant case, reduced a sentence imposed for murder from 50 to 70 years to 15 to 45 years. (People v. Gill, 7 Ill.App.3d 24, 286 N.E.2d 516.) We are unable to say, however, that the maximum sentence imposed in the instant case, 45 years, exceeded the discretionary authority vested in the trial court. Consequently, we will not reduce the sentence of 14 to 45 years imposed by the trial court in the instant case.

Having considered all of the assignments of error, we are of the opinion that the evidence was sufficient to establish the defendant’s guilt, that she received a fair trial, free from prejudicial error, and that tire maximum sentence imposed was not excessive. The judgment of conviction entered by the circuit court of St. Clair County is therefore affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE CARTER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George McKay, Defendant-Appellant.
    (No. 74-39;
    Fifth District
    November 27, 1974.

      Rehearing denied January 16, 1975.

      Robert E. Farrell, of Mt. Vernon, and James R. Streicker, 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 appellant, George McKay, was charged by indictment with burglary. He entered a plea of guilty and was sentenced to not less than 1 nor more than 3 years in the penitentiary.

On June 7, 1973, the grand jury of St. Clair County returned an indictment charging the defendant and two other men with burglary. On arraignment the defendant pled not guilty. Later as a result of plea negotiations he pled guilty. In return for the guilty plea the State promised to recommend probation, saying that the defendant did not have a previous felony record. The judge addressed the defendant personally, determining that he could read and write and that he had read the indictment. The minimum and maximum sentences were explained as were the rights to plead not guilty, to have a jury trial, and to confront witnesses. The State’s Attorney provided the factual basis for the plea. The court determined that no force or threat had been made to obtain the plea. When the defendant appeared for sentencing, it was disclosed that he had a previous felony conviction for which he had been placed on probation. Considering this and a previous juvenile record, the court sentenced the defendant to 1 to 3 years instead of giving him probation.

Appellant contends that the trial court failed to inform him of the nature of the charge as is required by Supreme Court Rule 402(a)(1).

This weU-quoted rule states that:

“In hearings on pleas of guilty, tihere must be substantial compliance with the following:
(a) Admonitions to Defendant. The court shaU not accept a plea of guilty without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge; * * ®”

The record discloses that this requirement was discharged in the following manner:

“THE COURT: Can you read and write?
DEFENDANT: Yes, sir.
THE COURT: Have you read the indictment that charges you with the offense of burglary?
DEFENDANT: Yes, sir.
THE COURT: What did you do? Would you tell me in your own words your understanding of the charge of burglary?
DEFENDANT: I just went in the house.
THE COURT: Somebody else’s house?
DEFENDANT: Yes, sir.
THE COURT: Did you have permission to go into it?
DEFENDANT: No, sir.”

As pointed out in this appeal, the element of intent, an essential part of the crime of burglary, was not mentioned to the accused. Again, after the State’s Attorney had supplied the factual basis for the plea, the court did not address the appellant and ask him if these facts were trae but instead questioned the appellant’s attorney who replied, “Nothing to add.”

The State argues that, when the entire record in the case is considered, it becomes clear that the requirements for substantial compliance with Rule 402(a)(1) were met. We do not agree.

The appellant was not asked if the statement of the factual basis for the plea was true. He was not asked if he understood the indictment which he said he had read. The elements of the offense of burglary, particularly the intent element, were not explained to him.

The facts in this case are virtually on all fours with People v. Roddy (1974), 19 Ill.App.3d 479, 480, 311 N.E.2d 738, where we said:

“We are, of course, well aware of our holding in People v. Witherspoon, 17 Ill.App.3d 842, 308 N.E.2d 844, which the State cites for the proposition that a reasonably clear and hard-to-misunderstand statement of the facts of the offense, which is acknowledged by the defendant as accurate, will provide substantial compliance with Supreme Court 402(a)(1). In Witherspoon we reiterated our position in Billops [People v. Billops, 16 Ill.App.3d 892, 307 N.E.2d 206] by distinguishing the two cases as follows: ‘In the present case [Witherspoon] the trial court addressed the defendant personally after the recital of the facts of the crime by the state’s attorney, while in Billops the trial court did not.’ [Citation.] In the instant case the trial court did not personally address the defendant with respect to the accuracy of the facts as recited by the prosecuting attorney.
Without such a personal acknowledgment by the defendant, there is no reason for not adhering to our interpretation of Supreme Court Rule 402(a)(1) as set forth in BiUops. Accordingly, we find that the trial court failed to substantially comply with the requirements of Supreme Court Rule 402(a)(1).”

We do not believe that on appeal the court should have to search the whole record and then conjecture as to whether or not Rule 402( a) (1) has been complied with. The requirement is specific; the intent of the legislature obviously was to have the trial judge “put it on the line” so there would be no doubt. This was not done, and the appellant’s conviction must be reversed and the cause remanded with directions that the appellant be permitted to plead anew. In view of this conclusion it is not necessary for us to consider appellant’s contention that the court erred by failing to accept his guilty plea without telling him that it was not bound by the plea negotiations.

The judgment of the Circuit Court of St. Clair County is reversed and the cause remanded so that the appellant may be permitted to plead anew.

Reversed and remanded with directions.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Coleson, Defendant-Appellant.
    (No. 74-105;
    Fifth District
    November 27, 1974.

      Amended opinion upon denial of petition for rehearing filed January 28, 1975.

    Paul Bradley, of State Appellate Defender’s Office, of Chicago, for appellant.
    W. C. Spomer, State’s Attorney, of Cairo, for the People.
   AMENDED OPINION UPON DENIAL OF PETITION FOR REHEARING

Mr. JUSTICE CARTER

delivered the opinion of the court:

James Coleson, the appellant, was prosecuted by indictment for the offenses of perjury and receiving illegal public aid. A jury found him guilty on two counts of perjury, and he was sentenced to two 3-year probationary terms to run concurrently, was ordered to pay a fine of $500, and was sentenced to 1 year’s periodic imprisonment to be served on weekends.

Appellant, á public-aid recipient in Alexander County, made an application for money under the Aid to Dependent Children program. In connection with this application questions had to be answered regarding eligibility for public assistance. Also, he was asked to supply information for a redetermination of eligibility by ascertaining whether assets, money, or other facts had changed since the original application. A caseworker for the Department of Public Aid in Cairo testified that she was acquainted with the appellant and his wife, that she was acquainted with then- signatures, and that she saw them affix their signatures to the application for Aid to Dependent Children. She also testified that in her opinion their signatures appeared on the redetermination form. The caseworker further testified that she had read the entire document to the appellant and his wife, including the declaration that it was made under penalties of perjury.

The State maintained that the appellant made false statements about his income as a result of which he illegally received public assistance and subjected himself to the penalty of perjury. The appellant did not present any evidence. At the close of the evidence he was found guilty on two counts of perjury and sentenced.

The issues presented on appeal are whether the indictmeiit was sufficient to charge the offense of perjury, whether the prosecutor’s reference in the closing argument to the appellant’s failure to testify constituted reversible error, whether the evidence was sufficient to prove the appellant guilty beyond a reasonable doubt, and whether the sentence imposed was excessive.

We will not consider the last three issues since the conviction must be reversed on other grounds.

Appellant contends that the indictment was insufficient because there was no allegation that he was under oath at the time of making the allegedly false statements, because the specific statements said to be false were not alleged in the indictment, and because count 3 of the indictment was internally inconsistent in that it alleged facts not constituting a violation of the statutes cited.

We do not agree with appellant’s first contention that the perjury counts were defective because they failed to allege that he was under oath at the time he made the allegedly false statements. Section 11 — 21 of the Illinois Public Aid Code (Ill. Rev. Stat., ch. 23, par. 11 — 21) provides that:

“If an applicant makes and subscribes an application form under Section 11 — 15 which contains a written declaration that it is made under penalties of perjury, knowing it to be false, incorrect or incomplete in respect to any material statement or representation bearing on his eligibility, income or resources, the offender shall be subject to the penalties of perjury as provided in Section 32 — 2 of the ‘Criminal Code of 1961’, approved July 28, 1961, as amended.”

Section 11 — 15 of the Public Aid Code, which specifies application requirements, requires the application to contain a written declaration as follows:

“‘I declare under penalties of perjury that I have examined this form and all accompanying statements or documents pertaining to the income and resources of myself * * * or any member of my family * * * included in this application for aid, or pertaining to any other matter having bearing upon my * * * eligibility for aid, and to the best of my knowledge and belief the information supplied is true, correct, and complete.’”

Obviously, it was the intent of the legislature that this statement would serve as an oath or affirmation. There is no requirement in section 11 — 15 that a notary public or other officer qualified to administer oaths be called in when the application form is signed. This would be a useless and cumbersome requirement. We have no hesitancy in saying that proof that the appellant signed an application containing the above declaration meets the oath or affirmation requirement for perjury. Ill. Rev. Stat., ch. 38, par. 32 — 2.

Appellant contends that the indictment is insufficient to charge the crime because it does not allege the specific statement or statements said to be false. The pertinent language from the indictment states that the defendant signed an application form under section 11 — 15 “knowing said application to be false in respect to a material statement bearing on the eligibility, income, and resources of James Coleson.” In People v. Grieco (1970), 44 Ill.2d 407, 409-10, 255 N.E.2d 897, the court said: “[A]n indictment phrased in the language of the statute creating the crime is sufficiently certain where the words of the statute so particularize the offense as by their use alone to notify the accused of the precise offense charged against him. [Citations.] But where the statute does not specifically define the crime, or does so only in general terms, some act showing an alleged violation of the statute must be averred.”

In People v. Aud (1972), 52 Ill.2d 368, 288 N.E.2d 453, the court held that a perjury indictment is not sufficient if it is phrased in the language of the perjury statute. (Ill. Rev. Stat., ch. 38, par. 32 — 2.) In reversing the conviction the court in Aud apparently held that a perjury indictment must set forth the alleged false statement, either verbatim or in substance. In Aud the court also said: “A bill of particulars cannot be used to cure a void charge.”

It should be pointed out that in a perjury indictment only words make the crime. If in a bill of particulars the defendant had to ask, “What words did I use that made it perjury,” this can only mean that the indictment did not charge a crime. Though the indictment in the instant case used language from section 11 — 15 of the Public Aid Code regarding income, resources and eligibility, it said only that appellant knew his application was false in some material manner with respect to a statement bearing on his eligibility, income, and resources. We do not believe this is sufficient to charge the crime of perjury.

Considering the failure of the indictment to sufficiently charge the crime, the conviction entered by the Circuit Court of Alexander County against the appellant for the offense of perjury is reversed.

Reversed.

CREBS and EBERSPACHER, JJ., concur.


author: Mr. JUSTICE G. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Dennis Dalzotto, Defendant-Appellee.
    (No. 74-101;
    Fifth District
    February 3, 1975.
    Kelly D. Long, State’s Attorney, of Hillsboro, for the People.
    Dennis M. Huber, of Buffington & White, of Hillsboro, for appellee.
   Opinion by

Mr. JUSTICE G. MORAN.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Scott Pruden, Defendant-Appellant.
    (No. 73-10;
    Fifth District
    January 28, 1975.

      Robert E. Farrell, of State Appellate Defender’s Office, of Mt. Vernon, and William J. Becker and Robert I. Wrigley, Senior Law Student's, research assistants, for appellant.
    Ronald A. Niemann, State’s Attorney, of Salem, for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a judgment of,guilty and sentence of 4.to 10 years in the penitentiary on a guilty plea entered in the circuit court of Marion County.

Appellant’s first contention is that the indictment to which he entered his plea, failed to properly charge the offense of burglary. That the indictment was carelessly and inartfully drawn cannot be denied. The indictment reads in part:

“Scott Pruden, David Hough, and Sally Myers committed the offense of burglary in that on said date at about 4:00 a.m. the said Scott Pruden, David Hough and Sally Myers without authority, knowingly entered a building occupied by Williams Implement located in the Village of Alma, in Marion County, Illinois with intent to commit therein a theft, in violation of paragraph 19 — 1, chapter 38, Illinois Revised Statutes.”

The insufficiency of the indictment is contended in two respects; (1) because it does not reveal who or what type of entity occupied the burglarized premises, and (2) because the indictment does not sufficiently identify the burglarized premises.

The test of sufficiency of an indictment is whether it: (1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant to enable him to prepare a defense, and (3) would sustain a plea of acquittal or conviction in bar of any further prosecutions of the same offense. People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269; People v. Grieco, 44 Ill.2d 407, 255 N.E.2d 897; People v. Rife (Fourth Dist. 1974), 18 Ill.App.3d 602, 310 N.E.2d 179.

The applicable statute, section 19 — 1(a) of the Criminal Code, (Ill. Rev. Stat. 1971, ch. 38, par. 19 — 1(a)), provides:

“A person commits burglary when without authority he knowingly enters or without authority remains within a building, * * *, or any part thereof, with intent to commit therein a felony or theft. * * *”

It is evident that the instant indictment contains all of the elements of the offense prescribed by statute. It is less clear, however, whether the specificity and particularity of the language within this indictment was certain enough to enable the defendant to prepare a defense and prevent the possibility of double jeopardy for the instant offense. Much of the uncertainty arises from the description of the building alleged to have been entered by the defendant as “occupied by Williams Implement located in the village of Alma, in Marion County, Illinois * * *.” The defendant contends that this language “renders the indictment fatally defective in that it neither sufficiently identifies the premises allegedly entered nor does it reveal who or what type of entity occupied the premises.” We do not agree.

The defendant premises much of this contention upon the proposition that a person named “Williams Implement” could own both a residence and business in Alma. According to this argument, the fact that there could be such a person creates the possibility of double jeopardy and could hamper defendant in his preparation of a defense by forcing him to speculate as to who or what “Williams Implement” was. We consider it highly improbable that defendant believed “Williams Implement” to be the name of a person. If there was any question in his mind during any of the proceedings a simple oral inquiry would have resolved it without resort to discovery or bill of particular procedures. The record in this cause is also available to the defendant to bar any future prosecution based upon the same offense. Such being the case, we hold that whatever ambiguity was created by the use of “Williams Implement” did not render the instant indictment fatally defective.

We also hold that neither the absence of a street address (People v. Campbell, 40 Ill.2d 463, 240 N.E.2d 635; People v. Reed, 33 Ill.2d 535, 213 N.E.2d 278) nor the failure to allege ownership in some person other than the defendant (People v. Gregory, 59 Ill.2d 111, 319 N.E.2d 483; People v. Whittaker, 45 Ill.2d 491, 259 N.E.2d 787; People v. Stewart, 23 Ill.2d 161, 177 N.E.2d 237), ipso facto, renders the instant indictment invalid. Consequently, these deficiencies are waived by the defendant’s plea of guilty (see People v. Jackson, 23 Ill.2d 475, 179 N.E.2d 9), unless such deficiencies evidence the failure of the indictment to sufficiently apprise the defendant of the offense charged, to enable him to prepare a defense or to protect him against the possibility of future prosecution for the same offense (People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269).

Despite the foregoing deficiencies in the instant indictment, the allegations contained therein are sufficient, in our opinion, to fulfill the due process requirements set forth above. Although the allegations contained in the indictment lack a certain degree of specificity, which may require the granting of a bill of particulars (People v. Reed, 33 Ill.2d 535, 213 N.E.2d 278), it is not invalid. In People v. Gregory (1974), 59 Ill.2d 111, 319 N.E.2d 483, our supreme court repudiated the ownership requirement by stating:

“While at one time it was necessary that an indictment for burglary identify the owner of the building concerned, if it was known, such an allegation of ownership is no longer required. (People v. Stewart, 23 Ill.2d 161, 166-168, 177 N.E.2d 237; People v. Whittaker, 45 Ill.2d 491, 259 N.E.2d 787.) We would point out that a majority did say in People ex rel. Ledford v. Brantley, 46 Ill.2d 419, 263 N.E.2d 27, that an indictment’s failure to allege the ownership of the burglarized premises will render an indictment fatally defective. While the indictment in Ledford provided no identification whatever of the ‘dwelling’ which was burglarized, that omission did not justify the statement that ownership must be alleged. The holding simply cannot be supported. It must be regarded as erroneous, and accordingly it is overruled.” (59 Ill.2d 111, 114, 319 N.E.2d 483, 485.)

In an earlier opinion, People v. Orndoff, 39 Ill.2d 96, 233 N.E.2d 378, our supreme court stated:

“The indictment, however, stated the name of the store where the offenses occurred and the county wherein it was located. These facts are sufficient io inform the defendant of the nature of the charges against him and, consequently, there is no merit to the charge that the indictment was fatally defective. [Citations.]” (39 Ill.2d 96, 99, 233 N.E.2d 378, 381.)

The instant indictment states the name of the store wherein the burglary occurred, “Williams Implement,” and not only the name of the county, “Marion”, but the name of the incorporated village wherein it was located, “Alma.” The instant indictment also charged that said burglary occurred on June 8, 1972, and that the defendant “knowingly” and “without authority entered a building occupied by Williams Implement * * * with intent to commit therein a theft.” These allegations were adequate to apprise the defendant of the offense with which he was charged, to enable him to prepare a defense, if he had one, and to protect him against the possibility of future prosecution for the same offense.

The defendant’s only other contention is that the sentence imposed by the trial court, 4 to 10 years for burglary, is excessive. The State concedes that the minimum sentence must be reduced to one-third the maximum sentence of 10 years in accordance with the provisions of the Unified Code of Corrections. While we note that the record supports the imposition of a sentence in excess of the minimum sentence provided by statute (Ill. Rev. Stat. 1973, ch. 38, pars. 19 — 1(b), 1005 — 8—1(c)(3)), we find it insufficient to justify the 4-year minimum imposed by the trial court. Since neither the protection of society nor the rehabilitation of the defendant indicate the need for so great a minimum sentence, we modify such sentence to one of 2 to 6 years’ imprisonment.

In accordance with the foregoing discussion, the judgment of conviction entered by the circuit court of Marion County is affirmed as modified, and we remand this cause to the circuit court of Marion County for correction of the mittimus to reflect the modified sentence.

Affirmed as modified and remanded.

G. MORAN and CREBS, JJ., concur.