author: Mr. JUSTICE JOHNSON

text:
      In re William Darcy—(The People of the State of Illinois, Petitioner-Appellee, v. William Darcy, Respondent-Appellant).
    (No. 59170;
    First District (4th Division)
    April 10, 1974.
    Douglas I. Milan and Paul E. Flaherty, both of Chicago (Gann, McIntosh, Flaherty & Parker, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and John M. Cutrone, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

The defendant, Darcy, was convicted and adjudicated a delinquent for violating section 11—3 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, sec. 11—3), to-wit:

“Any person of the age of 14 years and upwards who, by force or threat of force, compels any other person to perform or submit to any act of deviate sexual conduct commits deviate sexual assault.”

In the instant case, the State charges that on June 24, 1972, the defendant, by threat of force, compelled Anthony Quinlan to submit to a deviate sexual act.

The sole issue presented for review is whether the evidence established beyond a reasonable doubt that the alleged victim submitted to such an act because of the threat of force from the defendant.

In People v. Bruno (1969), 110 Ill.App.2d 219, 231, 249 N.E.2d 252, this court noted that the Committee Comments to section 11—3 state: “The phrase used in section 11—3 is intended to state generally the equivalent of the force requirement in rape.” The court decided that, since the evidence of force was insufficient to convict under section 11—1 (rape), the evidence would not sustain a conviction under section 11—3 (deviate sexual assault).

The Illinois Supreme Court, in People v. Taylor (1971), 48 Ill.2d 91, 98, 268 N.E.2d 865, 868, reiterated the force requirements for conviction under the rape statute:

“As summarized in People v. Faulisi, 25 Ill.2d 457, we have held that reviewing courts are especially charged with the duty of carefully examining the evidence in rape cases, and it is the duty of the reviewing court not only to consider the evidence carefully but to reverse the judgment if the evidence is not sufficient to remove all reasonable doubt of the defendant’s guilt and to create an abiding conviction that he is guilty of the crime charged. We stated further that the degree of force exerted by the defendant and the amount of resistance on the part of the complaining witness are matters that depend upon the facts of the particular case; that resistance is not necessary under circumstances where resistance would be futile and would endanger the life of the female as where the assailant is armed with a deadly weapon, and that proof of physical force is unnecessary if the prosecuting witness was paralyzed by fear or overcome by superior strength of her attacker; that it is, however, fundamental that in order to prove the charge of forcible rape there must be evidence to show that the act was committed by force and against the will of the female, and if she has the use of her faculties and physical powers, the evidence must show such resistance as will demonstrate that the act was against her will.”

Illinois courts have consistently applied these force requirements in reviewing rape convictions. People v. Qualls (1961), 21 Ill.2d 252, 171 N.E.2d 612; People v. Elder (1962), 25 Ill.2d 612, 186 N.E.2d 27; People v. DeFrates (1965), 33 Ill.2d 190, 210 N.E.2d 467; People v. Flowers (1968), 98 Ill.App.2d 289, 240 N.E.2d 761; People v. Bruno (1969), 110 Ill.App.2d 219, 249 N.E.2d 252.

The sole evidence of physical contact and threats by the defendant towards the prosecuting witness was Quinlans testimony that, in front of the St. Thomas of Canterbury Church on a Saturday afternoon, in the presence of a lot of people, "He [Darcy] took me and pushed me around some; he hit me and told me if I don’t do it [go to a homosexual’s house], he would beat me up; he struck me in the chest and on the arm.”

Quinlan then walked 2½ blocks from the corner of Ken more and Lawrence to Sheridan, south on Sheridan to Lakeside, and then east to 820 West Lakeside, the residence of Chuck Mavacheck. Quinlan’s entire route was heavily trafficked with both pedestrians and cars, but he neither cried out for help nor attempted to escape.

The State relied upon the alleged threats and physical exertion to demonstrate that Quinlan was paralyzed with fear of Darcy. This threat and shove, they argue, account for Quinlan’s failure to yell for help to the many passersby during the 2½-block walk from the church to 820 West Lakeside. In People v. Faulisi (1962), 25 Ill.2d 457,185 N.E.2d 211, the Supreme Court held that the victim’s failure to cry for help when an occupied apartment was downstairs dictated reversal.

Where the victim willingly walked with the defendant 7 blocks and then, after being threatened by the defendant with a knife, rode an additional 23 blocks to his apartment and failed to cry out for help or attempt to escape, such action was said to negate the use of force by the defendant and to imply consent. People v. Qualls (1961), 21 Ill.2d 252, 171 N.E.2d 612. See also People v. Adams (1969), 115 Ill.App.2d 360, 253 N.E.2d 23.

Quinlan admitted on re-direct examination that he was not paralyzed by fear but went to Chuck Mavacheck’s voluntarily. Concerning his failure to cry for help to the many passersby, Quinlan responded: “I didn’t see no reason to.” When asked, “Had you agreed to go with him to this apartment on 820 West Lakeside?”, Quinlan responded “Yes.” He agreed, by his own words, to get money from the homosexual by submitting to a deviate act. Moreover, the evidence showed that he had visited the apartment before and knew the occupant.

The State established two previous incidents and two subsequent contacts by the complaining witness with homosexuals and voluntary submission to deviate sexual acts. The first occurrence, in early June, 1972, was a visit to Robert Olsen’s apartment for the purpose of getting money by submitting to a deviate act. Quinlan admitted that he went alone and without physical coercion. During the second week in June, 1972, at the alleged direction of Bill Darcy, Quinlan went to an Orval Frank’s apartment for the same purpose. Again Quinlan went alone and without physical coercion, and after receiving $5, he allegedly turned it over to Bill Darcy. These facts suggest that Quinlan frequented the homosexuals of his own volition and needed no coercion from Bill Darcy to do so.

Quinlan testified to two incidents after June 24, 1972. During the first week of July, at the alleged instance of Bill Darcy, Quinlan alone visited two homosexuals. In return for his “submission” to a deviate act, Quinlan received $5 which he gave to Bill Darcy. The final occurrence happened during the third week in July, just before Quinlan left home and joined a carnival. Quinlan went back to Robert Olsen’s apartment, again alone, and again submitted to a deviate sexual act and received $5.

These incidents, in our opinion, show that the complaining witness was not compelled by force or threat of force to submit to deviate sexual conduct. Under the circumstance of the instant case and for the reasons hereinabove stated, we conclude that defendant was not proved guilty of a deviate sexual assault.

The judgment of the circuit is reversed.

Reversed.

BURMAN and DIERINGER, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DIERINGER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alex Stavros, Defendant-Appellant.
    (No. 58419;
    First District (4th Division)
    April 10, 1974.

      Howard D. Geter, Jr., of Chicago, for appellant
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Jerald A. Kessler, and Larry L. Thompson, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant was charged in a three-count indictment with committing the offenses of syndicated gambling, gambling and keeping a gambling place. He was sentenced to a term , of from I to 2 years for syndicated gambling, 1 to 2 years for gambling, and 1 year for keeping a gambling place. All three sentences were to run concurrently.

The issues presented on appeal are (1) whether the defendant was proven guilty beyond a reasonable doubt; (2) whether the trial court erred in denying the defendant’s motion to quash Count I of the indictment; and (3) whether the defendant was denied a fair trial.

On June 10,1971, police officers of the city of Chicago, acting pursuant to a search warrant, went to the premises at 10058 South Calumet Avenue, Chicago, Illinois. The defendant, Alex Stavros, opened the door and was presented with the search warrant. The police then proceeded to search the premises. Officer James Palmer subsequently seized certain gambling paraphernalia from a space under a false stair leading to the attic. The defendant was placed under arrest and a search of his person revealed he was carrying $1,000 in cash. At trial, the parties stipulated the defendant resided on the premises in question, but was not the sole occupant and paid rent only for that portion of the premises where he resided. Officer Palmer testified the gambling paraphernalia found under the stair consisted of numerous scratch sheets and records of bets. The bets were dated, but none were dated June 10, 1971, the date of the search and arrest. An American Express money order receipt, purchased by the defendant and payable to an individual in Bolivia, was also found among the gambling paraphernalia. Palmer further testified that in his opinion there were more than five bets confiscated and they totaled more than $2,000. His opinion was based upon his belief that the number “2” recorded on the records stood for 200, although he admitted the customary bet at a race track is $2. The defendant testified he did not place the gambling paraphernalia in the staircase and had no knowledge of the items found. He denied making or accepting any wagers. At the conclusion of the trial, the court found the defendant guilty of syndicated gambling, gambling and keeping a gambling place. He was sentenced to 1 to 2 years for syndicated gambling, 1 to 2 years for gambling, and 1 year for keeping a gambling place, all sentences to run concurrently.

The defendant contends he was not proven guilty beyond a reasonable doubt as to the offenses charged. The State, however, maintains the evidence shows the defendant engaged in bookmaking involving more than five bets and totaling more than $2,000; defendant knowingly possessed the gambling paraphernalia found under the stair; and he was in control of the premises and therefore in constructive possession of the contraband. The State contends the trial court properly found the defendant guilty, and the trial court’s determination is not so improbable as to warrant reversal. The State bases its contention on the decision in People v. Mitchell (1970), 45 Ill.2d 148, 154, wherein the supreme court stated:

“ ‘It is well established that we will not disturb the findings of the trier of fact and substitute our own conclusions unless the proof is so unsatisfactory as to justify a reasonable doubt as to defendant’s guilt.’ ”

We agree with the defendant’s contention that he was not proven guilty beyond a reasonable doubt. Count I of the indictment charged the defendant with the offense of syndicated gambling. Section 28—1.1 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 28—1.1(b) and (d)) requires the defendant to receive or accept more than five bets or wagers upon the result of any trial or contest of skill, with the total amount of the bets exceeding $2,000, in order to be found guilty of syndicated gambling. The evidence presented by the State with regard to Count I consisted of Officer James Palmer’s testimony. He testified that in his opinion more than five bets were confiscated, and they totaled more than $2,000. Officer Palmer did not know, however, who placed the gambling paraphernalia under the stair or who accepted the bets. He further admitted he interpreted the figure “2” recorded on the records as being $200, although a customary bet at a race track is $2. A review of the record in the instant case indicates no evidence was presented showing the defendant accepted or received any of the bets or wagers. There is likewise no evidence that the total of the bets exceeded $2,000. The State failed to prove the necessary elements of the offense of syndicated gambling.

Count II of the indictment charged the defendant with the offense of gambling in that he “knowingly owns or possesses any book, instrument, or apparatus by means of which bets or wagers have been, or are, recorded or registered, or knowingly possesses any money which he has received in the course of a bet or wager; * * Ill. Rev. Stat. 1969, ch. 38, par. 28—1(a)(5).

In order to sustain a conviction under the above section of the statute the fact of possession must be shown beyond a reasonable doubt. (People v. Lucas (1969), 109 Ill.App.2d 303.) Both parties to this cause stipulated that the defendant occupied a portion of the premises in question but was not the sole occupant and did not pay rent for the entire premises. Although the defendant had access to the place where the contraband was found, the State was required, and failed, to show beyond a reasonable doubt that the defendant had actual possession of the contraband. (People v. Jackson (1961), 23 Ill.2d 360.) Furthermore, the facts that the police found $1,000 on the defendant’s person and recovered an American Express money order receipt purchased by the defendant for the same amount, fails to show the defendant possessed any money which he received in the course of a bet or wager.

Count III of the indictment charged the defendant with keeping a gambling place. In People v. Perry (1966), 34 Ill.2d 229, the supreme court held in order to sustain such a conviction the People must prove the following three elements beyond a reasonable doubt:

“First, that defendant owned, occupied or controlled the building * * *; second, that the building was used for purposes of gambling; and third, that defendant ‘knowingly’ permitted such use.”

The State failed to prove any of the elements required by the Supreme Court. No evidence was presented showing the defendant controlled the premises. He was merely one of several tenants in the building. No evidence was offered by the State to prove the premises were used for gambling purposes. On the date of the search and arrest the police did not observe any gambling on the premises. Further, the State failed to produce any evidence which revealed the defendant had any knowledge the premises were being used for gambling purposes. We conclude, therefore, the State failed to prove the defendant guilty beyond a reasonable doubt on any of the counts in the indictment.

In view of our finding above, defendant’s other contentions need not be considered.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is reversed as to all counts.

Reversed.

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


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bookert T. Walls, Defendant-Appellant.
    (No. 58486;
    First District (5th Division)
    April 11, 1974.

      BARRETT, J., took no part.
    James J. Doherty, Public Defender, of Chicago (Daniel Miranda, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Dorothy B. Johnson, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Ronald Helton, Defendant-Appellee.
    (No. 57979;
    First District (5th Division)
    April 11, 1974.
    BARRETT, J., took no part.
   PER CURIAM.

Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, and Stephen Y. Brodhay, Senior Law Student, of counsel), for the People.

No appearance for appellee.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jesse West, Defendant-Appellant.
    (No. 59048;
    First District (5th Division)
    April 11, 1974.

      BARRETT, J., took no part.
    Paul Bradley, Deputy Defender, of Chicago (Steven Clark, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Alan W. Brothers, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Opinion by Mr. JUSTICE DRUCKER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Shields, Defendant-Appellant.
    (No. 58553;
    First District (5th Division)
    April 11, 1974.

      George C. Howard, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by Mr. JUSTICE DRUCKER.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Keith Little, Defendant-Appellant.
    (No. 59152;
    First District (4th Division)
    April 10, 1974.

      Paul Bradley, Deputy Defender, of Chicago (Brenda E. Richey, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

The defendant, Keith Little, was indicted for the murder of Gregory Geiren. After waiving his right to a trial by jury, he was found guilty in a bench trial and sentenced to a term of 30 to 90 years. On appeal, appellant contends that the State failed to prove him guilty beyond a reasonable doubt, that he was denied equal protection of the law, and that the court erred by setting a sentence that was excessive.

At trial, the State’s first witness was Ceola Geiren, mother of the deceased. She testified that, at approximately 5:20 A.M. on July 11, 1972, she placed her purse inside the family car and then returned to her home, located a few doors away. Upon returning to the car a few minutes later, she saw Keith Little and another man remove the purse from the car and walk away. About 45 minutes later, Mrs. Geiren and two police officers confronted the defendant who, according to Mrs. Geiren, swore at her when she accused him of theft. No complaint was filed.

Mrs. Geiren met with the defendant and his father at approximately 10:15 that same evening. Mrs. Geiren’s testimony was that she asked the defendant whether he knew her family and, if he did not, why would he “pick” on her. The defendant’s father asked him, “Don’t you hear her talking to you?” The defendant replied, “No, and I don’t want to know any damn members of that family, because she thinks her boys are better than anybody.” The defendant slammed the door and left.

The State’s next witness was Cedric Geiren, age 18, the brother of the deceased. Cedric Geiren testified that, between 5 and 6 P.M. on July 12, 1972, he encountered the defendant with four other youths and asked about the theft of his mother’s purse. According to the witness, the defendant threw a punch at him without saying a word. A fist fight between the two young men ensued, after which the defendant followed the witness home. Gregory Geiren arrived a few minutes later and soon a fight erupted between him and Keith Little. After a few minutes, the defendant ran away. Cedric Geiren stated that he did not recall defendant saying anything as he left but a cousin of the deceased, David Timms, testified that the defendant said, “Wait right here until I get back.” The witnesses claimed that the second fight occurred around 7:30 P.M. on July 12, 1972.

A neighbor, Nathaniel Satchell, testified that he saw Little and several other youths walk toward the Geiren house around 10 or 11 P.M. on July 12, 1972. Satchell stated that he observed the youths from a distance of 15 to 20 feet and that the defendant and two of his companions carried objects that “looked like” rifles. Satchell testified further that he proceeded past the Geiren residence to a house located three doors away and sat there on the porch with his back turned to the street. About 5 minutes later, according to Satchell, he heard a shot that was “something like a firecracker,” turned around, and saw the defendant and several other youths run down the street. Satchell then walked over to the Geiren house and observed Gregory Geiren, who had been shot, lying in the doorway.

During cross-examination, Satchell testified that he wasn’t sure the object carried by the defendant was a rifle and that he wasn’t sure where the firecracker-like sound came from. The State claimed surprise and was granted leave to call Satchell as an adverse witness. The State then introduced Satchell’s statement, given to police officers on July 13, 1972, that he saw a gun in the defendant’s hand and that the gun “looked like a .22 rifle.” On recross-examination, Satchell’s explanation of the discrepancy between his two statements was that he said he “wasn’t too sure” so that “they won’t think I was lying about it.”

Robert E. Shanahan, assigned to Area 5 Homicide of the Chicago Police Department on July 12, 1972, testified that a .22-caliber bullet, the same type that would be fired from a .22-caliber rifle, was recovered from the body of Gregory Geiren.

Robert McClanahan of the Chicago Police Department, Area 5 Homicide, testified that the defendant, accompanied .by his father and another man, came to the police station on July 13, 1972, turned himself in, and was arrested for the fatal shooting of Gregory Geiren.

On the basis of the above evidence, the trial judge denied defendant’s motion for a directed verdict at the close of the State’s case. The defendant then rested his case, and the court found him guilty of murder.

The defendant contends, on appeal, that the circumstantial evidence adduced at trial failed to prove him guilty beyond a reasonable doubt. He argues that the State presented little evidence of events surrounding the death other than his dispute with the Geirens and that the testimony of the only witness in the vicinity of the shooting was neither positive nor credible.

To support a conviction based on circumstantial evidence, it is essential that the facts proved be not only consistent with defendant’s guilt, but they must be inconsistent with any reasonable hypothesis of innocence. (People v. Murdock (1971), 48 Ill.2d 362, 367, 270 N.E.2d 21, 24; People v. Branion (1970), 47 Ill.2d 70, 77, 265 N.E.2d 1, 5.) However, the trier of fact is not required to search out a series of potential explanations compatible with innocence and elevate them to the status of reasonable doubt (People v. Owens (1962), 23 Ill.2d 534, 538, 179 N.E.2d 630, 632; People v. Russell (1959), 17 Ill.2d 328, 331, 161 N.E.2d 309, 311); and the trier of fact does not have to disregard the inferences that flow normally from the evidence. People v. Hayes (1972), 4 Ill.App.3d 997, 1000, 282 N.E. 777, 779; People v. Brown (1963), 27 Ill.2d 23, 26, 187 N.E.2d 728, 730; People v. Russell (1959), 17 Ill.2d 328, 161 N.E.2d 309.

After reviewing the record in this case, we are of the opinion that the Web of circumstantial evidence woven by the State was strong enough to support the conviction of the defendant. The State’s evidence showed that the deceased’s mother saw the defendant remove her purse from her car on July 11, 1972; that the defendant exhibited hostility toward the Geiren family when Mrs. Geiren confronted him about the purse on the evening of July 11; that he fought with Cedric Geiren on July 12, 1972; and that the defendant fought with the deceased on the same day that the shooting incident occurred. David Timms testified that he heard the defendant threaten Georgory Geiren. Nathaniel Satchell testified that he saw the defendant walk toward the Geiren residence a few minutes before the shooting, that the defendant was armed with a rifle, and that two of the youths accompanying defendant were also carrying rifles.

In People v. Hayes (1972), 4 Ill.App.3d 997, 282 N.E.2d 777, the defendant, standing in a group consisting of approximately 10 youths, was observed with a weapon immediately before the shooting. The complaining witness testified that she was walking away from the defendant with her back to him and did not know who shot her. The court found that the “reasonable inferences to be drawn from her narration of the events surrounding the shooting was that she was shot by the defendant.” Similarly, we find here that the narration of events by the State’s witnesses support the reasonable inference that the defendant shot Gregory Geiren.

The appellant argues that the trial judge erred in assessing the credibility of Nathaniel Satchell and notes that Satchell was not as definite at trial as he had been at the preliminary hearing regarding the weapon carried by the defendant. However, even if the trial judge believed that the witness was not being fully candid on this issue, he was not required to reject Satchell’s testimony in toto. People v. Young (1973), 11 Ill.App.3d 609, 615, 297 N.E.2d 298, 302.

We will not disturb the trial court’s determination of the credibility and weight to be given to the testimony of the witnesses unless it is palpably erroneous. (People v. Arndt (1972), 50 Ill.2d 390, 280 N.E.2d 230; People v. Ostrand (1966), 35 Ill.2d 520, 532, 221 N.E.2d 499, 507.) Our review of the record shows that there was adequate evidence to support the trial court’s finding of guilty.

The second issue raised by the defendant is that he was denied equal protection of the law in that the Juvenile Court Act at that time applied to males under the age of 17 and females under the age of 18. (Ill. Rev. Stat. 1971, ch. 37, par. 702—7.) The defendant was 17 years old when the offense was committed.

We find that the defendant was not denied equal protection of the law. In People v. Pardo (1970), 47 Ill.2d 420, 265 N.E.2d 656, the Illinois Supreme Court found that age and differences between the sexes formed a proper basis for legislative classification so that the provision did not deny the accused equal protection of the law. This position was reiterated by the court in People v, McCalvin (1973), 55 Ill.2d 161, 167-8, 302 N.E.2d 342, 346, where Mr. Justice Schaefer stated:

‘We therefore hold that section 2—7 of the Juvenile Court Act did not violate the equal protection clause. We adhere to the conclusion we reached in People v. Pardo (1970), 47 Ill.2d 420, 265 N.E.2d 656, appeal dismissed for want of a substantial Federal question, Pardo v. Illinois (1971), 402 U.S. 992, 29 L.Ed.2d 158, 91 S.Ct. 2179.

The Supreme Court of Illinois again passed on this issue in People v. Ellis, No. 45745, March Term, 1974, wherein Mr. Justice Goldenhersh said:

“Defendant, Delbert Ellis, was indicted in the circuit court of Macon County on one count of forgery and two counts of burglary. He entered a plea of guilty to each count, his petition for probation was denied and he was sentenced to three concurrent terms of 2 to 6 years in the penitentiary. The appellate court, holding that section 2—7(1) of the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 702—7 (1)) was unconstitutional, reversed the convictions (10 Ill.App.3d 216) and we granted the People’s petition for leave to appeal as a matter of right under Rule 317.50 Ill.2d R. 317.
At the time the offenses were committed and when sentenced, defendant was 17 years of age.
# # #
# # * [X]he failure to consider defendant eligible for treatment as a minor under its provisions did not deprive him of equal protection of the laws.
For the reasons stated the judgment of the appellate court is reversed and the judgment of the circuit court of Macon County is affirmed.”

A similar conclusion was reached by the Appellate Court for the First District in People v. Good (1974), 18 Ill.App.3d 374.

The court found defendant guilty of murder and, after a hearing in aggravation and mitigation, sentenced him to a term of 30 to 90 years. The defendant’s final argument is that the sentence is excessive and should be reduced pursuant to authority granted this court by Supreme Court Rule 615(b)(4). Ill. Rev. Stat. 1971, ch. 110A, par. 615(b) (4).

In People v. Taylor (1965), 33 Ill.2d 417, 211 N.E.2d 673, the supreme court held that, where it is contended that punishment imposed in a particular case is excessive, the court should not disturb the sentence unless it clearly appears that the penalty constitutes a great departure from the fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the proscription of the Illinois constitution. The court further noted that the power to reduce sentences imposed by trial courts “should be applied with considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of the trial and'the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.”

Here, the trial judge imposed a sentence within the limits established by the legislature since murder is punishable by any indeterminate term with a minimum of 14 years. (Ill. Rev. Stat. 1971, ch. 38, par. 9—1 (b).) In view of the seriousness of the offense, we do not find that the trial court abused its discretion.

If a sentence is within the trial court’s discretion, and is warranted, it should not be modified on review. (People v. May (1971), 132 Ill.App.2d 766, 270 N.E.2d 440; People v. Smith (1969), 105 Ill.App.2d 14, 245 N.E.2d 13; People v. Brower (1970), 124 Ill.App.2d 356, 260 N.E.2d 463.) Under the facts and circumstances, therefore, we do not believe that we would be justified in modifying the sentence.

Accordingly, the conviction and sentence in this cause is affirmed.

Affirmed.

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


author: Mr. PRESIDING JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald John Van Pelt, Defendant-Appellant.
    (No. 72-135;
    Third District
    April 17, 1974.

      Rehearing denied May 16, 1974.

      John T. Moran, of Chicago, for appellant.
    F. Stewart Merdian, State’s Attorney, of Rock Island, for the People.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

Donald John Van Pelt, referred to hereinafter as the defendant, was indicted by a grand jury of Rock Island Comity for the crime of armed robbery. After trial by jury the defendant was found to be guilty and he was sentenced to a term of not less than 10 nor more than 30 years in the penitentiary. A recital of the facts regarding the defendant’s alleged crime will be set forth as they become pertinent to the issues raised in this appeal.

The first contention of the defendant is that the trial judge erred in not disqualifying himself when after a jury had been selected he received an oral communication from defense counsel that he, the judge, at a previous time, to-wit, in the year 1964, had served as a State’s Attorney and had prosecuted the defendant in a criminal action.

The Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 114—5(c)) provides that “any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion the court shall conduct a hearing and determine the merits of the motion.” The change of venue statute, while liberally construed, cannot be read so as to contravene its express provisions and the applicants are held to the statutory requirements. A defendant must show cause and his motion for change of venue must be supported by affidavit. (People v. Tucker, 3 Ill.App.3d 273, 278 N.E. 2d 141.) While the defendant in the instant case may well have had the requisite cause to support a motion for change of venue, he failed to comply with the statutes in that his motion was made orally and there was a failure to support it by affidavit which is a specific requirement. Further it is clear from the record that the defendant had knowledge 1 full week prior to trial as to what judge had been assigned to hear his case; yet he did not make his objections known until after the jury had been completely selected. A petition for substitution of judge must be filed at the earliest practicable time. (People v. Lawrence, 29 Ill.2d 426, 194 N.E.2d 337, cert. denied 376 U.S. 946, 11 L.Ed.2d 770, 84 S.Ct. 804 (1964); People v. Jones, 51 Ill.App.2d 391, 201 N.E.2d 194.) It has been held that a motion for change of venue comes too late when made after the selection of a jury has been completed. People v. Scott, 63 Ill.App.2d 232, 211 N.E.2d 418.

The defendant in support of his argument that the trial judge should have disqualified himself would have us interpret Supreme Court Rule 67 (Ill. Rev. Stat., ch. 110A, sec. 67 (effective March 15, 1970)) as requiring such disqualification. This rule provides that a judge shall not participate in any case in which he had previously acted as counsel. In the instant case the trial judge had not previously acted as counsel in the case before him and therefore no violation of the rule had occurred. (Emphasis ours.) In the instant case the defendant was convicted after a mistrial had occurred on the same charge. The trial judge specifically stated that he “knew nothing” about the defendant’s first trial and the allegations to the contrary set forth in the defendant’s brief are not supported by the record. We cannot agree with the defendant that reversible error was committed by the trial judge when he refused to substitute another judge for himself during the trial of the defendant.

The defendánt next assigns as error that his representation by an attorney not licensed to practice law in the State of Illinois was so ineffective as to constitute a denial of due process of law.

This court has held that a defendant is not denied effective assistance of counsel merely because his attorney was not licensed to practice in Illinois. (See People v. Cornwall, 3 Ill.App.3d 943, 277 N.E.2d 766.) The defendant contends that People v. Morris, 3 Ill.2d 437, 121 N.E.2d 810, is authority for his allegations of incompetency of counsel. In examining Morris we find that the court stated:

“There are many Illinois cases where alleged incompetency of counsel has been urged on writ of error as a reason for setting aside a conviction. There are two broad categories of these cases: (1) cases wherein the defendant was represented by counsel of his own choice, and (2) cases wherein the defendant was represented by counsel appointed by the court. A different rule has evolved for each type of case.
‘Ordinarily, a defendant who retains counsel of his own selection is responsible if that counsel does not faithfully serve his interest. Any other rule would put a premium upon pretended incompetency of counsel; for, if the rule were otherwise, a lawyer with a desperate case would have only to neglect it in order to ensure reversal or vacation of the conviction.’ ” People v. Morris, 3 Ill.2d 437, 444, 121 N.E.2d 810.

In the instant case the defendant was represented by retained counsel and an examination of the record discloses that the representation afforded him was far from questionable as far as competency was concerned. On the contrary it is clear that the defendant was ably and diligently represented. Prior to trial defense counsel filed numerous motions on the defendant’s behalf, including a motion for bill of particulars, a motion to quash the indictment, a motion for a list of' the state’s witnesses and additional information pertaining to the exact time and date of the offense charged. In addition to the foregoing defense counsel filed and argued a motion to dismiss pursuant to the 120-day rule. During the course of the trial counsel for the defendant made timely objections, a number of which were sustained.

It is noted that the defendant had employed the same counsel on a previous occasion, to-wit, in 1964. We cannot agree with the defendant in his contention that the representation provided him was of such low caliber as to amount to no representation at all, for such is clearly not the case.

The defendant further contends that a prosecution witness was asked outside the courtroom if he recognized the defendant seated in the courtroom.

The record shows that an occurrence witness, one Jens Johansen, stated on cross-examination that he was brought to the door of the courtroom and told to look through it at the defendant because the State wanted to know if he recognized the accused. He stated that he did not know the person who brought him to the door. Three other witnesses positively identified the defendant as the armed robber and Johansen stated on direct examination that the defendant resembled the robber except that his beard was longer and his hair lighter.

We do not agree with the defendant that under the circumstances surrounding the witness Johansen’s identification of him from a position outside the courtroom that we had a situation that constituted a “lineup” or “showup” so as to require the presence of counsel. (See People v. Catlett, 48 Ill.2d 56, 268 N.E.2d 378.) Three other witnesses positively identified the defendant and while the inquiry made of Johansen was unnecessary and irregular we do not consider it to be of such import as to permit it to vitiate a conviction which was otherwise based upon strong eyewitness identification. (See also People v. Tuttle, 3 Ill.App.3d 326, 278 N.E.2d 458.) The record in this case is replete with personal observations of all witnesses including Johansen during the commission of the crime which adequately illustrates an independent origin of their in-courtroom identification.

It is further contended by the defendant that error was committed when he was absent during a conference on instructions and during which a defense motion to dismiss proceedings against him pursuant to the 120-day rule was heard and denied. We note that no error- is alleged in this appeal as to the correctness of the court’s ruling in denying the defendant’s motion to dismiss. It is apparent that any delay in trying the defendant after his first trial resulted in a mistrial was occasioned by his counsel being unavailable since he was scheduled to appear in other courts for the purpose of representing other clients. The schedule of the defendant’s counsel was a matter outside the defendant’s knowledge and had he been present he could not have offered testimony or contradicted testimony on this subject. The privilege of a defendant to be present in person during his trial does not guarantee a right to be present when such presence would be useless. (People v. Longstreet, 2 Ill.App.3d 556, 276 N.E.2d 825.) In the case of Snyder v. Massachusetts, 291 U.S. 97, 78 L.Ed. 674, 54 S.Ct. 330, Justice Cardozo provides an excellent discussion of the principle underlying the court’s decision regarding the scope of the defendant’s right to be personally present during his trial. The rule there announced is that “in a prosecution for a felony the defendant has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge.” (291 U.S. at 105, 78 L.Ed. at 678, 54 S.Ct. at 332.) In the instant case we fail to see where the defendant’s presence during a conference on instructions at which time a motion under the 120-day rule was argued would have in any way enhanced his defense.

The defendant further assigns as error the trial court’s ruling which permitted the State to introduce evidence for the purpose of rebutting alibi testimony which the defense had introduced. This issue must be examined in the light of the sequence of events as to the alleged crime, the defendant’s alibi and the State’s rebuttal evidence. The indictment in the case charged the defendant with the commission of an armed robbery in the Rock Island area on April 4, 1971. The State pursuant to section 114—14 of the Code of Criminal Procedure (Ill. Rev. Stat., ch. 38, sec. 114—14), filed a request for notice of any alibi defense. An answer to this request was subsequently filed by defense counsel which indicated an alibi defense which would be supported by three named witnesses. The gist of the alibi defense was that the defendant was •working in the Chicago area for several days prior to and during the time of the crime he allegedly committed.

After the trial commenced the State presented testimony from four eyewitnesses that the crime in question had occurred at approximately 1:30 A.M. to 1:45 A.M. on April 4, 1971. Alibi witnesses testified that the defendant was in Park Forest and the Chicago area from April 1 to April 5, 1971. Rebuttal testimony was presented by the State which placed the defendant in the Rock Island area at 11 A.M. or in the early afternoon of April 3, 1971. It is the defendant’s contention that such rebuttal testimony is immaterial as to the issue concerning his whereabouts at the time of the alleged crime and that the trial court should have excluded it. In support of this contention the defendant cites the cases of People v. Cage, 34 Ill.2d 530, 216 N.E.2d 805, and People v. Hicks, 133 Ill.App.2d 424, 273 N.E.2d 450. We fail to find these cases applicable since in each the error committed by the prosecution was the introduction of evidence as to other crimes which necessarily prejudiced the trier of facts. We believe the rebuttal testimony presented by the State in the instant case was proper since its purpose was to establish the defendant’s presence in the vicinity of the alleged crime after alibi testimony in his behalf was to the effect that he was in the Chicago area continuously, prior to, during and after the date and time of the crime in question. Where the defense is alibi and the evidence is conflicting, the truthfulness of the witnesses and the weight of their testimony rests primarily with the jury or trial court and we will not substitute our opinion for theirs unless satisfied there is reasonable doubt as to the guilt of the accused. See People v. Deal, 361 Ill. 225, 197 N.E. 772; People v. Mangano, 356 Ill. 178, 190 N.E. 316.

The defendant also argues that he was not proven guilty beyond reasonable doubt since the identification testimony adduced at his trial was insufficient. The defendant presents a well-recognized rule of law that “where a conviction of an accused rests upon identification which is doubtful, vague and uncertain,, and which does not produce an abiding conviction of guilt it will be reversed.” As we have stated, we recognize this rule but do fail to see its applicability in the instant case. Three of four witnesses positively identified the defendant as the armed robber who they actually viewed at the scene of the robbery. The armed robber was unmasked at the the scene of the crime and in close proximity to the witnesses who made a positive in-court identification. It is not the function of our court to make a determination of the credibility to be attached to the testimony of various witnesses; that is the responsibility of the triers of fact whose findings will be reversed only when the evidence is so unsatisfactory as to leave reasonable doubt of the defendant’s guilt. (People v. Taylor, 8 Ill.App.3d 727, 290 N.E.2d 342.) “[T]he positive testimony of even one witness, if credible, is sufficient to convict” and precise accuracy in describing facial characteristics is unnecessary where identification is positive. People v. Catlett, 48 Ill.2d 56, 63, 268 N.E.2d 378.

The defendant complains of the identifications made by the witnesses from photographs on the basis that once witnesses view photographs of a defendant, thereafter they are prone to identify the defendant because of his resemblance to the photograph and not from an independent recollection of the occurrence. In the instant case we do not find such suggestiveness present. The witnesses viewed several photographs, separately and independent of each other and all four witnesses selected the defendant’s picture. The propriety of using prearrest photographic procedures has been approved by the Illinois courts. People v. Covington, 47 Ill.2d 198, 265 N.E.2d 112; People v. Hoffman, 7 Ill.App. 3d 146, 287 N.E.2d 219; People v. Young, 131 Ill.App.2d 113, 266 N.E.2d 160.

We find no merit to the defendant’s argument that he had an unimpeachable alibi. The jury was not required to believe the alibi defense when it was controverted by other witnesses. See People v. Taylor, 8 Ill.App.3d 727, 290 N.E.2d 342; People v. Wright, 126 Ill.App.2d 91, 261 N.E.2d 445.

Again we must disagree with a contention of the defendant in that the record in this case supports a finding that he was proven guilty beyond a reasonable doubt.

Lastly we are presented with an argument that the sentence imposed upon the defendant is excessive. The sentence of not less than 10 nor more than 30 years in the penitentiary falls within the statutory penalty provisions which could be imposed, but is its severity such as to defeat the concept of rehabilitation? We believe not, since from the record we find that the defendant has been convicted of five felonies in a span of slightly more than 12 years. The defendant can only be classed as a recidivist who has repeatedly failed to rehabilitate himself. Under the facts presented we do not believe a reduction of sentence is warranted. See People v. Hayes, 52 Ill.2d 170, 287 N.E.2d 465.

For the reasons set forth the judgment of the circuit court of Rock Island County and the sentence imposed thereon is affirmed.

Affirmed.

ALLOY and STOUDER, JJ., concur.


author: JUSTICE LUND PRESIDING JUSTICE McCULLOUGH,

text:
    UNION ELECTRIC COMPANY, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE et al., Defendants-Appellants.
    Fourth District
    No. 4—88—0131
    Opinion filed February 9, 1989.

      McCULLOUGH, P.J., dissenting.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Bret A. Rappaport, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Thompson & Mitchell, of Belleville (Robert L. Broderick and Mark J. Stegman, of counsel), for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiff Union Electric Company purchased Illinois coal solely for the use of its Missouri-located generating plants. Because of the method of transferring the coal to Missouri, the Department of Revenue of the State of Illinois (Department) claimed unpaid use taxes, together with penalties and interest. Plaintiff paid the claim taxes, with penalties and interest, under protest and sued for a refund. The circuit court of Sangamon County ruled in plaintiff’s favor, ordering the refund. Department appeals.

TRANSFER OF COAL

Plaintiff contracted to buy coal from two Franklin County, Illinois, coal mining operations, Old Ben Coal Company (Old Ben) and Inland Steel Coal Company (Inland). All coal purchased, now in issue, was to be used at plaintiff’s Meramec Power Plant (Meramec) located in the State of Missouri. Meramec coal is delivered solely from barges to the Mississippi River plant site. The coal left both Old Ben and Inland’s Franklin County operations on the Missouri-Pacific Railroad, traveling to Cora Dock Corporation (Cora Dock) at Cora, Illinois, where the coal was transferred from train cars to river barges. Cora, Illinois, a small village on the Mississippi River, is located approximately 45 miles southwest of Benton, the county seat of Franklin County.

CONTRACTS TO DELIVER

Plaintiff’s contract with Old Ben provided for the coal to be delivered to Federal Barge for shipment to Meramec. Federal Barge made the arrangements for the use of railroad cars for transportation of the coal from Old Ben to Cora Dock. Missouri-Pacific was the only railroad with lines to Cora Dock, and the only railroad with an applicable tariff. The agreement provided, as to the coal going to Meramec, as follows:

“[S]hipment shall be for delivery to Federal Barge Lines, a common carrier, or other designated barge common carrier, F.O.B. designated dock for further shipment to Buyer’s destination power plant in Missouri. Buyer shall be responsible for scheduling coal shipments via common carrier acceptable to both parties and for unloading coal at its power plants in Missouri.”

Plaintiff agreed to reimburse Old Ben for all freight costs paid by Old Ben, except for certain penalties.

Plaintiff’s purchase orders, used to buy coal from Inland, show the coal to be shipped “via the MoPac R.R. to the Cora Dock, Cora, Illinois, for transshipment beyond to Union Electric’s Meramec Plant *** in Federal Barge Lines barges.” Inland prepaid the freight “as specified in the basic order.”

Plaintiff contracted with Cora Dock to transfer the coal from rail to barge when arriving at Cora Dock. Cora Dock made all arrangements for the barges, including selection of United Barge Company, a common carrier, to ship the coal to Meramec. Neither Cora Dock nor United Barge was owned by plaintiff.

The January 1, 1981, agreement between plaintiff and Cora Dock Corporation includes the following:

“WHEREAS, Union has arranged or will arrange with the coal supplier to load cars for the transport of said coal to the coal transfer facility located in the vicinity of Cora, Illinois (hereinafter called ‘Terminal’); and
WHEREAS, Union desires to enter into an agreement with Cora pursuant to which Cora will handle and receive unit train deliveries of the coal at the Terminal, transfer the coal to barges, and transport and deliver said coal by river barges to Union’s generating plant known as the Meramec Plant located in St. Louis County, Missouri.”

The original term of the January 1, 1981, contract extended from February 1, 1981, through December 31, 1984. A December 18, 1984, amendment, effective January 1, 1985, extended the term of the agreement to April 30, 1985. Other changes made by the amendment are not material to this litigation.

Article III of the contract provided that Cora would provide rail-cars for delivery of coal to the terminal. Unloading was to be within four hours after arrival of the train. Plaintiff was responsible for paying all charges for loading and transporting the coal destined for the Meramec plant. Cora was responsible for detention charges relative to unloading coal under the applicable tariff. Plaintiff was responsible for reimbursing Cora for any additional expense should the coal arrive at the terminal frozen, should the top coal exceed two inches, or there were excessive fines.

The agreement provided Cora was to exercise reasonable care, and Cora was to obtain cargo insurance for the terminal-to-plant trip.

Cora agreed to let plaintiff or its subcontractor, at plaintiff’s “expense and instructions,” sample or use the automatic sampler at Cora while the coal was at Cora. The stipulation of facts entered into by the parties stated that while plaintiff had the right to sample or use the automatic sampler at Cora, no sampling was conducted at Cora by plaintiff or anyone else.

The agreement provided Cora was to supply a tow boat and barges. Cora had exclusive control of the methods of unloading, transferring, and loading of barges at the terminal, and of transporting and delivering the coal to the plant.

Article XI of the contract between plaintiff and Cora Dock specified that the agreement would not be construed as a contract by plaintiff for leasing any barge, two boats, or other equipment. None of the subcontractors, agents, servants, or employees of Cora would be regarded as plaintiff’s employees. The agreement further stated Cora and its subcontractors “are in all respects independent contractors and *** Union shall exercise no control over such barge, towboats or other equipment or the agents, servants or employees of Cora or its subcontractors except as specifically provided herein.” The parties agreed the contract was to be governed by Missouri law.

ILLINOIS USE TAX ACT AND REGULATIONS RELATING THERETO

The Illlinois Use Tkx Act (Use Tax) (Ill. Rev. Stat. 1983, ch. 120, pars. 439.1 through 439.51) complements the Retailers’ Occupation Tax Act (Sales Tax) (Ill. Rev. Stat. 1983, ch. 120, pars. 440 through 453). The statutory provisions applicable to the present case are from section 3 of the Use Tax, and provide as follows:

“A tax is imposed upon the privilege of using in this State tangible personal property ***. Such tax is at the rate of 5% of either the selling price or the fair market value, if any, of such property as provided herein.
* * *
To prevent actual or likely multistate taxation, the tax herein imposed does not apply to the use of tangible personal property in this State under the following circumstances:
* * *
(g) the use or purchase of tangible personal property by a common carrier by rail which receives the physical possession of such property in Illinois, and which transports such property, or shares with another common carrier in the transportation of such property, out of Illinois on a standard uniform bill of lading showing the seller of the property as the shipper or consignor of such property to a destination outside Illinois, for use outside Illinois;
* * *
If the seller of tangible personal property for use would not be taxable under the Retailers’ Occupation Tax Act despite all elements of the sale occurring in Illinois, then the tax imposed by this Act shall not apply to the use of such tangible personal property in this State.” Ill. Rev. Stat. 1983, ch. 120, par. 439.3.

The Sales Tax regulations are applicable to the Use Tax, and section 130.605 of the Sales Tax regulations provides, in part:

“(a) Where tangible personal property is located in this State at the time of its sale (or is subsequently produced in Illinois), and then delivered in Illinois to the purchaser, the seller is taxable if the sale is at retail.
(1) The sale is not deemed to be in interstate commerce if the purchaser or his representative receives the physical possession of such property in this State.
(2) This is so notwithstanding the fact that the purchaser may, after receiving physical possession of the property in this State, transport or send the property out of the State for use outside the State or for use in the conduct of interstate commerce.
* * &
(b) The tax does not extend to gross receipts from sales in which the seller is obligated, under the terms of his agreement with the purchaser, to make physical delivery of the goods from a point in this State to a point outside this State, not to be returned to a point within this State, provided that such delivery is actually made.
(c) Nor does the tax apply to gross receipts from sales in which the seller, by carrier (when the carrier is not also the purchaser) or by mail, under the terms of his agreement with the purchaser, delivers the goods from a point in this State to a point outside this State not to be returned to a point within this State.
(d) The place at which title to the property passes to the purchaser is immaterial. *** Sales of the type described in Subsections (b) and (c) of this Regulation are deemed to be within the protection of the Commerce Clause of the Constitution of the United States.” 86 Ill. Adm. Code 130.605(a), (b), (c), (d) (1985).

BILLS OF LADING

The parties included, in the stipulation of facts, copies of Missouri-Pacific Railroad tariffs applicable during the audit period for the rail shipments of coal from Old Ben and Inland to Cora Dock. Also included with the stipulation of facts are copies of Missouri-Pacific’s bills of lading used during the same time period for shipments from Old Ben to Cora Dock. These are representative of all the bills of lading used. These bills of lading show Old Ben as the shipper and “Cora Dock A/o Union Electric” as the consignee. The freight bills show under the heading “Lading Description”: “Bituminous coal *** unit train movement *** for movement via barge.” The parties stipulated shipping documents used for the Inland purchases show the consignor for each shipment as Inland.

Bills of lading used for barge shipments from Cora Dock to the power plant list the shipper as Cora Dock and plaintiff as consignee.

TRIAL COURT RULING

The trial court concluded Cora Dock was not plaintiff’s representative within the meaning of section 130.605(a)(1), and that the transactions in question fell within interstate commerce pursuant to the provisions of sections 130.605(c) and (d) of the regulations.

ISSUE

After an examination of the authorities cited to us, and having considered all of the arguments of the parties, we conclude the actual issue presented is a narrow one. Did a “local incident” (“taxable moment” or “taxable event”) take place which triggered the Use Tax? It is not argued that the placing of the coal on the common carrier at the mines, or the subsequent travel by common carrier to Cora Dock, resulted in a delivery as envisioned in International-Stanley Corp. v. Department of Revenue (1976), 40 Ill. App. 3d 397, 407, 352 N.E.2d 272, 280, cert. denied (1977), 431 U.S. 950, 53 L. Ed. 2d 267, 97 S. Ct. 2667. It is argued by the Department that the transfer at Cora to Cora Dock for loading on common carrier barges was a delivery to plaintiff and provided plaintiff with the privilege of using the coal within Illinois.

DECISION

The Department quotes Justice Ryan’s statement in United Air Lines, Inc. v. Johnson (1981), 84 Ill. 2d 446, 449, 419 N.E.2d 899, 901: “The Illinois use tax is a tax upon the privilege of using personal property within the State.” United involved petroleum purchased in Indiana from Shell Oil Company and delivered to United in Illinois for use in United planes. United claimed an exemption from the Use Tax based on payment of Shell’s Indiana gross income tax, with the Illinois Supreme Court decision upholding the denial of that exemption. The case did not require an explanation for “taxable event,” or a like kind term, such as “local incident” or “taxable moment.”

A direct delivery from a seller by use of common carrier out of State to a purchaser is free from State tax regardless of where title passes. (86 Ill. Adm. Code 130.605(c), (d) (1985).) It is well settled that once interstate movement has begun, a temporary interruption for safety and convenience, or due to the necessities of the journey, does not take the shipment out of interstate commerce. Minnesota v. Blasius (1933), 290 U.S. 1, 9-10, 78 L. Ed. 131, 136, 54 S. Ct. 34, 37.

The interruption may take the goods out of interstate commerce if the interruption is deemed to be for the owner’s benefit. (General Oil Co. v. Crain (1908), 209 U.S. 211, 52 L. Ed. 754, 28 S. Ct. 475 (oil held for packing and distribution purposes ruled held for owner’s benefit and therefore taxable).) Any break in the transportation which would allow the owner to exercise control of absolute ownership has been found sufficient to take the goods out of interstate commerce and make them subject to local taxation. Bacon v. Illinois (1913), 227 U.S. 504, 57 L. Ed. 615, 33 S. Ct. 299 (grain removed from carrier and placed in private grain elevator deemed to be under absolute control of owner, who had power to change consignee, ownership or destination; grain taxable).

The authorities also indicate temporary stoppage of transit in order to change the method of transportation does not change the interstate nature of the journey. Western Oil Refining Co. v. Lipscomb (1917), 244 U.S. 346, 61 L. Ed. 1181, 37 S. Ct. 623.

Our courts have recognized “[t]he requirement that a local incident occur to bring a sale within the taxing power of a State.” (Emphasis added.) (International-Stanley, 40 Ill. App. 3d at 407, 352 N.E.2d at 280.) The International-Stanley case cites Norton Co. v. Department of Revenue (1951), 340 U.S. 534, 95 L. Ed. 517, 71 S. Ct. 377.

The arrangement at Cora Dock was necessary because the coal had to arrive at Meramec on barge. Cora Dock was not owned by plaintiff, and the contract between plaintiff and Cora Dock called for transfer of the coal from rail to barges and transfer up the Mississippi River to the generating plant. The evidence indicates Cora Dock was an independent contractor and was not obligated to do anything but transfer the coal from railroad to barge so that the coal could move on by common carrier to Meramec. No explicit authority existed allowing plaintiff to direct otherwise. At no time was coal sidetracked or shipped to another location. The Department is correct in saying a transfer to an Illinois coal use would have been a taxable use by plaintiff, but the transferring by Cora Dock provided for no such event, and none occurred.

The United States Supreme Court, in treating the sale of Tennessee alcohol by mail order, only to those outside of Tennessee, to be interstate commerce, stated:

“But this is immaterial since it is not open to controversy that substance, and not form, controls in determining whether a particular transaction is one of interstate commerce, and hence that the mere method of delivery is a negligible circumstance if, in substantial effect, the transaction under the facts of a given case is interstate commerce.” (Heyman v. Hays (1915), 236 U.S. 178, 187, 59 L. Ed. 527, 531, 35 S. Ct. 403, 405.)

As further assistance in solving the problem now presented, we also look to the four-part test set forth in Complete Auto Transit, Inc. v. Brady (1977), 430 U.S. 274, 51 L. Ed. 2d 326, 97 S. Ct. 1076. The United States Supreme Court, while acknowledging the conflicts arising out of the application of sales and use taxes, recently said:

“Complete Auto abandoned the abstract notion that interstate commerce ‘itself’ cannot be taxed by the States. We recognized that, "with certain restrictions, interstate commerce may be required to pay its fair share of State taxes. Accordingly, in the present case, it really makes little difference for Commerce Clause purposes whether appellant’s catalogs ‘came to rest’ in the mailboxes of its Louisiana customers or whether they were still considered in the stream of interstate commerce. This distinction may be of some importance for other purposes (in determining, for instance, whether a ‘taxable moment’ has occurred, see 505 So. 2d, at 105), but for Commerce Clause analysis it is largely irrelevant.” D.H. Holmes Co. v. McNamara (1988), 485 U.S. 24, _, 100 L. Ed. 2d 21, 27, 108 S. Ct. 1619, 1623.

In referring to Complete Auto, we recognized the great difference in facts from the present case. The Mississippi tax was “for the privilege of carrying on, within a state, certain activities.” The taxpayer in Complete Auto hauled automobiles from rail loading docks within Mississippi to automobile dealerships in Mississippi. The vehicles had been in interstate commerce, and interstate commerce was assumed. The tax imposed in Mississippi was similar to a sales tax, but was assessed for “sales of transportation services.” In upholding the Mississippi tax, the Supreme Court reversed its previous adoption of a rule which “reflects an underlying philosophy that interstate commerce should enjoy a sort of ‘free trade’ immunity from state taxation.” (Complete Auto, 430 U.S. at 278, 51 L. Ed. 2d at 330, 97 S. Ct. at 1078-79.) The Complete Auto decision requires affirmative answers to four questions prior to upholding the State tax against a commerce clause challenge. The questions are: (1) is the tax applied to an activity with a substantial nexus with the taxing State; (2) is the tax fairly apportioned; (3) is the tax free from discrimination against interstate commerce; and (4) is the tax fairly related to the services provided by the State.

As we have stated, there is a difference between the issues in Complete Auto and in the present case because of the question of whether a taxable event, terminating interstate commerce, took place at Cora Dock in the overall process of transferring the coal out of the State of Illinois from the mine to Meramec. Without a taxable event, the transfer would be interstate in nature and free from the taxation. Nevertheless, the Complete Auto test provides some guidance because the policy involved appears similar to the one now confronting this court.

The first prong of the Complete Auto test appears determinative. The activity is limited to the Cora Dock transfer. Plaintiff was not involved in the interstate movement by the railroad from the mines to Cora Dock. The wording on the bills of lading, while noting the ultimate transfer to Meramec, appears to provide for delivery to Cora Dock. Our supreme court has recognized the designation on a bill of lading does not change what is intrastate commerce to interstate commerce. (Pressed Steel Car Co. v. Lyons (1955), 7 Ill. 2d 95, 103, 129 N.E.2d 765, 769.) We assume a designation on a bill of lading is only evidence, and not determinative in itself, whether a sale is intrastate or interstate commerce:

“Whether commerce is interstate and subject to the regulatory powers of Congress, or intrastate and subject to state control, should be determined from its essential character. Substance, and not form, controls in the determination of the character of the transaction; the courts will look to practical considerations and the established course of business.” (Emphasis added.) (15A Am. Jur. 2d Commerce §8, at 328 (1976).)

If the tax were upheld, it would be because of its application to the very limited activity at Cora Dock. Cora Dock was doing a specific function as an independent contractor, transferring coal from one common carrier to another common carrier. We find the evidence fails to indicate an activity with a substantial nexus with the State of Illinois.

Because the tax would only be collectible because of the activities at Cora Dock, which activities include nothing more than transfers from railroad cars to barges, we question whether the tax is fairly related to services provided by the State of Illinois. It, thus, appears .that the fourth prong of the Complete Auto test also cannot be answered in the affirmative.

Parenthetically, we note section 130.610 (86 Ill. Adm. Code 130.610 (1985)) specifically provides “representatives” of purchasers do not include “an independent carrier engaged in the business of transporting property for hire.” 86 Ill. Adm. Code 130.610(a)(1)(B) (1985); see also 86 Ill. Adm. Code 130.610(b)(4), (c)(1)(D) (1985).

While we recognize these same provisions are not included in section 130.605, it would appear that if Union Electric had purchased coal in Indiana, which was shipped by a common carrier, a railroad not owned by Union Electric, across Illinois to Cora Dock for transfer to another common carriel1 not owned by Union Electric, Cora Dock would not be considered a “representative” of Union, being nothing more than an instrumentality transferring coal from one common carrier to another. As we have previously said, it is well settled that once interstate movement has begun, a temporary interruption due to the necessities of the journey does not take the shipment out of interstate commerce. Blasius, 290 U.S. at 9-10, 78 L. Ed. at 136, 54 S. Ct. at 37.

We conclude that the contracted services at Cora Dock were not such as to be considered a taxable event, and the tax, as applied, was an unconstitutional infringement upon the interstate commerce. This decision is consistent with the substance over form position referred to in Heyman and in Complete Auto. Our conclusion also appears to be consistent with the holding of the United States Supreme Court in R. R. Comm’n v. Worthington (1912), 225 U.S. 101, 56 L. Ed. 1004, 32 S. Ct. 653.

We further conclude the trial court’s decision holding Cora Dock was not plaintiff’s representative within the meaning of section 130.605(a)(1) was correct. Cora Dock’s authority was to do nothing more than transfer the coal for continuing the interstate travel to Meramec. This authority does not equate with the authority to do business with the coal in such a way as to justify a finding of a taxable event (or local incident) as described in International-Stanley.

The decision of the circuit court of Sangamon County is affirmed.

Affirmed.

KNECHT, J., concurs.

PRESIDING JUSTICE McCULLOUGH,

dissenting:

The parties agree that this is a question concerning a use tax to be imposed by the State of Illinois. First, I question the term “use tax.” In Illinois, a use tax is a tax upon the privilege of using personal property within this State. (United Air Lines, Inc. v. Mahin (1971), 49 Ill. 2d 45, 46, 273 N.E.2d 585, 586.) As is apparent, the reason for the use tax is to complement the retailers’ occupation tax by preventing the evasion of tax on purchases made outside the State and equalize a competitive disadvantage of Illinois retailers who face retailers’ occupational tax liability.

The transaction in this case involves a purchase of coal from Old Ben Coal Company and Inland Steel Company. Both coal companies were located in Illinois, and there is no dispute that the coal was in the State of Illinois at the time of its purchase. It is also undisputed that Old Ben and Inland are retailers for the purposes of the Retailers’ Occupation Tax Act. Likewise, it is undisputed that the coal purchased was not purchased for the purpose of resale and that the purchase of the coal was not taxed by the State of Missouri or any other State. Contested is whether delivery was in Illinois.

Because of my inability to see the big picture, i.e., that it is other than a sales tax and not a matter of interstate commerce, I would find that the Union Electric Company (Union) is responsible for the tax to the State of Illinois.

On the merits, we need only look to the contract between Union and Cora Dock. In article II, paragraph 5, of the contract, it provided:

“In the event Union is unable, for any reason, to receive coal from barges at the Plant, then it may request Cora to divert deliveries to an alternate destination. Cora reserves the right to refuse to serve a particular alternative destination because of operating conditions or other circumstances.”

Article III requires Cora to cause each unit of a train to be unloaded at the terminal within a specific time period. However, with respect to delivery from Cora to Union, article V provides:

“It is anticipated by the parties that three or four tows per week shall constitute normal operating conditions under this Agreement. Scheduling of loaded barges and the release of empties shall be in conjunction with the needs of the Plant.”

A question in this case: Is there an interruption for the owner’s benefit? If there is an interruption, then the property is taxable.

Although Cora Dock was required to unload the trains coming into Cora Dock on a timely basis, i.e., within four hours, there was no similar requirement that the coal move from Cora Dock to Union at any specific time schedule. It appears from reading the contract that the coal could and would be stockpiled at Cora Dock for transfer to Union, the only provision in the contract being that “[i]t is anticipated by the parties that three or four tows per week shall constitute normal operating conditions.”

If the purchaser or his representative receives physical possession of the property in Illinois, the sale is not within interstate commerce. This applies even though the buyer may ship the goods out-of-State after receiving physical possession of the property in this State. (86 Ill. Adm. Code 130.605(a)(1), (a)(2) (1985).) With respect to the application of sections 130.605(b), and (c), subsection (b) concerns sales in which the sellers are obligated by agreement with the purchaser to physically deliver the goods from Illinois to out-of-State. In this case, the sellers, Old Ben and Inland, were only obligated to furnish the coal at the loading point at each mine. As to subsection (c), it exempts sales in which the seller, by carrier or by mail, under contract with the buyer, delivers goods from in-State to out-of-State. The arrangements for delivery beyond the point of loading were made by Cora and Union and not by the sellers. Neither of these subsections apply to this case.

Simply stated, Cora Dock acted as plaintiff’s representative for purpose of assessing the tax liability under section 130.605(a)(1) of the regulations.

I would also find that the elements of Complete Auto are satisfied if applied to this case. The four-part test: (1) the tax must be fairly apportioned; (2) it must not discriminate against interstate commerce; (3) the tax must be fairly related to benefits provided by the State; and (4) there must be a sufficient nexus between the activity and the State. Applying this test, the tax is fairly apportioned, it does not discriminate against interstate commerce inasmuch as it may very well be a simple sales tax or if considered a use tax, it is for property which is not purchased for resale. The tax does not discriminate against interstate commerce, is fairly apportioned, and is related to the benefits provided by the State who provide law enforcement and other governmental services. The coal is taken from the State of Illinois ground, and certainly the operation of the coal mine and the contract provisions provide a sufficient nexus between the activity and the State.

The Supreme Court’s application of Complete Auto in Goldberg v. Sweet (1989), 488 U.S___, 102 L. Ed. 2d 607, 109 S. Ct. 582, is further justification to uphold the tax here.


author: JUSTICE KNECHT

text:
    THE PEOPLE ex rel. DIANE LOCKWOOD, Plaintiff-Appellee, v. DARYON MCDANIEL, Defendant-Appellant.
    Fourth District
    No. 4—88—0353
    Opinion filed February 23, 1989.

      Bruce G. Ratcliffe, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Thomas P. Sweeney, Assistant State’s Attorney, of counsel), for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Defendant Daryon McDaniel appeals from a Champaign County circuit court adjudication of paternity. The only issue raised on appeal is whether the circuit court erred in striking defendant’s request for a jury trial because he failed to pay a jury fee. The circuit court found defendant was the father of plaintiff’s child and later conducted a support hearing. While defendant was unemployed at the time of the support hearing, the court placed obligations on him sufficient to meet the rule in People ex rel. Driver v. Taylor (1987), 152 Ill. App. 3d 413, 415, 504 N.E.2d 516, 517, for making the order herein final and appealable.

The defendant in this paternity action was found indigent by the trial court and appointed counsel, pursuant to section 5 — 105 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 5 — 105). This provision provides that a poor person “shall have all the necessary processes, appearances and proceedings, as in other civil cases, without fees or charges.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 5 — 105.) The defendant requested a jury but this request was stricken when he failed to pay the jury fee. Defendant argues he was not required to pay the jury fee since he is an indigent and is guaranteed a right to a trial by jury in a paternity action by statute. (Ill. Rev. Stat. 1987, ch. 40, par. 2513(b).) The central inquiry is whether a jury trial is a “necessary process” within the meaning of section 5 — 105 of the Illinois Code of Civil Procedure.

A paternity proceeding is a civil proceeding, although criminal in form. Its purpose is to determine the identity of the putative father and not to impose a penalty. (People ex rel. Cizek v. Azzarello (1980), 81 Ill. App. 3d 1102, 1105, 401 N.E.2d 1177, 1181.) Paternity proceedings are therefore governed by the Code of Civil Procedure, as well as the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1987, ch. 40, pars. 2501 through 2526).

Although allowed by statute, there is no constitutional right to a trial by jury in a civil proceeding to determine paternity. The cause of action was not recognized at common law. The right to trial by jury in section 13 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, §13) refers only to those actions recognized in common law at the time of its adoption. (Azzarello, 81 Ill. App. 3d at 1105, 401 N.E .2d at 1181.) Since imprisonment is not a direct result of the action, the United States Constitution does not require a jury trial under the sixth amendment. (U.S. Const., amend. VI) (Frank v. United States (1969), 395 U.S. 147, 151, 23 L. Ed. 2d 162, 167, 89 S. Ct. 1503, 1506; Duncan v. Louisiana (1968), 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444.) Furthermore, a jury is not necessary to the function of the court. “A court is fully organized and competent for the transaction of business without the presence of a jury.” Hunt v. Rosenbaum Grain Corp. (1934), 355 Ill. 504, 511, 189 N.E. 907, 910.

Citing Greene v. City of Chicago (1978), 73 Ill. 2d 100, 105, 382 N.E.2d 1205, 1208, defendant argues statutes granting the right to a jury trial should be liberally construed. However, Greene refers to the court’s discretion to grant a late jury demand. There are no Illinois cases on the issue of an indigent defendant’s obligation to bear the costs of a jury he has requested.

There are two cases in other States dealing with this issue: Robertson v. Apuzzo (1976), 170 Conn. 367, 365 A.2d 824, cert. denied (1976), 429 U.S. 852, 50 L. Ed. 2d 126, 97 S. Ct. 142, and People v. Marshall (1978), 82 Mich. App. 92, 266 N.W.2d 678. In both cases, the courts held that requiring an indigent to pay the jury fee does not result in an unconstitutional denial of due process or equal protection. In Robertson, there was also a State statute guaranteeing the right to jury trial in a paternity action. The court decided this statutory right was conditioned upon the payment of a jury fee. There is no denial of due process or equal protection under the United States Constitution and no fundamental interest of the defendant gained or lost depending on the availability of a jury trial. (Robertson, 170 Conn. at 376-82, 365 A.2d at 829-32.) The court distinguished Boddie v. Connecticut (1971), 401 U.S. 371, 28 L. Ed. 2d 113, 91 S. Ct. 780, which held it was a violation of due process not to waive filing and service of process fees to indigents seeking a divorce. The Supreme Court has subsequently refused to broaden Boddie. Robertson, 170 Conn. at 377-78, 365 A.2d at 830.

Robertson also held there is no right to a jury trial in paternity cases under the seventh amendment to the United States Constitution because the seventh amendment is not incorporated into the fourteenth amendment.

In Marshall, the court held paternity suits in Michigan were civil actions but even if they were criminal actions there would be no right under the sixth amendment of the United States Constitution to a jury trial. This is because imprisonment is not a sanction imposed in paternity proceedings. Marshall, 82 Mich. App. at 96, 266 N.W.2d at 681.

The defendant also argues section 5 — 105 of the Code was intended by the legislature to provide equal access to the courts. However, People v. Nicholls (1978), 71 Ill. 2d 166, 176, 374 N.E.2d 194, 198, cited by the defendant in support of this argument, states: “The fact that the poor litigant is not absolved from the liability for costs and fees leads us to agree with the State that section 5 was only intended to provide equal access to the courts.” In the present case, the defendant did gain access to the courts. As Nicholls makes clear, section 5 — 105 of the Code does not state no expenses shall be borne by the indigent defendant.

Illinois courts have held a jury in a paternity proceeding is not constitutionally mandated and a court can function properly without a jury, absent constitutional guarantees which do not apply to paternity proceedings. The other State courts which have addressed this issue have held against the indigent defendants.

We therefore hold the trial judge did not err in striking the indigent defendant’s jury request for lack of payment of the jury fee and affirm the finding of paternity.

Affirmed.

McCULLOUGH, Ed., and SPITZ, J., concur.