author: Mr. JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Carl Holtz et al., Defendants-Appellants.
    (Nos. 57256, 57289 cons.;
    First District (5th Division)
    May 17, 1974.

      James J. Doherty, Public Defender, of Chicago (Donald S. Honchell and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr. and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Co-defendants, Lunsford and Holtz, were each indicted on two counts of involuntary manslaughter arising from an automobile accident. In the same indictment Lunsford was charged with driving under the influence of intoxicating liquor and driving too fast for conditions in violation of the Illinois Vehicle Code and driving to the left of the center line of a roadway in violation of the traffic regulations of the City of Chicago. Both co-defendants waived trial by jury. Holtz was convicted on both counts of involuntary manslaughter and sentenced to concurrent terms of from 2 to 10 years. Lunsford was convicted on both counts of involuntary manslaughter and was similarly sentenced to concurrent terms of from two to ten years. He was also convicted of driving under the influence of intoxicating liquor for which he received a concurrent sentence of one year and of driving too fast for conditions for which he was fined $100.

On appeal defendants contend that (1) the indictment under which they were charged is void because it was predicated upon conflicting and mutually exclusive allegations; (2) the court below erred in failing to grant defense motions for severance; (3) the State failed to prove Lunsford guilty beyond a reasonable doubt of the traffic violations; and (4) Holtz’s conviction should be reversed because the State failed to rebut beyond a reasonable doubt his defense of self-defense.

At approximately 2:30 A.M. on October 1, 1970, an automobile driven by defendant Lunsford crossed the center fine of the 5100 block of West Belmont Avenue in Chicago and crashed head-on into a car driven by James Morano, Jr. Both Morano and his wife, who was riding with him, were killed. Co-defendant Holtz was a passenger in the Lunsford auto.

At trial Patricia Jurczenko testified as a witness for the State that she was with the Moranos during the early morning hours of October 1. They were helping Tony DeBellis open a new place of business. When they had finished, they decided to get something to eat at a snack shop on Belmont Avenue. The Moranos took their own car; she followed in an auto driven by DeBellis. The Morano auto proceeded west on Belmont at approximately 30 miles per hour. It never crossed the center fine of the roadway. She noticed another car approach from the west, swerve across the center line of the street and strike the Morano vehicle head-on. She estimated that the eastbound car was going twice as fast as Morano’s. After the collision, she approached the two vehicles and saw Lunsford roll onto the street and sit on the curb. She asked him why he had done it. Lunsford replied to the effect that “he is crazy, he is goofy.” She did not know of whom Lunsford was speaking. Later, at the hospital, she saw both co-defendants. Holtz was speaking loudly; he did not make any sense. At one point he said, “I want some water, I know I killed two people. Get these handcuffs off of me.” She was of the opinion that Holtz was drunk. She also thought that Lunsford was under the influence of alcohol though not as drunk as Holtz. She was able to smell alcohol on Lunsford’s breath. On cross-examination Mrs. Jurczenko admitted that when she appeared before, the grand jury she testified that she “couldn’t estimate the exact speed” of the car that struck the Morano vehicle.

Tony DeBellis testified as a witness for the State that on the night in question the Moranos and Mrs. Jurczenko assisted him in opening a new business. When they had finished, they decided to have breakfast. The Moranos took their own car; he followed, accompanied by Mrs. Jurczenko and a third individual. He estimated the speed of the Morano vehicle to be about 25 miles per hour. They were traveling west on Belmont when he noticed an eastbound Buick cross the center line and crash head-on into the Moranos’ car. He estimated that both vehicles traveled “the same amount of distance” from tire time he first noticed the Buick. After the crash he attempted to help the Moranos. He saw one person get out of the driver’s side of the Buick yelling, “The guy is crazy, he is crazy.” DeBellis identified this individual as Lunsford. He identified a second person whom he also saw at the crash scene as Holtz. He later observed Holtz at the hospital. Holtz was yelling that his handcuffs should be removed, that he wanted some water, and that he had killed some people.

Traffic Patrolman Glenn Radzik testified as a witness for the State that he arrived at the scene of the collision at approximately 2:39 A.M. He saw Lunsford sitting on the curb and heard him make “a loud statement in regard to Mr. Holtz, that he was crazy; what did he do, why did he do it and other statements which were irrational at the time.” Radzik observed Holtz waiting around in circles and heard him say, “My God, there is two people dead.” Based on his observations of both defendants at the crash scene, he was of the opinion that Holtz was extremely drunk and that Lunsford was only moderately intoxicated. The smell of alcohol emanated from Lunsford’s body. He was mating irrational statements and Radzik observed a “swaying in his walk, unsure turning and unsure actions.” At the hospital he interviewed Holtz who told him that Lunsford and Luppke, a third individual in the Buick, had threatened to kill him, that he got scared and fought for the steering wheel and that in the course of the struggle the car swerved to the left and crashed. Holtz said that Lunsford and Luppke were going to kill him with a knife or a gun. However, an immediate search of the accident scene produced no weapons. Holtz signed the following statement which was read into evidence:

“We went into a bar and I met two men. We went to a few bars. At the last one we ran out of money. They then took me out of the bar; forced me into car;- stating we got a contract on you to kill you. I then panicked and I jumped over middle of seat. I pushed steering wheel to left to crash car. I tried to crash car, but not to kill them people.”

Radzik also interviewed Lunsford at the hospital and he made a signed statement part of which was read into evidence:

“I was eastbound on Belmont and I was taking Mr. Holtz home to Ainslie Hotel. He was talking kind of goofy all night, when all of a sudden he jumped over the seat and grabbed the steering wheel and turned it to the left, causing my car to go into the westbound lane and hit an oncoming car.”

Lunsford estimated his speed to be between 20 and 25 miles per hour. When Radzik asked him if he had been drinking, he responded, “No.” Radzik further testified that the steering wheel of Lunsford’s car was broken and that the windshield was smashed on the left side. He believed that this damage was caused by Lunsford’s head hitting the windshield. At the hospital Lunsford was treated for a bump on his head. Radzik had investigated other accidents where the victims staggered or otherwise acted abnormally even though there was no indication that they had consumed alcohol.

Lunsford called several witnesses to testify on his behalf. William Caponigro, a bartender at the Bob Gross Bar, testified that Lunsford was at the bar on September 30, 1970, from 7:30 P.M. to 11 P.M. During this time Lunsford drank only Seven-Up; he consumed no intoxicants. While at the bar Lunsford played pool with Holtz who had been there since 5 P.M. drinking beer. At 11 he refused to serve Holtz any more beer since Holtz was acting boisterously. Lunsford and Holtz left the bar together.

Edward Cumpton testified that he was at the Bob Gross Bar on the evening of September 30. While he was there, he spoke with Lunsford. Lunsford, who was drinking Seven-Up, was not intoxicated; Holtz, however, definitely was drunk.

Phillip Luppke testified that he met Lunsford and Holtz at a bar called the Stretch-Inn a little before 2 on the night in question. He had known Lunsford for about 2 years but had never before met Holtz. Both defendants were sitting at the bar; he did not see what they were drinking. At 2 A.M. when the Stretch-Inn closed, he accompanied Lunsford and Holtz to another bar called the Clown’s Alley, where he ordered a beer and Lunsford a mixed drink. The bartender refused to serve Holtz. The bartender asked Lunsford and him to take Holtz out of the bar. They decided to drop Holtz off at his home and then go to another bar. Holtz, who was in the back seat of Lunsford’s car, told them he didn’t want to go home but rather desired to go to a party. Holtz then suddenly “grabbed the wheel and pulled and hit another car.” Lunsford was driving at between 20 and 25 miles per hour. Neither he nor Lunsford was carrying weapons nor was there a gun or knife in the car. Luppke further testified that he said nothing to Holtz that wotild cause him to be afraid.

Marilyn Barton testified that on the night in question she was working as a barmaid at the Stretch-Inn. In her opinion Lunsford was not intoxicated.

Lunsford’s wife testified that when she saw him at the Northwest Hospital after the collision she did not believe him to be intoxicated.

Lunsford testified on his own behalf that he was at the Bob Gross Bar from 7:30 to 11:30 on the night of September 30, drinking only Seven-Up. While there he was introduced to Holtz by Holtz’s uncle. Holtz had been drinking beer. When he lost to Holtz at pool, he bought him mixed drinks. Because Holtz “was getting loud and acting funny,” the bartender refused to serve him more drinks. They decided to go to another bar, the Stretch-Inn, and arrived there at midnight. He continued to drink only Seven-Up. Holtz, who ordered mixed drinks, continued to act “a little wild.” They met Luppke at about 1 and remained at the Stretch-Inn until closing time. The three of them then went to another bar, the Clown’s Alley, where he ordered a mixed drink. However, when the bartender refused to serve Holtz, Lunsford took only one sip of it and then passed it to Holtz. When Holtz claimed that he had no money, there was an argument over who would pay for the drinks. They then decided to take Holtz home. On the way to Holtz’s house Holtz sat in the back seat, drunk and mumbling to himself. Then, “all of a sudden out of nowhere he jumped up out of the back seat and turned the steering wheel” causing the car to crash. Lunsford testified that he suffered injuries to both knees and a cut on his head. There was little traffic at the time of the accident and the street conditions were dry. He was traveling at a speed of from 25 to 30 miles per hour. He denied that either he or Luppke made any threats on Holtz or that they were carrying any weapons.

Holtz testified on his own behalf that he arrived at the Bob Gross Bar at 6:30 P.M. on September 30. While there he met Lunsford. He could not recall what Lunsford was drinking; he was drinking beer and was “under the influence” by the time they left to go to the Stretch-Inn. He could not recall whether Lunsford had anything to drink at the second bar. They met Luppke and the three of them went to the Clown’s Alley. When he discovered that he had no money to pay for drinks, Lunsford took his watch. Lunsford also forced a drink on him that he didn’t want. Although he did not desire to go, Lunsford told him, “come on, let’s not cause trouble” and they left the Clown’s Alley. With Luppke and Lunsford gripping his arms, they walked to the car. At the car they frisked him and Lunsford told him that they were going to “take him for a ride.” After they got in the car, Lunsford turned and said, “We got a contract on you, Carl.” Luppke was holding a knife. He could recall no more of the events preceding the crash. On cross-examination he admitted that “[i]t is possible I caused the accident by grabbing the steering wheel. It is probable.”

No other witnesses testified on Holtz’s behalf.

The State called Walter Good, the owner of the Clown’s Alley, as a rebuttal witness. He testified that he told the bartender not to serve either defendant beause they were loud and vulgar. However, he was not of the opinion that Lunsford was under the influence of intoxicating beverages.

OPINION

It is defendants’ first contention that the indictment under which they were charged is void because it is predicated upon conflicting and mutually exclusive allegations. They argue that the State cannot both claim that the reckless manner in which an allegedly intoxicated Lunsford was operating the auto was the cause of the fatal collision and charge, in the same indictment, that Holtz’s grabbing the steering wheel rendered him equally culpable. These allegations, they assert, are inconsistent and repugnant and thus the indictment predicated upon them cannot support their conviction.

It is well established that two defendants may be charged in the same indictment where they commit the same offense as principals. (People v. Tanthorey, 404 Ill. 520, 89 N.E.2d 403.) It is the State’s theory of the instant case that Holtz and Lunsford are both accountable for the deaths of the Moranos; specifically, that the immediate cause of the collision was both Holtz’s grabbing the steering wheel which forced the car across the center fine and Lunsford’s drunken condition coupled with the excessive speed at which he was driving preventing him from regaining control of the auto before it crashed. We do not find these allegations to be inconsistent and, consequently, hold that it was not improper to charge both Holtz and Lunsford in the same indictment.

We believe, however, that the State failed to prove beyond a reasonable doubt that Lunsford was guilty of any of the crimes with which he was charged. The trial court found Lunsford guilty of driving too fast for conditions in violation of section 11 — 601(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1969, ch. 95½, par. 11 — 601(a)). The evidence indicates that Lunsford was not driving at a rate of speed in excess of the posted limit. In addition, the State faded to introduce any evidence regarding the volume of traffic, weather conditions or road conditions at the time of tire collision. We, therefore, find that it did prove essential elements of the offense. See People v. Mindock, 128 Ill.App.2d 196, 261 N.E.2d 549.

Lunsford was also convicted of a second traffic offense, driving while under the influence of an intoxicating beverage. (Ill. Rev. Stat. 1969, ch. 95½, par. 11 — 501.) Evidence was introduced that there was the smell of alcohol on his breath immediately after the collision and that he was unsteady in his movements. The only inference that may be drawn from the smeU of alcohol emanating from Lunsford is that he consumed some form of alcoholic beverage. (Cf. People v. Taylor, 110 Ill.App.2d 81, 249 N.E.2d 127.) Lunsford testified that immediately prior to the crash he had a sip of a mixed drink. However, there is no evidence that he had imbibed intoxicants at any other time on the night in question. Similarly, the fact that his movements were unsteady immediately after the collision does not "rationally support a charge of intoxication.” (People v. Clark, 123 Ill.App.2d 41, 45, 259 N.E.2d 636; see also People v. Fenelon, 14 Ill.App.3d 622, 303 N.E.2d 38; People v. Wheatley, 4 Ill.App.3d 1088, 283 N.E.2d 279.) The record reveals that Lunsford needed emergency treatment for an injury he incurred in the collision when his head struck the windshield. Other evidence indicates that he also injured his knees. We note that Officer Radzik testified that as a result of their injuries, accident victims often act abnormally despite the fact that they are not drunk. We, therefore, find that Lunsford was not proven guilty beyond a reasonable doubt of driving while under the influence of an intoxicating beverage.

To prove Lunsford guilty of involuntary manslaughter, the State was required to demonstrate that he operated his car in so reckless a manner that it was likely to cause death. (Cf. People v. Potter, 5 Ill.2d 365, 125 N.E.2d 510; People v. Clark, 130 Ill.App.2d 558, 265 N.E.2d 191.) In view of the State’s failure to prove him guilty beyond a reasonable doubt of any of the traffic offenses with which he was charged, we find that Lunsford’s faflure to anticipate Holtz’s sudden seizure of the steering wheel did not constitute conduct so reckless as to justify a conviction for involuntary manslaughter. We reverse.

Defendants have asserted that the court below erred in denying their motions for separate trials. Due to our reversal of Lunsford’s convictions we need consider this contention solely with regard to Holtz.

It is argued that since defendants raised “mutually exclusive” defenses, the failure of the trial court to order a severance denied them a fair trial. The general rule is that those indicted jointly for the commission of an offense are to be tried together, and that the granting of a severance lies within the sound discretion of the trial court. The primary question is whether the defenses of the several defendants are so antagonistic that a fair trial can be assured only by a severance. (People v. Henderson, 37 Ill.2d 489, 229 N.E.2d 519; People v. Brooks, 51 Ill.2d 156, 281 N.E.2d 326.) The defenses of Holtz and Lunsford were not antagonistic. Lunsford claimed that the sole cause of the collision was Holtz’s grabbing the steering wheel of his car. This Holtz does not dispute. Indeed, with the exception of the alleged threats made on Holtz’s life by Lunsford and Luppke, both defendants’ factual account of the events preceding the fatal crash are in substantial agreement. We, therefore, find that due to the compatible nature of their defenses, the denial of defendants’ severance motions was not an abuse of the trial court’s discretion.

Holtz next contends that he was denied a fair trial due to the introduction of Lunsford’s post-arrest statement to Officer Radzik. He relies chiefly on Bruton v. United States, 391 U.S. 123, wherein it was held that under certain circumstances the confrontation clause on the sixth amendment is violated when a co-defendant’s confession implicating the defendant is placed before a jury at their joint trial. (See also Roberts v. Russell, 392 U.S. 293.) It has been recognized, however, that the Bruton rule is limited to instances where the co-defendant is unavailable for cross-examination. (People v. Brooks; see also Nelson v. O’Neil, 402 U.S. 622.) In the case at bar Lunsford testified on his own behalf, subjecting himself to cross-examination, and thus no claim can be made that Holtz’s right of confrontation was abridged.

It is also asserted that the admission of Lunsford’s post-arrest statement forced Holtz to testify in order to refute the allegations contained therein and, consequently, he was denied his fifth amendment privilege against self-incrimination. However, the instant case was a bench trial. Where the trial judge was the trier of fact it must be “presume[d] that he made his finding only upon competent evidence.” (People v. Earl, 34 Ill.2d 11, 13, 213 N.E.2d 556.) Accordingly, since Lunsford’s statement was used only against its maker, Holtz was under no compulsion to testify, and his decision to take the witness stand must be deemed to have been a voluntary act. Cf. United States v. Withers, 303 F. Supp. 641 (N.D.Ill.).

Finally, Holtz contends that his conviction should be overturned because the State failed to disprove beyond a reasonable doubt his defense of self-defense. Holtz claims that his life was threatened by Lunsford and Luppke and that “operating in a state of panic” he reached over the back seat and seized the steering wheel, causing the car to swerve into oncoming traffic. The issue of self-defense is a question to be resolved by the trier of fact, and a court of review will not disturb a finding on this matter unless it is so unsatisfactory as to raise a reasonable doubt as to defendant’s guilt. (People v. French, 3 Ill.App.3d 884, 279 N.E.2d 519.) The trier of fact need not accept as true testimony concerning self-defense presented by the accused. Rather, “in weighing such evidence it must consider the probability or improbability of the testimony, the circumstances surrounding the killing, and the testimony of witnesses other than the accused.” (French at 887; People v. Warren, 33 Ill.2d 168, 210 N.E.2d 507; People v. Uher, 375 Ill. 499, 31 N.E.2d 936.) In the instant case Holtz claims that his drinking companions, one of whom was brandishing a knife, threatened his life. He admits to having been at least mildly intoxicated at the time of the alleged threat. Despite the fact that police arrived at the scene within minutes of the collision, their search of Lunsford’s car produced no weapons. Clearly, the Mai judge disbelieved his assertion that he was acting in defense of his life. That finding is supported by substantial evidence and will not be disturbed on review. We therefore hold that Holtz was proven guilty beyond a reasonable doubt.

Holtz contends in a supplemental brief that he is entitled to reversal of one of the convictions for involuntary manslaughter. It cannot be doubted that both charges of involuntary manslaughter arose out of the same act, i.e., Holtz’s grabbing of the steering wheel which caused Lunsford’s car to swerve into another auto, killing its two occupants. (See People ex rel. Starks v. Frye, 39 Ill.2d 119, 233 N.E.2d 413.) The Supreme Court has recently held that where two counts of an indictment are “founded on a single act of the defendant * * * there can be but one conviction of crime.” (People v. Lilly, 56 Ill.2d 493, 495, 309 N.E.2d I.) We therefore reverse the judgment of conviction entered against Holtz on Count 4 of the indictment which charged the involuntary manslaughter of James Morano, Senior, and affirm the conviction of Holtz on Count 3 charging the involuntary manslaughter of Belle Morano.

Since we have determined that Lunsford was not proven guilty beyond a reasonable doubt of any of the charges, we reverse the conviction of Lunsford on the two charges of involuntary manslaughter and also reverse the convictions of driving too fast for conditions and driving while under the influence of an intoxicating liquor.

Affirmed in part; reversed in part.

SULLIVAN, P. J., and LORENZ, J, concur.

       In a supplemental brief defendants have contended that they were denied equal protection of the law due to the fact that the State had unbridled discretion to charge them with involuntary manslaughter (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 3(a)), a felony or reckless homicide (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 3(b)) conviction of-which may be treated as a misdemeanor. The record reveals, however, that defendants failed to raise this point at any earlier stage of the proceedings and consequently it has been waived. People v. Neal, 15 Ill.App.3d 940, 306 N.E.2d 43.

       Patricia Jurczenko did testify that Lunsford’s vehicle was being driven at a speed twice that of the car driven by Morano which she estimated to be 25 to 30 miles per hour. However, this testimony was contradicted by all other witnesses who commented on the matter and, moreover, Ms. Jurczenko was impeached by her testimony before the grand jury to the effect that she could not estimate the speed of the Lunsford auto.


source: Caselaw Access Project

author: Mr. JUSTICE LORENZ

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eugene Fordley, Defendant-Appellant.
    (No. 57774;
    First District (5th Division)
    May 17, 1974.
    Sam Adam, Edward M. Genson and Amette R. Hubbard, all of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, and Ferdinand M. Minelli, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Defendant appeals from an order finding him guilty of contempt for failure to comply with a grand jury subpoena duces tecum to produce a film for its viewing and committing him to the sheriff’s custody until he produces the film. He contends that he was denied due process of law by the trial court’s failure to conduct a hearing on a rule to show cause and that the trial court erred in ordering the performance of an impossible task.

On June 23, 1972, pursuant to a grand jury investigation into obscenity, a subpoena duces tecum was issued directing the “Custodian of Films, Admiral Theatre, 3940 W. Lawrence, Chgo., Ill.” to appear before the grand jury on June 26, 1972, at 9:30 A.M. to testify and to produce a film named “Inga” shown at the theatre on June 23, 1972, at 1:30 P.M. The return of the subpoena indicates that James A. Colias served the subpoena on “Harold Eugene Fordley, Manager of Admiral Theatre” on June 23, 1972.

Defendant failed to appear before the grand jury on June 26, 1972, as required. However, he appeared in court with his attorney on June 27, 1972, when the State presented a written petition for a rule to show cause why he should not be held in contempt as a result of his failure to appear. Although unverified, the petition stated that the grand jury was lawfully in session investigating obscenity, that the subpoena duces tecum for the “Custodian of Films” of the Admiral Theatre “was duly served [by James A. Colias] upon Harold Eugene Fordley, who identified himself as the manager of the said Admiral Theatre,” and that defendant did not appear as required by the subpoena or notify anyone of his whereabouts thereby disrupting the grand jury process and lessening its dignity. The cause was continued to June 29, 1972.

On June 29, 1972, a hearing was held on the rule to show cause. While no report of proceedings of this hearing was included in the record, the record does indicate that defendant was present. The court assessed and defendant paid a $Í00 fine imposed against him for contempt. Defendant then moved to quash the subpoena raising only one issue: that the subpoena was invalid under the first, fourth and fourteenth amendments to the U.S. Constitution because no hearing was held. No question was raised regarding defendant’s ability to comply with the subpoena. After the State was granted time to respond, the motion was set for. hearing on July 13, 1972. (The record does not include any written response by the State.)

After hearing oral arguments on July 13, 1972, the court denied defendant’s motion to quash the subpoena and inquired of defendant: “[W]ill you appear on July 19th at 10:00 o’clock before the Grand Jury with the film they have requested — ?” Defendant answered: “Yes, sir, I will be there.” The court, noting that the grand jury had been extended, then continued the subpoena to July 19, 1972, to permit defendant to produce the film.

Defendant appeared and testified before the grand jury on July 19, 1972, but failed to produce the film. The State immediately went before the court and orally requested a rule to show cause because of defendant’s failure to produce the film. Although defendant and his attorney were present in court they made no motion to dismiss the State’s oral petition or to discharge the rule or for a finding of not guilty. Defendant through counsel initially indicated that he was unable to comply with the subpoena because there was no film named “Inga” and because he was only an usher at the theatre, he did not have custody or possession of the film. Defendant testified that there were only two films shown at the Admiral Theatre on June 23, 1972 — “Animal Lovers” and “Sexual Freedoms in Denmark.” James A. Colias, a State’s Attorney’s investigator, testified for the State: He called the Admiral Theatre regarding the film being shown at 1:30 P.M. on June 23, 1972, and was told the name of the film was “Inga and the Animal Lovers.” He viewed the film being shown at the Admiral Theatre at 1:30 P.M. on June 23, 1972. Although he was unsure of the full title of the film, he noticed the words “Animal Lovers” in the title and the name of the performer was “Inga.” In the newspapers, the film was advertised as “Inga.” After viewing the film, he testified that he spoke to someone in the box office (whose identity was unclear) regarding the film. He then went with defendant and served the projectionist. (The projectionist testified before the grand jury that an unknown man entered the projection booth immediately after the film showing was over and took the film.) The court concluded -that defendant knew which film was required, that defendant was in control of the production, and that his conduct in failing to produce the film after promising to do so was contumacious. Defense counsel protested that no evidence had been presented that defendant had taken the film or that he was manager of the theatre. The court re-asserted its conclusion that defendant was the manager of the theatre, but permitted defendant to testify further. Defendant then testified that he was only an usher in the theatre, that he had no control over the films, that he first observed Colias speaking to the owner of the theatre, Patsy Rickardi, in the box office as he returned from the auditorium with his flashlight in hand after checking for smokers and that Rickardi handed him the subpoena.

The court then ordered defendant held in the custody of the sheriff until the film is produced in compliance with the direction of the subpoena.

OPINION

Defendant argues that the trial court erred in its conduct of the hearing on the rule to show cause. The court held a full hearing and we find no error in the judge’s conduct thereof. Defendant agreed on July 13, 1972 to produce the film before the grand jury. No objection was made at that time to the motion for a rule to show cause, nor was there any claim that defendant was not served nor that he was only an usher. On July 19, 1972, defendant appeared before the grand jury, but failed to produce the film. At a hearing on the oral request for a rule defendant, for the first time, raised the issue of service and his capacity as an usher. After hearing Colias’ and defendant’s testimony, the court found defendant guilty of contempt for failure to comply with the subpoena after he had promised to do so. There was no explanation of why defendant agreed to produce the film or why he did not produce it. Under these circumstances we cannot find that the court erred in finding defendant guilty of contempt and that finding will be affirmed.

However, since the grand jury to which the subpoena was returnable is no longer in session, the order incarcerating defendant until he •complies is no longer viable. Therefore, the cause is remanded with directions to vacate the order of incarceration and for further proceedings not inconsistent with this opinion.

Affirmed and remanded with directions.

SULLIVAN, P. J., and DRUCKER, J., concur.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Charles Liddell, Defendant-Appellee.
    (No. 59066;
    First District (5th Division)
    May 17, 1974.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Barry Rand Elden, and Michael J. Polelle, Assistant State’s Attorneys, of counsel), for the People.
    Herbert R. Goldstein, of Chicago (Herbert N. Sirott and Barry Kramer, of counsel), for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal by the State from an order vacating the suspension of defendant’s driver’s license.

On appeal, the State contends that (1) the Illinois implied consent statute, sec. 11 — 501.1 of the Illinois Vehicle Code (S.H.A. 1973, ch. 95½, par. 11 — 501.1) provides for the mandatory suspension of driving privileges where a person refuses a breathalyzer test and then fails to request a hearing within the 28-day period provided by the statute; and (2) after a suspension under those circumstances, the trial court does not have the power to vacate.

Defendant was arrested on December 9, 1972, and charged with driving under the influence of intoxicating liquor and improper lane usage. It appears that after being informed of his rights under the statute, defendant refused to submit to the breathalyzer test provided therein.

After such a refusal, the statute provides for a series of actions which are separate from a trial on the charge of driving under the influence of intoxicating liquor. They are: first, that tire arresting officer “shall file” with the clerk of the circuit court a sworn statement which, among other things, informs the clerk that a breathalyzer test was refused; second, that the clerk “shall thereupon notify” the person refusing the test that, •unless he requests in writing a hearing concerning his refusal within 28 (days of the mailing of the clerk’s notice, his driving privileges will be .suspended; and third, if no hearing is requested within the 28-day period, the clerk “shall so notify the Secretary of State who shall automatically suspend such person’s driver’s license * *

Defendant appeared in court on January 11, 1973, the trial date for the. two charges which had been placed against him by the arresting officer, but the case was continued until February 14,1973. On that date defendant’s attorney .informed the court that defendant had appeared without counsel at the January 11 hearing and had been told by the court “that everything would come up on the 14th” and that defendant didn’t know a separate hearing was required on his refusal to take the test. On these representations the trial court granted defendant a hearing on his refusal and, on the testimony of defendant to the same effect, the court vacated the suspension of his license.

OPINION

The principle question presented here concerns the power of the court to vacate the suspension of defendant’s driver’s license where no request was made within the 28-day period for a hearing on his refusal to take a breathalyzer test, required by the implied consent statute.

We initially note that it is clear that tire statute provides that where there has been no timely request for a hearing concerning the refusal of a breathalyzer test, the Secretary of State “shall automatically suspend” the license of the person refusing the test (sec. 11.501.1(d)). In construing statutes, courts have generally held the word “shall” to be mandatory, particularly when the word is addressed to a public official, as it is here. (Schmidt v. Powell, 4 Ill.App.3d 34, 280 N.E.2d 236.) Whether the word “shall” is mandatory or discretionary generally depends on the legislative intent. (Cooper v. Hinrichs, 10 Ill.2d 269, 140 N.E.2d 293.) Here, a reading of the provisions of the implied consent statute which requires that the arresting officer “shall” file a sworn statement, that the clerk “shall thereupon” notify the person refusing the test, and that the clerk “shall” notify the Secretary of State, who “shall” automatically suspend the license, compels the conclusion that the word “shall” was intended by the legislature to be mandatory.

We note also that the record does not include the original or a copy of the clerk’s statutory notice to the defendant, informing him of his right to request a hearing. There is, however, a form in the record entitled, “Court Action and Other Orders”, which contains the following entries:

“12-9 Report and Affidavit of Arresting Officer filed.
12-12 Clerk’s Notice to driver given as shown by copy of Notice with Certificate of Mailing attached.
# # e
1-12-73 Notice given the Secretary of State.”

It appears from these entries that the notice to defendant was dated and mailed on December 12, 1972, in which event the 28-day period to request a hearing ended on January 9, 1973, which of course was 2 days prior to the first hearing on January 11, 1973. In view thereof and considering that there is apparently no question that defendant received the Clerk’s notice and that no request was made for a hearing on his refusal within 28 days after mailing of the Clerk’s notice, we are of the opinion that the trial court improperly granted a hearing to defendant on February 14, 1973, concerning his refusal to submit to the statutory test and that it erroneously vacated the suspension of defendant’s driver’s license.

Defendant contends the trial court had the power to review the action of the Secretary of State. He points out that sec. 2 — 118(e) of the Illinois Vehicle.Code (Ill. Rev. Stat. 1971, ch. 95½, par. 2 — 118(e)) provides that the action of the .Secretary of State in suspending any license shall be subject to judicial review in the circuit court. Sec. 2 — 118(e) does so provide for judicial review, but goes on to provide: "and the provisions of the ‘Administrative Review Act’ * * * are hereby adopted and shall apply to and govern every action for the judicial review of final acts or decisions of the Secretary of State hereunder.” Here, however, we are concerned with the vacation by the trial court of the suspension of defendant’s driver’s license. Under these circumstances, we believe that the review of this suspension should have been under the provisions of the Administrative Review Act.

For the reasons stated, the judgment is reversed and remanded with directions to reinstate the suspension of defendant’s driver’s license.

Reversed and remanded with directions.

DRUCKER and LORENZ, JJ., concur.


author: Mr. JUSTICE DRUCKER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenny E. Walker, Defendant-Appellant.
    (No. 59203;
    First District (5th Division)
    May 17, 1974.
    James J. Doherty, Public Defender, of Chicago (Robert P. Isaacson, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Dorothy B. Johnson, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE DRUCKER.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Quinn, Defendant-Appellant.
    (No. 59364;
    First District (5th Division)
    May 17, 1974.

      James J. Doherty, Public Defender, of Chicago (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 Zachary L. Stanger, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a bench trial, defendant was found guilty of the theft of a fan having the value of less than $150 and sentenced to 60 days in the House of Correction.

On appeal, he contends (1) the complaint was void, because the Chicago Public Library, alleged to be the owner of the fan, was not an entity legally capable of owning property; and (2) he was not proved guilty beyond a reasonable doubt.

Carl Willis, the only witness for the State, testified that he was a security agent for the Chatham branch of the Chicago Public Library. He had seen defendant and his accomplice in the library earlier that evening. Later, he saw defendant outside the library, carrying a fan which he recognized as belonging to the library. He pursued defendant and an accomplice into the alley behind the library, where he found the fan on the ground. Defendant had disappeared and, after Willis returned the fan to the library, he went back to the alley, where he saw and arrested defendant as he was entering a cab. Willis estimated that 3-5 minutes elapsed between the time he first observed defendant carrying the fan and the time of the arrest. The theft occurred at about 8:15 P.M., while it was still daylight.

Defendant testified that for the prior 5Yz years he had worked part-time in a store next door to the library. On the day of the theft, he went into the alley behind the library, intending to borrow his employer’s car and, when he found it was not there, he decided to take a cab to his employers house to get the car. He denied being in the library on that day and denied carrying the fan. He further stated that he did not see a fan in the alley and that he was not with anyone else that evening.

A police report, made out after the arrest from information provided by Willis to the reporting officer, did not. mention an accomplice.

OPINION

I.

Defendant first contends the complaint was void because the Chicago Public Library was not an entity capable of owning property. He argues that because the library is a mere department of the City of Chicago, without its own property or funds, the City of Chicago should have been alleged as the owner of the fan.

It is true that in a prosecution for theft, the State must allege and prove that the theft was from an entity owning property (People v. Hill, 68 Ill. App.2d 369, 216 N.E.2d 212), and defendant refers us to Board of Directors of the Chicago Public Library v. Arnold, 60 Ill.App. 328, in support of his contention that the Chicago Public Library could not own property.

In Arnold, the Board of Directors of the Chicago Public Library entered into a contract to pay for work by warrants drawn upon the Treasurer of the City of Chicago. A contractor sued the Board of Directors for a claimed unpaid balance. At that time, section 5 of chapter 81. ( Hurd’s Rev. Stat. 1895, ch. 81, par. 5) gave to the Board of Directors “[Exclusive control of the expenditure of all moneys collected to the credit of the library fund, * * * Provided, that all moneys received for such library shall be deposited in the treasury of said city to the credit of the library fund, and shall be kept separate and apart from other moneys of such city, and drawn upon by the proper officers of said city, upon the properly authenticated vouchers of the library board.” In holding that the Board of Directors could not be sued, the court stated at pages 330 and 331:

“Now the board has no property or funds; it is only a department of the city — by construction a quasi corporation — having, among its powers, the power to draw vouchers upon, a special fund in the city treasury. As it never can have anything with which to pay a judgment, assumpsit will not he against it.”

We do not believe Arnold is controlling here. The existing statute (Ill. Rev. Stat. 1973, ch. 81, par. 4 — 7(2)) gives the Board exclusive control over expenditures of moneys collected for the library and deposited to the credit of the library fund, but contrary to the statute in existence at the time of the contract in Arnold, the present statute has no limitation that the moneys received should be deposited into or drawn upon a special fund of the City.

In addition, we note that the Chicago Municipal Code 1973, chapter 23, paragraph 23 — 5, and the Public Library District Act (Ill. Rev. Stat. 1973, ch. 81, par. 1001 — 9) use the phrases “belonging to the Chicago Public Library, or any of its branches” and “belonging to the library” respectively, in setting forth violations and penalties for injury to the property of the library. In People v. Crouch, 77 Ill.App.2d 290, 293, 222 N.E.2d 46, the court, in discussing the sufficiency of a complaint, stated:

“The term “belonging to the complainant’ is sufficient allegation of ownership. ‘Belonging to’ connotes title to or ownership.”

In view of the foregoing, we are of the opinion that the Chicago Public Library is an entity legally capable of owning property, and that the complaint here, alleging its ownership of the fan, was sufficient.

II.

Defendant next contends that the identification testimony of the State’s only witness, Carl Willis, failed to establish his guilt beyond a reasonable doubt. Willis testified that he had observed defendant and an accomplice in the library before the theft occurred. Later, he observed defendant outside the library, carrying a fan belonging to the library. He pursued defendant and an accomplice into the alley, where he found the fan and returned it to the library and then, upon his return to the alley, saw and arrested defendant as he was entering a cab. Defendant argues that'Willis saw the person taking the fan for such a short time, only a few moments, that he did not have sufficient opportunity to view that person. He claims that Willis could easily have mistaken him for the thief, and defendant points out that it was improbable, if he had been the thief, that he would have remained in the area for 3-5 minutes after having been chased by the security guard, particularly when defendant had a library card and had worked next door to the library for years. He further argues that he had a logical reason for being in the area behind the library, as he worked next door and was there looking for his employer’s car.

It is well-settled that the identification testimony of a single witness, if positive and credible, is sufficient to sustain a conviction. (People v. Carr, 16 Ill.App.3d 76, 305 N.E.2d 554.) Here, Willis was positive in his identification of the defendant. We note that he had observed defendant and another person in the library prior to seeing defendant carrying the fan in the driveway behind the library. In addition, Willis testified it was still daylight when he observed defendant carrying the library fan, and within a short time, approximately 3-5 minutes after his initial observation, he arrested defendant. Willis and defendant were the only persons testifying, and their testimony was in direct conflict. Thus, the problem is one of the credibility and weight to be given each, which is a matter for the trial court’s determination (People v. Carr, supra, People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182), which will not be disturbed unless the evidence is so unsatisfactory as to leave a reasonable doubt as to guilt. People v. Norfleet, 15 Ill.App.3d 567, 304 N.E.2d 672.

Here, after carefully examining the record, we cannot say that the evidence was so unsatisfactory as to leave a reasonable doubt as to defendant’s guilt.

For the reasons stated, the judgment is affirmed.

Affirmed.

DRUCKER and LORENZ, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-AppeHee, v. Robert Luciw, Defendant-Appellant.
    (No. 59496;
    First District (5th Division)
    May 17, 1974.

      James J. Doherty, Public Defender, of Chicago (Phillip A. Olson and John M. Kalnins, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Frank J. Parkerson, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jerome Reese, Defendant-Appellant.
    (No. 59558;
    First District (5th Division)
    May 17, 1974.
    James J. Doherty, Public Defender, of Chicago (Robert P. Isaacson, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Robert L. Horwitz, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jay Jones, Jr., Defendant-Appellant.
    (No. 58258;
    First District (1st Division)
    May 20, 1974.
    James J. Doherty, Public Defender, of Chicago (Ronald P. Alwin and J. Powers McGuire, Assistant Public Defenders, and Shelvin Singer, of counsel), for appellant.
   PER CURIAM.

HALLETT, J., took no part.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr. and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. JUSTICE BURKE.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry Battie, Defendant-Appellant.
    (No. 58521;
    First District (1st Division)
    May 20, 1974.
    James J. Doherty, Public Defender, of Chicago (Richard D. Kharas, Assistant Public Defender, 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 BURKE.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Herman Lockett, Petitioner-Appellant.
    (No. 59398;
    First District (1st Division)
    May 20, 1974.
    James J. Doherty, Public Defender, of Chicago (Leonard V. Solomon, Assistant Public Defender, of counsel), for appellant.
   PER CURIAM.

HALLETT, J., took no part.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr. and John F. Brennan, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Brooks, Defendant-Appellant.
    (No. 58177;
    First District (4th Division)
    May 22, 1974.
    Paul Bradley and Edwin R. McCullough, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Dennis J. O’Hara, Assistant State’s Attorneys, of counsel.), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant; Robert Brooks, was indicted for murder. On April 28, 1972, after a bench trial, he was found guilty of involuntary manslaughter and sentenced to a term of 3 to 10 years in the penitentiary.

In this appeal he contends that (1) he did not knowingly and intelligently waive his constitutional right to a trial by jury, (2) the evidence was insufficient to prove him guilty of involuntary manslaughter beyond a reasonable doubt, and (3) the sentence he received is excessive and should be reduced.

The evidence discloses that the defendant shot and killed Leonis Steinys on the night of July 24, 1971. Defendant raised the justification of self-defense.

We first consider whether the record adequately shows a knowing and intelligent waiver of the basic constitutional right to a trial by jury. The transcript discloses that the defendant initially demanded a jury trial. On April 24, 1972, eight jurors had been selected. The following morning defense counsel informed the court out of the presence of the jurors that he felt the defendant could not receive a fair trial because the prosecutor had excused every black prospective juror in a proceeding where a black man was charged with killing a white man. He therefore moved to withdraw the defendant’s request for a jury trial and to submit the case to the court. The prosecutor replied that defendant had the right to waive a jury and submit the issue of his guilt or innocence to the court, but he pointed out that he was merely exercising the State’s right to excuse jurors according to law. The prosecutor further submitted that, in view of tire charges which defense counsel directed at him, the cause be transferred to another courtroom to alleviate any ill feelings. Defense counsel stated he saw no reason to transfer the case because he felt that the defendant would have a fair and impartial trial before the court. The court therefore denied the assistant State’s Attorney’s motion to transfer the case. When the defendant was brought into the courtroom the following occurred.

“THE COURT: * * * I hold in my hand a document which is known as a waiver of a jury (indicating). Now I must inform you, Mr. Brooks, that you have a right to a jury trial as you are aware, in which your guilt or innocence will be decided by twelve people; and as a matter of fact, we were just engaged in selecting a jury to determine your guilt or innocence.
Now, I understand that you want to give up your right to a jury trial, is that right, you don’t want a jury trial?
THE WITNESS: I want a jury.
MR. PAYNE (Defense counsel): I advised you to waive a jury.
THE COURT: You don’t want a jury or you want a jury.
MR. PAYNE: I advised you to waive a jury, now you can do that if you want to.
THE WITNESS: I will waive the jury.
THE COURT: Now you know, of course, you have a right to a jury knowing you have a right to a jury you are still giving up your right, is that right, you are not exercising your right?
THE WITNESS: I didn’t know what I signed. I can’t read or write.
MR. PAYNE: He neither reads nor writes, your Honor.
THE COURT: I will tell you what you signed is a jury waiver, in which you are giving up your right to a jury.
THE WITNESS: I can’t read that.
THE COURT: Now, do you want to give up your right to a jury, or not?
THE WITNESS: I want the jury.
THE COURT: You want the jury?
•THE WITNESS: Yes, sir.
THE COURT: Mr. Payne, apparently you and your client are not together on this thing.
MR. PAYNE: No, we are not. I had advised him that I wanted to waive a jury. The determination is up to him, I wanted the casé heard by the court and not by a jury. Do you understand?
Remember, your Honor, this man is illiterate.
THE WITNESS: I don’t know.
MR. PAYNE: He doesn’t read nor write, and that is the whole thing.
THE COURT: Well, let me ask you again, for the record: You want to be tried by me, or by a jury?
THE WITNESS: I want to be tried by you. ,
THE COURT: Very well. Let the. record so indicate, Mr. Posey.”

The Illinois Code of Criminal Procedure, section 103 — 6 (Ill. Rev. Stat. 1971, ch. 38, par. 103 — 6), provides:

“Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant' in open court.”

Whether a jury waiver has been knowingly and understandingly made depends upon the facts and circumstances of each case, and there can be no precise formula for determining whether a waiver is understandingly made. (People v. Richardson, 32 Ill.2d 497, 499, 207 N.E.2d 453, 454.) Although a certain amount of inconsistency in defendant’s responses may appear in the record, this does not necessarily warrant a finding that defendant was coerced or did not make an understanding waiver. (Compare People v. Benjamin, 34 Ill.2d 183, 215 N.E.2d 216; People v. Williams, 110 Ill.App.2d 111, 249 N.E.2d 163.) Here admittedly after some vacillation, the defendant finally emphatically stated that he wanted to be tried by the court, as urgently advised by his privately retained counsel. We feel the record establishes an understanding waiver by defendant of his right to trial by jury.

The case of People v. Bell, 104 Ill.App.2d 479, 244 N.E.2d 321, relied on by defendant, has important distinguishing characteristics. There the appellate court found absolutely no indication that the defendant knew or was informed of the meaning and consequences of a jury waiver, even though he acknowledged that he did not want a jury. Here that is not the case. The judge explained to defendant Brooks the meaning and consequences of a jury trial, and in fact the jury waiver came after eight jurors had already been chosen for the trial. The only confusion appears in his decision whether or not to waive the jury, and his final decision, based on his counsel’s recommendation, was affirmative.

It is next contended that the conviction of involuntary manslaughter be reversed because guilt was not established beyond a reasonable doubt. Defendant maintains that his action in firing his gun was justified as self-defense, and that the evidence supports the proposition that he had a reasonable belief that an imminent danger of great bodily harm existed and that force was necessary to avert that danger.

The record discloses that the defendant and the deceased had lived together since 1967 in a five-room basement apartment at 6101 South Drexel in Chicago, where the deceased was a janitor. The defendant testified that the deceased carried a gun on him every day and had a reputation for violence. This testimony was corroborated by other witnesses. The defendant further testified that at about 2 o’clock on the afternoon of July 24, 1971, the same day on which the shooting occurred, the deceased demanded that he pay all the light bill or move out. The defendant replied he would move, and asked the deceased for $200 which defendant had lent him. The deceased reached in his drawer, pulled out his gun, stuck it in defendant’s face, and said, “I got $600 of this here for you.” Charles Miller, who was working for the deceased at the time, testified that he witnessed the above occurrence, and he corroborated it in essential respects.

The defendant’s version of the shooting, which occurred later that evening in the rear of an apartment building at 1031 East 61st Street in Chicago, was the following. He had gone to his brother’s apartment at the above address and collected a gun, pants, and a jacket belonging to him at about 10 P.M. As he came off the first-floor rear porch and started out the back yard, he heard the deceased call his name from the second floor stairway, where he was sitting with one Barbara Johnson. The deceased said “Come here,” and the defendant responded “What do you want, man? I am in a hurry.” The deceased came downstairs and said “Come on,” and they both started out of the yard with the defendant following him at a distance of about 4 or 5 feet. Defendant then testified: “We was [sic] walking alone and all of a sudden the- man stopped dead still and wheeled on me * * *. I swear ‘fore God I just come out with my gun and started shooting.” He further testified that he shot because he was scared, and that he did not know how many shots he fired. He was uncertain at trial as to whether the defendant had a gun at the time. None was found on or near the body by the police.

One of the State’s witnesses, Alice Allen, a girl friend of the deceased, testified she was sitting on the back porch of her apartment. She heard the defendant, who was standing down in the yard, tell the deceased to come down off the porch because he wanted to talk to him. The deceased told him to come up and have a beer. After the defendant called him down a couple more times, the deceased walked down the steps. Then she heard a gun shot and saw the deceased run towards the alley. When she heard the shot the defendant was standing near the deceased. She heard additional shots and ran down the steps to the deceased’s body, which was lying face down. There were no weapons in his possession,

Barbara Johnson, who was 15 years old, testified that she was sitting on her back porch when she heard the defendant call the deceased downstairs. After being called down the third time, the deceased went down. “That’s when [she] heard the first shot.” She saw the deceased run and then she heard more gunshots and the deceased fell. The defendant left the yard.

The police arrived shortly after the shooting. They found no weapon on or near the deceased. When they arrested the defendant at another location the defendant stated it was an accident because he shot into the ground. He assisted the police in recovering his gun, which contained five spent bullets in the chamber. A pathologist testified that the autopsy showed bullet entry wounds on- the forearm and on the chest, and that the cause of death was the chest wound.-

The issue of self-defense is ordinarily a question of fact and need not be accepted as true by the trier of the-facts. Indeed the court must also consider the circumstances surrounding the killing and the testimony of all the witnesses. (People v. French, 3 Ill.App.3d 884, 279 N.E. 2d 519.) When the evidence is conflicting it is the function of the trier of the facts to resolve the conflict and determine the credibility of the various witnesses. People v. Speed, 52 Ill.2d 141, 284 N.E.2d 636.

The defendant in order to justify the shooting relies heavily upon the trial testimony that the deceased usually carried a gun and had a violent reputation and had previously threatened him. But there was also testimony here that the defendant called the deceased, who was on a porch, to come down to the yard while he was- in possession of a firearm. Although the deceased told him to come up and have a beer he persisted in telling him to come down. When he did come down the defendant stated that the deceased made one quick move and he shot at him. The defendant continued to shoot at close range after the deceased was seen running. No weapon was found on the deceased. There was sufficient indication that the defendant’s action was not legally justifiable as self-defense. Ill. Rev. Stat. 1971, ch. 38, par. 7 — 1.

In People v. Taylor, 3 Ill.App.3d 734, 279 N.E.2d 143, relied on by the defense, the defendant had been thrown to the floor by a half-drunk gun-wielding bartender. There the defendant fired three warning shots to get him off, and only when that failed did he shoot and kill his assailant. This case is clearly inapplicable on tire facts.

Although the defendant was charged with murder, he was found guilty of involuntary manslaughter. Section 9 — 3(a) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 3(a)) provides:

“A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.”

The record in this case presents ample proof of defendant’s conscious disregard for the deceased’s life and of his culpability for the crime of involuntary manslaughter.

The final contention is that the 3-to-10 year sentence imposed is excessive in light of the ‘nature and circumstances of the offense and the history and character of the defendant.” The sentence is clearly within the limits prescribed by the legislature (Ill. Rev. Stat. 1973, ch. 38, pars. 9 — 3(c)(1), 1005-8 — 1(b)(4), 1005-8 — 1(c)(4)), and we feel it is consistent with the concept of rehabilitation.

For the foregoing reasons the judgment is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE BURMAN Mr. JUSTICE JOHNSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Chester Holmes, Jr., Defendant-Appellant.
    (No. 58468;
    First District (4th Division)
    May 22, 1974.
    JOHNSON, J., specially concurring.

      Paul Bradley and Steven Clark, both of State Appellate Defenders Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Chester Holmes, Jr., was indicted on October 29, 1971, for the murder of Wash Harris. After a trial by jury a verdict was entered on May 19, 1972, finding him guilty as charged. The court sentenced him to a term of 17 to 25 years in the Illinois State Penitentiary. He now appeals his conviction to this court.

The record discloses that the deceased, Wash Harris, and his wife, Muriel, owned a two-flat building at 7236 South Euclid Avenue in Chicago. He and his family occupied the first floor apartment therein. The defendant, Chester Holmes, Jr., along with his family, occupied the second floor apartment as tenants. On August 15, 1971, according to the testimony of Muriel Harris, wife of the deceased, she, her husband, and two of their children returned home from evening church services at 10 P.M. While she and the children entered their first floor apartment, her husband went upstairs apparently to collect the month’s rent. From her first-floor bedroom, Mrs. Harris could hear a conversation between her husband and the defendant coming from the upstairs corridor, although she could not hear what was being said. After about 5 or 10 minutes she heard someone’s footsteps go from the hallway to the bedroom and back again. Mrs. Harris then testified that she heard four or five gunshots. She ran out into the hallway and saw her husband staggering down the stairs. He exclaimed: “Honey, Mr. Holmes shot me,” and repeated it. She helped him into the living room of their apartment, where he collapsed.

Larry Cosey, a 16-year-old stepson of the deceased, testified that he witnessed the defendant shoot his father through a second-floor window while sitting on a next door neighbor’s front porch. He said he immediately ran to the rear of the apartment building and entered the family’s apartment through the back door. He ran through the house and encountered his mother and father in the front area of the apartment. He heard his father tell his mother, “Honey, Mr. Holmes shot me.”

The police arrived in 2 or 3 minutes. After attending to the deceased, they went upstairs, questioned and arrested the defendant. A revolver with five spent cartridges was recovered from under a bed mattress in defendant’s apartment. In the opinion of a ballistics expert, whose findings were stipulated to at trial, a bullet recovered from the body of the deceased was fired from the weapon.

A number of witnesses testified on behalf of the defendant as to his good character and reputation. The defendant took the stand and denied that he shot Wash Harris and denied that he had the gun in his possession on the night of the incident.

Five grounds for reversal of defendant’s conviction are asserted. It is contended that (1) the court erred in granting defendant only 10 peremptory challenges during the voir dire, since 20 are required by statute in a “capital case”; (2) in refusing to hear defendant’s motion to dismiss the indictment and quash the venire prior to trial; (3) in denying defendant’s motion to suppress as evidence the gun seized in a search of defendant’s apartment incident to arrest; (4) in refusing to declare a mistrial and in not effectively admonishing the jury after the wife of the deceased cried audibly in the courtroom; and (5) the defendant was not found guilty beyond a reasonable doubt because of the lack of credibility of the eyewitness testimony.

We first address ourselves to the contention that the defendant, did not receive the number of peremptory challenges to which he was entitled. Section 115 — 4(e) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 115 — 4(e)) provides in pertinent part:

“A defendant tried alone shall be allowed 20 peremptory challenges in a capital case, 10 in a case in which the punishment may be imprisonment in the penitentiary, and 5 in all other cases * * *."

The Illinois murder statute at the time provided: “A person convicted of murder shall be punished by death or imprisonment in the penitentiary * * *." (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 1(b).) Had the defendant here been subjected to the possibility of receiving the death penalty for the murder conviction, there is no doubt he would have been entitled to 20 peremptory challenges. The State indicated at the- outset, however, that it was not seeking the death penalty upon conviction. The question then is whether the fact that the State declares its intention not to seek the death penalty renders the proceeding no longer a “capital case” under the terms of the Illinois statute involved.

Defendant claims that the classification of an offense for purposes of determining the proper number of peremptory challenges cannot be changed by any declaration that the prosecuting attorney may make, and cites Kerley v. State, 89 Tex. Crim. 199, 230 S.W. 163. We find the Texas court’s construction of the statute involved in Kerley unnecessarily rigorous and inapplicable here. In the instant case the jury had no control over sentencing, was not instructed regarding the penalty to be imposed, and could not have returned a verdict prescribing the death penalty at its discretion. (Compare Kerley v. State; also compare Lee v. State, 31 Ala. App. 91, 13 So.2d 583; Caesar v. State, 127 Ga. 710, 57 S.E. 66.) We feel that since the State declared its intention not to seek capital punishment, and capital punishment was in fact not threatened upon conviction, the case was no longer “capital” under a sensible construction of the term as used in section 115 — 4(e) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 115 — 4(e)). (Cf. State v. Montgomery, 363 Mo. 459, 251 S.W.2d 654.) There was thus no error in limiting defendants peremptory challenges to 10.

It is next claimed that the court erred in not entertaining the defense’s pre-trial motion to dismiss the indictment and quash the venire prior to trial. The motion alleged that the defendant was a black citizen and that the Grand Jury voting the indictment and the venire which was available to be called was selected contrary to statute in such a manner that it failed the statutory objective of achieving a cross section of the community. The record shows that the motion was filed on May 10, 1972, the day before a jury was selected, pursuant to sections 114 — 1(a)(4), 114 — 1(b), and 114 — 3 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 1(a)(4), 114 — 1(b), and 114 — 3). These provisions read in relevant part:

“§ 114 — 1 Motion to Dismiss Charge.
(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
* * *
(4) The indictment was returned by a Grand Jury which was improperly selected and which results in substantial injustice to the defendant;
* * *
(b) The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has been arraigned. * * *”
* * *
§114 — 3 Motion to Discharge Jury Panel.
(a) Any objection to the manner in which a jury panel has been selected or drawn shall be raised by a motion to discharge the jury panel prior to the voir dire examination. For good cause shown the court may entertain the motion after the voir dire has begun but such motion shaH not be heard after a jury has been sworn to hear the cause.
* * *
(c) If the motion states facts which show that the jury panel has been improperly selected or drawn it shall be tire duty of the court to conduct a hearing. * * *"

These provisions, although designating the proper time for the motions to be filed, do not specify the proper time for the hearing to be held. The court stated that it would hold a hearing on the combined motion at the conclusion of the case if necessary — that is, if there was a conviction. Defense counsel expressed his objection to that procedure. A jury was impaneled, the case went to trial, and a finding of guilty was returned on May 19, 1972. The court then offered defendant a hearing on the motion as part of the post-trial motions. Defense counsel replied that he did not wish a hearing at that time, and that he chose to assert error in the failure of the court to hear the motion before trial.

The defendant claims prejudicial error because of the court’s procedure first because it put the court in the position of attempting to hear the motion on the merits while having just presided over a trial in which the defendant had been found guilty. He submits that the trial court cannot be expected to disregard the evidence it has heard relative to guilt or innocence and take an open-minded view of the motion. We find such a claim without merit. As the State points out, such an argument contravenes the basic assumption that a judge will not allow prior proceedings to influence his judgment on the merits of a later hearing. If this were not so, every post-trial motion would require disposition by a judge other than the one who presided over the trial. The motion filed in the instant case was concerned with questions of law and we must assume that the trial court would impartially resolve them without improper influence.

Defendant points out that if the pre-trial motion was found to have merit only after trial, a wasteful re-trial would be necessary. Thus litigation would be expedited by requiring a hearing before trial and the defendant would not be subjected to the possibility of being inconvenienced by a second lengthy trial. The judge here, however, was prompted to postpone the hearing so that he could expedite the trial, which had been on call for 6 months, and perhaps obviate the need for any hearing on the motion at all if the jury found the defendant not guilty. We find no error in the judge’s choice of procedure under these circumstances. The record shows that the case was first assigned to Judge Aspen on November 15, 1971. On that date counsel for the defendant requested a continuance, and the case was continued with subpoenas until December 13, 1971. The case was then continued with subpoenas to February 7, 1972, then to April 3, 1972, then to May 8, all on motions of defense counsel. The State’s witnesses were ready to proceed. On May 8, at his request again, the court ordered the case held on call to May 9, and then again to May 10. It was on this date that the present motion was first submitted. The unavailability of a defense witness to appear at the hearing on the motion would have unnecessarily caused further delay. It was in this context that the judge was prompted to delay the hearing on the motion.

Defendant also claims that postponing the hearing affected his trial strategy, and that he was forced to choose between proceeding with a jury which he believed to be improperly composed or relinquishing his right to a jury trial entirely. We find no merit to this contention. This “dilemma” was not created nor exacerbated by the court’s decision to decide the motion after trial. Had the judge held the hearing prior to trial and ruled for the defendant, the result would be no different than if the motion were granted after trial — a new jury would be required. If a pre-trial hearing on defendant’s motion were held and the motion was denied, the defendant would be faced with the same dilemma he postulates was caused by postponing the hearing — proceeding with a jury which he still believed to be improperly composed or relinquishing his right to a jury trial. Although he might have had some consolation in knowing that the motion was denied before making a choice, the difference is not sufficient to warrant labeling it prejudicial error.

We must stress, however, that in finding that the judge did not commit prejudicial error in postponing the hearing here, we have considered the facts peculiar to this case — including the nature of the motion and the fact that the trial had already been unduly delayed by defendant. We feel confident that our decision will not allow a trial court in all circumstances to postpone hearings on pre-trial motions to quash an indictment or dismiss a jury panel. We do not feel that the court here abused its discretion in determining that the ends of justice would best be served by holding the hearing after trial, if it was still necessary at that time.

The next contention in this appeal is that the court erred in denying defendant’s motion to suppress as evidence a gun seized by the police from defendant’s apartment. The evidence shows that shortly after the shooting had occurred the police went to the second-floor apartment of the defendant and his family looking for the defendant. Officer Dwyer testified that he entered through the first floor of the building where the deceased resided, and went up the inside stairway to the second floor. Upon gaining entry through the front door, he found several police officers already in the apartment with the defendant and his wife. The defendant was standing in the doorway of a bedroom, “halfway in and halfway out,” engaged in conversation with a Sergeant Manning. There were no police officers standing behind the defendant. Officer Dwyer said that he knew at that time that the name of the person in the doorway was Chester Holmes, Jr., and that the name of the suspect they were looking for was Chester Holmes. He then stepped behind the defendant into the bedroom and noticed that the bed was made, but that “one corner of the spread was pulled up.” He then lifted up the mattress and found a Colt, six-shot, snub nose revolver. The bed was four and one-half to five feet from where the defendant was standing. Expert testimony indicated that the gun fired the bullet recovered from the body of the deceased.

Defendant contends that the police transcended the constitutional limitations in regard to the permissible scope of a search incident to arrest as delineated in Chimel v. California, 395 U.S. 752. He thus presents no claim that he was not under arrest at the time of the search. In Chimel, a majority of the United States Supreme Court recognized that, once an arrest is made:

“There is ample justification * * * for a search of the arrestee’s person and the area within his immediate control’ — cons timing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.
There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs — or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.” (395 U.S. at 763.)

We feel that the area where the gun was found here was “within [the defendant’s] immediate control.” He was only 5 feet from the bed. No one .was between him and the bed. He was in the doorway of the room in which the bed was located. It appears from the evidence that there was more than a mere academic possibility of him gaining access to whatever might have been concealed under the mattress. We find the seizure consistent with the contours of reasonableness contemplated by Chimel. (Cf. People v. Perry, 47 Ill.2d 402, 266 N.E.2d 330.

It is next proposed that there is reasonable doubt of defendant’s guilt because the testimony of the only eyewitness to the murder was so unsatisfactory and improbable that it must be disregarded. Larry Cosey, the 16-year-old stepson of the deceased, testified that he was sitting outside on the front porch of his next door neighbor’s house. He observed his father and the defendant, who were visible through a second-floor window. The defendant had a gun. He said he saw the defendant shoot his father. After the first shot, the youth jumped down from the porch and ran to the back door of his building. He went up a flight of stairs, entered his family’s apartment, ran through it, and found his mother and father in the front hallway. He said he heard his father say to his mother: “Honey, Mr. Holmes shot me.” The witness further stated that he never testified to these facts at the preliminary hearing and did not tell anyone except his mother that he observed the shooting until 2 months after it had occurred, at which time he told an Officer Sicula.

Defendant urges that both the boy’s and his mother’s long delay in informing the authorities that he was an eyewitness makes his testimony “less than credible.” He notes the boy had ample opportunity to tell the authorities on the night of the shooting, when 10 or 12 policemen were at his home, and at the preliminary hearing, where he was present but did not testify. It is further intimated that the participation by an attorney hired privately by the deceased’s family somehow makes the testimony more suspicious. Defendant also questions the inherent credibility of the boy’s story about running to the rear of the house after witnessing a shooting in the front, characterizing it as a “strange reaction.”

We are not persuaded that Larry Cosey’s testimony was too suspect to allow the jury to weigh it for themselves. The 2-month delay in notifying the police that he witnessed the shooting is not fatal to his story. He was 15 years old at the time and we can assume unsophisticated in the rigors of criminal proof. On the night of the shooting, after witnessing the arrest of the defendant, he may well have been convinced that the police had their man and that there was little need to reiterate what he felt the police knew. In fact, he testified that from the date of the occurrence until the date he divulged his story no one came to his house to take any statements. He also testified that no one interviewed him at the preliminary hearing. We finally fail to see anything “strange” about a 15-year-old boy running to the rear of his house after witnessing gunfire in the front.

Furthermore, even without the eyewitness testimony, there was more than sufficient evidence for the jury to return a guilty verdict. The deceased’s wife testified that immediately after hearing gunshots she went into the hallway. She saw her husband coming from the second floor, staggering. He said to her “Honey, Mr. Holmes shot me,” and repeated it. She helped him into their living room and he collapsed on the floor. Minutes later the police arrived, and after speaking with Mrs. Harris, went directly upstairs to the defendant’s apartment. There while questioning the defendant they found a revolver under a bed mattress with five spent cartridges. A ballistics expert linked the weapon to the shooting. We find no basis for tire assertion that the evidence was insufficient to sustain a finding of guilty.

We finally consider defendant’s contention that the trial judge erred in not declaring a mistrial and in not effectively admonishing the jury after the wife of the deceased began audibly crying in the courtroom. The crying apparently came as a reaction to the testimony of the expert witness, Dr. Shalgos, as to the cause of death. Defense counsel requested the court to declare á mistrial, or, alternatively to ask Mrs. Harris to remain outside the courtroom during the expert testimony and to admonish the jury not to be influenced by the display of emotion. The court granted the second request, excluding Mrs. Harris and cautioning the jury “to disregard the incidents that you heard in this courtroom.”

The law is established that a trial judge has broad discretion in determining whether a mistrial will be declared. (People v. D’Argento, 106 Ill.App.2d 36, 245 N.E.2d 501.) We perceive no abuse of that discretion here. The trial judge’s immediate and affirmative action in excluding the wife and instructing the jury to disregard the incident provided ample protection from prejudice to the defendant, and we do not feel a poll of the jurors as to the possible effect the incident had on them was necessarily warranted under these circumstances. See People v. Spagnola, 123 Ill.App.2d 171, 260 N.E.2d 20; cf. People v. Herbert, 361 Ill. 64, 196 N.E. 821; see also Annot., 46 A.L.R.2d 949, and cases collected therein.

In view of all the foregoing, we are compelled to affirm the defendant’s murder conviction.

Affirmed.

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

Mr. JUSTICE JOHNSON

specially concurring:

I approve of the results reached and of the reasons stated in the above opinion, except one. I concur in the opinion’s holding that the trial court did not commit reversible error in failing to hear defendant’s motion to dismiss the indictment and quash the venire for the reason that same were not timely filed.

This case was assigned to the trial judge on November 15, 1971. After several continuances, the case was set for trial on May 10, 1972. On the latter date, defendant filed the above mentioned motions and asked for a hearing. The court denied the hearing and proceeded to trial indicating that a hearing would be conducted after trial.

The motions to dismiss the indictment and quash the venire were made pursuant to section 114 — 1(a)(4) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, §§ 114 — 1(a)(4) and 114 — 3). These statutes in relevant part read as follows:

“§ 114 — 1 Motion to Dismiss Charge.
(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
* * *
(4) The indictment was returned by a Grand Jury which was improperly selected and which results in substantial injustice to the defendant;
* * *
(b) The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has been arraigned. Any motion not filed within such time or an extension thereof shall not be considered by the court and the grounds therefor, except as to subsections (a)(6) and (a)(8) of this section, are waived.
* * *
§ 114 — 3 Motion to Discharge Jury Panel.
(a) Any objection to the manner in which a jury panel has been selected or drawn shall be raised by a motion to discharge the jury panel prior to the voir dire examination. For good cause shown the court may entertain the motion after the voir dire has begun but such motion shall not be heard after a jury has been sworn to hear the cause.
(b) The motion shall be in writing supported by affidavit and shall state facts which show that the jury panel was improperly selected or drawn.
(c) If the motion states facts which show that the jury panel has been improperly selected or drawn it shall be the duty of the court to conduct a hearing. The burden of proving that the jury panel was improperly selected or drawn shall be upon the movant.” (Emphasis added.)

The statute clearly states that upon written motion made prior to trial the court may dismiss an indictment. It further states that any objection to the manner in which a jury panel has been selected or drawn shall be raised by motion to discharge the jury panel prior to the voir dire examination, and if the motion states facts which show that the jury panel has been improperly selected or drawn, it shall be the duty of the court to conduct a hearing. The court shall require any motion to dismiss to be filed within a reasonable time after defendant has been arraigned. Any motion not filed within such time or an extension thereof shall not be considered by the court.

The State’s brief notes that motions “similar” to the defendant’s in the present case were rejected in People v. Connolly (1973), 55 Ill.2d 421, 303 N.E.2d 409, and also cites Swain v. Alabama (1965), 380 U.S. 202; People v. Powell (1973), 53 Ill.2d 465, 292 N.E.2d 409. In all of the cases cited by the parties these motions were heard as pre-trial motions before trial on the merits. There were no cases cited by the parties and our research has revealed none where such motions were held over and heard after trial on the merits. I would hold that to permit such a procedure would constitute reversible error. I hope that by this opinion, we are not saying that a trial judge may in his descretion postpone the hearing of a pre-trial motion until after a jury verdict.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joe McCaster, Defendant-Appellant.
    (No. 58783;
    First District (4th Division)
    May 22, 1974.
    Paul Bradley and Richard D. Thomas, of State Appellate Defenders Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Joe McCaster, was found guilty of armed robbery on March 9, 1972, and placed on 4 years’ probation, the first 270 days of which were to be served in the House of Correction under the work release program.

On April 7, 1972, a warrant was issued for defendant’s arrest for violation of the terms of his probation. On November 11, 1972, he was taken into custody. At a subsequent hearing conducted to determine whether the defendant violated his probation, it was stipulated that, on March 16, 1972, he left the House of Correction 7 days after his entry and never returned at the end of the day as required under the work release program. At the conclusion of the hearing, the court entered a finding that the defendant had violated his probation. The court imposed a sentence of 2 to 4 years after a hearing in aggravation and mitigation.

The defendant contends that the State failed to establish by a preponderance of the evidence that he “knowingly" violated a condition of his probation. The only other evidence at the hearing besides the above stipulation was the testimony of the defendant, his wife, and his mother. His wife testified that she did not know that her husband was on work release. She thought when he returned everything had been cleared up. His mother testified that no one from the probation department ever contacted her. The defendant testified that he was under the impression that he was to go out and get a job and the probation officer would contact him and tell him where to report. He went to his old job where he worked for 6 months until he was arrested. He never talked to any probation officer during that time. There was evidence also that the defendant and his family moved to a different apartment about May 1, 1972, about 2 weeks after the defendant first left the work release program. His wife testified that the reason they moved was because she had fallen behind paying rent at the first apartment while her husband was incarcerated. The defendant’s mother corroborated the wife’s testimony.

We feel that the State satisfactorily sustained its burden of showing a violation of probation. When the defendant is made aware of the charges and the proof shows a violation, the State has fulfilled its burden. (Cf. People v. Williams, 130 Ill.App.2d 192, 264 N.E.2d 589.) We note first that a lenient judge placed the defendant, who had committed an offense of armed robbery, on probation. The evidence here indisputably shows that he failed to contact the House of Correction or any probation officer for a period of 6 months, at which time he was taken into custody. He moved and did not inform the probation department of his change of address. Failure to report to the probation officer, alone, in the discretion of the court, is sufficient to revoke probation. People v. Freeman, 49 Ill.App.2d 464, 200 N.E.2d 146. See also People v. Henderson, 2 Ill.App. 3d 401, 276 N.E.2d 372.

Of course, the defendant must be allowed to answer any charge that has been preferred against him in the probation revocation proceeding. (People v. Price, 24 Ill.App.2d 364, 164 N.E.2d 528.) This he was aHowed to do. The matters raised by him to explain his failure to comply with the terms of his probation were subject to the court’s scrutiny in terms of their credibility. We feel the court’s evaluation of them was neither unwarranted nor an abuse of discretion.

We find no basis for disturbing the court’s finding that the defendant knowingly violated his probation and we find the revocation proper. The judgment of the circuit court is therefore affirmed.

Affirmed.

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