text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Salvador Ortiz, Defendant-Appellant.
    (Nos. 56006, 58785 cons.;
    First District (3rd Division)
    August 15, 1974.

      Jackson H. Welch and Francis E. Andrew, both of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Lee T. Hettinger, Mary Ellen Dienes, and John Joseph O’Malley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendant was charged with robbery. After a bench trial, he was found guilty of that charge and sentenced to a term of 2 to 10 years. During the pendency of his appeal to this court, he filed a post-conviction petition in the trial court, which was dismissed without an evidentiary hearing. Defendant has also appealed that order of dismissal, and we have granted his motion to consolidate the two appeals.

Defendant’s brief makes no distinction between the direct appeal from his conviction and the appeal from the order dismissing his post-conviction petition. As we stated in People v. McCarroll (1973), 10 Ill.App.3d 249, 294 N.E.2d 52, issues properly relating to one cannot be argued interchangeably with issues germane to the other. Thus we will consider the appeals separately.

On direct appeal, defendant argues that the evidence was insufficient to prove him guilty beyond a reasonable doubt; that he was denied his constitutional right to effective assistance of counsel; that the trial court erred in permitting a State’s witness to testify in rebuttal; and that the trial court improperly considered irrelevant matters in determining defendant’s sentence.

Mrs. Ruth Long testified that at approximately 7 A.M. on April 5, 1970, she was walking alone on her way to work. It was a bright morning and visibility was very good. As she approached 530 Arlington Place in the city of Chicago, she noticed a man walk out of a gangway about 10 to 15 feet ahead of her. She continued to walk as the man came to the sidewalk, turned, and began walking in her direction. As they were about to pass each other, the man grabbed her and clamped a hand over her mouth. They struggled face to face as the assailant attempted to take her purse. After Mrs. Long had managed to scream, her attacker knocked her to the ground. Her attempts to regain her feet were met by repeated kicks to her head and body. After some 60 to 90 seconds had elapsed, the attacker succeeded in snatching her purse and running away. The victim crawled to her nearby home and instructed her husband to call the police.

A couple of days after the robbery, Mrs. Long scanned several books of photographs at the police station, but did not see her assailant. On April 10 she returned to the station to look at more photos, at which time she selected defendant’s photograph. Although she testified at trial that she was positive in her selection at that time, she stated that she asked the police at the second viewing to supply her with a more recent photograph of the same man. Sometime later the police gave her 15 pictures of both bearded and nonbearded men to view. Although he was clean shaven at the time of the robbery, she selected defendant’s photograph from the group of bearded subjects.

On April 28 Mrs. Long viewed a five-man lineup at the police station, and again picked out defendant. She also identified defendant at trial. She testified that on the day of the attack defendant wore a brown jacket and blue or brown trousers, was hatless, did not wear eyeglasses, and bore a scar near one of his eyebrows.

The investigating police officer testified that Mrs. Long had viewed approximately 500 mugshots before she selected defendant’s photograph. Nothing was done to influence the victim’s several pretrial identifications of defendant.

Defendant, testifying in his own behalf, denied robbing Mrs. Long. He stated that he had been asleep at his parents’ home from 1 or 2 A.M. to 10 or 11 A.M. on the day of the crime. His alibi was corroborated by his father, brother, cousin, and girl friend. Defendant denied ever having given a different version of his whereabouts at the time of the robbery.

In rebuttal, the investigating police officer testified that he asked defendant at the time of arrest where he had been on the night preceding the robbery. Over defendant’s objection, the officer testified that defendant had said that he had attended a party at a friend’s home until 4:30 or 5 A.M., and from there had gone to his girl friend’s apartment. The girl friend’s apartment was located two blocks from the scene of the robbery.

Defendant’s initial contention on direct appeal is that he was not proved guilty beyond a reasonable doubt. This argument is grounded in his assertion that his identification by the victim was weak, tainted, and insufficient to surmount defendant’s corroborated alibi.

The identification testimony of a single witness is sufficient to sustain a verdict of guilty if the witness is positive, credible, and had an opportunity to observe the accused. (People v. Bennett (1973), 9 Ill.App.3d 1021, 293 N.E.2d 687.) Mrs. Long was positive in her identification of defendant as the robber, and her opportunity to observe her assailant was excellent. The day was bright, and the visibility was very good. Her view was unobstructed as the man walked out of the gangway and tiren towards her. Once the man grabbed her, she was looking at his face from a very short distance away. Indeed, at one point, the robber lay directly on top of Mrs. Long, who “was looking at him all the time.”

While her description of defendant was not detailed, it was adequate. The proper test to be applied is not whether the witness gave a full description of the features and attire of the defendant at the time of the crime but whether the witness was close enough to defendant for a sufficient length of time under adequate lighting conditions to be. able to make a positive identification. (People v. Catlett (1971), 48 Ill.2d 56, 268 N.E.2d 378.) Moreover, the trier of fact is under no obligation to accept an accused’s corroborated alibi over the positive identification of the complaining witness, where the latter had ample opportunity to observe the defendant. People v. Catlett.

Under his reasonable doubt argument, defendant also contends that the pre-trial photographic identification of him made by the victim was so vague and weak as to establish a grave doubt as to its correctness. We do not agree. Mrs. Long selected defendant’s photograph out of a group of several hundred only a few days after the robbery. Although she did request to see a later photograph of the same man, she testified that she had been positive in her initial photographic selection. She subsequently selected defendant’s bearded photograph out of a group of 15 bearded and non-bearded pictures. The photographic identification was not weak or vague, and the procedures employed were proper.

Still arguing that he was not proved guilty beyond a reasonable doubt, defendant next contends that the procedures used at the lineup were improper. He maintains that they were so suggestive as to create a reasonable doubt of his guilt and a deprivation of his right to a fair trial.

A photographic exhibit attached to the record discloses that the lineup consisted of five men, including defendant. The other four men, all police officers, wore white shirts, ties, and sport coats. Their hair was neatly groomed. Two of the officers were over 40 years of age, while the other two were in their early twenties. Defendant, 25 years of age, wore a colored shirt open at the collar, no tie, and a dark sport coat. The photo also revealed that defendant’s hair was mussed.

We do not countenance a lineup confrontation which unnecessarily singles out the prime suspect from the other participants. (See United States v, Wade (1967), 388 U.S. 218.) However, we need not determine whether the lineup used in the present case was unnecessarily suggestive because of the clear, convincing, and indisputable facts in the record demonstrating an independent basis for Mrs. Long’s in-court identification. (See People v. Triplett (1970), 46 Ill.2d 109, 263 N.E.2d 24, cert. denied (1971), 401 U.S. 955.) The instant identification met the ultimate constitutional requirements for admissibility.

As trier of fact, the trial judge was in the best position to resolve the conflict in testimony. The evidence was not unreasonable, improbable, or unsatisfactory. In our opinion, defendant was proved guilty of robbery beyond a reasonable doubt.

Defendant’s second contention is that he was denied effective assistance of counsel at trial. To support this argument, defendant points to the waiver by his retained counsel of his motion to suppress pre-trial identifications and to his counsel’s failure to object, on the basis of Miranda, to the testimony of the State’s rebuttal witness,

To test a claim of ineffective assistance of counsel in Illinois, where the trial attorney was of defendant’s own choosing, defendant must prove that the caliber of representation was so low as to reduce the trial to a farce or a sham (People v. Washington (1968), 41 Ill.2d 16, 241 N.E.2d 425), or as to constitute no representation at all (People v. DeSimone (1956), 9 Ill.2d 522, 138 N.E.2d 556), or as to deprive the defendant of the chance of being found not guilty of the charge. (People v. McCoy (1967), 80 Ill.App.2d 257, 225 N.E.2d 123.) It is not enough to sustain the charge by demonstrating that the representation was merely poor (People v. Hicks (1935), 362 Ill. 238, 199 N.E. 368) or by showing that counsel’s trial tactics were unsuccessful. People v. Gill (1973), 54 Ill.2d 357, 297 N.E.2d 135.

Defendant initially contests the constitutionality of the Illinois tests, arguing that they should be discarded in favor of the adoption of a higher standard requiring “reasonably effective representation.” See West v. State of Louisiana (5th Cir. 1973), 478 F.2d 1026; State v. Harper (1973), 57 Wis.2d 543, 205 N.W.2d 1.

We do not think this proposed standard would any better set forth the prerequisites demanded by the constitutional mandate to supply defendant with effective assistance of counsel. No test can be formulated which will, in advance of close scrutiny of the trial record (People v. Underhill (1967), 38 Ill.2d 245, 230 N.E.2d 837, cert. denied (1968), 391 U.S. 912), furnish a definitive checklist of what is needed to sustain a defendant’s assertion of constitutional deprivation of effective assistance of counsel. The present tests are the product of competing public policies: one, that every defendant should have available the means of securing every legal defense possible; the other, the practical recognition that no attorney is perfect, no trial tactic failsafe, few courtroom trials error-proof. A second reason for allowing some flexibility in the tests is to protect against mere pretended incompetence on the part of the attorney. (People v. Fleming (1971), 50 Ill.2d 141, 277 N.E.2d 872.) In our opinion, the constitutional provision requires reversal of a conviction where it is shown that the legal representation caused such substantial prejudice to the defendant as to deny him fundamental fairness, whether defendant’s legal representative is appointed or privately retained. Since the tests in Illinois are adequate expressions of this rationale, they survive constitutional scrutiny.

We will now consider the arguments advanced by defendant in support of his claim of inadequate representation by his retained counsel. He first maintains that trial counsel’s waiver of his motion to suppress pretrial identifications deprived him of the opportunity of showing possible unduly suggestive influences in the pre-trial identification processes.

We find no merit in defendants speculative argument. On the basis of the facts adduced at trial regarding the procedures used at the photographic and lineup sessions, there is nothing to suggest that the motion would have been granted. At best, only the lineup might be considered to have been tainted. However, Mrs. Long’s testimony showed clearly and indisputably an independent basis for the in-court identification. Furthermore, counsel may well have reasoned that evidence of the pretrial-identification procedures could have aided his case at trial by convincing the trier of fact that Mrs. Long’s identification was uncertain. A waiver under such circumstances would constitute a legitimate trial tactic.

Defendant's next contention under his incompetency-of-counsel argument deals with defense counsel’s failure to make a Miranda objection to the rebuttal testimony of the arresting police officer. The officer testified to a statement given by the defendant at the time of his arrest which was in direct conflict with defendant’s trial testimony. However, in Harris v. New York (1971), 401 U.S. 222, the Supreme Court held that the admission into evidence at trial of a statement given by the accused in violation of the Miranda standards would not amount to a violation of his federal constitutional right against self-incrimination when the statement is offered for the limited purpose of defendant’s impeachment. Also see People v. Moore (1973), 54 Ill.2d 33, 294 N.E.2d 297, cert. denied (1973), 412 U.S. 943; People v. LaBatt (1969), 108 Ill.App.2d 18, 246 N.E.2d 845, cert. denied (1971), 401 U.S. 963.

We do not believe that trial counsel’s representation was so low as to reduce the trial to a farce or a sham. Moreover, in our opinion, trial counsel’s conduct during trial met the standard of “reasonable effective representation.”

We find no merit in defendant’s next contention that the trial court committed reversible error in faffing to commence sua sponte a hearing on the voluntary nature of defendant’s statements made at the time of his arrest. In making this argument, defendent makes no claim that the statements were made under duress or coercion.

A proper objection to the admission of a statement on the ground of factual involuntariness must be made by pre-trial motion or by objection at the time of trial. (People v. Strader (1967), 38 Ill.2d 93, 230 N.E.2d 569.) Ordinarily, where an accused fails to make a proper objection, the reception into evidence without prefiminary proof of voluntariness of the confession or admission is proper and not open to review. (People v. Blumenshine (1969), 42 Ill.2d 508, 250 N.E.2d 152.) In the present case defendant made no objection at the time of the rebuttal testimony on the ground of the involuntary nature of the statements, and the court therefore was under no obligation to conduct a hearing on the voluntariness of the statements. Although we can envision circumstances where the record so blatantly supports the belief that a statement was issued under duress or coercion that the trial court may be required to hold such a hearing sua sponte, the present case does not present such circumstances.

Defendant’s final contention on direct appeal concerns the propriety of his sentence. He argues that the trial judge considered irrelevant matters in determining the sentence.

After the judge had conducted the hearing in aggravation and mitigation, he imposed a sentence of 2 to 10 years. He then denied motions for a new trial and for arrest of judgment, and set a high appeal bond. In setting bond, the judge commented that defendant brought the alibi witnesses into court to testify falsely.

At a hearing in aggravation and mitigation, the judge may consider the nature and circumstances of the crime. (People v. Fields (1972), 8 Ill.App.3d 1045, 291 N.E.2d 258.) At the hearing the judge may properly comment upon the veracity of defendant’s testimony (People v. Valadez (1973), 15 Ill.App.3d 585, 304 N.E.2d 667 (abstract opinion)), as long as he does not base the sentence upon his belief that defendant perjured himself at trial. See People v. White (1971), 130 Ill.App.2d 775, 267 N.E.2d 129; Scott v. United States (D.C. Cir. 1969), 419 F.2d 264.

Although the trial court’s speculative remarks about the defendant bringing the alibi witnesses to court to perjure themselves were inappropriate, they do not constitute grounds to vacate the sentence. Unlike the facts in White and Scott, the judge here had already rendered the sentence at the time he made the challenged remarks. Thus there is no indication that he considered any allegedly perjurious testimony in fixing sentence. In view of the nature and circumstances of the robbery and evidence of prior convictions against defendant, the sentence was reasonable. We shall not disturb it.

We wiH now consider the issues raised in defendant’s appeal of the order dismissing his post-conviction petition. He renews his contention that he was denied effective assistance of counsel, and also argues that the State deliberately withheld evidence favorable to the defense.

When relief is sought under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1969, ch. 38, par. 122 — 1 et seq.), the only question is whether defendant has been convicted in violation of his constitutional rights. (People v. Cox (1957), 12 Ill.2d 265, 146 N.E.2d 19.) Thus, where the State moves to dismiss a post-conviction petition, the court must focus upon the sufficiency of the petition’s allegations and supporting documents. (People v. Stepheny (1970), 46 Ill.2d 153, 263 N.E.2d 83.) Where the claim of substantial infringement of a constitutional right is based, upon assertions outside the record, an evidentiary hearing is required (People v. Williams (1970), 47 Ill.2d 1, 264 N.E.2d 697), unless the necessary information is supplied in the attached documents. People v. Morris (1969), 43 Ill.2d 124, 251 N.E.2d 202.

Since all the information needed to evaluate defendant’s contentions was contained in the supporting affidavits, the trial judge did not err in failing to conduct a superfluous evidentiary hearing. An examination of the evidence also reveals that the trial judge correctly dismissed the petition.

Defendant first contends that a study of the police reports and record of the preliminary hearing, attached to his post-conviction petition, discloses inconsistencies in Mrs. Long’s testimony at trial, and proves that the failure of his counsel to exploit their devastating qualities at trial constituted ineffective representation. Our examination of the alleged inconsistencies either reveals no discrepancies between Mrs. Long’s testimony at trial and her pre-trial statements or conflicts so insignificant as to negate on their face defendant’s claim that his trial attorney deprived him of his fundamental right to a fair trial by failing to explore the differences in court.

For instance, defendant complains that the victim’s description of the robber as being a dark-complected white male clashed with the fact that defendant is of Puerto Rican descent. We do not agree. The victim’s failure to denote the precise nationality of her assailant did not call into question her credibility. Defendant also claims that trial counsel should have explored Mrs. Long’s inability to describe immediately the color of her assa lant’s eyes and hair. Again, we fail to see the significance attached to this fact. The record shows that the victim crawled home from the attack and told her husband to caH the police. After the police arrived, Mrs. Long gave them a description of her assailant and was taken to the hospital. Although the first police report states that the color of the assailant’s eyes and hair was unknown, a subsequent supplemental report described the assailant as having brown eyes and black hair. It is thus apparent that the initial failure of Mrs. Long to provide the above information after such a traumatic event would not have been of any aid to the defendant at trial. Defendant next argues that it was not until trial that Mrs. Long noted that her robber bore a scar on his eyebrow. Defendant now contends that the length of time which had elapsed from the date of the robbery to her trial testimony should have caused trial counsel to reason that her testimony was not based upon her memory of the attack but on subsequent identifications. To engage in such speculation would amount essentially to a redetermination of defendant’s guilt or innocence, a question not embraced within the purposes of post-conviction relief. People v. Derengowski (1970), 44 Ill.2d 476, 256 N.E.2d 455.

It appears that Mrs. Long’s testimony at the preliminary hearing differed in some respects from her trial testimony, but the differences were insignificant. She stated at the preliminary hearing that she selected defendant’s photograph on her first visit to the police station, while at trial she stated that she identified defendant’s photograph on the second visit. At the preliminary hearing, she testified that she had viewed photographs at the police station on three occasions, although a police report recited that the third session had occurred at her place of employment. In our opinion, these incidents, as well as her varying recollection concerning the amount of money stolen, were minor, and trial counsel’s failure to explore them at trial did not deprive defendant of his constitutional right to effective assistance at trial. People v. Newell (1971), 48 Ill.2d 382, 268 N.E.2d 17.

The record refutes defendant’s claim that through defense counsel’s neglect his alibi witnesses were not adequately prepared. Although some of the incidentals differed, the core of their testimony did not, despite a rigorous cross-examination. We likewise reject defendant’s argument that his counsel’s failure to employ an interpreter for the benefit of his witnesses prejudiced his right to a fair trial. To prevail in such a claim, it must be shown that the testimony was not understandable, comprehensible, or intelligible. (See People v. Starling, 21 Ill.App.3d 217.) The few times defendant’s witnesses experienced difficulties in rendering responsive answers to propounded questions were later rectified by questions on the same subject which evoked prompt and ascertainable answers. The record does not establish the need for an interpreter. People v. Allen (1971), 132 Ill.App.2d 1015, 270 N.E.2d 54.

Defendant’s final argument in his post-conviction appeal is that the prosecution purposely withheld evidence helpful to the defense. This contention refers to the above mentioned police reports and report of proceedings of the preliminary hearing. He maintains that the documents reveal that Mrs. Long and the police officer perjured themselves at trial.

The documents were attached to the post-conviction petition. The trial judge was able to evaluate the effectiveness of the documents as instruments of impeachment. (People v. McCarroll (1973), 10 Ill.App.3d 249, 294 N.E.2d 52.) We will not disturb his finding, especially when it is evident that the minor discrepancies that did exist between Mrs. Long’s pre-trial statements and testimony at trial were insufficient to suggest a knowing and wilful use by the State of prejured testimony. (People v. Rose (1969), 43 Ill.2d 273, 253 N.E.2d 456.) The sole question regarding the police officer’s alleged use of prejudiced testimony related to defendant’s statement given at the time of his arrest. The police report contains a remark that defendant had made no admissions, and at the preliminary hearing, the police officer testified that defendant had stated to him that he had been in the area of the crime. At trial, the officer testified in rebuttal that defendant had told him that he had been to a party until 4 or 5 A.M. on the morning of the robbery and from there had gone to his girl friend’s home. In our opinion, none of the officer’s statements were inconsistent, and certainly his testimony was not perjurious. The State did not purposely conceal evidence helpful to the defense.

For the reasons stated, the judgment of conviction of the circuit court of Cook County is affirmed. The order dismissing the post-conviction petition is also affirmed.

Affirmed.

McGLOON and MEJDA, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE McGLOON

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dale Allen (Impleaded), Defendant-Appellant.
    (No. 58011;
    First District (3rd Division)
    August 15, 1974.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Dale Allen and his co-defendant, James Nanz, were indicted for aggravated battery and attempt to commit murder. They were tried by a judge, without a jury, in the circuit court of Cook County. At the close of the evidence the prosecution dropped tire attempt murder charges and the trial court found both men guilty of aggravated battery. Allen was sentenced to a term of 1 to 3 years in the penitentiary. Nanz was sentenced to 4-years’ probation, the first 6 months to be served in the House of Correction. Dale Allen has appealed from his conviction.

He presents two issues for review. He contends that it was prejudicial error for the trial court to allow the use of a certain interpreter during the trial testimony. He complains that the interpreter was a friend of the complaining witness, a witness at trial, an interested party, and a person who had personal knowledge of the facts of the case. He argues that the interpreter should have been disqualified for these reasons. He also contends that the evidence was not sufficient to prove his guilt.

We reverse and remand.

On the evening of August 15, 1972, Hussein Gooba, the complaining witness, received stab wounds. The prosecution’s version of the incident and the defendant’s version were contradictory. The prosecution’s casein-chief consisted of the testimony of Hussein Gooba and a police officer who investigated the incident. Gooba spoke no English and Mohammed Nassar served as the interpreter. Throughout the trial defense counsel objected strenuously to the use of Nassar as an interpreter. The trial court overruled these objections.

Defense counsel’s objection was that Nassar was a close personal friend of Gooba and that Nassar was interested in the outcome of the case. The stabbing incident began with Gooba’s visiting Nassar’s apartment at 4638 N. Albany St., in Chicago, Illinois. As Gooba was leaving the apartment building, at about 10 P.M., three young men attacked him. Two had knives; one had a razor strop. At trial Gooba identified Allen and Nanz as two of the three. He testified that Allen had stabbed him with a knife, and that Nanz had hit him with a razor strop. Gooba escaped from the three men and ran into the apartment building where Nassar lived. He banged on the door of Nassar’s apartment. Eventually Nassar opened the door and let Gooba into his apartment. Nassar called the police.

The police arrested Allen at the scene. Gooba saw Allen in a police car and made gestures to the effect that Allen was responsible for his wounds. The police questioned Gooba at tire scene and in the hospital 2 days after the incident. Nassar was his interpreter both times. Nassar later testified that he gave his own account of the incident to the police on the night of the stabbing. During the direct examination of Gooba, defense counsel again objected to Nassar as interpreter. He based his objection on the allegation that Nassar had observed the attack and could not be disinterested. He also implied that because all of Gooba’s verbal communication with the police before trial had been through Nassar, Nassar could have “tailored” Gooba’s account of the incident to fit his own reconstruction.

The trial court called Nassar as a court’s witness and allowed defense counsel to cross-examine him. Nassar testified that he heard screams and banging on the door and went downstairs to let Gooba in. In response to defense counsel’s inquiry he further testified that he did not hear any shots fired and did not own a gun. The relevance of these responses became more apparent later on during the trial. A police officer testified that at the police station after the incident, Nanz, the co-defendant, told him that during the struggle an unidentified person fired shots from the second floor window of 4638 N. Albany into the courtyard. Allen maintained that one of these shots grazed him in the side. Nanz corroborated this testimony and Allen was later treated for gunshot wounds at the hospital. It was defendants’ theory that Nassar may have fired the shots and was, therefore, directly involved in the incident. The police officers who searched Nassar’s apartment did not find a gun.

At trial defendants presented evidence to show that the attack on Gooba was prompted by the screams of Celina Gallant, an acquaintance of the defendants, whom Gooba allegedly attacked with a knife.

Allen and Nanz had attended a birthday party for Nanz in an apartment at 4640 N. Albany Street. This address was located in the same courtyard building, just opposite Nassar’s address. Celina Gallant was standing alone in the courtyard waiting for Richard Thomas, who had returned to the apartment to get his cigarettes. According to Celina, a man with a knife, whom she identified at trial as Gooba, grabbed her and ripped her blouse. Allen, Nanz, and Thomas heard her screams and came to her rescue. Celina broke away from her assailant and ran from the courtyard. Diane Matera, a friend, was entering the courtyard and saw Celina running. She accompanied Celina to her home which was about 10 blocks away.

The three men struggled with Gooba in an attempt to get the knife away from him. During the struggle Nanz hit Gooba with a razor strop. Allen was hit by gunfire from the second floor window and Nanz helped him into his apartment. Thomas continued to struggle with Gooba, then returned to Nanz’ apartment.

Shortly thereafter the police arrived. The police observed Thomas in a blood-stained shirt and arrested him. Allen complained that he had been shot and he and Gooba were taken to the hospital. Later that evening during a search for weapons, the police arrested Nanz on an outstanding warrant for another offense. During the questioning of Nanz, he revealed to the police that he, Allen and Thomas had decided to beat up Gooba because he had made an insulting remark to a female friend of theirs. The police did not recover any weapons at the scene.

Our decision to reverse and remand for a new trial makes it unnecessary to delve any further into the testimony. We base this decision on our finding that, under the circumstances, it was reversible error for Nassar to serve as an interpreter. The trial court has the discretion to determine the fitness of a person called to be an interpreter. (People v. Rardin (1912), 255 Ill. 9, 99 N.E. 59; Ill. Rev. Stat. 1971, ch. 38, par. 165 — 11.) In the instant case the defendant alleges there has been an abuse of the trial court’s discretion. We agree.

Before the trial began, the prosecution tendered Nassar as an interpreter from English to Arabic and Arabic to English. Defense counsel objected, claiming that Nassar knew the facts and circumstances of the case and could not be disinterested. The prosecution maintained that he had not observed the struggle. As an additional reason to use Nassar, the prosecution informed the court that it had encountered difficulty in obtaining an interpreter, but did not show what had been done in this regard. The trial court overruled defense counsel’s objection and permitted him to be sworn in as the interpreter. Defense counsel continued to object to Nassar after he had been sworn. His objections were based on Nassar’s interest in the case and on his incompetency as an Arabic interpreter. In defendants’ motion for a new trial the objection was renewed.

As the testimony developed at trial, there was some indication that Nassar might have been involved in the incident. The implication was that Nassar might have been guilty of some wrong doing. Certainly Gooba’s testimony was material to the prosecution’s case and a biased interpreter would have been prejudicial to the defendants. In addition, Nassar had interpreted for Gooba during his statements to the police before trial. It would have been better to find someone who was less involved in the incident than Nassar.

The prosecution represented to the trial court that it had difficulty in obtaining a more impartial interpreter. However, in the city of Chicago and environs there are many institutes where an Arabic interpreter could have been found. There was no showing in the record that any of the possible choices had been tried. A short recess could have served as an opportunity for both parties to attempt to secure another interpreter.

The cases cited by the prosecution where no abuse of discretion was found are distinguishable. In Lujan v. U.S., 209 F.2d 190 (10th Cir. 1953) the court stated that a disinterested interpreter was essential and recessed the court to find one. When none could be found the court allowed a blood relative to interpret. In People v. Rardin, supra, the only connection between the complainant and the interpreter was that they were distant relatives. In People v. Murphy (1916), 276 Ill. 304,114 N.E. 609, the trial court allowed a police officer to interpret when, after a short recess, another interpreter could not be found. See People v. Torres, 18 Ill.App.3d 921, 310 N.E.2d 780, where the court again allowed a police officer to interpret.

In conclusion we find that reversible error has been committed. In light of this finding we will not consider defendant’s second contention on appeal. Accordingly the judgment of the circuit court of Cook County is reversed and the cause remanded.

Judgment reversed and remanded.

McNAMARA, P. J., and MEJDA, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James C. Thompson, Defendant-Appellant.
    (No. 59783;
    First District (3rd Division)
    August 15, 1974.

      Paul Bradley and Brenda E. Richey, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Mary Ellen Dienes, and Robert Kaainoni, Jr., Assistant State’s Attorneys, of counsel), for the People.


author: Mr. PRESIDING JUSTICE EGAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James R. Reese, Defendant-Appellant.
    (Nos. 56626, 56627 cons.;
    First District (1st Division)
    August 19, 1974.
    Roger S. Matelski, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Lee T. Hettinger, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, James Reese, was found guilty following a bench trial of unlawful use of weapons and theft; and sentenced to 6 months in the House of Correction for unlawful use of weapons and 60 days for theft. Three other men tried with him, Gregory Mims, Larry Martin, and Leroy Beckley, were found not guilty.

On June 3, 1971, at 12:40 A.M., Chicago Police Officers Hernandez and Keto were assigned to the subway “decoy” detail. Keto was sitting on the ground leaning against a pillar underneath a stairway with his eyes closed, feigning sleep. Hernandez was behind the door under the stairwell and was able to observe Keto through a vent in the door. He saw Martin and Mims walk by Keto, look at him and walk away. A few minutes later they walked back; Martin walked over to Keto and looked down at him. Mims grabbed Martin by the arm and they walked away. Martin walked over to the door behind which Hernandez stood, looked in and then walked to the side where Hernandez could not see him. Hernandez testified that a few minutes later Reese walked up to Keto, reached into his sweater pocket, pulled out his wallet, reached toward the wrist watch on Keto’s left hand and started to pull it off. At that time Hernandez could not see Martin or Mims from inside the doorway. He saw Keto jump up and Reese, Mims and Martin begin to run. He testified that Reese dropped the watch and wallet by the pillar where Keto was sitting. Keto caught Reese from behind and they began to struggle. At that time he saw Keto grab Reese’s hand which had a gun in it. Keto took the gun from Reese and handed it to Hernandez. Reese said: “Please give me a break, I didn’t do anything, give me a pass, I have a wife and family.”

Keto testified that he was wearing a wrist watch and had a leather wallet containing $2 in his right front sweater pocket. He was wearing a trench coat which was open. When he ,felt someone tug at his sweater pocket and pull at his watch, he jumped up, announced that he was a police officer and saw the defendant jump back startled. The defendant then dropped the wallet and the watch which he had ripped from Keto’s wrist, breaking the chain. Keto ran after Reese, grabbed him and ordered him to put his hands up against the wall. Reese began to struggle and Keto got one cuff on him. While he was struggling to get the defendant’s hands back, a barrel of a gun came up in Reese’s left hand, which had the handcuff on it. As the weapon came up, it clicked once. The gun was pointed toward Hernandez, who was covering Martin, Mims and Beckley. A 38-caliber revolver, which the officers testified was the one taken from the defendant, was received into evidence. It had four live shells and one expended shell in the cylinder.

The defendant testified that he worked at the Main Post Office and got off work that night at midnight. He went to the El station on Clinton and caught the West Side El to Jackson and State. When he approached the platform he began to walk to the southbound side to catch the train. As he got under the escalator steps, he saw Keto sitting on the floor, lying against the post. His face looked wet as though he had been beaten up, and he was moaning. Reese went over and tapped him on the shoulder. Keto jumped up, and the defendant jumped back and started to walk away. As he turned his back, Keto jumped up and began to swing at him. The defendant took a couple of steps back, and the other officers came upon him with drawn pistols. He immediately moved against the pillar and put his hands against the wall, facing all four police officers. They began to search him, and he pulled out his post office badge and handed it to one of the officers. When told to turn around to be handcuffed, he told them he did not do anything. They said if he did not turn around they would spray him with mace. He again denied doing anything, and they sprayed him with mace. Keto hit him with the side of a weapon that he had in his hand. The defendant’s shirt was pulled over the top of his head, and he was dragged to where the other men were. He was struck about four times. He was semi-conscious, and as he was beginning to come to they stomped his hand on the concrete floor. He denied running from Keto but stated that he merely backed up against the wall. He denied touching Keto’s left wrist or reaching into his pocket. After he was brought to the other men who were under arrest, he was lifted from the ground and handcuffed. The officers then said: “Oh, you are carrying a pistol.” He denied having any weapon, resisting the officers or having any cartridges for a weapon.

Martin and Mims testified that they had never seen the defendant before this occurrence. Beckley worked at the post office and had known the defendant for about 2 months. All three testified that they saw Reese on the ground with the officers and that they never saw a gun in his hand.

The defendant first contends that the record is devoid of any evidence that he carried a weapon concealed on or about his person, Hernandez testified that he observed the defendant walk up to Officer Keto and at that time he did not have anything in his hands. As the defendant fled, Hernandez still did not observe anything in his hands. It was not until the defendant and Keto began to struggle that Hernandez observed the gun in his hand but he did not know where it came from. Keto testified that the first time he saw the weapon was when he was struggling to get the defendant’s hands behind his back. It is a reasonable inference that the weapon had been concealed before the officers first saw it. (See People v. Gokey, 57 Ill.2d 433, 436, 312 N.E.2d 637; People v. Davis, 3 Ill.App.3d 56, 278 N.E.2d 200.) In both cases cited by the defendant, People v. Crachy, 131 Ill.App.2d 402, 268 N.E.2d 467, and People v. Gant, 84 Ill.App.2d 208, 228 N.E.2d 582, convictions for unlawful use of weapons were reversed because the weapons were visible and clearly identifiable as such from the first moment the officers observed the defendants.

The defendant next contends that his guilt was not proved beyond a reasonable doubt. In addition to his own testimony and that of his three other witnesses, he points to improbabilities in the State’s evidence. He argues that, since Keto was wearing a trench coat, the defendant could not have known that he was wearing a watch. Keto testified that the watchband chain was broken when the defendant pulled the watch off but that it had been repaired. He was wearing the same watchband at the trial and the defendant’s attorney, during Keto’s cross-examination, said: “Will you just raise your arm, I want the court to see — this is the same wrist watch and to notice the lack of any room under that watch.” What the defendant could or could not see Keto wearing is pure speculation; and the record is insufficient for us to determine what is meant by a “lack of room” under the watch. The purpose of all watchbands is to keep the watch from slipping up or down. So far as we can tell the band may have been expandable. Consequently, we see no reason to substitute our judgment for that of the trial court who had the benefit of observing the watch and band while Keto wore it.

There are some inconsistencies between the defendant’s testimony and his three witnesses. He testified that he was struck and maced by the officers and that some of his witnesses were present. All of them denied seeing him struck or maced. The credibility of the witnesses was for the trial judge, and he apparently believed the officers, who, if the defendant’s testimony is true, concocted a perjurious story out of the whole cloth. The conclusion that the officers did so is unrealistic, as is the defendant’s story that he placed his hands on Keto because Keto’s “face looked wet, like he had been beaten up or something and he was kind of moaning.”

The defendant’s final contention is that the sentences are excessive. While some confusion existed in the record, it is conceded by the State in its brief that the sentences must be considered to run concurrently. Both crimes for which the defendant was convicted are now Class A misdemeanors punishable by imprisonment for any term of less than 1 year. The defendant had previously been convicted of unlawful use of weapons and had been fined. Taking into consideration his past conviction and the facts of this case, we cannot say that the trial judge abused his discretion in sentencing. The judgment of the circuit court is affirmed,

Judgment affirmed.

GOLDBERG and HALLETT, JJ., concur.


author: Mr. JUSTICE HALLETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William C. Werhollick, Defendant-Appellant.
    (No. 57224;
    First District (1st Division)
    August 19, 1974.

      Arthur L. Belkind and Edward M. Genson, both of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Dennis J. O’Hara, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The defendant was found guilty by a jury of armed robbery and not guilty of attempt murder and was sentenced to not less than 3 nor more than 10 years in the Illinois State Penitentiary.

On this appeal, three issues are raised: (1) Whether the trial court erred when it denied the defendant’s motion to suppress the in-court identification testimony; (2) Whether the defendant was proven guilty of armed robbery beyond a reasonable doubt; and (3) Whether comments by the prosecutor during the trial and in closing argument were so prejudicial to the defendant as to require reversal or a new trial.

Defendant seeks an outright reversal or, in the alternative, a new trial. For reasons which follow, we affirm the judgment.

Donald Lingo, the principal witness for the State and victim of the crime, testified that he spent most of the day on July 26, 1970, racing his motorcycle at the “U.S. 30 Drag Strip” in nearby Indiana. After-wards, he and his business partner went to a carnival. Around 9 P.M., they drove to a tavern in Roseland called “The Playpen Lounge.” They had been drinking at the carnival and continued to do so at the tavern. Lingo’s partner stayed only a short time, but Lingo stayed on until approximately 10:30 P.M. He then left the bar and proceeded toward his car. There he was approached by one of two men standing nearby. As he opened the car door, the man shoved a pistol in his face and demanded that he turn over his money.

Lingo stated that he first tried to reason with the man but the man was not in a listening mood. The man searched him and took $600 out of his left front pocket. The man ordered Lingo to turn around. Lingo suddenly broke toward the entrance to the bar and while running he was shot in the arm. He stumbled on into the tavern. Police were summoned. The confrontation lasted approximately 5 minutes during which time Lingo stated that he was able to clearly observe the robber who was standing only a foot or so away.

Lingo changed part of his story during cross-examination. He admitted having been at the tavern in the afternoon and having several drinks there. This was contrary to his story about having been at the drag strip during the afternoon.

Shortly after the robbery, Officers Schewe and Stalnaker interviewed Lingo for about 1 hour at Roseland Community Hospital. Both officers testified that he responded to all their questions and that to them he appeared to be sober.

The following day Lingo went to police headquarters. He was shown numerous photographs by Officer Schewe. Lingo picked one and identified it as a photograph of the man who had robbed and shot him. That man was the defendant.

Defendant was taken into custody on the afternoon of August 11, 1970, around 5:30 P.M. on the roof of a building by Officer Schewe. Apparently there was no arrest warrant — at least there is no evidence of one appearing in the record. Schewe then contacted Lingo and asked him to come down to the station for the purpose of viewing a lineup. The lineup was conducted around 11 P.M. Lingo identified the defendant out of four white males as the man who robbed and shot him.

Defendant testified at the hearing on his motion to suppress that he was never advised of any right to have an attorney present at the lineup. He stated that he had asked to have an attorney present but that his request was refused. His motion to suppress the in-court identification testimony stemming from the lineup was denied.

At the trial, in addition to the above testimony, the victim Lingo testified on cross-examination by the defense that after the incident he had a conversation with the defendant’s brother-in-law Fields in another tavern, but denied that he offered to drop the prosecution for $1000 and testified that, on the contrary Fields offered him $1000 to do so.

The following witnesses testified for the defense at the trial. A lady bartender at the tavern testified that Lingo came in with a friend around 2:45 in the afternoon and remained there for approximately lVz hours during which time he had five or six drinks. She further testified that the defendant and his brother-in-law were in the bar around 4:30 P.M. She stated that Lingo returned alone around 8:30 P.M. and drank until 9:30 P.M. A woman then joined him. During the time he was in the tavern that night, the bartender said that Lingo had five or seven more drinks. She added that in her opinion he was “getting drank” when he finally left. He returned 2 minutes later, saying that he had been shot and she saw blood on his arm.

Another witness for the defense testified that he was in his automobile about 10 feet from the scene of the crime. He saw two men holding a third man against a fence. He stated that he knew the defendant and that defendant was not one of the three men because there was a difference in their builds. However, in rebuttal the State called Officer Schewe who testified that the same witness told him on the evening of the crime that he was unable to see any of the faces of the three men and therefore was unable to give an accurate description of them.

Defendant’s brother-in-law also testified for the defense that he was approached by Lingo in September of 1970, and that Lingo offered to drop the charges against the defendant if the defendant would pay him $1000.

The jury returned a verdict of guilty of armed robbery but not guilty of attempt murder. Following a hearing in aggravation and mitigation, the trial judge sentenced the defendant to a term of not less than 3 nor more than 10 years in the Illinois State Penitentiary. This appeal followed.

The defendant’s first contention is that the trial court erred in denying his motion to suppress in-court identification testimony. He maintains that such testimony should have been suppressed because it was based on a constitutionally deficient pre-indictment lineup in that he was denied representation by counsel in violation of his Sixth Amendment right.

According to Mr. Justice Stewart speaking for the majority in Kirby v. Illinois (1972), 406 U.S. 682, 683-684, 32 L.Ed. 2d 411, 92 S.Ct. 1877, the Supreme Court held in United States v. Wade (1967), 388 U.S. 218, 18 L.Ed. 2d 1149, 87 S.Ct. 1926, and in Gilbert v. California (1967), 388 U.S. 263, 18 L.Ed. 2d 1178, 87 S.Ct. 1951:

“* * * ‘that a post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth [and Fourteenth] Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup’ Gilbert v. California, supra, at 272. Those cases further held that no ‘in-court identifications’ are admissible in evidence if their source’ is a lineup conducted in violation of this constitutional standard. ‘Only a per se exclusionary rule as to such testimony can be an effective sanction,’ the Court said, ‘to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of his counsel at the critical lineup.’ Id at 273.”

However, the court in Kirby declined to extend the rationale of Wade and Gilbert to situations like this one involving pre-indictment pretrial lineups because it did not believe that an individual’s right to counsel attached until the State had taken some act by which it had committed itself to what the court called “adverse judicial proceedings” (Kirby at 688) against the accused. As the court put it at pages 689-690:

“The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the “criminal prosecutions” to which alone the explicit guarantees of the Sixth Amendment are applicable. See Powell v. Alabama, 287 U.S., at 66-71; Massiah v. United States, 377 U.S. 201; Spano v. New York, 360 U.S. 315, 324 (Douglas, J., concurring).”

The point marking tire initiation of adverse judicial proceedings was discussed by the Second Circuit in U.S. ex rel. Robinson v. Zelker (1972), 468 F.2d 159, cert. denied, 411 U.S. 939, where the court held that once an arrest warrant has been issued against a defendant based upon “information upon oath” that he has committed a crime then adverse judicial proceedings against him have been initiated sufficiently to entitle him to be represented by counsel at any identification.

The Illinois Supreme Court subsequently adopted the view expressed in Kirby, and held that its prior holding in People v. Palmer (1969), 41 Ill.2d 571, 244 N.E.2d 173, where it had followed the Wade and Gilbert rule “be modified and broadened to apply the Wade and Gilbert rule to not only post-indictment lineups but to lineups conducted after the initiation of adversary judicial criminal proceedings against an accused by whatever means.” People v. Burbank (1972), 53 Ill.2d 261, 272, 291 N.E. 2d 161, cert. denied, 412 U.S. 951.

In the present case the defendant was taken into custody by police as the result of the victim’s identification of the defendant as his assailant from some photographs shown him by the police. The record does not indicate that an arrest warrant had been issued. The lineup occurred approximately 6 hours after defendant was taken into custody but before any charges were filed against him. Defendant now urges us to conclude that the police investigation had sufficiently nan-owed down to him such that as a matter of law adverse judicial proceedings had been initiated against him and he therefore should have been represented by counsel at the lineup. To so rule, however, would be to ignore the law. Here there was no arrest warrant, formal charge, preliminary hearing, indictment, information, or arraignment preceding the lineup. Therefore, no adverse judicial proceedings had as yet been initiated against the defendant and he was not entitled to representation by counsel.

Escobedo v. Illinois (1964), 378 U.S. 478, 12 L.Ed. 2d 977, 84 S.Ct. 1758, is not applicable to this case since Escobedo, as was Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602, was primarily concerned with guaranteeing “full effectuation of the privilege against self-incrimination” during interrogation. Johnson v. New Jersey (1966), 384 U.S. 719, 729, 16 L.Ed. 2d 882, 86 S.Ct. 1772.

Therefore, it follows that the motion to suppress was properly denied by the trial court.

Defendant’s second contention is that his conviction should be reversed because he was not proven guilty of armed robbery beyond a reasonable doubt. In support of this he makes two arguments. First, he maintains that testimony by Lingo, the State’s principal witness and victim of the crime, was glaringly inconsistent as evidenced by the confusion regarding his whereabouts on the afternoon of the crime and the confusion regarding his companions at the bar. However, as the State points out, despite these inconsistencies, his testimony was positive as to the identification of the defendant as the assailant. One of the fundamental legal principles governing appeals is that this court will not substitute its findings for the findings of the trier of fact unless those findings are palpably erroneous. (People v. Hyman (1972), 8 Ill.App.3d 382, 385, 290 N.E.2d 627.) As was said in People v. Morgan (1963), 28 Ill.2d 55, 62, 190 N.E. 2d 755, “* * * these alleged discrepancies were fully brought out before the jury, whose function it was to determine the credibility of the witness.” Further, “[pjositive identification by one witness, who has ample opportunity for observation, may be sufficient to support a conviction.” (People v. Mack (1962), 25 Ill.2d 416, 421, 185 N.E.2d 154.) In this case the jury had ample opportunity to consider all the testimony including the contradictions and the alleged attempted bribe by the complaining witness. The jury chose to believe Donald Lingo’s testimony positively identifying the defendant as the attacker. Since there is evidence in the record supporting that conclusion, we decline to substitute the defendant’s suggested conclusion.

Second, the defendant argues that he was not proven guilty beyond a reasonable doubt because the jury’s verdict finding him guilty of armed robbery but innocent of attempt murder was legally inconsistent. We need only point out that verdicts do not need to be logically consistent to be legally valid. In People v. Hyman (1972), 8 Ill.App.3d 382, 290 N.E.2d 627, the jury found the defendant guilty of armed robbery and innocent of aggravated battery even though the charges arose out of the same circumstances. On appeal this court held that such a verdict while logically inconsistent, nevertheless, can be legally consistent since the verdict might well reflect the jury’s desire for leniency. Therefore, even though the verdicts in the present case might appear to be inconsistent, that alone is not enough for us to conclude that they are legally inconsistent. Consequently, there is no merit to defendant’s contention that he was not proven guilty beyond a reasonable doubt.

Defendant’s third and final contention is that his conviction should be reversed because of the prosecutor’s comments dining the trial and closing argument. The first instance cited occurred during the following colloquy between the prosecutor and Officer Schewe in reference to how the police located the defendant:

“PROSECUTOR: Did you at any time have any address for the defendant?
WITNESS: We had an address in the police records, of his parents.
DEFENSE COUNSEL: Objection, judge * * * move for mistrial.”

Defendant maintains that the prosecutor impermissibly referred to his prior criminal record and thereby prejudiced the defendant in the eyes of the jury. We do not agree since there was no reference to the defendant’s prior criminal record — only a reference that police had his parent’s address which could mean any of a number of different things.

The second alleged instance of indiscretion occurred during the prosecutors closing argument when he commented that “the testimony of Mr. Lingo about the robbery-shooting is uncontradicted.” Defendant argues that by this comment the prosecutor was impermissibly referring to the defendant’s failure to testify on his own behalf. We find this argument to be without merit since the prosecutor at that point was merely summarizing evidence and not attempting to point the finger of blame at the defendant for failing to take the stand when it was in his power to enlighten the jury. (People v. Mills (1968), 40 Ill.2d 4, 8, 237 N.E.2d 697.) Furthermore the court promptly sustained an objection to the remark.

We therefore affirm the judgment.

Judgment affirmed.

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


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. O. C. Mitchell, Defendant-Appellant.
    (No. 59543;
    First District (1st Division)
    August 19, 1974.

      James J. Doherty, Public Defender, of Chicago (Saul H. Brauner, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Michael A. Tyrrell, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM:

O. C. Mitchell, defendant, was originally charged by indictment with murder and aggravated battery. After a jury trial, defendant was found guilty of aggravated battery and sentenced to a term of 3 to 10 years. Defendant appeals, arguing that the evidence was insufficient to establish his guilt beyond a reasonable doubt.

At trial, Carie Mitchell testified that on July 8, 1972, she lived in the second-floor, rear apartment at 1559 S. Christiana, Chicago, Illinois, with her son, the defendant O. C. Mitchell, and Ernest Wright. At approximately 3:30 P.M., Ernest Wright returned home. She observed that he had been drinking. Wright left her apartment and went to the apartment of Rosa Lee Anderson, Ms. Mitchell’s granddaughter, which was located on the same floor of the building. Approximately 10 minutes later, Ms. Mitchell went to her granddaughter’s apartment and saw Ernest Wright lying on the floor of the bathroom. Ms. Mitchell observed the defendant hit Wright’s head between the bathtub and radiator six or seven times. Ms. Mitchell returned to her apartment, followed by the defendant. A short time later, Ms. Mitchell observed Wright coming up the back stairs. Defendant confronted Wright and kicked him in the face, causing him to fall down the steps. Defendant then dragged Wright into the back yard. A short time later, the police arrived and Wright was taken to Mount Sinai Hospital, where he died on July 23, 1972.

Anthony Finnelly, a Chicago Police investigator, testified that he was assigned the investigation of the death of Ernest Wright. Pursuant to that investigation, a warrant was procured for the arrest of the defendant. Defendant was placed under arrest on July 26, 1972.

Dr. Edward Shalgos, a pathologist for the coroner of Cook County, testified that on July 23, 1972, he performed a pathological examination on the body of Ernest Wright. An internal examination of the head of Wright revealed three hemorrhages. Dr. Shalgos testified that in his opinion, the hemorrhages were caused by either the application of trauma directly to the head or the striking of the head against an immovable object. The cause of death of Ernest Wright was trauma to the brain and cardiac arrest.

Dr. Hernando Torres testified that Ernest Wright was his patient at Mount Sinai Hospital. When admitted, Wright was confused and unable to talk coherently. Wright had a laceration in the left frontal area, on the nose and another on the face. Wright’s condition was stationary for several days and thereafter started to improve slowly. On July 23, 1972, Wright was found to have a respiratory difficulty and quickly went into respiratory failure, causing his death. Dr. Torres testified that Wright’s condition, when he entered the hospital, was consistent with the theory that someone had banged his head against the floor and that he had been kicked in the face and fallen down a flight of stairs.

Rosa Lee Anderson, the niece of the defendant, testified that on July 8, 1972, at 4 P.M., Ernest Wright came into her apartment. Defendant was in the kitchen cleaning fish. Wright began to talk to the defendant. Wright suddenly picked up a knife and attempted to stab the defendant. With the knife in his hand, Wright forced defendant back toward the bathroom until Wright himself fell. Ms. Anderson testified that she attempted to help Wright downstairs. As Wright was going down the stairs, he slipped and fell down the stairs. She helped Wright up and he fell down a second flight of stairs. Ms. Anderson testified that she did not at any time see the defendant kick or strike Wright.

On cross-examination, Ms. Anderson testified that on July 8, 1972, she spoke with a police officer at tire hospital. She denied telling the police officer that she had heard an argument in the rear of her apartment and had observed a male Negro hitting and kicking Ernest Wright. Ms. Anderson also testified that on September 13, 1972, she testified before the grand jury of Cook County. She denied testifying that on July 8, 1972, Ernest Wright and the defendant had a fight in her apartment.

In rebuttal, Brenda Green, an official court reporter for the circuit court of Cook County, testified that on September 13, 1972, she transcribed the testimony of Rosa Lee Anderson before the Cook County grand jury. At that time, Ms. Anderson testified that on July 8, 1972, she observed the defendant, O. C. Mitchell, and the deceased, Ernest Wright, fighting in her apartment on two separate occasions.

Joseph O. Leiser, a Chicago police officer, testified that on July 8, 1972, he interviewed Rosa Lee Anderson at Mount Sinai Hospital. At that time, Ms. Anderson stated that she heard an argument in the rear of her apartment and upon investigation she observed an unidentified male Negro beating and ticking Ernest Wright.

On appeal, defendant argues that the evidence was insufficient to establish his guilt beyond a reasonable doubt. Defendant urges that the State failed to prove that his use of force was not justified as self-defense and that the testimony of Carie Mitchell was not credible. It is well established that in a jury trial, it is the function of the jury as trier of fact to determine the credibility of witnesses and the weight to be given to their testimony. Only where the evidence is so unsatisfactory as to leave a reasonable doubt as to the defendant’s guilt will the finding of the jury be reversed. People v. Hampton, 44 Ill.2d 41, 253 N.E.2d 385; People v. Sturgis, 14 Ill.App.3d 181, 302 N.E.2d 114.

Defendant, to support his argument that he was acting in self-defense, consistently cites the testimony of Rosa Lee Anderson, whose testimony was contradicted at trial by the testimony of Carie Mitchell. The question of whether self-defense has been established by the evidence is always a question of fact for the jury to decide. (People v. Meeks, 11 Ill.App.3d 973, 297 N.E.2d 705.) Here, Rosa Lee Anderson’s testimony at trial was greatly impaired when, in rebuttal, the State introduced the testimony of Officer Leiser that immediately after the occurrence, he interviewed Ms. Anderson. At that time, Ms. Anderson stated that she observed an unidentified male Negro hitting and kicking Ernest Wright. In addition, Brenda Green, an official court reporter, testified that before the Cook County grand jury, Ms. Anderson, under oath, testified that on July 8, 1972, she observed the defendant and Wright fighting on two separate occasions. At trial, Ms. Anderson denied making either of these statements. These prior inconsistent statements cast doubt upon Ms. Anderson’s trial testimony.

Carie Mitchell testified that she observed the defendant hitting Wright’s head against the bathtub and radiator in her granddaughter’s apartment. Thereafter, Ms. Mitchell returned to her apartment, followed by the defendant. A short time later, Wright started to walk up the back stairs to enter the apartment. At that time, defendant kicked Wright in the face, knocking him down the stairs. Defendant then dragged Wright into the back yard. The jury, by finding defendant guilty, demonstrated that they believed the testimony of Ms. Mitchell. It is a well established rule that the testimony of a single witness, if positive and credible, is sufficient to sustain a conviction, even though contradicted by the accused. (People v. Griffin, 12 Ill.App.3d 193, 297 N.E.2d 770.) After a review of the entire record, we conclude that the testimony of Carie Mitchell was positive and credible. The State’s evidence was sufficient to establish defendant’s guilt beyond a reasonable doubt,

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment Affirmed.

Mr. PRESIDING JUSTICE EGAN took no part in the consideration or decision of this case.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James W. Johnson, Defendant-Appellant.
    (No. 59135;
    First District (2nd Division)
    August 27, 1974.
    James J. Doherty, Public Defender, of Chicago (Edmund B. Moran, Jr. and Richard D. Kharas, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Mary Ellen Dienes and Robert Kaainoin, Jr., Assistant State’s Attorneys, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ike Sanders, Defendant-Appellant.
    (No. 56772;
    First District (4th Division)
    August 28, 1974.

      Asher Feren, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. JUSTICE DOWNING

text:
    Allied Metal Co., Petitioner, v. The Pollution Control Board et al., Respondents.
    (No. 59257;
    First District (2nd Division)
    September 24, 1974.

      Cohen and Shapera, of Chicago (Benjamin B. Cohen, Louis Shapera, and Jerome Marvin Kaplan, of counsel), for petitioner.
    William J. Scott, Attorney General, of Chicago (Kenneth J. Gumbiner and Richard W. Cosby, Assistant Attorneys General, of counsel), for respondents.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

Allied Metal Co., petitioner (hereinafter Allied), an operator of a Chi-cage plant engaged in the production of metal ingots, appeals from an order entered by the Illinois Pollution Control Board (hereinafter Board) which found Allied guilty of causing air pollution and violating permit requirements, resulting in a fine of $2,500 as a penalty for the violations.

Illinois’ Environmental Protection Agency (hereinafter Agency) filed a complaint before the Pollution Control Board of the State of Illinois alleging that Allied, on December 27, 1971, and subsequently, operated its plant in such a manner as to cause or allow the emission of particulate matter, gases, odors, and other contaminants into the environment, so as to cause air pollution in Illinois, in violation of section 9(a) of the Environmental Protection Act (hereinafter Act) (Ill. Rev. Stat. 1971, ch. 111%, par. 1009(a)). Section 9(a) reads:

“No person shall:
(a) Cause or threaten or allow the discharge or emission of any contaminant into the environment * # * so as to cause or tend to cause air pollution in Illinois, either alone or in combination with contaminants from other sources, or so as to violate regulations or standards adopted by the Board under this Act; * *

The complaint further alleged that from January 27, 1972, to the time of the filing of the complaint (April 20, 1972), Allied had allowed or permitted particulate-matter emissions from its plant in violation of section 3 — 3.111 of the Rules and Regulations Governing the Control of Air Pollution. Section 3 — 3.111 reads, in part:

“Particulate matter emissions from any process shall be limited by process weight in accordance with Table 1 of Chapter III except as provided in Rule 3 — 3.300, or as provided by separate regulations for specific processes under Rule 3 — 3.200.”

In an amendment to the original complaint, the Agency further alleged that Allied had installed or constructed new equipment capable of emitting air contaminants to the atmosphere and equipment intended for eliminating, reducing, or controlling air contamination without a permit, in violation of secton 3 — 2.110 of the said rules, which were continued in effect by section 49(c) of the Act (Ill. Rev. Stat. 1973, ch. 111%, par. 1049(c)). Section 3 — 2.110 of the rules provides:

“A permit shall be required * * # for installation or construction of new equipment capable of emitting air contaminants to the atmosphere and any new equipment intended for eliminating, reducing or controlling emission of air contaminants.”

After conducing hearings and receiving evidence, the Board, by order dated June 7, 1973, adjudged Allied guilty of causing air pollution and of violating the permit requirements as alleged in the Agency’s complaint, and assessed a fine of $2,500 against Allied as a penalty for the violations. The Board’s order further provided that Allied was to submit to the Board and the Agency, within 60 days from the date of the order, a plan for bringing its operations into compliance with the Act and the above-mentioned rules and regulations governing particulate emissions. Subsequently, the Board granted Allied a stay with respect to the portion of the order assessing the fine. Thereafter, Allied filed a petition for review of the order with this court.

On appeal, Allied contends:

1) that the Agency failed to meet its burden of proof in that:
a) the alleged violations, as predicated upon theoretical calculations, were refuted by “stack tests” performed by experts for Allied;
b) the Agency’s evidence of visual observations was insufficient to support the finding of a violation; and
c) the order of the Board was unsupported by findings, as required by Chapter 111%, Section 1033(c) of the Illinois Revised Statutes;
2) that the Board’s finding that Allied had installed new equipment capable of emitting air contaminants is against the manifest weight of the evidence adduced below; and
3) that the Board does not have the power to assess a fine.

In the interest of clarity, we shall review and summarize the voluminous evidence as it relates to the particular allegations of the Agency’s complaint.

Allied is the operator of a plant engaged in the production of metal ingots at 2059 South Canal Street in Chicago. The basic products of Allied’s operation are aluminum-alloy and zinc-alloy ingots, which production represents approximately $5,500,000 in sales per year, or Vz% to 1% of all sales of such products produced in the country’s secondary aluminum industry. The ingots are sold to manufacturers and foundries. Allied maintains a weekly payroll of approximately $10,000, and the only shareholders of the company are Marvin Fink, an Allied vice-president, and his father-in-law.

Allied’s plant consists of four units, the main plant being approximately 124 feet by 169 feet by 75 feet; the roof of the main plant has six stacks, each with a built-in exhaust fan. The plant is surrounded on the east by railroad tracks; on the north by the south branch of the Chicago River; on the west by Canal Street, which supports a large volume of vehicular traffic; and on the south by an industrial building.

Allied is in the business of recycling aluminum and zinc scrap, as well as some lead. The scrap arrives at the plant in 600-pound bales or containers and is weighed, graded, and sorted; the bales are so compressed and tied that, when their steel bands are removed, the scrap may be sorted, piece by piece.

Allied’s equipment consists of two ‘reverberatory” furnaces, two “sweat” furnaces, two zinc pots, one boring dryer, one lead pot, and a smoke consumer or gas-fired afterburner. Irony aluminum scrap is processed through the sweat furnaces to remove the iron, which leaves molten aluminum and “free” iron. The boring dryer takes in material which has excess moisture or combustible contaminants and delivers clear aluminum and magnetized iron. The reverberatory furnaces consume and smelt clean aluminum lead, which is then poured into ingots. The volume output of lead is negligible. The zinc pots consume high grade, pure zinc, together with pure aluminum, to produce an alloy called “Zanak.” The afterburner consumes smoke given off by the boring dryer and one of the sweat furnaces.

With respect to the alleged section 9(a) violation, the Agency’s case rested largely upon the testimony of two workmen who were employed in the vicinity of Allied’s plant. Both men worked near the plant, one being at his work site about three times each day, the other being near the plant 5 days per week. Both workmen identified Allied’s plant as the source of the smoke they observed. One testified that the smoke caused him to experience smarting of the eyes and a burning sensation in the chest; the other testified that, when the smoke came in his direction, his eyes smarted and he choked and coughed. Both testified they experienced discomfort several days each week, and one witness stated that he could distinguish between the odor of diesel-engine smoke from nearby railroad engines and the odor of smoke emitted from Allied’s plant. The other Agency witness testified that he had not confused the smoke emitted from the Allied plant with emissions from traffic, industrial plants near-by, or from diesel-train traffic. Both workmen stated that they had not seen a doctor concerning their alleged afflictions caused by Allied’s emissions.

As part of its defense on the section 9(a) violations, Allied called two workmen who worked in the vicinity of the Allied plant. One witness, a superintendent at an industrial plant adjacent to Allied’s, testified that he had observed light smoke coming from the Allied plant, but that the smoke had not bothered him; he further testified that, although he could not see Allied’s plant stacks from his office, he had observed the smoke when he walked around his own plant. The other workman, a bridge-tender, testified that he had a clear view of Allied’s plant, and that he had never seen any smoke coming from the plant, though he had observed “steam” emitting therefrom; he further stated that he had never been bothered by the “steam.”

Regarding the alleged permit violation under section 3 — 2.110 of the Rules and Regulations, the Agency’s witness, Laxmi Kesari, an engineer, testified that, when he had visited the Allied plant on December 27, 1971, two zinc melting pots were under construction. It is to be noted that Allied, in one of its briefs before this court, admits that the said equipment was under construction in December, 1971, but that Allied never regarded the equipment as a “viable emission source,” as each pot allegedly gave off a “trifling amount” of .1 pounds per hour of particulates. It is therefore contended by Allied that a permit for such installation was not required. Accordingly, Allied concludes, the decision of the Board on the permit violation is contrary to the manifest weight of' the evidence adduced below.

Concerning the alleged violation of section 3 — 3.111 of the Rules and Regulations, the Agency’s engineer testified, in pertinent part, that, based upon his calculations derived from information contained in the Federal publication “Compilation of Air Pollutant Emission Factors” and information supplied by Allied, he had concluded that the allowable pounds-per-hour emissions were 15.1 pounds; that the plant’s actual emissions were 26.72 pounds per hour; and that the excess emissions were 11.63 pounds per hour. The Agency at no time conducted "stack” tests, and the engineers calculations, he testified, revealed that Allied’s two reverberatory furnaces and at least one of the plant’s sweat furnaces were the major sources of particulate emissions.

To controvert the Agency’s calculations, Allied called as a witness George Sterba, a consultant for a Chicago engineering firm which had been engaged by Allied to determine the concentration of particulate matter emanating from the roof stacks of its plant. Sterba testified, in part, that he had conducted emission source tests in order to determine the concentrations. The procedures he utilized — not “formal” stack tests, but “modified” versions thereof — included a filter-test method of rapid weight distribution of dust and gas streams in order to evaluate the dust being emitted from the stacks. Sterba testified that the modified stack-test procedure he employed was used in various parts of the country; that he used the same apparatus and instrumentation that would have been applied in a formal test; that he ascertained that the allowable emissions from the plant were approximately 14 pounds per hour, based upon a “process weight” of 6Vz tons; that, with four roof stacks in operation, the measured particulate emission was calculated to be 4 pounds per hour, which was within allowable emission standards; and that a formal stack test would not have disclosed any greater or more representative quantities of emissions.

Another engineer, Charles Licht, who had been engaged by Allied to prepare a permit application, testified on Allied’s behalf. He stated that, after having physically reviewed the Allied plant, and after having established equipment production rates and the quantity of potential particulate emissions from the equipment, he concluded that the plant itself, with its 75-feet-high ceiling, was functioning as an air-pollution control device — a “settling chamber.” Licht testified that his calculations indicated that the total plant emissions, under normal operating conditions, would be 5.36 pounds per hour, well below the allowable 14.3 pounds per hour specified in the Rules and Regulations. He further testified that the total maximum emission rate would be approximately 8.2 pounds per hour.

The Agency’s engineer was called to rebut Licht’s “settling chamber” theory, and he testified that, by his calculations, 100% of all particulates 100 microns in size would be lofted from the building and that the settling-chamber theory was in error. Licht, being recalled as a witness, insisted that it was impossible for all particulates of that size to be lofted through Allied’s fans.

The Agency called Frederick Smith, an employee of the Agency, as a rebuttal witness in connection with the testimony of George Sterba. He testified that, though Sterba was well experienced in his field, because of the methods he had used in taking the “modified” stack tests, the value and results gathered therefrom were “minimal.” Smith admitted that he had never visited Allied’s plant, had never conducted any tests at the plant, and had never made visual observations of the plant during his year of work at the Agency.

The Agency’s engineer was recalled as a witness upon cross-examination, and he testified that on December 27, 1971, he had observed visible fumes emanating from Allied’s plant, but that he did not take an “opacity” test or a “Ringelmann” test that day; that upon his next visit to the plant on September 22, 1972, he had observed smoke emitting from the plant and that he determined the visual opacity reading to be 45%; and that from the time of his first visit to the Allied plant to the time of the hearings below, he had made no field type instrument measurement test and no stack tests.

I.

In Brown Shoe Co. v. Gordon (1950), 405 Ill. 384, 392, 91 N.E.2d 381, our supreme court stated that “* * * administrative decisions must be upheld by courts unless manifestly against the weight of the evidence.” The enunciated principle has been found by this court to apply to proceedings before, and decisions emanating from, the Pollution Control Board. (Rhodes v. Pollution Control Board (4th Dist. 1972), 8 Ill.App.3d 74, 289 N.E.2d 61.) We are compelled, therefore, to leave the Board’s decision in the matter at hand as we find it, unless we find the decision to have been against the manifest weight of the evidence presented at the hearings before the Board.

A.

First of all, regarding the alleged permit regulation violation pursuant to section 3 — 2.110 of the Rules, we find from a review of the record that the evidence, which was uncontroverted, established that the construction of the two zinc pots was under way in December, 1971, and that Allied had not procured the appropriate permit for the construction of same.

Section 3 — 2.110 was in effect and binding on Allied at the time of construction. This section clearly sets forth that permits are required for all equipment capable of emitting an air contaminant. Section 1 of the Rules and Regulations defines “air contaminant” as “Particulate matter, dust, fumes, gas, mist, smoke or vapor, or any combination thereof.”

The sole argument raised by Allied on this point is to the effect that it never considered the two pots as viable emission sources, in that they would emit a trifling amount of pollutants into the atmosphere; thus, they concluded of their own accord that a permit was unnecessary. We do not agree with that conclusion, and we uphold the decision of the Board with respect to its finding on this issue.

B.

With regard to the section 9(a) violations as charged in the complaint, the Board, in its order, set forth a summary of the testimony of the Agency’s two lay witnesses as well as of Allied’s two lay witnesses. The order then stated the Board believed the Agency’s proof sufficient to establish a violation of section 9(a). Thus, it might be said that the Board’s order was not against the manifest weight of the evidence, as the Board interpreted the conflicting evidence.

It is Allied’s contention on appeal that the Board by its decision has set a standard of proof which is so minimal that it amounts to a burden upon Allied before the Board to prove that they are not in violation of the Act. Allied maintains that the evidence presented before the Board regarding the section 9(a) violations did not demonstrate its non-compliance with the Act, and it calls our attention to many points in support of its argument: The Agency’s engineer failed to perform any tests on December 27, 1971, either of the opacity or the Ringelmann variety; the engineer, in taking his opacity test on September 22, 1972, which resulted in a 45% opacity reading, failed to consider the smoke and fumes emanating from the diesel engines on railroad tracks adjoining Allied’s plant, from diesel-powered barges plying tire adjoining river, from the vehicular traffic on Canal Street, and from other industrial plants in the area; the engineer failed to detect odors on either the December, 1971, visit or in September, 1972; the engineer’s testimony reflects doubtful credence in several other regards; and the workmen who testified on the Agency’s behalf at no time complained to the Agency nor to physicians concerning their alleged afflictions, and both admitted that smoke and fumes emanated from other sources in the areas of their employ.

B.egarding the alleged particulate emission violations under section 9(a) and section 3 — 3.111 (Limitations of Processes) of the Rules, the evidence of the Agency, based on the application of a generic theoretical formula to Allied’s processing data, demonstrated an actual excess emission of 11.63 excess pounds per hour. Allied on the other hand contends that its evidence, based in part on its modified stack test, demonstrated a maximum emission rate between 5.36 and 8.2 pounds per hour, well below the allowable emissions.

Further, with respect to the particulate emission issue, we conclude the Board’s finding is against the manifest weight of the evidence for the following reasons: Because it is based upon the application of a generic theoretical formula applied to Allied’s processing data without any evidence that the said formula remains applicable in the face of the unusual specific circumstance of the exceptional height of Allied’s plant, a circumstance which becomes highly relevant in view of the testimony of the “settling chamber” effect, even as offset by the “lofting effect” of Allied’s roof fans; and this evidence based on the formula is controverted by evidence of an actual, specific stack test made by Allied, which evidence — though countered by a sharp scientific attack on the methodology used — is yet not countered by evidence of any specific Agency stack test.

We have fully and carefully reviewed the totality of the evidence with respect to the section 9(a) violations, and it is our conclusion that the findings made by the Board were insufficient to support the determination by the Board that AHied was guilty of the statutory violations charged.

We turn now to a different matter. Section 33(c) of the Act, which relates both to violations of the Act as well as to violations of Agency Rules and Regulations, reads, in pertinent part:

“(c) In making its orders and determinations, the Board shall take into consideration all the facts and circumstances bearing upon the reasonableness of the emissions, discharges or deposits involved including, but not limited to:
(i) the character and degree of injury to, or interference with the protection of the health, general welfare and physical property of the people.
(ii) the social and economic value of the pollution source;
(iii) the suitability or unsuitability of the pollution source to the area in which it is located, including the question of priority of location in the area involved; and
(iv) the technical practicability and economic reasonableness of reducing or ehminating the emissions, discharges or deposits resulting from such pollution source.” Ill. Rev. Stat. 1971, ch. 111%, par. 1033(c).

We have scrutinized thoroughly the order entered by the Board, and we find that the order reflects none of the considerations of the “reasonableness” factors which are mandated by section 33(c). The Board made no finding with regard to the character and degree of injury to, or interference with, the protection of the health, general welfare, and physical property of the people; no finding regarding the social and economic value of the pollution source, Allied’s plant; no finding as to the suitability or unsuitability of Allied’s plant to the area in which it is located; and no finding with respect to the technical practicability and economic reasonableness of compelling Allied to reduce or eliminate the emissions from its plant.

In cases such as these, where the evidence could be voluminous and highly technical, the mandate of section 33(c) is crucial in several ways: It insures the integrity of the proceedings before the Board, as well as the Board’s decision; it serves to guide both respondents before the Board and the Agency itself; and it provides this court with data necessary to a complete and fair review of the administrative decision by the Board. Without such information, in matters of this type, a thorough and judicious review of the decision cannot be made. See Maywood Park Trotting Association, Inc. v. Illinois Harness Racing Commission (1959), 15 Ill.2d 559, 563, 155 N.E.2d 626.

It is to be noted that section 33, which deals with Board determinations and orders, provides, among other things, in subsection that (a) “* * # the Board shall file and publish a written opinion stating the facts and reasons leading to its decision.” It is our opinion that sections 33(a) and (c) are intended to require the Board to set out in its order specified findings as to the matters itemized in section 33(c).

We find, therefore, that the order of the Board in the instant case does not substantially comply with the findings requirement of section 33(c) (Ill. Rev. Stat. 1971, ch. lllVa, par. 1033(c)).

In arriving at our conclusion on this issue, we were not unaware of the holdings in Ford v. Environmental Protection Agency (3d Dist. 1973), 9 Ill.App.3d 711, 292 N.E.2d 540, and Airtex Products, Inc. v. Pollution Control Board (5th Dist. 1973), 15 Ill.App.3d 238, 303 N.E.2d 498. However, both of those cases involved circumstances dissimilar to those presented here.

In both Ford and Airtex Products, the orders therein were found to have contained sufficient findings in respect of violations of section 9(a) to adequately support prima facie the orders rendered by the respective boards. In the case at bar, the Board’s order does not contain sufficient findings to adequately support the order. In Ford the Agency's evidence made out a prima facie case to support the violation findings and order of the Board and the burden of going forward shifted to Ford, who apparently did not offer any evidence to the issue of the reasonableness of the emissions. Therefore the court did not believe a specific determination need be set forth by the Board as to the factors of section 33(c). On the other hand, in the instant case the evidence was contested and Allied presented evidence relating to the “reasonableness” factors after the burden of going forward had shifted from the Agency to Allied. Under such circumstances the Board’s findings under section 33(c) would become a significant basis in the resolution of this matter.

Moreover, in Ford, the court, in sustaining the claim that the Board did not have to find the specific determinations as to each of the “reasonableness” factors set forth in said section 33(c), appears to rely on United Cities Gas Co. v. Illinois Commerce Commission (1970), 47 Ill.2d 498, 265 N.E.2d 608. In United, the supreme court held, at page 501:

"It is true that the Commission’s order did not make a finding on each of the issues in controversy. We have held, however, that it is not necessary to make a particular finding as to each evidentiary fact or claim. (Chicago Junction Railway Co. v. Illinois Commerce Com., 412 Ill. 579; Chicago, Burlington and Quincy Railroad Co. v. Commerce Com. ex rel. Brotherhood of Railroad Trainmen, 364 Ill. 213.) The commission made sufficient findings to support the order and those findings had a substantial foundation in the evidence.” (Emphasis supplied.)

We believe the statutory language of section 33(c) sets out certain matters deemed by the legislature of such significance that certain fundamental elements were minimally required. See Maywood Park Trotting Association, Inc. v. Illinois Harness Racing Commission, supra. In our opinion this statutory language goes beyond “a particular- finding as to each evidentiary fact or claim.”

II.

The final issue, whether the Board possessed the power to impose a fine for violations of the Act, has recently been considered, by our supreme court in City of Waukegan v. Pollution Control Board (1974), 57 Ill.2d 170, 311 N.E.2d 146, wherein it was held that the Board possesses such authority. Consequently, we need not say more concerning this aspect of the appeal.

III.

However, in view of our decision to overturn the order of the Board with respect to the section 9(a) and section 3 — 3.111 violations, we must consider the propriety of the imposition of the $2,500 penalty as it relates to the Board’s finding that Allied violated section 3 — 2.110 of the Rules, the permit regulation section. It is clear from a reading of the order imposing the penalty that the same was imposed by the Board based upon its findings that Allied had violated section 9(a) of the Act, and sections 3 — 3.111 and 3 — 2.110 of the Rules; that is, the fine imposed was not specific in dollar amount as to each violation found to have been committed by Allied. It is therefore ordered that the $2,500 fine is reversed and that this cause is remanded to the Board for the sole purpose of considering the fine, if any, to be imposed by the Board; and if such is to be imposed, then the fine shall be no more than $2,500.

In summary, then, we find:

1) that the evidence is insufficient to support the Board’s findings with respect to the section 9(a) and section 3 — 3.111 violations, thus the order of the Board as to these sections is vacated;
2) that the Board’s findings with respect to the section 3 — 2.110 violation was supported by the evidence and the order of the Board as to this section is affirmed;
3) that the penalty of $2,500 is vacated; and
4) that the cause is remanded and the Board is to consider the penalty, if any, regarding the section 3 — 2.110 violation.

The order of the Board affirmed in part, vacated in part and remanded in part.

HAYES, P. J., and STAMOS, J., concur.

       Section 41 of the Environmental Protection Act, effective July 1, 1970 (Ill. Rev. Stat. 1973, ch. 111%, par. 1041), provides for judicial review of orders of the Pollution Control Board by the appellate court. This appeal is before the court pursuant to Supreme Court Rule 335 (Ill. Rev. Stat. 1973, ch. 110A, par. 335). Rule 335(h) provides, in pertinent part, that sections 1, 9(c), 10, 11, and 12 of the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, pars. 264, 272(c), 273, 274, and 275) are applicable to proceedings to review the orders of the Pollution Control Board.

       The Ringelmann test referred to is described as follows in the Rules and Regulations Governing the Control of Air Pollution: “RINGELMANN CHART — The chart published and described in the Bureau of Mines, U.S. Department of Interior, Information Circular 8333 or as revised, and on which are illustrated graduated shades of gray to black for use in estimating the apparent density of smoke.”

       There is evidence in the record which was sufficient to enable the Board to make findings as to each such factor and then, by a balancing of the respective factors, to make its overall finding as to the reasonableness of the smoke and particulate emissions.