text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bobby Word Harden, Defendant-Appellant.
    (No. 55144;
    First District
    — November 1, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Fred Shandling, James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Henry A. Hauser, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LYONS

delivered the opinion of the court:

Following a bench trial, Bobby Word Harden was found guilty of the offenses of aggravated kidnapping and rape. Judgment was entered on the findings and he was sentenced to concurrent terms of not less than five nor more than ten years in the Illinois State Penitentiary. On appeal he contends:

1) That he was denied his right to counsel at a pre-indictment showup;

2) That the trial court erred in refusing to suppress the identification testimony of the prosecutrix as the tainted product of an improperly suggestive identification procedure; and

3) That the totality of the evidence discredits the accuracy of the identification testimony of the prosecutrix and is insufficient to establish guilt beyond a reasonable doubt.

At the hearing on defendant’s motion to suppress identification testimony, Detective Ralph Storck testified that he arrested the defendant in front of his place of employment on June 22, 1967. At the time of his arrest defendant was advised of his rights and informed that a motorcycle bearing license plates registered to him was seen at the site of a criminal offense. The defendant was not advised of the nature of the crime until he had been transported to the police station.

At the station Detective Storck had a conversation with the prosecutrix and then took the defendant into an interrogation room. He did not see the prosecutrix identify the defendant.

Finally, Detective Storck testified that a lineup was not held, as had been done on the previous day, because a canvass of two lockups failed to reveal another individual who bore a resemblance to the defendant, especially with respect to his beard.

The prosecutrix testified that on June 21, 1967, she appeared at the police station at the request of the police. She viewed a five man lineup, but no identification was made. There was one individual in that lineup who resembled the offender, but his beard and voice were different.

On the following day she again appeared at the station pursuant to request. At this time she was questioned as to how she could identify the offender and she affirmed that she could recognize him on sight and could also identify his voice. She was taken into a hallway where she overheard two men talking. She immediately identified the voice of one of these men as that of her attacker. She then viewed the men to whom she had been listening and recognized one of them as the offender.

The evidence presented by the State at trial may be summarized as follows. The prosecutrix left her apartment at approximately 10:10 P.M. on the evening of June 20, 1967, and began walking toward her car which was parked near the corner. As she passed over a grassy area, she fell due to a depression in the ground and also possibly due to the fact that she sometimes experienced difficulty in walking as she suffered from cerebral palsy. Immediately after she fell, she noticed a man passing by on a motorcycle who seemed to be looking at her.

After she had risen and walked to her car, she started the motor and put on her glasses. She then noticed that a man had parked a motorcycle in front of her apartment building and was approaching her rapidly on foot. At first she thought that the man might be a neighbor who had seen her fall and was concerned about her welfare. As the man drew nearer, however, it became apparent to her that he was a stranger. He called to her and, upon reaching the car, leaned toward her through the open window and told her that her license plate was hanging down. He then opened the door and slid part way into the car beside her, placing a hard object behind her neck and stating, “This is a knife. Don’t give me any trouble.” She depressed the car horn in the hope of summoning aid, but no one responded.

He placed his foot on hers, which was on the accelerator pedal and ordered her to lie down on the seat and remove her glasses as she had seen enough already. She complied with both orders, placing her glasses on the dashboard. By this time, however, she had had a good opportunity to view him, especially when he had leaned in through the open window, as the car was parked near the comer and the street light was burning. He was tall, approximately five feet nine inches, and thin but muscular. He had a reddish-brown goatee and was wearing a black jacket, light colored tight fitting pants, and shiny black shoes or boots without laces. He kept the hard object at her neck while she was lying on the seat.

He drove away at a high rate of speed and asked her how to get to an expressway and later how to get to Winnetka Road. She told him that she did not know the way to the expressway, but he nevertheless reached it very shortly, apparently himself knowing the route.

Once on the expressway he ordered her to sit up as if she were his girl friend, but to face away from him. Later, he again ordered her to lie down. He stated that he had gotten out of prison three days earlier and was on his way to his home in Wisconsin.

As she lay on the seat she was able to see out the window on the passenger side of the auto and noticed the sign for the Winnetka Road exit. He passed the exit and she remained silent. Thereafter, however, he said, “That is it back there,” and exited the expressway. After leaving the expressway, he kept driving back and forth on the road, stating that he was looking for a large tree but that everything looked different to him. He also stated that he was searching for the spot where he had concealed a package before entering prison. Later he stated that the package contained money which he needed in order to return to his home in Wisconsin.

Ultimately he turned down a side road and, after driving a short distance, stopped the car and turned off the lights. She could see trees and bushes in the area although the light was poor. He used a scarf which had been on the seat to tie her hands behind her back, again telling her not to look at him. He then rearranged her clothing by pulling her sweater over her eyes, pushing her skirt up and removing her pants. He experienced some difficulty in attempting to sexually assault her and then pulled her into the back seat where he forced her to engage in an act of intercourse. While they were in the back seat, her sweater slipped down from over her eyes and she again was able to view him. Prior to and during the actual attack she was screaming and imploring him not to so engage her.

Following the act of intercourse he got out of the car and dressed, ordering her back into the front seat. He then dashed away from the car momentarily. When he returned he placed something on the dashboard.

The car had become mired in mud and his attempts to free it proved unsuccessful. He then left, saying that he was going to get someone to tow it and that he would be back in 15 minutes. He again cautioned her not to look at him. After he left she sat quietly in the car for approximately 15 minutes, fearful that he may be watching her. Then she looked around and saw what appeared to be cars traveling at high rates of speed to her left and behind her. She also attempted to free the car from the mud and when her efforts proved unsuccessful she set out on foot and was soon aided by a passing motorist and his wife to whom she related her experience. The couple transported her to her boy friend’s home where she related the happenings of the evening to him.

Her boy friend accompanied her to the police station where the crime was reported and he also went along while she successfully traced the route which the offender had taken, finding her car where it had been abandoned in the mud. Thereafter she was taken to Lutheran General Hospital for a physical examination. While with the police she described her assailant as five feet nine inches in height with a reddish-brown beard, shaggy hair, and wearing a dark jacket and tight tan pants. She also told the police about his motorcycle in front of her apartment building and that she could recognize him on sight and could also identify him by his voice. In court she identified the defendant as the offender.

The State also presented the testimony of the boy friend of the prosecutrix who corroborated her testimony starting with her notifying him of her experience. He further testified that while she was being examined at Lutheran General Hospital he accompanied the police to the area of her apartment building where a search was conducted for the motorcycle to which she had referred.

Vernon Ernest, a neighbor of the prosecutrix, testified that at approximately 10:05 P.M. on the evening in question his curiosity was aroused when he heard a loud motorcycle for the second time within a few minutes. He looked out his window and saw a man, whom he described as approximately five feet ten inches in height and weighing 150 to 160 pounds with bushy hair, park a motorcycle in front of a building and run down the street toward the corner and out of sight. He went outside and, as he walked toward the corner, observed the prosecutrix’ car being driven away by a male at a high rate of speed. He had never seen a male drive her car before.

Thinking that the car was being stolen by the man who had alighted from the motorcycle, he made note of that vehicle’s license plate number and proceeded to the prosecutrix’ apartment, but she did not appear to be at home. He made no report to the police at this time, but two days later when the police called at his apartment he advised them of what he had seen and supplied them with the license number which he had taken from the motorcycle. Finally he testified that he had last seen the vehicle at approximately midnight on the day in question, that it was gone the following morning.

C. Richard Miller, the physician who examined the prosecutrix, testified that his examination of her revealed unclotted blood in the vicinity of the right side of the hymenal ring, which was lacerated, and also a moderate amount of discharge which contained living human spermatozoa. On the basis of his findings it was his opinion that the prosecutrix had experienced sexual intercourse within 24 horns preceding the examination.

The defendant’s first contention, that he was denied his right to counsel at the police station confrontation, must be rejected under the authority of People v. Palmer (1969), 41 Ill.2d 571. There the Supreme Court determined that the right of an accused to assistance of counsel as outlined by the United States Supreme Court in the cases of United States v. Wade (1967), 388 U.S. 218 and Gilbert v. California (1967), 388 U.S. 263 does not extend to a pre-indictment confrontation. The case of Coleman v. Alabama (1970), 399 U.S. 1, relied upon by the defendant to avoid the effect of the Palmer decision, is of no aid to him. There it was held that the preliminary hearing procedures adopted by the State of Alabama constituted a critical stage of the proceedings against an accused and therefore the right to counsel attached at that point. In Palmer, supra, however, our Supreme Court has, in effect, determined that a pre-indictment identification procedure cannot be similarly characterized.

Our scrutiny of the record convinces us that we need not discuss in detail the question of whether the identification procedures employed in the instant case were unnecessarily suggestive, for the record itself contains substantial evidence to support the conclusion that the in court identification of the defendant by the prosecutrix was of an origin independent of the showup of which defendant complains. (See United States v. Wade (1967), 388 U.S. 218.) Specifically we note the testimony of the prosecutrix with respect to her opportunity to view the offender under favorable conditions prior to her actual abduction and again, under less favorable conditions, during the course of the criminal assault. Further, the prosecutrix testified that she could identify the defendant as her assailant even if she had not viewed him at the police station.

The defendant’s final contention, that the totality of the evidence discredits the accuracy of the identification testimony and is insufficient to satisfy the prosecutions burden of proof, must also be rejected. The minor discrepancy which he points out with respect to her description of height of the assailant given to the police on the night of the crime as opposed to her testimony at trial is rendered even less serious by the testimony of the officer to whom the description was given. He testified that when she described the offender as five feet seven inches tall this figure was given as an approximation rather than an absolute. Moreover, defendant’s attempt to add significance to the discrepancy through the assertion that he is six feet one inch tall is emasculated by People’s Exhibit Two, a photograph which clearly establishes his height at less than six feet. Neither do we feel that her failure to include in her description of the offender the fact that he was missing a front tooth, as was defendant, fatal either to the otherwise positive nature of her identification or her credibility.

The evidence presented by the State, standing alone was sufficient to establish his guilt beyond a reasonable doubt. Thus his presentation of an alibi defense, corroborated by his employer, caused the determination of guilt or innocence to be governed primarily by the trial court’s determination of the credibility of the witnesses. On the basis of the record before us we cannot say that the resolution of that issue adversely to the defendant is so unreasonable as to require reversal.

Judgment affirmed.

BURKE, P. J., and GOLDBERG, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE SCHWARTZ

license: Public Domain

text:
    Jan Prochotsky, Plaintiff-Appellant, v. The Union Central Life Insurance Company, Defendant-Appellee.
    (No. 53857;
    First District
    — November 2, 1971.

      Synek, Bishart & Solomon, of Chicago, (Henry T. Synek, of counsel,) for appellant.
    Peterson, Lowry, Rail, Barber & Ross, of Chicago, (Richard V. Henry, Jr., and Michael M. Lane, of counsel,) for appellee.
   Mr. JUSTICE SCHWARTZ

delivered the opinion of the court:

This is a suit in equity in which plaintiff seeks to recover commissions alleged to be due in connection with an insurance policy issued on the life of one Abraham Cooper which plaintiff avers that he as agent procured for the defendant. The court held that the suit was barred by a prior judgment rendered in a suit at law between the same parties. Plaintiff on appeal contends that the issues presently raised were not disposed of in the earlier proceeding and hence the doctrine of res judicata is not applicable.

With respect to the first suit which was filed on May 17, 1967, plaintiff alleged that he had procured a life insurance policy in the sum of $100,000 on the life of Cooper, that the policy was written with the name Joseph R. Stercl as the agent of record and that plaintiff had an oral contract with the defendant by the terms of which he was entitled to all commissions, including renewal commissions, on policies procured by him. The plaintiff further alleged that Stercl had in writing assigned to him any right that he (Stercl) had to the commission on the Cooper policy and that the assignment was duly delivered to defendant. Plaintiff sought a judgment holding defendant hable for the unpaid commission earned and the renewal commissions to become due on the Cooper policy. A motion by defendant for summary judgment was granted by the court on October 15, 1968, “all issues being found in favor of the defendant.” Plaintiff then presented to the trial court a motion for leave to file an amended complaint in chancery. The trial court denied the motion.

With respect to the suit now before us, on the same day that defendant’s motion for summary judgment was allowed in the first suit and plaintiff’s action at law was dismissed, plaintiff filed this suit in chancery in which he seeks an accounting, injunctive relief and the declaration of a constructive trust on the assets of defendant. He alleges that there was an oral contract between defendant and himself under which the defendant promised to honor all assignments of commissions presented by him where he had solicited and investigated the assured and where, at defendant’s request, the insurance contract was written in the name of another agent. Defendant moved to dismiss on the ground of res judicata, which motion was granted by the trial court on December 20, 1968. The sole issue presented on appeal is whether the trial court in the first suit erred in sustaining the defense of res judicata.

Plaintiff argues that the action at law was based on an alleged breach of a practice in the insurance business while the suit in chancery was based on defendant’s alleged breach of an oral agreement and hence the doctrine of res judicata is not applicable. The issue involved both in the law suit and in the chancery action was plaintiff’s right to recover commissions due on the policy in question. The oral agreement alleged in chancery could have been alleged in the action at law. The issues are identical in substance.

The law requires that both in law and in equity a plaintiff must present all grounds of recovery he may have. He cannot preserve the right to bring a second action after loss of the first merely by limiting the theories of recovery opened by the pleadings in the first action. (F. L. Mendez & Co. v. General Motors Corp. (1947), 161 F.2d 695; Ernest Freeman & Co. v. Robert G. Regan Co., 332 Ill.App. 637, 76 N.E.2d 514; Setliff v. Reinbold, 73 Ill.App.2d 208, 218 N.E.2d 814; Pratt v. Baker, 79 Ill.App.2d 479, 223 N.E.2d 865; Phelps v. City of Chicago, 331 Ill. 80, 85, 162 N.E. 119, 122.) In Phelps, supra, the court said (p.85):

“The rule of res judicata embraces not only what actually was determined in the former case between the same parties or their privies, but it extends to any other matters properly involved which might have been raised and determined.”

In Freeman, supra, the court explicitly clarified the doctrine set down in Phelps and held that where a demand or right of action is in its nature entire and indivisible, it cannot be split up into several causes of action and sued piecemeal or made the basis of many separate suits. The court said (p. 615):

“A judgment on the merits as to one part will bar a subsequent action for the whole, the residue, or another part. It is immaterial that the form of the second action is different from the first. [Wjhether or not a judgment is a bar to a subsequent action under the rule against splitting causes of action depends on whether the entire amount claimed to be due plaintiff arises out of one and the same act or contract, or whether the several parts arise from distinct acts or contracts.”

Plaintiff argues that the action at law in the instant case was based on an insurance industry practice and hence the proof would be restricted to evidence of custom and usage, whereas the chancery action was based on an oral agreement and the proof would necessarily be entirely different from that required to sustain an action at law. Plaintiff could have presented both theories in his first action. Merely alleging that one action is based on an oral contract while the other is based on an industry practice is not sufficient to show a distinct cause of action.

Plaintiff relies on Cromwell v. County of Sac, 94 U.S. 351, but in that case the court said (pp. 352-53) that there was a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. The court said:

“In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” (Emphasis added.)

It is clear that the suit before us is based on the same claim as that sued on in the first, action. The judgment is accordingly affirmed.

Judgment affirmed.

LEIGHTON, P. J., and STAMOS, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Nilsida Morales, Defendant-Appellant.
    (No. 55202;
    First District
    — November 2, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (James N. Oramenos, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Nicholas Taubert, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE SCHWARTZ

delivered the opinion of the court:

Defendant appeals from an order revoking probation. The order was based on a finding by the court that defendant had violated a condition of probation imposed in a prior case which prohibited her from possessing firearms.

Defendant was charged with the shooting of her husband on April 27, 1969. On motion of the State the charge of murder was changed to manslaughter. The court accepted a plea of guilty and sentenced defendant to five years probation, the first six months thereof to be served in the County Jail. The court at that time cautioned defendant regarding the use or possession of firearms and stated explicitly that she was not to possess or use any. On February 6, 1970 the defendant was involved in another shooting which resulted in the death of one Gould. She was again charged with shooting which resulted in death. At a preliminary hearing on February 18, 1970 she was discharged, the court holding that no probable cause had been shown. On the day prior to the hearing, the Probation Department obtained a warrant for defendant’s arrest for violation of the conditions of probation imposed in the first case. Defendant was notified that a hearing would be held on February 25, 1970, on the rule to show cause why probation should not be terminated on the ground that she had been involved in a shooting. At the hearing the court heard evidence which established that defendant had violated the condition of probation prohibiting her from using or possessing firearms. The probation was revoked and defendant was sentenced to the original five year term at Dwight Penitentiary.

With respect to the second shooting, it appears that on February 6, 1970 at 3:30 A.M. the police were summoned to investigate a shooting at the Envoy Motel in Oak Lawn. The victim, who had been shot from behind, was lying face down. Only the defendant and the victim were present at the time of the shooting. Defendant testified that the victim was showing her how to use the gun when she shot him. These facts were contained in a probation memorandum that was admitted into evidence without objection at the hearing.

Defendant’s contention is that the State did not fulfill its burden of proof by showing by a preponderance of the evidence that a violation of probation had occurred. This contention was not raised at the hearing. Both the defendant and her court appointed attorney were present at that hearing and it was the defense attorney who tendered the probation memorandum to the court. Further the record shows no objection at the hearing to any of the facts presented by the State’s Attorney or to the quantum of evidence used to sustain the burden of proof.

The actual procedure for revoking probation contemplates three requirements. The procedure must establish that the defendant has been given notice and a copy of the charge, that he has had an opportunity to be heard and that a conscientious judicial determination has been made in accord with procedural methods which include the right to counsel and a reasonable time to prepare a defense. People v. Walker, 122 Ill.App.2d 461, 259 N.E.2d 304.

In the case now before us the defendant has admitted handling the gun and defense counsel has admitted that the defendant had possession of the gun. Defendant claims that she was merely showing the gun to a prospective purchaser. According to the probation report tendered to the court by defendant, the victim was shot from behind and only he and the defendant were present in the room.

Defendant had been placed on probation in connection with the killing of one man with a gun. In spite of the fact that she was specifically cautioned regarding the use or possession of firearms, she undertook a commercial interest in the sale of a firearm. An absolute condition of any probation is that the probationer not violate any penal statute or ordinance of any jurisdiction. The possession of a firearm within five years of conviction of a felony constitutes such a violation. (Ill. Rev. Stat. 1969, ch. 38, par. 24 — 3.1.) The evidence clearly established the violation of probation and the order is accordingly affirmed.

Judgment affirmed.

LEIGHTON, P. J., and STAMOS, J., concur.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    Wayne Makel, et al., Plaintiffs-Appellees, v. Zoning Board of Appeals of The City of Park Ridge, et al., Defendants-Appellants.
    (No. 53462;
    First District
    — November 3, 1971.

      Albert A. Klest, of Park Ridge, for appellants.
    Nisen, Elliott, Meier & Bowles, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The plaintiffs, Wayne Makel and John Waters, applied for a building permit to obtain leave of the City of Park Ridge to construct a residence. The City declined to issue the permit. The plaintiffs then petitioned the Zoning Board of Appeals of the City of Park Ridge, seeking permission to construct a residence with sideyards of ZVz feet rather than the required 4 feet. The plaintiffs’ petition was denied. The plaintiffs filed a complaint in the circuit court of Cook County seeking administrative review of the Board’s ruling. The court set aside the decision of the Board and entered judgment granting the variance to the plaintiffs.

On appeal, the Zoning Board of Appeals of the City of Park Ridge contends that the court erred in reversing the Board’s denial of a variation to the setback requirements because the petitioners failed to establish by clear and convincing evidence that they satisfied the three statutory prerequisites to the granting of such a variation. The facts are as follows:

The property in question is a vacant lot located on the northeast comer of Talcott Street and Grove Avenue in Park Ridge, Illinois. It occupies approximately 25 feet on Talcott Street, a northwest and southeast street and 125.5 feet on Grove Avenue which runs northeast and southwest. The lot is bordered by a 14 foot wide alley on the north and a house on the east. The subject property is located within a single family residence district which is classified under the Park Ridge Zoning Ordinance as “A” residential. The application of the Park Ridge Zoning Ordinance results in restricting the width of a building bufit on the lot in question to 17 feet since 4 feet sideguards are required on each side of the proposed building.

At the Board of Zoning Appeals hearing, John Waters testified that a 17 foot wide bufiding is undesirable, extremely difficult to seH and unsightly. He also testified that there were several buildings in Park Ridge which were 19 feet in width on 25 feet lots. Mr. Waters stated that the bmlding could be constructed closer to the sidewalk by aHowing a one foot setback from the sidewalk and maintaining a four foot setback on the side of the lot next to the adjoining property owner. The adjoining residence is currently over five feet from the property line so that there would be a total space of 9 feet between the two houses. Mr. Waters mentioned that the existing sidewalk was approximately 2 feet from the property line so that the actual setback from the sidewalk would be 3 feet. The lot was offered to the adjoining property owner, but he declined to purchase it.

The fact that there is no testimony or other evidence opposing or rebutting the plaintiffs evidence does not, in itself, authorize reversal of the decision of the Zoning Board. The plaintiffs must satisfy the proof required under the ordinance and the statute. River Forest Bank & Trust Co. v. Zoning Board, 34 Ill.App.2d 412.

The Illinois Statute imposes three conditions which must be met by an applicant (in municipalities where authority to decide and approve variations is vested in a Board of Appeals) as it is in the Zoning Board of Appeals of the City of Park Ridge. The Statute says:

“Variations shaU be permitted by the board of appeals only when they are in harmony with the general purpose and intent of the regulations and only in cases where there are practical difficulties or particular hardship in the way of carrying out the strict letter of any of those regulations relating to the use, construction, or alteration of buildings or structures or the use of land. In its consideration of the standards of practical difficulties or particular hardship, the board of appeals shaU require evidence that (1) the property in question cannot yield a reasonable return if permitted to be used only under the conditions allowed by the regulations in that zone; and (2) the plight of the owner is due to -unique circumstances; and (3) the variation, if granted, will not alter the essential character of the locality. A variation shall be permitted only if the evidence, in the judgment of the board of appeals, sustains each of the three conditions enumerated.” Ill. Rev. Stat. 1967, 1967, ch. 24, par. 11 — 13—4.

The Zoning Ordinance of the City of Park Ridge is patterned exactly after the above cited Illinois Statute so far as the granting of variances is concerned.

As to the first statutory requirement, a fair inference could be drawn from the testimony at the hearing that the property could not yield a reasonable return as presently zoned. The lot had been vacant for decades and was the only vacant lot in the area. A 17 foot wide building would be much too narrow to be economically feasible. There is no market for such an unsightly and useless residence.

As to the second requirement the proof was adequate that the plight of the plaintiffs was due to unique circumstances. There was a difficulty of a dimensional nature since the lot was only 25 feet wide. At the hearing, John Waters testified that there were other 25 foot wide lots in Park Ridge upon which 19 foot wide residences were built. The lot in question was the only vacant lot in the area and would in all likelihood remain vacant unless the variance is granted. Not even the adjacent property owner wants to purchase the vacant lot. The vacant lot is practically valueless as presently zoned.

As to the third requirement, the plaintiffs clearly showed that the variation, if granted, would not alter the essential character of the locality. The plaintiffs want to construct a residence in a residential neighborhood. The lot in question is a comer lot and the plaintiffs have shown that their residence would not encroach on the adjoining property owner’s residence. The adjoining property owner did not appear at the Zoning Board of Appeals hearing.

The plaintiffs produced substantial positive evidence of facts which justified the trial court in finding that the plaintiffs had met the statutory tests and that the Zoning Board of Appeals had abused its discretion. The variance should be granted for the reason that the refusal to do so has the effect of depreciating the value of the plaintiffs’ property' without any corresponding benefit to the public in general. The refusal of the Board to grant the variance imposed a considerable hardship on the plaintiffs, while the record is void of any evidence tending to show that tlie granting of the variance would impose any hardship on the public in general.

© 8 A consideration of all of the facts and circumstances in this case impels the conclusion that the finding of the Zoning Board of Appeals and its order refusing the variance is not supported by the evidence and that the trial court was correct in setting aside the decision of said Board.

For the reasons given, the judgment of the circuit court of Cook County is hereby affirmed.

Judgment affirmed.

BURMAN and DIERINGER, JJ., concur.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jamie Sosa, a/k/a Eugene E. Riley, Defendant-Appellant.
    (No. 54672;
    First District
    — November 3, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Herbert Becker, Ronald P. Katz, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Martin Moltz, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Cook County. After a bench trial, the defendant was found guilty of burglary and was sentenced to a term of not less than five nor more than twenty years in the Illinois State Penitentiary.

Jamie Sosa, the defendant, was indicted on September 18, 1968, and charged with burglary, attempted theft, and aggravated battery. On the night of August 6, 1968, at about 1:30 A.M., Mrs. Alexander Dunn, Jr., heard a noise in the garage and awakened her husband, who noticed the taillights of his car were on. He testified that both garage doors had been locked the night before. Dunn went to the garage and found the defendant, Sosa, sitting behind the wheel of his 1968 automobile. Upon being discovered, Sosa got out of the car and started swinging at Dunn with a knife. Dunn’s eighteen year old son came out of the house, subdued Sosa, and held him until the police arrived. The policeman testified when he arrived he found the Dunns were holding Sosa, the garage overhead door was open, and the ignition wires of the car were cut under the dashboard.

Sosa testified he drank a pint of gin and a couple of beers before he left his house, and then went to several taverns for a few more drinks. He stated that on his way home Alexander Dunn and his son attempted to rob him and then beat him.

The defendant’s first assertion of error is that his intent to steal the car was not proved beyond a reasonable doubt. He cites People v. Glickman, 377 Ill. 360, and People v. Soznowski, 22 Ill.2d 540. In Glickman, the court stated:

“The gravamen of the crime of burglary is the felonious intent of the defendant at the time he enters. People v. Myler, 374 Ill. 72, 73.”

In Soznowski, the court stated:

“The gravamen of the offense of burglary is the intent with which the building is entered. [Citations.] Not only must the entry be charged and proved, but also the intent to commit a felony or larceny. People v. Mendelsohn, 264 Ill. 453, 457. Although intent is a matter of fact and cannot be implied as a matter of law, criminal intent may be shown by circumstantial evidence. People v. Weiss, 367 Ill. 580, 586; People v. Martishuis, 361 Ill. 178.”

This court agrees the authorities cited state the law, however they do not help the defendant. We think the circumstantial evidence strongly indicates it was the intention of the defendant to steal the car when he entered the garage. On the stand the defendant claimed he was near the garage as a result of struggling with the Dunns after he was accosted on the street.

In his brief defendant attempts to rely on a conversation with Dunn. Dunn testified that while they were waiting for the police the defendant told him he went into the garage to take a nap. On the stand the defendant testified he had no conversation with Dunn. Nevertheless, if the defendant really entered the car to take a nap, it is inconsistent that he would cut the ignition wires and sit behind the wheel rather than stretching out on one of the seats. It is also significant that the trial judge was unimpressed with the defendant’s credibility:

“Your story that you told in this court is one of the most incredible stories that I’ve heard — totally incapable of belief. This court does not believe it completely, has no reason whatsoever to doubt, for one moment, or one iota the testimony given here by three witnesses on behalf of the State of Illinois.”

Sosa also points out the ignition wires were cut and infers that if he were intending to seal the car, he would not have immobilized it. It seems obvious he was attempting to jump the ignition and start the car rather than immobilizing it. He also says in his brief the garage door was down and locked, making it impossible for the car to leave the garage. On the contrary, both Dunn and the police officer stated the overhead door was raised.

The defendant next contends he was so intoxicated he could not form the requisite intent for burglary and suggests the record shows ample evidence of intoxication. But there is no evidence outside of his own testimony, which the judge deemed to be unworthy of belief. In addition, he could not name one tavern he had been to when cross-examined, and Alexander Dunn stated he could not smell alcohol on the defendant’s breath, even though he was close enough to have detected it.

Finally, the defendant complains the sentence was too severe. Section 19-l(b) of the Code of Criminal Procedure provides for a sentence of imprisonment in the penitentiary for any indeterminate term within a minimum of not less than one year. The sentence in this case, five to twenty years, conformed to the statute and was imposed after a hearing in mitigation and aggravation establishing that the defendant had been convicted of attempting to commit a lewd act, tampering with an automobile, larceny of an automobile, and burglary. In view of this record it cannot be said the sentence constituted a “great departure from the fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the proscription of Section 11 of Article II of the Illinois Constitution which requires that all penalties shall be proportioned to the nature of the offense.” (People v. Smith, 14 Ill.2d 95.) In People v. Taylor, 33 Ill.2d 417, the court quoted the above language and then stated:

“We believe that under the now applicable statute granting reviewing courts the power to reduce sentences imposed by trial courts where circumstances warrant (Ill. Rev. Stat. 1963, chap. 38, par. 121 — 9(b),) such authority should be applied with considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to. make a sound determination concerning the punishment to be imposed than do the appellate tribunals.”

After applying the above standards to the case at bar, we conclude the sentence imposed was not unreasonable.

For these reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

ADESKO, P. J., and BURMAN, J„ concur.


author: Mr. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry A. Brown, Defendant-Appellant.
    (No. 55031;
    First District
    — November 3, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (John E. Hughes, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. NoveHe, and James N. Karahalios, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

This is an appeal from a judgment revoking the probation of the defendant, Henry A. Brown, and sentencing him to serve not less than five nor more than eight years in the Illinois State Penitentiary for commission of the offense of burglary.

The defendant contends, on appeal, (1) that the sentence imposed was excessive and (2) that the court failed to conduct a proper hearing in aggravation and mitigation.

The events leading up to the revocation of probation and the imposition of sentence are undisputed, and we shaH set them forth in chronological order. The defendant was charged in an indictment filed on October 16, 1968, with the offense of burglary in that on May 8, 1968, he aHegedly entered a restaurant owned by Louis and John Djikas with intent to commit theft. After arraignment the defendant made a request for a pre-trial investigation which was granted. When the cause was called for trial on January 24, 1969, the defendant changed his plea from not guilty to guilty, and was placed on probation for a period of five years.

On December 15, 1969, a warrant was issued for defendant’s arrest for violating probation, and a hearing on the issues of the probation violation was held on February 3, 1970. At the hearing, it was stipulated that on December 18, 1969, the defendant was found guilty of a robbery committed on May 23,1969, (four months after the defendant was placed on probation) and sentenced to serve one to five years in the penitentiary. After the stipulation was entered, the State rested, and the court asked the defendant and his attorney, “Anything in mitigation?” and the defense counsel responded, “Nothing further, your Honor.” The court then, terminated probation and sentenced the defendant to serve five to eight years in the penitentiary for burglary.

It is principally contended that the sentence imposed was excessive and unwarranted by the record. In support of this contention it is initially argued that “the trial court imposed this severe sentence in that it would not prejudice the defendant as he would be in prison at the same time for a robbery sentence of one to five years.” We have examined the proceedings in the Circuit Court and find nothing either in the statements of the court or in any other part of the record to substantiate this assertion which is based solely upon conjecture and speculation.

It is next argued that the sentence was not commensurate with the original crime of burglary and that “Since the defendant in our case was granted probation, the court felt this was adequate punishment for the crime of burglary, the court then should have imposed a minimum sentence or close to the statutory minimum and not the severe five to eight years sentence that was given.” Once it is proved that a condition of probation has been violated, the court in the exercise of its discretion may alter the conditions of probation or imprison the probationer within the statutory limits of the offense for which the probationer was convicted. (See section 117 — 3(d) of the Code of Criminal Procedure of 1963, Ill. Rev. Stat. 1967, ch. 38, par. 117 — 3 (d).) In the present case, the defendant plead guilty to burglary, and under section 19 — 1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, par. 19 — 1(b) ) the court could sentence the defendant to serve any indeterminate term with a minimum of not less than one year.

The pre-trial investigation prepared on the defendant’s request shows that the defendant was convicted on four occasions prior to the entry of his guilty plea on January 24, 1969; twice for assault with a deadly weapon, once for petit larceny, and once for drunken driving. The defendant was given an opportunity for rehabilitation and placed on probation in spite of this prior criminal record. However, once it was proved that the defendant violated probation by the commission of a criminal offense, the court, in imposing sentence properly took into account the defendant’s past criminal record and gave a sentence in excess of the minimum permitted by statute. The sentence imposed was within the limits set by statute, and in view of the criminal record of the defendant was not excessive. See: People v. Brower, 124 Ill.App.2d 356, 260 N.E.2d 463, (10 to 20 year sentence for burglary after revocation of probation). People v. Thomas, 121 Ill.App.2d 422, 257 N.E.2d 480 ( 6 to 8 year sentence for burglary after revocation of probation), and People v. Land, 112 Ill.App.2d 345, 251 N.E.2d 92, (4 to 7 year sentence for burglary after revocation of probation).

The defendant cites and relies upon People v. Livingston, 117 Ill.App.2d 189, 254 N.E.2d 64. In that case Merle Livingston, when 18 years old, plead guilty to a charge of burglary which involved an entry to a gasoline station and a theft of $2.40 worth of oil. He was placed on probation for three years, and within the probationary period he was convicted of the misdemeanors of criminal damage to property and criminal trespass to a motor vehicle. Livingston’s probation was revoked after a hearing, and the court in imposing sentence stated “I am sentencing this man to five to ten years for violation of my probation.” The AppeUate Court on review reduced the sentence for burglary from five to ten years to two to five years after considering the nature of the burglary offense and noting that the imposition of sentence for the violations of probation would constitute multiple punishment for the subsequent misdemeanors. The defendant herein, in contrast to Livingston had an extensive criminal record, and the sentence imposed was not excessive in view of that record.

It was finaHy argued that a sentence of five to eight years disregards the principles of rehabilitation. It is pointed out that the purpose of modem day penology is to rehabilitate and restore the offender to a useful place in society while at the same time protecting the public, People v. Donovan, 376 Ill. 602, 35 N.E.2d 54), and that rehabilitation is best achieved under a system giving great discretion to parole authorities, (People v. Brown, 60 Ill.App.2d 447, 208 N.E.2d 629). An indeterminate sentence was imposed as required by section 1 — 7(e) of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, par. 1 — 7(e) ), and under the facts and circumstances of this case it was well within the court’s discretion.

The defendant contends that the court failed to conduct a proper hearing in aggravation and mitigation and argues that “The information available to the court in aggravation and mitigation for the probation violation was insufficient to permit the trial court to render an appropriate sentence.” Prior to the entry of the defendant’s guilty plea on the burglary charge on January 24, 1969, a pre-trial investigation was filed which contained information concerning the defendant’s family, schooling, military experience, work history, social conditions, and criminal record. After the State rested the case at the hearing on the probation violation, the court asked the defendant and his counsel whether there was any matter to be presented in mitigation, and the defense counsel answered that there was nothing further. The failure to present evidence in mitigation after an opportunity to present such information was given constitutes a waiver of any right to a hearing in aggravation and mitigation. (See People v. Riso, 129 Ill.App.2d 356, 264 N.E.2d 236, and People v. Hicks, 125 Ill.App.2d 48, 259 N.E.2d 846.) In Riso the court without deciding whether a defendant is entitled to a hearing in aggravation and mitigation after the revocation of probation, held that the failure of the defendant, who was respresented by counsel, to request a hearing in aggravation and mitigation constituted a waiver to any right to such a hearing. In Hicks the trial court after revoking the defendant’s probation asked whether there was any evidence in mitigation, and defense counsel responded, “I don’t at this time, Your Honor, care to offer anything further.” It was held that the failure to bring information in mitigation before the court when given an opportunity to present such evidence constituted a waiver of a right to a hearing in aggravation and mitigation.

For the reasons set forth above the judgment of the circuit court is affirmed.

Judgment affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lawrence Philip Carpenter, Defendant-Appellant.
    (No. 55285;
    First District
    — November 3, 1971.

      Gerald W. Getty, Pubhc Defender, of Chicago, (Fred Shandling, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Lawrence Brodsky, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from judgments entered in the circuit court of Cook County. The defendant was indicted in 1965 on four indictments, all charging him with armed robbery. After originally pleading not guilty, he entered pleas of guilty to each indictment and was sentenced to serve a term of imprisonment of three to ten years concurrently on each indictment. Subsequently, he obtained new trials on each indictment by post-conviction relief.

He was re-tried on the four indictments in two separate trials. On indictment 65-506 he was found guilty and sentenced to a term of seven to twelve years. At a second trial he pleaded guilty to the remaining three indictments and received sentences of seven to twelve years to run concurrently with each other and with the sentence in indictment 65-506.

Carpenter has already appealed the second conviction of indictment 65-506, and now in the case before us he appeals from the judgments entered in the other three indictments. He contends first that he was not adequately admonished as to the maximum penalties he could receive on his guilty pleas because the trial judge did not inform him that the sentences could be imposed consecutively. He was sentenced to concurrent terms, not consecutive, therefore there is no merit in this contention, and we shall not discuss it further.

Secondly, he contends the concurrent sentences of seven to twelve years is a violation of due process since he had previously pleaded guilty to the same indictments and received sentences of only three to ten years, and the record does not indicate any conduct subsequent to the first sentences to justify the increased punishment. In reviewing the conviction of indictment 65-506 (People v. Carpenter, Case No. 53687, decided December 14, 1970), this court considered the same argument and held the defendant was denied due process when his sentence was increased. This court said:

“The Supreme Court held [in Pearce v. North Carolina, 395 U.S. 711] that the second sentence cannot be more severe than the first unless the reasons therefor affirmatively appear of record and unless those reasons are based on ‘identifiable conduct’ of the defendant occurring after the time of the original sentencing, and secondly, that the time actually served on the first sentence must be credited to the sentence imposed upon the retrial. The Supreme Court further pointed out that vindictiveness against a defendant for having successfully attacked his prior conviction must play no part in the sentence he receives after the new trial.”

The court then determined that the standards of Pearce had not been met, and that the sentence should be reduced to the original term of three to ten years.

In the case before us there was no “identifiable conduct” upon which to base the increased sentence as the record shows:

“THE COURT: There will be a finding, and judgment will be entered on the finding in each indictment in manner and form as charged in the indictment.

Are there any matters in aggravation?

MR. ONESTO: Yes, sir.

The defendant is presently incarcerated under Indictment No. 65-506 wherein he was found guilty in a trial by jury for the crimes of armed robbery and attempt — with the intent to commit murder. Eased upon this prior conviction, your Honor, and the remaining indictments, the State would recommend incarceration in the Illinois State Penitentiary for a term of not less than seven nor more than twelve years.

THE COURT: Are there any matters in mitigation, counsel?

* # *

THE COURT: I sentence the defendant to a term in the penitentiary on each indictment, a term of not less than seven nor more than twelve years, said indictments shall be concurrent with one another and concurrent with Indictment 65-506. The defendant shall receive credit for the time he spent awaiting trial and including any good time credits that he has earned in the Cook County Jail awaiting trial.”

The State cites the case of People v. Bernette (1970), 45 Ill.2d 227. In that case the defendant was sentenced to a term of imprisonment of 75 to 150 years, and on retrial was sentenced to death. The Supreme Court of Illinois held the defendant was not deprived of any constitutional rights, but it carefully followed the Pearce standards:

“The present case presents a clear situation where an increased sentence upon retrial does not violate defendant’s right to due process of law. There is nothing in this record to indicate that the court, in imposing the death penalty, was prompted by any sense of vindictiveness. On the contrary, the trial court merely acted upon the affirmative recommendation of the jury that the death penalty be imposed, a factor not present in the first trial. Also, important in this contest is that in the case at bar Tajra elected to testify in his own behalf, wherein at the first trial he did not do so. The jurors were therefore in an eminently better position to judge his credibility and complicity in the crime.”

In the instant case there are no allegations of affirmative conduct by the defendant which would support a more severe sentence. Neither are there reasons advanced to indicate the court was in a better position to judge the defendant. Consequently, this court must agree with the court in Case No. 53687 that the sentences should be reduced to the original sentences of three to ten years, to run concurrently with each other and with the sentence in indictment 65-506, Appellate Case No. 53687.

For these reasons the judgment of conviction is affirmed and the part of the judgment imposing the sentences is reversed and the cause is remanded with directions to reduce the sentences in accordance with these views.

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

ADESKO, P. J., and BURMAN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth E. Mosley, Defendant-Appellant.
    (No. 55451;
    First District
    — November 3, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (James N. Oramenos, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and William K. Hedrick, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of tire court:

The defendant appeals from a revocation of his probation and the imposition of a sentence of not less than one nor more than three years in the penitentiary.

On February 1, 1969, defendant entered a plea of guilty to auto theft and was placed on probation for a period of three years, the first year to be served in the County Jail. On September 11, 1969, he was released and on March 6, 1970, a rale was entered to show cause why defendant’s probation should not be revoked. At the hearing, the State presented a certified copy of defendant’s conviction of criminal trespass to a vehicle, dated January 16, 1970, wherein he was sentenced to serve one year in the House of Correction. A charge of auto theft had been nolled.

The defendant contends that the conviction for criminal trespass was improper in that he was not represented by counsel at the trial and that the court erred in using a constitutionally defective misdemeanor conviction as the basis for revoking his probation.

It is established that the defendant made no request for appointed counsel at the trial on the misdemeanor charge. In Illinois, our Supreme Court has held that where a defendant is charged with a misdemeanor and makes no request for counsel, there is no violation of his statutory or constitutional rights by failure of the record to recite that he was apprised of, and expressly waived his right to counsel. People v. Dupree, 42 Ill.2d 249, 256-7, 246 N.E.2d 281, 285, cert, denied, 396 U.S. 1047.

More important, is the fact that proof of conviction in the Municipal Department was not necessary to justify a revocation of defendant’s probation. To sustain a conviction for a criminal offense, guilt must be proven beyond a reasonable doubt. To revoke probation, on the other hand, guilt need merely be shown by a preponderance of evidence. (People v. Smith, 105 Ill.App.2d 14, 245 N.E.2d 13.) Consequently, a defendant need not be indicted, prosecuted or convicted of the offenses which are the basis for the revocation of his probation. People v. Sluder, 107 Ill.App.2d 177, 146 N.E.2d 35.

In the instant case, defendant was convicted of the misdemeanor of criminal trespass to a vehicle. The trial judge, in the case at bar, however, did not rely solely on proof of the Municipal Department conviction. Instead, he conducted a hearing, at which defendant was represented by counsel, on the offense allegedly committed by defendant while on probation.

It was stipulated that if Anderson Jones were called as a witness, he would testify that he owned a 1962 Buick automobile and that he did not give the defendant or anyone else permission to use it when he locked his car at 5:30 P.M. on December 31, 1969. It was further stipulated that if Officer David P. Hetman were called as a witness, he would testify that he stopped the subject 1962 Buick for a traffic violation on January 1, 1970, and that the defendant was the driver of the car. Upon checking the license number he found that it was a stolen car and he arrested the defendant.

Kenneth Mosley, the defendant, took the stand in his own behalf and testified that he was 23 and was living with his mother. He said that he was employed at the Republic Steel Mill, where he earned $312 every two weeks, and that he was working at the time the car was stolen. When arrested in the 1962 Buick, he had just come from a visit to his wife, from whom he was separated. He related that he met his brother-in-law, James Hall, and James Lawrence, one of Iris brother-in-law’s friends, at a tavern and that the latter offered to sell him the subject car for $75. He testified that he was in the process of considering whether to buy the automobile when he was arrested. He told the court that if he had known the car was stolen he would not have been in it. He said he didn’t know James Lawrence and did not know where he lived, and that he was unable to get his brother-in-law to come to court because he did not know where to find him. On cross-examination, defendant testified that he picked up the car in front of a lounge called the Wonder Bar, and that he wasn’t sure he was going to buy it and was going to return it to the place where he got it.

Not content with the certified copy of the Municipal Department conviction, the trial judge in fairness to the defendant conducted a full and fair hearing in which he gave the defendant a full opportunity to explain the events leading up to his arrest de novo and to persuade the court not to terminate his probation. The court concluded that the facts on which defendant was convicted of criminal trespass were nearly identical to those on which he was granted probation. The trial judge said, “I can’t envision getting into an automobile that he was going to buy for $75 without checking out the guy’s ownership and title and things of that sort. * * * You don’t buy a car from a stranger for $75, a fellow up before on a car theft charge. It doesn’t make sense and destroys all your credibility on the story that you tell. I can’t just envision you walking into a situation like that.”

The defendant received a fair hearing by the court before his probation was revoked. We find no error in the judgment of the circuit court and such judgment is therefore affirmed.

Judgment affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Irene Plazewski et al., Defendants-Appellants.
    (No. 55468;
    First District
    — November 3, 1971.

      Rehearing denied December 8, 1971.

      Harry Goiter, of Chicago, and William J. Scott, Attorney General, of Springfield, (Overton, Marks & Schwartz, of Chicago, and James B. Zagel, Assistant Attorney General, of Springfield, of counsel,) for appellant.
    Edward V. Hanrahan, States Attorney, of Chicago, (Robert A. Novelle, and James R. Kavanaugh, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendants, Marie and Irene Plazewski, were found guilty on charges of battery in a bench trial, and each was fined $100.

The defendants took direct appeals from the convictions to the Supreme Court, but these appeals were transferred to this court by order of the Supreme Corut. The defendants contend (1) that the filing of new charges eight months after their arrests deprived them (a) of their right to know and have a copy of the charges against them and (b) of their right to a speedy trial; (2) that the filing of unsigned and forged charges vitiates the entire proceedings; (3) that they were deprived of their right to a speedy trial by the failure of the City of Chicago to file a bill of particulars in the time ordered by the court; and (4) that they were not proved guilty beyond a reasonable doubt.

Due to the nature of the contentions raised, we first set forth the circumstances surrounding the defendants’ arrests and review the proceedings in the Circuit Court. On April 27,1968, a large number of individuals marched from Grant Park to the Civic Center as a part of peace-day activities. These demonstrators were permitted to hold a rally for a short time at the Civic Center Plaza, but when the crowd which numbered three to four thousand persons became so large that it was blocking vehicular and pedestrian traffic, the police ordered the demonstrators, who were chanting and yelhng, to disperse. After the dispersal order was given, the crowd broke through a rope barrier which encircled an area under repair on the plaza, and the police officer directing the dispersal was struck and injured. At this point, a number of the 150 uniformed police officers who were assigned to crowd control grouped into dispersal formations and started moving the rally participants off of the plaza. A great many arrests arose out of these incidents including those of Marie and Irene Plazewski.

Marie Plazewski was originally charged (1) with disorderly conduct in violation of section 193 — 1(d) of the Municipal Code of the City of Chicago; (2) with resisting arrest, and (3) with criminal damage to property. Irene Plazewski was originally charged (1) with disorderly conduct and (2) with resisting arrest.

The defendants appeared in court for the first time on May 1, 1968, and presented motions to dismiss all the pending charges. Hearings on these motions were continued to a later date. On May 29, 1968, the motions to dismiss the disorderly conduct charges were denied, but a motion was allowed requiring the City of Chicago to file a bill of particulars with respect to the disorderly conduct charges by June 17, 1968.

The matter was then continued on June 17, 1968, to September 9, 1968, and then again to October 29, 1968. At that time, the defendants moved to dismiss all charges for want of prosecution because the bill of. particulars had not been presented. The court denied the motion and granted another continuance until January 7, 1969.

After the cause was called on January 7, 1969, and after the defendants had answered ready, the State requested leave to file two additional complaints against each defendant and to have a nolle prosequi entered with respect to the resisting arrest and disorderly conduct charges. The Assistant State’s Attorney explained that the pending complaints had been hastily drawn up and signed in the aftermath of the disturbances at the Civic Center on April 27, 1968, by the police officers who transported the defendants from the Civic Center to the police station. He stated that his reason for seeking to file the new amended complaints in the present proceeding was to avoid having the defendants rearrested and resubmitted to bail. The court over the defendants’ objections permitted the filing of the new complaints which charged Marie Plazewski with a battery against Detective Patrick Clark and with resistance to an arrest made by him and which charged Irene Plazewski with battery against Officer John J. Napela and resistance to an arrest made by him.

The Assistant State’s Attorney recognized that the defense might have been taken by surprise by the new charges, and he suggested that leave be given to the defendants to file a request for a bill of particulars or other appropriate discovery. The cause was then continued by agreement to February 17, 1969. After preliminary motions were heard on February 17, 1969, the cause proceeded to trial before the court on February 19, 1969. The defendants were found guilty on the battery charges.

The defendants initiaHy contend (1) that when they were brought before a magistrate on May 1, 1968, they did not receive copies of the charges against them as required by Section 109 — 1 of the Code of Criminal Procedure of 1963 (IH.Rev.Stat. 1967, ch. 38, par. 109 — 1), (2) that they were deprived of a right to a speedy trial because the City of Chicago failed to file a biH of particulars with respect to the disorderly conduct charges within a reasonable time, and (3) that the court did not have jurisdiction over them because the original complaints were false, fraudulent, unsigned, or forged.

The battery charges filed on January 7, 1969, of which the defendants were convicted, were based on acts separate and distinct from the aUeged acts on which the earlier charges were based. The aUegation tihat Marie Plazewski struck Patrick Clark is fundamentaUy different from aHegations that she failed to obey a dispersal order, that she struck Officer Walter Bortko, or that she defaced a jail waU. The aUegation that Irene Plazewski struck John J. Napela is fundamentaUy different from aUegations that she disobeyed a dispersal order or that she resisted Officer Walter Bortko. The initial contention to dismiss even if valid, would not warrant reversal of the battery convictions.

The defendants contend additionally that the filing of the battery charges eight months after their arrests deprived them of their right to a speedy trial as guaranteed in the Sixth Amendment to the United States Constitution and in Article II Section 9 of the Constitution of Illinois 1870. The defendants cite and rely upon People v. Love, 39 Ill.2d 436, 235 N.E.2d 819. In that case, the court considered the contention that a 148 day delay between the fifing of a complaint and the arrest of the defendant deprived the defendant of a speedy trial where the delay was without cause or justification. The court after stating 39 Ill.2d at 442, 235 N.E.2d 823, “that in determining whether the right to a swift trial has been observed that the reckoning must be from the time the complaint or other form of accusation is filed, rather than from the time of arrest,” held however, that the 148-day delay in arresting the defendant did not deprive him of a speedy trial where there was no suggestion that the delay was intentionaUy oppressive or purposeful and where there was no showing of prejudice from the delay to the defendant.

The crucial distinction between Love and the present case is that in Love the delay occurred subsequent to the fifing of a complaint whereas in the case at bar the delay occurred prior to the initiation of formal proceedings on the battery charges.

Sections 3 — 5 through 3 — 8 of the Criminal Code of 1961 (Ill.Rev.Stat. 1967, ch. 38, par. 3 — 5 to 3 — 8) set forth time limitations within which prosecutions of various offenses must be commenced, and it is only under unusual circumstances that the initiation of a prosecution which is not barred by the statute of limitations would constitute a deprivation of the right to a speedy trial. In People v. Hryciuk, 36 Ill.2d 500, 224 N.E.2d 250, cited by defendant, the court rejected the contentions that the constitutional provision for a speedy trial has no application until after a formal prosecution has commenced and that delay before the initiation of formal proceedings is governed exclusively by the statute of limitations. In that case, the defendant, after confessing in 1939 to rape and murder was tried on the rape charge and convicted. In March 1953, the defendant was granted a new trial on the rape charge in post conviction proceedings. On the following day the State indicted the defendant for murder, and the defendant was eventually convicted. The only evidence which was introduced against the defendant in the murder prosecution was the 1939 confession which the defendant contended was involuntary. The defendant’s opportunity to cross-examine witnesses on the critical issue of the voluntariness of the confession was diminished because one of the witnesses to the confession was dead and the other two had little personal recollection of it. The court noted that no more evidence was available in 1953 than in 1939, and the delay in prosecuting was deliberate and calculated and that the defendant was prejudiced by the delay; and it held that “under the unusual facts of this case, the defendant has been deprived of a speedy trial and due process of law.” (36 Ill.2d at 505, 224 N.E.2d at 252.) In the present case the prosecutions of the battery charges were commenced well within the period allowed by the statute of limitations. See: Section 3 — 5 of the Criminal Code of 1961.

The defendants argue that they were prejudiced because “Clearly, the Defendants had no way of knowing prior to trial which of the many pending charges they were required to defend against.” The record does not support this assertion. Some 40 days before the defendants went to trial on the battery and resisting arrest charges, the prosecutor stated in open court that he would not proceed to trial on the original charges. The fact that the nolle prosequis were not entered or the non-suits on the original charges taken until after the trial had begun does not alter the fact that the defendants were on notice that the original charges would be dropped. When the case was called for trial the defendants answered ready and made no requests for additional time to prepare their defense or to obtain a bill of particulars; and during the course of the trial the prosecution offered no evidence on the original charges.

The record before us does not demonstrate the unusual factors which were present in Hryciuk. The prosecution was commenced within the period allowed by the statute of limitations; the defendants were free on bail pending trial; and the defendants were not prejudiced by the delay in the defense of the battery charge. In view of the facts and circumstances we hold that the defendants were not denied a speedy trial.

It is also contended that the defendants were not proved guilty beyond a reasonable doubt. The principle witnesses for the State were Officers Patrick M. Clark and John J. Napela. Both officers were assigned to crowd control at the Civic Center. On April 27, 1968, Detective Clark testified that Marie Plazewski struck him on the head with her purse and knocked him to his knees as he was attempting to arrest one Virgil Vogel, who was urging the crowd to resist the police. Officer Napela testified that he went to assist Clark and grabbed Marie Plazewski by the arm; and that while he was attempting to subdue Marie, he was struck on the head repeatedly by Irene Plazewski. Virgil Vogel and Irene Plazewski testified on behalf of the defendants and gave testimony conflicting with that of the officers.

The defendants point out (1) that the battery charges were not filed until eight months after they were arrested and initially charged, (2) that Officers Clark and Napela testified to signing complaints against them which were not included in the court file, and (3) that Napela identified the officer directing the dispersal as a person who was not present at the Civic Center at the time of the incidents involved herein; and they argue that “where the State’s witnesses have been impeached to the point where their credibility is questionable then reasonable doubt arises as to their entire testimony.”

We have carefully reviewed the record and we hold that there is nothing so inherently improbable in the testimony of the complaining witnesses as to set aside the conviction. We are convinced that the relatively insignificant discrepancies in the testimony of the police officers do not impeach the testimony when viewed as a whole. Where the cause is tried without a jury, it is the function of the trial judge to determine the credibility of the witnesses and the weight to be given their testimony, and where the evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of fact. (People v. Clark, 30 Ill.2d 216, 195 N.E.2d 631.) The record further shows that the Amended Complaints were signed and filed by leave of court on January 7th, 1969.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


author: Mr. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lubomyr Suriwka, et al., Defendants-Appellants.
    (No. 53339;
    First District
    — November 4, 1971.

      Ralph E. Brown, Joseph Minsky, and William J. Essig, of Chicago, for appellants.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Paul P. Biebel, Jr., Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

This appeal involves the conviction of four men, Lubomyr Suriwka, P. T. Demus, Roman Dziubynskyj and Teofil Kawka, for various offenses arising out of a melee in and around the rectory of St. Nicholas Ukranian Catholic Church in the City of Chicago.

The defendants contend that they did not understanding^ waive a jury trial; that the trial court erred in giving greater credibility to testimony by clergymen than to laymen; that the conviction of one of the defendants for resisting arrest was not supported by the evidence, and that the conviction of another for disorderly conduct was based on an unconstitutional ordinance.

A large number of parishioners gathered outside the church and around the rectory at the conclusion of the eight o’clock mass on the morning of January 19, 1968. The defendants’ brief gives the following explanation for the gathering:

“The crowd, which had assembled spontaneously, was a demonstration against the priests of the parish who had * » * changed some religious rite or ritual which would have otherwise taken place on this day. Water was to be blessed.”

Although the demonstration may have been spontaneous, it appears that the priests of the parish anticipated trouble. They had notified the police department and several uniformed policemen were in the vicinity of the church.

Some of the demonstrators entered the rectory; some remained outside. The defendants, Dziubynskyj and Kawka were among those who entered and we will discuss their cases first.

A witness for the prosecution testified that these defendants led a crowd of women up the steps and into the rectory. Monsignor Peter Leskiw and Fathers Thomas Glynn and William Bilinsky were in the living quarters on the second floor. The apartment door was locked and bolted. The door began to splinter, the locks gave way and the door was smashed against the wall. The crowd, headed by Dziubynskyj and Kawka, burst into the room. The priests told the people that they had no right to break into a private home and asked them to leave, Glynn speaking to them in English and Leskiw in Ukranian. Instead, they advanced further into the apartment and into Leskiw’s study.

The women carried bottles of water; they pushed at the priests and demanded that the water be blessed. Everyone was talking at the same time; Leskiw tried to calm them but could not. Glynn was not dressed in clerical attire and Dziubynskyj, who had a camera around his neck, raised it to take his picture. Glynn objected, put his hand toward the camera and, as he did so, Kawka struck him in the face with his fist. Leskiw stepped between the two men and held Kawka back. Glynn was stunned, blood spurted from his nose, his eye became black and he was later treated for damaged cartilage. Bilinsky attempted to telephone the police but he was pulled from the telephone, struck with a metal pitcher and doused with water. He knelt on the floor and prayed.

Policemen, who had to fight their way through the crowds on the rectory steps and upon the stairway leading to the second floor, came through the broken door and Dziubynskyj and Kawka started to leave the apartment. Leskiw shouted to the police to hold them and the two men were arrested.

Dziubynskyj testified that after attending the eight o’clock mass he followed fifteen to twenty-five people into the rectory. When he got to the second floor the door to the living quarters was open and people were in all the rooms. About fifteen were in the study with the three priests. He was in the rear of the crowd and asked a woman to stand aside so that he could take a picture. Glynn,who was about seven feet away, saw the camera, jumped at him, hit his camera, struck him between the nose and eye and knocked his glasses to the floor. He denied breaking through the door and said he did not see Kawka hit any priest.

Glynn testified that he did not strike anyone, Leskiw and Bilinsky corroborated him. Leskiw said he saw Glynn reach for Dziubynskyj’s camera but did not know if he touched it. He also said he saw Dziubynskyj holding his glasses and heard him say they were broken but he did not know how they were broken.

Kawka admitted entering the apartment but he said the door was open and many women were already inside. He saw Glynn hit Dziubynskyj as the latter was trying to take a picture. He denied striking Glynn but admitted that he pushed him hard and forced him to the wall, and that Glynn’s nose was bleeding right afterwards.

Two women who had been in the apartment testified for the defendants. One said that she accompanied Dziubynskyj into the building and that the second floor door was open when they arrived. She saw Glynn hit Dziubynskyj, whose glasses fell to the floor. The second woman, who said she preceded Dziubynskyj into the apartment, also said the door was open. This woman said that she saw Glynn strike the woman who had previously testified.

The court found Dziubynskyj guilty of criminal damage to property but not guilty of disorderly conduct. He was fined $200.00, placed on probation for one year and ordered to pay for the damage to the rectory door. Kawka was found guilty of battery and criminal damage to property. He was fined $100.00 for the battery, given one year’s probation on each charge and ordered to make restitution for the broken door.

Outside the rectory some two hundred people milled about. A few policemen tried to hold back nearly one hundred men and women who were trying to enter the building. Additional police were rushed to the scene and more were deployed in protecting the entrance. After the disturbance on the second floor had been quelled, the police cleared the rectory and attempted to disperse the people gathered on and around the front steps. They informed the crowd that the parishoners and police were out of the building and no one would be allowed to go in. A loudspeaker had been set up and the people were told many times that they had become a disorderly mob, were blocking the sidewalk and street, were trying to force their way into private property and would be arrested if they did not stop.

One of those warned was the defendant, Demus. Officer Kenneth Cullen testified that he placed him under arrest for disorderly conduct after Demus refused for the second time to comply with his order to move on. When he attempted to take him to the patrol wagon, Demus pulled the officer’s arm away, tore his watch off and started to struggle. The crowd moved in and tried to take the prisoner away. Other policemen came to Cullen’s aid. Demus fell to the ground, locked his arm around a fence and, with the crowd surging around, the police could not move him. Eventually, the crowd was held back and several officers extricated Demus and fought their way through the crowd to the patrol wagon.

Officer Patrick Boyle was one of the officers who went to Cullen’s assistance. He testified that on his way to the wagon the crowd closed in and he grabbed Demus by the neck and pushed him the last 50 feet. The defendant, Suriwka, was one of those between the wagon and the officer. Suriwka seemed to be protesting and was shouting in a language Boyle did not understand. When Boyle pushed Demus into the wagon, Suriwka asked to go along. Boyle accommodated him. He arrested Suriwka for disorderly conduct and obstructing an arrest.

Demus testified that he was a practicing physician. He saw the people outside the rectory and examined one woman who had been hit in the face. He said he told this to Cullen when he was ordered to move on and also told Cullen he wanted to relate it to the newsmen who were present. He explained his being on the ground by saying an officer grabbed him around the neck; he felt a pressure and fell, and was probably unconscious temporarily. Cullen denied forcing Demus to the ground or hearing him say he was a doctor and treating a woman who had been hurt. He acknowledged that Demus may have said he was upset because a woman had been struck by a policeman.

Suriwka, a civil engineer, testified that he went to the rectory stairs to observe the crowd. He admitted that a police lieutenant, speaking by means of a voice amplifier, asked the crowd to leave. He saw an officer strike a woman over the head. She cried and two doctors examined her. He heard Demus explain to a newsman that the woman needed treatment and next saw Demus lying on the sidewalk. He stood between the police and the wagon when Demus was being carried there and said, “You take me too.” He testified that he did not refuse to enter the wagon because “I asked for it.”

The court found Demus guilty of resisting his arrest by Officer Cullen, but not guilty of resisting Officer Boyle. He was fined $200.00, placed on probation for one year and ordered to compensate Cullen for his broken wristwatch. Suriwka was found not guilty of resisting arrest but guilty of disorderly conduct. He was fined $100.00.

The first contention — common to all the defendants — is that they did not understandingly waive a jury trial. Prior to the commencement of the trial the defendants’ attorney informed the court that the jury would be waived “on all four defendants, on all charges.” In People v. Sailor (1969), 43 Ill.2d 256, 253 N.E.2d 397, the court said that an accused ordinarily speaks through his attorney and by permitting him — in his presence and without objection — to waive his right to a jury trial is deemed to have acquiesed in and to be bound by the attorney’s action. There was but one defendant in Sailor and there are four here; because of this, the defendants argue that Sailor has no application and they should have been individually admonished of their right to a jury trial.

The fact that a single attorney represents multiple defendants charged with multiple offenses does not change the Sailor rule. An attorney may represent half a dozen clients in the same trial as long as their interests do not conflict. He owes to eách the same duty and loyalty and there is no basis for presuming that he has not explained their rights to them as fully as the lawyer who represents but one defendant. The defendants were present and made no objection when their attorney waived a jury trial. No claim is made that he did not explain to them the meaning of the waiver or that he acted in violation of their wishes. The trial court was entitled to rely upon the professional responsibility of the attorney and to presume from his waiving a jury trial that his clients knowingly and understandingly consented to the procedure.

It is also urged that the defendants are of Ukranian descent and did not have a good comprehension of the English language. Although interpreters were necessary for some of the witnesses, the defendants themselves testified without difficulty in English. There is no reason to believe that they were unable to understand either the words or the import of their attorney’s declaration that a jury would be waived.

A further argument in regard to the jury waiver raises the constitutional issue of due process. It is contended that in Illinois jury waivers by defendants who are represented by court-appointed counsel are scrutinized more closely and treated more indulgently on appeal than waivers made by defendants represented by retained counsel, and that it is a denial of due process not to apply the same standard to all defendants. This argument is predicated upon cases which were reversed because the defendants did not personally waive a jury, e.g., People v. Brownlow (1969), 114 Ill.App.2d 458, 252 N.E.2d 685 and People v. McGraw (1969), 115 Ill.App.2d 444, 253 N.E.2d 518. These cases were decided before the decision in People v. Sailor, supra. The fact that the defendants in these cases may have been represented by appointed counsel was merely coincidental. There is no distinction made by the reviewing courts of this state between jury waivers by retained counsel and by court-appointed counsel insofar as they pertain to the responsibility of counsel or the effectiveness of the waiver. The Sailor rule is apphcable to both.

The defendant Dziubynskyj and Kawka join in the next contention. Their convictions for criminal damage to property and Kawka’s for battery, rested principally upon the testimony of Monsignor Leskiw and Fathers Glynn and Bilinsky. In finding the defendants guilty, the court necessarily rejected their testimony and that of their witnesses and accepted that of the priests. It is asserted that the convictions should be reversed because the court inherently viewed the testimony of the clergymen differently than that of the lay witnesses. The assertion is predicated upon a remark made by the trial judge six weeks after the defendants had been found guilty.

The trial ended April 3, 1968, and the hearing in mitigation and aggravation was postponed until May 15th. Prior to sentencing, the judge reviewed the evidence and observed that the people’s right to dissent is inherent in the American form of government. He then said:

“But over and above that what right does a person have to inflict a battery on soneone, be he a cleric or laymen? I don’t think that this is material, because when the gentlemen of the clergy testified, they weren’t testifying as priests; they were testifying as individuals. The accident of their persuasion — it is not a question of substance — the Court does not view a priest, rabbi or minister any differently than he does another citizen; and the law tells me I must not. On the question of credibifity, that may be something else. But how can you justify this conduct. * *

Dziubynskyj and Kawka seize upon the words, “On the question of credibility, that may be something else” and assert they indicate that the judge foUowed an unconstitutional standard of credibifity by giving greater credence to clergymen than to laymen.

We do not know what the judge meant by these words, but in consideration of the balance of his statement: “when the gentlemen of the clergy testified they * * * were testifying as individuals * * * the court does not view a priest, rabbi or minister any differently than he does another citizen * * we cannot impute to them the meaning suspected by the defendants. It is proper to show a witness’ occupation as reflecting on his credibility. (People v. Winchester (1933), 352 Ill. 237, 185 N.E. 580; People v. Bond (1917), 281 Ill. 490, 118 N.E. 14; Cicero & Proviso St. Ry. Co. v. Priest (1899), 89 Ill.App. 304; Aff’d 190 Ill. 592, 60 N.E. 814 (1901).) The judge may have meant nothing more than this, or he may have meant that after listening to all the witnesses he had found the clergymen’s testimony more credible than that of the defendants. Since the ambiguous remark is susceptible of more than one interpretation it will be accorded an innocent rather than peccant construction. The convictions of Dziubynskyj and Kawka are affirmed.

Demus contends that his conviction for resisting arrest must be reversed because there was neither a lawful arrest nor a knowing resistance. It is a criminal offense for a person to resist or obstruct “the performance by one known to the person to be a police officer of any authorized act within his official capacity. # * *” (Ill. Rev. Stat. 1967, ch. 38, par. 31 — 1.) Demus denied being told he was under arrest and claims, therefore, that the arrest was invalid. He also claims that his acts of resistance — breaking Officer Cullen’s hold on him, struggling with the officer, falling to the sidewalk, clutching a fence and refusing to be taken to a patrol wagon — occurred while he was semi-conscious. Demus, admittedly, did not follow the order given to all the demonstrators to disperse and disobeyed Cullen’s individual orders to move on. These were lawful orders, issued by those whom Demus knew were police officers; when he failed to comply, reasonable ground existed for arresting him. Cullen testified that when Demus refused to follow his instructions he placed him under arrest. The trial court found that an arrest was made and that Demus resisted the arrest. An appellate court will not interfere with findings based on the credibility of witnesses except where the evidence raises a reasonable doubt of the defendant’s guilt. There was substantial evidence to support the conclusions of the court and they will not be disturbed.

A further contention is that the arrest was invalid because Demus was engaged in no unlawful activity at the time of the arrest. Even if probable cause for the arrest were lacking, Demus had no right to use physical force to impede it. People v. Carroll (1971), (Ill.App.2d), 272 N.E.2d 822. His conviction is affirmed.

Demus was also found gmlty of disorderly conduct. The record, however, does not show that any punishment was imposed for this offense and the appeal is only from the judgment finding him guilty of resisting arrest. Whether he was or was not guilty of disorderly conduct need not be discussed since the non-imposition of sentence would not sustain an affirmance of his conviction.

The defendant Suriwka, on the other hand, was fined for disorderly conduct. His contention is that his conviction was based on an unconstitutionally vague ordinance. It is, unnecessary to consider this contention because we find that the prosecution did not meet its burden of proving him guilty beyond a reasonable doubt. The evidence concerning Suriwka was that he shouted in a foreign language, protested Demus’ arrest and asked to be taken into custody. The prosecution suggests that his language incited the crowd and caused it to close in on the police when they were escorting Demus to the patrol wagon. This is pure conjecture. In the absence of proof of what he said we cannot accept the State’s argument. Neither vocally protesting an arrest nor saying to the police, “You can arrest me if you please,” necessarily constitutes disorderly conduct. See: City of Chicago v. Meyer (1969), 44 Ill.2d 1, 253 N.E.2d 400.

The judgments are affirmed as to the defendants Dziubynskyj, Kawka and Demus. The judgment is reversed as to the defendant Suriwka.

Affirmed in part and reversed in part.

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