text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Russell Hodges, Defendant-Appellant.
    (Nos. 72-280-1 cons.;
    Third District
    July 11, 1974.

      Dennis Norden, of Kankakee, for appellant.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

The defendant, Russell Hodges, was indicted for the crime of armed robbery and after a jury trial was found guilty and sentenced by the Circuit Court of Kankakee County to a term of not less than 6 years nor more than 12 years to run concurrently with a sentence of not less than 5 years nor more than 10 years for a prior conviction of armed robbery. He has appealed contending, that the court erred:

1. In denying his motion to dismiss under the 120-day statute (Section 103 — 5 of the Code of Criminal Procedure).

2. In failing to suppress the in-court identification of defendant;

3. In denying his motion to suppress evidence of a prior conviction;

4. In improperly questioning witnesses and “putting down” his trial counsel; and

5. That he was not proven guilty beyond a reasonable doubt; and

6. That his sentence should be reduced.

Dennis Wheeler and David Wheeler were working at Ray’s Shell Station in Kankakee, Illinois, on January 31, 1972, at about 7 P.M., when two male Negroes entered the establishment. One was masked, and the other, identified by Dennis Wheeler as the defendant, was attired in a green stocking cap, jacket and slacks. The defendant, while armed with a gun, ordered Dennis Wheeler to empty his wallet and both robbers ordered the Wheelers to a back room where they were told to stay. All the lights were on mating the area comparable to daylight. Dennis looked at defendant for approximately 5 minutes and as close as 1 foot during the robbery.

When the two armed men had left, the Wheelers called police. On February 10, 1972, Richard Whitehead, a detective, showed 10 “mug shots” to both Wheelers and Dennis picked out a picture of the defendant as one of the robbers. David was unable to identify any picture.

At a pre-trial hearing, Dennis testified that the unmasked man had “sort of a mustache”, while at trial he stated that he could not tell for sure whether the robber had any facial hair. The police report made by Detective Whitehead shortly after the robbery did not mention any facial hair on the part of the unmasked robber.

The defendant presented an alibi defense.

On June 19, 1972, the case was set for trial and on that date the defendant filed a motion to dismiss on the ground that 128 days had elapsed since he was in custody. The motion was denied.

This contention was not mentioned in defendant’s written post-trial motions. “Where the grounds for a new trial are stated in writing, the accused is limited on review to the errors alleged therein and all other errors are deemed to have been waived” (People v. Hairston, 46 Ill.2d 348, 367; People v. Dixon, 10 Ill.App.3d 1038, 1040). Further, the record is clear that on April 21, 1972, the defense made a motion for continuanee of a hearing on his motion to suppress in-court identification because one of defendant’s witnesses could not appear at the time set for hearing. The trial court asked defendant personally if he had any objection to the continuance to which he responded that he did not. Again, on May 15, 1972, on motion of defendant’s counsel, the cause was continued to May 30, 1972. Again defendant personally assented. On May 24,1972, the case was called for trial and again the defendant personally agreed to his counsel’s request for a continuance. The record is devoid of any continuance requested by the State. It has consistently been held that a continuance granted at the request of the defendant is a delay occasioned by the defendant. (People v. Young, 46 Ill.2d 82, 84; People v. Gulick, 7 Ill.App.3d 427, 430.) The trial court properly denied defendant’s motion.

Defendant next contends that the trial court erred in failing to grant his motion to suppress in-court identification for the reason he argues that the record shows the procedure used by the state was biased and prejudicial.

On February 10, 1973, both Wheelers were invited to come to the Kankakee Police Department to view some “mug shots” for a possible identification of the robbers. Each were shown 10 pictures. Each picture was covered by a small piece of cardboard leaving only the face and head area visible. They were shown one photograph at a time. No conversation was had until Dennis picked out the photo of defendant. He was then asked if he was positive it was the man and he replied that he was. David Wheeler was unable to identify any picture. Dennis Wheeler recognized several of the persons whose pictures were shown to him and had seen one of them at his bowling alley. He was then told that that person was not involved in the robbery.

We need not make a determination whether the identification procedure was improperly suggestive. This is because even if it were so determined, the in-court identification by the witness would be admissible if it were based on a source independent of and uninfluenced by the suggestive pre-trial procedure. People v. Johnson, 55 Ill.2d 62.

Here Dennis viewed the defendant at close range for approximately 5 minutes during the robbery. The lighting was equal to daylight. There was no impediment to complete observation. We conclude that there was clear and convincing evidence that the identification of the defendant had an origin independent of the photo line-up and was properly received in evidence. People v. Connolly, 55 Ill.2d 421, 427.

Prior to trial defendant made a “Motion for Ruling Concerning Impeachment of Defendant by Prior Infamous Conviction.” The motion referred to a prior conviction of defendant for armed robbery on May 4, 1970, and asked that it be suppressed. Defendant contends that the trial court erred in not suppressing the prior conviction, citing People v. Montgomery, 47 Ill.2d 510, and People v. Cox, 8 Ill.App.3d 1033. In Cox, the prior convictions were more than 10 years old and there was no showing that defendants had been released from confinement within 10 years of a subsequent burglary prosecution. In People v. Montgomery the supreme court held that proof of prior convictions for purposes of impeachment was to be governed by Rule 609 adopted by the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, and implicitly adopted the holdings of Luck v. United States, 348 F.2d 763, and Gordon v. United States, 383 F.2d 936.

When the prior conviction is within the 10-year perimeter of Rule 609 as in the instant case, discretion of the trial judge is permitted in accordance with the views suggested in Gordon by Judge Burger, now Chief Justice, enunciating various factors that will govern the discretion of the trial court in making the determination: the nature of the crime, nearness or remoteness, the subsequent career of the person, and whether the crime was similar to the one charged.

The ruling of the trial judge concerning defendant’s prior conviction meets the standards set forth in Montgomery and it was not error.

The defendant next contends that the trial court erred in certain questioning of two of the witnesses and in the making of a comment. Four questions and answers deemed prejudicial by the defendant were asked of David Wheeler (who had been unable to identify the defendant) :

“The Court: Mr. Witness, did you pay much attention to the man in the green stocking cap?
A. No, I didn’t.
The Court: Why?
A. Because the other man had a gun on me and he was giving the orders.
The Court: That is the one you paid attention to?
A. I didn’t get you.
The Court: But that is the one you paid attention to?
A. Yes, because he was giving the orders.”

A trial judge does not play the part of an owl, merely gazing at the participants and looking wise. He must observe with care and seek to understand the issues and the testimony. If a question or an answer appears confusing, it is not only his right but his duty to seek to clarify it. (People v. Gaston, 85 Ill.App.2d 403.) A judge may intervene in order to ask questions to bring out information that has not been brought out (People v. Rongetti, 331 Ill. 581), and to ask questions as to points that are obscure in the testimony. (Dunn v. People, 172 Ill. 582.) He must however, use great care not to assume the role of advocate (People v. Trefonas, 9 Ill.2d 92; People v. Santucci, 24 Ill.2d 93).

Patricia Foster, the defendant’s girl friend, 17 years of age, was the second of two alibi witnesses for the defendant, the first having been William McDowell. McDowell, of Chicago, testified that defendant was staying with him in his Chicago apartment all day long on the day of the crime, until they left for a party, the defendant leaving first and the witness going later at 8:30 or 9 o’clock in the evening to a party for Patricia Foster. On cross examination McDowell stated that he had not gotten to the party until 2 A.M.

Foster then testified that a party was given for her on the date of the crime, at her home in Chicago, a sort of late birthday party and that the defendant was at her home all that day, having gotten there the day before; that he had left about 8 in the morning, had returned about 8 to 8:30 and stayed until about 3:30 in the morning; that he had left earlier with Charles McDowell and they had come back about 8:30. Counsel for defendant appeared to have difficulty in understanding what witness Foster had stated and then re-questioned the witness on times of arrival and departure of defendant from Foster’s party. Example:

“Q. He came to the party once and left?
A. He was there at the party already.
Q. I see.
A. Because he had stayed that night and he was there when he left and he came back to the party.
Thereupon the Court asked the following:
Cotut: I don’t understand what you are talking about. You are telling the jury and me that he was there at your party already— that means before 8:00?
A. Yes — before it started.
Court: How long before 8:00?
A. All that morning.
Court: He was there all that morning?
A. Before the party started.
Court: I don’t understand you — when you say all that morning, what hours do you mean?
A. From 1:00 until—
Court: 1:00 in the morning until when?
A. Yes, until about sometime that afternoon when he left.
Court: Sometime that afternoon he left?
A. Yes.
Court: And he was at your party all that time, is that true?
A. Yes.
Court: Who did he leave with?
A. He left alone.
Court: And then he came back?
A. Yes.
Court: What time did he come back?
A. About 8:00.
Court: About 8:00. You don’t know where he went between 1:00 P.M. in the afternoon and 8:00 o’clock, do you?
A. No.
Court: But from 1:00 in the morning until 1:00 that afternoon he was at your party — and what was the address of your party?
A. 8539 Maryland.
Corut: That isn’t the same house McDowell lives in, is it?
A. No.”

This appears to be nothing more than an attempt to clarify the testimony. We have reviewed the cases cited by defendant in support of his contention that the trial judge took over the role of prosecutor and find neither of them applicable on the facts.

Defendant contends also that his trial counsel’s wisdom and strategy was questioned in the presence of the jury when his counsel offered into evidence the 10 “mugshots” used by police officers in the pre-trial photographic identification procedure. The offer was made at the close of all the evidence. All the photographs bear legends with the lettering. “Kankakee Ill PD”, a date, and a name, and date, in the form of a plaque fitted with interchangeable letters, hung around the neck of the photographed individual with a chain, and resting on the subject’s chest. The photograph of the defendant bore the following lettering:

‘KANKAKEE ILL
14 JAN 71
RUSSELL HODGES
1961
PD
LH
The record shows the following:
“Defense Counsel: Your Honor, at this time I move to introduce into evidence Defendant’s Exhibits 1 through 10 inclusive.
State’s Attorney: No objection.
Court: You are sure you want them in?
Defense Counsel: Yes, I do, Your Honor.
Court: I want to make sure.
Defense Counsel: And the Defense rests.
Court: Just remember they are your exhibits. They will be admitted at the Defendant’s request.”

The photograph of defendant shows a date of January 14, 1971, prior to the date of the instant crime, and could be construed by the jury to indicate an arrest on that date, of a nature that has been held prejudicial by this court, as conveying to the jury the concept of the propensity to crime. (People v. Hawkins, 4 Ill.App.3d 471.) The trial court did not, by its cautionary query, reflect upon the defendant’s case, but did serve as a reminder to counsel of the possible dangerous implications arising from the introduction of the photographs in evidence. The defense attorney was not roughly handled by the judge, nor does there appear any likelihood or possibility that the judge affected the verdict by his remarks, either expressly or by necessary implication.

As was said by our supreme court in People v. Marino, 414 Ill. 445, 452, “It is essential that jury trials shall be managed fairly, and that trial judges shall not only be just to both sides, but that they shall conduct themselves in such a manner that an impartial state of mind is apparent to all concerned,” and on page 450, “Jurors are ever watchful of the attitude of the trial judge and his influence upon them is necessarily and properly of great weight, thus his lightest word or intimation is received with deference and may prove controlling. * * * Hostile conduct by the court toward an accused’s counsel is another factor which may well tend to influence a jury to the prejudice of accused.”

In this case we are satisfied, and it is clear from the record that none of the questioning by the trial judge, or the comment by the trial court, was prejudicial. We note further that the jury was instructed in the language of IPI-Criminal 1.01.

Defendant also contends that the State failed to prove him guilty beyond a reasonable doubt because of inconsistencies in the State’s evidence coupled with defendant’s alibi.

The evidence herein supports the verdict. The fact that the crime was committed is not in question. The identification of the defendant by Dennis Wheeler was positive and immediate and with ample opportunity to observe during the commission of the crime, as to lighting, length of time, distance and absence of any impediment to complete observation. Precise accuracy in describing facial characteristics is unnecessary where an identification is positive. (People v. Brooks, 13 Ill.App.3d 1003, 1007; People v. Catlett, 48 Ill.2d 56, 63.) Testimony of a single witness who has ample opportunity for observation is sufficient to convict, although contradicted by alibi witnesses. (People v. Rodgers, 53 Ill.2d 207, 214; People v. Stringer, 52 Ill.2d 564, 569.) Further, in the instant case, the two alibi witnesses contradicted each other substantially as to times of day testified to. The jury had ample reason to disbelieve the alibi testimony. We hold that the guilt of defendant was established beyond a reasonable doubt.

Defendant in his final point of argument contends that the minimum term of sentence should be reduced to 4 years in order to preserve the principle of indeterminancy. That principal should be “a guide and not a hard and fast rule.” People v. Scott, 117 Ill.App.2d 344.

The offense for which defendant here stands convicted had a minimum of 5 years at the date of commission of the offense. The present minimum is 4 years under the Unified Code of Corrections and the minimum is required to be 4 years unless the nature of the offense and the history and character of defendant warrant the imposition of a higher term. (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8—1.) In this case the history and character of defendant and the nature of the offense justified the sentence imposed. People v. Williams, 14 Ill.App.3d 572, 579; People v. Earl, 14 Ill.App.3d 617, 618; People v. Lewis, 15 Ill.App.3d 8.

For the reasons stated herein, the judgment of the trial court is affirmed.

Affirmed.

SCOTT, P. J., and ALLOY, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE ALLOY

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Todd Carpenter, Defendant-Appellant.
    (No. 73-177;
    Third District
    July 18, 1974.

      James Geis, of the State Appellate Defender’s Office, of Ottawa, for appellant.
    David DeDoncker, State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendant Todd Carpentier appeals from a conviction for unlawful delivery of controlled substances, less than 30 grams of heroin and less than 30 grams of LSD, in the Circuit Court of Rock Island County. Defendant pleaded not guilty and was convicted following a jury trial and sentenced to the term of 3 to 9 years on each of two counts with the sentences to run concurrently.

On appeal in this court, defendant asserts that the trial court committed reversible error by refusing to instruct the jury on entrapment, and, also, contends that the conviction was based on a statute which violates due process and equal protection of the laws and is, therefore, unconstitutional.

On the issue as to unconstitutionality, we have considered the issues raised by defendant in a number of recent cases. (People v. Kadlec (1974), 21 Ill.App.3d 289; People v. Campbell (1974), 16 Ill.App.3d 851, 307 N.E.2d 395; People v. Kline (1974), 16 Ill.App.3d 1017, 307 N.E.2d 398; People v. Peterson (1974), 16 Ill.App.3d 1025, 307 N.E.2d 405.) In the cases referred to, we have already determined that there is no substance to the arguments raising the issue of unconstitutionality in the instant case.

The contention as to the failure to instruct on entrapment, however, creates a problem different in character which must be analyzed in light of the facts in this cause. It appears from the record that the defendant Carpentier’s defense at his jury trial was entrapment. Defendant requested an entrapment instruction. This was refused by the trial court. It appears from the record that defendant stated that one Joe Waterman, a friend, tried on four occasions in approximately a 1-imonth period to persuade defendant to commit the offense in question by procuring and selling to Waterman certain controlled substances. Waterman was actually a convicted felon who was a special employee-informer for the Illinois Bureau of Investigation. The informer first solicited Carpentier to violate thé law at a gas station where Carpentier was working, at which time the informer tiled to sell Carpentier some marijuana, but Carpentier did not agree to this request. On a second occasion, the informer tried to talk to Carpentier at a night club and stated that he had recently been robbed of all the informer’s marijuana and that the informer was in trouble because of this loss. He then asked Carpentier to help him by obtaining some LSD which the informer could sell to recover his loss. Carpentier responded that he would “check around” and gave the informer two telephone numbers where the informer could reach him. He apparently did nothing to obtain the requested narcotics for the informer at this time. A short time later, the informer told Carpentier that the informer’s girl friend was addicted to heroin and needed some and asked Carpentier to help him out by obtaining some heroin for her. Carpentier did not obtain such narcotics.

The informer, on a fourth occasion, telephoned Carpentier and asked him for narcotics and Carpentier thereupon called a source in Davenport and obtained the desired narcotics for the informer. Defendant made two separate deliveries, one inside the restaurant to the informer, with no money being exchanged, and the other in defendant’s car, where $30 was given to the defendant. Defendant boasted that very few white men were able to obtain the narcotics from the particular place in Davenport where defendant had obtained them and, also, defendant offered to sell the informer hashish, needles or syringes. The testimony was also to the effect that the defendant had paid some $100 to buy narcotics from the place where he had obtained them for the informer. Defendant was arrested 7 months later.

The defense of entrapment was raised during the trial and defendant requested that an entrapment instruction be given. As indicated, the trial court refused the instruction. Defendant contends that under the precedents, very slight evidence of entrapment is sufficient to raise a question of fact for the jury. The case of People v. Kharnis, 411 Ill. 46, 103 N.E.2d 133, 136, is cited in support of such contention. In that case, the Supreme Court of Illinois pointed out that the court does not weigh the evidence upon a question of whether any instruction is proper on a certain theory, but that very slight evidence on a given theory of the case will justify the giving of an instruction. (See also People v. Matter, 371 Ill. 333, 20 N.E.2d 600, 602, and People v. Papas, 381 Ill. 90, 44 N.E.2d 896, 898.) In the United States Supreme Court it was determined that, unless the court could decide the issue as a matter of law, the factual issue of whether a defendant has been unlawfully entrapped is for the jury as part of its function of determining the guilt or innocence of the accused. Sherman v. United States, 356 U.S. 369, 377, 2 L.Ed.2d 848, 854, 78 S.Ct. 819 (1958).

The issue, therefore, before the court was whether the evidence against entrapment was so clear and convincing that it could be said as a matter of law that there was no entrapment. When we review all of the testimony of defendant in a light most favorable to the defendant, we cannot say that there is no evidence in favor of entrapment. It is not contended by defendant that the evidence presented at the trial is sufficient to constitute entrapment as a matter of law. Defendant contends solely that there was enough evidence to entitle him to the benefit of an entrapment instruction to the jury.

In approaching this issue, we note that the Illinois Criminal Code (Ill. Rev. Stat. 1971, ch. 38, § 7 — 12) defines entrapment as follows:

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is applicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.”

In the Committee Comments which follow the statutory language (S.H.A. (1972), ch. 38, § 7 — 12, at 439), it is stated:

“Section 7 — 12 states the defense of entrapment in general terms in essentially the language which the Illinois Supreme Court has used in cases citing with approval the Sorrells case [Sorrells v. United States, 287 U.S. 435, 77 L.Ed. 413, 53 S.Ct. 210 (1932)]. A more detailed definition does not seem feasible at the present * * * since the existing court opinions do not sufficiently outline its scope or settle various problems which would affect the expression of a detailed definition. * * *”

It is pointed out in the United States Supreme Court cases that the principal element in the defense of entrapment is whether defendant was predisposed to commit the crime. In Sorrells v. United States, 287 U.S. 435, 77 L.Ed. 413, 53 S.Ct. 210, a Federal prohibition agent visited defendant while posing as a tourist and engaged him in conversation about their common war experiences. After he had gained defendant’s confidences the agent asked for some liquor and was twice refused but upon asking a third time defendant finally agreed and was subsequently prosecuted for violating the National Prohibition Act. The Court held in the Sorrells case that the defense of entrapment should have been available to the defendant. Under the theory propounded by the majority in that case, it was held that an entrapment defense prohibits law enforcement officers from instigating criminal acts by persons “otherwise innocent in order to lure them to its commission and to punish them.” (287 U.S. at 448.) In the Sorrells decision it is implicit that no predisposition of a defendant to commit the offense for which he is being prosecuted would be inferred from the fact that defendant had access to a source of illegal liquor and did in fact obtain some. In Sherman v. United States, 356 U.S. 369, 2 L.Ed.2d 848, 78 S.Ct. 819, the Court reaffirmed the Sorrells holding. In that case, the defendant was convicted of selling narcotics to a government informer. The confidence of the defendant was gained and despite initial reluctance, defendant finally acceded to the repeated requests to commit the criminal act. The Court, following Sorrells in such case, reversed defendants conviction.

As stated by Chief Justice Warren, the Court said the line must be drawn between a trap for the unwary innocent and a trap for the unwary criminal. (See also United States v. Russell, 411 U.S. 423, 36 L.Ed.2d 366, 93 S.Ct. 1637 (1973).) In the Russell case, the defendant was convicted of unlawfully manufacturing and selling methamphetamine where the defense was that he was entrapped into committing the offenses by government undercover agent who supplied the essential ingredient in the manufacture of the substance. The Court there affirmed the conviction and held that defendant’s lack of predisposition to commit the crime was a principal element of entrapment and that since defendant conceded in the court of appeals that the jury could have found him predisposed to commit the offense, that was fatal to his claim of entrapment.

While there is evidence in the instant case which might persuasively indicate that the defense of entrapment would not be sustained, we note that defendant does not contend as a matter of law that the evidence presented at the trial constituted entrapment. He simply asserts that there was some evidence in favor of such defense which raised an issue of fact and which should have gone to the jury. With this contention we agree since there is no evidence which shows that Carpentier was a drug pusher who was merely awaiting a proper opportunity to sell drugs when he was approached by the informer. As a matter of fact, it is indicated to this court on appeal that Carpentier had no previous arrests or convictions for drug-related offenses prior to the instant case. It may very well be that he was in close contact with narcotics dealers and other persons who were in the narcotics culture. While we might personally be disposed to find on the record that there was no entrapment in the cause before us, and hesitate to reverse a case solely on the ground of the failure of the trial court to give an entrapment instruction, we believe that the facts and circumstances in the cause before us are such that the omission to give the entrapment instruction requires a reversal and remandment of this cause. Since defendant elected to have a jury trial and not a bench trial he was entitled to have the jury determine the validity of his entrapment defense in view of the record in the case. This cause is, therefore, reversed and remanded to the Circuit Court of Rock Island County with directions to proceed in accordance with the views expressed in this opinion.

Reversed and remanded with directions.

SCOTT, P. J., and STOUDER, J., concur.


author: Mr. JUSTICE DIXON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Walker, Defendant-Appellant.
    (No. 73-132;
    Third District
    July 18, 1974.

      Vincent P. Paulauskis, of Bissonnette, Nutting, Thacker & Sacks, of Kankakee, for appellant.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

Defendant was issued a traffic ticket charging him with reckless driving in violation of section 11 — 503 of the Illinois Vehicle Code. Prior to trial he attacked the sufficiency of the complaint on the grounds that the complaint failed to charge him with an offense and failed to set forth any facts that would adequately inform him of the nature and elements of the offense charged, in violation of section 111 — 3(a) (3) of the Criminal Code. His motion was overruled and after a trial he was convicted. He then made a motion in arrest of judgment again attacking the sufficiency of the complaint as before. His motion was overruled and he was fined $35. He appeals.

The form of complaint used in this case was the Illinois Uniform Traffic Ticket and Complaint, adopted by Supreme Court Rule 552; it charged: “That on Jan. 23, 1973 at 4:25 P.M., defendant did unlawfully operate a 1967 Chevrolet, license number WL 3456 (1973) upon a public highway at 17 WB and N. Fairmont Ave. in Kankakee, Illinois and did then and there commit the following offense,

Reckless Driving in violation of Illinois Vehicle Code Sec. 11— 503 dry pavement, clear visibility, cross and oncoming traffic on a 4 lane highway in a business area.”

Section 111 — 3(a)(3) provides:

“(a) A charge shall be in writing and allege the commission of an offense by:
# # #
(3) Setting forth the nature and elements of the offense charged; * *

The defendant cites People v. Griffin, 36 Ill.2d 430, 434, which requires that the charge of reckless driving state the “nature and elements” of the offense, in the sense of the particular acts relied upon. “The requirement is not burdensome, for the prosecution must know the specific conduct it proposes to prove.” The court pointed out that the charge of reckless driving might include a multitude of different acts; running through a succession of red lights; driving at an excessive rate of speed; driving on the wrong side of the road, etc. It is essential in such charge that the defendant be advised as to the particular acts that comprised the offense.

It is obvious that the complaint in the instant case does not, in any way set forth the particular acts that may have made up the offense sought to be charged. We conclude that the complaint was not sufficient to advise the defendant of the precise offense of which he was accused and that, therefore, his motions were improperly denied. People v. Green, 368 Ill. 242.

The State has contended that the Criminal Code has no application to the Illinois Uniform Traffic Ticket and Complaint because Supreme Court Rule 552 expressly provides for the use of traffic tickets as the form of complaint. The penalty for reckless driving provides, “(b) Every person convicted of reckless driving shall be guilty of a Class B misdemeanor.” (Ill. Rev. Stat, ch. 95½, par. 11 — 503(b).) A Class B misdemeanor provides for a sentence for not more than 6 months (Ill. Rev. Stat, ch. 38, par. 1005 — 8—3(a)(2)), and or a fine not to exceed $500 (Ill. Rev. Stat., ch. 38, par. 1005 — 9—1). With such possible penalties there should be no doubt that a crime is involved.

We do not in any way mean to imply that reckless driving cannot be charged by means of the Uniform Traffic Ticket and Complaint. We are simply saying that it was not done in the instant case. In a very recent case, People v. Burch, 19 Ill.App.3d 360, 311 N.E.2d 410, the exact issue was raised. In that case the arresting officer indicated by filling in appropriate blanks and spaces appearing on the ticket, that the defendant had passed three cars in a reckless manner while on a residential two-lane highway with oncoming traffic. The court held, and we would agree, that the complaint specifically denominated the reckless conduct alleged to have been performed by the defendant.

For reasons given the judgment of the trial court will be reversed.

Reversed.

SCOTT, P. J., and ALLOY, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Kenneth J. Meyer, Defendant-Appellant.
    (No. 73-109;
    Third District
    July 18, 1974.
    Richard Steck, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

Kenneth J. Meyer was indicted for the murders of Jacqueline Meyer and Linda Legacy. After plea negotiations, defendant plead guilty, to one count charging both murders, in the Circuit Court of Kankakee County. On March 20, 1970, he was sentenced to a term of not less than 30 nor more than 50 years. He did not appeal.

On July 18, 1972, defendant filed a pro se petition under the Post-Conviction Hearing Act. Counsel was appointed to represent defendant. On February 23, 1973, the State filed a motion to dismiss and on the same day defendant’s appointed counsel filed a motion to withdraw and a pro se amendment to the petition. The State again moved to dismiss. On March 13, 1973, defendant, in a pro se motion, requested change of counsel. He complained that counsel had not filed an Anders brief with his motion to withdraw. A hearing with defendant present was held March 19, 1973. The trial judge examined each allegation of defendant’s post-conviction petitions and concluded that the petitions were frivolous. He granted counsel’s motion to withdraw and the State’s motion to dismiss.

Defendant appeals from the dismissal of his petition contending first, that appointed counsel’s motion to withdraw from a post-conviction proceeding must conform with the standards for withdrawal from a direct appeal as announced in Anders v. California, 386 U.S. 738. After defendant’s brief was printed this court held in People v. McCarty, 17 Ill.App.3d 796; 308 N.E.2d 655, that Anders was not compulsorily applicable to proceedings at the trial-court level.

Defendant also contends that he had a substantial constitutional claim because his sentence ignores the constitutional objective of restoring him to useful citizenship. The full applicable text of article 1, section 11 of the Constitution of 1970 is, “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship. * * *”

This exact issue was recently decided adversely to defendant in People v. Seidler, 18 Ill.App.3d 705, 310 N.E.2d 421. We agree with the decision in that case and hold that the defendant has not raised an issue of constitutional dimension. (See also People v. Rife, 18 Ill.App.3d 602, 310 N.E.2d 179, 186.) And further, just as in Seidler the sentencing issue was not raised by the post-conviction petition and need not be considered on an appeal from the dismissal of the petition.

For the foregoing reasons we affirm the judgment of the Circuit Court of Kankakee County dismissing the post-conviction petition.

Affirmed.

SCOTT, P. J., and ALLOY, J., concur.


author: Mr. PRESIDING JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joe Allen Edmond, Defendant-Appellant.
    (No. 12342;
    Fourth District
    July 3, 1974.

      John F. McNichols, J. Daniel Stewart, and Thomas Nelson, all of the State Appellate Defender’s Office, of Springfield, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Robert James Steigmann, Assistant State’s Attorney, and Peter Dahm, Senior Law Student, of counsel), for the People.
   Mr. PRESIDING JUSTICE TRAPP

delivered the opinion of the court:

Defendant appeals from the sentence of 4 to 12 years imposed after being convicted of burglary in a bench trial. The sole issue presented for review is whether or not the trial judge abused his discretion in imposing an excessive sentence.

Burglary, as defined in section 19 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 19 — 1), is a Class 2 felony which is punishable under the Unified Code of Corrections for any term in excess of 1 year and not exceeding 20 years. The Code (Ill. Rev. Stat. 1971, ch. 38, par. 1005 — 8—1(c) (3)) provides that a court shall not sentence a defendant to serve greater than the minimum term of 1 year unless the nature and circumstances of the case require a higher minimum term.

The record shows that defendant was 28 years old. In determining this sentence, the record shows that the court observed and commented upon the nature of defendant’s criminal record, including a conviction for burglary in 1963, upon which defendant served 3 years under a sentence of 1 to 3, and convictions for burglary in 1970, with concurrent sentences of 1 to 10 years. Two other burglary charges then pending were dismissed. This offense occurred within 2 months following the release of defendant on parole in 1972. In the light of such factors considered by the court a potential for early rehabilitation is not readily apparent. Hiere is nothing which suggests that the trial court abused its discretion in imposing sentence. People v. Barge, 7 Ill.App.3d 721, 288 N.E.2d 492.

The judgment of the trial court is affirmed.

Affirmed.

CRAVEN and SIMIKINS, JJ., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Stephen L. Lowe, Defendant-Appellant.
    (No. 12072;
    Fourth District
    June 20, 1974.
    Synek & Bishart, of Chicago (Henry T. Synek, of counsel), for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (John A. Beyer and John W. Foltz, both of Circuit Attorney Project, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

In a bench trial in the Circuit Court of McLean County, the defendant was convicted of the crime of theft under $150 in violation of section 16 — 1(a) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, sec. 16 — 1(a)), and a fine of $50 imposed. The only issue raised by the defendant was whether or not the evidence established his guilt beyond a reasonable doubt. In oral argument, this court raised the sufficiency of the information filed in this case and it was conceded by the State that the information did not allege, nor did the evidence show the ownership of the property taken. The defendant walked out of the store without paying for a book. The ownership of the book was alleged as follows: “To-wit (CO-OP Bookstore).” It is clear that such allegation is insufficient to allege or to identify a legal entity capable of property ownership. In People v. Hill, 68 Ill.App.2d 369, 216 N.E.2d 212, the allegation of ownership of some men’s shirts and sweaters was alleged to be in “Community Discount Store.” In that case, the conviction was reversed. The court there held that in an indictment information or complaint for theft, the ownership of the property allegedly stolen is a necessary averment; if the store was not a legal entity capable of owning property, the ownership should have been alleged in the individual or individuals who own the store or, if a corporation, the corporate existence should have been alleged and proved.

It is thus apparent that the conceded error is fatal to this information and it is insufficient to support the conviction. Accordingly, the judgment must be reversed.

Judgment reversed.

CRAVEN and SIMKINS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mike Sheppard, Defendant-Appellant.
    (No. 11787;
    Fourth District
    June 20, 1974.

      John F. McNichols and J. Daniel Stewart, both of the State Appellate Defenders Office, of Springfield, for appellant.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (Hugh H. Rowden, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE TRAPP

delivered the opinion of the court:

Defendant was convicted of battery at a bench trial. Sentence of 2 years’ probation was imposed with the provision that 90 days be served at the State penal farm at Vandalia. Defendant’s bond was continued and sentence stayed pending appeal.

On appeal it is urged that defendant was not proven guilty beyond a reasonable doubt, that the trial court erroneously accepted counsel’s jury waiver by failing to admonish the defendant of his right to jury trial, and that the sentence does not conform with the Unified Code of Corrections.

This conviction arises from an incident that occurred outside the Warehouse nightclub in Springfield early on the morning of November 26, 1970. Defendant and two companions left the nightclub when the bartender asked them to leave because of their arguing. At this point, the testimony becomes conflicting. A fight developed which defendant described as a “huge fracas.” Defendant was involved in part of the fight described as “confusing,” during which he was knocked to the ground several times and he kicked in the nose one Bill Sales, who was not the victim of the battery charged in the indictment. The complaining witness, Robert Finneran, testified that defendant kicked him in the head. Finneran was rather severely injured during the course of the brawl. The complaining witness testified that defendant visited him at the hospital and stated, “We didn’t mean to beat you up that bad.” The testimony was corroborated by two other witnesses. Defendant’s version of this conversation is that he told Finneran only that he was sorry that someone was hurt in the incident, and that the defendant was “the original reason that the whole thing developed.” On the basis of the trial court’s finding that there was a reasonable doubt as to whether defendant actually kicked Finneran, the trial court found the defendant not guilty of aggravated battery as charged. Relying largely on defendant’s admission that he was involved in the beating, and the facts that Finneran was injured, defendant was fighting and he attempted to flee the scene, defendant was found guilty of battery. Where the trial court sitting as the trier of facts enters a finding of guilty, it will not be disturbed on review unless the evidence is so unreasonable, improbable or unsatisfactory as to leave a reasonable doubt as to defendant’s guilt. (People v. Curry, 56 Ill.2d 162, 174, 306 N.E.2d 292.) In light of defendant’s admission to participation in the beating, which the trial court believed, and his admitted participation in a fight described as confusion, the trial court’s finding of guilty is not so unreasonable, improbable or unsatisfactory that this court will disturb that finding on review.

It is urged that the trial court improperly accepted a waiver of jury trial by defendant’s counsel. At the arraignment, defendant was informed of and clearly demonstrated that he understood that he had a right to a trial by jury. The record also shows that defendant was present and made no comment when his counsel made a motion to withdraw his jury demand and to proceed with a bench trial. Under these circumstances, the defendant is deemed to have acquiesced in and be bound by counsel’s waiver. (People v. Sailor, 43 Ill.2d 256, 260, 253 N.E.2d 397.) Further, the defendant’s failure to raise the alleged impropriety of his jury waiver in his post-trial motion constitutes a waiver of that issue. People v. Curry, 56 Ill.2d 162, 170, 306 N.E.2d 292; People v. Pickett, 54 Ill.2d 280, 282, 296 N.E.2d 856.

Finally, defendant contends that the trial court abused its discretion by imposing 90 days of imprisonment as a condition to his probation, and that further, under the new Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—3(d) and par. 1008 — 2—4), as his appeal was still pending on the effective date of the Unified Code of Corrections (People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269), the term of imprisonment should be deleted from his sentence of probation.

The Unified Code of Corrections, section 5 — 6—3(d) (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—3(d)), effective January 1, 1973, provided that the trial court shall not require a period of imprisonment as a condition of probation. In People v. Grant (1974), 57 Ill.2d 264, 312 N.E.2d 276, and People v. Mahle (1974), 57 Ill.2d 279, 312 N.E.2d 267, it was determined that the statutory provision on such effective date controlled as to those cases pending on appeal, that defendant was entitled to the benefit of the provision of the Code on such effective date and that such entitlement was not affected by the subsequent amendment of the Code of Corrections effective November 14, 1973, permitting imprisonment not to exceed 6 months as a condition of probation.

That portion of the sentence which provides imprisonment for 90 days is vacated and as so modified, the judgment below is affirmed.

Judgment modified and affirmed.

CRAVEN and SIMKINS, JJ., concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph L. Wright, III, Defendant-Appellant.
    (No. 12203;
    Fourth District
    June 20, 1974.
    John F. McNichols, Bruce L. Herr, and Patrick Flynn, all of the State Appellate Defender’s Office, of Springfield, for appellant.

      C. Joseph Cavanagh, State’s Attorney, of Springfield (James W. Jerz and Edward N. Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant appeals from judgments entered on jury verdicts finding defendant guilty of the offenses of aggravated battery in violation of section 12 — 4(b)(6) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, sec. 12 — 4(b)(6)), and resisting or obstructing a peace officer in violation of section 31 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, sec. 31 — 1) and from a sentence of 1 to 5 years imposed for the aggravated battery. Defendant raises the following issues for this court to decide: (1) Whether the trial court erred in admitting evidence of certain actions and statements of defendant at the scene of his arrest; (2) Whether the trial court erred in admitting evidence of defendant’s statements and actions at the jail and hospital shortly after defendant was in custody; (3) Whether defendant was proven guilty of aggravated battery beyond a reasonable doubt; (4) Whether the trial court, although it sentenced defendant on only the greater offense, may properly enter judgments for both aggravated battery and resisting or obstructing a peace officer when both offenses arise from the same conduct or transaction; and (5) Whether defendant’s sentence for aggravated battery is excessive.

The events in the present appeal evolve from a traffic accident which occurred on May 14, 1972, in Springfield, Illinois. At the trial the testimony was in relevant part as follows: Deborah Jean Smith testified that on the evening in question she was waiting to turn at an intersection when she was struck from behind by defendant’s car. She stated that she got out of her car and told defendant not to leave because it appeared that he was attempting to pull away. She further stated that when the police arrived she heard defendant shouting obscenities at the officers, observed much scuffling and fighting, and saw defendant swing at an officer as the police were attempting to get defendant out of his car.

John Palmer, a Springfield police officer, testified that he was first to arrive at the scene of the accident. He stated that Officer Walton was the first traffic officer to arrive, and while directing traffic, he observed Walton beside defendant’s car. He then heard some obscenities, turned around and saw Walton and defendant arguing. He stated that he then began to run to assist Walton when he saw defendant swing out from the car and hit Walton on the right shoulder.

Emmett Cleghorn, also a Springfield police officer, testified that upon arriving at the scene he asked defendant if he was all right, to which defendant answered affirmatively. Shortly thereafter, he asked defendant to turn his car motor off, and defendant replied that if he did, he wouldn’t be able to start it again. He proceeded to direct traffic and then overheard Walton telling defendant to stop the motor and get out of the car. He then heard defendant utter some obscenities and saw him lunge or spring out of the car. He stated that at this point he turned around to direct traffic and did not see defendant strike Walton. When he turned back around, he simply saw defendant and Walton scuffling.

Walton testified that when he arrived at the scene, he noticed defendant’s engine was noisily running and asked him to shut it off. The defendant then replied, “Fuck you, mother-fucker, I ain’t turnin’ nothin’ off.” After asking him two more times to turn the engine off and getting a similar reply, he stated that he reached into the car to turn it off himself. He stated that defendant then lurched out of the car and hit him on the upper right lip. The two then began to scuffle, and other officers arrived to assist him.

Donald Mitchell, also a Springfield police officer, testified that upon arriving at the accident he saw several officers wrestling with defendant. He stated that he tried to subdue defendant and that defendant took a swing at him. He then retaliated by striking defendant in the eye. Defendant then had to be forcibly dragged to the police car.

Defendant testified that upon hitting the back of a car he became stunned because his head hit the windshield. He stated that the lady from the car he hit walked toward his car, saw the blood streaming from his head and ran back in shock. He stated that Officer Cleghom then arrived and asked if he was all right. He replied that he thought he was all right, and Cleghom then asked him to cut off his motor. He replied that if he did he wouldn’t be able to start it again. He stated that a few minutes later he was approached by Officer Walton who asked him twice to get out of the car. He stated that he couldn’t because he had glass in his face. He stated that after asking him a third time, Walton pulled open the door, and as soon as he got out of the car, Walton hit him in the eye. He then defended himself from being hit again. He stated that other officers arrived to assist Walton, and he was placed handcuffed in the police car at which point Officer Mitchell got on top of him and hit him in the head. He further stated that he never used obscene language in conversing with Walton and that he never swung at any of the officers, nor. did he straggle or attempt to break away from them.

Defendant contends that the trial court erred in admitting evidence of defendant’s struggles with officers other than Walton at the scene of the accident because such testimony was prejudicial and indicated other possible offenses. Defendant further contends that the trial court erred in admitting evidence of defendant’s vulgar language and statements to the crowd at the scene of the accident because such testimony was prejudicial and irrelevant. Nevertheless, we note that defendant did not object to the introduction of any of this testimony, and defendant may not now raise these issues for the first time before this court.

Defendant contends that the trial court also erred in admitting evidence of defendant’s statements and actions at the jail and hospital shortly after defendant was in custody because such testimony was prejudicial and did not tend to prove guilt. We note that defendant only objected once to the testimony in this regard. Officer Leigh stated that he was at the station when defendant was brought in. Defense counsel then stated, “I object to the line of questioning. It has no bearing on this case.” The court then overruled the objection and Leigh went on to state that defendant was screaming and had to be forcibly taken to the prison area. The trial court was clearly correct in admitting such evidence because it occurred immediately after the arrest and is part of the continuous narrative of events and circumstances that formed the context of the arrest. (See People v. Alexander, 69 Ill.App.2d 27, 216 N.E.2d 180, and People v. Tucker, 118 Ill.App.2d 136, 255 N.E.2d 31.) Furthermore, it is clearly relevant to defendant’s state of mind in regard to the resisting or obstructing arrest offense.

Defendant next contends that he was not convicted of aggravated battery beyond a reasonable doubt. We find that argument to have no merit. Officer Cleghom testified that he heard defendant utter some obscenities at Walton and saw defendant lunge out of the car. Officer Palmer testified that he saw defendant swing out from the car and hit Walton on the right shoulder. Officer Walton testified that after repeated refusals and obscenities by defendant, he reached into defendant’s car to turn his motor off, and defendant lurched out of the car and hit him in the upper right lip. Defendant denied that he used obscene language in conversing with Walton and denied that he struck Walton or any other officer at any time. He stated that Walton simply struck him as soon as he got out of the car. Obviously the jury chose to believe Walton and not the defendant, not surprising considering the glaring inconsistencies between defendant’s testimony and the testimony of all the other witnesses in the case. It is well established that the credibility of witnesses and the weight to be given to their testimony is to be determined by the trier of fact who hears and sees the witnesses and is in a better position to evaluate their demeanor and sincerity than is a reviewing court. (People v. Wysocki, 20 Ill.2d 62, 169 N.E.2d 264.) We certainly cannot say that the proof here is so unsatisfactory as to justify a reasonable doubt of defendant’s guilt.

The jury returned verdicts finding defendant guilty of both the aggravated battery of Officer Walton and resisting or obstructing an arrest by Officer Walton. The trial court then entered judgments on each of the verdicts although no sentence was imposed on the resisting or obstructing arrest conviction. However, both offenses obviously arose out of the same course of conduct or transaction, and the offense of aggravated battery in the instant situation cannot be said to have been independently motivated from the offense of resisting or obstructing. Accordingly, since the conviction for the greater crime of aggravated battery is valid, the conviction entered on the lesser offense of resisting or obstructing must be reversed. People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679; People v. Leggett, 2 Ill.App.3d 962, 275 N.E.2d 651; People v. Holmes, 12 Ill.App.3d 713, 298 N.E.2d 738 ( 4th Dist).

Defendant also contends that the sentence imposed for aggravated battery, 1 to 5 years, is excessive and should be reduced. We find no merit to this argument. We first note that the sentence imposed here is within the statutory Emits then applicable. It is also weH estabhshed that sentence imposition is peculiarly within the discretion of the trial court (People v. Bonner, 37 Ill.2d 553, 229 N.E.2d 527). We find no abuse of that discretion here especiaHy in light of the circumstances surrounding the offense and defendant’s numerous prior criminal convictions.

For the reasons stated above the conviction for resisting or obstructing a peace officer is reversed and the conviction and sentence imposed for aggravated battery is hereby affirmed.

Reversed in part, affirmed in part and remanded with directions to issue an amended mittimus.

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


author: Mr. JUSTICE CRAVEN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leo Frazier, Defendant-Appellant.
    (No. 11850;
    Fourth District
    July 10, 1974.

      Larry P. Cramer, of Urbana, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Thomas L. Knight, Assistant State’s Attorney, and Roy E. Clark, Senior Law Student, of counsel), for the People.
   Opinion by

Mr. JUSTICE CRAVEN.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Cleve Aldridge, Defendant-Appellant. The People of the State of Illinois, Plaintiff-Appellee, v. Henry Byers, Defendant-Appellant.
    (Nos. 11923-4 cons.;
    Fourth District
    July 10, 1974.

      John F. McNichols, of the State Appellate Defenders Office, of Springfield, for appellants.
    John G. Satter, State’s Attorney, of Pontiac (George S. Dzielak, of the Circuit Attorney Project, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

The defendants here appeal from their convictions of misconduct by an inmate (Ill. Rev. Stat. 1971, ch. 108, j[ 121) and engaging in mob action (Ill. Rev. Stat. 1971, ch. 38, 25 — 1(a) (1, 2, 3)) for their participation in breaking into the prison commissary and taking various commissary items during the October 2, 1971, Pontiac prison disturbance.

The defendants were not jointly indicted nor tried, but were charged in identical two-count indictments, and at their trials held on consecutive days the same witnesses were called with virtually identical testimony being given. Both defendants were found guilty of both charges and granted probation for a term of 5 years with the condition that they were 60 days in segregation in the Pontiac State Penitentiary. Their cases were consolidated for purposes of appeal.

Count II of the indictment charging mob action alleges two criminal acts in the disjunctive — that defendants engaged in the use of force or violence disturbing the public by acting together with one or more other persons without authority of law, or assembled with others to do an unlawful act and in so doing injured certain commissary property. On appeal, the State confessed error as to Count II; thereby, it is found, properly conceding that by charging two separate acts which constitute the offense of mob action, the charge did not set forth the nature and elements of the crime with certainty as is constitutionally required. U.S. Const., Amend. VI; Ill. Const. (1970), Art. I, sec. 8; People v. Heard, 47 Ill.2d 501, 266 N.E.2d 340.

The remaining issue then is proof beyond a reasonable doubt as to Count I — misconduct by an inmate by the destruction of property while participating in a disturbance or riot. The State’s first witness was a prison guard who described the general geography of the prison yard and the events of the afternoon in question. He testified that there was an uproar or disturbance and from his guard tower he could see the area between the prison commissary and hospital. The guard testified that he heard a splintering noise from the end of the commissary building and observed splinters of wood and pieces of the door flying. He could see a number of inmates gathered there, and shortly thereafter, through a large window, could see some of the inmates inside the commissary although he could not directly observe the doorway itself. He testified that he then observed inmates running from the building with cigarettes, candy, and other small items, and upon orders from the assistant warden, fired several shots into the ground, which caused the disturbance to cease. The guard could not identify any of the inmates who broke the door, or entered the building, or left the area carrying commissary items.

Frank Smith, an inmate, testified that he was at the hospital where he worked as a nurse on the afternoon in question when he heard the disturbance and observed approximately 40 to 50 inmates breaking into the commissary, which was about 50 to 75 feet away from his vantage point. He observed about 20 inmates enter the commissary and then run out when the guard fired several shots. Inmate Smith named four inmates including the two defendants as being among those he saw come out of the commissary carrying goods. Smith testified that Byers, whom he knew well having previously worked with him in the hospital as a nurse, was carrying cigarettes when he ran toward another building, passing about 25 feet away from the hospital window from which Smith was watching. He further testified that Aldridge, whom he also knew as being a cook in the hospital kitchen, was carrying cigarettes, coffee, and bottles of hand lotion when he came out of the commissary and ran past the hospital within 10 feet of Smith on his way to the hospital kitchen door.

An inmate named Armitage testified that he knew both defendants and that he was with the State’s witness Smith during the time in question. Armitage testified that there were some prisoners milling around outside the commissary door, but that only four or six actually broke the door down, and that some prisoners who went into the commissary after the door was broken were not involved in breaking the door down. Armitage conceded that he did not observe the entire occurrence, but that he never saw either of the defendants in the area of the commissary, nor were they among those he saw fleeing after the guard fired several shots. Several inmates were called by the defense to testify that the defendants were elsewhere during the disturbance, and in particular that Byers was taking white inmates to an area where they would not be attacked by blacks during the riot. Time estimate discrepancies occur in the various alibi testimony so that it cannot be said they directly conflict with the testimony of the State’s witness Smith. Both defendants testified in their own behalf, denying participating in the disturbance, breaking into the commissary, or taking commissary property.

Positive identification by one credible witness who had ample opportunity for observation may be sufficient to uphold a conviction. (People v. Mack, 25 Ill.2d 416, 185 N.E.2d 154.) Here the defendants argue that the State only produced one incriminating witness whose credibility was attacked by showing that friction existed between him and at least one of the defendants as well as other black prisoners. In addition, as noted previously, defense produced several witnesses who testified that defendants were elsewhere at the time Smith said he observed them at the commissary. The sufficiency of identification ordinarily raises the question of credibility which is a matter for the trier of fact to determine. (People v. Jackson, 28 Ill.2d 566, 192 N.E.2d 873.) However, here, even inmate Smith, the sole witness who identified the defendants as being participants in the disturbance, did not testify that he saw the defendants break down the door or destroy any property, only that he saw them inside the commissary and that he saw them run out carrying goods. Therefore, viewed in the light most favorable to the People, and recognizing that the jury chose to believe inmate Smith’s testimony that he saw the defendants flee from the commissary with goods, there is no evidence that the defendants caused, directed, or participated in the destruction of property as charged in Count I. The prosecution has the burden of proving beyond a reasonable doubt all material and essential facts constituting the crime charged. (People v. Weinstein, 35 Ill.2d 467, 220 N.E.2d 432.) Put in another way, every material allegation in an indictment must be proved beyond a reasonable doubt. People v. Jamison, 92 Ill.App.2d 28, 235 N.E.2d 849.

Here the State proved there was a substantial disturbance in which the commissary door was broken down and items taken therefrom, but at best only produced one witness who testified that the defendants carried some goods out oí the commissary. It must be remembered that the defendants were not charged with theft, but with misconduct of an inmate by destruction of property. Destruction of property could only refer to the commissary door, or to the cigarettes and candy allegedly removed. There is no direct evidence that the defendants were among the 50 or so inmates seen milling around the door or that they were among the contingent which broke down the door. There is some evidence that the defendants were observed coming out of the commissary and running away carrying property, but there is no evidence that those items were destroyed by the defendants or consumed by them or that they were not returned to the commissary. In a criminal case, the burden is on the State not only to prove beyond a reasonable doubt the commission of the crime charged, but also to establish by the same degree of proof, that it was committed by the defendant. (People v. Perkins, 17 Ill.2d 493, 162 N.E.2d 385.) The burden rests on the prosecutor to prove its entire case beyond a reasonable doubt, and the presumption of a defendant’s innocence is not overcome by speculation or by probabilities, and where the evidence is such as fairly permits an inference consistent with innocence, it will not support a conviction. (People v. Johnson, 31 Ill.2d 321, 201 N.E.2d 367.) There being no evidence that these defendants destroyed any property, their convictions must be reversed.

Reversed.

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


author: MR. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Potter, Defendant-Appellant.
    (No. 12404;
    Fourth District
    July 17, 1974.

      Rehearing denied August 13, 1974.

      John F. McNichoIs and John L. Swartz, both of the State Appellate Defender’s Office, of Springfield, for appellant.
    Richard J. Doyle, State’s Attorney, of Danville (John R. McClory, Assistant State’s Attorney, of counsel), for the People.
   MR. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant was indicted for burglary and subsequently convicted at a jury trial on that charge. The trial court entered judgment on a verdict and sentenced defendant to an indeterminate term of 3 to 9 years. Defendant appeals.

On appeal defendant urges that he was denied a fair trial because the prosecutor commented upon his failure to testify. Secondly, it is contended that the trial court erroneously overruled defendant’s objection concerning the admission into evidence of testimony dealing with certain statements he made after his arrest. Next it is argued that guilt was not proven beyond a reasonable doubt.

At trial the defendant admitted that he had entered the Ridgeview Baptist Church as alleged, but asserted that he was not guilty of the burglary by reason of insanity.

Michael Hafner, the arresting officer, testified that he was inside the church on the night of the burglary. He heard a window breaking in the basement of the church sometime around 12:30 A.M. Later he heard someone prowling around the interior of the church. Hafner testified he also heard prying. When defendant entered the auditorium where Hafner was hiding, the officer apprehended him.

The Reverend Gary D. Nelson, minister of the Ridgeview Baptist Church, testified that the police had permission to be inside the church the evening in question; that he had never given Potter permission to be inside the church. He also testified that he was called to the church around 12:30 A.M. because it had been broken into. When he arrived he observed that a window had been broken and a door jimmied.

The defense called four witnesses. Probation officer Joseph Ottino testified that he had known defendant for 15 or 16 years and had first come into contact with him as a juvenile in St. Charles State Training School for Boys. Ottino stated that at that time Potter had been diagnosed as schizophrenic. On cross-examination Ottino stated that he had no education or training in behavorial sciences.

Bernice Potter, defendant’s grandmother, testified that defendant’s mother had left him when he was 2 years old. She stated that her grandson was a very unpredictable and unreliable individual, and that he had emotional difficulties which first came to the surface in high school. She noted that he was sent to the State Hospital at Kankakee when he was about 16 and diagnosed as schizophrenic. On cross-examination, Mrs. Potter stated that defendant had a temper and that she doesn’t always get along with him.

Dr. Michael B. Greenfield, a psychiatrist, testified on behalf of the defendant. He stated that he had examined Potter and diagnosed him as having paranoid psychosis, resulting in an emotionally unstable aggressive person. Greenfield’s testimony went into Potter’s medical history which' noted a disordered home life, poorly adjusted school life, and early delinquency leading to institutionalization and incarceration in tire Federal penitentiary.

Greenfield further testified that predicated upon his own experience, defendant was not faking his symptoms and at the time of the crime Potter substantially lacked capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law because of his mental disorder.

Dr. Greenfield testified on cross-examination that Potter had just been getting over an attack of paranoia psychosis when he was examined on March 11, 1973. Two prior examination records were introduced by the State. Greenfield testified that the conclusion of his examinations on December 21,1972 was that the defendant was an aggressive psychopath. Greenfield further testified that he could not say with certainty that defendant would have committed an illegal act with a police officer standing next to him, but that a paranoid psychopathic could do such a thing. He elaborated that under that type of impulse a person could be extremely destructive. Moreover the doctor testified that on February 15 or 16, 1973, in reference to another criminal charge, he had testified that defendant was not insane on an earlier date, and that he could appreciate the criminality of his conduct and could conform his conduct to the law.

On redirect Greenfield testified that a person with paranoid psychosis would have interludes during which he would be able to understand the ramifications of his conduct, and periods during which he could not deal with his aggressive paranoid impulses.

Dr. Lazzaro Sanchez testified on behalf of defendant. He testified that he came into contact with defendant at the State Hospital in Kankakee after Potter had been committed. He stated that he concurred in the diagnosis of two other physicians that Potter was a paranoid personality and that there is a difference between a paranoid personality and paranoid psychosis.

On cross-examination, Sanchez testified that there might be improvement with prolonged treatment, but that Potter had not been in the hospital long enough to receive psychotherapy. He further stated that Potter might be aware of the wrongfulness of his act, but that he acted on impulse.

The court, out of the presence of the jury, raised the question of defendant’s competency based upon the testimony of Dr. Greenfield. The State noted that competency was previously determined in February 1973 at which time defendant was found competent. The State noted that defendant was found sane by a jury and that defendant appeared to be able to consult with an aid counsel in the present case. Defense counsel noted that Greenfield had been asked by the State to examine defendant and agreed that defendant could cooperate with counsel. Thereafter the court agreed that defendant understood the nature of the proceeding, the charges against him, that he could cooperate with counsel, and found defendant competent.

In rebuttal the State called a total of seven witnesses. The first witness was Sergeant William Ingle. Ingle stated that he was walking by the cell occupied by defendant when defendant motioned him to come over to the cell. Defendant then began to ask Ingle what he was going to be charged with. Defense counsel objected that the officer was about to testify concerning conversation with defendant without first establishing that defendant had been advised of his rights under Miranda. The objection was overruled. The witness went on to state that defendant was told he would be charged with burglary. Defendant’s response was, “Don’t you have to take something to be charged with burglary?”

Next the State called Officer Joseph E. Miller to testify. Miller was at the station on the morning of March 7, 1973. He testified that Potter made a statement to a woman who had been brought in for a traffic offense. Defendant’s counsel again raised an objection as to what the officer heard and what the defendant had said because there was no evidence that defendant had been advised of his rights under Miranda. Again the objection was overruled. The officer testified that Potter first asked the woman if she knew what had prompted him to commit the act that he stood accused of, and the woman shook her head no. According to Miller, defendant allegedly replied that society had made him do it.

Officer Doug Miller testified that he had brought defendant into the Danville police station on the morning of the incident in question. He testified that defendant refused to answer any questions, demanded an attorney, and was generally uncooperative but not obstreperous.

Deputy Joseph Charles Tharp testified that on April 18 Potter had become unruly in his cell. He attempted to quiet him and had a conversation with Potter. He was asked if defendant said anything to him. Defense counsel objected on the same grounds as his two prior objections. The objection was overruled. The deputy stated that defendant asserted he had nothing to worry about for he was going to con them like a snake and charm his way out of here like he had done before.

In the State’s closing argument, in rebuttal the prosecutor dealt with the issue of insanity and the ability of defendant to formulate the intent necessary for the commission of the offense of burglary. The prosecutor stated that:

“I submit to you that Larry Potter entered the Ridgeview Baptist Church in the early morning hours of March 7, 1973, with the intent to get something of value, something, either money, or worth money, because he was out of money. * * * It is as simple as that. Battle of the experts? No. No battle. Only Larry Potter knows the truth — he don’t want you to know it, but you know it and the truth damns his case as he would damn society.” (Emphasis supplied.)

Thereafter the jury returned the verdict of guilty.

Defendant urges that he was denied a fair trial because the aforementioned comment made by the prosecutor contained prejudicial references to the failure of defendant to testify in his own behalf.

It is improper for the prosecutor to comment on the defendant’s failure to take the stand. (Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229; Ill. Rev. Stat. 1971, ch. 38, jfl55 — 1.) It has been consistently held that a prosecutor may not accomplish indirectly what it cannot do directly, that is, any reference which is intended or calculated to direct the attention of the jurors to defendant’s failure to take the stand in his own defense is violative of defendant’s constitutional right against s elf-incrimination. People v. Hopkins, 52 Ill.2d 1, 284 N.E. 2d 283.

In this case, the prosecutor’s comments do not refer to defendant’s failure to testify. The prosecutor was commenting on the evidence as it unfolded at trial and addressing the issue of defendant’s ability to formulate the specific intent for the commission of the offense of burglary as charged in this case. Defendant had introduced evidence sufficient to raise the issue of his sanity at the time of the offense, thereby rebutting the presumption of sanity. Accordingly the State was attempting to meet its burden of establishing that defendant was sane.

Defendant urges that the objections to the testimony of William Ingle, Joseph E. Miller, and Joseph Charles Tharp, on the basis that the State failed to show the voluntariness of defendant’s statements which had been made in custody, were improperly overruled.

Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, is applicable only to situations of custodial interrogation — where the suspect is substantially deprived of his freedom of action in a significant way and subjected to questions initiated by the authorities. (384 U.S. 436, 444.) In Miranda, the Supreme Court stated:

“Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” (384 U.S. 436, 478.)

The Supreme Court was referring to spontaneous or volunteered statements made by a suspect when the authorities had not focused their attention on the accused for the purpose of soliciting incriminating statements. The scope of our inquiry is whether the statements in question were the by-product of custodial interrogation. We find that they were not.

The record of this case establishes that when defendant made the statements he was in custody but was not subjected to interrogation. His utterances were made without any prodding or inducement by the authorities. The statements in question were clearly voluntarily given and admissible against the defendant without a showing that defendant had been given the admonishments under Miranda.

Next, the defendant contends that his guilt was not established beyond a reasonable doubt. Defendant was charged with burglary with the intent to commit a theft. He argues that conviction for the offense of burglary requires the proof of the specific intent to commit another felony upon the unauthorized entry into another’s premises. Defendant argues that the proof adduced at trial failed to show that he possessed the intent to commit a theft. Defendant substantiates his contention by asserting that the record establishes that neither the arresting officer nor the pastor of the church found any property that had been moved or removed from the premises in question.

We cannot agree with defendant’s contention. We have reviewed the evidence in this case and find that it does support his guilt beyond a reasonable doubt.

The judgment of the circuit court of Vermilion County is affirmed.

Judgment affirmed.

SMITH, P. J., and CLYDESDALE, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Goines, Defendant-Appellant.
    (No. 11851;
    Fourth District
    July 17, 1974.

      Michael A. Pope and Richard A. Seltzer, both of Chicago, for appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana (James R. Burgess, Assistant State’s Attorney, and L. Keith Hayes, Jr., Senior Law Student, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The defendant was found guilty of armed robbery in a jury trial and sentenced by the circuit court of Champaign County to a term of 5 to 15 years in the penitentiary. In this court, he contends (1) that he was denied a full and meaningful preliminary hearing, (2) that trial counsel was incompetent, (3) that the trial court erred in refusing to allow newly discovered evidence that a third person confessed to the crime, and (4) whether his guilt was established beyond a reasonable doubt.

At the time of the occurrences, the defendant was 17 years of age and this court required supplemental briefs as to whether the Illinois Juvenile Court Act in effect at that time (Ill. Rev. Stat. 1971, ch. 37, par. 701 — 1) denied equal protection of the law because of age variance between the sexes and was thus unconstitutional. In People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98, our supreme court laid this issue to rest and held that the Juvenile Court Act did not apply to males over 17 years of age.

The preliminary hearing in which the defendant was bound over to the grand jury was based solely on hearsay testimony of the investigating police officer. The officer read from the police report the statement of Bruce Jacobs, an eyewitness who picked out a photograph of the defendant from a high school yearbook and the statement of one of the young ladies at the Dairy Queen who gave the robber $28, but could not identify the defendant immediately after the robbery nor at the trial. Mr. Jacobs and the young lady both testified before the grand jury. Jacobs was the only witness at the trial who identified the defendant and the three other eyewitnesses admitted that they could not do so. Since Coleman v. Alabama, 339 U.S. 1, 26 L. Ed.2d 387, 90 S. Ct. 1999, there can be no question but that the preliminary hearing may be a “critical’ stage of a criminal prosecution and under the fourth amendment to the Constitution of the United States, a defendant is entitled “to have the assistance of counsel for his defense” and under section 1 of the sixteenth amendment to the Federal constitution, “no state may deprive a defendant of life, liberty, or property without due process of law or the equal protection of the law.” The issue here is whether or not the use of hearsay testimony in a preliminary hearing may be properly used to establish (1) that a crime has been committed and (2) that there is probable cause to believe that the defendant participated in it. A preliminary hearing is not a full-blown trial. Its purpose is historically and specifically limited. The preliminary hearing is binding on no one. Article I, section VIII, of the Illinois constitution now gives the accused a right to a preliminary hearing when in conjunction with section 109 — 1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 109 — 1) the accused is arrested without a warrant. In this case, the preliminary hearing was held with the accused represented by counsel provided by his family. No objection was raised to the proceedings at the preliminary hearing and as a general proposition, a constitutional defect, if not noted in the lower court, is deemed waived. (People v. Black, 52 Ill.2d 544, 288 N.E.2d 376.) It is clear that the preliminary hearing is binding on no one and the State’s attorney could have appropriately and properly submitted this case to the grand jury even though the preliminary hearing officer had found no probable cause as to the defendant. Under these circumstances and under this record, we cannot classify this proceeding as “plain error” nor does this record remotely estabhsh any prejudicial error to the defendant.

The defendant asserts that the inadequacy of the attorney furnished by his family deprived him of a fair trial. Defendant supports this position by the following cases: People v. Jackson, 96 Ill.App.2d 99, 238 N.E.2d 234; People v. McCoy, 80 Ill.App.2d 257, 225 N.E.2d 123, and People v. Odom, 71 Ill.App.2d 480, 218 N.E.2d 116. The cases here cited are not comparable to the record before this court, nor to the harpoons cast by the defendant at defense counsel. It is first asserted that the defendant did not seek out pre-trial discovery techniques available to him and because he could have sought them out, he should have. There is nothing in this record that suggests any of the matters complained about or the failure to use them would have disclosed anything of any particular benefit to this defendant. The defense throughout was primarily alibi and identification. This resulted in a well-conducted presentation of witnesses as to ahbi and effective cross-examination of Mr. Jacobs, who was the sole eyewitness who identified the defendant. It is urged that when the defense counsel in his motion for a new trial asserted for the first time that the atmosphere of the community was such that the defendant could not have a faff trial because of adverse newspaper pubhcity and the frequency of armed robberies in that area, it should have been presented in an application for change of venue prior to the trial. It is urged that this further demonstrates the ineptness of counsel. Appellate counsel has not seen fit to bring these items before this court and we assume that this point is either without merit or is waived. Trial counsel employed assistance in his motion for a new trial. It can well be said that there were many actions that could have been taken by the defense counsel which were not taken. There is not a scintiUa of evidence in this case that had they been taken they would have been productive of anything bearing on the innocence or guilt of this defendant or upon the fairness of his trial. We cannot say from this record that the representation that this defendant had amounted either to such low representation or that it was such as to reduce the trial to a farce or deny the defendant a fair trial. People v. Strader, 23 Ill.2d 13, 177 N.E.2d 126.

On the motion for new trial, the defendant testified to the following facts: That while in jail, Ohver Johnson admitted to him that he (Johnson) had committed this robbery, and that this statement was made in the defendant’s presence and three other witnesses in jail on more than one occasion after defendant’s trial. Before Johnson left he said he would testify for the defendant if he had a new trial. The motion for new trial was continued and Oliver Johnson was returned to testify. When Johnson was returned to the trial court from the penitentiary, he claimed his constitutional privilege against self-incrimination. Defense counsel requested the State to give Johnson immunity from prosecution. The State refused. None of the other three people were summoned to testify, nor does this record show that they were available. In People v. Archibald, 129 Ill.App.2d 400, 263 N.E.2d 711, the court held that a witness who claims his right not to testify because of the fifth amendment makes that witness nonavailable within the terms of the exception to the hearsay rule. (People v. Moscatello, 114 Ill.App.2d 16, 251 N.E.2d 532; People v. Lettrich, 413 Ill. 172, 108 N.E.2d 488.) On this record the admission or statement by Johnson is pure hearsay.

The defendant contends that he was not proven guilty beyond a reasonable doubt. The basic evidence presented at the trial was the testimony of four eyewitnesses to the robbery. One young lady working behind the counter at the Dairy Queen testified that two Negro males, 17 or 18 years old, approached the counter. One of the men carried an 8- to 10-inch gun in his left hand. It was pointed at her and the money demanded. She put the money in a Dairy Queen bag and handed it to him and they then fled around the comer of the building. She also noticed that a white woman was standing 2 to 2}k feet to the gunman’s left, that neither robber wore sunglasses, and she said nothing about a wig. She was not able to identify the defendant as one of the robbers. Her sister testified to substantially the same occurrence events. She, too, was working behind the counter and viewed the entire transaction. A lady customer testified that she was at the counter when the two Negro males approached it and pushed her to one side. She testified to the occurrence events just as the two girls had. She, likewise, could not identify the defendant. The witness Jacobs testified that he and his girl drove up and parked at the Dairy Queen and he noticed two Negro boys wearing what he described as Afro wigs and that one of the two boys wore sunglasses. As he walked toward the counter, he saw a girl hand the bag to one of the boys who then turned towards Jacobs, pointed a blue revolver at him and said, “Stay back.” Jacobs testified that he immediately turned and started walking back to his car but then turned around to return to the counter. As he turned back towards the counter the robbers ran around the comer of the building. He further testified that he was within 4 to 8 feet of the robbers at one time or another. He further testified that he recognized the person with the gun as a feHow student at Centennial High School, although he did not recaU his name at the time. He had not seen this feHow student since June of the same year. Jacobs told the girls at the Dairy Queen that he knew the boy and likewise told the police the same thing. He was taken to the police station where he gave a statement and was there shown a high school yearbook from which he selected the picture of the boy he said he recognized as the robber with the gun. He pointed out the defendant as that boy.

Against this testimony, the defendant denied any knowledge of the robbery and presented the testimony of four witnesses tracing the defendant’s whereabouts from early evening until about 12:30 or 1 the next morning. His father, mother and brother testified that he was home in bed at the time of the robbing. Their testimony likewise shows that the father and both boys were doing some janitor work at an insurance agency where the father worked part-time. They worked until sometime after 10 P.M. and went home together and Richard never left. This alibi testimony was partially corroborated by the owner of the insurance agency where Mr. Goines worked. He stated that he worked at the office on the night of the robbery and he remembered talking to Richard at about 9:45, just prior to making a long-distance call. He was not able to testify to the exact time the three left but when he left later, they were gone. The lady at the counter testified that the robbery occurred around 11 P.M.

We have a situation here somewhat similar to our People v. DeArmond, 5 Ill.App.3d 831, 284 N.E.2d 474. We there held that we had a factual situation where the strength of the identification must be weighed against the strength of the alibi and that this determination was one for the jury based on witness credibility. We likewise held that one identifying witness is sufficient to convict if there is credible evidence to support it, even in the face of an alibi. The defendant correctly points out that there is a distinction between DeArmond and the case here. It is rarely that one finds a factual situation on all fours with another case. The sole question on this point is which group of witnesses should be believed. Perhaps the most significant factor so far as Jacobs is concerned is the fact that he thought he recognized the defendant and immediately communicated that information to one of the girls and to the police who arrived in a matter of minutes. There was no intervening time to fabricate, reflect, or develop any self-interest to prepare himself. In DeArmond, the sole eyewitness was quoted as stating in history class that she said, ‘I don’t really know for sure.” Someone asked her, “How did you know it was him?” She said, ‘Well, it looked like him.” We feel here as we felt there that the jury had the better opportunity to view, weigh, test and determine the credibility of the various witnesses. There were variations in the testimony as there frequently are. The trial court refused the new trial, a motion for directed verdict, and a motion for judgment notwithstanding the verdict. Under such circumstances, the credibility of the witnesses must be the determining factor.

Accordingly, the judgment is affirmed.

Affirmed.

SIMKINS and CRAVEN, JJ., concur.


author: Mr. JUSTICE KASSERMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clarence Eugene Miller, Defendant-Appellant.
    (No. 12277;
    Fourth District
    July 3, 1974.
    John F. McNichols, of the State Appellate Defender’s Office, of Springfield, for appellant.
    Edwin R. Parkinson, State’s Attorney, of Jacksonville, for the People.
   Mr. JUSTICE KASSERMAN

delivered the opinion of the court:

Defendant appeals his conviction for the offense of burglary rendered after a jury trial and for which he was sentenced to not less than 2 nor more than 6 years’ confinement in prison. The issues raised by appellant on appeal are:

1. Whether the court committed reversible error by admitting evidence that latent fingerprints discovered at the scene of the offense were defendant’s.

a. Whether one not qualified as an expert may given an opinion on the identity of fingerprints.

b. Whether the court erred in admitting hearsay to establish the identity of the fingerprints in People’s Exhibit #3.

c. Whether the court erred by allowing an expert to testify that in his opinion the latent prints found at the scene of the crime were the defendant’s where the expert had no first hand knowledge of the identity of the prints used in the comparison.

2. Whether the trial court committed plain error in admitting into evidence a police booking card which clearly indicated prior criminal activity by the defendant.

3. Whether the sentence imposed was excessive and based upon the mistaken impression that the minimum sentence for burglary is 2 years.

It is our opinion that it is unnecessary to consider any issue other than whether the court erred in allowing expert testimony that fingerprints found at the crime scene were the defendant’s where the expert had no basis upon which to identify the prints used for comparison.

The only relevant evidence introduced by the prosecution connecting the defendant to the offense charged consisted of the testimony of Detective Potter and one Cecil L. McDougall, their testimony being limited to fingerprint identification.

Officer Potter testified that the latent fingerprints which he lifted from the crime scene appeared to match those on the fingerprint card for one Clarence Eugene Miller and that he forwarded such fingerprints to the state crime laboratory for identification. He further testified that he subsequently caused the fingerprint card and the fingerprints which were lifted from the scene of the crime to be sent to the state crime laboratory.

Cecil L. McDougall, who was identified as a fingerprint expert for the State of Illinois, Illinois Bureau of Identification, testified that the fingerprints lifted at the scene of the crime matched the fingerprints present on the fingerprint card of Clarence Eugene Miller; however, on cross-examination, he testified that he did not take sample prints from the defendant in this cause, Clarence Eugene Miller, but that the fingerprints raised from a lamp at the scene of the crime matched those on a card bearing tire name “Clarence Eugene Miller.”

The defendant called only one witness in his defense, his mother, who testified that the defendant was at home watching television at the time the offense was committed.

The defendant argues in this appeal that the introduction of the fingerprint card bearing the name of Clarence Eugene Miller is irrelevant, contending that the fingerprint card can be used only to establish the truth of the facts asserted therein.

The fingerprint card indicates that the fingerprints belong to one Clarence Eugene Miller and that said prints were taken in Jacksonville, Illinois, on January 12, 1963, approximately 10 years prior to the date of the trial in this cause. There is nothing on the fingerprint card which could he said to establish that the Clarence Eugene Miller mentioned on the fingerprint card was the same person as the defendant in this cause. There is no evidence in this cause which purports to indicate that the Clarence Eugene Miller referred to on the fingerprint card is the same Clarence Eugene Miller who is the defendant in this cause. Officer Potter, in identifying the fingerprint identification card, testified that it was a fingerprint card for Clarence Eugene Miller, that he obtained it from the fingerprint file at the Jacksonville Police Department and that he had personal knowledge of the fact that the card was on file with the police department; however, he failed to connect the fingerprint card with the defendant in this cause.

It has been held that before a document may be entered into evidence against a defendant, it must be shown that the person referred to on said document was in fact the defendant at trial. This court in People v. Hornstein (1964), 47 Ill.App.2d 367, 372, 198 N.E.2d 207, stated, in a case dealing with the admissibility of records of prior criminal convictions:

“The burden of proof rests with the People to not only offer in evidence the former convictions, but to prove beyond a reasonable doubt that the defendants were the same persons as the ones described in the authenticated copies of the prior record of conviction. * * * This is not a harsh rule. It should be a very simple and uncomplicated matter to prove identity of the defendants as being the same persons convicted previously.”

Hornstein discusses the supreme court opinions in People v. Casey (1948), 399 Ill. 374, 77 N.E.2d 812, and People v. Stewart (1961), 23 Ill.2d 161, 177 N.E.2d 237. The court in Casey held:

“The mere proof of a record containing identity of name with that of the defendant on trial is not sufficient to overcome the presumption of innocence where the enhancement of the penalty depends upon the proof of such fact.” 399 Ill. at 380.

Applying the doctrine of Hornstein to the facts in this case, it is our opinion that the prosecution must establish that the defendant was the same person whose fingerprints were displayed on the fingerprint card admitted into evidence. The mere similarity of names is not sufficient. It would have been a simple matter to have determined whether the fingerprints of this defendant and those on the fingerprint card were the same. The failure to do so renders it impossible to conclude that the defendant’s fingerprints were at the scene of the crime; therefore, the judgment of conviction and sentence is reversed.

Reversed.

SIMKINS, P. J., and CRAVEN, J., concur.