author: Mr. JUSTICE CRAVEN

text:
    Gerald E. Williams, Plaintiff-Appellant, v. William J. Stewart et al., Defendants-Appellees.
    (No. 11367;
    Fourth District
    — November 23, 1971.
    Thomson, Thomson & Mirza, of Bloomington, (Chester Thomson, of counsel,) for appellant.
    Costigan & Wollrab, of Bloomington, for appellees.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

This wrongful death action was tried before a jury in the circuit court of McLean County. The jury returned a verdict for the defendant Stewart. On appeal in this court the plaintiff seeks a new trial asserting several errors in the trial proceeding. We agree that error intervened in the trial and that the case must be reversed and remanded for a new trial.

The decedent, Jeffrey C. Williams, was killed at the intersection of Washington and Mason Streets in the City of Bloomington, Illinois on October 26, 1965. The deceased was then almost 8 years old. The deceased had left his home around 6:30 in the evening with some other children to go “Halloweening”. The deceased was attired in a black costume with a skeleton on it and when he left home he had in his hand what was described as a half mask. The incident happened some 7 to 8 blocks from his home as the decedent was crossing on the east side of Mason Street from the southeast corner heading in a north direction crossing Washington Street, a heavily traveled street in the City of Bloomington.

The intersection is not protected by traffic signals and the pedestrian crosswalk is unmarked.

The complaint charged that the deceased was in an unmarked crosswalk at the intersection when he was struck by an automobile being driven by the defendant Stewart, who was proceeding west on Washington Street. The specific charges of negligence set forth in the complaint were to the effect that the defendant negligently managed and controlled his car, failed to keep a proper lookout, failed to reduce speed, and failed to sound a horn or otherwise warn.

While we need not recite all of the evidence, it is clear that the case was tried and evidentiary inquiry was directed toward ascertaining the point of impact with reference to the location in the crosswalk and with reference to the point of impact of the car. At the close of all of the evidence the plaintiff tendered an instruction in the language of the statute to the effect that there was in force in the State of Illinois at the time of the occurrence a statute requiring the driver of a vehicle to yield the right-of-way to a pedestrian crossing within any unmarked crosswalk at an intersection. This instruction was refused on the grounds that the allegations of the complaint did not specifically allege a violation of any cited statute nor did the general allegations encompass this specific violation of statutory duty. An effort by the plaintiff to amend the complaint to conform to the proof by asserting a violation of this specific statutory duty was likewise denied. The denial was not on the grounds of a want of evidentiary foundation for the amendment but rather upon the grounds that the defendant would be surprised and would not have had ample opportunity to research the issue. This denial was error.

It is well established that the provisions of the Civil Practice Act with reference to amendment are to be liberaHy construed. Where, as here, an effort is made to amend a complaint to make its aHegations conform to the proof, such amendment should be permitted. Berg v. Collier, 60 Ill.App.2d 145, 208 N.E.2d 353; Perkins v. Chicago Transit Authority, 60 Ill.App.2d 431, 208 N.E.2d 867.

The aHegations of the complaint in this case and review of the evidence in the record shows first that the complaint gave the defendant ample notice of the asserted negligence and the evidence very clearly indicates that both parties proceeded in the trial with their sights firmly fixed on the issue of the unmarked pedestrian crosswalk and aH other aspects of the essential elements of the breach of statutory duty upon which the instruction was based. The defendant’s claim of surprise must therefore be rejected.

In the trial, photographs of the defendant’s car were offered and received in evidence. These photographs were taken after the accident and as far as we can ascertain the foundation for their admission was wanting in that there was never a date specified as to the taking of the photographs and there is a want of sufficient evidentiary foundation to establish that the car as photographed was in the same condition as at the time of the accident. A crucial item with reference to the photographs relates to a dent on the left front fender. There is controversy in ¡ the evidence as to whether the deceased was hit by the front or the left front of the car. Upon objection to the photograph showing a dent on the left front fender without specificity as to the time of its occurrence, the trial court overruled the objection and observed that this deficiency or conflict would be the proper subject for argument by both counsel. Upon further inquiry it was estabfished that the dent was on the car before the accident, but again the testimony was not specific as to detaü. The court thereupon admitted the photographs to show the car and advised counsel that they would be privileged to argue as to whether the dent was there before or whether it wasn’t.

It is error to admit photographic evidence with the express notion that counsel be permitted to argue to the jury what it purports to show when the foundation for the admission is as deficient as here found. The probative value under these circumstances of the photographs was doubtful indeed.

Other asserted errors are assigned on this appeal relating to the argument of counsel and certain limitations on impeachment of a witness. These errors need not be discussed since we would not anticipate a recurrence of the problem upon retrial of this case.

The judgment of the circuit court of McLean County is reversed and this cause is remanded for a new trial.

Reversed and remanded.

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


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SMITH

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Coleman Reed Butler, Defendant-Appellant.
    (No. 11390;
    Fourth District
    — November 23, 1971.

      Morton Zwick, Director of Defender Project, of Chicago, (Norman Fishman, of counsel,) for appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana, (Kenneth E. Baughman, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The essence of this appeal is the asserted incredibility of the State’s witnesses with a request for outright reversal of two trials, one for competency and the other for murder, and the assignment of a single error in the competency hearing with an alternative request for a new trial.

Courts of review can, of course, determine as a matter of law the insufficiency of the evidence to support either a finding of competency or a verdict of guilty and this question of law can partake of an express finding that the proof was insufficient for the reason that the testimony of the witnesses is incredible. This doesn’t happen very often, and indeed, courts are loathe to say even that, although they might think it, and instead merely imply such by reviewing evidence and simply finding that it was insufficient. For the general rule is that credibility or believability of witnesses is for the trier of the facts and only very seldom will it ever be said on review that as a matter of law the testimony of a given witness is unbelievable or incredible.

With regard to the competency hearing before a jury, one of the State’s psychiatrists testified that defendant was competent, that is, he understood the nature of the proceedings and could assist counsel in his own defense. The argument here that the State failed to prove by a preponderance of the evidence defendant’s competency is just that— argument. The State’s witness is belittled, defendant’s witness exalted. But there is no point in rehashing the argument as to the credibility or lack of it as to the witnesses for both sides as, at least here, such was for the triers of the fact. We are not going to say, without ruling out that in a given situation we might, that the testimony of the State’s witness, as a matter of law was incredible or unbelievable. If one chose to believe him, and apparently the jury did, his testimony was sufficient on which to premise a determination of competency.

With regard to the one error which is asserted to mandate a new trial on the competency hearing, we have this situation. Another psychiatrist for the State was asked a hypothetical question not as to the ultimate issue, but rather a side issue — whether defendant was “suffering from a delusion”. The question assumed, unlike most hypotheticals, very little that had been in evidence — here the fact that the hypothetical man in order to relax himself from time to time viewed himself as being a lieutenant fighting past and current wars. The answer was in the negative, but only after objection by defendant that there was more to the hypothetical man than just that and that the question should assume all the facts that one of the defendant’s witnesses testified to — he put it his way: “[I want to add] everything the [defendant’s] doctor testified to including these facts and circumstances on the report he furnished the Court”. The court aptly observed that this wasn’t very helpful or specific and allowed the witness to answer. The cross-examination of the witness as to whether these additional facts would result in a contrary opinion was not explored.

We are of the opinion that the objection was so general that the court was right in permitting the witness to answer. But, assuming we are wrong, we do not believe the court’s ruling amounted to reversible error. As we have said the witness was dealing with a side-issue apropos of competency and whether or not defendant had delusions, at least in the context here, was of minor importance. If the witness had had before him what the defendant thought he should have had before forming an opinion, it seems highly unlikely that his answer would have been different — we say this, because it was not explored on cross-examination, presumably, because the answer would be the same with the added material — whatever that was. ‘Whatever that was” bears directly on our view that the objection was too general. A general objection raises only the question of relevancy and materiality. And it is a cardinal principle that a general objection if overruled cannot avail the objector an appeal. In our opinion, it is not enough to say that something more should have been added — the “more” should be articulated. But as we have said, even if error, it was not reversible error.

With regard to the bench trial on the substantive crime, we are again told that the conviction must be reversed because the State did not prove beyond a reasonable doubt the sanity of the defendant. Again, we have a logomachy — a battle of words — but the words are enough to sustain a determination either way as to sanity. The argument again, is simply that we should not believe, as a matter of law, the State’s witnesses but on the other hand that we should believe defendant’s. As we have said, this is hard for even the trial court to do sitting as a judge of the law, and much harder for us as a court of review. Of course, a judge sitting as a trier of the fact can believe whom he chooses but only veiy seldom will he be in a position to say, as well as we, that as to so and so, “I will not believe or cannot believe him as a matter of law”. Defendant argues that the testimony of his witnesses “through their more diligent and time-consuming examination of the defendant, determined that not only a reasonable doubt exists, but a near certainty of insanity exists”. As to the State’s psychiatrists he asks, ‘What amount of credence can be laid upon the State’s two material witnesses?” His answer in essence is “Not much”. But this is argument! We have here the now classic battle of psychiatrists — extended examination and cross-examination, opposing opinions, with the trier of the fact, in this case the judge — left with the clear choice of believing one side or the other. We say clear choice, because obviously he couldn’t believe and accept the opinion of both sides. He made a choice, the choice was his to make, and in reviewing such choice, we cannot say that he made a mistake and therefore we must reverse outright. As we have said, no errors are asserted mandating a new trial on the substantive crime. We are asked to reverse or affirm and we can only reverse if we are prepared to say — not that the States evidence as to sanity was insufficient (which it was not) — but that the witnesses themselves who mouthed such facts cannot be believed and therefore the trial court should not have so believed them. This we cannot do and we accordingly affirm both the finding of competency and the judgment of guilty.

Judgment affirmed.

CRAVEN and TRAPP, JJ., concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mario Louis Cicchetti, Defendant-Appellant.
    (No. 11432;
    Fourth District
    — November 23, 1971.
    John F. McNichols, of Springfield, and Kenneth L. Gillis, of Chicago, both of Defender Project, for appellant.
    Clement M. Toohill, State’s Attorney, of Clinton, for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant Mario Louis Cicchetü was convicted, on a plea of guilty, of theft of property having value in excess of $150, and was sentenced to an indeterminate term of two to five years.

Defendant’s appeal presents a single issue: does the indictment sufficiently allege ownership of the property in question? The pertinent language of the indictment is as follows: “* * * committed the offense of Theft Exceeding $150.00 * * * Assorted United States’ Currency * * * then and there being the property of Clinton Place, Inc., # *

Defendant’s argument consists of two propositions: a) That the words “Clinton Place, Inc.” do not describe a legal entity, or, to put it another way, the language does not allege that “Clinton Place” is a corporation, and b) that to plead that certain goods are “the property of” an individual or legal entity is not equivalent to alleging “ownership.”

The People cite People v. Tassone, 41 Ill.2d 7, 241 N.E.2d 419 as authority for the sufficiency of the indictment in question here. Tassone, supra, is not in point because the sufficiency of the evidence was the only issue ruled upon, no question being raised as to the sufficiency of the indictment.

Defendant cites The People v. Hill, 68 Ill.App.2d 369, 216 N.E.2d 212 in support of his contention that the corporate existence of Clinton Place, Inc., is not alleged. In Hill, supra, the Complaint alleged that the defendant committed theft of certain goods “* * * the property of Community Discount Store * * The Court held that the words “Community Discount Store,” standing alone, did not describe a corporate entity. Hill is readily distinguishable from this case for the obvious reason that the abbreviation “Inc.” is affixed as a part of the corporate name in the indictment.

Ill. Rev. Stat. 1969, ch. 32, par. 157.9(a), provides that “The corporate name: a) Shall contain, separate and apart from any other word or abbreviation in such name, the word ‘corporation, ‘company’, ‘incorporated’, or ‘limited’, or an abbreviation of one of such words.” This paragraph of the Business Corporation Act directs what terms must be utilized in a name to designate corporate status to the public. The abbreviation “Inc.” is a designation authorized by the statute.

In People v. Voleta, 57 Ill.App.2d 279, 206 N.E.2d 737 the defendant had been convicted of theft and urged on appeal that there was a fatal variance between the information which, he maintained, charged him with theft of the property of an individual, while the proof established corporate ownership. At page 285 of the opinion the Court stated, “We have examined the information; it alleged that the property was stolen from ‘Certs Lumbard and Company.’ The word ‘company’ connotes an incorporated entity under the Business Corporation Act (Ill. Rev. Stats., 1963, c. 32, sec. 157.9a); therefore ownership was properly aUeged.” The same reasoning is applicable to the statutorily authorized abbreviation “Inc.” contained in the indictment here in question.

In People v. Smith, 342 Ill. 600, 174 N.E. 828 a case not cited in the briefs, defendant was charged with burglary and larceny. In reviewing the denial of a motion to quash the indictment the Court stated “The indictment describes the place burglarized as ‘the poultry house of Risser & Rabinowitz, Inc.,’ and the property stolen therefrom as the property of ‘Risser & Rabinowitz, Inc.’ ” The Court then held: “In indictments for offenses against persons or property the name of the person injured must be stated in order to enable the defendant to plead either a former acquittal or conviction. The ownership of the property is a necessary averment of the indictment, and such ownership must be alleged in a person, corporation or other entity capable of owning property . . . The word ‘Inc.’ is given in Webster’s International Dictionary and has as a definition, ‘Abbr.-Incorporated.’ We are of the opinion that the words ‘Risser & Rabinowitz, Inc.’ in the indictment are sufficient to show that the ownership of the property was in a corporation capable of owning property and was a sufficient allegation of ownership to enable plaintiffs in error to plead either a former acquittal or conviction.”

The meaning of plain language is neither lost nor altered when incorporated in an indictment. There is nothing in this charge which could have misled defendant in preparing a defense, or place him in danger of being put twice in jeopardy for the same offense.

The above cited authority is controlling here, and conclusively disposes of defendant’s semantical contentions.

Judgment affirmed.

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


author: Mr. PRESIDING JUSTICE SMITH.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Ellis Hopkins, Defendant-Appellant.
    (No. 11437;
    Fourth District
    — November 23, 1971.

      Kenneth L. Gillis, of Defender Project, of Chicago, for appellant.
    Basil G. Greanias, States Attorney, of Decatur, for the People.
   Opinion by

Mr. PRESIDING JUSTICE SMITH.

       See p. 658 for Abstract of similar opinion involving another burglary conviction.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Danny Tobin, Defendant-Appellant.
    (No. 70-17;
    Fifth District
    — October 12, 1771.

      Rehearing denied December 9,1971.

      John D. Shulleriberger, Morton Zwick, Director of Defender Project, of Chicago, (Matthew J. Moran, and Norman W. Fishman, of Defender Project, of counsel,) for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

Defendant Tobin was convicted by a jury of the crime of burglary. The court entered judgment upon the verdict and sentenced the defendant to a fifteen to twenty-five year term in the Illinois State Penitentiary. The judgment of the court further provided that the mittimus was to be effective upon release by federal authorities.

The defendant has appealed from that judgment and raised the following issues: (1) The State failed to prove lack of authority to enter the premises; (2) The State failed to prove intent to commit a theft; (3) The court erred in allowing testimony concerning the arrest of Sherri Tobin, her possession of a firearm and evidence concerning defendant’s possession of a firearm; (4) The sentence was excessive.

The facts giving rise to this case are as follows: On the night of February 9, 1969, at about 11:00 P.M. the defendant, in the company of Sherri Tobin, Daniel Stout, Michael Hume and Eddie Dunn was in an automobile driven by defendant in the vicinity of the Oliver C. Joseph Automobile Agency in Belleville. Their behavior while driving was observed by James Muir who resided nearby. He stated the car stopped by the agency and the driver, identified as Tobin, jumped out and ran across the street and kicked the agency door. The car in the meantime circled the block and picked Tobin up. The car drove away and Muir next observed four men walking up the street to the agency. Muir recognized one of the four as the man who kicked the door. The four men then entered the agency building by the same door previously kicked. Muir then called the police.

The police arrived and Officers Rettle and Wobbe observed four men walking through the building. Two other policemen arrived. Rettle observed two of the suspects at the back door. He identified himself and ordered them out. They disappeared back inside the building. The police entered the building and found one suspect lying under a car, After turning on the lights they searched the building. The other suspects were found in the basement. The defendant was hiding behind an air compressor when discovered.

After apprehending all four men the police with Mr. Muir’s help located the car a few blocks away. Sherri Tobin was found in the car asleep. She was carrying a “.38 caliber snub-nosed revolver, fully loaded, with the serial numbers filed off” in the waist band of her slacks. One of the defendants, Hume, testified for the State and said defendant stated earlier in the evening that they would go to Belleville and “make some money”. He also stated that defendant brought a gun into the building.

The evidence also showed that the door jamb of the door kicked by defendant was splintered and the door opened by force.

Additionally, Mr. Oliver P. Joseph testified that the building was owned by and in the possession of Oliver C. Joseph, Inc., a corporation, engaged in the selling of automobiles.

As to the authority to be in the premises, “* * * the law presumes that the presence in a public building for a purpose inconsistent with the purposes for which the building is open to the public is without authority”. (People v. Urban (1971), (Ill.App.2d), 266 N.E.2d 112, 114. Also see People v. Weaver (1968), 41 Ill.2d 434, 243 N.E.2d 245 cert. den. 395 U.S. 959, 89 S.Ct. 2100, 23 L.Ed.2d 746.) Here the defendant (a) had to break open a door to gain admission, (b) at 11:00 P.M., (c) when the buffding was unlit, and (d) hid in the basement upon arrival of the police. Under these circumstances there was sufficient evidence for the jury to believe that his presence was without authority.

In regard to the question of intent there is also sufficient circumstantial evidence for the jury to believe that Tobin intended to commit a theft in the building. Intent must ordinarily be proved circumstantially, by inferences drawn from conduct appraised in its factual environment.” (People v. Johnson (1963), 28 Ill.2d 441, 192 N.E.2d 864, 866.) The Court in Johnson went on to say:

“* * * We are of the opinion that in the absence of inconsistent circumstances, proof of unlawful breaking and entry into a building which contains personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary. Like other inferences, this one is grounded in human experience, which justifies the assumption that the unlawful entry was not purposeless, and, in the absence of other proof, indicates theft is the most likely purpose.”

The circumstances of the entry coupled with Hume’s testimony that Tobin intended to “make some money” in BeUeviHe is sufficient evidence of intent to commit a theft.

The third aUeged error relates to Sherri Tobin’s arrest and the question of firearms. It is contended that the evidence of Sherri’s arrest is not only irrelevant but introduced solely for the purpose of bringing in evidence of the .38 cafibre gun to prejudice the jury. In regard to Tobin’s possession of a firearm the only evidence of this is Hume’s testimony. No gun was introduced into evidence.

While the evidence of Sherri’s arrest may not have been essential to the conviction of Tobin, it apprised the finder of fact of the total circumstances surrounding the event and at worst, it is harmless error. The defendant has aHeged prejudice but a careful search of the record discloses none. Such evidence did not prove an element of the crime not estabfished by other properly admitted evidence. People v. Landgham (1970), 122 Ill.App.2d 9, 275 N.E.2d 484; People v. Jones, (1970), 125 Ill.App.2d 30, 259 N.E.2d 585.

Defendant argues that his sentence was excessive because he received a heavier sentence than his co-defendants who pleaded guilty to the same offense. The record shows that Eddie Dunn and Michael Hume were each placed on probation for a period of five years. Daniel Stout was sentenced to not less than five nor more than ten years. Defendant asserts that he was penalized for having exercised his constitutional right to a trial by jury.

The basic principles regarding sentencing are set forth in People v. Jones, 118 Ill.App.2d 189, 254 N.E.2d 843, 847:

“We recognize that not every offense in a like category calls for an identical punishment. There may be a proper variation in sentences as between different offenders, depending upon the circumstances of the individual case. As a general rule, where the punishment for the offense is fixed by statute, that imposed in the sentence must conform thereto, and a sentence which conforms to statutory regulation is proper. Before an AppeUate Court wiU interfere, it must be manifest from the record that the sentence is excessive and not justified by any reasonable view which might be taken of the record. People v. Hobbs, 58 Ill.App.2d 93, 99, 205 N.E.2d 503 (1965). Disparity of sentences between defendants does not, of itself, warrant the use of the power to reduce a punishment imposed by the trial court. People v. Thompson, 36 Ill.2d 478, 482, 224 N.E.2d 264 (1967).”

Hume had no prior criminal record. The records of the other defendants do not appear in the record on this appeal. Defendant Tobin had a prior burglary conviction as a juvenile on which he served a year, and contrary to the provision of his pretrial bail, he left the State. While gone he became involved with federal authorities as evidenced by the fact that his presence at trial was secured by virtue of a Writ of Habeas Corpus Ad Prosequendum. Tobin was also the apparent ringleader of the burglary. He drove the car, planned the burglary, selected the site and broke open the door. Under the circumstances, we find the factual situation to differ from People v. Jones, supra, on which defendant relies, and a penalty greater than that imposed upon defendant’s accomplices is approved.

However, we do not consider the possibility of rehabilitation to be so remote as to justify a sentence of 15 to 25 years, which as a practical matter leaves little or no room for rehabilitation; nor does such sentence provide for an exercise of the discretion of parole authorities at a time when such discretion may contribute most to rehabilitation. As a result we would consider that the sentence should be modified to provide a minimum of seven years and a maximum of 20 years.

Lastly, defendant claims the court erred in making his sentence consecutive to a possible future federal sentence. We agree. However, the remedy is not necessarily to make the sentence concurrent with a possible future federal sentence as argued by defendant. See Ill. Rev. Stat. ch. 38, pars. 119 — 1 and 119 — 2.

The language “Mittimus to be effective upon release by federal authorities” is too broad and does not clearly define what sentence the imposed sentence is to follow. See Ill. Rev. Stat. ch. 38, par. 7 — 1. We would particularly call attention to the fact that ch. 38, par. 7 — l(n) makes provision only for a concurrent sentence with a “previous and unexpired sentence” imposed by a Federal District Court. During the oral argument in June 1971, this Court was advised that the defendant’s involvement with federal authorities to which we have referred is that depicted by United States v. Tobin, 426 Fed.2d 1279, in which defendant’s conviction was reversed and the cause remanded for a new trial in May 1970, and that defendant had not been reprosecuted in that cause.

“A sentence should be so complete as not to require construction by the court to ascertain its import, and so complete that it will not be necessary for a nonjudicial or ministerial officer to supplement the written words to ascertain its meaning.” People v. Walton (1969), 118 Ill.App.2d 324, 254 N.E.2d 190, 194 — 5.

The judgment of conviction is affirmed, the sentence is modified to provide a minimum sentence of seven years and a maximum sentence of twenty years;

Judgment with sentence so modified is affirmed.

MORAN and CREES, JJ., concur.


text:
    Sandra Langin, now known as Sandra Jones, Plaintiff-Appellant, v. Allen Dean Langin, Defendant-Appellee.
    (No. 70-69;
    Fifth District
    — October 29, 1071.

      Rehearing denied December 7, 1971.

    Cohn, Korein, Kunin & Brennan, of East St. Louis, (Joseph Cohn, of counsel,) for appellants.
    O’Connell & Waller, of East St. Louis, (John F. O’Connell, of counsel, for appellee.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal from a decree entered by the circuit court of St. Clair County, wherein the custodial rights of the minor children of the parties was modified.

The parties to this proceeding were married in 1957. On July 13, 1966 a decree for divorce was entered, where the plaintiff, formerly Sandra Langin, and now Mrs. Sandra Jones, was awarded a divorce. By the terms of the divorce decree she was awarded custody of the three minor children of the marriage. The defendant, Allen Dean Langin, was ordered to make certain support payments and was granted the right of reasonable visitation of the children.

On July 29, 1966, the plaintiff, a Caucasian, married John Jones, a Negro. Shortly thereafter the plaintiff was committed to the State Hospital at Alton, Illinois, and the defendant filed a petition to modify the custody provision of the divorce decree. On the same day the plaintiff executed and filed a consent to that modification. On August 10, 1966, in response to the defendant’s petition and the plaintiff’s consent, the court ordered the custody of the three minor children to the maternal grandparents, Lloyd and Jennie Smalling. The three minor children have remained in the care of the maternal grandparents since August 10, 1966.

On October 9,1968 the plaintiff filed a petition for citation for contempt against the defendant, alleging that he had defaulted in the ordered support payments. The maternal grandparents filed an amended complaint seeking a judgment against defendant for alleged arrearage in child support payments. The defendant, who had also remarried since the divorce decree, thereafter filed his petition for modification of the decree, wherein he sought custody of the children. The plaintiff also sought custody of the children by filing her petition to modify the custody portion of the modified decree.

At the hearing both parties testified as to their desire to have custody of the children; the maternal grandparents expressed a similar desire. There is evidence in the record as to the suitability of the homes of both parties and the maternal grandparents. The evidence indicates that both parties are capable of providing a suitable moral climate and the necessary financial resources.

After a hearing on the merits the trial court entered judgment against the defendant in the amount of $3000.00 in favor of the maternal grandparents in regard to the defendant’s arrearage in support payments. The court further entered a decree wherein the custody of the children was awarded to the defendant. While the trial court made no finding of fact, the court explained its decision by letter addressed to the parties’ counsel, wherein it stated in part:

“This decision is based upon what I consider to be for the best interests of the children, having regard for the fact that in the absence of a finding of unfitness on the part of the parents, that the parents or either of them, has the priority under the law. It would be easier at the moment, and possibly from a materialistic standpoint more beneficial to leave the children with the grandparents, however, in the long run I do not feel that this is in the best interest of the children. The petition of Sandra Langin has been denied for the reason that I feel it would not be best for the children to take them from the environment and the area which they have known, and to transport them into a strange place into a racially mixed family. I do feel, however, that they should have the opportunity to know their mother and her new family, and to become acclimated to that situation during their formative years on a relatively gradual basis.”

The defendant has not appealed the monetary judgment. The appeal of the plaintiff is limited to that portion of the degree wherein the custodial rights were modified to award the care, custody and control of the children to the defendant. The plaintiff urges on appeal that it was error for the trial court to deny the plaintiff custody of the children although the court found her to be a fit parent. More specifically, the plaintiff urges that the trial court abused its discretion in concluding that the welfare of the children would best be served by not transporting them into a racially mixed family and social environment. The plaintiff contends that the question of race alone cannot be determinative and outweigh all other considerations in determining the question of custody.

It is the law of this State that a decree fixing custody is final as to the conditions then existing, and should not subsequently be changed unless on altered conditions or on material facts existing at the time of the decree but unknown to the court. (Nye v. Nye, 411 Ill. 408.) Our courts have uniformly construed the change of circumstances doctrine to mean that the court has wide discretionary power in modifying custody whenever new conditions warrant reconsideration of the custody question, and a modification of a former order is advisable from the standpoint of the children’s welfare. Nye v. Nye, supra; Stafford v. Stafford, 299 Ill. 438.

Under the Illinois divorce statute the trial judge is given considerable discretion in the determining to which parent the custody of the child should be awarded; however, the controlling factor which should always influence the decision of the trial court is the best interest and welfare of the child. In the absence of a finding of fact by the court, it is difficult for the reviewing court to determine the basis of that court’s decision.

In Fountaine v. Fountaine, 9 Ill.App.2d 482, the court held that race alone cannot outweigh all other considerations and be decisive on the question of custody. The court there stated:

“From the record before us it appears that the court came to this conclusion solely because of the racial physical characteristics of the children before him, and that he would have awarded the custody of the children to the mother except that they had tire appearance of colored children. In passing upon the question of how the interests and welfare of the children will be best served, the court can and should take into consideration all relevant considerations which might properly bear upon the problem. However, we do not believe that the question of race alone can overweigh all other considerations and be decisive of the question.
“* * * If this was the sole and decisive consideration on which the trial court based his decision, and it so appears from the record before us, we feel that his discretion was not properly exercised under the circumstances in the case, even though he went to great lengths to ascertain how the welfare of the children might be best served.” Also see Stingley v. Wesch, 77 Ill.App.2d 472.

We are also mindful of the fact that a considerable delay has occurred, both below and here, since the entry of the decree by the trial court from which this appeal was taken. Since the entry of that decree, that decree has been stayed and the children have remained in the custody of the maternal grandparents, and apparently are still in their custody. The rendering of our decision was further delayed by the disqualification by two of our members from considering this appeal.

For the reason of this passage of time and the obvious fact that the children are now older, (as we can best determine from the record, the children are presently of the approximate ages of 13, 10 and 7), and for the reasons stated elsewhere in this opinion, the decree entered by the circuit court of St. Clair County is reversed and vacated and the cause is remanded for further proceedings. At such subsequent hearing as may be held in this cause the trial court is directed to make specific findings, as of the time of such hearing, as to the fitness of the parties to have the care, custody and control of the minor children, as well as the fitness of the maternal grandparents, with whom they have resided in excess of five years, the attitude of the spouses of the parties, the mental stability of the parties and the numerous other factors as may bear upon the best interest and welfare of the children, and then provide for custody, giving due weight to the decisions rendered in Nye v. Nye, supra, and Fountaine v. Fountaine, supra.

Reversed and remanded with directions.

QUINDRY and CREBS, JJ., concur.


author: PER CURIAM:

text:
    Geiger Moving and Storage Company, Inc., Plaintiff-Appellee, v. Barter Engineering Corporation, Defendant-Appellant.
    (No. 70-61;
    Fifth District
    — November 12, 1971.
    Ralph W. Choisser, of Eldorado, and Deneen A. Watson, of Harrisburg, for appellant.
    William E. Aulgur, of Eldorado, for appellee.
   PER CURIAM:

Plaintiff filed suit against the defendant for the sum of $516.08 for moving the personal property of defendant’s employee, Carl Stanton, from Evansville, Indiana, to Benton, Illinois, and for the additional sum of $191.77 incurred in storing the items. The trial court entered judgment against the defendant in the amount of $516.08 for the moving, but disallowed the storage charge. Defendant appeals and plaintiff cross-appeals.

Appellant states the issue in this case as follows: “The sole issue in this case is whether defendant is liable for moving charges incurred by one of its employees where defendant offered to pay said charges for moving employee to Marion, Illinois, but where defendant — without authorization from plaintiff, moved the employee to Benton, Illinois.”

Carl Stanton, a field superintendent of defendant company, discussed with plaintiff the prospect of moving his personal property to a new residence in Illinois. Plaintiff received a letter dated July 2, 1968, from defendant which authorized it to move Mr. Stantons property from his residence in Evansville, Indiana, to his new residence at Marion, Illinois and bill defendant. Prior to the move, Mr. Stanton informed plaintiff that he would move to Benton, Illinois instead of Marion. Plaintiff picked up Mr. Stantons property, placed it in storage, and then moved it to Benton, Illinois as per Mr. Stantons request. The cost of moving the items of personal property to Benton, Illinois, was the same as the cost would have been to move the items to Marion, Illinois, as both cities were approximately the same distance from Evansville, although they were 17 miles from each other. After moving the items, plaintiff sent the bill of lading to the defendant, disclosing that the items had been moved to Benton. On February 10,1969, defendant wrote a letter to plaintiff asking for an itemized bill from plaintiff, stating that upon receipt of same payment would be made.

Under the foregoing circumstances, the actions of defendant ratified the act of defendant’s agent in changing the destination of the items of personal property from Marion to Benton. (1 Illinois Law & Practice, Agency, par. 208, p. 807.) Therefore, the trial court was correct in entering judgment against the defendant in the amount of $516.08, which was the amount charged for hauling the items to Benton.

Plaintiff also sued for the additional sum of $191.70 for costs involved in storing Stanton’s personal property prior to moving it. Since there was no evidence the plaintiff was authorized to store the items in question, the trial court was correct in disallowing this item.

For the foregoing reasons, the judgment of the circuit court of Saline County is affirmed.

Judgment affirmed.


author: Mr. JUSTICE GEORGE J. MORAN

text:
    Jean Wood et al., Plaintiffs-Appellants, v. Everette L. Davis et al., Defendants-Appellees.
    (No. 70-64;
    Fifth District
    — November 12, 1971.

      Rehearing denied December 8,1971.

    Ryan and Heller, of Mattoon, (Harlan Heller and Dale A. Cini, of counsel,) for appellants.
    William L. Turner and Baker & Baker, both of Shelbyville, for appellees.
   Mr. JUSTICE GEORGE J. MORAN

delivered the opinion of the court:

On November 6, 1965, Jean Wood, plaintiff-appellant, and Everette Davis, defendant-appellee, entered into a verbal agreement to operate a farm of 2640 acres in Mississippi on a fifty-fifty basis, each party to furnish half of the work and receive half of the profits. As a result of disagreements, the parties entered into a written agreement to terminate the partnership as of January 1, 1967.

On September 3, 1966, both parties signed a comprehensive written statement of account purporting to show the contributions of each to the partnership from its inception until September 3, 1966. This statement disclosed that Davis owed Wood the sum of $16,597.64 up to that date. At that time Davis executed a promissory note payable to the order of Jean and Kathleen Wood in the amount of $16,000, with interest at the rate of 8% and wrote “not for resale” on it. Wood later brought the note back to Davis because he objected to the additional language on the note by Davis. Davis then executed a new note dated September 3, 1966, in favor of Jean Wood and his wife in the amount of $16,000 with interest at 8%. On September 10, 1966, Davis gave Wood a check in the amount of $400 to be applied on the balance. There were numerous other transactions by the parties subsequent to this date which are too numerous to mention but which are sufficient to show that the plaintiff has expended a substantial amount more than the defendant.

The plaintiff initially brought suit on two negotiable notes upon which judgments were entered by the court. One of the notes was the one mentioned for $16,000 which was to include all transactions in the partnership up to that date. The other note was for $7250 and was dated January 6, 1967, and resulted from a mortgage payment made by the plaintiff on behalf of the defendant. After judgments by confession were entered, they were opened on motion of the defendants and the plaintiffs then filed their first amended complaint for an accounting between the parties. The trial court found for the plaintiffs and against the defendants in the amount of $10,234. Plaintiffs filed a post trial motion for specific findings of fact and conclusions of law in arriving at its judgment, and further asked for judgment in the amount of $29,185.48. Both motions were denied and the plaintiffs have appealed.

included in the September 3, 1966 accounting was a certain amount for bulldozing of the farm done by the plaintiff. The plaintiff claims that this work was worth $31,000 and is reflected in the 1966 accounting. The appellee contends the work was worth only $16,000 and, over the appellant’s objection, was allowed to introduce evidence of transactions prior to the September 3, 1966, accounting. The appellant claims that it was error to inquire into transactions prior to the accounting, and that as a result, the trial court did not give effect to the accounting. If the accounting was considered by the court, and the note for $7250 was also considered, the total would be in excess of $23,000 and hence totally irreconcilable with the court’s judgment of $10,324. This is necessarily so because subsequent transactions would be unable to make up the $13,000 difference. Because the trial court failed to set forth its findings of fact, it is impossible to determine what the trial court did or did not include in this judgment.

The appellants first argue that the trial court should set forth its findings of fact and conclusions of law in arriving at its judgment. While this is no longer required, see Ill. Rev. Stafc, eh. 110 par. 64(3), it has been urged upon the trial courts, especially in complicated accounting suits. (Robinhorne Const. Corp. v. Snyder, 113 Ill.App.2d 288, 294-95.) In Robinhorne the court stated that it must conjecture as to the basis of the judgment below. It is impossible to determine the basis of the trial court’s judgment in the instant case, but it is clear that the trial court’s judgment is, as the appellant states, irreconcilable with the last account stated.

The key issue is whether in an accounting suit between partners, the court must begin with the last account stated. Here, the defendant testified that he received and executed the copy of the September 3, 1966, accounting. He further testified he gave a $16,000 note to Mr. Wood on that date based on the accounting. An account stated between partners is binding upon them as to prior transactions in the absence of fraud or mistake, neither of which is shown here. Korziuk v. Korziuk, 13 Ill.2d 238, 243, 40 Am.Jur., Partnership. Sec. 352.

Defendant contends that the plaintiff did not raise the issue of last account stated in the trial court and is therefore precluded from raising it on appeal. This contention is without merit because the pleadings and the evidence disclose that plaintiff did raise this issue.

This court is unable to determine what the proper amount of the judgment should be in that the trial court has not set forth its findings of fact and conclusions of law. However, it is clear that the last account stated between the parties was not used as a starting point, for that amount, combined with the subsequent note of $7,250 would clearly result in a higher judgment for the plaintiffs. The amount reached by the trial court could only have been arrived at by allowing the claim of the defendants prior to the September 3, 1966, accounting. In so doing the trial court erred.

This case is reversed and remanded to the trial court of Shelby County with directions to vacate its order of March 3, 1967, opening up the judgment by confession on the note of September 3, 1968, in the sum of $16,000 executed by the defendant Everette L. Davis and payable to the plaintiffs Jean and Kathleen Wood and to reinstate the judgment against him thereon with interest on the note to date. The trial court is further ordered to vacate its order of March 3, 1967 opening up the judgment by confession on the note of January 6, 1967 executed by Everette L. Davis and Ruth Davis, defendants, in favor of Jean Wood in the principal sum of $7250, and reinstate judgment thereon with interest to date, except that the trial court is directed to hold a hearing on the reasonableness of the attorney’s fees allowed on this note. This court is unable to determine the exact amount of money expended by the parties by reason of transactions occurring after September 3,1966, because some of the items expended by each of the parties are in dispute. The trial court is therefore further directed to determine the amount expended by each of the parties to this case by reason of the transactions between the parties since September 3, 1966, hearing further evidence, if necessary, and enter judgment accordingly.

Reversed and remanded with directions.

CREBS and JONES, JJ., concur.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Howland, Defendant-Appellant.
    (No. 70-170;
    Fifth District
    — November 12, 1971.

      Paul Bradley, of Defender Project, of Mt. Vernon, (Kenneth L. Jones, of counsel,) for appellant.
    R. W. Griffith, State’s Attorney, of Edwardsville, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Charles Howland pled guilty to the crime of theft of property in excess of $150 in value in violation of Ill. Rev. Stat., ch. 38, par. 16 — 1 on May 26, 1970, and was sentenced on June 2, 1970, to a minimum of one year and a maximum of five years in the penitentiary. At the time of sentencing a burglary charge against him was nolle prossed.

He contends on this appeal that his plea was not voluntary and that the unusual circumstances of his plea required the trial judge to make a factual determination for the basis of his plea prior to accepting his plea of guilty.

The record clearly reflects that the defendant was thoroughly advised of the consequences of his plea by the trial court and thoroughly understood them prior to entering his plea of guilty. The record also clearly discloses that prior to accepting his plea of guilty the trial court admonished the defendant that he was not bound by any agreement between the defendant and his counsel and the State’s Attorney’s office.

Prior to the sentencing of the defendant on June 2, 1970, the following transpired:

“The Court: Any recommendations here?

Mb. Bybon: Yes. The People would make the foHowing recommendation, that this defendant be sentenced to the penitentiary for not less than one year nor more than one year and one day, with credit given for such time since he was taken into custody in December, 1969 to the present time. We would like to state to the court we strenuously urge this recommendation because one, the Granite City Police Department has gone along with the recommendation, in fact participated in making the recommendation; secondly, the recommendation was made in light of the fact we had two cases, one exceptionally weak, and the other was, we would say, was weak and based on this evidence and based on the fact this defendant would plead guilty to a felony charge, would give him a second felony charge, which we thought would be some punishment. And secondly a penitentiary sentence was required which would also be punishment under the circumstances.”

Illinois Supreme Court Rule 402(c) which became effective September 1, 1970 now provides:

“The court shaU not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea.”

Appellant states that this rule reflects the law as it existed in Illinois prior to its adoption. He does not quote any authority or make any argument in support of his statement. We are unable to perceive why Rule 402(c) should be applied retroactively. In our opinion the rationale of our Supreme Court in People v. Williams, 44 Ill.2d 334, 255 N.E.2d 385, supports our position.

Appellant argues that since the state’s attorney stated the cases were weak, this forms some basis for allowing him to withdraw his plea. The weakness of the state’s cases has no necessary connection with defendant’s guilt. Appellant was indicted on both charges by the Grand Jury. Only after trial of both charges had started and a jury had been selected did appellant enter the guilty plea here involved.

The recommendation of the State’s Attorney for a sentence of from one year to one year and a day violated the spirit and purpose of the indeterminate sentence law. The trial judge imposed a proper sentence after a proper admonishment.

Under the circumstances of this case, we would not be justified in overturning that judgment because the procedure did not comply with a subsequently adopted rule.

Judgment affirmed.

MORAN and JONES, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sam Longstreet, Defendant-Appellant.
    (No. 71-84;
    Fifth District
    — November 15, 1971.

      Paul Bradley, of Defender Project, of Mt. Vernon, (Kenneth L. Jones, of counsel,) for appellant.
    R. W. Griffith, Jr., State’s Attorney, of Edwardsville, for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

Defendant, Sam Longstreet, was tried by jury in the circuit court of Madison County on an indictment charging him with the crime of murder. The jury found him guilty as charged and he was sentenced to the penitentiary for a term of not less than 20 nor more than 40 years.

On appeal defendant does not challenge the sufficiency of the evidence and it is therefore unnecessary to summarize the testimony. Defendant’s first claim is that he was deprived of his constitutional right to be present at all stages of his trial in that neither defendant nor his attorney was present when the court communicated with the jurors after they had begun their deliberations. The jury began its deliberations on the afternoon of May 12 and the conduct complained of took place in open comt at 1:30 A.M. on May 13. The official court reporter was present and the report of the proceedings shows that the judge, after inquiring as to whether the jury had reached a verdict, directed the jurors to cease deliberations and told them to retire for the evening.

The courts of this state have repeatedly held that although the defendant has the right to be present at all stages of this trial “[T]his constitutional guaranty is not infringed upon by holding hearings outside defendant’s presence which do not involve substantial rights of the accused.” (People v. Woods, 27 Ill.2d 393, 395.) The privilege to be present in his own person does not guarantee the defendant the right to be present when his presence would be useless, and the Supreme Court has held that “[J]udgments will not be reversed when it is apparent that no injury has resulted from a communication to the jury, either by the court or by third persons”. People v. Tilley, 411 Ill. 473, 478.

It is difficult to see any possible injury or prejudice to the defendant in the case at bar. The court, in view of the late hour, merely permitted the jury to retire for the evening after first ascertaining that they had not reached a verdict. The defendant cites this Court’s decision in People v. Rohwedder, 78 Ill.App.2d 211 in support of his position. There the trial judge interrupted the jury’s deliberation to inquire as to whether they needed more time to deliberate. The foreman then indicated that they could use more time and the judge sent them back to the jury room. We there held that the jury would probably interpret the judge’s action to mean that he thought that it was about time to bring in a verdict. This would have the effect of hastening the deliberations to the prejudice of the defendant. We thus held that there was an actual injury to defendant as the result of the communication with the jury and that such injury necessitated a new trial.

In the case at bar there is no possible coercive or prejudicial effect as was present in Rohwedder. The jury was told to stop deliberating until morning, not pushed into hurrying their decision. We do not condone the conduct of the trial judge in so communicating with the jury outside the presence of respective counsel and defendant, and certainly such practice is to be condemned. We hold, however, that in the instant case the conduct complained of did not constitute reversible error and that the defendant was not deprived of any substantial right.

Defendant also argues that he was denied a fair trial by the introduction of evidence concerning the presence of blood at the scene of the occurrence. It is his claim that this testimony and evidence was irrelevant and highly inflammatory and prejudicial. It has long been established that where the defendant fails to object to evidence at the trial he is considered to have waived his right to raise the issue of its impropriety on appeal. (People v. Lee, 44 Ill.2d 161, 171.) An examination of the record reveals that the defense counsel interposed but two objections to the evidence complained of. In one instance he merely stated that he objected without stating the grounds therefor and in the other he objected on the grounds that the witness identified a dark spot on a picture as blood when it hadn’t yet been shown to be blood. It is clear that there was no objection on the grounds urged on this appeal and we therefore hold that defendant waived his right to raise this point on appeal. The evidence was not of such character as to require consideration under the exception to the general rule set forth in People v. Romero, 36 Ill.2d 315.

Defendant also urges that the court erred in allowing the State’s Attorney to cross-examine the defendant in regard to the support of his wife and family. On direct examination the defendant testified that he and his wife were divorced, but that he gave child support. The State’s Attorney was later allowed, over defendant’s objection, to cross-examine the defendant as to the actuality of support payments and as to whether his wife was in fact receiving state aid. The court in overruling the objection stated that “After testifying he supports his children this is proper cross-examination”. The trial court properly stated the law and we find that the defendant opened the door on direct examination. Once the door was open the defendant could not be allowed to claim error on the part of the court in permitting the witness to be cross-examined in regard to the veracity of his previous testimony. People v. Nastasio, 30 Ill.2d 51, 58.

Defendant further contends that the court erred by sustaining the State’s Attorney’s objections to questions designed to bring out the general reputation for truth and veracity of one of the State’s occurrence witnesses. We agree with the defendant that the court did unduly restrict the defendant’s right to examine the witness and that, in sustaining the State’s Attorney’s objections, error was committed. We find, however, from a thorough examination of the record that the evidence, including the testimony of two eye witnesses in addition to the one defendant was seeking to discredit, so overwhelmingly establishes defendant’s guilt beyond a reasonable doubt that the error complained of must be held harmless error. See People v. Jenkins, 82 Ill.App.2d 150, 158.

Defendant’s final claim is that his cross-examination of an occurrence witness was unduly restricted when he attempted to establish the relationship between the witness and the decedent. The record does not support this claim. Prior to sustaining an objection made by the State’s Attorney, the court had allowed defense counsel wide latitude in his cross-examination of the witness. He was allowed to ask the witness approximately 20 questions concerning the romantic involvements of both decedent and the witness and their relationship to each other. In permitting the defense to continue with this line of questioning the court overruled three separate objections by the State’s Attorney. In a criminal trial the defendant is usually given wide latitude in his cross-examination. However, the degree of latitude to be allowed in such cross-examination is within the sound discretion of the trial court and the decision will not be reversed because of claimed improprieties in the court’s rulings, unless it is shown that such discretion has been clearly abused. (People v. Provo, 409 Ill. 63, 68.) Here there is no showing that the trial court abused its discretion and to the contrary the record indicates that the defendant was given considerable latitude in his cross-examination.

Judgment of the circuit court of Madison County is affirmed.

Judgment affirmed.

EBERSPACHER, P. J., and JONES, J., concur.


author: Mr. JUSTICE JONES Mr. JUSTICE GEORGE J. MORAN

text:
    The People of the State of Illinois, Appellee, v. Henry Pickett, Appellant.
    (No. 70-1;
    Fifth District
    — November 19, 1971.

      Rehearing denied December 14, 1971.

      G. MORAN, J., dissenting.
    Kenneth L. Gillis, of Defender Project, of Chicago, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville, for the People.
   Mr. JUSTICE JONES

delivered the opinion of the court:

Defendant appeals his conviction after a jury trial of the crime of attempted armed robbery, for which he received a sentence to the penitentiary of not less than nine years nor more than fifteen years. A verdict of not guilty was returned on a companion charge of aggravated battery.

The defendant does not dispute the fact that an attempted armed robbery and shooting occurred. He contends he was not a participant. From testimony of witnesses called by both prosecution and defense it appears that on September 24, 1967, defendant was running a card game in Madison, Illinois during the late evening hours. At approximately 12:00 P.M. he left for a trip in an automobile with others involved in the card game, including his brother, during which his brother was to get some money from some girls house. They stopped at the St. Clair cafe in East St. Louis to get some whiskey. Defendant went to the front door which was locked but after knocking he was admitted by the bartender, Mrs. Virginia Komeshak. He ordered some V O whiskey and when told that brand was not available he started to leave. Mrs. Komeshak asked him to leave by the side door and he started to comply. When the door was opened by Mrs. Komeshak two armed men broke through the storm door and entered and announced a holdup. One of the men, defendant’s brother, was armed with an automatic rifle, the other with a pistol. The complaining witness, Mrs. Komeshak, identified the defendant as a participant in the holdup and stated he was armed with a pistol and the one of the three participants who held a pistol to the head of a customer. Shooting erupted when the complaining witness produced a gun from under the counter near the cash register and commenced firing at the assailants. The defendant was wounded and his brother was killed in the shooting. Mrs. Komeshak was shot in the stomach and arm and severely wounded. Defendant stated that he knew nothing of the plans for the robbery, that he had merely entered the tavern to purchase a half pint of V O whiskey and while he was inside his brother and another (who had been at the card game and a passenger in the automobile) entered and started shooting. He also testified that he had no gun.

Defendant in this appeal argues that (1) his guilt beyond a reasonable doubt was not shown; (2) the jury was given improper instructions; (3) he was deprived of his right to counsel when the jury verdicts were taken while his counsel was absent; (4) his trial counsel was incompetent; and (5) his sentence was excessive.

We have examined the abstract and transcript of the testimony and can conclude only that the guilty verdict returned by the jury upon their hearing and observing the witnesses is fully supported by the evidence. Defendant’s association with other participants in the crime in a card game immediately preceding the trip to the tavern, his presence in the automobile during the trip, his presence in the tavern during the holdup, his failure to flee during the progress of the holdup, his receiving a wound in the melee that erupted, are all strongly suggestive that he was in league with the perpetrators from the inception of the plan to its abortive and tragic conclusion. Although the complaining witness is claimed to have exhibited some equivocation in her identification of defendant as a participant it is our impression that it is merely semantical, the result of her choice of words, rather than her uncertainty. She positively identified defendant and stated she was certain of it. Defendant’s charge that the complaining witness failed to go to the police for two years after the incident is explained in large measure by the fact that she lay unconscious in a hospital for five weeks following the incident and was hospitalized a total of approximately thirteen weeks.

Defendant’s objections to instructions merit scant comment. I.P.I., Criminal, number 1.01 was given. The objection is that it told the juiy that they could consider the evidence “in the light of (ones) observation and experience in life.” I.P.I., Criminal, number 26.01 was given which advised the jury that, “your agreement upon a verdict must be unanimous.” Defendant’s objections to these instructions are not well taken. They follow the pattern instructions and are not subject to the objections defendant raises. I.P.I., Criminal, number 6.07 was given to define the issues in attempted armed robbery and defendant argues it was incompetent and erroneous. The instruction was supplemented by I.P.I., Criminal, number 14.01 which defines the crime of armed robbery. Taken together the instructions were proper and adequate to inform the jury of the issues in armed robbery. We find no deficiencies or extraneous matters which could serve to mislead or misinform the jury.

Defendant argues that his trial counsel was incompetent because he allowed defendant to be given an excessive sentence, he permitted other participants in the robbery and the automobile trip, called as defense witnesses, to impeach defendant’s testimony, he did not endeavor to produce the desired result which was an acquittal for defendant, and for other reasons which we need not detail. Defendant’s argument is not well taken. It is apparent from the transcript and record that defendant’s counsel was thorough and able in his defense and did everything he reasonably could do. He is not subject to criticism because he did not obtain the desired result of an acquittal. Simply stated the evidence of guilt was too strong to be overcome by defense tactics.

Of greater import is defendant’s argument that the absence of his attorney when the court received the jury verdict deprived him of effective representation of counsel as guaranteed by the VI Amendment of the United States Constitution. It appears from the record that the jury was instructed and retired for deliberation in the afternoon and reached its verdict before being recessed for tile day. Pursuant to adjournment court was convened at 9:30 A.M. on the following day with the judge, jury, state’s attorney and defendant all present, but the defendant’s attorney was absent. At 9:50 A.M., after some unsuccessful attempts to locate defendant’s attorney, the jury verdicts were received and filed. The verdicts were in regular form and signed by all jurors. The jury was not polled and the defendant was told nothing regarding polling of the jury. Defendant’s attorney was privately retained and had represented him throughout the pretrial proceedings and at the trial and was present at the time of hearing on an application for probation and the imposition of sentence.

We are neither cited nor able to find any Illinois case which precisely presents the question here, i.e., what is the effect upon defendant’s VI Amendment right to counsel when the jury verdict is received and filed in the absence of defendant’s counsel?

The host of cases following Gideon v. Wainright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792 permits us to forego as unnecessary any discussion of the right of the defendant to be represented by counsel at every stage of the trial. (See People v. Allen, 37 Ill.2d 167, 226 N.E.2d 1; People v. Noble, 42 Ill.2d 425, 248 N.E.2d 96; People v. Taylor, 32 Ill.2d 165, 204 N.E.2d 734.) The rendition of the verdict is a part of the trial, a critical phase where substantial rights of the defendant are affected. It must therefore go undisputed that the VI Amendment right to counsel extends to the rendition of the verdict of the jury. It is against this background, then, that defendant asserts the absence of his counsel at the rendition of the verdict deprived him of substantial rights, principally his right to poll the jury. It cannot be seriously questioned that in Illinois a defendant in a criminal case is entitled, as of right, upon request, to have the jury polled upon rendition of its verdict. (Nomaque v. People, 1 Ill. (Breese) 145; People v. DeStefano, 64 Ill.App.2d 389, 212 N.E.2d 357; People v. Stevenson, 107 Ill.App.2d 441, 246 N.E.2d 309.) But to say that a defendant has a constitutional right to be represented by counsel at the rendition of a jury’s verdict is something less than saying that a defendant’s counsel must be so present irrespective of any conditions of circumstances. The presence of counsel is not an absolute. The constitutional requirement is satisfied when the opportunity to exercise the right is reasonably extended. It may be waived along with other procedural rights of constitutional dimension. (See People v. Novotny, 41 Ill.2d 401, 244 N.E.2d 182; People v. Allen, supra; People v. DeSimone, 9 Ill.2d 522, 138 N.E.2d 556.) The right to be present in person is not superior to the right to be represented by counsel. It must follow that just as the right to be present in person may be waived, so may the right to be present by counsel. It was stated in People v. Smith, 6 Ill.2d 414, 129 N.E.2d 164, that where a defendant voluntarily absents himself from the courtroom at the moment the verdict is rendered, or runs away from court after he learns of the verdict, and refuses to return for sentencing or further proceedings, he is deemed to have waived his right to be present and cannot plaim any advantage on account of his absence. In People v. Nettles, 107 Ill.App.2d 143, 246 N.E.2d 29, it was held that by stipulating that a jury might return a sealed verdict and that polling of the jury was waived constituted a waiver of the right to be present in person throughout the trial, including the rendition of the verdict.

The case of Newagon v. Swope, 183 F.2d 340 is strikingly similar on its facts in that defendant was represented throughout the trial by counsel except that when the verdict was returned his attorneys were not in the courtroom but they were present, however, the following day when defendant was sentenced. Defendant urged as error the fact that when the jury returned the verdict his attorneys were not present in the courtroom and the jury was not polled. The court remarked that the record was wholly lacking as to why his attorneys were not present and that the United States Marshall reported that he had been unable to find them. The court noted that nothing had occurred at the time of rendition of the verdict that prejudiced defendant in the slightest degree and since the absence of defendant’s counsel was voluntary it could not deprive the court of jurisdiction to proceed. The court stated:

“We think that to say that the courts must cease to function, indeed, are without jurisdiction to proceed further, until they search for, seek out and bring in counsel whose duty it is to be in court, and who by their own volition are absent, is to indulge in overmeticulous nicety of construction of the constitutional provisions.”

Also similar is Smith v. United States, 411 F.2d 733, where the defendant’s attorney was present throughout the trial but involuntarily absent at the time the jury verdict was rendered. Notwithstanding the fact that the court, upon its own motion, polled the jury, it was held that the defendant had been denied the effective representation of counsel because of his absence at the time the verdict was rendered. The court pointedly distinguished its case from Newagon v. Swope, supra, upon the grounds that the absence of counsel was involuntary, whereas in Newagon it was voluntary. We think that the court in Smith v. United States, was overly technical in its holding since the court, acting on its own motion had polled the jury and nothing else appeared to show that any prejudice or detriment of any kind resulted from counsel’s absence. In People v. Nelson, 18 Ill.2d 313, 164 N.E.2d 16, a defendant was involuntarily absent at the rendition of the jury verdict and the Supreme Court reversed the case for a new trial since defendant’s right to be personally present at all stages of his trial, including the rendition and recording of the jury verdict, had been abridged. In People v. Allen, supra, the defendant was removed from the courtroom during the trial because of his misconduct and the court held such misconduct to be a waiver of the right to be present. Here we note that defendant was represented throughout the trial by his privately retained counsel, that his counsel failed to appear for resumption of the trial at the appointed time and apparently made no effort to notify the court of his inability to appear at the appointed time or to otherwise give notice of or explain his absence.

It further appears that an effort was made to locate defendant’s attorney for the purpose of getting him to court in order that the case might proceed and that the proceedings were delayed for twenty minutes while his presence was being sought. We believe that under these circumstancs the defendant has waived any right to complain that the court proceeded to receive the jury verdict and his right to poll the jury in the absence of his counsel. As stated in People v. Steenbergen, 31 Ill.2d 615, 203 N.E.2d 404, “To allow a defendant to stop trial proceedings by a voluntary absence would allow him to profit by his own wrong.” And in People v. Allen, supra, the court stated: “The right to appear and defend is not given to a defendant to prevent his trial either by voluntary absence, or by wrongfully obstructing its progress.”

We hold that since his counsel’s absence was voluntary, rather than involuntary, and since it does not otherwise appear that anything occurred to defendant’s detriment or prejudice, that the right to have counsel present at the reception of the verdict and to poll the jury has been waived. See Anno., 49 A.L.R.2d 619, 642, paragraph (c).

Defendant’s claim that he received an excessive sentence is untenable. It was within the permissive statutory range. It was doubtless imposed upon a due consideration of the circumstances of the crime in which defendant, with others, engaged in an attempted armed robbery in which dangerous weapons, one of which was an automatic rifle, were not only brandished, they were used. The manner and circumstances of the shooting give the unmistaken notion that the shooting was done with intent to kill. It is only fortuitous that the complaining witness did not die with the result that defendant would be on trial for murder rather than attempted armed robbery. We note from the probation report that although defendant had no previous felony convictions his background and record as a police character are devoid of any redeeming features.

The sentence imposed by the trial court will not be disturbed.

For the foregoing reasons the judgment and sentence of the trial court will be affirmed.

Judgment affirmed.

CREBS, J., concurs.

Mr. JUSTICE GEORGE J. MORAN

dissenting:

It is undisputed that a waiver of the constitutional right to counsel must be “knowing and intelligent.” A defendant “requires the guiding hand of counsel at every step in the proceedings against him.” Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792, 93 A.L.R.2d 733.

Pickett obviously had no physical control over his attorney’s presence or absence when the verdict was rendered. He did not authorize his attorney to be absent and could not “knowingly and intelligently” waive his right to counsel in a situation over which he had no control. The majority holds that Pickett’s counsel waived his right to counsel by his counsel’s unexplained absence. Therefore, when a counsel absents himself at a critical stage of a trial, defendant waives his constitutional right. According to this rationale, the existence of the right to be represented by counsel is to be determined by his counsel and not by the defendant.

But the right under the Sixth Amendment is guaranteed to the defendant, not his counsel. I dissent.


author: Mr. PRESIDING JUSTICE MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Chester Harry Dollen, Defendant-Appellant.
    (No. 70-250;
    Second District
    — November 11, 1971.

      Murphy, Griffin, & Dixon, of Aurora, for appellant.
    William R. Ketcham, State’s Attorney, of Geneva, (W. Ben Morgan, and Leo Wotan, Assistant State’s Attorneys, of Elgin, of counsel,) for the People.
   Mr. PRESIDING JUSTICE MORAN

delivered the opinion of the court:

A jury found defendant guilty of the sale of narcotics. On appeal he contends: (1) that he was entrapped, (2) that the State’s supplying funds to an informer to leave the area was prejudicial, (3) that the denial of a preliminary hearing was prejudicial, and (4) that the court erred in failing to grant his pretrial motion for the production of certain items.

The relevant portion of the evidence introduced by the prosecution in its case-in-chief consisted of the testimony of a State narcotics agent and an Aurora policeman in charge of narcotics. On direct testimony it was established that on February 5, 1969, the agent, along with an informer (later identified as Donald Wright) went to a taxi stand in Aurora at about 2:30 P.M. The defendant was not present when they arrived but within minutes he drove into the taxi company parking lot and approached the men. No introductions were made but the defendant remarked that he had the “stuff” at home and drove away. Upon his return, all three went into the cab office where the defendant handed the agent a box containing morphine. The agent, upon asking the price, was told $75.00; he offered $65.00 but the defendant demanded and received an additional $10.00 from the agent. The Aurora policeman observed from a distance the meeting of the three in the parking lot but did not observe the actual transaction. He did state that Wright was an “informant of mine.”

Cross-examination of die agent disclosed that he first met Wright one to two weeks prior to the sale (no earlier than January 22, 1969) and that he again met with Wright prior to the sale; that he gave the informer directions on the manner in which to conduct the February 5th meeting and that Wright suggested he offer $65.00 for the drugs. Prior to the sale the agent learned that the informer was a former mental patient. When asked if he had given the informer any money for his services, the agent replied, “Yes,” but later, when asked if he paid the informer because of his involvement in the transaction, he said, “No, it was at his [Wright’s] request to have money to get out of town with.”

Cross-examination of the Aurora policeman disclosed that he had met Wright during the “extreme latter” part of January, 1969; that after tire sale he learned Wright had been a mental patient; that the arrest of the defendant occurred on February 19, 1969; that the informer had approached him “several weeks after the arrest” requesting money but was directed to the agent; that Wright left town although he again saw him about 7 to 8 months before trial; and that he presently did not know the informer’s whereabouts.

The defense consisted of the testimony of two cab drivers, the president of the cab company and the defendant. The defendant testified that he was the manager of the cab company and hired Wright on January 22, 1969; that soon thereafter ill feelings developed between them because of Wright’s treatment of certain customers; that on or about January 28, 1969, when he arrived at the cab’s garage between 5:30-6:00 A.M., Wright was standing near his taxi and Davis, another driver, was present; that he began his usual task of inspecting the cabs for lost items belonging to customers; that he found a small box in Wright’s cab and said, “Look what I found”; that Wright asked to see the box and immediately stated that he could find a buyer for it; that he refused and said the box contained someone’s medicine and that it would be called for; and that between this date and February 3, 1969, Wright asked the defendant to sell the box “seven or eight times at least”, but was refused.

The defendant further testified that on the morning of February 4th, Wright, in a hysterical manner, again approached him and stated he had a buyer in Wisconsin whom he was going to see; that he kept repeating, “Yon got to help me”; that Wright told him to ask $75.00 even though the buyer might try to lower the price and said, “You keep the $75.00 for helping me out.” The defendant refused, but that night Wright returned, “all shook up” and said that he was going to Wisconsin to pick up the buyer and would meet the defendant the next day at 2:30 P.M. Defendant related the further statements of the informer as follows:

“He said I just had to sell it. I just had to get rid of it for him. It was going to help him. He was in trouble and he told me again, hand (sic) onto the money. Keep the money for helping me out.”

Wright also told defendant to tell the buyer he could get more drugs if needed.

Defendant then related that he was approximately $1500 in debt from gambling, a fact of which Wright was aware; that the day after the sale he learned from a driver named Pass and from the president of the cab company that Wright had told them defendant had sold narcotics to an agent; that he fired Wright that same day; and that two weeks later, Wright got into one of their cabs and insisted that Davis, the driver, take him to the office of defendant, at which time Wright said, “I can blow the lid off this whole thing if you give me my job back,” but the defendant refused.

On cross-examination the defendant stated that after the sale the agent called him on three occasions seeking to buy more drugs but each time, he refused, the last time telling the agent that he found the box under the back seat of a cab.

Elmer Davis testified that he was a driver for the taxicab company; that he had personal knowledge of the animosity between the men; that he and Wright were present when defendant searched the cab; that defendant found the box on January 28th; that when defendant found the box, Wright immediately stated he could find a buyer for it; that a few days after the sale, Wright, in his presence, told defendant “* * * he could get him free from what he was into if he’d give him his job back,” and that, at that time, Wright said, “* * * that he had been given $50.00 to turn Chester in.”

Richard Pass testified that he was aware of the ill feelings between the men and that on the day after the sale, Wright said, “I fixed Dollen. Didn’t I?” The president of the cab company testified that on the same day, Wright said, “You better start looking for another manager * * * that Chester had sold narcotics to an agent and that he would be picked up within the near future.”

In rebuttal, the agent testified that at the sale defendant stated he could obtain other drugs.

The informer did not testify.

Entrapment exists only when the criminal intent originates in the mind of the entrapping officer (People v. Outten (1958), 13 Ill.2d 21, 23.) There is no requirement that the State call the informer to testify People v. Aldridge (1960), 19 Ill.2d 176, 180), but the State is responsible for the acts of its informers. People v. Strong (1961), 21 Ill.2d 320, 326.

Defendant recognizes these rules but bases his argument on People v. Strong, supra, and People v. Jones (1966), 73 Ill.App.2d 55. In both cases, the unrebutted testimony was that the informer gave defendant a package and asked him to deliver it at a later time; that he did not know what the package contained; and that when he delivered the package he received money but did not know its purpose. The informer did not testify in either case. The Strong court held that the failure to call the informer gave rise to an inference against the State and on the basis of defendant’s unrebutted testimony found a valid defense of entrapment. The Jones court, relying on Strong, found entrapment where “critical elements” of the State’s case depended upon the work of an informer and the informer was not called to rebut defendant’s testimony. Defendant argues, on the basis of these, that the State must call an informant to controvert defense evidence which “suggests” he supplied the drugs.

We disagree. Jones and Strong are distinguishable on their facts because, in each, the defendant testified that the State supplied the narcotics. The courts then inferred the truth of defendant’s testimony from the State’s failure to call the informer. In the case at hand defendant’s unrebutted testimony was not that the informer supplied the drugs, but that he found the box in the informer’s taxicab. Were we to apply the rule of Strong and Jones to these facts, we would first have to infer that the informer placed the drugs in the cab. Then in order to find entrapment, we would be required to use that inference as a basis for a second inference regarding the truth of defendant’s testimony. We will not engage in speculating on the existence of entrapment where the evidence merely “suggests” the informer supplied the drugs.

We note that the testimony regarding the source of the drugs need not come from the defendant and need not be direct, but it must place the drugs in the informant’s previous control.

In considering defendant’s contention that the State’s paying the informer to leave the area was prejudicial, we find no such prejudice. The question of paying an informer to leave is considered in People v. Wilson (1962), 24 Ill.2d 425 and People v. Williams (1968), 40 Ill.2d 367. Both arose out of the same factual situation. The informer did not testify. Defendant testified that the reason she obtained the narcotics was because of the informer’s request for help for an addict friend. A federal narcotics agent testified that he drove the informer and a man described as her husband to a railroad to a railroad station in a government automobile. He watched them buy train tickets, put them on the train, and gave the informer $60. A few days earlier he had given her $700. The State resisted defendant’s pretrial motion to produce the informer and at all times gave her address as the local office of the Federal Bureau of Narcotics. The court found a denial of due process on the basis of the affirmative, willful conduct of the State. No such denial of due process exists in the case at hand. The secretive nature of narcotics sales necessitates the use of informers. That the State may pay these people is a well established, though sometimes offensive practice. Here, unlike Williams and Wilson, defendant made no motion to produce the witnesses and there was testimony that Wright had in fact returned and been seen in the area during the period before trial. Although we hold, in the case at bar, that there was no error we must note that paying a police informer money so that he can leave town before a trial is reprehensible conduct that should be avoided.

Defendant’s next contention is that the denial of a preliminary hearing was prejudicial. The record shows that the scheduled preliminary hearing was delayed over defendant’s objection. An indictment was returned during the period of the delay. The evidence does not disclose whether Wright was paid and left before or after the scheduled hearing or the indictment. It is well established that there is no constitutional right to a preliminary hearing. (People v. Petruso (1966), 35 Ill.2d 578, 580.) Its purpose is not to try the case or provide discovery for defendant but to determine probable cause. Thus where a true bill is returned, probable cause has been found and the need for a preliminary hearing is eliminated. People v. Gonzales (1970), 125 Ill.App.2d 25, 234 recognizes the possibility that a hearing might be required where defendant shows some fundamental unfairness which infected the trial. Here, however, defendant has not shown any connection between the postponement, the indictment and the informer’s leaving town which could be said to have deprived him of a fundamental constitutional right. We, therefore, find no merit to his contention.

Defendant’s final contention concerns his pretrial motion for aU affidavits, receipts and documents signed by Wright and for “Any and aU records of lUinois Division of Narcotics pertaining to Wright * * *” The motion was “* * # granted only if the witness Donald Wright is called as a witness by the State.” The trial court properly ruled on the motion. The trial was held prior to the promulgation of the Revised Rules As To Discovery In Criminal Cases (to become effective October 1,1971). Under present law, defendant is entitled to a witness’ statement if the witness is called to testify but not entitled to “any and” aU other informa^ tion contained in police records which might aid in preparation of his defense. People V. Thomas (Ill.App. 1971), 267 N.E.2d 703; People v. Hoagland (1967), 83 Ill.App.2d 231.

On August 16,1971, the “Uniform Narcotic Drug Act,” under which the defendant herein was sentenced, was repealed and replaced by the “Controlled Substances Act” (Ill. Rev. Stat. 1971, ch. 56%, par. 1100— 1603). Section 601 (Ill. Rev. Stat. 1971, ch. 56%, par. 1601) provides that the penalties of the new Act apply if, prior to the effective date of the Act the judicial proceedings had not reached a final adjudication. On August 16, 1971, the defendant’s case had not reached a final adjudica- . tion. (See People v. McCloskey, (Gen. No. 70-190 2nd District, 1971) (Ill.App.3d).) Contrary to the old Act the new Act’s penalties are dependent upon the quantity of the substance involved. The record before us does not disclose the quantity involved, and therefore, we must remand this case to the trial court with directions to hold further proceedings in accordance with the provisions of the new Act.

Cause remanded with directions.

GUILD and STROUSE, JJ., concur.


author: Mr. JUSTICE ABRAHAMSON.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Albert A. Dyon, Jr., Defendant-Appellant.
    (No. 70-96;
    Second District
    — December 21, 1971.
    Ralph Ruebner, of Defender Project, of Elgin, (Bruce L. Herr, of Defender Project, of Springfield, of counsel,) for appeHants.
    WiHiam V. Hopf, State’s Attorney, of Wheaton, (Malcolm F. Smith, Assistant State’s Attorney, of counsel,) for the People.
   Opinion by

Mr. JUSTICE ABRAHAMSON.