author: Mr. JUSTICE RECHENMACHER

text:
    The People ex rel. Mike Emerson, a/k/a Mike Wotring, Relator-Appellant, v. Gerald R. Pratt, Sheriff, Winnebago County, Respondent-Appellee.
    (No. 74-315;
    Second District
    November 12, 1974.

      Ralph Ruebner, of State Appellate Defender’s Office, of Elgin (Bruce C. Erickson, Assistant Public Defender, of counsel), for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (Robert G. Gem-ingnani and Dan Doyle, Assistant State’s Attorneys, and James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

The relator appeals from an order of the circuit court of Winnebago County dismissing his petition for a writ of habeas corpus.

Two issues are raised in this appeal: (1) whether the State presented sufficient competent evidence to establish a prima facie case that relator is a fugitive from justice and (2) whether the incarceration of the defendant for 31 days while no charges were pending against him was so violative of due process as to deprive the circuit court of jurisdiction at the time of its denial of the habeas corpus petition.

The relator, a former resident of Michigan, was arrested on a Federal fugitive warrant in Illinois. He was placed in the Winnebago County jail and was arraigned before a United States magistrate on June 10, 1974, on the Federal charge of flight. This charge was dismissed on June 18, 1974; however, the relator was retained in custody in the Winnebago County jail. On July 15, 1974, the extradition warrant of the Governor of the State of Illinois together with the proper warrant of the Governor of Michigan, application for extradition writ, affidavits and complaint of the Michigan authorities charging relator with attempted murder and armed robbery, were filed in the Winnebago County court and on July 18, 1974, an information was filed in the" circuit court of Winnebago County charging that relator was a fugitive from justice as of June 10, 1974 in violation of section 13 of the Uniform Criminal Extradition Act (Ill. Rev. Stat. 1973, ch. 60, par. 30). A warrant was issued for his arrest. The same day the relator appeared in court and challenged the legality of his confinement. He was allowed until July 31 to file a petition for a writ of habeas corpus at which time he filed an amended petition for writ of habeas corpus.

At the hearing on the writ on September 13, 1974, the relator testified he was in the State of Florida on the day of the alleged crime, having arrived in Florida around the end of August, and remained there during the entire month of September, 1973. He could not remember the exact day of his arrival and while he maintained he stayed at a particular motel while there and worked at a certain job he did not offer any proof of any kind to establish these facts, except his own testimony.

The victim of the attempted murder and robbery was present at the hearing in the Winnebago circuit court and testified to the best of her ability. However, she had been so badly injured when she was shot in the head by the robber as to largely deprive her of her memory and render some of her testimony vague and unresponsive in certain details. Nevertheless, she did positively identify the relator as the man who shot her and she persisted in such identification under cross-examination. In addition, on the question of the relator s whereabouts during the month of September, 1973, the chief of police of the victims home town was allowed to testify that the owner of the bar where the robbery and shooting took place had told him that the relator and a companion were in the bar on September 4, 1973, the day before the shooting, and that relator and his companion were talking about “having to get some money to go to Arizona.”

The relator contends that the testimony of the victim, Mrs. Minton, was inadmissible because she was incompetent and that the testimony of the police chief was inadmissible as being hearsay.

While it is true that where a question arises as to the competency of a witness in a regular trial it is incumbent on the trial court to conduct a preliminary examination to determine the witness’ competency (People v. Crews (1967), 38 Ill.2d 331), we do not believe this rule is applicable here. This was an extradition hearing and we are not dealing with a question of final judgment but only with the establishment of a prima facie case for remanding the relator to the demanding state for a trial. The essential fact to determine from the witness’ testimony was whether tire relator was in fact present in Michigan on the day of tifie crime. This was the central question at issue in this hearing. (People ex rel. Borelli v. Sain (1959), 16 Ill.2d 321.) On this point Mrs. Minton’s testimony was clear and unequivocal. The fact that the witness’ memory was impaired as to the events or conditions prior to the shooting does not impeach her competency to testify as to the person who actually did the shooting. The judge at the conclusion of her testimony, in denying the motion to strike it, said:

“Well, obviously the lady has sustained injuries which apparently have had some effect on her, on portions of her recollection, but I am satisfied that she is able to testify and did so as she recalls it in this case, so your motion is denied.”

The trial judge, obviously, did not find her to be incompetent on the main issue involved, which was the identity of her assailant and we are not inclined to hold that he abused his discretion in admitting this testimony. The cases cited by the relator as to the necessity for a preliminary examination as to competency (People v. Crews and People v. Tappin (1963), 28 Ill.2d 95) were both child-witness cases and in both cases the child was permitted to testify and there is no indication that a preliminary hearing was requested by the defendant or conducted by the court. The question of the competency of a witness depends almost entirely on the good judgment of the trial court since the trial court has the opportunity which the appellate courts lack, to observe the manner, demeanor and expression of the witness. Where the court is satisfied as to the competency of the witness he should not be overruled, except in a case of obvious abuse of discretion. (People v. Davis (1957), 10 Ill.2d 430; People v. Westley (1972), 5 Ill.App.3d 668.) In this case neither the character of the witness’ testimony nor the nature of the proceeding required such an auxiliary hearing to be held.

The relator also maintains that the testimony of the police chief, Melvin Tanner, should have been stricken as being hearsay. While we are inclined to agree that the testimony would be inadmissible as hearsay under the rules of evidence governing trials, we believe more latitude is allowable in an extradition hearing where only a prima facie case need be made out and the burden of proof is on the relator to establish that he was not in the demanding state on the day in question rather than the burden being on the State to show he was. In People ex rel. Blassick v. Callahan (1972), 50 Ill.2d 330, 335-336, the court on this point cited People ex rel. Webb v. Babb (1955), 5 Ill.2d 35, 41:

“The Illinois courts have followed the precedent established by the Supreme Court of the United States in Munsey v. Clough, 196 U.S. 364, where the court promulgated the rule that only when it is so conclusively proved that no question can be made that the person was not within the demanding State when the crime is said to have been committed can he be discharged. Thus the court may not weigh the evidence, or discharge the petitioner when the evidence on the fáct of his presence in or absence from the demanding State is merely contradictory. [Citations.]”.

Here the State established a prima facie case on the basis of the extradition warrant and supporting papers (which were not claimed to contain any irregularity) and the testimony of the victim, Lillian Minton, that the relator was in the state of Michigan on the date of the crime. The testimony of the police chief was only cumulative at best — it reinforced but was not necessary to establish the State’s prima facie case.

The second contention of the relator is that the trial court lost its jurisdiction to hear the habeas corpus petition because the defendant was incarcerated for 31 days — from June 18, 1974 to July 18, 1974 — during which no charges were pending against him. Since the Uniform Criminal Extradition Act (Ill. Rev. Stat. 1973, ch. 60, par. 32) provides that a fugitive may be committed to the county jail while extradition papers are being processed “for such a time not exceeding 30 days and specified in the warrant, as will enable the arrest of the accused to be made under a warrant of the Governor on a requisition of the Executive Authority of the state having jurisdiction of the offense, unless the accused give bail as provided in the next section, or until he shall be legally discharged,” the relator contends his confinement became illegal on the 31st day of his commitment and therefore he was no longer under the jurisdiction of the court on the 31st day after his commitment, the time of the hearing on the habeas corpus petition.

This claim is extremely technical because the violation claimed is so slight — only 1 day beyond the 30 days mentioned in the statute. The fact is that the governor’s warrant was filed in the clerk’s office on July 15, 1974, which was within the 30 days. In view of the technicalities of the extradition process this is hardly a deprivation of due process. In any event, however, reference to the case of People ex rel. Gummow v. Larson (1966), 35 Ill.2d 280, indicates the relator’s point is not well taken. The relator there made the same claim after being incarcerated for a much longer period of time beyond the statutory 30 days. The court in dealing with this contention said:

“We believe relator misapprehends the statutory plan. The purpose of these sections of the extradition law is to prevent unreasonably lengthy periods of confinement of fugitives pending consummation of extradition proceedings by the demanding State. (Cf. Lott v. Heyd, (5th cir.), 315 F.2d 350; Bolton v. Timmerman, 233 S.C. 429, 105 S.E.2d 518. There is, however, no indication of any legislative intent to restrict the period within which the Governor of Illinois may issue his rendition warrant to the period within which the cdurt which issues the fugitive warrant may commit the accused or require him to give bond.
A quite similar situation was before the court in Lombardo v. Tozer, 264 S.W.2d 376 (Mo. St. Louis Ct. App.) where the court held the legality or illegality of the fugitive warrant proceedings was moot since that warrant became functus officio upon issuance and service of the rendition warrant. (See also Lott v. Heyd, (5th cir.) 315 F.2d 350.) We agree, and since no question is raised on this appeal as to the validity of relator’s arrest pursuant to the Governor’s warrant, the judgment of the Lake County circuit court is affirmed.” 35 Ill.2d 280, 282.

In. the light of the above language it appears there is no basis for the relator’s claim that the circuit court lost jurisdiction of the person of the relator so as to deprive the court of its power to make a ruling on tire habeas corpus petition. Here the governor’s warrant was filed before the habeas corpus petition was filed and the court was not at liberty to disregard it.

There was nothing to prevent the relator’s immediate rearrest if he was discharged from custody without a hearing — or if he is now discharged from custody. Double jeopardy would not be involved. (May v. Sexton (1966), 35 Ill.2d 585.) Therefore from a practical standpoint it is obvious that the relator’s contention on this question is without merit.

The relator having failed to overcomp the State’s prima facie case for the issuance of a writ of extradition, the judgment of the circuit court of Winnebago County denying the writ of habeas corpus is hereby affirmed.

Affirmed.

T. MORAN, P. J., and SEIDENFELD, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Medline Industries, Inc., Plaintiff-Appellee, v. Robert Pascal et al. Defendants-Appellants.
    (No. 73-422;
    Second District
    November 18, 1974.

      Robert K. Polovin and Richard Wolfe, both of Chicago, and Ben Rifken, of Elgin, for appellants.
    Goldberg, Weigle, Mallin & Gitles, Richard P. Glovka, and Lederer, Fox & Grove, all of Chicago, and Wasneski, Yastrow, Kuseski & Flanigan and Finn, Geiger & Rafferty, both of Waukegan, for appellee.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

This is an appeal from two interlocutory orders entered by the circuit court of Lake County in November, 1973, denying defendants’ motions to stay proceedings in this case until a determination of the issues presented in a case pending in the circuit court of Cook County, Illinois.

On July 10, 1972, Medline Industries, Inc. (“Medline”), filed its complaint in this case for damages against Robert Pascal (“Pascal”), a resident of Lake County, based upon Pascal’s written guarantee of performance by Proviso Plastics, Inc. (“Proviso”), of a certain contract with Medline dated February 10, 1971, alleging that Proviso had breached the said contract. After the court denied Pascal’s motion to join Proviso and Paul Marcheschi (“Marcheschi”) as additional defendants, Pascal, on November 13, filed his answer and a “third party complaint” against Proviso and Marcheschi, alleging that under an indemnity provision in a stock purchase agreement between Pascal and Marcheschi, the latter, a coguarantor, agreed to hold Pascal harmless from actions brought by Medline,, and was liable for any resulting judgment.

On February 6, 1973, Proviso filed a complaint in the circuit court of Cook County against Medline and its “wholly owned subsidiary,” Dyna-cor Manufacturing Corporation (“Dynacor”), for rescission of four production contracts between the parties and for damages resulting from the breach.

On February 7, by leave of court, Medline filed its amended complaint in this Lake County case adding Marcheschi and Proviso as defendants and alleging breach by Proviso of the February 10, 1971, contract and of a second contract. Thereupon Marcheschi and Proviso moved for leave to file a limited appearance and to transfer venue to Cook County on the ground that the principal place of business of Medline and Proviso and the residence of Marcheschi are in Cook County, and that the trans■actions occurred in Cook County. On March 8 the trial court denied that motion.

Proviso then filed a motion to dismiss Medline’s amended complaint as well as Pascal’s third-party complaint, this motion being based upon the fact that there was a prior pending suit in the circuit court of Cook ■County involving all the issues between Proviso and Medline. This motion was denied on July 6 by the trial court.

On September 21 the Cook County circuit court denied Medline’s motion to dismiss Proviso’s complaint in that court.

On November 2 Proviso and Marcheschi filed a motion in the Lake County circuit court to dismiss the amended complaint and to stay the Lake County action against Pascal and Marcheschi until the determination of the Cook County suit. That motion was denied. On November 16 Proviso, Marcheschi and Pascal filed their motion asking the Lake County court to reconsider the order of November 2. This motion set forth the denial by the Cook County circuit court of Medline’s motion to dismiss that case based upon a prior pending action in Lake County and attached a copy of that order and of Proviso’s amended complaint in Cook County. It also alleged dual legal expenses by reason of the two suits, and requested that the order of November 2 be vacated and the proceedings stayed until determination of the Cook County case. This petition was likewise denied by the Lake County circuit court, and defendants appealed to this court.

On January 16, 1974, Medline filed its motion to dismiss this appeal asserting that it does not fall within any of the interlocutory orders which are appealable under Supreme Court Rule 307 (Ill. Rev. Stat. 1973, ch. 110A, par. 307). On January 30, upon defendants’ emergency motion alleging the entry on January 25 of an order by the trial court for discovery depositions of Marcheschi and for sanctions in the event of his failure to appear, we stayed proceedings in the Lake County circuit court until further order. Shortly thereafter we denied Medline’s motion to dismiss this appeal and vacated our temporary stay order.

We first consider the appealability of the trial court’s denial of the stay order. Supreme Court Rule 307(a) provides in part as follows:

“An appeal may be taken to the Appellate Court from an interlocutory order of court .(1) granting, modifying, refusing * • * * an injunction.”

No question is raised here as to defendants’ compliance with the procedural provisions .of that rule. Illinois courts, as well as the United States . Supreme Court, have held that a “stay order” is synonymous with an injunctional order and therefore appealable. (Property Management, Ltd. v. Howasa, Inc. (1973), 14 Ill.App.3d 536, 539; Wiseman v. Law Research, Inc. (1971), 133 Ill.App.2d 790, 793; School District No. 46 v. Del Bianco (1966), 68 Ill.App.2d 145, 152; and Ettelson v. Metropolitan Life Insurance Co. (1942), 317 U.S. 188.) None of these cases, nor those cited by Medline, sets forth any requirement for an inquiry into, or consideration of, “the substance rather than the form of the stáy order to determine if it was an injunctional order and therefore appealable,” as urged by Medline. We therefore hold that the Lake County circuit court’s denial of the stay order was an appealable interlocutory order.

We next consider the principal question raised: Whether the trial court erred in denying defendants’ motion to stay proceedings until, a determination of the suit pending in the Cook County circuit court. Defendants do not challenge the trial court’s jurisdiction over the parties or the subject matter. However, they contend that it is not the proper forum because the principal corporate parties, including Medline (whose Lability to one another would be determinative of the question of the liability of the guarantor Pascal who is a Lake County resident), reside and have their principal place of business in Cook County where defendants filed their suit to adjudicate the question of their respective liabilities to one another, one day prior to the filing of Medline’s amended complaint in Lake County circuit court adding Proviso and the other guarantor, Marcheschi (a nonresident of Lake County), for the first time. They urge that the Cook County circuit court would therefore be a proper and more convenient forum for the parties and that a stay of the proceedings in Lake County circuit court would avoid unnecessary and expensive litigation in two neighboring counties.

It is puzzling to us that Medline filed its suit against Pascal, a co-guarantor of the production contract, without first, or at the same time, seeking an adjudication of the breach of that contract and the extent of the liability thereunder. Had Medline sought such a prior adjudication it undoubtedly would have filed its original suit not in Lake County but in Cook County where all the contracting parties maintain their principal place of business, where the transactions occurred and where they all kept their records.

It appears to us that in view of the equitable circumstances present here it would be against conscience for Medline to be allowed to proceed and that the trial court erred in refusing a stay at least for a reasonable period of time to allow the Cook County circuit court to determine the existence of Medline’s or Proviso’s Labilities to each other. (See 42 Am. Jur. 2d Injunctions §201 (1969).) The determination of that question would simplify or eliminate the issue as to liability under the guarantee.

However, if after a reasonable time the trial court should determine that the case pending in-the Cook County circuit court is not proceeding apace, the stay order may be set aside and this cause should proceed in ordinary course. See Wiseman v. Law Research, Inc., supra.

Therefore, this case is reversed and remanded to proceed in accordance with this opinion.

Reversed and remanded with directions.

GUILD and SEIDENFELD, JJ., concur.


text:
    The Village of Burr Ridge, Plaintiff-Appellee, v. Norman J. Elia et al., Defendants-Appellants.
    (No. 73-115;
    Second District
    November 8, 1974.

      Rehearing denied December 13, 1974.

      Bauer & Hotte, of Elmhurst, for appellants.
    Klein, Thorpe, Kasson & Jenkins and Leonard Bosgraf, both of Chicago, for appellee.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

This is an appeal from a decree of the Circuit Court of Du Page County enjoining the defendants (appellants) from conducting the operation of their paving contracting and landscaping business on their premises, including the keeping and maintaining of their equipment thereon.

The premises in question originally belonged to Norman J. Elia’s father and have been in the possession of the Elia family for over 50 years. The evidence is somewhat conflicting in certain details but it seems clear that at an early age, possibly prior to the age of 15, Norman J. Elia, who was bom in 1920, began doing small jobs in the nature of landscaping work for surrounding neighbors, having at that time only minimal equipment. He then went into military service and when he returned in 1945 he began to expand his landscaping business, adding some pieces of equipment from time to time. Whether he did any paving contracting in the early 1950’s is not clear from the record, but it appears that about 1958 he began to acquire considerable equipment for use in the paving contracting business, which he stored and maintained in his home premises on the north side of 62nd Street (Lot 19) and another lot immediately south and west of the home premises on the south side of 62nd Street (Lot 18). Elia gradually expanded his business, apparently mostly in the direction of paving contracting, after 1958, and at the time of the trial was keeping, on his two lots, according to the complaint and the testimony of witnesses, a road grader, several tractors, several six-wheeled dump trucks and other grading and paving equipment. It also appears that he did some maintenance work on this equipment from time to time at the same location.

The lots in question and the entire surrounding area are zoned R-3 under the zoning ordinance of the Village of Burr Ridge enacted in 1965. This zoning does not permit the keeping and maintaining of equipment necessary for a landscaping and paving contracting business. The entire area, including the defendants’ land, and the land surrounding it, is zoned for residential purposes only. The complaint recites that the storage, maintenance and repair of defendants’ heavy equipment used in the business tended to substantially decrease the value of the adjoining and surrounding real estate. Expert testimony confirmed this and there was testimony by neighbors that the heavy equipment was a traffic hazard, especially to children in the neighborhood, and that the noise caused in the repairing and maintenance of the equipment was a nuisance as it was often done at night by floodlight.

There can be little doubt that the Burr Ridge zoning ordinance of March 8, 1965, prohibited the use being made of the defendant’s premises; however, the evidence also clearly establishes that- the defendants’ use of the premises for storing and maintaining the paving contracting and landscaping equipment long antedated the Village ordinance.

The Village recognizes this in the third amended complaint on which the prayer for an injunction is based. Count I simply alleges the necessary facts to establish a present violation of the existing ordinance. Count II, which is set forth as an alternative pleading, after adopting Count Is necessary preliminary facts, alleges that:

“2. That the use of the real estate described herein for the operation of paving contracting and landscaping business, which use initially involved the parking of one truck on or about said real estate, pre-dates the BURR RIDGE ZONING ORDINANCE OF MARCH 8, 1965, and all prior Zoning Ordinances of the VILLAGE OF BURR RIDGE AND DU PAGE COUNTY. [Emphasis added.]
3. That the use of the real estate herein described for the operation of a paving contracting and landscaping business, initially involving the parting of one truck on or about said real estate, has expanded to include, among other things, the parking, maintenance and repair, thereon, of One Austin Western Road Grader, Three Tractors, Three 6 Wheel Dump Trucks, Two 4 Wheel Dump Trucks, Two Pickup Trucks, One Jeep, One Road Paver, and Three Rollers.”

The defendants in their answer specially admitted the truth of paragraphs 2 and 3 of Count II but maintained, as an affirmative defense, that their use of the land was a legal, nonconforming use.

While questions of pleading are not usually of critical importance under our modern Civil Practice Act, under certain circumstances they can become so and we believe such a case is involved here. It will be noted that the pleadings in Count I of the complaint refer only to a violation of the Burr Ridge zoning ordinance of March 8, 1965. It is a straightforward allegation as to the violation of the ordnance by storing and maintaining certain heavy equipment used in connection with a landscaping and paving contracting business on said premises. No reference is made to the County zoning ordinance or any violation thereof. Count II does not deny the allegations of Count I, nor admit that the use was a legal, nonconforming use, but alleges that, (a) if it were a legal nonconforming use at the time of the enactment of the Burr Ridge Ordinance it has since expanded considerably, and (b) that in any event the Burr Ridge ordinance contains a provision for the discontinuance of a nonconforming, legal use of vacant land within 1 year of the passage of the ordinance, which period having passed, the use is now illegal under the ordinance. But, Count II also contains the allegation that the aforesaid use of the premises predated both the Burr Ridge zoning ordinance of 1965 and the county ordinance of 1935.

What makes so significant the allegation in the complaint that the defendants’ use of the premises for a landscaping and paving contracting business predated the 1935 county zoning ordinance, is that the basis of the trial judges decree was his finding as a matter of fact that the said business use of the premises began after the enactment of the 1935 county zoning ordinance and therefore the defendants, being in violation of the county ordinance, did not have a legal nonconforming use at the time the Burr Ridge ordinance was passed; therefore, they violated that ordinance and are subject to being enjoined.

Prior to the adoption of our modern Civil Practice Act a variance between the proof and the pleadings was, under certain circumstances where the adverse party was prejudiced thereby, held to be a fatal variance which would defeat a judgment even though the proof was sufficient to sustain it. (Stearns v. Glos (1908), 235 Ill. 290; Martin v. Frank (1930), 259 Ill.App. 417.) However, under modern practice, allowing pleading in the alternative, a variance between one count of the complaint and the proof is not fatal and may be disregarded if another count pleaded in the alternative accords with the proof. (McCormick v. Kopmann (1959), 23 Ill.App.2d 189.) Section 43(2) of the Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 43 (2)) states:

"(2) When a party is in doubt as to which of two or more statements of fact is true, he may, regardless of consistency, state them in the alternative or hypothetically in the same or different counts or defenses, whether legal or equitable. A bad alternative does not affect a good one.”

The plaintiff contends that under this language the allegation in Count II that the defendants’ use of the premises for landscaping and paving contracting predated the 1935 Du Page County zoning ordinance, may be disregarded as an alternative pleading and therefore does not constitute a judicial admission.

While there are numerous cases holding that inconsistent pleadings may not be used as a judicial admission against the pleader where he, in good faith, pleads such inconsistent facts or theories (McCormick v. Kopmann, supra, Dursch v. Fair (1965), 61 Ill.App.2d 273; Appleman v. Fabert Motors, Inc. (1961), 30 Ill.App.2d 424; Downs v. Exchange National Bank (1959), 24 Ill.App.2d 24), these cases are clearly distinguishable from the present state of facts. In the cited cases the defendant was aware that there were two distinct, inconsistent bases of recovery and the defendant knew what these were and could prepare against either eventuality that the proofs might tend to establish. While somewhat extended by such pleadings, the defendant was not deceived or misled — he knew it was a two-pronged case and could prepare accordingly. But in the case before us there is no clear-cut inconsistency between Count I and Count II. The vital fact as to when the defendants first began operating the landscaping and paving contracting business is entirely ignored in Count I which contents itself with the general allegation that the defendants violated the 1965 Burr Ridge zoning ordinance, whereas Count II alleges and invites admission as a fact that the defendants began the business of landscaping and paving contracting prior to either the Burr Ridge or the County zoning ordinances. Such pleading is perfectly proper but only on the theory indicated in Count II that there was an unwarranted intensification of the use as the business developed and/or that the Burr Ridge zoning provision for amortization of nonconforming uses was operative. To say in Count I that the Burr Ridge ordinance was violated in that a nonconforming use was made of the premises and to say in Count II that the Burr Ridge zoning ordinance was violated because a nonconforming use was intensified unreasonably and/or the nonconforming use was amortized — these are perfectly legitimate pleadings in both counts. Or, the plaintiff could have alleged in Count I that both the Burr Ridge and the County zoning ordinances were violated and left Count II as it was. But, the plaintiff ignored the County ordinance in Count I and removed it from consideration as an issue in Count II. When it came to the proofs the trial court found that the defendant, Norman J. Elia, had not commenced his operation as a landscaping and paving contractor until after the County zoning ordinance was passed in 1935, and therefore found defendant had violated the County zoning ordinance and thus he did not at the time of passage of the Burr Ridge ordinance have a legal, nonconforming use of his premises. Thus, the court, in effect, based its decision on a finding of fact which was not put in issue by the pleadings. It is apparent that these pleadings may have deceived and hampered the defendants. In the first place, had they been fully aware of the plaintiff’s theory they might have expended more effort to prove the date of the establishment of the business. Under the pleadings as set out the point did not appear to be important, which had the effect of deceiving the defendants. Secondly, the question as to whether the County zoning ordinance was actually violated should have required at least some sort of showing by the county. The county was aware of the defendant’s (Norman J. Elia) use of the premises over a period of 35 years, yet no case was ever brought by the county against him. Under this state of facts, the question naturally arises — did the county consider that its zoning ordinance had been violated? There was no satisfactory evidence on this point, since the county was not involved in any way as a party to these proceedings. In the absence of pleadings defining the issue, we question the propriety of the court’s finding that one municipality’s zoning ordinance was violated some 35 years ago and that another municipality’s zdning ordinance was violated 30 years later by relation back to the legal effect--of the supposed violation of the first municipality’s ordinance.

These are questions that either would not have arisen or may have been resolved prior to trial had the pleadings been set out in a fair, open and proper manner. As it was, the plaintiff was able to have his cake and eat it too, since under one set of pleadings he said nothing aboüt his actual theory of the case, thus giving the defendants no clue, and in the other pleading he set out allegations which denied the very theory under which the decree was entered. We cannot condone such pleading under the guise of alternative pleading.

The logic of the court’s decree required a finding based only on Count I of the complaint, since the pleadings under Count II had already established the key issue in defendants’ favor. Yet the court went outside of Count I and based its decree on evidence which was relevant only to an issue raised in Count II — and moreover, on evidence which was contrary to the admissions of Count II. We question the propriety of using evidence involved in Count II to sustain a finding under Count I which is-contrary to the admissions of Count II as to such evidence.

In the light of the trial court’s theory of the case as reflected in the decree, there is a distinct possibility that the defendants were prejudiced by such pleading; therefore, we are of the opinion the decree must be vacated and the case remanded for a new trial under amended pleadings which give the defendants proper notice, whether in a single count or alternative counts, as to what the defendants must prove in their defense.

We call attention to the fact that since the defendants, in their answer, raised a nonconforming use antedating the Burr Ridge ordinance as an' affirmative defense and this was not answered or pleaded to in any way by the plaintiff, the burden thereby shifted to the plaintiff to show that the defendants did not have a legal, nonconforming use under the Burr Ridge ordinance. The proof on the question of Norman J. Elia’s first use of the premises for landscaping and paving contracting there-, fore required more than a negative inference based on his age or a neighbor not being able to recall beyond a certain date, almost 20 years before.

Since, under new or amended pleadings the question may arise under the theory of amortization of the defendants’ nonconforming use of the premises under the Burr Ridge ordinance, we point out that so far as the use of unimproved land is concerned, the language in section 9(d) of the ordinance providing for the elimination of nonconforming uses within 1 year appears to go beyond the authority given the Village by the Municipal Code, section 11 — 13—1 (Ill. Rev. Stat. 1969, ch. 24, par. 11 — 13—1), which reads in part:

“The powers conferred by this Division 13 shall not be exercised so as to deprive the owner of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted, but provisions may be made for the gradual elimination of uses, buildings and structures which are incompatible with the character of the districts in which they are made or located, including, without being limited thereto, provisions (a) for the elimination of such uses of unimproved lands or lot areas when the existing rights of the persons in possession thereof are terminated or when the uses to which they are devoted are discontinued; 9 9 9.” (Emphasis added.)

If a legal, nonconforming use of the real estate in question is established, then the provision in the Burr Ridge ordinance for discontinuance of such use within a year of its passage would appear to conflict with the Municipal Code, and to be therefore unenforceable.

For the reasons stated, the decree of the trial court is reversed and the case remanded for further action not inconsistent with this opinion.

Reversed and remanded.

GUILD and SEIDENFELD, JJ., concur.


author: Mr. JUSTICE GUILD

text:
    The Village of Hinsdale, Petitioner-Appellant, v. Maurice R. Lowen-stine et al., Objectors-Appellees.
    (No. 74-109;
    Second District
    November 13, 1974.

      Klein, Thorpe, Kasson & Jenkins, of Chicago (Patrick A. Lucansky, of counsel), for appellant.
    Ross, Hardies, O’Keefe, Babcock & Parsons, of Chicago, for appellees.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The village of Hinsdale, appellant, filed a petition in the circuit court of Du Page County, asking the court to confirm a special assessment to pay for the cost of improvements to certain streets in the village. The improvements in question consisted of the repaving of streets and the installation of curbs, gutters and storm sewers in the area to be served thereby. As these streets had combined sanitary and surface drainage sewers the project provided for a disconnection of the present surface drainage sewers from the combined sanitary-storm sewers and the connection thereof to the proposed storm sewers.

The trial court sustained the objection of the property owners that the proposed improvement was not a local improvement and dismissed the petition.

The sole issue presented for review is whether the proposed improvement is a local or a general improvement.

At the hearing on the legal objections the village offered into evidence, without objection, the petition, assessment roll, certified copy of the ordinance, recommendation and estimate in order to make out its prima facie case for confirmation of its petition. (See Village of Winnetka v. Taylor (1919), 288 Ill. 624, 629, 124 N.E. 348.) The property owners introduced into evidence by judicial notice and stipulation of the parties the Environmental Protection Act (Ill. Rev. Stat. 1973, ch. 111%, par. 1001 et seq.) which calls for the establishment of a unified, statewide program for environmental, protection; the rules and regulations of the Illinois Pollution Control Board which provides for the separation of combined sanitary-storm sewer systems; a notice by the Hinsdale Sanitary District to the village which stated that the storm and sanitary sewers must be separated; and the minutes of the special assessment hearing conducted by the village board of Hinsdale sitting as the village board of local improvements which made reference to the need to separate the two sewer systems because of the Pollution Control Board regulation and the Hinsdale Sanitary District notice. After introducing these documents into evidence in an effort to show the proposed improvement was a general improvement, the property owners rested. The trial court found that the improvement was a general improvement and dismissed the village’s petition.

The village contends that the evidence as to the general nature of the improvement introduced by the objectors did not overcome the prima facie case for confirmation established by the village’s introduction of the assessment roll, the petition, recommendation, estimate and certified copy of the ordinance. The objectors, on the other hand, contend that because the sewer separation concerns an area which the State has recognized as a statewide concern — the purity of water — and because the improvement is being proposed pursuant to the Pollution Control Board rules and regulations concerning this statewide concern, the improvement is a general rather than a local improvement. The objectors conclude that this evidence is sufficient to establish the general nature of the improvement. In essence, the objectors contend that whenever an improvement is designed to alleviate a problem or area which has been recognized as a matter of statewide or national concern then, ipso facto, the primary purpose of the improvement is to benefit the public in general and thus the improvement is a general improvement.

We agree with the village’s contention. The mere fact that the state legislature has passed legislation in a certain field and declared such to be a problem of Statewide concern does not in and of itself make properly authorized improvements proposed by a local government which affect this Statewide concern, general rather than local improvements. (Village of Glencoe v. Hurford (1925), 317 Ill. 203, 219, 225, 148 N.E. 69.) In Village of Glencoe v. Hurford the objectors raised the issue of whether various State acts establishing a State highway system deprived the village of the power to make improvements to a State highway without the approval of the Department of Public Works and to pay for such improvements through a special assessment. Both the majority and dissenting opinions agreed that once the village is properly authorized to make such improvements the village may pay for such improvements by special assessment if they meet the test of a local improvement which was later defined as follows:

“If its purpose and effect are to improve a locality, it is a local improvement, although there is incidental benefit to the public, but if the primary purpose and effect are to benefit the public it is not a local improvement although it may incidentally benefit property in a particular locality. [Citation.] The fact that an improvement will be of advantage to the city does not change its character as a local improvement. If primarily of material advantage to the adjacent property, and where the improvement enhances the value of adjacent property as distinguished from benefits diffused by it throughout the municipality it is a local improvement.” Village of Downers Grove v. Bailey (1927), 325 Ill. 186, 191, 156 N.E. 362, 363.

Thus, even though a proposed improvement in part directly or indirectly benefits a problem of statewide concern, we will not consider it to be a general improvement if its primary purpose is to solve or alleviate the problem only in a particular locality. Certainly an improvement which improves a statewide problem in a particular locality will always benefit the public in some way. However, absent further proof, we cannot say that whenever an improvement affects a matter of statewide concern its primary purpose and effect is to benefit the general public rather than a particular portion thereof.

We do not believe the case most heavily relied upon by the objectors, City of Chicago v. Law (1893), 144 Ill. 569, 33 N.E. 855, supports the objectors’ contentions that the primary purpose of an improvement made by a local government which affects a recognized area of statewide interest or concern must be considered to be one which benefits the public in general. In that case the city, acting under the directions of the sanitary district, undertook to deepen and widen the Chicago River as a local improvement, and attempted to pay for the improvement by special assessment of the property fronting on the river. The court found that the improvement was not local in nature.

Although the court found that the deepening and widening of the river affected an area of State and national concern, i.e., interstate and intrastate commerce, the court based its ruling on its finding that the primary purpose and effect of the project was to increase commerce in such a way as to benefit the public in general and not to just benefit the fronting property owners in particular. There is no basis in the opinión for believing that the court would not have permitted at least part of the project to be financed by a special assessment if there had been a showing that the purpose and effect of the improvement was to increase commerce in order to primarily benefit the adjacent property owners in particular and that the public would be only incidentally benefited by this improvement. See City of Waukegan v. DeWolf (1913), 258 Ill. 374, 379-80, 101 N.E. 532.

Thus, we find that the objectors’ evidence as to the primary purpose of the improvement — that the separation of the sewers was done pursuant to the rules and regulations of the Pollution Control Board in an effort to purify the water which is a Statewide concern — is not sufficient to estab-Iish that the primary purpose was to benefit tire general public. The objectors failed to prove whether the sewer separation was designed to insure the purity of the water in all of the village or just in the particular locality. Additionally, there was evidence that the purpose of the improvement was to relieve local flooding and to improve the streets by repaving and installing curbs and gutters, both local benefits, as weU as purifying the water. Furthermore, the objectors did not introduce any evidence as to whether the primary effect of the improvement was to benefit the public or the locality. There was no showing that the improvement was not primarily of material advantage to the adjacent property, and that it did not enhance the value of adjacent property as distinguished from the benefits diffused by it throughout the municipality or State. Village of Downers Grove v. Bailey (1927), 325 Ill. 186, 191, 156 N.E. 362.

Therefore, the objectors have not shown that this improvement is a general improvement to be paid for solely by general taxation. As the vfilage has presented a prima facie case which has not been overcome by the objectors, we find that the improvement in question is a local improvement. (See Northwestern University v. Village of Wilmette (1907), 230 Ill. 80, 82 N.E. 615 (the construction of an additional sewer system to handle excess surface water in part of the village is a local improvement).) Accordingly, the trial court’s order dismissing the village’s petition is reversed and this cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

T. MORAN, P. J., and SEIDENFELD, J., concur.


author: Mr. JUSTICE RECHENMACHER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Rex Matrel Boothe, Defendant-Appellant.
    (No. 74-24;
    Second District
    November 18, 1974.
    Marc R. Kadish, of Chicago, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Martin Moltz, both of Illinois State’s Attorneys Association, of Elgin, for the People.
   Opinion by

Mr. JUSTICE RECHENMACHER.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Allen J. Ciochon et al., Defendants-Appellees.
    (No. 72-243;
    Second District
    November 13, 1974.
    John J. Bowman, State’s Attorney, of Wheaton (Robert Duffey and Charles Kaeding, both Assistant State’s Attorneys, and James W. Jerz and Charles D. Sheehy, both of Model District State’s Attorneys Office, of counsel), for the People.
    Marco & Mannina, of Downers Grove, for appellees.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The State appeals an order allowing defendants’ motion to quash a search warrant and suppress all evidence obtained thereunder.

The pertinent part of the affidavit in support of the warrant reads:

“I, John. Chaplin, a police, officer for the village ;of. Carol Stream,' while on patrol on 2/5/72.'.observed the following activities at the above described address: 1), observed lights on in the above apartment located at the above address and Nicholas Maggiore come out of the apartment on the balcony and observe my marked squad at about midnight 2) observed lights go out in the above ..apartment and Nicholas Maggiore and another white male obseWe my marked squad at about 2:30 AM 3) took up surveillance with binoculars and observed the lights on and Nicholas Maggiore and Donna Maggiore and a white male sitting at a table,. The white male appeared to prepare a solution and slowly handed a long thin object (approx. 4") to Nicholas Maggiore who had a band on his arm and his sleeve rolled up. His back was then turned to .me: Nicholas Maggiore then handed the band to Donna and the long thin object to the white male. He again appeared to prepare . a solution and handed the long thin object to Nicholas. Donna then went by Nicholas but I could not observe her as she was blocked by Nicholas. At about 9:00 AM I talked to Katherine Lucas who is a manager of the apartment complex' at 545 Gundersen and she advised apartment 407 is occupied by Nicholas and Donna Maggiore. My description of the subjects fit that of Nicholas: Maggiore and Donna Maggiore known to Katherine Lucas. I received from her a copy of the application for lease prepared by Maggiores for apartment # 407.
s/ John Chaplin, Complainant '•
I, John Ambrogio, a police officer with the Village of Carol Stream, was given an application for lease by Officer Chaplin signed by Donna Maggiore. Listed as nearest relative was Phyliss Homolik. On 2/5/72 I called the number listed on-the application for Phyliss Homolik and talked to a person who identified herself as Mrs. Homolik. She said no immediate relatives, of hers were diabetics. .
3.
s/ John Ambrogio, Complainant Subscribed and sworn to before me on February 5, 1972.
s/ J. E. Fitzgerald, Judge”

Based upon the affidavit, a search warrant issued authorizing the seizure of articles used in the commission of the offenses of unlawful possession of a controlled substance (Ill. Rev. Stat. 1971, ch. 56%, § 1401) and unlawful possession of a hypodermic syringe or,needle (Ill. Rev. Stat. 1971, ch. 38, § 22-50).

At the hearing to quash the warrant, defendants’ attempted to call one of the affiants, Chaplin, as a witness, to establish that defendants’ constitutional rights had been violated because Chaplin employed an illegal method to obtain the information within his affidavit. In barring such evidence, the cotut held that under People v. Bak, 45 Ill.2d 140 (1970), defendants’ proof must be confined to the sufficiency of the statements set forth in the affidavit and that they were thus precluded from introducing any extrinsic evidence. The court did, however, quash the warrant on the basis that Chaplin's use of binoculars to observe the defendants in their apartment violated their right to privacy and therefore constituted an unreasonable search.

The sole question presented is whether it is constitutionally permissible for the police, with the aid of binoculars, to peer into an apartment and thereafter use the conduct observed as basis for probable cause for the issuance of a search warrant.

The court’s order was founded on the premise that the use of binoculars, by itself, amounted to an invasion of privacy thereby making tire search unreasonable. The State takes the position that anything observed by the use of binoculars falls within the “plain view” doctrine and that observations under that doctrine do not constitute a search. Both approaches are over-simplifications of the question and neither is completely accurate.

The use of binoculars does not, per se, constitute an unreasonable search and the court erred in so holding. (See United States v. Lee, 274 U.S. 559, 71 L.Ed. 1202, 47 S.Ct. 748 (1927); United States v. McCall, 243 F.2d 858 (10th Cir. 1957); Fullbright v. United States, 392 F.2d 432 (10th Cir. 1968); Johnson v. State, 2 Md. App. 300, 234 A.2d 464 (1967); Commonwealth v. Hernley, 216 Pa. Super. 177, 263 A.2d 904 (1970).) We take special note that in each case except Johnson v. State, supra, the authorities had prior information that a crime had occurred or was occurring before surveillance was initiated with binoculars or other aids; additionally, the activities of the suspects were in plain view. Such information is lacking in the case at bar. Whether, prior to the use of binoculars, authorities had reason to believe that a crime had taken place or was taking place is of vital importance. In Berger v. New York, 388 U.S. 41, 18 L.Ed.2d 1040, 87 S.Ct. 1873 (1967), a New York statute allowed state courts to issue warrants permitting eavesdropping when the affidavit related “that there is reasonable grounds to believe that evidence of a crime may be thus obtained.” The statute did not require the affiant to aver that a crime had been or was in the process of being committed nor was it necessary that the warrant specify that place to be searched or the persons or tilings to be seized, as required under the fourth amendment. Because of the lack of these essentials, the court likened the statute to the general warrant of colonial days and declared it invalid.

In Katz v. United States, 389 U.S. 347, 351-61, 19 L.Ed.2d 576, 582-88, 88 S.Ct. 507 (1967), the defendant’s portion of a telephone conversation was overheard by the use of an electronic device attached to the outside of a public telephone booth. In holding this to be an unreasonable search, the court stated, “The Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. * * * But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” (389 U.S. 347, 351, 19 L.Ed.2d 576, 582.) Justice Harlan, in a special concurring opinion, interpreted the court’s decision to hold “only (a) that an enclosed telephone booth is an area where, like a home * * * and unlike a field # * a person has a constitutionally protected reasonable expectation of privacy; (b) that electronic as well as physical intrusion into a place that is in this sense private may constitute a violation of the Fourth Amendment; and (c) that the invasion of a constitutionally protected area by federal authorities is, as the Court has long held, presumptively unreasonable in the absence of a search warrant.” (389 U.S. 347, 360-61, 19 L.Ed.2d 576, 587.) He then wrote that to obtain benefits of fourth amendment protection, “there is a two-fold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable’. Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited.” (389 U.S. 347, 361, 19 L.Ed.2d 576, 588.) We can find no distinction in law between overhearing conversations by means of electronic devices and observing a person’s conduct by the use of binoculars. Permissibility of their use depends upon the surrounding circumstances.

We do not subscribe to tire proposition that anything observed with the use of binoculars can automatically be categorized as “within the plain-view doctrine.” The State incorrectly relies on a post-Katz decision, Harris v. United States, 390 U.S. 234, 236, 19 L.Ed.2d 1067, 1069, 88 S.Ct. 992 (1968), and cases cited therein, where the Court stated, “It has long been settled that objects faffing in plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced into evidence.” In those cases only the natural senses were used; no extrinsic aids were necessary.

While Katz found the “trespass” doctrine to be so eroded that it could no longer be controlling, it did not bar electronic devices (cf. United States v. White, 401 U.S. 745, 28 L.Ed.2d 453, 457-59, 91 S.Ct. 1122 (1971) and cases cited therein) but only restricted their use. See People v. Wright, 41 Ill.2d 170, 175 (1988) where the court stated, “Katz is applicable only to those instances where electronic eavesdropping devices or other artificial means are employed in addition to the natural senses.” As revealed by a reading of Berger and Katz, the Court, cognizant of the advancements in technology and the effect of those developments upon individual privacy, has turned to the reasonable expectation theory whenever the use of extrinsic aids to the natural senses has tended toward invasion of the right of privacy under the fourth amendment. For a review of search cases where binoculars were used, see Annot, 48 A.L.R.3d 1178 (1973).

The difficulty in review of the instant case is not so much a question of the applicable law as it is the lack of facts presented. Both the State and defendants have within their briefs made statements of “fact” which are unsupported by the record, e.g., defendants state that their apartment is located on the fourth floor and that Chaplin was a trespasser at the time of the surveillance; the State cla'ms that Chaplin made no physical trespass on defendants’ property and that at the time of the surveillance the evidence obtained was in plain view. None of these “facts” are revealed by the evidence.

We feel that the trial court misinterpreted the holding in People v. Bak, supra (see People v. Wilson, 4 Ill.App.3d 766, 769-70 (1972)), and in so doing, barred the introduction of evidence necessary to answer the question posed. In Bak and in People v. Mitchell, 45 Ill.2d 148 (1970), cert. denied, 400 U.S. 882, 27 L.Ed.2d 120, 91 S.Ct. 117, the defendants attempted to introduce evidence to controvert matters contained in the affidavits. Their purpose was to prove the informers unreliable and to show that other allegations of the affiants’ were false. Here defendants intended neither of these purposes. They admitted tire facts averred in the affidavit. What they intended to introduce was evidence to prove that Chaplin’s information, the basis of probable cause for issuance of the warrant, was obtained by means of an unreasonable search conducted prior to his seeking the warrant. To bar the taking of evidence on such claim would be to hold that all allegations contained in an affidavit for a search warrant are conclusive regardless of the means employed in obtaining the information. We have not found any law supporting such result.

For the reasons stated, we find it necessary to reverse the order and remand the cause with directions to take further evidence to determine the circumstances surrounding the use of binoculars in this case.

Reversed and remanded with directions.

SEIDENFELD and RECHENMACHER, JJ., concur.

      In this case the court relied upon Goldman v. United States, 316 U.S. 129, 86 L.Ed. 1322, 62 S.Ct. 993 (1942). In the subsequent case of Katz v. United States, 19 L.Ed.2d 576, at page 583, the Court held that the underpinnings of the trespass doctrine relied upon in Goldman were so eroded that it was no longer controlling.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Pritchett, Defendant-Appellant.
    (No. 72-383;
    Second District
    November 12, 1974.
    Ralph Ruebner and Richard Wilson, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Opinion by

Mr. JUSTICE RECHENMACHER.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Theolis Hinton et al., Defendants—(John L. Miller, Defendant-Appellant).
    (No. 73-125;
    Second District
    November 18, 1974.
    Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz, of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. JUSTICE RECHENMACHER.

delivered the opinion of the court:

Defendant and Theolis Hinton were charged with armed robbery. Hinton pleaded guilty on a negotiated plea. The defendant pleaded not guilty and after a jury trial was convicted and sentenced to not less than 5 nor more than 25 years in the penitentiary. From this conviction and sentence the defendant appeals on the grounds that (a) he was not represented by counsel at the identification lineup, (b) photographs shown to the witnesses for identification purposes were impermissibly suggestive, thus tainting the identification, (c) the in-court identification was improperly admitted because not shown to have been based on observation independent of the illegal lineup and (d) his minimum sentence of 5 years should be reduced to 4 years because under the Unified Code of Corrections 4 years is the minimum and this is what the judge intended.

The robbery in question occurred on October 21, 1971, at a cocktail lounge known as Star Lite Lounge. One man, later identified as Hinton, entered the lounge, looked around, spoke briefly to the bartender and left. He returned a few minutes later with another man (later identified as the defendant). Both men were armed, Hinton with a sawed-off shotgun, the defendant with a chrome-plated pistol. Present in the lounge at the time were the proprietor, Shaffar; the bartender, Betty Saulton; and two patrons, Dennis Frost and a woman named Fritzy. While the robbery was in progress a patron, Niemi, entered and was also detained and robbed. The robber with the shotgun pointed it at the head of Frost and the other robber jumped over the bar, seized the bartender and walked her to the two cash registers, which she proceeded to empty out. All the persons present were robbed of the money they had with them in addition to the robbery of the lounge proceeds. When the robbers left the proprietor, Shaffar, called the police and gave them a brief description of a car he had glimpsed as the robbers drove away as being a black convertible with a white top, probably a Buick. A few minutes later a police squad car observed such an automobile and pursued it, whereupon, the car stopped and two men jumped out, at the same time throwing a shotgun out. In the ensuing scuffle Hinton was handcuffed but the defendant, after struggling with one of the officers for a few minutes, broke away and escaped. Hinton'was taken to the pol'ce station and an officer assigned to watch the suspected automobile found a wallet belonging to the defendant and a broken bracelet, later identified as defendant’s, near the automobile at the scene of the arrest.

The next morning, October 22, a lineup was arranged so that the victims could view the suspect, Hinton. After this lineup the witnesses, Shaffar, Frost and Niemi, were shown “mug" shots in order to pick, out the second robber. Frost and Niemi picked out the defendant but Shaffar did not identify anyone. Pursuant to an arrest warrant and complaint issued the same day the defendant was arrested on October 23. On October 24 the defendant was placed in a lineup which was viewed by Frost, Shaffar, Betty Saulton and the arresting officer who had handcuffed Hinton. All but Mrs. Saulton identified the defendant as the second robber, although Shaffar did not do so immediately and the officer refused to let him change his identification.

At the lineup the defendant was not represented by counsel. The defendant was subsequently indicted and moved to suppress the identification evidence on the ground that the pictures were suggestive and the lineup illegal because he was not represented by counsel. The motion was denied, the identification evidence was used at the trial and the defendant was convicted.

We first consider the issue raised by the defendant as to whether the lineup identification should have been suppressed on the ground that defense counsel was not present. Following the United States Supreme Court cases of United States v. Wade (1967), 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926, and Gilbert v. California (1967), 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951, which held that an identification lineup was a critical phase of the criminal proceedings against the defendant, our supreme court held in People v. Palmer (1989), 41 Ill.2d 571, that Gilbert and Wade required the presence of counsel at the lineup only where the defendant had already been indicted and that since this was an identification made at the police station prior to any indictment the doctrine of the Wade and Gilbert cases did not apply. Subsequently, however, in Kirby v. Illinois (1972), 406 U.S. 682, 32 L.Ed.2d 411, 92 S.Ct. 1877, the United States Supreme Court made it clear that the requirements of a defense counsel’s presence at the lineup extended to any “adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Accordingly in the later case of People v. Burbank (1972), 53 Ill.2d 261, our supreme court interpreted the doctrine of Wade and Gilbert in the light of Kirby v. Illinois and broadened the doctrine as applicable under Illinois law to “not only post-indictment lineups but to lineups conducted after the initiation of adversary judicial criminal proceedings against an accused by whatever means.” 53 Ill.2d 261, 272.

■ In the light of this language the defendant maintains that the identification lineup evidence must be suppressed because the issuance by the State of an arrest warrant following a formal complaint and the defendant’s arrest pursuant thereto, together constituted “adversary judicial criminal proceedings” against the defendant and the absence of- counsel at the lineup therefore falls within the prohibition announced in People v. Burbank.

The State argues that a mere complaint is not a “formal charge” and an arrest consequent upon the complaint is not an adversary judicial proceeding so that People v. Burbank does not apply in this case, which is actually governed by the earlier pronouncement in People v. Palmer.

It should be noted that in neither People v. Palmer nor People v. Burbank had the defendant been formally charged with the crime in question. Palmer was decided before Kirby and went on the basis that no indictment had been secured at the time of the lineup. In Burbank the court, while recognizing the broadening effect of Kirby, still held the lineup evidence admissible on the ground that the defendant at the time of the lineup had not yet been formally charged with murder.

The United States Supreme Court in Kirby speaks of “formal charge” as well as preliminary hearing, indictment, information and arraignment as being adversary judicial criminal proceedings, the initiation of which triggers the requirement of defense counsel at the lineup. We are thus faced squarely with the question whether a complaint followed by an arrest warrant and the actual arrest of the defendant amounts to, if nothing else, a “formal charge" and thus fall within the ambit of the Supreme Court’s dicta describing the kind of “adversary judicial criminal proceedings” which necessitate the presence of counsel.

After careful consideration we are unable to agree with the State’s contention that the proceedings here were not “adversary and judicial.” As to the exact point at which a proceeding against an individual commences to be an “adversary judicial criminal proceeding” we need not here determine but we are of the opinion that in this case the proceedings had reached that critical stage at the time of the identification lineup. We therefore distinguish the present case from Burbank and People v. Williams (1972), 52 Ill.2d 455, where a formal charge had not preceded the lineup, and hold that the defendant’s situation here comes within the stricture of Kirby and the general language of Burbank requiring the presence of counsel at a lineup.

We are not, however, persuaded that this holding requires a reversal of the judgment reached in the trial court, as is contended by the defendant. The requirement of counsel’s presence is founded on considerations of due process. If all the circumstances taken together clearly indicate that due process was followed the absence of counsel at the identification lineup is not fatal to the judgment reached by the trial court. As our supreme court said in the Burbank case:

“Whether the defendant was denied due process of law depends upon the totality of the circumstances surrounding the identification procedure. If the witness had an opportunity to observe and there is little likelihood of mistaken identification a conviction based upon a subsequent in-court identification will not be set aside. (People v. Fox, 48 Ill.2d 239.)” (53 Ill.2d at 273.)

In this case we must inquire, therefore, whether the independent identification outside the lineup itself was sufficient to sustain the in-court identification of the defendant, disregarding entirely any support lent to it by the lineup identification.

The defendant was identified in court by four witnesses, Mr. Shaffar, Mr. Frost) Officer Johnson and Officer Beres. Mr. Shaffar, the proprietor of the lounge, testified that hé saw the defendant behind the bar while he was rifling the cash registers and holding a gun to the bartenders head during a period of at least 3 minutes. He observed him at the south cash register which was well lighted for about 20 seconds and again at the north cash register for about 20 seconds. He observed defendant at a distance of approximately 5 feet when he marched the bartender, Betty Saulton, toward the north cash register with a gun at her head. At this time Shaffar was facing south and defendant was facing east or* north. When the defendant picked up the purse of one of the lounge patrons he faced north which made him face to face with Shaffar. A patron, Frost, testified that' he saw both men when they entered the lounge. He watched the defendant go over the bar and proceed to the south cash register. When Frost first observed him the defendant was standing right underneath the bar light and there was a fluorescent light in the ceiling besides the bar light.- Frost observed the defendant face to face as he looked south while the defendant was marching the bartender north to the north cash register. He watched the defendant extract the contents of Betty ■Saulton’s purse and he was only 4 feet away at that time. He picked the defendant’s photo from a packet of five or six unmarked photos handed to him by a police officer at the police station. Shaffar also picked out the defendant from several photographs at the police station.

Officer Johnson testified he saw the defendant as he emerged from the stopped vehicle at the scene of Hinton’s arrest. The headlights and the searchlights of the squad car were lit and in addition the headlights of defendant’s car were on. Also there was a street light overhead. Johnson ■approached the defendant, seized him and struggled with him. For a brief period he was face to face with the' defendant under good lighting before the defendant broke away and fled. Officer Beres also testified that he had opportunity to observe the defendant while Officer Johnson was struggling with him. He approached the defendant face to face and -took a gun from under his arm just before the defendant broke away. The gun was-of thé same general- description as the one used in the robbery and was identified as the gun taken from the person who escaped at the scene of Hintons arrest.

In addition the defendant’s wallet was found by a police officer detailed to watch the robber’s car near the curb alongside the car and a bracelet was found nearby which admittedly carried the defendant’s nickname, “Bud-T.” Hinton, who pleaded guilty, and the defendant were friends and had been seen together on the evening of the robbery.

Considering the opportunity of the witnesses who identified the defendant to observe him during several minutes at the scene of the robbery, the identification by the two officers who saw h;m face to face under good lighting and the fact that the defendant’s wallet and bracelet were found at the scene of the arrest, there seems to be in this case more than sufficient evidence independent of the lineup identification to justify identifying the defendant as the robber. In United States v. Wade, the pioneer case on the question of lineup identification without the presence of counsel, the United States Supreme Court in discussing sources of identification and the question of whether independent sources of identification might be sufficient to overcome the deficiencies of a lineup, said:

“We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 US 471, 488, 9 L ed 2d 441, 455, 83 S Ct 407, ‘“[Wjhether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint”, Maguire, Evidence of Guilt 221 (1959).’” (388 U.S. 218, 241, 18 L.Ed.2d 1149, 1165.)

The court mentions as factors to be considered in applying this test:

“[T]he prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.” (388 U.S. 218, 241, 18 L.Ed.2d 1149, 1165.)

In the case before us there was ample time and opportunity for the witnesses who were victims of the robbery to observe the crime and the criminals; there was no identification of another person prior to the lineup; the witnesses did identify the defendant by pictures prior to the lineup and the time between the alleged act and the lineup identification was very short. In People v. Pierce (1972), 53 Ill.2d 130, where the defendant contended the lineup should be suppressed both becáuse of lack of counsel and because it was presented in an impermissibly suggestive manner, our supreme court, while agreeing as to the suggestibility of the lineup, held it did not require reversal of defendant’s conviction because the victim’s identification of the defendant was based on good opportunity to observe the defendant over a period of several minutes while struggling with him and his identification therefore was entirely independent of the suggestive lineup.

In view of the identification evidence entirely outside of and independent of the lineup in the case before us, we are not persuaded that due process was violated by the absence of counsel at the identification lineup, whether or not the circumstances justified the claimed right to counsel.

We will not speculate on the possible objections or suggestions of counsel at the lineup if counsel had been present to represent the defendant, but in view of the independent sources for identification there is no basis for supposing that the in-court identification would have been ruled inadmissible in any event. We feel that there is, therefore, no basis for the defendant’s contention that the introduction of the lineup identification evidence was harmful error in that otherwise there would have been insufficient evidence to sustain the defendant’s conviction beyond a reasonable doubt. Therefore, while we are conscious of the rule announced in Gilbert that where the lineup is legally tainted by the absence of defendant’s counsel, the testimony of witnesses that they identified the defendant at such lineup is inadmissible, we are of the opinion that their testimony on this point did not substantially harm the defendant in the light of the other competent identifying evidence. Since it appears to us beyond a reasonable doubt that the other sources of identification were sufficient to establish the defendant’s participation in the crime, we consider the error in admitting the lineup testimony as harmless and not requiring a reversal of the result below. Without doubt, in our opinion, the result would have been the same had the identifying witnesses not testified at all as to any identification of the defendant at the lineup.

The day before the lineup Shaffar, Frost and Betty Saulton were each shown separately a group of six unmarked photographs — all torso shots of young blacks — to assist in identifying the robber. Five of these photographs carried a 1971 date in the margin; the defendant’s carried a 1967 date. The defendant claims this was prejudicial in that it might easily have been deduced by persons viewing the photos that the one carrying the 1967 date indicated a prior incarceration of the subject. We think the defendant exaggerates the importance of the date in the margin of these pictures. A victim of a robbery, shown several unmarked photos, one of whom might be the robber, while a police officer looks on awaiting his reaction, is not, we think, apt to engage at that moment in any deductions as to the significance of a date on the picture. He is looking for something in the facial characteristics that is familiar to him. A.person looking at “mug” shots, even if unsophisticated in such a situation, probably realizes that all the persons depicted have had some trouble of one kind or another with the police, but his main attention is likely to be directed at the moment of first impact, to the face in the picture rather, than extraneous data in the margin. Indeed, the more recent date may-just as easily have had a prejudicial effect as the older one, at first glance, if it was remarked at all.

Betty Saulton, who viewed the photos, failed to pick anyone as the robber, which indicates the date was not an obvious way of directing attention to the defendant. Significantly, Betty Saulton was not in a position to see the robber face to face for more than a second or two because he stood cheek to cheek alongside her and held the gun so she could not turn her head to get a full face look at him. This, we think, is why she failed to identify the defendant as the robber in spite of the clue which the defendant claims was so obvious. In view of these considerations we are not inclined to agree that the “mug” shots as shown prejudiced the defendant.

The defendant contends that his sentence of 5 to 25 years in the penitentiary violates the Unified Code of Corrections in that the remarks of the trial judge, “I’m going to impose a sentence on the defendant of not less than five years, which is the minimum provided by law in this manner # * indicated an intention on his part to impose only the minimum sentence and not an arbitrary sentence of 5 years, and that since the applicable minimum for armed robbery is 4 years under the Unified Code and the code is applicable because the case had not reached final adjudication at the time the code became effective, his minimum sentence should be reduced to 4 years.

We agree that the defendant’s argument has merit, however, since the intention of the trial- judge is easily ascertainable we see no reason to decide the matter here. We remand the case, therefore, for determination by the trial court of the minimum sentence to be imposed.

The case is therefore affirmed as to the defendant’s conviction and remanded for determination of the minimum sentence to be imposed.

Affirmed and remanded!

GUILD and SEIDENFELD, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ricky Wilcoxen, Defendant-Appellant.
    (No. 73-159;
    Third District
    November 12, 1974.

      James Geis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Robert A. Downs, State’s Attorney, of Lewistown, for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

Sitting by assignment in the Third District Appellate Court, we consider the defendant’s appeal from a sentence on a negotiated plea of guilty to attempted murder of a 3-year-old child (Lori). We likewise consider a conviction based on negotiated pleas of guilty on four charges involving a 5-year-old girl (Terri), a sister of Lori. The pleas are to two separate counts of attempted murder, a count charging rape and a count charging indecent liberties. As a result of the judgments entered on such pleas, three counts involving Lori and nine counts involving Terri were dismissed.

Concurrent sentences of 15 to 45 years in the Illinois State Penitentiary were imposed in each indictment. In this court, the defendant contends (1) that the conviction for attempted murder of Lori should be reversed and the cause remanded because the nature of the charge was never explained to him, (2) the convictions for rape and indecent liberties as to Terri should be reversed and remanded because no factual basis appears in the record to support these convictions, and (3) the convictions for one count of attempted murder and indecent liberties as to Terri should be reversed because the same conduct which constitutes a basis for one is the basis for the other.

The defendant and other guests had celebrated New Year’s Eve at the defendant’s brother-in-law’s house. The guests departed about 2:45 A.M. The two little girls were asleep in separate bedrooms and their father, Raymond, was asleep in a third bedroom. The defendant’s cousin, Clifford, was asleep on the couch in the living room. The defendant was last seen by Clifford sitting in a chair in the living room.

At about 6:45 A.M. Clifford was awakened by Lori’s crying. He heard a noise which sounded like someone getting hit and also heard Lori saying, “Quit it, Rich,” or “Rich, don’t do it.” Clifford went to Lori’s bedroom in the basement of the house and found her dressed only in her pajama top and bleeding. Clifford awakened Lori’s father and the two men then found Terri in her bedroom in the basement, badly beaten and nude. About this time the defendant entered the house from the outside dressed only in his undershorts and socks. An altercation occurred. The defendant was ejected from the home and arrested shortly thereafter in his own home, still clad in the undershorts and socks. Scientific evidence revealed that the blood type of Terri was on the defendant’s shorts, socks and pubic hair. Medical examination of the two children at the hospital revealed that they were both badly beaten. Lori suffered a fractured skull. A wooden slat from a baby crib approximately 20 centimeters in length had been inserted into Terri’s vagina and had punctured the vagina wall and entered her abdomen. Pubic hair of defendant was on the stick.

The arraignment of this defendant on the charges involving each girl as well as the admonitions given before the acceptance of the plea were conducted simultaneously for the convenience of the court, and both the defendant and his counsel had no objections to this procedure. The court stated that if there were any such objections to such procedure, he would gladly admonish the defendant separately as to each of the charges relating to each of the girls. Neither objection to such procedure nor a request for separate admonitions was made in response to this offer.

As to Lori, the defendant contends that the trial court failed to comply with Supreme Court Rule 402(a)(1) (Ill. Rev. Stat. 1973, ch. 110A, par. 402(a)(1)), which requires the court to inform the defendant of and determine that he understands the nature of the charge. The thrust of the defendant’s arguments specifically is that since there was no explanation of the nature of the charge, there could be no understanding by him of the charge to which he pleaded. The record shows that the indictment for attempted murder was read to the defendant at the time of the arraignment as well as the other indictments involving Lori, and all 13 indictments involving Terri. This was done on the court’s insistence notwithstanding the fact that the defendant waived such reading in his presence.

We judge that the supreme court decision recently filed, People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559, reversing 12 Ill.App.3d 38, 297 N.E.2d 386, lays to rest much and perhaps all of the confusion existing in this State concerning the guidelines for proper admonitions under Supreme Court Rule 402. “We note first the rule requires that there need be only substantial, not literal, compliance with its provisions. (People v. Mendoza, 48 Ill.2d 371, 373-374.) Also, the entire record may be considered in determining whether or not there was an understanding by the accused of the nature of the charge. (People v. Doyle, 20 Ill.2d 163, 167; People v. Harden, 38 Ill.2d 559, 563, aff’g People v. Harden, 78 Ill.App.2d 431, 444-445.” (58 Ill.2d 187,192.) As stated in Krantz, “ ‘[T]he remarks and advice of the court must be read in a practical and realistic manner. The essentials have beeen complied with if an ordinary person in the circumstances of the accused would understand them as conveying the information required by the rule.’ (People v. Doyle, 20 Ill.2d 163,.167; see also People v. Caldwell, 55 Ill.2d 152, 156.)” The .indictments in this case were not couched in technical words.

When this record is examined in its totality and where it shows that the defendant read the bill of particulars, and heard the indictments read in totality, it seems clear that the defendant clearly understood the nature of the charges against him. We think it abundantly clear that any reasonable person could readily understand the nature of the charges against him and such is a sufficient compliance with the rule. (People v. Ingeneri, 7 Ill.App.3d 809, 288 N.E.2d 550; People v. Bell, 4 Ill.App.3d 397, 280 N.E.2d 487.) In addition, we might point out that the court stated, “I want to be sure Ricky understands. ° * I just want to say to you I am going to go over the various counts which Mr. Sebo has said you want to plead guilty to subject to the negotiations which I understand you have had. If you don’t understand something, you tell me. I will do everything needed to see if I can be sure you do understand.” The court then said, “I think that the way to say it, Rick, simply is when you enter a plea of guilty you are in effect saying yes, on the said date, I did try to murder Terri Seward or I did try to murder Lori Seward; I did have intercourse with them. That is what you were saying to me. That is what you are charged with. Do you understand that, sir?” The defendant answered, “yes.” We therefore judge that within the four comers of this record there is sufficient evidence to indicate that Supreme Court Rule 402 was adequately complied with, that the defendant understood the nature of the charge against him and the consequences of his plea as to attempted murder on each of the girls and as to the rape of Terri.

The defendant likewise contends that the indecent liberties charge as to Terri cannot stand where the charges of rape and indecent liberties arise out of the same conduct and only one conviction can properly stand. (People v. Brown, 52 Ill.2d 94,285 N.E.2d 1; People v. Miller, 7 Ill.App.3d 878, 289 N.E.2d 23.) If the indecent liberties arise as the result of the rape and as a result of the same act, indecent liberties is regarded as the lesser conviction and that conviction must be reversed. A like result obtains if the indecent liberties was the insertion of the stick.

The defendant pleaded guilty to attempted murder in inserting a wooden stick into Terri’s vagina and likewise pleaded guilty to attempted murder in beating Teni with a blunt object. It does not appear to us that these two acts could possibly be said to arise out of the same act or to have the same motivation. In our view as a practical consideration of' the •problem, tire insertion of the wooden stick is one act with one type of motivation, but with full knowledge that it would inflict great bodily injury upon the victim. In like manner, striking Terri with a blunt instrument was a separate act done to inflict great bodily harm on her but with the purpose and motivation of silencing her to avoid identification. We do not therefore believe that we may properly charge these two separate acts, although closely related, as one single act or produced through the same motivation. They are separate acts on the same person, each, how- • ever, with separate motivation but likely to produce great bodily injury, if not death.

Taken with the case- was a motion by the defendant to add an additional issue to his brief and argument. The issue sought to be raised is that the court did not admonish the defendant that there was a mandatory special parole term involved in the sentences and therefore defendant was not fully advised of the . consequences of his plea. This motion is predicated upon the opinion of our court in People v. Wills, 23 Ill.App.3d 25, and now on appeal to the Supreme Court through a certificate of importance granted on the court’s own motion. It is urged that if the Supreme. Court reverses Wills, then the defendant wiU- be deemed to have waived the presentation of this defense. We would point out that in Krantz the supreme court’s opinion stated specifically that substantial compliance with Rule 402(a) requires no such admonition. Therefore, even if Wills should be reversed on the constitutional issue, it would necessarily be affirmed under Krantz. If it is affirmed, there is nothing for this defendant to preserve. The motion to raise this issue as to the admonition is denied.

Accordingly, the judgment of the trial court as to indecent liberties is reversed and the judgment of the trial court in all other respects is affirmed.

Cause remanded to the trial court with directions to issue a modified mittimus in accordance with the views herein expressed.

TRAPP and SIMKINS, JJ., concur.