author: Mr. JUSTICE RECHENMACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie B. Henne, Defendant-Appellant.
    (No. 72-284;
    Second District
    November 25, 1974.
    Ralph Ruebner and Adam Lutynski, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Albert Kennedy, State’s Attorney, of Dixon, and Loren Golden, State’s Attorney, of Mt. Carroll (James W. Jerz and Charles D. Sheehy, Jr., both of Illinois State’s Attorney Association, of counsel), for the People.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

The defendant, Willie B. Henne, was charged by indictment with the crimes of escape and murder. After a jury trial he was found guilty of both crimes and sentenced to not less than 3 nor more than 9 years in the penitentiary for escape and not less than 40 nor more than 75 years in the penitentiary for murder, said sentences to be served concurrently.

The defendant appeals from his conviction and sentence for murder, assigning three grounds of error: (1) that the trial court erred in denying defendant’s motion to suppress certain statements and physical evidence obtained by the police as a result of interrogations made in violation of Miranda requirements; (2) the defendant would not have been found guilty beyond a reasonable doubt if constitutionally impermissible evidence had been excluded at the trial; (3) the trial judge misstated the testimony of one of the witnesses (a psychiatrist) in such a manner as to prejudice the defendant in the minds of the jury.

The defendant escaped from the Carroll County jail where he was being held awaiting transportation to Joliet penitentiary as a result of a conviction for burglary. He claims he was picked up on the highway by a motorist shortly following his escape sometime between 9:30 and 10 o’clock that night. They had some drinks from a bottle of brandy which the driver of the car (the victim, Robert Cretney) purchased in a nearby tavern. Subsequently, according to the defendant, Cretney made homosexual advances to the defendant and the defendant resisted, whereupon a fight ensued. In the course of the fight the defendant killed Cretney by striking him repeatedly with an axe he found in Cretney’s car.

The defendant claims he does not remember what happened after that. However, sometime around 11:30 that night a State trooper received a report of a motorist proceeding west in the eastbound lane of Route 20 west of Rockford. He turned his squad car around and gave chase, whereupon, after he flashed his signal, the motorist drew off to the side of the road and threw two objects out of the car before stopping. The State trooper, Sergeant Eisenbise, arrested the defendant, who was driving the car, and who acted intoxicated. Another squad car came by to assist and at the suggestion of Eisenbise the other trooper searched the area of the place where the car had stopped and found a wallet and a three-fourths empty bottle of Five Star brandy near the car.

The defendant was arrested and taken to the police station where he was charged with driving while intoxicated. At the station the defendant, who at that time was thought to be Cretney, was given a breath-o-lyzer test as well as some other routine tests for intoxication. Before giving the breath-o-lyzer test the State trooper Eisenbise read the Miranda warnings to the defendant. Trooper Eisenbise testified that the defendant appeared to be drunk at that time. He could not sit up straight, his speech was slurred and he made no audible answers in response to the Miranda warnings and fell off the chair he was sitting on. However, Sergeant Eisenbise testified at the trial that the defendant nodded his head in an affirmative manner when asked if he understood that he had the following rights: Hie right to remain silent, the right to have an attorney present, if he could not afford an attorney one would be appointed for him before any investigation, and that anything he said could be used against him in court. The officer, in making out the Illinois alcoholic influence report indicated thereon that at the time the defendant was given the test and the Miranda warnings were read to him he had a strong odor of alcohol on his breath, his attitude was sleepy and indifferent and he was apparently unable to perform certain walking, balancing and turning tests. However, the breath-o-lyzer test showed a reading of only 1.7 and while this was sufficient under the Illinois Vehicle Code to charge him with driving while intoxicated, it was not, according to the testimony of Sergeant Eisenbise, an extremely high reading, since theoretically a 4.0 reading was possible and the officer had personally seen readings as high as 3.0.

In examining the wallet found at the scene of the arrest a letter was found addressed to the defendant at Carroll County jail; also, the defendant appeared to be much younger than the age indicated on the driver’s license of Cretney, which facts induced Trooper Eisenbise to call the Carroll County jail. That call resulted in his being informed that the defendant had escaped from jail a few hours previously. The trooper also learned from a report that Cretney had been reported missing. He arranged for a Detective Bales of the Illinois State Police to come by in the morning to interview the defendant. When Bales arrived he was informed by Sergeant Eisenbise that the defendant had been given his Miranda warnings the night before. Before proceeding to talk with the defendant about the whereabouts of Cretney, Detective Bales did not give the Miranda warnings but he did ask the defendant if he knew his constitutional rights, to which the defendant replied that he did. Bales then explained to the defendant that Cretney had been reported missing, and that he, Bales, was trying to locate him. He told defendant that Cretney was ill (he was suffering from cancer) and required attention and if not found quickly might die. Thereupon the defendant remarked, “You won’t find that dude alive.” Subsequently the defendant told Bales of the meeting with Cretney, the fight and that he had struck Cretney and that when he “hit a dude he stays hit.” The defendant eventually led Detective Bales and the other officer to the cornfield where about 50 feet off the road, Cretney’s body was found with an axe protruding from his back.

Defendant claims he was too drunk to have understood the meaning and import of the Miranda warnings at the time they were given to him and therefore could not have intelligently waived the rights protected thereby, and contends the evidence obtained as a result of the statements he made to Detective Bales should have been suppressed. The scope of defendant’s objection is broad, reaching not only to the two statements, “You won’t find that dude alive” and, “That’s [blood] not mine, that’s his. Yeah, when I hit a dude he stays hit,” but also the physical evidence, including the body of the victim, photographs taken at the scene, the axe and certain other papers found at the scene of the crime. The defendant cites People v. O’Leary (1970), 45 Ill.2d 122, and People v. Alexander (1968), 96 Ill.App.2d 113, in support of his contention that the statements and also all the evidence obtained through those statements should have been suppressed. While it is true that in both of these cases not only the confessions but also physical evidence obtained through such confessions were suppressed, there is no parallel whatsoever between the cited cases and the case here before us, as those cases were based on involuntariness of the confession due to coercion.

In both' O’Leary and Alexander, there was positive evidence of physical abuse inducing the confessions and this was the basis for the decision upholding suppression of the evidence in both cases. There is not even a hint of physical abuse or coercion in the present case, and indeed the whole theory of defendant negates any such claim. These cases are therefore completely inapposite to the case we consider here.

More persuasive from the defendant’s standpoint is the case of People v. Roy (1971), 49 Ill.2d 113, where the defendant, Roy, was given his Miranda warnings in the squad car en route to the scene of the crime. The testimony of the police officers indicated he was too drunk to understand the warnings and the defendant never said he understood the warnings. The statement made by the defendant in that case was exculpatory but nevertheless incriminating, and our Supreme Court held that since the defendant had never indicated he understood the Miranda warnings and was obviously in a drunken and confused state, there was no evidence of an intelligent waiver of the constitutional rights to remain silent and to have counsel present during any statement given to the police. The statement to the police that he did not shoot the defendant but did hit him with a blackjack was, therefore, suppressed.

While the case before us is similar in some respects to Roy, there are important differences which we feel justify a different result. In the first place, the officers in the Roy case conceded that the accused acted in a manner indicating he was confused, that he continually interrupted the officer giving the warnings and that when they were being given he would keep saying “What?” or “Yeah.” Moreover, the officers testi-fled that the accused never understood the Miranda warnings. On appeal the State did not contend that the accused had waived his Miranda rights but instead maintained that the question was moot because the statement in question (that the accused did not shoot the victim but he did hit him with a blackjack), was a volunteered, spontaneous statement within the exceptions to Miranda requirements. The State made the same claim in the present case but, as did the Supreme Court in Roy, we must reject this contention. While we realize that the strictures of Miranda are intended as a safeguard for the unwary and the indigent and the technical use of Miranda is to be discouraged when invoked as a mere strategem, we cannot say the interrogation of the defendant here was not accusatory or that the remark made by the defendant, “You won’t find that dude alive,” was voluntary and spontaneous as judged by the examples in the case of Miranda v. Arizona illustrating voluntary or spontaneous statements. While Detective Bales purported to be interested only in learning the whereabouts of Cretney for humanitarian reasons, it is obvious that he suspected foul play and the whereabouts of Cretney would very likely be promptly revealed only by a statement which would incriminate the defendant. We do not, therefore, hold these statements to be outside the requirements of Miranda as being spontaneous statements.

In the case before us, however, there is, first of all, positive evidence indicating that the defendant’s mental processes were working well enough at the time of his arrest for him not only to respond to the officer’s signal to stop and pull over but to impel him to try to dispose of the incriminating evidence of the wallet and bottle of brandy. In addition there is the testimony of the two officers that when the Miranda rights were read to him and he was asked if he understood them, the defendant nodded his head in an affirmative manner. There can be no doubt that the officers present sincerely believed they had properly admonished the defendant, for the next morning they informed Detective Bales that the defendant had been properly admonished as to his constitutional rights the night before. Otherwise it could easily have been done again at that time. It is to be noted also that while the defendant was undoubtedly intoxicated the reading on his test was only 1.7 and in the opinion of Sergeant Eisenbise, an experienced officer who testified at the trial, this is not an extremely high reading and not sufficient to create complete befuddlement. It was testified by the officer that he had seen readings as high as 3.0. Sergeant Eisenbise testified at the trial that he thought the actions and befuddlement of the defendant, in view of the not-excessive reading on the breath-o-Iyzer test, among other things, were to some extent feigned.

In any event, the defendant in the case before us did, according to the officers present, acknowledge his understanding of the Miranda warnings by nodding his head. While the defendant’s brief raises the question of how to distinguish between a nod in affirmation and a simple nodding or bobbing of a head due to drunkenness, there is no inherent right in the defendant to insist that his nod was a mere drunken gesture rather than a communication. The prior and attendant circumstances do not indicate such an extreme state of mental incapacity due to intoxication as to require an interpretation that the nod was meaningless.

The trial court in his memorandum denying the motion to suppress the statements made to Detective Bales and certain physical evidence, noted that the defendant replied affirmatively to Detective Bales when asked if he knew his constitutional rights and interpreted this affirmative reply as an acknowledgement that he remembered being given the admonitions the previous night. While we do not unqualifiedly accept this interpretation, since actually all that was established was that defendant “knew” his constitutional rights and not that he had been “advised” of them, still the fact that the officers advised Detective Bales that the Miranda warnings had been given would strongly substantiate the trial court’s opinion that there had been a sufficient admonition and acknowledgement thereof the previous midnight, some 9 hours earlier. In People v. Burbank (1972), 53 Ill.2d 261, our Supreme Court said the preliminary inquiry as to whether the defendant has been properly warned and whether he knowingly waived his rights is for the trial court. In making its determination the court need not be convinced beyond a reasonable doubt, and its findings will not be disturbed unless it can be said they are against the manifest weight of the evidence. (Lego v. Twomey (1972), 404 U.S. 477, 30 L.Ed.2d 618, 92 S.Ct 619; People v. Dailey (1972), 51 Ill.2d 239; People v. Higgins (1972), 50 Ill.2d 221. Also see Britt v. Commonwealth (Ky. 1974), 512 S.W.2d 496.) We are not prepared to find in this case that the trial court’s decision was against the manifest weight of the evidence.

We conclude, therefore, as did the trial court, that the defendant actually was given the Miranda warnings at the time of the breath-o-lyzer test and therefore prior to this interrogation by Detective Bales and that he acknowledged being so advised and was aware of the rights delineated by Miranda prior to his conversation with Detective Bales. The fact that the warnings had been given some 9 hours previously does not destroy their effectiveness (People v. Hill (1968), 39 Ill.2d 125), especially since the defendant was asked by Detective Bales prior to the conversation if he knew his constitutional rights and he answered in the affirmative with a vulgar reference to his previous conviction, “9 9 9 those 9 9 9 railroaded me,” indicating some sophistication in this area,

Before the interview began defendant asked if he could have a cigarette, which was given to him. Then he asked if “we have to talk with those two guys here,” whereupon the other two officers were asked to leave by Detective Bales and did so. It is obvious that the defendant was disposed to give the detective information and since the only information in his possession was highly incriminating, it seems farfetched to say that the defendant should have been specifically warned as to his constitutional rights all over again by Detective Bales. There can be little doubt that the defendant knew through his previous trial and conviction of his right to counsel, and it is not to be presumed that the presence of counsel would have been of any value to him under the circumstances. Obviously the position of the defendant was a hopeless one as to any possibility of concealing the crime or his connection with it. Once it was established that (1) the victim, Cretney, was missing, (2) that the defendant had at the same time escaped from jail, and (3) that the defendant had in his possession the victim’s wallet containing his driver’s license and other papers as well as the victim’s automobile, the remark made by the defendant, “You won’t find that dude alive” and the subsequent statement that blood on his arm was his, not' mine, could hardly have compromised him much further, nor would his silence have for more than a few hours concealed the crime. Any defense based on the theory of self-defense in resisting an unwelcome homosexual advance was still as much available to him after the statement as before, and, considering the inevitability of discovery of the body, the effect of defendant’s statement to Detective Bales was at most merely to advance a few hours or days the time of the crime’s discovery. We can only conclude in the light of these considerations that the defendant, realizing the hopelessness of his position, waived his right to remain silent and to have counsel present, and we agree with the trial court’s holding that he was well aware of his constitutional rights when he did so.

In view of our holding on this point, we need not consider whether the State’s contention that in any event not all the physical evidence resulting from the search following the defendant’s statements could have been suppressed as being fruit of an illegal interrogation. We restrict ourselves to holding that the evidence was sufficient to justify the trial court’s decision not to suppress the statements and other evidence on the ground of a violation of the strictures of Miranda v. Arizona.

The defendant also complains of a statement made by the trial court during cross-examination of the psychiatrist, Dr. Graybill, a defense witness. In the course of the cross-examination the following colloquy occurred:

“Q. [By State’s Attorney]: [I]f in fact you learned there was no partaking, there was no drinldng of alcoholic beverages up to the point of the attack with the axe, if you learned the drinking occurred after the axe was placed in the back of Mr. Cretney, would your opinion change as to the diagnosis of Mr. Henne?
MR. KILGUS [Defense Attorney]: Objection, Your Honor. There is no evidence by this witness or any witness that he actually put the axe in Mr. Cretney’s back. He is examining him on a situation none of the witnesses have testified to.
THE COURT: He has testified that the defendant had told him this is what occurred that evening.
MR. KILGUS: He told him he didn’t recall, that was his testimony.
MR. GOLDEN [State’s Attorney]: He said he was drinking—
MR. PETTY [State’s Attorney]: He said there was drinking, homosexual advances, a lot of statements were made to him.
MR. KILGUS: Your Honor, he has stated his question at the time the hatchet was placed in the man’s back.
THE COURT: All right, strike the hatchet from the back, let him answer the question without that.”

The defendant contends that “a fair translation of the trial court’s comment is ‘The psychiatrist has testified that the defendant has admitted the act.’,” and that comment, made in the presence of the jury, was extremely prejudicial. While it is true that error sufficient for reversal on appeal has been found where the trial court commented in an erroneous manner on a witness’ testimony (see Briggs v. People (1905), 219 Ill. 330, and People v. Bush (1921), 300 Ill. 532, cited in defendant’s brief), these were cases where the prejudice was manifest and substantially affected the judgment of the jury as to the guilt or innocence of the defendant. We cannot say such was the case here. But in any event the court immediately attempted to rectify his erroneous comment by asking the State’s Attorney to repeat the question with the objectionable part excluded and we think this was sufficient under the circumstances. It could hardly be seriously contended that this minor episode as rectified by the judge’s amending remark was of critical importance in convicting the defendant in view of the chain of evidence otherwise linking him to the crime. Certainly we do not consider it of sufficient gravity to warrant a new trial. The judge’s remark, an inadvertent error, immediately corrected, does not, in view of the entire record, deserve to be accorded that much importance. We are satisfied that it did not prevent the defendant from receiving a fair trial.

We therefore affirm the judgment of the trial court.

Judgment affirmed.

GUILD and SEIDENFELD, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE GUILD

license: Public Domain

text:
    La Salle National Bank, Trustee, Plaintiff-Appellant, v. County Board of School Trustees of Du Page County et al., Defendants-Appellees.
    (No. 74-23;
    Second District
    November 21, 1974.

      Rehearing denied December 17, 1974.

      Sneider & Troy, of Chicago (Richard J. Troy, of counsel), for appellant.
    Isham, Lincoln & Beale, of Chicago, and John J. Bowman, State’s Attorney, of Wheaton (Robert C. Johnson and Joe Bonk, Assistant State’s Attorney, of counsel), for appellees.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This action was brought by LaSalle National Bank (Bank) as trustee on behalf of the former owners of the beneficial interest of the property to revest title in property taken by the defendant, Board of School Trustees of Du Page County (Board), pursuant to its statutory eminent domain powers (Ill. Rev. Stat. 1973, ch, 122, par. 10-22.35A). The suit further sought to enjoin the Board from transferring title to subsequent purchasers of the property, defendant MacDiarmid-Palumbo, Inc., who bought the property at a public sale. (Ill. Rev. Stat. 1973, ch. 122, par. 5-22.) The trial court granted the Board’s motion for summary judgment and entered judgment for the defendants. It is from this judgment that this appeal is taken.

In this appeal the Bank has raised several issues concerning the power of the Board to hold title to property taken in a condemnation proceeding in fee simple absolute as opposed to some lesser interest which is conditioned upon the continued use of the property by the Board with some type of reversionary interest in the Bank, if the Board no longer uses the property for school purposes. However, for the purposes of this opinion we need only address ourselves to the questions of what interest was actually taken by the Board under the condemnation order and whether we may now review the scope of the taking.

Prior to September 21, 1970, the Bank, as trustee under Trust No. 17797, was the owner in fee simple absolute of the real property in question which consisted of 180 acres of land, being a part of a larger tract of land located at the intersection of 63rd Street and Garfield in Downers Grove Township. Prior to January 1, 1970, the Board instituted an action in eminent domain in the 18th judicial circuit for the purpose of acquiring the land for the use of the defendant, Hinsdale School District 181. On September 21, 1970, the circuit court entered a condemnation order, stipulated to by the parties, awarding the plaintiff the sum of $360,000 as just compensation for the taking of its land. The Bank did not appeal this order.

The public announced purpose for the taking of the land was to build a junior high school. This purpose was frustrated when the referendum to fund the construction at that site was defeated, and the Board decided not to submit the proposal to another vote.

Subsequently, the Board directed that the property be sold at public sale. The Bank at this juncture sought to reacquire the property by offering the Board the sum of $360,000, being the stipulated condemnation award entered 2 years before.

On or about August 18, 1972, the Board offered the property for public sale. On that same date the Board, after refusing the Bank’s tender of $360,000, accepted a bid of $425,000 from defendant, Mac-Diarmid-Palumbo, Inc.

On August 31, 1972, the Bank filed its complaint for injunctive relief to restrain the Board from transferring title to defendant MacDiarmid-Palumbo, Inc., and for judgment in its favor directing that the Board reconvey the property to the Bank upon return of the condemnation award. In the alternative, the Bank prayed for relief in the nature of damages for the remainder now that the condemned property was not to be used as school property.

The Bank contends that the court in the condemnation proceedings did not award the property to the Board in a fee simple absolute but rather gave the Board some lesser estate, leaving a reversionary interest in the Bank. We find, however, that the trial court awarded the property to the Board in fee simple absolute with no reversionary interest in the Bank as condemnee or as seller. The order of the court put no limitation on the Board’s fee simple title to the property and the order made no reference to any reversionary interest in the Bank.

In its efforts to obtain title to the property in question, the Bank contends, both in the trial court below and on appeal, that even if the trial court did award title to the Board in fee simple absolute, that under the facts in this case the Board cannot take such title in the property but may only take some lesser estate, leaving some type of reversionary interest in the Bank. However, we find that this issue is not properly before this court. Under the doctrine of res judicata, a final judgment rendered by a court of competent jurisdiction on the merits is conclusive in the absence of fraud as to the rights of the parties and their privies and, as to them, constitutes an absolute bar to subsequent action involving the same claim, demand or cause of action. This doctrine, in all cases where the second suit is upon the same cause of action and between the same parties or their privies as the former action, extends not only to the questions actually litigated and decided but to all other questions which might have been presented. People v. Kidd (1947), 398 Ill. 405, 75 N.E.2d 851.

The issue of what quantum of estate a school board may take in a condemnation proceeding should be properly raised in the original condemnation proceeding (F. Righeimer and F. Righeimer, Jr., Eminent Domain in Illinois § 2.02 (2d ed. 1972) ) and, in this case, has been finally adjudicated in favor of the Board by the trial court in the condemnation hearing by its award of fee simple absolute title to the Board. There is no question that the decision of the trial court in the condemnation suit was a final one, no appeal having been taken from its order, was rendered upon the merits by a court of competent jurisdiction, and involved the same demand as we have in this case. Accordingly, as there has been no allegation of fraud, the trial court’s determination of this issue is conclusive as to these parties, and this plaintiff cannot relitigate this question in this subsequent proceeding for injunctive relief under the doctrine of res judicata. In this connection we refer to People ex rel. White v. Busenhart (1963), 29 Ill.2d 156, 193 N.E.2d 850. This is one of numerous appeals by the Schroeders involving the taking of their premises for school purposes. In this particular appeal the Schroeders contended that the court did not have jurisdiction to enter judgment for the taking of a fee simple title. The supreme court held that a judgment by condemnation was not subject to collateral attack and stated the following: “There, the condemnor’s right to acquire by eminent domain was attacked, while here only the extent of the estate to be taken is alleged to be grounds for going behind the judgment. We are of the opinion that the fee-simple-title question is barred.” (29 Ill.2d at 160, 193 N.E.2d at 853.) “The petitioners again sought to raise in the complaint the points urged in the eminent domain case. They go so far as to allege unequivocally that title was vested in the Schroeders despite the records of the court showing the judgment which we affirmed in the second appeal. (25 Ill.2d 289, [184 N.E.2d 872].) That judgment is not subject to collateral attack since the court had jurisdiction of the subject matter and the parties. [Citation.] a * * these points were improperly pleaded inasmuch as they constitute a collateral attack upon the judgment of the court vesting title in the School Trustees.” 29 Ill.2d at 162, 193 N.E.2d at 854-55. See also Schroeder v. Busenhart (1967), 80 Ill.App.2d 431, 438-39, 255 N.E.2d 702.

The Bank has also alleged that the portion of the property which they had retained has been further damaged by the selling of the condemned property by the Board to private parties. The question of damages is also one which was properly before the trial court and which was finally adjudicated by that trial court in the condemnation proceedings. Thus, the Bank is also barred under the doctrine of res judicata from raising this question in these proceedings. See Allen v. Haley (1897), 169 Ill. 532, 48 N.E. 478; McReynolds v. City of West Frankfort (1954), 3 Ill.App.2d 406, 122 N.E.2d 433.

Accordingly, for the foregoing reasons the judgment of the trial court is affirmed.

Affirmed.

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


author: Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Rachel Reeves, Defendant-Appellant.
    (No. 74-14;
    Third District
    November 19, 1974.

      Rehearing denied December 17, 1974.

      Dinah B. Dyer, of Wisch & Dyer, Ltd., of Chicago, for appellant.
    Martin Rudman, State’s Attorney, of Joliet, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court;

This is an appeal from the order of the circuit court of Will County finding respondent, Rachel Reeves, guilty of criminal contempt and sentencing her to 7 days in the Will County jail. This contempt action was brought pursuant to a petition for rule to show cause filed on behalf of the People by Martin Rudman, State’s Attorney of Will County.

This action arose out of a case in the circuit court of Will County which involved the custody of two children, Elaine and Susan Ross. The two children had been been in the foster care of respondent, Rachel Reeves, from 1966 until March 9, 1973, at which time they were taken from her by court order and placed in an orphanage. In January, 1973, the proceedings were begun to remove Elaine and Susan from Mrs. Reeves’ care. Rafael Toruno, assistant State’s Attorney handling the matter, had appeared four or five times in connection with the removal proceedings. On August 2, 1973, Judge Angelo Pistilli was to hear a motion from the Department of Children and Family Services regarding a modification of a custody order previously entered by Judge Pistilli. On that date Rafael Toruno requested Judge Pistilli to continue the hearing on the motion due to the absence of the natural parents and their attorney. Argument was heard on the motion to continue after which Judge Pistilli continued the cause to August 23, 1973. Toruno testified that he saw respondent in the courtroom at the beginning, during and at the conclusion of the proceedings. At one point during the hearing respondent’s attorney asked- for a recess during which he took Mrs. Reeves, who was weeping, into the corridor. The events in question concerning the contempt occurred outside Judge Pistilli’s courtroom in the corridor after the motion to continue was granted. About 15 to 20 people including news media and supporters of the Reeves milled outside in the corridor. Judge Pistilli was not present in the corridor during the incident. Five observers testified as to the occurrence including four news representatives and one attorney who had come out of another courtroom. None of the media representatives saw any poking of Mr. Toruno by Rachel Reeves but one did see Mrs. Reeves moving her right hand in an up and down motion and the attorney testified that he saw Rachel Reeves poke Rafael Toruno in the left cheek three or four times with the finger or fingers of her right hand and that he saw Mr. Torano’s head go back and forth as he was poked. Mr. Toruno testified that as he came into the corridor from Judge Pistilli’s courtroom Mrs. Reeves, a Mrs. Hahn and an unidentified lady walked toward him and began shouting at him. Mrs. Hahn was shouting about Torano’s wife working for the Department of Children and Family Services in Will County and about Albert Rudman, father of Will County State’s Attorney Martin Rudman, being the bailiff in Judge Pistilli’s courtroom. Toruno stated that he turned from the three women to go toward Judge Pistilli’s chamber doors but before he got there he began a conversation with a Reverend Norton during which the three women again approached him and he turned to face them. During this conversation Mrs. Reeves shouted words the basic import of which was, “What are you doing to my children * * * you don’t care about my children” and thereupon poked him in the left cheek with the extended finger or fingers of her right hand three or four times. As he turned to leave by the door to the chamber area someone yelled, “You’d better run you son of a bitch.” Toruno then entered the chambers and a petition was subsequently filed by the People of the State of Illinois requesting that Rachel Reeves be adjudged guilty of indirect contempt of court. On September 4, 1973, Circuit Judge Michael A. Orenic conducted the hearing on the petition at which the above facts were adduced and then held Rachel Reeves to be in indirect criminal contempt and fixed her punishment at 7 days’ incarceration in the Will County jail.

On appeal respondent’s first contention is that it was error to admit evidence of the possibly contemptuous words and actions of persons other than Rachel Reeves. The evidence to which respondent refers is Torano’s testimony that Mrs. Hahn made accusations that nepotism had colored the proceedings, his testimony that someone had shouted, “Run you son of a bitch” as he left the corridor area, the attorney-witness’ testimony that Jack Reeves had shouted, “Run you son of a bitch” and that a female voice coming from the place where Rachel Reeves was standing but not necessarily from Rachel Reeves herself also shouted, “Run you son of a bitch.” Respondent concedes in her brief that if the People’s contention that the evidence of the words and actions of others was offered not to prove their truth but to make the entire transaction understandable, then their admission would not be prejudicial to her. It is respondent’s contention, however, that Judge Orenic’s order clearly indicated that he attributed the crowds’ temper to Rachel Reeves, wherein he stated, “I do believe however that Rachel Reeves was emboldened by the support, aid and comfort from Mrs. Hahn and certain sympathetic members of the press.” Respondent contends that the court inferred the intent of the crowd was that of Mrs. Reeves and that it was not proven beyond a reasonable doubt that Mrs. Reeves possessed the necessary intent to support a conviction for criminal contempt of court. Respondent cites two cases. In City of Chicago v. Hart Building Corp., 116 Ill.App.2d 39, 253 N.E.2d 496, the court held that the respondent acted knowingly, contemptuously and wilfully. In People ex rel. Chicago Bar Association v. Barasch, 21 Ill.2d 407, 173 N.E.2d 417, the court merely stated that the guilt of the one accused of contempt criminal in nature must be proved beyond a reasonable doubt. We must hold here that there is sufficient evidence of the respondent’s intent to knowingly and intentionally strike the assistant State’s Attorney. We do not interpret the remarks made in the order as substituting the intent of the crowd for that of respondent, but rather such remarks reflect the circumstances present at the time as testified to by all the witnesses.

Respondent next argues that the necessary intent here was not proved beyond a reasonable doubt and cites a case which concerned direct contempt for giving false testimony in the trial of a case, People v. Bialek, 31 Ill.App.2d 281, 175 N.E.2d 278, which in turn cites language from People v. Hille, 192 Ill.App. 139, a direct contempt case, to the effect that the intent necessary is a “ malevolent intention to assail the dignity of the court, or to wilfully and knowingly interfere with its procedure or due administration of justice.’ ” (31 Ill.App.2d 281, 284.) In the case at bar there is ample evidence to support a finding respondent knew she was hitting and did hit the assistant State’s Attorney assigned to the custody case and did so immediately after leaving the courtroom and while in the corridor immediately outside the courtroom. Such facts are sufficient to support the necessary intent required for indirect contempt.

Respondent argues further that, assuming the battery occurred, she was held in contempt not for the act but for the milieu in which that act occurred. The contention is made that tire rule applicable in cases of contempt for perjury that the further element of actual obstruction to the court in the performance of its duty must be proved should be applicable here. It is sufficient to hold here that the striking of an assistant State’s Attorney by a party to a case assigned to such attorney immediately after they leave the courtroom and while in the corridor immediately outside such courtroom is sufficient to constitute indirect contempt of court. Again we note respondent is charged with responsibility for her own conduct and not that of the crowd.

Respondent’s final argument is that, even if the conviction for contempt is allowed to stand, the sentence imposed is harsh and inappropriate. We agree with defense counsel that a jail sentence here would be inappropriate. As the People quote in their brief, “In fixing a penalty for contempt of court, it must be made sufficient to vindicate the authority of the court, and of law, it must also inhibit further violations, and serve as a warning to others. A reasonable discretion must be allowed in weighing these factors.” (American Zinc Co. v. Vecera, 338 Ill.App. 523, 531, 88 N.E.2d 116.) We hold here that, in light of the attendant circumstances, i.e., the emotional nature of the case and the distraught condition of respondent, in applying the standard in the foregoing quotation incarceration is not required and would serve no useful purpose. We believe the purposes of the extraordinary action for contempt will be adequately served and the authority of the court vindicated by the imposition of a small monetary fine.

For the foregoing reasons, the order of the circuit court of Will County is affirmed as to the conviction and reversed and remanded for the assessment of a penalty not involving incarceration.

Judgment affirmed in part and reversed and remanded in part.

ALLOY and DIXON, JJ., concur.


author: Mr. JUSTICE DIXON

text:
      In re Trino J. Giminez et al., Minors.—(The People of the State of Illinois, Plaintiff-Appellee, v. Trino Giminez et al., Defendants-Appellants.)
    (No. 74-88;
    Third District
    November 22, 1974.

      James Geis and Mark Burkhalter, both of State Appellate Defender’s Office, of Ottawa, for appellants.
    David DeDoncker, State’s Attorney, of Rock Island (Richard F. Doerr, of counsel), for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

In January 1973, in the Circuit Court of Rock Island County, minors Trino Giminez and Alvin Lacefield were adjudged delinquent and made wards of the court. Both were placed on probation with their parents. On December 4, 1973, after a subsequent petition for detention had been filed, an order committing both juveniles to the Department of Corrections, Juvenile Division, was entered. Both appeal, contending that the trial court’s failure to provide appointed counsel at the detention hearing constituted a violation of their right to counsel and prejudiced their defense.

On October 18, 1973, James Watson, a minor on parole from the Illinois Department of Corrections, was taken to the East Moline Police Station for questioning concerning a number of home burglaries in the East Moline-Silvis area. Watson was advised of his rights several times and, after first refusing, signed a statement waiving his rights.

Watson then made a written statement confessing to his involvement in the burglaries. In his statement Watson also implicated minors Trino Giminez and Alvin Lacefield in several of the home burglaries. Giminez and Lacefield had both been declared delinquent in January, 1973, and were both on probation with Sara Fields, Giminez’s natural mother, and her husband. Their probations were the result of their involvement in burglaries in the East Moline area in late 1972.

Later on the same day, October 18, Giminez and Lacefield were taken to the East Moline Station. They were advised of their rights. After signing a statement waiving their rights both boys made statements admitting entering homes in East Moline and Silvis. Both boys remained in custody.

On October 22, 1973, Giminez and Lacefield appeared at the detention hearing (Ill. Rev. Stat. 1973, ch. 37, par. 703 — 6) in the Rock Island County Court on a petition by Andrew Jackson, their probation officer, to continue to detain the boys in custody pending a further dispositional hearing. Neither minor was represented by counsel nor did the court advise them of their right to be represented or their right to have counsel appointed in the event of their indigency. The court also failed to advise the minor’s parents of their right to be represented and their right to have counsel appointed. Testimony concerning the boys’ confession was presented by East Moline police officers. The petition was granted and the minors remained in custody.

Nine days later the public defender was appointed to represent the minors.

A hearing on a motion by defendants to suppress their confessions was held on November 16, 1973. The motion was denied.

On December 4, 1973, a dispositional hearing was held and Alvin Lace-field and Trino Giminez were committed to the IUinois Department of Corrections, Juvenile Division.

There are not, as yet, any Illinois cases delineating the consequences of failure to provide a minor with counsel at a detention hearing. At the adjudicatory hearing which may follow the right to counsel is constitutionally mandated. In re Gault, 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428.

A minor’s right to counsel at juvenile proceedings and the right to have counsel appointed is provided by section 1 — 20 (1) of our Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 701 — 20(1)). The court has the mandatory duty at the first appearance of the minor, his parents, guardian custodian or responsible relative to explain the nature of the proceedings and to inform the parties of their rights including the right to counsel. (Par. 701 — 20(3).)

A detention hearing has been compared to a preliminary hearing in a criminal case where evidence is taken to determine whether probable cause exists to hold the accused for grand jury action. (People v. DePoy, 40 Ill.2d 433, 436.) If probable cause is not found in either hearing, the accused must be discharged.

In People v. Adams, 46 Ill.2d 200, the court held that a preliminary hearing is a “critical stage” of the criminal process so as to give rise to a constitutional right to representation. Quoting from Coleman v. Alabama, 399 U.S. 1, 26 L.Ed.2d 387, 90 S.Ct. 1999, the court stated,

“ ‘First the lawyer’s skilled examination and cross-examination of witnesses may expose fatal weakness in the States case, that may lead the magistrate to refuse to bind the accused over. Second, in any event, the skilled interrogation of witnesses by an experienced lawyer can fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial, or preserve testimony favorable to the accused of a witness who does not appear at the trial. Third, trained counsel can more effectively discover the case the State has against his client and make possible the preparation of a proper defense to meet that case at the trial. Fourth, counsel can also be influential at the preliminary hearing in making effective arguments for the accused on such matters as the necessity for an early psychiatric examination of bail.’” (46 Ill.2d 200, 206-07.)

The same reasoning would certainly apply to a detention hearing where a child’s life is disrupted; he may, in fact, not be an offender and so feels he is being punished unfairly; he is forced to associate with children who may be far more disturbed than himself; the custodial facilities may be inadequate and overcrowded; and his ability to participate in the preparation of his defense is curtailed. The National Crime Commission study in 1967 in juvenile delinquency showed that there was excessive reliance on detention in routine cases in which there was no danger to the welfare of the juvenile or to the community from releasing him and that detention was often used for shock effect. Further the prosecutor is now always present to prove his case for detention.

Requiring the court to inform an alleged delinquent (and his parents) against whom a detention petition has been filed, that he has a right to counsel or if they are unable to afford counsel, that counsel will be appointed to represent the child, is, we think, mandated by the statute. We further believe that the right to counsel must be competently and intelligently waived and where waiver is relied on, the court should affirmatively find as a fact, that by reason of age, education and information, and all other pertinent facts, the minor was able to and did make an intelligent waiver.

The record in the present case indicates that absence of counsel at the detention hearing may have been prejudicial to the defendants. The probable cause determination was primarily based on testimony as to a confession. There was no opportunity for effective cross-examination. Counsel was not afforded an early opportunity to appraise the State’s case and prepare a defense. Absence of counsel precluded the possibility of effective argument to allow the minors to remain at home until the adjudicatory hearing and to better assist counsel. Pursuant to the procedure in Coleman, supra, the cause is remanded to the Circuit Court of Rock Island to determine whether petitioners were prejudiced by absence of counsel at the detention hearing.

Remanded with directions.

STOUDER and ALLOY, JJ., concur.

       Detained juveniles are not allowed bail in Illinois.

       See Mora, Juvenile Detention: A Constitutional Problem, Urban Lawyer (Summer 1969).

       President’s Commission on Law Enforcement and Administration of Justice, Task Force Report on Juvenile Delinquency and Youth Crime.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William B. Wyatt, Defendant-Appellant.
    (No. 73-70;
    Third District
    November 22, 1974.

      Rehearing denied December 30, 1974.

      Bruce R. Becker, of Peoria, for appellant.
    James O. Christy, Assistant State’s Attorney, of Peoria, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

Defendant, William Wyatt, was charged with robbery and armed robbery and after a jury trial in the circuit court of Peoria County was found guilty of aimed robbery. He was sentenced to a term of not less than 4 years and not more than 12 years in the penitentiary. Defendant appeals from this conviction and sentence.

On June 19, 1972, complainant Rudolph Burnett, a taxicab driver in the city of Peoria, was robbed at gunpoint at about 4 A.M. Mr. Burnett testified that on June 19, 1972, at about 4 A.M., he received a call to pick up a fare at a Peoria hotel. He stated that when he arrived he saw a man, later identified as the defendant, sitting on the curb wearing a pink muscle shirt and dark trousers. After talking with the man for 4 or 5 minutes the man went inside the hotel and then came back in about 5 minutes. The driver stated that the man picked up what he said was a pool stick wrapped in yellow paper which was leaning against a telephone pole. The driver said he noticed the man had a gold tooth and that the man was seated in the back in the opposite corner to the right. He stated that after driving to a certain destination the man announced a holdup, touched the back of the driver’s seat, took the driver’s changer and billfold and made him get out. The driver then started walking and heard the cab start up. He said that he walked to a certain intersection where he hailed two policemen. At the police station he was given some pictures to identify. The next morning he observed a lineup in which defendant was the fifth man. Mr. Burnett testified further that the only time he saw the gun was when he looked back and when defendant got out of the cab and that the gun was already unwrapped when defendant got out of the cab but he didn’t know what happened to the paper. He went on to state that the police sergeant the next day got a lot of pictures and put them on the desk before the lineup, and that after he recognized no one in that bunch the police sent to the county jail and got a picture and sent some pictures back, and that he saw defendant Wyatt’s picture in that group. Complainant identified defendant at the lineup, but since there is considerable dispute as to what transpired there, those facts will be set out in dealing with the issue concerning suppressing the in-court identification by the complainant.

Defendant’s first contention is that the State failed to prove every material allegation in the indictment, namely, the question whether that allegation in the indictment particularly describing the dangerous weapon as a 12-gauge shotgun was a material element to the offense. Defendant cites three cases which support the validity of the general rule but each Case is distinguishable on its facts. In People v. Coleman, 49 Ill.2d 565, 276 N.E.2d 721, the court affirmed a murder conviction and rejected defendant’s contention that the means used to kill the victim was not a formal defect in the indictment which could be changed by amendment. In Coleman, on motion of the state’s attorney, the indictment was amended to charge murder by asphyxiation by use of hands, bedsheet or blanket after defendant had been charged with the murder of his wife by stabbing with a knife. In People v. Ball, 126 Ill.App.2d 9, 261 N.E.2d 417, the court on rehearing upheld reversal of a conviction on the charge of indecent liberties with a child where the indictment failed to allege act or acts by which defendant allegedly committed the offense. In People v. Jamison, 92 Ill.App.2d 28, 235 N.E.2d 849, the court reversed the conviction for burglary where the indictment failed to allege complete ownership of the building. The court discussed the reasons for requiring the ownership of property to be stated in an indictment for burglary. In the case at hand the type of weapon used is not a material allegation in an indictment for armed robbery. The only necessary element to convert robbery into armed robbery is that the robber be armed with a dangerous weapon. There was sufficient testimony to establish that defendant was armed with a gun, and the particular type of gun is not necessary to the case.

Defendant’s next argument relates to the prosecutor’s closing argument to the jury. Defendant contends that the following two statements constituted inflammatory, prejudicial remarks. The first is: “You have all been instructed as to the beyond a reasonable doubt standard required in this case and I am not going to give you any instructions on what reasonable doubt is * * * The Judge will do that, if necessary. I am not going to say anything about it but I would like to point this out, hundreds of Courts every week with jurors such as yourselves use this particular standard * * * this reasonable doubt standard and use it to the point someone is found guilty of a crime.” After defendant’s objection was overruled and his motion for mistrial denied the prosecutor went on to state: “As I stated before the momentary break, hundreds of Courts have used this particular standard in the United States, use it every week and as I said earlier, guilty verdicts are returned based on this standard.” Defense counsel again moved for a mistrial which was denied. On rebuttal the State made the following statement: “The burden of the People in this case is to prove the guilt of the Defendant, William Wyatt, beyond a reasonable doubt. Now, it isn’t to prove him guilty beyond all doubt or any doubt, our burden is to prove h:m guilty, beyond a reasonable doubt.”

Defendant cites People v. Malone, 128 Ill.App.2d 265, 261 N.E.2d 776, in which the court upheld the trial court’s refusal to permit defense counsel during closing argument to present to the jury his interpretation of reasonable doubt. The court discussed the Illinois Pattern Jury Instruction Committee’s recommendation that no instruction be given defining reasonable doubt because it is a term needing no elaboration and any attempt to define it would be futile. The People cite the IPI — Criminal Instruction Number 2.05 (1968), and People v. Malmenato, 14 Ill.2d 52, 150 N.E.2d 806, cited in the IPI, which mentioned the futility of attempting to define reasonable doubt and yet held that the instruction given by the People was free from prejudicial error. Defendant next cites People v. Woodley, 57 Ill.App.2d 380, 206 N.E.2d 743, in which the court affirmed a conviction and held that prosecutor’s remarks referring to defense tactic of emphasizing discrepancy between officers’ testimony as a trick or device, did not constitute prejudicial error. The court declared, “The degree of impropriety which constitutes reversible error depends not only upon the language used but also upon the circumstances in which it is used. A judgment will be reversed only when it is reasonably clear that improper remarks influenced the jury in a manner that resulted in substantial prejudice to the accused.” (57 Ill.App.2d 380, 385.) The question in the case at bar is whether the prosecutor’s remarks influenced the jury in a manner which resulted in substantial prejudice to the accused. In People v. Rogers, 132 Ill.App.2d 501, 270 N.W.2d 186, the court announced the general rule that in order to overturn a conviction the record must show that substantial prejudice resulted to defendant such that the outcome would have been different. It cannot be said as a matter of law that the prosecutor’s remarks in the present case resulted in an outcome different than what it would have been without such remarks.

The next contention of the defendant is that the court erred in denying his motion to suppress the in-court identification by the complainant. Defendant first cites People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152, for the proposition that where pretrial identification proceedings are conducted without an accused being represented by counsel and the accused can support his claim that the confrontation is unnecessarily suggestive and conducive to irreparable mistaken identification, the evidence is rendered inadmissible. The same result exists where photographic identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification (People v. Brown, 52 Ill.2d 94, 285 N.E.2d 1). In Brown the court upheld both identification procedures. It stated that the record did not reflect that the police officers in any way directed complainant’s attention to the defendant’s photograph or in any way suggested that defendant was the one who attacked her. With regard to the lineup the court stated: “After identifying the defendant from the photographs, the police did not discuss the matter with the prosecutrix until she was asked to view some suspects. She was not told that one of the suspects was the man whom she had identified from the photographs. Additionally, all of the participants in the lineup were of the same appearance and dress.” (52 Ill.2d 94, 100.) In the Blumenshine case the court held the identification process was highly suggestive and improper but the record did not permit informed judgment as to whether witnesses’ identifications were based on observations dependent on improper identification proceedings. In that case two men with silk stockings pulled over their faces robbed the patrons of a laundromat. About 3 weeks later the four victims were brought to the police station, and the two accused were first shown alone in a room through a one-way mirror and then were shown together. Two of the four victims were told that the suspects were in custody and were asked to view them. The court stated the general rule that whether there was a denial of due process depends on whether the witness’ identification at trial was dependent on or influenced by the improper viewing. In the case at bar the evidence is disputed as to the facts surrounding both the photographic identification and the lineup. Defendant claims that the other men in the lineup were not of similar age as defendant who was 21 for the other men ranged from 18 to 29. He claims further that the heights of the men were very dissimilar from defendant, who was about 6 foot 4, for the heights of the others varied from 5 foot 9 to 6 foot, and complainant had told the police that the robber was tall. He further argues that the weights differed considerably in that his weight was around 140 and the weights of the others were between 126 and 165 and, further, that defendant was clean-shaven and some of the others were not. Defendant contends also that the procedure used by the police to get the photos was highly suggestive, since they made it known to complainant after he failed to identify any of the pictures in the station that they were sending to the county jail to get some pictures and that this would imply that the suspect was already in custody. Defendant’s further argument concerning the inadmissibility of the in-court identification was that the complainant never saw the gold tooth of defendant but testified that defendant had one, the police wanted each member of the lineup to state his name and defendant was the only one with a gold tooth (each member of the lineup refused to say anything), and defendant had to pose before the mirror a lot longer than the others, and he heard complainant say that defendant did not look like the robber, and the police sergeant told complainant that this was the suspect with the gold in his mouth and that this was the suspect complainant picked out of the mug book. Defendant briefly claims further that he was deprived of his rights under Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967, and that counsel was absent at a “critical” stage. There is evidence, however, that defense counsel was in fact present before the lineup, spoke to defendant, gave him advice and saw that all members of the lineup were dressed alike. The evidence concerning the physical characteristics of the members of the lineup is somewhat disputed, but it cannot be stated as a matter of law that defendant sustained his burden to show that the lineup was so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny defendant due process. There is sufficient evidence to show that the taxi driver had ample time to observe the robber and that, based on such observation, he was able to identify defendant in both the photos and in the lineup. The cases cited by defendant, as noted above, are distinguishable from the case at bar.

Defendant’s next contention is that the court erred in denying defendant’s motion for a mistrial. The motion was based on the following colloquy between the State’s attorney and the taxi driver:

“Q. Did you see anybody in there?
A. In that bunch of pictures * * * no.
Q. You told them there was nobody in there you recognized? What did he do?
A. They sent to the County Jail and they got a picture and they brought some pictures back.
Q. What did you see in those?
A. Then I saw Wyatt’s picture in there.”

Defendant’s theory is that the effect and intent of the above testimony was to prejudice the jury by implying that defendant had a prior criminal record. He cites two cases in support of the proposition that the only use which can be made of a prior criminal record at trial is for the purpose of affecting the credibility of the witness and must be brought out by a properly authenticated record of the conviction. (People v. Williams, 72 Ill.App.2d 96, 218 N.E.2d 771, People v. Flynn, 8 Ill.2d 116; 133 N.E.2d 257.) The State counters that the subject of police photographs was raised by defense counsel first and argues that the State’s Attorney had a right to respond in an attempt to clarify answers given by the witness regarding the police photos. There is insufficient evidence that the State’s Attorney’s design was to imply that defendant had a prior criminal record, and therefore we cannot hold as a matter of law that defendant was entitled to a mistrial based on the above colloquy.

Defendant’s next argument is that he was not proven guilty beyond a reasonable doubt. He first argues that tire State must prove beyond a reasonable doubt each of the elements necessary to constitute the crime charged and cites People v. Lott, 24 Ill.2d 188, 181 N.E.2d 112. We do not question the validity of the rule, but defendant’s argument that the State failed here to comply with the rule based on its failure to prove the existence of the 12-gauge shotgun is erroneous. As mentioned earlier, the existence of the 12-gauge is not a material element of the offense of armed robbery. Defendant next argues that the identity of the robber was not proved beyond a reasonable doubt. Again he recites as a general principle of law that one of the essential elements which the State must prove beyond a reasonable doubt is the identity of the accused as the one who committed the crime charged, citing People v. Dante, 35 Ill.2d 538, 221 N.E.2d 409. However, as applied in the case at bar, there is sufficient evidence, although disputed, to uphold the identification of defendant as the robber. Defendant cites People v. Cullotta, 32 Ill.2d 502, 207 N.E.2d 444, and People v. Williams, 96 Ill.App.2d 64, 237 N.E.2d 750, to support its contention that the identification of the accused was vague, doubtful and uncertain and therefore the conviction not sustainable. In Cullotta the two officers who identified the defendant had only a fleeting view of the men in the laundromat as they drove by in their patrol car, plus it was snowing, and the officers only had a side or profile view of the faces of the suspects. In Williams the court upheld the identification of the accused and held that the testimony of one witness as to identification, if positive and the witness credible, is sufficient to convict even if that testimony is contradicted by the accused. In the present case the witness had sufficient opportunity to observe the defendant, and he identified him in the photo and in the lineup and at the trial. It is also important to note here that there was the corroborating fingerprint of defendant found on the paper which was located in the back seat of the cab in which defendant claimed he was never present. Despite the fact that there was conflicting evidence here concerning the color and type shirt and some conflict regarding the identification process, there was sufficient evidence to sustain the validity of the identification. The third part of defendant’s attack concerning the existence of a reasonable doubt relates to the fingerprint evidence. This court must note that the evidence regarding the fingerprint constitutes perhaps tire weakest part of the People’s case, and yet it does constitute some evidence corroborating the identification.

Defendant’s last argument is that the sentence of from 4 to 12 years is excessive in view of defendant’s past history and in view of tire specific recommendation of the adult probation officer that defendant be allowed to utilize the work release program. First of all, it must be noted that armed robbery is a Class 1 felony (Ill. Rev. Stat., ch. 38, par. 18 — 2(b)), for which the minimum term is 4 years (Ill. Rev. Stat., ch. 38, par. 1005— 8 — 1(c) (2)) and the maximum any term in excess of 4 years (Ill. Rev. Stat., ch. 38, par. 1005 — 8—1(b)(2)), and therefore the statutory provisions are complied with, and this court on review will be most reluctant to hold that the trial court abused its discretion in not putting defendant in a work-release program. The recommendation of the adult probation officer is, of course, not binding on the trial court.

For the foregoing reasons, the judgment and sentence of the circuit court of Peoria County is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE SIMKINS

text:
    Gerald Lippold et al., Plaintiffs-Appellants, v. Joy Beanblossom et al., Defendants-Appellees.
    (No. 12557;
    Fourth District
    November 21, 1974.

      David C. Wahl, of Wiseman, Shaikewitz, McGivern, Bacus & Wahl, of Alton, for appellants.
    Phelps, Russell, Carmody & Kasten, of Carlinville (Thomas P. Car-mody and Carl E. Kasten, of counsel) for appellees.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Plaintiffs appeal from an order entered by the circuit court of Ma-coupin county granting defendants’ motion to dismiss count one of plaintiff s complaint with prejudice. The issues before this court for resolution are: (1) Whether plaintiffs’ motion to amend the complaint to conform to the proof should be permitted by this court, and (2) whether the trial court erred in dismissing count one of plaintiff’s complaint.

On May 29, 1973, plaintiffs, Gerald Lippold and Rodney Arnett, filed a two-count complaint against defendants, Joy and Helen Beanblossom, alleging in count one the breach by the defendants of an oral contract to sell 7000 bushels of soybeans to plaintiffs at $4.42 per bushel. The count further alleged partial performance of said contract. On July 27, 1973, defendants filed a motion to dismiss plaintiff’s complaint citing the affirmative defense of the statute of frauds. On October 31, 1973, plaintiffs filed a “Memorandum In Opposition to Defendants’ Motions to Dismiss Count I and Count II of Plaintiffs’ Complaint.” The memorandum cited excerpts from what purported to be the discovery depositions of Joy and Helen Beanblossom taken on July 10, 1973, and alleged that defendants admitted in these depositions the existence of said contract. On December 6, 1973, the trial court dismissed the complaint with prejudice stating, as to count one, that the partial performance exception applies only to the executed part of the transaction, that oral contracts are unenforceable under the statute of frauds and that defendants have never admitted the existence of an oral contract between the parties. On December 28, 1973, plaintiffs filed a notice of appeal from that part of the order dismissing count one of their complaint. On March 27, 1974, plaintiffs filed a motion in this court for leave to file an amended complaint in order to conform to the proof.

We must first decide whether plaintiffs’ motion to amend the complaint should be granted by this court. Section 46(3) of - the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 46(3)) states:

“A pleading may be amended at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.”

In the instant case, however, there s simply no proof to which the pleadings may be conformed. The trial court dismissed the complaint on'the initial motion of the defendants, and there was no testimony or evidence taken. In Fultz v. Haugan, 49 Ill.2d 131, 273 N.E.2d 403, 406, the court stated:

“Plaintiff could therefore only amend the complaint to make the same conform to the proof. However, the order of March 31 was entered pursuant to the defendant’s motion to dismiss and no evidence by way of testimony or otherwise was presented, and thus no proof with which to make the complaint conform after judgment.” (Emphasis added.)

Such is the situation in the present case, and plaintiffs’ motion to amend in this court is denied. We note that there was a period of over 4 months from the filing of defendants’ motion to dismiss until the court’s final order dismissing the complaint in which plaintiffs could have filed a motion to amend the complaint to state a new cause of action under section 46(1) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 46(1)).

We further hold that the trial court did not err in dismissing count one of plaintiff’s complaint. Plaintiffs sought enforcement of an oral contract and alleged partial performance of that contract. Under the Uniform Commercial Code (Ill. Rev. Stat. 1973, ch. 26, par. 2 — 201(1)) oral contracts for the sale of goods over $500 are not enforceable without some type of writing signed by the party against whom enforcement is sought. Section 2 — 201(3) (c) provides an exception for the completely executed part of an oral contract. However, the existence of a partial performance does not support a cause of action for anything over that already performed. Therefore, the existence of a defective cause of action was apparent on the face of the complaint, and the court properly dismissed the complaint.

Section 2-201(3) (b) (Ill. Rev. Stat. 1973, ch. 26, par. 2 — 201(3) (b)) also provides an exception “if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made 9 9 9.” Plaintiffs in their legal memorandum opposing defendants’ motion to dismiss did cite excerpts from what purported to be the discovery depositions of defendants and alleged that defendants therein admitted the existence of said contract. However, these discovery depositions were not properly before the court for they were never filed with the clerk of the court. See Supreme Court Rule 207(b) (Ill. Rev. Stat. 1973, ch. 110A, par. 207(b)) for the certification and filing requirements for depositions. Therefore, on the basis of the record before him the trial judge did not err in dismissing plaintiffs’ complaint.

Accordingly, for the reasons stated above the order of the circuit court of Macoupin county dismissing count one of plaintiffs’ complaint is hereby affirmed.

Affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William John Barker, Defendant-Appellant.
    (No. 12597;
    Fourth District
    November 21, 1974.
    John F. McNichols and Daniel D. Yuhas, both of State Appellate Defender’s Office, of Springfield, for appellant.

      Paul R. Welch, State’s Attorney, of Bloomington (Michael Prall, of Circuit Attorneys Project, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, William John Barker, appeals from a revocation of his probation and from a sentence imposed of 3 years and 4 months to 10 years. Defendant raises the following issues for resolution by this court: (1) Whether defendant effectively waived his right to counsel at his arraignment for probation revocation, and (2) Whether the court erred in failing to grand defendant credit for time spent in the county jail and on probation for the charge in question.

On July 7, 1973, defendant pleaded guilty to the offense of theft of property over $150 in violation of section 16 — 1 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 16 — 1) and was sentenced to 3 years’ probation. On October 25, 1973, a petition to revoke defendant’s probation was filed, and on October 31, 1973, a warrant was issued on the petition. An arraignment hearing was held on the petition to revoke on January 9, 1974. At the hearing defendant acknowledged that he received a copy of the petition to revoke. The following colloquy then occurred:

“Court: Do you have an attorney?
Defendant Barker: I think Gesell. I am not for sure.
Court: Well, what I mean is have you hired an attorney yourself?
Defendant Barker: No, sir.
Court: Do you wish to have an attorney appointed to represent you?
Defendant Barker: I don’t care.
Court: Well, either you want an attorney or you don’t. Do you want to have an attorney?

Defendant Barker: No, I don’t think it will be necessary.” Defendant then pleaded not guilty to the probation violation and stated that he desired a hearing. The colloquy regarding counsel then continued:

“Court: But you don’t want to have an attorney?
Defendant Barker: No.
Court: You understand you do have a constitutional right to be represented by an attorney?
Defendant Barker: Yes.”

The prosecution then informed the court that counsel has recently been appointed to represent defendant on another charge. The court then replied:

“Court: Well, there would have to separate appointments following the filing of that petition and he has indicated he does not
wish to have an attorney.”

On January 30, 1974, a hearing was held on the petition to revoke, and the court stated that defendant was appearing without counsel because he had waived his right to be represented at the arraignment on the petition. Three witnesses then testified in behalf of the State, and the State introduced certified records of convictions obtained during defendant’s probationary period. The defendant did not testify or present any evidence in his own behalf but did conduct an extremely limited cross-examination of one of the State’s witnesses. The court then found defendant guilty of violating his probation and sentencing him accordingly on the original offense.

It is contended that defendant did not effectively waive his right to counsel at the probation revocation hearing. We agree. A criminal defendant clearly has the right to be represented by counsel at a probation revocation hearing. (See Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—4(c).) It is well established that a defendant’s right to counsel must on the record be “knowingly and understandingly” waived. (See People v. Slaten, 13 Ill.App.3d 317, 300 N.E.2d 46 (4th Dist.).) The standards governing a “knowing and understanding” waiver of counsel are contained in Supreme Court Rule 401(a) (Ill. Rev. Stat. 1973, ch. 110A, par. 401(a)):

“(a) Any waiver of counsel shall be in open court. The court shall not permit a waiver of counsel by a person accused of a crime punishable by imprisonment in the penitentiary without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
(1) the nature of the charge;
(2) the minimum and maximum sentence prescribed by law # # #
and
(3) that he has a right to counsel and, if he is indigent, to have counsel appointed for him by the court.”

In People v. Pier, 51 Ill.2d 96, 100, 281 N.E.2d 289, our Supreme Court discussed the due process requirements applicable to a probation revocation proceeding:

“Since the results of a probation revocation may be a deprivation of liberty and, consequently, as serious as the original determination of guilt, we agree with the holdings of these cases that due process of law requires that a defendant charged with having violated his probation be entitled to a conscientious judicial determination of the charge according to accepted and well recognized procedural methods. * * * He is entitled to counsel, # * Justice demands that he also be entitled to the protection of the same due-process requirements which pertain to pleas of guilty when he waives his right to a judicial determination of the charge that he violated his probation and confesses or admits the charges of the revocation petition.” (Emphasis added.)

In People v. Tempel, 131 Ill.App.2d 955, 268 N.E.2d 875 (4th Dist), this court stated that it is preferred that the substance of Supreme Court Rule 402 relating to pleas of guilty be followed at a probation revocation hearing. Relying on Pier and Tempel this court, in People v. Bryan, 5 Ill.App.3d 1006, 284 N.E.2d 706 ( 4th Dist.), reversed defendant’s probation when the record demonstrated a complete failure by the trial court to admonish defendant regarding the applicable provisions of Supreme Court Rule 402 prior to defendant’s “admitting” the charges leading to his probation revocation. (Also see People v. Watkins, 10 Ill.App.3d 875, 295 N.E.2d 546 ( 4th Dist.); cf. People v. Blake, 15 Ill.App.3d 39, 303 N.E.2d 419 (2d Dist.).) Likewise, we believe that the admonitions contained in Supreme Court Rule 401(a) (Ill. Rev. Stat. 1973, ch. 110A, par. 401(a)) should be equally applicable to any waiver of counsel by a defendant at a probation revocation hearing in order to ascertain from the defendant and to have the record reflect that the waiver of his right to counsel has been “knowingly and understandingly” entered.

In the instant case an examination of the record reveals that prior to defendant’s waiver of his right to counsel he was not admonished of either the nature of the charges contained in the petition to revoke or the minimum and maximum sentences prescribed by law for the original offense. Because of this deficiency of admonition this case requires a re^ versal and remandment.

Although the case must be remanded, we note that defendant should have been given credit for time spent on probation from July 7, 1972, to October 31, 1973. (See Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—4(h).) Accordingly, the judgment and sentence imposed by the circuit court of McLean County is hereby reversed and remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

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


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Daniel Patrick Sanders, Defendant-Appellant.
    (No. 12460;
    Fourth District
    November 21, 1974.
    John F. McNichols, J. Daniel Stewart, and John L. Swartz, all of State Appellate Defenders Office, of Springfield, for appellant.
    Roger W. Thompson, State’s Attorney, of Lincoln (Michael A. Fleming, Senior Law Student, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:.

This is an appeal by the defendant from the judgment of the circuit court of Logan County sentencing him on a negotiated guilty plea to a term of 1 to 3 years in the penitentiary plus 2 years’ parole. The appeal is predicated solely upon the proposition that the court erred in accepting the defendant’s plea without first informing him of the existence of non-penitentiary minimum sentences available under the new Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 et seq.). Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402) and our decision in People v. Harl, 11 Ill.App.3d 372, 297 N.E.2d 404, are cited as authority for defendant’s appeal.

Defendant was indicted for burglary, theft and an offense relating to motor vehicles. On April 12, 1973, the State’s attorney tendered to the court a written plea agreement. That agreement bound the defendant to plead guilty to Count III of the indictment relating to motor vehicles, and bound the People to dismiss Counts I and II relating to the burglary and theft respectively. It further stipulated that there would be no fine, that the defendant would be sentenced to a term of imprisonment not less than 1 nor more than 3 years, that the defendant would waive probation and presentence report, that there would be no order of restitution, and that the defendant’s prior record would be stipulated. The court made a thorough inquiry of the defendant about his understanding of the terms of the agreement and the other matters required by Rule 402 before acceptance of the plea and stated the possible penalties under the statute: “The penalty provision as pertaining to you is contained in the Code of Corrections. You are charged with a Class IV felony. A Class IV felony carries with it a possible period of imprisonment from 1 to 3 years plus two years’ parole and a fine of $10,000. Do you understand that?” The defendant replied, “yes.” The terms of the plea agreement were carried out and the sentence imposed was the one specified in the Criminal Code for a Class 4 felony without the $10,000 fine.

The defendant charges that the proceedings did not inform him of the minimum and maximum sentence prescribed by law for the offense with which he is charged under the new Code, and cited our People v. Harl as the basis for the proposition that this defendant “bargains without knowledge of all of his bargaining tools,” and without knowledge of non-penitentiary dispositions of his case which are characterized in the new Code as sentences, that is, probation, conditional discharge, periodic imprisonment, confinement in the penitentiary, and fine.

Both this position of the defendant and any effectiveness of Harl to support it were effectively laid to rest by the supreme court decision recently filed in People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559, reversing People v. Krantz, 12 Ill.App.3d 38, 397 N.E.2d 386. In that case the supreme court referred to Harl in determining whether or not substantial compliance with Rule 402(a)(2) requires that an accused be admonished as to certain provisions of the Unified Code of Corrections, and specifically stated that substantial compliance with that rule does not require that the defendant be informed by the court “concerning the possible dispositions by way of periodic imprisonment, probation, conditional discharges in cases of juvenile offenders and fines.” (58 Ill.2d 187, 195.) In our judgment Krantz effectively inters the alleged error here made as well as the statements in Harl quoted above. Accordingly, we hold that there was substantial compliance with the supreme court rule and that the defendant made such plea freely, understandingly, and with adequate knowledge of the consequences of his plea. The judgment of the trial court is affirmed.

Affirmed.

CRAVEN and SIMKINS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert William Summers, Defendant-Appellant.
    (No. 12649;
    Fourth District
    November 21, 1974.
    Richard J. Wilson and John L. Swartz, both of State Appellate Defender’s Office, of Springfield (Edward R. Green, Senior Law Student, of counsel), for appellant.
    Robert J. Bier, State’s Attorney, of Quincy (John W. Foltz, of Circuit Attorneys Project, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Robert William Summers, appeals from a conviction entered pursuant to a guilty plea for the offense of murder and from a sentence imposed of 18 to 54 years. The only issue raised before this court is whether the trial court erred in admonishing defendant regarding the nature of the charge.

On October 29, 1973, defendant was charged by information with two counts of murder. On that same date defendant was arraigned and acknowledged receipt of the information. At this time the information was read verbatim to defendant, the two applicable sections of the murder statute were read to defendant, and defendant indicated that he understood the nature of the charges. On November 27, 1973, defendant was indicted on the two murder counts. On December 3, 1973, defendant was arraigned on the indictment, and the trial judge admonished defendant regarding the nature of the charges as follows:

“The Court: The indictment in this case, Mr. Summers and Mr. Handley [co-defendant] is in four counts. The 1st Count and the 3rd Count relates to Mr. Summers * * * In the 1st Count, Mr. Summers, it is charged that you on or about the 27th day of October, 1973, at and within the County of Adams and in the State of Illinois, committed the offense of murder, in that you, without lawful justification, with a gun, shot and killed Robert Maher with intent to kill Robert Maher, in violation of Chapter 38, Section 9 — 1(a)(1) Illinois Revised Statutes. The 3rd Count of the indictment, Mr. Summers, charges you also with the offense of murder, specifically it charges that you, on or about the 27th day of October, 1973, at and within the County of Adams and in the State of Illinois, without lawful justification, while committing a forcible felony of armed robbery, caused the death of Robert Maher, in violation of Chapter 38, Section 9 — 1(a)(3), Illinois Revised Statutes.
# e #

The Statutes of Illinois, with respect to the offense of murder, state this:

‘That a person who kills an individual, without lawful justification, commits murder. If in performing the acts, which cause the death (1) he either intends to kill or do great bodily harm to that individual or another or he knows that such act creates strong probability of death or great bodily harm to that individual or another or he is attempting or committing a forcible felony other than voluntary manslaughter.’ ”

Defendant then entered a plea of not guilty. On December 27, 1973, defendant appeared in court to change his plea pursuant to an agreement with the State. The following colloquy then transpired:

“The Court: You are entitled to know the nature of the charge that’s made against you here. I previously on another occasion explained to you what that charge was. Do you know what you’re charged with here?
Mr. Summers: Yes, sir.
The Court: What are you charged with?
Mr. Summers: I’m charged with murder.
The Court: Is there anything more specific about the charge than that?
Mr. Summers: A felony murder, I believe.
The Court: And does it tell you where it happened?
Mr. Summers, Yes, sir.
The Court: And what does the charge say as to where it happened?
Mr. Summers: It says that I, without legal justification, shot and killed Robert Maher.”

The State indicated that it had promised defendant that upon a plea of guilty to count one, it would move to dismiss count three and recommend a 20- to 60-year sentence. The State then proceeded to establish a factual basis for the plea, indicating that an eyewitness would testify that she saw defendant shoot Robert Maher. Defendant did not object to the State’s presentation. Defendant then pleaded guilty to count one of the indictment, and the court accepted said plea.

It is contended that the trial judge erred in admonishing defendant regarding the nature of the charge in violation of Supreme Court Rule 402(a)(1) (Ill. Rev. Stat. 1973, ch. 110A, par. 402(a)(1)) because defendant thought he was pleading guilty to felony murder under count three of the indictment whereas he was actually pleading guilty to intent murder under count one. We do not agree. At the hearing on the charge of plea defendant indicated that he understood what he was charged with, and that he was pleading guilty to the charge “that I, without lawful justification, shot and killed Robert Maher.” Furthermore, the recital of the State’s evidence indicated clearly what criminal conduct of defendant the State expected to prove. The defendant did not object to the prosecutor’s presentation and continued to persist in his plea. (See People v. Krantz, 58 Ill.2d 187, 317 N.E.2d 559.) Our review of the record shows that the trial court clearly satisfied the requirements of Rule 402(a)(1).

Accordingly, for the reasons stated above the judgment of the circuit court of Adams County is hereby affirmed.

Judgment affirmed.

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