text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Calvin Pepper, Defendant-Appellant.
    (No. 71-43;
    Third District
    — December 15, 1971.
    Bruce Stratton, of Ottawa, (John Barton, of counsel,) for appellant.
    James N. DeWulf, State’s Attorney, of Rock Island, (F. Stewart Meridan, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

This is an appeal from the circuit court of Rock Island County.

There is a great discrepancy between the defendant Pepper’s version of the factual situation in this case and that of the state. However, it is apparent that the defendant on July 26, 1970, returned to his home in Moline, Illinois, after a three day camping trip and at this time noticed that his motorcycle was missing from where he had left it in his front yard. After making inquiries of various neighbors concerning the motorcycle the defendant called the police but before they arrived the vehicle was discovered in the defndant’s back yard. After their arrival the police talked to the defendant, his girl friend, and a neighbor, one Danny Adams. At this time the police learned that Adams had told the defendant that earlier in the evening two members of the Grim Reapers, a motorcycle club, had been overheard plotting the theft of the defendant’s cycle. The defendant suspected that a member of the club, one John Young, had tampered with his cycle and he made statements to the effect that if the law enforcement officials wouldn’t take care of the matter he would. The testimony is in dispute as to whether at this time defendant was wearing a holster and a gun, or only the holster. Apparently the defendant carried a holster and a gun with him while he was on the camping trip. A deputy sheriff cautioned the defendant that if he found out that John Young had tampered with the motorcycle or had tried to steal it, they were to be notified and they would take care of the matter. After the law enforcement officials had left, the defendant, his girl friend, Adams, and another friend named Danny Brown proceeded to the home of John Young where a Grim Reapers party was in progress. The defendant was armed with a 22 Ruger Magnum revolver and Adams had with him a 32 caliber pistol. Sometime after the defendant’s arrival at the party another guest named SIdp Altemus was shot through the knee. The evidence regarding the shooting is in conflict in that the defendant claims that he was attacked by a number of the Grim Reapers and after being thrown to the ground and pummeled his gun was taken away from him and that he heard the shots as he fled from the scene of violence. The State’s testimony was to the effect that the defendant accused almost everyone present at the party of stealing his motorcycle and finally an argument ensued between him and the victim Altemus. The State’s witnesses testified that the defendant aimed his gun directly at the mid-section of the victim and when the victim attempted to knock the gun away he was shot in the knee. After the shooting the defendant called the police and upon their arrival told them that he had been attacked and beaten at the party. Subsequently an investigation was made and the defendant was indicted for attempted murder and aggravated battery. After trial by jury defendant was found guilty of aggravated battery causing great bodily harm and sentenced to a term of not less than two nor more than ten years.

A number of issues have been presented for review but we first direct our attention to the question as to whether or not the defendant was denied a fair trial because of improper remarks by the prosecutor in bis final argument to the jury.

In his closing summation to the jury the prosecutor repeatedly commented on the failure of the defendant to call Danny Adams as a defense witness. It was Adams who accompanied the defendant to the Grim Reapers party on the night of the shooting. Each time the prosecutor commented about Adams failure to testify he further implied that the defendant’s failure to call him was because his testimony would be adverse to that of other defense witnesses. The record discloses that during the trial Danny Adams was in the court room or in a corridor outside the court room and that the state had knowledge of his presence.

In the case of People v. Munday, 280 Ill. 32, 117 N.E. 286, our Supreme Court stated:

“To say that it was the duty of plaintiff in error, under the law, to produce witnesses who were equally accessible to the state, and who were supposed to be in possession of facts having a bearing upon the truth or falsity of the charge against him, would be placing a burden upon him that the law does not require or tolerate. Such a rule would be in conflict with the doctrine of the presumption of innocence.”

In People v. Rubin, 366 Ill. 195, 7 N.E.2d 890, the prosecutor over defendant’s objections was permitted to argue that the defendant did not produce his employees to testify because they knew the goods were “hot” and would not have anything to do with the matter. There was no showing that the witnesses were not as accessible to the People as they were to the defendant. Following the precedent in People v. Munday, supra, our Supreme Court held that an accused is under no duty to produce witnesses who are equally accessible to the state, since a contrary rule would be in conflict with the doctrine of presumption of innocence.

A situation analogous to those found in the Rubin and Munday cases appeared in People v. Smith, 74 Ill.App.2d 458, 221 N.E.2d 68, when the prosecutor in closing argument stated that the wife of the alibi witness could and would have been produced by defense if her testimony supported the alibi. Again there was no showing that the wife was not equally accessible to the state. The conviction of the accused was reversed and the court stated:

“Failure of defendant to call as witness those persons who are aware of facts material to question of his guilt or innocence creates no presumption of law that if witness were called adverse testimony would result unless it is manifest that it is within power of accused to produce such witness and witness is not accessible to prosecution.”

In People v. Williams, 40 Ill.2d 522, 240 N.E.2d 645, which was a murder case, the prosecutor in his closing statement and after a lengthy review of evidence concerning a gun which was never produced and the ballistics testimony with reference to the spent bullets and methods of identifying them stated to the jury: “I don’t believe for a second that this man’s gun will ever turn up. It can’t. He cant afford to have that gun ever turn up. And we all know why he can’t do that. We know why it hasn’t turned up. We know why Mr. Nical (ballistics expert) has not been allowed to look at it to compare slugs fired from it with slugs in these plastic bags before you.” The defendant contended that these statements were highly prejudicial to him and jeopardized his presumption of innocence and that they constituted a denial of his Federal and State guarantees against self incrimination. After examining a number of cases dealing primarily with the guarantee against self incrimination the court held:

“In the light of these cases it is our conclusion that though failure to call a witness or produce evidence may not be relied on as substantial proof of the charge, nonetheless, if other evidence tends to prove the guilt of a defendant and he fails to bring in evidence within his control in explanation or refutation, his omission to do so is a circumstance entitled to some weight in the minds of the jury, and, as such, is a legitimate subject of comment by the prosecution.” People v. Williams, supra.

It should be noted that in the Williams case the Supreme Court concerned itself with the question of self incrimination and the right of a defendant to testify. It should further be noted that in Williams the comments of the prosecutor were directed to defendant’s failure to produce a gun and the prosecutor acknowledged that the gun was not accessible to the State.

The State in the case before us interprets the Williams opinion as one which overrules the preceding opinion of People v. Smith. With this contention we cannot agree, but on the contrary hold that the cases of Mun-day, Rubin and Smith still reflect the law of this state concerning the defendant’s presumption of innocence and the prosecutor cannot shift the burden of proof in a case by commenting upon the defendant’s failure to call a witness when that witness is equally accessible to the State.

In the case before us the prosecutor not once but five times during closing argument called attention to the fact that an occurrence witness had not been called by the defendant and in the same final argument the prosecutor acknowledged that this witness was accessible and in fact was at times present in the court room. We believe that such remarks by the prosecutor under such circumstances constitute error.

The record discloses that in final argument the prosecutor further told the jury that if the defendant shot the victim accidentally he might still be guilty of aggravated battery but perhaps not attempted murder. The State concedes this remark was improper but contends that it was not of such magnitude to mandate reversal of the conviction in light of the court’s instruction regarding the charge of battery and the elements to be proven.

Also in closing argument the prosecutor told the jury that it was against the law for the defendant to carry a loaded gun and that further it was against the law for the defendant to try and find out who stole his motorcycle.

It may well be that individually these additional remarks made by the prosecutor in addressing the jury would not constitute reversible error. However, their cumulative effect could only be prejudicial to the defendant. The record discloses that considerable time was consumed by the jury in arriving at a verdict. The case went to the jury for deliberation at 4:30 P.M. on a Thursday. At 11:30 P.M. that night the jury was sequestered in a hotel. At 10:00 A.M. the following morning a motion for mistrial on the grounds that the jury was deadlocked was denied. Deliberations continued until 1:30 P.M., at which time a verdict was returned finding the defendant guilty of the crime of aggravated battery. We should make no assumptions or speculations as to what transpired in the jury room, but in view of the time consumed we know that the jurors did not find their task an easy one. Therefore the cumulative effect of improper and ill-advised remarks on the part of the prosecutor in his final argument to the jury cannot be lightly brushed aside. In the circumstances surrounding this case we hold such remarks to be error.

While we are not prepared to say, clear of error, the record would not support a finding of the defendant’s guilt beyond reasonable doubt, we do conclude, however, that the defendant is entitled to a new trial free from improper remarks on the part of the prosecution. (See People v. Smith, supra; People v. Gougas, 410 Ill. 235, 102 N.E.2d 152; People v. Lewis, 313 Ill. 312, 145 N.E. 149; People v. Newman, 261 Ill. 11, 103 N.E. 589; People v. Collins, 274 N.E.2d 77.) Having so concluded it is unnecessary for us to consider other issues raised by this appeal. Accordingly the judgment of the circuit court of Rock Island County is reversed and the cause is remanded for a new trial.

Reversed and remanded.

ALLOY, P. J., and DIXON, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ALLOY Mr. JUSTICE STOUDER,

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jimmie Lee Wilkes, Defendant-Appellant.
    (No. 70-32;
    Third District
    — December 16, 1971.

      STOUDER, J., concurring.
    Bruce Stratton, of Ottawa, (John Barton, of counsel,) for appellant.
    Louis R. Bertani, State’s Attorney, of Joliet, (Herman Haase, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Jimmie Lee Wilkes, defendant, was found guilty of the murder of Thomas Nelson (in the Circuit Court of Will County). Defendant waived trial by jury and, as a result of a bench trial, he was sentenced to the penitentiary for a term of not less than 35 nor more than 50 years. On appeal in this Comt, defendant contends that he was not proven guilty of murder since the proof showed instead that he was acting in self-defense. He also contends that the killing of Thomas Nelson was not murder in any event but only voluntary manslaughter since he was provoked by the deceased. Other issues are raised which will be discussed later in this opinion.

The evidence in the record indicates that on the afternoon of March 7, 1969, defendant entered a tavern in Joliet about 3:00 P.M. The owner of the tavern was there together with defendant’s mother, two encyclopedia salesmen and Thomas Nelson, a garbage collector. Nelson was a refuse hauler who serviced the tavern and was there at the time for such purpose. The mother of defendant performed cleaning duties at the tavern. The book salesmen, John W. Moore and a Mr. Bernstein, were attempting to make a sale of encyclopedias to defendant’s mother.

On the basis of the testimony of the owner of the tavern and John W. Moore, it appears that the defendant, who was intoxicated, entered the tavern and asked for a drink but was refused service by the bartender. Defendant then asked Nelson to buy him a drink and was again refused | after which defendant went to a table where the book salesmen were taUdng to his mother. There defendant “bummed” a cigaret from Moore and also asked Moore to buy him a beer. Nelson, who was playing a pinball machine nearby told defendant, “Sit down and shut up”. When defendant responded that he did not have to do so, Nelson invited him to go outside and stated, “I am going to whip your tail”. There were variations by the witnesses as to what Nelson actually had said but the effect was that defendant was invited by decedent to go outside the tavern. Defendant then left by the rear door of the tavern and Nelson walked out close behind. Only seconds expired before a shot was heard. Clayton, the owner, and Moore then came out and found Nelson lying on the ground a short distance from his truck which was parked on the east side of the building. He was bleading, and subsequent medical evidence disclosed that he had been struck by a buHet which had entered his jaw and passed down into his neck. Both witnesses testified they saw defendant walking away and that there was no other person in sight.

Defendant in testifying on his own behalf, stated that there had been a verbal exchange between Nelson and himself, and that he, the defendant, had gone out the back door to escape Nelson after the latter had threatened to “whip my ass”. He stated he was walking along the east side of the building intending to go to another tavern when Nelson came around the corner, called to defendant to stop and repeated his threat. When Nelson reached a point about 10 feet away, according to defendant, he reached into his pocket and withdrew a shiny object which defendant thought was a knife and started to come toward defendant, whereupon defendant drew his gun and fired a shot. De< fendant, as he was being cross-examined, stated that Nelson had a. “pretty big pocket knife”, and then denied that he had seen a knife with a curved blade, but stated that he had seen Nelson with a knife before that time and for this reason he had avoided arguments with the decedent. He admitted that he walked away from the shooting but claimed to have little memory about subsequent events.

Various prosecution witnesses, including Clayton (the tavern owner), Moore, police officers who came to the scene, and a medical attendant, aH testified that no weapons were found at the site of the shooting or on Nelson’s person or in his clothing. When a police officer questioned defendant immediately after his arrest, the officer stated that defendant was asked three different times to tell what had occurred outside the tavern. During the first two responses defendant made no mention of the deceased having a weapon but stated in substance that no words had been exchanged in the parking lot and that defendant had drawn his gun and shot Nelson as soon as he appeared. He stated he had done so because Nelson was “messing around with him”. In his third explanation, defendant said that Nelson was armed with a curve-bladed knife. On cross-examination during the trial defendant said he could not remember his conversation with the officer.

Even though the ultimate burden is on the State to prove that defendant’s act was criminal, since defendant admits having fired the fatal shot, evidence must be shown of circumstances justifying, mitigating or excusing his act, unless the circumstances were sufficiently manifest from the proof of the prosecution. (People v. McCreary, 29 Ill.2d 295.) Defendant contends that since his testimony standing alone and unrefuted in the record must be taken as true, the court should have found that he acted in self-defense. He also argues alternatively, that the court should have found that at the most, his belief that he was about to be attacked by Nelson was unreasonable, and that his subsequent crime could only be voluntary manslaughter rather than murder (Ill. Rev. Stat. 1969, ch. 38 par. 9 — 2(b)). This, however, is not the rule in this State where it has frequently been held that where a defendant’s statement is contradicted by facts and circumstantial evidence, the trier of fact need not believe the statement of defendant even though it is not directly contradicted by other eye-witnesses (People v. Warren, 33 Ill.2d 168; People v. Herron, 125 Ill.App.2d 18). The trial court emphasized that there had been no actual fight between the' defendant and the decedent; that defendant had not left the tavern to go out into the street where he would have been away from the problems but had gone through the rear door of the tavern to invite a conflict; and, also, by his own statement, the decedent was at least 10 feet away from him when he fired.

On the issue as to whether or not defendant would have been required to be found guilty of nothing more than voluntary manslaughter, it is obvious that this contention rests on the testimony that Nelson was threatening defendant with a knife when defendant fired the fatal shot. As we have noted, no such weapon was seen or found on or near decedent’s body even though two witnesses arrived at the scene immediately after the shooting. It is also noted, and probably was so noted by the trial court, that defendant failed to mention a knife or to claim self-defense until he described the occurrence to the police for die third time. Also, his trial description of the knife referred to differed materially from his pre-trial description. The court probably also noted that defendant left the scene without seeking medical assistance for the victim or reporting the incident to the police. The trial court necessarily found that defendant’s conduct indicated that there was no basis in the record for a finding of voluntary manslaughter based on the standards in par. 9 — 2(b) of the Criminal Code, supra. On the basis of a review of the record, it is apparent that the trial court was justified in rejecting the claim of self-defense. On the record made, the court had a sufficient | basis for finding defendant guilty of murder. People v. Slaughter, 29 Ill.2d 384.

Defendant also contends that the trial court erred in denying his motion for discharge under the terms of section 103 — 5 of the Criminal Code. (Ill. Rev. Stat., 1969 ch. 38.) This provision directs that an accused must be tried within 120 days after he is taken into custody for an offense. The record discloses that defendant was arrested on March 7, 1969, and held on a charge of attempted murder, but that after the victim died a week later, the charge was dropped and one of murder was substituted therefor. The trial was set for July 3, 1969. On that date, the State presented a motion for continuance of 60 days supported by an affidavit and a transcript of Moore’s testimony at the coroner’s inquest. The affidavit substantially averred that Moore had moved away from the city; that he was believed to be in California; that investigators were trying to locate him; that Moore’s testimony would produce evidence material to the case, particularly with reference to identification and the issue of self-defense; and that the State had not known of Moore’s departure until an attempt had been made to serve him with a subpoena. It was apparent from both the affidavit and the transcript that Moore could give evidence relating to the charge against defendant and the motion was allowed over defendant’s objections.

Section 103 — 5 referred to, provides for a continuance at the instance of the State if the court determines that the State has exercised, without success, due diligence to obtain evidence "material to the case” and that there are reasonable grounds to believe that such evidence may be obtained at a later date. In such event the court could continue the cause on application of the State for not more than an additional 60 days. Defendant agrees that the granting of the application is within the discretion of the trial judge (People v. Wollenberg, 37 Ill.2d 480; People v. Poland, 22 Ill.2d 175.) Defendant, however, contends that there was an abuse of discretion for the reason that the evidence sought by the State, viz. The testimony of Moore, did not meet the statutory condition that it be “material to the case". This is based on the premise that since Moore was a non-occurrence witness, he could not testify either as to defendant’s conduct or as to a state of mind. We do not agree with this contention. In People v. Ruffin, 406 Ill. 437, 443, the Supreme Court stated that “in a criminal case the material facts are the final essential elements of the crime, being the ultimate conclusion of fact from every variety of evidence tending to establish them”. Obviously, therefore, any evidence tending to establish the ultimate facts would be “material to the case” which is all that Section 103 — 5(c) requires. It was apparent from the affidavit and transcript that the trial court find that Moore could give evidence tending to establish that a homicide had occurred and that defendant had committed it, and even defendant’s own reliance on part of Moore’s testimony to aid his claim of reasonable fear and self-defense, indicates that the evidence given by the witness was in fact “material to the case”. It is clear, therefore, that the continuance was properly granted and that the court did not err in denying defendant’s motion for discharge.

While witness Moore was being cross-examined, it was disclosed that he had talked to the State’s Attorney on an occasion prior to the trial. No stenographer was present, but, according to the further testimony of Moore, a tape recorder was employed into which the State’s Attorney would speak, after Moore had been asked and had answered a question. In describing the procedure Moore said, “He would ask a question and I would give an answer and then he would repeat the answer and record it”. When this was shown, defense counsel made a request that he be furnished with a copy of the transcript of the tape for possible impeachment purposes. The prosecutor objected, however, arguing that the tape did not contain verbatim answers of the witness but rather a summary of the answers as dictated by the prosecutor. A transcribed copy of the tape was submitted to the court for inspection and the prosecutor stated specifically that he did not believe that he handed the memorandum to Moore or that Moore had ever read it. Moore had never signed it. The prosecutor stated that he utilized the procedure instead of writing down notes. He asserted that it was not a statement that is verbatim in any way. The court stated, “No, it is a narrative statement. I will deny the motion”.

While we do not have the tape or memorandum subscribed therefrom before us, it is our opinion, based on the record and applicable authorities, that a copy of the memorandum should have been made available to defendant for impeachment purposes. This principle has been recited to be based upon a “right sense of justice” and as stated in People v. Allen, 47 Ill.2d 57, 59:

“The prosecution on demand is required to furnish an accused for possible impeachment use specific statements in its possession or control which were made by a State’s witness, which have been shown to exist and which are in the witness’ own words or substantiaUy verbatim.”

This obligation extends to police reports and even interdepartmental records (People v. Cagle, 41 Ill.2d 528; People v. Golson, 37 Ill.2d 419). Since People v. Wolff, 19 Ill.2d 318, 327 (where the guidelines for the application of the rule were laid down), it has been settled that where no privilege exists and where the competency or relevancy of a report have been established, the trial judge has no discretion in the matter but must “order the document delivered directly to the accused for his inspection and use for impeachment purposes”. The principle in such case is that the value or lack of value of such document, report or statement is to be determined by the accused and not by the prosecutor (People v. Allen, 47 Ill.2d 57, 60).

The State makes no claim that the memorandum was privileged, incompetent or irrelevant but contends simply that no statement was shown to exist for the reason that the memorandum was a summary of the words of the prosecutor, rather than a statement consisting of specific questions put to Moore and his answers thereto. A comparable argument was advanced in People v. Allen, supra, and was rejected. In that case the police officer testified that he had made a written report of the incident which led to the defendant’s arrest, the report being in form of a complaint sheet upon which the officer had written a summary of what had occurred at the time of the arrest. The trial court ruled that the defense was not entitled to a copy of the report, and, in seeking to sustain the ruling, the State argued that the report was but a “police blotter” notation and not a statement capable of being used by the accused for impeachment purposes. In the Allen case (as was also true in the instant case), the record on appeal did not disclose the content of the report, but the Supreme Court disposed of the State’s contention by saying, “We are not aware of any de minimis rule, so to speak, regarding statements, which the State’s argument suggests. Thus, even if the statement or report of the officer was not precisely as his testimony indicates, the defendant had a right to examine the report the State deprecates here. The trial court should have directed its production.”

We find no basis for a different result here. The content of the memorandum was such that we can see no distinction between the summary of a police officer setting forth the incidents of an arrest and a summary by a State’s Attorney or Assistant State’s Attorney of a statement by a prospective witness. As stated in People v. Wolff, 19 Ill.2d 318, 323, an accused may properly make a demand for “specific statements which have been written by the witness or, if orally made, as recorded by agents of the government”. Under the circumstances, we believe that the trial court should have ordered its production.

In our analysis of the effect of the denial of the request for production of the memorandum, however, we feel that defendant was not so prejudiced by the court’s refusal as to require that the judgment of conviction be reversed in this case. In determining whether the erroneous exclusion or admission of evidence requires reversal, courts of review will look to the entire record to see if the rejected evidence could reasonably have affected the finding of the trier of fact, and will refuse to disturb a judgment where guilt is shown beyond a reasonable doubt or where, upon the evidence, a different result could not have been reached. (People v. Wolff, 19 Ill.2d 318, 328; People v. Pelkola, 19 Ill.2d 156, 162 — 3.) The important aspects of Moore’s testimony related to the verbal exchange between defendant and decedent inside the tavern; to the absence of a weapon on or near decedent’s body immediately after the shooting; and to the circumstance that defendant walked away from the scene. As to each of these matters, Moore was corroborated by Clayton, the tavern owner, who was unimpeached, and on the important question of whether a weapon was found on or near the decedent, the testimony of both Moore and Clayton was further corroborated by testimony of police officers and the medical attendant. The testimony of defendant on the same subject was weakened by his failure when first questioned by police, to mention that decedent was armed or to claim he had acted in self-defense. We also note that Moore’s testimony at the coroner’s inquest, which is in the record before us, was completely consistent with his testimony at the trial. Under all the circumstances, and in view of the nature of the bench trial from which this appeal is taken, we think it improbable that anything contained in the refused memorandum would have cast doubt on Moore’s veracity or have served to produce a different result in the case. We note that the trial court, in fact, looked at the memorandum at the time it ruled on its admissibility.

Defendant likewise asserts on appeal that the sentence of 35 to 50 years is excessive under the circumstances of the case. When a claim of this nature is made in a court of review it has been the policy of the court not to disturb such sentence unless it is greatly at variance with the spirit and purpose of the law, so that the penalty is manifestly in excess of the proscription of the Illinois Constitution, which requires that all penalties shall be proportionate to the nature of the offense. (People v. Fox, 48 Ill.2d 239; People v. Taylor, 33 Ill.2d 417.) Here defendant was found guilty of one of the most serious crimes against society resulting in the killing of a human being. The trial judge, who was in the best position to determine the punishment to be imposed, was confronted with the record which gave no convincing or satisfactory support to defendant’s claim of justification and self-defense. Under the circumstances, we do not believe we would be justified in stating that the sentence was improper, particularly since it was well within the limits imposed by statute and there is nothing to indicate that it was the result of any bias, prejudice or abuse of discretion. People v. Fortson, 110 Ill.App.2d 206.

For the reasons stated, the judgment of the Circuit Court of Will County is affirmed.

Judgment affirmed.

DIXON, J. concurs.

Mr. JUSTICE STOUDER,

concurring:

I agree with the result reached in the majority opinion and with most of the reasoning supporting such result. With respect to the statement in the possession of the State’s Attorney relating to pre-trial statements of the witness Moore which the majority hold should have been produced for inspection, it is my opinion that this court on its own motion should have ordered supplementation of the record by including such excluded statement before determining either the propriety of the exclusion, or, in particular, whether or not prejudice resulted. There seems to have been some confusion of counsel in this case as to how the excluded statement should have been presented for review and the absence of the statement as part of the record on this appeal presents problems which we have resolved on the basis of reconstruction and speculation rather than upon the document itself, the contents of which were unknown to defendant’s trial counsel and appellate counsel. As a guide to future controversies it seems to me that the defendant is obligated to make some effort to get excluded statements into the record thus enabling the court of review to more intelligently consider the dispute or to more properly assess the consequences of non-production.


author: Mr. JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Arthur Jones, Jr., Defendant-Appellant.
    (No. 70-79;
    Third District
    — December 16, 1971.
    Bruce Stratton, of Ottawa, (John Barton, of counsel,) for appellant.
    Louis R. Bertani, State’s Attorney, of Joliet, (Edward Garbiec, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

Defendant was found guilty after trial without a jury of the crime of rape and was sentenced to a term of not less than forty years nor more than sixty years in the state penitentiary. The only question raised on appeal is whether or not the sentence was excessive.

After trial and before sentencing hearing was had in mitigation, no testimony being offered by the State in aggravation. The abstract fails to disclose that defendant had any prior arrests or convictions.

Defendant presented two witnesses at the hearing in mitigation, his sister and a woman who lived with him for three and a half years who testified she was defendant’s common-law wife. They were living separate and apart at the time of the incident herein. Their testimony was meager and consisted in substance of nothing more than the fact that defendant underwent a change after the death of his brother some five months prior to the date the crime was committed. The common-law wife testified that after the incident he drank excessively and would forget what he did during these periods of intoxication. She also testified that he sustained a head injury and her testimony in a very general way suggested periods of amnesia. None of the testimony offered by the defendant in mitigation is of particular help to this court, nor could it have assisted the lower court in reaching a decision. The abstract fails to disclose that the defendant was either intoxicated or did not know what he was doing when the act was perpetrated. Counsel has omitted certain testimony from the abstract stating throughout that the same was not relevant to the matter on appeal. Ihis court must accept the conclusions of counsel.

The facts indicate defendant was forty years old and the complaining witness was eleven years of age. The record further shows that defendant was apprehended while committing the crime and penetration was observed by one of the officers. The facts clearly illustrate that the child resisted and the act was forcible and while physical injuries to the child were not of a severe nature, as counsel for defendant points out, it must be remembered that the defendant was apprehended while perpetrating the crime, thus possibly avoiding critical or more serious injuries.

Defendant’s theory is predicated on the proposition that the sentence imposed defeats the objective of rehabilitation.

In People v. Poff, (Ill.App.2d), 268 N.E.2d 58, we noted this court’s power to reduce sentence, such authority being specifically granted in Supreme Court Rule 615(b)(4), Ill. Rev. Stat. 110A, Par. 615(b)(4).

The punishment imposed in this particular case was within the limits prescribed by the legislature, rape being punishable by imprisonment for an indeterminate term of years with a minimum of not less than four years. Ill. Rev. Stat. 1967, ch. 38, par. 11 — 1(c).

In People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673, the Supreme Court held that where it is contended that punishment imposed in a particular case is excessive “this court should not disturb the sentence unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the proscription * * * of the Illinois constitution * * The court further went on to note that the power to reduce sentences imposed by trial courts where circumstances warrant “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.”

In People v. Nelson, 41 Ill.2d 364, 243 N.E.2d 225, the Supreme Court stated, “The burden of presenting mitigating circumstances in a record falls upon a defendant and it is he who must make a substantial showing in order to justify a reduction of sentence on review.” The court then noted the guide lines laid out in People v. Taylor, supra, and stated:

“This court has consistently approved the foregoing guide lines where the reduction of sentence by virtue of the rule and its antecedent statute has been directly raised.”

The court then noted:

“Obviously, in following the Taylor guide lines, the possibility of rehabilitation of a defendant is one of the factors which a trial judge should take into consideration. However, it does not follow that the trial judge must categorically have the record recite the rehabilitation potential’ of a defendant before him for sentencing.”

In the Nelson case the statute respecting hearings on mitigation and aggravation provides:

“For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.” Ill. Rev. Stat. 1965, Chap. 38, Par. 1 — 7(g).

As the Supreme Court noted in People v. Nelson, supra, the phrase “if any” contemplates the possibility of a waiver of hearing in mitigation by the defendant. Also, it connotates the necessity of the defendant producing evidence in mitigation. The evidence offered by defendant in this case constituted nothing further than an effort to excuse his conduct on the basis of intoxication. As noted in People v. Nelson, supra, the burden of presenting mitigating circumstances in the record falls upon the defendant and it is he who must make a substantial showing in order to justify a reduction of sentence on review. There was no substantial showing at the hearing on mitigation and the trial court, having seen the witnesses and heard tire testimony in mitigation, could have been less impressed with his testimony than is the Appellate Court in this review of the transcript.

The defendant argues that under the Model Penal Code and the Model Sentencing Act the offense of rape is a second degree felony and should carry a maximum sentence of ten years and that the minimum sentence should not exceed one-third of the maximum sentence imposed. While we have no argument with this proposition, neither the Model Penal Code nor the Model Sentencing Act have been adopted by the legislature, nor has the Supreme Court of the State of Illinois used either of the vehicles as a standard to be used in criminal cases. Rape is a heinous crime and the legislature saw fit to set the punishment to be meted out to offenders and so long as the court stays within the limits prescribed by the act, the Appellate Court cannot arbitrarily change the punishment. This is substantially what defendant requests. The lower court was far more knowledgeable of the facts and circumstances surrounding the case and of the defendant through observation of him while in court than this court could be when considering only the record.

As was shown in People v. Caldwell, 79 Ill.App.2d 273, 224 N.E.2d 634, and People v. Conway, (Ill.App.2d), 228 N.E.2d 548, the sentence is not as onerous as it may appear. Any minimum term of more than twenty years is treated as a twenty year sentence for the purpose of parole eligibility. Ill. Rev. Stat. 1969, ch. 38, par. 123 — 2(a) (3).

As noted in People v. Conway,

“With possible time credit for good behavior, the prisoner may become eligible for parole after eleven years and three months. There is then a wide spread between the minimum and maximum sentence that this defendant may serve. * * * (w)e feel that this flexibility is an aid to the parole board in making its determination as provided for in the parole laws of Illinois.”

For the reasons stated herein the judgment and sentence of the trial court are affirmed.

Judgment affirmed.

ALLOY, P. J., and STOUDER, J., concur.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Vernon Frazier, Defendant-Appellant.
    (No. 70-164;
    Third District
    — December 16, 1971.

      Bruce Stratton, of Ottawa, for appellant.
    Louis Bertani, State’s Attorney, of Joliet, (James Garrison, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant Vernon Frazier was convicted by a jury of the crime of robbery and was thereafter sentenced to a term of imprisonment of not less than five (5) nor more than eight (8) years in the penitentiary. Only two issues are raised on appeal, (1) whether the trial court erred in denying defendant’s motion for discovery hereinafter referred to and (2) whether the sentence was excessive.

Defendant was indicted on May 25, 1967, along with two other defendants Arthur Binns and Buford Wright. At the pretrial stage defendant’s case and the two companion cases were treated as consofidated. On June 16, 1967, the attorney for Binns moved for discovery of a list of prosecution witnesses, for a copy of any confessions of Binns, for a Hst of witnesses to any such confession, for a list of witnesses who testified before the Grand Jury, and for a view of all the physical evidence. This motion was granted by the court. Defendant’s attorney presented a ‘list of demands” which included demands for names of witnesses to be called by the State, any confessions of Frazier (and “all other statements”), a fist of witnesses to any such confession, aH physical evidence, and aU “notes, memos, and reports.” The court ordered the production of each of the items requested except the statements of Frazier other than confessions and “notes, memos and reports” not otherwise specified. The State also supplied defendant with a hst of all articles seized.

The case was then set for trial. On July 26,1967, the day of trial, Binns attorney moved by written motion for the foHowing relief:

“1. For a list of witnesses and their last known addresses of any and aU persons to whom any law enforcement officer of this County spoke concerning the charges filed against the defendant, Arthur Binns, who had knowledge of facts or revealed facts which were favorable to the defendant, Arthur Binns, in any one or more of the following ways:
A. Knowledge of the defendant’s whereabouts on the date of the aHeged criminal act;
B. Identified the defendant, Arthur Binns, on the date of the aHeged criminal act;
C. Identified any articles of tangible evidence which may be introduced at the trial hereof or which tend to prove the defendant’s innocence. * * * ”

Counsel for defendant oraUy moved to join in this motion and also to sever defendant’s case. The court granted the severance but denied the motion.

Although we had been suppfied with no abstract of record, it appears from briefs of counsel that the court apparently denied what the prosecution describes as defendant’s “catch-all” discovery motion for the reason that the court had granted the specific motions and the State had compfied with all such orders, and, also, because the case had been set for trial on the day the motion was made and appeUant had not notified the State of his intention to present such a motion and that the jury was ready and waiting. We note that appeUant was convicted four years ago. Notwithstanding this fact, he stiH does not state in this Court that there was or, in fact, could be any particular item of evidence which he believes would or should have been produced pursuant to his motion, nor does he suggest any such particular item which could have affected the result of the trial. Defendant has not suggested either the existence of any such evidence or its materiality, even assuming that it did exist. The precedents upon which defendant relies, emphasizes the two basic prerequisites for the refief requested notably, that such evidence which was requested, probably did exist, and that such evidence would be material.

Particular emphasis is placed upon Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. In that case, Brady and a companion had been sentenced to death for commission of the crime of murder. Although Brady had requested the prosecution to allow him to examine his companion’s extra-judicial statements, the State did not divulge a statement in which Brady’s companion admitted commission of the actual murder. This statement became known to Brady only after the trial. The Supreme Court affirmed a remandment of such case for retrial of the issue of punishment only (due to the court’s determination that the evidence would have been inadmissible with respect to the question of guilt, even if it had been known to Brady or his counsel prior to or during trial). In that case the court stated, “We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution” (10 L.Ed.2d 215, 218 — emphasis added). The court’s conclusion, therefore, emphasizes the actual existence of evidence which was withheld and, also, the requirement that such evidence be material. In a recent case determined in this Court, People v. Williams & Dorris (3rd Dist., 1971), Ill.App.2d — 271 N.E.2d 73.), we observed specificaUy (271 N.E.2d 73, 75): “We agree with Justice Fortas in Giles v. Maryland, 386 U.S. 66, 101 — 102, 87 S.Ct. 793, that it should be the duty of the State to voluntarily disclose material in its exclusive possession which would exonerate the defense, which the State would not affirmatively use to prove guilt and which it should not conceal.” We observed in the case referred to, that no such issue was involved. This is true in the instant case. There is no suggestion of any evidence which would be material or, in fact, that any such evidence exists. It appears that compliance was made by the State with respect to material specific items requested prior to the supplementary motion at trial time on behalf of defendant. On the basis of the precedents and in view of the record in this cause, and the discovery actually had, we do not believe there was any showing of prejudice by failure of the court to enter an order in response to the so-caUed “catch-aU” motion People v. Brown (1971), (Ill.App.2d), 267 N.E.2d 142.

On the question raised as to the sentence imposed upon defendant by the trial court, we note that the sentence is within the range authorized by statute (Ill. Rev. Stat. 1969, ch. 38, par. 18 — 1). We note from the briefs that defendant had been convicted of theft and placed on probation scarcely three months before his indictment for the offense of robbery. In the crime for which defendant was convicted in the instant case, great force was involved in the robbery. The victim was ‘Brutally assaulted” and there was evidence that a “very brutal crime” was committed, and that, according to the victim’s wife, the victim’s face looked like a “beef steak.” Under the facts and circumstances, therefore, we do not believe that we would be justified in modifying the sentence.

Accordingly, the conviction and sentence in this cause is affirmed.

Judgment affirmed.

SCOTT and DIXON, JJ., concur.


text:
    Board of Education, Community Unit School District No. 325, Plaintiff-Appellant, v. Board of Education, Special Charter School District No. 150, Peoria County et al., Defendants-Appellees.
    (No. 70-182;
    Third District
    — December 16, 1971.
    Leiter, Newlin, Fraser, Parkhurst & McCord, of Peoria, for appellant.
    Kavanagh, Scully, Sudow, White & Frederick, Davis, Morgan, & Witherell, all of Peoria, for appellees.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

Plaintiff filed an action for replevin of twenty school buses allegedly wrongfully detained by the defendant school district. The defendant school district subsequently leased the buses to defendant Peoria City Lines, Inc., a transit company. The plaintiff school districts are in Peoria County and the chain of events leading to this lawsuit started in November of 1964 when by referendum plaintiff’s predecessor in title, Richwood Community High School District No. 312, was annexed to the city of Peoria and by operation of law to the defendant, District No. 150, a special charter school district. Proceedings were commenced to prevent the automatic annexation of District 312 and while these proceedings were pending the school boards of Districts 312 and 150 entered into an agreement dated May 26, 1965, agreeing to the annexation of the greater portion of District 312 to District 150.

The validity of the procedure and the agreement was tested in court and we resolved that issue in favor of District 150 and finding that the annexation proceedings and the agreement were valid in Fuller et al. v. Board of Education of City of Peoria School District 150, 83 Ill.App.2d 147, 227 N.E.2d 553.

The May 26, 1965, agreement was entered into for the purpose of permitting this partial annexation of District 312 and provided for the joint use of the school buildings and grounds for the school year 1965-66. It called for the proportioning of expenses between the districts for the school year, the replacement of board members of District 312, the meeting of the two boards to determine boundaries, the rights of students to the continued use of the high school and other matters. It also required District 312 to deposit a resolution with an appointed escrow agent authorizing the annexation and further authorizing the County Board of School Trustees to deliver its deed “conveying all of the Richwoods Community High School buildings and grounds” to the defendant district. The agreement made no mention of personal property transfer. It should be noted that District 150 had no claim to the property until the end of the school year 1965-1966.

Plaintiff’s evidence in the case consisted of the placing of certificates of title issued by the Secretary of State showing the vehicles registered in the name of “Richwoods Community High School” and certain letters demanding District 150 return the buses to District 312. The record is devoid of any demand on the part of District 312 for any other personal property owned by it prior to the annexation proceedings. From the record it appears that the personnel of District 312 were subsequently employed by District 150 and so far as we can ascertain District 150 took over all of the facilities, including books, supplies and equipment, and assumed all of the obligations under contracts with teachers and other personnel.

A hearing by the lower court without a jury resulted in a finding by the lower court that the plaintiff was the owner of the buses in question but dismissing the cause on a finding that the defendants did not wrongfully take or wrongfully detain the buses.

On June 30, 1966, a few days after the decision of the circuit court in Fuller v. Board of Education, supra, which decision we sustained, the two school boards met informally at the request of District 150’s officers and the transfer of the facilities from District 312 to District 150 commenced. There was no formal ceremony connected with the proceedings, but on July 1 District 150 took over the operation of the schools formerly located in District 312. The meeting of the two boards was held to effect an orderly transition. It is noted that the buses were located in the school garage on real estate annexed into District 150.

Plaintiff’s case is predicated solely on the proposition that its predecessor in title, District 312, owned the buses and no transfer of them was legally made. The question raised by plaintiff’s theory is whether a school district does in fact “own” personal property in the strictest legal sense.

In People v. Deatherage, 401 Ill. 25, 81 N.E.2d 581, the Supreme Court said:

“The property of the school district’ is a phrase which is misleading. The district owns no property, all school facilities, such as grounds, buildings, equipment, etc., being in fact and law the property of the State and subject to the legislative will. [Emphasis added].”

Section 7 — 12 of the School Code of 1961 (Ill. Rev. Stat. 1963, ch. 122, par. 7) provides:

“Upon the close of the then current school year during which any school district is annexed to another school district under any of the provisions of this article the terms of office of the school directors and board of education members of the annexed school district shall be terminated and the school board of the annexing district shall perform all the duties and have all of the powers of the school board of the annexed district. The annexing district as it is constituted on and after the time of such annexation shall receive all of the assets and assume all of the obligations and liabilities, including the bonded indebtedness, of the original annexing district and of the district annexed. * * * ”

While it might be argued that this provision contemplates the annexation of an entire district and not to partial annexation, we feel that where, as here, all of the school facilities are located on the land annexed, this section of the statute is applicable where nothing to the contrary is shown.

It is noted that the preamble to the agreement between the parties of May 26, 1965, recited that the intent of the agreement was to carry out the wishes of the overwhelming majority of the citizens of District 312. The agreement was intended to facilitate the annexation and to conform with the wishes of the citizens in the district permitting certain areas that still wished, to stay out of District 150 and allowing the annexation of the rest. This was not and could not be an arms length transaction, for it was entered into by two boards each responsible to the citizens of the district and the state. When District 150 took over the buildings it must be presumed that they took over all the facilities necessary to properly operate the school. This included not only the buildings, buses, papers and books, but also the obligations of District 312 under their contracts with teachers and other personnel. Nothing in this record even suggests that District 150 did not take all personal property and assume all obligations of District 312.

In People ex rel. Dixon v. Community Unit School District #3, 2 Ill.2d 454, 118 N.E.2d 241, the Supreme Court there stated:

“The district owns no property. All school facilities * * * being in fact and law the property of the state and subject to the legislative will. The school district has no such proper right which it might be deprived in violation of * * * the state constitution. [Emphasis added].”

Under the principles set out in People v. Deatherage, supra, and Dixon v. School District, supra, plaintiff had no ownership to the buses in question as would authorize them to bring a suit for replevin and the order of the circuit court finding plaintiffs to be owners of the vehicles in question should be reversed and the order and finding of the circuit court that the plaintiffs are owners of the vehicles is reversed, but the order of said circuit court denying plaintiffs’ right to recover in this action is affirmed.

Reversed in part and affirmed in part.

ALLOY, P. J„ and STOUDER, J., concur.


author: Mr. JUSTICE GUILD

text:
    Paul Wexell, a minor by Richard E. Wexell, his father and next friend, Plaintiff-Appellant, v. Juanita Scott, et al., Defendants-Appellees.
    (No. 71-22;
    Third District
    — December 16, 1971.

      Donald Rumley, of Toulon, for appeHant.
    Barash & Stoerzbach, and Peel, Helming & Mathers, all of Galesburg, for appeHee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The father of Paul WexeH an eleven year old boy, filed suit against the Board of Education of School District 202, Knox County and against a teacher, Juanita Scott, aHeging that the teacher Juanita Scott humiliated, embarrassed, degraded and shamed the student by calling him “worthless, undependable, incompetent” and further that he was unfit to ever marry and that if he did, his chüdren would be ashamed of him. Plaintiff contended that he suffered great mental anguish, requiring the care of a physician as a result of this. The second count of the complaint against the Board of Education aUeged that the Board was negfigent in assigning Juanita Scott as teacher of the class; that it was negfigent in failing to remove her as teacher when the complaint was made, and lastly, that the school board was negfigent in failing to “take reasonable measures to safeguard the physical and mental welfare of the plaintiff.” The trial court upon motion of the defendants, dismissed the complaint and in a written opinion held that the complaint failed to state a cause of action.

The basic question presented to this court, as stated by the trial court is whether or not verbal abuse by a teacher to a minor student is actionable in a civü suit for damages.

Counsel for the plaintiff agrees with the contention of the defendants that the Tort Immunity Act (C 85 pps. 1-202, 1-206 and 1-207 IRS 1969) applies in the instant situation in the absence of wilful and wanton misconduct. Counsel also agrees that a teacher stands in loco parentis in the disciplining of children in the class room. The complaint herein does not aHege that the actions of the teacher were wilful or malicious, but counsel contends that her actions were an “intentional tort.”

The law in Illinois and in many, if not most, states is succinctly stated in City of Macomb v. Gould (1969), 104 Ill.2d 361, 244 N.E.2d 634: “We have no doubt of the right of a teacher to inflict corporal punishment in the process of enforcing discipline # * *. He may not

wantonly or maliciously inflict corporal punishment and may be guilty of battery if he does so. [citations].”

The question then becomes if a teacher may inflict corporal punishment does the same principle apply in the use of verbal chastisement? We think it does.

Without belaboring the term, we do believe that the teacher does stand in loco parentis, and in the absence of malice or wantonness, it may well be that disparaging comments about a pupil may be necessary and perhaps conducive to proper educational discipline. While we may not agree with the teachers choice of words of approbation, nonetheless there are but few students who in the course of their education have not been chastised by the teacher! And few indeed, who have not been belittled by their parents for their shortcomings. And as indicated above, the same applies during that part of the day where the teacher assumes the role of parent.

Counsel for plaintiff has cited and relies upon Knierim v. Izzo (1961), 22 Ill.2d 73, 89, N.E.2d as authority for the proposition that an action for damages will lie “resulting from the infliction of severe emotional distress.” While the court there recognized a “new tort,” one would be strained indeed to apply the principles therein stated to the instant case. In Knierim the court said:

“We conclude that peace of mind is an interest of sufficient importance to receive protection from the law against intentional invasion of the kind here involved. We hold therefore that the allegations that defendant intentionally caused severe emotional disturbance and nervous exhaustion by his threat to murder plaintiffs husband and the fulfillment of the threat states a cause of action.”

While the Supreme Court thus recognizes that severe emotional distress is actionable in certain cases, we feel that the court never intended to extend that principle to make a teacher liable for “scolding” her pupil. As pointed out in Knierim, at p. 85, one of the dangers in recognizing the principle there enunciated,

“It has not been suggested that every emotional upset should constitute the basis of an action. Indiscriminate allowance of actions for mental anguish would encourage neurotic overreactions to trivial hurts, and the law should aim to toughen the psyche of the citizen rather than pamper it. But a line can be drawn between the slight hurts which are the price of a complex society and the severe mental disturbances inflicted by intentional actions wholly lacking in social utility.”

The second count of the plaintiff’s complaint seeks damages from | the School Board for its negligence in assigning the teacher in question to the class, and its failure to remove the teacher from that class when a complaint was made as to her conduct. Plaintiff contends that if he cannot prevail against the teacher that the School Board should be responsible. With this we do not agree. As we have held that a teacher has the right to verbally chastise her pupil in the absence of alleged or proven malice or wantonness, a cause of action based on those actions against the employer of the teacher obviously must fail. For these reasons we affirm the judgment of the trial court.

Judgment affirmed.

SEIDENFELD and ABRAHAMSON, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Floyd Cutliff, Defendant-Appellant.
    (No. 71-121;
    Third District
    — December 22, 1971.
    Bruce Stratton, of Ottawa, for appellant.
    William K. O’Connor, State’s Attorney, of Cambridge, for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE SMITH

text:
    John B. Martin et al., Plaintiffs-Appellees, v. Kirby D. McCarry et al., Defendant-Appellant.
    (No. 11377;
    Fourth District
    — November 23, 1971.
    Danby & Dobbs, of Carlinville, (Stuart Dobbs, of counsel,) and Giffin, Winning, Lindner, Newkirk & Cohen, of Springfield, (Alfred F. Newkirk, of counsel,) for appellant.
    McGrady & Madden, of Gillespie, (Dennis McGrady, of counsel;) Wiseman, Shaikewitz & McGivern, of Alton, Reed, Armstrong, Gorman, & Coffey, of EdwardsviEe; (Harry Armstrong, of counsel;) Phelps & Russell, of Carlinville, (Carl E. Hasten, of counsel;) and Droste & Droste, of Mt. Olive, (Robert L. Droste, of counsel,) for appellees.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

This appeal results from the consolidation of suits involving multiple parties, multiple vehicles, multiple issues and multiple verdicts. The verdicts are seven in number. The issues in their ascending order are (1) were the cases properly consolidated; (2) were the verdicts returned by a single jury perverse or contradictory; and (3) if perverse or contradictory, are new trials in whole or in part mandated? Although the occurrence events involve collisions between a semi-trailer truck, a passenger bus and an automobile, the owner of the truck and its driver alone appeal.

The truck was proceeding in a northerly direction on Route 4 between the junction of Illinois routes 4 — 138 to his rear and the City of Gillespie ahead. It was a standard two-lane highway with the surface at least partially obscured by snow. Witnesses described the surface of the road in the vicinity of the accident as slippery, icy, snow-packed and established that the weather and road conditions were bad. This shoulder of the road on the west side of the highway is about three feet wide and the ditch on that side is three feet deep. The accident occurred around 6 P.M. on a January evening.

Proceeding in a southerly direction from the City of Gillespie was a work bus owned by the appellee Martin and operated by the appellee Fanning. Norbent, Beckley and Pernicka were passengers in the bus. As these two vehicles were approaching each other there was a double driveway on the east side of Route 4 into which the defendant Bartók, coming from the south in his automobile, entered after making a right-hand turn. The evidence would indicate that he pulled into the driveway, backed out onto the highway, saw the approaching traffic and pulled forward into the driveway again. The bus driver testified that he first saw the lights of the truck when it was about 500 feet south of the accident with each in its own lane of traffic. When he got within 250 feet of the accident, he saw that there was a car perpendicular to the highway headed east and blocking at least two and one-half to three feet of the northbound lane. This car never moved from the time he first saw it and it was always in that position until the accident occurred. He slowed down his vehicle, drove the bus partially onto the righthand shoulder so that the right-front single wheel and the rear-dual wheels were about three feet off the west edge of the slab and his bus was partially on the shoulder at the time of the collision. The oncoming truck during the last 100 feet or so of travel crossed into his lane and struck the left-hand side of the bus. He could not say whether or not it was skidding.

The truck driver, McCarry, testified that when he first saw the car on the road he applied his brakes and was 150 feet south of it traveling north. His truck started skidding and he saw some headlights in the other lane when he was south of the car. These lights did not change position. When he applied his brakes, the car was still on the road. The biggest portion of his lane was blocked. The car was headed more or less east and west. After he applied the brakes, his truck begin to slide so he let up on the brakes and applied them again and the truck jackknifed. At this time, the tractor portion of the truck crossed over to the other lane of traffic. At this time, he was probably 40 to 50 feet from the car. He kept sliding and slid into the car and went over into the southbound lane and hit the bus. When the tractor collided with the bus, the tractor was approximately three or three and one-half feet over the center line in the southbound lane. He stated it was his feeling that his truck went more out of control when the truck hit the car than it had been and that he was maybe two feet or so over the center line when the impact with the car occurred and then he skidded another foot or a foot and one-half into the bus after the truck hit the automobile.

The defendant Bartók testified that he pulled into the driveway and after stopping backed out onto the road. He could see lights coming from both ways and he figured they were about a half mile away. He asked his eleven-year-old son if he was on or off the road and the son said he didn’t know. Bartók pulled up another three or four feet and the son said o.k. He could not see where his automobile was in relation to the highway. Another son testified that he looked out the back window and could see some of the edge of the road off to the side and to the rear on the right side of his dad’s car. Another son testified that the back end of the car was off the road two or three feet. He did not think the truck would hit the car, but it did strike the right side of the car behind the right-rear door. The left-rear tire of the truck was touching the rear fender after the accident. The foregoing we think is a reasonably accurate portrayal of the occurrence events.

The three bus passengers sued the truck owner, the truck driver, the bus owner and the automobile driver and obtained verdicts only against the truck owner and its driver. The bus driver sued the truck owner, its driver and the automobile owner and obtained a judgment against the truck owner and the truck driver only. The bus owner sued the truck owner, the truck driver, and the automobile driver and obtained a judgment against the track driver and the truck owner only. The track driver and the truck owner obtained a judgment against the automobile owner in their suits against the automobile owner, the bus driver and the bus owner. The automobile owner does not appeal from the judgments against him. The truck driver and the truck owner each appeal in all cases where verdicts were entered against them. It is their position that the consolidation of the cases for trial was error and resulted in a loss of substantial rights, that the jury was erroneously instructed as to damages in the bus driver’s suit against them and that in any event the court ought to order a remittitur of $15,000 of the bus driver’s judgment against them.

Apparently everybody acquiesced in consolidating the cases for the purpose of depositions. The trial court ordered the consolidation of the cases for trial at the pretrial conference. Under our statute, Ill. Rev. Stat. 1969, ch. 110, par. 51, actions pending in the same court may be consolidated “whenever it can be done without prejudice to a substantial right”. Such consolidation is a matter within the discretion of the trial court and unless that discretion has been abused, a reviewing court will not interfere. (Lumbermens Mutual Casualty Co. v. Poths, 104 Ill.App.2d 80, 243 N.E.2d 40; Black Hawk Motor Transit Co. v. Commerce Com., 383 Ill. 57, 48 N.E.2d 341; City of Chicago v. Atkins, 19 Ill.App.2d 177, 153 N.E.2d 302.) Apparently that discretion is measured by a determination of whether or not substantial rights will be prejudiced if the consolidation takes place. (Peck v. Peck, 16 Ill.2d 268, 157 N.E.2d 249.) The appellants do not seriously question this proposition, but rather contend that consolidation does not authorize a jury to return verdicts which are diametrically opposed to each other nor does it justify a trial court in refusing to grant a new trial when such a result obtains under consolidation. Cited in support of this position is Alabama Highway Express, Inc. v. Luster, 371 S.W.2d 182 (Tenn.); Milliken v. Smith, 405 S.W.2d 475 (Tenn.); Detrixhe v. McQuigg, 316 P.2d 617 (Okla.). These cases expressly repudiated Brown v. Parker, 233 S.W.2d 64, (Ark.) relied on by the trial court. Appellants insist that the court in Brown and the trial court here did not attach sufficient significance to a basic conclusive factor — only one jury is hearing the evidence and it cannot at the same moment believe that two totally irreconcilable and inconsistent facts exist. This rule does not obtain when separate trials are had before different juries. We think we should here point out that if the ultimate facts in this case are irreconcilable, inconsistent and diametrically opposed, it does not follow that the occurrence facts are irreconcilable, inconsistent or diametrically opposed. In short, as pointed out in the Milliken case, the rule is that the same jury on a single set of facts and circumstances cannot reach two different conclusions of facts as expressed in their verdicts which will support valid judgments unless these opposite, inconsistent conclusions are reconcilable under an applicable rule of law.

The court gave the following instructions:

“Although there is more than one defendant in this action, it does not follow from that fact alone that if one is liable, all are liable. Each is entitled to a fair consideration of his own defense and is not to be prejudiced by the fact, if it should become a fact, that you find against the others. The instructions govern the case as to each defendant, insofar as they are applicable to him, to the same effect as if he were the only defendant in the action, and regardless of whether reference is made to defendant or defendants, in the singular or plural form. You will decide each defendant’s case separately, as if each were a separate lawsuit.
The rights of the parties in these suits are separate and distinct. You should decide these as separate suits. But, the instructions given you apply to more than one party, they govern the case of each party to whom they apply.
If you find that a plaintiff is entitled to recover against more than one defendant, you may not allocate the damages among them, but you must return a verdict in one, single sum against all defendants whom you find to be liable.”

The abstract discloses no objection on the part of anyone to these instructions in the conference on instructions and it is crystal clear that the jury was instructed and directed by the court to treat each cause of action separately. All parties concede that this is obviously what would happen if there was a severance and all suits were tried separately. All parties likewise concede that under such circumstances on the same set of facts arising out of the same event seperate juries could return perverse and diametrically opposite verdicts. Strictly speaking, the jury in this case did exactly what they were told to do, that is, handle each case on a separate basis and this they did. These verdicts, say the appellants, lack rationality when the jury held McCarry, the truck driver, guilty of negligence as to the bus driver, bus owner and passengers and yet the same jury held that this conduct did not amount to contributory negligence in their suit by McCarry and Major, the truck owner, against Bartók. Bartók, of cornse, did not appeal and is thus not unhappy with the overall result.

The trial court’s able memorandum opinion did not follow the Tennessee and Oklahoma authorities cited above, but expressed what appears to us to be the majority opinion followed in the courts of Nebraska, Arkansas, Missouri, New Mexico and New Jersey. This view is rather effectively enunciated in 88 CJS Trial, § 6, which reads:

“The consolidation of cases for trial does not operate to make each and every party in one case a party in each of the consolidated cases. Every legal right is preserved to the respective parties as fully as if the cases had been tried separately. Each case retains its distinctive characteristics and remains separate in respect of docket entries, depositions previously taken in one cause, verdicts, findings, judgments, and all other matters except the one of joint trial * * * and the rights of the parties are the same as if the cases had been heard separately and at different times, and the judgment to which a plaintiff is entitled in either case is not affected.”

(Aragon v. Kasulka, 361 P.2d 719 (N.Mex.); Page v. Hamilton, 329 S.W.2d 758 (Mo.); Brown v. Parker, 233 S.W.2d 64 (Ark.); Koenig v. Frank’s Plastering Co., 227 F.Supp. 849 (Neb.); Maliauskas v. Public Service Interstate Transporation Co., 6 N.J. 269, 78 A.2d 268.) It is these cases which appear to be consistent with the Illinois Practice Act and in Black Hawk Motor Transit Co. v. Commerce Com., 383 Ill. 57, 48 N.E.2d 341, at p. 346, where our Supreme Court stated:

“Where several cases involve an inquiry into the same event in its general aspects, the cases may be tried together, but with separate docket entries, verdicts and judgments, the consolidation being limited to a joint trial * *

It seems clear to us that the trial court and all counsel pleaded the occurrences here as the “same event”.

There is unanimity of opinion among all parties that these verdicts were inconsistent, but that there was adequate evidence to sustain each verdict if the cases were tried separately. Even the appellants’ counsel would seem to concede this point for the simple reason that they appeal from the sufficiency of the evidence to support the damage awards and in the alternative insist on a remittitur. It strikes us that somewhere between Carlinville and Springfield the appellants have reversed their field. It was they who filed their suit against Bartók; it was they who argued that suit against Bartók; it was they who received a verdict in behalf of the truck driver for $1,500 and in behalf of the truck owner for $6,000; it is they who in their post-trial motions did not repudiate these verdicts nor ask for a new trial, but they ask only that those cases be retried where they have received adverse verdicts. Indeed they want to keep the benefit of the perverse verdicts in their suits against Bartók — and he acquiesces in this — but they now want to use those same gains as a basis for escaping their liability in the other five cases. It strikes us that there is more irrationality and injustice in reversing and remanding all of the cases than in affirming all of them. If the perverse and adverse verdicts nullify one, they nullify all. The appellants cannot have their cake and eat it too.

We think it can be said as pointed out in appellee Fanning’s brief that there is a rational basis for holding that these verdicts are not perverse or adverse. It is fundamental in a court action that “in order that there may be negligence or actionable negligence there must be a legal duty to exercise care in favor of the person injured or to protect such person from injury, and a breach of, or failure to perform, such duty.” (ILP Negligence, § 22.) Applying this rule, was Bartok’s duty to the truck owner and the truck driver different than any duty he may have owed to the bus passengers, the bus driver and the bus owner? It is significant that the jury completely exonerated the bus driver and the bus owner from either negligence or contributory negligence and under this evidence properly so. The bus driver violated no duty he owed to either his employer or to the occupants of his bus if the jury believed he did all that he could have done to avoid the accident. The jury likewise apparently believed from their verdict that Bartók breached his duty to McCarry and Martin by having his automobile too far into the roadway and a picture in the evidence indicates damage to the right-rear of the automobile. Considering all the circumstances, known road conditions and the presence of traffic, his action was not that of a reasonably prudent person. Thus, the jury rationalized that it was Bartok’s fault that McCarry and Martin were damaged. Indeed the appellants suggest that they were prejudiced because the jmy could well have found McCarry and Fanning not guilty of negligence so far as the bus owner and occupants were concerned.

There can be little argument but that the truck struck the automobile. The physical facts indicate just that and the picture of the car portrays it. It is not unreasonable to conclude that the jury decided that Bartók violated his duty to the truck driver and the truck owner by having his car stationary in the truck’s lane of traffic and that in so doing his conduct was not that of a reasonably prudent person. It then concluded that there was little or no way, road conditions considered, that the truck could have avoided hitting the automobile and that their damage was directly attributable to Bartók.

There was considerable divergence in the testimony concerning the track’s speed as it approached the automobile. Even though there was no way for the truck to miss the automobile, the jury might well have held that the truck driver was breaching his duty to others on the highway in driving too fast, in not seeing the automobile in time, or in not having proper control over his truck so as to keep it in his own lane of traffic. The evidence is undisputed that the truck was in the lane of traffic belonging to the bus and the several complaints so charged. When the truck crossed the center line then and invaded the territory belonging to the bus, the truck driver breached a duty to the occupants, the owner and the driver of the bus. We think that there is just reason for believing that the jury in this case sorted the wheat from the chaff and followed the precise instructions of the court with a degree of perspicacity and understanding for which it might properly be commended. Where different duties are breached in the same occurrence, different and what appears to be perverse verdicts may properly result. We think it clear that these verdicts were justified upon responsible evidence in this record and that they are not per se perverse or inconsistent. Only as to the passengers, the bus driver and the bus owner was the truck violating a duty to them by being in their lane of traffic. That breach of duty did not involve Bartók and hence was not contributory negligence as to him.

The appellants’ insistence that instructions No. 21 and 22 concerning future wage losses or possible future medical treatment are unsupported by the evidence we think is misapprehended. The medical testimony indicates the possibility or probability of an arthritic condition in the area of the fractures, a permanent diminution in gait, a permanent scar and a widening in the anide and leg area. Charles Fanning stated that he cannot walk with a normal gait, cannot run, cannot stoop unless he throws out his foot and he cannot perform simple physical tasks such as bowling. It should also be borne in mind here that Fanning was unemployed for about 20 months and was awarded $8,500 for wage loss during that period. We think there is sufficient evidence in this record to warrant the giving of the two instructions as to loss of future earnings. (Grissom v. Goad, 335 Ill.App. 120, 80 N.E.2d 380; Manzeske v. Yellow Cab Co., 322 Ill.App. 280, 54 N.E.2d 239; Redmond v. Huppertz, 71 Ill.App.2d 254, 217 N.E.2d 85; Blyzes v. Midwest Towing Co., 109 Ill.App.2d 48, 248 N.E.2d 305.) Under the authorities here cited, the damages of $40,000 ought not be disturbed by this court nor is there a basis for a remittitur.

Accordingly, the judgment of the trial court should be and it is hereby affirmed.

Judgment affirmed.

CRAVEN and TRAPP, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Ellis Hopkins, Defendant-Appellant.
    (No. 11438;
    Fourth District
    — November 23, 1971.
    Morton Zwick, Director of Defender Project, of Chicago, (Kenneth L. Gillis, of counsel,) for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, for the People.
   Opinion by

Mr. PRESIDING JUSTICE SMITH.


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gary Michaels et al., Defendant-Appellant.
    (Nos. 11474, 11475 cons.;
    Fourth District
    — November 23, 1971.

      Morton Zwick, Director of Defender Project, of Chicago, (John F. McNichols, of counsel,) for appellant.
    John S. Satter, Jr., State’s Attorney, of Pontiac, for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

The defendants, Gary Michaels and Danny Lee Crull, waived indictment and pleaded guilty to Information charging burglary. The defendants had burglarized a service station where they had each previously been employed. They took some $328 in cash and something less than $300 in checks, together with some rolls of coins.

The defendant Michaels was 18 years old at the time of the offense and had no prior criminal record other than an arrest for illegal possession of alcohol. Michaels filed a petition for probation. Probation was denied and he was sentenced to the Illinois State Penitentiary for a term of not less than 2 nor more than 5 years.

The defendant Crull was also 18 years old, had no prior criminal record other than traffic offenses. His petition for probation was denied and he was sentenced to a term of not less than 3 nor more than 10 years in the Illinois State Penitentiary.

We have consolidated these two cases for purposes of this appeal since the issues are essentially the same.

It is first urged that the trial court did not sufficiently admonish the defendants as to the nature of the charge nor did the court determine that the defendants understood the nature of the charge. It is further asserted on this appeal that the trial court abused its discretion in denying probation.

At the time of the oral argument and in view of the fact that the briefs of the People agree with the assertion that the punishment imposed by the court was excessive, counsel for the defendants indicated a waiver of the asserted error with reference to the admonishment in the event that this court accepts the recommendation of the state’s attorney that this cause be remanded with directions to the trial court to grant probation. The state’s attorney candidly stated that this court should vacate the penitentiary sentences and permit the defendants to be placed on probation, and further observed that the defendants had already served as much time as could be reasonably imposed as a condition of probation.

The defendants in this case were, as we have noted, 18 years of age at the time of this property offense. Neither had a prior criminal record. We find nothing in this record that could be construed as an aggravating circumstance warranting a denial of probation under the facts of the offense and the record of the offenders. See People v. McClendon, (Ill. App.2d), 265 N.E.2d 207.

The briefs of the People are thus treated by this court as a confession of error as to excessiveness of sentence and denial of probation. Such confession of error is approved. The convictions are affirmed. The sentences imposed by the trial court are vacated and the case as to each defendant is remanded to the Circuit Court of Livingston County with directions to grant the petitions for probation in the absence of a finding of aggravating circumstances subsequent to the sentences here imposed, and if probation is granted, to determine the length of the period of probation, and the terms and conditions thereof in accordance with the statutory provisions relating thereto.

Convictions affirmed; sentences vacated, and causes remanded with directions.

SMITH, P. J., and TRAPP, J., concur.