text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wilbert Lipscomb, Defendant-Appellant.
    (No. 57439;
    First District (5th Division)
    April 11, 1974.

      Paul Bradley, Deputy Defender, of Chicago (James R. Streicker, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (James S. Veldman, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Tried by a jury, defendant was found guilty of the murder and armed robbery of Jerome Wells and the attempt murder of Richard White. Defendant was sentenced to terms of 100 to 150 years for murder, 10 to 20 years for armed robbery and 10 to. 20 years for attempt murder, the sentences to be served concurrently.

On appeal defendant contends that (1) the evidence was not sufficient to prove him guilty beyond a reasonable doubt; (2) he was denied his right to confront witnesses against him due to the trial court’s restriction of the cross-examination of the State’s principal witness; (3) the trial court erred in permitting a ballistics expert to testify regarding tests run on a revolver which had been destroyed prior to trial; (4) the trial court erred in permitting defendant’s sister to be called as the court’s witness and that this error was compounded by the admission of hearsay evidence under tire guise of impeachment; (5) a photograph of the deceased’s body should not have been admitted into evidence; (6) the State’s closing argument was improper; (7) since his convictions for the armed robbery and murder of Jerome Wells resulted from the same conduct, the conviction and sentence for.armed robbery must be reversed; and (8) the sentence of 100 to 150 years for murder is excessive.

Richard White testified for the State that on the afternoon of August 10 he was working in the K & W Hardware Store. At approximately 3 P.M. a man wearing a yellow banlon shirt entered the store accompanied by a second shorter individual. The man wearing the yellow shirt asked Jerome Wells, the owner of the store, for an article not carried by the store. The two men “took a look around” and walked out. The two men subsequently reentered the store. They again looked around and walked out. White was able to observe them for about 2 minutes. Shortly thereafter, these men entered the store a third time. There was now a third individual outside the store peering in through a window. White walked to the front of the store, locked the door and then walked over to a merchandise counter. The man wearing the yellow shirt was standing in an aisle next to Wells. White walked toward them, past the shorter man. As he came upon the individual standing beside Wells, the man “turned around instantly and shot [him].” The man was holding two guns, one with a long (4 to 6 inches) silver barrel, the other a darker snub-nosed model. White was 2 or 3 feet from the man when he was shot. Although the man was wearing blue-tinted sunglasses when he entered the store the third time, he was not wearing them when he shot White. Upon being shot, White fell to the floor. The shorter man stood over him and ordered him not to move. While on the floor he heard one shot followed by several others. He heard a thud next to him and then the sound of the cash register ringing, indicating that the cash drawer had been opened. This was followed by the sound of trampling feet and then the sound of the front door closing.

After the intruders had fled, he got up and touched Wells. He then called the police. He straggled to the street in an attempt to get help, collapsed and was taken to the hospital. There, during the days following the incident, the police showed him photographs from which he identified defendant as the man who shot him. On a separate occasion he identified a photo of defendant’s brother, Carl Lipscomb, as being the shorter man who participated in the robbery. Prior to the robbery there had been about $60 in cash and a check, dated August 10, 1970, made out to K & W Hardware in the cash register.

White was a student at Elmhurst College. He had worked “off and on” for 1 year in the State’s Attorney’s office. On cross-examination White testified that he worked in the investigative section of the State’s Attorney’s special prosecutions unit. At the time of trial, however, he was no longer employed by the State’s Attorney.

The testimony of the State’s expert witnesses indicates that White’s wound was caused by a .38-caliber weapon and that Wells’ wounds were caused by both a .38-caliber weapon and a .22-caliber weapon.

Willie Jones, Sr., testified for the State that on August 10, 1970, at approximately 3 P.M. he was working at the rear of an automobile supplies store located at 201 North Cicero Avenue. He saw three young men running toward him from the south. He identified one of the men as Carl Lipscomb, his next-door neighbor. Although he didn’t know their names, he had seen the other two youths in the neighborhood. He described the taller of them as wearing a yellow shirt. He did not believe this man to be defendant; however, he didn’t “know what his face looked like now because [he] didn’t pay any attention to it.”

Willie Jones, Jr., 13 years of age, was qualified as a witness for the State: At approximately 3 o’clock on August 10, 1970, he was in his home located at 206 North LaCrosse with his brother and sister. Théy were watching television. He looked out the window and saw his next-door neighbors, defendant and Carl Lipscomb, running to their home. Defendant was wearing an orange nylon shirt.

Robert Shanahan, a homicide investigator for the Chicago Police Department, testified for the State that at approximately 3:30 P.M. on the date in question, he received an assignment to go to the K & W Hardware Store. Upon arriving at the store he observed the body of the deceased. About 20 minutes later, during the course of his investigation, he spoke with Willie Jones, Sr., at the auto supply shop. Acting on information given him by Jones, he proceeded to the Lipscomb apartment at 204 North LaCrosse. He was accompanied by three other police officers. Through a back-porch window he was able to see a check lying on a table. One of the officers climbed through a window and unlocked the porch door for Shanahan. Upon gaining entry to the apartment he found a .22-caliber revolver, a .38-caliber revolver with a blue steel barrel, four spent .38-caliber shell casings and the check which was dated August 10, 1970, and made payable to “K & W Hardware.”

Detective Robert Smitka testified for the State that on August 11, 1970, he interviewed Richard White in the Garfield Park Community Hospital. During the course of the interview he showed White a group of six photographs. White picked out a photo of defendant as the man who shot him. White was heavily sedated when he was asked to make this identification.

Patrolman Arthell Goodwin testified for the State that at approximately 12:45 A.M. on September 8, 1970, he observed a group of seven or eight young people standing on the street. He approached the group to ascertain whether they were in violation of the curfew then in effect. Two of the youths began to walk away. When Goodwin ordered them to stop, he noticed a bulge shaped like the handle of a revolver under the T-shirt of one of them. Upon searching him, he discovered a .22-caliber revolver with a 6-inch chrome finished barrel. The youth was placed under arrest. Goodwin identified him as defendant.

The State called Laura Lipscomb, defendant’s sister, to testify. When she denied any remembrance of having seen defendant on the evening of August 10, 1970, she was declared a hostile witness. On cross-examination by the State she testified that she remembered being interviewed by Investigators Rinaldi and Corbett but could not remember telling them that she had seen defendant following the crimes at which time defendant told her that he had been wounded. Rinaldi and Corbett were then called. They testified that Ms. Lipscomb had told them that her brother had been shot in the hand.

Claude Bridges, a record clerk at the Cook County Jail, testified for the State that the medical intake sheet of defendant, dated September 8, 1970, indicates that there was a scar on his left index finger.

Homicide Investigator Clyde Craig testified for the State that at approximately 3:20 P.M. on August 10, 1970, he received an assignment to go to 159 North Cicero Avenue. When he entered the hardware store located at that address, he discovered a pair of sunglasses. About 10 feet beyond the glasses lay the body of Jerome Wells. There was a cash register located about 10 feet from Wells’ body. There were drops of blood on the cash register and on a dollar bill which was lying beneath it. Craig saw no blood between Wells’ body and the cash register. When he arrested Carl Lipscomb later that afternoon, he observed no injuries to his hands or fingers. He noted that Carl Lipscomb is about 5 inches shorter than defendant.

Donald Smith testified for the State that he was assigned to the Criminalistics Division of the Chicago Police Department and that his duties consisted of receiving and examining evidence to determine if it had been used in the commission of any offenses. It was his opinion that the .38-caliber bullets recovered from White and the body of Wells were fired by the .38-caliber revolver found in the Lipscomb apartment. The .22-caliber gun recovered from the apartment was a starter pistol and was incapable of firing bullets. The .22-caliber revolver seized when defendant was arrested was also tested. Although a positive determination that this was the same gun used in the shooting of Jerome Wells could not be made, it did have the same “class characteristics” as the weapon which fired the bullets recovered from the body of the deceased. This gun, which had been inventoried by the police department under a number different than that assigned the case at bar, was destroyed prior to trial.

Defendant chose not to testify on his own behalf.

OPINION

Defendant contends that he was not proven guilty beyond a reasonable doubt. We disagree.

Richard White testified that on the afternoon of the crime, on three separate occasions, defendant and his brother, Carl Lipscomb, entered the hardware store. White had opportunities to observe defendant for periods of up to 2 minutes in length from distances as close as 2 or 3 feet. White was able to describe in detail the clothes worn by defendant, the types of guns he was carrying and the difference in physical stature between defendant and his brother. We note that only one day after the holdup White positively identified defendant as the gunman from among several police photographs shown to him. It is the function of the trier of fact to determine the credibility of witnesses, and its finding of guilty will be disturbed only where the evidence is so unsatisfactory as to leave a reasonable doubt as to the defendant’s guilt. The testimony of even a single witness is sufficient to convict if it is positive and the witness credible. (People v. Hampton, 44 Ill.2d 41, 45, 253 N.E.2d 385.) Clearly, under this well established standard, the testimony of White is sufficient to sustain defendant’s conviction.

Moreover, the State has bolstered its case with the corroborative testimony of several other witnesses. Willie Jones, Sr., testified that he saw three young men run past him' down the alley away from the hardware store. One of these men he identified as Carl Lipscomb. Although his attention was not drawn to the faces of the other two men, he described the taller of them as wearing a yellow shirt; White testified that defendant was wearing a yellow banlon shirt. Willie Jones, Jr., testified that he saw defendant and his brother run into the Lipscomb apartment next door to his home and then leave a short time later. He described defendant as wearing an orange nylon shirt. A .38-caliber blue steel revolver recovered from the Lipscomb apartment was one of the weapons used in the shooting of White and Wells; a long-barrelled chrome-plated .22-caliber revolver, seized from defendant when he was arrested, bore the same class characteristics as the weapon that fired several of the bullets recovered from Wells’ body. White testified that defendant carried a dark, snub-nosed gun and a “silver” gun with a longer barrel. Homicide Investigator Craig testified that defendant is 5 inches taller than Carl Lipscomb. White described defendant as being the taller of the two holdup men. On the basis of this record defendant was proven guilty beyond a reasonable doubt. People v. Hampton, 44 Ill.2d 41, 253 N.E.2d 385.

Defendant next contends that the court below improperly restricted his cross-examination of White concerning White’s employment by the Cook County State’s Attorney. He argues that his interrogation of this key witness was so curtailed that he could not establish his possible bias. See People v. Soto, 64 Ill.App.2d 94, 212 N.E.2d 353.

We agree with defendant that the right of cross-examination is the core of the sixth amendment right of confrontation (Pointer v. Texas, 380 U.S. 400) and, accordingly, reasonable latitude must be given a cross-examiner to guarantee the fairness of the criminal justice process. (Smith v. Illinois, 390 U.S. 129; Alford v. United States, 282 U.S. 687.) We note, however, that the determination of what constitutes “reasonable latitude” lies within the sound discretion of the trial court, and only in a case of clear abuse of this discretion resulting in manifest prejudice to defendant will a reviewing court interfere. (People v. Gallo, 54 Ill.2d 343, 297 N.E.2d 569; People v. Nugara, 39 Ill.2d 482, 236 N.E.2d 693; People v. Halteman, 10 Ill.2d 74, 139 N.E.2d 286.) In the instant case defense counsel was able to question White regarding the duration of his employment by the State’s Attorney, the unit of the State’s Attorney’s office in which he worked, the identity of his supervisors there, the extent of his participation in the State’s Attorney’s activities directed against the Black Panthers and west side street gangs, and the fact that his duties included undercover assignments. In view of this extensive interrogation of White we believe that the fact that further questioning was not allowed on this matter did not constitute an abuse of discretion by the court below.

It is also contended that defendant was denied his right to confront witnesses against him when a ballistics expert was permitted to testify regarding tests he had ran on a .22-caliber revolver which had been destroyed by the police prior to trial. The weapon in question was seized from defendant when he was arrested for an unrelated offense and filed under a number different from that assigned to the instant case. Donald Smith, a police department firearms examiner, testified that subsequent to his testing of the weapon, it had been destroyed. While we do not condone the inadvertent destruction of evidence by the State, we believe that defendant was not so severely prejudiced as to necessitate reversal of his conviction. Smith stated that he could not reach a positive conclusion that this .22-caliber revolver was the weapon used in the shooting of Jerome Wells; rather, it could only be determined that this gun had the same class characteristics as the one used in the Wells’ murder. Defendant was given full opportunity to question Smith as to his qualifications and the test procedures he used to reach his conclusions. Although it cannot be denied that the destruction of the gun precluded defendant from conducting his own tests, the record before us is bare of any request by him for its production for this purpose. In view of the overall strength of the case against defendant we find that the admission of Smith’s testimony was harmless beyond a reasonable doubt. People v. Gill, 54 Ill.2d 357, 297 N.E.2d 135; see also Chapman v. California, 386 U.S. 18.

The State attempted to prove that the source of the blood found on the cash register and on the currency lying beneath it was from a hand injury incurred by defendant during the course of the robbery and not from the wounds suffered by the deceased. A photograph of Wells’ body was introduced purporting to demonstrate that his wounds could not possibly have caused the bloodstains. There was no direct evidence that defendant was wounded during the holdup and therefore the admission of this photograph was improper. (Cf. People v. Speck, 41 Ill.2d 177, 242 N.E.2d 208; People v. Jenko, 410 Ill.478, 102 N.E.2d 783.) However, in view of the overwhelming weight of the State’s corroborated eyewitness evidence, we consider this to be harmless error beyond a reasonable doubt. Chapman v. California; People v. Gill.

The State claims that there was evidence that defendant was wounded during the incident. The State called Laura Lipscomb, a sister of defendant, to testify to a conversation she allegedly had with him on August 10, 1970, concerning his freshly bandaged hand. .When examined by the State, Ms. Lipscomb claimed she could not remember the August 10 conversation with her brother. Thereupon the court declared her to be a hostile witness. When cross-examined by the State, she remembered being interviewed by police officers but could not recollect what she had told them. The State then called Detectives Corbett and Rinaldi, ostensibly for purposes of impeachment. They related that Ms. Lipscomb told them of an August 10 conversation with defendant concerning a hand wound which he claimed was caused by a stray bullet.

Defendant asserts that the court below erred in declaring Ms. Lipscomb a hostile witness and that this error was compounded by the admission of the hearsay testimony of the police officers in the guise of impeachment.

Supreme Court Rule 238 (Ill. Rev. Stat. 1971, ch. 110A, par. 238) provides that a hostile witness can be questioned by the party calling him as if he were under cross-examination. A determination of this nature is clearly within the sound discretion of the trial court. (See People v. Siciliano, 4 Ill.2d 581, 123 N.E.2d 725.) However, a witness thus declared hostile may be asked leading questions solely for the purpose of refreshing his recollection and not for impeachment. (People v. Gallery, 336 Ill. 580, 168 N.E. 650.) Where, as in the instant case, the witness continues to claim a lapse of memory but says nothing which tends to aid defendant, she cannot be impeached by the State. (Cf. McCray v. Illinois Central Railroad Co., 12 Ill.App.2d 425, 139 N.E.2d 817.) We find, however, that this error was also harmless beyond a reasonable doubt under Chapman v. California.

Defendant next contends that the State’s closing argument was improper in that it implied that defendant’s friends and relatives engaged in witness intimidation. Having examined the record, we can find no such implication in the State’s argument.

Grounding his assertion on section 1 — 7(m) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 1 — 7(m) ), defendant contends that since his convictions for the armed robbery and murder of Jerome Wells resulted from the same conduct, the conviction and sentence for armed robbery must be reversed. In People v. Johnson, 44 Ill.2d 463, 256 N.E.2d 343, the Supreme Court provided us with the relevant standard for applying this statutory provision to the facts of a particular case. There it was held at page 475:

“However proper the application of the * * * statutory provisions may be in cases which would involve double punishment for the same conduct where the same identical evidence is the basis for the finding of guilty of both charges, we believe they were not intended to cover situations in which more than one offense arises from a series of closely related acts and the crimes are clearly distinct and require different elements of proof.”

Viewing the record of the instant case we find that the murder and armed robbery were, in fact, founded upon wholly separate and distinct criminal acts performed by defendant. After wounding White, defendant proceeded to shoot Wells nine times. Only after Wells had fallen to the floor, fatally wounded, did defendant open the cash register. At this point the second criminal act, armed robbery, was committed. The conviction and sentencing of defendant for these two crimes was, therefore, proper.

Finally, defendant argues that the imposition of a sentence of from 100 to 150 years for the murder of Wells was excessive. It is left to the discretion of the trial court to fix punishment. (People v. Schmidt, 10 Ill.2d 221, 139 N.E.2d 726.) Taking cognizance of the lower courts superior position to make a sound determination as to sentencing, we are reluctant to interfere unless the sentence falls without the limitations set by statute or manifests a substantial departure from the spirit of our constitution. (Cf. People v. Bricker, 131 Ill.App.2d 917, 267 N.E.2d 761; see generally Ill. Const., art. I, sec. 11.) In view of the extreme brutality of this crime, we do not feel that the court below abused its discretion in sentencing defendant to a term of from 100 to 150 years for the crime of murder.

For the foregoing reasons the judgment entered below is affirmed.

Affirmed.

SULLIVAN, P. J., and LORENZ, J., concur.

       Ill. Rev. Stat. 1971, ch. 38, par. 1 — 7(m) states:
      “(m) Consecutive and Concurrent Sentences.
      When a person shall have been convicted of 2 or more offenses which did not result from the same conduct, either before or after sentence has been pronounced upon him for either, the court in its discretion may order that the term of imprisonment upon any one of the convictions may commence at the expiration of the term of imprisonment upon any other of the offenses.”


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jimmie Hilliard et al., Defendants-Appellants.
    (No. 59334;
    First District (2nd Division)
    April 16, 1974.
    James J. Doherty, Public Defender, of Chicago (Harold A. Cowen and John M. Kalnins, Assistant Public Defenders, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and. John F. Brennan, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

STAMOS, J., took no part.


author:
      Mr. JUSTICE CRAVEN
      Mr. JUSTICE TRAPP,

text:
      In re Petition to Levy Assessments—(Commissioners of Saline Branch Drainage District, Petitioners-Appellees, v. Maryrose Groth Pilcher et al., Objectors-Appellants.)
    (No. 12217;
    Fourth District
    April 25, 1974.
    TRAPP, J., dissenting.
    Hatch, Corazza, Baker & Jensen, of Champaign (Harold A. Baker, of counsel), for appellants.
    Charles W. Hendrix, of Champaign, for appellees.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

This appeal is from a proceeding under the Illinois Drainage Code in which the commissioners of the Saline Branch Drainage District sought to levy assessments for annual maintenance work and additional drainage work. Following a hearing on the matter, the trial court found the proposed improvements were necessary and the court entered a judgment on the assessment roles of the drainage district. The objectors at the hearing appealed.

The issues on appeal are: whether the trial court erroneously restricted evidence of and gave too little consideration to esthetic, ecological and environmental consideration in passing upon the necessity and advisability of the proposed drainage work; and whether the trial court erroneously ruled that the drainage district had recorded title to an easement that amounted to a right-of-way in the land adjacent to the drainage ditch involved in the project.

The commissioners of the Saline Branch Drainage District filed a petition to levy additional assessment and to establish and levy annual maintenance assessment. The petition recites that the drainage district is comprised of approximately 11,320 acres and is adjacent to 981 subdivision lots; that the last assessment in the district was levied in 1935 with all assessments on the role then filed having been paid. The petition noted that it was necessary for the proper preservation of the drainage system that additional work be done on the drainage ditch at this time and that such annual maintenance as required in the future be done. The commissioners recited as reasons for the need for the work the alleged fact that the ditch was now “obstructed by debris, silt, broken tiles, aquatic growth, stumps and dead fall to such an extent that the hydraulic capacity and efficiency are greatly reduced * * *.” The petition stated that in order to remedy the mentioned condition, the ditch in question should be cleared, and certain trees and vegetation growing next to the ditch should be removed. The petitioners estimated the cost of this work and the annual maintenance to be approximately $125,000 and $5,000, respectively.

Objections were formally filed opposing the petition. The objectors contended that the proposed plans were vague and uncertain in nature and extent concerning the work to be done on the ditch, and that it was questionable whether the benefits, if any, would exceed the cost of such work. The objectors alleged that the petition failed to contain sufficient information to ascertain if there were viable alternative plans that could be implemented in the renovation of the drainage ditch. The objectors stated that the proposed plan failed to consider such factors as a natural beauty and recreational potential of the area; and that the destruction of one of the last wooded stream areas in Champaign County is a substantial factor in determining whether the proposed work is necessary or desirable. The objectors contended that the proposed plan would not solve the existing problem and that among other things it would result in additional erosion and landslides due to the deepening of the drainage ditch, thereby posing a threat to the property of abutting objectors.

On July 14, 1970, the hearing on the petition was commenced. The petitioners established that they had conducted a recent investigation of the condition of the drainage ditch. The results of this investigation showed that at some points the flow capacity of the ditch was only two-thirds of its 1937 capacity; but other portions of the ditch were free of debris. All petitioners’ experts agreed that the ditch should be cleared of all trees and brush that were growing in the bed of the ditch, and that the bank areas within the right-of-way of the ditch should also be cleared; and that herbicides should be used to discourage regrowth of certain undesirable forms of vegetation.

It was also elicited through petitioners’ witnesses that the present condition of the drainage ditch was such that an ordinary rainfall occasionally resulted in flooding over a portion of the district, including valuable farmlands. Also, the Champaign-Urbana Sanitary District’s main treatment plant, which is located on the bank of the ditch, has been flooded several times when the drainage ditch overflowed its banks. As a direct consequence of this flooding, raw sewage flowed directly into the ditch. An engineer of the sanitary district contended that once the ditch was cleared of its debris the overflow problem would be abated. If the debris was not cleared from the ditch, it would be necessary for the sanitary district to build dikes and install diesel pumps or a storm sewer in order to avoid serious health hazards resulting from the dumping of raw sewage into the ditch. The sanitary district’s engineer stated that the district agreed to pay approximately $60,000 of the cost of clearing the ditch.

The objectors called Professor Donald L. Walker, Jr., to testify. He stated that he was a professor of landscaping architecture at the University of Illinois, and that he had prepared an alternative plan for clearing the ditch which would entafl the actual clearing of the bed of the ditch and the thinning of trees on the bank by the process of selective removal. He contended that his plan would increase the flow of the ditch and have the advantages of minimizing the erosion and eliminate excessive brush growth, yet preserve the natural habitat for wildlife and retain the physical visual beauty as well as the potential economical value of the trees. He admitted that his plans would eliminate the use of a dragline as proposed by the petitioners because of the remaining trees on the bank would make such an operation impossible. His plan also eliminated the use of herbicides because he contended that they were pollutants. However, he admitted that if properly used, the herbicides were not injurious to man or animal.

Mr. John Goodell, a registered civil engineer, testified for the objectors that he had worked on farm drainage problems for a number of years and was a principal engineer for several drainage districts, including the Beaver Lake Dam District immediately upstream from Saline. He testified that he was familiar with both the Walker and the petitioners’ proposals. He believed that the best plan would include elements of both of these proposals. He contended that a selective clearing as postulated by Professor Walker was probably more desirable than a total clearing as proposed by the petitioners. He did admit that the Walker plan would unduly restrict a contractor’s right of access and that this particular facet of the plan should be changed. Also, he stated that a dragline should be used to drag debris out of the ditch, a consideration that was specifically rejected by the Walker proposal.

The objectors also called a Mr. Willett Wandell whose testimony concerned the esthetic and erosion control value of the trees along the drainage ditch. He did testify that he believed the use of herbicides was not dangerous and that it was necessary to control the regrowth of brush once it was removed.

The objectors then attempted to call certain witnesses who would testify concerning the ornamental and recreational value of the trees in question. The testimony was objected to and an offer of proof was made over the objection. The trial court excluded the testimony.

On August 3, 1970, the trial court filed a memorandum opinion in which it ruled the proposed work was necessary and advisable, and essentially adopted the petitioners’ proposals; but the petitioners’ proposals were subject to the clear proviso that in the course of the operation they should attempt to preserve as many trees as possible that would not thwart tire overall purpose of proper, adequate and efficient drainage. The objectors filed a post-trial motion on September 1, 1970. The motion was heard and denied. On November 16, 1970, the objectors filed a notice of appeal. This court granted the petitioners’ motion to dismiss the appeal for want of a final appealable order.

On August 19, 1971, the petitioners filed a petition for approval of the additional assessment pursuant to the original order of August 27, 1970. The hearing on the petition was set for September 28, 1971, but the hearing was subsequently continued. On May 19, 1972, notice of the amended assessment roll was published and mailed to interested parties stating that a hearing would be held on June 7, 1972. The objectors filed an interrogatory to the petitioners inquiring precisely what land was excluded from the assessment role as land occupied by the district by virtue of its right-of-way, and specifically the date and proceedings in which the district acquired or purported to acquire such right-of-way.

On December 6, 1972, a hearing was held concerning the extent of the district’s right-of-way. The objectors argued that the drainage district had no rights in the purported right-of-way; moreover, that the district was limited to an easement that extended from berm to berm in the ditch. The district maintained it acquired the right-of-way upon its formation in 1908, and that the order establishing said right-of-way was affirmed in a 1935 order when the previous assessment for work on the ditch was ratified. The objections were overruled by the trial court and the jury trial on the assessment role was set.

On January 8, 1973, the jury trial commenced and a verdict was returned in favor of the petitioners. The trial court entered judgment on the verdict on January 11, 1973. The court issued a memorandum opinion on the written objections finding that the petitioners had acquired the right to the land adjoining the ditch by virtue of the 1935 order confirming the petition for additional assessments. On February 1, 1973, the objectors filed a notice of appeal from the August 3, 1970 judgment, ordering the levy of additional assessments, and appealed from the judgment entered on the verdict approving the assessment roles prepared pursuant to the order of August 3, 1970.

The objectors urge that the trial court rejected various proposals advanced by them concerning the preservation of the environment and conservation of resources in deciding which renovation plan would benefit the land most and cost the land the least. Furthermore, the trial court allegedly improperly excluded testimony of the witnesses Bundy and Sikora dealing with the ornamental and recreational value of the many trees that were along the drainage ditch. They contend that the trial court erroneously limited witness Goodell’s testimony concerning certain potential recreational value of the Saline ditch itself.

The Illinois Drainage Code (Ill. Rev. Stat. 1969, ch. 42, par. 1 — 1 et seq.), at section 4 — 24, requires:

“If, at the conclusion of the hearing, the court finds that it is not necessary or advisable to construct any of the proposed work or to make any of the proposed changes or to exercise any of the proposed powers or to levy any proposed assessment, or finds that the cost thereof to the lands and other property in the district will exceed the benefits thereto, then the court shall dismiss the petition. If the court finds that it is necessary or advisable to do one or more of the things proposed and that the benefit resulting therefrom to the lands in the district exceed the cost to such lands, then the court shall also find (a) the things which should be done, (b) the method by which the things shall be done, (c) the probable cost thereof, (d) whether an assessment should be levied or increased, (e) the amount of any assessment or additional assessment or new or increased annual maintenance assessment to be levied, and (f) any other matters which the court deems pertinent, and shall order the things to be done and the levy of an assessment in accordance with its findings. * * *”

The court must first determine whether or not it is advisable to engage in the proposed work. In so doing, the court must balance certain interest to determine whether the cost to the land and other property in the district will exceed the benefits. This requires the court to take into consideration all viable alternatives presented to it at the hearing, and if necessary and feasible, incorporate these alternatives into a homogeneous renovation program. It is also clear that environmental factors are relevant and should be considered by the court in balancing the costs against benefits. The reality of serious environmental consequences resulting from the completion of proposed work to be done on a drainage ditch has always been a relevant factor and must be considered. Since the July 14, 1970, hearing on the “Petition to Levy Assessment”, the General Assembly has clearly amplified that factor with an amendment to section 4-24, which states:

“ * * * In determining whether the proposed action is necessary or advisable and in determining the cost thereof, the court shall consider environmental values and amenities and may receive testimony from persons especially qualified by reason of training or experience in biological sciences, community planning, natural resource development, conservation, landscape architecture and similar fields. * * * ” ch. 42, sec. 4-24, as amended by P.A. 78-495. Ill. Rev. Stat. 1973.

Once the court determines that the work is advisable, then the court must find among other things (a) the things which should be done; and (b) the method by which the things shall be done. That is, the court should find what must be done and then determine with particularity and unambiguously the method of completing the things which shall be done.

The trial court in this case found that the proposed work was necessary and advisable. The record establishes that it did, in fact, balance the various competing interests off against one another in making its determination and finding that the benefits accruing to the land outweighed the cost. The record also reveals that the trial court considered aU the alternative plans submitted by the litigant, including the environmental and conservation ramifications that petitioners’ plan might have had upon the district as contended by the objectors. Moreover, the trial court heard testimony concerning the recreational and aesthetic value of the trees that were growing adjacent to the drainage ditch.

However, the court’s order did not completely comply with the requirements of section 4-24. It failed to clearly and unambiguously state the method by which the proposed work was to be accomplished. That portion of the order in question states:

“4. That the trees, underbrush, debris, broken tile, aquatic growth, stumps and dead fall should be removed from the slopes of the bank of the stream and from the stream itself as well as from the spoil banks of the ditch within the district’s right of way in accordance with the detailed plans on file and introduced into evidence dated February 1, 1970, but that the Commissioners should retain aU trees possible which do not thwart the overall purposes of proper, adequate and efficient drainage.”

The plan referred to in the court order consisted of a four-page summary of an evaluation of existing conditions, a synopsis concerning the need for the project, the recommendations for the project and estimated cost, as well as an evaluation of the benefits accruing to the drainage district as a whole. Mr. Wilson, the petitioners’ engineer at the July 14, 1970, hearing, explained the essence of the plan as follows. The district should undertake the clearing of the ditch channel of all trees, brush, junk and other debris insofar as necessary to clear the spoil bank areas within the legal right-of-way of the ditch by cutting off and burning and otherwise disposing of the growth. Wilson went on to say that he recommended that all stumps and exposed roots, as well as certain grasses, be treated with the herbicide that would discourage the regrowth of this particular type of vegetation. Essentially, Mr. Wilson advocated a near-total defoliation of the spoil bank area of the drainage ditch.

Notwithstanding the import of the plan, the trial court specifically provided that the commissioners were to retain all trees possible which did not thwart the overall purpose of proper, adequate, and efficient drainage. This proviso is vague and, in the light of Mr. Wilson’s testimony, contradicts the plan as proposed. The approved plan and the conservation of trees at least within the right-of-way (35 feet on each side of the ditch) are mutually exclusive. The court, by reason of the quoted statutory provision, is required to determine that which is to be done and the method of doing it. Upon this record, the order must deal with this issue with a great deal more specificity.

As to the court’s ruling on the inadmissibility of the testimony concerning the dollar ornamental value and recreational value of the trees, we find that the ruling did not amount to prejudicial error. Ample testimony was offered and heard dealing with the recreational value of the trees as well as their aesthetic and environmental value. The court had before it sufficient testimony concerning matters it must consider in making a final determination.

The objectors argue that the drainage district engineer Ralph Williams made various estimates of the capacity of the Saline Creek which were not supported by the facts in the record, and thus could not be used by the trial court to support its ultimate findings. The rule is clear that one test of admissibility of the opinion of an expert witness is whether there is sufficient evidence in the record to act as a foundation for the expert’s opinion. When such a foundation is lacking and the opinion of the expert amounts to speculation and conjecture, it therefore should be excluded. (Abramson v. Levinson, 112 Ill.App.2d 42, 250 N.E.2d 796.) The trial court’s ruling in this case permitting Mr. Wilson to testify on the matters in question was not erroneous. There was ample data presented at the proceedings which would permit of the opinion testimony.

Finally the objectors argued that the trial court erroneously held that the title to easements and right-of-ways adjacent to the drainage ditch was vested in the petitioners. The objectors contend that there is no judgment of eminent domain of record nor an easement of right-of-way of record granting to the petitioners any rights in the land abutting the drainage ditch. Therefore the petitioners have no rights of entry onto the lands adjoining the drainage ditch.

This issue directly relates to an order rendered on February 20, 1935, confirming the petition for additional assessments filed by the Saline Branch Drainage District pursuant to the Illinois Drainage Code then in effect. (Smith-Hurd Rev. Stat. 1933, ch. 42, par. 1 et seq.) The trial court found that the 1935 order was issued by a court with jurisdiction over the subject matter — notwithstanding the fact that the court was sitting as a probate court. The order was entered in conformity with the relevant statute then in effect (Ill. Rev. Stat. 1933, ch. 42, par. 19) that required the impaneling of a jury and that notice be given to all interested parties. Also the order complied with section 39 of the Drainage Code Smith-Hurd Rev. Stat. 1933, chapter 42, par. 39, in which the method for obtaining additional assessments is established. Section 39 provided in part:

“* * * The damages assessed under this Act in favor of any tract or tracts of land in such district, shall be in full compensation to the owner thereof, their heirs or assigns, for the perpetual right-of-way, as located by the commissioners over such lands or any ditch or ditches, open or covered, levee or other work including the right of the commissioners, their employees or contractors with teams, tools or machinery to enter upon such lands, and construct such work, and if necessary, to repair or enlarge the same; * * (Emphasis supplied.)

The trial court found the court required that damages were to be paid to those persons giving right-of-ways to the district. Finally, the trial court found that the extent of the right-of-way granted in 1935 was limited to the specifications as set forth in the 1935 petition.

The findings of a court that it has jurisdiction and that the statute has been complied with is not conclusive if the record establishes the court did not have jurisdiction over the subject matter in a drainage case; therefore, its attempted judgment or order is accordingly void. In re Petition to Annex Certain Unincorporated Territory, 65 Ill.App.2d 152, 212 N.E.2d 507.

The record in this case, including the test of the 1935 order, reveals that the court that issued said order had jurisdiction over the subject matter. Likewise, proper notice was given to the interested parties, and damages — including those incurred as a result of taking certain right-of-ways — were assessed and paid as required by statutes then in effect. Accordingly, we find that the trial court’s findings and interpretations of the rather confusing statutory scheme in question was not erroneous. It is clear that the objectors’ predecessors in interest were given notice of the 1935 hearing and had ample opportunity to lodge their objections. Moreover these individuals were paid just compensation for the right-of-ways taken by the district. In short, these facts bar the objectors’ collateral attack of the 1935 order.

Accordingly, the order of the circuit court of Champaign County providing for the levying of additional assessments is vacated and this cause is remanded to that court for further proceedings consistent with the views herein expressed. The judgment approving the assessment roles is affirmed.

Affirmed in part, vacated in part, and remanded with directions.

SIMKINS, J., concurs.

Mr. JUSTICE TRAPP,

dissenting:

The orders of the trial court should be affirmed without remand.

The hearings to determine the work to be done and the method of doing such work were concluded in the court’s ruling made in August, 1970. The amended assessment roll was filed in 1972. As objections to such assessment roll, the objectors sought to renew their objections to the work to be done as in the matters previously heard and, in addition, to challenge the fact of a right-of-way for maintenance purposes held by the district.

Upon a hearing of objections to the assessment roll, the two issues presented are: (1) Was the property of a particular owner assessed more than it was benefited, and (2) was the property of a particular owner assessed more than its proportionate share of the cost of the entire improvement. (Commissioner of Drainage District No. 1 v. Goembel, 383 Ill. 323, 50 N.E.2d 444; Lewis Drainage District v. Melville, 388 Ill. 526, 58 N.E.2d 580.) This record does not disclose any evidence whatever introduced upon such issues by the objectors. Ill. Rev. Stat. 1971, ch. 42, pars. 5 — 10 and 5 — 7, provide that the assessment roll shall be prima facie evidence on all issues as to the amount of benefits, damages and compensation. Upon the admission of the assessment roll into evidence, the burden shifted to the objectors to offer evidence as to the benefits and assessments of their respective parcels of land. In re Petition of Commissioners v. Dennis, 58 Ill.App.2d 466, 207 N.E.2d 313.

The evidence of record supports the conclusion of the court made in 1970 that the restoration of the drainage facility to its condition of almost 40 years ago was necessary, and that the scope and method of the plans proposed were in accord with accepted engineering practice and procedure. An engineer, testifying in behalf of the objectors, stated that certain proposals by objectors for the manner of doing the work would not be readily bid, and that the other proposals did not adequately permit the repair and restoration of field tile and drains in the rural portion of the district.

The objectors introduced no evidence tending to describe how their respective parcels of land would be adversely affected by the proposed method of work. It cannot be ascertained from the record whether or not their respective parcels have trees to be removed from the right-of-way. The record does show that the drainage authorities have met with landowners concerning specific problems in the method of doing the work related to specific parcels of land, and have stated that such would be done with other landowners.

The effect of much of the testimony offered in behalf of objectors would be to take from the district or diminish the beneficial use of the easement for purposes of repair and maintenance heretofore acquired under the statutory authority existing at the time of the organization of the district, and now found in Ill. Rev. Stat. 1969, ch. 42, par. 4 — 17.

The statute provides that:

“The petition shaH contain the following * * *: (a) a general description of any work or changes proposed to be undertaken * * V (Ill. Rev. Stat. 1969, ch. 42, par. 4 — 19.)

Similarly, in par. 4 — 24, the statute provides that the order of the court found:

“(b) the method by which the things shall be done, * * *."

The effect of the remanding order is to require the trial court to hold hearings and make findings described in detail for the removal of debris from the stream and the clearing of the right-of-way upon each parcel of land on both sides of the 13-mile channel of the drainage facility. It is clear that the statute does not contemplate or provide for such an order as is here entered.


author: Mr. JUSTICE ALLOY.

text:
    James Faber, Plaintiff-Appellant, v. General Telephone Company of Illinois, Defendant-Appellee.
    (No. 73-183;
    Third District
    May 10, 1974.

      Rehearing denied May 29, 1974.

      Peter F. Ferracuti, of Ottawa (Bradley Schwager, of counsel), for appellant.
    Daniel K. Russell, of Johnson, Martin & Russell, of Princeton, for appellee.
   Opinion by

Mr. JUSTICE ALLOY.


author: Mr. JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Lee Williams, Defendant-Appellant.
    (No. 72-340;
    Second District
    May 3, 1974.
    Anthony Peccarelli, of Wheaton, and Barclay, Damisch & Sinson, of Chicago, for appellant.

      William V. Hopf, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

After a hearing on a post-conviction petition, defendant was denied relief. He appeals contending that failure to afford him a preliminary hearing at his original trial deprived him of a substantial constitutional right.

Defendant was arrested on August 23, 1971. Complaints charged him with burglary and possession of a stolen motor vehicle. Bail was set the following day but, unable to post bond, he was incarcerated and a public defender appointed to represent him. The date for preliminary hearing was continued until September 8, 1971.

There is no record of defendant or his counsel being present on September 8, but when defendant’s case was called, the assistant State's Attorney remarked, “That is the one that you continued for Mr. Zamis,” and the court responded, “Yes. September 15th.” Thereupon the hearing was continued until September 15, 1971. On September 9, 1971, defendant was indicted (based upon the same acts as those charged in the complaints) for burglary and two counts of theft.

Proceedings under the complaints and indictment were continued at various times and, on September 20, 1971, the defendant was arraigned and pled not guilty to the charges brought by indictment. Charges brought by complaints were dismissed on September 22, 1971. On November 1, 1971, defendant pled guilty to that count of the indictment which charged him with burglary and the State dismissed the two counts charging theft. Sentenced to a term of 18 months to 4 years, defendant was paroled on April 12, 1973. No issue is raised concerning the court’s admonishments under Rule 402 prior to the acceptance of defendant’s plea of guilty.

The portion of article I, section 7 of the 1970 Illinois Constitution, relevant here, states:

“No person shall be held to answer for a crime punishable by death or by imprisonment in the penitentiary unless either the initial charge has been brought by indictment of a grand jury or the person has been given a prompt preliminary healing to establish probable cause.”

It is defendant’s position that when a person is initially charged with a felony by way of complaint, due process, under the quoted constitutional provision, requires that, unless expressly waived, a judicial determination of probable cause must be made prior to a finding of probable cause by a grand jury; that unless this procedure is followed, defendant’s constitutional right to a preliminary hearing will not be given effect.

The manner of establishing probable cause can be by a grand jury or by a preliminary hearing. The essential consideration is that probable cause be determined promptly by either method. In People v. Hendrix, 54 Ill.2d 165 (1973), a complaint initially charged the defendant with a felony; he was indicted 12 or 13 days later without a preliminary hearing. There, at page 169, the court held:

“What is a prompt preliminary hearing must, of course, depend upon an appraisal of all of the relevant circumstances, and in this case it does not appear that there was any violation of the defendant’s constitutional right to a prompt preliminary hearing.”

In the present case, defendant’s preliminary hearing was scheduled for September 8, 1971, at which time the hearing was continued at the request of defendant’s counsel. The following day (within 17 days of his arrest) defendant was indicted. Under these circumstances, we find that defendant was given a prompt determination of probable cause and was not, therefore, deprived of a substantial constitutional right.

For the reasons stated, the judgment is affirmed.

Judgment affirmed.

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


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Walter B. Smith et al., Defendants-Appellants.
    (No. 12146;
    Fourth District
    May 2, 1974.

      Paul Bradley, Deputy Defender, of Chicago (Robert E. Davison, Assistant Appellate Defender, and Theodore M. Becker, Senior Law Student, of counsel), for appellants.
    Richard J. Doyle, State’s Attorney, of Danville (John R. McClory, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

Defendants were convicted of rape and burglary and sentenced to concurrent terms of 30-60 years and 5-15 years respectively. For reversal they urge, (1) insufficiency of proof, (2) denial of the effective assistance of counsel, (3) denial of their motion to suppress evidence, and (4) remarks by the court and arguments of counsel. They question, too,' the severity of the sentences and request our interposition in reducing them.

That the burglary and rape occurred is not questioned. Questioned is whether defendants were responsible. There is no direct evidence, as the victim could not identify her assailants, for not only was it at night when she was alone, but a blanket had been thrown over her head. The house was ransacked and she was tied with an alarm clock cord. One assailant left and the one stayed behind left when a car horn honked in front. Upon untying herself she noticed the time to be around 3:15 A.M.— the clock having stopped. She immediately called her sister and the police, and upon her return from the hospital she discovered her billfold containing personal pictures, some silver certificates and Kennedy half dollars were missing. Entry was gained by removing a screen from her sister’s room.

Unbeknownst to her assailants their activities outside of her house had not gone unnoticed even at that early hour. A neighbor had been awakened around 2:30 by music and saw a light blue car with an Illinois license number parked near his house. He saw two men alight from the car and walk towards the victim’s home. Later he saw a man put something in the trunk of the car, and walked over and asked him what he was doing. He had already taken the license number. FoUowing his inquiry, that person, identified at the trial as the defendant Clayton, drove away towards the victim’s house and the neighbor heard the car horn honk and a door slam. He hastened over in time to see the same car with two persons driving away. Another neighbor, upon being awakened by the first one, observed the same events. He likewise identified Clayton.

The license number of the car was broadcast over police radio with a description after the victim had given the alarm. An officer observed the car in a parking lot of a housing project where the mother of one of the defendants lived, his observation being based upon a report by another officer that the suspect car had been located and that its occupants had gone into the adjacent house. The officer noted that the radiator was stiU hot, went into the house which was lighted, and found and arrested the defendant Smith. The arrest was based upon the identification of the officer who had first found the car and radioed its location to the arresting officer. This was shortly after 4 A.M. on the day in question. Clayton was arrested some 13 hours later and had on his person two Kennedy half dollars, a silver certificate and the keys to the car— its owner testified that there was only one set. Another witness testified that both defendants came to her apartment around 3:30 A.M. “looking afraid and sweating” to talk to the owner of the car. But he was drunk and couldn’t be roused. Defendant Smith was heard to say by this witness, “We’ve got to split, Man.” They left with this witness observing both of them driving away “going very fast”. Incidentally, Clayton was present when Smith was arrested but he failed to give his correct name.

Prior to the arrest of Clayton in the late afternoon the police had been alerted by this witness as to the events just described. The photographs taken from the victim’s wallet were recovered in the area of this witness’ house, and though torn up, were so identified. Latent fingerprints were found on the screen removed from the sister’s bedroom, and an expert found some 12 similarities between them and those of Clayton. This identification was less than positive, as such things go, and though objected to, was admitted. Of course, there was no positive identification that the silver certificates or the Kennedy half dollars were the very same ones stolen from the victim’s home.

Shortly after the victim gave the alarm, her bed clothing was taken from her room by the police and hair samples collected. These compared structurally — “morphologically”—as to color and characteristics similar to both defendants and the victim. Other tests relating to blood on the underclothing of one of the defendants which was the same as that of the victim — B, while the blood grouping of the defendants was O.

The defense was alibi and both defendants testified as to their whereabouts. Clayton testified that he came to have possession of the keys after Smith’s arrest, having taken the same from a table where the latter was arrested in order to get the car released from the police pound. A question was raised to the propriety of defendant Smith’s mother testifying as she had violated the exclusion order and had been in the courtroom during the trial. The court announced in the jury’s presence that she would not be allowed to testify, then relented, but she testified to nothing really germane to anything including the alibis, hence any discredit to this witness occasioned by the court’s announcement, went for naught. Although Clayton testified, as we have seen, that he picked up the keys to the car from a table, he had told the police at the time of arrest that he didn’t know where he got them.

This brief recital of the evidence — with much left out — lays to rest pretty well the argument that there was insufficient evidence on which to bottom the convictions. True, as we have said, there was no direct proof — it is all circumstantial — but the pieces fit together. Obviously, no one or more of the circumstances standing alone would be enough. But, if we take each one in its context, we have, as they say, a totality of facts, from which very reasonable inferences could be drawn that the defendants did the deed or deeds they were charged with. Again, briefly, an automobile is noticed in the early morning hours parked close to the house of the victim; two men are seen walking towards her house; the license number is noted; one man returns and is accosted as to what he is doing there, having been seen to put something in the trunk of the car — his reply was that he was helping his brother get a car started in the next block; he drives off, stops near the victim’s house, a horn honks, a door is slammed and the car leaves but is next observed in another section of the city adjacent to a house in which both defendants are present. In the meantime, the victim has been twice raped, her house ransacked, one assailant leaves, the next leaves after a horn honks, her billfold is gone along with some Kennedy half dollars and silver certificates. Fragments of some pictures in the wallet are found near the house where both defendants were observed and Clayton when arrested has the keys to the same car, and matching half dollars and a silver certificate. On top of all this we have the neighbors identifying one of the defendants as one of two persons who were in the car during the early morning hours of the day in question and who walked over in the direction of her house, and then returned, driving away, followed shortly by a honking horn and slamming door. Without more, these are circumstances which provide a reasonable hypothesis of guilt and do not, as defendants argue, provide a reasonable hypothesis of innocence, or rather, do exclude any reasonable hypothesis of innocence. True, from each single fact there is an hypothesis of innocence, but from all the facts — the totality — we can safely say, we think, that there is no hypothesis of innocence that can be characterized as reasonable. If the jury had chosen to disbelieve the State’s witnesses that is one thing — then there would have been insufficient credible circumstances on which to predicate guilt. On the other hand, if they chose, as they apparently did, to believe the witnesses, at least as to the salient circumstances, it was certainly their prerogative, and if so the proof was there on which to fasten guilt. To argue, as defendants do, that these facts are incredible, leaves us with the only answer possible, that such determination is not for us but for the jury. A paucity of circumstances we can weigh and find them wanting on our scales, but we cannot and will not weigh the very credibility of the witnesses who testified and therefore the facts they mouth, except in the most extraordinary circumstances.

In our narration and in coming to our conclusion, we have not applied as an overlay to these circumstances the scientific proof. While certainly not absolute as that term is used in scientific circles, the hair comparisons, the blood groupings, and the fingerprint comparison were admissible and the weight accorded them up to the jury. But triers of the facts here had enough to go on whatever view they took of the expert testimony, and they likewise, in our opinion, had the right to disbelieve the alibis. The parameters of responsibility accorded to a jury in a criminal case permits them to disbelieve witnesses and if it turns out, as it must have here, that they chose to view the alibi testimony as incredible, and the State’s evidence as credible, then such choice by them is simply a reaffirmation of what our system permits juries to do. We conclude, that the evidence was more than ample on which a jury could conclude that the defendants did burglarize and rape the victim’s habitation and person.

It follows from our recitation that the arrests were lawful and, if so, that which was seized and taken thereafter was lawful. The evidence objected to consisted of physical evidence taken from the defendants after the arrest such as fingerprints, combings of hair and clothing, and keys and currency from Clayton. The evidence, as we have said, was more than sufficient to furnish the basis for probable cause for the arrests. This point therefore need not detain us and we conclude that the court was right in denying the motion to suppress these items of evidence.

Complaint is made here that the public defender appointed to represent both defendants betrayed the best interests of his clients, and particularly Clayton, by arguing, in essence, that if anybody was guilty, it was Clayton and not Smith. We are told that counsel for both found it necessary to try to “sell off” one defendant in an attempt to save the other. It needs no citation of authority that the one sold off’, if such fact is true, has been denied the effective assistance of counsel — a right guaranteed to all. After all, where there are antagonistic defenses, we do not permit the State to sit back and watch the defendants convict each other, or as is asserted here, watch one convict the other to save himself.

In our analysis of this point, we must of needs start off with an overriding and inexorable proposition — the defense of each defendant was the same, that is, neither did it and neither said the other did. In their brief they point the finger of guilt at the owner of the car — arguing that such a hypothesis is reasonable and if it is, such also redounds to their benefit in that it provides them with a reasonable hypothesis of innocence. But such is not the case, in our view of the evidence. Consonant with the sublime lack here of any disparity as to defenses is the rule in Illinois that defendants jointly indicted should be tried together and nowhere that we know of is there is a requirement that a given number of defendants must equal a like number of attorneys representing them. Obviously, an attorney who represents more than one defendant should and indeed must devote his efforts to them equally and without deprecating one while exalting the other. Our reading of the record leaves us with the distinct impression that the attorney representing them did so vigorously and without giving an edge to either. It was not his fault that the evidence was stronger against Clayton. Multiple defendants, almost by definition, will produce disparities, qualitatively and quantitatively, as to the proof against each. It is a non sequitur to say that such disparity ipso facto results in disparity of effort devoted to such defendants if they have the same attorney. In People v. McCasle, 35 Ill.2d 552, 221 N.E.2d 227, we find this apt statement — apt both in the sense of the applicable law and the factual context which occasioned its enunciation:

“Nevertheless, defendant now contends that the court should have appointed separate counsel for him on its own motion. He predicates this claim upon the proposition that Thaddic might have committed the robbery alone or with an unidentified third party, and that Thaddic should have been vigorously cross-examined by an attorney representing McCastle’s interests alone. » * * There was no inconsistency in tírese defenses, and it was not improper for the same public defender to contemporaneously represent both defendants. As a general rule, jointly indicted defendants should be jointly tried unless their defenses are antagonistic, and a severance is neither required nor authorized where their defenses are not inconsistent. * * *

The few excerpts culled from the record of the argument which might, standing alone, raise eyebrows — such as why is Smith a defendant though “we know why Clayton is a defendant in this case”, when read in context dissipates any doubts otherwise present. An attorney can argue the innocence of his clients and totally represent them both and at the same time argue that though innocence conceptually is an absolute, one can be more innocent than the other — so far as proof.

In closing argument the State alluded to the testimony of one of the experts that the presence of sperm verified the fact that both defendants had intercourse with the victim. This expert did, however, testify as to presence of sperm, and that it could have been there, as the expert testified for more than 48 hours, does not preclude the State’s attorney from drawing the unfavorable inference that he did. It is an arguable inference, particularly with all the other evidence and one that can be properly made. Because the prosecutor draws such an inference doesn’t mean that it is true and the jury doesn’t have to accept it as true. Likewise, as to the attacked remark by the State that the blood type discovered on defendant Clayton’s underpants was entirely consistent with the victim’s blood type. This is not a misstatement as defendants allege. There was expert testimony, as we have seen, that the victim’s blood characteristics was in a B grouping and there was testimony that the blood type found on the underpants was B. That the blood may have come from another source, doesn’t preclude an argument that it came from the victim, and thus prevent the State from arguing and drawing the inference which connects the victim with the defendant.

Finally, defendants contend that the sentences were excessive and we should exercise the power bestowed upon us by Rule 615(b) (4) of the Supreme Court and reduce them. Defendant Clayton was 25 years old and defendant Smith 33. Both had prior criminal records. Indeed, Clayton had just been paroled on a conviction for armed robbery. That rape is a heinous offense cannot be gainsaid — it is a Class I felony. We can appreciate, therefore, the court’s observations prior to sentencing— “that under most instances the minimum sentence given for an offense where the court has indeterminate sentencing authority should not exceed one-third of the sentence. I am nevertheless faced in this instance with the type of crime which represents a substantial threat and danger to the community and that in the opinion of the court requires some deviation from this stated principle.” Our power to reduce, as has been said, should be used with caution and circumspection. (People v. Caldwell, 39 Ill.2d 346, 236 N.E.2d 706.) Here, we think this same caution and circumspection should stay our hand.

We took with this case a motion by the defendant to correct the title of the case to show the correct name of the defendant to be Clayton Nick. The motion is allowed and the title of the case now reflects the change.

Accordingly, the judgments appealed from are affirmed.

Affirmed.

SIMKINS and TRAPP, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH Mr. JUSTICE CRAVEN,

text:
    Casaminco Prather, as Adm’rx. of the Estate of Donnie Lee Prather, Deceased, Plaintiff-Appellant, v. Loyal W. Lockwood, Defendant-Appellee.
    (No. 12139;
    Fourth District
    May 2, 1974.

      CRAVEN, J., dissenting.
    Ivan Light, of Normal, for appellant.
    Livingston, Barger, Brandt, Slater & Schroeder, of Bloomington (Thomas M. Barger, III, of counsel), for appellee.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The plaintiff as administratrix of the estate of her son obtained a judgment for $2,000 in a wrongful death action. The son was killed as a result of an automobile accident occurring on July 3, 1964, when a rendering truck owned by the defendant and driven by the decedent’s father crashed into a concrete bridge abutment in Macon County, Illinois. Judgment on the verdict was entered by the circuit court of McLean County. Motion for new trial was denied and two issues are presented for our consideration. (1) Did the trial court improperly restrict the plaintiff’s inquiry into the character, personality and good points of the decedent and (2) is a jury award of $2,000 damages to his mother adequate for the death of an 18-year-old son as a matter of law?

The first point raised by the plaintiff is not argued in her brief and under Supreme Court Rule 341(e)(7) (Ill. Rev. Stat. 1971, ch. 110A, sec. 341(e)(7)), it is stated that “points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing”. The mere assertion of error without explanation is not sufficient to preserve that error for review. (Wright v. McGee, 131 Ill.App.2d 522, 264 N.E.2d 882; Ray v. Cock Robin, Inc., 10 Ill.App.3d 276, 293 N.E.2d 483; Quinn v. Larson, 77 Ill.App.2d 240, 222 N.E.2d 239; Flynn v. Vancil, 41 Ill.2d 236, 242 N.E.2d 237.) The reason for this rule and these decisions are perhaps bluntly stated in In re Estate of Kunz, 7 Ill.App.3d 760, 763 288 N.E.2d 520: “Reviewing courts are entitled to have the issues clearly defined, to be cited pertinent authorities- and are not a depository in which an appellant is to dump the entire matter of pleadings, court action, argument and tire research as it were, upon the court.” We therefore conclude that the issue of undue restriction in evidence has been either waived or abandoned.

The second point that the jury award is inadequate as a matter of law poses for this court the same evidentiary vacuum that was presented to the jury. The testimony was that the decedent was rather well built, weighed about 185 pounds, was in good health at the time of his death, had participated in athletics and liked to sing. He had not graduated from high school, had never held what could be termed a steady job and was mentally handicapped to the extent that he was enrolled in the Educable Mental Health Program at Illinois State University. His mother testified that he earned $60 — $70 per week and spent about $50 for his own purposes and gave the rest to her. The record is silent as to the nature or extent of his handicap. The record is silent as to any progress or lack of -progress he had or was making in the EMH Program at Illinois State University. The difficulties presented in establishing damages for pecuniary injuries resulting from a wrongful death to the next of kin of a decedent is discussed at length in three separate opinions filed in Flynn v. Vancil, 89 Ill.App.2d 368, 232 N.E.2d; and considered by the Illinois Supreme Court on appeal in 41 Ill.2d 236, 242 N.E.2d 237. It is not debatable but that a presumption arises of loss to a lineal descendant from a wrongful death. That presumption is to be considered if there is no other evidence on the issue, or if there is evidence that presumption should be weighed by the jury with such other evidence. Flynn squarely holds that where the evidence shows an incurable, congenital physical defect impairing the health of a 2-week-old child, a jury is warranted in finding that even though there may be liability, there is no damage to the administrator for the benefit of a surviving father or mother.

Under the evidence in this case, we cannot say that the size of this verdict has no relationship to the pecuniary injuries suffered by the mother nor that the $2,000 award was the result of any passion or prejudice, on the part of the jury. There is no evidence in this record as to the nature of the decedent’s handicap, there is no evidence as to his life expectancy, and there is no evidence as to his progress, if any, in the special school. As was stated in Naslund v. Watts, 80 Ill.App.2d 464, 474, 224 N.E.2d 474, “The amount of damages to be awarded in a wrongful death action cannot be determined with mathematical certainty, and rests largely with the discretion of the jury. Jury awards, in such cases, should not. be set aside on review unless they are evidently the result of passion or prejudice, or bear no relation to recovery for the pecuniary injuries to lineal descendants.” In Naslund, a $15,000 verdict for the death of a 77-year-old woman with a 7-year life expectancy was upheld. She had an annual income of $1500 from a farm and $68 per month from Social Security. In Keel v. Compton, 120 Ill.App.2d 248, 256 N.E.2d 848, the decedent was 63 years old and had a life expectancy of 14 years. His earnings were $6000 plus for the 2 years preceding his. death. The trial court set aside a $5000 verdict and indicated that the jury disregarded the court’s instruction insofar as it related to loss of support. These cases suggest the type of proof required to establish proof of substantial loss of income. In this case, death occurred in 1964 and did not reach trial until 1972. We see no basis for holding that the jury subverted its duty under the evidence or failed to follow instructions. The proof of pecuniary loss is too anemic and speculative for us to say as a matter of law that the $2000 is inadequate to compensate for the reasonably expected pecuniary loss. The judgment therefore must be affirmed.

Affirmed.

TRAPP, J., concurs.

Mr. JUSTICE CRAVEN,

dissenting:

As I view this record, the verdict of the jury amounts to a compromise upon the issue of liability and damages or else the result is a verdict for damages that is inadequate as a matter of law. I would reverse and remand this case for a new trial upon the issue of damages only.

The jury found that the defendant Lockwood was liable and that his liability was predicated upon willful and wanton misconduct of his employee. The employee was the father of the decedent. The issue of liability is now settled since there was no cross appeal upon this issue.

A verdict in a wrongful death case in the amount of $2000 for the death of an 18-year-old leaving lineal and collateral descendants, when the record shows the decedent to be in good health, when it shows that he was employable, when it' shows that he contributed some $20 a week to the family for support, is inadequate as a matter of law. The jury in this case was properly instructed that there was a presumption of substantial pecuniary loss by reason of the death. The Flynn case cited in the majority opinion and Anthony v. New York Central R.R. Co., 61 Ill.App.2d 466, 209 N.E.2d 686, are authority for the proposition that the presumption of substantial pecuniary loss is rebuttable and that the presumption is weighed with other evidence.

The judgment in this case is inadequate not because of a rejection of the presumption, but because the affirmative evidence, even if not presented in model form, commands a higher verdict. The decedent’s life expectancy was not established; however, the decedent was shown to be in good health, was employable, and this court can, as the defendant candidly conceded at oral argument, take note of a life expectancy that clearly shows this award to be inadequate as a matter of law. Here, as in Keel v. Compton, 120 Ill.App.2d 248, 256 N.E.2d 848, the verdict of the jury bears no reasonable relationship to the damage.

The affirmance of this inadequate award in this wrongful death action comes at a time when our supreme court has expanded the compensable element of damage in a wrongful death case so as to include pain and suffering. (Murphy v. Martin Oil Co., 56 Ill.2d 423, 308 N.E.2d 583.) The supreme court of South Dakota likewise expanded the compensable items under its wrongful death action in Anderson v. Lale, 42 L.W. 2522. Our supreme court in Murphy concluded that “To say that there can be recovery only for his wrongful death is to provide an obviously inadequate justice. * * * It is obvious that in order to have a fuU liability and a full recovery there must be an action aHowed for damages up to the time of death, as well as thereafter.” (56 Ill.2d at 437.) In this case, as I view this record, the liability is clear and the damages amount to inadequate justice.