author: Mr. PRESIDING JUSTICE TRAPP

text:
    E. V. Kennedy, Plaintiff-Appellant, v. Community Unit School District No. 7, Champaign County, et al., Defendants-Appellees.
    (No. 12145;
    Fourth District
    November 14, 1974.

      N. E. Hutson, of Monticello, for appellant.
    Hatch, Corazza, Baker & Jensen, of Champaign (Harold A. Baker, of counsel), for appellees.
   Mr. PRESIDING JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff appeals the judgment entered upon dismissal of his second amended complaint seeking mandamus, actual damages in the sum of $25,992, and punitive damages in the sum of $90,000. He alleged wrongful and illegal dismissal as a principal and teacher.

Plaintiff had been employed as a tenured teacher and principal of Pesotum Elementary School. He attained the age of 65 years on December 14, 1969. On March 26, 1970, defendants advised plaintiff by letter:

“Reference Section 24 — 11 of the ‘School Code of Illinois’ that contractual service shall cease at the end of the school term following the 65th birthday. The Board of Education has decided not to offer you a contract of employment for next school year.”

It is sa:d that the failure to offer a contract violates the provisions of the School Code (Ill. Rev. Stat. 1969, ch. 122, pars. 24 — 11, 24 — 12), the Age Discrimination Act (Ill. Rev. Stat. 1967, ch. 48, par. 881 et seq.), and plaintiff’s rights of due process and equal protection under the federal constitution.

Section 24 — 11 of the School Code at issue provides in its fourth paragraph:

“Contractual continued service shall cease at the end of the school term following the 65th birthday of any teacher, and any subsequent employment of such a teacher shall be on an annual basis.” (Emphasis supplied.)

Plaintiff contends that the term of contractual continued service did not terminate until the end of the school year (1970), following his 65th birthday in December, 1969; that he was a tenured teacher at the time of thé notice in March, 1970, so that he was entitled to written notice stating specific charges as enumerated in section 10 — 22 of the School Code, a bill of particulars and a hearing as provided in section 24 — 12 of such Code.

Section 24 — 11 clearly states that the extension of employment contracts for the school terms commencing subsequent to a teacher’s 65th birthday is not required by virtue of the teacher’s status of contractual, continued service. Thus, plaintiff argues that he is entitled to ■ a hearing on specific charges before defendant can “terminate” a non-existent right to contractual continued service. Plaintiff’s conclusion appears to be contrary to the plain language of section 24 — 11 in that it leaves meaningless the provision “and any subsequent employment-of such teacher shall be on an annual basis.” Appellate courts cannot restrict nor enlarge the plain meaning of an unambiguous statute (Bovinette v. City of Mascoutah, 55 Ill.2d 129, 133, 302 N.E.2d 313), and:

“ ‘[I]t is a cardinal rule in construing statutes that they are to be construed so as to give effect to each word, clause and sentence, so that no word, clause or sentence shall be considered superfluous. or void, [citations] and a statute should be so construed, if possible, as to give to each word and sentence its ordinary and accepted meaning.’” Vaught v. Industrial Commission, 52 Ill.2d 158, 165, 287 N.E.2d 701.

Paragraph 3 of section 24 — 11 includes:

“[A]ny teacher employed on a full-time basis, not later than January 1 of the school term, shall receive written notice from the employing board at least 60 days before the end of any school term whether or not he will be re-employed for the following school term.”

We hold that where, as here, a teacher is given such notice dining the school term during which he reaches age 65, his employment is properly terminated at the end of that school term,, without notice of specific charges or a hearing that would otherwise be required by section 24 — 12 of the School Code.

As a constitutional issue, plaintiff urges that the portion of section 24 — 11 at issue violates the 14th amendment of the United States Constitution by its failure to provide notice of specific charges and a hearing upon such. To determine whether plaintiff has alleged an interest within that amendment’s protection of liberty and property, one must ascertain the nature of the interest at stake. (Board of Regents of State Colleges v. Roth, 408 U.S. 564, 570, 571, 33 L.Ed.2d 548, 92 S.Ct. 2701.) Not to be rehired raises no issue of deprivation of liberty. (Roth; Powell v. Jones, 56 Ill.2d 70, 305 N.E.2d 166.) In certain circumstances, the courts have found a property right in continued, employment. To demonstrate an interest in such employment protected by procedural due process:

“A person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. 564, 577.

Interests in property are not created by the Constitution, but “[rjather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” (Roth, 408 U.S. 564, 577, 33 L.Ed.2d 548, 561, 92 S.Ct. 2701, 2709; Powell v. Jones, 56 Ill.2d 70, 79, 305 N.E.2d 166, 171.) Thus, it must be determined that plaintiff possessed an interest in continued employment entitled to the protection of federal due process. It is clear that within the terms of the statute he was not entitled to the statutory contractual service. The complaint alleges no other rules or representations that would amount to “de facto tenure” beyond age 65 within the meaning of Perry v. Sindermann, 408 U.S. 593, 33 L.Ed. 2d 570, 92 S.Ct. 2694, so that plaintiff has not alleged a “legitimate claim of entitlement of continued employment.” (Perry v. Sindermann; Powell v. Jones.) We conclude that the complaint fails to state a cause of action in the context of denial of due process.

Plaintiff argues, in the alternative, that as section 24 — 11 permits the nonretention of teachers over 65 without a statement of charges or a hearing thereon, but requires notice of charges and hearing as to those teachers under 65, plaintiff has been denied the equal protection of law contrary to the 14th amendment of the United States Constitution. It is a matter of general and common knowledge that many persons expect to and do retire from their employment at the age of 65 years. Such age marks the eligibility for benefits both under the Social Security Act of the United States and many public and private pension plans. It is thus apparent that the classification is not “inherently suspect and subject to close judicial scrutiny.” (Graham v. Richardson, 403 U.S. 365, 29 L.Ed.2d 534, 91 S.Ct. 1848.) If no fundamental right is concerned, a statutory classification which is reasonable and bears a rational relationship to a proper State objective, there is no denial of constitutional equal protection. Village of Belle Terre v. Boraas, — U.S. —, 39 L.Ed.2d 797, 803, 94 S.Ct. 1536.

Plaintiff alleges that the nonrenewal of his contract violated the Age Discrimination Act (Ill. Rev. Stat. 1971, ch. 48, par. 881 et seq.). Section 884(1) provides, in relevant part, that:

“It is an unlawful employment practice for an employer:
(1) To refuse to hire, to discharge, or otherwise to discriminate against any individual with respect to his terms, conditions or privileges of employment, otherwise lawful, because of such individual’s age, when the reasonable demands of the position do not require such an age distinction; 9 9

The Act appears to be directed against “[hjiring bias against workers over 45 years of age 9 9 Ill. Rev. Stat. 1969, ch. 48, par. 881(b).

The statute, upon its face, does not state any age beyond 45 years at which it ceases to be applicable. Comparable Federal legislation provides that it shall not include persons who have reached 65 years of age. (29 U.S.C.A. §631 (1974).) It appears that most states provide that the statute shall cease to apply when a person reaches the age of 65 years. See Annot, 29 A.L.R. 3d 1407 (1970).

The statute (Ill. Rev. Stat. 1969, ch. 48, par. 883) provides:

“Nothing in this Act affects the retirement system of any employer where such system is not merely a subterfuge to evade the purpose of this Act; 9 9

This State, for many years, has provided a system for teachers’ annuity and pension. Section 16 — 132 of the Pension Code (Ill. Rev. Stat. 1969, ch. 108%, par. 16 — 132) provides an annuity and pension for teachers at age 55 who have 20 years of service; at age 60 who have 10 years of service and at age 62 who have 5 years of service. The record discloses that plaintiff has long qualified under the benefits of such annuity and pension system.

The long existence of the statutory system of annuities and pensions and its general application to teachers throughout the State demonstrate that the “retirement system” is not a subterfuge to evade the Age Discrimination Act.

The latter Act became effective in 1967. We note that Public Act 76-1138, approved August 28,1969, amended section 24 — 11 of the School Code. Such amendment reenacted the provision that contractual continued service shall cease at the end of the school year following the 65th birthday of the teacher. We conclude that the sum of the legislative acts demonstrates an intended interrelation between the Teachers’ Retirement System of Illinois and section 24 — 11 of the School Code. We cannot conclude that the legislature intended that the Age Discrimination Act make inoperative a portion of section 24 — 11 of the School Code and such Teachers’ Retirement System. Courts should interpret the several statutes so as to give a reasonable meaning to each. Arnolt v. City of Highland Park, 52 Ill.2d 27, 282 N.E.2d 144.

The judgment below is affirmed.

Affirmed.

CRAVEN and SIMKINS, JJ., concur,


source: Caselaw Access Project

author: Mr. PRESIDING. JUSTICE SMITH

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Lester Smith, Defendant-Appellant.
    (No. 12326;
    Fourth District
    November 14, 1974.
    John F. McNichols, of State Appellate Defender’s Office, of Springfield, for appellant.
    Roger W. Thompson, State’s Attorney, of Lincoln (John W. Foltz, of Circuit Attorneys Project, of counsel), for the People.
   Mr. PRESIDING. JUSTICE SMITH

delivered the opinion of the court;

The defendant appeals from a judgment of the circuit court of Logan County sentencing him from 1 to 3 years in the penitentiary for illegal possession of a controlled substance in violation of section 402(b) of the Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56%, par. 1402(b)). In this court the defendant contends (1) that the court inadequately admonished him as to the consequences of his guilty plea, and (2) that the court abused its discretion in imposing a term of imprisonment in the penitentiary without giving the defendant the opportunity to be sentenced under the Dangerous Drug Abuse Act (Ill. Rev. Stat. 1973, ch. 91%, par. 120.1 et seq.).

On November 19, 1972, the defendant, then 19 years of age, took an overdose of barbiturates and entered a hospital in Lincoln, Illinois. His condition was reported to the police and they arrived at the emergency room and ascertained from the defendant that he had taken some 62 phenobarbital tablets and told the officer that there were other tablets to be found in a boot. The officer found an additional 350 such tablets in the defendant’s left boot. Defendant was charged with illegal possession of a controlled substance and was admitted to bail on his own recognizance on a plea of not guilty. His bond was revoked after he got into a fight at home and created a disturbance requiring police intervention.

Defendant requested a psychiatric examination and was examined by two psychiatrists and a psychologist. They found he was addicted to the use of drugs and that over a period of time beginning when he was 14 years of age he had used drugs but that his use of drugs was apparently in remission. He was quite a heavy drinker and had been so since he was 14 years of age. He testified and told the psychiatrists that he used drink as a substitute for drugs to alleviate his depressive mood. The not guilty plea was withdrawn and a plea of guilty entered.

The operative events occurred prior to the effective date of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1001 — 1—1 et seq.). The court advised the defendant that since the sentence under the provisions of the Code was more severe than under the old act, he would utilize the old law in the imposition of penalty. In addition, the State’s Attorney advised the court in defendant’s presence that he would not recommend a penitentiary sentence. The court then went into great detail, explaining that he was not bound by such recommendation and in accurate, adequate and precise terms fully admonished the defendant as to the consequences of his plea and determined that the guilty plea was voluntarily entered. There is no inadequacy in the admonitions given and this alleged error is without merit.

: The second alleged error is that the trial court abused its discretion in not utilizing the provisions of the Dangerous Drug Abuse Act (Ill. Rev. Stat.. 1973, ch. .91%, par. 120.1, et.seq,.). Filed simultaneously with this opinion is our case of People v. Dill, 23 Ill.App.3d 503. We should note that factually as to the use of drugs that case is almost on all fours with the one we consider. It does differ from this case in that the issues there considered arose over the court’s revocation of defendant’s probation granted on a plea of guilty for the offense of burglary; while here we consider the effective provisions of the Dangerous Drug Abuse Act in connection with a crime wholly related to the use of drugs. The same distinction may be made in connection with People v. Robinson, 12 Ill.App.3d 291, 297 N.E.2d 621, People v. Clinkscale, 14 Ill.App.3d 226, 302 N.E.2d 181, and People v. Belleville, 20 Ill.App.3d 1088, 314 N.E.2d 35, an observation, however, that does not require a treatment different from that of Dill.

We adhere to the statements concerning the Dangerous Drug Abuse Act which we stated in Dill. There, as here, there was no reference made to the Dangerous Drug Abuse Act. Neither defendant’s counsel nor the State’s Attorney nor the trial judge made any reference to it. Such being true, we are therefore unable to determine from this record whether or not the trial judge did exercise a discretion in this case where he knew or should have known that the defendant had a demonstrable addiction problem. In the other cases, the addiction problem was brought to the attention of the trial court through the efforts of the defendant himself through motion. In this case, the determination of addiction was brought squarely into the record through the findings of the psychiatrists when making the determination of whether or not this defendant was competent to stand trial. It is clear that the State’s Attorney recommended here, as he did in Dill, probation under close supervision because of the drug addiction — treatment somewhat similar to that available under the Dangerous Drug Abuse Act.

We recognize the purposes of the legislature in adopting the Dangerous Drug Abuse Act to be two-fold: (1) an effort to curb what appears to be a springboard or incentive resulting in the commission of criminal offenses, and (2) to rehabilitate the defendant where possible. The exercise by the trial court of its discretion in admitting the defendant to probation and requiring treatment under the Dangerous Drug Abuse Act is a disposition imposed as a rehabilitative rather than a criminal sanction. It is a disposition in lieu of a criminal sanction. When it fails then a sentence as defined in the Criminal Code foHows.

Where the record shows as it does here that the defendant was ad-dieted to the use of drugs, then it must likewise affirmatively show that the court considered probation and treatment as an alternative to criminal sanctions and rejected the alternative in the exercise of a sound discretion based on the record facts.

Accordingly, the judgment of conviction is affirmed, the sentence is vacated and the cause remanded to the trial court with directions to consider whether probation and treatment are properly available under the Dangerous Drug Abuse Act and for an appropriate disposition of this defendant based upon such reconsideration.

Affirmed in part; reversed in part, and remanded with directions.

CRAVEN and KUNCE, JJ., concur.


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steven Michael Barnes, Defendant-Appellant.
    (No. 12194;
    Fourth District
    November 14, 1974.

      John F. McNichols and John L. Swartz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (Michael Prall, of Circuit Attorneys Project, of counsel), for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant was found guilty of voluntary manslaughter by a jury and was sentenced to imprisonment of 6 to 18 year's. The sole issue raised on this appeal is the alleged excessiveness of sentence.

On November 16, 1971, defendant (an A.W.O.L. 18-year-old marine) was picked up by Charles R. Cloud in Champaign as the defendant was hitchhiking to Cedar Rapids, Iowa, to visit his sister. Shortly after defendant entered the automobile, Cloud produced some books picturing homosexual acts and gave them to defendant to read, which he did. Defendant then fell asleep. He awakened when Cloud left a completed portion of the interstate and entered upon route 150. Barnes had been over this route before and was aware of detours from the as yet uncompleted 1-74 upon which he had been hitchhiking. He then went back to sleep; he next awoke as Cloud was driving up a lane into an abandoned farm. Cloud stopped the automobile in an area partially shielded by weeds and bushes approximately 200 feet from the highway.

Cloud then placed his hand on defendant’s left thigh and offered to perform a homosexual act upon him. When defendant refused the offer, it was repeated several times, each time being rebuffed by defendant. An argument between the two followed with Cloud getting out of the car and saying, “I will get you,” and calling defendant a name. Defendant immediately got out of the car and the two met in front of it. Cloud grabbed for defendant and he ducked under Cloud’s arm, pushing him in the process. Defendant jumped back, pulled out a pistol he had concealed in his belt, and shot Cloud. Cloud was shot near the left shoulder blade and the bullet severed the spinal cord, causing immediate death.

Defendant Barnes admitted the shooting and also admitted striking Cloud behind the left ear as he lay on the ground when he saw Cloud’s head move slightly. After taking his wallet and change, Barnes covered up Cloud’s body with an old army blanket obtained from the automobile. He then took Cloud’s automobile and proceeded on to his sister’s home in Cedar Rapids, Iowa. The next day defendant returned to his home in Shively, Kentucky. He abandoned the automobile in Kentucky.

.' From the instructions given in this case, it is clear the jury found defendant was unreasonable in his belief that the circumstances were such that his killing of Cloud was a justifiable use of force. While sentence was imposed before the effective date of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, f 1001 — 1—1 et seq.), he argues that a final adjudication has not been reached in this casé, and therefore the provisions of the Code are applicable because the sentences for voluntary manslaughter are less under it than under the prior law. At the time defendant was sentenced, the penalty provided by the Criminal Code for voluntary manslaughter was imprisonment from one to 20 years. (Ill. Rev. Stat. 1971, ch. 38, j[9 — 2(c).) Under the Code, voluntary manslaughter is a Class 2 felony. (Ill. Rev. Stat. 1973, ch. 38, j[ 9 — 2(c).-) Class 2 felonies are punishable under the Code by imprisonment of a minimum term of one year, and a maximum term of 20 years. (Ill. Rev. Stat. 1973, ch. 38, jf 1005 — 8—1(b)(3).) Additionally, this provision of the Code indicates the minimum term shall be one year unless the court, considering the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term. It is this latter provision that defendant contends makes the sentence under the Unified Code of Corrections less than it was at the time of his sentencing. It is upon this same provision that defendant bases his contention that the 6- to 18-year term of imprisonment which he received was excessive.

It is true that cases pending on appeal have not reached a final adjudication. (People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269; People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.) However, if the minimum sentence for a particular offense is the same under the Unified Code of Corrections as it was under the prior law, the existence of the requirement that a one-year minimum be given unless the court finds a higher minimum justified does not serve to make the Unified Code of Corrections applicable to sentences handed down before the effective date of that Code. People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1.

The deceased was retired after 22 years service in the Army and working as a security guard at the time of his death. He was approximately 6' tall and weighed 210 lbs. The defendant was 18 years old and stood about 5'4" and weighed 135 lbs. Although the jury found defendant was unreasonable in his.belief that circumstances existed which would justify the killing, defendant contends, the trial court did not take into consideration the great disparity in size between Cloud and defendant; the fact that defendant was being subjected to homosexual advances; and the lack of any prior admissible convictions.

In People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673, the supreme court set forth the guidelines for reviewing severity of sentences. They there indicated that if a sentence imposed is within the limits prescribed by the legislature, an appellate court should not disturb the sentence unless it clearly appears that the penalty constitutes a departure from the fundamental law and its spirit and purpose, or that the penalty is manifestly in excess of the constitutional requirement that all penalties should be proportioned to the nature of the offense. (This is now phrased as “seriousness of the offense” in article I, section 11 of the 1970 Constitution of Illinois.) The court in Taylor went on to note that the appellate court’s authority to reduce sentence should be exercised with considerably caution and circumspection because of the trial judge’s superior opportunity to make a sound determination concerning the appropriate punishment because of his observation of defendant during the course of the trial and at the sentencing hearing.

It is clear that the trial judge carefully considered the appropriate sentence to be imposed in this case. He did not impose the sentence recommended either by the State or by defense counsel. He carefully considered the effect of the 6-year minimum term of imprisonment upon the defendant’s parole possibilities and the amount of time already served by defendant while awaiting trial. He also took into account defendant’s lack of a prior record. The court took into consideration not only the seriousness of the admitted facts, but also the aggravating circumstances.

The record discloses that defendant was a high school dropout, A.W.O.L. from the Marine Corps, without employment, and hitchhiking from Kentucky to Iowa when the offense occurred. The record also discloses considerable drug usage by defendant. Defendant had a concealed stolen pistol in his possession and could well have used this to effect his escape if he feared Cloud, rather than to kill him. Defendant’s acts subsequent to the killing also bear on the seriousness of the offense. He struck Cloud behind the left ear after the shooting, robbed him, and stole his automobile. He then proceeded to his sister’s in Iowa and returned to Kentucky in the automobile. In light of these circumstances, we do not feel the sentence imposed was excessive within the proscription of Taylor. The judgment of the circuit court of McLean County is affirmed.

Judgment affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph L. Bricker, Defendant-Appellant.
    (No. 12238;
    Fourth District
    November 14, 1974.

      John F. McNichols and J. Daniel Stewart, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (Kai A. Wallis, of Circuit Attorney Project, of counsel), for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant was indicted on two counts of armed robbery. He was tried by a jury and was found guilty of Count I and acquitted on Count II. A judgment was entered on the verdict and defendant was sentenced to an indeterminate term of 5 to 10 years. Defendant appeals from the judgment of conviction and the sentence imposed.

Three issues are raised on appeal; however, we need only address two of those issues. First, defendant urges that his guilt was not established beyond a reasonable doubt; secondly, defendant contends that the trial court committed reversible error when denying his motions for a severance of the two counts of the indictment.

Count I of the indictment in question charged defendant with armed robbery of Wayne Wilkinson, the desk clerk at the Illinois House Hotel located in Bloomington, Illinois. The armed robbery occurred on July 14, 1972, around 3:30 A.M. Count II charged defendant with armed robbery of John Murphy, an attendant at the Interstate Skelly Service Station. The station is located south of Bloomington at routes 51 and 74. The incident also occurred on July 14, 1972, around 12:30 A.M. Defendant plead not guilty to both counts.

On October 31, 1972, prior to the trial, defendant offered an oral motion requiring the State to elect which count it intended to proceed on at trial. It was submitted that the two offenses charged in the two counts were distinct and independent crimes, and, that as a result, defense counsel had not had sufficient time to properly prepare for trial on both counts. The trial court denied the motion, observing that defense had ample time to prepare.

Thereafter, on November 1, 1972, defendant filed a written motion for severance of the two counts. The motion urged that defendant’s case would be prejudiced due to the confusion which would result in the minds of the jurors when various witnesses testified concerning unrelated armed robberies in the same proceedings. Defense counsel expressed the fear that the jury would be in a position to compromise its verdicts. The State argued that the two counts of armed robbery represented two parts of what comprised an overall comprehensive transaction. The trial court denied the motion to sever.

On appeal, defendant submits that he was not proven guilty beyond a reasonable doubt on the grounds that testimony of Wayne Wilkinson was insufficient to establish defendant’s guilt, and that the initial identification of defendant by Wilkinson was the by-product of a suggestive one-man showup. The showup took place shortly after the offense occurred.

We have reviewed the record dealing with defendant’s motion to suppress the identification. We find that the trial court’s ruling, refusing to suppress the identification, was proper under the totality of circumstances’ test. (Neil v. Biggers, 409 U.S. 188, 34 L.Ed.2d 401, 93 S.Ct. 375.) Wilkinson’s eyewitness testimony was admissible. Moreover, the fact that he was the only eyewitness to the crime charged'in Count I does not mean that defendant’s guilt was not established beyond a reasonable doubt. The positive identification of one witness is sufficient to support a conviction, and inconsequential omissions and inconsistencies in a description given to the police are elements for the jury to consider in determining the weight to be given testimony dealing with identification. (People v. Guyton, 53 Ill.2d 114, 290 N.E.2d 209.) The finding of guilt by the trier of fact will not be disturbed unless the evidence is so improbable as to leave a reasonable doubt of guilt. People v. Curry, 56 Ill.2d 162, 306 N.E.2d 292.

Next, defendant contends that the two separate acts of armed robbery did not constitute acts which were part of the same comprehensive transaction, and, accordingly, the joinder of the offenses was prejudicial to his case and improper under section 111 — 4(a) of the Code of Criminal Procedure. That provision states:

“Two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are based on the same act or on 2 or more acts which are part of the same comprehensive transaction." Ill. Rev. Stat. 1971, ch. 38, jf 111 — 4(a).

The critical question is whether the two or more acts are part of “the same comprehensive transaction.” (People v. Petitjean, 7 Ill.App. 3d 231, 287 N.E.2d 137.) If they are not, then the trial court abused its discretion in not granting defendant’s motion for severance. See Ill. Rev. Stat. 1971, ch. 38, ff 3 — 3(c), 114 — 8.

It is axiomatic that a defendant may not be placed on trial, over his timely objection, on an indictment charging separate offenses when it appears these offenses are not part of one and the same transaction, but are “separate and distinct both in law and fact. [Citations.] A defendant cannot be forced to trial on disassociated felonies.” People v. Fleming, 121 Ill.App.2d 97, 102, 257 N.E.2d 271, 273.

In this case, the defendant was charged with the commission of two armed robberies. The first armed robbery occurred around 12:30 A.M. at a service station located south of Bloomington on Routes 51 and 1-74 in McLean County. The second armed robbery occurred at approximately 3:30 A.M. at a hotel located in downtown Bloomington, several miles from the location of the first armed robbery. There is nothing in the record to establish that there was a concerted plan of action or scheme on the part of defendant that would link the two armed robberies. They are separate and independent felonious acts. Under the cited authority, the State should have tried defendant in separate proceedings for each offense.

Likewise, defendant’s motion for severance filed pursuant to section 114 — 8 of the Code of Criminal Procedure should have been granted by the trial court. Section 114 — 8 states:

“If it appears that a defendant or the State is prejudiced by a joinder of related prosecutions or defendants in a single charge or by joinder of separate charges or defendants for trial the court may order separate trials, grant a severance of defendants, or provide any other relief as justice may require.” (Ill. Rev. Stat. 1973, ch. 38, f 114 — 8.)

Since the State improperly joined the two charges under section 111 — 4 (a), it is certain that the granting of a severance by the trial court would have been in the best interest of justice. The failure to do so deprived defendant of a fair trial.

Accordingly, the judgment of the circuit court is reversed and this cause is remanded for a new trial.

Reversed and remanded.

TRAPP, P. J., and SIMKINS, J., concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dennis Leroy Crawford, Defendant-Appellant.
    (No. 12512;
    Fourth District
    November 6, 1974.

      David V. Munnis, of Champaign, for appellant.
    James R. Burgess, State’s Attorney, of Urbana (Robert G. Frederick, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Dennis Leroy Crawford, appeals from his conviction after a jury trial of driving while under the influence of intoxicating liquor in violation of section 11 — 501(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95%, par. 11 — 501) and from a sentence imposed of $100. Defendant raises the following issues for resolution by this court: (1) Whether the trial court erred in denying defendant’s motion to suppress, (2) whether the trial court erred in admitting evidence of a breathalyzer test, (3) whether defendant was proven guilty beyond a reasonable doubt, (4) whether the trial court erred in excluding testimony of defendant with regard to a request for an additional breath test after he was arrested, (5) whether the trial court erred in excluding the testimony of defendant’s lawyer with regard to a request by him for an additional breath test for defendant, and (6) whether the trial court erred in restricting defense counsel’s closing argument.

In the early morning hours of December 4, 1972, the defendant, Edward Schmidt, and Paula Hitler left the American Legion Hall in Champaign, Illinois. It had been snowing and sleeting and the roads were icy. Because Paula had not driven on ice before, it was agreed that Edward would drive her car and defendant would follow driving Edward’s car. On the way to Paula’s house the two cars stopped and parked and were observed by an unmarked police car driven by Officer Buckner. He proceeded to follow the vehicles for a short distance and then called for a marked car driven by Officer Wilhelm. Both police cars then followed defendant’s car before Officer Wilhelm finally stopped defendant’s car and placed defendant under arrest for driving while intoxicated. Defendant was taken to the Champaign police station and given a physical performance and a breathalyzer test.

At the trial on April 12, 1973, Officer. Buckner testified that he observed defendant driving erratically, that defendant was closely following the vehicle in front of him, and that defendant was honking his horn repeatedly. He further testified that defendant was swerving his car back and forth and in two places actually hit the curb. He also stated that he observed defendant being placed under arrest and that defendant was very unsteady in his walk and his speech was unclear and confused. Officer Wilhelm testified that he observed defendant’s car tailgating the car in front of him, honking, and skidding from side to side. He further testified that he stopped defendant and placed him under arrest. He stated that he smelled alcohol on his breath, that defendant stumbled as he exited the car, that his walk was unstable, and that defendant appeared glassy-eyed. He stated that at the station defendant was wobbly on the balance test, that he was unsteady on the walking and turning tests, that he missed completely on the finger to nose test, and that he was unsteady on the coin test.

Wayne Meeker, a Champaign police officer, testified that he has had special training in the administration of breathalyzer tests, that he has given many tests in the past, and that he has a special permit from the Department of Public Health to administer these tests. He stated that on the evening in question he gave the breath test to defendant after receiving defendant’s written permission. He stated that the first test was given to defendant at 2:20 A.M., that the second test was given at 2:35 A.M., and that for 20 minutes prior to the first test he observed that defendant did not eat, smoke, regurgitate, or drink, but he did not know whether or not defendant had belched. He testified that the machine used was a Smith and Wesson Breathalyzer, model 1000. He also identified Peoples’ Exhibits 10 and 11 as defendant’s test results taken on the evening in question and stated that he gave defendant copies of the test results. He further stated that defendant received a .19 on both tests, that figure measuring the amount of alcohol in defendant’s blood. Richard Bright, a certified breathalyzer equipment inspector for the Department of Public Health, testified that on November 16, 1972, he inspected the breathalyzer machine at the Champaign police station and found the machine to be functioning satisfactorily. Peoples’ Exhibit 13 was admitted into evidence and showed that the model 1000 machine at the Champaign police station was tested on November 16, 1972, and was certified as accurate and within limits prescribed by the rules and regulations of the Department of Public Health. He further testified that the ampules used in the model 1000 are first tested by the department in that before the ampules can be sold the manufacturer must send a sample to the department for such testing. He also stated that he is licensed by the department as a certified breathalyzer examiner. That certificate was then admitted into evidence as Peoples’ Exhibit No. 16.

The State then made a motion out of the presence of the jury that there be no references made by defense counsel or defense witnesses to alleged requests for or failure to secure additional tests. The court denied the motion. Defendant testified that he did not tailgate the car in front of him, that he never lost traction or hit a curb, and that he did not honk his horn on the evening in question. He also stated that he did not require assistance in getting out of the car. He further testified that he had just left the American Legion Hall' where he had 4% drinks. He stated that he called a lawyer, Robert Auler, when he reached the Champaign police station and that Officer Wilhelm also talked with Auler. He stated that he then had a conversation with Wilhelm and that he proceeded to take the breathalyzer and other tests. He further stated that after the tests he said nothing to Officer Meeker or Officer Wilhelm and that the only other conversation he had with any of the police officers was when he asked an officer for a drink of water. The court then outside the presence of the jury allowed a motion by the State that Robert Auler not be allowed to testify concerning any legal advice given defendant concerning the taking of additional tests. The defense counsel then made an offer of proof that Robert Auler would testify that he advised defendant to request an additional test at his own expense, and that he told the officer personally that after defendant is tested he should be given an additional test. The court then denied the offer of proof. Robert Auler, a Champaign attorney, then testified that he had a conversation with defendant on the evening in question. Edward Schmidt, the driver of the car defendant was following, testified that defendant was not tailgating him or honking, and that he did not see defendant swerving or hitting the curb. The jury then returned a verdict finding defendant guilty as charged.

Defendant first contends that the trial court erred in denying his motion to suppress citing the lack of probable cause on the part of the officers in making the arrest. Section 107 — 2(c) of the Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 107 — 2(c)) states that a police officer may arrest an individual when “[h]e has reasonable grounds to believe that the person is committing or has committed an offense.” At the hearing on the motion to suppress defendant testified that it was icy on the night in question. Edward Schmidt testified that he was not followed very closely by defendant. Officer Buckner testified that he observed defendant on the evening in question driving very erratically, that defendant closely followed the car in front of him, that defendant constantly blew his horn, that defendant hit the curb, and that defendant was swerving back and forth. He stated that he. then called for a marked car to make the stop. The marked car driven by Officer Wilhelm then arrived- and also followed defendant’s vehicle. He stated that defendant continued his erratic driving and was stopped by Wilhelm and himself. On cross-examination he stated that defendant was swerving and not simply sliding on the ice. The court then stated that the issue was whether there was probable cause to make the arrest and denied the motion to suppress. We agree and hold that the testimony heard on the motion to suppress clearly supports the trial judge’s finding of probable cause, and that the officers clearly had reasonable grounds to believe that an offense was being committed.

Defendant next contends that the trial judge erred in admitting evidence of the results of the breathalyzer test. Section 11 — 501(d) of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 9572, par. 11 — 501) provides :

"(d) Chemical analysis of the person’s blood or breath to be considered valid under this Section must be performed according to uniform standards adopted by the State Department of Public Health, in cooperation with the Superintendent of State Police, and by an individual possessing a valid permit issued by that Department for this purpose. The State Department of Public Health is authorized to approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct such analysis and to issue permits which shall be subject to termination or revocation at the discretion of the State Department of Public Health.”

Section 11 — 501.1(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 9572, par. 11 — 501.1) further states:

"(a) Any person who, after September 30, 1972, drives a motor vehicle anywhere within this State thereby consents, under the terms of this Section, to take and complete a test or chemical analysis of his breath to determine the alcoholic content of his blood when made as an incident to and following his lawful arrest * * *. Within a reasonable time following any such arrest, a police officer shall request the person arrested to submit to such analysis of his breath upon a breath testing instrument approved by the Department of Public Health in consultation with the Department of Law Enforcement which will automatically display the test results visually to tire arrested person and provide for an automatic printed tested record. A test shall consist of 2 breath analyses taken not less than 15 minutes apart. Each printed recording shall also contain an automatically printed record of the reading of the testing device made immediately prior to the recording for the tested person. Each recording shall contain the date and time on which the test was given, which may be manually printed on the recording.”

Rule 3.01(b) of the Rules and Regulations of the Department of Public Health requires a “[cjontinuous observation of the subject for at least 20 minutes prior to collection of the breath specimen, during which period the subject must not have ingested alcohol, food, drink, regurgitated, vomitted, or smoked.”

We find no merit in defendant’s contentions concerning alleged violations of the statute and rules promulgated by the Department. He first contends that there was a lack of compliance with Rule 3.01(b) requiring continuous observation of the subject for 20 minutes prior to the specimen. We note, however, that Officer Meeker testified that he observed defendant for the requisite 20 minutes prior to the test and that during that period defendant did not eat, smoke, regurgitate or drink. Defendant further contends that the test results were invalid under Rule 3.01(b) because no one observed whether or not defendant had belched during the 20-minute period. We first note that Rule 3.01(b) does not prohibit belching during the prescribed period. Nevertheless, even if it were prohibited under a quite liberal interpretation of the word regurgitation,’ there is absolutely no testimony here that defendant did, in fact, belch during the critical 20-minute period in question. Defendant also contends that the 20-minute observation requirement was not followed for the second test. We note that the first test occurred at 2:20 and the second at 2:35. We therefore make the obvious conclusion that the 20-minute observation period referred to in Rule 3.01(b) is required only for the first breath test since the statute itself only requires the two tests to be 15 minutes apart.

Defendant continues his argument by stating that the instrument here was not operated according to the procedures prescribed by the department as required by the statute and the rules. We note that Officer Meeker described in detail the procedures he followed in administering the test and stated that he followed the operational check list for the Breathalyzer 1000 established by the manufacturer and the department. Peoples’ Exhibit No. 9 was admitted into evidence after proper foundation and consisted of the operational check list for defendant’s tests showing that the proper procedures were followed for both tests. Officer Meeker testified that he has had special training in the administration of breathalyzer tests and that he has a special permit from the Department of Public Health to administer such tests. Peoples’ Exhibit No. 2 was admitted into evidence and consisted of Meeker’s certification by the department as a breath-analyzer operator showing Meeker to have been certified on the date in question. We believe that the record clearly shows that the departmental regulations were followed and that the operator of the test was properly certified.

Defendant also contends that the State did not lay a proper foundation to establish that the Breathalyzer 1000 used by the Champaign police department was approved by the department as required by the statute and rules. We clearly do not agree. Rule 1.02 of the department provides that “[n]o manufacturer shall offer for sale in Illinois any instrument for the analysis of breath which is not approved by the Department. The Director shall maintain a list of approved instruments.” Richard Bright testified that he is a certified breathalyzer equipment inspector, and that on November 16, 1972, he inspected the machine at the Champaign police station and found it. to be functioning properly. Peoples’ Exhibit No. 17 was admitted into evidence and showed that Bright was certified by the State at the time the Champaign test was conducted. Peoples’ Exhibit No. 13 was admitted into evidence and consisted of the results of the November 16, 1972, test conducted by Bright. The certification at the bottom of the result sheet states that the Champaign machine complies with the rules promulgated by the department. We believe this to be clear evidence that the Breathalyzer 1000 was on the departmental fist of approved models for administration of the breath test.

Defendant next contends that the State did not show that the ampules used in the machine were not contaminated. Richard Bright testified that if the ampules were contaminated the defendant would benefit by receiving a lower test score. Bright further testified that the manufacturer of the ampules must first send a sample of the ampules to the department for analysis before they can be sold in Illinois. We further note that there was no testimony that the ampules were, in fact, contaminated, and that Meeker testified that his hands were clean when he administered the test and that the operational check list was followed. Defendant’s argument in this regard is clearly without merit.

Defendant’s final argument against introduction of the test results is that the printed recordings of the test results (Peoples’ Exhibits No. 10 and 11) do not contain a date and time printed thereon as required by statute. We note that these exhibits do not contain defendant’s name nor do they have a date or time printed thereon. However, we also note that defendant did not object to the admission of these print-outs. Furthermore, there was never an issue raised that these were not defendant’s test results. Before these print-outs were admitted Officer Meeker testified that they were the results of defendant’s test given on December 4, 1972, at 2:20 and 2:35 a.m. Peoples’ Exhibit No. 8 was also admitted into evidence without objection and consisted of the breathalyzer test log book which contained a notation by Officer Meeker that defendant took the test on December 4, 1972, at 2:20 and 2:35 A.M., and scored .19 on both tests, the same results indicated on the automatic print-outs. We believe that the test results here were properly identified as defendant’s, and that the failure to include the date and time on the automatic printouts is in the context of the present case not prejudicial to defendant and harmless beyond a reasonable doubt.

We hold that for the reasons stated above the State properly established a foundation for admission of the test results into evidence, and the court did not err in admitting said results over defendant’s myriad objections.

Defendant next contends that he was not proven guilty of driving while intoxicated beyond a reasonable doubt. We disagree. The results of the breathalyzer test indicated a .19 reading on both tests, the presumptive level of intoxication. Defendant admitted having 4% drinks on the evening in question. This evidence, taken with the testimony of the police officers is sufficient to support the conviction.

Defendant next contends that the court erred in excluding testimony of the defendant regarding a request for an additional test. Section 11 — 501.1(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1973, ch. 95%, par. 11 — 501.1(a)) states in pertinent part:

“If the arrested person is detained in the custody of the police after such test [breath] has been administered, the police shall, at the request of the arrested person, facilitate the prompt securing of an additional chemical test by a qualified person of the arrested person’s choice and at his own expense 060 and to transport the subject to a location within the county of arrest where services are available * #

After presenting its case, the State moved that there be no reference made to alleged requests for or failure to secure additional tests. This motion was denied by the court. Defendant testified that after arriving at the station he talked with an attorney, Robert Auler, over the phone. Defendant further stated that he spoke .with Officer Wilhelm concerning his conversation with Auler. Defense counsel then asked defendant what he said to Officer Wilhelm. This question was objected to by the State on the basis of the failure to establish a foundation as to when the conversation occurred. The court sustained the objection. The same question was again asked by defense counsel, objected to by the State and again sustained by the court. Defendant was then asked how many conversations he had with Officer Wilhelm on the evening in question. Defendant replied two, one at the time of arrest and the other after arriving at the station but before the breathalyzer test. Defendant was then asked by his counsel what happened after the breathalyzer test. Defendant replied that he spoke to Officer Meeker. Defense counsel then asked what he said to Meeker. The State objected on the basis of improper foundation as to time. The objection was sustained by the court. Defense counsel then established that this occurred after the breathalyzer test in the booking room of the jail. The State again objected to what was said to Meeker on the basis of improper foundation in that it was not established if anyone else was present. The court sustained the objection. Defense counsel tíren established that defendant was under arrest. The State then again objected to asking defendant what was said to Meeker on the basis of improper foundation and was again sustained. Defense counsel then established that defendant was in custody the entire evening. The State again made the same objection and was sustained by the court. Defense counsel then established that at this point in time Officer Wilhelm was present. The following then transpired:

“Q. How, would you describe to the Court and the jury what you said to Officer Meeker?
A. He told me that I performed the test—
Robert Frederick: Objection, Your Honor, to what Officer Meeker told him.
Assoc. Judge Lumpp: The objection will be sustained.
Q. Will you tell the jury what you said to Officer Meeker?
A. I said nothing.
Q. Did you say anything to Officer Wilhelm?
Robert Frederick: Objection, Your Honor. It has already been established through three or four questions that he had no other conversation with Officer Wilhelm, [referring to the period of time after the breathalyzer test was given to defendant]
Assoc. Judge Lumpp: The objection will be sustained.
Q. After this time that you had this conversation with Officer Meeker and prior to the next morning when you were — left the jail, did you have any conversation with any other police officer?
A. Eh — one other.
Q. Do you know what that police officer was?
A. No.
Q. Where were you at that time?
A. In the cell.
Q. And approximately how long was that after you had finished the Breathalyzer?
A. An hour.
Q. And who was present at that time?
A. Myself and the other officer.
Q. And what, if anything, did you say to that officer at that time?
Robert Frederick: Objection, Your Honor, on the basis of foundation. Who is this officer?
Assoc. Judge Lumpp: The objection will be overruled.
A. I asked him for a drink of water.
Q. Did you say anything else to him?
A. No.
Q. That was the sum total of your conversations with all the police officers after you took the Breathalyzer and when you were released the next morning. Is that correct?
A. That’s correct.
Q. No more questions of this witness.”

Our examination of the record in this regard does not indicate that the trial judge excluded any testimony by defendant regarding a request for additional tests. As noted above all objections were on the basis of improper foundation. We further note that defense counsel made no offer of proof as to possible testimony by defendant regarding a request for an additional test either before or after the breathalyzer test was administered. Furthermore, this issue was not argued at the hearing on the motion to suppress, and the three officers who testified for the State at the trial were not asked one question by defense counsel regarding requests to them by defendant for additional tests. Nevertheless, we hold that the trial judge simply did not exclude any testimony by defendant in this regard, and that the alleged request for additional tests by defendant is not an issue in this case because defendant never testified to making such a request.

Defendant also contends that the trial judge erred in excluding the testimony of defendant’s attorney, Robert Auler, in regard to his alleged request for an additional test. After defendant’s testimony the court allowed a motion by the State that Robert Auler not be allowed to testify concerning any legal advice given defendant concerning the taking of additional tests. Defense counsel then made an offer of proof that Robert Auler would testify that he advised defendant to request an additional test, and that he told the officer personally that after defendant is tested he should be given an additional test. The trial judge denied the offer stating that such testimony is not relevant to any issues in the case. We agree and hold that the trial judge was correct in so ruling. Since defendant did not testify to making a request for additional tests, the Auler testimony in this regard was simply without foundation, was irrelevant to any material issue in the case, and would have been highly prejudicial to the State.

Defendant finally contends that the trial judge erred in restricting defense counsel’s closing argument. In his argument defense counsel stated that in examining the evidence “you [the jury] won’t see any list that is supplied by the Director of the Department of Public Safety.” The court then sustained the State’s objection to that statement stating that although he could argue the weight of any evidence, such a reference to an approved list here would be confusing to the jury in light of his prior ruling that introduction of the list was unnecessary to establish a foundation for admitting the test results. Even assuming that such a limitation on arguing the weight of the record evidence was error, such an error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant’s guilt.

Accordingly, for the reasons stated above the judgment of the Circuit Court of Champaign County is hereby affirmed.

Judgment affirmed.

TRAPP, P. J., and CRAVEN, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Strickland, Defendant-Appellant.
    (No. 74-188;
    Third District
    November 19, 1974.
    James Geis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Donald C. Woolsey, State’s Attorney, of Galesburg, for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Brenda Tervin (Prewitt), Defendant-Appellant.
    (No. 12343;
    Fourth District
    October 31, 1974.

      John F. McNichols and J. Daniel Stewart, of State Appellate Defender’s Office, of Springfield, for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (Kai A. Wallis, of Circuit Attorney’s Project, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant, Brenda Tervin Prewitt, appeals from her conviction after a bench trial for tire offense of forgery in violation of section 17 — 3 of tire Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 17 — 3) and from a sentence imposed of 1 to 3 years imprisonment. Defendant raises three issues for resolution by this court: (1) Whether the court erred in giving substantial weight to the failure of defendant’s husband to testify; (2) Whether defendant was proven guilty beyond a reasonable doubt; and (3) Whether the trial court abused its discretion in denying defendant probation.

On December 12, 1972, defendant was indicted for forging the signature of a Robert Bricher on a check payable to the order of Mary Lou Cochran in the amount of $45. A trial was held on May 15, 1973. Robert B richer testified that he had a checking account at the American State Bank in Bloomington, Illinois, which had been closed out before August 28, 1972, the date appearing on the check in question. He stated that he had stayed with defendant and her husband sometime before the incident in question. He further stated that he did not on August 28, 1972, write a check to Mary Lou Cochran usirig a check from his old account at the American State Bank. Donald Reed testified that on the evening of August 28, 1972, he was at defendant’s trailer with defendant, her husband, and his wife, Ruby Reed, and observed defendant write the check in question by writing in the name of Robert Bricker on the signature line and making it payable to Mary Lou Cochran in the amount of $45. He testified that afterwards everyone went to the Owens gas station, and once there defendant handed the check to his wife who proceeded to cash it. He stated that after purchasing some gas and cigarettes the remaining proceeds from the check were given to his wife who handed the money to defendant who divided it evenly. Reed then admitted that he had previously been convicted of forgery as a result of the incident and had been sentenced to 2 years’ probation. Ruby Reed testified that on the evening of August 28, 1972, she was at the defendant’s trailer with her husband, Donald Reed, and observed defendant write the check in question by writing in Robert Bricker’s name on the signature line and making it payable to Mary Lou Cochran in the amount of $45. She stated that afterwards everyone got into the car and went to the Owens gas station where defendant handed her the check which she proceeded to cash. She stated that after purchasing some gas, the remaining proceeds of the check were handed to her and later divided between defendant and herself. Defendant testified that she did not write the check in question, and that she was with her husband and the Reeds on the date in question merely to help move. She further testified that she did not accompany the Reeds to the Owens gas station. Defendant was then found guilty of forgery. On May 23, 1973, a sentencing hearing was held. On June 4, 1973, defendant’s request for probation was denied, and defendant was sentenced to 1 to 3 years’ imprisonment.

Defendant first contends that the court erred in giving substantial weight to the failure of defendant’s husband to testify in her behalf. Before entering judgment the court stated:

“* * * I have observed all three witnesses. There is one other factor, however, there is an additional party who might have been called as a witness by either side in this case, who was present according to all the testimony, who was present at least that day, according to the Reeds who were present at the occurrence and witnessed the situation. He would be, because of his marital relationship, peculiarly under the control, at least as far as the court is concerned at this point, it is unexplained as to why he was either not available or because of some domestic problem, or whatever, has not testified in this particular situation, and the Court must weigh that as part of the evidence in the case as well. And I have nothing from the other witness who might have corroborated Mrs. Prewitt’s testimony in this particular matter, and I think that the State has established its case beyond a reasonable doubt, and the Court is satisfied that she did in fact write this check and that she knew what the purpose was for it at the particular time # #

We feel that a reading of the court’s statement as a whole does not indicate that the failure of defendant’s husband to testify was a substantial factor leading to her conviction. Indeed, two other witnesses testified to observing defendant write the check in question. The testimony of these witnesses were not rebutted except for defendant’s own testimony that although she was present at the trailer at the time in question, she did not write the check. Obviously the most important factor leading to her conviction was her failure to persuasively rebutt the direct testimony of the other two witnesses and not the fact that her husband didn’t testify. Nevertheless, this court has held that where a defendant injects into his case his activities with others for the purpose of proving his innocence, failure to produce such a person as a witness is a proper subject for consideration. (People v. Evans, 7 Ill.App.3d 52, 286 N.E.2d 576 ( 4th Dist.).) Such is the case here for even defendant admitted that she was at the trailer with her husband on the evening in question.

Defendant next contends that she was not proven guilty beyond a reasonable doubt. We do not agree. Both Donald and Ruby Reed testified that they saw defendant write the check in question, and their testimony concerning the events on the evening in question reveal only minor discrepancies. We agree that the testimony of accomplices is subject to “grave suspicion” and must be acted upon with grave caution. (People v. Tillman, 130 Ill.App.2d 743, 265 N.E.2d 904 ( 4th Dist.).) However, such testimony even if attended with infirmities and uncorroborated, is sufficient to convict if it satisfies the trier of fact beyond a reasonable doubt. (People v. Wollenberg, 37 Ill.2d 480, 229 N.E.2d 490.) Nevertheless, in the instant case the accomplice testimony was not rebutted by any type of credible evidence and was materially corroborated. Indeed, Robert Bricker testified that he lived with defendant and her husband sometime before the incident in question, and defendant testified that she had. seen checks belonging to Bricker when. Bricker was staying at the Roy Prewitt residence, Furthermore, even defendant admitted that she was at her trailer with the Reeds on the evening in question.

Defendant finally contends that the trial court abused its discretion in denying defendant probation. We do not agree. It is well established that probation is purely a discretionary matter that is vested in the trial court, and the scope of review exercised by this court on a matter regarding the denial of probation is limited. (People ex rel. Ward v. Moran, 54 Ill.2d 552, 301 N.E.2d 300.) Indeed, in the present case we note that at the time of offense in question defendant was on probation for a deceptive practices charge involving a similar “check-cashing” incident.

Accordingly, for the reasons stated above the judgment and sentence imposed by the circuit court of McLean county is hereby affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE TRAPP

text:
    Lake View Memorial Hospital, Plaintiff-Appellee, v. The County of Vermilion, Defendant-Appellant.
    (No. 12090;
    Fourth District
    November 6, 1974.

      Richard J. Doyle, State’s Attorney, of Danville (Richard I. Nicholes, Assistant State’s Attorney, of counsel), for the People.
    Harvey H. Acton, of Acton, Bookwalter, Meyer & Smith, and C. E. Snyder, of Stifler & Snyder, both of Danville, for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals from a judgment of the trial court denying its motion for summary judgment, granting plaintiff’s motion for summary judgment and ordering defendant to deliver a deed of certain real estate to plaintiff.

The issues are presented upon the complaint and admissions, either by answer or upon demand for admissions of fact. On April 29, 1930, plaintiff conveyed and quit claimed the described real estate to defendant for the sum of $4994.16. The issues arise under the following provision of such conveyance:

“It is agreed, as a part of the consideration of this conveyance, that if the grantee fails or refuses, for any reason to use and operate, during a period of any two (2) years after the construction thereof, a Tuberculosis Sanitarium on said premises, then title to said premises shall revert to the grantor herein, upon the grantor paying to the grantee the consideration above set forth and in addition thereto, the actual cost of the Tuberculosis Sanitarium Building, erected on said premises, less an annual depreciation of four per cent (4%) of the original actual cost thereof, and upon the grantee failing to operate and maintain said Tuberculosis Sanitarium during any period of two (2) years, as aforesaid, then the Grantee agrees to execute a deed of conveyance to the Grantor herein said premises and appurtenances, upon the Grantor paying the purchase price as herein fixed.”

These facts are admitted: Defendant constructed a tuberculosis sanitarium which went into operation in 1940, and continued its operation until October 23, 1967. Its hospital license was terminated on November 17, 1967, and the defendant has failed to operate such sanitarium on the premises from October 23, 1967, until the time of the complaint. In May, 1968, the County Board of Supervisors, administering the sanitarium, adopted a resolution that it be converted into a nursing home to be operated by the Vermilion Nursing Home Committee and such Board of Supervisors. In June, 1968, plaintiff delivered a letter to such County Board calling attention to the condition contained in the deed of 1930. In November, 1969, plaintiff tendered to defendant the sum of $4994.16, and made demand for a deed of the property. Defendant rejected the tender and demand on December 9, 1969.

The prayer of the complaint asked divers relief which, in a technical sense, are not necessarily consistent, but included a prayer that the court find a “valid condition subsequent” had been breached; that the premises had reverted to plaintiff and that plaintiff was entitled to a conveyance and asked that the court order the defendant to execute and deliver a deed.

The trial court’s memorandum found that on October 23, 1967, defendant ceased to accept or treat bed patients and ceased to provide domiciliary care, and that tuberculosis patients requiring hospitalization had been hospitalized in institutions other than that maintained by defendant. It also found that in September 1929, defendant adopted a resolution leveling a tax for the acquiring of land, building a hospital building and operating a tuberculosis hospital; that in April, 1930, plaintiff conveyed, by quitclaim deed, the real estate for the stated consideration, and that it was undisputed that the building was constructed upon the land conveyed.

The court found, and it is not contested here, that there is no dispute upon the facts considered. The court stated that the issues to be determined included (1) whether or not the matters before the court constituted a proper case for summary judgment, and (2) the interpretation of the deed of conveyance and the factual question whether there has been a cessation in the operation of a “tuberculosis hospital”’

Noting that each party had moved for summary judgment, he determined that such issue was ripe for action. He further found no ambiguity in the deed of conveyance, stating that it should be construed in the light of the resolution of the County Board voting a tax for the purpose “of constructing and maintaining a tuberculosis hospital” in Vermilion County.

The court further noted the arguments of counsel directed to the questions of reverter, forfeiture and conditions subsequent, but that none of the cases cited had comparable facts to those at issue.

As to the final question of whether or not defendant had ceased to maintain and operate a tuberculosis hospital for a period of 2 years, he found that defendant “has not operated a hospital for the care of tubercular bed patients on the premises in question since on October 23, 1967,” and that it was admitted that all tuberculosis patients served by the dispensary maintained are treated at other institutions. The court further determined that all right to operate a tuberculosis hospital as provided in the deed had terminated and that a tuberculosis sanitarium is a hospital within the provisions of section 3 of the Hospital Licensing Act (Ill. Rev. Stat. 1969, ch. 111%, par. 144).

He noted that the asserted use of the premises as a “dispensary” for tuberculosis patients was not the same thing as a hospital, as a dispensary is defined as a place where a drug is distributed. He further found that plaintiff’s notice had been received by defendant and that the plaintiff had deposited the sum with the clerk of the circuit court. Upon such findings he ordered that defendant prepare and deliver a deed to plaintiff.

While the clause at issue does provide that the “premises should revert to the grantor,” we conclude that the authorities cited and the arguments made as to whether the limitation in the deed created a fee simple determinable with the possibility of a reverter or an estate subject to a condition subsequent do not determine the issue.

Without travelling through the long history of the development of these estates, it may be said that it is characteristic of the fee subject to a possibility of reverter that the reversion to the grantor is effective automatically upon the occurrence of the stated event without an act of the grantor or his heirs. It is said that such estate expires by its own terms. (Kales, Conditional and Future Estates, ch. I, § 2, par. 124; Lyford v. Laconia (1909), 75 N.H. 220, 225, 72 A. 1085; Trustees of Schools v. Batdorf, 6 Ill.2d 486, 130 N.E.2d 111; Northwestern University v. Wesley Hospital, 290 Ill. 205, 125 N.E. 13; see also Ill. Rev. Stat. 1967, ch. 30, par. 37e.) A fee upon a condition subsequent, on the other hand, may be terminated only by entry for breach of such condition. Kales, Conditional and Future Estates, supra; Dunne v. Minsor, 312 Ill. 333, 143 N.E. 842; Koch v. Streuter, 232 Ill. 594, 83 N.E. 1072; Ill. Rev. Stat. 1967, ch. 30, par. 37e.

It is clear from the language of the provision that the parties neither contemplated that tire title would automatically revert to the plaintiff, grantor, upon the event that the hospital services were terrain-ated, nor that plaintiff would exercise a right of re-entry. It is explicit that the plaintiff should tender a sum determined through the computation provided and that defendant would execute a conveyance upon such tender. Thus, the termination of the estate conveyed required the further act of each party. There is no provision, express or through clear implication, for forfeiture of the estate or for re-entry by the grantor. Dodd v. Rotterman, 330 Ill. 362, 161 N.E. 756.

It is established that one may purchase and agree or covenant to sell the land back upon stipulated terms. Such transactions are sustained when made in good faith and without taint or fraud. Such a covenant may be enforced by specific performance. (Dodd v. Rotterman, supra.) Such relief is encompassed within the complaint which recites performance of the terms and conditions by the plaintiff, and prays that defendant be required to convey by deed.

Upon the admitted facts, the trial court’s conclusion that the property was no longer being used and operated as a tuberculosis sanitarium or hospital should be sustained. The trial court found that defendant accepted the conveyance; levied a tax for tire purpose “by constructing and maintaining a tuberculosis hospital,” and that it did so construct the hospital and operated it as a licensed institution from 1940 through 1968 when it ceased accepting in-patients for treatment and terminated its license to so operate. As facts, such conclusions are not disputed. The conduct of the defendant supports the conclusion that the parties intended that there be a hospital in the usual context of persons “admitted for overnight stay or longer in order to obtain medical • * * and nursing, care of illness # * (Ill. Rev. Stat. 1965, ch. 111%, par. 144.) There is no distinction between the “tuberculosis sanitarium” in the provision of the deed and the “tuberculosis hospital” found in the official acts of the defendant in constructing such hospital.

The statutory authority in defendant to close an inpatient tuberculosis facility and to use the building for other county purposes (Ill. Rev. Stat. 1967, ch. 34, par. 5102) does not serve to nullify the terms of the deed.

It is argued that the defendant’s partial use of the premises as a dispensary satisfies the provisions of the conveyance. A dispensary is defined as a place where a drug is prepared or distributed. (Black’s Law Dictionary 557 (4th ed. 1951.) The partial use of the building as a dispensary appears to be inconsistent with the intent of the parties as stated in the terms of the deed and evidenced by the acts of the defendant.

It is argued that equity and public policy require that the provisions of the deed be nullified and that the county be permitted to keep the property. The provision at issue was clearly stated and accepted as stated, and the facts do not suggest that the provision was unreasonable at the time made. Defendant cites certain cases concerning conditions or restrictive covenants which are impossible of performance. Such cases have no relevance under the facts here. Defendant cites Trustees of Eureka College v. Bondurant, 289 Ill. 289. It is not urged, however, that the action of defendant in accepting the deed was contrary to law or public policy at the time of such deed.

The judgment is affirmed.

Affirmed.

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


author: Mr. JUSTICE CLARK.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Earl Hamilton, Defendant-Appellant.
    (No. 12293;
    Fourth District
    November 6, 1974.

      Opinion modified upon denial of rehearing December 18, 1974.

      John F. McNichols, and John L. Swartz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (James W. Jerz and Martin P. Moltz, both of Model District State’s Attorneys Office, of counsel), for the People.
   Opinion by

Mr. JUSTICE CLARK.


author: Mr. JUSTICE SIMKINS Mr. PRESIDING JUSTICE SMITH

text:
    First Professional Leasing Company, Plaintiff-Appellant, v. Samuel T. Rappold, D. C., Defendant-Appellee.
    (No. 12294;
    Fourth District
    November 14, 1974.

      Rehearing denied December 12, 1974.

      SMITH, P. J,, dissenting.
    Londrigan & Potter, of Springfield (Duane D. Young, of counsel), for appellant.
    Horsley, Kimble, Lott & Surman, of Springfield, for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Plaintiff, First Professional Leasing Co., Inc., appeals from an order of the circuit court quashing service of summons upon defendant in an action filed for the amount due on an allegedly defaulted lease agreement. The sole issue is whether the trial court erred in refusing to assert jurisdiction. A resolution of this dispute requires an interpretation by this court of the Illinois long arm statute (Ill. Rev. Stat. 1971, ch. 110, section 17(1) (a)).

On November 3, 1972, plaintiff, an Illinois corporation, filed a complaint against defendant, Dr. Samuel T. Rappold, in the circuit court of Sangamon county seeking the amount due on an allegedly defaulted lease agreement executed October 28, 1971, in Springfield, Illinois, between plaintiff and defendant. A copy of said agreement was attached to the complaint. Service was personally served upon defendant, a California resident, in California on November 21, 1972. On January 18, 1973, defendant made a special appearance to contest the jurisdiction of the Illinois court. On March 20, 1973, a hearing was held to determine the jurisdictional issue. Coyn V. Richardson, vice-president of plaintiff corporation, testified that applications for leasing new equipment are received by his company, and a determination of the feasibility of such a transaction is then made. If prospects are favorable, forms and other information are then sent to the applicant who completes the forms and mails them back to the company headquarters in Springfield, Illinois. Richardson stated that such a procedure was followed in regard to the instant lease. He further stated that this lease was approved and executed by plaintiff in Springfield after obtaining financing, was pledged to an Illinois bank, and an Illinois financing statement was filed. Richardson further testified that plaintiff did not solicit the lease in question and that all lease payments were to be sent to plaintiff in Springfield. On cross-examination Richardson testified that the application forms obtained by defendant came from a California lease broker. These brokers submit leases and are paid for such services by the plaintiff company. He further stated that defendant was not advised that the lease was pledged to an Illinois bank, that the financing statement was signed at the same time the lease was submitted to defendant for his signature, and that all transactions were by mail. Defendant in his affidavit alleged that he is a 9-year resident of California, maintains his occupation in California, and has never been physically present in Illinois for any transaction in connection with the present litigation. The lease agreement shows that defendant executed said lease in California. The equipment which was the subject matter of the lease was used solely in California and was purchased by plaintiff from a California distributor and resold to defendant in California. On April 3, 1973, the trial judge entered an order quashing the sendee of summons on defendant and found defendant to be not subject to the personal jurisdiction of the court.

Traditionally the presence of a potential defendant within the territorial jurisdiction of the court was a prerequisite before the court could assert in personam jurisdiction and bind the defendant personally to its judgment. That hallowed doctrine was first asserted by the United States Supreme Court in Pennoyer v. Neff, 95 U.S. 714. However, the due process limitations on the power of a state to subject nonresidents to in personam jurisdiction was greatly expanded by the Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L.Ed. 95, 66 S.Ct. 154, when the court stated that “due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend, ‘traditional notions of fair play and substantial justice.’” (Emphasis added.) The “minimum contacts” contemplated in International Shoe Co. was further elaborated upon by the court in Hanson v. Denckla, 357 U.S. 235, 253, when it stated that “# * * it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”

The new jurisdictional yardstick announced by International Shoe Co. and its progeny led to the adoption by the Illinois Supreme Court, in 1955 of what is now commonly referred to as the Illinois long arm statute (Ill. Rev. Stat. 1971, ch. 110, pars. 16,17). Section 16 provides in relevant part:

“(1) Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State or upon a person who has submitted to the jurisdiction of the courts of this State, it shall have the force and effect of personal service of summons within this State * * *.”

Section 17(1) further provides:

“(1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of such acts:
(a) The transaction of any business within this State;
» * «
(3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.”

The Illinois Supreme Court has interpreted these two sections to “reflect a conscious purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due process clause.” Nelson v. Miller, 11 Ill. 2d 378, 389, 143 N.E.2d 673.

In the present case defendant was never physically present in Illinois. Relying on language in the Illinois Supreme Court case of Grobark v. Addo Machine Co., 16 Ill.2d 426, 158 N.E.2d 73, the first district in Saletko v. Willys Motors, Inc., 36 Ill.App.2d 7,183 N.E.2d 569, held that physical presence by a defendant or its agent in Illinois is essential to the assertion of jurisdiction by an Illinois court under 17(1)(a). (Also see Kropp Forge Co. v. Jawitz, 37 Ill.App.2d 475, 186 N.E.2d 76 (1st Dist.).) Two years after Grobark, however, our supreme court in Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E. 2d 761, held that physical presence in the state while committing a “tortious act” within the meaning of section 17(1) (b) is not necessary to subject the nonresident defendant to the jurisdiction of an Illinois court. Accordingly, the first district reversed its holdings in Saletko and Kropp Forge Co. when it held in Koplin v. Thomas, Haab & Botts, 73 Ill.App.2d 242, 219 N.E.2d 646, that physical presence was unnecessary under section 17(1) (a) in order to assert jurisdiction over a nonresident, stating that no substantial reason existed for differentiating personal injury actions under section 17(1 )(b) and business transactions under section 17(1) (a) insofar as physical presence of a defendant or his agent is concerned. We agree and hold that physical presence is unnecessary under section 17(l)(a). See also Ziegler v. Hodges, 80 Ill.App.2d 210, 224 N.E.2d 12 (2nd Dist).

We must now decide whether an exercise of jurisdiction in the instant case is constitutionally permissible, i.e., whether there are sufficient “minimum contacts” to satisfy due process requirements. We believe that such contacts were present here, and the trial court erred in quashing summons and refusing to assert jurisdiction. We first note that the lease contract was executed in Illinois where it was signed and accepted by the vice-president of the plaintiff corporation thus constituting the last act necessary to give validity to the contract. Secondly, regardless of the status of the California lease broker, the record clearly shows that defendant contacted plaintiff in Illinois and applied for a loan, and that there was further preliminary communication by mail between plaintiff in Illinois and defendant in California before consummation of the agreement. Thirdly, the contract was pledged and the money for the equipment was provided by an Illinois bank. Fourthly, the contract was to be performed in Illinois through the remittance of rental payments by defendant to plaintiff in Illinois, and, in fact, some payments were so sent, thus constituting partial performance in Illinois. Fifthly, defendant signed an Illinois security agreement under the Illinois Commercial Code. We believe that these contacts satisfy due process requirements and an assertion of jurisdiction here would not offend “traditional notions of fair play and substantial justice.” In 50 holding we take into consideration the language of our supreme court in Nelson v. Miller, 11 Ill.2d 378, 389, that our long arm statute “reflects a conscious purpose to assert jurisd!ction over non-resident defendants to the extent permitted by the due-process clause.” (Emphasis added.)

We further note that defendant here affirmatively sought the benefits and protection of Illinois law within the meaning of Hansen v. Denckla, supra. Certainly defendant knew plaintiff was an Illinois resident, knew that the contract was to be executed and performed in Illinois, and knew that he was signing an Illinois security agreement. Furthermore, because said contract was executed in Illinois and was to be performed in Illinois through the remittance of rental payments, any dispute arising under said contract would be decided under Illinois substantive law under traditional conflicts analysis. The court in Ziegler v. Hodges, 80 Ill.App.2d 210, 224 N.E.2d 12, 15 (2d Dist.), indicated that the fact that Illinois law would be applicable to the dispute in question would be one factor in determining the jurisdictional question. Furthermore, we note that if, after asserting jurisdiction, it becomes apparent that trial in an Illinois court is unduly burdensome for whatever reason, a forum non conveniens dismissal is always available. Indeed, in many instances the nonresident defendant will have the privilege of removal to a Federal court under 28 U.S.C. § 1441 (1970), and, after removal, a motion will lie under 28 U.S.C. § 1404(a) (1970) for transfer to a more convenient district. Nevertheless, Illinois courts certainly have a legitimate interest in providing a forum and redress for its residents when long-term lease contracts executed in Illinois, to be performed in Illinois, and in which Illinois law governs the resolution of any dispute, are breached by nonresidents.

Accordingly, the order of the circuit court of Sangamon county quashing service of summons upon defendant is hereby reversed, and the cause is remanded to the trial court for further proceedings consistent with the views expressed herein.

Reversed and remanded.

CRAVEN, J., concurs.

Mr. PRESIDING JUSTICE SMITH

dissenting:

I do not believe that the facts we have accord in personam jurisdiction to Illinois. We must remember we are talking about “due process” and the criterion laid down for us by the United States Supreme Court is that the nonresident defendant must have “certain minimum contacts” with the forum state. The “contacts” we have here, in my opinion, are below the minimum.

The majority opinion states that the contract sued on was “executed in Illinois.” This is true — if we are thinking about the law of contracts, and it is true too in a conflicts-of-law setting. But we are not thinking in those contexts. We are thinking about “minimum contacts” in a due process context, and in my opinion, this happenstance or circumstance is hardly an earth-shaking “contact.” It takes two to make a contract, so the signing in California is just as important from a “contact” viewpoint as in Illinois, no more no less. That the last signature was affixed in Illinois may have great significance in a conflicts-of-law setting in determining where the contract was “executed,” is to me, here, an immateriality. True, “defendant contacted” plaintiff in Illinois — by mail — and this is a “contact” in the sense that the Supreme Court used that word (though they used the plural) in a due process setting — but as I have said, it is hardly earth-shaking, and it is very much alone.

Unbeknownst to the defendant, the contract was pledged to a bank ip Illinois. I fail to see how this something plaintiff did in Illinois provides one more “contact” by á defendant in California with the forum state. Likewise, the remittal of payments from California to Illinois, while performance in a law-of-contracts context, can hardly be considered a “contact” in the sense in which the Supreme Court has defined it. What if the lease had been pledged in New York, or London — would that be a “contact” for the holder to assert jurisdiction there? Buyers of non-recourse commercial paper will find the majority opinion to their liking.

I am even more at a loss as to why the signing of an Illinois security agreement in California is a “contact.” It may be that one can agree to be bound by the law of Illinois in signing such an agreement, but in doing so, he is not subjecting himself to the jurisdiction of the courts of Illinois. Rather, he is saying that the appropriate forum should apply the law of Illinois. In my opinion, courts of other states are as adept at applying our corpus as we are — though it may take a bit more time and study. And knowledge by defendant that plaintiff was an Illinois resident (which in fact he was) and knowledge that the contract was to be signed in Illinois (as it was), are not “contacts” in my opinion. Thus, while I might consider the arrival in Illinois of a contract from out of state to be a “contact,” I do not believe that knowledge qua knowledge of these facts is what the Supreme Court was talking about when it said “contacts.” Of course, if defendant had sued plaintiff in Illinois, jurisdiction is clearly here. Likewise, if plaintiff had sued in California. But that is not our case. The fact, too, that in the future the court here might be faced with a forum non conveniens problem doesn’t seem to me to argue for jurisdiction — nor does possible removal to district courts sitting in Illinois, and here to add poignancy to this supposed reason, at the very threshold, is the lack of the jurisdictional amount. Under International Shoe we have to find “minimum contacts” so that the due process demand for fairness is answered. I do not believe that the facts here supply that answer. Accordingly, I dissent.