author: Mr. JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bruce F. Nelson et al., Defendants-Appellants.
    (No. 73-297;
    Third District
    April 16, 1974.
    James J. Reese, of Blodgett & Reese, of Rock Falls, for appellants.
    Russ Wills, Assistant State’s Attorney, of Morrison, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendants Bruce F. Nelson and Randy T. Scott appeal from a judgment of conviction of drag racing (Ill. Rev. Stat. 1971, ch. 95½, par. 11— 504) entered in the Circuit Court of Whiteside County. A $100 fine and costs were assessed against each defendant.

A Whiteside County Deputy Sheriff, on January 5, 1973, filed charges of drag racing against defendants. From the record it appears that the trial was set for February 21, 1973, and' that no prosecution witnesses appeared. Defendants moved to dismiss the cases, and the trial court granted such motions after denying a prosecution motion for continuance. On April 12, 1973, however, the State refiled the same charges. Defendants moved to dismiss such charges on the ground that there had been a prior adjudication in favor of defendants as a result of the proceedings on February 21, 1973, and that further prosecution on such charges could not be maintained. The court denied defendants’ motion. On May 2, 1973, a bench trial was held and the court found defendants guilty and imposed a fine against each of them as indicated. The statute, pursuant to which they were prosecuted, also provides that each defendant so convicted of violating the Act would suffer a revocation of each defendant’s operator’s license. (Ill. Rev. Stat. 1971, ch. 95½, par. 11—504.) Defendants filed post-trial motion for judgment notwithstanding the verdict, based upon the disposition of the original charges on February 21, 1973.

Defendants on appeal now argue that the trial court, in violation of Illinois Supreme Court Rule 504 (Ill. Rev. Stat. 1971, ch. 110A, par. 504), erred in overruling their motions to dismiss the charges which were filed on April 12, 1973, and they also state that the evidence on the hearing of the April 12, 1973, charges was insufficient to prove the guilt of defendants beyond a reasonable doubt.

Illinois Supreme Court Rule 504 referred to specifically provides, “[T]he dates set by the arresting officer for a defendant’s appearance in court shall not be less than 10 days but within 45 days after the arrest, whenever practicable. It is the policy of this Court that an accused who appears and pleads not guilty’ to an alleged traffic or conservation offense should be granted a trial on the merits on the appearance date set by the arresting officer. Except as provided in Rule 505, an arresting officer’s failure to appear on that date, in and of itself, should not normally be considered good cause for continuance.” (Emphasis added.)

It is asserted by the State that uniform traffic complaints were Served on defendants at the time of their arrest on January 5, 1973, which set an appearance day of January 25, 1973. It is asserted that on that date both defendants appeared and entered oral pleas of not guilty and requested a bench trial and that on January 31, defendants filed a notice of intention to plead not guilty. It is asserted that a bench trial was set for February 7, 1973, and that on the failure of defendants to appear on such date, the cases were continued to February 21, 1973. It is conceded that on February 21, 1973, the date set for trial, defendants appeared. The prosecution sought a continuance asserting that the notice addressed to the arresting officer contained an incorrect date. Such motion foi: continuance was denied and the court ordered a dismissal of the complaints. It is contended by the State that Rule 504 does not apply because defendants failed to demand a trial at their initial scheduled court appearance and failed to appear on the first scheduled trial date but finally appeared for a trial on what was stated to be the third setting of the case. It is the contention of the State that the court was, therefore, free to entertain the charges against defendants despite Supreme Court Rule 504 referred to. Although the record fails to indicate some of the material facts alleged by the State, we conclude that subsequent prosecution should have been barred by Supreme Court Rule 504 and that, therefore, the trial court should have granted the defendants’ motions for judgment filed by defendants at the close of the proceedings in the trial court.

The obvious policy objective underlying the Illinois Supreme Court Rules 504 and 505 is expressly indicated in the Rules, and its stated purpose is to avoid subjecting accused persons, in traffic and conservation cases, to multiple court appearances, and, as a means to that end, to allow an accused to have a disposition on the merits of the charge on the date first set for the trial actually to occur. This disposition is to occur, according to Rule 504, on the date set forth in the citation, unless, according to Rule 505, the accused files a notice of intention to plead not guilty, and, if he wishes, to demand a trial by jury. In either of the cases, a disposition on the merits, according to Rule 505, shall be on the new appearance or trial date set by the court according to such Rule. The objective of the Supreme Court Rules, as expressly stated in Rule 504, is to provide for a disposition “on the merits”. A mere dismissal of the charges, with the right of the State to reinstate them at some time subsequently, would not be a disposition “on the merits” within the meaning of Rule 504. Such a disposition would be contrary to the policy expressed in the Supreme Court. Rules.

In applying the objectives of the Supreme Court Rules as best we are able with respect to the case at bar, we find that on initial appearance fixed for January 25, 1973, if defendants had not proceeded in accordance with Rule 505, defendants would have been entitled to a “trial on the merits” at such time. On January 25, 1973, defendants, however, entered oral pleas of not guilty and .on January 31, 1973, filed notice of intention to so plead contemplated by Rule 505. As of January 25, 1973, the trial date had been set for February 7. The notice-giving procedure of Rule 505 contemplates, however, that new trial date be set after these notices are filed. This explains and apparently excuses defendants’ failure to appear on February 7, since defendants and the court then knew that a new trial date would be required to be set. The specified new date was February 21, 1973, and on that date defendants were entitled to a disposition “on the merits”, if the objectives of the Supreme Court Rules were to be carried into effect. As we view the Rules it was intended that the disposition on the merits contemplated by Rule 504 was to be a final disposition of the charges. Since the prosecution witnesses did not appear on February 21, 1973, the proper disposition on that date should have been a dismissal of the charges without any right in the State subsequently to reinstate them. As we have indicated, the court denied a motion of the State for a continuance and dismissed the charges. In view of such proceedings, we believe that the trial court improperly permitted the State to proceed with the same charges as refiled on April 12, 1973.

We are mindful that defendants did not comply strictly with the requirements of Rule 505 in tendering the required notices at least 5 days before the day originally set for their appearance. The court, however, accepted the notices and defendants’ pleas when they were tendered and, in conformity with Rule 505, it set a new date for trial. We conclude, therefore, that defendants were entitled to a disposition on the merits on the trial date set of February 21, 1973, which we consider to be the date and time for appearance referred to in Supreme Court Rule 505.

We are aware of the case of People v. Lamb, 6 Ill.App.3d 568, 286 N.E.2d 37, in which the court indicated that granting a new trial was not an “acquittal” and, also, of People v. Rinks, 80 Ill.App.2d 152, 224 N.E.2d 29, in which the court indicated that dismissal for want of prosecution would not establish a basis for a plea of double jeopardy in a subsequent proceeding. If there were no Supreme Court Rules 504 and 505 and the facts were as appear in the cause before us, we might find the Rinks case a precedent to follow. We do not believe, however, that Supreme Court Rules 504 and 505, designed to apply to traffic and conservation cases, can be disregarded. We have before us Supreme Court Rules which expressly state objectives not governed by the cases to which we have referred or the provisions of section 3—4 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, § 3—4).

As indicated, the objective of the Supreme Court Rules was to implement the policy of the court to the effect that the accused who appears and pleads not guilty to an alleged traffic or conservation offense should be granted a “trial on the merits” on the appearance or trial date set. If we were to construe such Rules in the manner contended for by the State, then the Rules would become meaningless, since a dismissal for failure of the State to proceed at the time hearing is set, would simply mean that the State could refile the same charge repeatedly and force a defendant to come into court again and again on each occasion when the charge is refiled, until finally the cause is disposed of through trial. This was obviously not the objective of the Rules, and consistent construction requires that we find that defendants who appear and plead not guilty to traffic or conservation offenses referred to are to be granted, effectively, a disposition on the merits on the appearance date if they are ready for trial. As applied to the cause before us, we conclude that if the State does not present any evidence at such time and the trial court does not grant a continuance to the State, the disposition by the trial court should be on the merits, and such disposition and dismissal should prevent any subsequent prosecution on the same charge by the State. As a caveat, we specify that this procedure would not be applicable to causes other than those specifically provided for in the Supreme Court Rules, and that the application of this particular construction is limited to traffic and conservation cases as noted in the Rules.

The State contends that the provisions of section 3—4 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, § 3—4) should apply to the question before the court, and that the test of whether the motion to dismiss should have been granted in the second proceeding should meet the specific provisions of such Act. As we have indicated in the course of this opinion, such construction would nullify Supreme. Court Rules 504 and 505 which were intended to be applicable to proceedings in traffic and conservation cases referred to. No appeal was taken by the State from the disposition of the case by dismissal in the initial proceeding (February 21, 1973) or from the failure of the trial court to grant a continuance to the State at such time.

For the reasons stated, therefore, we believe that the action of the trial court should be reversed and the judgment entered as against defendants should be vacated, for the reason that the judgment of dismissal entered by the trial court on February 21, 1973, was a final disposition on the merits by reason of the failure of the prosecution to proceed with evidence to support the charge filed in such cause. The subsequent proceedings on the same charges filed on April 12, 1973, were barred by the final disposition of such charges on February 21,1973.

By reason of our disposition of this cause we find it unnecessary to discuss the issue of reasonable doubt also raised by defendants.

This cause is, therefore, reversed and the judgment of conviction of drag racing entered as against defendants Bruce F. Nelson and Randy T. Scott is herewith vacated.

Reversed and judgment vacated.

STOUDER and DIXON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE STOUDER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Raymond Golden, Defendant-Appellant.
    (No. 73-17;
    Third District
    April 17, 1974.
    Stephen Hurley, Assistant Appellate Defender, of Ottawa, for appellant.
    James Christy, Assistant State’s Attorney, of Peoria, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

After pleading guilty to the charge of possessing .9 grams of a controlled substance (heroin) in violation of section 402(b) of the Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56½, sec. 1402(b)), the defendant, Raymond Golden, was sentenced by the circuit court of Peoria County on September 29, 1972, to a term in the penitentiary of from 2 to 6 years.

On this appeal defendant contends the statute under which he was convicted is violative of State and Federal constitutions because first, it provides for a penalty based on the weight of a “substance” containing the controlled substance and second, it grants to the State’s Attorney the discretion to determine whether the offense shall be prosecuted as a misdemeanor or as a felony. Although the parties have discussed these issues in their briefs, they concede that previous decisions of this court have considered the substance of such constitutional errors and that there are neither new precedents nor distinguishing facts which require reconsideration of these issues at this time. See People v. Campbell, 16 Ill.App.3d 851, 307 N.E.2d 395, and People v. Kline, 16 Ill.App.3d 1017, 307 N.E.2d 398, concerning the first issue, and People v. Chambers, 15 Ill.App.3d 23, 303 N.E.2d 24, concerning the second issue.

This brings us to defendant’s last assignment of error which is his claim the sentence imposed is excessive.

Defendant was arrested on January 31, 1972, and pleaded guilty to the offense of possession of less than 1 gram of heroin on September 28, 1972. His plea was not the result of any negotiations or bargains with the State’s Attorney and no claim is made that it was induced by any promises. After a hearing on his petition for probation which was also considered in aggravation and mitigation of the penalty to be imposed, probation was denied and defendant was sentenced to from 2 to 6 years in the penitentiary. It appears from the evidence presented at the sentencing hearing that defendant was a heroin addict at the time of his arrest in January and had been such an addict for approximately 3 years. He had no record of prior felony convictions although his work record prior to his arrest indicated a frequent change of employers and unsatisfactory work performance. Subsequent to his arrest defendant voluntarily sought treatment for his heroin addiction at the Stonehedge Foundation, a treatment and rehabilitation center for persons addicted to drugs located in Peoria. From February until June, Golden was treated on an outpatient basis in the Foundation’s methadone program. During this period he remained physically dependent on the methadone treatment and in June he was admitted to the residential treatment program. In July, Golden was able to withdraw from methadone and according to the Director of the Foundation, twice weekly testing thereafter indicated the defendant to be drug-free during the 3-month period prior to his sentencing. Defendant was employed as a counselor and continued to participate in the Foundation’s program.

At the sentencing hearing the director of the Foundation indicated defendant’s treatment had been successful and that incarceration would be detrimental to defendant’s continued success. The probation officer, also called by the defendant, recommended continuation of the treatment program but also recommended 1 year of incarceration thereafter. In final argument the State’s Attorney insisted that he did not “* * * want the Court to establish, in the minds of people who are involved in drugs in this community that they can simply run to treatment as an alternative to penalties. If they want to seek treatment, they should do that prior to charges being brought *. The court in denying probation and imposing the jail sentence did not indicate any reason for its decision.

Because of problems associated with the preparation of the record in this case, our review has come at a time when a consideration of the propriety of the sentence is of little significance. During oral arguments we were advised the defendant has been paroled. Believing that no extensive discussion of this issue would be of any significant benefit at this time, we content ourselves with the observation that the sentence of from 2 to 6 years in the penitentiary after the defendant has successfully accomplished by treatment that which may or may not be accomplished by incarceration is contrary to the objects and purposes of the penal sanction. (People v. Cyphers, 4 Ill.App.3d 856, 281 N.E.2d 796.) To be sure, the sentence is within the range provided by statute. It is also undisputed that defendant was in possession of heroin which constitutes a criminal offense. Nevertheless, if the purpose of proscribing possession of heroin is for the primary purpose of reducing or preventing its use then a course of conduct designed to reduce or eliminate heroin addiction, such as by the treatment in the instant case, accomplishes in large measure the purpose of the statute, and contrary to the position of the State’s Attorney, treatment should be encouraged rather than discouraged. See Ill. Rev. Stat. 1971, ch. 56½, par. 1410.

For the foregoing reasons, we believe the minimum term of the penitentiary sentence should be reduced to the period of time already served and the maximum penitentiary sentence should be reduced to 3 years and as so modified the conviction and sentence of the circuit court of Peoria County is affirmed.

Judgment affirmed as modified.

ALLOY and DIXON, JJ., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Chester Schabatka et al., Defendants-Appellants.
    (No. 72-169;
    Third District
    April 17, 1974.

      Robert H. Jones, of Peoria, for appellants.
    Jay H. Janssen, Assistant State’s Attorney, of Pekin, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendants Chester Schabatka and Norburn Dean were found guilty by a jury of burglary and arson. The Circuit Court of Tazewell County sentenced Dean to imprisonment for not less than 5 nor more than 10 years for burglary and not, less than 5 nor more than 15 years for arson, sentences to be concurrent. Schabatka was sentenced to not less than 2 nor more than 5 years for burglary and for not less than 5 years nor more than 10 years for arson, sentences to be concurrent. Both defendants appeal contending that the jury was not properly instructed; that they were denied equal access to discoverable material and other physical evidence; that they were denied the right to have the jury consider certain evidence; and that the record does not establish their guilt beyond a reasonable doubt.

On July 23, 1971, James Emmons and wife Ann, were buying a home at 115 Fifth Street, South Pekin, Illinois. They had occupied the house for about a year but on July 23 they were on vacation visiting a relative in Omaha, Nebraska. No one had been given permission to live in their home during their absence but they had asked Debbie Davison, a neighbor girl 15 years old, to watch the house and take care of their dog. The house contained an oil furnace and a gas stove on which pilot lights were burning. On learning of a fire in their home they returned and discovered the house “gutted” but “nothing missing.” The contents and the house were insured and the full amount of insurance was paid by their insurance company. Neither knew either defendant and had no dealings with them.

At about ten o’clock on the night of July 23, 1971, Debbie Davison was at her home with her mother and sister. The Emmons home was about 100 feet away. Debbie heard glass breaking, looked out her window and saw figures of two men at the back door of the Emmons home. She did not see what they were doing; it was dark and they were standing up. One of the figures had on a white T-shirt and the other had dark clothing. One was tall and one comparatively short. After watching about 2 minutes she left the window and called the police. When Debbie returned to the window there were two explosions; she saw one person “fly out of the house” and the other one came running out. Both were on fire and they began rolling in the grass. It was not light enough for her to see the faces and she could not identify the men.

David Lee Lowery, a friend of defendants, was working the 4 o’clock to midnight shift at American Distillery in Pekin on July 23, 1971. At around 10 o’clock that night he received a note requesting he call tire telephone number of defendant Schabatka. He called Schabatka at his home, checked out of work and drove to Schabatka’s home where he found both defendants burned “pretty bad.” When he first saw defendants, Schabatka was wearing a bathrobe, and Dean’s clothing was mostly “burned off—he had not much of anything on—nothing that I can say what color.” At this time Schabatka was conscious but Dean was in shock, “coming and going—not really conscious.” Lowery administered first aid (he had had army training for burns in crash rescue). He telephoned Jim Clark, requesting assistance in transporting defendants to hospital, and, when Clark arrived, the defendants were placed in Lowery’s car. He decided to take defendants to St. Francis Hospital in Peoria rather than to the nearby Pekin hospital because his mother was employed at the St Francis emergency room. At Creve Coeur the car was stopped for speeding by local police who called an ambulance and who then escorted the car until the ambulance was intercepted in East Peoria and defendants transferred to the ambulance for the remainder of the trip.

Larry Layer, a sergeant in the Sheriffs department who was on duty at the time of the fire, made plaster casts of footprints found in the area. He found burned clothing at the scene, a flashlight, a small pry bar and com leaves containing blood stains. He went to St. Francis Hospital emergency room where he took both defendants’ clothing (no T-shirt) and shoes and certain cotton swabs. As a result of what defendants told him he “had patrol cars check for a burned station wagon.”

The blood on the com leaves was type A. Defendant Schabatka had type A, but so do about 40% of the population. Scientific analysis disclosed that the fabric of clothing found at the scene, could not have originated from the clothing taken at the hospital, the soil removed from defendant’s shoes “failed to reveal a sufficient number of areas of similarity to indicate a common source; no fingerprints were found on the flashlight and pry bar; and the casts of the footprints at the scene did not match with shoes of either defendant taken from the hospital.”

An arson investigator inspected the Emmons home on August 12, 1971. He detected the odor of gasoline on carpet samples, concluded that the fire was started by an accelerant and that gasoline fumes could have been ignited by the pilot light on the gas stove.

James A. Flynn, a criminologist, scientifically analyzed the carpet samples, defendants’ clothing and the cotton swabs all of which he stated contained gasoline vapors.

The first witness for the defendants, Wayne Werchez testified that he had a small used-car business and that in July 1971 he sold an old red Dodge or Plymouth station wagon to a Ralph Johnson for $50 or $75. Johnson was a “kind of hippie type fellow with long hair and whiskers.”

Donald Barth testified that on July 25, 1971, he saw a red 1960 Dodge station wagon that had been badly burned. The tires and radiator were on it. The car was behind a slag pile off the traveled portion of a gravel road about a half mile south of LaMarsh Creek Road. He notified the sheriffs department.

Robert DuBois, a crime-scene technician went to the car on July 26, 1971. He photographed and took debris samples from the interior. The debris samples were negative as to the presence of any accelerant. When he saw the car, the front tires and the radiator were missing. There was no battery in the car and there was no residue of any plastic or battery material having melted in the area.

William Bond testified that both defendants were working on Dean's house when he left them at 8:30 on evening of July 23, 1971.

Sylvia Armstrong testified that she saw defendants arrive at Tony Bakers tavern in Mapleton, Peoria County, at between 8:45 and 9. She saw them leave between 9 and 9:20 P.M. with a man about 30 to 35 years old who had long hah and was wearing glasses. Defendants were wearing pants and shirts but she didn’t really pay that much attention. They were not in the tavern “too long.”

Defendant Schabatka testified that about 8:30 he and Dean left Dean’s house and drove 4 or 5 miles across the river to Tony Baker’s tavern arriving at about 8:40. While there, this stranger, a hippie type with long hair asked Dean to help him get his car started. Defendants agreed to “give the guy a hand.” They all left the tavern about 9:15 to 9:20 P.M. On the way to the car the guy said his name was Ralph Johnson. After driving about 5 minutes they came upon Ralph Johnson’s car. After trying unsuccessfully to get the car started they determined it needed gas to be poured into the carburetor. In the wagon there was an outboard motor containing gas and an empty can. The outboard’s gas was poured into the can. Dean then poured gas into the carburetor, shut the hood, came around the car, sat in the seat beside Schabatka and said “OK try that.” Johnson stood right beside the driver. Both doors were open. Schabatka then tried to start it and the car exploded, flames shot from everywhere. He testified, “Well, I blowed out of the car and I was all on fire, completely on fire seemed like at the time.” His clothes were on fire and he got the fire out and then he got Dean and drove home (about 5 miles). He did not know what became of Johnson as he never saw him again after the explosion. At home, “We took off the clothes what was left.” He put on a bathrobe. At home his wife was too shaken to drive defendants to hospital so he called his buddy David Lowery. At the hospital when he talked to the police he was not in his right mind. He was burned from the waist down, had some burns on his arms and had a cut requiring stitches on one of his arms.

The defense contends initially that the jury was not properly instructed in that the court, over objection, gave I.P.I. Criminal No. 3.04 and refused defendants’ tendered instruction 3, 4 and 11 which were not in I.P.I.

I.P.I. 3.04 reads, “Motive is that which prompts a person to act. The State is not required to prove a motive for the commission of the crimes charged.”

Defendants concede that the cases cited by the Committee hold that motive is not an essential element of proof in a criminal case but seizes on the exception: “Accordingly, if the People adduce evidence tending to prove a motive and the prosecutor argues the circumstance of motive to the jury, this instruction should not be given.” Defendants further concede that nothing was adduced in the evidence concerning motive, except inferentially, in the testimony of James Emmons that he did not know the defendants and had never had anything at all of any kind, character or nature to do with them. We do not agree that such evidence was designed to show motive for this arson and we do not believe that under the circumstances of this case such instruction constituted error.

Defendants tendered Instruction 3:

“Your personal opinions as to the facts not proven cannot properly be considered as the basis for your verdict. You may believe as men and women that certain facts exist, but as jurors you can only act on the evidence introduced upon the trial, and from that and that alone you must form your verdict, unaided, unassisted and uninfluenced by any opinions or presumptions not formed upon the evidence.”

Instructions that are out of keeping with the general purposes endorsed by the supreme court in the publication of Illinois Pattern Jury Instructions because they are repetitious or otherwise inconsistent with those purposes, are not to be given even though they may be a correct statement of the law and though their use has been approved in the past. (Bulleri v. Chicago Transit Authority, 41 Ill.App.2d 95.) I.P.I. Criminal 1.01 was given and paragraph 3 contains a “very good statement of the law.” Eckels v. Hawkinson, 138 Ill.App. 627, 633—4. See Comment to I.P.I. Civil 2d 1.01.

Defendants tendered Instruction 4:

“The Court further instructs the jury that in this case the defendants have made a defense of what, in law is called an alibi; that is, that at the time the offense charged in the Indictment is alleged to have been committed that the defendants were not at the place where the crime was committed but were elsewhere. And the Court instructs you that it is not necessary that the defendants prove their alibi beyond all reasonable doubt, but if, considering the evidence of alibi, together with all other evidence in the case you have any reasonable doubt of the defendants’ guilt, then you should acquit them.”

I.P.I. Criminal 2.03 and 3.02 were given. This court recently held that it was not error to refuse to give an instruction on the subject of alibi. People v. Hawkins, 4 Ill.App.3d 471.

Defendants tendered Instruction 11:

“In every criminal case, the accused have the right to advance any theory of their defense, but in order to be entitled to an acquittal the Defendants are never required to prove their theory of the defense beyond a reasonable doubt, nor even to the satisfaction of the jury. The burden is upon the People to establish their guilt beyond every reasonable doubt, and if, after considering the evidence introduced by the Defendants in connection with all the other evidence, the jury have a reasonable doubt of the Defendants’ guilt, they cannot be convicted.”

Again, I.P.I. Nos. 2.03, 3.02, 15.02, 14.06 were given and we find that the jury was adequately instructed on the burden of proof, the effect of circumstantial evidence, and the requirement of proof of defendant’s guilt beyond a reasonable doubt. At defendants’ request 2.03 was given in its entirety, the last paragraph provided:

“You should not find the defendants guilty unless the facts and circumstances proved exclude every reasonable theory of innocence”.

The defendant was not entitled to repetitious instructions. People v. Richards, 120 Ill.App.2d 313, 345.

Defendants next contend that they were denied equal access to discoverable material and other physical evidence.

On February 25, 1972, defendants each filed identical motions for discovery the pertinent paragraphs being “d. Any reports of experts * * and “g. Any and all tangible evidence which the State has in its possession and control * *

On March 12 in response the State furnished an Exhibit 3 (not abstracted), stated that the People were unaware of any other reports at that time but stated, “If any other reports of experts reach the files of the State prior to trial of this cause, copies of the reports will be forwarded to the defendants through their counsel.” The State stated that photographs of a 1960 Dodge station wagon were in custody of Robert DuBois. Tangible items belonging to accused were listed and attached to Exhibit 3. The items and photographs were open to inspection by the defense.

On May 10, 1972, pursuant to a motion of the People stating that not all physical evidence sent to Illinois Crime Laboratory for analysis had been returned and analyzed, the court entered an agreed order for continuance to June 26, 1972. The order recited that defense counsel would desire an opportunity to examine such physical evidence and any analytical reports and was signed and approved by defense counsel.

On the morning of trial the defendants’ attorney stating that he had received the analytical report of debris from the car and feeling that there may have been favorable evidence demanded an opportunity to examine the burned automobile. The People denied ever having had the car in their possession or control. They did not impound it and had no present or prior knowledge of its whereabouts since July 26, 1971. It had been examined on July 26, 1971, by Robert DuBois of the Illinois Department of Law Enforcement at the slag-pile area off the road but never impounded. The State never intended to use the automobile as part of its case. Diligent good faith efforts had been made to locate the car. Defense counsel stated, “I’m satisfied that due to my request he communicated with the proper law officials as a result of which no one has any idea of the whereabouts of this automobile.”

The defense has cited no cases and we are aware oí none that would require a party who never had possession and control of an object to produce it. Supreme Court Rule 412 (Ill. Rev. Stat., ch. 110A, sec. 412) provides,

“* * * the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession and control: * * (Emphasis supplied.)

Further, the Committee Comments say that the rule requires a specific request for disclosure because in many cases discovery may be neither necessary nor wanted and that, therefore, the choice of discovery or no discovery is left to the discretion of defense counsel rather than making it automatic.

The defendants in this case were fully aware that the burned automobile might be a factor in their case yet at no time did they specifically request an independent inspection of the automobile until the eve of trial, almost 1 year after the event.

We do not believe that the failure to produce what was not available for production, in the absence of a deliberate suppression of evidence favorable to the defense, deprived the defendants of a fair trial.

When James A. Flynn (the criminologist who examined and analyzed items for the presence of gasoline vapors) was called to the stand, the defense made a motion to exclude his testimony on the ground that a copy of his report had not been furnished to the defense. The assistant State’s Attorney claimed that he had long ago furnished a copy. Another copy had been given to the defense the previous evening. The report was short and could be read in 2 minutes. The trial judge denied the motion to suppress the testimony.

The order for continuance entered by the court on May 10, 1972, approved and signed by defense counsel recited “* * * and counsel for the defendants advising the Court that defense counsel would also desire an opportunity to examine such physical evidence and any analytical reports as to same * * It is evident that counsel had some knowledge prior to trial. There was no wilful concealment by the State.

Supreme Court Rule 415(g) states that “* * * the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other order as it deems just under the circumstances.”

In the instant case the defense knew on March 14, 1972, that the State had the items of evidence and that they either had been or were going to be analyzed. Of course, the defendants should have been given a copy of the expert’s report as soon as available, but by the same token, they cannot wait until the second day of trial and now be heard to cry unfair trial. Cf. People v. Embry, 12 Ill.App.3d 332, 335.

When David Lee Lowery testified he was asked if he had a conversation with the defendants at Schabatka’s house on July 23, 1971. He replied that he had at around 10:30 P.M. When asked to relate what was said an objection was made by the State and sustained by the court. The defense made an offer of proof to the effect that Lowery would have said that Dean said, “My God, that fire, the car blew up.”

In the same fashion Officer Layer was not allowed to relate what the defendants told him at about 1:45 A.M. in the St. Francis emergency room as to how they got burned.

Defendants contend that the testimony should have been admitted as spontaneous or excited utterances. The requirements for admissibility under this exception are: (1) the occurrence of an event sufficiently startling to produce a spontaneous and unreflecting statement; (2) absence of time to fabricate; and (3) the statement must relate to the circumstances of the occurrence. People v. Poland, 22 Ill.2d 175; People v. Parisie, 5 Ill.App.3d 1009, 287 N.E.2d 310.

Statements made by an accused in a criminal case may be admitted as spontaneous declarations provided the necessaiy tests are met. People v. McLaughlin, 337 Ill. 259.

Requirement 3 would appear to have been met in the instant case. Was there then absence of time to fabricate? Was the statement spontaneous?

The rule does not give any premise test as to how much time must intervene. Nor would it be possible to establish any such precise test. At any rate the tendency is to permit very little time to elapse before it will be held that the declaration is not spontaneous.

It also seems futile to attempt to put some limit on the distance the declarant has travelled before his declaration lacks the necessary spontaneity. Nevertheless, if he has travelled from one geographic spot to another since the event, it is usually held that such travel has deprived his declaration of spontaneity. Hunter, “Trial Handbook for Illinois Lawyers” (4th ed.) sec. 66.20; Chicago Union Traction Co. v. Lowenrosen, 125 Ill.App. 194, aff’d, 222 Ill. 506; Ohio & M. R. Co. v. Cullison, 40 Ill.App. 67; People v. Willson, 401 Ill. 68.

Held, not to be spontaneous when the declarant has been removed to the hospital (Sullivan v. Henry Guth & Co., 148 Ill.App. 538), or otherwise removed from the scene of an accident (Levy v. Morand Brothers, 185 Ill.App. 266).

Each case must be decided on its own facts and the trial court is clothed with a reasonable degree of latitude. If the trial court does not abuse its discretion in its determination of admissibility, the ruling will not be reversed on appeal. (Turnbull v. Porter, 55 Ill.App.2d 374.) The statements herein were not so intimately connected with the event as to indicate that they were made without premeditation or with no purpose of exculpation. The trial court properly excluded the objectionable testimony.

The defendants’ last contention is that the evidence does not establish their guilt beyond a reasonable doubt. They first point to a discrepancy between police officer’s report and Debbie Davison’s testimony. The report stated that she had told the police that one of the subjects had a white T-shirt and was medium height and slender build and she could not give any description of the other. They cite cases such as People v. Bennett, 9 Ill.App.3d 1021, which stand for the proposition that, “Where the identification of a defendant is vague, doubtful and uncertain, the prosecution has not sustained its burden of proof and the conviction must be reversed.”

It is well established in Illinois that minor omissions or discrepancies in description do not necessarily affect the validity of a description although they may affect the weight to be given the evidence. (People v. Bennett, supra.) The description by Miss Davison of the crime was not intended to be an eye-witness identification of defendants; in fact, she stated she could not identify the men. Under the circumstances, the point raised by defendants as bearing on the question of identification does not in fact, do so. It bears only on the credibility of Miss Davison as a witness.

Defendants further argue that the evidence which showed that the defendants had been badly burned somewhere, by some agency, under some circumstances at sometime around 10 on the night of July 23, 1971, though of probative value, cannot substitute for proof and that probabilities are not enough to convict.

It is true that the evidence against the defendants is mostly circumstantial, but the law makes no distinction between direct and circumstantial evidence which have the same legal weight and effect. (People v. Robinson, 14 Ill.2d 325, 331.) It has been held many times that circumstantial evidence which produces a reasonable and moral certainty that the accused committed the crime is sufficient to justify a conviction. (People v. Schulewitz, 87 Ill.App.2d 331, 337.) The principle is well settled that the guilt of defendant may be established entirely by circumstantial evidence and it is “ * * necessary only that the proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. * * (People v. Marino, 44 Ill.2d 562.) Application of these principles to the instant case leads convincingly to the conclusion that guilt has been proven beyond reasonable doubt.

The judgment of the Circuit Court of Tazewell County is affirmed.

Judgment affirmed.

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


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry A. Craven, Defendant-Appellant.
    (No. 72-221;
    Third District
    April 18, 1974.
    James Geis, Deputy Defender, of Ottawa, for appellant.
    Martin Rudman, State’s Attorney, of Joliet, for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harry Hufford, Defendant-Appellant.
    (No. 73-48;
    Third District
    April 18, 1974.

      Robert Agostinelli, Assistant Appellate Defender, of Ottawa, for appellant.
    William G. Schick, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from an order entered in a post-conviction proceeding denying relief to defendant Harry Hufford. By separate counts of an indictment returned to the Circuit Court of Rock Island County, defendant, Harry E. Hufford, was charged with the crimes of murder, robbery and felony-murder, i.e., murder while committing the forcible felony of robbery. On June 7, 1969, he appeared in court with his counsel and entered a plea of guilty to the felony murder charge, and was sentenced to the penitentiary for a term of not less than 5 nor more than 30 years. No appeal was taken. As indicated, defendant subsequently filed a petition for post-conviction relief, which was later amended by appointed counsel, and he here appeals from an order denying such relief.

The transcript of the report of proceedings on the occasion of the guilty plea discloses that the trial court thoroughly admonished defendant of his rights and as to the consequences of his action before accepting the plea. Defense counsel then waived a hearing in aggravation and mitigation, and requested the immediate imposition of sentence. When this occurred, the court inquired of the State’s Attorney about the circumstances surrounding the charge, and the latter thereupon produced, filed and verbally summarized a voluntary question and answer statement defendant had given to police officials at the time of his arrest.

The substance of the statement was that defendant and Steve Rettig, after an evening of beer drinking, encountered James Slade about midnight of April 16, 1969, while having a cup of coffee in a restaurant. As the three left the restaurant they were approached on the street by an intoxicated man who said something about wanting to go to a “sex party”. James said he knew where there was such a party, and the four men then entered Rettig’s car, with defendant sitting in the front seat next to the driver and James and the other man in the rear seat. After a stop at a gasoline station, where the stranger bought a package of cigarettes for each person, the car was driven to and stopped on a country road. At that point James handed defendant a package of cigarettes and some papers taken from the man’s pockets, and then dragged the latter out of the car to the side of the road. According to defendant, it was necessary to drag the man from the car because he had “passed out” as the result of his intoxication. Following this, James got a tire iron out of the back of the car with which he repeatedly struck the man about the head. Defendant also got out of the car and was aware of what James was doing. While no mention was made in the statement, defendant expressly admitted to the court that he had also struck the victim. The balance of the statement related to the departure of defendant and his companions from the scene, to the disposal of the tire iron in a river, and to defendant’s denials of knowledge of other objects of personal property found to be missing from the victim’s person.

Defendant interprets the statement given to the court as showing two things: first, that nothing was taken from the body of the victim subsequent to, or as a consequence of, the attack with the tire iron; and, second, that the victim was unconscious from intoxication, and thus not susceptible to threats or intimidation, when the only articles taken, viz., the: package of cigarettes and the papers, were removed from his person. Based upon these premises, it is the thrust of the amended post-conviction petition, and of the defendant’s arguments here: (1) that the crime shown by the statement was theft from the person, rather than robbery by use of force or threats of force (see Ill. Rev. Stat. 1969, ch. 38, pars. 16—1 and 18—1; Hall v. People, 171 Ill. 540); (2) that one can be guilty of a felony-murder only if he is attempting or committing a forcible felony (see Ill. Rev. Stat. 1969, ch. 38, par. 9—1(3)); (3) that the crime of theft from the person is not a forcible felony (see Ill. Rev. Stat. 1969, ch. 38, par. 2—8); and (4) that a factual basis for the crime to which he pleaded guilty did not exist.

Translated into terms of the denial of a substantial constitutional right, which is the indispensable prerequisite for relief under the post-conviction act (People v. Owens, 34 Ill.2d 149; Ill. Rev. Stat. 1969, ch. 38, par. 122—1), it is contended that the facts in the statement put the trial court on notice that defendant could not have understandingly entered a plea of guilty to the felony-murder charge, and that it was therefore a denial of due process for the trial court to accept the guilty plea.

From a review of the decisions which have construed the post-conviction act, People v. Reeves, 50 Ill.2d 28, in particular, it is clear that the requirements that a plea of guilty must be made “voluntarily” and “understandingly” are constitutionally mandated. If either or both of such elements is lacking, acceptance of the plea is in violation of due process (e.g., People v. Washington, 38 Ill.2d 446; People v. Farnsworth, 10 Ill.App.3d 844.) We must, therefore, conclude that defendant’s amended post-conviction petition did address itself to the substantial denial of a constitutional right as required by the act. We are not persuaded, however, by defendant’s theory that the record here must be interpreted to show a lack of understanding in this case.

When defendant entered his plea of guilty in July, 1969, the trial court was governed by the standards set forth in Supreme Court Rule 401(b) which, in pertinent part, provided that a court should not permit a plea of guilty unless it first found that the accused “* * * understands the nature of the charge against him, and the consequences thereof if found guilty ° (Ill. Rev. Stat. 1969, ch. 110A, par. 401(b).) Quite clearly, we believe, the rule did not require that an accused understand each element of the crime, a construction implicit in defendant’s theory, nor impose a duty on the court accepting the plea to insure that he did. This was the precise construction arrived at in People v. Harden, 78 Ill.App.2d 431, 444, where the court said:

“Considering the language of the Rule, it appears that the noun nature’ connotes and is synonymous with the words essence, general character, kind or sort. In such sense the language of the Rule does not call upon the trial court to state to the defendant all of the acts which do or may constitute the offense.” (Emphasis the court’s.)

Applying the foregoing rule and definition to the record before us, we believe it necessarily follows that defendant’s plea to the felony-murder count was understandingly made. Ordinarily, so far as “understanding” goes, it has been held that merely advising an accused that he is guilty of murder is sufficient to apprise him of the nature of the charge. (People v. Farnsworth, 10 Ill.App.3d 844; People v. Trenter, 3 Ill.App.3d 889; People v. McCrady, 131 Ill.App.2d 836.) There is much more in the record here. Apart from the admonitions and explanations by the court, it appears that defendant, 26 years of age, first pleaded not guilty to all three counts of the indictment against him; that after a lapse of time and after discussions with, and explanations by, his counsel he selectively withdrew his plea to tire felony-murder count and tendered a plea of guilty; that he expressly stated to the court his knowledge and understanding that the count charged him with murder; that he was aware of the penalty for murder even before the court undertook to explain it; and that, in return for his plea, the State’s Attorney made a recommendation of sentence substantially less than the maximum. It is significant, too, that defendant waived a hearing in aggravation and mitigation and demanded immediate sentencing, thus manifesting his satisfaction with the acceptance of his plea. (Cf. People v. Barr, 14 Ill.App.3d 742.) In short, tested by the standards of Rule 401(b), we find the plea to have been studied and deliberate, and to have been voluntarily and understandingly made.

Nor do we find that the statement of the defendant, make known to the court after the acceptance of the guilty plea, and prior to sentencing, created an inconsistency or should have caused the trial court to conclude that the guilty plea was not understandingly made. Supreme Court Rule 402(d), which now directs that the trial court shall not enter a final judgment on a plea of guilty without first determining that there is a factual basis for the plea (Ill. Rev. Stat. 1973, ch. 110A, par. 402(d)), was not in effect when defendant’s plea was accepted, and it is noteworthy also that such rule does not stem from a constitutional mandate. (People v. Nardi, 48 Ill.2d 111.) Accordingly, the statement was requested and received by the court only for the purpose of providing a guide for sentencing. At that phase of the hearing, from a procedural standpoint, defendant’s plea of guilty had the effect of admitting all facts alleged in the felony murder count (including the allegation that “a ring and other personal property” had been taken from the victim by the use of force, viz., the striking of the victim “with a blunt instrument”), and likewise admitted all elements of the crime charged. (People v. Wilfong, 19 Ill.2d 406; People v. Claybrooke, 15 Ill.2d 586.) From a substantive standpoint, it appears that defendant’s statement was not the sole evidence of the crime in the hands of the prosecutor, nor was it tendered to the court as such. More important, however, in view of defendant’s theory that all the items were taken from the victim before force was used, it is the reasonable intendment from Iris own statement that the ring and other items were not taken until after force had been used. Accordingly, there was no inconsistency with a felony-murder plea. On the record, we conclude that post-conviction relief was properly denied. Cf. People v. Bowers, 47 Ill.2d 585.

Defendant was furnished with a transcript of the record of the post-conviction proceeding as required by Supreme Court Rule 651(c) (Ill. Rev. Stat. 1973, ch. 110A, par. 615(c)), but he nonetheless advances as his next contention that he has been deprived of due process of law because the record does not include a report of proceedings of all that occurred when his amended petition was heard. We find no merit to the contention. No evidence was presented at the hearing. The order denying relief reflects that the hearing, or proceeding, consisted solely of arguments of counsel on the question of law raised by defendant’s amended petition, and we gather that no reporter was present to make a report of proceedings. Griffin v. Illinois, 351 U.S. 12, which is the undoubted source of Rule 651(c), requires only that an appealing indigent must be afforded a “record of sufficient completeness to permit proper consideration of [his] claims”. (Draper v. Washington, 372 U.S. 487, 499.) We are not told how defendant was prejudiced or in what manner he was prevented from advancing his claims due to lack of a report of proceedings, and it is apparent that unfairness in such respects could not exist in this case. The amended petition itself, and the report of proceedings of the original trial, are in themselves sufficient to permit a full consideration of the claim made in this court.

The judgment of the Circuit Court of Rock Island County is affirmed.

Judgment affirmed.

STOUDER and DIXON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anita Weaver, Defendant-Appellant.
    (No. 73-27;
    Third District
    April 18, 1974.
    Kent Osborne, Assistant Appellate Defender, of Ottawa, for appellant.
    James T. Moreno, Assistant State’s Attorney, of Macomb, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

After pleading guilty to the offense of deceptive practice, a misdemeanor in violation of section 17—1(d) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, sec. 17—1(d)), the defendant, Anita Weaver, was sentenced by the circuit court of McDonough County on November 8, 1972, to a 1-year term of imprisonment.

On this appeal defendant urges the record affirmatively shows the trial court failed to comply with Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402) before accepting her plea of guilty and also urges that the statute (Ill. Rev. Stat. 1971, ch. 38, sec. 17—1) is unconstitutional.

First, dealing with defendant’s second assignment of error, it is her contention that the statute (Ill. Rev. Stat. 1971, ch. 38, sec. 17—1) is unconstitutional because it includes the following provision: "Failure to have sufficient funds or credit with the depository when the check or other order is issued or delivered is prima facie evidence that the offender knows that it will not be paid by the depository; * * *. "This provision, according to the defendant, is violative of due process and she has advanced several reasons in support of her contention. However, an inspection of the statute reveals that the questioned provision is not an element of the offense and on the contrary refers to a matter of evidence. Since the defendant in the instant case pleaded guilty, the provision relating to evidence was neither applied nor is it applicable to the circumstances of the defendant. Accordingly, any consideration of this issue would be the consideration of an abstract proposition of law, a duty which we as a court of review are not able to undertake.

With respect to defendant’s other assignment of error, namely that the court failed to comply with Supreme Court Rule 402, we agree the trial court failed to do so. We believe it necessary to mention only two areas in which tire rule was not followed, although defendant has also insisted there were other inadequacies in compliance with the rule.

In examining the record it appears that the only reference to the nature of the offense is the trial court’s indication the defendant is charged with deceptive practice. The People admit that the nature of the offense was not explained to the defendant by suggesting that the failure to do so was the result of the defendant’s conduct, thereby apparently excusing the court from complying with the rule. According to the People, the defendant and her attorney appeared at a motion hearing and at a time when the defendant stood indicted for the offense of forgery. The defendant indicated she would be willing to plead guilty to the offense of deceptive practice. This action was permitted and resulted in the defendant’s guilty plea to the misdemeanor offense of deceptive practice. However, the fact that the guilty plea was made pursuant to an offer by the defendant is not in our opinion a sufficient reason for excusing compliance with Rule 402 which of course contemplates that, so far as the court procedure is concerned, the plea will be initiated by the defendant. Under the circumstances we believe the court erred in failing to explain the nature of the offense charged. People v. Green, 12 Ill.App.3d 418, 299 N.E.2d 535, and People v. Krantz, 12 Ill.App.3d 38, 297 N.E.2d 386.

It also appears from the record the court failed to ascertain from the defendant whether her plea had been induced by promises or other considerations. Even though the record fails to indicate the defendant’s plea was induced by any promises, the record likewise fails to demonstrate that it was not. This is contrary to Supreme Court Rule 402(b) (Ill. Rev. Stat. 1971, ch. 110A, par. 402(b)). People v. Ridley, 5 Ill.App.3d 680, 284 N.E.2d 37.

For the foregoing reasons, the judgment of the circuit court of Mc-Donough County is reversed and remanded with directions that defendant be permitted to plead anew.

Reversed and remanded with directions.

ALLOY and DIXON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edmund T. Baker, Defendant-Appellant.
    (No. 73-117;
    Third District
    April 18, 1974.
    James Geis, Deputy Defender, of Ottawa, for appellant.
    Clarke Barnes, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from the Circuit Court of Rock Island County by defendant Edmund Baker from a conviction and sentence for the crime of rape. He was sentenced to a term of 20 to 60 years in the Rlinois State Penitentiary.

On appeal in this Court, defendant raises three issues: (1) that it was reversible error for the State to have denied him a preliminary hearing; (2) that he was not proven guilty of the crime of rape beyond a reasonable doubt; and (3) that his sentence of 20 to 60 years is excessive.

The record on appeal which was initially filed had omitted a copy of the warrant for appellant’s arrest and also a transcript of proceedings at appellant’s preliminary hearing. The omission has been corrected and defendant’s counsel indicated that the preliminary hearing issue was abandoned since there was in fact a preliminary hearing. Defendant was arrested on October 19, 1972, after he had voluntarily appeared at the Moline Police Station and given an inculpatory statement. A warrant charging him with rape was issued the next day, and on October 23, 1972, he was arraigned. A preliminary hearing was held on October 31, 1972.

On the issue of whether the guilt of defendant was proven beyond a reasonable doubt, a review of the evidence is required. The record discloses that the victim of the rape, on October 17, 1972, at approximately 9:15 P.M., was entering her Volkswagen van in the parking lot of a grocery market where she had been shopping, when a black man crowded in behind her and forced her inside and placed his arm around her neck. He ordered her to drive and directed where and how she was to drive. When they had finally stopped the vehicle at a place designated by the man who was in the back seat, he pulled the victim into the center seat, and, when she resisted his advances, he pushed her into the back seat. He removed her trousers and raped her twice. During the rape, the victim felt a heart-shaped medallion which was hanging around assailant’s neck. The assailant, following the rape, told the prosecutrix that a gang was going to kill him. He gave her the knife which he had and said he would rather have her do the killing. She slipped the knife up her coat sleeve and, then following the directions of the assailant, drove him to a point at which he left the van. Two doctors examined the girl and confirmed the fact that she had been raped and other witnesses likewise confirmed that the prosecutrix was crying, her coat was tom, her eyes were glassy, her hair was in disarray, one shoe was missing, and that she was hysterical shortly after the event. No issue is raised as to the fact that the prosecutrix had been raped. The defense, rather, sought to estabhsh that defendant had not been the assaüant who committed the rape.

A Mr. Meyers also testified that, at the approximate time when the prosecutrix had been accosted by the assaüant as she was entering her Volkswagen in the market parking lot, Meyers saw a black mail run to the van, climb into the van immediately behind the apparently-shocked female driver and put his arm around the driver’s neck. He noticed that the man was wearing white shoes, which he beheved could have been tennis shoes, and that the man had a hair style similar to defendant’s. Mr. Meyers started his own car and tried to foUow the van but eventuaUy lost it when it went through a red light. He reported the van’s Ucense number and his observations to pohce. The police officer testified that he received the notification at 9:18 P.M. Later, as a result of a caU to the station, he proceeded to the residence of the prosecutrix at 10:30 P.M.

A white woman, with whose famüy defendant had been staying for approximately 3 weeks since he had arrived in Rock Island, identified the knife given by the assaüant to the prosecutrix as being the same pattern as knives in her silverware drawer. A medallion of the same size and shape as described by the prosecutrix was found among defendant’s belongings at the residence foUowing defendant’s arrest.

On the day foUowing the assault, the victim and her mother found a billfold between the seats in the van in which die victim had been raped. It was defendant’s wallet. The prosecutrix identified a picture contained in the wallet as that of her assaüant. It was in fact a picture of defendant. Upon viewing a line-up 2 days later, however, the prosecutrix was unable to identify with certainty the defendant but stated that the defendant and another person were so simüar in appearance that she could not specificaUy identify the defendant at such time. The prosecutrix testified in court that there was nothing about the appearance of defendant in the line-up which would cause her to believe he was not the assailant. When she viewed the defendant in court she said that his eyes and eye brows appeared much the same as those she saw in the rear view mirror of the van on October 17.

The woman at whose home defendant was staying, stated that she saw defendant leave her home at approximately 9:30 P.M. on October 17 and that he returned at approximately 10:30 P.M., give or take 15 minutes. She recalled that on that evening, he was wearing white tennis shoes, a waist-length black jacket, dark T-shirt and a pair of Levis. Prosecutrix described her assaüant as being dressed in the manner so described.

In the statement made to the Moline Police on October 19, defendant said he forced his way into a Volkswagen van; that he had a gun and believed the driver knew it; and that he forced the driver to drive and stop in an alley where he raped the driver in the back seat. He described the victim’s clothing as being a gray jacket and gray bell-bottoms. Defendant thereafter told the police officer to whom he gave the statement that he was a member of a gang and he was taking the blame for the chief of the gang and that he had given his wallet to a friend on the night of October 17 and that the friend had lost it.

Baker testified at the trial that he was a member of a gang and that the heart-shaped medallion was an insignia worn by the members. He stated that one Cole Williams, a gang member, was the chief and was approximately of his stature and had a moustache and goatee similar to his. Defendant stated that he had trouble with the gang because he was living with white persons and associating with white people. He stated that on Sunday before the rape, Williams took him to a vacant apartment where about 14 gang members were present and that defendant was attacked and beaten and his billfold containing $18 was taken from him by Williams, and was told that he would be set up for a crime. He also stated that he saw Williams on the night of October 17 and that Williams was dressed in white boots, bell-bottoms and a black silk jacket. He said Williams carried a knife and a gun. He also stated that on October 17, he and Williams fought some hippies behind the tavern where they had gone to buy some gin, and that Williams stabbed one of the hippies. He further stated that before he was arrested he had told a Patty Shaw that Williams had committed the rape for which defendant was being blamed. In attempting to explain a source of funds with which, despite the theft of his billfold and money, he was able to allegedly purchase the gin on October 17, 1972, he said his mother, his sister, and a boy named Murphy, and various girlfriends gave him money when he requested it. He stated that because she loved him, one girl gave him all the money he wanted but he could not recall the names of any of the girls.

The defense called Patty Shaw as a witness to substantiate his testimony that he had been beaten. She stated that one of his eyes was swollen and the white of the eye was bloodshot, but that on October 19, .1972, it had subsided but was still noticeable. A photograph of defendant taken in the lineup on October 20 did not disclose any discoloration or puffiness. No mention was made of any discoloration or puffiness by the prosecutrix.

A black police officer for the city of Rock Island who testified for the prosecution in rebuttal said he had been a Rock Island police officer for more than 10 years and a resident of the city of 37 years. He stated that never during that time had he heard of the alleged gang described by defendant or known of a faction of it in the area.

Courts of review have noted that the issue of fact in a rape case may be determined by a jury as the finder of fact, and that the jury is entitled to believe or disbelieve the evidence which is presented, so long as the evidence does not, as a matter of law, raise a reasonable doubt as to guilt. (People v. Porter, 13 Ill.App.3d 893, 300 N.E.2d 814; People v. Hoffman, 45 Ill.2d 221, 258 N.E.2d 326, cert. denied, 400 U.S. 904, 27 L.Ed.2d 141, 91 S.Ct. 142.) It is clear from the record in this case that the evidence was sufficient, as a matter of law, to sustain the verdict of the jury. The jury obviously did not believe the testimony of defendant. There was much independent corroborative evidence of record including: defendant’s initial inculpatory statement followed by the testimony of witness Meyers describing defendant’s clothing as the type worn by the assailant; the assailant’s knife matching the description of the silverware in the home where defendant was staying; the heart-shaped medallion worn by defendant found among his belongings; and, finally, defendant’s billfold containing defendant’s photograph found in the Volkswagen van following rape which presumably had been dislodged from defendant’s pocket when he was in the van. It is apparent that the determination of the jury that defendant was guilty beyond a reasonable doubt is supported by the record in this cause.

On the issue raised as to the sentence which was imposed on defendant, we note that the crime of rape was classified as a Class 1 Felony by the Illinois Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 11—1). The penalty for rape is any maximum in excess of 4 years, and the minimum is fixed at 4 years “unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term.” (Ill. Rev. Stat. 1973, ch. 38, par. 1005—8—1.) Obviously, the court was considering the defendant’s history and character and the circumstances of the offense, as well as the protection of the public, when it imposed the 20-year minimum sentence.

It was noted by the court that the defendant had been released from a prior incarceration in prison which defendant had been serving as punishment for statutory rape. Two weeks thereafter, he participated in a forcible rape with six other boys in Chicago. He had then been sentenced for such rape to a term of 3 to 10 years. Defendant had been released from the latter imprisonment only 3 weeks before he committed the offense which is the subject of the present appeal. In imposing its sentence, the trial court noted that, although the minimum term was 20 years, the defendant first would become eligible for parole after serving 11 years and 3 months. In view of the record in this cause, and defendant’s record, we do not believe that we should interfere with the determination of the trial court in assessing the penalty and fixing the term of imprisonment. People v. Hanserd, 125 Ill.App.2d 465, 261 N.E.2d 317.

For the reasons stated, and since we find no reversible error in the record, the judgment and sentence of the Circuit Court of Rock Island County is affirmed.

Affirmed.

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


text:
    Gene Gerhardt, Plaintiff-Appellee, v. Violet Elaine Gerhardt, Defendant-Appellant.
    (No. 73-156;
    Third District
    April 18, 1974.

      Rehearing denied May 15, 1974.

      Vilas C. Rice, of Carthage, for appellant.
    Stanley Tucker, of Carthage, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an action for divorce brought by Gene Gerhardt, plaintiff against Violet Elaine Gerhardt, defendant who requested an appropriate division of the assets of the parties. The Circuit Court of Hancock County granted plaintiff a divorce, and custody of a child of the parties; defendant was awarded $5000 as her share of the bank accounts, was found to. have no interest in any other property, was directed to deliver her automobile to plaintiff and was ordered to pay $10 per week for support of the child. She appeals contending that the court erred in making division of the marital assets, and in requiring her to contribute to the support of the child. There is no appeal from that part of the decree granting the divorce.

The parties were married April 27, 1957 (she was about 18, he was about 21 years of age) and at that time he had $5000 and she had a cedar chest. Fifteen years later at the time of separation on May 28, 1972, they had accumulated an estate of nearly $100,000. When first married the parties lived with his mother for 7 months, then moved to rented facilities and in December 1959 to a 160-acre farm that plaintiff and his foster brother (a first cousin) purchased at that time for $26,500 on contract and later a mortgage, since paid. In January 1973 this farm was valued at $78,400. Plaintiff used the $5000 he brought to the marriage to furnish the home on the farm. He was awarded all household goods and furnishings in that home.

In 1958 the plaintiff, his brother and mother formed a partnership to operate his mothers land, using her deceased husband’s equipment. They later operated the 160-acre farm subsequently purchased. This partnership as of December 31, 1972, had farm equipment, buildings and acquired livestock with a depreciated value of $18,188 and had other additional assets such as livestock, cash and grain as follows.: 350 head of feeder pigs worth about $10,500; 10 feeder calves worth about $2,400; 10,000 bushels of corn worth about $12,500; 2000 bushels of beans worth about $9400; 70 stock cows and about 50 brood sows. There were no debts, and on May 28, 1972, the bank account was $5020.36.

Except for one 12-month period his only source of income was from the farming partnership. Throughout the marriage defendant maintained the household and garden (she canned and froze food) and she worked off the farm from 1958 until the parties separated on May 28, 1972. She testified that from 1958 until 1961 she made about $6,000 a year. Her earnings from 1961 through 1971 as shown by W-2 forms were reported on income tax returns as $44,665; his reported income was $29,479 for those years.

At the time the parties separated they had joint savings and bank accounts and joint certificates of deposit totalling $38,437.07. He got to the banks first and had her name stricken from these accounts on June 4, 1972. Also, at the time of separation the parties owned a 1971 Ford LTD for which they had paid $4500 in February 1971, and a 1972 Ford pickup purchased in January 1972 for $2616. The certificates of title were issued to “Gerhardt Gene and/or Gerhardt Violet.” Plaintiff also had $3000 in certificates of deposit with his son and a life insurance policy in amount of $2500. Defendant had $3600 from an employment trust fund which she had withdrawn.

Defendant testified that she kept her pay in a drawer, used it to purchase clothing for all, household supplies, groceries, utilities and household furnishings until it accumulated and then would deposit it in a joint savings account. She testified that monies from the joint savings accounts were used to pay part of the purchase price of the farm and to purchase livestock for the partnership. He denied this but stated that he had no recollection where the money came from to pay off the farm indebtedness. His brother testified that the funds for the purchase of the farm were from the distributive shares of the partnership.

With but few exceptions neither party could identify the source of any particular deposit or the use to which any particular withdrawal was put. It is clear though that the car and truck were purchased with funds from the joint savings accounts.

Without doubt, defendant commenced, in April or May of 1972, a course of conduct entitling plaintiff to a divorce but the fact that a divorce is granted for the fault of the wife does not warrant depriving her of her own property. (Rybakowicz v. Rybakowicz, 290 Ill. 550.) As was said in Whetstone v. Whetstone, 169 Ill.App. 171, 174, “It is true, as claimed by appellant, that this record discloses that appellee committed a great error, sufficient to authorize the court to grant a divorce to appellant and deprive her of any rights or interest in his future earnings, but we are not able to say that because of the error committed by her, although a grievous one, that she should be required to forfeit all interest and right in and to the property accumulated by their joint earnings.”

One spouse may have a special equitable interest in property held in the other’s name, which interest may arise in many ways, and the court may award a share of the property representing such special interest in it. “Thus, courts have reiterated that where a wife has from equitable considerations other and additional interests in her husband’s property than such as attach to her status as a wife, such as where her money comes into the hands of her husband and is invested in real estate to which he holds title; or if realty represents joint earnings, work or savings of husband and wife; or if her earnings or savings have gone into his possession and aided him in acquiring the real estate; the court may then properly decree, when dissolving the marriage relation, that the wife shall be vested with title in fee to such realty as will effect an equitable and fair adjustment of the property rights of the parties.” Cross v. Cross, 5 Ill.2d 456, 466.

There is no legal formula for determining whether the wife’s financial contribution, earnings, frugality, and good management will be deemed sufficient to warrant a conveyance under section 17 of the Divorce Act of all or part of the property held in the name of the husband, and each case must be adjudged on its particular facts. Cross, supra.

The record herein discloses clear and convincing evidence that the property involved, both real and personal, was accumulated through the joint efforts of the parties. Where a wife by her own industry, earnings, labor, economy and frugality has added to the financial betterment of the parties or to the husband’s acquisition of an estate, she has an equitable interest which must be recognized by a fair division of property. Ylonen v. Ylonen, 2 Ill.2d 111.

It has also been clearly established that the fact that a husband and wife had a joint bank account against which either might draw, is no warrant for either to withdraw all the funds and apply them to his or her exclusive use. Gercke v. Gercke, 331 Ill. 413, 419; Swofford v. Swofford, 327 Ill.App. 55, 58.

Plaintiff contends that the “special equities” relied upon were not alleged in the pleadings. As was stated in Persico v. Persico, 409 Ill. 608, 610, “While courts in divorce actions are thus empowered to determine the property rights of the parties solely upon the basis of equitable ownership and regardless of fault in the dissolution of the marriage, special circumstances and existing equities sufficient to justify the conveyance are required to be alleged in the complaint and established by the evidence. (Insoda v. Insoda, 400 Ill. 596; Podgornik v. Podgornik, 392 Ill. 124.) Relief cannot be granted where there are no allegations of equities or special circumstances in the complaint.”

In the instant case the complaint alleged that plaintiff and defendant were joint owners of the auto and the truck, that he owned certain other described property, that she should be barred from any right therein, and that the court make an adjudication of the property rights of the parties. Defendant’s answer admitted joint ownership of the auto and truck, denied that she should be barred from any right in the property and further alleged that plaintiff had possession and control of $40,000 in checking and savings accounts which was accumulated through the joint efforts of the parties and asked that the court determine the respective interest of the parties in the assets described in the complaint. An amendment to the answer further alleged that defendant had been gainfully employed throughout the marriage, that her earnings during the marriage were more than those of plaintiff, that all her earnings were devoted to the common purposes of the parties, that part of plaintiff’s interest in the assets described in his complaint were acquired with her earnings. (Comparable allegations were deemed sufficient in Cross v. Cross, 2 Ill.2d 104, 106.) Plaintiff filed a denial reply to the answer. The pleadings were considered settled, the parties agreed that the question of property rights and distribution of the property involved be submitted to the court for hearing. (Cf. Chmiel v. Chmiel, 399 Ill. 91, 95.) The trial court then proceeded to a hearing of the evidence. The interest of the respective parties was put in issue by the pleadings, (Rolinitis v. Rolinitis, 335 Ill. 260, 262.) The matter of pleading special equities under section 17 of the Divorce Act may be done by answer. (Kane v. Kane, 161 Ill.App. 385.) Further, no objection was ever raised at the trial level. We find no merit to plaintiff’s contention.

Defendant has indicated that she does not wish to disrupt the farming operation and asks for a lump sum in lieu of conveyance or transfer. She has further indicated that she would withdraw the issue of child support if given a portion of the marital estate commensurate with her contributions thereto.

On the basis of the foregoing analysis it is our opinion that the circuit court erred in denying appellant any right (other than $5000) in the marital estate and the judgment is reversed and the cause remanded to enter a judgment in accordance with the determinations of this court.

Reversed and remanded, with directions.

STOUDER and ALLOY, JJ., concur.


author: Mr. PRESIDING JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry DeBates, Defendant-Appellant.
    (No. 73-165;
    Third District
    April 18, 1974.
    James L. Neppel, of Rock Island, for appellant.
    Trent Marquis, Assistant State’s Attorney, of Rock Island, for the People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

On March 29, 1973, the defendant Henry DeBates was charged by information in the circuit court of Rock Island County with having committed the crime of involuntary manslaughter. After entering a plea of guilty to this charge the defendant petitioned the court for probation. This petition was denied and he was sentenced to a term of not less than 2 nor more than 6 years in the penitentiary.

The sole issue presented for review by this court is whether the trial court abused its discretion in selecting a term of imprisonment from among the sentencing alternatives.

We are fully aware of the provisions of the Unified Code of Corrections which in certain instances permit a trial court to impose sentences of probation and conditional discharge (Ill. Rev. Stat. 1973, ch. 38, sec. 1005—6—1(a)(3)), as well as the trial court’s authority to also in certain instances impose a sentence of periodic imprisonment (Ill. Rev. Stat. 1973, ch. 38, sec. 1005—7—1 et seq.). No useful purpose, however, would be served in the instant case in making an examination of the evidence contained in the record since this court harbors grave doubts as to our authority to reduce the defendant’s sentence of imprisonment to a term of probation even if we desired to do so. See People ex rel. Ward v. Moran, 54 Ill.2d 552, 301 N.E.2d 300; People v. Bellson, 14 Ill.App.3d 1089, 303 N.E.2d 30; and People v. Turner, 15 Ill.App.3d 139, 303 N.E. 2d 768.

While the defendant in the case before us asks that his sentence of imprisonment be reduced to a term of probation or in the alternative to a sentence of periodic imprisonment, we believe that the law as set forth in the case of Moran, which is concerned with the reduction by a court of review of a prison sentence to a term of probation, also effectively precludes us from reducing a sentence of imprisonment to the lesser alternative sentence of periodic imprisonment.

For the reasons set forth the judgment of the circuit court of Rock Island County and the sentence imposed thereon is affirmed.

Affirmed.

ALLOY and STOUDER, JJ., concur.


text:
    Eva L. Pickrel, Plaintiff-Appellee, v. Rock River Valley Homes, Inc. et al., Defendants-Appellants.
    (No. 73-244;
    Third District
    April 18, 1974.
    Kennard Besse, of Sterling, for appellants.
    Bull, Ludens, Potter & Coplan, of Morrison, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The plaintiff, Eva L. Pickrel, brought suit against John R. Stevens to recover on a note she had purchased which was signed by John R. Stevens and by Jack Pickrel, her husband. She also brought suit against Rock River Valley Homes, Inc., to recover on an indemnity agreement. The cases were tried together pursuant to stipulation. The Circuit Court of Whiteside County, Illinois, rendered judgment in favor of the plaintiff in each case for the full amount claimed, $12,255.55 plus interest and costs. Each of the defendants appealed, and the two cases were consolidated for this appeal.

The defendants contend that the judgment in each of the cases should be reduced by $2,500. Stevens claims that this amount was owed him as his half of the profit Jack Pickrel made in the construction of a restaurant at Sterling, Illinois, through Crane-Rich, Inc., a corporation the two men owned. Rock River, a corporation owned by Stevens, claims that because there was this debt, an earlier version of the indemnity agreement on which suit was brought provided for a $2,500 credit, and that the provision for credit was incorporated by reference into later versions of the indemnity agreement.

The plaintiff maintains that the profit on the restaurant at Sterling was entirely her husband’s and was not intended to be shared; that the provision for a $2,500 credit in the indemnity agreement pertained to a motel and other projects which had been or would be undertaken by Rock River, and had no relationship to the restaurant at Sterling built through Crane-Rich; and that the earlier provision for credit was not carried forward into the later indemnity agreements but was abandoned.

The trial court considered the testimony and the documentary evidence and resolved the issues in favor of the plaintiff. We are asked by the defendants to reverse the decision of the trial court on the evidence.

It appears that in August of 1964, Jack Pickrel and Stevens organized Crane-Rich for the purpose of leasing motels as TraveLodge Motels after their construction. Rock River, Stevens’ corporation, was to construct the motels. Pickrel was to assist in the financing by lending money directly to Rock River and by helping it to obtain independent financing.

Construction of a TraveLodge Motel at Macomb, Illinois, was undertaken by Rock River, but there was insufficient money to pay contractors. The Union National Rank of Macomb lent money to Rock River to complete the motel, but required, as security, a note signed by Jack Pickrel and Stevens personally and also stock from Jack Pickrel as collateral. Payments were made on the loan until it was reduced to $10,000, but the bank threatened at various times to foreclose on Jack Pickrel’s stock, and on March 22, 1971, Eva Pickrel purchased the note held by the bank. Eva Pickrel thereafter filed suit against Stevens on the note, and against Rock River on an indemnity agreement it had given in connection with this transaction.

Meanwhile, in 1966, Jack Pickrel became interested in constructing a restaurant at Sterling, Illinois. He asked Stevens whether he wanted to go into this venture with him, and Stevens declined. Jack Pickrel then asked Stevens whether in the construction of the restaurant he could use the Crane-Rich corporation as a conduit. Stevens said he could, so long as all of the expenses were paid and he, Stevens, incurred no income tax liability. Jack Pickrel then built the restaurant, without any participation by Stevens, and provided written assurances that the profit from the transaction had been reported in the joint income tax return filed by Jack and Eva Pickrel for 1966, and that the tax shown due had been paid.

The testimony regarding these assurances was on some points contradictory. Jack Pickrel testified that he had obtained a letter from his attorney as Stevens had requested, and had given it to Stevens personally, which stated that the attorney had prepared the joint return showing the profit and that the tax had been paid, and which bore the same date, October 6, 1967, as a check for $10,000 Jack Pickrel had received from Rock River which repaid three loans from him in full. Stevens testified that he had not received the letter and had not requested it. Jack Pickrel testified that he had also furnished a statement from a certified public accountant, as requested, for further assurance with respect to taxes. Stevens testified that the purpose of this statement was to show not just that he would have no tax liability, but also the amount of the profit in which he could nevertheless claim a share.

It appears to be Stevens’ position that Jack Pickrel’s having all the profit from the Sterling restaurant project was the reason for the provision for a $2,500 credit in the indemnity agreement provided by Rock River in connection with the financing of the TraveLodge Motel at Macomb. However, the testimony given to explain the purpose of this provision for credit also involves some difficulty. Jack Pickrel testified that this clause was put in so as to allow Rock River a contribution toward the expense of selling the motel in case it was sold at a loss but he had been advanced profits from other ventures undertaken by Rock River. He added that this arrangement had nothing to do with the restaurant he had constructed at Sterling through Crane-Rich. Stevens did not specifically relate the provision for credit to the Sterling project, in his testimony at the trial, but simply stated that the instrument in which it appeared was for his protection and represented what the parties had agreed.

The financing of Rock River’s TraveLodge Motel at Macomb, Illinois, through a bank loan for which Jack Pickrel and Stevens were personally responsible and for which Jack Pickrel had furnished collateral, brought into being a succession of indemnity agreements. The first of them, dated December 12, 1967, read in part as follows: “Anything herein to the contrary notwithstanding the total liability of Rock River Valley Homes, Inc. to indemnify Jack C. Pickrel shall be reduced by Twenty-five Hundred Dollars ($2500.00) and it is agreed that Rock River Valley Homes will prior to the due date on the aforesaid note, negotiate a loan from the Union National Rank of Macomb or some other lending agency for the amount then due on the note of Jack C. Pickrel and John R. Stevens. Said individuals agree to guarantee the payment of the note in order to induce the bank to make a loan to Rock River and Rock River will indemnify the guarantors for any amount they may be required to pay on their guarantees.” This 1967 agreement was the only one of the various indemnity agreements which expressly provided for a $2,500 credit, and it contained no clue as to why the provision for a credit was there.

The indemnity agreement dated December 12, 1967, was executed by Jack Pickrel and by Stevens but not by Rock River. An amendment of this agreement, dated May 12,1968, was likewise executed by Jack Pickrel and Stevens but not Rock River. There is no explanation in the testimony as to why neither the 1967 agreement nor the 1968 amendment of it was executed by the indemnitor, Rock River, except the comment that there wasn’t any place for additional signatures.

Another indemnity agreement, dated October 9, 1968, was later prepared and was executed by Rock River, pursuant to authority given by its shareholders and directors. This agreement was an unconditional guaranty that Rock River would pay the note which Jack Pickrel had signed and for the payment of which he had pledged his stock as security, and would hold him harmless from any loss which might result from his having signed the note. No mention of a $2,500 credit was made in this instrument. Jack Pickrel testified that when it was signed nothing was said about Stevens’ sharing in the profit from the Sterling restaurant or about any debt. Stevens testified that this agreement was, as he put it, superseded by the previous agreement.

Yet one more indemnity agreement, dated April 1, 1971, was executed by Rock River and Stevens. This was to indemnify the plaintiff, Eva L. Pickrel, who by then had become the owner of the note. This instrument, entitled an assignment of interest and agreement, specifically acknowledged that the note was the obligation of Rock River, and that no money was owed to either Rock River or Stevens by either Jack Pickrel or Eva Pickrel. The following appeared in the margin: “4-16-71 Subject to May 12, 68 agreement Dec. 12, 67 agreement. JRS” The marginal notation was added by Stevens at his office, in Jack Pickrel’s presence, after the plaintiff had signed it at her home. The question as to what this marginal notation was intended to add to the apparently clear and complete 1971 agreement was not satisfactorily resolved by the testimony, and lends additional weight to the remark of defendants’ counsel at the trial that “the issue of the case is faulty language.”

Evidently the trial court came to believe that Stevens was liable for the full amount of the note because he had not proved that Jack Pickrel owed him anything, the restaurant at Sterling having been Jack Pickrel’s own project. Evidently the trial court came to believe, also, that Rock River was liable on its indemnity agreement without any reduction because it had not satisfactorily established that the 1967 provision for a credit was carried over into the later agreements. The findings of a trial court on questions of fact in a nonjury case will not be disturbed by a reviewing court unless those findings are manifestly against the weight of the evidence. (Schulenburg v. Signatrol, Inc., 37 Ill.2d 352, 356; Brown v. Zimmerman, 18 Ill.2d 94, 102.) We cannot agree with the defendants' contention that the conclusions of the trial court in these two consolidated cases were manifestly against the weight of the evidence. We must therefore affirm.

The judgment of the Circuit Court of Whiteside County in each of the two consolidated cases is affirmed.

Judgments affirmed.

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