author: Mr. JUSTICE SCOTT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Homer Marquis, Jr., Defendant-Appellant.
    (No. 73-21;
    Third District
    December 23, 1974.

      Thomas Durkin, of Ackerman, Durkin and Egan, of Chicago, for appellant.
    Martin Rudman, State’s Attorney, of Joliet (William McMenamin, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

Defendant was found guilty in the Circuit Court of Will County of aiding in the delivery of a controlled substance weighing 200 grams or more and of possession of a controlled substance weighing less than 200 grams. He was tried by the court without a jury and was sentenced to a term of 4 to 6 years on the delivery charge, and from 1 to 5 years on the possession charge, sentences to run concurrently.

On February 23, 1972, an agent of the Illinois Bureau of Investigation, Joseph Gryz, made contact with one Allen Kadlec to purchase 4,000 amphetamine tablets. Kadlec had made two prior sales of amphetamines to the agent Gryz. Arrangements were made for the sale to take place the following day.

In preparation for the event the Illinois Bureau of Investigation agents dusted $500 in currency with fluorescent powder and recorded the serial numbers of the bills. Gryz and six other Illinois Bureau of Investigation agents went to Kadlec’s home and while. Gryz entered the building the ■ other six set up surveillance teams around the home. Gryz entered the home and was advised .by Kadlec that he would have to get the pills. Kadlec was then observed leaving the home and driving his van across the street to defendant’s residence and returning to his home in about 5 minutes. The Marquis home consists of a main house with a breezeway which annexes to a converted garage.’ Kadlec was seen entering the converted garage but the agents were unable to see if anyone was in defendant’s residence or whether Kadlec carried anything out of the home. After Kadlec returned to his home he gave agent Gryz a sack that, as it was later proven, contained amphetamines and Gryz gave Kadlec $460 of the dusted money. After Gryz left, Kadlec was observed leaving his home and driving back to defendant’s home. Three agents, including Gryz, approached the door to the garage annex. One of the agents, Thomas Petersik, testified that when,he approached the garage annex the defendant opened the door and asked what he wanted. He testified that he advised defendant that he was an agent for the IUinois Bureau of Investigation and told him to return to the room. He further advised defendant that he was under arrest for aiding in the delivery of a controlled substance.

The testimony shows that as the agent entered the room Kadlec was seated on a bed with a sum of currency lying on the bed alongside of him. One of the agents arrested Kadlec and took possession of the money, and Kadlec was taken to the center of the room where the defendant was standing. Another agent then shone the ultraviolet light on the hands of both defendant and Kadlec, and the hands of both men showed traces of fluorescent powder. Of the $540 that the agent had taken from Kadlec, $460 proved to be the prerecorded money delivered by Gryz to Kadlec, the other $80 being the funds of Kadlec. Agent Gryz told the agent that $40 was missing and the agent then conducted a search of the room. The agents found a plastic bag containing amphetamines under the bed in the room. It developed later that Gryz had paid $460 for the amphetamines and that he still had $40 of the dusted money in his possession.

Defendant contends that the discovery of fluorescent powder on his hands resulted from an unlawful arrest not based on probable cause and that this evidence should have been suppressed. The evidence established that at the time of the arrest of the defendant the agents were aware of certain facts. First, that Kadlec, when approached by Gryz, stated he had to get the amphetamines and that he then proceeded to the defendants home. Second, that he returned from the defendant’s home and made delivery of the pills to agent Gryz, although it is not observed that Kadlec was carrying anything. That after the sale Kadlec immediately proceeded to the defendant’s home. Third, that when defendant opened the door the agents observed Kadlec sitting on the bed in possession of a quantity of money and that money had been delivered to Kadlec in payment for the amphetamines.

An arrest without a warrant is lawful if a criminal offense has in fact been committed and the arresting officer had reasonable grounds to believe the person arrested committed it. Ill. Rev. Stat. 1967, ch. 38, par. 107 — 2(c); People v. La Bostrie, 14 Ill.2d 617, 153 N.E.2d 570; People v. Boozer, 12 Ill.2d 184, 145 N.E.2d 619; People v. Doss, 44 Ill.2d 541, 256 N.E.2d 753.

In People v. La Bostrie the court said at pages 621-22:

“The great difficulty in aU such cases lies not in determining the rule of law which is applicable, but in applying the law to the facts of each case. In particular, the problem narrows down to a decision of whether or not the arresting officer had reasonable grounds to believe that the person' arrested had committed á criminal offense. A completely satisfactory definition of what constitutes reasonable cause is impossible to formulate, for the question must find its resolution in the facts and circumstances of each case. [Citations.] However, certain principles emerge from the many cases which have considered this problem. First, it can be stated that reasonable cause’ means something less than evidence which would result in conviction. e * * It is also established that reasonable cause may be founded upon evidence that would not be admissible at the trial. [Citations.] Specifically it has been held that reasonable cause may be founded upon hearsay evidence. [Citations.] In determining whether reasonable cause exists in a particular case courts deal with probabilities and are not disposed to be unduly technical; rather, they act upon ‘the factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act.’ [Citation.] The test is whether a reasonable and prudent man in the possession of the knowledge which has come to the arresting officer, would believe the person arrested is guilty of a criminal offense.”

Defendant cites People v. Galloway, 7 Ill.2d 527, 131 N.E.2d 474; People v. Moncrief, 131 Ill.App.2d 770, 268 N.E.2d 717, and United States v. Di Re, 332 U.S. 581, 92 L.Ed. 210, 68 S.Ct. 222. Each of these cases can be distinguished on the facts from the case at bar. Under the facts and circumstances in this case we believe that the arresting officers had reasonable cause to place the defendant under arrest and the right to make an examination of him to ascertain whether he in fact handled the bills.

Defendant next contends that this evidence, the amphetamines found in his home, was the product of a warrantless search and that the search could not be justified as an incident to the arrest and that the evidence should have been suppressed.

A search that is incident to a valid arrest is an exception to the general rule that there must be a prior judicial approval of a search by the issuance of a warrant. (Coolidge v. New Hampshire, 403 U.S. 443, 45, 29 L.Ed.2d 564, 91 S.Ct. 2022; Katz v. United States, 389 U.S. 347, 356, 19 L.Ed.2d 576, 585, 88 S.Ct. 507.) The authority to conduct a warrantless search has been narrowly circumscribed. In Chimel v. California, 395 U.S. 752, 23 L.Ed2d 685, 89 S.Ct. 2034, the Supreme Court reviewed the history of search and seizure and gave further meaning to the rule of law that provides that a search incident to arrest must be a reasonable search for the purpose of discovering weapons which might be used in order to resist arrest or effect an escape, or in order to prevent concealment or destruction of evidence. The Supreme Court said:

“There is ample justification, therefore, for a search of the arrestees person and the area 'within his immediate control’ — construing that phrase to mean the area from within which he might be in possession of a weapon or destructible evidence.” (395 U.S. 752, 763, 23 L.Ed.2d 685, 694.)

The Supreme Court further stated:

“There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs— or, for that matter for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search warrant. The 'adherence to judicial processes’ mandated by the Fourth Amendment requires no less.” 395 U.S. 752, 763, 23 L.Ed.2d 685, 694.

Defendant cites People v. Machroli, 44 Ill.2d 222, 254 N.E.2d 450. There the court said:

“A search incident to an arrest is authorized when it is reasonably necessary to protect the arresting officer from attack, to prevent escape, or to discover the fruits of a crime. People v. Burnett, 20 Ill.2d 624; Chirnel v. California, 395 U.S. 752, 23 L.Ed.2d 685.
The box and its contents were in no way related to the offense for which the defendant was arrested. * * * [W]e see no justification other than curiosity for the officer’s conduct in entering the bedroom after the defendant had left it and taking possession of the box.”

There the police entered defendant’s room and effected an arrest on a charge of aggravated battery. Defendant was found on the floor clad only in shorts and a T-shirt. The police then handed defendant his clothing and observed that he had removed a small box from the trousers and placed it on the dresser. He was removed from the room and thereafter an officer returned and opened the box and discovered that it contained pills that were later found to be narcotics.

In People v. Tillman, 1 Ill.2d 525, 116 N.E.2d 344, the police entered defendant’s apartment on a tip from an informer that defendant had made a salo of . narcotics. They found defendant asleep on the bed, and after making certain identification and the arrest of the defendant, the officer raised the mattress and found a box containing 95 capsules of heroin. There the supreme court stated:

“A long line of decisions which interpret both the Federal and State constitutions have established the proposition beyond contradiction that the search without warrant of the person and of the vehicle or place where the arrest is made and which is under the control of the accused, subsequent and incident to a lawful arrest, in order to find and seize things connected with the crime or its fruits, or as the means by which it was committed, is lawful and not a violation of the accused’s constitutional, rights.” 1 Ill.2d 525, 529.

In People v. Williams, 57 Ill.2d 239, 246, 311 N.E.2d 681, the supreme court reviewed the cases involving search and seizure and stated:

“These cases make it clear, we think, that there can be no hard and fast rule defining the permissible scope of a warrantless search incident to an arrest. Certainly an arbitrary limitation to a certain number of feet would be unsatisfactory. Whether the search is reasonable must depend on the particular facts of the case.”

In the case at bar the arrest stemmed from a charge involving narcotics and a search was conducted within an area within the immediate control of the defendant and, as previously noted in this opinion, in the process of making a valid arrest.

A examination of all of the evidence leads us to the conclusion that the lower court did not err in denying- defendant’s motion to quash this evidence.

Defendant next contends that the court improperly considered certain evidence in arriving at its decision. This contention is without merit. While the lower court permitted certain evidence to come in regarding Kadlec’s conduct in two prior sales of narcotics to agent Gryz, and while it is true that there was no evidence connecting the defendant in any way with each of these sales, we feel that from an examination of the entire record there was ample testimony to sustain the conviction. For example, Kadlec’s use of defendant’s home to store the narcotics; his return to the home immediately after the sale; the handling of the funds by the defendant; the presence of other and similar narcotics in the home. It must be remembered that the case was tried by the court without a jury, and it is presumed that the judge considered only competent evidence. (People v. Frenchwood, 28 Ill.2d 139, 190 N.E.2d 767.) Cases cited by the defendant in argument on this point are not controlling.

One count of the indictment charged the defendant with aiding in the sale of a controlled substance weighing 200 grams or more, the other charged him with possession of a controlled substance weighing less than 200 grams. Defendant contends that the evidence consisting of the amphetamines in each case were handled in a careless manner — that they could have been commingled. Therefore a conviction based upon the delivery of over 200 grams with its enhanced penalty may not stand.

The testimony of agent Gryz was that he weighed the substance taken from Kadlec shortly after the arrest and found it to be approximately 225 grams, which weight included the plastic bag containers. On cross examination it developed that the bag containing the amphetamines carried the notation “8 ounces more or less.” Gryz on cross examination could not recall if a gram scale or ounce scale was used in weighing the substance. The substance was again weighed by the crime lab and a criminalist testified that it weighed 221.26 grams including the plastic bags and that the plastic bags weighed 0.08 grams each and the piHs alone weighed 215.7 grams. She further testified that 16 of the piHs were used in the making of the test. The weight of the amphetamines involved in the second count of the indictment was 23.30 grams.

The witness, an employee of the crime laboratory, testified that she removed the amphetamines from the vault at the crime laboratory and commenced testing them. The exhibits involved were in separate sacks and identified as to each count of the indictment, and she was working with both groups of evidence. Before she could conclude the test her work day ended, and she placed the amphetamines in her desk with one group being placed on top of the other. Her recoUection of the event is not totally clear, but there is no testimony indicating that there was a commingling of the exhibits involved in both counts.

The desk was not locked but the laboratory in which she was working was kept locked and the person who last used the laboratory at the end of the day would see to it that it was locked. She had no recollection if she was that last person on the day in question. She further testified that some 25 criminalists had access to the room as did the maintenance man who worked the same shift as she did.

From the foregoing the defendant contends that this testing raised a definite possibility that the amphetamines involved in the two indictments could have been commingled, thus increasing the amount contained in the evidence charging the defendant with aiding in the sale of the amphetamines. That by reason of this possibility defendant contends that the conviction as to Count I should not be permitted to stand.

Defendant cites People v. Cain, 35 Ill.2d 184, 188, 220 N.E.2d 195. There the court stated:

“The rule is of course well established that the State has the burden of showing a continuous chain of possession, in order to estabfish a foundation for admission into evidence. (People v. Anthony, 28 Ill.2d 65.) However, a rule requiring not only that continuity of possession be established, but also that there be positive identification by everyone concerned, would impose an unnecessary burden, while it would not assure a fair trial to the accused. (People v. Collins, 25 Ill.2d 302, 305; People v. Judkins, 10 Ill.2d 445, 448.)

In People v. Resketo, 3 Ill.App.3d 633, 279 N.E.2d 432, also cited by defendant, there was a total lack of proof that the narcotics analyzed by the laboratory were the same found in the possession of the defendant. People v. Brown, 3 Ill.App.3d 879, 279 N.E.2d 382, People v. Maurice, 31 Ill.2d 456, 202 N.E.2d 840, and People v. Woessner, 132 Ill.App.2d 58, 268 N.E.2d 508, are also sufficiently different on the facts from the case at bar to be of any help to the defendant.

In People v. Richards, 120 Ill.App.2d 313, 256 N.E.2d 475, the testimony showed that a blood sample used in the conviction of the defendant was put in a freezer at a hospital and left there for some 17 days before delivery to the coroner without showing that the freezer was locked or otherwise secured and without evidence to show that only authorized personnel had access to the freezer. The evidence indicated that the container holding the blood sample was properly sealed. The court held:

“There being an absence of any suggestion as to tampering, alteration or substitution in the record, we belive that the chain of custody was sufficiently proved. The People v. Washington, 41 Ill.2d 16, 24, 241 N.E.2d 425 (1968); The People v. Anthony, 28 Ill.2d 65, 68, 69, 190 N.E.2d 837 (1963); The People v. Harper, 26 Ill.2d 85, 91, 185 N.E.2d 865 (1962), cert den 372 U.S. 966.” 120 Ill.App.2d 313, 340.

From an examination of the record it does not appear and in fact counsel for defendant does not contend that there was proof of substitution, alteration or other form of tampering. Defendant’s contention merely is that the testimony indicated careless handling and that through such carelessness the pills could have been commingled. We cannot agree that the record bears out this contention. The rule that an object must be in substantially the same condition when offered in evidence as it was when the crime was committed does not require the prosecution to exclude all possibility that the article may have been tampered with; rather, the court must be satisfied that in reasonable probability the article has not been changed in any important aspect. (People v. Greer, 28 Ill.2d 107, 190 N.E.2d 742; People v. Wrona, 7 Ill.App.3d 1, 286 N.E. 2d 370.) We do not believe that an inference of commingling of the amphetamine can be inferred from the testimony of the criminalist.

Defendant’s next contention is that his conviction for aiding in the sale of a controlled substance was not based on proof beyond a reasonable doubt. Both sides concede that the conviction is based upon the accountability section of the Criminal Code, most specifically subsection (c) (Ill. Rev. Stat., ch. 38, par. 5 — 2(c)). That section provides as follows:

“5 — 2. When Accountability Exists.) A person is legally accountable for the conduct of another when:
# «t #
(c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. * * *”

To again briefly summarize the testimony it is noted that Kadlec left all of the amphetamines with the defendant and advised the defendant that the sack he was leaving with him contained “speed.” That on the following day he advised agent Gryz when the latter was attempting to make the purchase that he had to get the amphetamines and proceeded to defendant’s home. While there he removed from the sack the greater portion of the amphetamines in the presence of the defendant and left the remainder in defendant’s possession. Kadlec then proceeded to make the sale to Gryz and immediately thereafter returned to the home of defendant. The two, Kadlec and defendant, were then observed seated on the bed with the money between them and defendant’s hands showed the presence of the fluorescent powder indicating that he had handled the funds. The testimony further indicates that as the agent entered defendant’s home, defendant waved his hand behind his back to Kadlec. The defendant acknowledged that he knew Kadlec had been dealing in drugs, and while he denied knowledge of what was in the sack that was left with him, he was present when Kadlec removed most of the amphetamines from the sack and made no effort to explain his failure to observe the transfer.

In order to bring an accused within the provisions of the statute three propositions must be established: (1) that he solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) that the participation on his part must have taken place either before or during the commission of the offense; and (3) that it must be with the concurrent specific intent to promote or facilitate the commission of the offense. People v. Ramirez, 93 Ill.App.2d 404, 236 N.E.2d 284.

The statute makes it clear that the legislature did not intend to establish criminal responsibility simply through guilt by association, a thoroughly discredited doctrine. (People v. Ramirez, 93 Ill.App.2d 404, 236 N.E.2d 284; Uphaus v. Wyman, 360 U.S. 72, 79, 3 L.Ed.2d 1090, 79 S.Ct. 1040.) Mere presence at the commission of the crime is not culpable. (People v. Barnes, 311 Ill. 559, 143 N.E. 445; People v. Cione, 293 Ill. 321, 127 N.E. 646; Crosby v. People, 189 Ill. 298, 59 N.E. 546; People v. Bracken, 68 Ill.App.2d 466, 216 N.E.2d 176.) Even consent, though involving moral turpitude, does not constitute aiding and abetting. Jones v. People, 166 Ill. 264, 46 N.E. 723.

In People v. Barnes, 311 Ill. 559, 562, 143 N.E. 445, the supreme court said:

“Aiding, abetting or assisting are affirmative in their character. It is not sufficient that there is a mere negative acquiescence not in any way made known to the principal malefactor. The mere presence of a person is not sufficient to constitute him a principal unless there is something in his conduct showing a design to encourage, incite or in some manner aid, abet or assist the actual perpetrator of the crime.”

It is not necessary for the defendant to be present when the sale takes place (People v. Calcaterra, 33 Ill.2d 541, 213 N.E.2d 270 (1966)), nor is it required that he be in possession of the marked money (People v. Aldridge, 19 Ill.2d 176, 179-80, 166 N.E.2d 563 (1960)). In Aldridge the court said:

“The fact that Coleman [the co-defendant] stiH had the marked money when they were arrested does not disassociate Aldridge from the transaction.”

We believe there is .ample evidence to sustain the conviction of the defendant as to Count II.

Defendant’s final contention relates to the constitutionality of section 401(a) of the Illinois ControHed Substances Act (Ill. Rev. Stat. 1971, ch. 56%, par. 1401(a)), under which he was convicted. He maintains the statute is violative of the due process and equal protection provisions of the State and Federal constitutions by providing penalties to be determined by the weight of the substance containing amphetamines. This issue was raised in prior cases before this court (People v. Campbell, 16 Ill.App.3d 851, 307 N.E.2d 395 (3rd Dist. App. Ct. 1974); People v. Kline, 16 Ill.App.3d 1017, 307 N.E.2d 398 (3rd Dist. App. Ct. 1974)) where such issues were discussed at length. While both cases dealt with section 4(c) of the Cannabis Control Act (Ill. Rev. Stat. 1971, ch. 56%, par. 704( c)) and related to the possession of cannabis, we believe the principle stated in People v. Kline, mpra, is equaHy applicable to the case at bar. People v. Peterson, 16 Ill.App.3d 1025, 307 N.E.2d 405.

For the foregoing reasons the judgment of the Circuit Court of Will County is affirmed.

Judgment affirmed.

ALLOY and DIXON, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Buford Adcock, Defendant-Appellant.
    (No. 74-384;
    Third District
    December 23, 1974.
    James Geis, of State Appellate Defenders Office, of Ottawa, for appellant.
    Martin Rudman, State’s Attorney, of Joliet, for the People.
   PER CURIAM.


author: Mr. JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Williams, Defendant-Appellant.
    (No. 73-234;
    Third District
    December 6, 1974.

      Rehearing denied January 7, 1975.

      James Geis and Richard Steck, both of State Appellate Defender’s Office, for appellant.
    Martin Rudman, State’s Attorney, of Joliet (Ludwig J. Kuhar, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendant, John Williams, appeals from a conviction and sentence for aggravated battery which occurred at the Stateville Penitentiary. Appellant was charged with aggravated battery under section 12 — 4(a) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 4(a)), which requires proof that “a person who, in committing a battery, intentionally or knowingly, causes great bodily harm.” Section 12 — 3 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 12 — :3) defines simple battery as either causing bodily harm by physical contact or the making of an insulting or provoking contact with another. The substantive difference between the two charges is that aggravated battery requires harmful conduct which results in severe bodily harm while ordinary or simple battery simply requires harmful contact. Simple battery is a Class A misdemeanor and aggravated battery is a Class 3 felony.

Appellant, an inmate, sought to go to a certain church service at State-ville Penitentiary. Officer King advised defendant Williams that he had come too late and that he should go to his cell. Defendant refused to leave and Officer King then called for a lieutenant. Lieutenant Sharp came to Cell House E where Officer King was stationed. Defendant refused to allow Lieutenant Sharp to take him to an investigation area. He requested an explanation for Sharp’s suggestion that defendant had violated a disciplinary rule of the prison. After a brief exchange (during which Sergeant Fisher entered) defendant walked toward the door to the right of Lieutenant Sharp. After walking a few steps, Williams then turned and hit Sharp and Sharp fell to the floor.

The testimony was conflicting as to Williams’ role. Sharp testified that the defendant was to his right slightly behind him when he was struck on the right cheek bone and jaw. King corroborated the testimony and added that Williams had apparently used his left arm and a backswing. Defendant disagreed and stated that he hit Sharp on the left side of his face with his right hand. He also stated that a recent operation on his left arm reduced the strength in his left arm. Others saw defendant strike Sharp. After Sharp fell down, King tried to grab the defendant but was also knocked down. A struggle ensued between Williams and Officers King, Fisher and Sharp. When Sharp sought to telephone for help, defendant struck him for the second time. Other officers arrived and led defendant from the room.

A few minutes before the defendant was subdued, Officer Fisher had received a message that several inmates were approaching the cell house brandishing baseball bats and that three officers, on their way to pick up appellant, had been assaulted. The trouble was not over when Sharp passed in that direction, but Sharp testified he received no injuries at that time. The testimony of Officer Fisher as to that event was curtailed by the court as being beyond the scope of the direct testimony. Counsel for defendant sought to examine Officer Fisher on that event on cross-examination, but the testimony was curtailed by the court as being beyond the scope of the direct examination, which did not cover the matters referred to.

Defendant admitted striking complainant Lt. Sharp twice during the altercation. His defense to the charge of aggravated battery was that the blows he struck were not the cause of the severe damage which was admittedly suffered by Sharp and which was required to convict under section 12 — 4(a) of the Criminal Code. Appellant contends that the evidence presented for the defense, if believed, would permit the jury to convict on the offense of simple battery, which is a lesser included offense within the definition of section 12 — 4(a) "covering aggravated battery. (People v. Gnatz, 8 Ill.App.3d 396, 290 N.E.2d 392.) Defendant therefore asserts that the court erred when it refused a battery instruction tendered by defendant and the verdict form tendered by him for the reason that the evidence entitled him to such an instruction. The injury suffered by Lieutenant Sharp was described by the doctor as a blowout fracture and an injury to the bone above the right eye. The attending doctor stated that it would take a tremendous force to inflict such an injury but also said the injury could occur as a result of a fall.

With respect to the issue relating to the instruction on the lesser included offense, if there is any evidence which tends to prove the lesser rather than the greater offense, defendant is normally entitled to such an instruction. (People v. Papas, 381 Ill. 90, 44 N.E.2d 896.) The evidence in this case appears to strongly indicate that the defense of defendant could not be sustained. Defendant contends, however, that he is entitled to an instruction even though he may not have been entitled to be convicted only on the lesser charge as a matter of law. He points out that there was some evidence (his own testimony) which created an issue of fact and that he was entitled to a jury determination on this issue. The contention of defendant is based on the premise that he struck Lieutenant Sharp only on the left side of the face and that the opposite or right side of the face suffered the severe damage. Defendant was entitled to have the jury pass on the question of whether or not he was guilty of a simple, battery or aggravated battery on the basis of the evidence as presented in the trial court.

It appears that defendant tendered a verdict form as to simple battery but did not tender a battery issue instruction of the character illustrated in Illinois Pattern Instructions — Criminal No. 11.08. In the event that defendant had tendered a battery instruction which did not conform to the IPI form, then the court should have prepared and submitted an instruction to cover the issue. (People v. Joyner, 50 Ill.2d 302.) In the Joyner case, the supreme court of this State concluded that the failure to tender an instruction on a lesser included offense in conformity with IPI did not prevent a remand for a new trial with direction to instruct the jury on the lesser offense so long as the evidence warranted the instruction, where defendant had tendered at the trial, an instruction on the lesser offense which was defective. Assuming also that no battery instruction was tendered, fundamental fairness requires such procedure, notably in this type of case. A trial should be had where a jury is adequately instructed on the issues of battery and aggravated battery so that there could be no conclusion that the ultimate decision resulted from a technicality.

On the issue of whether defendant is right in his contention that the court erred by not permitting defense counsel from pursuing, on cross-examination of Fisher, matters relating to the- incident outside the cell house, we do not believe that the position taken by defendant is sound. The objective of the cross-examination was undertaken to elicit some evidence which would suggest an alternative cause of the injury suffered by Sharp. The direct testimony of Fisher was concerned solely with the occurrences within the cell house. The latitude which a party is given on cross-examination is within the sound discretion of the trial court (People v. Curtis, 123 Ill.App.2d 384, 259 N.E.2d 397). Any error, therefore, with respect to this matter would be harmless. If counsel for defendant sought to develop the other line of questioning, he could easily have called the same witness to testify for the defense.

A final claim of error is raised by defendant to the effect that the trial court abused its discretion when it refused appellant’s .motion for discovery of the names of occurrence witnesses. While discovery rules do not expressly require the discovery of occurrence witnesses, a trial judge in his discretion can order such discovery under Supreme Court Rule 412 (Ill. Rev. Stat. 1973, ch. 110A, par. 412). (See also Krupp v. Chicago Transit Authority, 8 Ill.2d 37.) In the cause before us, defendant apparently tried to obtain the names from the officers who were present, but those persons were unable to recall which inmates were at the cell house at the time of the incident. It appears, however, that since the “broad purpose of discovery procedure was to de-emphasize the adversary quality of litigation and to reassert the higher aim of ascertaining the truth,” as set forth in Monier v. Chamberlain, 66 Ill.App.2d 472, 480, aff'd, 35 Ill.2d 351, we believe that defendant should have been granted the requested discovery, if available.

We conclude, therefore, that this cause should be remanded for a new trial for the reasons stated. Accordingly, the judgment of the Circuit Court of Will County is reversed and remanded for a new trial.

Reversed and remanded.

STOUDER and DIXON, JJ., concur.


author: Mr. JUSTICE CRAVEN Mr. JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harold P. Boyer, Defendant-Appellant.
    (No. 12389;
    Fourth District
    December 5, 1974.

      Rehearing denied January 21,1975.

    SMITH, J., dissenting.
    -.Blanford & Coogan, of Lincoln (David L. Coogan, of counsel), for appellant.
    Roger W. Thompson, State’s Attorney, of Lincoln, for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant was convicted in a bench trial of the offense of aggravated incest and sentenced to imprisonment for 1 to 5 years. He raises two issues on appeal. First, he contends that the conviction should be reversed because section 11 — 10 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, § 11 — 10) amounts to a denial of equal protection for fathers and is discriminatory on the basis of sex in violation of article I, section 18, of .the Constitution of Illinois. Second, defendant contends the trial court abused its discretion in denying him probation. .

Section 11 — 10 of the Code defines “aggravated incest” as:

“Any male person who shall perform'any of the following acts with a person he knows is his daughter commits aggravated incest:
(1) Has sexual intercourse; or
(2) An act of deviate sexual conduct.”
(Ill. Rev. Stat. 1971, ch. 38, § 11 — 10.)

The Criminal Code defines incest to be an act of sexual intercourse or deviate sexual conduct between mother and son or brother and sister. (Ill. Rev. Stat. 1971, ch. 38, § 11 — 11.) Incest is a Class 3 felony (Ill. Rev. Stat., 1972 Supp., ch. 38, § 11 — 11(b)), whereas aggravated incest carries a penalty provision as a Class 2 felony. Ill. Rev. Stat. 1972 Supp'., ch..38, § 11 — 10(c).

Defendant contends that fathers are denied equal protection of the laws and suffer sexual discrimination in that they are subjected to the penalties of a Class 2 felony for acts forbidden by the statutes, whereas a mother would be subjected to a Class 3 felony. The prohibited sexual relationship is between a parent and that parent’s child. When the parent is a male and the child his daughter, the man is subjected to a possible maximum prison term of 20 years. (Ill. Rev. Stat. 1971, ch. 38, § 1005— 8 — 1(b)(3).) However, if the parent is female and she has sexual relations with her son, she is subjected to a maximum possible term of imprisonment of 10 years. (Ill. Rev. Stat. 1971, ch. 38, § 1005 — 8—1(b) (4).) Similarly, sexual relations between brother and sister are punishable by a maximum of 10 years imprisonment.

It should be emphasized at this point that the offenses of aggravated incest or incest as statutorily defined do not involve any element of force.

Section 18 of the Bill of Rights of the Constitution of 1970 (Ill. Const. (1970), art. , § 18) provides:

“The equal protection of the laws shall not be denied or abridged on account of sex by the State or its units of local government and school districts.”

In People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98, the supreme court indicated this provision was intended to expand' the protections of the equal protection provision of the Bill of Rights. Inclusion of article I, section 18, required the court to hold that a classification based upon sex is a “suspect classification” • and must' be able to withstand “strict judicial scrutiny” to be held valid.

The purpose of the statutes mating incest a criminal offense is tó prohibit sexual intercourse between those, persons closely related, and thereby promote domestic peace and social policy. (42 C.J.S. Incest § 1 (1944).) The reasoning was expanded upon by the drafters of sections 11 — 10 and 11 — 11 of the Criminal Code in the Committee Comments to those sections:

“[Cjriminal concern for incest should be limited generally to situations involving either (1) abuse of family authority; or (2) the possibility of biological risk of genetically defective offspring.” (S.H.A., ch. 38, § 11 — 10, Committee Comments at 437 (1972).)

Also, the Committee Comments clearly indicate cultural traditions are a basis for the prohibitions against incestuous conduct. (S.H.A., ch. 38, § 11 — 11, Committee Comments at 445 (1972).)

Under the statutes involved here, a male parent may be subjected to a greater penalty than a female parent, although both are guilty of the same conduct, i.e., sexual relations with a child of the opposite sex of that parent. We do not believe this distinction will withstand the required “strict judicial scrutiny.” Abuse of family authority is a very real risk, regardless of which parent is involved. Biological risk is present in either situation. The strong cultural and legal tradition against incest is not sufficient to uphold the distinction made in our statute in light of the strong constitutional mandate of equality of treatment between the sexes, particularly the self-executing provisions of section 18, article I, in the Illinois Constitution. It should be noted that neither of the provisions dealing with incestuous conduct require any showing of force on the part of the parent. Accordingly, we hold that penalty provision of section 11 — 10 violates section 18 of article I of the Illinois Constitution of 1970.

It does not follow, however, that defendant’s conviction must be reversed. In Phelps v. Bing, 58 Ill.2d 32, 316 N.E.2d 775, the court relied ¡upon Ellis and section 18 of the Bill of Rights to invalidate a distinction contained in the Marriage Act concerning the ages of males and females being able to marry without consent of a parent or legal guardian. (Ill. 'Rev. Stat. 1973, ch. 89, §§ 3,6.) It held the higher age limitations for males to be invalid and applied the lesser age limits contained in the statutes to both males and females. We believe the result reached in .Phelps requires us to apply the penalty provision of section 11 — 11 to section 11 — 10. Consequently, we can affirm a conviction for aggravated jncest.as a Class 3 felony. This result seems to us to give meaning to the self-executing provisions of section 18 precluding discrimination because of sex and apply the lesser penalty provision applicable to incest insofar as it relates to aggravated incest. See Ellis; Phelps.

The judgment of conviction is affirmed. The sentence is vacated and this cause is remanded to the circuit court of Logan County with instructions that the defendant be resentenced for a Class 3' felony.

Conviction affirmed: sentence vacated:, cause remanded with directions.

SIMKINS, P. J., concurs.

Mr. JUSTICE SMITH

dissenting:

I would affirm the trial court in this case. At the outset we. need to point out that we are dealing with sexual intercourse between father and a 14-year-old daughter that had continued over a period of some 2 years. In my opinion we must either reverse this conviction outright or affirm it. It is difficult for me to see how People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98, can possibly be the. springboard for holding sections 11— 10 and 11 — 11 of the Criminal Code unconstitutional and at the same time impose a lesser sentence. In both Ellis and Phelps v. Bing, 58 Ill.2d 32, 316 N.E.2d 775, the Supreme Court, was dealing with age limitation of males and females respectively which affected the identically same conduct of both male and female, and in each instance the supreme court based its decision upon age discrimination for identical conduct and held such discrimination to be constitutionally invalid. We deal with an entirely different situation here. In People v. McCalvin, 55 Ill.2d 161, 302 N.E.2d 342, the defendants were males, 17 years of age and were found guilty of murder, burglary and six counts of armed robbery. They, too, argued that they were denied equal protection of the law by former section 2 — 7 of the Juvenile Court Act which provided that no boy under 17 years of age or a girl who was under. 18 years of age at the time of the offense could be prosecuted under the Criminal Code unless the State’s attorney filed a removal petition in the Juvenile Court. They argued that the Juvenile Court Act as unconstituted provided a 17-year-old girl with a procedural protection not accorded to 17-year-old boys. In disposing of this issue, Mr. Justice Schaefer rejected their argument and upheld the convictions stating:

“These administrative and judicial decisions were not made upon the basis of age and sex alone. Many other factors were taken into account, such as the nature of the. offense charged, the previous behavior of the minor, the possibilities of rehabilitation and, in general, the best interest of the minor and the safety of the public. Those considerations, always implicit in the statute, have now been made explicit. (See, Ill. Rev. Stat., 1972 Supp., ch. 37, par. 702 — 7.) We do not have in this statutory scheme, therefore, a discrimination based upon sex alone, as was the case in Reed v. Reed (1971), 404 U.S. 71, 30 L.Ed.2d 225, 92 S.Ct. 251, and Frontiero v. Richardson (1973), 411 U.S. 677, (55 Ill.2d 161, 167, 36 L.Ed.2d 583, 93 S.Ct. 1764.” 302 N.E.2d 342, 346.)

Justice Schaefer refused to hold that age classification between boys and girls was a suspect classification and followed the earlier decision of the supreme court in People v. Pardo, 47 Ill.2d 420, 265 N.E.2d 656. It there held that the statute formerly drawing a line between those minors who' were to be prosecuted criminally and those who might be restrained within the jurisdiction of the juvenile court cannot in our opinion be fairly described as a “suspect” classification. In McCalvin, the opinion points out that our legislature effective January 1, 1973, eliminated the age differential which gave rise to the defendant’s claim. The special concurring opinion noted that the defendants in McCalvin were tried, convicted and sentenced prior to the effective date of the constitution of 1970, and that there was no basis for a retroactive application of the 1970 constitution.

In the case at bar, we necessarily take note that section 11 — 10 and 11 — 11 of the Criminal Code were each amended after the effective date of the new constitution, and were therefore presumptively made with full knowledge of its provisions. We recognize that in Ellis our supreme court stated that a classification based upon sex is a “suspect classification” and accordingly is subject to “strict judicial scrutiny”. We perhaps also should note that the opinion submitted in this case holds both sections 11 — 10 and 11 — 11 unconstitutional. It follows therefore that a sentence imposed under neither section is constitutionally permissible. Accordingly, this conviction should be reversed outright.

However, such a conclusion even in the face of the 1970 constitution and under the holdings of the Supreme Court both prior and subsequent to that constitution has differentiated between sexual conduct of men and sexual conduct of women. Since 1843, the Illinois General Assembly has treated incest by a father with his daughter as a more serious offense than other incest relations. (See Historical Notes, S.H.A., ch. 38, §§ 11— 10, 11 — 11 (1973).) In 1919, the legislature declared that father-daughter incest was punishable by a penitentiary term of 1 to 20 years as contrasted to a 1- to 10-year term for other relatives who were prohibited from intermarrying. (Hurd’s Rev. Stat. 1919, ch. 38, pars. 156, 157.) These two sections remained unchanged basically until the adoption of the Criminal Code in 1961, when the minimum penalty for aggravated incest was increased to 2 years while retaining the maximum of 20. We have already noted that the legislature effective January 1, 1973, approved this sentence distinction between aggravated incest and ordinary incest so far as penalty is concerned, and this in the face of a . widely discussed new constitution. It is hardly likely that the 1973 legislators had any thought that their new legislation would be construed by this court to be unconstitutional on an issue of punishment which had prevailed in this State for more than 60 years. It didn’t and it shouldn’t.

We might also note that only a male person may be guilty of aggravated incest while both male and female may be guilty of ordinary incest. It should also be noted that a male may be guilty of aggravated incest with his stepdaughter or an adopted daughter. He may be guilty of ordinary incest with his mother, his brother or sister, whether of the whole blood or of the half blood, an observation which had nothing to do with this case as factually section 11 — 11 is not triggered. The intercourse was with no one described in section 11 — 11 nor is it an offense included in section 11 — 10. Hence no penalty can be imposed for a section 11 — 11 offense under which he is not guilty.

Thus it clearly appears that the differentiation is not based on sex alone but to a degree at least on the type of conduct performed. To deny that fundamental biological differences between men and women preclude the identical physical conduct by each is to deny the obvious. The term “sexual intercourse” is defined in section 11 — 1 of the Criminal Code as “sexual intercourse occurs when there is any penetration of the female sex organ by the male sex organ.” It is thus obvious that no female is physically or biologically able to perform sexual intercourse with another female no matter whether the relationship is one of consanguinity or affinity. To equate the father-daughter relationship with a mother-son sexual relationship as similar acts between parents and a designated child ignores the differences between those acts, physically,. psychologically, naturally, historically, and statistically. No governmental agency either through constitution or statute can make acts identical which aré fundamentally nonidentical. No agency of government by statute or constitution can declare a stated relationship equal when in fact they are not. If such were possible, then we . would point out that section 11 — 1 of the statute is unconstitutional making rape unlawful because it is limited to a male person, and thus distinguishes on the basis of sex aloné. Is the abortion statute unconstitutional because it can have as its victim a female only?

It does not appear to me that the incest sections can be said to be based on sex alone and that there are other and more far-reaching com siderations controlling the penalties imposed where a male is involved and where a female is involved. We think we may take judicial notice from the cases coming before this court that in sexual intercourse between male and female, and particularly minors, the physical and psychological danger to the female is demonstrated. We would further note that a father may be guilty tinder section 11 — 10 for acts committed on an adopted child or a stepchild. Neither can be convicted under section 11 — 11 for ordinary incest on such children. We cannot therefore conscientiously say that the differentiation between aggravated incest and ordinary incest is not justified. Does not equal protection under the law likewise protect a child of tender years from the same conduct that is described in this record? We think so, and in so doing, we revert to the proposition that the differentiation is not based on sex alone but on practical knowledge and moral experience extending back for at least 2000 years. Thus, tire classification is neither arbitrary, unreasonable nor based on sex alone. In People v. McCabe, 49 I11.2d 338, 275 N.E.2d 407, statutory classification and equal protection of the law are discussed at page 341 as follows:

“If any state of facts may reasonably be conceived which would justify the classification, it must be upheld [Citation]. The right of judicial questioning of a classification under the equal-protection clause is thus limited. As this court put it in Thillens, Inc. v. Morey, 11 Ill.2d 579, 593, ‘Whether the enactment is wise or unwise; whether it is based on sound economic theory; whether it is the best means to achieve the desired results, and whether the legislative discretion within its prescribed limits should be exercised in a particular manner are matters for the judgment of the legislature, and the honest conflict of serious opinion does not suffice to bring them within the range of judicial cognizance/ But it is required that there be a reasonable basis for distinguishing, the class to which the law is applicable from the class to which it is not. [Citation.] Appropriate respect should be given to the fact of a legislative classification, but there is a judicial obligation to insure that the power to classify has not been exercised arbitrarily and, if it has been, the legislation cannot be justified under the label of ‘classification/ [Citation.] It was observed recently: ‘[A] state may not, under the guise of classification, arbitrarily discriminate against one and in favor of another similarity situated/ [Citation.]”

Lastly, so far as the problem of probation is concerned, Moran controls.


author: Mr. JUSTICE SMITH.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lavon Logan, Defendant-Appellant.
    (No. 12197;
    Fourth District
    December 17, 1974.
    John F. McNichols, of State Appellate Defender’s Office, of Springfield, for appellant.
    No appearance for the People.
   Opinion by

Mr. JUSTICE SMITH.


author: Mr. JUSTICE CRAVEN

text:
    John Hancock, Plaintiff-Appellee, v. Donna L. Hancock, n/k/a Donna L. Hancock Hedja, Defendant-Appellant.
    (No. 12465;
    Fourth District
    December 17, 1974.
    Judson C. Ball, of Barrington, for appellant.
    Richard Kruger, of Metropolis, for appellee.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

The defendant Donna Hancock appeals from an order of the circuit court of Coles County denying her petition for change of custody of Deborah Lynn Hancock, now 8 years old.

The petitioners were married in February 1985 and divorced in December 1968. The father was awarded custody of the daughter. In March 1969, the mother petitioned the court for a change of custody. This petition was denied. In November 1970, she filed another petition, and, after a hearing, the court found a sufficient change in circumstances as to warrant a modification of the custody order. In substance, the court awarded each party custody of their daughter for 6-month periods.

In February 1972, the wife again sought a change of custody, and, in' May 1972, the husband likewise sought a modification of the custody order. Essentially, the husband alleged that Deborah Lynn would begin the first grade in the fall of 1972, and' the current custody order would be unsatisfactory and not in the best interests of the child. It was noted that the child would have to attend grade school 9 months out of the year and thus require an adjustment in the 6-month alternating custody arrangement. The petition urged that the'fact Deborah Lynn would begin school on a full-time basis constituted a sufficient change of circumstances warranting the modification of the court’s order. A hearing was held on both petitions, and the court ordered that the husband have custody of the child for approximately 10 months out of the year, those months spanning the school term, subject to the wife’s visitation rights, and that the wife would have custody of Deborah Lynn for the balance of the year. The court’s order was not appealed.

On July 13, 1973, the wife again petitioned the court, requesting that she be given custody of Deborah Lynn. Her petition contained five allegations. The first three allegations restated the substance of all prior allegations found in previous petitions and did not present new facts cognizable by the trial court in the hearing on the motion. It is relevant to note that in paragraph 3 she alleged that both had remarried, that both families resided in small communities, and that both parties were fit to have custody of the minor child. Paragraph 4 alleged that she had given birth to an infant girl by her second husband. Paragraph 5 alleged that the birth of this infant had a positive effeet upon her home life and that the presence of the infant is “an additional sociological influence in the home,” which would enure to the sociological and emotional enrichment of Deborah Lynn if she was present.

On August 2, 1973, a hearing on the petition was held. A great deal of testimony was presented by the parties concerning their respective credentials as parents. They all testified concerning their home life, .quality and standard of living, and social and religious practices, all of which underscored the previous holding of the court that both parties were fit parents. Also Rebecca Hancock, the husband’s second wife, testified that she was expecting a child in the near future. It was also brought out in the course of the testimony that Deborah Lynn had completed the first grade and that she had done so by doing above average work. At the end of the hearing, the trial court agreed to take judicial notice that the county wherein Donna Hancock lived, Du Page County, had a school system that was at least comparable with the school system that Deborah had attended. After closing arguments, the trial court took the matter under advisement. On August 31, 1973, the court issued its order denying the petition. The trial court found that there had not been sufficient change of circumstances from the last order to warrant a change of custody.

It is the general rule in cases dealing with change of custody' of. a child that (1) the order of a court having competent jurisdiction is res judicata as to the facts which then existed and is binding upon the parties as long as the same conditions prevail; and (2) in order for a court to change its previous custody determination, new conditions must have arisen. Nye v. Nye, 411 Ill. 408, 105 N.E.2d 300.

In Sorenson v. Sorenson, 10 Ill.App.3d 980, 295 N.E.2d 347, this court stated that in order to justify a change in child custody, a material change of circumstances which affects the welfare of. the child must be shown, and furthermore, the party seeking the change has the burden of establishing that the child’s best interests warrant such change. The opinion in Sorenson went on to further note that “[ujnless it appears that manifest injustice has been done a reviewing court will not disturb the determination of the trial court in matters concerning the custody of the infant children.” Also see Patton v. Armstrong, 16 Ill.App.3d 881, 307 N.E.2d 178.

Likewise, in Golden v. Braunfeld, 22 Ill.App.3d 344, 317 N.E.2d 336, we noted:

“We find then that Nye and the prior decisions of this court require that one who seeks to modify the custody provisions of a divorce decree, whether those provisions are based upon stipulation or are the results of a trial court determination after a contested hearing, must cany the burden of showing a material change of circumstances adversely affecting the best interests of the children occurring after the entry of the original decree.” 22 Ill.App.3d 344, 345.

In this case, the petition in question and the hearing thereon raised few new facts or conditions. The most significant were that the wife gave birth to an infant and that the husband’s second wife was about to give birth to an infant, and that the wife’s second husband earned considerably more than John Hancock. However, it is apparent that none of these facts demonstrated a dramatic change in condition from those which existed prior to the court’s previous order. Since the wife did not appeal from that order, it is res judicata as to all facts that existed at that time.

Judgment affirmed.

TRAPP, P. J., and SMITH, J., concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles L. Neely, Defendant-Appellant.
    (No. 12673;
    Fourth District
    November 27, 1974.
    Richard J. Wilson and John L. Swartz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Roger W. Thompson, State’s Attorney, of Lincoln (John W. Foltz, of Illinois State’s Attorneys Association, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Charles Neely, appeals from convictions entered pursuant to a guilty plea for two counts of theft under $150 and from a sentence imposed of 364 days’ imprisonment. Defendant contends before this court that the court erred in accepting his guilty plea because he did not understand either the plea agreement or the nature of the charges against him.

Op. March 4, 1974, defendant was indicted for five counts of “theft as a subsequent offense” arising from separate incidents occurring on February 7, 1974. On March 6, 1974, defendant appeared with counsel for purposes of arraignment. The trial court presented defendant with a copy of the indictment, and the record indicates that defendant read said indictment. Defendant pleaded not guilty to all counts of the indictment. Pursuant to subsequent plea negotiations, the State agreed to amend counts one and two to theft under $150 and dismiss the other counts in exchange for defendant’s guilty plea and a recommended 364-day period of incarceration. On May 1, 1974, defendant appeared in court for a change of plea. The State’s Attorney proceeded to state the terms of the plea agreement. The court then stated:

“Court: Mr. Neely, do you undrstand the terms of the agreement?
Mr. Neely: Yes sir.
Court. What do you understand the terms of the agreement to be?
Mr. Neely: I understand I won’t get more than one year. That is about all I understand.
Court: You understand you will get one year. You will get 364 days in jail?
Mr. Neely: Yes sir.
Court: Do you understand that, Mr. Neely?
Mr. Neely: Yes sir.
Court: Do you understand you would plead guilty to Counts I and II of the indictment?
Mr. Neely: Yes sir.
Court: Do you understand that the other counts of the indictment would be dismissed?
Mr. Neely: Yes sir.”

Defendant then acknowledged that he desired to enter into the plea agreement, stated that he was completely satisfied with the negotiated plea, and stated that he was not forced or threatened in any fashion. The State’s Attorney then presented a factual basis for the plea. Defendant . then offered a rather confused explanation of how his fraudulent scheme was perpetrated:

“Mr. Neely: As near as I can understand it I was suppose to give $10.00, get change for $10.00, then get the $10.00 back and add $10.00 of mine and $10.00 of theirs for $20.00. # # #
Court: Now, what happens next? So far as your getting that $10.00 from that clerk?
Mr. Neely: Ask for it back. When she gives it back, I got $10.00. and then I give her that $10.00 and take $10.00 back for $20.00.
Mr. Thompson: I think he tells the clerk before he asked for the $10.00, before he asks for the change, that the clerk has fnadpi a mistake, that he gave the clerk a $1.00 bill instead of a $10.00 bill. Is that correct?
Mr. Neely: No sir. I don’t say she made any mistake, I thought maybe I did, gave her a one and got ten back. She has done given me change for $10.00, she gives me $10.00 back and if I give her $10.00 of mine and $10.00 of hers for a twenty, I make ten.”

Both defendant and his counsel then concurred in the factual basis presented by the State. Defendant also stated that he committed the acts alleged in counts one and two of the indictment. The court then read to defendant the applicable counts of the indictment and the applicable section of the criminal code prescribing the offense in question. The court then entered judgments on defendant’s plea and sentenced defendant to a concurrent term of imprisonment of 364 days on each count.

Defendant first contends that he did not understand the plea agreement. Our examination of the entire record indicates that this contention is clearly lacking in merit. The terms of the plea agreement were read in open court. Defendant stated to the court that he understood that he would not get more than 1 year, that he was pleading guilty to counts one and two as amended, and that the other counts were to be dismissed. Defendant then stated that he desired to enter into the plea agreement and that he was completely satisfied with the terms of the agreement. There is no claim here that the agreement was coerced or was involuntary or was not honored in some fashion.

Defendant next contends that the court erred in accepting the plea under Supreme Court Rule 402 (a)(1) (Ill. Rev. Stat. 1973, ch. 110A, par. 402(a) (1)) because he did not understand the nature of the charges. We do not agree. Although defendant offered a confused explanation of how the deception was perpetrated, he did, at least, attempt to explain how it was accomplished. The State’s Attorney also presented a factual basis for the plea. Neither defendant or his counsel objected to this presentation. Defendant then stated that he did, in fact, commit the acts alleged in counts one and two of the indictment. We further note that the relevant provisions of the indictment and the statutory provision proscribing the conduct in question were read to defendant before his plea was accepted. We find that the trial judge went beyond what is now required to satisfy Rule 462(a)(1). See People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559.

For the reasons stated above the judgments entered by the circuit court of Logan County are hereby affirmed.

Judgments affirmed.

SMITH, P. J., and TRAPP, J., concur.


author: Mr. JUSTICE ALLOY.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert W. Whitney, Defendant-Appellant.
    (No. 73-330;
    Third District
    December 23, 1974.
    James Geis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Henry D. Sintzenich, State’s Attorney, of Macomb (William Henderson, Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. JUSTICE ALLOY.


author: Mr. JUSTICE HALLETT.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Carlos King, Defendant-Appellant.
    (No. 59287;
    First District (1st División)
    November 27, 1974.
    James J. Doherty, Public Defender, of Chicago (Matthew J. Beemsterboer and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.

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

delivered the opinion of the court:

On March 2, 1972, the defendant, Carlos King, entered a plea of guilty to a charge of robbery and was sentenced to 5 years’ probation. Pursuant to the State’s petition to revoke this probation, a hearing was held on April 6, 1973, which resulted in the revocation of the probation and the imposition of a sentence of 15 to 20 years in the penitentiary. From this, the defendant appeals.

The issues presented are (1) whether the State proved a violation of probation by a preponderance of the evidence; (2) whether the court must admonish the defendant in accordance with Supreme Court Rule 402 in revocation of probation proceedings when the grounds are stipulated and consist of a subsequent conviction; and (3) whether the sentence imposed is excessive. '

We affirm, but reduce the minimum sentence so as to conform with the Unified Code of Corrections.

■The probation, which was revoked in this case, was imposed upon the defendant on March 2, 1972, after he had pleaded guilty to a‘ charge of robbery. At that time, he was already on an earlier probation given him in a robbery case by Judge Hechinger. On March 6, 1973, a probation violation warrant was issued on the grounds that the defendant had failed to report to his probation officer, and that on January 22, 1973, he had pleaded guilty to armed robbery in Rockford, Illinois, where the court denied probation and incarcerated him pending sentencing. As a result of this Rockford conviction, the defendant was sentenced to a 2- to 6-year prison term. On March 16, 1973, the State filed a petition requesting that the defendant’s probation be revoked. The grounds alleged in the petition for revocation were that the defendant had been convicted of armed robbery in case #1901 in Rockford, Illinois, and had been sentenced to a term of two to six years in the penitentiary, and that the defendant had previously been convicted of robbery and criminal trespass upon a guilty plea on January 27, 1970, for which he was granted a 3-year probation. The petition further stated that these allegations constituted a violation of the conditions of probation under section 5 — 6—3 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—-3.)

At the hearing on the rule to show cause’ why the probation should not be terminated, the witness for the State, an officer from the Adult Probation Department of Cook County, testified; apparently from the petition for revocation, repeating the allegations set forth therein. No ’ objection was made to this testimony. Counsel for the defendant stipulated that the defendant-probationer had been convicted and sentenced in Rockford, as stated in the petition, but asked leave of court for time to vacate the Rockford conviction, “[b]ecause he (the defendant) tells me he was led to believe that upon entering his guilty plea, he would receive three to five years from this Court on his probation violation.” (Record at 4.) The court denied defendant’s motion, and proceeded to hear matters in mitigation which the defense had to present. At this point, the defendant testified as to his marital and employment status. The defendant stated that when he entered a plea of guilty to the offense for which he was convicted in Rockford, the State’s Attorney in Rockford had given assurances to him that the court here would only impose a sentence of 3 to 5 years for the violation of his probation. The court stated for the record that no such representations had been made by the court to the State’s Attorney in Rockford or to the State’s Attorney in Cook County. Other than this assertion by the defendant and tire statement of defense counsel made earlier at the hearing, there is no indication in the record before us that any such promises were relied upon by defendant in entering his plea in the Rockford case. At the conclusion of the hearing in mitigation, the trial court revoked defendant’s probation and imposed a 15- to 20-year sentence to run concurrently with the sentence imposed by the Rockford court.

On appeal, the defendant contends that the State failed to prove a violation of probation by a preponderance of the evidence. In support of this contention, the defendant points out that the State did not produce any evidence tending to show when the offense, resulting in the Rockford conviction, occurred. According to the defendant, there was therefore no evidence that the act, upon which the Rockford conviction is based, was committed subsequent to his being placed on probation. It is self-evident that a subsequent conviction, in and of itself, is not a violation of probation. Rather, the State must prove that a criminal statute was violated after the probation has been granted. The defendant argues that in the absence of proof as to when the criminal conduct for which the defendant was convicted occurred, the State did not prove a violation of probation.

In addition, the defense contends that the testimony of the probation officer consisted of hearsay and that such evidence, which was the only evidence introduced by the State, is not sufficient to warrant a finding by the court of a probation violation. Thus, the defendant argues, the State did not prove a violation of probation by a preponderance of the evidence.

We find this argument to be without merit. We first note that this court has held in People v. Collins (1973), 14 Ill.App.3d 446, 302 N.E.2d 709, that a probation violation may be proved only by competent evidence. (People v. Collins (1973), 14 Ill.App.3d 446, 448, 302 N.E.2d 709; People v. Dotson (1969), 111 Ill.App.2d 306, 310, 250 N.E.2d 174.) In People v. Collins, the State’s evidence consisted of the testimony of the probation officer who was permitted to read the contents of a report prepared by another officer. This testimony was received over defendant’s objection in Collins. This court agreed with the defendant’s contention that the report should not have been admitted over defendant’s objection. However, in the present case, there was no objection by the defense to the witness’ testimony. Hence, the defense failed to preserve the hearsay issue for review in this case.

Assuming arguendo that the State’s evidence was incompetent as hearsay, we affirm the holding in People v. Collins (supra), that the error became moot when the defendant himself admitted the conviction and by his own testimony produced evidence that the conviction constituted a probation violation. The defendant testified, as stated above, that he had pleaded guilty to the Rockford charge of armed robbery in the hope of receiving lenient treatment on this probation violation. On the basis of this testimony, the trial judge was fully warranted in finding that the crime for which the defendant was convicted in Rockford had been committed by the defendant during the time he was on probation. In light of the stipulation of defense counsel to the conviction coupled with the defendant’s statement that he had violated probation, we find that the probation revocation was proven by competent evidence, and that the State sustained its burden of proving a probation violation by a preponderance of the evidence. People v. Collins (1973), 14 Ill.App.3d 446, 302 N.E.2d 709; People v. Killion (1969), 113 Ill.App.2d 461, 251 N.E.2d 411; People v. Thornton (1972), 4 Ill.App.3d 896, 282 N.E.2d 276.

The next issue to be considered is whether the trial court erred in not admonishing the defendant in accordance with Supreme Court Rule 402, pertaining to pleas of guilty. (Ill. Rev. Stat. 1973, ch. 110A, par. 402.) It is argued by the defendant that the decision of the Illinois Supreme Court in People v. Pier (1972), 51 Ill.2d 96, 281 N.E.2d 289, requires that the probationer, in admitting a violation of probation, be afforded the same due process requirements which pertain to pleas of guilty. However, in subsequent cases, this court has limited the broad language of Pier in holding that People v. Pier is not authority for the broad proposition that Rule 402 is applicable in revocation of probation proceedings when the grounds for the revocation consist of a conviction. (People v. Collins (1973), 14 Ill.App.3d 446, 302 N.E.2d 709; People v. Hall (1974), 17 Ill.App.3d 477, 308 N.E.2d 235.) The facts in Pier involved a post-conviction petition alleging that the defendant’s admission of the violation'of probation was induced by an unfulfilled promise by the State’s Attorney to recommend a certain sentence. Unlike Pier, there is no evidence here that the State’s Attorney in Cook County entered an agreement with the defendant relevant to the probation revocation. Tire record clearly indicates that the trial judge had informed the defendant, when initially granting him probation, of the sentence which would be imposed if the conditions were violated. Record at 8-9.

The basic due process requirements for revocation of probation proceedings have been set forth in Gagnon v. Scarpelli (1973), 411 U.S. 778; 36 L.Ed.2d 656, 93 S.Ct. 1756. In Gagnon, the court indicated that such a proceeding differs significantly from a criminal prosecution.

“[W]e deal here, not with the right of an accused * * * in a criminal prosecution, but with the more limited due process right of one who is a probationer or parolee only because he has been convicted of a crime.” (411 U.S. 778, 789.)

Clearly, the probation revocation proceeding in the case at bar complied with the basic requirements set forth in Gagnon. It should be noted that in Gagnon, the court suggested that even counsel might not be required where, “the probationer or parolee has been convicted of committing another crime or has admitted the charge against him.” (411 U.S. 778, 787.) It would follow that if the court is willing to permit such admissions without even requiring counsel, then the procedures set forth in Boykin v. Alabama (1969), 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709, wherein the court enunciated the admonitions required before the acceptance of guilty pleas, and Rule 402 are also not required in every case.

Where, as in the case at bar, the revocation of probation is based upon a subsequent conviction, due process does not require the court to admonish the probationer in accordance with Rule 402 before accepting a stipulation to or an admission of the conviction. Here, the basis for the revocation of probation is a conviction, a product of a judicial determination and a matter of public record. Stipulations to and admissions of such matters certainly do not require the same safeguards which due process requires in the acceptance of pleas of guilty.

Even if we assume that the court must admonish the defendant-probationer in accordance with the basic principles of Supreme Court Rule 402 at probation-revocation proceedings, the record before us indicates that the court did substantially comply with the requirements of the Rule. In the recent case of People v. Krantz, 58 Ill.2d 187, 192, 317 N.E.2d 559, the Illinois Supreme Court stated:

‘We note first the rule requires that there need be only substantial, not literal, compliance with its provisions. (People v. Mendoza, 48 Ill.2d 371, 373-374,) Also, the entire record may be considered in determining whether or not there was an understanding by the accused of the nature of the charge. People v. Doyle, 20 Ill.2d 163, 167; People v. Harden, 38 Ill.2d 559, 563, aff'g People v. Harden, 78 Ill.App.2d 431, 444-445.”

Given this recent' interpretation of the applicability of Supreme Court Rule 402, we find no error in the record before us. The record indicates that the defendant understood the nature of the charge, which in this case was a violation of probation. At the time of granting the defendant probation, the trial judge informed him of the minimum and maximum sentence that would be imposed if the defendant violated the conditions of probation. In addition, the factual basis for the revocation of probation appears on the record. The stipulation and the statements of the defendant at the hearing were clearly not the result of an agreement with the State’s Attorney of Coo.k County and were not induced by threats or promises. Therefore, we find that there was substantial compliance with the basis tenents of Supreme Court Rule 402.

Lastly, the defendant contends that the sentence imposed is excessive. The defendant’s record discloses that, in addition to the robbery conviction in the case at bar, defendant has been convicted twice before for. robbery, once for petty theft and once for disorderly conduct. .We conclude that his maximum sentence of 20 years is not excessive.

The State concedes that, in accordance with the defendant’s election to be sentenced under the provisions of the Unified Code of Corrections, the minimum sentence should not exceed one-third the maximum in a Class 2 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(3).) Accordingly, the minimum sentence of 15 years is reduced to 6 years 8 months, reflecting one-third of the 20 years’ maximum. As thus modified, the judgment is affirmed.

Judgment affirmed as modified.

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


author: Mr. JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin McKibben, Defendant-Appellant.
    (No. 57810;
    First District (2nd Division)
    December 3, 1974.

      Jack P. Rimland, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

This was a prosecution for murder and attempt to rob. Defendant waived trial by jury, and, on the day of his trial, he filed a motion to suppress the State’s identification evidence. The motion was heard contemporaneously with presentation of the prosecution’s case. Defendant did not testify, and, with the exception of one exhibit introduced to impeach the State’s principal witness, he did not offer any evidence in his defense. His motion to suppress was denied, and he was found guilty of murder. Thereafter, the trial court overruled post-trial motions, heard evidence in aggravation and mitigation and sentenced defendant to serve 20 to 30 years. The issue in this appeal is :whether he was proven guilty beyond a reasonable doubt.

I.

At about 1:15 A.M. on September 25, 1971, James Johnson, Suzy Foushee and Roscoe Robinson were entering a building at 4753 South Indiana Avenue in Chicago. Inside was a vestibule and then a door that opened to the stairway to a basement below the street level of the building. Suddenly, while the three were in the vestibule, two men entered behind them. Johnson, who was about to open the door to the basement, heard the noise and, thinking that something strange was happening, rushed down the stairs. Suzy Foushee, without looking at the two men, ran back to the street and, in the company of a man and a woman who were standing nearby, took refuge in an apartment house next door. Johnson, in the meantime having reached the basement, heard either two or three shots. A few moments later, a man armed with a gun came down the basement staffs and, for “seconds” or “three minutes,” stood within 3 feet or at most 3 yards of Johnson. As a result, he had an opportunity to observe the armed man. After taking a jacket that Johnson was carrying and patting it, the man ran back upstairs in response to a second man who called, “Come on, man, let’s .go!” Johnson followed the man upstairs, and the two intruders then, ran out of the building. Moments later, Johnson found Roscoe Robinson lying on the stairs, wounded by a gunshot that instantly caused his death.

' That night, Johnson went to a police station where- he was questioned and shown three books of photographs but was unable to identify anyone.5 However, a week later, while an inmate in the Chicago House of Correction, he was interviewed by two policemen, Frank Baxter and Albert J. Jordan. At their request, he picked out one of five police photos which he said showed one of the two men who entered the building at 4753 South Indiana Avenue in the early morning hours of September 25, 1971. Johnson was released from the House of Correction; and on November 10, 1971, sometime between 4 and 5 P.M. he was shown a picture by a Chicago policeman. Later that afternoon, Johnson called Officer Frank Baxter and told him he had seen a picture of the man who shot and killed-Roscoe Robinson. At about 10 P.M. on November 10, Baxter, acting on this information which he supplemented with data from police files, arrested the defendant. He was taken to a police station and placed in a five-man lineup. Johnson was brought to the station and identified defendant as “the light complected guy who was in the Roscoe Robinson killing * * That -same evening, Johnson gave the police a written statement in which he described how he first saw defendant’s picture and said that he had never seen defendant before, “except when he stuck me up and killed Roscoe.”

Later, at defendant’s trial for the murder and attemped armed robbery of Roscoe Robinson, the occurrence of the felony murder was not disputed. Johnson, Suzy Foushee and two Chicago policemen testified for the State. After hearing one witness in support of the motion to suppress the State’s identification evidence, the trial court found that the photo identification of defendant by Johnson, after a Chicago policeman showed him one police photo, had “* * - * some taint involved in the showing of a single photograph * * But the court denied defendant’s motion to suppress. Johnson was the only witness who identified him as the man who shot and killed Roscoe Robinson.

II.

One witness who makes a positive identification of an accused, a witness who had ample opportunity, to observe the accused at the time of a crime, may furnish evidence that is sufficient to support a conviction. (People v. Guyton, 53 Ill.2d 114, 117, 290 N.E.2d 209; People v. Cook, 18 Ill.App.3d 190, 309 N.E.2d 623.) However, a conviction is not supported by sufficient evidence, that is, proof beyond a reasonable doubt, if the identification of an accused is vague, doubtful and uncertain. (People v. Cullotta, 32 Ill.2d 502, 504, 207 N.E.2d 444.) And where, as in a case like this one, the identifying witness admits that before the crime he had never seen the accused, the attendant circumstances, in-eluding the opportunity for definite identification, must .be carefully weighed and considered. People v. Betts, 101 Ill.App.2d 322, 243 N.E.2d 282.

The record before us discloses that on the day of defendant’s trial, Mr. Lawrence Bolon, the assistant State’s Attorney in charge of the prosecution, informed the court and his opposing counsel that James Johnson and Suzy Foushee were narcotic addicts .and that Johnson had sight only •in his left eye. We pause to observe that this voluntary disclosure of information adverse to the State’s case was conduct consistent with the highest tradition of our profession. It is this kind of candor and forthrightness that should always characterize the conduct of a lawyer who speaks for the People in a criminal case. See People v. Higgs, 11 Ill.App.3d 1032, 298 N.E.2d 283; compare People v. Rice, 109 Ill.App.2d 212, 248 N.E.2d 332.

However, dispite these disclosures concerning him, when James Johnson testified, he denied he was a narcotic addict. And at first, he denied there was anything wrong with his sight. It took persistent cross-examination to elicit from him the fact that for a year and a half he used heroin, which on occasion cost him $20 a day. Then, after some questioning on the same subject, Johnson admitted that the evening before Robinson was killed, he had waited for him so they could go get some drugs. Defendant’s counsel, inquisitive about Johnson’s condition at the time of the crimes, asked him if he had.taken any heroin the evening before he witnessed the events of his testimony. He denied that he had. But Suzy Foushee, his companion, testified for, the State and contradicted him by saying that sometime between 8 and 9 P.M. of the evening before the events involved, she and Johnson had heroin together, a drug use from which she was recovering at the time of the shooting. Johnson, although admitting long and continued use of the drug, insisted he was not addicted to heroin. And based on this testimony, the trial judge concluded that Johnson was not an addict; he was a user of narcotics.

However, the definition of “addict” contained in our Controlled Substances Act, the statute that, prohibits drug abuse in this state, is broad enough, in our judgment, to include a user of narcotics. “ ‘Addict’ means any individual who habitually uses any controlled substance so as to endanger the public morals, health, safety or welfare, or who is so far addicted to the use of controlled substances as to have lost the power of self-control with reference to his addiction.” (Ill. Rev. Stat. 1971, ch. 56%, par. 1102(a).) Therefore, from Johnson’s testimony, including his admission that he was using heroin until.a month before he testified in this case, we conclude that at the time of the. crimes in question, he was a narcotic addict. See People v. Garcia (1968), 256 Cal.App.2d 570, 64 Cal.Rptr. 370; United States v. Lindsey (D. C. D. C. 1971), 324 F.Supp. 55, 59.

Johnson also insisted that there was nothing wrong with his vision. But having been informed that Johnson was blind in his left eye, defendant’s counsel pressed him about it; and after pointed cross-examination, Johnson admitted that when he was about 7 years of age, he was hit in his left eye with a board and completely lost all vision in that eye. Although he was being asked about his ability to see, Johnson persisted in saying about his left eye that “I don’t have no trouble with it. I just can’t see out of it.”

In addition to questions concerning his use of drugs and his ability to see, Johnson was asked about the state of his sobriety at the time of the events about which he was testifying. He showed no reticence in this connection. He readily admitted that at the time Robinson was shot, he was “high” on alcohol, having shared a half-pint of vodka with three friends.

The vestibule of the building into which Johnson, Suzy Foushee and Roscoe Robinson were entering in the early morning hours of September 25, 1971, was illuminated by a 50- or 60-watt bulb. The stairway to the basement had no light. Illumination for the area was furnished by a light-bulb at the foot of the stairs and one in a kitchen nearby. According to Johnson, he rushed down the stairs to the basement when he heard the noise made by the two men intruding on him and his companions. He did not look at them, but in the basement, he had either some seconds, three minutes or the time it took the man to take a jacket from him, pat it and run back upstairs because the other man was calling. Johnson did not see the man whom he said remained upstairs.

Johnson testified that on the night following Robinson’s murder, he went to a police station where he was shown three books of photographs but was not able to identify anyone. He described an interview by a police officer to whom he gave a description of the man he saw that morning in the basement of 4753 S. Indiana Avenue. That man, Johnson said he told the officer, was in his mid-twenties, 5' 11" tall, weighed about 165 pounds, was light complexioned, wore his hair in an Afro natural style, was dressed in a wet-look brown jacket, had on a brown tam that had white stripes and a ball on top, and wore small, round, tinted glasses with silver frames. Further, Johnson said, he spoke to a police artist to whom he gave his description of the man and later saw the artist’s rendition.

. Johnson was asked if his description was in a written statement. He said it was. Defense counsel demanded production of the statement. However, the assistant State’s Attorney in charge said he did not have it. Officer Baxter, the principal investigator in the case, testified that although he had seen a statement he believed was given by Johnson the night of September 25, 1971, he could not locate it. Baxter did not say he ever saw the description which Johnson said he had given the police. The assistant State’s Attorney, when pressed for production of the statement, told the court that “[i]f there is such a statement, we have no knowledge.” Therefore, the statement described by Johnson was not produced; nor does the record reflect the existence of any police artist.

On October 1, 1971, Johnson as shown by his testimony, was in custody on a criminal charge. He was interviewed by police officers Albert J. Jordan and Frank Baxter who were investigating the killing of Roscoe Robinson. In a written statement, Johnson told them that when he, Foushee and Robinson were entering 4753 South Indiana Avenue the morning of September 25, 1971, he saw two men sitting in front of the building, one a “light dude.” Tire investigators then showed Johnson five official police photos and asked him if he recognized anyone shown in the pictures. Johnson picked out one, saying that “this is the light dude [the man he saw in the basement] that was with the other dude * * * when Roscoe was shot.” Johnson was asked if he was certain this was the man, and he said he was. He was asked why he was certain, and he replied, “I’ve seen him around 47th Street and around Indiana Avenue before. I just didn’t know who he was.” The man whose picture he selected, however, turned out to be a James Brown who, sometime between September 25, 1971, and October 11, 1971, was killed in an armed robbery shoot-out in Chicago. Therefore, it appears that when Johnson said he was certain of his photo identification of the light-complexioned man who confronted him in the basement, he picked out the wrong man.

Moreover, we notice that Johnson’s October 1 statement contradicted what he said at defendant’s trial. In his testimony he said that the two men he saw in front of 4753 South Indiana Avenue on the morning in question were strangers, men he did not know. In his statement he told the officers that he knew one of the men, the one he testified was the defendant. In his testimony he said that he never had an opportunity to see the man who remained upstairs. In his statement he told the officers that the man who came to him in the basement was a “light dude” who was armed with a nickel-plated gun; the man who remained upstairs was a “dark dude [who] had a blue steel one.”

The trial court, after oral findings, ruled that Johnson was a credible and believable witness. In reviewing a conviction after a non-jury trial, we attach great weight to the findings of the trial judge, including his appraisal of the witnesses and their credibility. But his findings are not conclusive, and it is this court’s duty to set aside a conviction where the evidence is so unsatisfactory that it leaves a reasonable doubt of the defendant’s guilt. People v. Charleston, 47 Ill.2d 19, 264 N.E.2d 199; People v. Poltrock, 18 Ill.App.3d 847, 310 N.E.2d 770.

In this case, we notice that defendant was identified by Johnson only after he was shown one photograph by police officer James T. Breckenridge, who at the time was on a routine robbery investigation. Breckenridge knew Johnson as * * one who frequents the street in the narcotics field.” From his testimony, it is obvious that when Breckenridge displayed the photo, what he said to Johnson suggested he was trying to connect defendant with a robbery. In fact, this much is implicit in the trial "judge’s finding that the photo identification procedure had “* * * some taint involved in the showing of a single photograph * * *” to Johnson.

After this photo showup, Johnson called Baxter and told him he had seen a picture of the man who shot and killed Roscoe Robinson. Relevant, therefore, is Johnson’s condition at the time of the suggestive • photo showup and the lineup procedure that followed. Concerning this, Breckenridge was asked whether Johnson was under the influence of any narcotic drug when he saw him on the afternoon of November 10, 1971. Breckenridge answered, “I wouldn’t say yes and I wouldn’t say no. He appeared stable to me. He could have been.” Baxter, who took Johnson to the police station for the lineup identification of defendant, was asked, “In your opinion, was [he] under the influence of any narcotic drugs on November 10, 1971, when you first saw him?” Baxter answered, “That is difficult to say, sir.” When he was asked to explain his answer, Baxter said, “Well, in dealing with addicts on the street, there are only various obvious symptoms, when they go into a deep nod, when they get violently sick when they are withdrawing. Other than that, there is no way of actually telling without a medical examination whether at that particular .point they are under the influence or not.” Baxter was then asked if he noticed any of these symptoms in Johnson before the lineup identification. His answer was, “No, Sir.” However, investigator Michael Caccitolo, who was with Baxter when Johnson made the lineup identification and signed the written statement, testified that after the lineup procedure Johnson “[s]tarted to get a head cold appearance, the type of head cold a person . has when he is going into withdrawal.” When- asked what else he had noticed about Johnson’s appearance, Caccitolo replied, “Well, just the fact that he appeared to be going into withdrawal.”

In People v. Strother, 53 Ill.2d 95, 290 N.E.2d 201, the supreme court stated the rule that “* * * the testimony of a narcotics addict is subject to suspicion due to the fact that habitual users of narcotics become notorious liars.” (53 Ill.2d 95, 99.) This rule is supported by a long line of Illinois cases. (See People v. Crump, 5 Ill.2d 251, 125 N.E.2d 615; People v. Boyd, 17 Ill.2d 321, 161 N.E.2d 311; People v. Bazemore, 25 Ill.2d 74, 182 N.E.2d 649.) It has' meaning for the case before us. And with it in mind, we have examined Johnson’s entire testimony and compared it with the two photographs of the lineup from which he picked out defendant as the Iight-complexioned black man who confronted him in the basement of 4753 South Indiana Avenue .on the morning that Roscoe Robinson was shot and killed. In both photographs, defendant is fourth man from the left. They show that defendant is a dark-complexioned, black man. On the other hand, visual examination of each photo reveals: that the first man in the lineup is a Iight-complexioned black man. Nothing in the record explains this discrepancy between defendant’s appearance at the lineup and Johnson’s description of the man he said he saw on the occasion under inquiry.

Defendant’s possession of a pair of sunglasses when he was arrested does not help the State’s case against him. The sunglasses were introduced in evidence and we have examined the description of. them in the record. That description is nothing like the “* * ” small, round, tinted glasses with silver frames * ” *” which Johnson said were worn by the man he saw. We conclude, therefore, that the State’s evidence in this case is so unsatisfactory that it raises a reasonable doubt of defendant’s guilt. The judgment is reversed. People v. Pellegrino, 30 Ill.2d 331, 196 N.E.2d 670; People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232; People v. Ephraim, 133 Ill.App.2d 310, 273 N.E.2d 225.

Reversed.

HAYES, P. J., and DOWNING, J., concur.