text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Dandridge, Defendant-Appellant.
    (No. 59205;
    First District (1st Division)
    April 15, 1974.

      Modified on denial of rehearing July 1, 1974.

      James J. Doherty, Public Defender, of Chicago (John Bogren, Steven Silets, and Ira Churgin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Barry Rand Elden, and Jerome C. Randolph, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

On April 15, 1974, acting upon the briefs of the parties and on oral argument, this court filed an opinion. In due course a petition for rehearing was filed in behalf of defendant. With leave of court this petition was supplemented by filing additional material. This court then requested that an answer to the petition for rehearing be filed by the State. (Supreme Court Rule 367(d), 50 Ill.2d R. 367(d).) An answer to the petition was then filed. A reply to the State’s answer was filed by counsel for defendant. After careful study of all of these additional matters, we have decided to and we do file the following opinion in lieu of the one originally filed herein.

Donald Dandridge (defendant) pleaded guilty to burglary. (Ill. Rev. Stat. 1971, ch. 38, par. 19 — 1.) On January 25, 1971, he was sentenced to 5 years’ probation, the first 6 months to be served in the county jail. On September 6, 1972, the State filed a petition for a rule to show cause why probation should not be revoked alleging that defendant had been indicted for unlawful use of a weapon. The additional charge that defendant had violated his probation by failing to report to his probation officer was added later. On October 2, 1972, defendant’s probation was revoked and he was sentenced to 3 to 9 year's in the penitentiary. He appeals.

At the commencement of the revocation hearing, defendant requested a continuance because he had spoken to a private attorney and wanted to hire him. After passing the case, the judge proceeded with a hearing on the revocation of probation, but not to trial on the substantive offense concerning use of weapons.

At the hearing, an officer of the probation department testified that defendant was admitted to probation on January 25, 1971, and was instructed that he was to report once a month after his release from jail. He further stated that defendant never reported and that a “home visit” was attempted on July 12, 1971, but that defendant could not be found. An objection to this testimony by defense counsel was overruled.

Concerning commission of the substantive offense, two police officers testified that they saw defendant grab his leg as he was alighting from his car and they noticed a gun fall from his pant leg and onto the street near the driver’s side of the car. Defendant kicked the gun partially under the car. They placed defendant under arrest and took him to the police car where he told them his name was Joseph Eastline. The officers then recovered the gun, a loaded .22 derringer. Both officers testified that there was at least one other person in the car.

Defendant testified that he had reported to a probation officer named Albert Chesser for his first interview, but was not told to report every month. He testified that he had reported to Mr. Chesser on approximately three subsequent occasions, but did not have him sign his card because it was in his wallet at home. On cross-examination, however, he admitted signing the statement on his probation card that he had “read the foregoing” and fully understood “the rules and regulations” of probation. A member of the probation department had previously testified that this card advised the probationer of the rules of probation, including the days when he was required to report. The defendant stated that he had signed a lot of things at the initial interview and didn’t really know what they were.

As to the weapon charge, defendant testified that he had come out of “a lounge” and picked up two friends. When he noticed that they were carrying some “contraband”, which he guessed was heroin, he pulled over to the curb. The police officers then approached and took him to the police car. He testified that they called him “Joseph Eastline,” although he denied that was his name and told them his correct identity and showed them his driver’s license. One of his passengers ran from the scene and the other was taken into custody. He also testified that one of the officers went back to the car and returned with a gun which he stated he had found on “the passengers side of the car, right up under the clutch.” Defendant also testified that he had never seen the gun before.

Mr. Albert Chesser, apparently never sworn to testify, appeared and stated in open court that he only handled drug program petitions, and was not a regular probation officer. He remembered defendant vaguely and he may have handled his petition and the arrangements for him to enter the Illinois drug abuse program, but he was not the regular probation officer to whom defendant was to report monthly.

. Defendant urges here that the trial court abused its discretion in refusing his request for a continuance so that he could employ private counsel; the State failed to introduce any competent evidence that defendant was in violation of a condition of his probation; the trial judge abused his discretion in finding by a preponderance of the evidence that the defendant did commit the crime of unlawful use of weapons; and, finally, the time defendant spent on probation should be credited against his sentence.

We find no merit in defendant’s first contention that the court abused its discretion in denying him a continuance. Defendant himself asked the court to grant him a continuance because he had talked to and would have liked to hire a private attorney. The judge passed the case to consider the proper action to be taken. When the proceedings reconvened, the following colloquy took place:

“The Court: We are not proceeding on the case. We are proceeding on the violation of probation. It has been brought to my attention you did answer ready when the officer was here. You want to hire an attorney for the other case, is that correct, Mr. Kunkle? You are ready?
Mr. Kunkle: In a legal sense, naturally if my client doesn’t want to proceed, I’d ask for the continuance that he is asking for.
The Court: Ready? The officer here? At this time we are going to go to trial as far as the hearing on the revocation of probation and not on the trial over your objection.”

At this point, defendant’s attorney made an argument only on an unrelated point. He did not renew the request for a continuance based on the desire of defendant to hire private counsel for the revocation hearing. Thus, it appears that defendant’s request was satisfied by not going to trial on the substantive offense.

Even if this were not true, the trial judge did not abuse his discretion. (See Ill. Rev. Stat. 1973, ch. 38, par. 114 — 4(e).) Our supreme court has stated in People v. Solomon, 24 Ill.2d 586, 182 N.E.2d 736:

“The granting of a continuance to permit preparation for a case, or for the substitution of counsel, necessarily depends upon the particular facts and circumstances surrounding the request, and is a matter resting within the sound judicial discretion of the trial court. (People v. Surgeon, 15 Ill.2d 236; People v. Clark, 9 Ill.2d 46.) Before a judgment of conviction will be reversed because of the denial of such a motion, it must appear that the refusal of additional time in some manner embarrassed the accused in preparing his defense and prejudiced his rights. (People v. Van Norman, 364 Ill. 28; see also: Holt v. United States, (8th cir.) 267 F.2d 497; United States ex rel. Thompson v. Nierstheimer, (7th cir.) 166 F.2d 87; Crono v. United States, (9th cir.) 59 F.2d 339.) 24 Ill.2d at 589-590.

The facts and circumstances here indicate no embarrassment and no prejudice to defendant. He expressed no dissatisfaction with his public defender, but merely indicated he had been told he “should have a lawyer.” His public defender was obviously well prepared and quite competent and defendant did cooperate with him. Thus, there was no prejudice to defendant. (People v. Canaday, 49 Ill.2d 416, 426, 427, 275 N.E.2d 356.) No appearance was ever filed by any private attorney. The record shows merely a statement that defendant had talked with one and that he would like to hire him. People v. Tyson, 130 Ill.App.2d 140, 143, 144, 264 N.E.2d 403.

Defendant relies primarily upon People v. Ritchie, 66 Ill.App.2d 417, 213 N.E.2d 306. That case, however, is different in a number of respects from the one before us. There, the defendant asked for a continuance because he and his family had expressed dissatisfaction with the public defender and a private attorney had twice contacted the public defender asking him to obtain a continuance. Further, after the continuance was refused, the public defender moved to vacate his appointment as counsel for defendant and after denial of the motion stated that he did not plan to try the case. The judge told the public defender to stay in the courtroom, which he did. The defendant stated that he did not want the public defender’s help and received little assistance. On the contrary, in the case before us, the public defender effectively represented defendant, apparently to his satisfaction. We find no abuse of discretion in this record.

Defendant’s second contention is that the State failed to prove a violation of probation since the testimony offered on this point was incompetent. Defendant is correct in his assertion that the testimony of the probation officer was hearsay. (Cleary, Handbook of Illinois Evidence, § 17.1 (2d ed. 1963). See also People v. Carpenter, 28 Ill.2d 116, 120, 121, 190 N.E.2d 738.) However, as the State points out, defendant's own testimony was more than sufficient to show such violation. Defendant stated that he had reported “About three” times to a probation officer named Albert Chesser, but admitted that Chesser had never signed his card. Since defendant was placed on probation in May and not arrested until the following February, he has himself admitted a violation of the monthly reporting requirement. Furthermore, Albert Chesser stated that he was not defendant’s regular probation officer, but would only have dealt with him in regard to the drug abuse program. Thus, although the State’s evidence was not competent, defendant’s own admission waives any deficiencies in the State’s case. People v. Collins, 14 Ill.App.3d 446, 448, 302 N.E.2d 709, and other authorities therein cited.

Defendant next contends that the trial judge abused his discretion in finding that the defendant’s testimony was less credible than that of the two police officers as to the charge of unlawful use of weapons. The State was legally required to show the violation only by a preponderance of the evidence and did so sufficiently. In this type of situation, the trier of fact is to weigh the credibility of witnesses and resolve conflicts in the testimony. (People v. Crowell, 53 Ill.2d 447, 451, 452, 292 N.E.2d 721.) At the outset of the hearing, the trial judge stated that he would go beyond tire legally required “preponderance of the evidence” standard. He said, “I would not violate a man’s probation unless I found [him guilty] beyond a reasonable doubt * * * upon the charge * " This record presents no arguable question as to the sufficiency of the evidence. Defendant’s probation was properly revoked for violation of a penal statute and for failure to report as required. Ill. Rev. Stat. 1971, ch. 38, pars. 117 — 2(a)(1) and (3).

Finally, defendant contends that he is entitled to credit against the newly imposed sentence for the “Time served on probation * ° (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—4(h).) The State contends that defendant is not entitled to credit because of his failure to comply with the conditions of his probation. This section of the Unified Criminal Code was amended by addition of the words “unless the court orders otherwise.” (Public Act 78-939. See Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—4(h).) If this amendment were applicable to the cause before us, the State’s argument would have considerable potency. However, as the State concedes, with commendable candor, this amendment is not applicable to the instant case. (People ex rel. Weaver v. Longo, 57 Ill.2d 67, 309 N.E.2d 581.) See also People v. Wheatley, 17 Ill.App.3d 657, 660, 308 N.E.2d 129, 131, pointing out that Public Law 78-939 which was certified on November 14, 1973, and which may be effective July 1, 1974, is not retroactive.

Rut, the State presses its contention and urges that even absent the amendment no credit should be allowed in the case before us. They present the analogy that a defendant who violates his sentence of probation, particularly by failure to report to the authorities, should be treated the same as an incarcerated prisoner who escapes during his term and then claims credit for the time spent at large. It may well be argued that the amendment shows legislative policy to permit denial of credit in proper cases (People v. Scott, 57 Ill.2d 353, 312 N.E.2d 596), but it is not legally applicable to the case before us. It may also be urged, as defendant does, that the very passage of the amendment indicates that the legislature wished to remedy the previously existing lack of discretion vested in the court to deny credit for probation.

Considering the matter aside from the statutory amendment, it has been repeatedly held that credit should be granted pursuant to the statute and in none of these cases, to our knowledge, has the issue of complete refusal of credit for failure to report been raised or decided. People v. Schreiber, 18 Ill.App.3d 410, 304 N.E.2d 686; People v. Johnson, 13 Ill.App.3d 1020, 1026, 304 N.E.2d 681; and People v. Murray, 13 Ill.App.3d 987, 301 N.E.2d 612.

It is our considered opinion that the State’s contention must be rejected and credit granted. Aside from the amendment, not applicable here, the statute creates no exception, grants no discretion and imposes no condition upon the allowance of credit for “time served on probation.” We cannot read a grant of judicial discretion into a statute where none exists. The point at issue here may be de minimis in its scope and application because the occurrence of the effective date of the amendment to the Code, perhaps on November 14, 1973, but no later than July 1, 1974, will operate to vest discretion in trial courts to determine and modify the amount of credit.

It should also be noted that the issuance of an arrest warrant operates to toll the running of a probation period. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—4(a). See also People v. Burton, 14 Ill.App.3d 1096, 303 N.E.2d 16; People v. Newton, 18 Ill.App.3d 180, 185, 309 N.E.2d 779.) The trial court should accordingly make a determination in the case before us as to the exact extent of the credit to be allowed defendant and the mittimus should be amended accordingly.

The judgment for revocation of probation and sentence is affirmed and the cause is remanded to the trial court with directions to consider and determine the amount of credit to which defendant is entitled for time served in jail and on probation consistent with the views above expressed.

Judgment affirmed, cause remanded.

BURKE and HALLETT, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE GOLDBERG.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Raul Collazo, Defendant-Appellant.
    (No. 59015;
    First District (1st Division)
    June 17, 1974.
    James J. Doherty, Public Defender, of Chicago (William D. Trade and Richard D. Kharas, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Ellis B. Levin, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE GOLDBERG.


author: Mr. JUSTICE HALLETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William T. Dixon, Defendant-Appellant.
    (No. 58687;
    First District (1st Division)
    June 17, 1974.
    Paul Bradley, of the State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The defendant was convicted by a jury of attempt armed robbery and sentenced to 10 to 14 years in the State Penitentiary. On appeal, he raises two questions: (1) whether the prosecutor’s closing argument, commenting in part on the defendant’s attitude during the trial, makes it necessary to give the defendant a new trial; and (2) whether the defendant’s sentence must be modified according to the Unified Code of Corrections (Ill. Rev. Stat. 1972 Supp., ch. 38, par. 18 — 2(b)). We answer these no and yes, in that order.

As the defendant has not challenged the sufficiency of the evidence, a detailed recital of the testimony as to the events leading to his arrest and conviction is not necessary.

Between 5:45 and 6 P.M., on May 1, 1971, a man, whom all six occurrence witnesses testified was the defendant, entered the Jewel Food Store at Grand and Central Park, in Chicago, put one arm around the neck of the security guard Philip Teachout and shoved a gun into his ribs. He ordered the service manager Charles Kadlec, who was then behind the counter counting money, to hand it over. A struggle ensued, joined in by William Montes, an off-duty Cook County deputy sheriff who was a customer, and by James Jamison, an employee of the Oseo Drug Store adjacent to the Jewel. During the struggle, a gun was discharged, wounding Teachout in the right hand. The defendant was subdued and handcuffed and was turned over to the Chicago police after they arrived at the scene. At the trial a total of six occurrence witnesses testified as above for the State. The defendant did not take the stand and called no witness. On the pre-sentence hearing after the jury’s verdict, it was disclosed that the defendant had pleaded guilty to murder and burglary in 1952 and had served 16 years in the penitentiary until he was discharged in 1968.

Although he does not challenge the sufficiency of the evidence to sustain his conviction, the defendant’s first contention is that he is entitled to a new trial because, in his argument to the jury, the prosecutor stated, inter alia, that:

“The defendant sits throughout this whole trial, as the officers testified, telling what happened, as he sits in this courtroom today without a nickel’s bit of emotion, without anything.”

It should be noted that the trial judge promptly sustained an objection to this comment, ordered it stricken and instructed the jury to disregard it. In our considered opinion, this comment did not constitute a comment on the defendant’s failure to testify in his own behalf, and, in view of the overwhelming proof of the defendant’s guilt and the prompt action of the trial judge, we conclude and hold that the comment did not substantially prejudice the defendant. See People v. Battaglia, 282 Ill. 91, 96, 118 N.E. 397; People v. Naujokas, 25 Ill.2d 32, 38, 182 N.E.2d 700; People v. Stahl, 26 Ill.2d 403, 405-406, 186 N.E.2d 349; People v. Daugherty, 43 Ill.2d 251, 256, 253 N.E.2d 389, and People v. Hampton, 44 Ill.2d 41, 46, 253 N.E.2d 385.

Passing now to the defendant’s second contention — that the sentence must be modified so as to conform to the present Unified Code of Corrections, the State concedes, as it must, first, that where, as here, an appeal is pending and undetermined, the defendant is entitled to the benefit of said Code (People v. Chupich (1973), 53 Ill.2d 572, 295 N.E. 2d 1; People v. Harvey (1973), 53 Ill.2d 585, 294 N.E.2d 269); second, that under said Code, attempt armed robbery is a Class 3 felony for which the maximum sentence is 10 years; and third, that the minimum is one-third of that or 3% years. Ill. Rev. Stat., 1972 Supp., ch. 38, pars. 8 — 4(c), 1005 — 8—1(b)(4), 1005 — 8—1(c)(4).

The defendant’s further contention — that because of an apparent ambiguity in the said attempt statute (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 8 — 4(c), effective January 1, 1973) all attempts other than murder, treason or aggravated battery are to be treated as Class 4 felonies (see People v. Scott (1973), 14 Ill.App.3d 211, 216-217, 302 N.E.2d 146, which so held) has recently been disposed of adversely to his contention by our supreme court’s reversal of that case. People v. Scott (1974), 57 Ill. 2d 353, 312 N.E.2d 596.

As a result, we reduce the defendant’s 10- to 14-year sentence to 3% to 10 years. In all other respects, the judgment is affirmed.

Judgment affirmed as modified.

EGAN, P. J., and GOLDBERG, J., concur.


author: Mr. JUSTICE BURKE

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Isaac Smith et al., Defendants-Appellants.
    (No. 59436;
    First District (1st Division)
    June 17, 1974.

      Paul Bradley and Margaret Maxwell, both of the State Appellate Defender’s Office, of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

James Isaac Smith and Joseph Smith, defendants, were found guilty after a jury Mai of the crime of murder in violation of section 9 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 1). Both defendants were sentenced to terms of 60 to 120 years. On appeal, defendants argue (1) that the evidence was insufficient to establish their guilt beyond a reasonable doubt; (2) that the Mai court erred in admitting photographs of the deceased into evidence; (3) that the Mai court erred in admitting “mug shots” of the defendants into evidence; and (4) that the State’s closing argument was prejudicial.

At Mai, Dr. Julius B. Richmond testified that he is the father of Dale K. Richmond. Dr. Richmond testified that he last saw his son in Chicago in the middle of October, 1971, and at that time his son was alive and in good health. On October 27, 1971, he identified his son’s body at the Cook County Morgue.

Edward C. Palmer was called as a witness by the State and testified that on October 27, 1971, at 12:15 A.M., he was walking on 54th Street in the vicinity of Dorchester Avenue in Chicago, Illinois, when he observed a white man meet a black man. After talking for a couple of seconds, the two men began struggling and striking one another. A second black man appeared with a knife in his hand and began stabbing the white man in the back. The white man fell to the ground and the black man continued to stab him while the other black man went through the pockets of the white man. Thereafter, both black men ran and the white man got up and started to follow the black men down the street. The witness further testified that he had seen one of the black men prior to the incident and he identified the two black men as the defendants, James Smith and Joseph Smith. Mr. Palmer testified that Joseph Smith had the knife.

On cross-examination the witness testified that he is a narcotics addict. He admitted that on October 27, 1971, he was a narcotics addict and had taken narcotics that day. Mr. Palmer testified that the last time he had used narcotics was 3 days prior to testifying. On April 11, 1972, the witness talked to Officers Fitzgerald and Boucher. At that time, he was shown several photographs and identified photographs of the two defendants as the men he had seen stab the deceased. Mr. Palmer stated that between the date of the incident and the time he met Investigators Fitzgerald and Boucher, he did not tell any other police officer that he had observed the incident.

Oliver Van Collins testified that on October 27, 1971, at approximately 12:15 A.M., he was walking through a school yard in the vicinity of 54th and Dorchester Avenue in Chicago, Illinois, when he heard someone scream. He then heard footsteps and as he turned around he saw the two defendants run across 53rd Street. The defendants were approximately 100 feet away. There were street lights and a neon sign from a “chicken shack” illuminating 53rd Street. In March, 1972, police officers came to his home and interviewed him. Subsequently he identified photographs of the two defendants as the men he had seen run across 53rd Street. He did not report what he had seen to the police department until March 23, 1972.

William V. Wheeler testified that he was a bartender for the Eagle Lounge at 53rd and Blackstone in Chicago, Illinois, between July and December, 1971. On December 23, 1971, he was shown 8 to 10 photographs by Investigator Baxter. He identified photographs of the defendant, Joseph Smith, as the man he had seen in the Eagle Lounge on approximately October 27, 1971. On cross-examination Wheeler stated that he could not remember the exact date Smith had been in the lounge.

Chicago Police Office John M. Krystyniak testified that on October 27, 1971, pursuant to a call, he proceeded to the area of 54th and Dorchester Avenue where he observed a man lying face down on the sidewalk in a prone position. He immediately called for transportation for the victim who was taken to Billings Hospital. Thereafter, the officer observed that around where the victim was lying, there was a large pool of blood and a trail of blood. Officer Krystyniak testified that he followed the trail of blood to 1410 East 54th Street.

Chicago Police Sergeant John Ferguson testified that he was assigned the investigation in the case at bar. On October 27, 1971, he proceeded to the crime scene and observed a pool of blood where the victim had been lying. Leading from the pool of blood there was a trail of blood which he followed to 1410 East 54th Street.

Chicago Police Sergeant John Fitzgerald testified that pursuant to his investigation, he spoke.with Oliver Van Collins, who was shown photographs of possible offenders. He testified that Mr. Van Collins initialed two photographs in the group of photographs denominated as People’s Group Exhibit 16; namely, one photograph of defendant Joe Smith and one of defendant James Smith. Sergeant Fitzgerald testified that on April 11, 1972, he also interviewed Edward Palmer. Mr. Palmer was shown certain photographs and he made an identification.

Dr. Jerry Kearns, a pathologist for the coroner of Cook County, testified that on October 27, 1971, he performed an autopsy on the body of decedent, Dale Richmond. His examination revealed 14 stab wounds; namely, three in the chest, one below the rib cage, one in the posterior part, one in the back, two in the left forearm, one in the upper left arm, two in the right arm, two in the right thigh and what resembled a scratch mark across the front of the chest. The deceased’s right hand was swollen. Dr. Kearns testified that in his opinion, Dale Richmond came to his death as the result of multiple stab wounds to the chest, abdomen and the extremities.

Defendants’ first contention on appeal is that the evidence was insufficient to establish guilt beyond a reasonable doubt. Defendants argue that the testimony of Edward Palmer, an admitted narcotics addict who did not report the incident to the police for several months, was totally unreliable and was essentially uncorroborated. The testimony of a narcotics addict must be viewed with great caution. (People v. Jordan, 5 Ill.App.3d 7, 282 N.E.2d 530.) However, that testimony may be sufficient to sustain a conviction if credible under the surrounding circumstances. People v. Norman, 28 Ill.2d 77, 190 N.E.2d 819; People v. Barnes, 133 Ill.App.2d 278, 273 N.E.2d 240.

In the present case, Edward Palmer testified that on October 27, 1971, at 12:15 A.M., he observed both defendants fighting with the deceased and saw Joseph Smith stab the deceased repeatedly. Both defendants then fled the scene. While Mr. Palmer at trial admitted that he is a narcotics addict and that he did not report the incident to the police for several months, this conduct presents a matter of credibility. In a jury trial, credibility of witnesses is for the jury to determine and their determination will not be disturbed unless it is based upon evidence which is so unsatisfactory as to raise a reasonable doubt of defendants’ guilt. (People v. Riles, 10 Ill.App.3d 772, 295 N.E.2d 234.) Here, after hearing all of the evidence, the jury chose to believe the testimony of Edward Palmer. Moreover, Mr. Palmer’s testimony was corroborated by the testimony of Oliver Van Collins who stated that he observed the two defendants run across 53rd Street a short distance from the scene of the murder shortly after hearing someone scream. After a review of the entire record, we cannot say that the jury’s determination was erroneous.

Defendants’ second contention is that the trial court erred in admitting photographs of the deceased taken at the Cook County Morgue which showed surgical punctures because such photographs were highly inflammatory and cumulative. Photographs are admissible to establish facts in issue. (People v. Dagge, 10 Ill.App.3d 726, 295 N.E.2d 336.) The admission of photographs at trial rests within the sound discretion of the trial court and the exercise of that discretion will not be interfered with unless it is shown that there has been an abuse thereof to the prejudice of the accused. People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771.

Here, the photographs of the deceased corroborated the testimony of Dr. Kearns as to the number and position of stab wounds and as to the fact that the deceased had a swollen hand. The photographs were also relevant to demonstrate the amount of force used in the murder. (People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208.) We are of the opinion that the trial judge did not abuse his discretion by admitting the photographs into evidence.

Defendants’ third contention is that the trial court erred by admitting into evidence “mug shots” of both, defendants. At trial, the State introduced into evidence photographs of both defendants which had been identified by witnesses Palmer and Van Collins. The photographs depicted each defendant with three different views; front face, profile and full view. Around the neck of each defendant was a legend which was marked over before the pictures were given to the jury. The photographs of a defendant from which he was identified are admissible into evidence for the purpose of showing how the defendant could have been identified from the photographs and not merely to prejudice the jury by showing prior encounters with the police. People v. Hyman, 8 Ill.App.3d 382, 290 N.E.2d 627.

In the case at bar, there was a span of over 5 months between the murder and the subsequent identification of the defendants from police photographs by the State’s witnesses. The photographs were relevant to demonstrate the manner in which the defendants were identified. The legends on the photographs were marked out prior to their being given to the jury. When viewed in light of all of the evidence presented at trial, we do not believe that the admission into evidence was so prejudicial as to require a reversal.

Defendants argue that the trial judge did not instruct the jury to limit their consideration of the photographs to the issue of identification. A review of the jury instructions demonstrates that the defense did not tender such a jury instruction. It is a well established rule that a defendant cannot complain on appeal of failure to give a jury instruction when he did not request that such instruction be given. People v. Springs, 51 Ill.2d 418, 283 N.E.2d 225.

Defendants’ final contention is that they were prejudiced by the inflammatory closing argument of the prosecution. It is an established rule that improper remarks by a prosecutor do not constitute reversible error unless they result in a substantial prejudice to the defendant. (People v. DeSavieu, 11 Ill.App.3d 529, 297 N.E.2d 336; People v. Nilsson, 44 Ill.2d 244, 255 N.E.2d 432.) In the present case, we have reviewed each of the alleged errors defense counsel has pointed out in his brief. Although certain of the prosecutor’s comments were improper, when considered in light of the entire record, they are not sufficient to require a reversal. As the Illinois Supreme Court stated in People v. Clark, 52 Ill.2d 374, 390, 288 N.E.2d 363, 372:

“* * * We noted in People v. Swets, 24 Ill.2d 418, 423; ‘While the comments exceeded the bounds of propriety, we do not think that under the circumstances of this case they were sufficiently prejudicial to call for a reversal. Where it appears that improper remarks do not constitute a material factor in the conviction, or that they are of such a minor character that prejudice to defendant is not their probable result, the verdict will not be disturbed.’ People v. Stahl, 26 Ill.2d 403, 405; People v. Berry, 18 Ill.2d 453, 458; People v. Sustak, 15 Ill.2d 115, 126.”

For the foregoing reasons, the judgments are affirmed.

Judgments affirmed.

EGAN, P. J., and GOLDBERG, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George Drake, Defendant-Appellant.
    (No. 59091;
    First District (1st Division)
    June 17, 1974.

      Rehearing denied July 17, 1974.

      Harry S. Weber, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Jerald A. Kessler, and William Linkul, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

George Drake, defendant, was charged with the offense of theft of certain tires allegedly owned by Fast Motor Service, Inc., in violation of section 16 — 1(a)(1) of the Criminal Code. (Ill. Rev. Stat. 1971, ch. 38, par. 16 — 1.) After a bench trial, the defendant was found guilty and placed on probation for 1 year.

On appeal, the defendant contends that the State failed to prove beyond a reasonable doubt that the tires were owned by Fast Motor Service, Inc.; that the trial court erred in admitting certain evidence introduced by the State and in rejecting certain evidence offered by the defendant; that the State failed to prove beyond a reasonable doubt that the defendant had possession or control over the tires allegedly owned by Fast Motor Service, Inc.; and that the trial court abused its discretion in not granting the defendant a new trial on the basis of alleged newly discovered evidence.

The facts are.as follows: Wesley Clark, testifying for the State, said that on December 20, 1972, he was a director and the purchasing agent for Fast Motor Service, - Inc. (hereinafter designated as F. M. S.), and on that date, he went to the Diesel Hydraulic Company, 1612 South Prairie Avenue, Chicago, to inquire concerning a tractor that F. M. S. was having, repaired. He testified he noticed another tractor owned by the defendant and leased by him to F. M. S. was also there for repair; that F. M. S. had, in the past, been beset by thefts of tires from its vehicles; and that he inspected the tires on defendant’s tractor and discovered that three of the tires on defendant’s tractor were marked with the legends “FMS 674,’” “FMS 1497’’ and “FMS 1501,” respectively. Mr. Clark said that when F. M. S. purchased tires'for its vehicles it branded each one with the mark “FMS,” followed by a number, one number to a tire, by means of a tire branding iron; that he called the F. M. S. office and was told that the numbers “674,” “1497” and “1501” were listed in the company’s records as belonging to F. M. S.; that he then called the Chicago Police Department and pointed out the tires of F. M. S. on the defendant’s tractor; and that the police put that fact in their report.

Mr. .Clark stated he contacted the defendant, who came to his office the following Saturday; that Mr. Clark asked defendant where he got the tires; and that the defendant stated that he had purchased the tires, but refused to say where he purchased them nor did he produce a receipt for their purchase. Mr. Clark also stated he was the only one who could authorize the placement of tires on tractors leased by F. M. Si; and that he never authorized the placement of F. M. S. tires on defendant’s tractor by the defendant or anyone else.

Mr. Clark further stated that 3 or 4 months later, about 1 week before trial, he went to .defendant’s house but did not find any F. M. S. tires on the tractor at that time. Mr. Clark said the value of the tires was less than $150.

Police Officer John Bright of the Chicago Police Department testified that he and his partner responded to Mr. Clark’s call from Diesel Hydraulic on September 20, 1972; that he inspected the tires Mr. Clark told him belonged to F. M. S.; and that he completed a report in which his observations of the F. M. S. markings and numbers on the tires, and Mr. Clark’s claims concerning the rightful owner of those tires, were noted. Officer Bright marked at the top of the report that the claim was “non-founded.” He said the reason for so stating was that Mr. Clark had only made an allegation that the tires rightfully belonged to F. M. S. and at that particular time he had no proof that F. M. S. was the owner. Officer Bright also stated that the reason the report was labeled “non-founded” was that F. M. S. was located in Hodgkins, Illinois, which is outside the jurisdictional limits of the Chicago Police Department.

Defendant testified that the tires which he had been accused of stealing had actually been purchased by him, along with other tires, on two separate occasions at two separate locations. He produced a paper dated April 12, 1972, purporting to be a receipt for four tires purchased in Elmhurst, Ohio, and a paper dated July 23, 1972, purporting to be a receipt for five tires purchased in Knoxville, Tennessee. On cross-examination, defendant stated that he alone drove his tractor; that he did not know the tires on his tractor had an F. M. S. brand on them; that no one else had authority to put tires on the tractor; that he had been asked by F. M. S. to produce any receipts or other proof of purchase by him for the tires; and that he had made an appointment to see Frederick Stevens, the F. M. S. General Manager, approximately 1 month after receiving the F. M. S. communication, but did not see him until sometime later at a State Labor Board meeting. The defendant further testified that he inspected the tires at the time he purchased them; that there were no brand numbers on the tires; and that he is familiar with the F. M. S. brand.

After the defendant was found guilty he filed a motion for a new trial on the basis of newly discovered evidence. The record does not contain the motion for a new trial. However, a hearing on the motion for'a'new trial was held on April 10, 1973. At the hearing, Police Officer Herman Vanderwood of the South Holland Police Department testified that on January 30, 1973, in response to a request of him by defendant, he made an investigation at a Union 76 truck stop on the Calumet Expressway; that the investigation consisted of the inspection of an F. • M. S. tractor, parked at the truck stop; arid: that he found that two tires on the tractor had markings “FMS 1497” and “FMS 1501,” respectively, on them.

The defendant testified at the April 10, 1973, hearing that oh Márch 18, 1973, he forind the third tire he-was accused of taking on an F. M. S. tractor in the F. M. S. parking lot at Hodgkins, Illinois; that the tire had brand number “FMS 674”; and that he made a report of this -investigation to Police Officer William Degno of the Hodgkins Police Department.

The trial court denied the motion for a new trial and placed the defendant on 1-year probation.

The defendant argues that the State failed to prove that the tirés 'ón the defendant’s tractor belonged to F. M. S.

In a prosecution for theft, ownership or some sort of superior possessory interest in one other than the defendant is an essential element of the offense. People v. Demos, 3 Ill.App.3d 284, 278 N.E.2d 89.

In the instant case, Wesley Clark, director and purchasing agent for F. M. S., testified that F. M. S. followed a strict branding procedure in regard to each new tire it purchased; and that each tire was branded with the mark “FMS” followed by a number, one number to a tire, by means of a tire branding iron. Mr. Clark said he called the F. M. S. office and was told that the numbers 674, 1497 and 1501 branded on the tires on the defendant’s tractor were listed in the company’s records as belonging to F. M. S.; and that there was no authorization for the placement of said tires on the defendant’s tractor.

The defendant produced two sets of receipts for a total of nine tires. However, the defendant introduced no evidence showing that the purchased tires bore brand numbers FMS 674, 1497 and 1501, and to the contrary testified that at the time he purchased, the tires, he inspected them and that there were no brand marks on the tires. Defendant stated that the purchased tires were on his tractor on December 20, 1972. On the other hand, Mr. Clark testified that the tires were owned by F. M. S. and were wrongfully on the defendant’s tractor. The fact that the tires bearing F. M. S. brand and numbers 674, 1497 and 1501 were on the defendant’s tractor on December 20, 1972, was corroborated by Police Office John Bright. In view of the foregoing, it cannot be said that the State failed to prove that the tires were the property of F. M. S. People v. Rogers, 16 Ill.2d 175, 157 N.E.2d 28; People v. Gordon, 5 Ill.2d 91, 125 N.E.2d 73.

The defendant also argues that the trial court wrongfully admitted certain evidence presented by the State and on the other hand wrongfully refused to admit certain evidence offered by the defendant. The defendant stated that the State wrongfully was permitted to ask leading questions of Mr. Clark concerning the receipt defendant stated he had for the purchase of the tires. On the other hand, the defendant contends that it was error for the trial court not to permit the defendant to prove that Frederick Stevens, the general manager of F. M. S., viewed the receipts for the tires purchased by the defendant prior to trial.

The propriety of allowing leading questions is within the sound discretion of the trial court, and is not a ground for reversal unless it appears that this discretion has been abused and has resulted in substantial injury to the defendant. (People v. Brooks, 52 Ill.App.2d 473, 202 N.E.2d 265.) In the case at bar, the defendant has failed to show that the alleged leading questions to Clark concerning the defendant’s receipts for the tires he purchased resulted in injury to the defendant. It was not reversible error for the trial court to refuse to permit the defendant to testify that Mr. Stevens, the general manager of F. M. S., viewed the receipts for the tires prior to the trial. Such testimony was merely corroboration of the evidence that the defendant purchased certain tires. Moreover the receipts for the purchase of nine tires by the defendant were introduced into evidence. It is apparent that even if the trial court erred in rejecting evidence offered by the defendant, there is no showing of injury.

The defendant objects to the testimony of Mr. Clark that the defendant’s tractor was leased to F. M. S.; and that F. M. S. had, in the past, been beset by thefts of tires from its vehicles. We are of the opinion that defendant’s objection to Mr. Clark’s testimony concerning the lease on the basis that it was a “conclusion on the part of the witness” should have been sustained. In addition, the defendant’s objection on relevancy grounds to the testimony concerning prior thefts of tires at F. M. S. should also have been sustained. However, as this court stated in People v. Jackson, 95 Ill.App.2d 193, 199, 238 N.E.2d 196, 199:

“[T]he admission of inadmissible evidence which would otherwise be considered prejudicial in a jury trial, will not be considered prejudicial in a bench trial unless it affirmatively appears of record that the trial judge placed reliance thereon in arriving at his judgment. See People v. Robinson, 30 Ill.2d 437, 197 N.E.2d 45; People v. Smith, 55 Ill.App.2d 480, 488, 204 N.E.2d 577.”

The record in this case does not reveal that the court in any way relied upon this evidence and under these circumstances, we are of the opinion that the admission of this testimony was not prejudicial to the defendant.

The defendant also argues that the State has failed to prove beyond a reasonable doubt that the defendant had possession or control over the tires which allegedly were owned by F. M. S. Defendant argues that despite Mr. Clark’s discovery of the tires owned by F. M. S. on defendant’s tractor on December 20,1972, he failed to “take the tires that day.” The fact that Mr. Clark did not instantaneously remove the tires from defendant’s tractor when he discovered the F. M. S. brand and serial numbers does not negate the fact that the tires were found on the tractor which defendant admitted he owned and which was within his exclusive possession and control.

Finally, the defendant argues that the trial court erred in denying his motion for a new trial.

The testimony received in the hearing of the motion for a new trial will be reviewed to determine if the trial court erred in refusing to grant the defendant a new trial. Police Officer Herman Vanderwood of the South HoUand Police Department testified that on January 30, 1973, he inspected an F. M. S. tractor and found that two tires on the tractor had markings “FMS 1497” and “FMS 1501,” respectively. The defendant also testified at the hearing on the defendants motion for a new trial that on March 18, 1973, he found the third tire he was accused of taking on an F. M. S. tractor, brand number “FMS 674,” in the F. M. S. parking lot at Hodgkins, Illinois. The trial court denied the motion for a new trial.

In People v. Holtzman, 1 Ill.2d 562, 569, 116 N.E.2d 338, 342, the court said:

“[T]he burden is upon the applicant to rebut the presumption that the verdict is correct and to show there has been no lack of diligence. The matter is largely discretionary with the trial court, and the exercise of its discretion will not be disturbed except in case of manifest abuse.”

To warrant a new trial, the newly discovered evidence must be of such conclusive character that it will probably change the result on retrial. (People v. Vandever, 79 Ill.App.2d 97, 233 N.E.2d 273; People v. Reese, 54 Ill.2d 51, 294 N.E.2d 288.) The evidence introduced by the defendant on the hearing of the motion for a new trial was not such that the judgment would likely be different on a retrial. The fact that two tires (“FMS 1497” and “FMS 1501”) were seen on an F. M. S. vehicle 15 days after defendant’s conviction and the third tire (“FMS 674”) on an F. M. S. tractor in the parking lot more than 2 months after defendant’s conviction is not evidence of such a conclusive nature as to produce a different result on retrial.

A review of the complete record discloses a conflict in the evidence. Mr. Clark, a director and purchasing agent for F. M. S., testified that on December 20, 1972, he saw the defendant’s tractor at the Diesel Hydraulic Company and discovered that three of the tires on defendant’s tractor were marked with numbers “FMS 674,” “FMS 1497” and “FMS 1501”; that said tires were owned by F. M. S.; and that they were on the defendant’s tractor without the permission and consent of F. M. S. Police Officer John Bright of the Chicago Police Department corroborated Clark’s testimony that tires bearing brand numbers “674,” “1497” and “1501” were on the tractor owned by the defendant.

On the other hand, the defendant introduced evidence to the effect that he had purchased the tires, and introduced receipts for the purchase of nine tires, but stated he examined the tires at the time of pinchase and there were no brand numbers on the tires. At the hearing on the motion for a new trial, evidence was introduced that on January 30, 1973, two tires bearing markings “FMS 1497” and “FMS 1501” were found on a tractor owned by F. M. S.; and that on March 18, 1973, a tire bearing brand number “FMS 674” was found on an F. M. S. tractor in the F. M. S. parking lot at Hodgkins, Illinois. The net result of this testimony is that Clark testified the disputed tires belonged to F. M. S. and were wrongfully on the defendant’s tractor, while the defendant’s testimony is to the effect that the tires were always in the possession of F. M. S.

In a bench trial, it is the responsibility of the trial judge to determine the credibility of the witnesses and the weight to be given their testimony, and unless the evidence is so unsatisfactory as to raise a reasonable doubt as to the defendant’s guilt, the finding of the trial judge will not be disturbed. (People v. Bracey, 129 Ill.App.2d 57, 262 N.E.2d 748; People v. Catlett, 48 Ill.2d 56, 268 N.E.2d 378; People v. Simental, 11 Ill.App.3d 537, 297 N.E.2d 356.) In the case at bar, there is sufficient evidence to sustain the judgment.

The judgment is affirmed.

Judgment affirmed.

EGAN, P. J., and HALLETT, J., concur.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Dorman (Impleaded), Defendant-Appellant.
    (No. 57967;
    First District (4th Division)
    June 12, 1974.

      James J. Doherty, Public Defender, of Chicago (Donald S. Honchell and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Roger Horwitz, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant, John Dorman, was convicted of burglary at a bench trial in March of 1972, and he received a sentence of 2 to 4 years.

The issues presented for review are whether the defendant was proven guilty beyond a reasonable doubt of the crime charged in the indictment, and whether tire sentence of 2 to 4 years is proper under the Unified Code of Corrections.

The defendant was arrested as he was leaving an office at 900-920 North Franklin Street in Chicago in the early morning hours of September 8, 1971. He and a companion had been seen walking down the inside stairway of the building by two policemen, who had responded to a “burglary in progess” call. Officer Jerry Levan testified he saw two individuals “who appeared to be exiting the second floor and walking down the stairs.”

The defendant was arrested as he stepped outside the building. His companion retreated inside the building and was later apprehended by a canine unit.

Inspection of the building revealed a pane of glass on the fire doors of both the second and third floors of the building had been broken in a manner which would allow a person to reach in and open the door from the inside. The general manager of Missionary Services, Inc., the tenant on the second floor of the building, testified there was nothing missing or disturbed in the offices. The premises on the third floor, which were leased to the Aleo Company, were found to be in disorder and there was some damage.

The defendant was charged with the burglary of the second-floor offices of Missionary Services, Inc., and the defendant contends he was not proved guilty of burglarizing those offices beyond a reasonable doubt, because the State failed to prove he actually entered into the offices of Missionary Services, as charged in the indictment.

Section 19 — 1 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, § 19 — 1) provides in part:

“(a) A person commits burglary when without authority he knowingly enters or without authority remains within a building, * * * or any part thereof, with intent to commit therein a felony or theft.”

The defendant contends no such entering was proved and the most the State did show was that the rear fire escape window was broken by unknown persons at some unknown time during the night of September 7-8, 1971. The defendant relies on cases which state that abortive attempts at gaming entry to a building are not sufficient to constitute the crime of burglary. (People v. Urbana (1959), 18 Ill.2d 81; People v. Borden (1967), 84 Ill.App.2d 442; People v. Davis (1972), 3 Ill.App.3d 738.) However, in those cases no entry was effected. In the case at bar the defendant was observed by police officers coming off the second floor of the building where the offices of Missionary Services, Inc., were located. The fact that nothing was taken is not significant. In People v. Gooch (1966), 70 Ill.App.2d 124, 130, the court stated:

“The crime of burglary is complete upon entering with the intent to steal, and it is not essential to allege or prove that anything was taken. • [Citation.] Intent may be inferred from the proved facts and circumstances.”

In the instant case the defendant was apprehended in the early morning hours as he came out of a building, although he had no authority to be in the building. He was seen by police officers exiting the second floor, and the window in the fire door on the second floor had been broken in a manner in which entry could be effected. This is a chain of circumstantial evidence from which the defendant’s guilt may be properly inferred. In the case of People v. Marino (1970), 44 Ill.2d 562, the court stated:

“‘[A] conviction may be sustained upon circumstantial as well as direct evidence [citation], it being necessary only that the proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. * * *.’ ”

We conclude the evidence is sufficient to sustain a burglary conviction.

The State concedes the Unified Code of Corrections is applicable, and the defendant is entitled to a reduction of the minimum sentence. Burglary is a Class 2 felony under section 19 — 1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, § 19 — 1), and a defendant who is guilty of a Class 2 felony may not be sentenced to a term where the minimum is greater than one-third of the maximum. Ill. Rev. Stat. 1973, ch. 38, § 1005 — 8—1(c)(3).

Accordingly, the minimum sentence must be reduced to a term of 16 months.

For these reasons the judgment of the Circuit Court of Cook County is affirmed and the sentence is modified.

Affirmed as modified.

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


author: Mr. JUSTICE JOHNSON.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Raymond R. Clemens, Defendant-Appellant.
    (No. 57351;
    First District (4th Division)
    June 12, 1974.
   Opinion by

Mr. JUSTICE JOHNSON.

James J. Doherty, Public Defender, of Chicago (John Moran, Assistant Public Defender, of counsel), for appellant.

Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Daniel F. Murray, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Allen Harris, Defendant-Appellant.
    (No. 57215;
    First District (4th Division)
    June 12, 1974.

      James J. Doherty, Public Defender, of Chicago (John Bogren, Assistant Public Defender, of counsel), 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.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The defendant, Allen Harris (also referred to at trial as Allen Cage), was found guilty of burglary after a jury trial in the Circuit Court of Cook County. He was sentenced to serve a term in the Illinois State Penitentiary of not less than 10, nor more than 20 years. Defendant brings this appeal claiming that:

(1.) He was denied a fair trial by certain questions of the prosecutor during his cross-examination of defendant and by certain portions of the State’s closing argument to the jury; and

(2.) The sentence imposed must be modified to conform with the provisions of the Unified Code of Corrections.

The facts are as follows:

On May 24,1969, the Chicago police responded to a call from a burglar alarm at a printing shop located in the city. A canine unit arrived at the scene and the dogs were sent into the building. Defendant and a companion emerged shortly thereafter and were arrested by the waiting-officers. A search of defendant’s person disclosed a screwdriver and $11.50 in nickels, dimes and quarters. Inside the building the police found that a soft drink machine and a coffee machine had been broken open and the empty coin-boxes had been left lying on the floor near them. Various other damage was discovered, as was the fact that several typewriters and adding machines were taken from the office and left on the loading dock. The safe and file cabinets had been tampered with as well. The officer who transported defendant to the police station testified that after advising defendant of his “rights”, including his right to remain silent, defendant said that he had broken into the vending machines and participated in the other acts.

At trial, at the close of the State’s case, defendant asserted an intoxication defense. His mother testified that her son was a heroin addict. Testifying in his own behalf, defendant stated that he was a heroin addict, using about $75 a day in heroin at the time of his arrest. On that date, defendant claimed that he had “shot up” $25 worth of heroin and the next thing he remembered was waking up in the police station following his arrest. When taken to County Jail the next day he went through narcotic withdrawal. (These symptoms of withdrawal were confirmed by jail records introduced at trial.)

Defendant’s initial contention on this appeal arose out of the following exchange during his cross-examination by the prosecutor:

“Q. Okay, fine. You say you were using $75 a day in narcotics? A. Yes.
Q. Do you work?
A. Yes.
Q. How much do you make a day at your job?
A. I wasn’t working that day.
Q. You weren’t working then?
A. No.
Mr. Nettleton [Defendant’s Counsel]: Objection of this line of questioning. This is not relevant to whether or not he is guilty of the crime charged.
THE COURT: It is cross-examination. He may answer.
Mr. Gertie [Assistant State’s Attorney]: You weren’t working at the time?
The Witness: A. No.
Q. Where did you get the money to buy narcotics?
The Witness: A. Well, I was going around obtaining the money— I was doing wrong in obtaining the money.”

It is urged that these questions were improper as they were not relevant to any material issue and were intended solely to inflame and prejudice the jury by showing that defendant had a propensity to commit crimes.

We are of the opinion that defendant’s contention is without merit. It was defendant’s position at trial, brought out in direct examination, that he was a heroin addict with a $75-a-day “habit” to support, that he had been under the influence of heroin that day, and that he could not remember anything that happened until he woke up at the police station following his arrest. It was entirely proper, therefore, for the prosecutor to ask questions relating to defendant’s addiction. Defendant stated that he had an expensive habit to maintain and it was highly relevant to ask how he managed to support it. A defendant cannot complain when the prosecutor pursues lines of inquiry on cross-examination which are initiated by the defendant during his testimony on direct examination. People v. Bridgeforth, 51 Ill.2d 52, 66, 281 N.E.2d 617; People v. Nastasio, 30 Ill.2d 51, 58, 195 N.E.2d 144; and People v. Longstreet, 2 Ill.App.3d 556, 559, 276 N.E.2d 825.

Defendant further claims that he was denied a fair trial by certain comments of the prosecutor during closing argument regarding defendant’s testimony that he had a $75-a-day heroin habit and that he ob-tamed money to support it by “doing wrong”. No objection was made to this argument by defendant’s counsel at trial, so the alleged error, if any, was waived. People v. Donald, 29 Ill.2d 283, 194 N.E.2d 227; People v. Sinclair, 27 Ill.2d 505, 190 N.E.2d 298; and People v. Davis, 126 Ill.App.2d 114) 261 N.E.2d 428.

Defendant’s final contention is that the sentence of not less than 10 nor more than 20 years in the Illinois State Penitentiary was excessive and should be reduced by this court. The instant case has not reached a “final adjudication” as of the effective date of the Unified Code of Corrections and defendant is then entitled to the benefit of its provisions. (People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1; People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.) The Unified Code of Corrections classifies burglary as a Class 2 felony (Ill. Rev. Stat. 1973, ch. 38, par. 19 — 1(b)) and as such the maximum term may be any term in excess of 1 year up to 20 years, with the minimum term not to exceed one-third the maximum set by the court. (Ill. Rev. Stat. 1973, ch. 38, pars. 1005 — 8—1(b) (3) and 1005 — 8—1(c)(3).) The minimum sentence, with the maximum set at 20 years, cannot exceed 6 years and 8 months.

This court firmly believes that the maximum sentence imposed by the trial judge was in no manner excessive. We find that the maximum sentence of 20 years was justified and was not a penalty that would constitute a departure from the fundamental purpose and spirit of the law under the facts of the instant case. (People v. Smith, 14 Ill.2d 95, 150 N.E.2d 815.) The maximum sentence of 20 years is affirmed. The minimum sentence as discussed above, will then be modified to not less than 6 years and 8 months.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is affirmed as modified.

Judgment affirmed as modified.

BURMAN and JOHNSON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lonell Robinson, Defendant-Appellant.
    (No. 56343;
    First District (4th Division)
    June 12, 1974.

      Paul Bradley and Margaret Maxwell, both of the State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The defendant, Lonell Robinson, was tried in a jury trial in the Circuit Court of Cook County for the offenses of rape and two counts of armed robbery. He was found guilty of all charges and was sentenced to concurrent terms of not less than 5 nor more than 10 years for each count of armed robbery and a consecutive sentence of not less than 20 years nor more than 40 years for rape. Defendant appeals claiming that:

(1) He was denied his right to a fair trial by the State’s use of certain hearsay evidence;

(2) The identification of defendant was the result of illegal detention and/or suggestive identification procedure;

(3) He was denied equal protection of the law due to his sex, since Illinois law provides that no male under 17 years of age may be prosecuted under the criminal laws, but fixes the age for females at 18;

(4) He was not proven guilty beyond a reasonable doubt; and

(5) The sentences imposed were excessive.

The facts are as follows:

At about 5:15 P.M. on the afternoon of November 26, 1970, Mr. and Mrs. Earl H. Regnier were in their room at the Conrad Hilton Hotel in Chicago. The couple was in Chicago with their daughter for a 4-H Club congress. Mrs. Regnier was sitting in a chair next to the door, her husband was in the bathroom, and her daughter was in the room next to theirs. Mrs. Regnier testified that at this time a young man walked into the room with a knife in one hand and a gun in the other. The man told her that it was a “stickup” and not to cause him any trouble. She described his voice as low and soft. The man walked to the bathroom and kicked in the door. After Mr. Regnier dressed, he and his wife were told to lie face down on the bed. The man then closed the curtains, bound the wrists and feet of the Regniers, gagged them, and removed Mr. Regniers watch. The man ransacked the entire room.

When he had finished, the man rolled Mr. Regnier off the bed, turned Mrs. Regnier over on her back, got up on the bed and untied her legs. Mrs. Regnier kicked at him, so he put the knife to her throat, cutting her slightly, and told her to “co-operate”. He then raped Mrs. Regnier, washed himself, went through Mr. Regniers brief case, re-tied Mrs. Regnier s feet and left the room. Mrs. Regnier stated that the man had been in the room for between half and three-quarters of an hour. The lights were on in the room.

Shortly after the incident, the police arrived to take Mrs. Regniers statement. The description given of her attacker was that of a black man, about 20 years old, 6 feet tall, 150 to 160 pounds, with “mod” dress and haircut. Mr. and Mrs. Regnier described the man to a police artist so that a sketch of the man could be prepared. They were given a number of photos to look through, from which Mrs. Regnier was able to make an identification. A lineup was held later and Mrs. Regnier identified Lonell Robinson as her attacker. (Robinsons picture had been in the group shown to Mrs. Regnier.) In making the identification, Mrs. Regnier said that she also recognized defendant’s voice and the particular manner in which he moved his mouth when he spoke.

Mr. Regnier testified next, giving essentially the same testimony as his wife. He identified the defendant as the man who attacked his wife and ransacked their room at the hotel. He had viewed the photographs and had made an identification at a lineup, though not the same lineup viewed by his wife.

Officer Daniel O’Connor, Chicago Police Department, arrested defendant for a curfew violation at about 4 A.M. on the morning of November 29, 1970. Officer O’Connor, with his partner Officer Wojnar, had responded to a call that somebody was breaking into vending machines at the Wilson Avenue platform of the C.T.A. When they arrived, the ticket agent told them to go up the stairs to the train level. The officers went up and found two men on the platform, one of whom was the defendant. Though both men denied breaking the glass on the vending machine the officers took them to the police station for investigation. Defendant, who was 17 years old at the time, was charged with a curfew violation. Officer O’Connor contacted detectives at Area 1, Homicide, regarding defendant since he noticed that he fit the physical and clothing description of a person sought in connection with a crime committed at the Comad Hilton Hotel. He informed defendant that he had done so and advised him further that the detectives would hold him for a lineup. He did not recall if he had or had not informed defendant that he could post a $25 bond for the curfew charge, but stated that this was normally the duty of the desk sergeant or the lockup keeper. He asked defendant if his family would be concerned if he didn’t contact them. Defendant said that they would not be worried.

The next witness for the State was Matthew Landers, a police officer working part-time as a security officer at the hotel. He described the condition in which he found the Regniers and their room at the hotel when he and the assistant manager entered. Mrs. Regnier gave him a description of her attacker, following which Officer Landers summoned the police to the scene. He was relieved by the chief of hotel security shortly afterwards.

Otis M. Rathel, a police officer and police artist, testified that he had drawn a sketch of the man described by the Regniers and that they indicated that the sketch was similar to the man in question.

Dennis Wojnar, Officer O’Connor’s partner the night of defendant’s arrest, testified that when he asked defendant if he had cut his hair recently or always wore it the way it was at the time of the arrest, defendant said: “No, I’m wearing my hair down now.” Officer Wojnar described how defendant produced a comb from his back pocket and combed his hair forward so it looked much higher than it had before. This incident was not put into the arrest report, but Officer Wojnar said that every detail is not normally put into this report.

The State next presented the testimony of Officer William Donnelly, assigned to Area 1 Homicide-Sex Unit during the time of the incident. Officer Donnelly had been in charge of staging the lineup for the Regniers. He described the procedure used and the participants. He stated that both Mr. and Mrs. Regnier, brought in separately, had identified the defendant Lonell Robinson at the lineup. The State closed its case with testimony as to various pieces of evidence found at the scene and the results of certain medical tests.

The defense presented the alibi testimony of various members of defendant’s family to the effect that he had been at home on the day of the incident at the Comad Hilton until 5 or 7 P.M. Defendant testified in his own behalf. On November 26, 1970, he was at home until 6 or 6:30 P.M. He claimed that at this time he left to meet Thomas Reeves at his home and from there, the two of them went to the Huff’s home at 8506 S. Carpenter, in Chicago. They arrived there at about 8 or 9 P.M. He denied saying anything to the officers about being able to alter his hair style with a comb. The defendant, his mother, and Thomas Reeves described defendant’s dress on November 26, 1970, as blue jeans, an Army shirt without sleeves with a sweatshirt over that, and a pair of Army combat boots.

In rebuttal, Officer Donnell stated that defendant had told him that he was at 85th and Carpenter almost the entire day of November 26, 1970. Officer Donnelly further stated that Mrs. Huff told him that she saw defendant at her home at about 5 P.M. on November 26, 1970. Officer Banahan testified regarding defendant’s statement to him and Officer Donnelly above. The State last called Ingabor Gignac who stated that defendant was the man who entered her hotel room November 27, 1970, with a gun which she identified at trial.

In surrebuttal the defense called Mrs. Juanita Huff and Thomas Reeves. Mrs. Huff testified that she had not in fact seen the defendant until 9:30 or 10 P.M. on the night of the incident. She admitted telling the police that she had seen him at about 5 P.M. The State objected to this testimony and after a conference outside the presence of the jury, the testimony of Mrs. Huff was stricken and the jury was instructed to disregard it. Thomas Reeves testified that defendant had arrived at his house that day at 7 or 7:30 P.M. and the two of them went to the Huffs a while later. He said he did not know where the defendant had been between 5 and 6 P.M. that day.

Defendant first claims that he was denied a fair trial by the use of certain evidence by the State at trial. Defendant urges that the testimony of Officer Donnelly as to statements made to him by Thomas Reeves and Juanita Huff was hearsay and should have been excluded. It is also claimed that the testimony of Officer Donnelly and Officer Banahan regarding the Regnier s actions at the lineup and testimony relating to the sketch drawn by the police artist were hearsay and inadmissible.

We note, however, that no objection was raised at trial to most of this testimony or the objection, if made, was not to the hearsay nature of the evidence but rather was directed at the scope of the questioning. The alleged error in admitting the testimony would therefore be waived on appeal. As Mr. Justice Goldberg stated in People v. Henderson, 2. Ill.App.3d 401, 276 N.E.2d 372:

“It is fundamental and basic that this court can review only errors committed at the trial. Where no objection is raised, error, if any exists, has been waived * * * [C]laims such as impropriety in use of hearsay testimony and unsworn testimony may not be raised for the first time in this court on appeal. Unless timely objection to incompetent evidence is made at the trial level, the point may not be raised on appeal.” (2 Ill.App.3d at 406.)

Further, an objection to evidence based on a specific ground waives objection to all other grounds not specified. In People v. Washington, 23 Ill.2d 546, 548, 179 N.E.2d 635, a claim that the admission of a list of serial numbers of bills was error since it was hearsay was deemed to have been waived on appeal where, at trial, the objection to its admission was on the specific ground that it was a carbon copy and not shown to be correct. See also People v. Frenchwood, 28 Ill.2d 139, 190 N.E.2d 767, and City of Chicago v. Baird, 132 Ill.App.2d 644, 270 N.E.2d 259.

Defendant urges this court not to consider that the error asserted was waived by failure to object at trial, but asks this court to hold that the use of this testimony was plain error. Defendant’s argument is best summarized by the statement of this court in People v. McGrath, 80 Ill.App.2d 229, 234-235, 224 N.E.2d 660, cited by defendant:

“Because defendant failed to object to the hearsay testimony the State contends these errors cannot be considered on appeal. However, every defendant is entitled to a fair trial, and if on the face of the record it appears that he did not get one, it is the duty of this court to consider that matter, despite the fact that objections were not urged. People v. Moore, 9 Ill.2d 224, 137 N.E.2d 246; People v. Morgan, 20 Ill.2d 437, 170 N.E.2d 529. Our Criminal Code provides that plain errors may be noticed on appeal although not brought to the attention of the trial court if they affect substantial rights of the defendant. (Ill. Rev. Stat. 1963, ch. 38, par. 121 — 9(a) [Now, Ill. Rev. Stat. 1973, ch. 110A, par. 615(a)].) We feel that this case comes well within the realm of this provision and the aforementioned cases.”

The “plain error” concept does not “mandate that a reviewing court consider all errors involving substantial rights whether or not the same have been brought to the attention of the trial court.” (People v. Pickett, 54 Ill.2d 280, 283, 296 N.E.2d 856.) This rule is permissive and it is within the discretion of the reviewing court whether or not to consider this type of error where it was not raised before the trial court. People v. McAdrian, 52 Ill.2d 250, 255, 287 N.E.2d 688, citing People v. Le May, 35 Ill.2d 208, 212, 220 N.E.2d 184.

Looking at the record presented to us on this appeal, we cannot say that the error complained of was of such magnitude so as to deprive defendant of a fair trial. We note that defendant not only acquiesced to the admission of the testimony now objected to, but in several instances asked specific questions in cross-examination regarding the description given by the victims and for other details regarding the testimony in question. It was evidently part of the trial strategy of defendant’s counsel to use this testimony to attempt to weaken the State’s case rather than object to its admission. We therefore hold that these alleged errors cannot be raised for the first time on this appeal nor are they of such scope to be cognizable as plain error.

Defendant further argues that the striking of Mrs. Huffs testimony in surrebuttal was error. We disagree. As stated in defendant’s brief, the avowed purpose of this testimony was to answer Officer Donnelly’s testimony that Mrs. Huff had stated to him that she had seen defendant at about 5 P.M., on November 26, 1970, as she returned from work. Mrs. Huff confirmed that she had in fact made this statement to the officer but that she had not in fact seen him that day until much later. This testimony did not in any manner serve the purpose for which it was ostensibly offered, i.e., to rebut the statement of Officer Donnelly as to what was said to him, nor would it serve to bolster defendant’s alibi defense in any way since she had not seen him until long after the time of the offense. The testimony was properly stricken by the trial judge.

Defendant contends that his identification as the man that committed the rape and robbery was the result of illegal detention and suggestive procedure. Initially, it is argued that it was improper to detain defendant on the curfew violation, as he should have been informed that it was possible to post the $25 statutory bond at the police station. It is also suggested that he was held incommunicado as he was not allowed to call his family. The arrest for curfew violation was, however, proper. While the record does not affirmatively demonstrate that defendant was informed that he had a right to post bond on this charge, Officer O’Connor said that he did not remember if he informed defendant but that this would normally be the function of the desk sergeant or the lockup keeper. He did say, however, that he told defendant that he was going to be held for a lineup and asked whether his family would be worried if he didn’t tell them where he was. Defendant replied that they would not be concerned.

Defendant further claims that there was no probable cause to hold him for the rape and robbery. We find that there was sufficient probable cause since his physical description and clothing matched that given by the Regniers and included in the bulletin read by Officer O’Connor. In addition, the police were aware that defendant had recently worked at the Conrad Hilton.

The basis for the contention that the identification procedures were unduly suggestive was that certain photos were taken of defendant after his arrest and were shown, along with several others, to the Regniers. He was then placed in a lineup. Defendant submits that the photographic identification was unnecessary and prejudicial since he was in custody, available for a lineup, and was the only person in the lineup whose picture had been shown to the Regniers. Defendant relies primarily on People v. Holiday, 47 Ill.2d 300, 265 N.E.2d 634, as support for his argument that this type of procedure was improper. Again, we must disagree with defendant. In Holiday, the photographic procedure was much more suggestive than that used in the instant case. There, a single photograph was shown of tire defendant and the witness had but a fleeting glimpse of the defendant. On this basis, the cause was remanded for a hearing to determine the admissibility of the identification. The key factor in the decision to remand was the lack of opportunity for the witness to observe the defendant and the totality of the circumstances surrounding the identification. (See People v. Waters, 2 Ill.App. 3d 429, 431, 275 N.E.2d 472, and People v. Ike, 7 Ill.App.3d 75, 78, 286 N.E.2d 391.) Considering the totality of the circumstances of this confrontation, as we are required to do (Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967; People v. Fox, 48 Ill.2d 239, 269 N.E. 2d 720; People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152), we find that the Regniers had abundant time during the commission of the rape and robbery to closely observe defendant and the procedure used was not so unduly suggestive as to require suppression of the identification.

The next point raised by defendant on appeal concerning identification procedures is the testimony of Mrs. Gignac for the State in rebuttal. As we discussed above, considering the totality of the circumstances of the identification and the ample time (about 7 to 10 minutes) in which Mrs. Gignac was able to observe defendant in the hotel room, we do not find that the identification was in any way improper or unduly suggestive.

Defendant alleges that he was denied equal protection of the law as a result of section 2 — 7(1) of the Juvenile Court Act (Ill. Rev. Stat. 1969, ch. 37, par. 702 — 7(1)), which provides:

“(1) Except as provided in this section, no boy who was under 17 years of age or girl who was under 18 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this State or for violation of an ordinance of any political subdivision thereof.”

As a consequence of the above provision, defendant submits that he was denied equal protection of the law due to his sex since as a 17-year-old male he would not have been “entitled to the benefits of the juvenile court” whereas he may have had this benefit had he been a female, unless the court approved the State’s Attorney’s request to transfer the case to a regular criminal court under section 2 — 7 of the Juvenile Court Act (Ill. Rev. Stat. 1969, ch. 37, par. 702 — 7). This argument was recently presented and rejected by the Illinois Supreme Court in People v. McCalvin, 55 Ill.2d 161, 302 N.E.2d 342, which held that this section did not deprive a defendant of equal protection of the law. We find this case to be controlling on the question raised on the instant appeal and, therefore, defendant was not denied equal protection of the law based on his sex. See also People v. Wilson, 16 Ill.App.3d 118, 305 N.E.2d 602, and People v. McCabe, 15 Ill.App.3d 169, 303 N.E.2d 469.

Defendant submits that he was not proven guilty beyond a reasonable doubt since the only evidence of his guilt was the identification testimony of Mr. & Mrs. Regnier. It is claimed that the identification was vague, doubtful and uncertain and was the result of a suggestive confrontation supported by “prejudicial and cumulative hearsay.” We have disposed of the confrontation and hearsay questions above and we are not persuaded that the testimony of the Regniers was so vague or uncertain that it would fail to “produce an abiding conviction of guilt.” People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232.

Defendant points out what he considers to be certain inconsistencies between the description given police after the incident, the description at trial and defendant’s actual appearance. We find that these alleged inconsistencies are relatively minor, if they are inconsistencies at all, and as such they would go to the weight and credibility to be given the Regniers’ testimony by the jury. The jury found the testimony of the Regniers to be more credible than that offered by defendant and the witnesses testifying in his behalf. Determination of the credibility of witnesses is the function of the jury and a reviewing court will defer to this judgment. People v. Stewart, 46 Ill.2d 125, 262 N.E.2d 911.

The final question presented to this court for review is whether the sentences imposed upon defendant were excessive. Defendant was sentenced to serve concurrent terms of not less than 5 nor more than 10 years for each of the two counts of armed robbery and a term of not less than 20 nor more than 40 years for the rape of Mrs. Regnier. The sentence for the offense was to run consecutively with the robbery sentences. There is no question in this court’s mind that the circumstances of the robbery and rape committed by defendant justify the length of the sentences imposed upon him. While we take due notice of the facts relating to the offenses, we also must take into account the person of the defendant. Lonell Robinson was 17 years old at the time these offenses took place. He had no prior record of criminal activity save for several instances where he had been arrested by the police for curfew violations. His mother testified he had gone to work to help support his brothers and sisters. In view of his age and his background, this court will exercise its power under Illinois Supreme Court Rule 615 (Ill. Rev. Stat. 1973, ch. 110A, par. 615(b)) to modify the sentence imposed on Lonell Robinson so that the sentence of not less than 20 years nor more than 40 years is changed to run concurrently with the sentences for armed robbery rather than consecutively.

The judgment of the Circuit Court of Cook County is affirmed as modified.

Affirmed as modified.

BURMAN and JOHNSON, JJ., concur.


author: Mr. JUSTICE GOLDBERG

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Charles Farrell, Defendant-Appellee.
    (No. 58583;
    First District (1st Division)
    June 17, 1974.

      William J. Scott, Attorney General, of Chicago (James B. Zagel, Charles H. Levad, and Melbourne A. Noel, Jr., Assistant Attorneys General, of counsel), for the People.
    Foss, Schuman & Drake, of Chicago, for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Charles Farrell (defendant) was charged with illegal transportation of untaxed cigarettes under the Illinois Cigarette Tax Act. (Ill. Rev. Stat. 1971, ch. 120, par. 453.9c.) The trial court sustained his motion to suppress the physical evidence which consisted of some 220 packages of untaxed cigarettes which he was transporting in Illinois in his automobile. The State has appealed. Supreme Court Rule 604(a)(1), 50 Ill.2d R. 604(a)(1).

In this court the State contends that revenue agents of Illinois had probable cause to stop the defendant’s car after observing his apparent violation of the revenue laws of Illinois; the agents legally seized untaxed cigarettes which were in plain view when defendant stopped his automobile; and, in any event, their search of the automobile was legal by virtue of consent given by the owner. No brief has been filed by defendant. Although we have authority to reverse the order appealed from pro forma, we find that examination of the record convinces us that a reversal on the merits is necessarily indicated. Compare People v. Holt, 18 Ill.App.3d 10, 11, 309 N.E.2d 376, to People v. Keeney, 96 Ill.App.2d 323, 238 N.E.2d 614, and People v. French, 9 Ill.App.3d 797, 293 N.E.2d 136.

At the hearing of the motion to suppress, defendant called one of the Illinois revenue agents who testified on direct examination only. The trial court then immediately granted the motion. The court refused to permit cross-examination of the witness by the State and refused to permit the State to introduce additional evidence pertaining to the motion. We are therefore required to reverse the order appealed from and to remand the cause for a complete hearing on the merits of the motion to suppress. In doing so, we respectfully suggest that the following matters be considered by the trial court after a hearing of all the evidence:

1. Was there probable cause or reasonable grounds for the revenue agents to arrest defendant? People v. Clay, 55 Ill.2d 501, 504, 304 N.E. 2d 280, and cases therein cited.

2. Was the personal property in question in plain view so that there was actually no search by the officer? People v. Bombacino, 51 Ill.2d 17, 22, 280 N.E.2d 697, cert. denied, 409 U. S. 912.

3. Should the conduct of the agents be considered in the light of the accepted differences between search of a dwelling and of an automobile? People v. Gant, 14 Ill.App.3d 282, 302 N.E.2d 376, and cases therein cited.

4. Did defendant give proper and sufficient consent to examination of his automobile? People v. Brooks, 51 Ill.2d 156, 167, 281 N.E.2d 326. Also Schneckloth v. Bustamonte, 412 U. S. 218, 36 L. Ed. 2d 854, 93 S. Ct. 2041.

The order appealed from is accordingly reversed and the cause remanded with directions for the taking of further proceedings not inconsistent with the above opinion.

Reversed and remanded.

EGAN, P. J., and BURKE, J., concur.


author: Mr. JUSTICE BURMAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Carlton Henderson, Defendant-Appellant.
    (No. 59344;
    First District (4th Division)
    June 12, 1974.

      Paul Bradley and Allen Wiederer, both of the State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE BURMAN.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eddie Murrell, Defendant-Appellant.
    (No. 59036;
    First District (4th Division)
    June 12, 1974.

      Paul Bradley and Brenda E. Richey, both of the State Appellate Defenders Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Dennis J. O’Hara, Assistant State’s Attorneys, of counsel, and Forrest M. Tatel, Senior Law Student), for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The defendant, Eddie Murrell, was arrested in the early morning hours of February 8, 1973, and charged with the offenses of theft of property valued at less than $150 and battery that had occurred shortly before the arrest. Later that same day, February 8, 1973, defendant was tried in the Circuit Court of Cook County, before the Honorable Lawrence I. Genesen. Defendant was found guilty of theft and battery against Isaiah Brewer and not guilty on the same charges against Robert Osburn. Following a hearing in aggravation and mitigation, defendant was sentenced to probation for 1 year, and a term of periodic imprisonment for 3 weekends. A notice of appeal from the conviction was filed immediately after the trial on February 8, 1973. On the following day, February 9, 1973, the State moved to vacate the sentence imposed, offering evidence that, contrary to the State’s presentation the day before, the defendant had a prior record of criminal conviction and asking that a new sentence be imposed. The court granted this motion the same day that it was filed and sentenced the defendant to the Illinois State Farm at Vandalia for a term of 7 months.

Defendant brings this appeal contending that:

(1) The record does not reflect a knowing and intelligent waiver of his right to trial by jury;

(2) He was not proven guilty beyond a reasonable doubt;

(3) It was error for the trial court to vacate the original sentence and impose a new sentence; and

(4) It was error to sentence the defendant for two offenses arising out of the same transaction.

It is necessary for this court to consider only defendant’s first contention; that the record does not reflect a knowing and intelligent waiver of his right to a trial by jury. The record on appeal contains the following discussion between the trial judge, the Assistant State’s Attorney, and the Assistant Public Defender appointed to represent defendant:

“THE COURT: Let’s get on with it. Have you filed your charges now?
MR. DeJOHN: [Assistant State’s Attorney]: Yes Judge, we have four reduced charges in total.
THE COURT: Let me have them. Kidd (phonetic) is charged with battery on the person of Robert Osbum. Is that the only charge against Kidd?
MR. PTACEK [Assistant Public Defender]: No, your Honor. MR. DeJOHN: The battery charge—
MR. PTACEK: All defendants plead not guilty, waive trial by jury, ready for trial.
THE COURT: All right, where is the — all right, plead not guilty, jury waived, swear the witnesses.”

There is nothing else in the record aside from this colloquy regarding the waiver of defendant’s right to a trial by jury.

The Illinois Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 103— 6) provides that: “Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court.” Whether or not this waiver is made knowingly and understandingly must be decided on the facts presented by each case. (People v. Thomas, 10 Ill.App.3d 651, 295 N.E.2d 234.) No specific formula exists to test a jury waiver and the record of a purported waiver must be examined by this court when the issue arises to determine if the waiver in that particular instance was properly accepted. (People v. Geary, 8 Ill.App.3d 633, 291 N.E.2d 13.) Looking at the record of the instant case, we cannot say that the waiver of defendant’s right to trial by jury was knowingly and intelligently made.

The State urges that this waiver was in fact knowing and intelligent even though there is no showing on the record of defendant’s acquiescence to the waiver. The State relies on the decision in People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397, where it was held that where a jury waiver is made in open court by counsel for defendant without any objection made by defendant, then tins is deemed to be an acquiescence to the waiver. (Though in Sailor counsel for defendant had been privately retained, no distinction is made between jury waivers by retained or court appointed counsel. People v. Suriwka, 2 Ill.App.3d 384, 276 N.E. 2d 490.) While this court has generally recognized that an attorney’s waiver of his client’s right to a jury trial, in open court without the client’s objection, will normally bind the client to the waiver, it has also recognized that no precise standard exists to determine if this type of waiver was understandingly made. The particular facts of each case must still be examined by the reviewing court. People v. Kaprelian, 6 Ill.App.3d 1066, 286 N.E.2d 613.

The record of the instant case shows that defendant was arrested on the morning of February 8, 1973, was tried, convicted, sentenced and filed his notice of appeal all on the same day. In People v. Baker, 126 Ill.App.2d 1, 262 N.E.2d 7, and People v. Boyd, 5 Ill.App.3d 980, 284 N.E.2d 699, this court reversed jury waivers made by the Public Defender appointed to represent a defendant just prior to the case going to trial. In Boyd, discussing Baker and Sailor, we stated:

“In Baker, the defendant went to trial with a lawyer furnished a few minutes before. The Assistant Public Defender stated that the defendant waived his right to a jury trial. The factual situation in the case at bar is practically identical to the factual situation in Baker. Therefore, the rule of the Sailor case does not apply to a case in which a defendant appears in court without counsel and is furnished one the moment when he goes to trial and the record does not show that the defendant. knew or was informed of his right to trial by jury.
In the case at bar, the Public Defender was appointed moments before the trial began. There was no recess in the proceedings for defendant to consult with this newly appointed counsel. The record does not affirmatively show that the defendant knew or was informed of his right to trial by jury and therefore his jury waiver was not made knowingly and understandingly.” (5 Ill.App.3d at 982.) (Emphasis added.)

The State attempts to distinguish Baker and Boyd from the instant case by saying that in those cases counsel was appointed prior to trial and the only opportunity for any consultation was a brief, off the record discussion with no time for a meaningful consultation regarding any waiver of rights. The facts of the instant case; the offense, the arrest, the trial, and the beginning of the appellate process in the span of one day, demonstrate that as in Boyd and Baker, counsel would have to have been appointed just prior to going to trial. Our reading of the record confirms this. There is a lack of any affirmative showing or any basis to presume that defendant knew or was informed of his right to trial by jury. As a result, it has not been shown that the jury waiver was knowingly and intelligently made.

In view of this conclusion, we need not consider defendant’s other contentions. For the reasons given above, the judgment of the Circuit Court of Cook County is reversed and the case remanded for a new trial.

Reversed and remanded.

BURMAN and DIERINGER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ricky Smith, a/k/a “Capone”, Defendant-Appellant.
    (No. 58747;
    First District (4th Division)
    June 12, 1974.

      James J. Doherty, Public Defender, of Chicago (Suzanne M. Xinos, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE BURMAN.