source: Caselaw Access Project

author: Mr. JUSTICE HALLETT

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ernest Sawyer et al., Defendants-Appellants.
    (No. 57119;
    First District (1st Division)
    August 5, 1974.

      James J. Doherty, Public Defender, Frederick F. Cohn, and James M. Gaynor, aH of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE HALLETT

delivered the modified opinion of the court:

Ernest Sawyer, Floyd Cummings and John Robinson (plus Thomas Baggett, since deceased) were found guüty by a jury of the murder of Sam Gerrick and sentenced to 50 to 75 years in the penitentiary. They appealed to this court, which affirmed. (People v. Robinson (1972), 3 Ill.App.3d 858, 279 N.E.2d 515.) That opinion sets out the evidence in considerable detail and we shall not do so here.

Sawyer then filed a section 72 petition and two post-conviction petitions which were dismissed without an evidentiary hearing. On appeal the supreme court, in People v. Sawyer (1971), 48 Ill.2d 127, 268 N.E.2d 689, affirmed the dismissal of the section 72 petition but reversed the dismissal of the post-conviction petitions in part and remanded on two specific issues which will subsequently be discussed in detail. Cummings also filed a post-conviction petition which was then joined with the Sawyer post-conviction remand for hearing.

Robinson had filed a separate post-conviction petition alleging errors not raised here and that was dismissed without a hearing. This was affirmed by the supreme court in People v. Robinson (1969), 42 Ill.2d 371, 247 N.E.2d 898. He then filed a section 72 petition which was dismissed without an evidentiary hearing. During an appeal from this, Robinson and the State agreed to an order reversing the dismissal and to a remand for a consolidated hearing with that of his co-defendants Sawyer and Cummings, pursuant to the supreme court’s remandment.

All three defendants joined in a full evidentiary hearing before Judge Stark during which a total of 13 witnesses testified, including the four defendants, their trial counsel, tire two prosecutors, various police officers and others. At the conclusion of said hearing, all petitions were dismissed and all relief denied. The appeal now before us is from that dismissal. Two issues are presented by all three defendants and a third issue only by Sawyer.

The -first issue, as stated by the supreme court in its opinion (People v. Sawyer (1971), 48 Ill.2d 127, 129, 268 N.E.2d 689), is the defendants’ contention that their constitutional right to a fair trial was violated when: “* * * the prosecution permitted Carrie Lee Hyde to testify

that she had not ‘been arrested except for this incident, when the prosecution knew that she had a prior arrest and conviction record for prostitution and use of narcotics.’ ”

The evidence does not support this contention.

In the first place, as shown by the transcript of the 1967 trial, which was in evidence here, Carrie Lee Hyde did not testify that “she had not been arrested except for this incident.”

What she actually testified (1967 Transcript at 117), on cross-examination was that “I have never been in jail but once and that was when they locked me up for this.”

The record of arrests and convictions upon which the defendants rely so heavily demonstrates that her said statement was true in the sense that her prior offenses had resulted in nothing more than a series of fines and one suspended jail sentence.

In the second place, the evidence at the evidentiary hearing on the remand does not demonstrate that either of the prosecutors knew of her said previous record. On the contrary, Ciño Divito (Record at 173-174) and James Schrier (Record at 191) both testified that they did not know

that she had a prior criminal record.

The defendants cite People v. Martin (1970), 46 Ill.2d 565, 264 N.E.2d 147, for the proposition that because one of the police officers here had a check made on Miss Hyde’s background, the prosecution must be charged with that information. Martin, in our opinion, was controlled by the fact that a police officer who knew the key witness in a narcotics case was a paid informer got on the stand and testified to the contrary. There the court reasonably concluded, at page 567, that:

“* * * where, as here, the falsity lies in the testimony of a law enforcement officer giving evidence favorable to the prosecution, * * * it matters not that the prosecuting attorney himself does not have knowledge of the falsity, * *

Since the police officer obtaining the information was not a witness at the trial, we deem Martin inapplicable to the case here before us.

In the third place, there is no evidence in the record that Miss Hyde was a prostitute or a user of narcotics. Her New York conviction, which resulted in a 6-month suspended sentence, resulted from her purchase of a 5-pound bag of marijuana for a third party, which she turned over to police authorities. These circumstances were clearly set out during the hearing below, and we see no reason for disturbing the trial judge’s conclusion that the defendants’ rights were in no way violated.

The second issue, as stated by the supreme court in its order of remandment (People v. Sawyer, 48 Ill.2d 127, 130, 268 N.E.2d 689), is whether the defendants’ contention that their constitutional right to a fair trial was violated when:

“* # * the State’s Attorney failed to disclose to the defense counsel that Carrie Lee Hyde was originally charged by complaint with being an accomplice to the same murder for which the defendant was being tried, * * s.”

Implicit in this allegation are lack of knowledge on the part of the defendants; knowledge on the State’s part that neither the defendants nor their attorney knew that Carrie Lee Hyde had been charged; and the wilful concealment of that information.

Carrie Lee Hyde had been arrested the same night as the defendants Cummings and Robinson and charged with “accountability of murder.” She was released on bond, and the charge was stricken with leave to reinstate some 2 months before trial. At the post-conviction hearing, the assistant public defender who represented all the defendants at trial testified that neither his clients nor his co-counsel nor the prosecutors advised him that Miss Hyde had been so charged; and that he first learned of that fact some 2 years after the original trial. He also testified that he asked the defendants what they knew about Carrie Lee Hyde.

Officer Gerald Slattery testified that he made the police reports following the arrest of the defendants and the fact that Carrie Lee had been charged with accountability of murder was in the police report. That report which was in the possession of the investigating officer at the trial, indicated that the charge had been placed against her for her protection because she was in fear of her life.

Officer Richard Bedran testified that Carrie Lee Hyde, Cummings and Robinson appeared together the day after the arrest in Branch 49 of the Circuit Court, Municipal Division. At that time, Cummings and Robinson were denied bail, but Carrie Lee Hyde was released on an individual bond.

At the orginal trial, when being cross-examined by the attorney for the three defendants, Carrie Lee Hyde said, “I have never been in jail but once and that was when they locked me up for this.” (Emphasis added.)

At the outset we observe that the burden of proof is on the petitioner to establish a violation of his constitutional rights. Further, at the post-conviction hearing, the court may consider what transpired at the trial. And it is his function alone to determine the credibility of witnesses and the weight to be given their testimony. We judge, therefore, that a factfinder could properly have concluded that the petitioners had failed to prove that they were unaware of the fact that Carrie Lee Hyde had been charged with accountability. He could have concluded that the assistant State’s Attorneys trying the case could justifiably have assumed that the defendants or their attorneys were aware of the fact that she had been charged, thereby negating any inference of wilful suppression of evidence. And he could also have concluded that the defense made a tactical decision not to inquire about the charge lodged against her to avoid any possible subsequent explanation by the State that she had been charged for her own protection and because she was in fear of her life. Significantly the State’s explanation was buttressed by the fact that the charge was lodged against her after she made her statement, which was substantially the same as her testimony. That statement, made in the presence of Cummings and Robinson, was the only evidence against Carrie Lee Hyde. It clearly exculpated her and was insufficient to sustain a finding of accountability for murder.

Since Brady v. Maryland (1963), 373 U.S. 83, 10 L.E.2d 215, 83 S.Ct. 1194, was decided for the defendant on the issue of suppression of evidence favorable to an accused on the questions of guilt or punishment, there had existed a question of whether a request or demand for such information was a condition precedent to the obligation to produce it. See People v. Howze (1972), 7 Ill.App.3d 60, 65-66, 286 N.E.2d 507.

After the remandment in the ease at bar (People v. Sawyer (1971), 48 Ill.2d 127, 268 N.E.2d 689), directing an evidentiary hearing, the United States Supreme Court has passed on whether such a demand was a condition precedent and has held that it was. In Moore v. Illinois (1972), 408 U.S. 786, 794, 33 L.Ed.2d 706, 92 S.Ct. 2562, the defendant, inter alia, submitted:

“* * * the alternative claim that a specific request is not an ‘indispensable prerequisite’ for the disclosure of exonerating evidence by the State and that the defense could not be expected to make a request for specific evidence that it did not know was in existence.”

In reversing the judgment only “insofar as it imposes the death sentence,” the Court, at pages 794-795, said:

“The heart of the holding in Bmdy is the prosecution’s suppression of evidence, in the face of a defense production request, where the evidence is favorable to the accused and is material either to guilt or to punishment. Important, then, are (a) suppression by tifie prosecution after a request by the defense, (b) the evidence’s favorable character for the defense, and (c) the materiality of tiie evidence. These are the standards by which the prosecution’s conduct in Moore’s case is to be measured.” (Emphasis added.)

The Appellate Court for the Fifth District came out with substantially the same result (but on other reasoning) in People v. Howze (1972), 7 Ill.App.3d 60, 66, 286 N.E.2d 507.

We therefore conclude that the defendants were not deprived of their constitutional right to a fair trial by the failure of the prosecution to disclose to their counsel that Miss Hyde had been charged with “accountability” for the same murder for which they were being tiled.

This brings us to the third issue, presented only by the defendant Sawyer, viz: whether the fact that neither he nor his attorney was present at a hearing of the respondent State’s rebuttal to certain testimony presented by another defendant, Robinson on the latter’s section 72 petition, deprived Sawyer of his constitutional rights to confront witnesses and to be represented by counsel.

Insofar as defendant Sawyer was concerned, the only issues remanded for evidentiary hearing were those (1) concerning Miss Hyde’s alleged prior police record and the various attorneys’ knowledge of it, and (2) concerning her being charged with “accountability” for the same murder and their attorneys’ knowledge of that fact. No issue as to overall truth to Miss Hyde’s testimony was, insofar- as Sawyer was concerned, before the trial court.

Robinson, on the other hand, had pending and undetermined a section 72 petition which included, as Paragraph 6, the claim that Miss Hyde had, during the 1967 trial, told a Miss Lizzie Farr and a Miss Bernice Hemy that she was going to have to testify against the defendants un-trathfully or go to jail herself and his attorney Gaynor had put the said two so-called “missionary workers” on the stand to testify that they were in the courtroom during a recess in the 1967 trial and heard Miss Hyde say that she hadn’t seen the robbery and was only testifying against the defendants because if she didn’t, she would go to jail. On cross-examination, one (Lizzie Farr) admitted that she had kept quiet for some 2 years and said that another such worker (Bernice Hendricks) was with her at the time. The latter echoed the first’s testimony but on cross-examination admitted that she had not been in the Criminal Court at 26th and California and had instead, been at 61st Street.

It was in rebuttal to this testimony on Robinson’s section 72 petition that the State put in rebuttal testimony by Gino Divito, one of the original prosecutors to the effect that Miss Hyde was not threatened by him or anyone else to his knowledge and that her testimony at the trial was in accordance with her earlier statement to him. It was then stipulated that James Schrier, the other original prosecutor would testify to the same effect, and that no threats were made by the prosecution.

As a result, the defendant Sawyer was not involved and had no right to attend the hearing, which did not concern his case on remand from the Illinois Supreme Court on other issues. We therefore conclude and hold that the defendant Sawyer was not deprived of any constitutional rights to confront witnesses or to be represented by counsel when certain rebuttal testimony, pertinent only to the section 72 petition of defendant Robinson, was introduced in the absence of him and his counsel.

In concluding, we cite our supreme court’s comment in People v. Watson (1972), 50 Ill.2d 234, 236, 278 N.E.2d 79, that:

“In post-conviction proceedings the burden is upon the petitioner to demonstrate that he has been denied his constitutional rights. (People v. Smith, 45 Ill.2d 399.) To facilitate such a showing section 122 — 6 (Ill. Rev. Stat. 1969, ch. 38, par. 122—6) permits the court wide latitude in hearing evidence either by affidavits, depositions or oral testimony. Where witnesses are presented, we have held that the credibility and weight to be given the testimony is a matter to be determined by the trial judge and that determination is not to be questioned unless it appears to be manifestly erroneous. People v. Logue, 45 Ill.2d 170,174; People v. Downen, 45 Ill.2d 197, 201.”

Judgment affirmed.

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


author: Mr. JUSTICE THOMAS J. MORAN Mr. PRESIDING JUSTICE GUILD Mr. PRESIDING JUSTICE T. MORAN,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Tom Dickerson, Defendant-Appellant.
    (No. 72-214;
    Second District
    March 6, 1974.
    GUILD, P. J., speciaUy concurring.
    Welsh, Holmstrom, Hyzer, Jacobson & Worden, of Rockford, for appellant.
    Phillip G. Reinhard, State’s Attorney, of Rockford, for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Defendant was sentenced to 1 year probation after a jury found him guilty of violating section 16 — 1(d)(1) of the theft statute (Ill. Rev. Stat. 1971, ch. 38, §16 — 1(d)(1)) which states that a person commits theft when he knowingly:

“(d) Obtains control over stolen property knowing the property to have been stolen by another or under such circumstances as would reasonably induce him to believe that the property was stolen, and
(1) Intends to deprive the owner permanently of the use or benefit of the property; * *

The indictment, as drawn, recites that defendant:

“* s * committed the offense of Theft, in that he, knowingly obtained control over stolen property; (naming and describing certain snowmobiles) having a value exceeding One Hundred Fifty Dollars ($150.00), said property being the property of Arctic Enterprises, Inc., a corporation, under such circumstances that would reasonably induce him to believe that the property was stolen and thereby intending to deprive the said Arctic Enterprises, Inc., a corporation, permanently of the use or benefit of said property, in violation of Paragraph 16-ld, Chapter 38, * *

While many contentions of error have been raised, only one issue need here be addressed. The defendant does not attack section 16 — 1(d) per se as unconstitutional, but claims that he was denied due process of law by the manner in which the section was applied to him in the indictment; that by utilizing a partial verbiage of section (d), the indictment failed to charge him with the essential elements of the offense (or, stated differently, that the indictment should have included the phrase “knowing the property to have been stolen by another”). The State’s position is that the fundamental elements of theft are present, i.e., that the defendant knowingly received stolen property and intended to permanently deprive the owner of its use or benefit.

Committee Comments (S.H.A. ch. 38, § 16 — 1) state:

“While the method by which unauthorized control is obtained or exerted is immaterial in subsection (a), and probably, in conjunction with one of the subsections (1), (2), or (3), would cover all forms, of theft, the Committee felt that such extreme codification might be too concise, and possibly create some problems of application, in view of the large body of statutory material and offenses it is intended to replace. [Subsection (d) was] added, therefore,, to cover specifically situations which, at first glance, might be considered not covered by subsection (a). Such situations include * * * receiving stolen property * * V

Prior to 1967, section 16 — 1(d) read, “* * * obtains control over stolen property knowing the property to have been stolen by another * * Since actual knowledge is rarely susceptible of direct proof, case law developed the rule that guilty knowledge could be established by proof of circumstances which would induce belief, in a reasonable mind, that the property had been stolen (People v. Grodkiewicz, 16 Ill. 2d 192, 197 (1959)). In 1967, the legislature codified this case law by adding to section 16 — 1(d), “* * * or under such circumstances as would reasonably induce him to believe that the property was stolen."

The nature of the crime here is receiving stolen property (theft). The essential elements of the crime as here charged are: (1) that the property has, in fact, been stolen by a person other than the one charged with having received it, (2) that the one charged with receiving it has actually received the property stolen or aided in concealing it, (3) that the receiver knew the property was stolen at the time of receiving it, and (4) that he received the property for his own gain or to prevent the owner from again possessing it. People v. Stewart, 20 Ill.2d. 387, 392 (1960).

We are aware that by utilizing the language of section 16 — 1(a) in combination with any of tire subsections (1), (2) or (3), an indictment validly charges “receiving stolen property”. (People v. Marino, 44 Ill.2d 562, 576 (1970).) Under that section, only two elements need be charged and proved. In the instant case, however, the State did not elect to charge the defendant under section (a), rather chose section (d), but then employed only a portion of that section. By its election, it became necessary for the indictment to set forth all of the essential elements requisite to section (d).

We find that the verbiage of the 1967 amendment is insufficient to infer that the property was stolen by another, and that the amendment’s language is intended merely as a restatement of the phrase, “knowing the property to have been stolen.” Thus, under our reading of the statute, we conclude that essential element No. 2 is satisfied by tire indictment’s verbiage, “knowingly obtained control over stolen property”; element No. 3 is satisfied by the words, “under such circumstances as would reasonably induce him to believe the property was stolen”; and element No. 4 is satisfied by establishing that he was “intending to deprive [the owner] permanently of the use or benefit of such property.”' The indictment does not accommodate element No. 1, for nowhere is it alleged that the property was stolen by another.

It is jurisdictional that if a criminal conviction is to be upheld, the indictment must charge a crime (People v. Edge, 406 Ill. 490, 494-495 (1950); People v. Harris, 394 Ill. 325, 327 (1946)), and must contain the nature and elements of the offense in order that the defendant may fully prepare a defense and be afforded the constitutionally intended protection against double jeopardy. (People v. Griffin, 36 Ill.2d 430, 432-433 (1967).) In the instant case, the indictment, drawn upon the conclusional premise that the property was stolen, fails to allege that it was stolen by a person other than the one charged with receiving such property and, by this omission, creates the presumption that the possessor stole the property himself. Since one person cannot be both the thief and the receiver of stolen property nor receive stolen property from himself, the fact that the property received was stolen by another was an essential element to be alleged and proved. (People v. Ensor, 310 Ill. 483, 484-485 (1923); People v. Dalke, 336 Ill. 446, 448-449 (1929); People v. Harris, 394 Ill. 325, 329-330 (1946); People v. Devore, 402 Ill. 339, 341-342 (1949); People v. Malone, 1 Ill.App.3d 860, 863-864 (1971).) Lacking this element, the indictment failed to charge the offense of receiving stolen property under section 16 — 1(d). A conviction under an indictment which does not charge an offense is void. People v. Edge, 408 Ill. 490 (1950).

The judgment is, therefore, reversed.

Judgment reversed.

SEIDENFELD, J., concurs.

Mr. PRESIDING JUSTICE GUILD

specially concurring:

I concur in the result reached in the opinion by my learned brethren but do not agree with the reasons expressed therein.

I feel that the majority has misconstrued the efficacy of section 16— 1(d) in arriving at a conclusion not urged by the defendant. The omission of the words “stolen by another” in the indictment does not create the presumption that defendant had himself stolen the property from the owner. The use of the words “* * * knowingly obtain control of stolen property * * * under such circumstances that would reasonably induce him to believe that the property was stolen * * •” (emphasis added) in the indictment clearly implies that when defendant obtained control of the property in question (in any manner whatsoever), the property had already been stolen by another. That is the plain and ordinary meaning of the indictment.

I believe tire majority may be confusing what can and cannot be reasonably implied from evidence introduced at trial with what may be implied from the clear phrasing of the indictment. At trial it is not enough for the prosecution to merely show that the property in question was stolen property and that the defendant was in possession of that property in order to prove the offense of theft under 16 — 1(d) (the former offense of receiving stolen property). (People v. Baxa (1972), 50 Ill.2d 111, 277 N.E.2d 876.) The defendant’s unexplained possession of stolen property soon after a theft is evidence that the defendant stole the property himself but is not evidence of defendant’s receiving stolen property knowing it to have been stolen. (See People v. Malone (1971), 1 Ill.App.3d 860, 275 N.E.2d 236, and the cases cited therein.) However, the phraseology of the indictment herein permits a reader of the indictment to find, even after only a cursory reading, the necessary elements of the offense, i.e., that the property was already stolen by another when the defendant received it.

While it may be true that the addition of the words "stolen by another” would make the indictment more explicit, the addition of these words would only be grammatically redundant and mere surplusage legally.

The indictment, therefore, was sufficient to charge tire defendant with an offense under 16 — 1(d)(1).

After a thorough examination of the record, I do not believe that the evidence produced at trial was sufficient to find the defendant guilty beyond a reasonable doubt. For this reason I, too, would reverse the defendant’s conviction.

SUPPLEMENTAL OPINION

Mr. PRESIDING JUSTICE T. MORAN,

delivered the supplemental opinion of the court:

We allowed the State’s petition for rehearing in which it is claimed that our opinion "seems to revert to the strict technical requirements of pleadings of a bygone day.” The rule of law, established by our legislature, is that “a charge shall * * * allege the commission of an offense by: s * * setting forth the nature and elements of the offense charged.” (Ill. Rev. Stat. 1973, ch. 38, § 111 — 3(a)(3); see also U.S. Const, amend. VI and Ill. Const. (1970), art. I, § 8.) In considering the sufficiency of a charge, the courts have established a judicial guideline that finds a charge sufficient if it " states specifically the elements of the offense with sufficient particularity to apprise the accused of the crime charged and to enable him to prepare his defense and permit a conviction or acquittal to be pleaded in bar of a subsequent prosecution for the same offense * * (People v. Grieco, 44 Ill.2d 407, 409 (1970).) The judicial guideline does not replace the legislative mandate but is instead a result of the mandate. Our opinion is a reaffirmation of the legislative mandate with due regard to the judicial guideline and it in no way alters the requirements of either.

The petition further asserts that we erred by finding that the nature of the crime here is receiving stolen property. Citing People v. Marino, 44 Ill.2d 562, 576 (1970), the State claims that such crime no longer exists in Illinois. (That argument, however, is based upon semantics rather than substantive law; c.f., People v. Baxa, 50 Ill.2d 111 (1971), a more recent case involving some of the necessary elements under section 16 — 1(d) (1).) Marino did not eliminate the crime of receiving stolen property. It held that “the conduct specifically proscribed in subsection (d), often termed receiving stolen property’, is not a separate offense in Illinois. It is included within subsection (a) * * Marino did not address the question of whether an indictment drawn under subsection (d) was sufficient to charge a crime under subsection (a).

The State correctly sets forth that under section 16 — 1(a) the essential elements of theft are only that the defendant knowingly obtained or exerted unauthorized control over the property of the owner and that he intended to deprive the owner permanently of its use or benefit. From this basis, the State progresses to the conclusion that if the words of the indictment herein are sufficient to charge a crime under section 16 — 1(a) (1), the indictment is legally sufficient and any additional language (with reference to section 16 — 1(d) (1)) can be treated as surplusage.

Comparing the language of section 16 — 1(a)(1) and the instant indictment, we find that the word “unauthorized” is missing from the latter. (In Marino, where the charge under (a) was held to include (d), the word “unauthorized” was in the indictment.) We are aware of but disagree with cases in which the actual thief has been charged with theft and the word “unauthorized” has been viewed as not so essential that its absence would render the indictment void. (People v. Geary, 8 Ill.App.3d 633, 634-35 (1972); People v. Hayes, 133 Ill.App.2d 885, 887 (1971); People v. Wade, 131 Ill.App.2d 415, 417-19 (1970).) Unless an indictment aUeges that the conduct of the one charged is “unauthorized,” a citizen, who by legal means obtains control over the property of the owner and intends to deprive the owner of its use, could be charged with theft. “Unauthorized,” therefore, becomes essential to a charge under subsection (a) in that it distinguishes the criminal circumstances under which control may be obtained or exerted from totally innocent circumstances. (See People v. Stewart, 3 Ill.App.3d 699, 701-02 (1971).) Our position is supported by the Committee Comments to section 16 — 1 which state, “Note in subsection (a) that such control must be unauthorized’.”

In the instant case we believe the phrase “under such circumstances as would reasonably induce him to believe the property was stolen” is sufficient to indicate that the conduct was indeed unauthorized. The statutory reference to subsection (d) would not, of itself vitiate the indictment. People v. Adams, 113 Ill.App.2d 276, 283-84 (1969).

By the use of the surplusage rule it can be said that there remains sufficient verbiage in the instant indictment to sustain a charge under subsection (a), but this does not alter the fact that defendant was not charged under that section. There are significant distinctions between the nature and elements of subsections (a) and (d). Under (a), the State is not required to plead or prove that a person other than defendant had stolen the property or that defendant knew at the time he received the property that it had been stolen. By definition, tire charge under subsection (a) is a continuing offense. (See sections 15 — 7 and 15 — 8 of the Criminal Code, Ill. Rev. Stat. 1971, ch. 38, § 15 — 7 and § 15 — 8.) Consequently, a party who innocently comes into possession of stolen property and later Ieams that it was stolen, but, upon learning, continues possession, can be charged under subsection (a). Under (d), the State must plead and prove that the property was stolen by another and that at the time defendant received the property he knew or reasonably should have known that the property was stolen.

The record in the instant case reveals that both the State and defendant proceeded throughout the trial on the basis that the crime charged was section 16 — 1(d), receiving stolen property. In reliance on the verbiage of the indictment, defendant’s primary defense was that at the time he received the property he did not know nor were the circumstances such that he should have known that the property had been stolen by another. Closing arguments by both par-ties and instructions to the jury all dealt with the crime of receiving stolen property as charged under subsection (d). Defendant had no notice or reason to prepare a defense against a charge under subsection (a).

Having elected to indict and prosecute defendant under subsection (d), basic justice requires that the State be bound to plead and prove the elements of that charge. We adhere to the majority opinion which found the indictment fatally defective for failing to include an element essential under section 16 — 1(d): i.e., that the property had been stolen by a person other than the one charged.

SEIDENFELD, J., concurs.

GUILD, P. J., adheres to his special concurrence.


author: Mr. JUSTICE RECHENMACHER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Thurman L. Holt, Defendant-Appellant.
    (No. 73-215;
    Second District
    August 28, 1974.
    Cuve Glosser, of Rochelle, for appellant.
    Patrick E. Ward, State’s Attorney, of Dixon (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Opinion by

Mr. JUSTICE RECHENMACHER.


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert L. Lowder, Jr., Defendant—(Delcina Purtle, Petitioner-Appellant.)
    (No. 73-214;
    Third District
    August 23, 1974.
    Robert L. Silberstein, of Peoria, for appellant.
    Robert A. Downs, State’s Attorney, of Lewistown, for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Delcina Purtle, petitioner-appellant, posted $5000 as bail bond on behalf of Robert L. Lowder. The bail bond was subsequently forfeited. Petitioner filed a motion praying that the bail bond be returned to her. Her motion was denied and she appeals. She urges that the State did not comply with the statutory procedures as found in section 110 — 7(g) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, ft 110— 7(g)), for forfeiture of bail bond, by not giving her notice of the forfeiture proceedings.

We find that petitioner had no standing to bring the action to recover the bail bond and therefore she has no standing to appeal. The statute in question does not extend to her the right to be notified that bail bond had been forfeited. The statute specifies that as far as the State is concerned, the 10-percent bail-bond deposit is posted by the accused. The statute requires that notice be given only to the accused since he is entitled to any refund in the event of compliance with the terms of bail. When petitioner furnished the 10-percent deposit, she did so at her own risk. The bail bond serves as a deterrent to flight and if the defendant does indeed flee, then the bond is forfeited.

Accordingly, petitioner’s appeal is dismissed.

Appeal dismissed.

tiMITH, P. J„ and SIMKINS, J., concur.


author: Mr. JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Linwood Chattic, Defendant-Appellant.
    (No. 73-106;
    Third District
    August 21, 1974.

      Stephen Hurley, of State Appellate Defender’s Office, of Ottawa, for appellant.
    L. E. Ellison, State’s Attorney, of Morrison, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendant, Linwood Chattic, was found guilty of armed robbery in a jury trial in the Circuit Court of Whiteside County. He was sentenced to a term of imprisonment of from 7 to 21 years.

On appeal in this court, defendant challenges the admission into evidence (when offered by the State) of an inculpatory oral statement made by him to police following defendant’s arrest. The oral statement was recorded and thereafter transcribed in typewritten form. Chattic refused to sign the written document when it was tendered to him for his review and signature. A police officer who was present when Chattic made the oral statement testified that the written transcription was an accurate reproduction of the oral statement. After its admission in the trial court, an officer read the written transcript to the jury.

Substantial additional evidence linked Chattic to the commission of the crime. Eva Carey testified that on November 13, 1972, while she was baby-sitting at the residence of Edward Williams, two masked men, one Mexican and the other black and wearing a ski mask, entered the house. Hie black man held a gun on her while the Mexican took Mr. Williams’ coin collection from a cabinet and placed the coins in a laundry basket. Lucille Boehm, a neighbor, testified that at the time of the robbery, she saw an automobile with license number SL 5115 parked in front of her garage. She then saw two men, one of whom was carrying a basket, enter the car and drive away. Williams identified the coins and the clothes basket in court as having been taken from his house. The police officers identified the coin collection, the laundry basket, the ski mask, and other clothing, as items which they had discovered at, and taken from, the residence of defendant Chattic. The automobile bearing license number SL 5115 was parked in front of the Chattic residence at the time of defendant’s arrest. The automobile was identified, the items were discovered, and defendant was arrested within an hour following the robbery.

Prior to the trial, the defense filed a motion for discovery which was granted by the court and in which the State was requested to furnish defendant with, among other things, “all written and recorded statements and the substance of any oral statements made by the defendant and a list of witnesses to the making and acknowledgment of the statements” and “5 * 9 * any information or material within the prosecution’s

possession or control which tends to negate the guilt of the defendant as to the offense charged * * In response to the motion for discovery, the State supplied the defense with a photocopy of the transcribed statement. In answer to paragraph 5 of the motion, the State responded, “none.” The original of the transcribed statement contained (added after the statement portion) the following recital:

“I have read the foregoing statement consisting of three pages and the same is true. Dated the 16th day of November, 1972. Signed: refused to sign, Linwood N.M.N. Chattic.”

The signatures of the two police officers appeared next to the sentence referred to. The sentence was not part of defendant’s statement. The photocopy of the transcript, which the state gave to the defense in response to the motion for discovery, failed to include the sentence referred to, which indicated that Chattic had refused to sign the statement which also contained the signatures of the police officers. At the trial, when the State offered the transcript in evidence, the recital to the effect that defendant refused to sign was excised and removed before admission into evidence of the statement.

Defense counsel stated that he first learned, during the trial, of Chat-tic’s refusal to sign the transcribed statement. Counsel for defendant also said that he was surprised by this revelation and that, had he known prior to trial, the defense strategy would have been substantially different. The recital to which we have referred in this opinion was not placed in evidence in any manner.

The defendant objected at the trial to the transcript and alleged that the State had failed to comply with defendant’s discovery motion. It was asserted that the failure of the State to tender that appendage to the statement which we have set forth, including the notation of the refusal of defendant to sign, in effect caused the State to fail to disclose evidence which would tend to negate the guilt of defendant. Defendant moved to suppress the statement. Following a recess, the court allowed the State to submit in evidence the transcript with the portion indicating Chattic’s refusal to sign excised from the transcript. The court also denied defendant’s motion to suppress.

Defendant claims that he was denied due process of law because evidence favorable to him was wrongfully concealed by the State and kept from his use and, also, that he was deprived of due process of law because the prosecutor lied when the prosecutor represented to the jury that the transcription had not been altered. We do not believe that these contentions are sound.

It is clear that the effect of certain evidence, which is known to the prosecution and not the defense, depends not upon whether such evidence is deliberately or inadvertently undisclosed, but rather (1) whether the State was obliged to disclose it, and, if the State was so obliged, (2) whether the failure to disclose was material to guilt or innocence or prejudicial to the defendant. (See Brady v. Maryland, 373 U.S. 83, 87, 10 L.Ed.2d 215, 83 S.Ct. 1194.) People v. Dixon, 19 Ill.App.3d 683, 312 N.E.2d 390, which was cited by defendant, is distinguishable from the present case principally for the reason that there was a complete failure in the Dixon case to deliver a statement or the name and address of a certain witness to the defendant. The statement in that case was clearly favorable to the defendant, since the statement of one Wendell Robinson gave a version of the incident which differed in several important details from the testimony of the key witness for the State.

In the instant case, the notation which was placed at the end of the statement by a police officer, to the effect that Chattic had refused to sign the statement, was not part of Chattic’s statement itself, and accordingly was not embraced within the material described by Chattic’s discovery motion. The motion requested either verbatim or in substance all statements made by Chattic. The fact that the officer’s notation appeared on the transcript might have been material for the purpose of impeaching those officers if they had testified that Chattic signed the transcript. They did not so testify. On the basis of the record before us, the failure of the prosecution, in response to the discovery motion, to disclose the fact of the officer’s notation did not justify the relief of suppression or the sanctions requested by defendant. It is noted in the record that the State’s Attorney stated that this appendage and notation with respect to the failure of Chattic to sign came to the attention of the prosecution for the first time when defendant learned of it. This would not be an excuse if, in fact, the notation was part of tire statement but, as we have noted, it was not part of the statement but simply a notation made by he officer to indicate that the statement was not signed. Any such collateral notation could not have been qualified as part of the statement if offered by the prosecution. It is true that defendant had stated to his attorney that he signed something and that the attorney may have interpreted that to mean that he signed the statement. Following the presentation of the statement, however, the court had adjourned overnight and defense counsel had an opportunity then to assess the impact or value of the notation and to adapt his trial strategy to the situation as it then existed. It is not clear what change in strategy could have conceivably helped defendant in this cause, in view of the record in this case, by virtue of the simple circumstance that defense counsel would have known prior to trial that Chattic had refused to sign the statement.

The fact that Chattic refused to sign the transcript is distinguishable from the fact that the officer noted that he had refused to sign it. Presumably, this fact was known to defendant himself since he could have known that he did not sign the statement and could not have been prejudiced by the State’s failure to disclose a fact which was known to defendant himself. (See People v. Milligan, 107 Ill.App.2d 58, 245 N.E.2d 551, 555; People v. Dixon, 19 Ill.App.3d 683, 312 N.E.2d 390; People v. Raymond, 42 Ill.2d 564, 248 N.E.2d 662, 665; People v. Richards, 120 Ill.App.2d 313, 256 N.E.2d 475, 495-496.) It is also notable that the defendant and defendant’s counsel could readily see from the statement submitted that there was no signature or indication that it had been signed by anyone. The trial court, in accordance with Rule 415 of Illinois Supreme Court was empowered to refuse to suppress the statement and to proceed as the trial court did. We find no reversible error in the ruling of the trial court in this respect.

Defendant likewise contends that the prosecutor had lied or misrepresented when he stated to the jury that defendant’s statement had not been altered. Defendant’s entire statement consisted of questions and answers in response to the questions. There was no evidence whatsoever of record to indicate that the written transcript which was submitted to the jury was other than a trae and accurate transcription of the questions and answers. As we have herefore observed, neither the refusal of defendant to sign the transcript nor the fact that police officers had noted at the end of the transcript that defendant had refused to sign, was a part of the statement itself. Certainly, the prosecutor was not misrepresenting when he stated that the statement itself which was admitted into evidence had not been altered.

There was no contention that the transcript itself was altered or improperly obtained from defendant. It was not contended that the statement was involuntary or coerced in any manner. So far as the record is concerned, the statement was voluntary and was given after proper warnings had been given to defendant before the statement was taken. The absence of defendant’s signature on the transcript of the statement did not render it inadmissible (People v. McNeil, 99 Ill.App.2d 273, 240 N.E.2d 721).

As we have noted, we do not believe there is reversible error in this cause arising from the response of the State’s Attorney to the motion for discovery or to the introduction of the statement in evidence. The only aspect of the case remaining to be considered, is noted from the circumstance that on cross-examination, defense counsel was prevented, by rulings by the trial court, from bringing out the fact that defendant refused to sign the statement. Objections were sustained and the court cautioned defense attorney not to ask any further questions before the jury which might reveal that the statement had contained the additional recital. In this action, the trial court was in error. Defendant should have been permitted to elicit the fact that defendant had refused to sign the statement.

We note that defense counsel did, however, argue to the jury that there was no signature of defendant on the statement. While we would normaUy be inclined to remand a cause in which the defendant had been prevented from establishing the fact that defendant had refused to sign a statement, we believe that the jury in this case was aware of such fact as a result of argument in the cause. Our principal reason, however, for affirming this cause, despite the ruling of the trial court referred to, is based on the record which clearly shows that evidence established the guilt of defendant, and the introduction of the statement was, as the prosecution expresses it, simply “icing” on the cake. For the reasons stated, the judgment of the Circuit Court of Whiteside County is affirmed.

Affirmed.

SCOTT, P. J., and DIXON, J., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. James Allen Gualandi, Defendant-Appellee.
    (No. 12044;
    Fourth District
    August 28, 1974.
    Paul R Welch, State’s Attorney, of Bloomington (Michael J. Flynn, Assistant State’s Attorney, of counsel), for the People.
    Costigan, Wollrab, Fraker & Wochner, of Bloomington (Robert W. Neirynck, of counsel), for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

The prosecution appeals from an order of the trial court suppressing certain items of marijuana and narcotics seized upon the execution of a search warrant. The items suppressed were evidence seized upon the authority of a second warrant issued for a second search in the same building. It is necessary to state the events leading to the issuance of such warrant.

On the evening of November 5, 1971, a warrant for the search of described premises was issued upon the complaint and affidavit of the State’s Attorney. Both the complaint and warrant delimited the search in the described building to “[t]he entire first floor including all five rooms and the hallway area immediately inside the front door, which said area includes the steps to the second floor * *

This warrant was executed in the early hours of November 6 by the arrest of the defendant and the search of the described area. The motion to suppress the items seized at this time was denied.

Upon a hearing on the motion to suppress here at issue the following facts were agreed to before the trial court. As the officers approached the house to execute the warrant described, it was noted that some of the upstairs rooms were illuminated. It is not clearly stated, but it appears that the downstairs lights were also on.

The officer in charge determined, or it was otherwise agreed, that two officers were “to check the second floor for people to protect the law enforcement officers engaged in executing the search warrant.” Upon entering the building the officers, Shepherd and Gibson, went up the stairs and traversed the hallway of the second floor and through open doors to the several rooms observed items that appeared to be marijuana, both in cigarettes and raw, a scales and certain pills. In one room they observed a man with the makings of a marijuana cigarette, arrested him and took him downstairs. Based upon these observations, Shepherd and Gibson prepared a complaint and procured a second warrant authorizing the search of the second floor of the building and this warrant was executed.

Upon such facts, the trial court ordered that the items seized from the second floor under this second warrant be suppressed, concluding that the officers exceeded the authority in the initial warrant by going to the second floor and that such acts were not justified or required to protect the searching officers.

The State’s Attorney argues that the issue is the reasonableness of the officers going to the second floor to ascertain the presence of persons who might interrupt the searching officers, and that if the former were reasonably present on the second floor, the observation of items of contraband were not illegal.

The State’s Attorney urges that the facts are analogous to those in Ker v. California, 374 U.S. 23, 10 L.Ed.2d 726, 83 S.Ct. 1623, which is said to be cited with approval in People v. Macias, 39 Ill.2d 208, 234 N.E.2d 783. In each case there was probable cause for an arrest without a warrant. In each case it was contended that the search incident to such arrest was vitiated by the means of entry. In Ker, the officers had probable cause to arrest for possession of marijuana. They obtained a key from the landlord and entered defendant’s apartment quietly and discovered the contraband in plain view as an incident of the arrest. The issue was whether “[t]he method of entering the home may offend Federal constitutional standards of reasonableness and therefore vitiate the legality of the accompanying search.” The Supreme Court noted the reasons supporting a conclusion that the marijuana might be disposed of or destroyed before the arrest could be made and concluded that the method of entry was not unreasonable under the standards of the 4th amendment.

In Macias, there was probable cause to arrest defendant without a warrant for a jewel robbery. The officers posed as gas inspectors to gain entry to defendant’s apartment where they awaited his return. After the arrest for the jewel robbery, the search of the defendant at the jail disclosed marijuana. The trial court denied his motion to suppress the marijuana. Defendant argued that the entry by trickery was the equivalent of a breaking in which vitiated the arrest and subsequent search. The reviewing court noted that in the jewel robbery a police officer had been shot and hostages had been taken so that defendant was known to be dangerous. Moreover, the news of the arrest of a member of the robbery gang had been broadcast and defendant could reasonably be expected to flee. It was held that under such exigent circumstances the entry was not unreasonable under either the Illinois or Federal constitutions.

From such cases, it is here argued that the dispatch of two officers to the second floor was a reasonable exercise of discretion, that the officers were reasonably present in the hall and that the observation of the items described as being in plain view in the several rooms were not illegally obtained. The claim is that the officers being lawfully present for reasons justified by exigent circumstances, they were able to observe contraband in plain view. While we do not now decide the point, it appears that upon the State’s Attorney’s argued premise, the procuring of a second search warrant was unnecessary to seize contraband discovered.

Section 108 — 9 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 108 — 9) provides that in the execution of a search warrant the executing officer may reasonably detain any person on the premises at the time to protect himself from attack or to prevent the disposal or concealment of matters described in the warrant. The Committee Comments note that the cited statute and its language "any person on the premises” would include the limits prescribed in the warrant itself and concludes that it provides the officer “a clear outline of his power in executing the warrant.”

The complaint for the issuance of the first warrant may be presumed to define the limits of probable cause. It is not claimed that the reconnaissance on the second floor was designed to prevent the destruction of the items authorized to be seized by the warrant.

In Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022, there is a detailed analysis of the circumstances wherein the discovery of objects in plain view may be said to have a legal significance. Thus, in a search under warrant for specified items, contraband or other evidence not specified may be seized. Again, where the “initial intrusion” is justified by a recognized exception to the warrant requirement as in ‘hot pursuit,” things observed in plain view may be seized. In a search incident to arrest there may be a search for weapons or other evidence within the immediate control of the arrestee to prevent destruction of such evidence, or to protect the arresting officers. (Chimel v. California, 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034.) In Coolidge (403 U.S. at 465 N. 24), it is said that the evidence discovered in plain view, although outside of the immediate reach of the arrestee, may be seized. Coolidge decrees that no intrusion is justified without a careful determination of necessity and that plain view alone does not justify a warrant-less seizure.

We must conclude that the intrusion which permits observations on plain view sufficient to support the issuance of a search warrant is governed by the same limitations which control the intrusion upon which evidence in plain view may be seized without a warrant.

Upon the facts presented we conclude that it was appropriate for the searching officers to guard the area of authorized search, but that there is no such showing of a known and eminent hazard to the safety of those searching or such an exigency of “hot pursuit” (People v. Apodaca, 118 Ill.App.2d 199, 255 N.E.2d 51) as to make it reasonable to go beyond the defined area of the warrant.

The order of the trial court is affirmed.

Affirmed.

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


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Louis Brown, Defendant-Appellant.
    (No. 12359;
    Fourth District
    August 28, 1974.
    John F. McNichols, of State Appellate Defender’s Office, of Springfield, for appellant.
    Roger Thompson, State’s Attorney, of Lincoln (Michael Prall, of Circuit Attorney Project, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

In December 1970, the defendant William Brown entered a plea of guilty to the offense of burglary in the circuit court of Logan County and was sentenced to a term of 2 to 5 years in the penitentiary. No appeal was taken. In August 1972, the defendant filed a pro se petition for post-conviction relief which was denied on June 13, 1973, by the trial court without an evidentiary hearing. From this order, the defendant appeals alleging (1) that the conditions and treatment in the county and city jail were inherently and psychologically so coercive that his plea of guilty was not voluntary, (2) that his plea of guilty was not voluntarily and understanding!/ entered into, and (3) that his punishment was excessive and in violation of the 1970 Constitution of the State of Illinois in that it exceeds the limit now imposed for a similar offense.

The argument that the sentence imposed constituted an unfair and improper sentence under the 1970 Illinois Constitution was waived in oral argument and in addition it was not raised in his original petition for post-conviction relief or in his amended petition. Accordingly, it is not before this court for review. (People v. Brouhard, 53 Ill.2d 109, 290 N.E.2d 206; People v. Fuca, 43 Ill.2d 182, 251 N.E.2d 239.) His request therefore for a reduction of sentence must be denied. A charge of ex-cessiveness of sentence raises no issue available under the Post-Conviction Hearing Act and cannot be considered. People v. Ballinger, 53 Ill.2d 388, 292 N.E.2d 400; People v. Null, 13 Ill.App.3d 60, 299 N.E.2d 792.

The defendant asserts that his plea of guilty was not voluntarily and understanding!/ entered into within the meaning of Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709. This argument of the defendant was laid to rest by our Supreme Court in People v. Reeves, 50 Ill.2d 28, 276 N.E.2d 318, and by the United States Supreme Court in McCarthy v. United States, 394 U.S. 459, 22 L.Ed.2d 418, 89 S.Ct. 1166. In discussing Rule 11 of the Federal Rules of Criminal Procedure, the United States Supreme Court in McCarthy stated that the Rule was designed to assist district judges in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary. It was there pointed out that a defendant who enters a plea of guilty “simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury and his right to confront his accusers”. Our supreme court in Reeves said, “We find nothing in Boykin which compels specific admonitions and waivers with respect to the ‘several constitutional rights’ to which McCarthy refers but does not enumerate.” From this we conclude that substantial compliance with Rule 402 does not require a judge to parrot a number of specifically proscribed, formal phrases that would render these constitutional guarantees counterproductive and put in jeopardy the very values that they were meant to preserve. (People v. Anderson, 10 Ill.App. 3d 558, 564, 294 N.E.2d 763, 767-768.) In our judgment, the trial court here meticulously ascertained from the defendant that he was in fact guilty, continued the case on two occasions so that he could think it over and the record demonstrates clearly that the defendant was no stranger to the criminal process or courtroom procedures. We do not believe that substantial compliance with Rule 402 requires the trial court to' engage in a rigid ritualistic litany but only that he ascertain from the defendant that a plea of guilty is voluntarily and understanding^ made. Clearly this was accomplished in this case.

Defendant’s pro se petition alleging a violation of his constitutional rights asserts that his waiver of jury trial was coerced by virtue of the condition of the county jail of Logan County in that “it has inadequate, defective sanitary facilities, inadequate ventilation with deplorable food and serving facilities, and filthy, foul dehumanizing and outright barbarious treatment by the Logan County Sheriffs Department.” Through his petition, he filed his own affidavits in support of these conclusionary statements and recites at length facts and. circumstances during his 93-day stay in the jail involving other occupants of both the city jail and the county jail, and statements made by various deputies to him about what would happen to him, etc., that he became nervous, lost weight, was denied reading material, had no exercise, suffered from a lack of clean and properly ventilated air, that he was unable to sleep and became ill from his nerves and loss of sleep, that he requested to see a doctor and one finally came, and then states that had he been compelled to spend any further time in die county jail, he would have suffered a complete mental breakdown from loss of sleep, etc. The trial court concluded, however, that the conditions described were not coercive, that they failed to reveal any threats of violence directed to the defendant in relation to the progress of his case, that there was no promise of either leniency or threats made or offered to invite a guilty plea, that these conditions were well-known to him and to his counsel prior to a plea of guilty, that he had been transferred from the city to the county jail through the assistance of his counsel, and that there was therefore nothing suggesting that these conditions in any way deprived his plea of guilty of its voluntary nature. It should be pointed out there that the trial court did a rather exhaustive explanation of the defendant’s rights, that the defendant stated unequivocally that he was guilty and stated, “I fully understand what I did, I did do it, and I am guilty.” At the arraignment, therefore, the defendant denied that any promise or threats had been made and acknowledged that his plea was freely and voluntarily made. The court asked him, “No one has made any threats to you to induce you to enter a plea of guilty?” Defendant: “No, Sir.” It seems now strange that where the opportunity was afforded him both to speak and to ask any questions about the court’s admonitions, not one single word was stated about the condition of the jail or any psychological or other influence that might have induced him to plead guilty against his wiU and volition. In fact, he specifically denied them. An examination of this record suggests that no evidentiary hearing was necessary or required. It seems strange that if these conditions induced the guilty plea, defendant’s counsel was not advised of it nor did he supply that counsel with the information he now says coerced the plea. The situation here described if true is far removed from the facts in Brooks v. Florida, 389 U.S. 413, 19 L.Ed.2d 643, 88 S.Ct. 541, where the claim was that the defendant was kept naked and without visitors, or in People v. Dunn, 13 Ill.App.3d 72, 299 N.E.2d 762, where the defendant was kept in solitary confinement without visitors, mail or food until he entered a guilty plea, and where he specifically alleged in his petition that the conditions in the jail were specifically directed at forcing him to plead guilty and were undenied. Trial representation was there inadequate — an important circumstance not present here. In our judgment, the trial court’s decision was correct and in accordance with the principles in People v. Hrebenar, 48 Ill.2d 100, 268 N.E.2d 869.

There appearing to be no error in this record, the judgment of the trial court is affirmed.

Affirmed.

CRAVEN and KUNCE, JJ., concur.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    Robert Faith, Jr., Plaintiff-Appellee, v. Frank Martoccio et al., Defendants—(Frank Martoccio, Appellant.)
    (No. 72-279;
    Second District
    August 8, 1974.

      Rehearing denied September 19, 1974.

      Henry N. Novoselsky, of Levin & Novoselsky, of Chicago, for appellant.
    Thomas P. Sullivan, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Having entered a contract with defendant (Martoccio), plaintiff subsequently brought an action in equity to recover one half the proceeds from the sale and development of a certain 14-acre, 12-lot parcel of realty (hereinafter, the contested property). The matter was initially heard before a special master who rendered findings of fact and conclusions of law favorable to plaintiff and recommended to the trial court that further hearings be held regarding the state of the account between the parties. The trial court entered a decree based upon the special master’s findings and conclusions and held that plaintiff was entitled to an accounting. (For our purposes, we shall refer to the special master’s findings as those of the trial court.) Additionally, the decree contained a finding pursuant to Supreme Court Rule 304(a). Ill. Rev. Stat. 1971, ch. 110A, § 304(a).

Defendant appeals claiming that the trial court erred in its construction of the written contract, in finding that there was a partial novation of that contract and by determining that plaintiff had not materially breached the parties’ agreement.

In November of 1955, plaintiff, on behalf of defendant, secured an option to buy the contested property. On February 10, 1956, plaintiff and defendant entered into the written contract here at issue. The contract’s preamble recited die mutual interest of the parties to procure property for speculation and development; its paragraph (1) described the total land area covered by the agreement. Paragraph (2) set forth certain already acquired properties and stated that these also were for their mutual benefit. Subparagraph 2(A) provided:

“* * * For the sum of $10.00 Dollars and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged tire [defendant] gives to the [plaintiff] the right to purchase an undivided Vz interest in the following described property * * * (legal description here omitted included the description of the contested property) for the same period of time and under the same terms and conditions as specified in the above mentioned option.
It is further understood and agreed by and between the parties hereto that upon exercise of the option on the above mentioned [contested property] that [plaintiff] may * * * in lieu of contributing 50 percent of the monies required under the option agreement * * * assign ail rights titles and interest in Lots 18-19-20-21-22 in block 13 in Hugh M. Cornell’s Cumberland subdivision in Des Plaines, Illinois to [defendant] as security for a loan in the amount of $15,000 dollars, said $15,000.00 dollars to be paid by the [plaintiff] together with an additional $15,000 dollars to be paid by the [defendant] to exercise said option. The [plaintiff] agrees to repay said sum of $15,000.00 dollars to the [defendant] within two years of assignment.”

Subparagraph 2(B) provided that all options were to be obtained in the names of both parties, that titles to all properties purchased were to be held in a land trust and that the parties were to be named beneficiaries to an undivided one-half interest therein. Paragraph (3) provided that the profits and expenses of the venture be equally shared, paragraph (4), that paities should devote equal time to the venture and treat it as a full-time occupation, and paragraph (5), that time was of the essence and that the agreement was to be effective until all properties “shall have been procured, speculated or developed according to the abilities of the parties hereto.”

After signing the contract, the plaintiff tendered to the defendant the contracts for the Cumberland lots. Defendant informed plaintiff that he did not at that time have the money to “close the deal” for the contested property and that it would be necessary to get a 30-day extension on the option. Plaintiff then told defendant that he was working on “a deal” with Metahnasters, Inc., who were interested in purchasing two lots of the contested property, and defendant responded that he could borrow money from the bank on the basis of the Metalmaster contract and then make the loan to plaintiff.

On or about March 26, 1956, plaintiff under the name of Faith Realty Company, entered into a contract to convey title to lots 1 and 2 of' the contested property to Metahnasters, Inc., for $35,100. He secured an earnest-money deposit of $3500, and that amount was placed in plaintiff/ defendant’s joint checking account. On March 27, 1956, defendant obtained a bank loan and, with the proceeds of that loan and additional funds of his own, purchased the contested property for $30,000. Title was placed in a trust with defendant as sole beneficiary.

Thereafter, plaintiff and defendant went to the office of defendant’s attorney. Plaintiff tendered the Cumberland-lot contracts to the attorney and asked him to draw up the assignment of the contracts as collateral for the $15,000 loan. The attorney asked defendant how he felt about this arrangement, and defendant stated that there was no need to draw up an assignment because they had the Metalmaster contract. Accord-to plaintiff, the defendant refused to accept the assignment of the Cumberland lots.

On or about May 28, 1956, the Metalmaster transaction was closed; $23,986.54 was placed in the joint checking account, and $7500 was placed in escrow for street and sewer improvements. On June 22, 1956, the $12,000 bank loan was repaid from the joint checking account.

Upon these facts, the trial court found that the evidence established that the parties had agreed to an alternate method by which plaintiff might supply his capital contribution and that the agreement was a novation that abrogated the requirement that plaintiff deposit $15,000 cash as his share of the capital investment. It also found that the novation relieved defendant of lending plaintiff $15,000 on the security of the Cumberland lots.

Defendant contends that error occurred in construing the parties’ agreement in that the trial court failed to recognize and treat the provisions of subparagraph 2(A) of the agreement as a separate and distinct specific exception to the provisions of the general contract. The preamble of the agreement, together with paragraphs (1), (3), (4) and (5), are overall general provisions. Paragraph (2) is a specific provision applicable to only a part of the overall venture. Subparagraph 2(A) narrows the specific provisions by setting forth the alternatives by which plaintiff could acquire a 50-percent interest in the contested property. In a contract in which there are general and specific provisions relating to the same subject, the specific provision is controlling. (Olson v. Rossetter, 330 Ill.App. 304, 313 (1947), aff'd, 399 Ill. 232 (1948).) The trial court recognized this rule by finding that plaintiff had not complied with either alternative contained in subparagraph 2(A). Defendant, however, has overlooked the fact that the trial court also found that compliance with the provisions of subparagraph 2(A) was unnecessary because a novation between the parties had occurred and the novation was enforceable in lieu of the express provisions contained in said subparagraph.

Defendant contends that the finding of a novation deprived him of all his bargained-for rights without a benefit in return. Although the term novation is generally used where there is a substitute debtor or creditor, a novation has additionally been defined as “the substitution of a new debt or obligation for an existing one, which is thereby extinguished.” The extent to which the old contract has been extinguished is dependent upon an interpretation of the extent to which tire new agreement operates as a discharge. (Printing Machinery Maintenance, Inc., v. Carton Product Co., 15 Ill.App.2d 543, 552 (1957).) The essential elements of a novation are a previous, valid obligation; a subsequent agreement of all the parties to the new contract; the extinguishment of the old contract; and the validity of the new contract. (Kiefer v. Reis, 331 Ill. 38, 43 (1928).) The party seeking to prove the novation has the burden of proof and must establish it by a preponderance of the evidence. (Canale v. Hulcher, 85 Ill.App.2d 9 (1967).) A court of review will not disturb tire findings of the master unless such findings are clearly contrary to the probative force of the evidence. (Patek v. Patek, 263 Ill. App. 487, 498 (1931); Meyer v. Levy, 249 Ill.App. 408, 420 (1928).) It is also the law that at any time before breach of a written contract, parties may, by a new contract, written or oral, change the terms of the old contract. (Hulcher v. Adcock, 25 Ill.App.2d 255 (I960).) Contracts of novation are no different from other contracts in that to be valid and enforceable they must be based on good and sufficient consideration. 58 Am. Jur. 2d Novation § 21 (1971).

In the instant case, the trial court found sufficient consideration for the novated contract in that defendant, “rather than advance his own funds upon the security aforesaid [Cumberland lots], * * * chose to apply funds derived from the sale of certain lots in the subdivision created by the purchase of the [contested property] to Metal Masters [sic], Inc., and by the use of these funds capital was provided for the joint venture. By this means, plaintiff was relieved of the necessity of depositing $15,000 in cash and defendant was relieved of the necessity to advance this sum for plaintiff’s benefit as his [plaintiff’s] share of the capital investment.”

In terms of a pecuniary benefit, the defendant shared in a contract with a face value of $35,100. This contract enabled him to obtain sufficient funds with which to exercise the option to purchase the contested property, to share in tire gross profit of $5100, and to share in the profits from the sale of the 10 remaining lots in the subdivision.

Defendant’s contention that he lost all his bargained-for rights and received no benefit in return is without merit. Subparagraph 2(A) established the intent that plaintiff and defendant would each be responsible for a $15,000 capital contribution; the novation merely altered the method by which the money was to be supplied, not the basic bargain. Rather than lend plaintiff $15,000 in return for an assignment of the Cumberland lots, the defendant chose to apply funds derived from the Metalmasters contract as plaintiff’s capital contribution. Thus, save for the substitutive form of consideration for the loan, the bargain remained unchanged. Under this interpretation, we find that the consideration is legally sufficient. An accounting will give each party proper credit toward the capital investment.

On the presumption that the court’s finding of novation was erroneous, defendant raises two other issues which, in light of our holding, need not be answered.

Defendant claims that the court was in error when it found that plaintiff had complied with the general provisions of the contract and argues that plaintiff should be precluded from obtaining relief because of his failure to comply with paragraph (4) of the general contract. That paragraph states:

“The parties hereto agree to share and share alike and to devote and devote alike their time and services to the procurement, speculation, and development of the properties as herein mentioned. The parties hereto agree to this as a full time occupation.”

The court, having found that all 12 lots of the contested property had been sold, determined that plaintiff had negotiated to have the roadway excavation done, that a “speculation” building was constructed through the efforts of plaintiff, that plaintiff acquired necessary building permits and functioned as general contractor; that plaintiff drew the plat for the 14-acre tract and submitted it to a surveyor whom he authorized to survey the property and lay out the subdivision; that he also contacted the village of Bensenville and had it execute the plat of subdivision; that he recorded the plat, arranged for annexation of the property to the village, obtained bids for sewer and water lines, set up a sales office on the property, offered the property for sale and participated in hearings before the Illinois Commerce Commission. Defendant admits that between the February 1956 execution of the agreement until November or December of that year, plaintiff performed under the general contract in a manner intended by the parties but asserts that the contract was abandoned by plaintiff when he subsequently left the State of Illinois. While evidence revealed that plaintiff was absent from the State during either November or December of 1956, April, May and June of 1957, and August of 1957 through March, 1958, the court expressly found that these absences did not constitute an abandonment of the contract by plaintiff and that both plaintiff and defendant were engaged in other activities aside from developing the contested parcel. Written contracts (entered into by plaintiff, defendant and third parties) evidenced that both plaintiff and defendant were engaged in activities aside from the development of the contested property. Although in some instances absence from the State may be evidence of abandonment of a contract, here such interpretation is negated by plaintiff’s specific acts in furtherance of their contract. The trial court was of the opinion that plaintiff’s activities while in the State constituted compliance with the general provisions of the contract. Without evidence to show that this finding was clearly contrary to the probative force of the evidence, this court will not reverse the previous finding. Recognized distinctions between the capabilities of individuals have clearly established that one individual may accomplish in a few months that which it might take another a year- or more to do. Temporary absence alone is not sufficient basis for finding that the plaintiff failed to perform his part of the agreement or that he had abandoned the contract.

We hold that the trial court was correct in sustaining the masters findings and we, therefore, affirm the judgment.

Judgment affirmed.

SEIDENFELD and RECHENMACHER, JJ., concur.


author: Mr. JUSTICE GUILD

text:
    Joan R. Murphy, Adm’r of the Estate of Robert T. Murphy, Deceased, Plaintiff-Counterdefendant-Appellee, v. James B. Hook, Defendant-Counterplaintiff-Appellant.
    (No. 73-17;
    Second District
    August 28, 1974.

      John B. Graves, Jr., of Elkhorn, Wisconsin, and Korf, Pfiel & Graves, of Rockford, for appellant.

      John A. Leemon, of Mt. Carroll, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

Upon completion of the trial in this wrongful-death case, die jury returned a verdict in favor of plaintiff, Joan R. Murphy, and against defendant, James B. Hook, in the amount of $70,000. Plaintiff sued in her capacity as administrator of the estate of her deceased husband, Robert T. Murphy. On August 7, 1972, the Ogle County circuit comt judge entered the order, based upon the jury’s verdict, from which this appeal has emanated.

Defendant has presented 12 issues for our determination; one of which is whether or not the cumulative effect of error and improper conduct of plaintiff’s attorney during the trial deprived defendant of a fair and impartial trial by jury. After analyzing tire transcript of the trial proceedings with great circumspection we find ourselves in agreement with defendant on this issue. For this reason, our recitation of the facts and disposition of this case will be framed within the perspective of this issue of the cumulative effect of the error.

Perhaps the only matter that was not bitterly disputed in this trial was the fact that plaintiff’s husband was killed in the vehicular collision which precipitated the wrongful-death proceeding. The collision occurred in the late afternoon of August 24, 1969, along route 64, which runs east and west, approximately 4 miles west of Mount Morris, Illinois. Robert Murphy was traveling alone along route 64 in a westerly direction and defendant was driving along the same highway in an easterly direction. Defendant’s wife was riding in the passenger seat of their pickup truck and three Sunday-school students rode in the camper portion of the pickup. The truck was also pulling a boat trailer and boat.

The collision occurred in the westbound lane of the highway. Photographs of the scene, which were taken shortly after the collision occurred, were introduced into evidence by plaintiff. The photographs illustrated that the front of the Murphy station wagon crashed into the right side of the Hook pickup track. Both vehicles, as well as the boat and its trailer, were totally destroyed. Mr. and Mrs. Hook received minor injuries in light of the fatality caused to Murphy; and the three students riding in the camper portion of the pickup were not injured. There were no competent eyewitnesses to the collision.

The investigating State trooper, Kenneth Clark, was called by plaintiff and testified that each vehicle laid down skid marks which he measured. In the course of the trooper’s direct and cross examinations, he stated that the Murphy station wagon burned 37 feet of parallel skid marks on the pavement. These marks commenced approximately 1 foot to the inside of the center Hne of the highway and continued in straight lines northwesterly to a point approximately 2 feet from the north shoulder of the westbound lane. These marks led up to the right front tire of the station wagon. The trooper also stated that the Hook pickup laid approximately 100 feet of skid marks in its eastbound lane. He further stated that these sldd marks continued to curve across the highway’s center line into the westbound lane.

Since there were no competent eyewitnesses to testify to the facts of the collision, the import of each party’s trial theory of the case centered around the testimony pertaining to the vehicles’ skid marks; especially those laid down by the Mmphy station wagon. Plaintiff contended that the skid marks made by the station wagon were caused by its left front and rear tires. This theory would tend to indicate that the station wagon was in its own lane at the time the brakes were applied. Defendant, however, defended on the theory that the skid marks burned by the station wagon were caused by its right front and rear tires, thereby attempting to infer that the station wagon was in the wrong lane of traffic just prior to the collision.

To establish defendant’s negligence and to show her deceased husband’s freedom from contributory negligence, plaintiff called, among others, two witnesses in her case-in-chief. Eldon Clemons testified that he had been driving along route 64 in a westerly direction for a distance of approximately 20 miles prior to arriving at the scene of the collision. He stated that he had been traveling at or below the posted speed limit and that he did not observe Murphy’s station wagon at any time during his trip along Route 64 prior to arriving at the scene. He further stated that he would have recognized the station wagon if it had passed his car because the station wagon bore Iowa Hcense plates from the same city in which he resided. There was testimony from another witness to the effect that Murphy did intend to travel along Route 64 on his way back home to Iowa.

The purpose of Clemons’ testimony, as stated by plaintiff’s attorney in chambers, was to circumstantially show that Murphy had not been speeding just prior to the accident. Defendant objected to this Hne of testimony on the ground that it was merely tantamount to an “inference upon an inference” and it would invite the jury to speculate as to what speed Murphy was actually traveling at. Defendant now presents this same contention on appeal and we are in agreement that Clemons’ testimony was plainly irrelevant to the issue of Murphy’s contributory negfigence. The inference that Murphy could only have been speeding if his station wagon had passed Clemons’ vehicle is one that does not logically follow from any of the evidence.

Although the trial judge must be given discretion as to the relevance of evidence offered to prove a case-in-chief, the error of allowing the jury to consider Clemons’ testimony, together with the other errors committed during this trial, indicate that the jury’s conclusions in this case were not founded upon competent and sufficient evidence. (See Foss Park District v. First National Bank (1970), 125 Ill.App.2d 276, 260 N.E.2d 474.) The jury should not have been allowed to consider Clemons’ testimony. The speculation that his testimony must have caused the jury to engage in at the outset of this trial was an initial factor which led the jury’s complete confusion by the time the trial was concluded. As the trial judge stated to counsel in chambers near the end of the trial: “You are losing the whole jury out there, both of you. They don’t know whether they’re foot or horseback. They really don’t.”

The errors and confusion progressed as plaintiff called Rudy Berris, a traffic engineer, to testify as an expert in automobile accident reconstruction. His testimony as an expert was not premised on his personal knowledge of the facts of the accident or view of the scene. Rather, his testimony was based upon his examination of the numerous photographs of the scene that had been admitted into evidence. The essence of Berris’ testimony was that the skid marks laid down by the Murphy station wagon were caused by its left front and rear tires; thereby implying that the vehicle was to the right of the highway’s center line just prior to the collision. Eliciting this testimony from Berris proved to be no easy task for plaintiff’s attorney. Defendant made numerous valid objections as to improper foundation and form for the questions presented to Berris. At the close of plaintiff’s case-in-chief, defendant also moved to strike Berris’ testimony on the grounds that he was asked to state conclusions based upon viewing the photographs and that he was not asked proper opinion questions.

Defendant contends that it was improper for Berris to testify from his examination of the photographs as opposed to being posed with a hypothetical question. Proper trial technique would have warranted the use of hypothetical questions to elicit Berris’ testimony since he did not have personal knowledge of the facts about which he was testifying. (31 Am. Jur. 2d Expert and Opinion Evidence §53, at 559 (1967).) Nevertheless, we do not believe that the trial judge abused his discretion by allowing Berris to testify as an expert from his examination of the photographs. Woyak v. Konieske (1952), 237 Minn. 213, 54 N.W.2d 649; see Plank v. Holman (1969), 108 Ill.App.2d 216, 246 N.E.2d 694, rev’d on other grounds (1970), 46 Ill.2d 465, 264 N.E.2d 12.

However, we believe that the absence of any proper factual foundation for the questions presented to Berris, together with their improper form, and the repeated objections which those questions caused defense counsel to make, severely prejudiced defendant. Due to the fact that Berris was not presented with hypothetical questions, it became necessary for him to assume, on his own, certain facts in order to answer most of the questions presented to him. In several instances, the facts assumed by Berris were not even in the record. This fatal error required the trial judge to finally interrupt plaintiff’s attorney and order him to “put some assumptions in the record.” Notwithstanding this admonition, the questions and answers comprising the remainder of Berris’ testimony soon resumed their improper nature. It is readily apparent that this practice was improper because the opinion of an expert must be based upon the evidentiary facts in the record. Pritchett v. Steinker Trucking Co. (1969), 108 Ill.App.2d 371, 247 N.E.2d 923.

In a case such as this one where the evidence is closely balanced on the essential issue of negligence, we believe that the above-discussed deficiencies in Berris’ direct examination and testimony were such that the jury should not have been allowed to consider his testimony. See Pritchett v. Steinker Trucking Co. (1969), 108 Ill.App.2d 371, 247 N.E. 2d 923.

Similarly, the plaintiff called Irwin Ginsberg to testify in rebuttal as an expert automobile accident reconstruction witness. He stated that he was an engineering physicist; however, he had never done any work on automobile collision cases. Hearing this, defense counsel requested that he be able to examine Ginsberg to determine his competency as an expert in automobile accident reconstruction. Pursuant to this examination, Ginsberg stated that he had no expertise in the area of tires, tire tracks, car handling or driver behavior. Yet, his “expert testimony” on direct examination concerned each of these areas in which he candidly stated that he had no expertise.

It is an established principle of trial practice that one may testify as an expert on questions coming within the field of his training and experience where such training and experience give the witness special knowledge not shared by persons in the ordinary walks of life. (People v. Jennings (1911), 252 Ill. 534, 96 N.E. 1077; Ocasio-Morales v. Fulton Machine Co. (1973), 10 Ill.App.3d 719, 295 N.E.2d 329; 31 Am. Jur. 2d Expert and Opinion Evidence § 27, at 525 (1967).) Similarly, the test of competency for an expert is whether or not he exhibits sufficient knowledge of the subject matter to entitle his opinion to go to the jury. (Taylor v. Carborundum Co. (1969), 107 Ill.App.2d 12, 246 N.E.2d 898.) And although the trial judge has broad discretion in determining if a witness has been qualified as an expert (Northern Illinois Gas Co. v. Wienrank (1966), 66 Ill.App.2d 60, 213 N.E.2d 411), our analysis of the transcript causes us to find that this discretion was abused with respect to Ginsberg. Since he testified as a purported expert in areas in which he admittedly had no training or experience, his testimony should not have been considered by the jury and it was prejudicial for them to so consider it.

In attempting to establish pecuniary damages, plaintiff’s attorney called his client to testify. Previously, pursuant to defendant’s pretrial motion in limine, the trial judge ruled that plaintiff’s five children should remain out of the court room. During direct examination of plaintiff, however, the children were present and plaintiff’s counsel turned to them and asked them to rise. He then asked plaintiff to state their names and asked the children to stand at the trial bar. In the midst of this clear and improper tactic, Mrs. Murphy and the children broke into tears and a short recess was then called. During this recess, in chambers, plaintiff’s attorney stated to defense counsel, “You asked for it, Counsel.” It is readily apparent that this tactic constituted a deliberate attempt by plaintiff’s attorney to appeal to the sympathies of the jury. Although plaintiff’s attorney apparently did receive permission from the trial judge to have the children in the court room for the limited purpose of allowing plaintiff to identify them, we believe that this conduct was highly improper and prejudicial to the defendant.

Defendant also contends in this appeal that it was prejudicial error to allow Timothy Murphy to testify that his father had received the top salesman award from a past employer, and that certain improper argument by plaintiff’s counsel in his closing statement was also prejudicial. However, as we recently stated in Geisberger v. Quincy (1972), 3 Ill.App.3d 437, 278 N.E.2d 404, 407: “We need not rule upon or further dissect each version of this litany, as the cumulative effect of error and improper conduct of counsel may amount to prejudicial error requiring reversal.” Thus, we find that defendant was prejudiced and is entitled to a new trial since it cannot be determined whether the jury would have rendered a different verdict if the errors discussed had not intervened.

Since our holding necessitates remanding this cause for a new trial, we deem it appropriate to dispose of only three of the other issues presented by defendant. During trial, defendant was prevented from introducing a copy of the driving record of the deceased, Robert Murphy. Defendant contends that the driving record was both material and relevant to show absence of careful habits on the part of Murphy. The record, however, is devoid of any indication that plaintiff attempted to introduce evidence of her husband’s habits. Thus, tire driving record was not material to any issue during trial and it was properly excluded.

Since defendant’s wife was deemed incompetent to testify pursuant to the Illinois Dead Man’s Act (Ill. Rev. Stat. 1973, ch. 51, par. 2), defendant desired to introduce testimony from the investigating State trooper, Clark, pertaining to “spontaneoús declarations” made by Mrs. Hook at the time the trooper arrived at the scene. For this reason, the attorneys and trial judge conferred in chambers. These declarations indicate that Mrs. Hook saw the Murphy station in the wrong lane of the highway (i.e., eastbound) just prior to the collision. After being presented with all of the material facts pertaining to these declarations, the trial judge refused their disclosure to the jury, through the testimony of the trooper, on the ground that they were “not part of the res gestae of the accident.” Defendant thereupon made an appropriate offer of proof by eliciting testimony from the trooper in chambers.

In Peterson v. Cochran & McCluer Co. (1941), 308 Ill.App. 348, 356-57, 31 N.E.2d 825, the court stated:

“Whether the circumstances under which a- declaration was made are such as to make it reasonably probable that it was spontaneous, presents a preliminary question for the determination of the trial court. The question of admissibility is one of administration, each case being properly decided upon its own facts, and in this regard the trial court should be clothed with a reasonable degree of latitude, since the application of the principle depends on the circumstances of the particular case.”

We are satisfied that the trial judge, in the exercise of his discretion and with knowledge of all circumstances, did not commit error in excluding the substance of the declarations from the jury. Turnbull v. Porter (1964), 55 IIl.App.2d 374, 206 N.E.2d 97.

Lastly, defendant contends that the judicial interpretations of the Dead Maris Act, which admittedly precluded him and his wife from testifying to the facts of the occurrence, are “unfair, unreasonable and unconstitutional.” In Plank v. Holman (1969), 108 Ill.App.2d 216, 246 N.E.2d 694, reo’d (1970), 46 Ill.2d 465, 264 N.E.2d 12, this court, speaking through Mr. Justice Davis, indicated that the application of the Act can, at times, appear to be unfair. Nevertheless, the Dead Maris Act currently remains part of our statutory law. Therefore, the trial judge properly precluded defendant and his wife from testifying as to the facts of the collision. (Plank v. Holman, supra; Compton v. Frank (1970), 126 Ill.App.2d 356, 261 N.E.2d 727). Furthermore, we see no basis for declaring the Dead Maris Act unconstitutional. In re Estate of Segur (1972), 5 Ill.App.3d 459, 283 N.E.2d 76.

For the reasons stated above the judgment, based upon the jury’s verdict, of the circuit court of Ogle County is reversed and this cause is remanded for a new trial.

Reversed and remanded.

T. MORAN, P. J., and SEIDENFELD, J., concur.