text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Matthew L. Montgomery, Defendant-Appellant.
    (No. 58764;
    First District (4th Division)
    July 10, 1974.

      James J. Doherty, Public Defender, of Chicago (Thomas Lipscomb, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jerald A. Kessler, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Matthew Montgomery, was charged in three separate complaints with unlawful use of weapons (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a)(4)), unlawful possession of a firearm or ammunition (Ill. Rev. Stat. 1971, ch. 38, par. 83 — 2), and failure to carry a City of Chicago Firearm Owner’s Registration Certificate (Chicago Municipal Code 1973, ch. 11.1, sec. 8). He was found guilty of all three charges on October 20, 1972, after a bench trial, and was sentenced to 1 year probation with the first 60 days to be served in the House of Correction.

The defendant urges this court that (1) his conviction on the city charge of failure to carry a registration certificate is void because an assistant State’s Attorney does not have the authority to prosecute for violations of a municipal ordinance, and (2) he was not proven guilty of knowingly possessing a concealed weapon beyond a reasonable doubt.

The record reveals that on August 26, 1972, Officer James Antonacci of the Chicago Police Department observed a disturbance on a Chicago Transit Authority bus. As he approached, several passengers were running off the bus and screaming. “There’s a man with a gun on the bus.” When the officer got on the bus one of the passengers pointed out the defendant. He saw the defendant put his hands in his pockets. As the officer approached him to question him he noticed a large bulge in his rear pocket which appeared to be a gun. He questioned the defendant and retrieved a loaded .32-caliber revolver from his rear pocket. The defendant did not have either a State Firearm Owner’s Identification Card or a City Firearm Owner’s Registration Certificate. The defendant told him that another person on the bus had put the gun in his pocket.

The defendant testified that he was on the bus with his wife and his friend, Oscar Coleman. He said that another passenger would not pay his fare and that he and the bus driver got into an argument over the fare and that the passenger put a pistol in the driver’s face. The passenger then came back and sat in the back of the bus. As the defendant was going off the bus that same passenger who had the pistol was behind him, and he “stooped over and went on around everybody else,” apparently placing the gun in tire defendant’s pocket. The defendant’s friend, Oscar, showed him that he had the pistol in his back pocket as the police officers began to question him. Oscar Coleman and the defendant’s wife substantially corroborated the testimony given by the defendant. In answer to the court’s inquiry Officer Antonacci testified in rebuttal that both the bus driver and another passenger pointed to the defendant as the man with a gun.

The defendant contends that the assistant State’s Attorney had no authority to prosecute the municipal offense of failure to carry a gun-registration certificate. The proper party to prosecute such offenses is the corporation counsel. We first note that the defendant made no objection to the prosecution of the city charge by an assistant State’s Attorney. It is a well settled rule of law that matters which are not presented in the trial court generally cannot be raised for the first time on appeal. (City of Blue Island v. DeVilbiss, 41 Ill.2d 135, 242 N.E.2d 761.) Moreover, the State’s Attorney’s jurisdiction is county-wide, and includes municipalities contained therein. (Ill. Rev. Stat. 1971, ch. 14, par. 5.) In the absence of a city attorney, the State’s Attorney was properly permitted to prosecute the city offense with the State offenses, at least where they both occurred at the same point in time.

The defendant also contends that he was not proven guilty beyond a reasonable doubt of the charges against him. In regard to the offense of unlawful use of weapons, it is urged that the evidence is not sufficient to establish that he “knowingly” carried a concealed weapon on or about his person. (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a)(4).) He argues that the act of possession itself does not necessarily prove a defendant guilty and that, “[wjhere acts or circumstances are attributable to either an innocent or a criminal cause, the innocent hypothesis will be adopted.” (People v. Lynn, 385 Ill. 165, 173, 52 N.E.2d 166, 170.) For the same reasons he claims that ownership of the weapon involved was not sufficiently established, thereby also necessitating a reversal of his conviction for unlawful possession of a firearm or ammunition and failure to carry a Firearm Owner’s Registration Certificate.

It is undisputed that the defendant was found to possess a loaded revolver concealed in his back pocket. The defense offered was that someone in the bus put it in his back pocket just before the police arrived. We note that this was a bench trial. It has often been stated that “[w]hen a jury is waived, it is the function of the trial court to determine the credibility of witnesses and, upon review, we will not disturb its findings in such respect unless it is plainly apparent that an injustice has been done or that a reasonable doubt of guilt exists.” (People v. Hyman, 24 Ill.2d 205, 208, 181 N.E.2d 65, 66.) Neither circumstance is apparent in this record.

We lastly consider a motion filed by the defendant on April 24, 1974, seeking modification of that part of his probation requiring him to serve the first 60 days in the House of Correction. The motion is based on section 5 — 6 — 3(d) of the Unified Code of Corrections which read, prior to amendment:

“The court shall not require as a condition of the sentence of probation * * * that the offender be committed to a period of imprisonment * # (Ill. Rev. Stat. 1972 Supp., ch. 38, par. 1005—6—3(d).)

The Unified Code became effective on January 1, 1973, and it applies to the instant appeal. (People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1; People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.) Although section 5 — 6 — 3(d) has been amended (see Ill. Rev. Stat. 1973, ch. 38, par. 1005—6—

The judgment of the Circuit Court is affirmed and the sentence modified.

ADESKO, P. J., and JOHNSON, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE HAYES

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clyde Gunn, Defendant-Appellant.
    (Nos. 57431, 59220 cons.;
    First District (2nd Division)
    June 25, 1974.

      Paul Bradley and Gordon H. Berry, both of the State Appellate Defenders Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

Defendant, Clyde Gunn, was tried before a jury for the offense of murder of Willie Butler in violation of section 9 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 1). The jury returned a verdict of guilty, the court entered judgment thereon, and sentenced defendant to a term of not less than 25 years nor more than 60 years in the penitentiary. Defendant appealed, Appellate Court General No. 59220. Subsequent to the murder conviction, defendant filed a post-conviction petition, which was dismissed by the trial court without an evidentiary hearing after arguments of counsel. Defendant appealed from this order, Appellate Court General No. 57431. Defendant’s direct appeal and his appeal from the order denying post-conviction relief have been consolidated for review.

I.

We will first consider defendant’s direct appeal. He contends (1) that the trial court erred in refusing to declare a mistrial when, during the course of the trial, articles appeared in certain Chicago newspapers relative to an attempt escape from the Cook County jail, in which articles defendant’s name was mentioned; (2) that the trial court erred in admitting evidence of another crime; and (3) that defendant was deprived of equal protection of the law because, since he was 17 years old at the time of the alleged offense, he had to be prosecuted as a male adult, whereas a similarly situated female of the same age could be treated as a juvenile offender.

Defendant filed a motion to suppress any statements, admissions, or confessions made by him. After the hearing of evidence, the trial court stated that in its opinion the statements, admissions, and confession were freely given by defendant and, therefore, the motion to suppress was denied.

At the trial, Jessie Smith testified that the deceased (Willie Butler), together with Willie’s brother Cornelius, Thomas Griffin, Jimmie D. Smith, Lucius Washington, and himself were on their way by automobile to the Twilight Tavern at 45th and Wentworth, Chicago, Illinois, after having worked the 4 P.M. to midnight shift at the Adolph Plating Company. Shortly after midnight they parked the automobile on Went-worth Avenue, about a block north of the tavern, and were walking south when they were met by two men going north. Defendant grabbed Jessie Smith from behind and struck him on the head with the barrel of an automatic pistol. He pulled Smith into a vacant lot where, at gunpoint, defendant took Smiths wallet, pointed the pistol at Smiths head and puHed the trigger three times, but the gun did not fire.

Cornelius Butler, brother of the deceased, testified that, when defendant grabbed Jessie Smith, defendant’s companion (Gregory Taylor) fired two shots, one of which hit his brother; that he ran when he heard the shots; and that, when he returned, he saw that his brother was dead. After the shooting, defendant and Taylor jumped over a fence and fled.

David Henson, a Chicago police officer, testified that, on 23 June 1967 at about 8 A.M., he arrested defendant at 4500 S. Wentworth Avenue, Chicago; that defendant was standing at the corner and fitted the description of a person wanted for murder; that he asked defendant to stop and come to the squad car, but that defendant turned and ran north in an alley off of Wentworth; and that he caught defendant and took him to the police station.

John Boyle, another Chicago police officer, testified that he interviewed defendant at the police station on 23 June 1967; that, after defendant had been advised as to his constitutional rights, defendant gave an oral statement which was subsequently reduced to writing and signed by defendant in the presence of an assistant State’s attorney.'

In the statement defendant said that, about 10 P.M. on 22 June 1967, he and Gregory Taylor stole a car; that they drove around for approximately two hours and then parked the car on 45th Street near Princeton (Princeton is 300 West, and Wentworth is 200 West); that they went into the aUey at 4400 South Wells Street, where Taylor took a jacket from in back of a garbage can; and that, as they walked back toward the car, Taylor pulled a sawed-off shotgun from underneath his coat and handed defendant an automatic pistol. Defendant further stated that, when he and Taylor were walking southbound in the middle of the 4400 block of Wentworth Avenue, they saw six men get out a car and walk toward the Twilight Tavern; that Taylor grabbed one of the men who was walking in the rear of tiie six and pulled him backwards and defendant then grabbed him; that defendant pulled the man into a vacant lot and was fighting with him; that at tire time defendant heard two shots from the shotgun; and that Taylor ran into the vacant lot where defendant was fighting with the man and said, “I had to shoot one of them.”

In the statement, defendant further stated that he and Taylor ran through a vacant lot and came out on Wells Street where he met a woman on the street (one River Lee Bully) and told her “this is a stickup” and tried to grab her purse; that the woman resisted and finally he grabbed her purse from her hand; that another woman came out of one of the houses on Wells Street and started screaming; that Taylor aimed the shotgun at her and shot one time, striking the woman in the face. Defendant said he and Taylor ran to the car which was parked on 45th Street near Princeton; that Taylor told defendant to get into the car and wait; that Taylor took the automatic pistol from defendant and went into the alley on Wells Street; that he came back in a few minutes without the guns. Defendant said that Taylor got in behind the wheel but could not start the car; that about this time the police were arriving on the scene; that Taylor jumped out of the car and started running and the police officers pursued him while defendant remained in the car; that, after the police left, defendant got out of the car and went in a different direction; that he went over to his grandmother’s house, and, on the next morning at approximately 9 A.M., he returned to 45th and Wentworth; that he lived at 4462 Wentworth; and that he was standing on the corner when the police squad pulled up and placed him under arrest.

The written statement of defendant was read into evidence by an assistant State’s attorney and exhibited to the jury.

At the trial defendant testified that on 22 June 1967 he worked from 6 A.M. to 3:30 P.M. at the Swift Lamb Sales and then went home; that about 11 P.M. that night he went to a park where he played basketball; that he left the park with Palmer Grimes about 12:30 A.M. on 23 June 1967; that he went to 47th and Calumet where he was approached by a woman who asked him for a date; that he went to her house in the middle of the block; that he took out $20 and she grabbed it; and that, when he tried to take it back, she cut him with a straight razor on the right wrist. Defendant said he left the house and walked to 47th and South Park and rinsed off his hand in a fountain; that he flagged down a paddy wagon; and that Police Officer Brumfield, the driver of the paddy wagon, took him to the Provident Hospital.

Defendant also testified that, after leaving the hospital, he spotted the woman and caught her; that they all went back to the hospital to treat the woman for a bruised knee; that then they went to the police station where he and the woman were questioned. Defendant also stated that he was released from the police station at about 8 A.M. in the morning and went home; and that he then left the house and went to the corner Where two police officers picked him up on the comer and put him in a paddy wagon. Defendant said River Lee Bully was standing at the ■squadrol; that the police officers drove to the “stockyard” where some ’officers beat him; and that then they took him to the police station. Defendant further testified that the statement was given under duress; that the statement was not correct in relating the events connected with the robbery and murder; that he had not been with Gregory Taylor on 22 or 23 June 1967; and that he did not “attempt to rob Jessie Smith and others on 45th and Wentworth” or River Lee Bully.

Police Officer Brumfield, a witness for the defense, testified that about 1 A.M. on 23 June 1967 he was on patrol in a squadrol when defendant stopped him at 47th and Calumet and said he had been attacked by a woman who took $20 from him; that defendant had a sharp incision across one arm which was bleeding slightly; that defendant was taken to the Provident Hospital for treatment; that he and defendant returned to 4640 Calumet where the defendant saw and caught the woman and brought her back to the squadrol and said she was the one who took his money and cut him; that they took her to Provident Hospital for a bruise on her knee; and that then they all went back to the police station where he was instructed to arrest both parties, one for prostitution and the other for patronizing a prostitute.

On rebuttal, Police Officers Crescenzo, John Boyle, David Henson, and assistant State's attorney Gertie testified as to the voluntariness of defendant’s statement. Also, George Evans testified that he was the office manager of Swift Lamb Sales, that the last date defendant had worked for Swift Lamb Sales was 19 May 1967, and that defendant did not work for the company on 22 June 1967.

It was stipulated that defendant was 19 years of age at time of trial.

Defendant argues he was prejudiced in the eyes of the jurors because of certain articles which appeared in the Chicago Tribune and the Chicago Sun-Times on the morning of the second day of trial. The articles covered an attempted escape by five prisoners who were housed in a security section of the Cook County Jail. According to the articles, the plan launched by one Gene Lewis and four other prisoners was to overpower the guards and hold them hostage to bargain for the prisoners’ release. The plan, although ultimately unsuccessful, was attempted on the afternoon of 25 March 1969, when defendant was being returned to his cell after the adjournment of his trial for the day. Defendant’s only connection with the incident was that he happened to be the prisoner who was in the custody of the two guards who were attacked when they opened the door to the cellblock. Counsel for defendant conceded that the only reference to defendant in the Chicago Tribune of 26 March 1969 was:

“Two more guards, James E. Hatcher and John Pearson, arrived with the prisoner Clyde Gunn, returning him from a court appearance in the Criminal Courts Building. When Hatcher opened the door to the maximum security section, Lewis grabbed him and struck him on the head with a length of chain.”

And that the only mention of defendant in the Chicago Sun-Times article was:

“Lewis planned apparently to wait until the guards changed shifts and attempt to get out of the building at that time, but when the guards John Pearson and James Hatcher arrived on the scene to return another prisoner, Clyde Gunn, who had just made an appearance in Criminal Court, Lewis hit Hatcher on the face with a length of chain but Pearson escaped and gave the alarm.”

The trial court stated:

“But neither one of the articles say nothing [sic] where Gunn had any activity in the escape, does it?”

To which counsel for the defendant answered:

“No, it does not exclusively say that, Your Honor. I submit, however, that the mention of his name in the [sic] connection with these articles is prejudicial.”

The trial court then interrogated separately each of the jurors under oath as well as the deputy sheriff who was in charge of the jury. Only three of the jurors had read the articles and had noticed defendant’s name, but commented that the articles only stated that defendant was in the custody of two guards and was being returned from the courtroom to the jail. These jurors, together with those jurors who had not read the articles, stated that they were not prejudiced against defendant and could give a just verdict.

The trial court denied defendant’s motion for a mistrial, saying there was nothing in the articles that would indicate that defendant was in any way involved in an attempted escape; and that he was satisfied from the interrogation of the jurors and that testimony of the bailiff under oath that “they are not prejudiced against the defendant.”

The law is clear that a defendant has the right to a fair and impartial trial, free of the influences of prejudicial publicity on the jurors. (Sheppard v. Maxwell, 384 U.S. 333, 16 L.Ed.2d 600, 86 S.Ct. 1507; People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208.) However, the mere mention of the name of defendant in the news media during the course of his trial does, not automatically establish prejudice to him. It is necessary that a showing be made, not only that the articles in question have come to the attention of the jury, but also that at least some of the jurors have been influenced or prejudiced to an extent where they cannot any longer be fair and impartial triers of the fact. (People v. Torres, 54 Ill.2d 384, 390, 297 N.E.2d 142.) The procedure followed by the trial court in the case at bar is analogous to that approved in People v. Pisarski, 6 Ill.App.3d 235, 285 N.E.2d 551, and People v. Lampson, 6 Ill.App.3d 1099, 286 N.E.2d 358, where it was held that the trial court did not abuse its discretion in refusing to grant the defendant’s motion for a mistrial grounded on allegedly prejudicial newspaper articles.

It is clear that in the case at bar the trial judge did not abuse his discretion in denying defendant’s motion for a mistrial. Each of the jurors was separately interrogated under oath and those who had read the articles not only stated that they were not prejudiced by them, but further stated that, as far as the escape was concerned, they felt it was clear that defendant was not involved. The newspaper articles clearly show that defendant was in no sense a part of the escape plot. The trial court made certain that defendant was not prejudiced by the newspaper articles and, therefore, it was not error to deny defendant’s motion for a mistrial.

Defendant also argues it was error for the State not to delete from the defendant’s written statement that he and Gregory Taylor stole a car about 10 P.M. on 22 June 1967, prior to the incident in which Willie Butler was killed. This .portion of defendant’s statement is directly contrary to defendant’s testimony on the trial when he denied that he had been with Gregory Taylor on 22 or 23 June 1967; and that he did not "attempt to rob Jessie Smith and others on 45th and Wentworth” or River Lee Bully. At the trial, defendant testified that he worked at Swift Lamb Sales until about 3:30 P.M. on 22 June 1967 and then went home; that about 11 P.M. he went to a park where he played basketball; and that he left the park with Palmer Grimes about 12:30 A.M. on 23 June 1967. It is the law that evidence relative to the main factual issue which serves to place the defendant in proximity to the time and place of tire offense and which tends to prove design, motion or knowledge, is admissible as an exception to the general exclusion rule barring evidence of other offenses. (People v. Manzella, 56 Ill.2d 187, 306 N.E.2d 16.) The recitation in the written statement of defendant to the effect that, about 10 P.M. on 22 June 1967, he and Gregory Taylor had stolen an automobile and had driven it around for about two hours and had then parked it on 45th Street near Princeton, served to place defendant in close proximity to the time and place of the offense and, therefore, the State was not required to delete these facts from defendants written statement. People v. Maldonado, 3 Ill.App.3d 216, 222-223, 278 N.E.2d 225.

Furthermore, the evidence in the case at bar overwhelmingly showed defendant guilty of the murder of Willie Butler. He was positively identified and the jury, in finding him guilty, could not have possibly been influenced to an extent warranting reversal by the fact that defendant stated that he and Gregory Taylor had stolen an automobile. People v. Manzella, 56 Ill.2d 187, 306 N.E.2d 16.

Defendant further argues that he was denied equal protection of the law in that he, as a male of the age of 17 years at the time of the offense, had to be treated as an adult, whereas if he had been a female of the same age he could have been treated as a juvenile offender. At the time the offense was committed the Juvenile Court Act applied to males under the age of 17 and females under the age of 18. (Ill. Rev. Stat. 1967, ch. 37, par. 702 — 7), and the Illinois Constitution of 1870 was in effect. Hence, People v. McCalvin (1973), 55 Ill.2d 161, 302 N.E.2d 342, is the controlling authority in which the same contention as that advanced here was rejected. We note in passing that, even under the Illinois Constitution of 1970, the result (i.e., the holding that defendant had not been denied equal protection of the law) would be the same. People v. Ellis (1974), 57 Ill.2d 127, 311 N.E.2d 98. It was not error to try defendant as an adult.

The judgment (appeal number 59220) should be affirmed.

II

In his post-conviction petition defendant alleged that he was denied counsel at the preliminary hearing; that he was denied the right to be confronted with the witnesses against him; that he was not advised of his constitutional right to have counsel attend the coroner’s inquest; that he received inadequate representation by court-appointed counsel; and that he was not advised of his right to appeal. However, the only issue argued on appeal from the dismissal of the post-conviction petition is that the caption of the report of compliance and the report of proceedings of the hearing on the post-conviction petition includes Indictment No. 67-2725, when no petition was filed as to that indictment. The State concedes that Indictment No. 67-2725 is not invloved in the present appeal; and that defendant should not be “precluded from filing a post-conviction petition as to Indictment No. 67-2725.”

From a reading of the record it is apparent that Indictment No. 67-2725 was not involved in the post-conviction petition and that the court reporter committed a typographical error when she included Indictment No. 67-2725 as a part of the caption of the report of compliance and the report of proceedings on the hearing of the post-conviction petition. Thet courts have held that a typographical or clerical error is a formal, rather than a substantive defect, which does not violate any constitutional right of the defendant. People v. Parr (1970), 130 Ill.App. 2d 212, 220, 264 N.E.2d 850; People v. Bates (1973), 9 Ill.App.3d 882, 890, 293 N.E.2d 358.

In light of the foregoing, the judgment of the trial court dismissing defendant’s post-conviction petition is affirmed with the explanatory holding that the post-conviction petition, the dismissal of which is hereby affirmed, related solely to the matters involved in Indictment No. 67-2713, and not at all to matters involved in Indictment No. 67-2725.

Judgments in case Nos. 59220 and 57431 affirmed.

STAMOS and DOWNING, JJ., concur.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alphonso Ford, Defendant-Appellant.
    (No. 58518;
    First District (4th Division)
    July 10, 1974.

      James J. Doherty, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The defendant-appellant was convicted of theft and battery in a bench trial arid sentenced to 1 year on each charge with the sentences to be served concurrently. In this appeal the defendant maintains that he was not proven guilty beyond a reasonable doubt and that the trial court erred in admitting improper hearsay evidence which prejudiced the defendant and prevented him from receiving a fair trial. The defendant also contends that it was error to convict and sentence him for both theft and battery when both convictions arose from conduct involving a single transaction.

The complaining witness, Barbara Hastings, testified at the trial that on August 29, 1972, she was a passenger in her mother-in-law’s car and that they were stopped at a red light at 251 North Western Avenue in Chicago. It was a little after 11 P.M. and the window on the passenger side was open. The complainant stated that someone struck her and stole her purse which was on her lap. The prosecutor asked the complainant if she saw the persons face and she stated, “As he was turned running away, I got like a side view.” The complainant did identify the defendant in court as the person who took her purse. She also testified that there were street lights near the intersection where she was located. On cross-examination the complainant stated she did not see the individual who struck her and took her purse approach the vehicle and that when she saw a side view of her assailant he was approximately 15 feet away. She stated she never saw a full view of her assailant’s face and although she gave the police a general description of the man, she did not particularize his facial characteristics. The complainant testified she saw the side view of her assailant for only a few seconds because he was running away.

The State called Investigator Kaplan who testified that he showed the complainant about nine photographs on September 1, 1972, and he was asked if she picked out a photograph at this time. The defendant’s counsel objected and stated, “I don’t see why the complaining witness wasn’t called on this if she picked out the photographs, why should the officer testify to what she did?” The prosecutor replied, “Defense can call her if they wish to examine her, they can call her as their own witness.” The objection was overruled and Kaplan was allowed to testify that the complainant picked out a photograph of the defendant. There were no further questions asked of Investigator Kaplan.

The defendant testified and stated that he was not in the vicinity of 251 N. Western on August 29, 1972, and that he had never seen the complainant before. The defendant denied ever striking the complainant or taking her purse and stated he was at home on the evening in question.

We are of the opinion that the trial court erred in admitting improper hearsay evidence which prejudiced the defendant. Officer Kaplan’s testimony that the complainant picked out a photograph of the defendant was hearsay. Evidence of this type is admissible only if the person who made the out-of-court identification is present, testifies to his prior identification and is subject to cross-examination. (People v. Keller, 128 Ill.App.2d 401, 263 N.E.2d 127 (1970).) In the case of People v. Smith, 105 Ill.App.2d 8, 245 N.E.2d 23 (1969), the complaining witness testified that after the robbery the police showed her some pictures and the prosecution developed the subject when the arresting officer testified that the complainant had picked out a photograph of the defendant. The court stated:

“The police officer’s testimony as to what Mrs. Mosely did by way of identifying Smith was error. People v. Reeves, 360 Ill. 55, 195 N.E. 443 (1935); People v. Wright, 65 Ill.App.2d 23, 212 N.E. 2d 126 (1965). His testimony went far beyond hers and obviously was offered to strengthen the identification and to prove the truth of the matter asserted in his testimony, that is, that Mrs. Mosely picked Smith out as the person who robbed her.” (People v. Smith, supra, at 12.)

In the case at bar the complainant did not testify as to her prior identification of the defendant. Investigator Kaplan’s testimony was obviously introduced to bolster the complainant’s in-court identification of the defendant and to prove the truth of the matter asserted in his testimony. It is significant to note that the only matter he was called to testify about was the out-of-court identification by the complainant.

The procedure used in the case at bar to strengthen the testimony of the complainant was error and it prejudiced the defendant. As stated in People v. Poole, 121 Ill.App.2d 233, 238, 257 N.E.2d 583 at 585 (1970):

“The fundamental purpose of the rule against hearsay is the exclusion from evidence of those out-of-court assertions whose real value cannot be determined because the source of the assertion cannot be cross-examined by the party against whom it is being offered. People v. Carpenter, supra; People v. Burks, 105 Ill.App. 2d 112, 245 N.E.2d 120; Wigmore on Evidence, § 1362 (3d ed., 1940). Hence it is the opportunity for cross-examination of the out-of-court declarant, whose assertion is being offered, that is the essential feature without which the assertion must be rejected. People v. Carpenter, supra; People v. Burks, supra. See, also Uniform Rules of Evidence rule 63 (1); Model Code of Evidence rule 503 (b).”

As stated previously, the complainant did not testify as to her out-of-court assertion and therefore, it was not subject to being tested through cross-examination by the defendant against whom it was offered.

The State has attempted to bring the instant controversy within the rule of People v. Keller, supra, by maintaining that the complainant was present and available and that the defendant could have called her as a witness for the defense. However, the Keller case requires that the de-clarant testify to his prior identification and be subject to cross-examination. In the instant case neither of these requirements had been met. While we agree that the defendant could have called Mrs. Hastings as a defense witness, it was not incumbent upon him to do so and in addition we fail to see how she would have been subject to cross-examination by the defendant as to her out-of-court identification even if he had chosen to call her.

The State also maintains that this evidentiary issue has been

waived by the defendant’s failure to submit a written motion for a new trial. However, no such motion is necessary when the case was tried before the court without a jury and the issue raised on appeal concerns the sufficiency of the evidence. As stated by our supreme court in People v. Tobin, 369 Ill. 73, 75-76, 15 N.E.2d 687, 688 (1938):

“It has long been the rule in Illinois, in civil cases, that in causes tried by a court without a jury a motion for a new trial is unnecessary to preserve questions of the sufficiency of the evidence. (Sands v. Kagey, 150 Ill. 109; Jones v. Buffum, 50 id. 277; Mahony v. Davis, 44 id. 288; Metcalf v. Fonts, 27 id. 110.) We said in Mahony v. Davis, ‘The judge having once passed upon the evidence, it was not necessary to go through the form of submitting it to him again by moving for a new trial.’ The same reasoning applies with equal force to criminal cases tried by the court without a jury, and, therefore, questions of the sufficiency of the evidence were properly preserved for review though no motion for a new trial was made.” (Accord, People v. Hoffman, 381 Ill. 460, 45 N.E.2d 874 (1942); People v. Morgan, 2 Ill.2d 360, 118 N,E.2d 19 (1954); People v. Johnson, 14 Ill.App.3d 254, 302 N.E.2d 430 (1973).)

In the case at bar the defendant’s attorney objected when the hearsay testimony of Investigator Kaplan was introduced and the court overruled the objection. Therefore, the trial court passed upon the evidence once and it was not necessary to go through the form of submitting it to him again by a motion for a new trial.

The State also maintains that the admission of Investigator Kaplan’s hearsay testimony is not reversible error because this was a bench trial and therefore, the presumption arises that the trial court only considered admissible evidence in reaching its decision. However, this presumption is overcome if it affirmatively appears from the record that the evidence was considered by the court. (People v. Grodkiewicz, 16 Ill.2d 192, 157 N.E.2d 16 (1959); accord, People v. Smith, 55 Ill.App.2d 480, 204 N.E.2d 577 (1965).) As stated in People v. De Groot, 108 Ill.App.2d 1,11, 247 N.E.2d 177, 181-182 (1968): In the case at bar the hearsay testimony of Investigator Kaplan was admitted over objection by the defense counsel. Therefore, we cannot presume that his testimony did not enter into the court’s consideration. The circumstances under which the complainant, Mrs. Hastings, viewed her assailant were less than ideal to produce a positive identification. The utilization of hearsay evidence to bolster the identification may have given the effect of corroboration and is prejudicial and reversible error. (People v. Wright, 65 Ill.App.2d 23, 212 N.E.2d 126 (1965).)

“Where an objection has been made to the evidence and overruled, it cannot be presumed that the evidence did not enter into the court’s consideration. The ruling itself indicates that the court thought the evidence proper. People v. Reed, 287 Ill. 606, 122 N.E. 806 (1919).” (Accord, People v. Stewart, 130 Ill.App.2d 623, 264 N.E.2d 557, (1970); Motykowski v. Motykowski, 4 Ill.App.3d 957, 282 N.E.2d 458 (1972).)

We are, therefore, of the opinion that the judgment of the Circuit Court of Cook County must be reversed and the case remanded for a new trial.

Reversed and remanded.

BURMAN and DIERINGER, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wilbur Wright, Contemnor-Appellant.
    (No. 58358;
    First District (3rd Division)
    July 3, 1974.

      Paul Bradley and Howard B. Augustus, both of the State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

MEJDA, J., took no part.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tummery Matthews, Defendant-Appellant.
    (No. 73-50;
    Third District
    July 11, 1974.

      Richard Steck, of the State Appellate Defender’s Office, of Ottawa, for appellant.
    Rafael Toruno, Assistant State’s Attorney, of Joliet, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant, Tummery Juan Matthews, was indicted for the armed robbery and murder of Lovell Lockhart. After a jury trial the defendant was found not guilty of armed robbery but guilty of murder. The Circuit Court of Will County sentenced him for a term of not less than 50 nor more than 100 years. Defendant appeals contending:

1. That the trial court erred in refusing to answer a question asked by the jury.
2. That the court erred in refusing a manslaughter instruction.
3. That the State failed to prove the defendant guilty of murder beyond a reasonable doubt.
4. That the court erred in admitting certain evidence.
5. That the sentence was excessive.

On February 6, 1972, a police officer stopped Tummery Matthews, the defendant, on Interstate 55. Because he had no driver s license, the officer arrested him. Matthews spent the night in the Will County jail, but his car was left on the shoulder of Interstate 55 where he had been stopped.

On February 7, 1972, defendant asked for and received a recognizance bond. Matthews went to a tavern to drink and to call his parents and his employer. He attempted to find a ride to his car but was only able to find a taxi driver who took him to a service station.

At the service station defendant met Lovell Lockhart, who agreed to take him to his car in the stations towtruck. After a stop at an auto parts store, the two men went to the car, arriving at roughly 6 o’clock.

The police found Lovell Lockhart dead of gunshot wounds at approximately 7:30 P.M. Lockhart’s body was sitting in the towtruck at the point on the freeway where Matthews’ car had been parked.

In the early morning hours of February 8, police arrested Matthews at his home in North Chicago, Illinois. Subsequently, the wallet of the deceased, the keys to the towtruck, a toolbox from the towtruck, an empty box for a handgun, and ammunition were found in his possession.

Shortly after his arrest, Matthews confessed to the killing and the police taped his confession. He stated that when he and Lockhart got to his car, the car was too cold to start until they sprayed a fluid on the engine. After starting the car they returned to the towtruck. Lockhart wanted $10 or $11, but Matthews had only $5. The two argued. Lockhart hollered and waved his hand in Matthews’ face. Matthews feared that Lockhart would attack him and he lost control and shot and killed Lock-hart.

At trial, defendant disavowed his confession stating that it was coerced. He testified that a second car and driver was parked in the vicinity of his car when he and Lockhart arrived there. He testified that Lockhart was alive when defendant left the area. He testified to the effect that various items of evidence were planted and explained that he never owned the gun which belonged in the gun box found in his possession.

The jury commenced deliberation at 3:35 P.M. At 9:30 P.M. the bailiff brought the judge a written question from the jury asking, “Did the testimony show if a police car or any other vehicle parked directly behind the tow truck.” The trial judge consulted with both prosecution and defense attorneys and then formulated his reply. He asked defense counsel if he had any objection to the answer to the jury. Defense counsel replied, “No Sir.” The judge then gave a written reply t<i the jury, “1 cannot answer your question. You must decide on the evidence you heard in court.”

Defendant on appeal argues that tire question submitted here should have been interpreted by the trial court as a request for a review of testimony presented during trial. We do not agree. The question was a simple one asking the trial judge to state his recollection of testimony. At the time of trial defense counsel did not regard the question as a request for review of testimony and he did not allege or argue the point in his motion for a new trial. Since the issue has not been properly preserved, it is deemed waived. (People v. Virgin, 9 Ill.App.3d 902; People v. Irwin, 32 Ill.2d 441, 443.) Moreover, the disposition of a jury’s request for a review of testimony is within the discretion of the trial court to allow or refuse the request for the review of testimony. (People v. Pierce, 56 Ill.2d 361, 308 N.E.2d 577.) An examination of the record and defendant’ s brief reveals no abuse of that discretion.

The defendant offered two voluntary manslaughter instructions and the court held there was no reasonable ground in the evidence for submission of voluntary manslaughter to the jury, and we agree.

The defendant’s claim to having acted while under an intense passion resulting from a serious provocation has no foundation at all. The testimony falls far short of the reasonable, adequate provocation required to reduce murder to manslaughter while in the heat of passion. The test is objective, not subjective. The inquiry is not as to whether this defendant was angry at someone or about something at the time he shot and killed the deceased. The question to be asked is whether there existed such provocation as would have caused the state of mind claimed in an ordinary person under the same circumstances. “A mere attempt of the deceased to strike defendant with his fist would not justify the latter in meeting the assault with a deadly weapon or reduce the grade of the homicide to manslaughter.” (People v. Pursley, 302 Ill. 62, 73.) Here such adequate provocation is entirely absent, and the request for submission of a manslaughter verdict was properly denied. There is no evidence that defendant was threatened with imminent death or great bodily harm, or the circumstances were such that he could reasonably believe that he was so threatened. The deceased brandished no weapon; neither in word or manner did he threaten the life or limb of the defendant. The words and actions of deceased were not the kind that would excite a sudden and intense passion in a reasonable person; they did not constitute the serious provocation required to reduce the killing to manslaughter.

Defendant has seized upon the words “mutual quarrel or combat” found in S.H.A., ch. 38, sec. 9 — 2, committee comments, emphasizing mutual quarrel. 4 Blackstone’s Commentaries (7th ed.) 191 is one of the citations given. The text of the citation is “As to the first, or voluntary branch: if, upon a sudden quarrel, two persons fight, one of them kills the other, this is manslaughter: * *

Passion on the part of the slayer, no matter how violent will not relieve him from liability for murder unless it is engendered by a provocation which the law recognizes as being reasonable and adequate. If the provocation is not sufficient the crime is murder. It is the general rule that language, however aggravated, abusive, opprobrious, or indecent, is not sufficient provocation to reduce a killing committed with a deadly weapon from murder to manslaughter. (People v. Marrow, 403 Ill. 69; People v. McMurry, 64 Ill.App.2d 248.) The rule does not apply where as a result of insulting or opprobrious words, the parties become suddenly heated, and engage in a mutual combat, fighting on equal terms, and death results from the combat. 40 Am.Jur.2d Homicide sec. 64.

The term mutual combat has been defined as one into which both parties enter willingly, or in which two persons, upon a sudden quarrel, and in hot blood, mutually fight upon equal terms. 15 C.J.S. p. 358.

A slight provocation will not be adequate since the provocation must be proportionate to the manner in which the accused retaliated and therefore if accused on a slight provocation attacked deceased with violence out of all proportion to the provocation and killed him the crime is murder. This is especially true if the homicide was committed with a deadly weapon. See 40 C.J.S. Homicide sec. 46, p. 908; Wharton’s Criminal Law and Procedure (1957), sec. 276.

The next contention of defendant is that he was not proved guilty of murder beyond a reasonable doubt, citing People v. Halley, 13 Ill. App.3d 719. In that case the element of justifiable self defense was at issue, the question being whether the decedent or the defendant shot first. Both defendant and an eye-witness testified that decedent first shot at defendant without provocation. The case has no application here. It is further argued that the evidence in the instant case failed to prove intent. The defendant’s own statement shows that he intentionally fired the gun. It is not necessary to show that he formed an intent to kill since there can be no question but that the natural tendency of this act would be to destroy life. In a situation such as this the criminal intent to murder may be implied from the character of the act. (People v. Gonzales, 40 Ill.2d 233, 242.) As was stated in People v. Kelley, 29 Ill.2d 53, 59, “The jury is not required to disregard the. inferences that flow normally from the evidence before it, (People v. Brown, 27 Ill.2d 23, 26) and neither the jury nor this court is required to conjure up hypotheses from the evidence that are inconsistent with the defendant’s guilt, and elevate these potential explanations to the status of a reasonable doubt. (People v. Russell, 17 Ill.2d 328, 331.) Where the evidence is in part circumstantial a conclusion that the defendant is guilty beyond a reasonable doubt need not follow necessarily from the proven circumstances, but may be obtained therefrom by probable deduction. (Gannon v. People, 127 Ill. 507.)”

We are of the opinion that there was sufficient evidence to support the jury’s verdict.

Defendant has filed a pro se supplemental brief in which he contends that People’s exhibit 5 was improperly admitted in evidence. In the instant case the decedent when on the way with defendant stopped at the Illinois Auto Parts Store and purchased a Victor Oil Seal from John Lind-berg.

John Lindberg testified that he had sold a Victor Seal to the victim and that exhibit 5 resembled the container of the oil seal. He further testified that a discrepancy between the serial number on exhibit 5 (46418) and the number on a receipt (47418) was due to his clerical error.

Benton Covey, a State police officer testified that on the night of the crime he went to St. John’s Hospital where he was met by Mr. Faith Percy who handed him exhibit 5 which had been found in the ambulance when decedent was taken to the hospital by Mr. Percy. The exhibit had a number written on it (VM 7689) which was the license number of defendant’s automobile. The officer testified that upon receipt of the box he had marked the same and he identified his markings in Court.

Mr. Percy testified, “That doesn’t look like the box to me, not that one” and further “I don’t recall any blue on it like that, and the number was written on in pencil #

The failure of Mr. Percy to make a positive identification of the box would not preclude its admissibility. Measured by any reasonable standard the continuity of possession of People’s exhibit 5 was sufficiently shown to entitle the exhibit to be admitted. A rule requiring not only that continuity of possession be established, but also that there be positive identification by everyone concerned, would impose an unnecessary burden, while it would not assure a fair trial to the accused. People v. Cain, 35 Ill.2d 184, 188, cert, denied, 385 U.S. 1042.

Defendant lastly contends that his sentence is excessive. The defendant had a prior conviction for voluntary manslaughter. The record shows that he had committed two homicides within a period of less than 4 years. The trial judge found that defendant had no redeeming features. “There are, unfortunately, in our society habitual offenders who are beyond the pale of redemptive treatment.” (Abernathy v. People, 123 Ill. App.2d 263, 271.) The trial judge made a sound determination of the punishment to be imposed and we will not disturb it. The judgment of the Circuit Court of Will County is affirmed.

Judgment affirmed.

SCOTT, P. J„ and ALLOY, J., concur.


author: Mr. JUSTICE RECHENMACHER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jack Leon Compton, Defendant-Appellant.
    (No. 73-317;
    Second District
    July 26, 1974.
   Opinion by

Mr. JUSTICE RECHENMACHER.

Ralph Ruebner and Richard Wilson, both of the Appellate Defender’s Office, of Elgin, for appellant.

Gerry Dondanville, State’s Attorney, of Geneva, for the People.


author: Mr. JUSTICE RECHENMACHER

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. John H. King, Defendant-Appellee.
    (No. 73-14;
    Second District
    July 29, 1974.
    John J. Bowman, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.
    John T. Perry, of Wheaton, for appellee.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

Defendant, identified as “an officer and agent for Basic Machinery and Engineering Co., Inc.,” was charged in two complaints with wilful failure to file income tax returns on behalf of that corporation for Illinois State income taxes withheld from employees for the period ending September 30, 1970, and December 31, 1970, respectively (in violation of Ill. Rev. Stat. 1969, ch. 120, par. 13 — 1301). Defendant’s motion to dismiss both complaints was allowed by the trial court on the grounds that similar charges against the defendant having been formerly dismissed due to the substantial insufficiency of the complaints for their failure to set forth any relationship of defendant with the corporation, the instant charges were barred by the provisions of section 3 — 4(a)(2) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 3 — 4(a)(2)).

The State appeals from the trial court’s dismissal of the complaints.

The sole question presented on this appeal is whether jeopardy attached to the former prosecution of offenses which had been dismissed because of a substantial technical defect in the complaint so as to bar this subsequent prosecution.

Section 3 — 4(a)(2) of the Criminal Code of 1961 provides as foHows:

“(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
(2) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution.”

In support of his contention the defendant points to the following portion of the Committee Comments on this section:

“Pre-trial determinations which should bar a second prosecution (§3 — 4(a)(2)) might involve such issues as time limitation on prosecutions, double jeopardy, pardon, immunity from prosecution, and the substantial insufficiency of the particular wording of the indictment.” (Emphasis added.) S.H.A., ch. 38, § 3 — 4, at 215 (1972).

We note, however, that the Committee Comments on this section include the following:

° a dismissal of a case, sometimes called an acquittal not on the merits, based on variance or defective indictment or information s * e is not a bar to a subsequent prosecution.” S.H.A., ch. 38, § 3 — 4, at 215 (1972).

In 22 C.J.S. Criminal Law § 246 (1961), it is stated: “the general rule is that, in order that jeopardy may attach, there must be a valid indictment # * *. So, where the indictment or information is so defective in form or substance that it will not support a conviction, it cannot form the basis of proceedings which will put the accused in jeopardy and bar another prosecution:”

In People v. Baze (1969), 43 Ill.2d 298, 300, the Illinois Supreme Court said:

“Dismissal of the original indictment * * * at defendant’s behest, for technical insufficiency * * *, is not tantamount to an acquittal; * #

See also People v. Somerville (1967), 88 Ill.App.2d 212, 216.

The trial court’s dismissal of the original complaints for technical insufficiency (and our affirmance thereof) was not tantamount to an acquittal. Therefore, the trial court erred in sustaining defendant’s motion to dismiss the subsequent complaint.

Judgment reversed.

GUILD and SEIDENFELD, JJ., concur.

       The earlier dismissal of the former charges was affirmed by us in People v. King (1972), 5 Ill.App.3d 357 (abstract opinion). We there held that defendant could not be held criminally accountable for the corporation’s failure to file State income tax returns where the complaint charged him individually as defendant, without naming him as officer of the corporation or setting forth any relationship he may have had with the corporation, and that the complaints were properly dismissed.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Andy Atkinson et al., Defendants-Appellees.
    (No. 73-87;
    Second District
    July 30, 1974.
    Patrick E. Ward, State’s Attorney, of Dixon, for the People.
    William J. Sturgeon, of Dixon, and Ralph Ruebner, of the State Appellate Defender’s Office, of Elgin, for appellees.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This is an appeal by the State from an order of the trial court at the prehminary hearing suppressing the oral and written statements of dq-> fendants Andy Atkinson and Chester Prescott given to the police after their arrest.

In an agreed statement of facts, it appears that police officers were investigating a burglary of a vacant Lee County residence. They went to the residence of Kendall Lee Piper where they obtained spousal consent to enter the Piper home and thereupon made a plain-view observation of numerous items of personal property taken from the burglarized residence. Defendant Piper was arrested without a warrant on November 14 and charged with burglary. Piper made an oral and written statement to the police which implicated the defendants Atkinson and Prescott as participating in the burglary. The defendants Atkins and Prescott were immediately arrested without a warrant and were taken to the Lee County jail where they too made oral and written statements relative to the burglary.

A motion to suppress the statements of Atkinson and Prescott, as well as Piper, was made, and the trial court found that defendant Pipers statements were voluntarily secured. However, the trial court found that the implication by Piper of the defendants Atkinson and Prescott as participating in the burglary “was not sufficient absent corroboration to merit a reasonable belief that probable cause existed to believe that they had committed the offense.” Accordingly, the oral motions of the defendants Atkinson and Prescott to supress their statements was granted.

The sole question presented to this court is whether an arrest without a warrant may be made based'upon the custodial statement of an accused where he advises the police of the names of the parties who participated with him in the crime.

Considerable confusion has arisen in recent years relative to the arrest and suppression of evidence obtained through “an informant.” Counsel for the defendant has cited a number of cases in this regard which we do not believe are controlling in the case before us. We believe that this situation is entirely different from one where information is supplied by “an informant” relative to a crime alleged to have been committed.

The defendants have stated “that a co-conspirators accusations cannot be treated with the same trustworthiness as those of an ordinary witness, the victim, or a non-participating witness.” This may well be true, but the test is whether or not the statement of a co-offender establishes probable cause for the arrest of the alleged participating accomplices. Counsel has further stated that there is “precious little law in Illinois dealing with this precise question.” With this statement we do not agree.

In People v. Roberta (1933), 352 Ill. 189,194,185 N.E. 253, the Illinois Supreme Court considered a raid upon a house of prostitution. Two of the girl inmates stated that a “couple of sluggers” were connected with the house of prostitution and were in a store room in the building. Based upon this information from the girl inmates the police arrested the two “sluggers” and found pistols upon the persons of each. The supreme court stated:

“However, from the information which the police received from the girl inmates it was reasonable for the officers to believe that the place was being conducted as a house of prostitution and that these men had some connection therewith, which was a violation of the law. Under such circumstances we think the seizing of the men by the officers, which we take it was then considered by them as an arrest, and their being taken into custody, were justified.” 352 Ill. at 194.

Similarly, in People v. Denham (1968), 41 Ill.2d 1, 241 N.E.2d 415, 418, Leon Miller was arrested in connection with a robbery. Miller implicated Richard Ford, who was subsequently arrested, and in turn Ford informed the police that the defendant was committing burglaries in the old town area together with Irving Duffy. The defendant was arrested upon the basis of this information. At the time of .his arrest he was carrying a knife. Under these facts the court stated:

“We believe that the facts before us constituted probable cause for defendant’s arrest. The arresting officer had information from one person arrested as a member of a robbery gang implicating the defendant and Irving Duffy as members of the gang. Interrogation of Duffy corroborated the fact of defendant’s place of employment and the mutual acquaintance between Irving Duffy and the defendant, and also the fact that defendant was crazy’ and armed. This was far more than the unsolicited and uncorroborated ‘tip’ in Parren [24 Ill.2d 572, 182 N.E.2d 662] and fully justified prompt police action in arresting and searching the defendant.” 41 Ill.2d at 5.

Lastly, we consider the case of People v. McKee (1968), 39 Ill.2d 265, 235 N.E.2d 625, 630, which we believe is strikingly apposite to the facts of the case before us. In McKee the court stated:

“Here two men had been arrested and, admitting their own participation in the robbery and murder, they implicated defendant McKee and told the police where he might be found. The police immediately went to the hotel, inquired as to the room of defendant, found the door in the process of being opened by defendant, announced their identity and purpose, arrested him and removed a gun from his person. We hold such arrest to be lawful and fully supported by probable cause and his statement made at that time to be admissible.” 39 Ill.2d at 273.

Accordingly, we find that the trial court was in error in suppressing the statement made by the co-offenders and finding no probable cause for their arrest. We therefore reverse the order of the trial court suppressing the statments of the defendants Atkinson and Prescott finding no probable cause for their arrests. We remand for further proceedings not inconsistent with this opinion.

Reversed and remanded.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Cecil Ray Griffin, Defendant-Appellant.
    (No. 73-194;
    Second District
    July 30, 1974.

      William L. Balsley, of Loves Park, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendant was indicted in a three-count indictment charging him with forgery, theft by deception, and deceptive practice. He entered a plea of guilty to the charge of deceptive practice. The other two counts were dismissed, and he was sentenced to 2-6 years.

Defendant contends the indictment failed to charge an offense and that the sentence was excessive.

The defendant was charged under Ill. Rev. Stat. 1971, ch. 38, sec. 17 — 1. The indictment reads as follows:

“Committed the offence [sic] of deceptive practice, in that he, with intent to defraud and to obtain control over the property of Jebco Distributing Co., Inc., a corporation, knowingly obtained one diamond ring exceeding the sum of One Hundred Fifty and no/100 ($150.00) Dollars in value, by use of a credit card issued to Don W. McBridge, which card he knew he had no authority to use in violation of Paragraph 17 — 1(3), Chapter 38, Illinois Revised Statutes, 1971.” (Emphasis added.)

Counsel for defendant has pointed out two alleged errors in the indictment, tire first being that there is no paragraph 17 — 1 (3). Although the indictment should have cited paragraph 17 — 1 (e) (1) of the Illinois Criminal Code, we do not find that the technical error prejudiced defendant in formulating his defense.

This same contention was presented in People v. Torello (1969), 109 Ill.App.2d 433, 248 N.E.2d 725. In Torello the court held, at page 438, that “the incomplete numerical designation of the section violated was a formal defect which could be corrected under the provisions of section 111 — 5 (Ch.38), entitled ‘Formal Defects in a Charge.’” In Torello the indictment was amended prior to trial. The court, however, went on to state that the defendant was not prejudiced by the amendment as all of the essential elements of the offense of theft were particularized, and the defendant was apprised with reasonable certainty of the precise offense with which he was charged.

Similarly, in People v. Wade (1970), 131 Ill.App.2d 415, 264 N.E.2d 898, the defendant therein was charged with violation of “Chapter 38, Section 16 — 1 a 1.” Defendant contended that the statutory citation set out in the complaint was “a non existent reference.” The court in Wade rejected this contention noting that the defendant should have been charged under subsection (a) of § 16 — 1 and cited People v. Hill (1966), 68 Ill.App.2d 369, 216 N.E.2d 212, to-wit:

“ ‘Failure to cite the statute or the correct provision thereof is error but, in view of the description of the offense given in the complaint, is not error which, in itself, vitiates the complaint.’” 131 Ill.App.2d at 417.

Also, in People v. Delafosse (1967), 36 Ill.2d 327, 223 N.E.2d 125, the indictment did not set forth the statutory provision under which it was brought and the court stated:

“In our opinion this indictment was sufficient to charge the crime of armed robbery, and the lack of specification of the statutory provision aUeged to have been violated and the lack of explicit designation of the time and place of the offense did not render the indictment fatally defective.” (36 Ill.2d at 330.)

Lastly, in People v. Greentvood (1969), 115 Ill.App.2d 167, 253 N.E. 2d 72, the indictment charged the defendant with aggravated battery in violation of chapter 38, section 12 — 4. The actual charge for aggravated battery should have been under 12 — 4(a). The defendant contended that the subsection (a) should have been indicated in the indictment. The court held that this was not a fatal defect since there could be no mistake about the subsection when the statute was read with the indictment.

In the case before us the defendant was sufficiently apprised of the offense with which he was charged so that he could prepare an adequate defense and could plead adjudication of this charge as a bar to any subsequent attempt to prosecute him for the same offense. Furthermore, there can be no mistake about the proper subsection when the complaint is read with the statute.

In his second attack upon the indictment it is contended by the defendant that it is insufficient in that he should have been charged with using a credit card without the “consent of the owner” rather than with the use of the card “which card he knew he had no authority to use.” The defendant argues that using a credit card “without authority” does not allege all of the facts necessary to constitute the crime charged. In support of this contention defendant has cited People ex rel. Ledford v. Brantley (1970), 46 Ill.2d 419, 263 N.E.2d 27. In Brantley the Illinois Supreme Court held that the failure to allege ownership of the premises burglarized was a fatal defect under the then existing law which was not waived by a plea of guilty. The court in Brantley stated that this defect was jurisdictional and reversed the conviction. The court, however, stated that a voluntary plea of guilty waives all errors or irregularities that are not jurisdictional.

We do not find that the use of the words “without authority” rather than the statutory word “consent” is a jurisdictional defect in the indictment herein. In People v. Russell (1973), 13 Ill.App.3d 497, 301 N.E.2d 85 (abstract opinion) the court held that in a criminal complaint where the word “dangerous” was used, it was not necessary to include the words “depressant or stimulant” since defense counsel knew what offense the defendant was charged with. In support of this holding the court also noted that the defendant was in no way hampered in the preparation of his defense, because the complaint sufficiently apprised him of the crime charged.

In this regard, we find that the defendant was sufficiently apprised of the offense with which he was charged. For these reasons we therefore believe that the indictment was legally sufficient.

The defendant is a heroin addict and has admitted six prior convictions within the past 5 years, apparently committed for the purpose of obtaining money for his $100-a-day addiction requirement. The defendant, in his plea of guilty, admitted that he had used the credit card for the purpose of buying a diamond ring for the sum of $299.98. He further admitted to obtaining $975.26 worth of goods with the credit card, including the $300 diamond ring. At the time of the instant offense defendant was on parole for a burglary charge.

The argument of the defense is that the defendant should enter a drug-treatment program rather than be incarcerated. In support of this contention counsel has cited People v. Cyphers (1972), 4 Ill.App.3d 856, 281 N.E.2d 796. The Cyphers case is distinguishable from the instant case, in that Cyphers was granted parole for the purpose of drug-addiction treatment. However, the court noted that defendant Cyphers had no prior record; that he was charged for an act occurring during a heroin withdrawal; and that his heroin addiction had been acquired in the armed forces.

Thus, we find that the sentence of the defendant, under the circumstances and considering his prior record, is well within the discretion of the trial court.

Judgment affirmed.

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


author: Mr. JUSTICE EBERSPACHER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tommie L. Calvin, Defendant-Appellant.
    (No. 73-266;
    Fifth District
    July 23, 1974.
    Robert E. Farrell and Richard Thomas, both of the State Appellate Defenders Office, of Mt. Vernon, for appellant.
    Howard Hood, States Attorney, of Murphysboro (Ralph J. Mendel-sohn, of Illinois Model State’s Attorneys Support Unit, of counsel, and Darrell L. Conley), for the People.
   Opinion by

Mr. JUSTICE EBERSPACHER.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Adonius Harris, Defendant-Appellant.
    (No. 73-375;
    Second District
    July 30, 1974.

      Frank Wesolowski, Jr., Public Defender, of Wheaton (Robert H. Heise, Assistant Public Defender, of counsel), for appellant.
    John J. Bowman, State’s Attorney, of Wheaton, for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This appeal has emanated from a judgment of the circuit court of Du Page County finding defendant guilty of the offense of theft of property exceeding $150 in value in violation of Section 16 — 1(a) (1) of the Criminal Code of 1961. (Ill. Rev. Stat. 1971, ch. 38, par. 16 — 1(a)(1)). The trial judge sentenced the defendant to serve a minimum of 2 years and a maximum of 6 years in the State penitentiary; this sentence was to run concurrently with the sentence of 1-3 years which the defendant was presently serving at that time, for an offense unrelated to this appeal.

The office of the public defender for Du Page County was appointed to represent defendant in this appeal. The appointed appellate counsel has now moved for leave to withdraw as attorney of record for defendant on appeal in accordance with the criteria established in Anders v. California (1967), 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396, and upon the specific assertion that his conscientious examination of the record requires a conclusion that the appeal would be completely frivolous and without merit.

Defendant was charged by means of an indictment with the offense of theft of property in excess of $150 in value, in violation of Ill. Rev. Stat. 1971, ch. 38, sec. 16 — 1(a)(1). The indictment properly apprised defendant of the charge and gave the circuit court jurisdiction of the matter. Defendant had originally pleaded not guilty to the charge contained in the indictment.

Pursuant to plea negotiations, however, on September 18, 1973, defendant appeared with his privately retained counsel and moved to withdraw his previous plea of not guilty. Upon the trial court’s granting of this motion, defendant entered a plea of guilty to the charge as indicated in the indictment. The trial judge thereupon accepted this plea and sentenced the defendant.

In accepting defendant’s guilty plea, the trial judge fully and carefully complied with the rules of Supreme Court Rule 402, (Ill. Rev. Stat. 1973, ch. 110A, par. 402).

Thereafter, upon request, the trial judge was informed of the plea agreement, which entailed the recommendation by the State’s attorney of a sentence of 2-7 years which would run concurrently with a 1-3 year sentence defendant was then presently serving. Defendant stated that the contents of that agreement were all that was promised to him.

The trial judge also determined from the State’s attorney and defendant’s attorney, the factual basis for defendant’s plea of guilty; and defendant confirmed the truth of those facts recited. Upon being asked whether or not defendant was pleading guilty because he was actually in fact guilty of the theft in question, defendant replied “Yes.”

The trial judge advised defendant of his rights to a hearing in aggravation and mitigation and to a presentence report pursuant to the Illinois Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001—1—1 et seq.). Defendant, however, explicitly waived both the hearing and the presentence report. The trial judge, apparently having been moved by defendant’s personal imploration for a lesser sentence, then sentenced the defendant to 2-6 years in the State penitentiary.

On the basis of the record, it is apparent that a reviewing court would find no reason to disturb the sentence which defendant bargained for and received. (People v. White (1972), 5 Ill.App.3d 205, 282 N.E.2d 467.) It is also apparent that defendant’s sentence is not excessive and that it conforms to the requirements of the Illinois Unified Code of Corrections, supra.

On the record, we concur in counsel’s contention that there is no basis for maintaining an appeal in this cause and that the continuation of the appeal would be wholly frivolous and without merit. The judgment of the circuit court- of Du Page County is accordingly affirmed and the motion of the Du Page County public defender to withdraw as counsel for defendant, Adonius Harris, is hereby allowed.

Judgment affirmed and withdrawal motion allowed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lee Arthur Fricks, Defendant-Appellant.
    (No. 72-385;
    Second District
    August 1, 1974.

      Ralph Ruebner and Adam Lutynski, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Martin Moltz, both of Model District State’s Attorneys Project, of counsel), for the People.
   Opinion by

Mr. JUSTICE RECHENMACHER


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Van Cura, Defendant-Appellant.
    (No. 72-290;
    Second District
    July 30, 1974.
    Robert R. Canfield, of Rockford, for appellant.

      Richard L. Caldwell, States Attorney, of Oregon (Peter J. Woods, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendant, Richard VanCura, was convicted after a bench trial of the offense of following too closely to a fire apparatus responding to a fire. (Ill. Rev. Stat. 1971, ch. 95%, par. 11 — 1411.) In sentencing defendant to a $100 fine and 6 months in jail, the court relied upon the enhanced penalties provided for a third offense within a year as set forth in section 16 — 104(b) of the Illinois Vehicle Code (Illo. Rev. Stat. 1971, ch. 95%, par. 16 — 104(b)).

Defendant appeals, contending that he could not be sentenced as a third offender in the absence of a charge in the complaint specifying the prior offenses relied upon; that the enhanced penalty provision under which he was sentenced applied only to subsequent convictions within 1 year of the same offense; and that he was not sufficiently admonished of the possible penalties for a third offense when he waived counsel. Alternatively he argues that the sentence was excessive.

In the disposition we make of the case, we need only discuss the construction of the enhanced-penalty provision.

The complaint charged that the offense of following a fire apparatus occurred on May 28, 1972. Defendant was found guilty in a bench trial held on August 4, 1972. After a hearing in aggravation and mitigation, the court found that defendant had been convicted within the past year of four prior traffic offenses: improper lane usage, speeding, failure to give information after striking property, and excessive noise. None of these prior offenses involved following too closely to a fire apparatus responding to a fire; but all of them were offenses which did not contain their own penalty provision and hence whose penalties were governed by section 16 — 104 of the Vehicle Code. Ill. Rev. Stat. 1971, ch. 95%, pars. 16 — 101, 16 — 104.

Section 16 — 104 provides:

"(a) It is a misdemeanor for any person to violate any provision of this Act unless such violation is by this Act or other law of this State declared to be a felony.
(b) Every person convicted of a misdemeanor for a violation of any provision of this Act for which another penalty is not provided shall for a first conviction thereof be punished by a fine of not less than $10 nor more than $100; for a second such conviction within one year thereafter, such person shall be punished by a fine of not less than $25 nor more than $200 or by imprisonment for not more than 20 days, or both; and for a third or subsequent conviction within one year after the first conviction, such person shall be punished by a fine of not less than $100 nor more than $500 or by imprisonment for not more than 6 months, or both.”

The question presented is whether the above section requires a subsequent traffic offense to be a violation of the same statutory provision as the prior offense or offenses committed within 1 year before the enhanced penalty provisions apply. We hold that it does.

The language, “for a violation of any provision of this Act,” could arguably support the State’s position that the additional conviction need not be for the same offense. We find, however, a number of indications which weigh more heavily in favor of a different conclusion. Obviously, there must first be a violation of “any provision” of the Vehicle Code for the enhanced penalty to be later applied, and the reference to “any provision” is found in the clause relating to the first offense. The references to a second “such conviction” and a “third or subsequent conviction” within 1 year after the first conviction do not unambiguously refer to “any provision” described for the first offense, but may with equal reason be interpreted to refer to the particular first violation which has taken place.

Criminal statutes are to be construed strictly in favor of the accused and nothing is to be taken by intendment or implication against the accused beyond the obvious or literal meaning of such statutes. (People v. Eagle Food Centers Inc. (1964), 31 Ill.2d 535, 539; People v. Kessler (1973), 11 Ill.App.3d 321, 326.) A strict construction in favor of the defendant requires us to hold that section 16 — 104 does not increase the penalty for unlike traffic offenses committed less than a year apart.

If the State’s construction were adopted, a person convicted of two or three disparate and minor violations of the Vehicle Code would be subject to severe penalties. For example, within a year after conviction for a muffler violation (Ill. Rev. Stat. 1971, ch. 95%, par. 12 — 602), and another for opening a car door to traffic (Ill. Rev. Stat. 1971, ch. 95%, par. 11 — 1407), the maximum penalty for most traffic offenses for that offender would be increased from no term of imprisonment to 6 months’ imprisonment. On the other hand, where repeated identical statutory offenses occur within a year, the offender’s willful disregard for the statute transgressed seems apparent, justifying the enhanced penalties. And where serious unlike violations occur within a year other sections of the Vehicle Code can be invoked:' the driver’s license can be revoked (Ill. Rev. Stat. 1971, ch. 95%, par. 6 — 206); and if the offender continues to drive, penalties of 7 days to 1 year and a possible $1,000 fine, more severe than those provided under section 16 — 104(b), may be imposed. Ill. Rev. Stat. 1971, ch. 95%, par. 6 — 303.

Our construction of section 16 — 104(b) of the Illinois Vehicle Code follows that of other jurisdictions and of the Uniform Vehicle Code. Fisher, Vehicle Traffic Law (1961) 460.

“Ordinarily the prior offense for which the accused was convicted must have been a violation of the same law, and this is especially true of traffic offenses for which penalties are all prescribed in the same act or section of the statute. * * * Specific provisions imposing increased penalties for repeating offenders apply only in case of repetition of the same offense * *
[Footnotes omitted.] Fisher, Vehicle Traffic Law 461 (1961).
Such statutes do not create a separate offense, but merely subject second offenders to heavier punishment for crimes repeatedly committed by them. * * * The statute merely describes circumstances wherein one found guilty of a specific crime may be subjected to a greater penalty if he repeats his offense. * * * The prescribed punishment is heavier because the defendant is a repeater.’ Its purpose is to compel obedience when the milder sentence has failed.” (Footnotes omitted.) Fisher, Vehicle Traffic Law 460 (1961).

We, therefore, conclude that it was improper for the court to consider convictions of the defendant for offenses other than and different from the one charged in the complaint in imposing the enhanced penalties. We affirm the judgment below finding the defendant guilty of following a fire apparatus in contravention of section 11 — 1411 of the Illinois Vehicle Code (Ill. Rev. Stat. 1971, ch. 95%, par. 11 — 1411). The sentence, however, is vacated and the defendant is discharged, since he has served over 30 days in jail and no imprisonment is permissible for a first offense under section 16 — 104 (Ill. Rev. Stat. 1971, ch. 95%, par. 16 — 104).

In this view of the case, we do not reach the remaining issues which the defendant has raised, all of which presuppose the imposition of the enchanced-penalty provisions of section 16 — 104.

Judgment of conviction affirmed, sentence vacated and defendant discharged.

GUILD and RECHENMACHER, JJ., concur.

       The section has been amended to provide that a conviction for a first or second offense is a Class C misdemeanor and a conviction for a third or subsequent offense within a year is a Class B misdemeanor. Ill. Rev. Stat. 1973, ch. 95%, par. 16 — 104.