author: Mr. PRESIDING JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Sammie Johnson, Defendant-Appellant.
    (No. 55983;
    First District (4th Division)
    May 22, 1974.

      Rehearing denied June 26, 1974.

      James J. Doherty, Public Defender, of Chicago (Shelvin Singer, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Patricia C. Bobb, and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Sammie Johnson, was charged by indictment with the offense of murder. After a jury trial in the Circuit Court of Cook County, he was found guilty and sentenced to serve a term in the Illinois State Penitentiary of not less than 14 years nor more than 40 years. Defendant appeals this conviction claiming that:

(1) The testimony of the State’s witnesses was not sufficient to prove him guilty beyond a reasonable doubt;

(2) The use at trial of a statement made by defendant was a violation of his right to due process of law; and

(3) Certain remarks by the trial judge made at trial were prejudicial to defendant and as a result, defendant was denied a fair trial.

The facts were as follows:

At about 9:45 on the evening of August 31, 1970, Herron Jackson was stabbed to death in a bar on the south side of Chicago. Several months later, the defendant surrendered to the authorities in Los Angeles, California and after extradition proceedings was flown back to Chicago aboard a commercial airliner accompanied by two Chicago police officers. During this flight, defendant was alleged to have made an oral statement to the officers. He made substantially the same statement when he reached Chicago, though he declined to make a formal written statement. A motion to suppress this statement was made prior to trial. After a hearing, the motion was denied.

At trial, Herron Jackson’s “common-law wife”, Gladys Williams, testified on behalf of the State. She had entered “Shorty’s” bar with Jackson at about 8 P.M. on August 31, 1970. The two of them sat down at the bar and drank for the next hour and a half. During that time Jackson consumed one or two “shots” of whiskey and a glass of beer. Defendant entered at about 9:30 P.M. and sat down to the left of Jackson at the bar. Gladys Williams stated that when she got up to look for her address book in her purse, defendant stood up beside her and looked into her purse. She said that defendant did not speak to her and he did not reach or attempt to reach into her purse. At this point, Jackson jumped up and said twice, “Hey man, what the hell are you doing in my old lady’s purse?” Following a brief verbal altercation between Jackson and the defendant, the owner of the bar asked the defendant to leave.

About 20 minutes later, defendant re-entered the bar. Gladys Williams tapped Jackson on the knee to bring this to his attention. As Jackson spun around to face him, defendant walked up to him and began to cut him with a knife. Jackson attempted to rise but fell to the floor, because of his wounds. Defendant continued to cut at Jackson as he lay on the floor. He finished this and walked out of the bar. Josh “Shorty” Williams (no relation to Gladys) and his wife Fannie testified to the same basic sequence of events, though their versions differed as to several details.

Sammie Johnson testified in his own behalf at the trial. His version of the incident differed in several important aspects. He claimed that after Gladys Williams had stood up and opened her purse, Jackson and he got into an argument at the bar. Jackson jumped down from his barstool, grabbed defendant, and threatened to “break his neck.” At this point “Shorty” Williams stopped the fight and defendant walked to a pool table at the back of the room. He did not leave the bar, nor did Herron Jackson. Jackson walked towards defendant from the bar. Though defendant wanted to “talk” about it, Jackson refused and continued to approach. Defendant said that he was frightened because of Jackson’s prior threats; warned him to get back and told him that he had a knife. Jackson struck the defendant several times. Defendant tried to evade the attack but Jackson continued to hit him. Defendant stabbed Jackson several times and fled, throwing away the knife.

Defendant went home, where he stayed for several hours until he fled to California. He stated that he did so because he had been told that Jackson was a member of a street gang and he feared possible retaliation. He further stated that at this time he did not know that Jackson was dead. He surrendered himself in California after learning he was sought in Chicago.

Defendant first claims that he was not proven guilty beyond a reasonable doubt since the testimony of the State’s witnesses was improbable and unworthy of belief. To quote defendant’s brief, this testimony is characterized as being, “* * * replete with self-impeachment; teeming with glaring contradictions; [and] it is conflicting to the point of confusion.” Defendant examines in great detail portions of the testimony presented by the State’s witnesses and points up each and every instance where the testimony of one witness differs, even slightly, from that of another. The same is done with the evidence that defendant believes is improbable or unbelievable, either in light of the testimony of the other witnesses or with defendant’s version of the occurrence.

We find that defendant was proven guilty beyond a reasonable doubt. The basic question at issue here is the credibility to be given the testimony of the witnesses. Determination of the credibility of witnesses is the function of the jury and, as such, a reviewing court will defer to this judgment (People v. Stewart, 46 Ill.2d 125, 202 N.E.2d 911), unless it is palpably erroneous. (People v. Ostrand, 35 Ill.2d 520, 221 N.E.2d 499.) The defendant acknowledges this but submits that: “[T]he law is not so vain that it insists upon blind obedience to such an unyielding and simplistic standard where, under circumstances such as those in the present case, the rights of an innocent man are summarily relegated to an inferior and perverted status.”

It is obvious from this statement that the standard used by this court to review questions of credibility and evidence is misunderstood by defendant. While a reviewing court will defer to the judgment of the jury in these matters, this does not mean that the evidence presented below is ignored. On the contrary, the record of the testimony is carefully scrutinized by this court to make certain that the jury’s determination is not “palpably” in error. This is hardly “blind obedience” to the determination made below. Each instance of “conflicting” or “improbable” testimony in the instant case has been reviewed by this court and we find that the evidence was sufficient to sustain the jury’s verdict of guilty. It is not, however, this court’s function to substitute its judgment of the evidence presented for that of a jury’s, but rather to make certain that the jury’s decision had a sufficient basis in the record to be sustained.

Defendant next contends that the use at trial of the statements he made to police officers on the flight from California and immediately thereafter was improper as it was the result of “inherent psychological compulsion,” The use of statements given by persons in the custody of law enforcement officers is governed by the rules set forth in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, requiring the giving of what is commonly referred to as, “Miranda warnings”. It is clear from the record that the defendant was given these warnings. Defendant does not seriously dispute that these warnings were given, but states that:

“It is our contention that the police were bound by an affirmative duty to refrain from questioning defendant at least until such time that he could be guaranteed access to a reasonable and functionally effective means of communication with the outside world.”

Defendant was flown to Chicago via commercial airliner, he was not handcuffed after take-off, and there is no evidence in the record to show that he was in any way isolated from the other passengers. During this flight he was informed inter alia, that he had a right to remain silent, that he had a right to have an attorney present during any questioning, and that if he could not afford a lawyer, one would be provided for him. Defendant said that he understood these rights and thereafter made the statement which he now claims should not have been admitted at trial. (An identical proceeding took place at the police station after the plane arrived in Chicago.) Defendant characterizes this as “illegal police conduct” and now claims that he was “deliberately maneuvered into an extremely vulnerable position.” He further states that since no attorney could have been provided during this flight, his right to have counsel before any questions were put to him was “reduc[ed] * * * to little more than a delusion, a mockery and a snare * * * [t]hen the police moved in to trade on his insecurity.” We find this argument to be totally without substance.

Defendant’s argument, if we may put it simply, is that no waiver of his right to counsel or his right to remain silent could have been valid since if he had in fact requested counsel, it would have been impossible for the officers on the aircraft to procure one until the plane landed sometime later. As was noted in Miranda, when these rights were delineated:

“The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” (384 U.S. at 444.)

In the instant case, our review of the record shows that defendant’s waiver met this standard in both instances. Defendant has offered no authority, either in his brief or during oral argument before this court, to support his contention that since counsel for defendant would not have been available until the aircraft landed, that no waiver of his rights was possible. Our research has also failed to disclose any support for this position.

Defendant states repeatedly in his brief that the fact that he was on the aircraft with the officers and that no counsel could have been provided was in some fashion a form of psychological coercion. We fail to discern how the fact that defendant was in a commercial airliner, surrounded by other passengers, can be considered analogous to being held incommunicado and under pressure by police officers to make a statement. Defendant was informed of his rights under Miranda, he was specifically informed of his right to have counsel present during any questioning, he stated that he understood these rights and then he made a statement to the officers that he had stabbed Herron Jackson, fleeing afterwards because he was scared. If defendant had refused to make a statement until he could obtain the advice of counsel and the officers had persisted in attempting to convince him to do so, notwithstanding his request, then there would be some merit to defendant’s argument. We find that neither the fact that the statement was made during the flight nor the actions of the police officers, acted to coerce defendant into making these statements.

Defendant’s final contention on appeal arises out of the following occurrence at the trial. Just after cross-examination of defendant had begun the following took place:

“THE COURT: Someone is signalling back there. Go ahead. Go ahead.
MR. REYNOLDS [Defendant’s Counsel]: Your Honor, I am objecting. May we have a sidebar for a moment please?
(Thereupon, the following proceedings were had outside the hearing of the jury):
THE COURT: Somebody is signalling back there, the third man, one, two, three in the row in front of the policeman there.
MR. REYNOLDS: Judge, I have an objection to the Court’s remark.
THE COURT: I am not talking to you. I sent my private bailiff back there.
MR. REYNOLDS: I heard you stand up and say, Who is that signalling.’
THE COURT: All right.
MR. REYNOLDS: I don’t know that that man was signalling back there.
THE COURT: That is all right. I sent my private bailiff back there.
MR. REYNOLDS: I have an objection and I move for a mistrial.
THE COURT: Objection overruled. Let the record show that I sent my private bailiff back there. All right.”

Defendant urges that the trial judge was in error in failing to grant the motion for mistrial since:

“Disparaging remarks by the trial judge, the effects of which were intensified by the crucial moment of trial, and were so ripe with inferences prejudicial to defendant’s cause that his right to a fair trial was rendered a nullity.”

Defendant has again failed completely to provide any support for his claim that this “outburst”, as the incident is referred to several times in the brief, was in any way improper.

Defendant concedes that the trial court has a “duty to protect the decorum and dignity of the courtroom” (People v. Jerrels, 98 Ill.App.2d 213, 240 N.E.2d 479), but evidently does not wish the court to exercise this duty. Defendant cites a single case that is on point with this issue, People v. Yates, 339 Ill. 421, 171 N.E. 557, but the court in Yates upheld the right of the trial judge to admonish spectators to prevent signalling or other gestures directed at the person who is testifying. Defendant further argues that the trial judge should have made some statement to the jury regarding the incident or in some other manner attempted to “cure” the prejudice caused by the initial statement. We are of the opinion that the actions of the trial judge were correct and no prejudice to defendant resulted from them. Any statement to the jury regarding the incident would not have resulted in a “cure”, but would simply have served to focus their attention on the occurrence.

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

Judgment affirmed.

BURMAN and JOHNSON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE LEIGHTON Mr. JUSTICE DOWNING

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Cleo Hister, Defendant-Appellant.
    (No. 57803;
    First District (2nd Division)
    June 10, 1974.
    DOWNING, J., dissenting.
    Ronald Butler and Thomas B. Donovan, both of Winston & Strawn, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and William K. Hedrick, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

A two-count indictment charged Cleo Hister and Joe Newson with the murder of Richard Wilson. They were tried by a jury, convicted and sentenced, each to a term of 16 to 30 years. Newson took an appeal and another division of this court reversed his conviction because “[u]nder all the circumstances it cannot be said that the People’s evidence proved that [he] was a party to the killing of Richard Wilson.” See People v. Newson, 133 Ill.App.2d 511, 518, 273 N.E.2d 478.

In this appeal by Hister, he presents five issues. I. Whether he was proven guilty beyond a reasonable doubt. II. Whether reversal of New-son’s conviction by another division of this court is ground for collateral estoppel in this case. III. Whether the trial court erred in denying defendant’s motion for a directed verdict at the close of the State’s case. IV. Whether the trial court erred in refusing to instruct the jury regarding circumstantial evidence. V. Whether a conversation between a court bailiff and a juror, during the jury’s deliberations, so prejudiced defendant as to necessitate reversal of his conviction. We begin with a summary of the material evidence.

I.

On April 28, 1968, sometime near 10 P.M., Johnny Wilson was driving his automobile in the vicinity of West 65th Street and Harvard Avenue in the City of Chicago. He saw Joe Newson and Warren Parker pass in front of him and enter a nearby building. In his testimony, Wilson told the jury that Newson was carrying a package or bundle which appeared to contain a gun. Although he did not actually see one, Wilson said, “I know it was a weapon he had.” Shortly thereafter, Wilson went into a nearby liquor store, made a purchase and then returned to his home. At about 10 P.M., he heard gunfire; and when he went to 305 West 65th Street, he saw his 15-year-old son, Richard Wilson, lying on the street with a gunshot wound on the left side of his face. This wound caused Richard’s death two days later.

During the evening of April 28, between 8:30 and 9:00 P.M., 11-year-old Gregory Lee and Tony Lewis were tandem riding a bicycle when Lee saw defendant, Newson and four other persons in an alley on Normal Avenue between 65th Street and 65th Place. At that time, according to Lee, it was “real dark outdoors.” Lee told the jury that he saw Newson with a shotgun. Then he said that Newson fired the shotgun at him and Lewis, causing him to take cover behind an automobile. Then Lee said that he saw “Feenanny” (that is, Eugene Adams, another State witness) walking a bicycle along a street and that “* # * one of them, they shot Feenanny.” A short time later, Lee learned of the shooting in which Richard Wilson was wounded.

Between 10 and 10:30 tire same evening, Jesse Parnell, a 14-year-old eighth grader, was sitting on the porch of his home. He testified that Richard Wilson and Eugene Adams came to him and asked to borrow his bicycle. He let them have it; they drove off together. Then, Parnell was asked whether, before he saw Wilson and Adams, he saw “* * * anybody who is in court today * * Parnell said he had not. Parnell was then asked to point out Newson. He did. After this, he was asked, “Do you see anybody in court today you know?” The record shows that the court reporter did not hear Parnell answer. However, the assistant States Attorney who was asking the question stated, “Let the record reflect he said ‘Fat Boy’.” Parnell then was asked if he had said that. He answered, “Yes.” Shortly thereafter, he began to give unexpected answers to questions; he became confused and hesitant in his testimony. Therefore, on the State’s motion, he was made a court witness and subjected to cross-examination.

Using leading questions, the assistant State’s Attorney asked Parnell if after Wilson and Adams had left, Newson “* * * and Fat Boy came up to your porch?” His answer was, “I don’t remember.” He was next asked, “Did Fat Boy stick a shotgun into your face?” Parnell answered, “Yes.” Then, in answer to questions for the State, Parnell told the jury that Newson and defendant left his porch and ran across 65fh Street through a gangway between homes on Harvard Avenue. He said he ran behind them and saw Wilson and Adams on his bicycle riding on the sidewalk along 65th Street toward Yale Avenue. Parnell was next asked if when he saw Wilson and Adams, he saw defendant or Newson with anything in their hands. Parnell did not answer. Finally, the assistant State’s Attorney said, “Jesse? Answer my question.” Parnell then said, “I don’t know.” Immediately thereafter, he was asked, “Did you see a rifle or shotgun in Fat Boy’s hand?” In answer, Parnell said he saw a shotgun in defendant’s hands; that defendant shot the weapon at Wilson, discharging it and hitting him in the face. Soon afterward, Parnell said, defendant and Newson entered a yellowish automobile and drove off.

Parnell, still a court witness, was then questioned by defense counsel. He told the jury that when he ran from the porch to the comer of 65th Street and Harvard, he saw Hister behind a wall of a building and saw an arm sleeve extend out from behind the wall. He said he did not know where Newson was with relation to Hister, that he did not see Newson behind the wall and that he could see nothing behind the wall but the arm. He said he heard a gunshot and saw Adams run. He said that after the shot was fired, he ran back to his porch and saw no more; but when pressed, he said that after the shot was fired, he saw three persons run from the scene, enter and drive off in a yellow hard-top automobile. He testified that because of poor lighting conditions, he was unable to see the heads or faces of the three persons.

The next witness was 13-year-old Dale Lee who testified that on the night in question she was with a group of friends on a porch near 65th Street and Harvard Avenue. At about 9 P.M., Newson came there and asked if anyone had seen Eugene Adams. Newson, according to Dale, said that Adams had stolen his television, and that for this, he “was going to get” Adams.

Adams was the next State witness. He told the jury that Richard Wilson was his uncle and was with him most of the day, April 28. He said that at about 8 P.M., he talked with defendant and thereafter with New-son concerning a television set. Adams admitted that he and two others had stolen the set. A short time after the conversations, he and Wilson met some youths at 65th Street and Harvard and borrowed two bicycles, one from a Larry Whitmore and the other from a Steve Larmier, on which they rode away, separately. Adams told the jury that he did not know Jesse Parnell; and, on the evening in question, did not borrow a bicycle from him. However, the bicycle he was riding broke down, forcing him to “walk” it. As he was doing so, Adams said that defendant came out of a gangway, running past him and saying, “Bum that M.F.” At that point, Adams heard a gunshot. He saw other persons in the shadows, but he did not see Newson. After the gunshot, Adams said he fled the scene on foot, observing Wilson turn the corner and approach him. Adams told the jury that he crossed through a vacant lot on Harvard; and as he did, heard another gunshot. Adams denied he was riding double on a bicycle with Wilson.

The last State witness in presentation of its case-in-chief, was Dwight Gayten, also known as Tony Lewis. He testified that about 9 or 10 P.M., on the evening in question, he and Gregory Lee were riding the same bicycle when Newson and defendant accosted them at the corner of 65th Street and Stewart Avenue. Defendant asked for Eugene Adams and, when an unfavorable response was given, Newson drew a pistol and held Gayten and Lee at gun point 15 to 20 minutes until a passing police car afforded them the chance to escape. Gayten said that someone then fired a shotgun at them. After that, he went to the porch of a neighboring house, from which he heard two more gunshots. A short time later, according to Gayten, he saw defendant and Newson drive off in a 1962 or 1963 Chevrolet.

With the testimony of these witnesses and that of a pathologist who gave the shotgun wound as the cause of Richard Wilsons death, the State rested its case. Defendant’s defense was an alibi. In its support, he called his mother, his brother, his sister and a young woman with whom he was living at the time. He testified to his whereabouts on April 28, 1968, between 6 and 11:30 P.M. He denied killing or participating in the killing of Richard Wilson; he denied ever knowing his codefendant, Joe Newson; he denied that he had a nickname “Fat Boy.” His sister, the only witness asked the question, told the jury that her brother had never been known by that nickname.

Newson’s defense was also an alibi. In its support he called ten witnesses. In addition, he testified, gave the details of his whereabouts during the evening in question and denied ever knowing defendant. He told the jury, categorically, that he did not kill or participate in the killing of Richard Wilson. After both defendants rested their respective cases, witnesses in rebuttal and surrebuttal were called and testified in support of the State’s claim that Newson was present at the time of and near the scene of the shooting. Some gave testimony concerning the description of the assailants; others testified to what they said was the residence of Newson and bis brothers. This is the evidence from which defendant presents the issue whether the State proved, beyond a reasonable doubt, that in the evening of April 28, 1968, he committed murder by shooting Richard Wilson with a shotgun. The issue is resolved by application of well known principles of our criminal law.

II.

In the prosecution of a criminal case, it is the burden of the State to present evidence which proves beyond a reasonable doubt not only that a crime was committed, but that the accused was the party who committed or participated in the commission of that crime. (People v. Burgard, 377 Ill. 322, 36 N.E.2d 558; People v. Newson, 133 Ill.App.2d 511, 273 N.E.2d 478.) Where conviction for a crime depends on the identity of an accused, a reviewing court will examine the evidence of identification because a conviction that rests on identification which is doubtful, vague and uncertain, will be reversed. (See People v. Christocakos, 357 Ill. 599, 602, 192 N.E. 677; People v. Cook, 113 Ill.App.2d 231, 252 N.E.2d 29.) Our supreme court has said that a guilty verdict cannot rest on identification evidence which does not produce an abiding conviction of guilt. People v. Fiorita, 339 Ill. 78, 170 N.E. 690; People v. Kidd, 410 Ill. 271,102 N.E.2d 141.

In the case before us, there was evidence of an alibi. This evidence, if believed, proved that, at the time and place in question, defendant was not Richard Wilson’s assailant because he was too far from the scene of the crime to have committed it. (People v. Ritcheson, 396 Ill. 146, 71 N.E.2d 30; People v. Brown, 118 Ill.App.2d 41, 254 N.E.2d 654.) In contradiction of this alibi, all of the State’s evidence against defendant concerned his identity as the person who shot and killed Richard Wilson. Proof of an alibi cannot be disregarded where the sole and only evidence contradicting it concerns defendant’s identity as the person who committed the crime. People v. Peck, 358 Ill. 642, 193 N.E. 609; People v. McGee, 21 Ill.2d 440, 173 N.E.2d 434; People v. Martin, 95 Ill.App.2d 457, 238 N.E.2d 205.

The record shows that in. its case-in-chief, the State called seven witnesses. One was Johnny Wilson, Richard Wilson’s father. Another was Dr. William Quinton Stumer who performed an autopsy on Richard Wilson two days after he was shot and testified to the cause of his death. Therefore, these two witnesses did not give any evidence that connected defendant with the shooting of Richard Wilson.

The other five witnesses were neighborhood young people, ranging in age from 11 to 17 years, none of whom claimed that prior to the evening in question they had seen the person they said was the defendant. All who were asked, however, admitted that they had never seen that person before. Therefore, with these facts in mind, we have examined the testimony of these young people; and being mindful of their immaturity, their difficulty in responding to questions and the pressure of their appearance as witnesses in a criminal case, we think it is a fair summary to say that the evidence they gave was confusing and contradictory.

In People v. Newson, 133 Ill.App.2d 511, 273 N.E.2d 478, another division of this court reached the same conclusion when it reversed Newson’s conviction. Speaking through Mr. Justice Rurke, the most experienced appellate court judge in this State, and referring to the testimony of these young people, the court said that “[fjurther contradictions and inconsistencies exist between the testimony of many of the People’s witnesses, most of whom were in their early teen-age years: some of them stated that Hister and defendant Newson were looking for the deceased prior to the shooting, whereas others stated that Hister and Newson were looking for Adams. Many of the People’s witnesses were unable to tell the difference between north and south, east and west, yet they testified as to the locations where they said they saw Hister and Newson and other interested persons. There were also discrepancies between defendant Newson’s clothing, the automobile he was allegedly driving, descriptions of defendant Newson himself, the type of weapon brandished, who brandished the weapon, and the like,” Clearly, this appraisal was not limited to Newson’s contention that he was not proven guilty beyond a reasonable doubt; it was a general appraisal of the evidence, without regard to the defendant involved.

The same appraisal applies particularly to the State’s real witness against defendant, Jesse Parnell, the 14-year-old boy who said he saw Richard Wilson get shot. Despite this important fact, when the State went to the grand jury in this case, its witnesses were the police officer who investigated the shooting of Richard Wilson and a person named Roosevelt Allen. The officer was a witness in the trial, but Allen was not. In fact, his name was not on the State’s list of witnesses. Nor was Jesse Parnell’s. However, on the day of trial, with jury selection about to begin, the State moved for leave to amend its list of witnesses and add the name of Jesse Parnell. Over defendants’ objections, the motion was granted with the understanding that defense counsel could interview Parnell before he testified. The interview took place; and later, counsel for defendants told the trial judge that, from their observation, Parnell was under the influence of an assistant State’s Attorney prosecuting the case and was being bullied by an older brother. At the insistence of Newson’s counsel, and with the cooperation of the assistant State’s Attorney in charge, the brother was asked to leave the courtroom while Parnell testified.

When he did, Parnell immediately exhibited an inability to understand and answer the questions put to him. At the request of the assistant State’s Attorney, there was a conference in chambers. In the colloquy between court and counsel that followed, Parnell was described as being “confused” and “nervous.” Then, following another attempt to get answers from him, the State requested that he be made a court witness. The request was granted; and thereafter, Parnell was asked leading questions most of which he answered by indicating affirmative agreement. During one phase of his testimony, he was asked to identify the defendants. He did not hesitate in pointing out Newson as one of the three persons he said he saw in the evening that Richard Wilson was killed. But when he came to the place where defendant was sitting, the record shows that Parnell gave no response to the request that he point him out. Yet, the examining assistant State’s Attorney, after requesting an answer and getting none, asked that the record show Parnell as having said, “Fat Boy” and identifying defendant by that nickname. Defendant, however, testified and denied he had ever been known by that nickname. His sister, who was the only witness asked, corroborated defendant’s denial and said she had never known her brother to use the nickname, “Fat Boy.” The State did not rebut this testimony; and our examination of the State’s case-in-chief discloses that no prosecution witness testified that, to his knowledge, the defendant, prior to April 28, 1968 had used or responded to the name “Fat Boy.”

What is more important is the contradiction of Jesse Parnell by Eugene Adams, who the State was not required to call as a court witness. Parnell had testified that on the evening of April 28, 1968, Adams and Richard Wilson borrowed a bicycle from him and rode off on it together. Adams, in contradiction, testified that not only had he and Wilson not borrowed a bicycle from Parnell; he did not know Parnell at all. Adams told the jury that during the evening in question, he and Wilson had, in fact, borrowed two bicycles, naming the lenders. Adams then testified and crucially contravened Parnell when he said that just before he heard some shooting, he heard the person he said was defendant say, “Bum the M.F.” Obviously, then, this person did not have a gun; his words suggest that he was calling to someone who did.

In addition, Parnell contradicted himself. He gave inconsistent versions about the approach of defendant and Newson to the porch of his home when he said he was threatened with a shotgun concerning the whereabouts of Adams. At one time Parnell testified that defendant and Newson came to him and demanded to know where Adams was. At another point, he said that it was Richard Wilson they asked for. At one point, Parnell told the jury that he saw Wilson when he was shot because Wilson and Adams were riding double on his bicycle. Yet, Adams told the jury that during the entire evening, he and Wilson were riding separate bicycles. Parnell told the jury he saw defendant shoot Wilson. However, on further examination, he testified that the only thing he saw was an arm reaching out from behind a wall of a building, yards away from where he was standing in a darkened vacant lot. When he was questioned further, Parnell said he did not see defendant’s body nor did he know where Newson was when he saw the flash of the shotgun fire. Although he initially said that he saw Newson and defendant run from the scene and enter an automobile, he later changed his testimony and said that he saw three persons mn from the scene and that he did not see the heads or faces of any of those persons who later entered an automobile and drove away.

It is an ancient and consistent rule of our criminal law that where evidence is conflicting, or even contradicting, resolution of the conflict or contradiction is for the jury; it is the jury that must decide which witness or witnesses shall be believed. (Hiner v. People, 34 Ill. 297; People v. Gormach, 302 Ill. 332, 134 N.E. 756; People v. Bolton, 10 Ill.App.3d 902, 295 N.E.2d 11.) It is a corollary of this rule that a jury verdict based on conflicting evidence is conclusive when it is founded on credible testimony sufficient to convict. (People v. Kelly, 378 Ill. 273, 38 N.E.2d 9; People v. Bardell, 388 Ill. 482, 58 N.E.2d 24; People v. Lawrence, 126 Ill.App.2d 202, 261 N.E.2d 459.) On the other hand, if the credible evidence is insufficient, or is improbable or unsatisfactory, or does not remove all reasonable doubt and create an abiding conviction that defendant is guilty, it is our duty to reverse the conviction. (People v. Dougard, 6 Ill.2d 603, 158 N.E.2d 596.) In this case, after reviewing the record, we conclude that the evidence adduced by the People was contradictory in many significant respects and failed to establish defendant’s guilt beyond a reasonable doubt. People v. Newson, 133 Ill.App.2d 511, 273 N.E.2d 478.

III.

Having reached this conclusion, it is unnecessary that we resolve the other issues presented. The judgment is reversed.

Reversed.

HAYES, P. J., concurs.

Mr. JUSTICE DOWNING

dissenting:

I would affirm for the following reasons:

I.

The majority opinion presents the troublesome situation which always develops when an appellate court reviews the evidence, the credibility of witnesses, the weight of evidence, and then sets aside a jury verdict of guilty.

The trial of this case involved two defendants, each represented by privately retained, experienced and competent counsel. It lasted 9 court days. It is reported in just over 1,000 pages of trial proceedings. The State called 7 witnesses in its case-in-chief, defendant Newson called 11 and defendant Hister 5; the State in rebuttal called 6 witnesses; in surrebuttal the State called 1 witness and defendant Newson 3.

Thus, 33 witnesses appeared before the jury and trial judge. The jury and trial judge had a full opportunity to see and hear each witness, the length of time and manner in answering questions, the demeanor, and the apparent interest, bias or prejudice each witness may have displayed. In this case there is no dispute that there was conflicting, contradictory testimony. When such a condition arises, the trier of fact is charged with the awesome responsibility of evaluating the credibility of witnesses and the weight to be given to their testimony.

In People v. Glover (1971), 49 Ill.2d 78, 84, 273 N.E.2d 367, our supreme court said:

“It is axiomatic that it is the function of the trier of the facts to determine the credibility of the witnesses, and its finding of guilty will be disturbed only when the evidence is so unsatisfactory as to leave a reasonable doubt as to defendant’s guilt.”

See also People v. Hubbard (1973), 55 Ill.2d 142, 147, 302 N.E.2d 609.

The majority opinion in concluding that defendant’s guilt was not established beyond a reasonable doubt did so after a thorough, painstaking reading of the cold record. However, in my opinion the majority has in effect reweighed the evidence without the benefit of seeing the 33 witnesses. My experience in the trial courts has taught me that one of the most significant ingredients so necessary in determining credibility is the actual appearance and the opportunity for a visual evaluation of each witness sitting in the witness chair, responding to questions from the prosecutor and defense attorney.

It is also to be noted that the experienced, able trial judge who patiently permitted each party to present all their relevant and material testimony had the same opportunity as did the jury to observe the witnesses. After the jury verdicts of guilty of murder as to each defendant; and after extensive written post-trial motions and arguments, the trial court denied each defendant’s motion for a new trial, for judgment notwithstanding the verdict and in arrest of judgment.

This court in reviewing the judgment of guilty on the jury verdict, as I understand the law, is not to resolve the question of reasonable doubt as does the original trier of fact. What I, as the trier of fact or trial judge in a jury case, might have done under this set of facts is highly speculative, because I cannot now properly evaluate the full import of each witness’s testimony without the opportunity of having seen the 33 witnesses. Therefore, I must be guided only by the principles applicable to appellate review.

In People v. Rawls (1945), 389 Ill. 110, 113, 58 N.E.2d 895, our supreme court stated:

“All of these facts, and many more of a minor nature, were presented to the jury at the trial. This court has repeatedly held that it is the special province of the jury, which sees and hears the witnesses, to decide, in cases of contradictory testimony, who shall be believed, and the court will not interfere With the jury’s decision unless satisfied that the evidence is clearly insufficient to remove all reasonable doubt of the defendant’s guilt. (People v. Barnwell, 296 Ill. 67.) In People v. Maciejewski, 294 Ill. 390, where the testimony of a witness was not positive as to identification, it was held competent and admissible, its weight being a question for the jury in connection with the other circumstances in the case. The law has committed to the jury the determination of the credibility of the witnesses and the weight to be accorded to their testimony. Where the evidence is merely conflicting, this court will not substitute its judgment for that of the jury, and this rule applies to contradictory evidence on alibi. People v. Stephens, 297 Ill. 91.”

See also People v. Kelly (1941), 378 Ill. 273, 275, 38 N.E.2d 9; People v. Williams (1968), 40 Ill.2d 522, 526, 240 N.E.2d 645, 648; 15 I.L.P. Criminal Law, sec. 911.

It is also important to consider the statement of our supreme court in People v. Anderson (1964), 30 Ill.2d 413, 415, 197 N.E.2d 24:

“The prosecution correctly states the rule that the determination of the credibility of witnesses and the weight to be given their testimony is committed to the jury and we will not substitute our judgment for that of the jury merely because the evidence is conflicting. It is basic, however, that if, after due consideration, we are of the opinion that defendant’s guilt has not been established beyond a reasonable doubt, it is our duty to reverse.”

As the majority opinion notes, the appeal of codefendant Newson was considered by the first division of this court. It is reported in People v. Newson (1971), 133 Ill.App.2d 511, 273 N.E.2d 478. My reading of that opinion leads me to the conclusion that the first division of this court only held that the State’s evidence did not prove that Newson was a party to the killing of the deceased (see 133 Ill.App.2d 516, 518). Defendant Hister in his oral argument before this court urged that the conviction of Hister must be reversed by virtue of the Newson opinion on the theory that the doctrine of collateral estoppel applied.

The doctrine of collateral estoppel operates to preclude relitigation by the same parties, or their privies, of any issue directly adjudicated or necessarily involved in a judgment or decree rendered on the merits. (See Palma v. Powers (N.D. Ill. 1969), 295 F. Supp. 924, 933.) Hister was not a party to the Newson appeal. In fact at the trial Hister testified he did not know Newson. In my opinion the doctrine of collateral estoppel cannot be invoked by Hister in consideration of his appeal.

Counsel for Hister cited no authority, nor has my research discovered any authority, to suggest that the reversal of the Newson conviction and this court’s opinion therein, acts as a bar to this division of this court to independently evaluate the evidence as applicable to Hister. Of course I do not suggest that the majority opinion in fact invoked and applied the doctrine of collateral estoppel.

It is also significant to note that Newson s conviction was based solely upon circumstantial evidence while as to defendant Hister s there was evidence before the jury by Jesse Parnell who identified defendant Hister as the person who had fired the shot at the deceased. Considering this distinction and the fact that in the Newson appeal this court confined itself to a review of the testimony as it related only to Newson, in my opinion we are not bound by the first divisions opinion.

I agree with the majority that the Newson opinion should receive thoughtful, respectful consideration. Nevertheless, I understand it is my duty to make an independent evaluation of the Hister appeal solely on the basis of the record in this case as applicable to Hister.

II.

The record indicates conflicting and contradictory testimony — between State witnesses, between witnesses of the State and Hister, and between Hister’s witnesses.

Hister contends that the evidence produced by the State shows nothing more than that Richard Wilson was shot on April 28, 1968, and that the record does not contain any credible evidence which definitely placed the defendant at the scene of the crime — in short, the State failed to sustain its burden of proof beyond a reasonable doubt. Moreover, defendant maintains, the quality of the testimony of the youthful witnesses, and the inconsistent and controverted nature of the “facts” elicited, militate solidly against sustaining the verdict imposed.

It is to be noted that the witnesses who were present on the evening of April 28, 1968, in the said area were youngsters of 11 years and older. Nevertheless, it cannot be denied there is adequate, competent evidence, which the jury apparently believed, that, on the evening of April 28, 1968, defendant Hister with Newson roamed the neighborhood of 65th Street around Harvard, Parnell and Stewart Avenue, brandishing weapons while searching for Eugene Adams or the deceased with the expressed intent of doing physical harm.

The record clearly shows that six State witnesses gave testimony which placed Hister in the area on the critical date and within the critical time period; that four witnesses (Dale Lee, Tony Lewis, Jesse Parnell and Gregory Lee) gave testimony placing firearms in the hands of Hister or Newson; and that Jesse Parnell and Eugene Adams testified that Hister was wearing a green and black sweater.

Jesse Parnell, called as a witness by the State, testified that he was 14 years old and on April 28, 1968, lived at 6508 South Harvard and saw the deceased and Adams about 10 or 10:30 at night when they got on his bike and saw them turn the comer of 65th and Harvard; that he knew and identified defendants Newson and Hister in the courtroom, then gave contradictory testimony as to whether he saw them after the deceased and Adams left with his bike.

Thereupon, on motion of the State, Parnell was called as a court’s witness. Parnell then testified that after the deceased and Adams rode off on the bike he was on his porch when Hister came up on his porch, stuck a shotgun, having a wooden part cut off with a big hole in the barrel being about 22 or 24 inches long, in his face or head and asked where the deceased was, to which Parnell said he did not know, that Newson and a light boy were there at that time on the sidewalk. Parnell described the gun as having a wooden part cut off with a big hole in the barrel with a barrel about 15 inches long; and that Hister had on a green-striped sweater, some black pants and black shoes.

According to Parnell, Hister and Newson left his house, ran to and up a gangway on 65th and Harvard on the opposite side of the street from his house; that Parnell then crossed the street and went to the comer of 65th and Harvard in front of 6501 where he saw the deceased and Adams on 65th Street going toward Yale; that Hister had a gun in his hand which he shot toward the deceased who was shot in the face on the left side; and that one Kenneth and a girl named Pam were also there. Parnell said he then ran to his porch and saw Hister, Newson and the light boy jump in a car on 65th and Harvard and drive away.

On cross-examination by Newsons attorney, Parnell testified that at the time of the shooting, Hister was in a lot behind the comer of a building and that he saw an arm with a green-striped sleeve stick out; that after the shot was fired, Adams jumped off the bike and ran; that the three persons then jumped into a yellowish car with Hister driving; and that he (Parnell), after running home, came back and saw the deceased lying on the comer.

In response to questions by Hister s attorney, Parnell said he could only see the arm; that he knew who it was because he had the green sweater on when he came up on the porch; that he saw the light boy when the gun was shot; that after the shot they turned around, came out through the gangway and jumped into the yellow car and headed towards Stewart Street; and that he heard one shot.

My review of the entire record indicates that the jury had before it legally competent, credible evidence from which it could conclude that on April 28, 1968, Hister was in the area of 65th and Harvard; that he had a gun and held it against the head of Jesse Parnell when Hister and Newson were looking for Adams and the deceased; that Adams and the deceased were riding a bicycle; that Hister had a gun in his hand when a single shot was fired; that Adams jumped off the bike and ran when the deceased was shot on the left side of his head; and that three boys then jumped into a car with Hister driving and drove away. This testimony together with the testimony of the pathologist that the deceased died from a single pellet which entered the left side of the deceased s head, would support the jury’s verdict — that the jury believed Hister guilty beyond a reasonable doubt.

Confronted with the task of balancing the testimony offered by the State against the alibi testimony given by Hister and members of his family and girl friend called on his behalf, the jury chose to believe the State’s witnesses and returned a verdict of guilty.

That verdict, in my opinion, is not palpably contrary to the weight of evidence, or so unsatisfactory as to cause a reasonable doubt of guilt. People v. Burgard (1941), 377 Ill. 322, 36 N.E.2d 558.

Hister presented evidence of alibi. The majority states: “Evidence of an alibi cannot be disregarded where the sole and only evidence contradicting it concerns defendant’s identity as the person who committed the crime.”

In People v. Setzke (1961), 22 Ill.2d 582, 586, 177 N.E.2d 168, our supreme court stated: “There is no obligation on a trial court to believe alibi testimony over positive identification of the accused, even though the alibi testimony may be given by a greater number of witnesses.”

In order to understand the nature of Hister’s alibi defense testimony, it is important to cite a brief summary of the testimony.

Catherine Hister, mother of defendant Hister, testified that on April 28 the defendant arrived at her home at 6101 South Stewart around 8:30 P.M. with Sandra James; and that he left with his girl friend about midnight.

Bernice Mabry, sister of Hister, testified substantially the same as Catherine Hister, although she identified the girl friend who left with Hister as Hazel Richey.

Furman Hister, brother of defendant, testified that on April 28, 1968, he lived at 6101 South Stewart with his mother; that he first saw the defendant about 6 P.M., at the pool room at 65th and Wentworth; that between 8 and 9 P.M. defendant was at Furmans house where he ate and lay down; and that the defendant’s girl friend picked him up between 12 and 12:30.

Defendant Hister testified that on April 28 he was wearing the gray suit he was wearing in court with black loafers; that he left home about 10:30 A.M. with Hazel Richey and spent much of the day visiting with friends and drinking; that between 7 or 7:30 he went to his aunt’s house at 64th and Yale, then left there with Sandra and stopped at the Hickory Pit on 63rd Street before arriving at his mother’s home at 8; and that after eating and sleeping he left after 12. Hister denied knowing or talking to Eugene Adams, denied pointing a gun at Jesse Parnell or being on his porch, then testified he did not shoot the deceased.

Hister stated no one ever called him Fat Boy and denied knowing codefendant Newson. He testified he had been at a pool room on 65th and Wentworth about 4:30 or 5 and left about 6:30.

Hazel Jean Richey, called as a witness by Hister, testified that on April 28, 1968, she and defendant Hister lived at 5949 South Michigan and that the defendant left home around 12 and she next saw the defendant at 6101 South Stewart about midnight.

It is axiomatic that the jury did not have to believe defendant Hister or his alibi. In fact by their verdict we must conclude the jury did not believe Hister or the alibi evidence.

Thus we return to the question of identification. In my opinion there is credible evidence in the record that placed Hister at the scene of the incident and as the person who shot the deceased. Since the credibility of the witnesses was a question to be decided by the jury, based on the cited authority, I do not think this court should overturn its verdict. The jury obviously believed the testimony of the State witnesses. In People v. Sullivan (2nd Dist. 1972), 7 Ill.App.3d 417, 422, 287 N.E.2d 513, the court said: “This court [appellate] will not disturb the finding of a jury in the absence of a clear miscarriage of justice.” In my opinion I believe the jury’s verdict of guilty should not be overturned.

III.

Although, by virtue of the majority opinion it is not necessary to discuss the other issues raised by Hister in this appeal, I do not believe any of the issues raised would justify a new trial.

For these reasons I would affirm the judgment of the circuit court of Cook County.

       Although defendant does not raise the question, we notice that the State made no attempt to qualify calling Parnell as a court witness. See People v. Cardinelli, 297 Ill. 116, 130 N.E. 355; People v. Moriarity, 33 Ill.2d 606, 213 N.E.2d 516; People v. Mostafa, 5 Ill.App.3d 158, 274 N.E.2d 846.

       The cases of People v. Ephraim (1st Dist. 1971), 133 Ill.App.2d 310, 273 N.E.2d 225 (which reversed a murder conviction of William Ephraim, whereas the same court approximately two years later affirmed the murder conviction of co-defendant Leroy Hairston), and People v. Hairston (1st Dist. 1973), 10 Ill.App.3d 678, 294 N.E.2d 748, illustrate the fact that this court has followed the practice of separately evaluating, the evidence as to each defendant.

       The witnesses were Gregory Lee, Tony Lewis, Dale Lee, Clemaine Jean Lee, Eugene Adams and Jesse Parnell.

         Various State witnesses testified about the car. Their description of the car did not differ materially from Newsons testimony that at the time he owned a two door ’65 Oldsmobile, beige in color with red streaks and a black-vinyl top.

       Witnesses Parnell and Adams testified Hister had on a green and black sweater at the time of the accident.

       Adams testified that he and the deceased were in a pool hall at 65th and Went-worth from 5:30 P.M. to 9 P.M. on April 28; and that Hister was in the pool hall about 7 P.M. or 8 P.M. at which time Adams had a conversation with Hister.

       The parties stipulated at trial that defendant Hister weighed 255 pounds at the time of his arrest.


author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Stanley Davis, Defendant-Appellant.
    (No. 57620;
    First District (2nd Division)
    June 10, 1974.

      Kenneth L. Gillis and Robert E. Davison, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (James Veldman, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Defendant, Stanley Davis, was charged with the murder of Derrick Merriweather and the attempt murder of Howard Collins. (Ill. Rev. Stat. 1971, ch. 38, pars. 9 — 1, 8 — 4.) A jury found him guilty of both offenses, and he was sentenced to consecutive terms of 35 to 100 years for murder and 10 to 15 years for attempt murder. On appeal defendant urges reversal of the convictions on the grounds that his convictions were based upon hearsay testimony; that a photograph of the deceased was improperly introduced into evidence; that defendant’s fingerprints were obtained pursuant to an unlawful arrest, and therefore should have been excluded from evidence; and that defendant was improperly convicted and sentenced to consecutive terms for offenses which arose from the same conduct. Defendant also contends that the sentence imposed for murder is excessive.

On April 8, 1971, shortly before midnight, Howard Collins drove his mother’s black Volkswagen automobile into a parking lot near 13359 South Greenwood Avenue in Chicago. Collins and his passenger, Derrick Merriweather, were seeking a friend. Thereupon a 1960 or 1961 gray Chevrolet automobile, with four persons inside, drove into the lot and blocked the only exit. All four men exited the Chevrolet; two walked up to Collins’ side of the car, and the other two men walked to Merriweather’s side. Collins and Merriweather remained in the car. One of the men near Collins fired a shotgun at him. Collins, although wounded, managed to escape from the car and run. As he fled from the scene, he heard more shots. Collins survived; but Merriweather was fatally wounded.

Collins identified defendant as one of his attackers. He testified at trial that he had known defendant for approximately 4 years, and that both attended Carver High School. He further testified that he recognized three of tire men in the Chevrolet, and identified them as defendant, Albert Jackson and Bossey Jones. He observed defendant and Jackson holding shotguns as they arroached his car. Defendant and Jones approached Merriweather, and Jackson and another man approached Collins. Jackson fired a shot at Collins, and Collins then ran. He sought help, and a friend drove him to the emergency room of Roseland Community Hospital. There he told a police officer that defendant, Jackson and Jones had shot him.

Collins further testified that earlier on the day of the shooting he observed defendant and several other persons standing near the high school. Defendant approached Collins and asked for $5. Collins refused, and Jackson, who was with defendant, told Collins “I will kill you.” Collins testified that he did not know why defendant had demanded $5. On cross-examination Collins did not recall a prior statement by him that the $5 demanded by defendant was an extortion payment to a street gang. Collins also stated that defendant did not shoot at him, and that he did not see defendant shoot Derrick Merriweather.

Linda Merriweather, the wife of the deceased victim, and Ruth Jenkins, the mother of the deceased, both testified that Derrick Merriweather was alive on April 8, and that they observed him dead at the hospital shortly after midnight on April 9, 1971. His wife identified his body at the hospital and at the morgue, and in court, she identified a photograph of him as he appeared in the hospital. The photograph was later introduced into evidence. Mrs. Jenkins testified that she observed Howard Collins, an acquaintance of her son, in the emergency room of the hospital, and that Howard Collins called to her that “Stanley Davis, Bossey and Crow did it.” On cross-examination she stated that Collins had mentioned the last name of only defendant, and that one of the police officers at the hospital told her that Collins had named defendant, Bossey and Crow as his attackers.

A pathologist from the coroner’s office testified that he performed an autopsy on the body of Derrick Merriweather, and that in his opinion, death was caused by a shotgun wound.

The State then called as its witnesses five Chicago police officers who participated in the investigation of the crimes. The first officer on the scene, Raymond Crawford, testified that at approximately midnight, April 9, 1971, he responded to a call regarding a shooting at 13359 Greenwood. He found the deceased, Derrick Merriweather, lying near a black Volkswagen in a parking lot. He transported the victim to the emergency room of Roseland Community Hospital. In the emergency room, the witness observed Howard Collins who related that the shooting took place at 133rd and Greenwood. Collins responded affirmatively when the witness asked him if someone with him also had been shot. At this initial interview Collins did not identify defendant as one of his attackers. On cross-examination Officer Crawford recalled that Collins told him that Jackson and some friends had approached him about joining the P-Stone Nation street gang. On redirect examination, Officer Crawford modified this statement by testifying that Collins told him that earlier in the day he and Merriweather were approached “about paying some sort of money, not actually joining, but more like an extortion kind of thing.”

A homicide investigator, Officer James Davis, testified that he interviewed Collins in the emergency room of the hospital at approximately 12:30 A.M. on April 9. Collins indicated who had shot him. This witness also testified to the events which occurred in the parking lot prior to the attack, as told to him by Collins. The witness also stated that Collins had told him that he knew three of the four attackers, and had named defendant, Jackson and Jones. After leaving the hospital, Officer Davis commenced a search for defendant, but was unable to locate him at three addresses.

Sergeant John Kwak testified that he immediately began a systematic search of parking lots in the area for the Chevrolet automobile described by Collins. At approximately 4:45 A.M. on April 9, approximately one block from defendant’s home, he found a 1960 gray Chevrolet fitting Collins’ description. He observed no identifying marks on the car, and called in the crime-laboratory technicians to dust the automobile for fingerprints. The car was then towed to the pound. At trial, Officer Kwak identified two photographs of the automobile he found as “the vehicle in question which was used in the felony or homicide.” On cross-examination he stated that no evidence other than fingerprints was found in the car.

Three police officers then testified to the fingerprint identification procedure. Officer Posiadlik testified that he fingerprinted defendant in the police lockup on May 11, 1971. Officer Ginnelly of the Crime Lab testified that he photographed and dusted for fingerprints both the black Volkswagen and the gray Chevrolet. He found latent fingerprints on both automobiles. A fingerprint expert, Officer Mortimer, then testified that he compared defendant’s fingerprints taken at the lockup with the latent fingerprints found on the Chevrolet, and was able to identify one of the prints on the automobile as made by defendant. On cross-examination he stated that defendant’s prints did not match any found on the Volkswagen, nor any of the other prints found on the Chevrolet.

Officer Cotton testified that he arrested defendant on May 11, 1971. The State introduced into evidence the photograph of the deceased, photographs of the Volkswagen and the Chevrolet automobiles, and fingerprints identified as defendant’s. The State then rested, and defendant presented no evidence on his behalf.

Initially, defendant contends that he was denied a fair trial by the introduction into evidence of hearsay testimony. Defendant argues that certain hearsay testimony identifying him as a perpetrator of the crimes was incompetent and prejudicial. The first instance relied upon by defendant is Ruth Jenkins testimony that Collins called to her in the emergency room that defendant, Crow and Bossey were the offenders. The second assignment of error is the testimony of Officer Davis that Collins told him that he knew three of the offenders and named defendant as one of the men. The State argues that this testimony was not inadmissible hearsay, but rather fell within the spontaneous declaration exception to the hearsay rule. Assuming, arguendo, that Collins’ statements were not spontaneous declarations, we nevertheless do not agree with defendant that reversible error was committed.

An objection to hearsay testimony is waived unless made at the time it is offered. (People v. Jones, 2 Ill.App.3d 575, 277 N.E.2d 144.) From the report of proceedings in this cause it is clear that no hearsay objection was made to the testimony of Ruth Jenkins. Moreover, it appears that defense counsel delved more thoroughly into the statement made to the witness by Collins:

“DEFENSE COUNSEL: [EJxactly what did Mr. Collins say regarding the name or names of the people he claimed were—
WITNESS: He kept calling their name and my son that was with me, he grabbed my arm, he said, Howard wants you. Howard kept calling my name, Crow, Stanley and Boss.
DEFENSE COUNSEL: Crow, Stanley and Boss. Did he use any first or last name with Crow?
WITNESS: No.
DEFENSE COUNSEL: I gather you did not know?
WITNESS: I didn’t know any of them.
DEFENSE COUNSEL: Did he use any last name with Stanley?
WITNESS: Stanley Davis.
DEFENSE COUNSEL: Are you positive of that?
WITNESS: Yes. * * *”

Likewise, the hearsay testimony of Officer Davis regarding Collins’ identification of defendant was not objected to by defense counsel. Defendant now maintains that his counsel objected to this testimony and requested a mistrial on that basis. The record clearly indicates, however, that defense counsel objected to officer Davis’ testimony concerning a call he received from Officer Kwak about recovery of the Chevrolet. On cross-examination defense counsel again questioned Officer Davis as to Collins’ statement to him:

“DEFENSE COUNSEL: Did he tell you there were four men that attacked him or three?
WITNESS: He said that four men got out of the car. Three men came towards him. Two of those three had guns.”

Moreover, we do not consider these hearsay statements to be plain error pursuant to Supreme Court Rule 615(a). (Ill. Rev. Stat. 1971, ch. 110A, par. 615(a).) Our courts have held that the admission of hearsay identification testimony constitutes reversible error only when it serves as a substitute for courtroom identification or when it is used to strengthen and corroborate a weak identification. However, if the hearsay is merely cumulative, and is supported by a positive identification and by other corroborative circumstances, it constitutes merely harmless error. People v. Canale, 52 Ill.2d 107, 285 N.E.2d 133; People v. Coleman, 17 Ill.App.3d 421, 308 N.E.2d 364, and cases cited therein.

A positive identification by one witness with sufficient opportunity to observe defendant is sufficient to sustain conviction. (People v. Mack, 25 Ill.2d 416, 185 N.E.2d 154.) In tire instant case the in-court identification of defendant by Howard Collins was positive and clear. He had known defendant prior to the attack, and the contradictions in Collins’ testimony as to gang involvement were placed before the jury. The jury, nonetheless, found his testimony to be credible, and we believe such a determination was proper. Additionally, Collins’ testimony was corroborated in part by evidence of defendant’s fingerprint in the Chevrolet automobile. We therefore conclude that the hearsay testimony was not reversible error.

Defendant also alleges that the Chevrolet automobile found by Officer Kwak was connected to defendant and the crimes by the admission of hearsay testimony. Defendant argues that Officer Kwak had no personal knowledge that the Chevrolet was the “vehicle in question which was used in the felony or homicide.”

It has long been the rule that photographs of physical evidence are admissible provided the prosecution adduces by competent evidence a nexus between the objects to be introduced and defendant and the crimes. (People v. Miller, 40 Ill.2d 154, 238 N.E.2d 407.) This nexus is shown when a witness identifies the photographs as portrayals of certain facts relevant to the issue, and in addition, verifies the photographs as correct representations of such facts. (People v. Donaldson, 24 Ill.2d 315, 181 N.E.2d 131; McCormick, Evidence 387.) Therefore, the primary issues are relevancy and accuracy.

In the instant case, Officer Kwak testified that he observed an automobile fitting Collins’ description approximately one block from defendant’s home. Officer Ginnelly then testified that he found latent prints on that auto, and Officer Mortimer stated that he identified one of those prints as defendant’s. Officer Kwak also identified the photograph of the automobile as the automobile he observed, thereby verifying the accuracy of the photograph.

Defendant’s argument is based upon the misconception that Officer Kwak’s statement was the sole evidence connecting the automobile to defendant and the crimes. It appears from the record that Collins was not asked to identify photographs of the Chevrolet automobile. We agree with defendant that the appropriate procedure would have been for Collins to identify the car depicted in the photograph and thus connect the automobile to the crimes. However, we do not believe that this omission was fatal to the admissibility of the photograph of the Chevrolet automobile. The police officers testimony as summarized above was competent, circumstantial evidence which provided the required nexus between the Chevrolet automobile and defendant.

Defendant next assigns as error the introduction into evidence of the photograph of the deceased. While defendant acknowledges the general rule that the admissibility of a photograph of a decreased is within the sound discretion of the trial court, and that such discretion will not be disturbed unless an abuse to defendant’s prejudice is shown (People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771), he argues that the identity of Derrick Merriweather and the cause of his death were not in issue, and that, therefore, the photograph was nonprobative.

We note that defendant pleaded not guilty and therefore, the State had a right to prove every element of the crimes charged. (People v. Scheck, 356 Ill. 56, 190 N.E. 108.) Moreover, we have examined the black and white photograph of the deceased, and do not find it so gruesome and inflammatory as to unduly prejudice defendant. (People v. Puckett, 6 Ill.App.3d 206, 285 N.E.2d 258.) Therefore, the trial court did not abuse its discretion in allowing the photograph into evidence.

It is next urged by defendant that his arrest was unlawful in that the warrant issued for his arrest was based upon a defective complaint. Defendant reasons that, therefore, his fingerprints taken subsequent to his arrest should have been excluded from evidence. While conceding that the complaint may have been deficient, the State maintains that defendant’s arrest was valid, and thus defendant’s fingerprints were properly admissible.

Specifically, defendant contends that the complaint failed to set forth sufficient facts on which to base a finding of probable cause for arrest. The complaint, signed by one Officer Grunhard, stated: “Stanley Davis * * * committed the offense of murder in that he shot and killed one Derrick Merriweather with a gun, without lawful justification.”

No arrest warrant may issue without probable cause (Giordenello v. United States, 357 U.S. 480), and probable cause cannot be made out by merely conclusory statements that probable cause exists. (United States v. Ventresca, 380 U.S. 102.) Defendant relies upon People v. Waitts, 36 Ill.2d 467, 224 N.E.2d 257, wherein our supreme court held that “an arrest warrant, which is issued on the basis of a complaint which merely states that the complainant has just and reasonable grounds to believe that a person committed an offense, is constitutionally defective.” 36 Ill.2d 467, 470.

We are of the opinion that we need not direct our attention to the sufficiency of the complaint. It is clear that the survivor of the attack, Howard Coffins, named defendant as one of the perpetrators of the crime. This information was transmitted to the arresting officer through official lines of communication. (See People v. Payne, 6 Ill.App.3d 378, 286 N.E.2d 35; People v. Knight, 3 Cal.App.3d 500, 83 Cal. Rtpr. 530.) At that time reasonable grounds to arrest defendant without a warrant existed, and the arrest of defendant was justified. (Ill. Rev. Stat. 1971, ch. 38, par. 107 — 2(c); People v. Wright, 41 Ill.2d 170, 242 N.E.2d 180.) People v. Waitts, supra, is distinguishable from the instant case in that in Waitts the record indicated no facts upon which probable cause to arrest without a warrant could be based. See also Giordenello v. United States, supra; compare Whiteley v. Warden, 401 U.S. 560, with People v. Chimel, 68 Cal.2d 436, 67 Cal.Rptr. 421, reversed on other grounds, Chimel v. California, 395 U.S. 752.

Defendant next argues that consecutive sentences were improperly imposed and urges reversal of his attempt murder conviction for the reason that both his murder and attempt murder convictions arose from the same conduct. Defendant specifically submits that the only conduct by him was his presence at the scene. However, defendant overlooks Collins’ testimony that defendant was holding a shotgun when defendant and Bossey Jones approached the side of the car on which Derrick Merriweather was seated.

Section 5 — 2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 5 — 2(c)) provides in pertinent part:

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

In the instant case the jury was instructed as to this provision and found defendant guilty as charged. The evidence was sufficient to show the accountabffity of defendant for the acts of the group. People v. Prim, 53 Ill.2d 62, 289 N.E.2d 601; People v. Spagnola, 123 Ill.App.2d 171, 260 N.E.2d 20.

We are of the opinion that the murder of Derrick Merriweather and the attempt murder of Howard Collins were separate offenses, although related in time. Each offense involved separate elements, and the offenses were committed against separate victims. (People v. Bellamy, 8 Ill.App. 3d 606, 290 N.E.2d 645.) Therefore, defendant’s convictions for murder and attempt murder were proper, and consecutive sentences were not improper. Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4(a).

Finally, defendant requests this court to exercise its power to reduce punishments pursuant to Supreme Court Rule 615(b) (4), and reduce his sentence for murder from 35 to 100 years as imposed by the trial court to the statutory minimum of 14 years. (Ill. Rev. Stat. 1971, ch. 110A, par. 615(b)(4).) Defendant bases his argument of excessiveness of sentence on the grounds that he was 20 years of age at the time of the offense, had no prior criminal record, and no evidence was adduced that he was an active participant in the commission of the offenses.

The power of the reviewing court to disturb a sentence imposed by the trial court should be exercised with caution and circumspection due to the superior position of the trial court, during the course of the trial and of the hearing in aggravation and mitigation, to assess the appropriate punishment. People v. Fox, 48 Ill.2d 239, 269 N.E.2d 720.

In the instant case the sentence imposed for murder was within the limits set by the legislature. The trial court stated: “ I am not sure whether it was a recruiting of gentlemen in gangs or what, but I know it was an absolute execution.” We find that the sentence imposed was not excessive and that the trial court did not abuse its discretion in imposing its sentence. Therefore we will not exercise our power to reduce the sentence. (See People v. Caldwell, 39 Ill.2d 346, 236 N.E.2d 706.) Accordingly, the judgments of conviction and the sentences thereon are affirmed.

Affirmed.

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


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Danny Long, Defendant-Appellant.
    (No. 73-186;
    Second District
    June 20, 1974.

      William L. Balsley, of Loves Park, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, (James Jerz and Edward Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

Defendant was indicted for the offense of burglary of a residence on November 15, 1972, in Rockton, Illinois. He subsequently withdrew his plea of not guilty, entered into a negotiated plea, and was sentenced 2-6 years in the Illinois State Penitentiary.

The record discloses that while defendant was on parole he apparently committed several burglaries, and after being advised of his rights, he signed a confession wherein he admitted the burglary of the residence in question.

On this appeal the defendant has raised two issues: (1) the court failed to properly admonish him under Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110 A, sec. 402); and (2) the defendant was sentenced without the benefit of a written pre-sentence investigation report.

The first contention of the defendant with relation to Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110 A, sec. 402), is that the court failed to properly inform him of the possible consequences of his plea; that the court failed to determine that he understood the nature of the charge; that the court did not adequately explain his rights to trial by jury and to persist in his not guilty plea; and that the court did not advise him that he could apply for probation.

We find that the court properly advised the defendant of the minimum and maximum sentence that might be imposed for burglary. However, the court erroneously held that there was a mandatory 3-year parole provision applicable under the Unified Code of Corrections. The Unified Code specifically provides that “[p]rosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated by this Act.” (Ill. Rev. Stat. 1973, ch. 38, sec. 1008 — 2—4.) Defendant contends that inasmuch as the instant offense was committed prior to the effective date of the Code the mandatory parole provisions applicable on the completion of the sentence for burglary do not control. We agree. Defendant goes on to contend that the court in advising him of the possible minimum and maximum sentence was in error requiring reversal because of the inclusion of the possible or mandatory parole provision. With this we do not agree. The defendant, in substance, was advised of a greater possible penalty if the term of parole is to be considered a penalty. Nonetheless, the defendant after being advised of this, persisted in his plea of guilty. He was not misled in his persistence of his plea of guilty after being admonished of the possible consequences. This contention is without merit.

Defendant further contends with relation to Supreme Court Rule 402 that the court did not explain to the defendant that he might possibly receive probation. From a practical standpoint the possibility of his receiving probation after conviction of a burglary while on parole is extremely remote. Additionally, this contention was answered in People v. Barrett (1969), 118 Ill.App.2d 225, 230, 254 N.E.2d 168, 170, where the court said:

“The court’s explanation of the statutory right to apply for probation and to have a hearing on mitigation is not a necessary element of admonition.”

The court advised the defendant at length regarding his rights under Rule 402. Specifically, the court advised the defendant of the penalty that might be imposed; inquired as to whether or not the defendant signed a confession; inquired as to the details of the case and the background of the defendant; made a factual determination of the offenses committed; advised the defendant that he had the right to plead not guilty; advised the defendant of his right to trial by jury; informed the defendant of his presumption of innocence; advised defendant of his right to confront witnesses against him, of his right to waive a jury and have the judge hear the case, and said specifically:

“Now I want to know at this point whether you are pleading guilty because you did commit the offense charged, is that correct?”

The defendant answered “Yes, Sir.” Referring to the plea, the court further inquired in the following fashion:

“Did anybody threaten you or compel you to do this?”
And
“Have any promises been made to you other than in the plea agreement here today? Has anybody promised you anything other than that?”

The defendant answered “No, Sir.” The plea of guilty was then accepted. Defendant’s contention that the court did not determine whether any threats or promises were made is without merit. As to the nature of the charge, the record discloses that the defendant was advised in detail as to the offense committed by him. The indictment was read to him and he signed the confession in which he admitted the offense in question. It might well be noted that the defendant was not a stranger to this type of offense as he was on parole for burglary at the time of the instant crime. We find that the provisions of Supreme Court Rule 402 were specifically complied with by the trial court.

We turn then to defendant’s contention that under the provisions of the Unified Code of Corrections, (Ill. Rev. Stat. 1973, ch. 38, sec. 1005— 3 — 1), the court erred in not ordering a presentence investigation. Counsel for the State has apparently presumed, as contended by defendant, that the provisions of the Unified Code pertaining to mandatory presentencing investigations and the mandatory provision for a hearing in aggravation and mitigation may be applicable to those cases which have not reached final determination. The provisions of the Unified Code are applicable where the Code so provides, primarily in the area of sentences as found in Ill. Rev. Stat. 1973, ch. 38, sec. 1008 — 2—4, which provides:

“Prosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated by this Act If the offense being prosecuted has not reached the sentencing stage or a final adjudication, then for purposes of sentencing the sentences under this Act apply if they are less than under the prior law upon which the prosecution was commenced.” (Emphasis supplied. )

We find no authority for the application of other provisions of the Act, unless so indicated therein.

We therefore hold that the provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, sec. 1005 — 3—1), relating to mandatory presentencing investigations in felony cases are not applicable to those cases prosecuted prior to the adoption of the Unified Code of Corrections, including those cases which have not reached final adjudication. While the 1971 applicable provisions of the prior Act (Ill. Rev. Stat. 1971, ch. 38, sec. 1 — 7(g)) provided for a hearing in aggravation and mitigation, the courts of Illinois under that Act have uniformly held that the defendant was deemed to have waived such a hearing unless specifically requested by him. (People v. Nelson (1968), 41 Ill.2d 364, 367, 243 N.E.2d 225; People v. Fuca (1969), 43 Ill.2d 182, 185, 251 N.E.2d 239; People v. Gibson (1973), 11 Ill.App.3d 875, 297 N.E.2d 31; People v. Moore (1973), 15 Ill.App.3d 1041, 305 N.E.2d 609.) Section 1 — 7(g) of the applicable 1971 statute does not provide for a presentence investigation. As pointed out in the Committee Comments to section 1005— 3 — 1: “This section expands the hearing in aggravation and mitigation to include tire presentation of a mandatory presentence report in all felony cases.” (Emphasis supplied.)

We affirm the conviction of the trial court.

Affirmed.

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


author: Mr. JUSTICE GUILD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Huey Howard, a/k/a Stafford L. Westbrooks, Jr., Defendant-Appellant.
    (No. 73-8;
    Second District
    June 20, 1974.
    Ralph Ruebner, of the State Appellate Defender’s Office, of Elgin, for appellant.
    John J. Bowman, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. JUSTICE GUILD.


author: Mr. JUSTICE T. MORAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Carl Douglas Prater, Defendant-Appellant.
    (No. 73-228;
    Second District
    April 30, 1974.
    George Pease, Public Defender, of Waukegan (Michael J. Boyd, Assistant Public Defender, of counsel), for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, for the People.
   Opinion by

Mr. JUSTICE T. MORAN.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Dean Chellew, Defendant-Appellant.
    (No. 73-81;
    Second District
    June 20, 1974.
    John O. Vogel, of Glen Ellyn, for appellant.
    John J. Bowman, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendant Ronald Dean Chellew was jointly indicted and tried for committing a deviate sexual assault upon a fellow prisoner while the defendant was incarcerated in the Du Page County jail for a prior similar offense allegedly committed against a minor female. In the instant case defendant was tried by a jury and found guilty. This is a post-conviction proceeding relating to the sentence of the defendant.

In the prior case, People v. Chellew (1968), 104 Ill.App.2d 100, 243 N.E.2d 49, the defendant appealed to this court and the conviction was reversed because of the prosecution’s comment upon the failure of the defendant to testify. However, in that case we held:

“There is nothing so implausible or inconsistent about any of the evidence that we can say, as a matter of law, that there is a reasonable doubt of the defendant's guilt. The weight of the evidence was for the jury to determine, and our review of the record leads us to the conclusion that the evidence was sufficient to support the verdict.” (104 Ill.App.2d at p. 103.)

The matter was remanded to the trial court for a new trial because of prosecution’s comment but the matter was never retried.

In the case before us the trial court in the sentencing of the defendant, after the judgment of guilty by the jury, considered the prior conviction and also considered the fact that the defendant was on parole for burglary at the time of the commission of the instant offense.

The sole contention in the post-conviction case before us is that a constitutional issue is raised in that upon sentencing the defendant, the trial court considered a prior conviction which was subsequently reversed by this appellate court. As authority for this contention the defendant has cited United States v. Tucker (1972), 404 U.S. 443, 30 L.Ed.2d 592, 92 S.Ct. 589. Tucker is most similar to the factual situation of the case before us. In Tucker the trial court considered two convictions of the defendant in determining the sentence and it was further ascertained that the defendant was without counsel in those convictions. The Supreme Court held that “the federal case might have been different if the sentencing judge had known that at least two of respondent’s previous convictions had been unconstitutionally obtained.” The Court then remanded the case for reconsideration of the respondent’s sentence. We will agree that the consideration by the trial court of a conviction subsequently set aside as indicated above does in fact present a constitutional question. We will further agree that the trial court imposing the instant sentence had knowledge of the prior conviction for a comparable sex act prior to the incarceration of the defendant.

The sentence imposed herein was well within the statutory limitation at the time of the imposition thereof. The term of a sentence does not present a constitutional question cognizable in a post-conviction proceedings. (People v. Ballinger (1973 ) 53 Ill.2d 388, 292 N.E.2d 400.) However, in view of the case cited by the defendant, United States v. Tucker, supra, we affirm the conviction of the defendant and remand the same for resentencing. Inasmuch as this was a forcible crime consisting of a deviate act against a fellow prisoner we cannot help but note the comment of the dissent in United States v. Tucker where the court, in observing that the case would go back to the same judge who imposed the original sentence, stated:

“On remand the case presumably will go once again to Judge Harris, and undoubtedly the same sentence once again will be imposed. Perhaps this is all worthwhile and, if so, I must be content with the Court’s disposition of the case on general principles. I entertain more than a mild suspicion, however, that there is an exercise in futility, that the Court is merely marching up the hill only to march right down again, and that it is time we become just a little realistic in the face of a record such as this one.” 404 U.S. at 452, 30 L.Ed.2d at 599.

We expressly hold that the provisions of the Unified Code of Correetions relative to sentences (Ill. Rev. Stat. 1973, ch. 38, sec. 1008 — 2—4) is not applicable in this post-conviction appeal. (People v. Seidler (1974), 18 Ill.App.3d 705, 310 N.E.2d 421.) The conviction is affirmed and this case is remanded to the trial court for post-conviction reconsideration of the respondent’s sentence.

Affirmed in part; remanded in part.

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


author: Mr. JUSTICE RECHENMACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roger D. Heal, Defendant-Appellant.
    (No. 73-3;
    Second District
    July 8, 1974.
    Steven Helfer, Public Defender, of Oregon, for appellant.
    Richard L. Caldwell, State’s Attorney, of Oregon, for the People.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

Roger D. Heal was convicted of violation of section 11-709 of the Vehicle Code (Ill. Rev. Stat. 1971, ch. 95%, par. 11 — 709) and fined $200 and costs. He appeals from this conviction on the grounds that (1) the court, - in assessing the fine, considered the evidence of previous traffic convictions. Defendant argues that this was improper because he was not shown to have been represented by counsel at such previous convictions, therefore, such convictions are not admissible, and (2) he was improperly charged because section 11 — 709 of the Code refers to improper lane usage and the facts do not constitute improper lane usage.

A verbatim transcript of the proceedings at the trial is not available for the reason that no court reporter was in attendance. The record on appeal, therefore, contains no testimony and the only statement of facts is the State’s answer to a defense discovery motion requesting a statement of facts and the probation officer’s report. A statement was prepared by defense counsel to be incorporated in the record in lieu of a verbatim transcript. However, since this statement was not stipulated to by the State’s Attorney and since the defendant was in default as to time of filing his statement of facts, the judge did not allow the statement of facts to be made a part of the record.

From the probation officer’s report, however, and. the State’s answer to the defendant’s discovery motion, it appears that the defendant went off the road on the right-hand side, spun around and went through a fence and into a field. According to the probation officer’s report defendant had been to a wedding and had had a few beers. The incident occurred at about 1:50 A.M. The probation officer’s report also indicated one reckless driving conviction, as the result of which defendant paid a $25 fine and six speeding convictions, all of which occurred between December 30, 1964, and April 8,1971.

At the hearing in aggravation and mitigation the judge was furnished with the probation report and thus was apprised of the defendant’s previous reckless driving and speeding convictions before assessing a fine of $200 against him. Defendant contends that the evidence of previous convictions induced the court to impose a heavier fine in this case than would otherwise have been imposed and that since there was no-evidence that he had had the benefit of counsel or had waived counsel on the occasions of these previous convictions, the convictions cannot properly be considered in assessing his present fine. Defendant further contends that the fact that they were admitted into evidence requires that the case be remanded for possible reduction of the fine.

Defendant cites two United States Supreme Court cases, Burgett v. Texas (1967), 389 U.S. 109, 19 L.Ed.2d 319, 88 S.Ct. 258, and United States v. Tucker (1972), 404 U.S. 443, 30 L.Ed.2d 592, 92 S.Ct. 589, in support of these contentions. Both of these were felony cases where the disclosure to the trial court of previous offenses resulted in substantial penitentiary terms for the respective defendants. In those cases the United States Supreme Court held the evidence of previous convictions was improperly admitted where the defendants had not been represented by counsel at such convictions.

We see no parallel between these felony cases, punishable by penitentiary sentences under recidivist statutes, and the case before us. We are mindful, of course, that under Gideon v. Wainwright (1963), 372 U.S. 335, 9 L.Ed.2d 799, 83 S.Ct. 792, and Argersinger v. Hamlin (1972), 407 U.S. 25, 32 L.Ed.2d 530, 92 S.Ct. 2006, the defendant has a right under the Sixth Amendment to the United States Constitution to be represented by counsel in State as well as Federal courts, even in misdemeanor cases. Those cases are reflected in the recent decisions of our supreme court in People v. Morrissey (1972), 52 Ill.2d 418, and People v. Coleman (1972), 52 Ill.2d 470.

However, in all the cases cited above there was evidence in the record that (1) the defendant was actually without benefit of counsel and did not knowingly waive counsel and (2) that tire defendant’s conviction, whether by reason of past or present crimes, resulted in a prison sentence.

There is nothing in the record before us to indicate that the defendant was without the benefit of counsel at his prior convictions or that he did not knowingly waive counsel.

The record here shows that the defendant stipulated to the correctness of the probation officer’s report even though the defendant was certainly aware that the probation report and the information it contained would be considered by the court in connection with sentencing.

But, in any event, it is plain from a careful reading of Argersinger and the Illinois cases of Morrissey and Coleman which followed it, that they are founded on the underlying principle that a person should not be deprived of his liberty under any circumstances without the benefit of counsel to defend him against such a serious deprivation. Whether the punishment is for a felony or a misdemeanor, these cases tell us where one’s personal liberty is at stake he is entitled as a matter of due process to the help and guidance of counsel. That such was the rationale of Argersinger is apparent from the language of the decision (407 U.S. at 37, 32 L.Ed.2d at 538), “that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” (Emphasis added.) That the decision reflects concern as to the possibility of personal confinement is further emphasized by the following language (407 U.S. at 40, 32 L.Ed.2d at 540):

“Under the rule we announce today, every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel. He will have a measure of the seriousness and gravity of the offense and therefore know when to name a lawyer to represent the accused before the trial starts.
The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of 'the guiding hand of counsel’ so necessary when one’s liberty is in jeopardy.” (Emphasis added.)

It is apparent, therefore, that Argersinger is oriented toward cases resulting in a jail or prison sentence and the doctrine of that case should have no application where no confinement was imposed. We do not believe it was ever intended to be extended to a traffic case where no incarceration, but only a fine, had been imposed.

Dealing with this point, the Texas Court of Criminal Appeals, in an opinion delivered March 27, 1974, held as follows:

“[P]rior final convictions which are otherwise admissible may be used for the purpose of impeachment or enhancement of punishment even though obtained while the defendant was not represented by counsel and had not waived counsel, so long as the punishment assessed in the prior convictions did not include imprisonment.” Aldrighetti v. State, 507 S.W.2d 770 at 772.

It is our opinion, therefore, that misdemeanors generally, where no sentence of confinement is imposed, are outside the contemplation of Argersinger.

Defendant also argues that he was convicted under the wrong section of the Illinois Vehicle Code (Ill. Rev. Stat. 1971, ch. 95½). The complaint shows he was charged with violation of section 11 — 709 of the statute, whereas the defendant contends he should have been charged under another section. He does not specify which section would have been the correct one, although he suggests that perhaps section 11 — 704 would have been more appropriate. In any event, the brief statement of facts we have does not indicate that it was erroneous to have charged the defendant under section 11 — 709. Paragraph (a) of that section states, “A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” While we do not have the verbatim transcript before us, inasmuch as the facts we do know are not inconsistent with the charge under the language in section 11 — 709, we find no error. The judgment of the trial court is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE SEIDENFELD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. F. Robert Peacock, Defendant-Appellant.
    (No. 73-227;
    Second District
    June 26, 1974.

      George Pease, Public Defender, of Waukegan (Michael J. Boyd, Assistant Public Defender, of counsel), for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.