author: Mr. JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dennis Dickens, Defendant-Appellant.
    (No. 73-236;
    Fifth District
    May 21, 1974.

      G. Edward Moorman, of Smith, Allen & Moorman, of East Alton, for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville (P. J. O’Neill, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a judgment entered, on a jury verdict, by the circuit court of Madison County against the defendant, Dennis Dickens, for armed robbery and the imposition of a sentence of 4 to 6 years in the penitentiary.

The defendant contends, first, that he was not proven guilty beyond a reasonable doubt because he did not commit an overt act in furtherance of the armed robbery and because he was not accountable for the actions of the co-defendants; secondly, that he is entitled to a new trial because he was denied effective assistance of counsel at the trial due to a conflict of interest on the part of his court-appointed Public Defender; thirdly, that he is entitled to a new trial because of the court’s failure to give his tendered instruction no. 1; and lastly, that his sentence is excessive in view of co-defendants’ sentences of periodic imprisonment consisting of 2 years of weekends in the county jail.

In support of his first contention, that he was not proven guilty beyond a reasonable doubt, defendant cites People v. Tillman, 130 Ill.App.2d 743, 265 N.E.2d 904; In re Interests of Dugan, 9 Ill.App.3d 58, 291 N.E.2d 303; and People v. Ramirez, 93 Ill.App.2d 404, 236 N.E.2d 284. In People v. Tillman, the court, with Justice Trapp dissenting, stated that the evidence failed to show any intent of the defendants to engage in criminal activity with the perpetrators of the crime; established that the defendants were not with the perpetrators when the crimes were committed; and, tended to show that, prior to the commission of the crimes for which the defendants were charged, the defendants had refused to join or assist in the robbery of a filling station. In the case of In re Interests of Dugan, a juvenile delinquency proceeding, the court stated that the “most” the evidence established was that Dugan was aware that a crime was being committed and was in the vicinity when the crime was being committed. In People v. Ramirez, the court found that the State had failed to establish beyond a reasonable doubt that the conduct on the part of Ramirez took place either before or during the commission of the murder, that Ramirez shared the criminal intent of the principal, or that there was a community of unlawful purpose. Facts similar to Tillman, Dugan and Ramirez are not present in the instant case. The record in the instant case discloses evidence which indicates that the defendant, Dennis Dickens, may have actively participated in the robbery. For example, Mrs. Hampton, one of the victims, testified that all seven persons, including the defendant, went into, and through, the Hampton’s house. The instant case is further distinguished by the fact that there is no evidence in the record that the defendant severed his connections with the group or that he was not in the immediate vicinity of tire crimes at the time of their commission. These and other distinctions herein present render the aforementioned cases, relied upon by the defendant, inapplicable to this case.

It is well established that mere presence at the scene of a crime is not sufficient to constitute a person a principal of a crime. (People v. Nugara, 39 Ill.2d 482, 236 N.E.2d 693; People v. Woodell, 1 Ill.App.3d 257, 274 N.E.2d 105.) It is equally established, however, that one may aid and abet without actively participating in an overt act. (People v. Nugara, 39 Ill.2d 482, 236 N.E.2d 693; People v. Murphy, 17 Ill.App.3d 482, 308 N.E.2d 235; People v. Littleton, 113 Ill.App.2d 185, 252 N.E.2d 77.) Evidence that tends to establish that a person was present during the commission of a crime without disapproving or opposing it may be considered by the trier of fact, with other circumstances, in reaching its conclusion that such person assented to tire commission of the crime, lent it his countenance and approval and thereby aided and abetted the commission of the crime. (People v. Washington, 26 Ill.2d 207, 186 N.E.2d 259.) When a group shares a “common design” to do an unlawful act and all assent, whatever is done in furtherance of that design is considered the act of all of them. People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840; People v. Cole, 30 Ill.2d 375, 196 N.E.2d 691.

In People v. Johnson, 35 Ill.2d 624, 221 N.E.2d 622, the supreme court upheld a murder conviction and stated:

“Evidence that one voluntarily attaches himself to a group bent on illegal acts with knowledge of its design supports an inference that he shared the common purpose and will sustain a conviction as a principal for a crime committed by another in furtherance of the venture. (People v. Rybka, 16 Ill.2d 394, 405, 138 N.E.2d 17.) Proof of a common design need not be supported by words of agreement but can be drawn from the circumstances surrounding the commission of an act by a group. * * *” (35 Ill.2d at 626, 221 N.E.2d at 663.)

In the instant case there is sufficient evidence for the jury to determine that the defendant had voluntarily attached himself to a group bent on illegal acts. The testimony of the victims, Mr. and Mrs. Hampton, indicates that the group’s original purpose was to obtain “downers” by threatening the use of force.

The defendant relies on several statements made by Mr. and Mrs. Hampton as proof that the defendant did not share a “common design” with the group and that he did not intend to rob the Hamptons. However, these statements do not reveal any substantial opposition by the defendant to the acts of the group. In fact all but one vague and general statement made by Mrs. Hampton indicate that the defendant’s renitency to the group’s activities manifested itself only after the house had been ransacked.

There is ample evidence in the record to sustain a finding that the defendant shared a “common design” with his companions or that he assisted in the armed robberies. The testimony indicates that the defendant voluntarily entered the Hampton house with the other members of the group. His silence throughout the evening could logically be considered an aid to his companions. Furthermore, he made no attempt to assist the victims, to notify the authorities or to flee the scene until the group had completed their criminal activities. Although there is some evidence from which it might be inferred that the defendant thought things had “gone too far”, he did not abandon, or withdraw from, or present any substantial opposition to, his companions. The defendant left the Hampton home with his alleged accomplices, and he was apprehended with them soon thereafter. In view of this evidence, it was reasonable for the jury to find that the defendant aided and abetted the criminal act of armed robbery, and that finding will therefore not be disturbed by this court.

In defendant’s second contention, that he was denied the effective assistance of counsel because the Public Defender was forced to represent both the defendant and co-defendant, Prince, he cites as authority People v. Johnson, 46 Ill.2d 266, 265 N.E.2d 869, and People v. Ware, 39 Ill.2d 66, 233 N.E.2d 421. In both of these cases one of the co-defendants testified against the defendant. In Johnson the supreme court stated that the co-defendant could not receive the “undivided allegiance” of his attorney because immunity was granted to one of the co-defendants and he testified against the defendant at trial. In Ware, the court noted that there was “complete antagonism” between the defense of the co-defendants because one had pled guilty and prior to his being sentenced he testified against the defendant. In the instant case, neither the defendant nor the co-defendant testified and there was no showing that their defenses were completely antagonistic.

It is well settled that co-defendants do not have the right to an appointment of individual attorneys unless there is some showing that the defenses may be inconsistent. (People v. Robinson, 42 Ill.2d 371, 247 N.E.2d 898; People v. Dolgin, 415 Ill. 434, 114 N.E.2d 389.) As stated in People v. Chapman, 66 Ill.App.2d 124, 127, 214 N.E.2d 313, 315:

“It is only when the interests of the joint defendants are in fact antagonistic that the court must grant separate trials or require separate legal representation. People v. Dolgin, 415 Ill. 434, 114 N.E.2d 389 (1953). A finding of adverse interest or incompetency or incompatability of counsel cannot be based solely on mere assertions. People v. Wolff, 19 Ill.2d 318, 167 N.E.2d 197 (1960). Unless defendant properly establishes that a conflict of interest actually exists, or this fact becomes apparent during the trial itself, the court will not indulge in speculation to determine whether separate counsel, in the interest of justice and a fair trial, is required. People v. Rose, 348 Ill. 214, 180 N.E. 791 (1932) and People v. Bopp, 279 Ill. 184, 116 N.E. 679 (1917).”

A similar view was espoused by the United States Court of Appeals for the Seventh Circuit; in United States v. Gallagher, 437 F.2d 1191 (7th Cir. 1971), cert. den. 402 U.S. 1009, 29 L.Ed.2d 430, 91 S.Ct. 2190, the court stated:

“That a difference in the weight of the evidence against co-defendants may cause trial counsel to speculate as to the trial strategy he should employ in the cross-examination of a witness, likewise, does not of itself serve to establish that counsel is unable to effectively represent both defendants. Nor does the fact that one of the co-defendants expressed a desire to testify, which he promptly withdrew at the first opportunity. The existence of a conflict of interest, to warrant the result here sought, must be founded on something more than mere speculation or surmise.” (437 F.2d at 1194.)

(See also People v. Richardson, 16 Ill.App.3d 830, 306 N.E.2d 886; and People v. Robinson, 17 Ill.App.3d 310, 308 N.E.2d 88.) In the instant case there was no showing of an actual conflict of interest between the defendants and, therefore, we find defendant’s claim of ineffective assistance of counsel without merit.

The defendant’s third contention is that he is entitled to a new trial because the court refused to give his tendered instruction number one relating to the defense of compulsion. That instruction was at variance with the applicable Illinois Pattern Instruction (I.P.I.), Criminal Instraction No. 24.21. The State’s Attorney objected to the instruction on the ground that there was not sufficient evidence to support the defense of compulsion. The defense attorney did not argue the matter, and the instruction was refused. Our reading of the record reveals no evidence of compulsion.

Assuming ad arguendo that there was sufficient evidence by inference to justify an instruction on the defense of compulsion, the court was nevertheless correct in refusing the instruction tendered by the defendant. Only when there is no applicable I.P.I. in a criminal case or when such I.P.I. inaccurately states the law, may a defendant tender an instruction that differs from the Illinois Pattern Instructions in criminal cases. (Ill. Rev. Stat., ch. 110A, sec. 451(a); People v. Phillips, 129 Ill.App.2d 455, 263 N.E.2d 353.) In the instant case I.P.I. Criminal No. 24.12 was not tendered, and that instruction does accurately state the law concerning the defense of compulsion. Under such circumstances the trial court was justified in refusing defendant’s tendered instruction number one.

The defendant’s final contention is that his sentence of 4 to 6 years for the offense of robbery is excessive in light of the fact that two co-defendants were sentenced to periodic imprisonment. The defendant cites one case as authority for this point. Such case is not favorable to the defendant and will not be discussed. In People v. Tobin, 2 Ill.App.3d 538, 276 N.E.2d 828, this court cited the following language from People v. Jones, 118 Ill.App.2d 189, 254 N.E.2d 843, 847:

“ “We recognize that not every offense in a like category calls for an identical punishment. There may be a proper variation in sentences as between different offenders, depending upon the circumstances of the individual case. As a general rule, where the punishment for the offense is fixed by statute, that imposed in the sentence must conform thereto, and a sentence which conforms to statutory regulations is proper. Before an Appellate Court will interfere, it must be manifest from the record that the sentence is excessive and not justified by any reasonable view which might be taken of the record!” (2 Ill.App.3d at 542, 276 N.E.2d at 831.)

The Illinois Supreme Court and this court have upheld disparate sentences in which an important consideration was the defendant’s past criminal record. (People v. Thompson, 36 Ill.2d 478, 224 N.E.2d 264; People v. Tobin, 2 Ill.App.3d 538, 276 N.E.2d 828.) In the instant case, the presentence report reveals that the defendant: (1) was sentenced to serve 5 years in 1958 for aimed robbery in Missouri; (2) was placed on probation in 1965 for obtaining narcotics with a false identification card; and (3) was placed on probation in 1967 for possession of narcotics. The defendant does not assert that his co-defendants also had criminal records. Without such an assertion we can find nothing improper with the sentence imposed upon the defendant.

For the aforementioned reasons, the judgment of the circuit court of Madison County is affirmed.

Judgment affirmed.

CREBS and CARTER, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE CARTER.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert J. Baker, Defendant-Appellant.
    (No. 73-171;
    Fifth District
    April 30, 1974.

      Robert J. Baker, pro se.

    Herbert J. Lantz, State’s Attorney, of Chester (David P. Rau, Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. JUSTICE CARTER.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sherwin Lee Davenport, a/k/a Dave Davenport, Defendant-Appellant. The People of the State of Illinois, Plaintiff-Appellee, v. Vickie Owens, a/k/a Vickie Glass, Defendant-Appellant.
    (Nos. 72-298-9 cons.;
    Fifth District
    May 7, 1974.

      Robert E. Farrell, Deputy Defender, and Robert E. Davison, Legal Director, both of Mt. Vernon, for appellants.
    Robert J. Neely, State’s Attorney, of Metropolis, and Ralph J. Mendelsohn, of Illinois Model State’s Attorneys Support Unit, of Cairo, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendant Sherwin Lee Davenport was charged with the offenses of unlawful possession of a hypodermic syringe, hypodermic needles, cannabis, and a controlled substance. The State elected to proceed on the offense of unlawful possession of a controlled substance as a misdemeanor, and, following a bench trial in the Circuit Court, of Massac County, the defendant was found guilty and sentenced to 1 year probation with the first 90 days at the Illinois State Farm.

Defendant Vickie Owens was charged with three counts of unlawful possession of a controlled substance. The State elected to proceed on Count I of the indictment as a misdemeanor. At a bench trial in the Circuit Court of Massac County the defendant was found guilty and sentenced to 1-year probation. Defendant’s motion for a new trial was denied. On the State’s motion Counts II and III were dismissed. Defendants Davenport and Owens have appealed their guilty verdicts and the cases have been consolidated for opinion.

On November 3, 1971, a complaint for search and warrant was presented to a judge in Massac County and a search warrant was issued. The complaint for search warrant stated the following:

“COMPLAINT FOR SEARCH WARRANT
Oscar Mizell, Jr. complainant now appears before the undersigned judge of the Circuit Court of said County and requests the issuance of a search warrant to search (the person of Dave Davenport, Jane Doe and Richard Roe and) single family one story frame house at 1111 East 6th Street, Metropolis, Illinois, and seize the following instruments, articles and things which have been used in the commission of, or which constitute evidence of, the offense of Delivery of or possession with the intent to deliver Cannabis and possession of Cannabis, to wit: Cannabis (Marijuana), Cigarette papers or pipes used in smoking such substance.'
Complainant says that he has probable cause to believe, based upon the following facts, that the above listed things to be seized are now located upon the (Person and) premises set forth above: A private citizen and neighbor, a reliable and reputable person, has seen Dave Davenport receiving a large bag of a substance suspected to be Cannabis (Marijuana) at said premises and thereafter dispensing said substance to a large number of persons entering said house surreptitiously during the hours of darkness; that such activity has exténded over two consecutive days; that most of the persons entering and leaving the said premises do so via the back door after parking their vehicles some distance from the said premises and reaching and leaving said premises by crossing adjoining private property; that the said traffic into and out of said premises on the second day was watched by Deputy Virgil Nelson.”

Based upon the above complaint, the following search warrant was issued:

“SEARCH WARRANT
TO ALL PEACE OFFICERS OF THE STATE OF ILLINOIS:
ON THIS DAY Oscar Mizell, Jr., Complainant, has subscribed and sworn to a complaint for search warrant before me. Upon examination of the complaint I find that it states facts sufficient to show probable cause and I herefore command that (the person of Dave Davenport, Jane Doe and Richard Roe and) single family one story frame house at 1111 East 6th Street, Metropolis, Illinois, be searched and the following instrument, articles and things which have been used in the commission of, or which constitute evidence of, the offense of Delivery of or possession with intent to deliver Cannabis and Possession of Cannabis be seized therefrom: Cannabis (Marijuana), cigarette papers or pipes Used in smoking such substance.”

Pursuant to the warrant, police entered the home of defendant Davenport. Defendant Davenport was present at his home and defendant; Owens was also at Davenport’s home. There were others present also when the police entered. The police searched the premises and the purse of defendant Owens and confiscated various items which led to their arrest for the above mentioned crimes.

The primary thrust of defendants’ appeal concerns the sufficiency of the complaint for the search warrant to establish probable cause. Prior to the trial defendants tried unsuccessfully to quash the search warrant.

In McCray v. State of Illinois (1967), 386 U.S. 300, 18 L.Ed.2d 62, 87 S.Ct. 1056, the Supreme Court held that the identity of an informer in a narcotics case need not be disclosed upon a motion to suppress if the arresting officers testify to circumstances that justified them in believing him to be reliable. In the case before us the identity of the informant is. not revealed so it is necessary for the complaint to state why the law enforcement officers believed the informant to be reliable.

In Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct., 1509, the Supreme Court held that in order for a complaint for search warrant, based upon, the observations of a person other than the affiant, to be sufficient to establish probable cause:

“* * * [issuing] magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant * * * was credible’ or his information reliable.’ ” 378 U.S. at 114.

In People v. Parker (1969), 42 Ill.2d 42, 245 N.E.2d 487, our Supreme Court struck down a search warrant because the complaint failed to present sufficient factual allegations for the issuing judge to make an independent determination of the reliability of the informer:

“Their [the complaint for search warrants] sole allegation relating to the reliability of the informer is the general averment that he had previous given information to said complainant which proved to be true.’ They do not reveal the character of this prior information or whether it led to arrests or convictions. Nor do they allege that the present information had been independently corroborated by the affiant or any other officers, other than the proof that the substances handed over were marijuana. Absent such factual allegations, or other grounds from which an issuing magistrate could reasonably credit the informer’s accusation, the affidavits are defective and the warrants cannot stand.” 42 Ill.2d at 44, 245 N.E.2d at 489.

In the case at bar the complaint for the warrant stated that the informer was “A private citizen and neighbor, a reliable and reputable person * * *.” Nothing is said why the affiant believed that the informer was a credible person. The complaint in this case did not even contain as much as the complaint in the Parker case where there it was alleged that the informer had given information previously which proved to be true and the court held that that was not sufficient to sustain the warrant.

The complaint in this case does not satisfy the other test of Aguilar in that although the informant may be credible, there must be a basis for believing that his information came from a reliable source or that the conclusion he reaches, from the circumstantial evidence he has, is justified. The complaint here states that the informant had seen Davenport receiving a large bag of a substance suspected to be Cannabis and dispensing said substance to others during the hours of darkness. The fact that the informer “suspected” the substance to be Cannabis is not sufficient because it is not revealed how he reached his conclusion. Thus it has not been shown that the person giving the information has a basis for his knowledge that the substance is Cannabis. U.S. v. Ventresca (1965), 380 U.S. 102, 13 L.Ed.2d 684, 85 S.Ct. 741.

We hold that the complaint for the search warrant in the case before us failed to meet either of the tests of Aguilar v. Texas, supra. The failure to quash the warrant and to surpress the evidence discovered pursuant to said warrant constituted reversible error. We therefore reverse the decision of the Circuit Court of Massac County and remand it with instructions to grant defendants’ motion to quash the warrant and suppress the evidence acquired pursuant to said warrant.

Reversed and remanded.

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


author: Mr. PRESIDING JUSTICE GEORGE J. MORAN

text:
    Robert Romanik, Plaintiff-Appellee, v. The Board of Fire and Police Commissioners of East St. Louis, Defendant-Appellant.
    (No. 73-326;
    Fifth District
    May 7, 1974.
    Earle McCaskill, of East St. Louis, for appellant.
    Hillebrand, Cook & Shevlin, Ltd., of East St. Louis, for appellee.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

This is an appeal by the defendant-appellant Board of Fire and Police Commissioners from an order of the circuit court of St. Clair County reinstating Probationary Patrolman Robert Romanik to the East St. Louis Police Department with back pay.

Plaintiff-appellee Romanik, a probationary patrolman since March 2, 1972, was dismissed January 9, 1973, by the Board.

The record discloses that the Board acted on a written recommendation to dismiss Romanik made by the Chief of the East St. Louis Police Department. This written recommendation was accompanied by a record of occurrences involving the plaintiff which indicated, in the opinion of the chief, that Romanik had conducted himself in a manner “unbecoming a police officer”, and that this conduct “definitely indicates his inability to adjust and conform to conduct required of a probationary patrolman.” The plaintiff brought suit under the Administrative Review Act (Ill. Rev. Stat., ch. 110, par. 264 et seq.), alleging, among other things, that plaintiff was neither afforded notice of these charges against him nor granted a hearing in order to answer said charges.

We have previously held, in Collins v. Towle, 3 Ill.App.3d 753, 279 N.E.2d 172, that probationary patrolmen are to be considered as members of the police department for the purpose of the division of the Municipal Code dealing with removal or discharge; specifically including therein section 10 — 2.1—17.

Hence, the only question before us is whether the plaintiff was denied notice and a hearing as prescribed by the aforesaid section 10 — 2.1—17 (Ill. Rev. Stat. 1973, ch. 24, par. 10 — 2.1—17).

We can find nothing in the record to indicate that the Board did, in fact, comply with this statute.

The decision of the circuit court of St'. Clair County is therefore affirmed.

Affirmed.

EBERSPACHER and CARTER, JJ., concur.


author: Mr. PRESIDING JUSTICE G. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Joe Lipe et al., Defendants-Appellants.
    (No. 73-265;
    Fifth District
    May 7, 1974.

      Paul Bradley, Deputy Defender, of Chicago (Allen L. Wiederer, Assistant Appellate Defender, of counsel), for appellants.
    Howard L. Hood, State’s Attorney, of Murphysboro, and Ralph J. Mendelsohn, of Model District State's Attorneys Office, of Cairo, for the People.
   Opinion by

Mr. PRESIDING JUSTICE G. MORAN.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anna Marie Johnson, a/k/a Anna Marie Suggs, Defendant-Appellant.
    (No. 73-75;
    Fifth District
    May 8, 1974.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon (Michael J. Rosborough, Assistant Appellate Defender, of counsel), for appellant. .
    ■ Robert H. Rice, State’s Attorney, of Belleville (Richard A. Aguirre, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a judgment entered by the; circuit court of St. Clair County against the defendant, Anna Marie Johnson, on her plea of guilty on indictment for theft over $150. After hearings on her petition for probation and sentencing were held, the defendant was denied probation and sentenced to serve from 3 years 4 months to 10 years.

The defendant contends that the trial court failed to comply with Supreme Court Rule 402, in that (1) she was not properly admonished as to the nature of the charge; ( 2) the trial court failed to confirm the terms of plea agreement by questioning the defendant personally in open court and did not determine if any force or threats or any other promises were used to obtain the plea; and (3) the trial court failed to determine that the defendant knew and understood that her guilty plea resulted in a waiver of a trial by jury. Next, the defendant contends that the State reneged on its promise to stand mute on the penalty to be imposed. Finally, the defendant asserts that the trial court erred in sentencing the defendant to the penitentiary.

The record reveals that the trial judge did not determine that the defendant understood the nature of the charge as required by Rule 402(a) (1). The defendant had been given a copy of the indictment at her arraignment and was informed that she was charged “with Theft * * At the plea proceedings, 11 days later, the court mentioned that the charge was “Theft”; the State’s Attorney added, “Theft over one hundred and fifty dollars.” The only other inquiry related to the nature of the charge was that elicited in the factual basis inquiry:

“State’s Attorney: Your Honor, the State would be prepared to prove that Anna Marie Johnson was employed by the United Fund for approximately seven years; she worked in the office and handled various and pertinent duties, including the handling of collection pledges and funds. There were several different types of accounts in this bank and over the course of approximately three years Mrs. Johnson managed to divert money from the accounts belonging to the United Fund, to her own personal use, amounts totaling over — : somewhat over $34,000.
We have witnesses to show how the various monies were diverted; an audit was made by the bank, and we will be prepared naturally to show almost to the exact dollar, the amount of money taken from the United Fund.”

As we stated in People v. Ingeneri, 7 Ill.App.3d 809, 288 N.E.2d 550,. and reiterated in People v. Lampe, 16 Ill.App.3d 975, 307 N.E.2d 176, the trial court must do more than merely inform the defendant of the charge; the court must also inform the defendant of the essential elements of the crime charged. It was also stated in the preceding cases, that merely furnishing a copy of the indictment to the defendant would not be sufficient because Rule 402(a) specifically required the trial court to address the defendant personally in open court. In the instant case the trial judge did not read the indictment or the relevant section of the Criminal Code to the defendant or in any other way attempt to inform the defendant of the essential elements of the crime of theft over $150. Furthermore, there was no admonition of, or inquiry into defendant’s understanding of, the elements of the charge.

The trial judge also failed to comply with Rule 402(b) which requires the court to determine whether any force, threats or promises, apart from the plea agreement, were used to obtain the plea. In the instant case the trial court made no inquiries concerning the use of force, threats or promises.

For the failure of the trial court to substantially comply with the requirements of Supreme Court Rule 402 the judgment of the circuit court of St. Clair County is reversed and this cause is remanded with directions that the defendant be permitted to plead anew. In view of .this conclusion it is not necessary for us to reach defendant’s other contentions.

Reversed and remanded with directions.

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


text:
    Edward Rushing et al., Plaintiffs-Appellants, v. Robert Camp, Defendant-Appellee.
    (No. 73-262;
    Fifth District
    May 8, 1974.

      Stobbs Law Offices, Ltd., of Alton (John Dale Stobbs, of counsel), for appellants.
    Lawrence Keshner, of Alton, for appellee.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Madison County denying appellants’ motion for a preliminary injunction. A temporary restraining order had been previously issued and a hearing was held within the required 10-day period.

The notice of appeal in this case was filed in August, 1973; the appellants’ brief was filed October 17, 1973. Appellee requested an extension of time for filing his brief. On November 17, 1973, an order by this court granted an extension of time through December 20, 1973, “Provided That No Further Extensions shall be, granted.” On December 20, 1973, appellee moved for additional time to file a brief and excerpts which was objected to, and denied. Oral argument was waived.

Under such circumstances we are not required to consider the merits of the appeal and. where, the appellants have complied with all the requirements for perfecting an appeal, we are permitted in our discretion to summarily reverse the holding of the trial court. (People v. Casey (1974), 16 Ill.App.3d 746, 306 N.E.2d 711.) In view of the nature of the case and the circumstances attendant, we choose to decide the case on its merits.

Appellants raise three contentions in their appeal from the order denying the preliminary injunction: first, that essential findings of fact cannot be based merely on a view of premises; secondly, that on a view of premises there shall be no comment or discussion and evidence shall not be taken; and lastly, that the previous violations of the subdivision building restrictions are minor in nature and do not constitute waiver or abandonment.

Appellants are property owners in a platted subdivision in Godfrey -Township, Madison County, The .creators of this subdivision established certain building and other restrictions. The restrictions, included the requirement that all homes in the subdivision be constructed of stone or brick; except for trim areas¡ There were 15 homes in the subdivision when the appellee purchased certain of the lots in the subdivision from one of the original creators of the restrictions, with knowledge of the building -restrictions. The appellee is building houses that will be brick only on one side and decorated by brick on the front in the . vicinity of the windows. At the conclusion of the hearing the trial judge announced that he would conduct a view of the premises. The court did so without the presence of attorneys.

Appellants have inserted in their excerpts a photocopy of an affidavit of one Bernice Baumann, one of the witnesses and spouse of one of the appellants. In this affidavit the affiant states that at the time the court viewed the premises, the court inquired into certain matters relative to the water course alleged to have been altered by the appellee (an issue not raised in the appeal). Although this affidavit is a part of appellants’ excerpts, such affidavit is not a part of the record. The photocopy appearing in the excerpts bears no file marks or any indication that it was a part of the record. Since this affidavit was inserted without leave of court no consideration will be given it by this court.

Our examination of the record reveals that sufficient evidence was presented to sustain the holding of the trial court. There is testimony in the record which indicates that there were a number of violations of the subdivision’s building restrictions. The appellee introduced into evidence photographs of houses which were identified as homes within the subdivision. These photographs show homes in which more than the trim areas were of material other than brick or stone. Moreover, the trial judge in this bench trial conducted a view of the subdivision and recorded his findings in his order denying the preliminary injunction.

Appellants contend that essential findings of fact cannot be based merely on a view of the premises. While the cases appellants cite for this principle are distinguishable, it suffices to say that the testimony and the evidence in the record provide an adequate basis to sustain the findings.

Next, appellants contend that the trial judge elicited evidence while viewing the premises and seek to support this contention with the affidavit to which we have referred. The trial below was a bench trial and in such proceedings it is presumed that the judge, as the trier of fact, excluded any improper evidence. McFail v. Braden (1960), 19 Ill.2d 108, 166 N.E.2d 46; Prignano v. Mastro (1965), 61 Ill.App.2d 65, 209 N.E.2d 12.) There is nothing in the order denying the preliminary injunction which would indicate otherwise.

Finally, appellants contend that the previous violations of the subdivision building restrictions are minor in nature and do not constitute waiver or abandonment. As authority for this contention appellants cite Punzak v. DeLano (1957), 11 Ill.2d 117, 142 N.E.2d 62, and O’Neill v. Wolf (1930), 338 Ill. 508, 170 N.E. 669. In these cases it was held that unless minor violations of restrictions on the use of realty by third parties have a substantial relation to the property of the plaintiff, or interfere with its enjoyment, the fact that the plaintiff has not expressed objection to such violations by third persons does not preclude the plaintiff from objecting to the defendant’s violation, which injuriously affects him. In the case at bar the appellants, along with third parties, were alleged to have violated the subdivisions building restrictions. The trial court, as the trier of fact, found that these violations were not merely minor in nature and these findings will not be disturbed unless manifestly against the weight of the evidence.

Our interpretation of appellants’ authorities does not require reversal. The case for affirmation is even more substantial when the pronouncement of the Illinois Supreme Court in Watts v. Fritz (1963), 29 Ill.2d 517, 194 N.E.2d 276, is considered. The court held that minor violations of a deed restriction will not prohibit subsequent enforcement, but where there has been acquiescence of prior violations of a particular restriction, the plaintiff will be held to have waived any right of enforcement of that restriction. Here the previous violations were of the particular restriction now sought to be enforced; having so acquiesced to prior violations, the appellants are unable to enforce any such restrictions.

Accordingly, the order of the trial court denying appellants’ motion for a preliminary injunction is affirmed.

Affirmed.

CARTER and CREES, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Melson, Defendant-Appellant.
    (No. 72-363;
    Fifth District
    May 8, 1974.

      Robert E. Farrell, Deputy Defender, of Mt. Vernon (Richard E. Cunningham, Assistant Appellate Defender, and Michael J. D’Augustine, Senior Law Student, of counsel), for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville (Raymond F. Buckley, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Madison County revoking appellant’s probation and the imposition of a sentence of 1 to 3 years imprisonment. Appellant, Robert Melson, pleaded guilty to burglary and was placed on probation for 2 years on August 24, 1972, under conditions of section 117 — 2(a) (1 — 4) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 117 — 2(a) (1 — 4)), including the provision against further violation of the law. One and one-half months later a petition to revoke probation was filed, alleging that appellant committed the offense of attempt (to commit burglary). A hearing was conducted at which facts relating to the above incident were presented.

The appellant contends that the petition was fatally defective in that it failed to give the appellant proper notice of the alleged violation of probation. Next, appellant contends that the State failed to prove by a preponderance of the evidence that the appellant violated the conditions of his probation.

The petition to revoke stated, in part:

“That the defendant had violated the terms of his probation in that on October 8, 1972 he committed the offense of attempt (burglary), to wit: He attempted to commit a burglary at the Kerr Drug Store, 2512 College Avenue, Alton, Illinois, in violation of chapter 38, section 8 — 4(c—2).”

The appellant asserts that the instant revocation petition, and the above portion in particular, is defective because it does not allege any act on the part of the appellant.

A petition to revoke probation need not be as specific as an indictment or information but it must be sufficient to apprise the defendant of the nature of the conduct alleged to constitute the grounds for revocation. (People v. Tempel, 131 Ill.App.2d 955, 268 N.E.2d 875.) In the instant case, the fact that the appellant testified intelligently about the charges" contained in the petition and the fact that neither the appellant nor his counsel complained at the hearing that they were not cognizant of the-charges indicated that the appellant was undeniably aware of the nature of the charges contained therein.

The appellant’s second contention is that the State failed to prove by the preponderance of the evidence that he violated the terms of his probation. However, as we stated in People v. Shadowens, 10 Ill.App.3d 450, 452, 294 N.E.2d 107, 109:

“The credibility of witnesses and the weight to be given their evidence are matters for the finders of fact and should not be disturbed except where the evidence is so unsatisfactory as not to sustain the burden of proof. (People v. Hampton, 44 Ill.2d 41, 253 N.E.2d 385.)”

Our review of the record in the instant case discloses that the evidence is satisfactory to sustain the required burden of proof. We therefore affirm the revocation.

Judgment affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Berry, Defendant-Appellant.
    (No. 72-129;
    Fifth District
    May 9, 1974.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon, for appellant.
    James E. Hinterlong, Assistant State’s Attorney, of Mt. Vernon, for the People.
   Mr. PRESIDING JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

Defendant appeals from a judgment of the circuit court of Jefferson County finding him guilty of the crime of manslaughter and sentencing him to a minimum of 10 years and a maximum of 15 years in the Illinois State Penitentiary upon his plea of guilty.

Appellant was indicted for the offense of murder in Jefferson County, Illinois. After the State informed the court that the defendant had been treated at a mental institution, the court ordered a hearing to determine defendant’s competency to stand trial.

A competency hearing was then held which resulted in a deadlocked jury. A second competency hearing was later held where another jury found the defendant competent to stand trial.

The trial court instructed the jury that the burden of proving defendant’s competency was the defendant’s. Since defendant offered sufficient evidence to rebut the presumption of competency, the giving of this instruction was error. People v. Bender, 20 Ill.2d 45; People v. McKinstray, 30 Ill.2d 611.

In the light of our disposition of this case, we need not consider other errors claimed by appellant. The judgment of the trial court is reversed and this case is remanded to the circuit court of Jefferson County for further proceedings consistent with this opinion.

Reversed and remanded.

EBERSPACHER and CREBS, JJ., concur.


text:
    Eastgate Plaza, Inc., Plaintiff-Appellant, v. Meyer Hurwitz Jewelry Co., Defendant-Appellee.
    (No. 73-231;
    Fifth District
    May 13, 1974.

      Ross Armbruster, of Alton, for appellant.
    Samuel F. Ross, Jr., and Eli C. Seigel, both of Belleville, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Plaintiff filed suit in the Circuit Court of Madison County for rent alleged to be due under a written lease. The lease provided for a payment of a percentage of sales and plaintiff contended that it was entitled to this percentage for the years ending September 30, 1965, and September 30, 1966. Defendant contended that plaintiff was not the one entitled to said rental payments and that the rental payments had been made.

Plaintiff through its president notified defendant August 1, 1967, as follows: “This letter will serve to notify you that the Eastgate Plaza Shopping Center has been sold and that the lease agreement covering your store in the Eastgate Plaza Shopping Center has been assigned to the new owners. Effective immediately, please direct all future rental payments to:

Eastgate Plaza, Ltd.

c/o The Portland Investment Co. of America

2800 North Milwaukee Road

Chicago, Illinois 60618

All other communications relating to the said lease agreement, including notices, should be similarly addressed.”

The suit was filed in 1970. After a bench trial judgment was entered for defendant. Shortly thereafter the first trial judge retired from office and a second trial judge granted plaintifFs motion for a new trial. A second bench trial resulted in judgment for defendant, from which judgment plaintiff has taken this appeal.

It was plaintiff’s position that the assignment did not include rentals which had become due at the time the assignment was made but only covered future rentals.

Considerable correspondence was introduced into evidence. Portland Investment Co., rental agent for the new owners, on May 8, 1968, wrote requesting payment of $1,897.41 for rental due for the period from October 1, 1966, through September 1967. Defendant replied that their safes had been blown and most of their records destroyed and since they could not verify the figures they would accept them as correct representing the additional rental due to October 1, 1967. They enclosed a check for $1,897.41- which was cashed.

Thus the evidence shows that the new owner took the position that it was entitled to past due rentals. It further shows a substantial payment to the new owner by the lessee on account of rentals due before the assignment. The letter from the plaintiff announcing the assignment carries an implication that the rental payments follow the assignment. Also suit was not filed until over 2 years after the payment to the new owners and then the new owners were not joined in the suit, nor was the assignment introduced into evidence.

From a review of the entire record, we conclude that plaintiff failed to prove its case.

Judgment of the Circuit Court of Madison County is affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Peter E. Bonn, Defendant-Appellant.
    (No. 72-366;
    Fifth District
    May 14, 1974.
    Robert E. Farrell, of Office of the State Appellate Defender, of Mt. Vernon (Ted Mannen and Evelyn M. Baker, Senior Law Students, of counsel), for appellant.

      Robert H. Rice, State’s Attorney, of Belleville (Clyde L. Kuehn, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from an order of the circuit court of St. Clair County denying defendant’s petition for post-conviction relief.

The defendant, Peter E. Bonn, was indicted for the offense of robbery. After pleading not guilty at his arraignment the public defender was appointed to represent the defendant. Subsequently, the defendant pled guilty and was sentenced to a term of not less than 3 nor more than 15 years in the penitentiary. The defendant filed a pro se petition for post-conviction relief which was denied without a hearing. The Supreme Court of the State of Illinois reversed and remanded for further proceedings. Counsel was appointed, an amended petition was filed and a hearing was held. Relief was again denied and the defendant appeals to this court.

The defendant bases his appeal on three contentions: first, that he was denied the constitutional right to effective assistance of counsel; secondly, that he was denied due process of law because he was not provided a trial transcript: and lastly, that he was dénied due process of law because there is no showing that the court properly admonished defendant before accepting his plea of guilty. Due to the relationship of these contentions the alleged error based upon the failure to supply defendant with a trial transcript will be discussed first.

There can be no question that under the United States Constitution and the laws of the State of Illinois, the defendant, an indigent, was entitled to a free transcript of the proceedings in his case. (Griffin v. Illinois, 351 U.S. 12, 100 LiEd. 891, 76 S.Ct. 585; Ill. Rev. Stat. 1971, ch. 110A, par. 471.) In addition, defendant’s appointed attorney was required, under Supreme Court Rule 651(c) (Ill. Rev. Stat. 1971, ch. 110A, par. 651(c)), to examine “the record of the proceedings at the trial” and the record must show that counsel has made such examination. In the instant case no transcript was made available to defendant and no showing of such -examination appears in the record.

The defendant made his first request for a trial transcript in March, 1969. After three subsequent requests, an order to Supply the requested transcript was entered. A second and final order to supply the requested transcript was entered in November, 1972. There is no indication in the record that the defendant had received a copy of such transcript. In fact, the transcript was not filed until November, 1973, when it was filed with this court.

It is the State’s contention that this issue “is vitiated by compliance with the order to furnish a trial transcript.” We cannot agree. The purpose of a free transcript is to enable a defendant to review the proceedings in order to perfect his appeal or, as in this case, his petition for post-conviction relief.

The fact that the transcript is available to this court after 4 years has elapsed, during which period defendant had prepared and submitted his post-conviction petition, does not satisfy the requirement that a transcript should be furnished defendant for examination and use in preparing his petition.

We realize that any claim of deprivation of constitutional rights not raised in the original or amended petition is waived (Ill. Rev. Stat., ch. 38, par. 122 — 3); however, we find ample facts in the record to preserve the claim in the instant case. As we noted above, the defendant made four separate requests for the transcript and two court orders to supply the transcript were entered and are a part of the record. Furthermore, when a post-conviction petition is prepared by someone with a very meager knowledge of the law, as in the case at bar, a reviewing court may, in its discretion, dispense with the precision and exactitude expected from members of the legal profession. In the defendant’s hand-written pro se petition for post-conviction relief he alleged that, “Copy of Records on Case 68-990 was not complete.” Although the appointed counsel failed to include this claim in the defendant’s amended post-conviction petition, prepared without benefit of a free transcript to defendant, he did, at the post-conviction hearing, make reference to this deficiency on two separate occasions as disclosed by the report of proceedings made in the hearing on the amended post-conviction petition. We do not consider that counsel’s failure to include the constitutional questions in the amended petition, prepared without benefit of the transcript, under the circumstances here present, should be construed as a waiver by defendant.

From the aforementioned record, it is apparent that the defendant has on numerous occasions attempted, and failed, to procure a trial transcript. And, as a result, there is no showing by defendant’s attorney that he “has examined the record of the proceedings at the trial” as required by Supreme Court Rule 651(c). Under these circumstances it would be fundamentally unfair to hold that this defendant waived other substantial, constitutional rights which the trial transcript may reveal. To correct this deficiency we have no other- course than to allow the defendant to review the record and thereafter perfect his petition for post-conviction relief. In view of the foregoing we do not reach defendant’s .other contentions.

Accordingly, the denial of post-conviction relief is reversed and the cause remanded to the circuit court with directions that defendant be immediately provided with a free trial transcript, if this has not been done, and counsel be provided a reasonable time in which to amend defendant’s post-conviction petition and be heard hereon.

Reversed and remanded with directions.

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


author: Mr. PRESIDING JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John A. Cline, Defendant-Appellant.
    (No. 11413;
    Fourth District
    May 14, 1974.
    Theodore A. Gottfried and John F. McNichols, both of State Appellate Defender’s Office, of Springfield, for appellant.
    William J. Scott, Attorney General, of Chicago, and C. Joseph Cavanagh, State’s Attorney, of Springfield (James B. Zagel, Assistant Attorney General, of counsel), for the People.
   Mr. PRESIDING JUSTICE TRAPP

delivered the opinion of the court:

Upon certiorari the United States Supreme Court vacated the judgment of this court affirming defendant’s conviction of burglary (8 Ill.App.3d 917, 290 N.E.2d 622) and remanded the cause for further consideration in the light of Wardius v. Oregon, 412 U.S. 470, 37 L.Ed.2d 82, 93 S.Ct. 2208.

At issue under such order is the constitutionality of Ill. Rev. Stat. 1969, ch. 38, par. 114 — 14, which provides:

“Upon the request of the prosecuting attorney, filed and served upon a defendant not less than 10 days before the trial of such cause, whenever a defendant charged with an offense * * * proposes to offer in his defense, testimony to establish an alibi, such defendant shall, not less than 5 days before the trial of such cause, file and serve upon the prosecuting attorney a notice in writing of his intention to assert such alibi * *

In Wardius, the Supreme Court held an Oregon statute requiring notice of a proposed alibi defense, including the names of witnesses upon whom defendant intended to rely, to be unconstitutional in the absence of “reciprocal discovery rights”. That opinion made explicit language in Williams v. Florida, 399 U.S. 78, 26 L.Ed.2d 446, 90 S.Ct. 1893, concerning “reciprocal discovery”, which had been the subject of interpretation.

In People v. Holiday, 47 Ill.2d 300, 265 N.E.2d 634, our supreme court considered the cited statute in the light of Williams, saying:

“However, as above noted, the alibi-notice statute does not provide for discovery of the State’s alibi rebuttal, witnesses (see Ill. Rev. Stat. 1967, ch. 38, par. 114 — 14), and the provision entitling defendants to discovery of prosecution witnesses’ expressly excludes rebuttal witnesses’ from its purview. (Ill. Rev. Stat. 1967, ch. 38, par. 114 — 9(c).) Provision for discovery of alibi-rebuttal witnesses would act to further implement the concept of a trial as a search for the truth, and we commend the matter as an appropriate subject for consideration by the General Assembly.” (47 Ill.2d at 303-304.)

The court reviewed the extensive pre-trial discovery afforded to defendants in criminal cases and concluded:

“Nevertheless, we do not feel that the discoverability of alibi-rebuttal witnesses is an essential element of due process where the defendant is otherwise accorded substantial discovery of prosecution witnesses. * * * We hold, therefore, that the requirements of the alibi-notice statute, considered in conjunction with the defendant’s discovery rights, are consonant with the fundamental-fairness-due-process concept.” (47 Ill.2d at 304.)

In Wardius, the United States Supreme Court declared:

“It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.” Wardius v. Oregon, 412 U.S. at 476, 37 L.Ed.2d at 88, 93 S.Ct. at 2212.

While the issue of discovery of rebuttal witnesses did not appear in either the trial of this case or the subsequent appeal within the context of the statute at the time of trial as construed in Holiday, there was no provision for discovery of prosecution witnesses who might be called to rebut defendant’s alibi and the statute at issue must be held unconstitutional within the rule of Wardius.

It appearing that an alibi witness tendered by defendant was excluded for failure to comply with the statute, the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.

CRAVEN and SIMKINS, JJ., concur.

       While it has not been construed upon this issue, Supreme Court Rule 412, effective October 1, 1971, provides:
      “(a) Except as is otherwise provided in these rules as to matters not subject to disclosure and protective orders, the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
      (i) the names and last known addresses of persons whom the State intends to call as witnesses, together with their relevant written or recorded statements, memoranda containing substantially verbatim reports of their oral statements, * * *.
      (d) The State shall perform its obligations under this rule as soon as practicable following the filing of a motion by defense counsel.”


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Baugh, Defendant-Appellant.
    (No. 12309;
    Fourth District
    May 14, 1974.

      John F. McNichols and J. Daniel Stewart, both of Office of State Appellate Defender, of Springfield, for appellant.
    Lawrence Eaton, State’s Attorney, of Monticello (Michael Prall, of Circuit Attorney Project, of counsel), for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant was indicted for theft, forgery and deceptive practices. He was found guilty by a jury of theft over $150 and forgery. The trial judge entered a judgment of conviction on both verdicts and after a sentencing hearing, sentenced defendant to an indeterminate term of 2 to 6 years for the crime of theft and forgery. Defendant appeals.

Defendant raises several issues in this appeal. We need consider only one. Defendant contends that the trial court erred in refusing to suppress certain inculpatory statements he made to the attorney for the victim of a theft, prior to receiving the admonishments required by Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, and that as a consequence the conviction should be reversed and the cause remanded for a new trial. We agree.

Defendant was approached by Deputy Dean Mahannah and Officer Dennis Thrasher while at a restaurant in Monticello. Defendant was informed by Deputy Mahannah that he had a warrant for defendant’s arrest. Defendant was then taken to the Piatt County jail. The authorities called Robert Shonkwiler, the attorney for Miss Tatman, the victim of an alleged theft through forgery and deceptive practices. The authorities advised Shonkwiler that the defendant had to be identified. Shonkwiler informed the authorities that he could not identify the defendant but that Miss Tatman could. He suggested that due to the nature of the weather conditions and the advanced age of Miss Tatman, who was 93 years old, that the suspect be taken to her residence so that she could effectuate identification of defendant.

The defendant was then taken to Miss Tatman’s home. There were six individuals present at the Tatman residence: Thrasher, Mahannah, the defendant, two men that were with the defendant when he was apprehended, and Shonkwiler. Shonkwiler stated to Miss Tatman that the sheriff needed someone to identify “William Baugh if he was in the group.” Miss Tatman immediately identified the defendant. Shonkwiler then proceeded to show defendant a canceled check for $830 drawn on the State Bank of Cerro Gordo. He asked defendant if this was the check that Miss Tatman had given him, and the defendant answered in the affirmative. Defendant also admitted that he made the endorsement on the back of the check and that he had cashed it at the State Bank of Cerro Gordo. Shonkwiler then inquired if defendant could make restitution for the money that he had allegedly defrauded Miss Tatman of and Baugh stated that he could possibly do so. Defendant was indicted for theft over $150, forgery and theft through deceptive practices.

Defendant filed a motion to suppress confession. The thrust of the motion was that defendant was not informed of his right as enumerated in Miranda prior to the custodial interrogation of defendant by Attorney Shonkwiler. A hearing was held on the motion and at the conclusion of said hearing the trial court ruled that the motion to suppress should be denied.

At trial, defendant renewed his objection concerning the inculpatory statement in question and the testimony relating thereto. The trial court again overruled defendant’s objection. Defendant was found guilty of forgery and theft. The trial judge erroneously entered judgment on both verdicts and sentenced defendant to an indeterminate term of 2 to 6 years.

The gravamen of this issue is whether the statements in question were the product of “custodial interrogation”. We find that they were.

In Miranda, custodial interrogation is defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (384 U.S. 436, 444.) First of all, it is clear that defendant was in custody within the meaning of Miranda. Secondly, we are of the opinion that Shonkwiler’s questions amounted to an interrogation initiated by law enforcement officers because he acted as a police instrumentality. We are aware of the general rule that in absence of compulsion or duress statements made by defendant to a private citizen are admissible in evidence without the necessity of first giving the Miranda warning to a defendant. The State contends that Shonkwiler was not a law-enforcement agent but rather a private citizen who happened to be the attorney representing the complaining witness. In People v. Hawkins, 53 Ill.2d 181, 290 N.E.2d 231, the court noted that statements which were elicited through the auspices of a private party who in effect was a police instru-: mentality must be suppressed if the Miranda warning was not administered.

Shonkwiler functioned as a conduit for information elicited from defendant and used by the authorities in the prosecution of defendant. From the outset, Shonkwiler’s interests were so integrated and closely-aligned with the authorities that his role in this case was adversary in nature and his conduct and questions directed at defendant were accusa-: tory in character. While there may not have been an official affiliation existing between Shonkwiler and the authorities, nevertheless, through their joint actions, an affiliation in fact arose. This is borne out by the record which reveals that Shonkwiler was present at the sheriff’s office immediately after defendant’s arrest prior to the time he was taken to the scene of the alleged crime; and he was present at the Victim’s residence where he conducted a lineup; and that it was Shonkwiler who interrogated the defendant in the presence of the complaining witness and the authorities, confronting him with incriminating evidence in an attempt to elicit damaging admissions from him.

We find that the trial court’s ruling on the motion to suppress was contrary to the manifest weight of evidence and should be reversed. (People v. Hawkins.) For the reasons herein stated, defendant’s judgment of conviction is reversed and this cause is remanded for further proceedings not inconsistent with the views herein expressed.

Judgment reversed and remanded with directions.

TRAPP, P. J., and SIMKINS, J., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Otto R. Seibert, Defendant-Appellant.
    (No. 12172;
    Fourth District
    May 14, 1974.

      Swain, Johnson & Guard, of Peoria (James H. Bunce, of counsel), for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (John A. Beyer, of Circuit Attorney Project, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

. Defendant was convicted upon a bench trial of failure to yield the right-of-way. A fine of $15 plus court costs was imposed.

On appeal, it is urged that the trial court erroneously applied the law to the facts of this case, and that defendant was not proved guilty beyond a reasonable doubt.

Defendant was served with a traffic ticket shortly after he was involved in a collision near the intersection of the Colfax-Lexington Road and the Leroy-Lexington Road in McLean County at approximately 7 P.M. on September 2, 1972. The Colfax-Lexington blacktop is an east-west thoroughfare with a speed limit of 65 miles per hour. The Leroy-Lexington blacktop runs north and south, approaching the Colfax-Lexington Road from the south, terminating where it meets the Colfax-Lexington Road by forming a blind end or “T”. At this intersection, there is a stop sign facing south for traffic on the Leroy-Lexington Road, but no such sign for the Colfax-Lexington Road which has a preferential right-of-way. Defendant was traveling north on the Leroy-Lexington Road until he stopped for the stop sign at the intersection and turned west (left) onto the Colfax-Lexington Road where his truck was soon struck in the rear by a westbound automobile driven by one Thomas N. Leake.

The evidence conflicts in the details. There is credible testimony indieating that Leake was traveling anywhere from 55 to 90 miles per hour. The investigating officer, based upon an estimate from Leake’s skid-marks and a uniform chart printed by the Northwestern Traffic Institute, stated that in his opinion Leake was not speeding. Defendant’s expert witness estimated from the skidmarks and the same chart that Leake was traveling at least 70 miles per hour. Estimates of the distance west from the intersection to tire point of impact range from 75 to 150 feet, to approximately 100 feet, to 109 feet. Skidmarks from Leake’s vehicle were testified to be from 182 feet to 326 feet. Defendant testified that he first saw Leake’s vehicle approaching the intersection at a distance of approximately 650 to 700 feet, and that after stopping, he did not hesitate before pulling onto the thoroughfare. However, Leake testified that defendant’s car “came up to the stop sign, stopped, and then moved ahead and then it stopped again like it saw me and then pulled out in front of me.”

Defendant’s conviction rests upon the violation of the Motor Vehicle Code which provides in relevant part:

“* * * After having stopped, the driver shall yield the right-of-way to any vehicle * * * which is approaching so closely on the roadway as to constitute an immediate hazard during the time when the driver is moving across or within the intersection, but said driver having so yielded may proceed at such time as a safe interval occurs.” (Ill. Rev. Stat. 1973, ch. 95½, par. 11 — 904 (b).)

Defendant first contends that the following ruling is erroneous:

“[T]he Court feels that the fact that the approaching vehicle may have possibly been speeding does not reheve the vehicle which is stopped at a stop sign, approaching an intersection, from the duty imposed by the statute, which the Court understands to be that he makes his decision at his peril as to the appropriate time to leave the stop sign and enter the flow of traffic. He has the burden of deciding when a safe interval exists.”

We do not agree that the ruling was an improper statement of the law. Counsel misstates both the ruling and the trial court’s application of that ruling by arguing in his brief that “the Court is in effect saying that it makes no difference what the speed of the other driver was and that the Defendant proceeds at his peril and if he gets hit he has violated the statute”. Borrowing, as we must, some principals from civil cases, we conclude that the trial court did not, contrary to defendants’ assertions, erroneously state the law. In Pennington v. McLean, 16 Ill.2d 577, 158 N.E.2d 624, the supreme court in a wrongful death case discussed the statute in question:

“That provision has been construed as neither imposing an absolute liability upon the party approaching from the nonpreferential highway, nor conferring an absolute right of way regardless of all circumstances on the party traveling on the preferential highway. [Citations.] Thus, a person approaching a preferred highway is not required to stop, either at the stop sign or at the intersection line, long enough to permit any car that he observes on the highway to pass, regardless of its distance from the intersection. [Citations.] The statute requires only that the motorist confronted by a stop sign may, exercising reasonable care, proceed across the intersection after he has stopped and yielded the right of way to such vehicles on the through highway as constitute an ‘immediate hazard/ [Citations.]
The Illinois decisions, however, do not provide a precise formula for determining whether a particular vehicle has conformed to set standards; that question must be determined by the jury [Citations.], and involves considerations as to relative speeds and distances of the vehicles from the intersection. [Citations.]”

In McCormack v. Haan, 20 Ill.2d 75, 169 N.E.2d 239, the supreme court discussed the application of this statute to a defendant in an action for personal injuries. With regard to the defendant-driver;

“It was his duty to ascertain whether or not it was safe to enter the protected intersection, and if it was not reasonably safe to do so, he should have yielded the right of way to the oncoming vehicle.”

It is not difficult to understand why the principles in Pennington and McCormack must apply in both criminal and civil cases, and why each case must be decided upon its particular facts. Not to do so could lead to absurd results. It would be manifestly unfair, for example, if the driver of the vehicle that had entered an intersection a mere 10 feet in front of an oncoming vehicle, could escape civil liability and criminal penalties merely by proving that the oncoming vehicle was exceeding the speed limit by 1 mile per hour. Likewise, equal injustice would arise if, because the speed of the oncoming vehicle was not a factor to be considered, the driver of a vehicle turning onto a preferential right-of-way would be held criminally and civilly liable when prior to entering the intersection, the road appeared clear, but because the oncoming vehicle, perhaps hidden by a dip in the highway, was traveling at speeds approaching 100 miles per hour on a wet road, a collision resulted.

We hold that the trial court did not incorrectly rule that the fact that the approaching vehicle may have possibly been speeding does not relieve the vehicle stopped at a stop sign from the duty imposed by the statute. We add here also that the trial court did not, contrary to defendant’s argument, rule that it makes no difference what the speed of the approaching vehicle was. The court expressly indicated that “the Court feels that the speed of the approaching vehicle is pertinent in a civil suit and not irrelevant in this case”. In addition, it is clear that the trial court considered other factors in reaching its decision as to defendant’s guilt.

Defendant asserts that he was not proven guilty beyond a reasonable doubt. Although the testimony is conflicting, there is sufficient credible testimony to conclude that Leake was not speeding; and that defendant hesitated before entering the intersection,, which hesitation would indicate that Leake’s distance from the intersection was less than the 650 feet estimated by defendant.

In a bench trial, it is the function of the trial court to determine the credibility of the witnesses and the weight to be accorded their testimony, and where the evidence is merely conflicting, a reviewing court will not substitute its judgment for that of the trier of fact. People v. Scott, 34 Ill.2d 41, 213 N.E.2d 521.

The judgment is affirmed.

Affirmed.

SMITH, P. J., and CRAVEN, J., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Young, Defendant-Appellant.
    (No. 11855;
    Fourth District
    May 14, 1974.

      Kenneth L. Gillis, of State Appellate Defender’s Office of Chicago, for appellant.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (Wayne Golomb, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

Defendant was indicted for forgery and a violation of the Illinois Business Corporation Act — section 439.41 (Ill. Rev. Stat. 1971, ch. 32, par. 119), pledging fraudulent stock. Following conviction on both charges, probation was denied, and he was sentenced to 1 to 5 years, though, the court failed to specify on which conviction the sentence rested. On appeal, he asserts that the indictment is void, failure of proof as to specific intent, that tire instrument involved was in fact forged, prejudicial argument, and severity of the sentence.

The forgery count read that defendant “with intent to defraud, knowingly delivered * * * a forged document apparently capable of defrauding another, to-wit: a stock certificate”, copy attached, defendant “knowing said stock certificate to have been thus made.” Invalidity is premised on the failure of this count to specify how the certificate was a ‘forged document apparently capable of defrauding another”. Defendant argues that the indictment should point out, in the words of the statute, whether “it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority; * * *.” Ill. Rev. Stat. 1971, ch. 38, par. 17 — 3 (a)(1).

True, the subject matter of forgery must be a document altered or made and capable apparently of defrauding another “in such a manner that it purports to have been made by another or at another time, or with different provisions, or by authority of one who did not give such authority.” The bill of particulars identified the certificate as a forgery in that it “purports to have been made by authority of ‘the said Corporation, which did not give such authority.” In other words, defendant argues that the indictment failed to answer the question as to what type of forged document was involved — and thus, left him in the dark and “prevented adequate preparation of his defense because he was not sufficiently notified of the charge against him.”

We view the alternatives descriptive of forgery as nondefinitional insofar as the definition of forgery is concerned. Such alternatives are by way of example — exemplative. Forgery, as we know, is a false making or alteration of an instrument which is apparently capable of defrauding another and made or altered with an intent to defraud, or, the issuance or delivery of a forged document “knowing it to have been thus made or altered” — being subsection (2) of the forgery statute. The general rule is that an indictment which charges an offense in the language of the statute is deemed sufficient if such language particularizes the offense so that the accused is apprised of what the charge it. Defendant cites People v. Leach, 3 Ill.App.3d 389, 279 N.E.2d 450 — where the charge was “mob action”. But that case is clearly distinguishable from this, for the charge there failed to take any account of the mental state required for there to be a crime. In Leach it is pointed out correctly that where a statute does not describe the acts which constitute the crime or by its generality it may embrace conduct which the statute does not cover, greater specificity is required. But the forgery statute does define — particularize — the elements of forgery — thus a charge which uses the same language is valid. Here, the charge was that defendant delivered a forged document with intent to defraud — whether it was made by another or with different provisions, or by the one who did not give such authority, are simply aspects of what might compromise a forged document. These aspects need not be set out in the charge. This being so, the count for forgery was sufficient.

The second count was based on the Illinois Business Corporation Act which makes it a crime to “knowingly and designedly pledge * * * any false, fraudulent or simulated certificate * * * of any share or shares * * * ”. The charge here was that defendant “knowingly and designedly, and with intent to defraud another person, * * * pledged a false, fraudulent and simulated certificate of ownership of shares in capital stock of a corporation * * *", a copy being attached. Defendant objected to the conjunctive “and” in the indictment since the statute uses the disjunctive “or”, and again, argues that the indictment fails to describe in what manner this certificate was false, fraudulent and/or simulated.

Taking the latter argument first, the reasons for holding the forgery count valid are likewise applicable here. Again, Leach is cited for the argument that since the statute does not “particularize”, an indictment in the language of the statute would therefore be void. But, to us the words “false, fraudulent [and/or] simulated” are particularization enough — so that this charge, being in the language of the statute, is sufficient. Because “simulated” was made conjunctive with “fraudulent”, instead of reading “false, fraudulent or simulated” is not an argument addressed to any infirmity we know of in framing a charge. Indeed, the older cases looked askance at the use of the disjunctive “or”, characterizing such usage duplicitous — meaning, if we read them aright, that there should be two counts instead of one. At this juncture we are reminded of Mr. Justice Holmes’ observations in Paraíso v. United States, 207 U.S. 368, 52 L.Ed. 249, 28 S.Ct. 127:

“The bill of rights * * * giving the accused the right to demand the nature and cause of the accusation against him, does not fasten forever upon those islands the inability of the 17th century common law to understand or accept a pleading that did not exclude every misinterpretation capable of occurring to intelligence fired with a desire to pervert.”

Defendant argues that there is no proof of a specific intent to defraud the person to whom the certificate was pledged. The certificate, as it turns out, was worthless — being a duplicate of another certificate of the corporation bearing the same number. The imposture was discovered when the certificates were being exchanged for the stock of another corporation. This simple fact, standing alone, raises an inference of an intent to defraud. We agree with defendant, that specific intent cannot “be presumed” — but it can certainly be inferred or to put it another way .• — an act can imply a specific intent. It would be an oddity in most cases for there to be direct evidence as proof of intent. Rather, triers of the fact of necessity must look to the surrounding circumstances and if the inferences are reasonable, as to its existence, triers of the fact can so find, and reviewing courts will not question the drawing of such inference. Defendant argued at length that the State’s case was not credible, but, as always, we must reply that such was not for us but for the jury. It is no argument for reversal to assert that if defendant’s remembrance of things past was correct then he should have been acquitted, because these same triers of the fact can view his testimony as incredible and the State’s as credible. Of course they need not do so, but that is what juries are for. The argument that this was a mere “over-issuance” and not a deliberate forgery — purporting to have been made on the authority of one who did not give such authority — while supported by the evidence — defendant’s testimony — contrariwise it is not supported by the evidence of the State. Coupled with this supposititious certificate were others, used by defendant at other times and places. These occurrences are circumstances indeed from which a jury could infer specific intent. In this context, it would not be amiss to note an admission of defendant himself in regard to this certificate. One of the officers for the bank who was acting as transfer agent accosted defendant with regard to whether he had means of redeeming this certificate, and defendant replied that he had done “this” because “he needed the money”. The fact that defendant denies such conversation, again, is for a jury to believe or not to believe.

Defendant asserts that the certificate in question was not a forged document, saying, “Falsely making a document is different from making a false document.” In other words, if the instrument is genuine, issued without authority, there is no forgery. This argument might have some force if People v. Kramer, 352 Ill. 304, 185 N.E. 590, still held as a precedent. But it does not. Kramer was reexamined in People v. Kubanek, 370 Ill. 646, 19 N.E.2d 573, and quietly put to rest in People v. Mau, 377 Ill. 199, 36 N.E.2d 235:

“We reexamined the case of People v. Kramer, 352 Ill. 304, 185 N.E. 590, and overruled that decision because Kramer was acting in a ministerial capacity as agent of Marion county, Illinois, of which he was the county clerk, and exceeded his authority by drawing a county order payable to himself for a debt that did not exist. The Kramer decision contained no discussion of the fact that Kramer exceeded his authority with intent to defraud his county.” (377 Ill. at 205-206.)

Accordingly, the fact that defendant was president of the corporation authorized to sign the certificate in question, and assuming the signature of the secretary to be genuine — defendant possessed blank certificates signed by the secretary — does not negate a basis for a conviction for forgery or pledging a false, fraudulent and simulated certificate if such was done without authority being given — here, by the corporation. Books and records of the corporation were in evidence, and it was apparent that the certificate which was the subject matter of the indictment was issued without authority of the corporation.

Next, defendant says that the argument was prejudicial. It is hardly that, even if we assume that it was not supported by the evidence— which, in our opinion, is not the case. The stock certificate is dated 1958. In argument, it was suggested that when defendant needed money, “happened to be in a pinch * * * he had these blank certificates”— and used them for collateral, and:

“Well, I suggest to you what happened ladies and gentlemen, he didn’t have the books and records after 1959, but he had these blank certificates and the reason that this came out on the seventh of December was that he didn’t remember the facts exactly when the various things happened. He knew it was about this time so well he put that date in.”

It is true, as defendant suggests, that the only evidence with regard to issuance — direct evidence, that is — was the date on the certificate itself, 1958, and defendant’s testimony that it was issued in December of that year to another individual for promotional recompense. However, since he owed defendant some money, to “eliminate a step” defendant had it issued to himself. But in this context, we must keep in mind, that the stock was pledged as collateral for a loan in 1967. Accordingly, there is an inference in this act that the date was then inscribed and maybe defendant’s signature, too. Obviously, in whatever year he did it, the year 1958 had to be used to lend versimilitude to the certificate, if for no other reason, than that the authorized stock of 250,000 shares had been reported as issued to the Secretary of State prior to December 31, 1958. Accordingly, the argument was based on reasonable inferences to be drawn from all the circumstances, but even if not, the argument can hardly be characterized as prejudicial. Defendant’s counsel must have thought so, too, because no objection was made.

The argument that the State did not prove that the stock certificate was issued without authority of the corporation simply doesn’t stand up and this for the reason as previously suggested with regard to intent. The appropriate officer of the bank handling the transfer stated that an examination of the books and records did not reflect the issuance of this certificate. This fact standing alone — unrebutted, except by testimony of defendant — raises an inference of non-authority. Because defendant views lack of knowledge on the part of the officer that the books so examined constituted all the books and records goes to the weight of his testimony, and that, as we have pointed out before, was something for the jury to weigh and it is not for us to gainsay them.

The charges in this case grew out of one transaction. Both charges were submitted to the jury and he was found guilty of both. However, the judgment order under which the defendant was sentenced, as we have seen, failed to specify the offense or offenses for which he was sentenced. Only one sentence could have been imposed for the two offenses. The trial court should have specified the offense for which the sentence was imposed. People v. Brown, 52 Ill.2d 94, 285 N.E.2d 1.

Finally, defendant says that his motion for probation should have been .granted and that the sentence he received was improper under the circumstances. Forgery carries 1 to 14 years and 1 to 10. Thus the sentence can hardly be characterized as excessive. Nor can we review the order denying probation unless we can say from all the circumstances that its denial resulted either from a failure of the trial court to exercise discretion ' or siich was exercised in an arbitrary manner. (People v. Saiken, 49 Ill.2d 504, 73 N.E.2d 381.) But here, the application for probation was investigated, the defendant presented witnesses on his behalf, and we cannot say that it acted arbitrarily. The defendant was an attorney, well versed in business matters and tire flagrant use of a forged document to collateralize a loan is an act of criminal conduct not to be lightly viewed.

Accordingly, we affirm the judgment of the trial court finding the defendant guilty of the offense of forgery, and modify the judgment of the trial court to specify that the sentence is for the crime of forgery only, and the circuit clerk is directed to enter such modification.

Judgment modified and affirmed, and remanded with directions.

TRAPP and SIMKINS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff, v. Robert Stufflebeam, Defendant—(Aaron Patrick, Contemnor-Appellant.)
    (No. 11814;
    Fourth District
    May 14, 1974.

      Harold M. Jennings, of Markowitz, Lawrence, Lenz, Jennings, & Naylor, of Rloomington, for appellant.
    Paul R. Welch, State’s Attorney, of Rloomington (Steven M. Helm, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Appellant appeals a finding that he was in contempt of court and a sentence imposed under the following order:

“ORDER OF COMMITMENT
After finding that witness Aaron PATRICK had previously waived the 5th Amendment and ordering him to testify,
It is found that respondent Aaron PATRICK is guilty of wilful contempt for continuing to refuse to testify.
It is ordered that the clerk issue a mittimus directing the sheriff to take and keep custody of Aaron PATRICK or until 10 September 1972 or until released by process of law.”

There is no record of the proceedings and the facts are ascertained from a certain stipulation of the State’s Attorney and counsel for the defendant, which includes the following:

In September of 1971, appellant was served a subpoena to testify as a defense witness in a cause in litigation before the Circuit Court of McLean County, said cause being entitled People v. Stiles. He appeared without counsel and was questioned by defense counsel and by Paul R. Welch, State’s Attorney of McLean County, as a witness in that trial. Defense counsel, in the matter of People v. Stiles, sought to elicit from appellant, as a witness in such case, that the witness had participated in the burglary with the defendant Stiles, and that at the time of the burglary he had been a police informer or police agent. Appellant denied participation in the burglary and denied being a police informer. Subsequent to such testimony, the trial judge suggested to the prosecutor and to defendant Stiles’ attorney that the court believed that appellant may have committed perjury in his testimony. No such charges were brought or prosecuted as to appellant. However, he was subsequently advised that the trial court had indicated that perjury may have been committed by appellant. . .

On March 10, 1972, the appellant was subpoenaed to testify for the defense in the trial of Robert Stufflebeam, in the Circuit Court of McLean County with the present judge presiding. The trial of Stufflebeam concerned tire samé factual occurrence as the 1971 burglary case herein-before referred to as People v. Stiles. Appellant was still without counsel, and was again asked questions with reference to the burglary and his involvement therein. He refused to answer said questions on the ground that he might incriminate- himself. The trial judge found that his denials of participation made in the prior trial had constituted a waiver - of privilege against self-incrimination. When defendant still declined to answer, the trial judge then ordered the appellant immediately incarcerated for contempt of court and entered instanter thé order quoted;

After the entry of the order defendant procured counsel who moved that bond be fixed and that defendant be permitted to purge himself of contempt. The court refused to hear arguments or proceed on the motion for purgation, although no objection was made. Bond pending appeal was denied in the trial court, but fixed in this court.

The trial court erred in concluding that testimony by appellant in the trial of Stiles constituted a waiver of his privilege against self-incrimination in the present proceeding. In People v. Walker, 28 Ill.2d 585, 192 N.E.2d 819, it was asserted that defendant had waived his privilege against self-incrimination by voluntarily testifying both upon his application for probation and before a grand jury. The court stated that the doctrine of waiver is limited to the particular proceeding in which the voluntary testimony is given and testimony at a first trial is not a waiver of self-incrimination claimed at a subsequent trial. In In re Neff, 206 F.2d 149, 36 A.L.R.2d 1398, the court said:

“It is settled by the overwhelming weight of authority that á person who has waived his privilege of silence in one trial or proceeding is not estopped to assert it as to the same matter in a subsequent trial or proceeding. The privilege attaches to the witness in. each particular case in which he may be called on to testify, and whether or not he may claim it is to be determined without reference to what he said when testifying as a witn'ess on some other trial, or on a former trial of the same case, and without reference to his declarations at some other time or place.”

This rule was followed in Ottomano v. United States, 468 F.2d 269. ■

It appears that the trial court assumed that the proceedings might be treated as a direct criminal contempt. As such'a proceeding, there is no adequate order nor is there any record supporting the finding.

It was held in People v. Loughran, 2 Ill.2d 258, 118 N.E.2d 310:

“In a direct criminal contempt proceeding, that is, for contempts committed in the presence of the judge, in court, which he observes and has personal knowledge of, no formal charge is filed and no plea, issue or trial is required. [Citation.] The contempt having been committed in the presence of the court, evidence is unnecessary and no record is made. [Citation.] However, the accused has a right of appeal, and it is, therefore, necessary for the court to enter a written order setting forth fully and clearly the facts out of which the contempt arose so that the reviewing court may determine if the committing court had jurisdiction to enter the order. [Citation.] All the essential facts must be fully set forth and no part thereof can be supplied by presumptions or inferences [Citation.] and no facts which did not occur in the presence of the court should be taken into consideration by the court in adjudging guilt or in fixing the punishment. [Citation.]”

A similar statement is made in People v. Miller, 51 Ill.2d 76, 281 N.E.2d 292. Within such rule, the purported finding in the “order of commitment” is a bare conclusion. The stipulation of facts filed in lieu of the record makes clear that the trial court did not sit at the trial where appellant purportedly waived his privilege so that the trial judge did not, in fact, have personal knowledge of all acts necessary to properly make a finding of contempt. The rule of People v. Tommhevsky, 48 IU.2d 559, 273 N.E.2d 398, is that if there is conduct outside of the personal knowledge of the judge:

“[T]hen all elements of procedural due process must be observed, including notice, written charges, and an opportunity to deny and defend such charges before guilt is adjudged and sentence imposed.” 48 Ill.2d at 565.

As stated in Tomashevsky, if the purported adjudication is for direct contempt it is not supported by either an order of contempt or an adequate record, and if for indirect contempt the appellant has not been accorded the requirement of procedural due process. For all of such reasons, the purported conviction of the appellant is found to be void and without force and the appellant is discharged.

Order set aside and appellant discharged.

SMITH, P. J., and CRAVEN, J., concur.