author: Mr. JUSTICE ALLOY Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Henderson, Defendant-Appellant.
    (No. 72-176;
    Third District
    March 29, 1974.
    STOUDER, J., dissenting.
    Stephen Hurley, Assistant Appellate Defender, of Ottawa, for appellant.
    Jose Nunes, Assistant State’s Attorney, of Joliet, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendant Larry Henderson appeals from a conviction of burglary in the Circuit Court of Will County. A jury had found him not guilty of the charge of murder but did find him guilty of burglary. He was sentenced to a minimum of 3 years and a maximum of 6 years, but as a result of a summary motion for sentence reduction, without prejudice to the appeal, his sentence was reduced to a minimum of 2 years with a maximum of 6 years. On Henderson’s appeal from the conviction of burglary, he contends (1) that the jury verdict of guilty of burglary was not based on proof of guilt beyond a reasonable doubt and (2) that the admission of testimony relating to another offense which defendant allegedly committed in the identical premises here involved was prejudicial.

The record indicates that at 4:45 in the morning of October 13, 1971, Police Officer Lantka noticed that there was a light on in the living quarters of Mrs. Agamy, who conducted a store in the same premises. The officer checked all entrances to the building and noticed that they were locked and undisturbed. He also checked the coal chute and found that it was open. He radioed for assistance and an off-duty policeman joined him shortly.

Officer Lantka then went into the basement through the coal chute and made a thorough search of the basement. During his search, with a flashlight, he observed the door leading into the first floor business section of the house, and noticed that the door was closed. He also checked behind a door which was not being used, but which was leaning against the wall and was disfunctional, and found nothing behind it. The policeman then rejoined the other officer by coming out through the coal chute.

While Officer Lantka was in the basement, the other officer radioed the dispatcher to telephone Mrs. Agamy. After the telephone started to ring and Officer Lantka came out of the coal chute, the light in the living quarters went out. One of the officers radioed to have the telephone call stopped. The officers then knocked on the front and rear doors, calling out that they were police and calling for Mrs. Agamy to find out if she was all right. There was some evidence that the policemen could hear a noise and could see the rear doorknob turning.

Officer Lantka then re-entered through the coal chute and walked, with pistol drawn, toward the rear entrance to the basement. He noted a shiny object and called, “Mrs. Agamy, is that you? I’m a police officer.” As he walked closer he saw that the shiny object was a knife and that someone was holding it and hiding behind the disfunctional door. The officer saw what turned out to be a part of defendant’s right arm and lower leg protruding from behind the disfunctional door, which was leaning against the wall. The officer called to the defendant three times to drop the knife, and, following the third call, the knife started to come up a little. The officer then told defendant to drop the knife or ‘Til blow your head off”. Defendant Henderson dropped fire knife. The officer then walked to the back door, unbolted it and opened it. He told defendant to get up slowly and walk out of the basement. At that time, the officer testified, Mr. Henderson’s hand was covered in the fashion of a glove by a white sock with a red and black band near the top. Defendant had no socks on his feet although he was wearing shoes. Defendant had some blood visible on him and had a slight head injury. It was noted that the basement ceiling and pipes are low.

The defendant was placed in the squad car and said: “Is she all right. I was just coming by to. help her. Is she all right.” The officers then went back into the basement and upstairs and noticed that there were many items scattered on the floor. The cash register door was drawn out and there were papers all around it. The officers then went to the living quarters where they found Mrs. Agamy’s body on the bed. There were papers all over the floor, the dresser drawers were open, and there was blood on the floor. A police officer checked the remaining windows and entrances and returned to the squad car.

After defendant had been advised of his constitutional rights he agreed to talk without a lawyer and asserted that he was walking along in back of the store and heard Mrs. Agamy call for help. He stated he had been over playing pool across the street and wanted to know whether Mrs. Agamy was all right. He stated he simply wanted to help. At the time, defendant was quite disheveled and smelled strongly of intoxicants. Defendant stated that he had been at a tavern and left about 12:30 A.M. after having two or three beers. He said he walked to his auto and picked up his knife from under the seat. There was no explanation of for what purpose he picked up his knife. Defendant stated he then started toward the alley behind the Agamy building to walk to another tavern at which time, he stated, he heard Mrs. Agamy call for help. He said he saw no one but did see a light at the rear of her building. He said he saw the rear basement door standing open and that he entered through that door and stopped to close the door behind him. He said he thought he closed the door tightly, but thought he did not lock the door behind him. He said he then walked two or three more steps into the basement when suddenly someone struck him in front over the top of his head, and that he was unconscious until he heard the police calling to Mrs. Agamy, identifying themselves as police.

The autopsy which was performed on Mrs. Agamy’s body indicated that she was scratched; had a black eye; her nose was broken; she had a broken rib; a contusion on the lung; and a hemorrhage around the kidney. Her heart indicated signs of a previous heart attack. The pathologist’s opinion was that the traumas and injuries were not severe enough to cause her death. A medical opinion was given that the shock or fright might have caused an outpouring of adrenalin which speeded up the heart causing fibrillation which caused the death of Mrs. Agamy.

A number of tests were made which disclosed that the blood found in Mrs. Agamy’s room was her type of blood and that none of that type of blood was found on defendant Henderson or his clothing. A number of weeks after the incident, a white sock with a black and red band around the top was removed from a spare bedroom located next to Mrs. Agamy’s bedroom, and the hair found inside that sock was similar to the ankle hair of defendant Henderson.

At the trial, Walter Countryman testified, over a defense objection, that previously, on October 10, 1971 (just 3 days prior to the night defendant was apprehended in the premises), he and defendant Henderson broke into Mrs. Agamy’s premises and took $700 from her safe and cash register. She was asleep at the time. Countryman admitted he had been promised a probation recommendation if he testified. He had left town immediately after the October 13, 1971, date. When Countryman returned a week later he first told police he had never been in the Agamy establishment. There was also testimony of two witnesses who indicated that defendant Henderson had left the Hideaway Tavern at about 8:30 P.M. rather than at the time to which he testified.

As indicated, the jury returned a verdict of not guilty on the felony-murder count but found defendant guilty on the burglary count. Defendant contends that there was not sufficient proof of his guilt of burglary beyond a reasonable doubt. The argument is premised upon the alleged failure of the State to prove that defendant had entered upon the premises with intent to commit theft. The State countered by pointing out that circumstantial evidence may be used for the purpose of establishing intent from conduct itself. The State points out that proof of unlawful entry into a building which contains personal property which could be the subject of larceny could give rise to an inference that will sustain the conviction of burglary in the instant case. (People v. Polansky, 6 Ill. App.3d 773, 287 N.E.2d 747; People v. Johnson, 28 Ill.2d 441, 192 N.E.2d 864; People v. Thompson, 48 Ill.2d 41, 268 N.E.2d 369.) Defendant contends that there was no specific proof that he had been on the first floor and out of the basement. Hair discovered on the inside of the white crew sock found on the first floor, however, did match the type of hair found on defendant Henderson’s ankles.

Defendant contends that, while intent can be inferred from unauthorized presence in a dwelling, the other evidence raises sufficient facts to negate the inference of an intent to commit a felony principally because no property was taken from Mrs. Agamy. No property, however, need be taken to sustain a conviction of burglary (People v. Gooch, 70 Ill.App.2d 124, 263 N.E.2d 603; People v. Figgers, 23 Ill.2d 516, 179 N.E. 2d 626). As triers of fact, the responsibility rests with the jury to determine which of the conflicting testimony of witnesses is to be believed (People v. Umphers, 133 Ill.App.2d 853, 272 N.E.2d 278). Defendant cites People v. Dougard, 16 Ill.2d 603, 158 N.E.2d 596, in support of the contention that the facts must so thoroughly establish the guilt of the person accused as to exclude every reasonable hypothesis of guilt and that, even though jurors are judges of the weight of the evidence in criminal cases, the court should reverse the judgment of a conviction resting upon circumstantial evidence that raises a little more than a suspicion against an accused. The principle announced in the Dougard case, however, is not applicable to the facts in the case before us. The evidence against defendant is strong and found convincing by the jury. The record shows that Officer Lantka first searched the basement and that defendant Henderson was not there and, also, that the door at the top of the stairs was closed. The officer found nothing behind the nonfunctional door, where Henderson was later found to be hiding, armed with a knife. On the second search by Officer Lantka, the door at the top of the stairs was ajar 6 or 7 inches. Defendant, as noted, was then found hiding behind the nonfunctional door which was leaning against the wall and defendant was holding his knife in the threatening position. Also, hair found with blood on the thigh of defendant’s pants was similar in color and characteristics to the head of hair standard of the hair of Mrs. Agamy.

It was impossible for anyone to have left the premises after the officer arrived because of the arrangement of the premises and the exits and the presence of the officers. If defendant had been knocked unconscious, as he claimed, he would have been found by Officer Lantka when the officer made the first search before the light in the living quarters was turned off. No one could have entered or left the building after Officer Lantka had arrived without being seen and no one else was observed.

The jury obviously did not believe defendant’s Good Samaritan story, and found it to be inconsistent with other facts, as the jury was entitled to do. It is properly noted by the State that defendant’s story could have fallen in the category of other excuses for presence in a place where a crime is committed which a jury found incredible. (People v. Gooch, 70 Ill.App.2d 124, 263 N.E.2d 603; People v. Umphers, 133 Ill. App.2d 853, 272 N.E.2d 278; People v. Brown, 131 Ill.App.2d 717, 263 N.E.2d 603.) We believe that the jury had ample evidence upon which. to base the jury verdict and that it was adequately supported by evidence upon which proof beyond a reasonable doubt of intent to commit a theft could be sustained.

As we have indicated, the evidence of Walter Countryman was to the effect that on October 10, 1971, 3 days prior to the incident for which defendant Henderson was being tried, he and Henderson had entered the Agamy establishment and stolen $700 from the safe and cash register. The trial court out of the presence of the jury, had considered the question of allowing such testimony carefully before allowing Countryman to testify. Decisions which were cited to the trial court, People v. Allen, 1 Ill.App.3d 197, 272 N.E.2d 196, and People v. Barnes, 2 Ill.App.3d 461, 276 N.E.2d 509, indicated that evidence which discloses that accused committed crimes, other than the one charged in tire proceeding in which such evidence is tendered, would be admissible where such evidence is relevant to the contested issue in the case before the court. In the Barnes case the court indicated that the evidence was properly admitted for such probative value even though it could have some prejudicial effect. The trial court indicated that defendant either went into the place, as he stated, when the lady called out for help, or he went in there to commit burglary. The court then - concluded that the evidence of Countryman was pertinent even though it might be prejudicial and that it should be presented to tire jury. We agree that normally such evidence of commission of a separate crime should not be admitted unless its probative value outweighs its prejudicial effect.

The problem before the court when such evidence is tendered is to weigh the probative value of tire evidence of another crime as against its prejudicial effect. This is clearly left to the sound discretion of the trial judge (People v. Norfleet, 4 Ill.App.3d 758, 281 N.E.2d 761; People v. Clark, 104 Ill.App.2d 12, 244 N.E.2d 842; People v. Kovacivich, 10 Ill.App.3d 797, 295 N.E.2d 33). The trial court in the instant case properly weighed the issue of whether the evidence was or was not admissible on the basis of whether its probative value outweighed its prejudicial effect, and determined that it was admissible. Since tire evidence of Countryman was to the effect that a burglary of the same premises by defendant had occurred 3 days previously and had netted $700 to defendant and Countryman, the court determined that the probative value outweighed the potential prejudicial effect. We believe the court properly exercised its sound discretion under such circumstances, and that the evidence tended to prove intent and the guilt of the accused for the crime of burglary for which he was being tried, in view of the other supporting evidence to which we have referred. We, therefore,, conclude that there was no reversible error in permitting the introduction of the testimony of Walter Countryman.

Since we find no reversible error in the record, the judgment of the Circuit Court of Will County and the 2-to-6-year sentence imposed are affirmed.

Affirmed.

SCOTT, P. J., concurs.

Mr. JUSTICE STOUDER

dissenting:

In my opinion the admission of evidence tending to show defendant committed a separate offense was error in the present case.

The rule is well settled that during prosecution for a particular crime, evidence showing or tending to show the accused committed another crime wholly independent of and unconnected with that for which he is being tried is irrelevant and inadmissible. (I.L.P. Criminal Law, sec. 301.) Such evidence is not considered relevant because it merely tends to show a propensity to commit criminal offenses and is not a basis for an inference that the accused committed the crime in question. (Card, Illinois Evidence Manual, Rule 89.) An equally significant reason for excluding evidence of other offenses is the desirability of excluding collateral issues. A defendant ought not be required to defend himself against charges of a criminal offense for which he is not being tried and for which he may not have been charged. An exception to the exclusionary rule permits admission of other offenses if there is a connection between the other offense and the offense charged or where such evidence tends to prove a material fact in issue. In either case the evidence is deemed to be relevant. Common examples include evidence which shows identity of the person committing the crime, absence of mistake or accident, common design or plan, conspiracy, proximity, motive, intent or knowledge. The reasons for excluding evidence of other unrelated crimes commend a broad application of the exclusionary rule and correspondingly the same reasons warrant a limited application of the exception.

The majority suggests that Countrymans testimony regarding the other offense falls within the exception to the exclusionary rule because the evidence tended to prove intent and guilt of defendant. I am unable to see any such tendency. The two offenses appear to be completely independent of one another and no similarity between them is alleged by the State other than the fact that both involved the same building. Evidence tending to show intent to commit a crime on one day should not be used as a basis for inferring that one has an intent to commit a separate crime several days later without some connecting factor linking the two occasions. If such an inference is made, the most that can be said is that defendant has a propensity for committing crime. According to the rule if this is the only purpose for admitting the evidence, it is inadmissible.

In Callaghan’s Illinois Evidence, 1973 Supplement, volume 4, section 5.38, it is stated that irrespective of the exceptions to this exclusionary rule, evidence of other criminal activity is not admissible where minor probative value is outweighed by major prejudicial effect. See also People v. Butler, 133 Ill.App.2d 299, 273 N.E.2d 37, and McCormick, Handbook of the Law of Evidence, ch. 17, sec. 190 (2d ed. 1972).

In determining the probative value of evidence, not only should relevancy of the evidence be considered but also its reliability. The testimony of the State’s witness, Countryman, in the instant case appears weak in both respects. Evidence of a break in and theft of $700 from the Agamy establishment 3 days prior to the crime presently charged was not corroborated. No police record was offered by the State. Also, the fact that probation was recommended in exchange for Countryman’s testimony reduces its reliability. In considering relevancy, again I point out nothing said by Countryman suggests a connection or relationship between the two crimes nor does evidence concerning the other offense have a tendency to prove a material fact in issue in the case at hand.

The prejudicial effect of the testimony is obvious. A collateral issue is interjected which detracts the jury’s attention from the real issue. Defendant is required to defend against a crime with which he has not been charged. Oftentimes too much weight is given to such evidence whereby the jury is apt to convict because it believes defendant is an evil person or because defendant is believed to be guilty of some crime even though perhaps not of the specific offense for which he is being tried. The court must not lose sight of the underlying policy of protecting the accused against unfair prejudice. In my opinion even if the evidence presented by Countryman could be considered within an exception to the rule, any possible probative value is greatly outweighed by the prejudicial effect upon the defendant and should not be admitted.

I believe the rebanee by the trial court and the majority on People v. Allen, 1 Ill.App.3d 197, 272 N.E.2d 296, is misplaced, not only because the facts are substantially different, but because the Allen case represents a departure in applying the exception to the general prevailing exclusionary rule. In Allen, the defendant was charged with robbery and admitted being on the premises at the time but denied any participation with two others who actively committed the offense. The defendant called one of the admitted participants in the offense as his witness and such witness in his testimony-in-chief indicated the defendant was not a participant in the robbery. On cross-examination it was elicited from the witness that 4 days subsequent to the date of the offense for which the defendant was charged, the witness and the defendant had committed another robbery. Although the court in its opinion indicates that the primary purpose of the evidence of the subsequent offense was to “discredit” the equivocal testimony of the defendant by impeaching the witness’ testimony and indirectly that of the defendant, ordinarily impeachment is limited to proof of conviction of another offense, rather than evidence of the offense itself.

While I have no quarrel with the decision of the majority on sufficiency of the evidence for the conviction, I believe admitting the evidence tending to show a separate unconnected offense deprived defendant of a fair trial.


source: Caselaw Access Project

author: Mr. JUSTICE DIXON Mr. JUSTICE STOUDER

license: Public Domain

text:
    Dorothy S. Thiele, Plaintiff-Appellee, v. Bernard J. Kennedy et al., Defendants-Appellants.
    (No. 73-164;
    Third District
    March 29, 1974.

      STOUDER, J., specially concurring.
    Eugene L. White, of Peoria, for appellants.
    Jack C. Vieley, of Peoria, for appellee.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This action was brought to recover damages occasioned by the alleged willful and wanton conduct of each defendant in the maintenance and supervision of Peoria County Jail. After a jury verdict for plaintiff, Dorothy S. Thiele, the Circuit Court of Peoria County entered judgment on the verdict in amount of $5000. This appeal is from that judgment.

The plaintiff alleged that while she was an inmate in the jail certain other inmates inflicted bodily harm upon her. She claimed that the defendant, Bernard J. Kennedy, Sheriff of Peoria County, and defendant County of Peoria were each guilty of willful and wanton acts in allowing plaintiff to be exposed to allegedly dangerous persons. Defendants denied the acts charged and further claimed the benefit of statutory immunity from such a cause of action.

The basic issue is whether plaintiff’s claim is barred by the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 1—101 et seq.).

Plaintiff’s cause of action is that defendants were each guilty of willful and wanton conduct in one or more of the following:

“1. Allowed and permitted certain dangerous and violent persons to roam free and about the same tier of the jail where the plaintiff was even though the defendants knew of the dangerous and violent tendencies of said persons.
2. Allowed certain dangerous persons to remain alone and unguarded with the plaintiff without the presence and supervision of a matron.
3. Failed to lock said dangerous persons in separate cells.
4. Allowed certain dangerous persons the use and possession of a broom.
5. Failed to take the necessary precautions in order to protect the health and safety of the plaintiff and prevent injury and harm to her.”

Section 2—201 of the Act provides that “except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused”. This immunity is the most significant protection afforded public employees by the Immunity Act. If the more specific immunities set forth in other sections of the Act do not apply, an employee’s liability is governed and limited by its general terms. If he acts “in determining policy when acting in the exercise of discretion even though abused” the employee is not liable for injuries he inflicts in the course of his official duties. And by virtue of section 2—109, the same protection from liability extends to the public entity for which the employee is working. If the employee is immune, so is his employer. Woodman v. Litchfield Community School District No. 12, 102 Ill.App.2d 330.

Section 2—201 incorporates in statutory form all or at least a substantial part of existing case law governing employee immunities. The principle is that public officers should not be liable in tort for injuries arising out of the exercise of governmental powers vested in good faith if the powers are discretionary as opposed to ministerial in nature. This principle, known as quasi-judicial immunity, was derived from the immunity enjoyed by judges for actions taken by them in the course of their official duties. See Gilbert v. Bone, 64 Ill. 518, 524-25; McCormick v. Burt, 95 Ill. 263, 266; Baum, An Introduction to the Illinois Immunity Act, 1966 U. Ill. L.F. 981, 994.

The principle was recently applied in an action against the sheriff of Cook County for failure to provide medical treatment to an inmate of the county jail. (Bush v. Babb, 23 Ill.App.2d 285.) And in Kelly v. Ogilvie, 64 Ill.App.2d 144, 147, aff’d, 35 Ill.2d 297, a Barn boss” prisoner entered plaintiffs cell and beat and injured plaintiff. The appellate court held that prison administration by the sheriff involved the exercise of discretion and came within the doctrine of quasi-judicial immunity. Plaintiff in Ogilvie contended that the wilful nature of the tort brought it outside the scope of quasi-judicial immunity. The court rejected the argument stating, “The complaint contains no explicit allegation of malice or of direct participation on the part of the sheriff and the warden.”

Both Bush v. Babb and Kelly v. Ogilvie were decided on facts which arose prior to the adoption of the Act. However, the following cases have reaffirmed the principle of quasi-judicial immunity under section 2—201 of the act; Fustin v. Board of Education of Community Unit District No. 2, 101 Ill.App.2d 113 Young v. Hansen, 118 Ill.App.2d 1 (leave to appeal denied); Ten Eicken v. Johnson, 1 Ill.App.3d 165; Anderberg v. Newman, 5 Ill.App.3d 736. This court in Lusietto v. Kingan, 107 Ill.App.2d 239, at page 244, stated, “Although the case of Molitor v. Kaneland Community Unit School Dist., * * * abolished the principle of governmental immunity, it did not destroy the principle of public officiaVs immunity." (Emphasis supplied.)

• 4 The immunity is conditioned upon good faith exercise of discretion and extends only to acts not resulting from corrupt or malicious motives. McCormick V. Burt, 95 Ill. 263, 266; People ex rel. v. Schreiner Courtney, 380 Ill. 171, 179; Young v. Hansen, supra; 63 Am.Jur.2d Public Officers and Employees, sec. 289.

We believe that in the instant case, the plaintiff had the burden of alleging and of proving that the acts of the defendant sheriff were from “corrupt or malicious motives”. In Young v. Hansen, supra, on page 9, it was stated, “* * * a public official may not hide behind the cloak of immunity if he maliciously and intentionally misuses the powers of his office”. In Anderberg v. Newman, supra, negligent and wanton conduct was held not to be sufficient to overcome the protection afforded acts in the exercise of official discretion. The conduct charged must wear a cloak of malicious intent.

For the foregoing reasons the judgment of the Circuit Court of Peoria County is hereby reversed.

Judgment reversed.

SCOTT, P. J., concurs.

Mr. JUSTICE STOUDER

specially concurring:

I concur in the result reached by the majority of the court, but I am not wholly in accord with the reasoning supporting the result. So far as the doctrine of quasi-judicial immunity is concerned both at common law and as set forth in the statute, it is my opinion that the issue is not whether the doctrine is applicable but whether the proof supports the allegation.

The complaint alleges willful and wanton misconduct. From the cases cited by the majority, I conclude that if willful and wanton misconduct is alleged, the theory of quasi-judicial immunity is inapplicable. However, the jury was propounded the following special interrogatory;

“Do you find that the defendant, Bernard J. Kennedy, knew before the occurrence complained of, or had reason to know of, dangerous and violent tendencies of Christine Lancaster, Lucille Washington and Mary A. Wilson, or one of them, to harm and physically assault others?”

This interrogatory was answered in the negative by the jury and in my opinion refutes the plaintiff’s claim of willful and wanton misconduct. Accordingly, I believe a reversal of the judgment of the trial court is required but for different reasons than those proposed by the majority opinion.

Even though I agree that the doctrine of quasi-judicial immunity has been applied in favor of sheriffs or wardens, it seems to me that, as in pre-Molitor days, we are expecting individuals to accept the consequences of injuries caused by the misconduct of governmental agents. It seems to me that perhaps a distinction could and should be drawn by the legislature where the person injured is in the custody of some governmental unit or agency and therefore in a poor position to protect his health and safety. It goes without saying that a person completely subject to the custodial restrictions imposed by jail has few alternatives which he may exercise in support of his own well-being and consequently the governmental unit ought not to be free from liability caused as a consequence of its custodial authority.


author: Mr. JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George T. Dixon, Defendant-Appellant.
    (No. 72-161;
    Third District
    April 4, 1974.
    William E. Eaken, of Kankakee, for appellant.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court;

Defendant George Dixon appeals from a judgment of the Circuit Court of Kankakee County following a verdict of the jury in which he was found guilty of armed robbery.

On appeal in this court it is contended by defendant that the jury could not convict him, George Dixon, because, based on the same evidence, the jury had acquitted a co-defendant, Robert Williams, It is also contended that the in-court identifications of George Dixon should have been suppressed because they resulted from improper photo displays.

It appears from the record that on March 20, 1970, three men held up a clothing store in Kankakee. One man pulled a shotgun from under his coat and announced the hold-up. All employees and customers were ordered into dressing rooms. The second robber had a pistol and took the manager of the store to the office and cleaned out the safe. The third robber was armed with a pistol and stood guard over the people who had been herded into the dressing rooms.

Following the robbery, three of the employees went down to the police station to look at mug shots. The police did not have any pictures of defendants in this case because they had not been arrested previously. The investigating officer who was assigned to the case stated that the employees had identified no pictures on the night of the armed robbery but only one of the employees agreed. The cashier, Kathleen Flowers, testified that on the night of the robbery she had identified a picture of Robert Lott as being one of the robbers. About 2 weeks later a second, more selective, photo display was shown to the manager and the other employees, including a fourth employee who had not been at the first photo display. The manager then identified pictures of George Dixon and Robert Williams, which the police had received in the mail that day. The pictures they received were employment photographs rather than police mug shots. Kathleen Flowers and Edna Legacy, employees, selected a picture of Robert Williams as that of the robber who, armed with a pistol, had stood guard over them in the dressing room. Edna Legacy selected a picture of Robert Lee Lott, as the robber who had cleaned out the safe, while Kathleen Flowers then picked out defendant Dixon, as opposed to her earlier selection of Robert Lee Lott. Another employee, John Krisko, identified the employment pictures of Robert Williams and George Dixon as being two of the robbers. A few days after-wards, Robert Williams and George Dixon were arrested and charged with the armed robbery. There was no physical lineup or show-up until the trial.

On November 25, 1970, more than 5 months after the indictment, and while defendant Dixon was represented by counsel, the manager of the store was shown another photo display which included mug shots and two employment photographs of Dixon and Williams. On that same day Edna Legacy was shown the photo display which she had previously seen, plus more mug shots and the original employment shots of Dixon and Williams. This time she picked out a picture of George Williams instead of Robert Lott.

Defendant, together with his co-defendant Williams, represented by tire same counsel, among other motions, made a motion before trial to suppress the identification testimony based upon the exhibition of photographs referred to. It was labeled “Additional Motion to Suppress In-Court Identification.” A hearing was had on the motion, at which defendant and the co-defendant were permitted to remain outside the courtroom outside the view of the identifying witnesses at their request. After the court had taken the motion under advisement, the trial court denied the motion and in a written memorandum extensively covered the evidence heard and made specific findings. No objections to the admissibility of the testimony of identifying witnesses was made at the trial, insofar as the abstract of record discloses. At the trial, the defendants were identified by the store manager and three other employees. Three employees also testified that they had seen Robert Williams and George Dixon together in the store about 30 minutes before the robbery. George Dixon called four witnesses who testified that Dixon had in fact been in the clothing store with his girl friend. These witnesses testified that Dixon had left the store before the armed robbery occurred. Williams was not identified by the store’s manager, the principal prosecution witness, although Dixon was positively identified by the manager as one of the robbers.

As indicated, defendant contends that the evidence introduced as against defendant and his co-defendant, Williams, was identical. The record indicates that this was not so. The contention of defendant would be sound if the evidence as against both defendants was identical in all respects. (People v. Moore, 14 Ill.App.3d 361, 364; People v. Hill, 14 Ill. App.3d 368, 373.) It is noted that the manager who was the prime victim of the robbery positively identified defendant in open court. He did not, however, identify the co-defendant Williams. Defendant was also identified. by another witness, Jack Chaplinski, an acquaintance and former employee at a local plant, as being present at the scene of the crime. No such identification was made of defendant Williams. Defendant’s alibi testimony was also contradicted by his statement in writing made to the police at the time of his arrest, notably, his contention that he had not been in the store on the day of the crime. It is also apparent that, in several important respects, the evidence as to defendant and his co-defendant Williams was not similar, and certainly was not identical. A jury could reasonably find from the evidence that defendant was guilty, while acquitting his co-defendant Williams, who was not identified by the witness who would be principally able to identify the perpetrators of the crime.

In attempting to sustain the motion to suppress identication of defendant, it is clear that defendant has the burden of establishing the elements necessary to a determination that the pre-trial identification procedure was unfair. (People v. Brown, 52 Ill.2d 94, 100; People v. Bradley, 12 Ill.App.3d 783, 788.) He must establish that the pre-trial identification procedures were so suggestive as to give rise to the very substantial likelihood of irreparable misidentification, and also that those procedures must be shown to have been “unnecessary” under the totality of the circumstances. (People v. Tuttle, 3 Ill.App.3d 326, 330.) If, however, the in-court identification is shown to have had an independent origin arising from other uninfluenced observations of defendant, a motion to suppress identification testimony should be denied. People v. Tuttle, 3 Ill.App.3d 326, 330.

Without repeating in detail what the trial court had noted, we agree with the trial court’s conclusion that there was no suggestiveness of the character which would require suppression of the in-court identification. It is clear, also, that the witnesses had ample opportunity for independent observation of the defendant Dixon, under good lighting conditions, and in close proximity to defendant for a period of time from 5 to 7 minutes. The viewing of photographs on the last occasion was in the nature of surplusage and ostensibly conducted for the purpose of trying to identify the third robber who apparently has never been identified or apprehended. As we have noted, since the police had no mug shots of defendants, the police' brought in other pictures as soon as the pictures were available for viewing by the witnesses. Confusion of some witnesses in identifying photographs of persons with similar physical characteristics was not of such character as to justify the conclusion that witnesses were unfairly influenced by the photographs. The identification by the principal witness and the others, by direct view of defendant in court, clearly had an independent origin and was not dependent on the viewing of the photos.

The finding of a trial court that a pre-trial motion of the type before us should be denied will not be disturbed on review unless it is against the manifest weight of the evidence. It is apparent from the evidence in the record that the use of the photographs obtained by the police was necessary under the totality of the circumstances, since witness Chaplinski had noted his positive identification of défendant from previous acquaintance and co-employment with George Dixon. He stated he saw Dixon in the store near the time of the robbery. Dixon had at first denied he was there that day, but thereafter admitted he had been there and contended he left before the robbery. Since the police had no mug shots of defendant, the investigators were able to obtain small employment photographs from U.S. Steel, and the investígator then photographed them to the same size format as mugshots of persons approximating the age, height, and with other characteristics of George Dixon. The trial court specifically made the finding that, if suggestiveness was present, it was not substantial. We find no basis for reversing such conclusion. The witnesses at the hearing all testified that their selection of defendant’s photo was not influenced by any difference between photographs which they were able to perceive. In any event, on the record, the in-court identification of defendant Dixon, had an independent origin arising from other uninfluenced observations of defendant.

It is seriously contended by defendant, that since he had counsel acting for him at the time of the last examination of photos which came after defendant’s indictment, he should have been entitled to have his counsel present at the so-called photo exhibition. While defendant recognizes that this is not the rule in Illinois, he suggests that it is time for thé court to change such rule and to permit counsel for an indicted defendant to be present at all such photo exhibitions. We do not believe there is any precedent which would justify this court in inaugurating or directing a change in the rule relating to photographic exhibitions to potential witnesses, and we, therefore, will not undertake to initiate a modification of such rule.

Since we. find no reversible error in the record, the judgment of the Circuit Court of Kankakee County will, therefore, be affirmed.

Affirmed.

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


author: Mr. JUSTICE THOMAS J. MORAN

text:
    Southgate Bank, Plaintiff-Appellee, v. Don L. Wooden, a/k/a Donald L. Wooden et al., Defendants-Appellants.
    (No. 73-57;
    Second District
    April 3, 1974.

      William E. Schirger, of Schirmer, Schirger, Graff & Begar, Ltd., of Rockford, for appellants.
    Pedderson, Menzimer, Conde, Stoner, Ferolie & Spelman and Hyer Gill, Brown & Remencius, both of Rockford (James C. Spelman and Dale F. Conde, of counsel), for appellee.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

From the granting of a preliminary injunction and order of possession, defendants appeal claiming that the trial court erred in striking a portion of the praecipe pertaining to the record in another case, in granting the petition for a temporary restraining order, and in granting the preliminary injunction and order of possession.

The plaintiff loaned the corporate defendant $168,513.13, evidenced by a demand note and security agreement which pledged tire corporate assets as collateral. In addition, the individual defendants executed notes: one in the amount of $70,850 and one for $4,825.66 (both due January 3, 1973), and a $10,000 note payable by monthly installments of $200.38, its remaining balance to be paid by October 31, 1977. Pledged as collateral in these notes and the security agreements were the individual defendants’ business assets, real property, personal property and lease agreements. ...

, On December 28, 1972, in case No. 72-3758, plaintiff secured an order temporarily restraining the corporate defendant from transferring or disposing of certain of the pledged assets. On January 2, 1973, the same judge who issued the order dissolved it.

On December 29, 1972, prior to the above order being dissolved, plaintiff, deeming itself insecure because of an accumulation of events, went before another judge and filed a complaint, No. 72-3773, requesting a preliminary and permanent injunction, possession of the collateral and damages for the wrongful detention of the collateral. At the same time, plaintiff filed a second petition for an order temporarily restraining defendants from removing, transferring or disposing of the pledged assets; the order was granted without notice or bond. On January 5, 1973, hearing commenced on plaintiffs complaint as amended and on defendants’ motion to vacate the second temporary restraining order.

At trial, a bank official testified that the notes were then in default but that no written notice has been given the defendants in accordance with the security agreements. On January 10, after 4 days of hearing, the court granted plaintiff possession of certain property pledged as collateral, enjoined defendants (by way of preliminary injunction) from interfering with plaintiffs possession, and dissolved the temporary restraining order of December 29, 1972.

Defendants appeal the orders entered in case No. 72-3773. Their praecipe sought to include the record in case No. 72-3758 although that record was not made part of the evidence in the appealed case. On plaintiff s motion, the court struck from the praecipe the request for pleadings filed in case No. 72-3758. Defendants argue that the court acted without authority and that to permit such action would in effect eliminate evidence on issues which they sought to have reviewed. In support of their argument, defendants infer that the trial court took judicial notice of the entire record in the former case and reason that this entitled them to include that record in the instant appeal. The inference is unfounded. All that the trial court noted from case No. 72-3758 was that both counsel appeared before another judge and the original restraining order did not include the vehicles and equipment pledged as securities. These facts do not create a material omission of introduced evidence in the case at bar nor are they material to the issues raised here. (Supreme Court Rule 329 (Ill. Rev. Stat. 1973, ch. 110A, § 329); Joseph D. Foreman & Co. v. Fieri, 6 Ill.App.3d 313, 316 (1972).) We find no error on this issue.

It is next argued that the trial court erred by allowing the second temporary restraining order. This was an appealable order (Bohn Aluminum & Brass Co. v. Barker, 55 Ill.2d 177 (1973)) from which the defendants did not appeal. Further, the order was dissolved by the trial court, as requested by the defendants, and became moot.

It is also contended that the court erred in granting the preliminary injunction and order of possession since the plaintiff failed to comply with the notice provision of the security agreements. The relevant parts of the notes provide:

“In addition to all other rights possessed by it, the Bank, * * * may * * ** (b) notify the parties obligated on any of the Collateral to make payment to the Bank of any amounts due or to become due thereunder; * * * (e) exercise such additional rights and powers, if any, with respect to any security for * * * any of the Liabilities, as may be provided in any written instrument (in addition to this Note). In the event of non-payment, when due, of any amount payable on any of the Liabilities, or if the Bank shall feel insecure for any reason whatsoever, * * * (1) this Note and all other Liabilities may, at the option of the Bank, and without demand or notice of any kind, be declared, and thereupon immediately shall become due and payable * *

The relevant parts of the security agreements provided:

“7. ° * * (c) if default is made in the due and punctual payment in full of any indebtedness secured hereby when and as any part of such indebtedness shall become due and payable; * * * or (e) if any warranty, representation or statement made or furnished to Southgate by or on behalf of the Debtor in connection with this agreement proves to have been false in any material respect when made or furnished; * * * 8. Debtor agrees that upon the occurrence of any of the events of default set forth in paragraph 7 hereof, the full amount remaining unpaid on the indebtedness secured hereby shall at the option of Southgate, by notice in writing sent by mail * * *, be and become due and payable forthwith * *

Since plaintiff is not only seeking to collect the amount due under the notes but also seeks to acquire possession of the security pledged, wé find the notice clause within the security agreement to be applicable. Illinois law is clear as it concerns the foreclosure on the security of a note. The institution of a lawsuit on the note is notice of the most unequivocal character that the holder wishes to avail himself of his option to accelerate the repayment of the debt and to foreclose on the security. (Curran v. Houston, 201 Ill. 442, 446 (1903); Heeren v. Smith, 276 Ill. App. 438, 441 (1934).) However, where the agreement contains a clause whereby the debtor must be given notice of the creditors election, the notice provision must be complied with prior to acting on the elected option. Clevinger v. Ross, 109 Ill. 349, 352 (1884). See also Meek v. Electrical Engineering Equipment Co., 282 Ill.App. 616, 618-19 (1935); Straus v. Turnquist, 279 Ill.App. 572, 579-81 (1935); Home Federal Savings & Loan Association v. LaSalle National Bank, 130 Ill.App.2d 285, 288 (1970).

We find that before plaintiff could seek to gain possession of the collateral under the notes, it was required to mail the defendants written notice that it was exercising its option under the security agreement. Were it not for other factors we would agree with defendants that the plaintiff was premature in its action. The record here, however, reveals intervening facts that this court cannot dismiss from consideration. On December 23, 1972, an accounting firm that examined the corporate defendant’s books reported to plaintiff that the net loss on the corporation’s balance sheet should be adjusted upward from $4,251.66 to $51,-845.36. On the first business day thereafter, prompted by this information, the parties held a meeting during which the findings of the accounting firm were disclosed to the defendants. They were told that no further funds would be advanced to the corporation, that the operations of the corporation should be “wound down,” and that plaintiff’s representative would be placed on the premises to oversee such winding down. Defendants agreed to this arrangement. The next day, December 27, 1972, defendants’ spirit of cooperation was further evidenced by Wooden’s call to plaintiff informing them that he was unable to raise the needed funds. In this conversation, Wooden stated that he was going to turn the keys over to plaintiff and that, because his house was involved, he and his wife could move into an apartment. Plaintiff explained to the defendant that by the terms of his individual notes for $70,850 and $4,825.66, they would wait until January 3,1973, before calling those due and that presently only the corporate defendant’s demand note for $168,-513.13 was being called due and payable. Later that evening, Mr. Wooden, Mr. Schirger (defendants’ attorney) and Mr. Daughtry (the corporate vice president), met with the bank official who advised them that- plaintiff wished to take an inventory and remove any perishable goods. No objection was made by the defendants and a load of produce was sent to Chicago that evening.

The apparent veil of cooperation was removed when, on the following afternoon, plaintiff’s representative observed the movement of trucks and produce, contrary to the previous agreement. Mr. Shirger was observed on the corporate premises and, when asked by plaintiffs representative about the movement of the produce and vehicles, responded, “We’re cleaning out the warehouse.” He asked if the representative had a court order to stop them. Having no order, plaintiffs representative left to get one.

As previously related, plaintiff received the temporary restraining order in case No. 72-3758 that same evening and, on the following day, instituted the present action in case No. 72-3773.

The question presented by these facts is whether the defendants are estopped by their statements and conduct from insisting on notice of plaintiffs intention to exercise its rights under the notes and security agreements.

“The general rule is that where a party by his statements or conduct leads another to do something he would not have done but for the statements or conduct of the other, the one guilty of the expressions or conduct will not be allowed to deny his utterances or acts to the loss or damage of the other party. The party claiming the estoppel must have relied upon the acts or representations of the other and have had no knowledge or convenient means of knowing the true facts. Fraud is a necessary element but it is not essential that there be a fraudulent intent. It is sufficient if a fraudulent effect would follow upon allowing a party to set up a claim inconsistent with his former declarations.” (Dill v. Widman, 413 Ill. 448, 455-56 (1953).

Defendants here had actual knowledge that the plaintiff felt insecure on the notes but was not calling them all due and payable because of the defendants’ apparent veil of good faith cooperation. Plaintiff had no way of knowing that defendants’ appearance of cooperation was merely a guise under which they could attempt to remove, conceal and dispose of the security. Upon learning the true state of affairs, plaintiff was forced to take immediate action. Under these circumstances, we hold that the defendants were estopped in claiming the defense of “no written notice sent by mail” for such claim would be inconsistent with defendants’ former declaration of a voluntary turnover of the security.

Finally, defendants claim that the manner in which the preliminary injunction was granted constitutes a direct violation of the principles announced in Fuentes v. Shevin, 407 U.S. 67, 32 L.Ed.2d 556, 92 S.Ct. 1983 (1972). We cannot agree. Four days of hearings preceded the orders entered in the instant case.

For the reasons given, the judgment of the trial court is affirmed.

Judgment affirmed.

GUILD, P. J., and SEIDENFELD, J., concur.

      (1) Knowledge of a judgment against the individual defendant, Don Wooden, for $30,030.05; (2) knowledge of the filing of a lawsuit against the individual' defendant, Don Wooden, for $52,056.88; (3) knowledge of an accountant’s report. showing that there was a misstatement of the corporate defendant’s net loss and that it should be adjusted upward from $4,251.66 to $51,845.66; (4) receipt by the bank of $65,000 worth of checks drawn on the corporate defendant’s account which contained no funds; and (5) the movement of produce and vehicles in contravention of the oral agreement to wind down the business.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Silvio Paul Taylor, Defendant-Appellant.
    (Nos. 11740, 11948 cons.;
    Fourth District
    April 4, 1974.
    Ryan & Heller, of Mattoon, for appellant.
    L. Stanton Dotson, States Attorney, of Charleston, for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

These two appeals are inextricably interwoven in determining whether or not there is any provision under our statute for a conspiracy prosecution for violations of sections 4(e) and 5(e) of the Cannabis Control Act (Ill. Rev. Stat. 1971, ch. 56½, pars. 704(e) and 705(e)), each involving more than 500 grams of any substance containing cannabis. Each appeal is from a dismissal of indictments charging conspiracy and each relates to the same transaction or series of transactions.

In No. 11740, the trial court dismissed the first count of an indictment charging the defendant with conspiracy under section 9 of the Cannabis Control Act. By a docket entry, Count I of a three-count indictment was dismissed. The State’s Attorney then dismissed the second and third counts of the indictment with leave to reinstate. The State appeals. This court entered a rule on the defendant to show cause why the appeal should not be dismissed for want of a judgment order appealable under Supreme Court Rule 604 (Ill. Rev. Stat. 1971, ch. 110A, par. 604), which permits appeals by the State “only from an order or judgment, the substantive effect of which results in dismissing a charge * *

In No. 11948, after the dismissal by the trial court of the one count of the indictment in No. 11740, the defendant was reindicted on the same charge in a three-count indictment charging conspiracy under the Criminal Code. (Ill. Rev. Stat. 1971, ch. 38, par. 8—2.) This prosecution was dismissed by the trial court on the theory that the Cannabis Control Act, being a specific act, controlled the question of a conspiracy indictment and therefore a conspiracy under the general Criminal Code was not permissible. The very narrow question which we must decide is: Did the legislature by the passage of the Cannabis Control Act preempt in foto a possible criminal prosecution for conspiracy to violate that Act? We conclude that it did. The People properly suggest that this conclusion simply means that there is no provision in the statute for a prosecution for conspiracy in violation of the Cannabis Control Act where more than 500 grams of cannabis is involved. We think this necessarily follows from a construction of the respective statutes.

In the passage of the Cannabis Control Act which became effective August 16, 1971, the legislative declaration in section 1 was, “* * * this Act provides wide latitude in the sentencing discretion of the courts and establishes penalties in a sharply rising progression based on the amount of substances containing cannabis involved in each case.” In each of section 4 and 5 a different penalty is provided for (a) not more than 2.5 grams, (b) more than 2.5 grams, but not more than 10 grams, (c) more than 10 grams, but not more than 30 grams, (d) more than 30 grams, but not more than 500 grams, and (e) more than 500 grams. Section 9 of the Act provides that any person who engages in a calculated criminal cannabis conspiracy as defined in subsection (b) is guilty of a Class III felony and fined not more than $200,000, etc. Section 9 provides that one is guilty of such a violation when, “(1) He violates subsection 4(d) or 5(d) of this Act.” Thus the only provision under the Act itself is restricted to the quantity limitations above noted of 30 grams, but not more than 500 grams of any substance. There is no provision under the conspiracy section of this Act for the prosecution of a conspiracy for a violation of section 4(e) or 5(e) involving more than 500 grams. This brings us then to the question as to whether or not the general conspiracy statute under which No. 11948 is prosecuted applies.

The passage of the Cannabis Control Act was in response to scientific, educational and medical pressure to excise marijuana, its control and punishment from the more serious drugs controlled and regulated by the Controlled Substances Act. (Ill. Rev. Stat. 1971, ch. 56½, par. 1100.) We think likewise that it is clear from a reading of section 1 of the Cannabis Control Act that it was likewise intended to excise marijuana from the Criminal Code of 1961 so far as the establishment of appropriate penalties are concerned, and to provide a wide discretion in the sentencing power of the trial court where marijuana is concerned. In short, it preempted the nature and extent of the penalty provisions of our criminal justice system, with that system, nevertheless, providing the mechanics for the enforcement of the Cannabis Control Act. We observe that at the time of its passage, the legislature likewise amended the statute relating to conspiracy in the Criminal Code. Nowhere in that statute is the maximum penalty as severe as it is under the Cannabis Control Act. It is generally accepted that special statutes prevail over general statutes, especially when the special statute has its origin later in time. (Bowes v. City of Chicago, 3 Ill.2d 175, 120 N.E.2d 15; Mills v. County of Winnebago, 104 Ill.App.2d 366, 244 N.E.2d 65; People v. Hale, 55 Ill.App.2d 260, 204 N.E.2d 833.) In Hale, the court held that the statute dealing specifically with escapees from the Illinois State Penal Farm (Ill. Rev. Stat. 1971, ch. 118, par. 18), prevails over the general statute (Ill. Rev. Stat. 1971, ch. 38, par. 31—6(b)) which deals generaHy with persons convicted of misdemeanors who escape from penal institutions. In our judgment, a like philosophy applies here.

There can be no quibble but that the only provision of the Cannabis Control Act concerning conspiracy is sections 4(d) and 5(d), and these sections provide penalties for the possession, manufacture, or delivery of cannabis in amounts of more than 30 grams, but not more than 500 grams, respectively. Nowhere in that section or any other section of the Cannabis Control Act is there a provision for a conviction of conspiracy for an offense involving more than 500 grams of cannabis. For this court to construe it as is here urged that the legislature reaHy meant in section 9 to refer to sections 4(e) and 5(e) also is a request for us to rewrite the statute. If unintentionally omitted from the Act, it is a task for the legislature and not for us. The offense with which the defendant was charged is simply not an offense under either the Cannabis Control Act or the Criminal Code of 1961. We can only consider what the legislature did and need hazard no guess as to whether they had another and different intention, and intended to provide a penalty for conspiracy in the violation of sections 4(e) and 5(e). We therefore hold that the appeal in No. 11740 should be dismissed for want of an appealable order, and that the trial court was correct in dismissing the indictment in No. 11948.

In No. 11740, appeal dismissed.

In No. 11948, judgment affirmed.

CRAVEN and SIMKINS, JJ., concur.


author: Mr. JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Earl Mayhew, Defendant-Appellant.
    (No. 11994;
    Fourth District
    April 4, 1974.

      John F. McNichols, Deputy Defender, of Springfield (Bruce L. Herr, Legal Director, and Jim Collins, Assistant Appellate Defender, of counsel), for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Thomas L. Knight, Assistant State’s Attorney, and John Howard, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals his convictions at a bench trial upon charges of robbery, battery and tampering with a motor vehicle (Ill. Rev. Stat. 1971, ch. 38, pars. 18—1 and 12—3, and ch. 95½, par. 4—102(b) respectively). A sentence of 3 to 9 years was imposed for robbery, but no sentence was imposed on the other offenses for the reason that the trial court construed these charges to arise “out of the same offense”.

In a criminal proceeding a judgment consists of an adjudication of guilt together with the sentence imposed. (Ill. Rev. Stat. 1971, ch. 38, par. 102—14; now Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—1—12.) As to those offenses upon which no sentence was imposed, there is no final judgment for purposes of appeal and the issues argued as to such offenses are not properly subject to review.

Upon appeal it is contended that defendant was denied due process because the identification at trial followed an unnecessarily suggestive pre-trial photograph identification; that the evidence was insufficient to prove guilt beyond a reasonable doubt; that the court erred in permitting defendant to withdraw his motion for a competency hearing without an evidentiary hearing, and that defendant should not be adjudged guilty of three offenses founded on the same conduct.

The robbery victim, McNamara, parked his Volkswagen bus in a parking lot adjacent to a principal street. It does not appear to be contested that the parking lot and street were well-lighted. As he left a telephone booth on the parking lot at about 11:30 P.M. he observed two men approaching from the side of the bus, and as he returned to it the men came from the rear of the bus and one seized him from behind with a neck lock. The victim was forced toward the front of the bus to the ground and was struck in the eye and kicked in the forehead. He then noticed a third man with the first two. His coat was pulled over his head and his car keys taken, together with $14. He was picked up and shoved into the bus and made to slide across the front bench seat during which time he pulled the coat down and observed the man behind the steering wheel. The latter could not fit the key into the switch. While the coat was pulled back from his head, the man directed McNamara to put the key into the switch and he again pulled the coat down and observed the man’s front and profile. In an effort to escape, the victim pulled the coat down and when the man grabbed him by the neck from behind he sprayed a can of mace over his shoulder, pulled free and ran into the street. A motorist took him to the police station where McNamara gave a description of the appearance of the head and shoulders of the man. He examined some 60 police photographs of individuals but made no identification. Two officers drove McNamara back to his vehicle where various articles, including a draft card, a Social Security card and other personal documents were found on the front seat. McNamara did not examine the documents which were taken by the police. He returned with the officers to police headquarters where he was shown a photograph and immediately identified defendant. Although the documents carried defendant’s name, McNamara was not specifically advised of that fact. Following such identification, defendant was taken in charge on an interstate highway at about 2:30 A.M.

Defendant’s motion to suppress the identification was heard and denied. He argues that the single-photo identification was so suggestive and prejudicial as to bring about a substantial likelihood of misidentification, and that there was a denial of due process as the identification was made from a suggestive source.

Defendant would have tins court adopt an exclusionary rule founded upon a balancing of the suggestiveness of the identification procedure against the degree of necessity in following a particular procedure in evidence. He cites United States v. Washington, 292 F.Supp. 284.

In Neil v. Biggers, 409 U.S. 188, 34 L.Ed.2d 401, 93 S.Ct. 375, the Supreme Court determined that “unnecessary suggestiveness alone” does not require the exclusion of identification testimony. At issue there was a “show-up” some 7 months after the offense with which defendant was charged.

We note that the United States Supreme Court has refused to adopt a rule of per se exclusion in United States v. Wade, 388 U.S. 218, 18 L.E.2d 1149, 87 S.Ct. 1926, and Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951. In each case defendant was in custody and had counsel, but was placed in a lineup without counsel or a waiver of counsel’s presence in violation of the defendant’s sixth amendment rights. In each case, there was a remandment to afford the prosecution an opportunity to establish that the identification at trial had a source independent of the line-up identification. Wade reversed the judgment of the court of appeals, which had remanded for a new trial with exclusion of the courtroom identification.

The denial of due process arises where there is a very substantial likelihood of irreparable misidentification. (Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967.) The test of due process is whether under the “totality of circumstances” the identification made in court was reliable even if the confrontation or pre-trial procedure was suggestive in a greater or lesser degree. Neil v. Biggers, 409 U.S. 188, 199, 34 L.E.2d 401, 411, 93 S.Ct. 375.

Here the record on the motion to suppress permits an evaluation of the factors pertinent to ascertaining the independent original of the identification at trial. McNamara had an opportunity to view the defendant face to face during the episode with the key and during the struggle to escape. His description of facial pock marks and hair was particularly consistent with the face to face encounter. The evidence raises no doubt of ample lighting from the lights of the street and the parking lot. In Coleman v. Alabama, 399 U.S. 1, 26 L.Ed.2d 387, 90 S.Ct. 1999, the identification originated in the victim’s view of defendant in the lights of an approaching automobile. In Neil v. Biggers, the identification originated in the victim’s view of defendant in light from an adjacent hall and from moonlight. The witness’s identification of defendant from the photograph was made within an hour of the robbery, and he had refused to make an identification from a substantial number of photographs initially shown to him.

Defendant would have us conclude that the use of the photograph to identify defendant prior to the time of his arrest was so suggestive as to deny due process under the holding of Foster v. California, 394 U.S. 440, 22 L.Ed.2d 402, 89 S.Ct. 1127. The facts vary substantially. In Foster, the victim could not identify defendant either in a line up or a subsequent show-up confrontation. At a subsequent line up, where defendant was the only person included in all three confrontations, the victim did identify defendant. It was concluded that under these circumstances the “police repeatedly said to the witness, ‘This is the man’ ” so that the reliability of the identification at trial was undermined. Here, defendant was not in custody and there was a substantial exigency in the necessity of a prompt apprehension of the offender. In Simmons v. United States, 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967, it is said that the pre-arrest use of photographs will not be prohibited if there is a peed for a quick apprehension and the exoneration of innocent suspects.

We conclude that under the standards of Neil v. Biggers, 409 U.S. 188, 34 L.Ed.2d 401, 93 S.G. 375, and United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.G. 1926, there is ample evidence supporting the conclusion that McNamara’s identification had its origin independently from the showing of the single photograph. The facts are readily distinguishable from People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152, where the evidence raised doubt as to the adequacy of the light and the opportunity to observe. The record suggests an urgency to apprehend rather than a design to influence McNamara. (People v. Martin, 47 Ill.2d 331, 265 N.E.2d 685, and Davis v. United States, 425 F.2d 673.) This record shows that the identification was substantially independent of a photograph shown. People v. Pagan, 52 Ill.2d 525, 288 N.E.2d 102.

Defendant asserts that he was not proven guilty beyond a reasonable doubt. He testified to a purported alibi in recounting a course of driving around the city, with others not clearly identified, for purposes of eating here and there. There was no corroborating testimony as to these acts. He testified that he had loaned the several personal documents to an individual so that the latter might buy beer. This was not corroborated. The evidence is that a test of the mace shows that it exhibited a green color under ultra violet light. After his arrest, defendant’s face and upper clothing were so tested and exhibited such characteristic color on a substantial scale. No explanation of such phenomenon was undertaken.

It is further contended that defendant was not identified as being present at the time of the robbery and the assault and prior to the time that McNamara was placed in the Volkswagen bus and had an opportunity to observe defendant. This hypothesis would require both the jury and this court to ignore the evidence that the transaction was one continuous series of events within a short span of time, that some one took McNamara’s keys in the robbery but that defendant succeeded to the keys and initiated the action to require McNamara to put them into the ignition. Defendant cites People v. Adams, 8 Ill.App.3d 62, 289 N.E.2d 53. That case, however, concerns individuals charged and convicted through accountability.

Defendant urges that the court erred in permitting the withdrawal of a petition to determine competency without evidentiary hearing. The said petition was not filed until after the trial, conviction and denial of post-motions. The psychiatric report filed said that defendant was sane and competent, and concluded that defendant was simulating mental disorder to escape sentence. After the filing of such report, defendant, through counsel, moved to withdraw the petition. The court admonished defendant carefully and the record shows an understanding waiver of his right to a hearing.

Defendant cites People v. Maynard, 347 Ill. 422, 179 N.E. 833, and People v. Reeves, 412 Ill. 555, 107 N.E.2d 861. In each case defendant had been adjudicated insane and there had been no adjudication of restoration. To the same effect are People v. De Simone, 28 Ill.2d 72, 190 N.E.2d 831 and People v. McLain, 37 Ill.2d 173, 226 N.E.2d 21. But where no conduct raises a bona fide doubt of sanity, the psychiatric report shows defendant sane and he moves for or acquiesces in the withdrawal of the petition, there is no abuse of discretion where the court fails to hold a hearing sua sponte. People v. Hicks, 35 Ill.2d 390, 220 N.E.2d 461; People v. Baker, 26 Ill.2d 484, 187 N.E.2d 227 and People v. McElroy, 125 Ill.App.2d 237, 260 N.E.2d 410.

The trial court concluded that the offenses of battery and tampering were not independently motivated or otherwise separable from the robbery under the rule of People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679, and accordingly imposed sentence only upon the conviction for robbery. While such offenses are not final judgments for perfection of appeal, Supreme Court Rule 366 gives this court authority to vacate the incomplete judgments. People v. Lilly, 56 Ill.2d 493,-N.E.2d-.

The conviction upon the indictment for robbery is affirmed. The convictions for battery and tampering are reversed and the judgments of the circuit court thereon are vacated.

Affirmed in part, reversed and vacated in part.

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


author: Opinion by Mr. PRESIDING JUSTICE SMITH.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dorothy Reed, Defendant-Appellant.
    (No. 12168;
    Fourth District
    April 4, 1974.
    John F. McNichols, Deputy Defender, of Springfield, for appellant.
    No appearance for the People.
   Opinion by Mr. PRESIDING JUSTICE SMITH.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Merrill J. Fowler, Defendant-Appellant.
    (No. 72-318;
    Second District
    April 9, 1974.

      Michael Cohen, of Chicago, for appellant.
    Gerry L. Dondanville, State’s Attorney, of Geneva (Clarence Wittenstrom, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendant herein waived indictment and was charged by an information for the sale of a controlled substance, amphetamine, to a special agent of the IBI. On May 22, 1972, the defendant waived a jury and on June 7, 1972, he was tried in a bench trial in the circuit court of Kane County. He testified in his own behalf; was found guilty by the court; applied for probation and was placed on probation for a period of 4 years.

In this appeal the defendant raises two issues: (1) The evidence was insufficient to convict him; and (2) the trial court erred in proceeding to a bench trial without a knowing, understanding, and intelligent jury waiver from the defendant. We will consider the second contention first.

As indicated above, the defendant appeared in court on May 22 together with his privately retained counsel. At that time the State’s Attorney stated “I am presenting to the court at this time a waiver of trial by jury which has been signed by the defendant and witnessed by his attorney, Mr. Rogers. I ask that the court inquire and have him acknowledge the same.” The court then proceeded to inquire of the defendant and his counsel as to the jury waiver. The court asked defendant’s counsel if his name as a witness was on the waiver, he asked the defendant if his name was on the waiver, and specifically asked the defendant if he was waiving his right to a trial by jury and if this was his voluntary act. The defendant replied in the affirmative, in open court. The matter was then set for hearing on June 6, 1972.

Counsel for the defendant has cited a number of cases relative to the waiver of jury. No useful purpose would be served in discussing them in detail, but in this court’s opinion they are not applicable. Indicative of the general tenor of the cases cited by the defendant is People v. Baker (1970), 126 Ill.App.2d 1, 262 N.E.2d 7. In Baker the court stated that no precise formula could be used for determining whether a defendant knowingly and understandingly waived his right to a trial by jury. Further, in Baker, the waiver of the jury consisted merely of the public defender, who had just been appointed for defendant, stating to the court, “* * * not guilty, jury waiver.” The court held in Baker that where there was no showing of the right to trial by jury the waiver was not knowingly and understandingly made. In a supplemental opinion in Baker the court held that People v. Sailor, 43 Ill.2d 256, 253 N.E.2d 397, was not applicable to the facts in the case before it.

Where the record is silent as to the waiver of jury in any fashion the courts have held that a waiver was improperly made. See People v. McKinney (1970), 126 Ill.App.2d 339, 261 N.E.2d 797, where the waiver was made by counsel not in the presence of the accused; People v. Boyd (1972), 5 Ill.App.3d 980, 284 N.E.2d 699, factually similar to Baker; People v. Brownlow (1969), 114 Ill.App.2d 458, 252 N.E.2d 685, where the court held defendant’s silence was not sufficient to constitute a waiver; People v. McGraw (1969), 115 Ill.App.2d 444, 253 N.E.2d 518; People v. Rosen (1970), 128 Ill.App.2d 82, 261 N.E.2d 488, where the court again said that a waiver of jury may not be presumed from a silent record.

However, in People v. Sailor (1969), 43 Ill.2d 256, 260, 253 N.E.2d 397, the supreme court set forth the law somewhat succinctly relative to a waiver by defendant’s counsel in the presence of the defendant, stating:

“* * * The record reveals that defendant’s counsel, in her presence and without objection on her part, expressly advised the court that the plea was not guilty’ and that a jury was waived. An accused ordinarily speaks and acts through his attorney, who stands in the role of agent, and defendant, by permitting her attorney, in her presence and without objection, to waive her right to a jury trial is deemed to have acquiesced in, and to be bound by, his action.”

Since the decision in Sailor there have been numerous cases on the application of the principles therein enunciated. People v. Lewis (1973), 13 Ill.App.3d 688; People v. Closson (1973), 13 Ill.App.3d 878; People v. Gray (1973), 14 Ill.App.3d 1022, 304 N.E.2d 111.

Defendant has cited People v. Spates (1971), 132 Ill.App.2d 902, 270 N.E.2d 848, and People v. Gaston (1971), 132 Ill.App.2d 900, 270 N.E.2d 846. Neither of these cases are applicable to the facts before us as the only evidence therein was solely a written jury waiver, with no statement as to such waiver either by or in the presence of the defendant.

As indicated above, the State’s Attorney asked the judge to inquire if the defendant wished to waive a jury. The court thereupon inquired of the defendant and his counsel as to whether or not they had signed the jury waiver and if it had been signed voluntarily by the defendant, to which the defendant replied in the affirmative.

We therefore find that the defendant knowingly and intelligently, both personally and through his privately retained counsel, waived the jury herein.

We turn then to the first contention of the defendant, that the evidence was not sufficient to prove him guilty beyond a reasonable doubt. Defendant asserts that actually he is charged with being an aider and abettor and as such a conviction may not stand, based on mere presence at the scene of a crime. The defendant was properly charged as a principal even though he was only an accessory to the crime. (People v. Heuton (1971), 2 Ill.App.3d 427, 276 N.E.2d 8.) In People v Thicksten (1958), 14 Ill.2d 132, 150 N.E.2d 813, where the same argument was raised, the court there said at page 134:

“* * * Plaintiff in error argues there is no direct evidence in the record that he did any affirmative act in connection with the crime or joined in a common design to commit it. The contention cannot be sustained. There is more shown by this evidence than mere presence at the scene of the robbery and a negative acquiescence therein. Plaintiff in error was closely associated with Bevard immediately before and after the crime, as well as at the time it was committed.'
* * # While mere presence or negative acquiescence is not enough to constitute a person a principal, circumstances may show there is a common design to do an unlawful act to which all assent. In such cases it is not necessary that each one shall take an active part in the commission of the crime. Whatever is done in furtherance of the design is the act of all, and each is guilty of the crime.”

In People v. Washington (1962), 26 Ill.2d 207, 186 N.E.2d 259, the defendant therein contended that his mere presence and negative acquiescence was not sufficient to support a finding that he aided and abetted or assisted in the robbery therein. The court stated at page 209:

* * * While it is rtue that mere presence or negative acquiescence is not enough to constitute a person a principal, one may aid and abet without actively participating in the overt' act and if the proof shows that a person was present at the commission of the crime without disapproving or opposing it, it is competent for the trier of fact to consider this conduct in connection with other circumstances and thereby reach a conclusion that such person assented to the commission of the crime, lent to it his countenance and approval and was thereby aiding and abetting the crime. [Citations.]”

See People v. Barnes (1971), 2 Ill.App.3d 461, 464, 276 N.E.2d 509.

In the case before us we find that there was more than mere presence and silent acquiescence on the part of the defendant. It is undisputed that on the night in question the defendant drove Phillip Burch to Fulton Street in Elgin where they met with the special agents of the IBI. After Agent Magnusen talked to Burch the defendant testified that he drove Burch to the Frontier Lanes Bowling Alley where he left him for an hour or an hour and a half; that he then picked him up and took him back to the Fulton street area where Burch again met with Agent Magnusen and Agent Kidd. Defendant denies having any part or knowing what transpired at either time. However, Agent Magnusen testified that at the first meeting on Fulton street the defendant was the driver of the car and was seated behind the wheel while Burch was sitting next to him. After the conversation relative to the purchase of the amphetamine tablets the defendant drove Burch from the scene. Another agent of the IBI, Joseph Grady, followed the defendant and Burch and testified that they left the Fulton Street area at 8:30 and drove to 207 North Porter Street in Elgin where the driver exited the vehicle and went to the front door. While the agent was unable to identify the defendant because of the darkness, the man who got out of the car and went into the premises did not limp. It was thus obvious that the party going into that address was not Burch who limped and used a cane. The agent testified that a few minutes later the driver of the car reentered the vehicle and drove to 426 North Addison where again the driver entered the premises walking rapidly, without a limp, where he stayed for approximately 20 minutes. He then reentered the vehicle and at a few minutes after 9 the defendant and Burch drove back to the Fulton Street area where the sale of amphetamine was consummated. The defendant’s testimony relative to his activities from 7 until 9:15 is somewhat contradictory and confusing. He testified that he went to Frontier Lanes and left Burch, which is not substantiated by the agent’s testimony, and upon cross examination admitted that he had gone to the Porter Street address and the Addison Street address; that at the 207 North Porter address he talked to one Jim Huske about going fishing; he admitted upon cross-examination that at 426 N. Addison he talked to a girl by the name of Debbie Wishon. Agent Magnusen testified that when the defendant and Burch returned to the Fulton Street address they only had 750 tablets and Magnusen stated they wanted 1000 for $100. The defendant Fowler, seated in the driver’s seat turned his head, and stated “they were 15 milligram tablets, and real good.”

The evidence in the case before us consists of more than mere presence and negative acquiescence. Burch, who was convicted in another trial, was unable to drive a motor vehicle. Two of the IBI agents testified as to the defendant’s presence in the vehicle at the time the offer to buy was made. Another agent followed the defendant and Burch when they left the Fulton Street address, went to two addresses, and then returned to the Fulton Street area. The two agents further testified that the defendant was present when the money was paid for the amphetamine tablets and, as indicated above, the defendant took part in the conversation.

The trial court in finding the defendant guilty observed “the evidence offered by the defendant was largely, in my mind, not very worthy of belief.”

In a bench trial it is the function and responsibility of the trial Judge to determine the credibility of witnesses and the weight to be given their testimony. Unless the evidence is so unsatisfactory as to raise a reasonable doubt of the defendant’s guilt, the reviewing court will not substitute its judgment for that of the trial court. People v. Pagan (1972), 52 Ill.2d 525, 534, 288 N.E.2d 102.

Judgment affirmed.

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


author: Opinion by Mr. JUSTICE RECHENMACHER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jesse James DuPree, Defendant-Appellant.
    (No. 73-20;
    Second District
    April 9, 1974.
    J. Daniel King, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Edward Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Opinion by Mr. JUSTICE RECHENMACHER.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frances Foss, Defendant-Appellant.
    (No. 73-35;
    Second District
    April 9, 1974.
    Steven Helfer, Public Defender, of Oregon, for appellant.
    Richard L. Caldwell, State’s Attorney, of Oregon (Peter J. Woods, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

On the afternoon of July 10, 1972, the defendant was sitting in Frankie’s tavern in Rochelle, Illinois. She got into an argument with her boy friend and hit him with her purse. The bartender told her she could not do that and she replied that she was having a personal conversation. The bartender then said “Well, I am going to call the police” and proceeded to do so. In reply to the police call a police officer came to the tavern. When the police officer entered the tavern the defendant was at the pay telephone making a phone call. She testified that “I had my 13 year old daughter from Rockford down to visit us and I knew if the cops arrested me I wanted to see she got back to Rockford O.K.” At this point the testimony is conflicting. The officer testified that he talked to the bartender who stated that she wanted to sign a complaint for disorderly conduct against Frances Foss and have her removed from the bar. The bartender pointed out Mrs. Foss and the police officer went up to the defendant and said, “Ma’am, that will be your last phone call until we get to the police station. You are under arrest for disorderly conduct.” The defendant then told the police officer to go to hell. She thereupon struck the police officer with her hand, a wrestling match ensued in which defendant bit the police officer in the leg, scratched him on the arm, and then bit him in the arm. By this time assistance arrived in the form of another police officer and he in turn was kicked in the groin. Apparently one of the officers sat upon the defendant; she grabbed him by the leg and he proceeded to walk out of the tavern with her holding on to his leg. She was forcibly put in the squad car. The defendant testified that she weighed 100 pounds.

Defendant was charged with resisting a police officer in violation of section 31—1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, sec. 31—1). She was tried in a bench trial and fined $350. The trial judge upon finding that she was unemployed offered to let her pay the fine at the rate of $2.50 a week, but she agreed she could pay $10 a week. However, she has now appealed.

Defendant contends: (1) that the court should have granted a verdict of acquittal on the charge of resisting arrest in that it was never proven it was a lawful arrest; and (2) that we should “consider probation.” At the time of the conviction of the defendant the State recommended a fine of $50. The State, in the case before us, joins in part with the defendant and requests that the fine of $350 be reduced. As the State has said, in view of the “impoverished financial condition of the defendant”, we will reduce the fine to $25. However, we do not' agree that the court should have found the defendant innocent of the charge of- resisting arrest.

The pertinent provisions of the statute relative to resisting arrest are as indicated above (Ill. Rev. Stat. 1971, ch. 38, sec. 31—1), and although not mentioned by either counsel for the State or the defendant section 7—7 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38; sec. 7—7) is applicable. There is a seeming conflict in the law of Illinois on the right of a citizen to resist an unlawful arrest. In People v. Carroll (1971), 133 Ill.App.2d 78, 80, 272 N.E.2d 822, 824, Justice Dempsey considered a case where the defendant was charged and convicted' of violating section 31—1 of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, sec. 31—1). The defendant therein was also charged with aggravated assault, aggravated battery, obstructing a police officer, and disorderly conduct. All of these charges except the one for resisting arrest were dismissed. Nonetheless, the court held that “Carrolls running away was a physical act which impeded and delayed his arrest; it was also a forcible act of resistance. A person may not use force to resist an arrest by one whom he knows to be an officer of the law, even if the arrest is unlawful. Ill. Rev. Stat. 1967, ch. 38, par. 7—7.” The court well stated the situation in our society today:

“A police officer may not make an arrest unless he believes that probable cause exists justifying the arrest. Whether there is probable cause is initially a question for the arresting officer,. Ultimately, however, it is a question for the courts. If a court finds that there was no probable cause, the accused will be acquitted of the charge and evidence acquired as a result of the arrest will be suppressed. Since a police officer must make the initial determination, and since his office gives him the authority to make an arrest, an accused may not physically resist the arrest. He may inquire as to its reason; he may point out the officers mistake; he may protest and argue; but he may not impede the arrest by physical action. The public interest in discouraging violence and in insisting on the use of peaceable methods of obtaining release from unlawful custody outweighs the outrage felt by the individual who is subjected to unlawful police conduct.” 133 Ill.App. 2d at 80, 272 N.E.2d at 824.

However, Justice Dempsey in a prior case, People v. Young (1968), 100 Ill.App.2d 20, 241 N.E.2d 587, considered a factual situation somewhat different from the Carroll case and determined the issue was whether the defendant resisted an “authorized” act. In the Young case, police officers attempted to serve a search warrant on the premises of Aubrey Young and ended up in the apartment of WiUard Young. Mrs. WiUard Young, 8-months pregnant, resisted and was charged with resisting arrest under section 31—1 of the Criminal Code (Ill. Rev. Stat. 1965, ch. 38, sec. 31—1). The court pointed out the apparent difference between the opinions on this subject in the courts of Illinois at that time. The Young court went on to hold that, under the facts before it, section 7—7 applied only to arrest, and the officers had no authorization to search the apartment of WiUard Young with a warrant issued for the premises of Aubrey Young.

No attempt is made in this opinion to reconcile the apparent differences in the cases on this subject but mention is made of these cases for general information.

In People v. Bush (1972), 4 Ill.App.3d 669, 672, 281 N.E.2d 734, the court stated, “Plainly, if defendant (from what he was told) knew that Manley was a policeman yet pushed him and knocked him down, he committed the offense of resisting a police officer.” However, the court went on in Bush to find that the police officer and the police woman in question were not in uniform, were casually dressed, and that the defendant was authorized in resisting arrest from the facts therein. The appellate court in Bush found the defendant was not guilty beyond a reasonable doubt. This case is cited with approval in the recent case of People v. Ortiz (1973), 16 Ill.App.3d 13, 305 N.E.2d 205, where the officers arrested the defendant in the middle of the afternoon in a playground; defendant resisted, was charged with disorderly conduct, and the jury found him not guilty. Likewise, in Ortiz, the case of People v. Royer (1966), 101 Ill.App.2d 44, 242 N.E.2d 288, was cited with approval. In Royer the court considered the arrest as unlawful because the officer had no reasonable ground to believe that the defendant had committed or was committing an offense. The court therefore reversed the conviction of resisting arrest.

Recently, in People v. Suriwka (1971), 2 Ill.App.3d 384, 276 N.E.2d 490, the First District again considered the contention that defendant’s conviction for resisting arrest should have been reversed because there was neither a lawful arrest nor a knowing resistance. The court in Suriwka said at page 391: .

“Demus contends that his conviction for resisting arrest must be reversed because there was neither a lawful arrest nor a knowing resistance. * * *
A further contention is that the arrest was invalid because Demus was engaged in no unlawful activity at the time of the arrest. Even if probable cause for the arrest were lacking, Demus had. no right to use physical force to impede it. People v. Carroll (1971), (Ill.App.2d), 272 N.E.2d 822. His conviction is affirmed.”

In a similar case to the one before us, People v. Hoffman (1970), 45 Ill.2d 221, 258 N.E.2d 326, Abbie Hoffman was in a restaurant, he resisted the arrest, and was subsequently charged with disorderly conduct and resisting arrest under section 31—1 of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, sec. 31—1). He was later acquitted of the disorderly conduct charge, but the supreme court found that the officers had probable cause for the arrest and affirmed the finding of guilty of resisting arrest under the provisions of section 31 of the Criminal Code (Ill. Rev. Stat. 1967, ch. 38, sec. 31—1). See also People v. Shinn (1972), 5 Ill.App. 3d 468, 283 N.E.2d 502; People v. Gnatz (1972), 8 Ill.App.3d 396, 399, 290 N.E.2d 392.

In the case before us there is no question that the defendant knew that the officer in question was a policeman as she was arrested in the process of calling relatives of her daughter to advise them that she might be arrested and might not be home. The police officer was perfectly justified in making the arrest as the bartender stated to the police officer that she wanted to sign a complaint against the defendant for disorderly conduct and pointed the defendant out to the officer. The trial court found, however, that the arrest was “illegal.” With this we disagree from the facts herein. However, the trial court believed the testimony of the police officer rather than that of the defendant. In the absence of a miscarriage of justice, the determination of the guilt of the defendant based upon conflicting evidence will not be set aside. (People v. Pagan (1972), 52 Ill.2d 525, 534, 288 N.E.2d 102.) Finding of guilty is affirmed; fine reduced to $25.

Affirmed as modified.

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