author: Mr. JUSTICE EBERSPACHER

text:
    Belleville National Savings Bank, Adm’r of the Estate of Corinn Samotis, Deceased, Plaintiff-Appellant, v. General Motors Corporation et al., Defendants-Appellees.
    (No. 73-208;
    Fifth District
    July 2, 1974.
    John E. Norton, Professional Corporation, of Belleville (Edward J. Kionka, of counsel), for appellant.
    Pope and Driemeyer, of East St. Louis (W. Thomas Coghill, Jr., of counsel), for appellees.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the plaintiff from a judgment entered by the circuit court of St. Clair County on a directed verdict in favor of parties-defendant. The plaintiff, Belleville National Savings Bank, the administrator of the estate of the deceased (Corinn Samotis), brought this action to recover damages for the death of plaintiff’s decedent who was killed when the automobile being driven by her husband, John Samotis, in which she was a passenger, crashed. Suit was brought against the manufacturer, General Motors, on the theories of strict liability in tort and negligence, and against its dealer, Schmidt Motor Company, on the theory of strict liability in tort. The case was tried before a jury. At the conclusion of plaintiff’s case parties-defendant made a motion for a directed verdict which was sustained by the trial court.

It is, of course, the duty of a judge in a jury trial not to invade the province of the trier of fact. This restriction permits the trial court to direct a verdict “* * * only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & Eastern R. R. Co., 37 Ill.2d 494, 510, 229 N.E.2d 504, 510.

Applying the Pedrick standard to the instant case, we find that the evidence taken in its aspect most favorable to the plaintiff does so overwhelmingly favor the defendants that a verdict in favor of the plaintiff could never stand.

Mr. and Mrs. Samotis purchased a new 1969 Oldsmobile from Schmidt Motor Company; it was delivered to them on April 1, 1969. On April 25, 1969, the accident occurred which caused the plaintiff decedent’s death. The car was less than 1 month old and had about 1000 miles on it. The steering mechanism, which was alleged to be the cause of the accident, had been manufactured by Saginaw Steering Gear, a division of General Motors. The steering mechanism consists of a pump, a steering gear, and two hoses. The pump and the steering gear were fully assembled by Saginaw and delivered to the Oldsmobile assembly plant. At Oldsmobile the pump and the steering gear were put in the car and connected by the two hoses.

Under the doctrine of strict liability the essential elements which the plaintiff must allege and prove in order to establish a prima facie case are: first, that the injury or death in question was proximately caused by a condition of the product; secondly, that the condition was an unreasonably dangerous one; and lastly, that the condition existed at the time the product left the defendant’s control. Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182, 188.

The trial court directed a verdict for parties-defendant at the close of plaintiff’s case because it found that the “circumstantial evidence presented” left “the issues of defective condition [unreasonably dangerous condition] and proximate cause in this case a matter of guess or conjecture for the jury.” Thus the sole issue before us is whether plaintiff’s evidence, taken in its light most favorable to the plaintiff, is sufficient to satisfy the first requirement of the Suvada rule in view of the overwhelming refutative evidence which was presented as a part of plaintiff’s case.

Plaintiff cites numerous cases for the proposition that a specific defect need not be established in a products liability action. A careful reading of those cases reveals that the requirement that the plaintiff establish the precise cause of his injury may, at times, be excused in an action grounded on strict liability in tort provided the plaintiff establishes some credible basis for the reasonable inference that a condition of the product proximately caused the injury or, as in this case, the death of the plaintiff.

The Pedrick case is different from the instant case because in the instant case only the evidence presented before the direction of the verdict was that of the plaintiff. Therefore we do not have the same basis of comparison as the supreme court did in Pedrick, i.e., comparing the equivocal nature of the plaintiff s evidence to the unequivocal nature of defendant’s evidence. Nevertheless, we are able to consider the plaintiffs evidence together with the reasonable inferences therefrom taken in the aspect most favorable to the plaintiff and decide whether a verdict based on that evidence could stand. In other words did the plaintiff introduce any evidence from which it might reasonably be inferred that a condition of the product proximately caused plaintiffs decedents demise?

The plaintiffs case is based upon several inspections of the steering gear mechanism and the testimony of eight witnesses, five of whom were offered as experts. Appellant contends that the testimony of these witnesses was unequivocal insofar as it established (1) that foreign matters could be filtered out of the steering mechanism and that General Motor, by design, did not put in filters to keep foreign particles out of the steering mechanism, and (2) that foreign particles were in fact found in one of the hoses that connected the pump and the gear, in particular — a chip of wood, a pin of hardened steel, a piece of ductile metal, another metallic piece of very light weight non-ferrous material and several objects which appeared to be silicate or stone.

The plaintiff concedes that none of these particles caused the jamming of the steering mechanism; however, he contends that from the presence of these particles it might reasonably be inferred that other particles capable of jamming the steering mechanism were present in the system, since there was, no filter. Yet none of the plaintiffs “expert witnesses” could, upon inspection of the steering mechanism, find any evidence that such mechanism had jammed other than the aforementioned particles which were flushed out of one of the pressure hoses on the third of four separate inspections.

The first inspection, which occurred approximately 10 days after the accident, was conducted by a representative of General Motors and another witness. They started the automobile and both rotated the steering wheel from lock to lock. More than 1 month after the first inspection one of the plaintiffs experts, an automobile mechanic, and an investigator employed by the plaintiffs attorney took possession of the automobile. At this time a second inspection was conducted. Once more the steering wheel was rotated from lock to lock without sticking or jamming. The oil was pumped out of the pressure hose and was sent to Detroit for examination at the workshop of plaintiff’s expert. The steering system was also sent to Detroit for further examination. During the third inspection, in Detroit, plaintiff’s expert filtered the oil and back-flushed the pump and the hoses of the steering mechanism with carbon tetrachloride. The filtration of the oil revealed no foreign material; however, upon back-flushing certain foreign particles were filtered out of one of the high pressure hoses. These foreign particles (previously described) were introduced into evidence. Due to the illness of plaintiffs expert witness another “expert” was retained by the plaintiff. This second “expert” took the steering system to Saginaw Steering Division of General Motors for a fourth inspection. The gear was disassembled, and no additional particles were found. At the conclusion of this inspection, the steering system was re-assembled as a working unit and installed on a vehicle and test driven. The automobile was driven for a short time, and the steering system seemed to work properly. The steering system was then removed from the test vehicle and returned to the custody of plaintiffs expert.

Each of the plaintiff’s experts testified that it was possible for foreign matter to jam the steering mechanism. There is no dispute that a foreign particle could jam the steering mechanism. Therefore, the issue is whether there is any credible evidence which would reasonably lead to the inference that this or any other malfunction of the steering occurred in the instant case.

The plaintiff concedes that “this case stands or falls with the testimony of John Samotis.” “The plaintiff claims that John Samotis was “not impeached in any way.” Although we agree that plaintiffs case “stands or falls” on the testimony of John Samotis, we find John Samotis’ testimony of dubious probative value when considered in light of the testimony of plaintiffs own expert witnesses and the testimony of two persons with no apparent interest in the outcome of this lawsuit.

John Samotis testified that as he started to make a slight gradual turn to his left the steering wheel not only jammed making it impossible to turn to the right, but the steering wheel continued to turn an additional 180 degrees to the left and caused him to leave the highway, and crash into an overpass abutment. Although one of the plaintiffs experts testified that jamming might create such a sensation, each expert who testified on behalf of the plaintiff stated that if the steering actually malfunctioned, the steering wheel would not continue to turn in the manner described by the witness.

John Samotis denied that he was weaving from one traffic lane to another traffic lane immediately preceding the crash which caused plaintiff decedent’s demise. He said he made only one turn from his right hand lane toward his left to pass and that he thereafter continued off the highway and into the overpass abutment. Charles Steel, a disinterested eyewitness, testified that John Samotis attracted his attention by weaving “from one traffic lane to another traffic lane in what we call a lazy S pattern.” Plaintiff’s experts agreed that weaving of this nature, unless accompanied by skidding, would indicate that the steering was not malfunctioning as John Samotis claimed. The Illinois State trooper who investigated this accident, Thomas Beatty, did not find such a weaving pattern of skid marks.

One of plaintiff’s expert witnesses testified that if the steering wheel were jammed to the left as described by John Samotis, the front wheels should have been turned to the left when the car came to a final rest. Charles Steel testified that the front wheels faced straight ahead when he came upon the scene of the accident immediately after the collision.

At the trial John Samotis claimed that he remembered every detail of the evening of the accident from the time he left his home up to and including collision with the abutment. He denied having talked to Trooper Beatty. Trooper Beatty testified that on the evening of the collision, after clearance from doctors, he talked with John Samotis. During this interview John Samotis appeared, to Trooper Beatty, to be rational. Trooper Beatty stated that John Samotis told him that he remembered having a “couple of drinks” at home but that he could not remember anything after he left his home or anything about the accident.

At most the evidence produced during the testimony of plaintiff’s experts, was only evidence that such particles as were described as found in the hose, if they had entered the mechanism proper, might cause jamming. However, the experts concluded and the plaintiff concedes, that due to the size of the opening and design it was impossible for such particles to enter the gear mechanism. Plaintiff would from that evidence draw the inference that the existence of such particles in the hose make it probable that other particles capable of causing the gear to jam could have been within the mechanism proper, and that the testimony of John Samotis is not inconsistent with such inference. The difficulty with such a contention is that none of plaintiff s witnesses could find any evidence to the effect that jamming of the gear or any other malfunction of the steering had occurred and the probative value of John Samotis’ testimony is reduced by unequivocal testimony of plaintiffs non-interested witnesses, Trooper Thomas Beatty and Charles Steel.

Although the plaintiff, in an admirable effort to rehabilitate John Samotis, advances various hypotheses to explain these discrepancies, we believe it may fairly be said that in view of the foregoing evidence the testimony of John Samotis is of little probative value.

In Pedrick, our supreme court concluded by stating that:

“When the dubious probative value of the testimony of the plaintiffs and Hazel Lindsey is considered in the light of the unequivocal testimony by persons with no apparent interest in the outcome of this lawsuit and the corroborative testimony of the railroad employees, we believe it may fairly be said that all the evidence, viewed most favorably to plaintiffs so overwhelmingly favors defendant that no contrary verdict based on this evidence could ever stand.” (37 Ill.2d at 511, 229 N.E.2d at 514.)

Similarly in People v. Rosochacki, 41 Ill.2d 483, 490, 244 N.E.2d 136, 140, our supreme court stated:

“Our Pedrick decision fully contemplates that the trial courts are to decide when weak evidence has so faded in the strong light of all the proof that only one verdict is possible of rendition.”

From these pronouncements it may, and quite properly should, be inferred that although the trial judge must view the evidence in its light most favorable to the non-movant he need not accept aH evidence of the non-movant as true when determining whether there is any credible evidence on which to allow the case to go to the jury. This is not to say that a trial judge may determine the sufficiency of the evidence. However, the presence of some slight evidence which loses its significance, when viewed in the context of all the evidence does not impair the direction of a verdict. People v. Rosochacki, 41 Ill.2d 483, 244 N.E. 2d 136; Pedrick v. Peoria & Eastern R. R. Co., 37 Ill.2d 494, 229 N.E.2d 504; Liberio v. Patton, 9 Ill.App.3d 955, 293 N.E.2d 415; Perec v. Little, 106 Ill.App.2d 308, 245 N.E.2d 886.

Before treading upon this delicate area this court has, with a deep concern for the preservation of a viable jury system, carefully considered the rights, constitutional and otherwise, involved. An example of our reluctance to intrude upon this hallowed ground can be found in Waters v. Chicago & Eastern Illinois R.R. Co., 13 Ill.App.3d 661, 300 N.E.2d 521, wherein we found facts contained in the record which provided a basis for the determination that a jury verdict was not based on imagination and speculation. However, we are unable to ferret out such facts in the instant case.

We, therefore, find that when the dubious probative value of John Samotis’ testimony, on which plaintiff’s case “stands or falls,” is considered in the light of the unequivocal testimony by persons with no apparent interest in the outcome of this lawsuit, it may fairly be said that all of the evidence presented thus far, viewed most favorably to plaintiff so overwhelming favors defendant that no contrary verdict based on this evidence could ever stand. Accordingly, we find that the direction of a verdict by the circuit court of St. Clair County in favor of parties-defendant is correct and is hereby affirmed.

Affirmed.

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


source: Caselaw Access Project

author: Mr. JUSTICE CARTER

license: Public Domain

text:
    Duane T. Leach, Petitioner-Appellant, v. Dolores J. Johnson, Respondent-Appellee.
    (No. 73-259;
    Fifth District
    July 3, 1974.

      James W. Sanders, of Marion, for appellant.
    Charles W. Phillips, of Ridgway, for appellee.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

On December 4, 1972, the appellant, Duane T. Leach, filed a petition for the contest of an election to the office of State’s Attorney, Pope County. Appellant was the candidate for the Republican Party. Appellee, Dolores J. Johnson, was tire candidate for the Democratic Party.

The official canvass of votes found that appellee received 1,112 votes and appellant, 1,111. Appellant requested a discovery recount, and the recount showed that appellant did receive a greater total vote than the appellee. The discovery recount involved Golconda Poll 2 and Golconda Poll 1. For Poll 2 the recount disclosed that the appellee received fewer votes than were counted by the election officials. For Poll 1 it disclosed that the appellant received more votes than were shown by the count of the election officials and that appellee received fewer.

At the trial, evidence was presented regarding the preservation of the ballots and the court ruled that they had been properly preserved. Ballots were then counted in Golconda Poll 2, appellant having amended his petition to withdraw his request for a count of the ballots in Poll 1. Evidence was then presented regarding illegal voting in Poll 2. Following the presentation of all the evidence by both sides regarding illegal voting, the court found that the appellant had received a total of 1,079% votes and the appellee 1,085% votes and that appellee was duly elected to the office of State’s Attorney of Pope County.

Both appellant and appellee raise a number of issues. We will first dispose of the contention by both appellant and appellee that the trial court erred in permitting the other to amend pleadings during the course of the trial. Appellant alleges error in that the court permitted appellee to amend her pleadings so the question of illegal voting could be raised with regard to Poll 2. Appellee alleges error in that the court permitted appellant to present evidence as to illegal votes when such was not alleged in his petition.

It is well established that permission to amend pleadings is a matter within the sound discretion of the trial court and the court’s ruling will not be disturbed unless there is evidence that this discretion was arbitrarily exercised. The record in this case does not show that this discretion was abused. On the other hand, the record shows that the court was painstaking in its attempt to get at the substance of the election contest. Allowing either or both parties to raise the question of illegal voting as further information about the election was disclosed during the course of the trial seems to us to have been a reasonable and not an arbitrary determination.

Three major issues are presented: (1) were the ballots properly preserved; (2) if it is determined that they were properly preserved, should all the votes in Poll 2 have been thrown out; (3) if all the votes in Poll 2 should not have been thrown out, was it proper for the court to accept evidence of party affiliation for purposes of determining how to subtract votes from the respective candidates. We shall deal with these issues in the order in which they are expressed above.

Appellee argues that appellant did not sustain the burden of showing that the ballots were properly preserved and that therefore the results of the official canvass should not be disturbed.

Section 17-20 of the Election Code (Ill. Rev. Stat., ch. 46, sec. 17-20) provides that after votes have been canvassed at a polling place and the result proclaimed and transmitted to the office of the county clerk, election judges:

“it it it shai;[ f0l¿ or roll all of the ballots which have been counted by them, except those ballots which have been in the ballot box but have not been counted and marked ‘defective’ or ‘objected to,’ securely bind them lengthwise and in width, with a soft cord having a minimum tensile strength of 60 pounds, and wrap the same with heavy wrapping paper on which the judges of election shall write their signature and seal the package with transparent adhesive tape over the signatures and around the package lengthwise and crosswise so that the ballots cannot be removed from the package without breaking the seal and the transparent adhesive tape and disturbing the signatures, and enclose the ballots so wrapped, together with the envelope containing the ballots marked ‘defective’ or ‘objected to,’ in a secure canvas covering, which the judges of election shall sign and seal with transparent adhesive tape as above specified.”

This section further provides that two precinct judges, one from each political party, shall be elected to transmit the ballots to the clerk or to the Board of Election Commissioners, where they shall be carefully preserved for 2 months.

Appellee introduced evidence to show that six separate changes had taken place in the condition of the canvas bag containing the ballots. There was conflicting testimony about just how the canvas bag had been bound with cord and tape, so it is difficult to determine just what changes might have taken place in the binding or taping on the canvas bag. There was no evidence that tire sealed envelope within the bag containing the ballots had been opened or tampered with in any way. In Crum v. Green, 68 Ill.App.2d 246, 251, the court said: “We do not agree that the testimony shows that unauthorized persons had access to the ballots. In nearly every case it is possible that someone who was not authorized could have access to the ballots. We believe that this principle must be taken to mean access which would enable one to tamper with the ballots without the result being observed. All of the facts and circumstances must be considered. Any persons who tampered with the ballots in this case would have to untie the bags or cut them and unwrap the sealed packages of ballots and reseal them.”

As appellant points out, for the ballots to be tampered with, the bag would have to be cut or the tape cut off and the bag opened. The ballots would have to be unwrapped from their paper wrapping, the stack of ballots altered in some manner and the ballots rewrapped and placed in the bag. Then the bag would have to be retied and retaped. All this would have to be done during business hours when the vault was being monitored.

Whether or not there is such tampering as to result in improper preservation is a question of fact for the judge to consider. In the instant case, after the evidence was in, the trial court said: “I have listened to the evidence that the respondent has produced here and observed the demeanor of witnesses who testified, and the court is aware that some of the requirements of the statute pertaining to the conduct of an election to the handling of the ballots and the wrapping, etc., may not have been complied with, but in the absence of fraud the court cannot refuse to admit them * * *. I don’t consider the discrepancy in the application and the numbering of ballots — the preponderance of the evidence shows that they were straightened out after the polls closed. * * * First of all, there is not one scintilla of evidence but what the ballots that were cast reached the Clerk’s office. There is not one scintilla of evidence that anyone ever changed the way they were sealed except at the record. * * * Somebody has to handle these ballots and Mr. Baker [the County Clerk] has testified repeatedly and as recently as ten minutes ago that they are in the same condition as they were when delivered to his office and I can t make something out of nothing. * * * I reviewed all of the evidence and with the assistance of the reporter reviewed a lot of it verbatim and I read a lot of the cases hoping I could grant your first motion, because if I could we could have been 90% done, and I have no desire to go into these ballots from a personal standpoint. All I want to see is that we have a fair hearing here in court, and my personal wishes don’t apply. * * ” I have to deny the motion. It will be the order of the court that the motion of the Respondent to dismiss the cause at the close of all evidence concerning the preservation of the ballots is denied.”

As the court indicated, the whole case could have been disposed of by ruling that the ballots had not been properly preserved. The record discloses to us that the trial court was thorough in considering the facts and was knowledgeable about the law regarding the preservation of ballots. We see no reason to disturb his finding.

Appellant argues that because of errors and irregularities the results of Golconda Poll 2 should be disenfranchised. His principal arguments are that a large number of nonresidents including some 35 or 36 Job Corpsmen living near Golconda were permitted to vote and that the court was wrong in using party affiliation as a test for deducting illegal votes. This second argument is not germane since it has nothing to do with irregularities in the conduct of the election but rather with the method of handling illegal votes when an election has been contested.

Whether or not the voting of nonresidents in a precinct is sufficient to disenfranchise the whole precinct depends on a number of factors which again must be determined by the trial judge. Not only the number of such illegal votes in comparison to total votes cast in the precinct but also the methods which might have been used to procure these votes become important. As appellant points out, courts are reluctant to disenfranchise a precinct and for obvious reasons. In this case the number of illegal votes constitutes a small percentage of the total; there is no allegation that fraud or undue influence of any kind was used at the polling place. It is pertinent also that appellant did not raise this issue in his pleading — it was only after all the evidence was in that he made his motion to take the entire precinct from the results of the election. In a leading case on this matter, Lehman v. Hill (1953), 414 Ill. 173, the facts were quite different from those disclosed in the present case. In Lehman “the trial court found there were only approximately 60 persons entitled to receive assistance at the polls and disclosed by the permanent registration records yet the unquestioned evidence reveals that hundreds of voters actually were given assistance by one of two persons, either Mayor Terry or Marcelos West, the latter a person not entitled to assist, being neither a judge or cleric of election. * * * hundreds of blank affidavits for assistance were included in the election supplies taken to the home of William Terry the night preceding the election. These disappeared and no satisfactory explanation was made or advanced and no effort was made to supply them after the disappearance became apparent. The lower court properly held this course to be a fraud and unlawful misconduct to the extent that the freedom and equality of the election in this precinct were destroyed and that the poll could not be purged of such unlawful votes, that it was impossible to determine the legal votes cast and as a result the entire poll was rejected.”

There is no evidence of any such machinations in the instant case and we have no hesitancy in holding that the voters in Golconda Poll 2 should not be disenfranchised.

One controlling issue remains to be discussed — was it proper for the trial court to use party affiliation as a method of determining how to deduct illegal votes and were there any irregularities in the admission of evidence to establish affiliation. A line of Illinois Supreme Court cases has established the rule that, in the absence of better evidence, party affiliation is the best evidence for determining how an illegal vote might have been cast. Before examining the appellant’s argument that this rule should no longer hold, let us examine the cases.

The earliest case to announce the rule was Sorenson v. Sorenson (1901), 189 Ill. 179, 183, in which the court quoted with approval the following statement from 10 American and English Encyclopedia of Law, page 838 (2nd ed.): “Circumstantial evidence, such as party affiliation * * * is always admitted to show how a person voted, and is generally sufficient to prove the character of the vote.” In Rexroth v. Schein (1903), 206 Ill. 80, 97, a case involving a contest for the treasurer of Monroe County in the 1902 election, the court said: “Circumstantial evidence may be resorted to in order to purge the ballot of illegal votes. The party affiliations of the voter have been held uniformly sufficient to raise the presumption that he cast his ballot for the nominees of the political party of which he was a member, and this proposition, in the absence of any countervailing proof or circumstances, is, it seems, to be accepted in determining for whom the voter cast his ballot.”

In Choisser v. York (1904), 211 Ill. 56, 60-61, which involved a contest regarding the election of the superintendent of schools for Saline County, the court apportioned 9 of 15 illegal votes according to party affiliation. There was no evidence of party affiliation regarding six votes and no other evidence to determine how the parties might have voted so they were apportioned three and three. With regard to these determinations the court said: “These questions were determined upon conflicting evidence heard in open court, and the court having seen and heard the witnesses, this court will not disturb the finding of the trial court unless its finding is manifestly wrong, which we are unable to demonstrate, from the evidence, to be true in the case at bar.”

In Widmayer v. Davis (1907), 231 Ill. 42, the court quoted Sorenson and Rexroth with approval. This case, which involved a contest for Mayor of Jacksonville, illustrates the difficulty of making a proper determination about illegal votes. In Widmayer two witnesses testified under oath that they voted for the appellee. The trial court was upheld in an opposite finding, the court stating: “It cannot be denied that there was evidence tending to support the court’s findings that Taylor, McKenny and Arenz voted for appellant, notwithstanding Taylor and McKenny swore they voted for appellee * * (231 Ill. at 52.) Furthermore, the court in Widmayer stated: “In addition to what appears upon the record, the trial court saw the witnesses and heard them testify. In such case the error in the finding of facts must be clear and palpable to justify a reversal.” (231 Ill. at 52.) In McCreery v. Burnsmier (1920), 293 Ill. 43, the court approved the rule that how a voter votes may be established by circumstantial evidence. In Talbott v. Thompson (1932), 350 Ill. 86, 96, a case involving a contest concerning the election of the county clerk of Jefferson County in 1930, the court said: “Proof of the party affiliation of a voter raises a presumption that he cast his ballot for the nominee of his political party, and, in the absence of countervailing proof or circumstances, is accepted as determining for whom the ballot of such voter was cast.” In this case the court cited Rexroth, Sorenson, and Widmayer with approval.

Though Talbott appears to be the most recent Illinois case dealing directly with this matter, we find that as recently as 1968 the New Jersey Superior Court followed this rule. In Application of Murphy (1968), 101 N.J. Super. 163, 170, 243 A.2d 832, 835-836, the court said: “ ‘[c] ircumstantial evidence is admissable to prove for whom illegal votes were cast at an election * * * among the circumstances that may be considered are * * * party affiliations of the voter * * ”

We do not find, as appellant alleges, that evidence of party affiliation standing alone is insufficient to determine how a vote should be counted. In Rexroth, Choisser, and Talbott, the latter the most recent case, party affiliation was enough.

In our opinion appellant raises a more fundamental point when he urges that the rule established in these Illinois cases is outmoded due to the change in voter attitudes and the willingness of voters to cross over and split their tickets. We have given this careful thought. Though it may be demonstrated that there is today less allegiance to party lines and more crossover voting than in the past, we feel that in the absence of better evidence party affiliation is still the best evidence for dividing the votes to be eliminated.

Simply saying that there are more split tickets today than formerly is hardly an argument for departing from the party affiliation test. There have always been split tickets. The number varies with elections and with candidates and by geographical areas as well as with the times. That there must have been many crossovers when the candidate for a “minority” party in an area receives a large vote is only one presumption. There are others. The larger vote could have been the result of greater party interest in a particular candidate and in party activity, thus getting out a larger proportional vote than the other party. Also, people may be more willing to change their party affiliations and some increased vote may be accounted for by those who, after belonging to one party for a lifetime, changed their party affiliation at the preceding primary election.

We recognize that there are weaknesses in the points which have been advanced, but we also recognize that the two-party system is an integral part of our political life, recognized not only in the manner in which candidates are presented but in our election laws themselves and in countless facets of our economic and social life. Asking illegal voters to disclose how they voted is hardly the answer — even if it could be done —since many of those who vote illegally would have no compunction about testifying that they voted for the opposite party. Throwing out all the votes in a voting precinct is not fair either to the legal voters or the candidates themselves and should be avoided if at all possible.

In the instant case we feel that the trial court took the best course available and, as disclosed by the record, did a painstaking job of examining witnesses to determine their party affiliation. We have examined the objections to testimony made by the appellant and are unable to say that the trial court committed any reversible error in admitting and excluding testimony. Consequently, the judgment of the trial court of Pope County is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE GOLDBERG

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Ernest Lonzo, Defendant-Appellant.
    (No. 58212;
    First District (1st Division)
    July 1, 1974.
    Paul Bradley and Allen L. Wiederer, both of the State Appellate Defender’s Office, of Chicago, for appellant.

      Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Alan W. Brothers, and Daniel F. Murray, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

After trial by jury, John Ernest Lonzo (defendant) was found guilty of armed robbery. (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2.) He was sentenced to a term of 6 to 10 years. He appeals.

Two briefs have been filed in behalf of defendant; one by a private attorney and another by the State Appellate Defender. Two responses have been filed by the State’s Attorney. A reply brief has been filed for defendant by the Defender. It appears from these various briefs that defendant contends he was not proved guilty beyond a reasonable doubt; it was error to permit testimony of a witness, now deceased, to be read to the jury at a preliminary hearing; improper conduct of the prosecutor in cross-examination and final argument was reversible error and the sentence is excessive. The State contends that defendant was proved guilty beyond a reasonable doubt; a transcript of the previous testimony by the deceased witness was properly read; cross-examination of defendant and final argument by the prosecutor were not improper and no abuse of discretion appears from the sentence.

The subject of the alleged armed robbery was a small grocery store operated by two elderly people: Richard Martin, now deceased, and his wife, Beatrice. Mrs. Martin testified that on Saturday, November 20, 1971, at about 6:30 or 6:45 P.M., two men entered tire store. One of them, later identified by her in court as the defendant, was carrying a gun with “two big noses”, or a shotgun. He was in front of the counter. They asked for cigarettes and then announced “a stickup.” Defendant told her to empty the cash register “real fast.” The other man held a gun to her husband and forced him to lie down and took money from his pocket. At that time, defendant was 3 or 4 feet from her. Both men were in tire store from 4 to 5 minutes. Defendant was in front of the counter for 3 or 4 minutes. Defendant took the contents of the cash register and both then left.

This witness did not recall if she or her husband had spoken to the police that day. She did not see the store clerk, a student named James McCulIum, speaking to the police that day. However she did remember giving a police officer a description of the defendant. She did not recall tire name of this officer or whether he was black or white. She stated, “I don’t know one police from another.” She and her husband had operated the store since 1960 but she had never seen defendant in the store before. She also testified on cross-examination that she could not recall if the robbery took place at 6:15 or 6:45 nor could she say what clothes defendant wore at the time of the robbery or what he wore when she next saw him.

On January 2, 1972, she was looking out of her window and saw defendant helping to change a tire on an automobile close to the store. She called the police and they responded. The police went upstairs to one of the apartments next door and brought the defendant down. Before the grand jury, in response to a leading question, she testified that the day on which she next saw defendant after the robbery was January 22, 1972.

James McCullum testified that he was 18 years old and a high school student. He worked part-time at the grocery store after school and on weekends. On November 20, 1971, at about 6:30 or 6:45 P.M., two men came in. One asked for a pack of Kool cigarettes. The witness served him and he announced “a stickup.” He identified defendant as being one of the men. Defendant put a sawed-off shotgun on the counter and said, “Empty up the cash register.” The other intruder had a silver pistol. At that time, the witness was some 3 feet away from defendant. The other man pushed Mr. Martin down to the floor and took his money. The two men then ran out of the door. James McCullum has worked in the store for 4 or 5 years and never saw defendant before. He described the defendant as being light complected. He did not recall seeing the police at the store that day. He did not remember whether he had testified before the grand jury that defendant was armed with a pistol and the other man with a shotgun.

Police Officer A. C. Goodwin testified that he was summoned to the grocery store on November 20, 1971. He spoke to Mr. Martin, Mrs. Martin and James McCullum. Mr. Martin gave him a general description of the robbers which was included in his report. Both were male persons of the Negro race, some 20 years of age, about 6 feet tall. One had black bushy hair, medium complexion and wore a black corduroy coat of three-quarter length. The other was dark in complexion and wore a black so-called “maxi” coat. The witness had no further conversation with any of these persons at any later date. At the request of his own counsel, defendant stood up in court. The witness testified the defendant’s height was 6 feet or 6 feet 2 inches.

Police Officer John Moore testified that on January 2,1972, in response to a telephone message, he went to the Martin home. Mrs. Martin told him that the man who had robbed her was next door in a two-flat building. The officer then entered the building and brought down the defendant. At that time, Mr. and Mrs. Martin were on their porch. The officer had told defendant that he had been pointed out as one of the people who had committed the robbery next door. The Martins walked over to the sidewalk and defendant was accused of the robbery. Defendant made no response.

After timely objection by defendant had been overruled, a court reporter read to the jury a transcript of the testimony of the late Richard Martin given before the court at a preliminary hearing regarding participation of defendant in the robbery. He had died on May 28, 1972, at about 82 years of age. The transcript reflected the deceased had testified that at the holdup the defendant took the money from his wife and that the other person took the money from him. Both of these men had weapons. They came in and asked for cigarettes, which he served them, and then announced a holdup. Both left together. He had never seen defendant in the store before that day.

Defendant testified that he lived with his wife and four children about one-half block from the grocery store. He had lived there for almost 2 years prior to the date of the robbery. He had worked for the same employer for about 5 previous years. He denied in categorical terms that he had committed the armed robbery and testified that he did not have possession of a double-barreled shotgun on the day in question and never owned a gun. He testified that the time records of his company showed that on Saturday, November 20, 1971, he punched in at 5:37 A.M. and left work at 2:38 P.M. He had seen Mrs. Martin in the store on many occasions before the robbery and two times after the date thereof. On January 2, 1972, he was visiting a woman named Dorothy Wallace, a sister of his wife. At that time, the police ordered him to come downstairs where he was lined up with several other men. Mrs. Martin, when asked which one was guilty, pointed to him first and said, “Him and I believe him,” pointing next to his brother-in-law. It should also be noted that in rebuttal, Officer William Zielinsky testified that he was present at this incident and that Mrs. Martin pointed out only the defendant by way of identification.

Defendant also called his former landlady who testified to his good reputation in the community for being a peaceful and law-abiding citizen. He also called a friend who has known him since 1966 and who saw him practically every afternoon during the past year. This witness expressed the opinion that defendant had a good reputation in the community as being a law-abiding person. He also testified on cross-examination that on November 20, 1971, at about 6 P.M. or a little after, both of them had something to eat at the home of defendant’s mother-in-law. That would be approximately between 6:30 and 7 o’clock. This witness also testified that he found out about defendant being involved in the charge of robbery on “the next morning” although it appears that he might have used this term in referring to the morning after defendant’s arrest which occurred on January 2, 1972.

In analyzing this record, the test simply stated is whether the evidence is so unsatisfactory as to justify a reasonable doubt of guilt. (People v. Benedik, 56 Ill.2d 306, 310, 307 N.E.2d 382.) Undoubtedly there are discrepancies and contradictions in the evidence submitted by the prosecution. The issue is whether these matters are sufficient to raise a reasonable doubt of guilt or whether they go merely to the credibility of the testimony. An analysis of the testimony shows the following:

1. The conviction depends entirely upon the identification testimony without corroboration by any other type of evidence such as recovery of loot or the finding of a weapon. Identification of defendant by Mrs. Martin and her husband did not occur until approximately 6 weeks after the alleged offense and identification by the third witness, the student James McCullum, was not made until approximately 11 weeks thereafter.

2. Mrs. Martin did not recall being present at a conversation between her husband and the police on the day of the robbery. Officer Goodwin testified that she was present at this time.

3. At trial, Mrs. Martin was unable to describe the offenders or their clothing as they were at the time of the robbery or the time of the arrest.

4. She could not give a description of the police officer who arrested defendant and could not even recall if he was black or white.

5. As regards the testimony of her deceased husband, read to the jury by the court reporter, it can best be described as perfunctory.

6. McCullum testified at trial that defendant was light complected and was armed with a double-barreled shotgun. Although he did not remember his testimony before the grand jury, he testified there that the robber with the light complexion was armed with a pistol.

7. McCullum had no recollection of the visit to the store by a police officer on the day of the alleged robbery. The officer testified that Mc-Cullum was present on that day.

8. The deceased, Mr. Martin, testified at the preliminary hearing that he sold a package of cigarettes to one of the intruders immediately before the holdup. On the contrary, McCullum testified that he himself served one of the robbers with a package of cigarettes. This is a damaging inconsistency. People might differ as regards their own observations during the period of the actual holdup, but so marked a difference should not exist with reference to acts which they themselves allegedly performed before the holdup took place.

It is correct that minor discrepancies in testimony do not destroy the credibility of the witnesses. (People v. Bell, 53 Ill.2d 122, 125, 126, 290 N.E.2d 214.) When carefully read, the testimony of Mrs. Martin is doubtful almost to a point bordering upon incoherence. As stated, the testimony of her late husband was perfunctory and even fragmentary. When all of the matters above detailed are considered together, they are sufficient in their totality to raise a reasonable doubt as to the guilt of the accused.

In addition, it must be noted that defendant produced evidence of his good character for being a peaceful and law-abiding citizen in the community. This evidence cannot be disregarded and it may be sufficient to raise a reasonable doubt of guilt. (People v. Bush, 4 Ill.App.3d 669, 673, 674, 281 N.E.2d 734.) Defendant had been steadily employed at the same firm for 5 years. He is a family man with four children. He lived within a short distance of the store and testified that he had visited the store both before and after the date of the alleged holdup. His testimony that he did in fact visit this neighborhood business from time-to-time seems more logical than the denial by other witnesses that they had previously seen him in the store. Furthermore, if he were guilty of this crime, it would be contrary to human experience for him to help some person change a tire so close to the store in which the holdup had taken place. All of these factors lend strong credence to his denial of guilt.

It is true that the determination of credibility by the jury “should not be lightly set aside” (People v. Ellis, 53 Ill.2d 390, 395, N.E.2d 728) but the principle is equally potent that where testimony of the identification witnesses is vague, doubtful and uncertain, we must carefully weigh the surrounding circumstances to make certain of the sufficiency of the evidence to establish guilt beyond a reasonable doubt. (See People v. Cullotta, 32 Ill.2d 502, 207 N.E.2d 444.) In cases of this type where careful examination of all the evidence convinces us that there is “a serious and well founded doubt of a defendant’s guilt, the conviction must be reversed.” (People v. Sledge, 25 Ill.2d 403, 407, 185 N.E.2d 262.) This entire record leaves us with a grave and serious doubt of guilt. The judgment should be and is reversed. (See authorities cited by the dissent in People v. Stombaugh, 52 Ill.2d 130, 139, 140, 284 N.E.2d 640; also People v. Mostafa, 5 Ill.App.3d 158, 179, 180, 274 N.E.2d 846, petition for leave to appeal denied.) This conclusion makes it unnecessary for us to consider the remaining contentions of defendant.

Judgment reversed.

BURKE and HALLETT, JJ., concur,


author: Mr. JUSTICE HALLETT.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Holmes, Defendant-Appellant.
    (No. 57553;
    First District (1st Division)
    July 1, 1974.
    Paul Bradley, of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Opinion by

Mr. JUSTICE HALLETT.


author: Mr. JUSTICE DOWNING

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry Jenkins, Defendant-Appellant.
    (No. 57118;
    First District (2nd Division)
    June 28, 1974.

      Arthur H. Grant, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Mary Ellen Dienes, and John F. Brennan, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Defendant, Henry Jenkins, after a bench trial, was found guilty of the offense of contributing to the sexual delinquency of a child (Ill. Rev. Stat. 1971, ch. 38, par. 11 — 5(a)) and sentenced to a term of 90 days.

Defendant now prosecutes this appeal presenting the following issues for review: (1) whether the complaint upon which the prosecution proceeded was fatally defective; (2) whether the trial court erred in finding that the prosecutrix was competent to testify; (3) whether the trial court erred in permitting the State to introduce hearsay testimony; (4) whether the trial court properly permitted a witness for the State to identify as marijuana the odor he detected in defendant’s apartment; and (5) whether the evidence presented was sufficient to support a finding that defendant was guilty beyond all reasonable doubt.

The complaint in this case charged the defendant with the offense of contributing to the sexual delinquency of a child in that he “performed an act of sexual intercourse with the victim,--” who, at the time of the offense, was 14 years of age. The complaint was signed by the mother of the 14-year-old girl.

The prosecutrix testified that on March 12, 1971, she went to defendant’s apartment to visit a girl friend and there saw the defendant, his small son, a man named Earl, and her girl friend Cookie. Once inside the apartment, the witness noticed that they were “smoking reefer and drinking.” The witness stated that defendant offered her a “reefer” and also a drink but she refused both. The defendant then told her to go into the bedroom and, when she would not do so, he pulled her there. At this point Cookie said, “* * * watch out! She’s going to let you do it,” but, the witness testified, “I said I wasn’t.” The witness further testified that Earl suggested they rip her clothes off; that the defendant disagreed but nonetheless held her while Earl pulled off her clothes; that the defendant held her by the arms on the bed while Earl “had intercourse”; that Earl held her “while Jenkins did it”; and that, during the ordeal, the bed fell.

On cross-examination the witness stated that the defendant had thrown her out the apartment’s back door into the parking lot in the rear of the building where her mother found her; that, although she could not recall specifically, she thought defendant’s apartment was on the second or third floor of the building; and that the offense occurred on a school night but she could not remember the exact day or time. The witness further testified that she had been in Elgin State Hospital for the 2 weeks prior to her testifying as a witness; that she had been there on one previous occasion for 2 days in February, 1971; and that her mother had committed her each time because of their failure to get along together. She then stated that she had gone to defendant’s apartment once before to see her friend Cookie and that defendant was not present at that time.

Officer Cena, a Chicago police officer, testifying on behalf of the State, stated that he first arrived at defendant’s apartment at approximately 7 P.M. pursuant to a complaint for narcotics transmitted by the vice control department; that only defendant and his son were in the apartment; and that, with defendant’s permission, they looked through the apartment “to check for any pot party or narcotics” but found none. As they left defendant’s second floor apartment and proceeded down the stairs, the officers encountered the prosecutrix and her mother. The witness noticed that the prosecutrix’s clothes were ripped, that she was crying and holding her back, and, when he asked “what the problem was,” she responded that she had been raped on the second floor of the building. The officers then returned to defendant’s apartment with the prosecutrix and her mother, and, when the defendant came to the door, the prosecutrix identified him as the man who had raped her. The officers proceeded to search the apartment, looking into every room, and noticed an odor but found no narcotics. In the bedroom they found “rumpled up” clothes and bed sheets on the floor and noted that the bed had been broken down. The witness then testified that he had been in the narcotics section of the police force for approximately 3% years; that he had' handled around 150 cases; that he had smelled narcotics; and that, although he had no formal laboratory training, he associated the odor detected inside defendant’s apartment with that of marijuana.

The mother of the prosecutrix, testifying for the State, stated that her daughter had asked for permission to go to Cookie’s house; that she had instructed her to be home by 6 P.M.; and that at 7 P.M. her daughter had not returned home, the witness went to the defendant’s apartment, asked defendant if her daughter was there, and defendant said that she had been there but had gone to the store with his sister. The witness stated that it took a long while for defendant to come to the door, and that she saw no one in the apartment but defendant and his son because of the way defendant opened the door.

The witness further testified that she saw her daughter on the second floor of the same building; that she was bruised, her pants had been torn off her, and she was hollering; that later on a police officer came; that she had called the police earlier because she smelled “dope”; and that she, her daughter, and the officer then went to the defendant’s apartment.

At this point in the proceedings defense counsel moved for a directed finding on the ground that the State had offered no evidence of medical tests to demonstrate that sexual intercourse had in fact taken place. The court then permitted the State to re-open its case.

Recalled to the stand, the mother testified that her daughter had been taken to Billings Hospital where she underwent an examination.

Officer Cena stated that the prosecutrix had been taken to Mercy Hospital and, referring to the doctor’s report, testified that it stated there had been penetration and that the prosecutrix’s hymen had been “busted” previously. Responding to questions then posed by defense counsel, the witness stated that no sperm was found. Questioned once again by the State, the witness testified that, according to the examining doctor, “there was penetration” and “the vagina was abrasive and more or less forced.”

Testifying in his own behalf, the defendant stated that he lived on the second floor at 5447% S. Racine, denied ever having sexual relations with the prosecutrix, and specifically denied any such conduct on the date in question. On cross-examination the witness stated that the prosecutrix had not been in his apartment.

I.

Defendant contends that the complaint filed in this matter was fatally defective in that the complaint in the name of the prosecutrix was signed by her mother, and that the complaint bore no verification. The complaint does contain the signature of the mother, which signature was subscribed and sworn to before a representative of the clerk of the circuit court.

In People v. McCall (1963), 42 Ill.App.2d 295, 297, 192 N.E.2d 257, this court held that where one person appears as complainant, another signs, and there is no verification: “The concurrence of these errors is sufficient to devitalize the document as an information.” On the other hand, our supreme court has held that the failure to verify a complaint does not affect the jurisdiction of the court and a defendant may waive the right to have an information sworn by going to trial without objection. People v. Billow (1941), 377 Ill. 236, 239, 36 N.E.2d 339.

Since the complaint in the instant case does not contain the quantity of errors required to devitalize the complaint under McCall, the issue here is more appropriately resolved by the holding in Billow.

The record of defense counsel’s cross-examination of the prosecutrix reveals that he knew of the signature on the complaint. Defendant nonetheless in trial court failed to object to the form of the complaint. Ry giving notice of his objection at trial, the prosecutrix could have verified the complaint.

It should also be noted that prior to the trial, the record indicates defendant was in court four times with counsel, and that after the finding of guilty a written post-trial motion was filed without listing any objection concerning the complaint presented to the trial court. In our opinion defendant has waived any defects in the complaint. People v. Childress (1971), 2 Ill.App.3d 319, 323, 276 N.E.2d 360.

II.

Defendant contends that the trial court abused its discretion in finding that the prosecutrix was competent to testify.

At trial, pursuant to defense counsel’s objection, the court directed the State to establish the witness’s testimonial competency and the following colloquy took place:

“Mr. Grant [sic: Mr. Gabitis]: Q. Where are you?
A. In a room.
Q. Who is the distinguished gentleman in front of you with the gray hair?
A. The judge.
Q. A judge. Do you know what the difference is between telling the truth and telling a he is?
A. Yes.
Q. What happens to girls that lie?
A. They get sent away.
# # #
Mr. Gabitis: Q. Honey, do you presently reside at Elgin?
A. Yes.
Q. And did your doctor permit you to testify here?
A. I don’t have no doctor. My mother brought me here.
The Court: Go to the question of whether she’s competent at the day of the event or had been declared incompetent?
Mr. Gabitis: Q. On March 12, 1971, were you competent on that date?
Mr. Grant: Objection. She can’t tell whether she’s competent or not.
Mr. Gabitis: Q. Were you at Elgin on that day?
The Witness: A. No.
Q. Were you living with your mother?
A. Yes.
Q. And were you attending school?
A. Yep.
Q. What grade were you in?
A. 10
Q. Tenth Grade?
A. Yes.
Q. What school?
A. Tilden.
Q. Where is that location?
A. 40 South — 4747 South Union.”

Every person who is 14 years of age is presumed competent to testify (People v. Sims (1969), 113 Ill.App.2d 58, 61, 251 N.E.2d 795) and, since the prosecutrix was 15 years old at the time of trial, her testimonial competency was not subject to question on the ground of minority. Defendant concludes, however, that the prosecutrix was “mentally deranged” and urges that the foregoing colloquy was not sufficient to establish the witness’s testimonial competency. His conclusion is unsupported by any evidence contained in the record. Indeed, the testimony offered at trial revealed only that the prosecutrix had been sent to Elgin State Hospital for a brief period of time on two separate occasions, apparently because she and her mother were unable to live together compatibly. Testimonial competency is measured by a witness’s ability to understand the nature of an oath and her capacity to observe, recollect, and communicate. People v. Dixon (1961), 22 Ill.2d 513, 516, 177 N.E.2d 224; People v. Cox (1967), 87 Ill.App.2d 243, 246, 230 N.E. 2d 900.

It has long been held that witnesses are presumed to be competent to testify and the burden is on the party objecting to prove incompetency to testify. Boyd v. McConnell (1904), 209 Ill. 396, 398, 70 N.E. 649; Wigmore, Evidence (3d ed. 1940), §484.

In the instant case it is clear that the witness knew the consequences of failing to teU the truth, and her testimony reflected her ability to observe, recollect, and communicate. She stated the name and address of her school; that she was in the tenth grade (commensurate with the normal education level of a person of her age); and that she was living with her mother at the time of the offense.

In the remainder of her testimony at trial the witness was able to recount the circumstances of the offense. Her stated motive for going to defendant’s apartment was corroborated by her mother. Officer Gena’s testimony corroborated her assertion that the bed had broken during the ordeal and both the officer and the mother stated that the prosecutrix’s clothes were tom.

It is only where there has been an abuse of discretion or a manifest misapprehension of some legal principle that the trial court’s determination of testimonial competency will be reviewed (People v. Davis (1957), 10 Ill.2d 430, 437, 140 N.E.2d 675; People v. Hall (1971), 1 Ill.App.3d 949, 960, 275 N.E.2d 196). We find from the record no reason to disturb the trial court’s determination.

III.

Defendant next maintains that the trial court’s consideration of incompetent hearsay testimony warrants reversal.

Upon the State resting its case in chief, counsel for the defendant made a motion for directed verdict. The defendant asserted that the prosecutrix only testified that defendant and Earl had intercourse with her while she was being held by her arms on the bed. During the ensuing colloquy the court inquired if the mother took the prosecutrix to the hospital. The record then indicated the mother, recalled by the State, testified, without objection, that her daughter was taken to Billings Hospital for an examination.

Thereafter, Officer Cena was recalled. The record does indicate án “objection” by defense counsel which was neither specific, or ruled upon by the court. Thereupon, the State proceeded to ask questions of Cena as did defense counsel. Referring to the report of the doctor who examined the prosecutrix, Officer Cena testified that the doctor “stated there was penetration, the hymen was busted before.” Defense counsel elicited from the witness further hearsay testimony as to the contents of the doctor’s report, i.e., that the doctor found no sperm and that the prosecutrix was not a virgin prior to the date of the offense. It was not until the State attempted to ask one last question of the officer that defense counsel made a general objection to the officer’s testimony. No motion to strike the testimony was made.

Objections to testimony should point out the basis for the objection and be timely made. Failure to do so or to make specific motions to strike generally constitute a waiver of any error. Specific objections of this type cannot be raised on appeal for the first time. See People v. Trefonas (1956), 9 Ill.2d 92, 98, 136 N.E.2d 817; People v. Davis (1st Dist. 1970), 126 Ill.App.2d 114, 116-117, 261 N.E.2d 428.

Defense counsel’s pursuit of further hearsay testimony from the same witness precludes him from raising that matter on appeal. People v. Calvin (1969), 116 Ill.App.2d 471, 481, 253 N.E.2d 922; People v. Lewis (1973), 15 Ill.App.3d 8, 304 N.E.2d 63.

IV.

Defendant also complains that the trial court erroneously permitted Officer Cena to state his opinion as to the nature of the odor he detected in defendant’s apartment since, he maintains, “* * * the State failed to qualify the officer, either as an expert or non-expert.”

In support of his position defendant cites two cases wherein a witness was called upon to give his lay opinion as to the testamentary capacity of the testator which, in turn, was the ultimate issue to be determined. In the instant case the defendant was charged with contributing to the sexual delinquency of a child in that he “performed an act of sexual intercourse with the victim.” There is no charge that he contributed to the delinquency of a child by offering her marijuana. Consequently the question of whether or not marijuana had been smoked in defendant’s apartment was not the ultimate issue in the case and, as the State aptly points out, the only probative impact of the officer’s testimony lies in its corroboration of the prosecutrix’s testimony that those present in defendant’s apartment were smoking “reefers.”

Although Officer Cena had no technical training, he had worked in the narcotics section for 3% years, handled nearly 150 cases, had smelled narcotics, and, based upon this experience, stated that he associated the odor in defendant’s apartment with marijuana. Defendant suggests that these facts did not supply a sufficient foundation for the officer’s opinion but, on the contrary, our courts have recognized the relevance and admissibility of such an opinion once a witness has testified, to the satisfaction of the court, that he is familiar with and can recognize a particular odor. See People v. Reed (1928), 333 Ill. 397, 401, 164 N.E. 847; People v. Erb (2d Dist. 1970), 128 Ill.App.2d 126, 132, 261 N.E.2d 431; People v. Laird (5th Dist. 1973), 11 Ill.App.3d 414, 415, 296 N.E.2d 864.

Defendant asserts that the trial court, in finding the defendant guilty, referred to the officer’s testimony that he detected by the sense of smell that marijuana had been smoked in defendant’s apartment. Our reading of the entire statement by the trial court indicates that this testimony was noted as one of the points testified to by the prosecutrix which was corroborated by the testimony of the police officer. However, that fact received no greater importance than the other points of corroboration noted by the trial court.

We find no error in the testimony of Officer Cena as to the condition of defendant’s apartment noted by the officer at the time he was in the apartment.

V.

Defendant strongly urges that the evidence presented by the State was not sufficient to support a finding of guilty since the prosecutrix never specifically stated that defendant engaged in an act of sexual intercourse; that she could not remember the exact time of the offense; that she could not recall the specific floor where defendant’s apartment was located; that the trial court relied in part on hearsay testimony; that no sperm was found; and that the testimony of the State’s witnesses was, in general, confusing.

Defendant correctly points out that the prosecutrix, when testifying about the acts of intercourse, did not use the word “sexual,” and there was no actual testimony by her concerning penetration. He points out that under section 11 — 1(b) of chapter 38, “sexual intercourse occurs when there is any penetration of the female sex organ by the male sex organ”; that to prove an act of contributing to the sexual delinquency of a child, as charged in the complaint, the State must prove (i) that defendant was over 14 years of age, (ii) that the prosecutrix was under the age of 18, and (iii) that there was an act of sexual intercourse.

Defendant relies principally on the case of People v. Bryant (1970), 123 Ill.App.2d 35, 259 N.E.2d 638. There this court reversed the defendant’s conviction for contributing to the sexual delinquency of a minor since the testimony of the complaining witness was not only unsatisfactory but also uncorroborated. She failed to explain her presence, in violation of the curfew, in the area of the offense. She did not adequately explain her failure to return home until the following day as well as her failure to mention the incident to her mother until three days later. Further, a friend of the complaining witness, present during the occurrence, was not called to testify. On the other hand, defendant strongly denied guilt and offered the corroborative testimony of an eyewitness. This court then concluded that, by comparison, the evidence presented by the State was insufficient to support the finding of guilty.

The quality and quantity of the testimony offered by the State’s witnesses in the case at bar sufficiently distinguishes it from Bryant. Here the prosecutrix stated that she went to defendant’s apartment seeking her girl friend; that the occupants of the apartment were drinking and smoking “reefers”; that two men overcame her, and pulled her clothes off; that each man (one of whom was the defendant) took turns having intercourse with her while the other held her; that the bed broke during the ordeal; and that the attack took place on the second or third floor of the building on a school night. She explained further that her friend, Cookie, had run away from home since the time of the offense and could not be found by the police.

Elements of her story were corroborated by Officer Cena’s testimony that he smelled the odor of marijuana in defendant’s apartment; that the bed was broken; that clothes were on the floor and bed sheets all around; and that, when he saw the prosecutrix on the stairway a short time later, her clothes were torn, she was crying, and holding her back. The mother’s testimony corroborated her daughter’s motive for going to defendant’s apartment, and she also testified that her daughter’s clothes had been torn and that she was bruised and hollering.

By comparison, the defendant not only denied having had any sexual relations with the prosecutrix but also denied that she had been in his apartment.

Defendant points out that the word “intercourse” as defined in Black’s Law Dictionary (4th ed.) refers to communication, “a running or passing between persons or places: commerce.”

We have reviewed the entire record with the caution required in this type of case (People v. Pointer (1st Dist. 1972), 6 Ill.App.3d 113, 285 N.E.2d 171). From the context of the prosecutrix’s testimony, we do not think there can be any doubt that the prosecutrix testified about an act of sexual intercourse committed by the defendant. After she had testified that defendant had held her while Earl “had intercourse,” her testimony as to defendant was that Earl had then held her “while Jenkins did it.” In context, it is absurd to conclude that all she was testifying to was that first Earl and then defendant were merely socially conversing with her.

Thus, unlike the circumstances in Bryant, the prosecutrix’s testimony in this case presented a clear and convincing description of events, all of which established defendant’s guilt beyond a reasonable doubt. As we have noted, significant aspects of prosecutrix’s testimony were corroborated by other of the State’s witnesses. Discrepancies pointed out by the defendant are not sufficient to create a reasonable doubt of his guilt. In light of defendant’s complete denial of the change and, indeed, his denial that the prosecutrix had even entered his apartment, the testimony presented a question of the witnesses’ credibility rather than sufficiency of the evidence of convict. Since it is well-established that the credibility of the witnesses is a matter best left to the determination of the trial court (People v. Novotny (1968), 41 Ill.2d 401, 412, 244 N.E. 2d 182), our review of the entire record does not disclose any reason to reverse its finding.

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

Judgment affirmed.

HAYES, P. J., and LEIGHTON, J., concur.

         The name of the 14-year-old prosecutrix has been omitted.

       Defendant’s post-trial motion for acquittal, etc., did not specify this as error.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Freddie Dowery, Defendant-Appellant.
    (No. 58392;
    First District (5th Division)
    May 3, 1974.

      Modified on denial of rehearing June 11, 1974.

    James J. Doherty, Public Defender, of Chicago (Saul H. Braunde, Assistant Public Defender, of counsel), for appellant,

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

Defendant appeals from the revocation of his probation, alleging that the trial court erroneously admitted certain evidence at the probation revocation proceeding.

While on probation following a conviction for armed robbery, defendant was arrested and charged with burglary. At the preliminary hearing on the burglary charge, Police Officer James Polk was the only witness. Prior to the officer’s testimony, defendant made a “preliminary motion to quash and suppress.” The record does not contain a written motion, and it is not clear from the report of proceedings exactly what defendant sought to quash and suppress. On appeal, however, both parties have treated it as a motion to quash the arrest and to suppress the items allegedly stolen in the burglary. Thus, it appears that the motion to suppress was made under section 114 — 12(b) of the Code of Criminal Procedure. Ill. Rev. Stat. 1973, ch. 38, par. 114 — 12(b).

Officer Polk then testified at the hearing on the motion that he and another officer made a daylight afternoon arrest of defendant, after observing defendant walking down the street carrying a bulky object wrapped in a red blanket and a lavender sheet. He was with another man carrying a plastic tote bag. The men ran into an alley and dropped the articles they were carrying. Only defendant was apprehended, and the police recovered the dropped items, including the tote bag and a component set. At the police station, defendant said that a friend of his had committed the burglary. Following the officer’s testimony, the court granted defendant’s motion to suppress, apparently on the ground that the search and seizure were pursuant to an illegal arrest. In their briefs, the parties assume that the motion to quash was also granted, although this too is not clear from the record. The matter was stricken from the call with leave to reinstate, and the State did not appeal from the suppression order.

A few days later a rule was. filed to show cause why defendant’s probation should not be revoked. At the initial hearing on the rule, defense counsel objected to the testimony of Officer Polk on the ground that the order of suppression issued at the preliminary hearing was binding on the court at the revocation proceeding. After argument of counsel, the court ruled the evidence admissible, relying on Federal court decisions holding that the exclusionary rule prohibiting the use of evidence illegally seized does not apply to probation revocation hearings.

Officer Polk then testified substantially as he did at the preliminary hearing. In addition, Sandrea Scott testified that the recovered articles had been stolen from her home after she left for work that day. Defendant, in his testimony, denied participating in the burglary and stated he met Junkie Slim shortly before the arrest and bought the component set (record player and records) from him for $25. As they were walking down the street, Junkie spotted the police and told defendant for the first time that the items were “hot.” Defendant admitted he told Officer Polk that others committed the burglary, and he was helping to carry items away.

After the hearing, defendant’s probation was revoked, and he was sentenced to a term of 2 to 4 years.

OPINION

I.

Defendant’s first contention is that the officer’s testimony was erroneously admitted at the probation revocation proceeding. He argues that because the State failed to appeal from the suppression order issued at the preliminary hearing, it may not proceed on the same evidence before another judge and re-try an issue already determined.

In support of this contention, defendant cites People v. Taylor, 50 Ill.2d 136, 277 N.E.2d 878, which held that where the State fails to appeal from the granting of a motion at a preliminary hearing to suppress evidence illegally seized, the State is barred from using that evidence at a subsequent trial. The State had the right to appeal the suppression order under Supreme Court Rule 604. (Ill. Rev. Stat. 1973, ch. 110A, par. 604.) However, it argues that its failure to appeal does not bar the testimony of the police officer involved in the arrest and seizure at a probation revocation proceeding.

Taylor is based in part upon section 114 — 12(b) of the Code of Criminal Procedure (motion to suppress evidence illegally seized), which states that the evidence suppressed “shall not be admissible in evidence against the movant at any trial.” (Ill. Rev. Stat. 1973, ch. 38, par. 114 — 12(b).) (Emphasis added.) The State suggests that a probation revocation hearing is not a “trial”, as contemplated in Taylor and in section 114 — 12(b). Initially, we note that the legislature refers to such proceeding as a “hearing” (Ill. Rev. Stat. 1971, ch. 38, par. 117 — 3; Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—4), and that the statutes relating to probation are now included under sentencing in the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—1 et seq.), and formerly were included under “Proceedings after Trial” in the Code of Criminal Procedure (Ill. Rev. Stat. 1971, eh. 38, par. 117 — 1 et seq.). At oral argument, defense counsel conceded that a probation revocation hearing is not a “trial.” We are of the opinion that such a hearing is not a trial within the meaning of section 114-12(b), and we find that the testimony of the officer concerning the illegally seized items is not prohibited by the law of this state.

II.

Defendant’s second argument is that the fourth amendment’s exclusionary rule prohibits the use of evidence at a probation revocation hearing after that evidence has been found to have been illegally seized. As we noted above, the record is not clear that the evidence was suppressed for this reason. However, since the briefs of both parties indicate this as being the ground for suppression, we shall decide the issue accordingly.

Under the exclusionary rule, relevant evidence illegally obtained by police is not admissible to prove the guilt of the victim. The accepted purpose of its application is to deter the police from illegal searches and seizures. (Mapp v. Ohio, 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684.) In this regard, it is possible that the extension of the exclusionary rule to probation revocation proceedings might further deter illegal police conduct. However, the supplemental deterrence that such an extension of the rule would afford is uncertain. An officer undeterred by the exclusion of evidence from a trial that might lead to a conviction is not likely to be deterred by the fact that unlawfully obtained evidence may not be used to revoke probation. Moreover, as in the case at bar, where an officer is unaware that the subject of a search is a probationer, the supplemental deterrence is virtually non-existent.

Against this uncertain deterrent effect, we must weigh the effect that exclusion of relevant, rehable, but illegally obtained evidence might have on the probation system. Probation is an integral part of this State’s statutory sentencing policy. Its purpose is to grant a defendant an opportunity for rehabilitation without incarceration. (People v. Henderson, 2 Ill.App.3d 401, 276 N.E.2d 372.) The rehabilitative goal, however, must be considered in light of the objective of protecting society by preventing the commission of offenses. A court sentencing an offender to probation takes a calculated risk that the offender’s rehabilitation will progress better and that society will be adequately protected by the offender’s return to the community under supervision. When it appears that the court’s confidence has been misplaced, prompt steps should be taken to consider the advisability of revoking probation. To prevent it from considering relevant and significant evidence concerning an alleged violation would impede the exercise of its discretion and perhaps undermine the attempt the legislature has made in the Unified Code of Corrections to assure the maximum input of information into the sentencing process. (See Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 4—1.) The possible unavailability of relevant evidence at the probation revocation proceeding might also result in a hesitancy to initially sentence to probation, which would be manifestly unfair to offenders and to society and might seriously interfere with the rehabilitative purposes of the criminal justice system.

In summary, we believe that under present circumstances the supplemental deterrence resulting from the expansion of the exclusionary rule to probation revocation proceedings would be minimal. The potential disruption of the probation system by an application of the rule could be substantial.

We note also that other courts have ruled on this question in both probation revocation cases and the analogous parole revocation cases, and they have all concluded that the exclusionary rule need not be applied to such hearings. See, e.g., United States v. Hill (7th Cir. 1971), 447 F.2d 817; United States v. Allen (N.D. Cal. 1972), 349 F.Supp. 749; United States ex rel. Sperling v. Fitzpatrick (2d Cir. 1970), 426 F.2d 1161; In re Martinez, 1 Cal.3d 641, 463 P.2d 734, 83 Cal. Rptr. 382, cert. denied, 400 U.S. 851, 27 L.Ed.2d 88, 91 S.Ct. 71.

In U.S. ex rel. Lombardino v. Heyd (E.D. La. 1970), 318 F.Supp. 648, aff’d (5th Cir. 1971), 438 F.2d 1027, after a Louisiana state court suppressed the use of evidence produced from a warrantless search, the same evidence was allowed in a probation revocation hearing. The Louisiana Supreme Court rejected the contention that the fourth and fourteenth amendments barred the use of illegally seized evidence to revoke his probation. On petition for writ of habeas corpus, the Federal District Court, E. D. Louisiana, refused to extend the fourth amendment’s exclusionary rule to probation revocation hearings, stating at page 650:

“I have no hestitation in stating that probationers are entitled to basic constitutional rights, including protection from illegal searches and seizures. [Citations.] The crux of the question posed here, however, is the extent of such rights. ‘[T]he federal constitutional rights of an accused in a criminal prosecution and the rights of an offender in proceedings on revocation of conditional liberty under parole or probation are not coextensive.’ Brown v. Warden, 351 F.2d 564, 567 ( 7th Cir. 1965).
In this case, Lombardino was afforded protection from the unlawful search and seizure when the marijuana was suppressed and the possession charge dropped. Lombardino’s right to be free from unreasonable searches and seizures’ was recognized to this extent.”

In United States v. Hill (7th Cir. 1971), 447 F.2d 817, 818, the court held the exclusionary rule does not apply to revocation probation proceedings. Quoting from Harris v. New York, 401 U.S. 222, 225, 28 L.Ed. 2d 1, 4, 91 S.Ct. 643, 645, where the Supreme Corut stated:

“Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.”

In addition, defendant contends that deterrence is not the only reason for the exclusionary rule. He argues that an important basis for the rule is the “imperative of judicial integrity” announced in Elkins v. United States, 364 U.S. 206, 4 L.Ed.2d 1669, 80 S.Ct. 1437. In discussing this principle, Chief Justice Warren explained that “Courts which sit under our Constitution cannot and will not be made party to lawless invasions of the constitutional rights of citizens by permitting unhindered governmental use of the fruits of such invasions.” (Terry v. Ohio, 392 U.S. 1, 13, 20 L.Ed.2d 889, 88 S.Ct. 1868.) (Emphasis added.) We note, however, that other decisions of this high court, such as Walder v. United States, 347 U.S. 62, 98 L.Ed. 503, 74 S.Ct. 354, United States v. Calandra, -U.S.-, 38 L.Ed.2d 561, 94 S.Ct. 613, and Brown v. United States, 411 U.S. 223, 36 L.Ed.2d 208, 93 S.Ct. 1565, indicate that some governmental use of illegally seized evidence is constitutionally permissible. In Calandra, no mention was made of this “imperative”, which led Mr. Justice Brennan to conclude in his dissenting opinion that the court has rejected the “imperative.” In view thereof, it appears clear that the “imperative of judicial integrity” is not an ironclad principle. Consistent therewith, it is our belief that the judicial integrity of probation revocation hearings is not impaired by permitting the court to examine all relevant evidence to determine whether a probationer has violated the conditions of his probation.

Finally, defendant relies on Silverthorne Lumber Co. v. United States, 251 U.S. 385, 64 L.Ed. 319, 40 S.Ct. 182. There, the Supreme Court held grand jury subpoenas to be invalid because they were based on knowledge obtained from illegally seized evidence. Mr. Justice Holmes, writing for the court, stated in dictum at page 392 that: “The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all.” The facts of the case at bar differ considerably from Silverthorne, where defendant had already been indicted and the subpoenas sought documents for use primarily at the criminal trial. The consequence of the court’s decision was to exclude the evidence from the subsequent trial. We note that subsequently in United States v. Calandra, supra, the Supreme Court denied the application of the exclusionary rule to grand jury proceedings and, in so doing, stated that the above quoted dictum of Justice Holmes in Silverthorne has been substantially undermined by later cases.

In conclusion, we believe that in the best interest of offenders and society, we should decline to embrace a view that would achieve a speculative and, under present conditions, a minimal advance in the deterrence of police misconduct at the expense of substantially impeding the sentencing system. Accordingly, we hold that, under the circumstances here, the constitution does not prohibit the use of illegally seized evidence at probation revocation hearings.

Defendant next contends that the State should have been barred from using the suppressed evidence by the doctrine of collateral estoppel. The doctrine states that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (Ashe v. Swenson, 397 U.S. 436, 443, 25 L.Ed.2d 469, 90 S.Ct. 1189.) We have held in this opinion that the exclusionary rule prohibiting the use of illegally seized items as evidence does not apply to probation revocation hearings. Thus, the question of the legality of the search and seizure was not an issue of ultimate fact at those hearings and, in view thereof, the doctrine of collateral estoppel does not apply.

Finally, defendant argues that he was placed in double jeopardy by the use of the suppressed evidence at the probation revocation hearing. We disagree, and we believe that the cases cited by the State are controlling.

In People v. Whittaker, 101 Ill.App.2d 432, 243 N.E.2d 467, the court held that although the defendant was acquitted of a murder charge, the occurrences that resulted in the murder could be considered at a probation revocation hearing. In People v. Kostaken, 16 Ill.App.2d 395, 148 N.E.2d 615, where it was contended on appeal from an order revoking probation that defendant had been placed in double jeopardy, the court held that one who is on probation is not in the same category as one charged by information or indictment. So, also, in People v. Kuduk, 320 Ill.App. 610, 51 N.E.2d 997, the reviewing court rejected defendant’s res judicata contention where, after he was acquitted of a manslaughter charge, the evidence of such charge was heard in proceedings to revoke his probation.

For the reasons stated, the revocation of defendant’s probation is affirmed.

Affirmed.

DRUCKER and LORENZ, JJ., concur.